Archives for: 2010

12/31/10

Permalink 10:17:47 pm, by fourth, 98 words, 737 views   English (US)
Categories: General

7,000 posts in 7 years (nearly 8)

Since going to this format, and I don't remember when it was, there have been 5,000 posts to this website, and a few million page views. I haven't even looked at the exact statistics in over a year, but it would be about 3-4M page views since February '03, almost eight years. According to DomainsOutlook, this website is ranked 2,022,352 in the world. Nowhere to go but up. WE'RE NUMBER 1. WE'RE NUMBER 1.

I'm thinking about changing the software, but I can't abandon 5,000 searchable posts. So, maybe 7,000 posts in the current and former format... The former format was not searchable.

Permalink 10:06:40 pm, by fourth, 27 words, 738 views   English (US)
Categories: General

Airport strip protest arrest

12/30/10

Permalink 09:14:43 am, by fourth, 198 words, 807 views   English (US)
Categories: General

MN S.Ct. takes case on roving housing inspectors

Minnesota Tenants Challenge Nosy Housing Inspectors in Reason Magazine:

Last week the Minnesota Supreme Court agreed to hear a case in which the Institute for Justice is challenging a local ordinance that lets housing inspectors roam people's apartments to make sure they're up to code. Red Wing, Minnesota, began requiring the inspections in 2006 as a condition of granting rental licenses to landlords. If a landlord or occupant does not agree to an inspection, the city can ask a judge for a warrant. But because the visits are classified as "administrative inspections," the city does not have to show there is any reason to suspect that a particular building is substandard. Armed with administrative warrants, inspectors can poke their noses into tenants' bedrooms, bathrooms, closets, and even, until a recent revision of the law, refrigerators and medicine cabinets. Although they are ostensibly looking for hazards that need to be corrected, they are expected to report evidence of certain crimes—including methamphetamine production, child abuse, elder abuse, and pet abuse—to the police. Inspectors thus can serve as proxies for the police, who would not be allowed to search people's homes without probable cause to support a criminal search warrant.

Permalink 08:27:24 am, by fourth, 276 words, 715 views   English (US)
Categories: General

W.D.Mo.: Cable installer was CI who testified at suppression hearing

Defendant had a cable installer at his house, and the cable installer suspected drugs on the premises and reported it to the police. The alleged falsehoods in the affidavit did not go to the probable cause but to the justification for a no-knock warrant, so the motion to suppress would not be granted. The cable installer was the CI and he testified at the suppression hearing. The questions about company policy of confidentiality concerning their work orders was not really pertinent to the Fourth Amendment question. United States v. Rodriguez, 2010 U.S. Dist. LEXIS 136155 (W.D. Mo. October 26, 2010).*

Under the circumstances, the possession of syringes the same as taken off another person just arrested at the same place was PC for drug paraphernalia, despite the legitimate uses of syringes. State v. Nimer, 2010 UT App 376, 246 P.3d 1194, 672 Utah Adv. Rep. 13 (2010).*

Defendant’s failure to object to the R&R means the motion to suppress is denied. United States v. Rodriguez, U.S. Dist. LEXIS 136150 (W.D. La. December 23, 2010).*

One plaintiff’s plea agreement included that she would not “pursue” any civil action, so this case was dismissed as to her, but not as to the co-plaintiffs. As to them, it failed under respondeat superior allegations. Robinson v. United States, 2010 U.S. Dist. LEXIS 136304 (M.D. La. November 9, 2010).*

Probable cause for search warrant of a drug house was shown by surveillance with short-term visitors coming and going, two having been stopped in possession of meth, and the smell of a meth lab in the house. The officers also conducted a knock and talk to see who was there. United States v. Gentry, 406 Fed. Appx. 274 (10th Cir. 2010) (unpublished).*

Permalink 07:50:55 am, by fourth, 751 words, 844 views   English (US)
Categories: General

UT: Police short search of stolen computer was negligent Fourth Amendment violation, but suppression not ordered

Defendant's computer was stolen and recovered at a vacant building when trespassers were arrested. The computer was open and on and a text document open. Through the serial number, the officers were able to locate the owner, and he was called. While waiting on the owner, the officer tried to open the document the thieves had opened to see if it incriminated them. He couldn't find it, so he explored and clicked on "My Pictures" and found thumbnails of underage females. He turned off the computer. When defendant arrived, they asked him for consent to search the computer for evidence of the thieves on the computer. A forensic examination was done, and evidence of sexual exploitation of a child was found. On defendant's motion to suppress, the court holds that a negligent violation of Fourth Amendment rights was here enough to not apply the exclusionary rule, analyzing all the factors. State v. Newland, 2010 UT App 380, 253 P.3d 71, 672 Utah Adv. Rep. 8 (2010):

[*P26] We must now decide whether the trial court correctly concluded that the consent was not obtained through exploitation of the initial illegality.

[T]he exploitation analysis requires a balancing of the relative egregiousness of the misconduct against the time and circumstances that intervene before the consent is given. [Thus, t]he nature and degree of the illegality will usually be inversely related to the effectiveness of time and intervening events to dissipate the presumed taint.

State v. Thurman, 846 P.2d 1256, 1264 (Utah 1993). “This balancing [test] necessitates consideration of all factors without giving any of them dispositive weight.” State v. Shoulderblade, 905 P.2d 289, 293 (Utah 1995). The factors, however, are not of mathematically equal importance. See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (noting the particular importance of the purpose and flagrancy factor); accord Thurman, 846 P.2d at 1263-64. “[W]here it appears that the illegality arose as the result of negligence, the lapse of time between the misconduct and the consent and the presence of intervening events become less critical to the dissipation of taint.” Thurman, 846 P.2d at 1264. In this case, because the temporal proximity factor is neutral, only the absence of intervening circumstances must be weighed against the lack of purposefulness and flagrancy. In light of the unchallenged negligence finding, however, “a clean break in the chain of events between the misconduct and the consent” was not required. Id. Moreover, because the officer’s conduct was due to negligence, we agree with the trial court that the deterrent value of suppression is minimal and “greatly outweighed by society’s interest in placing all relevant evidence before the jury,” see id. at 1274. The trial court therefore correctly denied Newland’s motion to suppress.10

10 In affirming here, to the extent that the initial search may have been illegal, we are not condoning an officer’s violation of Newland’s constitutional right to freedom from unreasonable searches of his personal effects. The United States Supreme Court, however, has “never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 700, 172 L. Ed. 2d 496 (2009) (internal quotation marks omitted).

The rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it. But [d]espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.

Brown, 422 U.S. at 599-600 (alteration in original) (citation and internal quotation marks omitted). “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 129 S. Ct. at 702.

This case is thoughtfully analyzed, and the court does not consider itself bound by the trial court’s negligence finding. When you get to the end of the opinion, though, you wonder “what happens next time” with this officer or in Utah in general. If the exclusionary rule is “calculated to prevent rather than repair,” does this case add anything to prevention? Should it? Considering how the computer was found, how likely was it that the “My Pictures” folder would have pictures of the thieves? One would surmise that clearly the officer had no business going anywhere other than the open text document or search files found created after it was reported stolen. Hard cases make bad law.

12/29/10

Permalink 09:49:47 am, by fourth, 266 words, 701 views   English (US)
Categories: General

OH8: Defendant was stopped without RS as officers were awaiting a SW for his house; car stop invalid

Officers were obtaining a search warrant for defendant’s house, and he left and those inside were looking out the windows. Officers decided to stop defendant because they hadn’t yet developed a plan for the search. Defendant’s stop was without legal justification, and the car search was invalid. State v. Okundaye, 2010 Ohio 6363, 2010 Ohio App. LEXIS 5282 (8th Dist. December 23, 2010).*

Defendant was stopped for speeding, and he made furtive movements, was extremely nervous, and there was masking odor. All of that was reasonable suspicion. State v. Franzen, 2010 ND 244, 792 N.W.2d 533 (2010).*

A telephone call from a citizen to the police said that two men were attempting to break into a bank’s night deposit drop. When the police approached men matching the description, they drove in a different direction. “This is not a case where a citizen's report was the only factor supporting the magistrate judge's probable cause determination. Bartz observed Datcu and Cipu in a location unusual for that day and time—parked in the evening in a concealed manner in an adjacent parking lot to the closed banks. Datcu's all black outfit made him less visible from a distance, and both men changed course once they saw Officer Bartz, apparently seeking to elude him and to distance themselves from the concealed vehicle with out of state license plates.” United States v. Datcu, 627 F.3d 1074 (8th Cir. 2010).*

Defendant claimed that defense counsel was ineffective for not arguing that his consent to search his backpack in an airport was inherently coercive. Defendant’s consent was voluntary anyway. United States v. Davis, 406 Fed. Appx. 268 (10th Cir. 2010) (unpublished).*

Permalink 09:12:18 am, by fourth, 156 words, 667 views   English (US)
Categories: General

DE: Trial judge holds GPS tracking requires a warrant

Following Maynard and Weaver, a Delaware Superior Court judge suppresses warrantless use of GPS to track the defendant’s movements. State v. Holden, 54 A.3d 1123 (Del. Super. 2010).*

On the totality of circumstances, there was probable cause for issuance of a search warrant for defendant’s blood in a DUI case. Foley v. State, 2010 Tex. App. LEXIS 10071 (Tex. App.– Corpus Christi–Edinburg December 21, 2010).* [Coincidentally, today on MSNBC’s morning news there was a story about judges in Texas issuing search warrants for blood because 50% of all DUI detainees refuse breath tests.]

There was probable cause for the search of defendant’s car, so Gant was inapplicable. United States v. Murphy, 405 Fed. Appx. 791 (4th Cir. 2010) (unpublished).*

A student’s leaving a school campus and then coming back during the day justified a T.L.O. “special needs” search of the student’s belongings under school policy. In re Sean A., 191 Cal. App. 4th 182, 120 Cal. Rptr. 3d 72 (4th Dist. 2010).*

Permalink 12:01:52 am, by fourth, 248 words, 706 views   English (US)
Categories: General

E.D.Pa.: Finding shooting victim after entry was dissipation of the exigency, so further search unreasonable

The police entered with exigent circumstances for a reported shooting. Having found the shooting victim, a search of the upstairs was unreasonable because there was no justification for going up there. United States v. Wolfe, 2010 U.S. Dist. LEXIS 135485 (E.D. Pa. December 21, 2010).*

Failure to signal on a parking lot is not a violation of the Missouri vehicle code, so defendant’s stop was unreasonable. Stop suppressed. State v. Loyd, 326 S.W.3d 908 (Mo. App. 2010).*

“[S]ociety does not recognize a reasonable expectation of privacy in blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient” when requested by law enforcement for DUI. State v. Davis, 161 N.H. 292, 12 A.3d 1271 (2010):

To the extent that the defendant may have a reasonable expectation of privacy in his medical records generally, see In Re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 226, 999 A.2d 210 (2010), we conclude that society does not recognize a reasonable expectation of privacy in blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient, where those results are requested by law enforcement for law enforcement purposes in connection with an incident giving rise to an investigation for driving while under the influence of intoxicating liquors or controlled drugs. See RSA 329:26.

We also disagree with the defendant that the United States Supreme Court's decision in Ferguson v. Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), leads to a different result. ...

12/28/10

Permalink 05:32:03 am, by fourth, 262 words, 1032 views   English (US)
Categories: General

New law review article: "Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases"

Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases by Stanley A. Goldman of Loyola Law School Los Angeles

Abstract:

Whether we are speaking of Hudson v. Michigan, Herring v. United States, Arizona v. Gant, Thornton v. United States or even though slightly older Illinois v. Wardlow, these cases represent a trend by the high court to limit the scope of both the 4th amendment and the exclusionary rule. The result is that law enforcement will obtain greater freedom to engage in stop and frisk as well as search and seizure without fear that the evidence may be excluded during the course of any subsequent criminal trial. The problem with these cases may be that they fail to recognize the societal costs of giving police such free reins without consequences. In this 25 page paper, the author summarizes and examines these and other recent United States Supreme Court cases and concludes that they are often being interpreted by lower courts to create broader powers in the police than the cases themselves actually provide. In some respects, this article is both an examination of what the cases "could" stand for if interpreted either broadly or narrowly. There is much for prosecutors in these cases, but there is also a surprising amount left to be argued by defense counsel, who may still find arguments for exclusion in the modifiers that are provided by either an essential 5th vote concurrence or by the majority opinion itself. If nothing else, this article provides a quick summary of the essentials of these transformative cases.

Permalink 12:22:58 am, by fourth, 159 words, 649 views   English (US)
Categories: General

W.D.Tex.: Voicing reservations about a dog sniff is not a revocation of consent

Defendant consented to a search of his car. He expressed reservations at a dog sniff, but he did not revoke consent. United States v. Benavides, 2010 U.S. Dist. LEXIS 135039 (W.D. Tex. December 21, 2010).*

The officer had reasonable suspicion for defendant’s stop and continued detention from suspicious circumstances, including a dash that did not work and getting off at an exit for gas that had no re-entry for that direction. United States v. Allen, 2010 U.S. Dist. LEXIS 135084 (E.D. Tenn. December 21, 2010).*

The officer was justified in a frisk of defendant who he saw with a gun in hand in a high crime area where a drug sale had just occurred. Defendant admittedly had no standing in the house searched, and the search of his car was valid under the automobile exception without regard to a search warrant. United States v. Haywood, 2010 U.S. Dist. LEXIS 135082 (W.D. Tenn. October 8, 2010), adopted 2010 U.S. Dist. LEXIS 135083 (W.D. Tenn. December 20, 2010).*

Permalink 12:10:57 am, by fourth, 350 words, 686 views   English (US)
Categories: General

E.D.Tenn.: Traffic stop was not abandoned in favor of drug investigation; consent was valid

Defendants’ stop was with probable cause for not signaling an abrupt turn. During the stop and running the paperwork, the owner of the car validly consented. United States v. Crawley, 2010 U.S. Dist. LEXIS 135212 (E.D. Tenn. June 29, 2010)*:

In summary, Everett establishes a simple framework for prolongation cases: if the traffic stop is “completed” or “definitively abandon[ed],” the officer must have independent reasonable suspicion supporting any further detention at the moment of completion or abandonment. See United States v. Urrieta, 520 F.3d 569, 574 (6th Cir. 2008). On the other hand, if the officer continues to pursue the purposes of the original traffic stop throughout the encounter, a reviewing court must examine the totality of the circumstances to determine whether the duration of the stop as a whole, with due consideration to the time spent on unrelated inquiries (such as questioning or dog sniffs), was reasonable—in other words, whether the “bulk of the interaction” between the officer and the suspect was monopolized by the unrelated inquiry. Everett, 601 F.3d at 494, 495.

Here, the traffic stop was never abandoned, and it was not completed until after Crawley, the owner of the car, gave consent to search the inside of the car. Lilly’s undisputed testimony established that Crawley told Lilly he could search the “inside” of the car before Lilly issued the summonses to Allen. The relevant inquiry in this case, therefore, is whether Lilly “diligently” pursued the purposes of the traffic stop throughout the encounter, and if he did not, whether the prolongation was supported by independent reasonable suspicion.

Taken as a whole, the officer had reasonable suspicion for defendant’s detention for nervous behavior, failure to make eye contact, driving on a drug corridor in a rented car claiming no rental contract. United States v. Derrick, 2010 U.S. Dist. LEXIS 135585 (M.D. Ill. December 22, 2010).*

Defendant’s arrest for driving on a suspended DL came after he was stopped for speeding. The computer check is PC. The officer did not have to Mirandize him before asking why he was speeding. United States v. Shirley, 2010 U.S. Dist. LEXIS 135376 (N.D. Ga. November 8, 2010).*

Permalink 12:01:15 am, by fourth, 336 words, 663 views   English (US)
Categories: General

IN: Finding loaded magazine after a furtive movement justified a second patdown for weapon

With defendant’s stop, he was asked if he was armed, and he reflexively reached down to the floorboard. The officer got him out of the car and searched the area for a gun finding a loaded magazine. The passengers were removed, and all were searched without finding the gun. A second patdown of the defendant produced a gun in his waistband. After finding ammunition, the second patdown was justified. Saffold v. State, 938 N.E.2d 837 (Ind. App. 2010).*

A text message photograph of marijuana from an 11 year old to his dad was justification for the officer to come to house where defendant lived with the child’s mother. Also viewing the photograph on the phone at the scene was corroboration of probable cause. Hurst v. State, 938 N.E.2d 814 (Ind. App. 2010).*

Defendant was parked in front of a drug house and drove off. Officers followed and pulled him over for not making a complete stop. He denied being at the drug house. He consented to a search of his person but not the car. Officers found nothing on him nor in a quick look in the car. His denial of being at the drug house was reason enough to look for a weapon. A search of the car found only drugs. The search was valid. State v. Johnson, 2010 Ohio 6224, 2010 Ohio App. LEXIS 5227 (2d Dist. December 17, 2010):

[*P14] In this case, appellant was seen leaving a well-known drug location at 1:30 A.M. Appellant subsequently implicated himself by denying this after being pulled over. Neither a pat down nor a cursory glance inside the vehicle can adequately negate the possibility that a weapon was in the vehicle. A brief protective sweep of the vehicle was necessary to ensure the safety of the officers and others. The limited, protective search was very brief. It only lasted about ten to fifteen seconds. Given the facts and circumstances, this was a legal search. The trial court did not err in admitting the crack cocaine as evidence and overruling appellant's motion to suppress.

12/27/10

Permalink 11:13:05 am, by fourth, 318 words, 828 views   English (US)
Categories: General

FL4: Officer's direction to turn off car engine was seizure

The officer came upon defendant asleep at the wheel of his car with the engine running in a shopping center parking lot. Telling the defendant to turn off the engine was a seizure. There was no reasonable suspicion. Gentles v. State, 50 So. 3d 1192 (Fla. App. 4th DCA 2010):

Similarly, in this case, Officer Horn's direction for the defendant to turn off his engine constituted a show of authority which restrained the defendant's freedom of movement. An order to shut off one's car is as much a restraint on movement as an order to step out of the car. Both orders constitute a seizure because they convey to a reasonable person under the circumstances that he or she must comply and is not free to end the encounter and drive away. See Taylor v. State, 658 So. 2d 173, 173 (Fla. 5th DCA 1995) (holding that when an officer pulled up behind the defendant, who was parked in a driveway with the motor running, and ordered him to turn off his motor and produce his driver's license, the defendant was improperly seized and the search that followed was illegal).

Other vehicle-related police conduct found by Florida courts to constitute a seizure or detention include: using a police car to block the path of a car, Stennes v. State, 939 So. 2d 1148, 1149 (Fla. 4th DCA 2006); shining a flashlight or spotlight on a defendant's car, Leroy v. State, 982 So. 2d 1250, 1252 (Fla. 1st DCA 2008); displaying a weapon or physically touching the person, State v. Dixon, 976 So. 2d 1206, 1209 (Fla. 4th DCA 2008); ordering a driver in a stopped vehicle to roll down his window, Greider v. State, 977 So. 2d 789, 792-93 (Fla. 2d DCA 2008); and directing a defendant to remove his hand from his pocket, Delorenzo, 921 So. 2d at 876.

We have been unable to find a case on all fours with this one. ...

Defendant consented to the taking his fingerprints and DNA. Puglisi v. State, 56 So. 3d 787 (Fla. App. 4th DCA 2010).*

Permalink 12:16:42 am, by fourth, 346 words, 680 views   English (US)
Categories: General

W.D.Ky.: Including CP in internet sting SW lacked PC and GFE did not apply

An internet predator sting developed information on defendant soliciting a child for sex. When the police got a search warrant for his computer for evidence of solicitation they included child pornography. Under United States v. Hodson, the search warrant was overbroad for lack of probable cause for child pornography. The good faith exception does not apply. United States v. Underwood, 2010 U.S. Dist. LEXIS 134534 (W.D. Ky. October 18, 2010):

Hodson remains good law in this circuit and has not been overruled or otherwise abrogated by subsequent published appellate case law. A number of decisions from federal appellate and trial courts, however, have distinguished Hodson based on its facts.8 But no meaningful distinction can be made under the facts of this case. Here, Det. Jackman in his affidavit included no references to the transmission of pornographic or sexually explicit images from Defendant Underwood, nor did Jackman make reference to the repeated requests for such images by Underwood. Jackman's affidavit is similar in all material respects to the affidavit of KSP Det. Pickrell with the relatively minor distinction that Jackman applied for his search warrant within approximately 30 days after his final online exchange with the Defendant, whereas approximately three months passed between kidlatino12's last conversation with Hodson and Det. Pickrell's search warrant application on Jan. 19, 2006. Hodson, 543 F.3d at 287. Otherwise, both affidavits suffer the exact same defect -- each sets forth probable cause for one crime (sexual solicitation of a minor) in the warrant application while requesting authorization to search for evidence of a separate crime (possession of child pornography) and receiving authorization through the warrant to search only for evidence of the crime of child pornography.

The Court in such circumstances must agree with the panel in Hodson that not only does the Jackman affidavit fail to establish probable cause to conclude that child pornography would be found in Underwood's home on March 28, 2008, but also that no objectively reasonable police officer could rely upon such a search warrant in good faith to search for child pornography. The Government does not argue otherwise insofar as Hodson is concerned.

Permalink 12:01:36 am, by fourth, 411 words, 770 views   English (US)
Categories: General

WI: Man wanted for murder on the run was sufficient exigent circumstance for entry to arrest

Defendant was an overnight guest in an apartment and he had standing. He was wanted for murder, and the owner of the apartment let in the police to arrest him. They also had exigent circumstances. The time to get a search warrant could have thwarted the arrest entirely. State v. Ayala, 2011 WI App 6, 331 Wis. 2d 171, 793 N.W.2d 511 (2010).*

P18 When officers arrived at the Cervantes residence, they had probable cause to arrest Ayala for the Milford homicide and the three related armed robberies. 5 Various factors created probable cause: (1) there had been what appeared to be an intentional homicide using a gun; (2) officers had information from the other robbery/homicide participants that Ayala was the shooter; (3) Ayala was believed by officers to be a Latin Kings gang member; (4) the weapon used in the homicide had not been recovered, leading officers to believe Ayala might still have the gun in his possession; (5) the gun might be evidence of a crime; (6) if Ayala possessed the missing gun, it put the officers at risk of being shot by Ayala if they announced themselves or asked Ayala for consent to enter the bedroom; (7) the tavern below the apartment was frequented by Latin King members; (8) Rochelle operated the tavern below the apartment; and (9) because there were civilians in the apartment as well as the tavern below, all were at risk if Ayala began shooting while police procured a warrant.

The Alaska Supreme Court directed the Court of Appeals to reconsider an appeal under Gant which was decided in the interim. First, Gant is retroactive under Griffin v. Kentucky. Second, the search was valid as a search incident because she gave false information about her identity and her claim she did not have to be believed. Therefore, it was reasonable to believe that her driver’s license would be found in the car, so a search incident was valid. Deemer v. State, 244 P.3d 69 (Alaska App. 2010).*

The state could not establish that the “community caretaking function” entry into defendant’s house was justified. There was no indication that the home had to be entered for the protection of the homeowner. State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505 (2010).*

Defendant who was at the premises searched for only a short time for a drug deal who had no connection to the residents had no expectation of privacy that society was willing to recognize as reasonable. United States v. Rivera-Pabon, 2010 U.S. Dist. LEXIS 134800 (N.D. Ga. August 9, 2010).*

12/26/10

Permalink 08:27:28 am, by fourth, 63 words, 850 views   English (US)
Categories: General

TSA brags about finding drugs in full body scans

TSA is now bragging about finding drugs in full body scans: WaPo: More body scanners are coming to an airport near you, by Derek Kravitz.

And how is that relevant to "transportation security"? It is a general search. If it doesn't look like an explosive or a weapon, they should just ignore it.

"Mission creep" personified.

Airports with full body scanners are here.

Permalink 12:28:41 am, by fourth, 123 words, 668 views   English (US)
Categories: General

S.D.Tex.: Inventory of defendant's car was reasonable because he was inconsistent in how much money he had in it

Money in defendant’s vehicle had to be inventoried because he gave inconsistent versions of how much he had. The inventory policy was reasonable. United States v. Lewis, 2010 U.S. Dist. LEXIS 134801 (S.D. Tex. December 21, 2010).*

Defense counsel was not ineffective for not challenging the search in this case because defendant lacked standing to challenge the search. United States v. Washington, 2010 U.S. Dist. LEXIS 134991 (M.D. Pa. December 21, 2010).*

During a traffic stop, defendant’s refusal to keep his hands in sight in his car justified a frisk for a weapon. State v. Latson, 2010 Ohio 6297, 2010 Ohio App. LEXIS 5262 (10th Dist. December 21, 2010).*

Random weapons searches of probationers were justified by state law and this one was reasonable. Commonwealth v. Wilson, 2010 PA Super 233, 11 A.3d 519 (2010).*

Permalink 12:15:48 am, by fourth, 290 words, 664 views   English (US)
Categories: General

MD: State's failure to argue inevitable discovery here precluded reliance on it on appeal

The state did not raise inevitable discovery, so it was a “speculative inquiry” into whether it applied and the defendant likely was prejudiced by not getting to litigate the issue. Elliott v. State, 417 Md. 413, 10 A.3d 761 (2010):

Although appellate courts have some discretion in raising different justifications for lower court decisions, we may not use such discretion without restriction. In the present case, the record does not support a sua sponte holding of inevitable discovery. We are bound by the evidence presented at the suppression hearing. Unfortunately, in this case the record is not complete and cannot support a sua sponte finding of inevitable discovery. Even assuming arguendo that the evidence would inevitably have been discovered, the defense was unfairly prejudiced by the issue being raised for the first time in the appellate court. Further, any decision by the appellate court must be based on historical facts capable of easy verification, rather than speculation, which cannot be done in this case. See Williams, 372 Md. at 418, 813 A.2d at 250.

Defendant was driving behind another vehicle with no headlights stopped by an officer, and defendant stopped, too. He got out of his vehicle and was ordered back to the car by the officer, and this was a seizure, but it was reasonable. State v. Reiss, 45 Kan. App. 2d 85, 244 P.3d 693 (2010)*:

But there are situations—based on concerns of officer safety and the safety of the public—in which a person may be detained without reasonable suspicion of wrongdoing. The United States Supreme Court has held in two similar situations that concerns for public or officer safety allow for some intrusion on the liberty of those who simply find themselves near an otherwise-authorized law-enforcement action; such an intrusion does not violate the Fourth Amendment.

Permalink 12:01:00 am, by fourth, 111 words, 673 views   English (US)
Categories: General

AL: Dropping drugs in flight from stop was PC for search of car left behind

Defendant fled from police and allegedly dropped drugs in flight. He was not seized while fleeing. The drugs he dropped gave probable cause to search his car under the automobile exception and not Gant. State v. Jemison, 66 So. 3d 832 (Ala. Crim. App. 2010).*

Smell of marijuana and an open beer can justified a search of defendant’s car. Jackson v. State, 127 So. 3d 1251 (Ala. Crim. App. 2010).*

Smell of marijuana alone justified a search of defendant’s car. State v. Perry, 66 So. 3d 291 (Ala. Crim. App. 2010).*

Randolph on veto of consent does not apply to this consent search; defendant’s wife consented and he did not object. Payton v. Commonwealth, 2010 Ky. LEXIS 298 (December 16, 2010).*

12/25/10

Permalink 09:13:23 am, by fourth, 180 words, 627 views   English (US)
Categories: General

TN: Arrest in house and drug dog alert on car outside justified search of the car under automobile exception

Defendant was arrested with a warrant in his house by U.S. Marshals. A drug dog swept his car outside the house, and the dog alert supported the search of the car, even though the defendant was in custody and could not move the car. State v. Adkins, 2010 Tenn. Crim. App. LEXIS 1047 (December 16, 2010).*

Defendant had no reasonable expectation of privacy in his girlfriend’s cellphone records which were used to connect him to a crime. Commonwealth v. Benson, 2010 PA Super 234, 10 A.3d 1268 (2010).*

Furtive movements in a car as the car was stopped justified asking the passengers for their ID, too. State v. Frierson, 2010 Tenn. Crim. App. LEXIS 1043 (December 14, 2010).

Plaintiff’s car was booted for unpaid parking tickets and then towed. It was moved to an impound lot and notice was mailed, but plaintiff had an incorrect address. The car was sold off. The seizure of the car was reasonable under the Fourth Amendment, and she was afforded due process. Tate v. District of Columbia, 627 F.3d 904 (D.C. Cir. 2010), cert. denied 179 L. Ed. 2d 1198, 2011 U.S. LEXIS 3522 (U.S., May 2, 2011).*

Permalink 07:17:39 am, by fourth, 525 words, 882 views   English (US)
Categories: General

IA: LEO could not conduct parole search

Law enforcement officer’s search could not be justified by defendant’s parolee status. The court takes a foray into parole searches and doesn’t like Samson [only SCOTUS does]. State v. Ochoa, 792 N.W.2d 260 (Iowa 2010):

G. Academic Commentary on the Samson Approach. Academic commentary has generally been hostile to Samson and the departure of particularized suspicion. A raft of student notes takes the position that Samson spun the wheels off of the Fourth Amendment. See, e.g., Robert Cacace, Recent Development, Samson v. California: Tearing Down a Pillar of Fourth Amendment Protections, 42 Harv. C.R.-C.L. L. Rev. 223, 229-33 (2007) (stating that Samson confuses the reasonableness test with the special needs test, thereby undermining Fourth Amendment rights); John Lassetter, Article, Samson v. California: “Evil” Suspicionless Searches Become a Part of Everyday Life for Parolees, 25 Law & Ineq. 539, 554-55 (2007) (rejecting balancing test utilized by Samson and asserting that suspicionless searches of parolees are not reasonable); Rachael A. Lynch, Note, Two Wrongs Don’t Make a Fourth Amendment Right: Samson Court Errs in Choosing Proper Analytical Framework, Errs in Result, Parolees Lose Fourth Amendment Protection, 41 Akron L. Rev. 651, 681-88 (2008) (stating Samson ignores important Fourth Amendment interests of parolees and overstates state interests); David M. Stout, Note, Home Sweet Home?! Maybe Not for Parolees and Probationers When it Comes to Fourth Amendment Protection, 95 Ky. L.J. 811, 838 (2007) (arguing warrantless, suspicionless searches have negative impact on offender reintegration with little gain).

Leading academic commentators agree. For example, Professor LaFave finds Samson unpersuasive, characterizing the move away from “special needs” analysis into a general reasonableness analysis as “especially troublesome.” 5 Wayne R. LaFave, Search & Seizure § 10.10, at 44 (4th ed. Supp. 2010-2011).

. . .

The scope of the asserted power is stunningly broad. A person on parole for an alcohol-related crime, for instance, could be subject to warrantless searches of books, records, diaries, invoices, and intimate surroundings. The proposed invasion is not minimal and highly-defined as in Terry; nor is it closely-linked to an identified special need as in National Treasury Employees Union or Skinner. See Nat’l Treasury Employees Union, 489 U.S. at 669-71, 109 S. Ct. at 1392-93, 103 L. Ed. 2d at 704-05 (urine testing of employees to avoid corruption in the revenue service); Skinner, 489 U.S. at 623-24, 109 S. Ct. at 1416-17, 103 L. Ed. 2d at 663-64 (blood, urine, and breath testing for persons in safety sensitive jobs); Terry, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 910-11 (investigatory stops). The scope of the search in Samson thus is flatly contrary to the common-sense notion that “the scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19, 88 S. Ct. at 1878, 20 L. Ed. 2d at 904 (quoting Hayden, 387 U.S. at 310, 87 S. Ct. at 1652, 18 L. Ed. 2d at 794 (Fortas, J., concurring)). The scope of search authority in Samson reminds one of the search of Coke’s premises and the seizure of his children’s poem and his will; there are no limits to the scope of the search. See White, 31 U. Pitt L. Rev. at 194 (comparing broad searches of parolees’ dwelling places to general searches condemned by Otis).

Permalink 06:51:04 am, by fourth, 293 words, 893 views   English (US)
Categories: General

CA8: RS of drugs on the person = RS armed; coffee filter peeking from pocket supported frisk

A coffee filter sticking up from defendant’s pocket during a stop justified his frisk because, in the Eighth Circuit, knowledge of drugs equals dangerousness. United States v. Crippen, 627 F.3d 1056 (8th Cir. 2010):

A suspicion on the part of police that a person is involved in a drug transaction supports a reasonable belief that the person may be armed and dangerous because weapons and violence are frequently associated with drug transactions. United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005). The district court found that because Officer Palmer remembered Crippen from the October 2008 search of Conroy's house and knew coffee filters are used as part of the methamphetamine manufacturing process, he suspected Crippen was involved in a drug transaction and thus had reasonable suspicion Crippen was armed and dangerous. Accordingly, the pat-down search and seizure of the coffee filter was valid.

Defendant had a MySpace account that was suggestive to others of his being a pedofile and his online “friends” were all young boys. A search warrant was ultimately issued for defendant’s property. The USMJ concluded that the warrant did not authorize seizure of defendant’s computer, but the USDJ disagreed and overruled. Also, inevitable discovery would apply, as would the good faith exception. United States v. Underwood, 2010 U.S. Dist. LEXIS 134092 (W.D. Ky. December 17, 2010).*

The drug dog arrived while the traffic stop was still going on within eight minutes. The stop was only “as long as necessary.” United States v. McDowell, 2010 U.S. Dist. LEXIS 134010 (D. Kan. December 16, 2010).*

Defendant could not challenge the search of a computer of a person he was communicating with by instant messaging over the internet. United States v. Haffner, 2010 U.S. Dist. LEXIS 134460 (M.D. Fla. August 31, 2010), adopted 2010 U.S. Dist. LEXIS 134453 (M.D. Fla. December 20, 2010).*

12/24/10

Permalink 06:41:12 am, by fourth, 292 words, 760 views   English (US)
Categories: General

W.D.N.Y.: Failure to list computer in search warrant precludes its seizure

Government’s failure to include computer in the search warrant precluded it from seizing and then searching it. United States v. Abdellatif, 758 F. Supp. 2d 183 (W.D. N.Y. 2010)*:

By failing to respond to defendant’s argument that the computer was outside the scope of the warrant, the government “ha[s] essentially conceded the point”. Briscoe v. City of New Haven, 2010 U.S. Dist. LEXIS 69173, 2010 WL 2794231, *5 (D.Conn. 2010).

“There is no question that computers are capable of storing immense amounts of information and often contain a great deal of private information. Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers. Such considerations commonly support the need specifically to authorize the search of computers in a search warrant.” United States v. Payton, 573 F.3d 859, 861-62 (9th Cir. 2009). See, e.g., ¶7(a-e) of the schedule attached to the search warrant in United States v. Tigano, 08-CR-281S, 2010 U.S. Dist. LEXIS 63114 (Dkt. #52 in that case), specifically authorizing the search of computers.

Since the seizure of the computer was not authorized by the warrant, the government bears the burden of proving the legality of that seizure. See United States v. Poulos, 2008 U.S. Dist. LEXIS 6185, 2008 WL 222272, *12 (D.Me. 2008), adopted, 2008 WL 619406 (D.Me. 2008) (“The government concedes that seizure of these items was not authorized by the Warrant but asserts that officers validly seized them inasmuch as they were in plain view .... The government meets its burden of proving the validity of their seizure”). The government has offered no justification for the seizure of the computer, nor has it argued that the seizure does not warrant suppression. Therefore, I recommend that any evidence derived from the seizure of the computer be suppressed.

Permalink 05:58:30 am, by fourth, 289 words, 719 views   English (US)
Categories: General

D.Ariz.: Stop was based on common factors and was unreasonable

“Agent Ramirez’s decision to stop Defendant's vehicle was based on factors too common to support a finding of reasonable suspicion of criminal activity. United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2002) (reasonable suspicion cannot rely solely on generalizations that, if accepted, cast suspicion on large segments or entire categories of the law abiding population).” Apparently, being a law abiding citizen is believed to be reasonable suspicion in Arizona. United States v. Mikels, 2010 U.S. Dist. LEXIS 133895 (D. Ariz. November 3, 2010).*

There was reasonable suspicion for defendants’ stop as drug traffickers, and a drug dog was called and alerted, and that made probable cause for a search of the vehicle. The court suggests that it was defendants’ burden to show that the search was invalid. “Although Defendant Cooper offers no substantive argument in support of his claim that the search of the Lincoln was unlawful – beyond the claim that the stop and detention were unlawful, he asserts that there was neither probable cause nor consent for the search. ... Defendant is wrong.” United States v. Parker, 2010 U.S. Dist. LEXIS 133789 (N.D. Ga. November 18, 2010).*

A male Lt. Col. in the Army was married to a female Capt. He was the subject of a child molestation investigation from being stationed in PR. In Georgia, Army investigators called in the Capt. for questioning, and she consented to a search of their home office, which should could do because she had joint access. After Army CID officers got in, they got a search warrant for child pornography in the computers and videos, which they validly found. The computers arguably were within his exclusive control, but access to them was by search warrant. United States v. Pagan-Torres, 2010 U.S. Dist. LEXIS 133832 (N.D. Ga. November 15, 2010).*

Permalink 12:55:33 am, by fourth, 403 words, 800 views   English (US)
Categories: General

N.D.Ga.: Protective sweep under Buie does not require an arrest warrant for entry if there is reason to fear a safety issue

A protective sweep does not require the officers be on the premises with an arrest warrant. Here, officers were let inside, but one person ran up the stairs and the officer gave chase. The person was rummaging in a bag in a closet with a gun in it. The entry into the bedroom was still reasonable under Buie. United States v. Cordova, 2010 U.S. Dist. LEXIS 133720 (N.D. Ga. June 23, 2010), adopted United States v. Cordova, 2010 Dist. LEXIS 133752 (N.D. Ga. December 17, 2010):

The Second Circuit also noted in Miller that the majority of other courts that have addressed this issue have held that the protective sweep doctrine set forth in Buie is also applicable to other situations in which officers are lawfully in the suspect’s home, even when the officers are not present in the home for the purpose of executing an arrest warrant. Miller, 430 F.3d at 99; see United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005) (“police who have lawfully entered a residence possess the same right to conduct a protective sweep whether an arrest warrant, a search warrant, or the existence of exigent circumstances prompts their entry.”); Leaf v. Shelnutt, 400 F.3d 1070, 1086-88 (7th Cir. 2005) (“[I]t was not necessary for the officers to have made an arrest in order for their search of the apartment to be justified; the only question is whether the search was objectively reasonable.”); United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001) (“[T]he principle enunciated in Buie with regard to officers making an arrest—that the police may conduct a limited protective sweep to ensure the safety of those officers—applies with equal force to an officer left behind to secure the premises while a warrant to search those premises is obtained.”); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993) (officers permitted to conduct protective sweep following consent entry); United States v. Patrick, 959 F.2d 991, 996-97, 294 U.S. App. D.C. 393 (D.C. Cir. 1992) (“Once the police were lawfully on the premises, they were authorized to conduct a protective sweep based on their reasonable belief that one of its inhabitants was trafficking in narcotics.”). But see United States v. Davis, 290 F.3d 1239, 1242 n.4 (10th Cir. 2002) (reading Buie narrowly to apply only in the context of an arrest); United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000) (same).

The Fifth Circuit’s decision in United States v. Gould, 364 F.3d 578 (5th Cir. 2004) (en banc) is instructive[, too].

Permalink 12:01:05 am, by fourth, 426 words, 727 views   English (US)
Categories: General

M.D.Fla.: Cab driver could remove passenger's luggage from cab on passenger's arrest on a warrant; plain view of marijuana valid

Officers had an arrest warrant for the defendant, and they were staking out his place. He got in a cab and left, and the officers waited for a traffic offense to stop the cab. [Like they needed one? Doesn’t the arrest warrant provide PC in itself? But I digress.] The cab was speeding, so the officers stopped the cab and got defendant out. The cab driver on his own removed defendant’s black bag from the cab and put it on the trunk, and the officers could see marijuana in the bag. That justified searching the bag. [The court talks of the cab driver having authority to consent to a search of the cab, but the cab driver has no apparent authority to consent to search a passenger’s luggage, so that part of the holding goes unnecessarily far. Same result, however.] United States v. Dixon, 2010 U.S. Dist. LEXIS 133489 (M.D. Fla. November 18, 2010), adopted 2010 U.S. Dist. LEXIS 133437 (M.D. Fla., Dec. 16, 2010):

Lastly, a number of reasons also justified the search of the Defendant's bag. Not only were the items in the bag in plain view (the cab driver removed the bag from the passenger compartment and placed it on the taxi's trunk), the cab driver had authority to consent to the search of the cab, and the detectives would have discovered the controlled substances in any event. See Harris, 526 F.3d at 1339 (cab driver has common authority over passenger compartment and can consent to search); United States v. Virden, 488 F.3d 1317, 1322 (11th Cir. 2007) (applying inevitable discovery doctrine). Besides, the detectives were justified in seizing and searching the bag incident to the Defendant's lawful arrest. Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1719, 173 L. Ed. 2d 485 (2009) (reiterating that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe that evidence relevant to the crime of arrest might be found inside the vehicle).

There was an arrest warrant for defendant, and his address was known. Officers went to the address, and it turned out that there might be two buildings at that address. When they announced their purpose, the door was slammed in their face, and the officers had a reasonable belief that he was inside and that was the correct address. United States v. Shaw, 2010 U.S. Dist. LEXIS 133973 (W.D. Tenn. December 17, 2010).*

Defendant’s being suspicious on the fenceline of a military installation was reasonable suspicion of criminal activity justifying a patdown. United States v. Kulkarni, 2010 U.S. Dist. LEXIS 133493 (E.D. Cal. December 2, 2010).*

12/23/10

Permalink 11:26:09 am, by fourth, 104 words, 740 views   English (US)
Categories: General

ABAJ: Feds ordered to pay $2.5M attorneys fees in warrantless wiretap case

ABAJ: Feds Must Pay Islamic Charity Lawyers and Their Counsel $2.5M in Warrantless Wiretap Case, by Martha Neil:

The chief federal district court judge in San Francisco has ordered the federal government to pay more than $2.5 million, primarily in attorney's fees, concerning its warrantless wiretap, under an executive surveillance program authorized by President George W. Bush, of two Washington, D.C., lawyers for a now-shuttered Islamic charity in Oregon.

Judge Vaughan Walker yesterday awarded $20,400 each in damages to attorneys Asim Ghafoor and Wendell Belew, and nothing to the charity, Al-Haramain Islamic Foundation, according to the New York Times (reg. req.) and the SF Appeal.

Permalink 09:43:45 am, by fourth, 328 words, 777 views   English (US)
Categories: General

CA3: Plain view moots a Gant claim

Officers had an arrest warrant for the defendant, and the search of vehicle was justified by seeing a firearm in plain view, not search incident. United States v. Patterson, 405 Fed. Appx. 602 (3d Cir. 2010) (unpublished).*

Defendant was stopped for a headlight being out, and the officer could direct the defendant out of the vehicle for safety purposes. Once out of the car, the officer could see a handgun protruding from under the floormat in plain view, and it could be seized. United States v. Dixon, 405 Fed. Appx. 19, 2010 FED App. 0764N (6th Cir. 2010) (unpublished).

Portland OR police who working a vice detail were watching a woman who made eye contact with the defendant and he stopped and she got into his car did not have reasonable suspicion to stop him. United States v. Miller, 2010 U.S. Dist. LEXIS 133002 (D. Ore. December 15, 2010)*:

This is an unfortunate situation in which experienced vice officers had an ultimately correct hunch. However, the Constitutional right of the individual to be free from unreasonable search and seizure prevails. In sum, a single female, dressed in jeans and sweater, strolling in a high vice area at 3:30 p.m. who makes eye contact with a driver, looks at traffic, and enters a parked car, all in less than sixty seconds, does not raise a reasonable suspicion that she is engaged in prostitution activity. The evidence arising out of the illegal stop must be suppressed. United States v. Colin, 314 F.3d 439, 443-46 (9th Cir. 2003).

Officers with an arrest warrant for the defendant had at least a reasonable belief or probable cause to believe that the defendant was in the premises of a third person. Since the Sixth Circuit hasn’t spoken on this issue, the court does not have to decide which applies because the Fourth Amendment was complied with under either. United States v. Gibbs, 2010 U.S. Dist. LEXIS 132942 (W.D. Tenn. December 14, 2010),* overruling in part United States v. Gibbs, 2010 U.S. Dist. LEXIS 132944 (W.D. Tenn. July 21, 2010).*

Permalink 08:53:20 am, by fourth, 243 words, 457 views   English (US)
Categories: General

N.D.Ga.: When officer asks about "anything illegal," consent after that is a general consent

Defendant consented to entry of his car to get his coat because he was cold and nodded toward his car to point it out. This request showed that he was not intimidated. He also consented to a general search of the car. United States v. Edwards, 2010 U.S. Dist. LEXIS 132690 (N.D. Ga. October 13, 2010)*:

At the same time, a defendant's lack of knowledge of what the officer is searching for does not change the effect of a "general consent." United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995) (interpreting Jimeno). The Snow Court concluded that it is self-evident that a police officer seeking general permission to search is looking for evidence of illegal activity. Id. It further noted that if the consent to search is entirely open-ended, a reasonable person would have no cause to believe that the search will be limited in some way.

There was probable cause for issuance of search warrants for defendant’s email accounts in extortion plot. United States v. Rosetter, 2010 U.S. Dist. LEXIS 132393 (D. Minn. October 1, 2010).*

Defendant’s mother had apparent authority, as far as the police were concerned, to consent to the search of a lock box because she knew where it was and had the key. The police came to the house to collect videos of sexual indecency with a child, and, informed of that, she went to the box and opened it without prompting. Valdez v. State, 336 S.W.3d 330 (Tex. App. — San Antonio 2010).*

Permalink 12:02:58 am, by fourth, 157 words, 668 views   English (US)
Categories: General

CA4: No REP in a cell phone she loaned to her boyfriend that the police seized

Plaintiff had nude pictures of herself on her cell phone, which she loaned to her boyfriend and was seized by the police when he was arrested. Several police officers viewed the pictures [can you imagine?]. She had no reasonable expectation of privacy in her cell phone from this kind of intrusion when she loaned it to her boyfriend. Casella v. Borders, 404 Fed. Appx. 800 (4th Cir. 2010) (unpublished).*

To undermine the trial court’s conclusion on credibility of witnesses on a search issue requires that the findings be “inherently implausible,” and here they aren’t. United States v. Miser, 403 Fed. Appx. 994, 2010 FED App. 0759N (6th Cir. 2010) (unpublished).*

While the renter of the hotel room rented under an alias did not have a key on him, he could always get another key from the front desk. That gave him control over the room to consent to a search. United States v. Randall, 2010 U.S. Dist. LEXIS 132385 (D. S.C. December 14, 2010).*

12/22/10

Permalink 12:18:56 am, by fourth, 588 words, 1744 views   English (US)
Categories: General

FL1: TSA's random opening of luggage to swab for explosives was reasonable, and it found child pornography

TSA random search of a suitcase at Pensacola airport for swabbing of exterior and contents for explosives resulted in a “plain view” of child pornography. Nothing was suspicious at all about defendant or his luggage. The TSA officer was permitted to look through papers rather than swab them [sounds like a search not in good faith to me]. The court distinguished two federal cases that found criminal searches by TSA unreasonable. Higerd v. State, 54 So. 3d 513 (Fla. App. 1st DCA 2010):

This is an issue of first impression; our independent research has not revealed any case directly deciding whether a purely administrative, physical search of checked luggage violates the Fourth Amendment. See United States v. Fofana, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009) (noting United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches); cf. United States v. McCarty, 672 F. Supp. 2d 1085, 1091 (D. Hawaii 2009) (examining administrative physical search of passenger’s checked luggage where suspicion was aroused by x-ray of the luggage). ...

Administrative searches in airports are an established exception. See United States v. Aukai, 497 F.3d 955, 959 (9th Cir. 2007) (“airport screening searches ... are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme’”) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). In 1980, the Florida Supreme Court held that a person attempting to board an airplane may be searched without probable cause within the security area of an airport as long as the search is reasonable and conducted solely for the purpose of discovering an immediate threat to air commerce. Shapiro v. State, 390 So. 2d 344, 350 (Fla. 1980).

Consent is not required to conduct an airport screen search, if the search is otherwise reasonable and conducted pursuant to statutory authority. McCarty, 672 F. Supp. 2d at 1096. ...

TSA’s protocol required officers to physically open a certain number of randomly selected bags, swab the inner contents, and test the swabs in one of the explosive detection machines. The TSA officer’s testimony was that she discovered several photographs while thumbing through a large file. TSA’s protocol reveals that the TSA officer had the discretion to flip through the papers found in Appellant’s bag while conducting the open bag search in lieu of swabbing every piece of paper. ...

Recently, two federal district courts determined similar administrative airport searches were unreasonable because they were not confined, in good faith, to searching for weapons or explosives. See Fofana, 620 F. Supp. 2d at 863-64; McCarty, 672 F. Supp. 2d at 1096. These opinions are distinguishable but instructive.

Unlike the officers in McCarty and Fofana, the TSA officer’s testimony in this case demonstrates her search remained confined, in good faith, to the purpose of searching for explosives or weapons. The TSA officer’s testimony was simple and unwavering: She was required to open a certain number of bags; Appellant’s bag was the next randomly selected bag; she was required to thumb through the contents of the accordion-type file folder found in Appellant’s bag, under TSA protocol; and she saw the photographs as soon as she opened the folder. She immediately stopped the search and contacted a supervisor. “The mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post facto.” United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005). Unlike the officers in Fofana and McCarty, the TSA officer’s testimony here did not hint that she was intentionally looking for evidence of criminal behavior.

Note: So, where is all the outrage about TSA frisks now?

Permalink 12:11:54 am, by fourth, 127 words, 3392 views   English (US)
Categories: General

Cal.1st: Use of night vision goggles was not a search

The use of night vision goggles by the police was not an unreasonable seizure. A metal shed near the driveway was visible from the street by anyone. People v. Lieng, 190 Cal. App. 4th 1213, 119 Cal. Rptr. 3d 200 (1st Dist. 2010).*

The officer tried to stop the defendant for missing a license plate and only one working headlight. Defendant did not stop and he made “gestures” toward the console while the vehicle was moving. Once stopped, the vehicle was subject to search for a weapon. State v. Breisch, 2010 Ohio 6113, 2010 Ohio App. LEXIS 5148 (2d Dist. December 10, 2010).*

Defendant was stopped for careless driving, and the officer put his hand in defendant’s pocket to search it, and the trial court properly suppressed it. State v. Watana, 50 So. 3d 92 (Fla. App. 4th DCA 2010).

Permalink 12:05:14 am, by fourth, 139 words, 662 views   English (US)
Categories: General

MO: Stalling traffic stop for drug dog was unreasonable

Stalling the traffic stop to get the drug dog there made the stop unreasonable. State v. Stover, 2010 Mo. App. LEXIS 1683 (December 14, 2010):

Officer Hagerty, however, did not promptly pursue his suspicions by asking for permission to search at that time, nor did he promptly summon the drug dog. Instead, Officer Hagerty continued efforts to interrogate Stover and the passenger as though he and the travelers had nothing better to do than to discuss many things unrelated to the traffic stop.

A DNA match is probable cause to arrest. Myles v. State, 54 So. 3d 509 (Fla. App. 3d DCA 2010).*

Defendant did not really challenge the officer’s testimony that she crossed the fog line three times. She said she was eating a hamburger and didn’t notice. She validly consented during the stop. State v. Malone, 56 So. 3d 336 (La. App. 2d Cir. 2010).*

12/21/10

Permalink 04:34:06 pm, by fourth, 141 words, 781 views   English (US)
Categories: General

Washington Metro police starts random bag checks

WMATA bag searches make transit less safe, not more:

This morning, the Metro Transit Police began conducting the system's first random bag checks. These inspections are couched in the language of security, but they actually make the system less safe.

Passengers boarding during the morning rush at Braddock Road and College Park faced these screenings. The Washington Post's Dr. Gridlock reported that one man's check took 8 minutes, and yet nothing threatening was found.

People have been objecting to these random bag checks on a variety of grounds. The ACLU says that they infringe on civil liberties. Dr. Gridlock disputed the argument that they are a "necessary evil," writing that "To be a necessary evil, a thing must be both necessary and evil," and that this policy is only the latter, not the former. Even Congresswoman Eleanor Holmes Norton thinks they're ineffective.

Permalink 12:53:09 am, by fourth, 607 words, 757 views   English (US)
Categories: General

W.D.Pa.: Two affidavits for warrants against same person can be read together to show PC, one for a GPS warrant

Two affidavits for search warrants against the defendant can be read together to support each other. Here, officers had probable cause to believe that defendant was a drug dealer, and they got a warrant to install a GPS on a package for him to see where it would go. When the package stopped moving, that information was used to get a search warrant for the place. United States v. Abdul-Ganui, 2010 U.S. Dist. LEXIS 131993 (W.D. Pa. December 14, 2010):

Other cases have followed these principles and permitted “probable cause to be determined from separate affidavits filed to obtain several warrants in the same criminal investigation.” State v. Smith, 836 S.W.2d 137, 140 (Tenn. Crim. App. 1992). In Smith, two separate affidavits were simultaneously presented to a magistrate judge in support of two different warrants, one warrant authorizing the search of the defendant’s residence and the other authorizing procurement of a blood sample. The court rejected the argument that the affidavit in support of the first warrant could not be used to determine whether probable cause existed for the second. It stated that “it would be hypertechnical for the [magistrate judge] not to act upon an entire picture disclosed to him in interrelated affidavits presented to him on the same day.” Id.; accord State v. Kalai, 56 Haw. 366, 537 P.2d 8, 10 (Haw. 1975) (“Where two closely related affidavits, referring to the same individual and the same criminal charge, are presented to the issuing magistrate simultaneously, he may consider both for the purpose of ascertaining the existence of probable cause.”); United States v. Fogarty, 663 F.2d 928, 929-30 (9th Cir. 1981) (A magistrate judge is not required to read an affidavit with “tunnel vision” and thus is not limited to the four corners of a single affidavit where “facts are presented simultaneously in two related affidavits seeking two warrants.”).

Similarly, these principles have been applied to scenarios where the affidavits were not presented simultaneously. In Kaiser v. Lief, the United States Court of Appeals for the Tenth Circuit held that a magistrate judge may rely on facts included in two separate affidavits presented a day apart. In upholding the search, the court recognized that while the two affidavits were not presented to the magistrate judge on the same day, “all of the information on which the magistrate relied was included in sworn documents.” 874 F.2d 732, 735 (10th Cir. 1989). In United States v. Manufacturers National Bank of Detroit, Livernois-Lyndon Streets, Safety Deposit Box # 127, Detroit, Michigan, two separate affidavits were presented to a magistrate judge within a day of each other by an officer seeking warrants to search the defendant’s residence and security deposit box. The Sixth Circuit held that the issuing magistrate judge was entitled to consider both affidavits in reaching a probable cause finding, and opined that it “would needlessly restrict the discretion of a magistrate to hold that two affidavits filed so close in time and referring to a single criminal investigation which was still continuing could not be considered together in determining whether to authorize a further search.” 536 F.2d 699, 702 (6th Cir. 1976); accord United States v. Markis, 352 F.2d 860, 864 (2d Cir. 1965) (upholding magistrate judge’s probable cause determination based on affidavits relating to the same person and the same offense presented four days apart), vacated on other grounds, Markis v. United States, 387 U.S. 425, 87 S. Ct. 1709, 18 L. Ed. 2d 864 (1967); Cf. Commonwealth of Massachusetts v. Saleh, 396 Mass. 406, 486 N.E.2d 706, 709 (Mass. 1985) (observing in upholding probable cause determination based on two separate affidavits that “[e]ach affidavit contributes to the total picture from which the magistrate determines probable cause.”).

So, how hard is it to get a search warrant to install a GPS? Not that hard.

Permalink 12:36:52 am, by fourth, 351 words, 668 views   English (US)
Categories: General

OH2: Trial court erred in finding GFE applied without considering PC first; remanded

The officer had a search warrant which he executed but also obtained consent to search. The trial court considered only consent and the good faith exception. This was error because probable cause had to be determined before moving to the good faith exception. State v. Mendell, 2010 Ohio 6107, 191 Ohio App. 3d 325, 945 N.E.2d 1130 (2d Dist. 2010):

[*P17] In overruling the motion to suppress, the trial court addressed two issues that Mendell raised in connection with his motion: the timing of the warrant (whether it was executed before it was filed); and the voluntariness of Mendell's written consent to search, and resolved both of them in the State's favor. But the trial court did not address two other issues that Mendell and the State raised: whether the affidavit in support of the search warrant made out probable cause for the issuance of the warrant; and, if not, whether the police acted in good faith in executing the warrant, under United States v. Leon (1984), 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677. The issue of the good-faith exception is dependent not only upon the officers' objective good faith, but also upon their subjective good faith, which, in turn, is dependent upon the trial court's findings of fact. Although the trial court made findings of fact, it did not make findings of fact specific to these issues. Therefore, we reverse the judgment of the trial court, and remand this cause for findings on the probable-cause and good-faith issues. If the trial court shall find in favor of the State on either or both of these issues, it may re-enter a judgment of conviction based upon Mendell's no-contest plea, and impose an appropriate sentence.

[Note: This holding is what I've been saying for years. PC first, GFE second, always, unlike a recent case from the Eighth Circuit posted here. Leon did not say that courts could avoid deciding probable cause, but it implied it. Unless the courts want to default their jobs and fail to perform the judicial function, they have to decide probable cause so the police will know what is probable cause and what isn't.]

Permalink 12:36:48 am, by fourth, 159 words, 676 views   English (US)
Categories: General

OH2: Arrest for unlicensed pit bull found at a knock and talk did not justify warrantless entry

Police got a tip through a school counselor that a seven year old reported marijuana where he lived. They came for a knock and talk, and arrested the defendant for an uninsured pit bull. That did not justify a warrentless entry into the house. State v. McGuire, 2010 Ohio 6105, 2010 Ohio App. LEXIS 5145 (2d Dist. December 10, 2010).*

The fact that the officer did not tell the search warrant’s issuing magistrate that the CI was paid was not material under Franks, considering the detail. State v. Williams, 53 So. 3d 669 (4th Cir. 2010).*

Odd travel plans with a rented car going 1000 miles each way in 48 hours was enough to ask questions, resulting in conflicting stories about travel plans. Defendant’s mother was his passenger and he said she rode with him, but she said he drove to pick her up. He was excessively nervous. That was reasonable suspicion for a longer detention. United States v. Shelby, 2010 U.S. Dist. LEXIS 132064 (E.D. Tex. November 23, 2010).*

Permalink 12:03:29 am, by fourth, 157 words, 760 views   English (US)
Categories: General

S.D.Ga.: Flight after traffic stop was probable cause

Defendant was stopped for following too close on an interstate highway, and, as the officer walked up to the car, defendant drove off and fled on foot when the vehicle was stopped. This was probable cause and exigent circumstances for a search of the car. Alternatively, the abandonment would have led to an inventory. United States v. Wright, 2010 U.S. Dist. LEXIS 131554 (S.D. Ga. November 5, 2010).*

The Arkansas Motor Carrier Act provides sufficient protection to be a warrant substitute. United States v. Ruiz, 569 F.3d 355, 357 (8th Cir. 2009). The inspection of defendant’s truck would have been justified, and defendant consented to a more detailed search anyway. United States v. Harris, 2010 U.S. Dist. LEXIS 131209 (E.D. Ark. November 30, 2010).*

Defendant’s common law wife had apparent authority to consent to a search. She was also advised in English and Spanish of her right to refuse consent. United States v. Huerta-Rodriguez, 2010 U.S. Dist. LEXIS 131603 (D. N.M. October 20, 2010).*

12/20/10

Permalink 03:13:35 pm, by fourth, 161 words, 541 views   English (US)
Categories: General

Joe McCarthy lives in SnapScout, seeking to create a nation of snitches

SnapScout Keeps America Safe

Want to earn tons of cool badges and prizes while competing with you [sic] friends to see who can be the best American? Download the SnapScouts app for your Android phone (iPhone app coming soon) and get started patrolling your neighborhood.

It's up to you to keep America safe! If you see something suspicious, Snap it! If you see someone who doesn't belong, Snap it! Not sure if someone or something is suspicious? Snap it anyway!

Play with your friends and family to see who can get the best prizes. Join the SnapScouts today!

SnapScout Features

* Colorful interface and sounds makes reporting a potential crime fun and easy!
* Submit reports anonymously to stay safe and secure!
* Help law enforcement collect evidence in real-time!
* Collect a variety of awards and badges to compare with friends!
* Makes civic duty and community fun!
* Coming soon: Multi-crime tagging to catch more crimes at once!

Update: I think this may be satire.

Permalink 09:56:27 am, by fourth, 168 words, 989 views   English (US)
Categories: General

New law review article: "The Fourth Amendment and the Brave New World of Online Social Networking"

The Fourth Amendment and the Brave New World of Online Social Networking by Nathan Petrashek, 93 Marq. L. Rev. 1495 (2010):

No phenomenon is more demonstrative of the brave new technological world than online social networking. Each day, millions of Americans log on to social networking web sites, whose astonishingly rapid user growth has turned many into multi-billion-dollar marketing machines. But wholly aside from their business impact, these web services perform important social functions by allowing users to meet or remain in touch with others, share ideas, start organizations, and generally contribute to a vibrant and open society.

Left unstated by Justice Thomas is his notion of how the thorny legal issues surrounding this new communicative forum should be resolved. Existing Fourth Amendment doctrine is ill-equipped to handle the convergence of the public and the private; generally, one loses all privacy expectations in what is shared with the world. Though this tension between constitutional doctrine and social practice has yet to play out in the courts, it may soon do so.

Permalink 07:33:47 am, by fourth, 436 words, 704 views   English (US)
Categories: General

N.D.N.Y.: Tribal officer designated for border stops needed advance approval of stop, which here was lacking

Defendant was on an Indian reservation in Franklin County NY that was partly in New York and Quebec. He was observed crossing the border at an unmanned border crossing by a tribal officer and then promptly return. The tribal officer was designated to make border stops by CBP, but he needed advance telephone authority which he lacked here. The stop was invalid. United States v. Wilson, 754 F. Supp. 2d 450 (N.D. N.Y. 2010). The conclusion:

Sgt. Rourke and Inv. Barnes' stop of Wilson's vehicle was outside the legal boundary of the St. Regis Mohawk Reservation and thus they lacked authority to conduct the stop as St. Regis Mohawk tribal police officers. Although Sgt. Rourke possessed delegated Title 19 authority to act as a customs officer, he failed to notify the ICE agent in charge before stopping defendant's vehicle as required by the Designation Agreement. Because he did not telephone the agent in charge and obtain authorization prior to performing his Title 19 duties, he was not acting in his Title 19 capacity when he and Inv. Barnes seized defendant's vehicle near the intersection of Route 37 and Route 37C.

Likewise, Sgt. Rourke and Inv. Barnes cannot rely on New York Indian Law Section 114(8) to validate the stop of Wilson's vehicle off the reservation. Their pursuit did not commence on the reservation because they did not observe Wilson's vehicle until it was at Truck Stop #9, located off the reservation. Nor did they have probable cause to arrest Wilson within the boundary of the St. Regis territory based solely on the radio traffic reports and their speculation that he was not going to report to a port of entry as required by 19 U.S.C. § 1433(b).

While Wilson's exit from and reentry to the United States within a short time frame coupled with the officers' knowledge of drug trafficking behavior in the area may have been enough to establish reasonable suspicion to justify a Terry stop, the fact remains that as SRMPD officers, Sgt. Rourke and Inv. Barnes did not have authority to conduct a Terry stop outside of the boundary of the St. Regis Mohawk Reservation. Because they were acting in their official capacities as on duty SRMPD officers, the stop cannot be justified as a citizen's arrest.

Lastly, simply because Agent Chamberlain was allegedly planning to stop the vehicle and had the authority to do so as a USBP Agent does not mean that the discovery of the marijuana in the trunk was inevitable. The Government has failed to establish its inevitable discovery by a preponderance of the evidence and thus this exception will not save the otherwise unlawful seizure.

Permalink 07:14:21 am, by fourth, 279 words, 689 views   English (US)
Categories: General

N.D.Ill.: Forfeiture claimant's incredible story about ownership justified not believing him on consent to search, either

Defendant’s incredible story during these forfeiture proceedings that he inherited the money from his mother which was not raised until well into the proceedings justified the court not believing his version that the search was without his consent in the first place. United States v. Funds in the Amount of $40,000, 2010 U.S. Dist. LEXIS 131582 (N.D. Ill. December 13, 2010).*

Officers applied for a search warrant for a drug house with ongoing sales. While waiting, they decided they could do a probation search and entered. Because there were ongoing drug sales on the property, they were justified in doing frisks of the people inside because of the number alone. This was not a one on one encounter on the street. State v. Crooks, 150 Idaho 117, 244 P.3d 261 (App. 2010).*

An officer passed a vehicle with a headlight out and he turned around and pulled it over. When stopped, there were three vehicles together that stopped with the officer in the middle. The officer walked back to another vehicle to tell them what he was doing, and he smelled marijuana in the vehicle. The person in that vehicle would not feel free to leave when the officer came back to talk to him, so that person’s encounter was unreasonable when the officer told him to stay put. State v. Ray, 2010 Ida. App. LEXIS 101 (December 10, 2010)* [Note: I think that the officer had a right to go back to the vehicle that stopped behind him for his own safety to make sure this was not an ambush coming. Here, telling that driver to stay was the seizure. He should have just told them to take off and leave him alone to do his job.]

Permalink 06:57:40 am, by fourth, 282 words, 711 views   English (US)
Categories: General

MD: A Moylan primer on strip search

Defendant’s arrest for drugs on the street was justification for his strip search at the jail. Directing him to take off his pants and then seeing drugs fall out was not unreasonable. This case is a detailed review of the law of strip search. State v. Harding, 196 Md. App. 384, 9 A.3d 547 (2010):

With yet no direct guidance from the Supreme Court, a nation-wide debate (or series of more or less related debates) has been raging over the extent to which the search of an individual for evidence may, in its intensity, go beyond the limits of the traditional search incident to lawful arrest and still be deemed reasonable within the contemplation of the Fourth Amendment. That debate, thus far, has produced far more heat than light. The case law and the academic commentary have been growing so prolifically that they are producing a chaotic sprawl. An effort has to be made to organize this growing mass of material into more manageable and comprehensible sub-units. Part of our goal in this opinion will be that of reducing the doctrinal clutter.

Our special concern on this appeal will be with the precise justification required to expand a routine search incident into what may be characterized as a "strip search." The law has been in a quandary about how to understand, and to explain, the relationship between the strip search and the search incident. The heart of the problem is that the strip search grows out of the search incident -- but not automatically. In getting a handle on that troubled relationship, the key concepts will be 1) that a search incident does not demand particularization but 2) that a strip search (or anything more invasive) does.

12/19/10

Permalink 04:12:09 pm, by fourth, 14 words, 697 views   English (US)
Categories: General

Pardoning "Billy the Kid"?

See the Billy the Kid pardon site on the New Mexico state government website.

12/18/10

Permalink 12:54:16 pm, by fourth, 322 words, 644 views   English (US)
Categories: General

CA8: Officer's questions before consent essentially defined scope of consent

Probable cause was found: “The magistrate judge identified several ‘suspicious circumstances’ giving the troopers probable cause to believe drug contraband would be found in the minivan: (1) Braiske’s signs of nervousness, including shaking hands, labored breathing, a visible pulse in his neck, and the development of red blotches on his face; (2) Mayo’s extreme nervousness, including heavy breathing, sweating, a visible pulse in his neck, and avoidance of eye contact; (3) Braiske and Mayo’s contradictory statements about their travel history; (4) Braiske’s significant criminal history of drug related offenses; and (5) trooper Andrews’s discovery of two bindles consistent with drug packaging in plain view. The district court agreed and concluded that ‘the items recovered during the search are admissible under the automobile exception.’” This is supported by the evidence. United States v. Mayo, 627 F.3d 709 (8th Cir. 2010):

In United States v. Ferrer-Montoya, we held that when a defendant gives his consent to search a vehicle, officers may “search containers within that car which might bear drugs, probe underneath the vehicle, and open compartments that appear to be false, or puncture such compartments in a minimally intrusive manner.” 483 F.3d 565, 568 (8th Cir. 2007) (per curiam) (citations omitted). Though Braiske initially only consented to a “real quick” search of the minivan, he then clarified his answer by telling Andrews that, “yes,” he could “go ahead” and search the minivan. As we held in Ferrer-Montoya, we conclude that a “typical reasonable person” would have understood Andrews to be asking to search the entire minivan for drugs, including behind the door’s interior panels, and that Braiske’s answer authorized such a search. Because Andrews and his colleagues opened those panels in a minimally intrusive manner and because Braiske at no time objected or attempted to withdraw his consent, we conclude that the district court did not clearly err in finding that the officers’ search of the minivan did not exceed the scope of Braiske’s consent.

Permalink 11:47:00 am, by fourth, 144 words, 1059 views   English (US)
Categories: General

OH8: Defendant still had REP in his boarded up house when entered by police after nuisance injunction had expired

Defendant’s house was the subject of a drug nuisance injunction and ordered boarded up. By the time the injunction expired, he was occupying again, and the police entered without a warrant, even though it was still boarded up. He had an expectation of privacy anyway. The police never checked to find out that the injunction had expired. State v. Harris, 2010 Ohio 6019, 2010 Ohio App. LEXIS 5063 (8th Dist. December 9, 2010).

Defendant was parked in a high crime area after midnight, standing outside his car with the door open. When the officer called out to him, he got in the car and left. The officer had reasonable suspicion for a stop. State v. Rowe, 2010 Ohio 6030, 2010 Ohio App. LEXIS 5069 (8th Dist. December 9, 2010).*

The four corners of the affidavit shows probable cause for issuance of the search warrant. United States v. Nguyen, 2010 U.S. Dist. LEXIS 130626 (D. Minn. October 13, 2010).*

Permalink 11:14:26 am, by fourth, 279 words, 730 views   English (US)
Categories: General

OH8: Dispatch report of stolen car supported stop in good faith, and, under Herring, the evidence should not be excluded

Defendant was stopped because the car came back stolen from dispatch, but it wasn’t stolen. Under Herring, the stop was in good faith, and there would be no deterrence, so the exclusionary rule would not be applied. State v. Geiter, 2010 Ohio 6017, 190 Ohio App. 3d 541, 942 N.E.2d 1161 (8th Dist. 2010)*:

[*P42] “At its core, the good faith exception recognizes that the purpose of the exclusionary rule, to deter unlawful police conduct, cannot be furthered by excluding evidence seized by an officer who had reasonable grounds to believe the search warrant was properly issued. See Leon at 919, 923. Thus, ‘evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may be properly charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ Herrings [sic], 129 S.Ct. at 701; Leon, 468 U.S. at 919.” (Emphasis added.)

[*P43] For purposes of this case, the word “stop” may be substituted for the word “search” in the foregoing opinions. In applying the relevant analysis, therefore, the trial court properly focused on Nan’s objective reliance on the information conveyed to him via police dispatch. Nan had no reason to question the reliability of the “local system’s” information, particularly to justify a minimally intrusive traffic stop. State v. Commins, Clinton App. Nos. CA2009-06-004 and 005, 2009 Ohio 6415; cf., State v. Jacob, supra.

[*P44] Applying the exclusionary rule under these circumstances would not deter “unlawful police conduct,” since Nan himself could not know his conduct in stopping a car to investigate possible criminal activity would subsequently prove to lack a foundation. In fact, Terry v. Ohio (1968), 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889, precisely permits such an action.

Permalink 10:28:28 am, by fourth, 365 words, 695 views   English (US)
Categories: General

OH8: Ordinary citizen report is not treated the same as a CI

An unidentified citizen’s report of a man with a gun in his waistband apparently casing a gas station to rob it was sufficient to stop and frisk him. The officer went to the gas station within a minute of the report and found the defendant who he had assume the position, finding the gun. The stop and frisk was reasonable. A citizen complaint is different than an anonymous report. State v. Cisternino, 2010 Ohio 6027, 2010 Ohio App. LEXIS 5056 (8th Dist. December 9, 2010)*:

[*P15] We disagree with Cisternino, and instead find, as did the Weisner court, that an ordinary citizen informant who does not happen to give a name should not be treated like an anonymous informant. See State v. Jordan, Montgomery App. No. 18600, 2001 Ohio 1630, citing Weisner. The Second District Court of Appeals held that “[i]nformation from an ordinary citizen who has personally observed what appears to be criminal conduct carries with it indicia of reliability and is presumed to be reliable.” State v. Carstensen (Dec. 18, 1991), Miami App. No. 91-CA-13, 1991 Ohio App. LEXIS 6116, unreported. Similarly, the First District Court of Appeals held that an unidentified informant who stops an officer to provide information about a crime is not anonymous: “There is nothing even remotely anonymous, clandestine, or surreptitious about a citizen stopping a police officer on the street to report criminal activity.” State v. Ramey (1998), 129 Ohio App.3d 409, 416, 717 N.E.2d 1153.

[*P16] In the case before us, the citizen who flagged down Officer Rock to report what he suspected was criminal conduct was not “anonymous” under the three classifications of informants. There is nothing in the record to suggest that the citizen would have refused to give his name if asked or that he attempted to conceal his identity in any way. Whether an informant is “anonymous” depends on whether the informant himself took steps to maintain anonymity, not on whether the police had time to get his name. See Ramey, supra.

The defendant was speeding. The officer called in the license plate and found that the owner had a suspended license. The driver met the description of the owner. The stop was justified by the speeding. State v. Jenkins, 2010 Ohio 5943, 2010 Ohio App. LEXIS 4999 (3d Dist. December 6, 2010).*

12/17/10

Permalink 12:10:30 am, by fourth, 50 words, 509 views   English (US)
Categories: General

Trial going to jury today

After two weeks of trial, my case goes to the jury today, and I'll get caught up this weekend.

I hate being days behind, because now it will take two full days to get caught up. At least I have something to do through the Christmas break of the courts.

12/16/10

Permalink 09:23:22 pm, by fourth, 68 words, 427 views   English (US)
Categories: General

SCOTUS ready for the technology revolutuion?

The Supreme Court and technology--are the Justices ready for 21st century cases? More and more technology cases are heading to the Supreme Court. Do the Justices understand technology well enough to render accurate decisions in highly technical cases? by Ryan Fraas on ITWorld.com.

No. And we are a decade into the Twenty-First Century. Hopefully, the law clerks are, but they don't ask the questions at oral argument.

Permalink 09:18:22 pm, by fourth, 307 words, 590 views   English (US)
Categories: General

New law review article: "The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning"

The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning by Andrew E. Taslitz of Howard University School of Law, Texas Tech Law Review, Vol. 43, 2010. The Abstract on SSRN:

Much debate about the role of history in constitutional interpretation centers on the difference between originalism and non-originalism. Yet most writers agree that history must play some role. If it does, for what should we be looking when we mine history? Originalists say, "for the original intent of the Framers or the original meaning of the Founding moment" or some variation. Non-originalists are less clear. Starting from a non-originalist perspective, this article argues that one important thing to mine history for is lessons about what promotes individuals' and the People's happiness. The article considers the implications for this stance for Fourth Amendment interpretation. The article first defines a "People" by its shared commitments, finding the American People thus to be defined in part by the "pursuit of happiness" as stated in the Declaration of Independence. The piece argues that the Declaration has an appropriate role to play in interpreting the Constitution. Next, the piece reviews relevant historical meanings of "happiness" and its pursuit and finds them consistent with modern social science on these topics. Specifically, the article finds that happiness's pursuit for individuals and the American People partly requires that citizens, groups, and the People as a whole have an effective voice in government and that the state also work to promote certain types of equality (though not income equality). The article argues that these happiness-promoting functions are particularly central to history's role in interpreting the Fourth Amendment, concluding with three examples focusing on racial and viewpoint minorities and their interactions with the police. The article was written as part of a symposium panel on the role of history in understanding the Fourth Amendment's meaning.

12/15/10

Permalink 12:02:33 am, by fourth, 652 words, 676 views   English (US)
Categories: General

CA6: E-mail has Fourth Amendment protection

In the Smilin' Bob Enzyte case from the Sixth Circuit, United States v. Washak, 631 F.3d 266 (6th Cir. 2010), the Court held that emails have Fourth Amendment protection. First, a summary of the holding:

(1) Warshak enjoyed a reasonable expectation of privacy in his emails vis-a-vis NuVox, his Internet Service Provider. See Katz v. United States, 389 U.S. 347 (1967). Thus, government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause. However, because the agents relied in good faith on provisions of the Stored Communications Act, the exclusionary rule does not apply in this instance. See Illinois v. Krull, 480 U.S. 340 (1987).

From the opinion:

Turning first to the subjective component of the test, we find that Warshak plainly manifested an expectation that his emails would be shielded from outside scrutiny. As he notes in his brief, his “entire business and personal life was contained within the ... emails seized.” Appellant’s Br. at 39-40. Given the often sensitive and sometimes damning substance of his emails,15 we think it highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty laundry in plain view. See, e.g., United States v. Maxwell, 45 M.J. 406, 417 (C.A.A.F. 1996) (“[T]he tenor and content of e-mail conversations between appellant and his correspondent, ‘Launchboy,’ reveal a[n] ... expectation that the conversations were private.”). Therefore, we conclude that Warshak had a subjective expectation of privacy in the contents of his emails.

The next question is whether society is prepared to recognize that expectation as reasonable. See Smith, 442 U.S. at 740. This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication. Cf. Katz, 389 U.S. at 352 (suggesting that the Constitution must be read to account for “the vital role that the public telephone has come to play in private communication”). Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment.

In confronting this question, we take note of two bedrock principles. First, the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration. See ibid.; United States v. U. S. Dist. Court, 407 U.S. 297, 313 (1972) (“[T]he broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.”). Second, the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish. See Kyllo v. United States, 533 U.S. 27, 34 (2001) (noting that evolving technology must not be permitted to “erode the privacy guaranteed by the Fourth Amendment”); see also Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1007 (2010) (arguing that “the differences between the facts of physical space and the facts of the Internet require courts to identify new Fourth Amendment distinctions to maintain the function of Fourth Amendment rules in an online environment”).

See Electronic Frontier Foundation, ZDNet.

12/14/10

Permalink 06:12:32 am, by fourth, 390 words, 640 views   English (US)
Categories: General

SD: Objectively unreasonable mistakes of law do not support arrests

Noting a conflict in the cases, with the majority of cases saying a mistake of law is not objective good faith, South Dakota decides that objectively unreasonable mistakes of law do not support arrests. State v. Wright, 2010 SD 91, 791 N.W.2d 791 (December 8, 2010):

[*P21] This case is thus more analogous to Webb and Washington than Martin. Trooper Biehl may have believed in good faith that Wright violated SDCL 32-17-7, “[b]ut his subjective good faith is not sufficient to justify the stop[.]” Martin, 411 F.3d at 1001. “[O]fficers have an obligation to understand the laws that they are entrusted with enforcing, at least to a level that is objectively reasonable.” Id. “Any mistake of law that results in a search or seizure, therefore, must be objectively reasonable to avoid running afoul of the Fourth Amendment.” Id. Trooper Biehl acted upon a mistake concerning a clear and unambiguous statute. Given the clear and unambiguous language of SDCL 32-17-7, Trooper Biehl’s mistake of law was not objectively reasonable. Consequently, the trial court erred by denying Wright’s motion to suppress the evidence discovered during the stop and subsequent search of his vehicle.

The fact the officer arrested defendant with probable cause but contrary to a Sheriff’s directive or in violation of statute was not a Fourth Amendment issue. State v. Talbot, 2010 UT App 352, 246 P.3d 112, 671 Utah Adv. Rep. 12 (2010):

[*P10] For purposes of this appeal, we accept Talbot’s assertion that the Deputy’s initial encounter with Talbot was an arrest rather than a detention. Talbot makes no claim that the Deputy’s inherent authority as a serving peace officer to arrest malefactors was constrained by anything other than the Sheriff’s instructions and constitutional boundaries. Applying the reasoning of Harker, we conclude that so long as Talbot’s arrest was justified by probable cause, the fact that the Deputy may have exceeded the instructions given to him by the Sheriff has no bearing on whether Talbot’s arrest was “lawful” under the Constitution. If an arrest in violation of a statutory restriction does not itself raise constitutional issues, then, a fortiori, an arrest that exceeds a superior’s immediate directive in a particular circumstance does not do so. Therefore, the pivotal question in determining whether Talbot’s arrest was constitutional is whether the arrest was supported by probable cause.

Permalink 12:01:40 am, by fourth, 164 words, 584 views   English (US)
Categories: General

Article: "The SWAT Team Would Like to See Your Alcohol Permit / How police use regulatory inspections to conduct warrantless searches"

The SWAT Team Would Like to See Your Alcohol Permit / How police use regulatory inspections to conduct warrantless searches by Rodney Balko.

In August a team of heavily armed Orange County, Florida, sheriff’s deputies raided several black- and Hispanic-owned barbershops in the Orlando area. There were more raids in September and October. According to the Orlando Sentinel, barbers and customers were held at gunpoint, some in handcuffs, while police turned the shops upside down. A total of nine shops were raided, and 37 people were arrested.

By all appearances, these raids were drug sweeps. Shop owners told the Sentinel police asked where they were hiding illegal drugs and weapons. But in the end, 34 of the 37 arrests were for "barbering without a licence," a misdemeanor for which only three people have ever served jail time in Florida. Two arrests were for misdemeanor marijuana possession. Just one person was arrested on felony drug and weapon charges.

See this posting from 2009, on SWAT teams executing administrative warrants.

12/13/10

Permalink 10:10:44 pm, by fourth, 6 words, 452 views   English (US)
Categories: General

Still in trial

I probably will post something tomorrow.

Permalink 07:46:53 am, by fourth, 262 words, 447 views   English (US)
Categories: General

N.D.Iowa: There is no Fourth Amendment requirement for actual recording of PC showing

There is no Fourth Amendment requirement that the statement from the officer in support of a search warrant be actually recorded. Rule 41(d)(2) requires a court reporter or “suitable recording device,” but the Fourth Amendment does mention how. And, this was a state court warrant. Here, the officers testified consistently concerning what was given the issuing judge. Also, the record showed who the source of information was and the issuing magistrate could credit it. There was also good faith reliance on the warrant by the officers, and it was not so “facially deficient” that it could not be relied upon. United States v. Patten, 2010 U.S. Dist. LEXIS 130730 (N.D. Iowa December 9, 2010).* [Query: How was recording done in 1789? Does common availability of recording by affidavit or actual recording change this? Was there a court reporter available at that time?]

The video of the stop showed that defendant’s consent was valid, and that he was freely moving around the scene of the stop. The officers were not required to tell the defendant he was free to leave, but he expected to get a ride with the tow truck driver and leave the scene. United States v. Foerster, 2010 U.S. Dist. LEXIS 130623 (D. Vt. December 9, 2010).*

“Even without considering the display of religious and patriotic symbols, Gonzalez’s prior drug arrest, excessive nervousness, and the fact that he was traveling on a known drug corridor, provided [Officer] Dupree with reasonable suspicion to extend the search.” The video of the stop was credited. United States v. Gonzalez-Hernandez, 2010 U.S. Dist. LEXIS 130558 (W.D. La. November 23, 2010).*

Permalink 07:27:29 am, by fourth, 342 words, 492 views   English (US)
Categories: General

IN: Officer not obligated to give a parking ticket before defendant drove off; stop was reasonable

The officer here saw the defendant parking in a handicapped spot without a sticker, and then drove off. That justified the stop, and defendant was driving with his DL forfeited for life, and that's a felony. Haynes v. State, 937 N.E.2d 1248 (Ind. App. 2010).*

Different recollections of the police officers as to “the time and place that consent” did not go to the voluntariness and was insufficient to find the trial court’s finding erroneous. Clemmons v. State, 2010 Ark. App. 810, 2010 Ark. App. LEXIS 856 (December 8, 2010).*

Police bike officers saw a middle aged couple in a park talking, and they seemed unusual for the park because of their age. So, the officers came up and asked for ID but said that they were not in any trouble. It turned out the man was under a restraining order to stay away from the woman, and he was arrested for it. One officer asked the woman in an after thought whether she had anything in her purse that was illegal, and she said no, and then consented to a search of her purse. A reasonable person would not have concluded that she was seized at the time she consented. State v. Ashbaugh, 349 Ore. 297, 244 P.3d 360 (),* revg State v. Ashbaugh, 225 Ore. App. 16, 200 P.3d 149 (2008):

Considering the totality of the circumstances, we conclude that [Officer] Schaer’s actions in asking defendant the questions that he did under the circumstances that existed did not “intentionally and significantly” restrict or interfere with her liberty. We further conclude that an objectively reasonable person in defendant’s circumstances would not believe that Schaer had done so. Accordingly, we reject defendant’s contention that, in light of the surrounding circumstances, Schaer’s questions about the contents of her purse and his request for consent to search the purse amounted to a seizure for purposes of Article I, section 9, of the Oregon Constitution. It follows that, whatever connection there might be between those questions and defendant’s consent to the search of her purse, the consent was not the product of an unlawful seizure.

Permalink 07:01:23 am, by fourth, 224 words, 473 views   English (US)
Categories: General

E.D.N.C.: "Hastily included" reference to CI was negligent and did not violate Franks

Defendant fails in his Franks burden where the court can conclude that the part of the affidavit that offends him was “hastily included” in the affidavit and was not intentional or even reckless. United States v. Nedd, 2010 U.S. Dist. LEXIS 130618 (E.D. N.C. December 9, 2010)*:

On this prong, Nedd fails to carry his burden. Other than pointing to Officer Monroe's mistaken inclusion of a reference to a “confidential informant” Nedd puts forth no evidence tending to establish that the officer's reference was anything other than a hastily included mistake. Nothing in the record supports a finding that Monroe acted intentionally or even recklessly in including the reference to the confidential informant.

An officer heard a radio report of a robbery, and he stopped a car which he thought could have been involved in the robbery for a broken taillight. There were several in the car, and he ordered them all out of the car so he could watch them, and they were nervous, had inconsistent stories, and had bulging pockets. The stop and patdowns were reasonable, as was the detention. State v. Cooper, 55 So. 3d 873 (La. App. 2d Cir. 2010).*

The state showed that the defendant’s consent to a blood draw at the hospital after an accident was voluntary, so the blood test results were properly admitted. Irby v. State, 49 So. 3d 94 (Miss. 2010).*

12/12/10

Permalink 05:55:03 pm, by fourth, 539 words, 1177 views   English (US)
Categories: General

FL: State statute requries exclusionary rule for knock-and-announce violation, declining to follow Hudson

Florida holds that state law requires exclusion of evidence obtained in violation of the knock-and-announce requirement. The court is not obligated to follow Hudson under the Fourth Amendment. State v. Cable, 51 So. 3d 434 (Fla. 2010), aff'g Cable v. State, 18 So. 3d 37 (Fla. 2d DCA 2009):

We conclude that Hudson does not control the question of whether the exclusionary rule applies to statutory knock-and-announce violations in Florida because we deem the distinction between common law remedies and constitutional remedies stressed in Cable a meaningful one. As explained by the Second District in Cable:

The issue in the instant case, however, is not—as it was in Hudson-—whether the evidence is subject to suppression under the Fourth Amendment. Instead, the issue is whether suppression of the evidence is a remedy that must be applied for the violation of the statutory knock-and-announce provision. The Florida case law recognizes the common law and constitutional background for the knock-and-announce statute. See Benefield, 160 So. 2d at 710 (stating that section 901.19 “appears to represent a codification of the English common law which recognized the fundamental sanctity of one’s home”); State v. Loeffler, 410 So. 2d 589, 593 (Fla. 2d DCA 1982) (stating that the purpose of the knock-and-announce statute “parallels that of the constitutional guarantees against search and seizure”). But the case law does not support the conclusion that the statute has no force independent of the requirements of the Fourth Amendment. Under the Florida case law, it is by no means clear that the exclusionary rule has been applied to violations of the knock-and-announce statute only because Fourth Amendment knock-and-announce violations were subject to the exclusionary rule. Indeed, Benefield applied the exclusionary rule for violations of the knock-and-announce statute long before the United States Supreme Court decided in Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), that the common law knock-and-announce rule was also a “‘command of the Fourth Amendment.’” Id. at 931 (quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)).

Cable, 18 So. 3d at 39.

Under Hudson, it is clear that the exclusionary rule does not apply to Fourth Amendment knock-and-announce violations. However, Hudson is not automatically dispositive of the question of whether the exclusionary rule may be applied for violations of Florida’s knock-and-announce statute because, as explained in State v. Slaney, 653 So. 2d 422, 425 (Fla. 3d DCA 1995):

[T]he states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967) (state constitutional provision on search and seizure); Sibron v. New York, 392 U.S. 40, 61, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) (state statute). In Florida, these higher standards may not, as a matter of state law, be imposed under the state constitutional guarantee against unreasonable searches and seizures, Art. I, § 12, Fla. Const. (1982 amendments); Bernie v. State, 524 So. 2d 988 (Fla. 1988), but may be imposed by other provisions of Florida law, including a state statute.

(Emphasis added.) As a matter of state law, a state may provide a remedy for violations of state knock-and-announce statutes, and nothing in Hudson prohibits it from doing so. Benefield was based on state law grounds and not the Fourth Amendment.

Also, the court would not retreat from Benefield.

Permalink 05:31:29 pm, by fourth, 221 words, 423 views   English (US)
Categories: General

D.Alaska: Valid inventory can create PC for further search

Defendant’s arrest for driving 99 mph captured on video and being lethargic when detained. He was arrested for reckless driving and driving on a revoked license. The impoundment was conducted under Alaska State Trooper regulations and was valid. The finding of a gun gave probable cause for further search of the vehicle beyond mere inventory. United States v. Greenwood, 2010 U.S. Dist. LEXIS 129867 (D. Alaska December 7, 2010).*

Defense counsel was not ineffective for not predicting Randolph, if it even applied. The court could not tell from the motion to suppress and the supporting papers whether defendant was present or not at the time of the search to object to it. His wife consented, and “Defendant's primary strategy at trial was to show that he was set up by his wife.” United States v. Blakley, 2010 U.S. Dist. LEXIS 130132 (E.D. Ky. November 8, 2010).*

Officers here collectively knew enough to make probable cause under the “collective knowledge” doctrine. And, the search of defendant’s car here was justified by the automobile exception. United States v. Nicksion, 628 F.3d 368 (7th Cir. 2010).*

Defendant consented to first a patdown during the traffic stop and then a minute later to a search of the vehicle, in writing, after a drug dog alerted to the vehicle. This was all on video. State v. Lopez, 2010 Tenn. Crim. App. LEXIS 1029 (December 6, 2010).*

Permalink 04:19:42 pm, by fourth, 280 words, 457 views   English (US)
Categories: General

D.Md.: The court finds not credible that officers could see the crack in defendant's windshield for his stop

“The officers activated their lights and sirens and pulled the Crown Victoria over for a purported traffic stop.” Defendant made furtive movements. The court does not find at all credible the officer’s testimony that he could see the crack in defendant’s windshield as a basis for the traffic stop in this case, and the stop is suppressed. United States v. Gaines, 2010 U.S. Dist. LEXIS 130111 (D. Md. December 8, 2010)*:

In addition to those facts discussed above, this Court will now highlight several further findings of fact relevant to the analysis of this case. First, it is uncontested that there is indeed a crack in right portion of the windshield of the Crown Victoria. However, as will be discussed in more detail below, this Court does not believe it was possible for the police officers to see the crack in the windshield as they have described it. Furthermore, it is similarly uncontested that Officer Shetterly discovered the gun in the Defendant's waistband before Defendant made any evasive or assaultive movements towards the officers. It was only after yelling “GUN” that the Defendant became violent. The legal effect of this last fact will be discussed in the following sections.

“When a search warrant is reviewed for a sufficiency-of-probable cause determination, its supporting affidavit must be read in its entirety and construed in a common sense and nontechnical manner.” There was clearly a “fair probability” defendant was involved in sexual exploitation of a child, which defendant does not challenge; only nexus for warrants for his Internet accounts. That argument also fails, so the good faith exception saves this search, too. United States v. Noyes, 2010 U.S. Dist. LEXIS 130041 (W.D. Pa. December 8, 2010).*

12/11/10

Permalink 08:40:00 am, by fourth, 57 words, 663 views   English (US)
Categories: General

C-SPAN Radio playing Mapp v. Ohio oral argument today

From Politics Daily: C-SPAN Supreme Court Series: Search and Seizure and the 'Exclusionary' Rule. C-SPAN Radio has been playing oral arguments of famous Supreme Court cases. Today:

The latest tape in the series, focusing on Mapp v. Ohio, an important evidence exclusion case from 1961, will be heard on C-SPAN Radio at 6 p.m. ET on Saturday, Dec. 11.

Permalink 08:33:32 am, by fourth, 189 words, 653 views   English (US)
Categories: General

Article: "Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms"

Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms by Jason C. Miller on SSRN:

Do Not Disturb addresses the sometimes thorny issue of when occupants of a hotel room have standing under the Fourth Amendment to object to an illegal search of the room. This becomes particularly problematic when the occupant is not a typical hotel guest or violates a hotel policy. The Tenth Circuit requires an occupant to prove that he or she is a registered guest of the hotel, while the Sixth Circuit holds that invalid registration is the hotel’s concern alone.

Although hotel rooms pose interesting Fourth Amendment problems, such as invalid registrations, fake names, guests of guests, and guests who stay beyond the rental period, this paper argues that the expectation of privacy in hotels should be measured in the same way that the Fourth Amendment deals with other types of residences and proposes that courts universally apply a rule requiring the hotel to act first to terminate the expectation of privacy of a guest who violates hotel policy.

The SSRN posting does not show where else it is being published.

Permalink 08:15:32 am, by fourth, 429 words, 789 views   English (US)
Categories: General

MA: Indictment of DNA profile was constitutional

Following other states, Massachusetts holds that DNA profile John Doe indictment was constitutionally sufficient to toll limitations period in a rape case. After the indictment, the DNA profile was matched via CODIS. Commonwealth v. Dixon, 458 Mass. 446, 938 N.E.2d 878 (2010):

The John Doe indictments in this case, identifying Dixon primarily by his unique DNA profile, are an entirely different species. Where a general John Doe indictment, bereft of any particularity, must fail as generally anonymous, the converse is true of a DNA indictment: it prevails as precisely eponymous. A properly generated DNA profile is a string of code that exclusively identifies a person’s hereditary composition with near infallibility. ...

In sum, the March 15 and July 11 indictments incorporating Dixon’s unique DNA profile, and bolstered by age, height, weight, and race descriptions, comport with art. 12 and, in this respect, were valid when rendered by the grand juries. Connor, supra at 576-578.FN18

18. In holding as we do, we are in accord with several other jurisdictions that have upheld the validity of accusatory documents that name a unique DNA profile. See People v. Robinson, 47 Cal.4th 1104, 1133-1135, cert. denied, 131 S.Ct. 72 (2010) (arrest warrant for thirteen-loci DNA profile, which also offered explanation that profile had random match probability essentially incapable of duplication in human population, complied with particularity requirements of Fourth Amendment to United States Constitution and California Constitution); State v. Belt, 285 Kan. 949, 960-962 (2008) (expressing agreement “in the abstract” with proposition that warrant identifying person to be arrested for sexual offense by person’s unique DNA profile can satisfy constitutional and statutory particularity requirements, but affirming dismissal where warrant and supporting affidavits did not incorporate unique DNA sequence, but rather DNA loci common to all people); People v. Martinez, 52 A.D.3d 68, 73 (N.Y.2008) (especially in light of prevalence of DNA data banks as criminal justice tools, “DNA indictment is an appropriate method to prosecute perpetrators of some of the most heinous criminal acts”); State v. Dabney, supra at 853, 854, quoting Scheer v. Keown, 29 Wis. 586, 588 (1872) (when name is unknown, complaint or warrant may issue if referencing “best description of the person prosecuted” and noting that “for purposes of identifying ‘a particular person’ as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible”).

[Note: Also, there is this point: There is no indiscriminate arrest of people on the DNA profile, as could happen on a John Doe warrant or a mere physical description. Here the arrest does not occur until the DNA profile has already been matched from some other source, so there is no general warrant problem.]

12/10/10

Permalink 07:14:43 am, by fourth, 124 words, 572 views   English (US)
Categories: General

MT: Construction flagger made valid citizen's arrest for DUI

A road construction flagger saw a possible drunk driver and stopped him. This was a valid citizen’s arrest. State v. Schubert, 2010 MT 255, 358 Mont. 286, 244 P.3d 748 (2010).*

Defendant had a reasonable expectation of privacy in his hotel room as a place where a person could “retreat” as a “zone of privacy,” and the police had no reason to believe that the person granting consent to enter the room had apparent authority to do so. Commonwealth v. Lopez, 458 Mass. 383, 937 N.E.2d 949 (2010), rev’g Commonwealth v. Lopez, 74 Mass. App. Ct. 815, 911 N.E.2d 214 (2009).

Because state troopers have authority to execute search warrants statewide, there is no requirement that a sheriff be along for the search to validate it. State v. Walker, 330 S.W.3d 122 (Mo. App. 2010).*

Permalink 06:59:33 am, by fourth, 256 words, 456 views   English (US)
Categories: General

N.D.Ind.: Affidavit for SW did not have to refer to God to be valid

Defendant’s technical arguments over whether the affidavit in support of the warrant was sufficiently sworn or an affirmation fails. The affidavit did to have to refer to God to be valid. United States v. Scott, 2010 U.S. Dist. LEXIS 128847 (N.D. Ind. December 6, 2010):

The Defendant is correct that the Affidavit in this case does not explicitly reference God in a formal oath, expressly mention penalties of perjury, or directly state that Detective Cain believed the stated facts to be true. However, the Court finds that the Search Warrant Affidavit at issue in case was valid, that it was not deficient, and that it satisfied Fourth Amendment requirements. To invalidate the Search Warrant in this case on the grounds presented by the Defendant would require the Court to interpret the Affidavit in the sort of hyper-technical manner that the Supreme Court and the Seventh Circuit have instructed courts not to apply.

Officer drove onto defendant’s rural property for a knock-and-talk, and they saw a barn 80' from a house and 700-800' from where defendant lived. They went to the barn, and defendant came out of a door. He was handcuffed and consented. The barn was not within the curtilage of the house. United States v. Diaz, 404 Fed. Appx. 381 (11th Cir. 2010) (unpublished).*

The officers had sufficient reasonable suspicion to stop defendant because of his suspicious conduct, and he then consented to a search of the bag on the front seat of his car. United States v. Scott, 2010 U.S. Dist. LEXIS 128668 (M.D. Pa. December 6, 2010).*

12/09/10

Permalink 09:09:36 am, by fourth, 275 words, 668 views   English (US)
Categories: General

AR: Officer’s stall in handing over traffic ticket to allow the drug dog to get there made the stop unreasonable [but reversed on pet. for rev. on RS]

Officer’s stall in handing over traffic ticket to allow the drug dog to get there made the stop unreasonable. Menne v. State, 2010 Ark. App. 806, 2010 Ark. App. LEXIS 865 (December 8, 2010)* [but reversed Menne v. State, 2012 Ark. 37, 2012 Ark. LEXIS 57 (February 2, 2012) posted here]:

The issue before us is whether the traffic stop was complete when Trooper Roark obtained consent from Menne. Based on Sims and Ayala, we hold that it was. The legitimate purpose of the traffic stop ended after nine-and-a-half minutes, when Trooper Roark had received, verified, and returned all of Menne’s documentation. The trooper specifically testified that he had completed his speeding investigation, and he had written the warning ticket. We acknowledge that Trooper Roark had not yet given the ticket to Menne to sign. However, relying upon our holdings in Sims and Ayala along with the trooper’s testimony that his investigation was complete, that fact does not alter our conclusion. Nine-and-a-half minutes after stopping Menne, the legitimate purpose of the stop was complete. The trooper’s failure to hand over the warning ticket to Menne at that time was nothing more than a stalling tactic to allow time for the drug dog’s arrival. Therefore, the trial court erred when it denied Menne’s motion to suppress. Menne’s detention beyond the completion of the traffic stop was illegal, and any subsequent consent given by Menne was invalid.

On the state's petition for review, the Arkansas Supreme Court affirmed the conviction, finding that the record supports the trial court's finding of reasonable suspicion to continue the stop. Also, defendant was advised of a right to refuse consent, although it was not legally required.

Permalink 08:11:19 am, by fourth, 162 words, 2700 views   English (US)
Categories: General

CA1: SW for defendant's person for drugs permitted search of his buttocks

Officers had a search warrant for drugs on defendant’s person, and they had information that he kept drugs hidden in his buttocks. When defendant was apprehended, he “forcibly” resisted moving his pants by tangling his ankles and struggling saying they could not “stick a finger up [his] ass.” That reinforced the belief that drugs would be found in his buttocks, and drugs were found there. That search was reasonable. United States v. McGhee, 627 F.3d 454 (1st Cir. 2010).*

Defendant’s affidavit from motel room renter that he was an invited guest for three weeks to have standing was rejected as untimely, and then the appellate brief did not address it, so defendant failed to show standing in the motel room. United States v. Rios, 2010 U.S. App. LEXIS 24935 (10th Cir. December 7, 2010) (unpublished).*

Defense counsel is credited that a motion to suppress would have been frivolous, defense counsel was not ineffective. United States v. Laverde-Gutierrez, 2010 U.S. Dist. LEXIS 128941 (S.D. Tex. December 7, 2010).*

Permalink 05:17:04 am, by fourth, 258 words, 421 views   English (US)
Categories: General

W.D.Okla.: Defendant's refusal to produce DL and registration delayed the stop so a drug dog came in the interim and alerted

Defendant’s stop was justified because of his “severely cracked” windshield. When stopped, he was agitated and a patdown was required. Part of the delay of the stop was defendant refusing to timely produce his DL and insurance papers, and the officer put him in the patrol car. He said they were in the glove compartment, but he refused the officer permission to go in the car to look for them. The officer called for a drug dog, “continued his efforts to obtain and verify defendant’s information.” The dog arrived and sniffed the car [apparently, because the opinion doesn’t say] before the DL was produced. The dog alerted, and the trunk was opened, and a gun was found in the trunk in a diaper bag. Defendant was a felon in possession. United States v. Marzette, 2010 U.S. Dist. LEXIS 127968 (W.D. Okla. December 2, 2010).*

Officers stopped one parolee at a hotel for violating conditions of parole, and it was reasonably suspected that he was a drug dealer. Another parolee was found at the same room, so it was reasonable to suspect that he was associating with a known drug offender, and his search was based on his parole condition. United States v. Alston, 626 F.3d 397 (8th Cir. 2010).*

The search of defendant’s car was justified either by search incident or inevitable discovery by the inventory that took place after his custodial arrest and because the vehicle registration had expired and it could not be driven. United States v. Zareck, 2010 U.S. Dist. LEXIS 128372 (W.D. Pa. December 3, 2010).*

12/08/10

Permalink 06:52:08 am, by fourth, 224 words, 2691 views   English (US)
Categories: General

AK: Seatbelt law was legislative prerogative, and there was no showing it was being used as a pretext here

The state adopted a seatbelt statute, as have all other states, based on evidence of savings of lives and money. It was a legislative prerogative to do so. Defendant failed to show that the purpose of the statute was to give police a basis for pretextual stops. The day of the stop, the officer was working overtime on a “click-it-or-ticket” enforcement program. Chase v. State, 243 P.3d 1014 (Alaska App. 2010):

Although Chase uses the phrase “pretext stop” to describe his claim on appeal, he is not actually talking about the “pretext” stop doctrine that this Court discussed in Morgan, Grohs, and Nease.

The officer who stopped Chase testified that he was on patrol, working overtime as part of a nationwide “click-it-or-ticket” law enforcement campaign — in other words, he was looking specifically for drivers who were not wearing their seatbelts. Thus, the officer had no ulterior motive when he stopped Chase for not wearing a seatbelt. The officer's express motive was to look for drivers who were violating the seatbelt law, and to cite these drivers for this offense.

Defendant was properly stopped by a police officer looking across the city limits into an adjoining city seeing him commit traffic offenses. On the stop, defendant’s breath smelled of alcohol, and that justified a detention. Thomas v. State, 336 S.W.3d 703 (Tex. App. – Houston (1st Dist.) 2010).*

Permalink 06:36:13 am, by fourth, 246 words, 2679 views   English (US)
Categories: General

RI: Trash pull refreshed alleged stale info from CI and corroborated it

Not only did the trash pull “refresh” the two month old information from the CI, it corroborated it. There was a substantial basis for issuing the search warrant. Inclusion of defendant’s non-drug criminal history was not erroneous because the issuing magistrate could consider it. State v. Storey, 8 A.3d 454 (R.I. 2010).*

Police got a call about a possible DUI, so they found the car and followed it, observing actions that supported a valid stop. State v. McFarland, 2010 Tenn. Crim. App. LEXIS 1025 (December 3, 2010).*

Defendant’s PO went to defendant’s girlfriend’s house to arrest him and did. Defendant was handcuffed and placed in a police car. The PO realized that his glasses were left inside, and he got permission to go back inside for them. Defendant was in the police car screaming at her not to let them in. The girlfriend consented to reentry and a further search because she was afraid of him, but she did not want him to hear her consent. State v. Yarbrough, 2010 Ohio 5882, 2010 Ohio App. LEXIS 4962 (2d Dist. December 3, 2010).*

Officers were surveilling a drug house, and defendant drove away. Officers followed observing a traffic offense, and he was pulled over and directed out of the car. Officers observed him put something in his mouth as he was getting out of the car and two baggies fell to the out while talking to the officer. That was a valid plain view. State v. Brock, 2010 Ohio 5885, 2010 Ohio App. LEXIS 4966 (2d Dist. December 3, 2010).*

12/07/10

Permalink 12:56:00 pm, by fourth, 212 words, 2690 views   English (US)
Categories: General

D.D.C.: Suit over government's alleged plan to murder U.S. citizen as a potential enemy combatant dismissed for lack of standing

The father of a U.S. citizen whose son is overseas exhorting others to kill Americans and whose son is allegedly on a government "kill or capture" list has no standing to sue for his son's Fourth and Fifth Amendment rights. Al-Aulaqi v. Obama, 10-1469 (JDB) (D. D.C. December 7, 2010).

NTTimes today: Suit Over Killing Order in Terror Case Is Dismissed:

A federal judge on Tuesday threw out a lawsuit aimed at preventing the United States from targeting U.S.-born anti-American cleric Anwar al-Awlaki for death.

U.S. District Judge John Bates said in a written opinion that al-Awlaki's father does not have the authority to sue to stop the United States from killing his son. But Bates also said the "unique and extraordinary case" raises serious issues about whether the United States can plan to kill one of its own citizens without judicial review.

Al-Awlaki has urged Muslims to kill Americans. He also has been linked to last year's shooting at Fort Hood, Texas, and the attempted bombing of a U.S.-bound flight last Christmas. He is believed to be hiding in Yemen and has issued videos online repeatedly calling for Muslims to kill Americans.

Washington Post: Judge in D.C. tosses suit against Obama administration about cleric Aulaqi.

Permalink 05:51:18 am, by fourth, words, 2684 views   English (US)
Categories: General

In trial for next two weeks, so postings may be spotty some days

Permalink 05:46:53 am, by fourth, 491 words, 2794 views   English (US)
Categories: General

AK: Civil inspection of property order complied with Fourth Amendment

In a nuisance civil case, a discovery order under Alaska Civil Rule 34 [similar to F.R.C.P. 34] required plaintiff to submit to an inspection for hazardous materials. The order was narrowly tailored to protect privacy interests, including the Fourth Amendment. Whittle v. Weber, 243 P.3d 208 (Alaska 2010):

Other jurisdictions have used similar balancing tests and considered similar factors when reviewing discovery requests for entry onto private property. Overall, to determine whether an inspection is appropriate, courts “must balance the respective interests by weighing the degree to which the proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection.”17 Most courts focus on the second Jones [v. Jennings] factor: the “compelling interest” element. To determine whether a compelling interest exists, courts scrutinize the relevance of the proposed inspection to the issue in the legal action. The Kentucky Supreme Court, looking to federal courts’ practices, observed that “[i]n each case, the place to be inspected is somehow ‘at issue’ in the underlying law suit.”18 Thus, other jurisdictions have concluded that the property or item to be inspected must be directly connected with the main issue of the legal action; some have determined that this “nexus” must appear on the face of the discovery order.19 Besides focusing on the nexus between the location and the legal cause of action, courts may also consider additional factors that connect the inspection to the lawsuit; for example, whether a legal action has begun,20 or whether the inspection is necessary (i.e., the information cannot be obtained through other avenues).21

17 Welzel v. Bernstein, 233 F.R.D. 185, 186 (D.D.C. 2005) (internal quotation marks omitted); see also DUSA Pharms., Inc. v. New England Compounding Pharmacy, Inc., 232 F.R.D. 153, 154 (D. Mass. 2005) (denying motion to compel inspection where “any benefit from the inspection ... is outweighed by the burdens that such inspection will impose”).

18 Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796, 802 (Ky. 2000); see also Belcher v. Basset Furniture Industrs., Inc., 588 F.2d 904, 910 (4th Cir. 1978) (“Most cases involving on-site inspections concern a given object on the premises which is the subject matter of the action ....”); Welzel, 233 F.R.D. at 186 (“In cases in which a site inspection has been allowed, the rationale has often been because the specific location relates to the subject matter of the cause of action.”).

19 See Wal-Mart Stores, Inc., 29 S.W.3d at 802 (requiring a “nexus between the premises to be inspected and the underlying cause of action” and that “this nexus must appear on the face of the order”).

20 See, e.g., Lake Charles Harbor & Terminal Dist. v. Phoenix Dev. Co., 624 So. 2d 972, 974 (La. App. 1993) (holding that trial court lacked authority to allow entry on land before suit was filed).

21 See, e.g., DUSA Pharms., 232 F.R.D. at 154 (denying motion to compel entry where “the defendant [had] offered plaintiffs access to its premises under reasonable terms” and “alternative and reasonably adequate methods of discovery” were available).

Permalink 05:20:57 am, by fourth, 407 words, 2731 views   English (US)
Categories: General

D.N.M.: Giving officers discretion to decide whether to tow or not was not an unconstitutional inventory policy

Albuquerque PD policy giving officers limited discretion to tow or not tow a vehicle does not violate the Fourth Amendment. United States v. Kelly, 2010 U.S. Dist. LEXIS 127394 (D. N.M. November 17, 2010):

Moreover, officers cannot perform an inventory search unless they are authorized to tow a vehicle in the first place. Allowing an officer to change his or her mind will not expand the scope when an inventory search is permitted; rather, it will allow an officer to abort a plan to have a vehicle towed, which will produce less of an interference with an individual’s rights, not more. It makes little sense to come up with a bright-line constitutional rule that requires a further invasion of property rights and deprivation of property — and requires towing — when practical circumstances change or no longer dictate relocation of a vehicle. The Constitution should not be in conflict with common sense. Mapp v. Ohio, 367 U.S. at 657 (“There is no war between the Constitution and common sense.”). If an officer decides not to tow an individual’s vehicle, then the individual’s deprivation of his or her vehicle is lessened because the vehicle is seized to a lesser degree than if it were towed. Regardless, an inventory search would be permitted even if the officer were not allowed to change his mind once it was performed. “[I]n forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical ‘all or nothing’ fashion.” Florida v. Wells, 495 U.S. at 4 (addressing whether “[a] police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself).

The search warrant for defendant’s vehicle was properly issued for firearms, but drugs were included in the particularity clause for which there was no probable cause. That did not make seizure of the drugs invalid because they would have been found in plain view during the execution of the warrant. United States v. Walker, 403 Fed. Appx. 803 (4th Cir. 2010) (unpublished)

Probable cause existed to detain plaintiff for something; here, driving a prohibited vehicle on a public road; so his claim that he was framed for DUI to justify his arrest was rejected. A false arrest claim requires a showing that there was no probable cause. Jackson v. Parker, 627 F.3d 634 (7th Cir. 2010).*

12/06/10

Permalink 06:51:44 am, by fourth, 231 words, 2685 views   English (US)
Categories: General

CA7: The person with the keys and alarm code to open a business appeared to have apparent authority to consent

A person with the keys to the business came and opened it in the morning and turned off the alarm. Officers came in the unlocked door and talked to him, and he consented to the search. Because he had the keys and alarm code, he had apparent authority to consent. The fact the business was not “open for business” is not dispositive. United States v. King, 627 F.3d 641 (7th Cir. 2010):

The district judge concluded that Cabrera-Lopez had apparent authority to consent to the search. We agree. Cabrera-Lopez had keys to the restaurant and the code to deactivate the alarm. He also opened the restaurant alone, and it was a small establishment. Cabrera-Lopez's actions clearly justified the officers' belief that he had full control over the premises, including the authority to grant access to others. See United States v. Pineda-Buenaventura, 622 F.3d 761, 777 (7th Cir. 2010) (stating that officers have a duty to inquire further as to a third party's authority only "when the circumstances make the authority questionable in the first place"). And the fact that the officers knew that Cabrera-Lopez was not the owner does not invalidate his authority. See United States v. Matlock, 415 U.S. 164, 171 n.7 (1974) ("The authority which justifies the third-party consent does not rest upon the law of property ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes.").

Permalink 06:44:38 am, by fourth, 303 words, 393 views   English (US)
Categories: General

ND: Entry and search was based on apparent authority, and it ended when it was found the consenter probably lacked apparent authority; the view up to then was valid

Officer had a reasonable belief at the time he entered a house to investigate an allegation of sex with a child that the mother was in control of the house and she had apparent authority to consent. When the officer got to an office in the basement, he first saw pornography and a computer, and then saw a utility bill in defendant’s name, so he concluded that defendant was the owner and left the room. At that point, he was informed that the room was “off limits” to the consenter and her family. The belief in common authority and view up to that point was reasonable. State v. Huether, 2010 ND 233, 790 N.W.2d 901 (2010).*

The officer’s direction to defendant to roll down the window of his car was found by the trial court to be a request and not an order. Defendant was on his cell phone and testified that he interpreted it as an order to get off the phone and talk to the officer. The officer also requested defendant to turn down the radio. This was not an order. State v. Steffes, 2010 ND 232, 791 N.W.2d 633 (2010).*

Defense counsel was not ineffective for not raising a state constitutional challenge to a search that was essentially already foreclosed. Jones v. State, 2010 Ark. 470, 2010 Ark. LEXIS 573 (December 2, 2010).*

Defendant was being followed by the police after a CI said he was in defendant’s car when defendant sold crack. Defendant made turns to see if the officer was going to stop him, and finally pulled into a yard and parked. The officer parked behind him and got out to talk to him. Defendant consented to a search of his person, and then got combative. A vial of crack fell to the ground and it was validly seized. Franklin v. State, 2010 Ark. App. 792, 378 S.W.3d 296 (2010).*

Permalink 06:09:11 am, by fourth, 239 words, 455 views   English (US)
Categories: General

OR: Consent sought during "unavoidable lull" in a traffic stop was valid

Case law provided no authority for the proposition that police inquiries during an unavoidable lull in a traffic stop had to be justified by independent reasonable suspicion. The officer's request for consent to search occurred during an unavoidable lull in an ongoing traffic stop while the officer was attempting to ascertain and confirm defendant's identity. Because the request for consent to search did not delay the stop, it was not unreasonable. Because it was authorized by Or. Rev. Stat. § 810.410, the request did not require independent reasonable suspicion or probable cause. State v. Jones, 239 Ore. App. 201, 245 P.3d 148 (2010).*

A marijuana spotter from the air for more than 20 years with an asserted 3% error rate who said he saw a marijuana grow operation was probable cause for a search warrant for the property. [The question is, after all, only probability. Dogs can be less reliable and there still be probable cause.] State v. Fronterhouse, 239 Ore. App. 194, 243 P.3d 1208 (2010).*

A burglary in progress call of a white male in a dark coat being involved that led to defendant’s detention was without reasonable suspicion. It was too generic to base a stop. Segar v. State, 937 N.E.2d 917 (Ind. App. 2010).*

A multi-agency warrant task force, including defendant’s parole officer, arrived at a house where they believed defendant would be staying. The householder granted consent for the officers to enter, and that was valid. State v. Jason, 53 So. 3d 508 (La. App. 1st Cir. 2010).*

12/05/10

Permalink 11:27:20 am, by fourth, 163 words, 574 views   English (US)
Categories: General

E.D.Mo.: Inconsistent stories about travel plans was RS

“Conflicting statements by the occupants of a vehicle about their travel may be sufficient to establish the required reasonable suspicion to detain the occupants for further investigation.” United States v. Rivera-Apodaca, 2010 U.S. Dist. LEXIS 127300 (E.D. Mo. August 20, 2010).*

A suppression motion for possession of knife on school grounds was granted, and the state appealed. The court of appeals reversed for consideration of whether there was individualized suspicion under T.L.O. On the record here, it seemed that the search was random, but the record is inadequate. State v. Gage R., 2010 NMCA 104, 149 N.M. 14, 243 P.3d 453 (2010).*

Defendant was arrested with her john for prostitution, and the john said that she was paid with drugs which she put under her tongue. [I guess that ruled out fellatio? Maybe not.] When the officer got this information from the john, he could force defendant to open her mouth because the evidence was easily destructible just by swallowing. State v. Geer, 391 S.C. 179, 705 S.E.2d 441 (2010).*

Permalink 11:20:03 am, by fourth, 331 words, 585 views   English (US)
Categories: General

NH: A deck in a yard shielded from the street by bushes showed a REP

Defendant showed a reasonable expectation of privacy in his deck because it was shielded from view by bushes and could not be seen from the road. State v. Orde, 161 N.H. 260, 13 A.3d 338 (2010) (decided under state constitution):

We begin by addressing the trial court's conclusion that the defendant did not exhibit an expectation of privacy in the deck. The defendant's property is lined with trees. There is no evidence that the deck could be seen from the road. The side of the deck facing the road is lined with lilac bushes, further shielding the deck from passersby. Although Corrado testified that from the side door of the home he could see the deck steps and the existence of the deck, there is no evidence that he could see whether anything or anyone was on the deck. There is no path leading from the side door of the home to the deck steps. Further, the lilac bushes near the deck would impede any perceived route from the door to the deck because, as Corrado testified, in order to get to the deck he had to walk “in between” the lilac bushes where there was “a little bit of an opening.”

Under these facts, the defendant exhibited an expectation of privacy in his deck. The defendant made efforts to obscure the deck and the activities on the deck from public view. There is no evidence that the deck was visible from the road. The placement of the deck and the lilac bushes prevented Corrado, or any other member of the public, from viewing the activities on the deck from the driveway. The defendant further exhibited an expectation of privacy in his deck by not creating a path connecting the side door with the deck steps and placing the lilac bushes in between the side door and the deck. Accordingly, we conclude that the trial court erred, as a matter of law, in finding that the defendant did not exhibit an expectation of privacy.

Permalink 11:03:13 am, by fourth, 689 words, 913 views   English (US)
Categories: General

GA: A cell phone used for text messaging an undercover officer was subject to search upon its seizure at the time of defendant's drug arrest

A cell phone used for text messaging an undercover officer was subject to search upon its seizure at the time of defendant's drug arrest.There obviously was probable cause for searching it. Hawkins v. State, 307 Ga. App. 253, 704 S.E.2d 886 (2010):

That the text messages were stored in electronic form in Hawkins’s cell phone, rather than in plain view, does not deny the officer the right to discover them. When an officer is authorized to search in a vehicle for a specific object and, in the course of his search, comes across a container that reasonably might contain the object of his search, the officer is authorized to open the container and search within it for the object. See Ross, 456 U. S. at 824 (IV) (“The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”); see also Gant, 129 SC at 1719 (III) (“[In some cases], the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein [for evidence of the crime of arrest].” (emphasis added)). The pertinent question, in this case, then, is whether a cell phone is enough like a “container” to be treated like one in the context of a search for electronic data that might be stored on the phone. We think it is.

Although it is a matter of first impression for our Court, many other courts have addressed this issue. Most have concluded that, when a search for electronic data that might reasonably be stored in a cell phone is authorized, the cell phone is roughly analogous to an electronic “container” that properly can be “opened” and searched for the data, much as a traditional “container” can be opened to search for tangible objects within. See United States v. Finley, 477 F.3d 250, 260 (III) (B), n.7 (5th Cir. 2007); see also United States v. Wurie, 612 F.Supp.2d 104, 109 (D. Mass. 2009) (“Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest ... exception[] appl[ies] to searches of the contents of cell phones.”) (citations omitted). Federal courts in Georgia are among those that have reached this conclusion. See, e.g., United States v. Cole, 2010 U. S. Dist. LEXIS 82822 at *60-68 (7) (N.D. Ga. 2010) (concluding that the defendant’s cell phone was a “container” for purposes of applying an exception to the warrant requirement since it contained information not readily apparent without manipulating the cell phone itself); United States v. McCray, 2008 U. S. Dist. LEXIS 116044 at *13 (S.D. Ga. 2008) (concluding that “[a] cell phone, like a beeper, is an electronic ‘container,’ in that it stores information that may have great evidentiary value (and that might easily be destroyed or corrupted)”). We are persuaded that, as a general matter, these decisions are correct.

Cell phones and other mobile electronic data storage devices, however, are unlike traditional “containers” in several respects, and for this reason, we must apply the principles set forth in traditional “container” cases to searches for electronic data with great care and caution. A traditional “container” encloses tangible things and, therefore, can hold only a finite number of things and only things as voluminous as the physical volume of the container allows. An electronic “container,” on the other hand, may contain innumerable electronic data of almost infinite variety in a volume having little, if any, relation to the physical size of the electronic “container.” And, unlike a traditional “container,” which simply contains whatever it contains, an electronic “container,” through an Internet browser or other application, may have the capability to reach out and retrieve data from other places during the course of a search.

In addition, as the Supreme Court has recognized, vehicles and the traditional “containers” transported in them “‘seldom serve as ... the repository of [tangible] personal effects.’” See Wyoming v. Houghton, 526 U. S. 295, 303 (II) (119 SC 1297, 143 LE2d 408) (1999).

12/04/10

Permalink 08:07:28 am, by fourth, 295 words, 620 views   English (US)
Categories: General

E.D.Wis.: Unlawful entry was one step over threshold to ask defendant to come outside; later consent not suppressed

Unlawful entry here was only to the extent of step into the threshold and asking defendant to come out. Once outside defendant consented. This was not so flagrant the exclusionary rule should be applied. United States v. Ramirez-Martinez, 2010 U.S. Dist. LEXIS 126902 (E.D. Wis. December 1, 2010)*:

I agree with the magistrate judge that the government met its burdens here. First, while it is true that the officers obtained the consents of defendant's mother and girlfriend shortly after the unlawful entry, the nature of that misconduct was minimal. This was not a case in which multiple officers broke down the door and entered with guns drawn. Cf. Robeles-Ortega, 348 F.3d at 680-81. Rather, Arzaga briefly and minimally entered the house and redirected defendant back outside. Further, neither defendant's mother or girlfriend were unlawfully seized; nor were they even present inside the house when Arzaga unlawfully entered it. Defendant's mother witnessed the encounter at close quarters, but as the magistrate judge noted, a reasonable layperson in her position may not have even understood that anything improper occurred. For her part, it is unclear whether Stephanie, who encountered Hansen in the backyard, observed Arzaga unlawfully enter the house and seize defendant. Thus, it is hard to see how the unlawful entry and seizure may have tainted her later consent.

When an officer stops a car and smells burnt marijuana, the entire car and its containers are subject to search. United States v. Ford, 2010 U.S. App. LEXIS 24549 (4th Cir. November 30, 2010) (unpublished).*

The proof in the District Court showed that defendant was lawfully seized with reasonable suspicion, and then he voluntarily consented to a search of his place. The evidence supports both conclusions on de novo review. United States v. Ward, 400 Fed. Appx. 991, 2010 FED App. 0747N (6th Cir. 2010) (unpublished).*

12/03/10

Permalink 11:13:22 am, by fourth, 174 words, 484 views   English (US)
Categories: General

Wired: "Feds Warrantlessly Tracking Americans’ Credit Cards in Real Time"

On Wired's Threat Level: Feds Warrantlessly Tracking Americans’ Credit Cards in Real Time:

Federal law enforcement agencies have been tracking Americans in real-time using credit cards, loyalty cards and travel reservations without getting a court order, a new document released under a government sunshine request shows.

The document, obtained by security researcher Christopher Soghoian, explains how so-called “Hotwatch” orders allow for real-time tracking of individuals in a criminal investigation via credit card companies, rental car agencies, calling cards, and even grocery store loyalty programs. The revelation sheds a little more light on the Justice Department’s increasing power and willingness to surveil Americans with little to no judicial or Congressional oversight.

For credit cards, agents can get real-time information on a person’s purchases by writing their own subpoena, followed up by a order from a judge that the surveillance not be disclosed. Agents can also go the traditional route — going to a judge, proving probable cause and getting a search warrant — which means the target will eventually be notified they were spied on.

Permalink 08:54:52 am, by fourth, 247 words, 535 views   English (US)
Categories: General

N.D.Ga.: "opinion and experience combined with circumstantial evidence has been found to provide probable cause"

The search warrant here was for evidence that defendant was unlawfully seeking refugee status in the U.S. but was a combatant in the Bosnian war. “[A]n agent’s opinion and experience combined with circumstantial evidence has been found to provide probable cause to search a residence. See United States v. Jenkins, 901 F.2d 1075, 1081 (11th Cir. 1990) ... [¶] Additionally, several similar search warrants issued in investigations of Bosnian ex-military immigrants show that courts have found a spectrum of direct and opinion evidence sufficient to establish probable cause.” United States v. Zekic, 2010 U.S. Dist. LEXIS 126619 (N.D. Ga. October 28, 2010).*

The affidavit for the two search warrants showed probable cause for the place to be searched, and, even if it didn’t, the good faith exception would apply. United States v. Washington, 2010 U.S. Dist. LEXIS 126574 (E.D. Mich. December 1, 2010).*

While defendant was handcuffed and in custody, which alone is not enough under Watson to show a lack of voluntariness, he was otherwise cooperative and consented. United States v. Solorzano, 2010 U.S. Dist. LEXIS 126663 (E.D. La. December 1, 2010).*

For probable cause in a child pornography search warrant, the officers do not have to show that defendant actually downloaded it or that the people in the images were actually under 18. The affidavit could have better recited that the officer knew child porn when he saw it based on his experience, but this was not fatal to the warrant. United States v. Lyon, 2010 U.S. Dist. LEXIS 126753 (E.D. Tenn. November 15, 2010).*

Permalink 01:00:38 am, by fourth, 201 words, 539 views   English (US)
Categories: General

CA9: Tasering was excessive because the victim didn't deserve it, but the officer gets qualified immunity

The tasering of plaintiff was unreasonable on these facts because it was unjustified and excessive force. As of the date of the occurrence, there was no case definitively holding that tasering was unreasonable under facts like these. Therefore, the officer is entitled to qualified immunity. Bryan v. Macpherson, 630 F.3d 805 (9th Cir. 2010).*

Defendant’s arrest was based on probable cause, and he had no standing to challenge the discarded evidence from the person of a codefendant. United States v. Acon, 2010 U.S. Dist. LEXIS 125552 (D. Minn. November 15, 2010), adopted 2010 U.S. Dist. LEXIS 125680 (D. Minn. November 29, 2010).*

The CI’s in this case were arrestees seeking favorable treatment, so they had no presumption of reliability. They were corroborated, so probable cause was shown. United States v. Williams, 2010 U.S. Dist. LEXIS 125717 (E.D. Wis. November 2, 2010).*

The video does not overcome Officer Madison's testimony and is not enough to demonstrate that the record preponderates against the trial court's findings of fact. State v. Hewitt, 2010 Tenn. Crim. App. LEXIS 1005 (November 29, 2010).*

The record supports the fact finding and the conclusion there was reasonable suspicion for defendant’s stop. The stop being valid, his confession is too. Peralta v. State, 338 S.W.3d 598 (Tex. App. – El Paso 2010).*

12/02/10

Permalink 06:07:48 pm, by fourth, 322 words, 400 views   English (US)
Categories: General

MS: Handcuffed suspect could have still reached car such that a search incident of the car was valid

Handcuffed suspect could have still reached car such that a search incident of the car was valid. [!] Johnson v. State, 49 So. 3d 130 (Miss. App. 2010)*:

P12. Further, in rejecting Johnson's motion to suppress, the circuit court also observed that there are many instances where a handcuffed suspect may still "obtain weaponry or other items to the detriment and danger" of law enforcement. The United States Court of Appeals for the Fifth Circuit also has noted this danger, stating:

Handcuffs are a temporary restraining device; they limit but do not eliminate a person's ability to perform various acts. They obviously do not impair a person's ability to use his legs and feet, whether to walk, run, or kick. Handcuffs do limit a person's ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors, including the handcuffed person's size, strength, bone and joint structure, flexibility, and tolerance of pain. Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim, to a bystander, or even to himself. Finally, like any mechanical device, handcuffs can and do fail on occasion.

United States v. Sanders, 994 F.2d 200, 209 (5th Cir. 1993) (emphasis added) (footnote omitted). The circuit judge, sitting as the fact-finder, was in the best position to evaluate the evidence, such as Johnson's height and build and his proximity to the vehicle, based on the totality of the circumstances. Thus, we agree with the circuit court's finding that it was reasonable for law enforcement to search the front area of the car in order to ensure officer safety. We find that the circuit court did not abuse its discretion in denying Johnson's motion to suppress as credible evidence existed to support the ruling. This issue is without merit.

Permalink 04:54:51 pm, by fourth, 540 words, 446 views   English (US)
Categories: General

W.D. N.Y.: Violating search protocol does not require suppression under Herring

Government agents violated the search protocol by not timely searching the defendant’s computers, but the court does not find that the search should be suppressed as a result because there was no “but for” causation. United States v. Widner, 2010 U.S. Dist. LEXIS 125920 (W.D. N.Y. August 20, 2010), adopted 2010 U.S. Dist. LEXIS 125942 (W.D. N.Y. November 30, 2010):

Applying the above-referenced authority to the Widner warrant, I find that the failure to conduct an onsite preview of the material seized did not render the warrant itself insufficiently particular or otherwise invalid. The defense contends that “blanket suppression” of all the evidence is nonetheless justified because the warrant was executed in “flagrant disregard” of the warrant’s terms. See United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) (“when items outside the scope of a valid warrant are seized, the normal remedy is suppression and return of those items[, ...] the drastic remedy of the suppression of all evidence is not justified unless those executing the warrant acted in flagrant disregard of the warrant’s terms”) (internal quotation omitted; emphasis in original); United States v. Defreitas, 701 F. Supp. 2d 297, 2010 WL 1223244, *4 (E.D.N.Y. 2010). Government agents act in flagrant disregard of a warrant justifying “wholesale suppression … only when (1) they effect a widespread seizure of items that were not within the scope of the warrant, and (2) do not act in good faith.” United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir. 2000) (internal citations and quotations omitted), cert. denied, 534 U.S. 816, 122 S. Ct. 44, 151 L. Ed. 2d 16 (2001). The first prong of this test requires proof that the search conducted actually resembled a “general search,” which has been described as a “wide-ranging exploratory search []” or an “indiscriminate rummaging,” and “ha[s] long been deemed to violate fundamental rights.” Id. at 140. In the absence of such evidence, the Court need not address whether the agents acted in bad faith in executing the search. Id. at 142 (declining to reach issue of whether search was conducted in good faith where first prong of test was not met).

. . .

The one final question is whether the search team’s non-compliance with a court-ordered directive in the warrant itself justifies suppression as a sanction. In my opinion, the Supreme Court’s decision in Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), counsels against that result. There, the agents executing a search warrant failed to comply with the Fourth Amendment’s “knock and announce” provision. The Court refused to order suppression, noting that it is a “last resort, not our first impulse” because of its “substantial social costs.” Hudson v. Michigan, 547 U.S. at 591. The Court reasoned that suppression was too drastic a remedy because the agents would have discovered the incriminating evidence “[w]hether the preliminary misstep had occurred or not.” Id. at 592 (emphasis in original). Accord .... The record here makes clear that the agents would have discovered the child pornography whether the forensic preview had been conducted onsite, as directed, or offsite, as in fact occurred. Thus, the failure to conduct the forensic preview at the residence cannot be considered the “but-for cause of obtaining the evidence,” making suppression an inappropriate sanction. Hudson, 547 U.S. at 592 (“but-for causality is ... a necessary ... condition of suppression”); Acosta, 502 F.3d at 58.

12/01/10

Permalink 11:10:37 am, by fourth, 185 words, 513 views   English (US)
Categories: General

OH12 permits GPS without a warrant under Fourth Amendment rejecting Weaver and Jackson and ignoring Maynard

In a GPS case, where all the right things were argued, Ohio’s 12th District Court of Appeals rejects NY’s Weaver (2009) and Washington’s Jackson (2003) because the Ohio Supreme Court says that the state constitution is to be interpreted like the Fourth Amendment. The opinion glaringly omits reference to the D.C. Cir's Maynard (2010). State v. Johnson, 2010 Ohio 5808, 190 Ohio App. 3d 750, 944 N.E.2d 270 (12th Dist. 2010).*

The officer here was parked on the street in front of a house, and the defendant parked nearby and walked up to the officer to ask why he was parked there and to see what was going on. The defendant smelled strongly of alcohol and had bloodshot eyes. The officer had reasonable suspicion to perform a field sobriety test. Commonwealth v. Cauley, 2010 PA Super 217, 10 A.3d 321 (2010).*

As long as the officer has probable cause for some offense to stop defendant’s car, it does not matter that defendant was arrested for a different offense. Here, the existence of probable cause made Gant inapplicable, and search incident was not preserved below anyway. State v. Louthan, 158 Wn. App. 732, 242 P.3d 954 (2010).*

Permalink 08:47:51 am, by fourth, 311 words, 532 views   English (US)
Categories: General

MO: Consent given when officer still had papers in hand

Where defendant consented to a search while the officer had all her paperwork after a valid traffic stop, the consent to search was valid. State v. Pesce, 325 S.W.3d 565 (Mo. App. 2010)* [This case is just so wrong.]:

Here, it is clear that Pesce's consent was obtained during a reasonable investigation of a traffic violation. When Trooper Gilliland requested consent to search her car, Pesce had not yet been cited for the driving infraction, nor had she had been given her identification back. Ultimately, Pesce points to no evidence before the trial court that demonstrated that this investigation of the traffic violation was needlessly prolonged by Trooper Gilliland beyond the confines of a reasonable search as contemplated by the Missouri Supreme Court.

Officers went to defendant's address to do a parole check on Jones who had that address listed as one of two where he was staying. At the window, the officers saw defendant on the couch and talked to him through the window. They asked if they could enter to look for Jones, and they were let in. Inside was a bunch of marijuana packaged for individual sale and the strong odor of marijuana. The dryer in the kitchen was making a racket, so the officer opened the door to stop the noise so they could call out to the person upstairs. Inside the dryer was more marijuana. The search was reasonable, as was opening the dryer door. People v. Smith, 190 Cal. App. 4th 572, 118 Cal. Rptr. 3d 483 (2d Dist. 2010).*

Defendant was stopped with reasonable suspicion after a traffic stop. She was targeted for surveillance after a CI’s information on her where the CI had been used “25-50” with success in the past. When she was out of the car, it was reasonable to frisk her based on the information that the officer had. Lewis v. State, 9 A.3d 476 (Del. 2010).*

Permalink 07:20:30 am, by fourth, 409 words, 483 views   English (US)
Categories: General

CA4 & 5: Two comparisons of reasonable suspicion

The officer’s observations here were more than just suspicious activities in a high crime area–he was reasonably certain that a gang fight was about to break out, and he isolated one who was particularly suspicious, questioned her, and performed a frisk. The area being “high crime” is not enough, but it is a factor in the totality. United States v. Hernandez-Mendez, 626 F.3d 203 (4th Cir. 2010)*:

His concern that the previous night's stabbing might result in retaliation near the school led him to set up a surveillance team the following afternoon. [¶] The gathering of seven Hispanic males and one Hispanic female across the street from the high school, shortly before the end of the school day, the day following a gang-related stabbing, alerted him to the possibility that the group might be planning some sort of retaliatory action. Officer Webster noted that, while some in the group looked to be school-age, several looked to be older. The males, who were gathered around a male wearing a red shirt, appeared to be having a meeting or discussion, while occasionally looking toward the school's entrance.

The officer lacked reasonable suspicion that defendant was involved in a broken window complaint in an apartment complex that was not a night crime area; there was no movement at that early hour (3:35 am) until defendant’s car started to leave the parking lot. There was nothing linking defendant’s car or defendant to the complaint. United States v. Benjamin, 481 Fed. Appx. 92 (5th Cir. 2010)*:

When viewed "in the context of the totality of circumstances," however, these three facts do not establish reasonable suspicion. Id. at 340-41. As explained, the officers knew absolutely nothing about the vandal or vandals other than that he, she, or they had broken a window. Unlike Jaquez, this window breaking did not occur in a high-crime neighborhood. Also, more than enough time had elapsed for the vandal to have departed by car or on foot after breaking the window. Finally, the officers' suspicion necessarily rested on an unreasonable assumption—that the vandal would have remained in the vicinity of the window that he had just broken, even after the police had arrived. Officer Kellum first arrived around 3:50 a.m. He spent the next ten minutes inside the apartment, interviewing the complainants. If the vandal had not already fled, one would certainly expect that he would have done so during that ten-minute period, knowing that the police had arrived on the scene.

11/30/10

Permalink 07:46:09 am, by fourth, 213 words, 2985 views   English (US)
Categories: General

E.D.Mich.: Defendant's running a “large scale” drug trafficking operation is nexus to his home

Search warrant affidavit’s allegation that defendant ran a “large scale” drug trafficking operation is nexus to defendant’s home. United States v. Murrey, 2010 U.S. Dist. LEXIS 125121 (E.D. Mich. September 24, 2010):

Here, SA Brouillard’s affidavit in support of the search warrant for evidence of narcotics trafficking stated that, based on his training and experience, “[i]t is common for drug traffickers to conceal drug records, drug proceeds ... within their residences.” This statement, coupled with SA Brouillard’s detailed allegations linking Murrey to a large-scale cocaine distribution operation and attempts to injure law enforcement on December 2, 2008, established a sufficient nexus for the search of his residence. See also United States v. Gunter, 551 F.3d 472 (6th Cir. 2009) (where the search warrant affidavit shows that the resident had made repeated purchases of one or more kilograms of cocaine, it was reasonable to infer there would be evidence of drug trafficking in his home). As such, Murrey’s motion to be suppress should also be denied for this reason.

This vehicle was unlicensed, and a policy to tow unlicensed vehicles is reasonable. The fact a pill bottle was not listed under the inventory does not make it invalid if it was listed as evidence seized. State v. Wotring, 2010 Ohio 5797, 2010 Ohio App. LEXIS 4881 (11th Dist. November 24, 2010).*

11/29/10

Permalink 11:20:19 pm, by fourth, 135 words, 3743 views   English (US)
Categories: General

ABAJ: "Airport Body Scanners May Violate Alito’s ‘Minimally Intrusive’ Test"

Posted today on the ABAJournal website: Airport Body Scanners May Violate Alito’s ‘Minimally Intrusive’ Test linking to a piece in the Washington Post. As a Third Circuit Judge, Justice Alito looked at the issue of body scanners.

Justice Samuel A. Alito Jr. evaluated airport screening procedures when he was a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, according to George Washington University law professor Jeffrey Rosen. In an opinion column in the Washington Post, Rosen asserts that the full body scanners now being used at airports would fail Alito’s Fourth Amendment test, set out in a 2006 opinion.

Alito upheld searches using magnetometers and hand-held wands, saying the screening was “minimally intrusive” and “effective.” But Rosen doesn’t think that test would be satisfied by the methods being used now. ...

Permalink 07:32:21 am, by fourth, 245 words, 2789 views   English (US)
Categories: General

OR: Defendant could not have felt free to leave and was stopped without reasonable suspicion

The trial court [recognized the realities and] found that defendant would not reasonably feel free to leave after he was stopped and was talking to the officer who asked him what he had on him and called for backup, and back up arrived. The motion to suppress should have been granted because there was no reasonable suspicion for the detention. State v. Levias, 239 Ore. App. 116, 243 P.3d 880 (2009)*:

On appeal, defendant asserts that, considering the circumstances (including the hour of the day, the flashing overhead lights, the officer's call for backup, the high-crime location, and the direct questioning of defendant about criminal activity), defendant was stopped when Murphy asked him for consent to search. At that point, defendant contends, defendant reasonably believed that, in light of the circumstances, he was under investigation for criminal activity and therefore was not free to leave. In the state’s view, no stop occurred; rather, Murphy engaged defendant in mere conversation, and defendant subsequently voluntarily consented to the search of his person.

Officers were patrolling around a “low-end motel” known for drugs and prostitution where several arrests had been made. Defendant drove into the parking lot and ultimately got stopped and was handcuffed because it was a “high crime area.” The officers had a probable stolen vehicle in the parking lot, but there were no facts to link defendant to the vehicle nor to any crime. His stop was unreasonable. State v. Clack, 2010 Ohio 5747, 2010 Ohio App. LEXIS 4834 (2d Dist. November 24, 2010).*

Permalink 07:16:45 am, by fourth, 330 words, 2901 views   English (US)
Categories: General

NH: Stop to check on a car on a highway parking spot was without justification and unreasonable

Defendant’s stop in a “pull off area” along a New Hampshire highway in the winter was without justification. The officer parked and walked up and found two men smoking marijuana. This case was decided under the state constitution. State v. Boutin, 161 N.H. 139, 13 A.3d 334 (2010):

In this case, the officer testified that he approached Boutin’s vehicle, “[j]ust to see if everything -- if anything was wrong, make sure everything was okay.” He testified that he could not tell if there was an accident, if the vehicle was abandoned or if any occupants may have needed assistance or had health concerns. He also observed that Boutin’s vehicle was pulled off to the side of the road, but facing the wrong way. As in Boyle, while the officer may have had generalized concerns about the vehicle and its potential occupants, he did not describe any specific and articulable facts that justified the intrusion of Boutin’s protected interests. Boutin’s car was parked legally in a pull-off area and the officer did not observe any obvious signs of an accident, that the car was disabled, or that the passengers were in any type of distress. See State v. Burgess, 657 A.2d 202, 204 (Vt. 1995). In short, the officer’s concerns amounted to little more than a hunch. While the officer testified that he was concerned in part because it was dark and snow covered the ground, “[w]inters are traditionally long in [New Hampshire], and we cannot adhere to a theory that essentially renders [Part I, Article 19] protections seasonal.” Id.

Defendant’s traffic stop led to the officer smelling marijuana in the car. That was probable cause for a search, and Gant did not apply. State v. Dickerson, 2010 Ohio 5787, 2010 Ohio App. LEXIS 4869 (8th Dist. November 24, 2010).*

Trial court’s lack of findings of fact and conclusions of law makes it impossible for the court of criminal appeals to decide the suppression issues. Remanded. State v. Norton, 2010 Tenn. Crim. App. LEXIS 1001 (November 24, 2010).*

Permalink 01:02:02 am, by fourth, 829 words, 3060 views   English (US)
Categories: General

E.D.Tenn.: Forced medical removal of 10g crack from rectum was reasonable where defendant was medically paralyzed for the procedure

Defendant was arrested with probable cause and jailed. During the strip search, jailers saw string protruding from his rectum. They sought consent to remove it, which he refused. A forced digital rectal exam (“DRE”) didn’t work because defendant’s tight muscles did not permit entry. He was taken to a hospital for an examination and given drugs to make his sphincter relax. When that did not work, he was given a drug to paralyze him for 30 minutes. “Balancing these three factors [from Winston v. Lee], the Court finds that the DRE was a reasonable procedure under the circumstances and was reasonably employed, particularly given the risk to the Defendant from the drugs in his rectum for which there was a clear indication were there [Schmerber v. California] and the Defendant’s actions hindering their removal. Accordingly, the Court finds that the search in question did not violate the Defendant’s Fourth Amendment rights.” He had 10.2g of crack in him. United States v. Booker, 2010 U.S. Dist. LEXIS 124839 (E.D. Tenn. September 29, 2010), adopted United States v. Booker, 2010 U.S. Dist. LEXIS 124874 (E.D. Tenn. November 24, 2010):

After waiting “ten to fifteen minutes for the medicine to take full effect,” LaPaglia again attempted to perform a DRE. [Tr. 131]. This time, LaPaglia was able to feel a foreign object inside the Defendant’s rectum with the tip of his finger. [Tr. 131]. However, the Defendant was still non-cooperative, and LaPaglia was unable to complete the DRE and remove the foreign object. LaPaglia told the Defendant that his continued failure to cooperate required the administration of a combination of medications that would temporarily paralyze every muscle in his body. LaPaglia also told the Defendant that he would be rendered unconscious and intubated to allow for a complete DRE.

LaPaglia intravenously administered 20 milligrams of etomidate, a sedative, and 125 milligrams of succinylcholine, a paralytic agent, to the Defendant. [Tr. 142]; [Tr. 155 (Jones testified that intravenous therapy was established at 3:35 p.m.)]; [Exhibit 7]. At approximately 4:12 p.m., the Defendant was intubated. [Tr. 62, 156]; [Exhibit 7]. Once the Defendant was unconscious and completely paralyzed, LaPaglia performed a DRE and removed a rock of crack cocaine weighing 10.2 grams from the Defendant’s rectum. [Tr. 27]. Shortly after the rock was removed, Steakley placed it in an evidence bag and left the emergency room. [Tr. 27, 144-45]. The Defendant was intubated for approximately one hour total, during which time he was unconscious for 20 to 30 minutes and completely paralyzed for 7 to 8 minutes. [Tr. 143, 156]. At approximately 6:40 p.m., the Defendant’s intravenous therapy was discontinued. [Tr. 155]; [Exhibit 7]. The Defendant was subsequently discharged from the emergency room into Shelton’s custody. See [Tr. 125 (Shelton testified that he was told he could leave the hospital with the Defendant at 6:25 p.m., and that he arrived with the Defendant back at the Detention Facility at 6:59 p.m.); [Exhibit 7] (showing the Defendant’s departure time as 6:42 p.m.)].

The search was valid under Winston v. Lee because of the risk associated with any inmate in jail having drugs hidden in his body because of the potential for overdose.

In the event that the District Court finds that Dr. LaPaglia was acting at the officers’ direction and was, therefore, a government agent, the Court will briefly conduct an alternative analysis of whether the DRE was reasonable under the circumstances and was conducted in a reasonable manner. In Schmerber, the Court balanced three factors to determine whether the search was reasonable: “(1) ‘the extent to which the procedure may threaten the safety or health of the individual’; (2) ‘the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity’; and (3) ‘the community’s interest in fairly and accurately determining guilt or innocence.’” United States v. Husband, 312 F.3d 247, 253 (7th Cir. 2002) (quoting Winston v. Lee, 470 U.S. 753, 761-62 (1985) (analyzing the reasonableness of surgery to remove a bullet from the defendant’s chest under the Schmerber factors)).

Also, the doctor helpfully testified that he was acting on his own accord as a medical professional concerned about defendant overdosing, and not at the direction of the officers. The court also thus held that the doctor was a private actor.

Dr. LaPaglia further explained that he conducted a DRE of the Defendant because he was concerned that the Defendant was in danger—not because he intended to assist the police with their investigation. See [Tr. 148 (“The background information that I was given by the officers was that they suspected [the Defendant] had drugs in his rectum. That gave me suspicion enough to think that he was in danger.”)]; [Tr. 143 (stating that after the second attempt at performing a DRE, “I was very certain that [the Defendant] had an object [inside of him] and whether it’s a drug or an object, it needs to come out of the rectum.”)]. Based upon this testimony, the Court concludes that the DRE in this case was not a search within the scope of the Fourth Amendment’s protections because it was conducted by a private actor.

Permalink 12:28:17 am, by fourth, 468 words, 3462 views   English (US)
Categories: General

WV adopts community caretaking doctrine

WV adopts the community caretaking doctrine. Here, the officer encountered a car parked in front of a gate to a dirt road with the flashers on and the engine off. It was reasonable to try to locate the driver. This case arose in the context of a driver’s license suspension proceeding. Ullom v. Miller, 227 W. Va. 1, 705 S.E.2d 111 (2010):

We now believe it is appropriate to join the majority of jurisdictions who recognize the community caretaker doctrine, formally recognizing the expectation in West Virginia that the role of law enforcement personnel is not limited to merely the detection and prevention of criminal activity, but also encompasses a non-investigatory, non-criminal role of police officers to help to ensure the safety and welfare of our citizens. In recognizing this doctrine, however, we are mindful of the important protections of the Fourth Amendment and Article III, Section 6, relating to searches and seizures. In order to balance the caretaking role of police officers with the fundamental protections against unreasonable searches and seizures found in the United States Constitution and the Constitution of West Virginia, we believe it necessary to establish specific requirements for applicability of the community caretaker exception to ensure that the privacy expectations of West Virginia’s citizens are balanced with the immediate safety and welfare needs of motorists or the public in situations where the immediate safety and welfare of citizens is reasonably at issue.

No single set of specific requirements for applicability of the community caretaker exception has been adopted by a majority of those states recognizing the exception. Based upon our review of the requirements established in other states, we believe that the requirements recently adopted by the Supreme Court of South Dakota in State v. Deneui, 2009 SD 99, 775 N.W.2d 221 (S.D. 2009), cert. denied, __ U.S. ___, 130 S. Ct. 2072, 176 L. Ed. 2d 422 (2010), with modification, provide appropriate direction as we endeavor to best satisfy the reasonableness requirements of the Fourth Amendment and Article III, Section 6, and effect a necessary balance between the privacy expectations of West Virginia citizens and the need for police officers to properly execute their community caretaking duties. Accordingly, after due consideration, we now hold that, for an encounter to come within the community caretaker doctrine exception to the warrant requirement, the State must establish the following:

1. Given the totality of the circumstances, a reasonable and prudent police officer would have perceived a need to promptly act in the proper discharge of his or her community caretaker duties;

2. Community caretaking must be the objectively reasonable, independent and substantial justification for the intrusion;

3. The police officer’s action must be apart from the intent to arrest, or the detection, investigation, or acquisition of criminal evidence; and

4. The police officer must be able to articulate specific facts that, taken with rational inferences, reasonably warrant the intrusion.

Permalink 12:10:04 am, by fourth, 282 words, 2915 views   English (US)
Categories: General

FL2: One person who provided drugs from another was not acting as agent of police when asked for them; officers did not know about the other when asking

When the officer asked C.C. for the marijuana he had, the officer did not know that it was in C.D.M.’s possession. Thus, C.C. was not enlisted as an agent of the police. State v. C.D.M., 50 So. 3d 659 (Fla. App. 2d DCA 2010):

Finally, the fact that C.C. testified that he felt obligated to cooperate with Deputy Vinson did not transform him into an agent of the police. In Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the Supreme Court held that, even though a witness may have felt obliged to cooperate, “it is no[t] part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” In holding that the witness was not acting as an agent of the police in that case, even though she may have felt obliged to cooperate, the Court stated that the evidence could only be excluded if “some type of unconstitutional police conduct occurred.” Id. We conclude that Deputy Vinson’s conduct in asking C.C. if he was “willing to voluntarily give” up the marijuana was proper and in no way coercive. See State v. Martissa, 18 So. 3d 49, 52 (Fla. 2d DCA 2009) (“During a traffic stop an officer may ask if a person is in possession of a weapon or drugs.”).

Defendant was on probation with a search condition, so the search of his place was valid. Brown v. State, 307 Ga. App. 99, 704 S.E.2d 227 (2010).*

Defendant’s patdown was justified by a stop based on reasonable suspicion from a radio broadcast of a fellow officer. Thomas v. State, 8 A.3d 1195 (Del. 2010).*

Permalink 12:01:00 am, by fourth, 424 words, 891 views   English (US)
Categories: General

IA: Mistake of law for stop voids search

Officer’s mistake of law denies the state application of a “good faith exception” to a warrantless stop and seizure. The court declines to follow its own federal circuit because that case law is now undercut and other circuits do not agree. State v. Louwrens, 792 N.W.2d 649 (Iowa 2010):

This case, however, presents a different question: May an officer's mistake of law provide probable cause to authorize a traffic stop? We mentioned, but did not decide this question in Lloyd. 701 N.W.2d at 680 n.1. A majority of courts that have considered the issue have concluded a mistake of law cannot provide probable cause to justify a traffic stop. See United States v. McDonald, 453 F.3d 958, 962 (7th Cir. 2006); United States v. DeGasso, 369 F.3d 1139, 1144-45 (10th Cir. 2004); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003); United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000); United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998).

The State, however, urges us to adopt the minority view held by the Eighth Circuit Court of Appeals. That court has concluded “the legal determination of whether probable cause or reasonable suspicion existed for [a] stop is judged by whether the mistake of law was an 'objectively reasonable one.' “ United States v. Washington, 455 F.3d 824, 827 (8th Cir. 2006) (quoting United States v. Smart, 393 F.3d 767, 770 (8th Cir. 2005)).

However, our review of the development of the Eighth Circuit's position does not convince us to follow suit. In Smart, a case in which the officer “made neither a mistake of law nor one of fact,” the Eighth Circuit stated that “in our circuit the distinction between a mistake of law and a mistake of fact is irrelevant to the fourth amendment inquiry.” 393 F.3d at 769, 770 (citing United States v. Sanders, 196 F.3d 910 (8th Cir. 1999)). However, Sanders, the case cited by the court for this proposition, was not analyzed as a “mistake” case and did not discuss the distinction between a mistake of law and mistake of fact for Fourth Amendment purposes. See Sanders, 196 F.3d at 912-13. It was not until later that year that the Eighth Circuit applied the principle announced in Smart in a case actually involving a mistake of law. United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005). It did so without any discussion of the competing view that a mistake of law cannot provide probable cause to justify a traffic stop. In a subsequent decision, the court acknowledged the development of a different rule in other circuits, but did not discuss the rationale supporting that rule. Washington, 455 F.3d at 827 n.1.

11/28/10

Permalink 12:57:53 am, by fourth, 322 words, 565 views   English (US)
Categories: General

CO: DUI generally is serious enough offense to justify an exigent circumstance entry, but state has to show defendant would have been tested

DUI is a sufficiently grave offense that a warrantless entry might be justified. Here, however, it was not because the state could not show that defendant would consent to a taking of his breath or blood to test it. People v. Wehmas, 246 P.3d 642 (Colo. 2010):

Consistent with Welsh [v. Wisconsin], [Illinois v.] McArthur, and Mendez, we conclude that DUI is a sufficiently grave offense to potentially justify a warrantless home entry. In light of McArthur v. Illinois, it was legal error for the county court and district court to conclude otherwise.

As those cases suggest, however, this is not the end of the inquiry. Simply concluding that an underlying offense is grave does not create sufficiently exigent circumstances to justify warrantless entry. See Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (Pa. 1978) (finding warrantless home arrest for murder invalid after balancing the relevant factors and finding insufficient exigent circumstances, cited in Welsh, 466 U.S. at 752). We must proceed to review the circumstances surrounding the warrantless entry into Wehmas's apartment.

. . .

In this case, even before we reach the factors unique to the destruction of evidence, the circumstances suggest that the prosecution has failed to show sufficiently exigent circumstances to justify a warrantless entry. Although there was probable cause that a grave offense had been committed and it was likely that Wehmas was in the apartment, there was no evidence or objectively reasonable belief that he was armed or that he would escape if he was not quickly apprehended. There was also no evidence that obtaining a warrant was problematic because it was late at night; instead, the night-time entry weighs against considering the officers’ actions to be reasonable under the circumstances because of the highly intrusive nature of making the entry. The alleged offense had ended, no weapons were involved, and the defendant had not reemerged from his apartment. Moreover, the prosecution already had evidence of Wehmas’s intoxication based on reports from two eyewitnesses.

Permalink 12:30:24 am, by fourth, 166 words, 479 views   English (US)
Categories: General

LA2: Photograph of place to be searched with address was particular

A photograph of the place to be searched was attached to search warrant which provided the location, and that left no discretion as to the place to be searched. Therefore, the warrant was particular enough. State v. Morrison, 55 So. 3d 856 (La. App. 2d Cir. 2010).*

Defendant who did not let the police into his house in a knock and talk was not seized. He was informed of his options and chose to consent. City of Sheboygan v. Cesar, 2010 WI App 170, 330 Wis. 2d 760, 796 N.W.2d 429 (2010).*

The record supported the finding that defendant’s consent to search his person in a bar was voluntary. Two others had been arrested and were in handcuffs and officers told everybody to stay where they were. Still, it was voluntary. State v. Moran-Soto, 244 P.3d 1261 (Ida. App. November 22, 2010).*

The radio report of a specific battered multicolored vehicle being involved in a shooting justified defendant’s stop. [What were the odds?] United States v. Blair, 2010 U.S. Dist. LEXIS 124861 (W.D. Mo. November 9, 2010).*

Permalink 12:18:34 am, by fourth, 177 words, 538 views   English (US)
Categories: General

Cal.3d: Abandoned cigarette butt could be seized and DNA matched to a murder

Defendant was a suspect in a cold case murder from 1991. After DNA of someone other than the victim was recovered from the crime scene evidence in 2006, the police had renewed interest in him, and they followed him, picking up a discarded cigarette butt from the sidewalk. Seizure of the cigarette butt was valid and did not violate the Fourth Amendment because it was abandoned property. People v. Gallego, 190 Cal. App. 4th 388, 117 Cal. Rptr. 3d 907 (3d Dist. 2010).

Defense counsel was hardly ineffective for not challenging the police recovery of an abandoned video tape of defendant engaged in sex with a minor. Defendant moved out of an apartment and left it behind. His former roommate found it, confronted defendant with its contents, and then turned it over to the police who found the minor and confirmed the events. United States v. Meyer, 2010 U.S. Dist. LEXIS 124344 (W.D. Ark. October 15, 2010).*

Defendant’s motion to suppress was properly granted because Gant did not apply; the automobile exception did. United States v. Arriaza, 2010 U.S. App. LEXIS 24207 (4th Cir. November 24, 2010) (unpublished).*

Permalink 12:04:25 am, by fourth, 263 words, 433 views   English (US)
Categories: General

D.Minn.: Person who answers knock and the door and says the person the police are looking for is not in is showing sufficient familiarity with the premises to likely consent

The person who answers the door and says that the person the police is looking for is not there is showing familiarity with the residence, and here it was enough to show apparent authority to let the police in to look for the person. United States v. Tyvarus, 2010 U.S. Dist. LEXIS 123814 (D. Minn. November 22, 2010)*:

Without asking for permission or consulting anyone else in the residence, the woman agreed to allow the officers to search for Waldrop. The woman exercised the prerogative to admit strangers into the residence without giving the officers any reason to doubt her authority to invite them into the residence. On this record, the Court adopts the magistrate judge’s finding that “the woman acted with authority and familiarity at the door such that it was reasonable for the officers to rely on her authority to consent.” ...

The description given of the bank robbery was sufficiently specific that it supported defendant’s stop because he matched that description. Defendant’s cases are distinguished because they involved more vague descriptions than this one. United States v. Washington, 2010 U.S. Dist. LEXIS 124674 (D. Minn. November 24, 2010), adopting United States v. Washington, 2010 U.S. Dist. LEXIS 124807 (D. Minn. August 24, 2010).*

A sensor placed by the Border Patrol picked up two vehicles traveling on a lonely road known for smuggling. Officers saw the vehicles and they did not stop at any of the houses along the road. The vehicles had out of state plates and the officers then had reasonable suspicion for a stop. United States v. Milligan, 2010 U.S. Dist. LEXIS 124341 (D. Ariz. November 19, 2010).*

11/27/10

Permalink 05:08:23 pm, by fourth, 154 words, 397 views   English (US)
Categories: General

Note re this week's cases

It would seem this week that courts decided more search and seizure cases than any one week I remember. And this week had only three days. It took seven hours today to get caught up, and the cases are already on the website but spread out through Monday. Surprisingly, Lexis sent many cases yesterday and today, but I assume there may be none received Sunday and Monday because of the long weekend.

The page setup of this website would make too many go over to a second page and out of sight, so they are posted for Sunday and Monday. They will appear between 12 and 1 am Eastern Time.

And, there are some really interesting cases already in there involving abandoned DNA (not a search), DUI being exigency for an entry into the home, and medically paralyzing a suspect to conduct a digital rectal examination. If you need one of these now, let me know.

Permalink 04:50:27 pm, by fourth, 607 words, 591 views   English (US)
Categories: General

CA10: A person can live in two places at once for Payton/Steagald purposes

It is possible for somebody to have two residences, and then the court must decide whether Payton or Steagald applies if a third party is involved. Here, the officers had a reasonable belief defendant would be found in the place they entered under Steagald. United States v. Thompson, 402 Fed. Appx. 378 (10th Cir. 2010) (unpublished):

The Payton/Steagald distinction does not lend itself to resolving the situation where a suspect lives in more than one dwelling. Here, for example, the officers had information suggesting that, on the one hand, Thompson lived at 2213 N. Kelham and, on the other, that he lived at 4619 Creek Court. Can officers reasonably believe that a suspect lives at two or more places? The language in Payton suggests the answer is yes. Justice Stevens, writing on behalf of the Court, stated that, “an arrest warrant founded on probable cause carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (emphasis added). The use of the indefinite article “a” before “dwelling” suggests the “dwelling” need not be a specific dwelling. See Bryan A. Garner, Garner’s Modern American Usage (3rd ed. 2009) (“Each of these [indefinite articles] points to a non-specific object, thing, or person that is not distinguished from the other members of a class.”) The members of this class — as suggested by the language in Payton — would be the various dwellings in which the suspect lives. Had the Court contemplated a particular dwelling, that is, had the Court limited the reach of its rule to one dwelling per suspect, then it would have used the definite article “the,” which refers to a particular thing, in this case, a particular dwelling. See id. Given the Court’s choice of the indefinite article in writing “a dwelling,” the Court must have contemplated that a suspect can live in more than one dwelling. See also, e.g., United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996) (“We have found no authority to support [the defendant’s] implicit assumption that a person can have only one residence for Fourth Amendment purposes.”).

We conclude, then, that Payton does not void as “unreasonable” an officer’s belief that a suspect lives in a given dwelling merely because that suspect also “lives” in another. Here, although police may have reasonably believed Thompson lived at 2213 N. Kelham, it was also reasonable for them to believe he lived at 4619 Creek Court. This point is underscored by this court’s gloss on Payton. In Valdez v. McPheters, we stated that “[t]he rule announced in Payton is applicable so long as the suspect ‘possesses common authority over, or some other significant relationship to,’ the residence entered by police.” Valdez v. McPheters, 172 F.3d 1220, 1225 (10th Cir. 1999) (quoting United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996)). We acknowledge the term “significant relationship” lacks ideal utility. At what point, for example, does a suspect’s relationship with a residence become “significant” such that he or she can be said to be living there? This question could flummox law enforcement. We trust, however, that law enforcement will take the plain meaning of the word “significant” — important, notable — and not abuse this admittedly permissive standard. Whether they do so, unfortunately, we must address on a case-by-case basis. In any event, given the totality of the information the officers had in this case, we find that the officers reasonably believed Thompson had a “significant relationship” with the 4619 Creek Court address. Accordingly, under this analysis the officers did not require a search warrant to enter that residence.

Permalink 04:29:18 pm, by fourth, 262 words, 416 views   English (US)
Categories: General

KS: Detention for no apparent reason that produces arrest warrant is not suppressed; warrant intervening circumstance

Defendant was stopped for no apparent reason and his ID was checked, finding a warrant for his arrest. Under established precedent, the warrant was an intervening circumstance justifying the further detention. State v. Moralez, 44 Kan. App. 2d 1078, 242 P.3d 223 (2010) (over a strong dissent):

In summary, we find the facts herein to be difficult to distinguish from the facts of Martin in any meaningful way. In both cases, the officers encountered a citizen with no suspicion of criminal activity. In both cases, the citizen was presumably unlawfully detained for a brief period of time. In both cases, there was nothing to suggest that the officers' ultimate goal in contacting the citizen was to search the person for drugs. In both cases the officers requested the citizen's identification and for no apparent reason decided to run a warrant check. In both cases, the officers detained the citizen until the warrant check was completed. In both cases, the officers discovered an outstanding arrest warrant and searched the citizen incident to the arrest which led to the seizure of evidence of a crime.

In Martin, the court held that the officers' discovery of the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention so as to permit the admission of the evidence. 285 Kan. at 1005. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. ... Based on Jones and Martin, we conclude the district court did not err by denying the motion to suppress the evidence.

Permalink 12:52:33 pm, by fourth, 267 words, 439 views   English (US)
Categories: General

CA3: Just because a householder does not come to the door is not an exigent circumstance

The community caretaking doctrine could not justify a warrantless entry into the plaintiff’s home. The plaintiff had his kids, and his ex had come to the door to pick them up for visitation. He failed or refused to respond to the door or calls to his phone. Officers were called, and they knew of the acrimonious relationship between the plaintiff and his ex. They called for guidance and decided to enter. The entry violated the Fourth Amendment. However, the officers were entitled to qualified immunity. At the time of the officers’ actions, two circuits had arguably extended the community caretaking doctrine to warrantless entries into homes. This Circuit had addressed the issue only in a nonprecedential opinion one month prior to the officers’ actions, and it left unresolved whether a community caretaking exception might justify a warrantless search of a home. Under the circumstances, the officers were not on notice that their conduct was a clear violation of the law, and they acted reasonably in their belief that they could enter the home to check on the homeowner’s daughter. Ray v. Twp. of Warren, 626 F.3d 170 (3d Cir. 2010).*

Detaining defendant 20 minutes for a dog sniff because he was nervous and his story was unusual was unreasonable and without reasonable suspicion, so the motion to suppress is granted. United States v. Richardson, 2010 U.S. Dist. LEXIS 124076 (S.D. Tex. November 23, 2010).*

The court finds the officers’ version of the consent more credible. United States v. Kerner, 2010 U.S. Dist. LEXIS 124179 (E.D. Wis. November 23, 2010), adopting United States v. Kerner, 2010 U.S. Dist. LEXIS 124424 (E.D. Wis. October 22, 2010).*

Permalink 11:06:08 am, by fourth, 276 words, 421 views   English (US)
Categories: General

C.D.Ill.: Consent to search a tractor trailer was without limitation, and panels could be removed

The video of the stop showed that defendant understood English fluently. His consent to search was without limitation, and that meant that the officer could remove panels of the trailer his truck was pulling. United States v. Saucedo, 2010 U.S. Dist. LEXIS 123945 (C.D. Ill. November 3, 2010), adopted United States v. Saucedo, 2010 U.S. Dist. LEXIS 123898 (C.D. Ill. November 22, 2010).*

When a probationer lives with a non-probationer, some cases say that there has to be reasonable suspicion to differentiate the belongings of the two. Here, a backpack belonging to the defendant was with the probationer’s stuff, but the officers had reasonable suspicion as to it. “Officer Silvester needed more than a ‘hunch’ that the backpack was controlled by Black but less than probable cause that it belonged to her. The totality of the circumstances show that Officer Silvester had a reasonable suspicion that the backpack was controlled by Black or jointly controlled by Black and Bolivar.” United States v. Bolivar, 2010 U.S. Dist. LEXIS 123782 (D. Idaho November 20, 2010).*

For safety reasons, defendant’s mother was told to stay in the living room while a protective sweep was done of her house for defendant. This did not mean she was detained for consent to search the house, which the court found. She had apparent authority over the whole house; even his bedroom. United States v. Stovall, 2010 U.S. Dist. LEXIS 124061 (E.D. Ark. November 8, 2010).*

In a forfeiture action, a separate motion to suppress the evidence has to be filed. If it is just in the answer, it may not be dealt with. United States v. $40,000 in United States Currency, 2010 U.S. Dist. LEXIS 123807 (W.D. N.C. November 3, 2010).*

Permalink 10:46:56 am, by fourth, 365 words, 495 views   English (US)
Categories: General

N.D.Ga.: Consent to search a separate house on a family compound was not reasonable; there was a duty to inquire

Officers were on the Green family compound, and they received consent from one person to search another's home. Here, the officers were on notice that others lived in various places and it was not reasonable to get consent from one to search the dwelling of another. "Rodriguez placed some responsibility on the officer to assess the situation he faces critically." United States v. Green, 2010 U.S. Dist. LEXIS 124735 (N.D. Ga. October 6, 2010):

Rodriguez placed some responsibility on the officer to assess the situation he faces critically: “Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.” Rodriguez, 497 U.S. at 188. This duty of inquiry is triggered, for example, when the officer obtains information that is subject to differing interpretations. See United States v. Waller, 426 F.3d 838, 847 (6th Cir. 2005) (“a number of other courts have also recognized an officer’s duty to inquire in ambiguous situations”); United States v. Chun Yen Chiu, 857 F. Supp. 353, 361 (D.N.J. 1993) (“Where police officers are faced with an ambiguous situation, unless further inquiry is made which determines that the property about to be searched is subject to ‘mutual use’ by the person giving consent, it is unlawful to enter without a warrant.”).

In this case, it is undisputed that Mr. Green invited Deputy Davenport to enter his uncle’s apartment. However, it would be unreasonable for “law enforcement agents to believe in every instance that someone who invites them into a home or a room is authorized to do so.” United States v. Rosario, 962 F.2d 733, 738 (7th Cir. 1992). The Rosario court applied the “further inquiry” language from Rodriguez to suggest that, “in the absence of sufficient facts, officers have a duty to seek further information in order to determine whether they may reasonably infer that the inviter has the necessary authority to consent to an entry or search of the premises.” Id. Given the situation he faced, including his knowledge that Mr. Green did not reside in the apartment, Deputy Davenport had a duty to make further inquiry before accepting that invitation.

11/26/10

Permalink 03:22:57 pm, by fourth, 229 words, 789 views   English (US)
Categories: General

VA AG: School officials can search cellphone for evidence of “sexting” or “cyberbullying”

The Virginia AG issues an opinion authorizing school officials to search student belongings and cellphones on reasonable suspicion of a violation of law or a school regulation for “sexting” or “cyberbullying.” VA A.G. Op. 10-150 (November 24, 2010)*:

Accordingly, searches of a student’s belongings--including an examination of the messages found on a cell phone or laptop--are justified if, when the search is made, the teacher or principal has “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” In addition, the subsequent search must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

12 Id. at 342. See also In the Interest of Jane Doe, 887 P.2d 645 (Haw. 1994) (applying the T.L.O. framework and upholding search of a student’s purse).
13 Id; see also Safford Unified Sch. Dist. #1 v. Redding, 129 S. Ct. 2633, 2643 (2009) (finding a strip-search of student by school officials unreasonable and stating that T.L.O.’s mandate that school searches be reasonable in scope requires a specific suspicion that a student is hiding evidence of wrongdoing in his or her underwear “before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts”).

Permalink 02:38:37 pm, by fourth, 15 words, 654 views   English (US)
Categories: General

FPD Search and Seizure Outlines

Permalink 08:29:35 am, by fourth, 326 words, 388 views   English (US)
Categories: General

OH10: Flight after agreeing to talk to officers is RS

Defendant agreed to talk to the officers and then fled. That gave reasonable suspicion. State v. Banks, 2010 Ohio 5714, 2010 Ohio App. LEXIS 4809 (10th Dist. November 23, 2010)*:

[*P44] “Although ‘[a] suspect is “free to leave” a non-seizure interview, *** when he does so by abruptly bolting after having consented to talk, the officers are free to draw the natural conclusions.’” Moyer at P22, quoting State v. Holloway (Sept. 28, 2000), 10th Dist. No. 99AP-1455, 2000 Ohio App. LEXIS 4430. “Headlong flight--wherever it occurs--is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow (2000), 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L. Ed. 2d 570.

[*P45] When appellant bolted from the interview area, and even more so when he reached towards his waistband while running as the officers pursued, the officers were justified in concluding that they had before them specific and articulable facts to support a reasonable suspicion of criminal activity warranting an investigative stop.

After a controlled buy from a hotel room, officers sought a search warrant and determined that they would detain the occupants who left the room when they returned. They were stopped and taken into the room, but officers were directed not to search until the warrant was signed. When they were notified it was, the search commenced. There is no requirement that the search warrant be physically present at the time of the search. State v. Davis, 2010 Ohio 5704, 2010 Ohio App. LEXIS 4797 (5th Dist. November 15, 2010).*

The search of defendant’s car for a weapon after his traffic stop was valid based on his furtive movements, not the search incident doctrine or the automobile exception. State v. Lanier, 2010 Ohio 5765, 2010 Ohio App. LEXIS 4829 (8th Dist. November 24, 2010).*

Seizure of plaintiff’s computers under a valid search warrant and turning them over to the FBI for analysis resulting in loss of the hard drives did not state a claim against the state. Ferguson v. Ohio State Highway Patrol, 2010 Ohio 5691, 2010 Ohio Misc. LEXIS 325 (Court of Claims October 27, 2010).*

Permalink 07:20:33 am, by fourth, 347 words, 598 views   English (US)
Categories: General

DE: Passengers are subject to some scrutiny during a traffic stop

During a traffic stop, passengers are subject to some scrutiny. Asking questions of the passenger here led to finding drugs on him and in the car. Loper v. State, 8 A.3d 1169 (Del. 2010):

Loper’s first claim, that Officer Cancila exceeded the scope of the initial traffic stop by questioning Kennedy, runs as follows: Had Cancila not questioned Loper’s passenger, the police would have never discovered the PCP on Loper’s person or in his car. Because the police had no right to question Kennedy, the evidence ultimately seized as a result of searching Loper should have been suppressed. Loper’s argument fails, because he cannot show that by questioning Kennedy, the police exceeded the scope of the traffic stop or acted unreasonably under the circumstances. The United States Supreme Court has observed that during a routine traffic stop, all passengers are subject to some scrutiny.10 This Court has also held that during a routine traffic stop, the police may question a passenger about his or her identity, and that those questions are not beyond the scope of a reasonable investigation.11 Accordingly, the trial judge properly held that Officer Cancila did not exceed the permissible scope of a routine traffic stop by asking Loper’s passenger for identification and then running a background check.

10 Brendlin v. California, 551 U.S. 249, 257, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) ("[E]ven when the wrongdoing is only bad driving, [a] passenger will expect to be subject to some scrutiny. ...").

11 Mills v. State, 900 A.2d 101 (Table), 2006 WL 1027202, at *2 (Del. 2006) ("[Q]uestions concerning a suspect’s identity are a routine and accepted part [of an investigatory stop].") (quoting Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177, 186, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004)).

CI was identified and made admissions against penal interest that she smoked marijuana with the defendant at his house. That was PC for the search warrant. Lanham v. State, 937 N.E.2d 419 (Ind. App. 2010)* [I suspect that the only reason why the police went after this defendant was selling the joint for $5 to his 14 year old CI in his house.].

Permalink 07:02:07 am, by fourth, 155 words, 659 views   English (US)
Categories: General

E.D.N.C.: "Public safety" exception permitted questions leading to seizure of gun during execution of arrest warrant

Officers entered defendant’s home without a search warrant, but with an arrest warrant so the entry was permissible under Payton. Once inside, unMirandized questions were asked about the location of the gun he would have, and his admissions were valid under the “public safety exception” to Miranda. United States v. Battle, 2010 U.S. Dist. LEXIS 123448 (E.D. N.C. October 27, 2010).*

A dog alert was probable cause for a search warrant. In any event, the good faith exception would save this search. United States v. Herman, 2010 U.S. Dist. LEXIS 123947 (C.D. Ill. November 23, 2010).*

There is reasonable suspicion here based on the fact defendant had a car from a person he did not know on a 2,800 mile test drive to visit a person he could not name, he had no paperwork for the car, and he was on a road for drug couriers. United States v. Velasco-Garcia, 2010 U.S. Dist. LEXIS 124043 (S.D. Tex. November 23, 2010).*

Permalink 06:36:34 am, by fourth, 314 words, 606 views   English (US)
Categories: General

CA10: “[T]here [is] no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment”

Plaintiff claimed that IRS agents executing search warrant stole $2,000 from him between the seizure and turning it in. However, “there was no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment.” Springer v. Albin, 398 Fed. Appx. 427 (10th Cir. 2010)*:

We conclude that there was no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment. “The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was lawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), overruled in part on other grounds by Pearson, 129 S.Ct. at 818.

. . .

Furthermore, neither the Tenth Circuit nor the Supreme Court had case law on point in September 2005 establishing that a theft by federal agents of lawfully seized currency during the execution of a valid search warrant violated the Fourth Amendment. Other circuits, however, had considered a similar issue by September 2005. Those circuits split on the Fourth Amendment issue.

Three of the four cases that had addressed the failure to return lawfully seized property had held that there was no Fourth Amendment violation. In Shaul v. Cherry Valley-Springfield Central School District, 363 F.3d 177, 179 (2d Cir. 2004), a school teacher filed a § 1983 action against school officials for unreasonably searching his classroom and taking certain items. He contended that the failure to return the items was an unreasonable seizure of them. Id. at 187. Because the initial seizure was reasonable, the Second Circuit held that the defendants’ failure to return property did “not, by itself, state a separate Fourth Amendment claim of unreasonable seizure.” Id.

So, theft by an officer during a seizure is not an “unreasonable seizure”? If not, is it then “reasonable”? To just say it sounds idiotic.

11/25/10

Permalink 12:12:01 am, by fourth, 773 words, 593 views   English (US)
Categories: General

CA7: Milwaukee’s “winter rules” permitting city trash collectors to go on the curtilage to get trash so snowplows aren't interfered with permits valid entries on curtilage

The City of Milwaukee’s “winter rules” that allow the city trash collectors to go on the curtilage to get trash so the trash containers will not be left out to interfere with snowplow where the homeowner leaves the containers visible to the collectors creates consent to enter to get the trash. United States v. Simms, 626 F.3d 966 (7th Cir. 2010):

It appears, moreover, that the “winter rules” had the force of law, thus creating an easement to enter the defendant’s property to collect garbage. Milwaukee Code of Ordinances § 79-5(3) makes it “the responsibility of the owners and tenants of every premises where solid waste is collected to provide a clear and unhindered path to all containers. The path shall be a width specified by the commissioner and shall be free of hindrances such as, but not limited to, large debris, vehicles, locked fences, animals, ice or 3 or more inches of snow” (emphasis added).

. . .

We are not prepared to say that a place in which garbage carts or cans are kept can never be part of the curtilage. People who live in cities and have small yards prefer to leave their garbage carts in an alley, if there is one next to their house. If not, they will have to leave the carts in their yard, often in a shed at the edge of the yard; in our case the carts were left next to the segment of the driveway that is inside the fenced yard.

But the fact that the defendant's garbage carts were (we may assume) within the curtilage of his home does not conclude the constitutional analysis. For there is the ordinance, and there is a related issue of apparent consent to the search. Suppose that every Friday the defendant opened his gate, placed his garbage carts in the middle of the driveway just inside the open gate, and by these moves signaled that he wanted the garbage collectors to enter the yard, wheel the garbage carts to the street, empty them, and return them to their place in the driveway. This would show that nothing very private was going on in the yard on garbage-collection day. By leaving the gate open when winter rules were in force, without notice that the garbage collectors were not to enter—a notice they would not be bound to obey because it would violate the ordinance—the defendant allowed a reasonable person to think that nothing private was going on in his yard because he could expect the garbage collectors to enter it and wheel away the carts, consistent with the winter rules of which all homeowners were notified. That would be the natural inference from the circumstances although it is possible that the gate was open only because the snow prevented it from being shut. (But then the defendant must have opened it earlier.)

We conclude that the garbage search was lawful—that it was authorized by an appearance of consent to collect the garbage from the fenced yard under winter rules with the gate open. But there is another Fourth Amendment issue: whether the search of the defendant's car that yielded the gun that provided the basis for his mandatory 15-year sentence as an armed career criminal was permissible.

Police conducting undercover surveillance in preparation for executing the warrant to search the defendant's house saw him drive his car to his house, park it across the street, walk to another car, which had just backed into his driveway, take from the trunk of that car a package that a police officer testified was consistent with the way that he'd seen marijuana packaged before, and carry the package into his house. The police had every reason to think the package contained drugs (as indeed it did); the question is whether they had probable cause to think there was contraband or evidence of crime in the defendant's car as well. The answer is yes. They had reason to believe that he was a drug dealer and used his car in his drug business. Hence the car probably contained money, a gun, or evidence (even if just trace quantities) of illegal drugs, especially since the defendant was driving to a rendezvous with another drug dealer. Cf. United States v. Stotler, 591 F.3d 935, 939-40 (7th Cir. 2010).

Moreover, he was about to be arrested, and jailed indefinitely. His car could not be left unattended indefinitely. Eventually it would have been impounded by the police and subjected to an inventory search. The discovery of the gun was thus inevitable. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); United States v. Stotler, supra, 591 F.3d at 940.

Permalink 12:01:00 am, by fourth, 99 words, 462 views   English (US)
Categories: General

CA6: Visibly overweight and overwide truck was RS for stop

Plaintiff’s truck was properly stopped and detained with reasonable suspicion that it was overloaded and overwidth just by observation by the officer. Reid Mach. Inc. v. Lanzer, 421 Fed. Appx. 497, 2010 FED App. 0719N (6th Cir. 2010) (unpublished).*

CI’s information provided probable cause for search of defendant’s car, so Gant did not apply. United States v. Soto, 2010 U.S. Dist. LEXIS 123213 (E.D. Wis. November 19, 2010).*

As a passenger, defendant lacked standing to contest the search of the vehicle he was in. The officer was credited with the basis for the stop. United States v. Luckey, 402 Fed. Appx. 889 (5th Cir. 2010).*

11/24/10

Permalink 08:15:36 am, by fourth, 434 words, 521 views   English (US)
Categories: General

E.D.Cal.: Patdown by Park Ranger found box which could not be opened under the Fourth Amendment

Defendant was stopped for riding a bicycle on a roadway after dark without a light in Yosemite National Park. The officer had no reasonable suspicion that he was armed, but he asked about weapons, and defendant volunteered that he had a camping knife on him, which is normal in the Park. The officer patted him down and came upon a small hard box in his pocket that had MDMA in it. The box was not subject to “plain feel” under Dickerson and violated the Fourth Amendment. United States v. Arnold, 2010 U.S. Dist. LEXIS 122924 (E.D. Cal. November 3, 2010):

Thus, the salient question is whether, considering the totality of the circumstances in this case, it was reasonable for Ranger Jacobs to believe that the small hard box in Arnold’s pocket could constitute or contain a weapon. Mr. Arnold was stopped for bicycling at night, a crime certainly not reasonably associated with an armed and dangerous perpetrator. Nothing in the record suggests that Mr. Arnold was uncooperative or acted in a threatening manner at any time during the encounter. Ranger Mitrea stood alone with Mr. Arnold, without conducting a Terry frisk, until Ranger Jacobs responded to perform field sobriety tests. Both rangers testified that Mr. Arnold showed minimal signs of intoxication.

The only inclination that Mr. Arnold was armed was his admission that he possessed a camping knife. Ranger Jacobs testified that he believed with respect to weapons, "where there’s one, there’s more". While that may indeed be true in some cases, the facts of this case were such as to suggest the contrary. Possessing a camping knife in a National Park is so common that it cannot in and of itself suggest the likelihood of additional weapons. Mr. Arnold’s volunteering the knife’s existence is not consistent with a simultaneous desire to conceal another weapon. As noted, the nature of the crime here does not suggest the likelihood of an armed perpetrator. Clearly, the facts of this case are a far cry from those involving suspected burglars and carjackers in possession of a knife, gun, and ammunition as in Hartz.

Once the camping knife was recovered, it was not reasonable to believe that the small box in the pocket of a cooperative individual who had shown no signs of aggression was or could contain a weapon. Thus, the Court finds that removal of the box from Arnold’s pocket under these largely innocent circumstances exceeded the allowable scope of a Terry frisk. Ranger Jacobs’s manipulation of the box by removing it from Mr. Arnold’s pocket violated the Fourth Amendment.

Permalink 07:30:23 am, by fourth, 168 words, 651 views   English (US)
Categories: General

MA: Consent to search dorm room was not voluntary

The state did not prove voluntary consent to search defendant’s college dormitory room where officers came to the door and said that they wanted to search the room and filled out a consent to search form. Commonwealth v. Carr, 458 Mass. 295, 936 N.E.2d 883 (2010), aff'g Commonwealth v. Carr, 76 Mass. App. Ct. 41, 918 N.E.2d 847 (2009).

Defendant was stopped because he was acting suspiciously in an area known for burglaries. He was arrested on an outstanding warrant. When in booking, burglary tools and gloves with embedded glass were taken from him. Officers also photographed the sole of his boots, the imprint of which was used to connect him to a burglary. The seizure of the boots to photograph them was not done under any kind of jail inventory policy, and the motion to suppress the photographs should have been granted under the Oregon Constitution. Inevitable discovery also did not apply. State v. Hartman, 238 Ore. App. 582, 243 P.3d 480 (2010)* [Note: I don’t think this case would be followed outside of Oregon].

Permalink 06:51:37 am, by fourth, 440 words, 536 views   English (US)
Categories: General

MA: “There is no ‘firearm exception’ to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip”

An uncorroborated anonymous tip that a man pointed a gun in the air but never fired it was not sufficient to justify a stop and frisk. Commonwealth v. Gomes, 458 Mass. 1017, 937 N.E.2d 13 (2010), aff'g Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 917 N.E.2d 231 (2009):

The Commonwealth’s failure to introduce a recording of the 911 telephone call at the suppression hearing hampered the ability of the parties and the judge properly to address the caller’s reliability. Compare Commonwealth v. Mubdi, 456 Mass. 385, 396-397, 923 N.E.2d 1004 (2010) (where recording of 911 call not played at suppression hearing, court’s assessment of caller’s basis of knowledge and veracity was limited), with Commonwealth v. Depina, 456 Mass. 238, 243-245, 922 N.E.2d 778 (2010) (playing of 911 call allowed court to determine caller’s basis of knowledge and that her statements were reliable as excited utterances). The Commonwealth would be well advised in the future to make reasonable efforts to introduce such evidence.

. . .

The defendant moved to suppress the physical evidence under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. In denying the motion, the judge concluded that the information provided by the dispatch “was not simply that an individual was carrying a firearm, but rather that he was standing on the street, pointing the gun in the air. Such behavior suggested a potential threat to public safety.” We disagree that the evidence justified the stop and frisk of the defendant.

There is no “firearm exception” to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip. See Florida v. J.L., 529 U.S. 266, 272-274, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). This case involves such a tip, as there was no evidence about the 911 caller’s identity or identifiability. See Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 794-795, 917 N.E.2d 231 (2009), and cases cited. See also Florida v. J.L., supra at 270-271. Moreover, there was no evidence of the caller’s basis of knowledge or veracity; no predictions by the caller of facts later confirmed by the police, to show the caller had inside knowledge; and no evidence of corroboration by the police of more than innocent details, i.e., the defendant’s presence near a green Honda, his race, and his gray shirt. See Florida v. J.L., supra at 270-272. Thus, there was no basis to conclude that the 911 caller’s report of possibly criminal behavior was reliable. See id. at 272 (reasonable suspicion requires that tip be reliable “in its assertion of illegality, not just in its tendency to identify a determinate person”). See also Commonwealth v. Gomes, supra at 795-796, and cases cited.

11/23/10

Permalink 07:22:55 am, by fourth, 176 words, 401 views   English (US)
Categories: General

OH12: Admission driver had 8-10 drinks was cause for blood test

Defendant’s admission that he had 8-10 beers and shots and slurred speech was probable cause justification for a blood draw under Schmerber. State v. Palmieri, 2010 Ohio 5667, 2010 Ohio App. LEXIS 4782 (12th Dist. November 22, 2010).*

An officer saw a car parked in a subdivision under construction where there had been repeated thefts from the construction sites. He approached and found steamed up windows and defendant and his minor nephew. The nephew told the officer about sex in the car, but he didn’t want to get his uncle in trouble. The stop was valid, as was the arrest and then the impoundment and inventory of the car. State v. Klose, 2010 Ohio 5674, 2010 Ohio App. LEXIS 4786 (3d Dist. November 22, 2010).*

Defendant drove too fast into an apartment building parking lot, and the police were called. The officer talked to the defendant and smelled alcohol on his breath, and defendant refused to identify himself and became loud. The officer had probable cause to arrest defendant for being under the influence. City of Lakewood v. Crump, 2010 Ohio 5581, 2010 Ohio App. LEXIS 4697 (8th Dist. November 18, 2010).*

Permalink 07:03:49 am, by fourth, 146 words, 478 views   English (US)
Categories: General

FL3 conflicts with FL2 on following Hudson

One Florida appellate district follows Hudson not suppressing a violation of knock-and-announce while recognizing that another does not (Cable v. State, 18 So. 3d 37 (Fla. 2d DCA), review granted, 22 So. 3d 539 (Fla. 2009)), certifying the conflict to the Florida Supreme Court. State v. Fernandez, 50 So. 3d 37 (Fla. App. LEXIS 17683 (Fla. 3d DCA November 17, 2010).*

Officers entered with exigent circumstances to make defendant’s arrest for assault, and then brought him out. The officers wanted to go back in and defendant objected. The victim could not consent under Randolph because defendant already objected. The re-entry was without justification and the observations were suppressed. State v. Driggers, 306 Ga. App. 849,
702 S.E.2d 925 (2010).*

Defendant was on parole, so he had an even lesser expectation of privacy than a probationer. The officers had reasonable suspicion for a home search based on his glassy eyes. United States v. Justiniano, 401 Fed. Appx. 595 (2d Cir. 2010)* (unpublished).

11/22/10

Permalink 01:34:12 pm, by fourth, 78 words, 742 views   English (US)
Categories: General

D.C.Cir.: Rehearing en banc denied 5-4 in Maynard

The D.C. Circuit denied rehearing en banc 5-4 in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), in an order styled United States v. Jones, 08-3034, consolidated with 08-3030 which is Maynard. 625 F.3d 766 (D.C. Cir. November 22, 2010). Jones and Maynard are co-defendants. Hat tip to Courthouse News Service.

Now the conflict in the Circuits is apparent. Which case will SCOTUS take? This one or Pineda-Moreno (posted here and here (on denial of rehearing en banc))?

Permalink 12:36:37 am, by fourth, 368 words, 405 views   English (US)
Categories: General

OH10: Police responded immediately to house of video voyeur of children to protect the evidence, and it was reasonably done because defendant had to be aware he was discovered

Officers had exigent circumstances to remove defendant from his home pending obtaining a search warrant. Officers received a call from the mother of two underage girls who were at defendant’s house with others in the swimming pool, when they discovered a video camera hidden in the bathroom with them visible on the LCD screen. They went right to his house to preserve the crime scene. After he was removed, a search warrant was obtained and the camera and other child pornography was found. The police did not create the exigency; the defendant’s knowledge that the girls discovered the camera was the exigency. State v. Enyart, 2010 Ohio 5623, 2010 Ohio App. LEXIS 4740 (10th Dist. November 18, 2010):

[*P26] Here, as in Jenkins and Chamber, two patrol officers knocked loudly on defendant’s doors and announced “police” before the detectives from the sexual assault squad arrived and interviewed the neighborhood girls. (Tr. 15-16, 140.) The officers, however, did not create the exigent circumstances with their knocking. Having been informed of what the girls related to their mother, the officers knew that, after the girls discovered the video camera, defendant went into the bathroom, shut the door, and inevitably would have realized the girls discovered the camera: someone was aware of his criminal behavior. The information the girls supplied, coupled with the readily destructible nature of the evidence, justified the officers’ entry.

[*P27] As a result, unlike Chamber or Jenkins, where police’s knocking created the exigency by alerting the defendant to the officers’ presence, here the girls’ discovery of the camera, with defendant’s knowledge they had done so, created the likelihood that defendant would try to destroy the recording. As Kaeppner explained, “[i]f the camera was on *** we’re talking about electronic data which is easily erased. It’s readily destructible.” (Tr. 125.) Cf. State v. Bowe (1988), 52 Ohio App.3d 112, 114 (concluding VCRs, cameras and radios were “not of a type easily destroyed, and the record [did] not reflect any indication that the police thought otherwise”); United States v. Bates (C.A.6, 1996), 84 F.3d 790, 796 (determining officers were unreasonable in thinking “fifteen kilograms of powder cocaine could be quickly disposed of by flushing it down the toilet or dumping it down the sink drain”).

Permalink 12:18:55 am, by fourth, 202 words, 768 views   English (US)
Categories: General

IA: Fact registered owner of vehicle is known to have a suspended DL is RS for stop, unless officer knows registered owner not driving

“[A]n officer has reasonable suspicion to initiate an investigatory stop of a vehicle to investigate whether the driver has a valid driver’s license when the officer knows the registered owner of the vehicle has a suspended license, and the officer is unaware of any evidence or circumstances indicating the registered owner is not the driver of the vehicle.” State v. Vance, 790 N.W.2d 775 (Iowa 2010).*

The exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon K.S.A. 22-2501(c) prior to the United States Supreme Court’s decision in Arizona v. Gant under Illinois v. Krull. The statute had previously been held to violate Gant. State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010).*

An apartment complex did not state a Fourth Amendment claim against the city that limited parking around the complex for stadium events. Six tenants decided to move out of the 348 unit complex because of “traffic” issues, but the apartment complex could not assert their Fourth Amendment seizure rights. And, this asserted limitation on use of the property does not amount to a Fourth Amendment seizure anyway. Enclave Arlington Assocs., L.P. v. City of Arlington, 401 Fed. Appx. 936 (5th Cir. 2010) (unpublished).*

Permalink 12:06:44 am, by fourth, 296 words, 448 views   English (US)
Categories: General

AZ: Going into garage to look at car instead of doing "knock and talk" at door was unreasonable

An officer went to defendant’s house to do a knock and talk. Instead of going to the door, he went into the open garage to check out defendant’s car. This violated curtilage and was unreasonable, analyzing a bunch of curtilage cases from around the county. The court found “instructive” United States v. Magana, 512 F.2d 1169 (9th Cir. 1975), where a heroin deal went down in a garage, and that was a waiver of privacy. State v. Blakley, 226 Ariz. 25, 595 Ariz. Adv. Rep. 4, 243 P.3d 628 (2010):

P17 Here, instead of approaching the front door to make contact with any occupants of the residence, Silva walked past the pathway that led directly to the front door and continued walking down the driveway into an area ordinarily not used by visitors. And at the suppression hearing, Silva acknowledged that his original intent when he entered the property was to “knock and talk” to an occupant of the residence, but instead, he decided to investigate the vehicle. Applying Magana’s reasonableness test to the facts of this case, we conclude that in exceeding the boundaries of the area commonly accessed by visitors, with no intent to locate an occupant but, rather, for the purpose of conducting an investigation, Silva’s actions in approaching the vehicle violated Blakley’s reasonable expectation of privacy in that area of his property. Silva’s presence near the vehicle on Blakley’s driveway therefore was unlawful. And, in the absence of a warrant, or an exception to that requirement, the search of the garage that followed also was unlawful.

Defendant was stopped and arrested shortly after threatening to shoot up a bank. His car had been stopped, and a gun case was visible. This was a valid plain view. State v. Barnes, 158 Wn. App. 602, 243 P.3d 165 (2010).*

Permalink 12:01:00 am, by fourth, 309 words, 766 views   English (US)
Categories: General

CA8: GFE saved a state search warrant of flash drive for gambling information that produced child pornography

Iowa police received information that defendant, a casino employee, was running a high stakes poker game at his residence and that he was using his personal computer in the operation. They got a search warrant for his computer and flash drive and opened the flash drive, coming upon child pornography. They closed the flash drive and applied for a new search warrant for child pornography. The court does not even have to decide probable cause because the good faith exception to the warrant requirement saves the search in any event. Under Herring, application of the exclusionary rule is fact specific, and these facts all favor not excluding. United States v. Koch, 625 F.3d 470 (8th Cir. 2010):

Here, the basis for the district court's decision not to suppress the challenged evidence was that the probable cause underlying the original search warrant was still effective at the time the agents viewed the flash drive and thus the warrant was not stale. We need not address that issue, however, because we conclude that the agents had an objective, good faith belief under United States v. Leon that their search was legal. See United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007) (“applicability of the good-faith exception to the exclusionary rule” may be considered before assessing probable cause).

[Note: Applying the good faith exception here is a pointless exercise because there was a warrant to open the flash drive, and it would have survived even the most skeptical analysis. Applying the good faith exception, however, is particularly useful if one is of a mind to expand Herring, which most federal appellate courts are more than willing to do.]

Officers surveilled a drug operation, and they saw defendant put the suspected drugs into his trunk. This was probable cause for his stop and search under the automobile exception. United States v. Aguilera, 625 F.3d 482 (8th Cir. 2010).*

11/21/10

Permalink 10:25:22 am, by fourth, 113 words, 690 views   English (US)
Categories: General

LV R-J: "Pat-down is letdown at airport"

On the front page of today's Las Vegas Review Journal: Pat-down is letdown at airport by Adrienne Packer the "Road Warrior" columnist who tried to get to a "naked scanner" just so she could endure the search to report on it. To her, it wasn't as intrusive as she expected. The concluding paragraphs:

TSA agents clutching some innocent passenger's crotch isn't acceptable, but that is far from what I experienced. I saw no traveler being patted down other than myself.

And I had to work really hard to be physically searched in a respectful manner. Thanks for nothing, TSA.

Update: And even Flightaware.com has a blog: Backlash grows against airport security measures

Permalink 09:05:49 am, by fourth, 221 words, 660 views   English (US)
Categories: General

VA: Defendant's real estate agent letting police in to look around was reasonable where there was no misrepresentation, plain view led to warrant

Defendant listed his residence for sale. He had been suspected of possessing firearms. Officers contacted the real estate agent and used that for access to the house to make a walk through. Guns were seen in a gun case. The defendant waived his expectation of privacy as to that which could be easily seen by permitting the real estate agent to bring people in to look around. This plain view led to a search warrant being issued for the residence. Redmond v. Commonwealth, 57 Va. App. 254, 701 S.E.2d 81 (2010):

We find the analysis of the Lucatero and Ferrari decisions compelling. In this instance, Flagg accepted the offer to enter and view the home at Middle Road when he contacted the real estate agent and indicated interest in the property. There was no evidence Flagg or Clutz made any representation to the realtor regarding their reason for wanting to tour the house. Moreover, the police officers' actions while inside the property did not exceed what one would expect of a prospective purchaser. Flagg and Clutz did not conduct an exhaustive search of the home when they visited it with the realtor. The firearms, ammunition, and pawn ticket all were in the officers' plain view and were readily observable on August 3, 2008. Thus, the officers' actions violated no reasonable expectation of privacy possessed by appellant.

Permalink 08:55:53 am, by fourth, 257 words, 563 views   English (US)
Categories: General

E.D.N.C.: DL checkpoint was valid

Driver’s license checkpoint was valid and not just for “general crime control.” A gun was seen in plain view, and a further search produced drugs. United States v. Waterman, 2010 U.S. Dist. LEXIS 122673 (E.D. N.C. September 21, 2010)*:

Here, a balancing of these three factors clearly weighs in favor of the Government. Regarding the first factor, drivers who are unlicensed or uninsured are in violation of the law and may present a danger to the community. This is certainly a matter of significant public concern. Regarding the second factor, checkpoints such as the one the GPD set up on May 9, 2009 serve both to find and punish such drivers as well as discourage would-be unlawful drivers from driving in the first place. This is not only a sufficient but a substantial advancement of the public's interest in safer roads and drivers. Regarding the third factor, there is nothing in the record to indicate that the GPD officers unreasonably interfered with the freedom of law-abiding motorists who arrived at the checkpoint. All of the officers at the checkpoint were clearly identifiable as such and at least one patrol car had its blue lights flashing. The checkpoint was clearly visible to approaching motorists from at least 200 feet away. Additionally, Officer Roberson testified that he typically asks drivers only for their license so as to not hold them up unnecessarily. Only in cases such as Defendant's, when additional suspicious activity resulted in further investigation, were motorists held up more than briefly.

[Note: Drug interdiction officers were also at the checkpoint.]

Permalink 08:42:58 am, by fourth, 310 words, 419 views   English (US)
Categories: General

IL: Car stopped at night on shoulder of road for ten minutes was subject to a community caretaking stop

A car was stopped at night on the shoulder of the road along the Mississippi River. It had been there for about ten minutes when the officer stopped to inquire. The driver rolled down the window and said he was waiting for a friend. Even assuming that the use of lights made this a seizure, it was reasonable under the community caretaking doctrine to see if any aid was required. The driver was found under the influence. People v. McDonough, 239 Ill. 2d 260, 940 N.E.2d 1100 (2010), rev'g 395 Ill. App. 3d 194, 917 N.E.2d 590, 334 Ill. Dec. 764:

Second, Brunnworth’s assumed seizure of defendant was reasonable because it was undertaken to protect public safety. Based on the objective and specific facts of record, it was reasonable for Brunnworth to approach defendant’s vehicle to offer any aid required under the circumstances. The public has a substantial interest in ensuring that police offer assistance to motorists who may be stranded on the side of a highway, especially after dark and in areas where assistance may not be close at hand.

Two guys that were likely faking raking the yard of a drug house that rode in another vehicle in tandem with a probable drug delivery were subject to arrest on probable cause. “[T]he existence of possible innocent explanations for the individual circumstances or even for the totality of the circumstances does not necessarily negate probable cause.” People v. Rodriguez-Chavez, 405 Ill. App. 3d 872, 938 N.E.2d 623, 345 Ill. Dec. 184 (2010).*

Defendant was stopped for a window tint violation, and he promptly consented to the search of his car. The stop was not prolonged by the question considering that the officer was handing back the paperwork as he asked the question. United States v. Stokes, 2010 U.S. Dist. LEXIS 122501 (M.D. Fla. October 27, 2010) [Note: The court does not inquire whether the defendant would feel free to leave.]

11/20/10

Permalink 01:37:03 pm, by fourth, 201 words, 505 views   English (US)
Categories: General

N.D.Cal.: Police view of what computer tech saw did not expand valid private search

Defendant took his computer in for repair to a CompUSA store in 2005, and the repair person found child pornography and called the police. The police came and the repair tech showed the pictures. The computer was seized and a search warrant obtained for it. The police search prior to the warrant did not exceed the scope of the private search under Walter and Jacobsen. The police later came to arrest the defendant, and his wife, who was seeking a divorce from him, consented to a search of his home office which she had equal access to. United States v. Tosti, 2010 U.S. Dist. LEXIS 122168 (N.D. Cal. November 1, 2010).*

The CI’s information was subjected to efforts to corroborate and he was brought before the issuing magistrate. His information was sufficient for probable cause. In any event, the good faith exception would save the search. United States v. Brown, 2010 U.S. Dist. LEXIS 122057 (N.D. Ill. November 17, 2010).*

Officers had an arrest warrant for one of two people living in the residence. They did a valid protective sweep to make sure they were safe on entry, and drugs in plain view were validly seized. McKibben v. State, 46 So. 3d 1224 (Fla. App. 1st DCA 2010).*

Permalink 03:43:03 am, by fourth, 213 words, 700 views   English (US)
Categories: General

NYT: SCOTUS in decline in quality of work

From the NYT: Justices Are Long on Words but Short on Guidance by Adam Liptak:

In June, the Supreme Court issued a decision on the privacy rights of a police officer whose sexually explicit text messages had been reviewed by his employer. Ever since, lower court judges have struggled to figure out what the decision means.

The case “touches issues of far-reaching significance,” Justice Anthony M. Kennedy wrote. Then he explained why the court would decide none of them. A definitive ruling should be avoided, he said, because “it might have implications for future cases that cannot be predicted.”

Justice Antonin Scalia went along with the decision, but he blasted his colleagues for “issuing opaque opinions.”

A month later, Judge Frank M. Hull of the federal appeals court in Atlanta complained that the privacy decision featured “a marked lack of clarity,” and was almost aggressively unhelpful to judges and lawyers.

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.

Permalink 12:02:06 am, by fourth, 148 words, 393 views   English (US)
Categories: General

N.D.Va.: Bankruptcy trustee can consent to search of bankrupt's property

Once the defendant files his company for bankruptcy, he loses any reasonable expectation of privacy in the records of the business to the trustee who can then consent to search. United States v. Pavlock, 2010 U.S. Dist. LEXIS 120767 (N.D. W.Va. October 26, 2010).*

Defendant had a package shipped to him with drugs in it, and the bus company opened it. They called the police, and the officer opened the package, too, and the search was invalid because the officer’s search exceeded the private search. State v. Rivera, 2010 NMSC 46, 148 N.M. 659, 241 P.3d 1099 (2010), revg State v. Rivera, 2009 NMCA 49, 146 N.M. 194, 207 P.3d 1171 (Ct. App. 2009).

Officers found out about a warrant on defendant, and he was arrested on that warrant and subjected to a search incident that produced marijuana. The search incident was valid, and the trial court erred in suppressing. State v. Edwards, 307 Ga. App. 267, 704 S.E.2d 816 (2010).*

11/19/10

Permalink 02:46:32 pm, by fourth, 142 words, 5216 views   English (US)
Categories: General

CA6: Transferring suitcase of drugs to co-conspirator's car was waiver of REP

As a part of a drug conspiracy, defendant transferred a suitcase from one car to a co-conspirator’s car. He lost any reasonable expectation of privacy in the suitcase by transferring it to another car and out of his control. United States v. Ocampo, 402 Fed. Appx. 90, 2010 FED App. 0701N (6th Cir. 2010) (unpublished).*

The informant’s information was detailed and specific, and it was corroborated by a phone call with the defendant the police were listening in on. State v. Butler, 2010 Tenn. Crim. App. LEXIS 951 (November 12, 2010).*

A state search warrant for a stolen birth certificate was issued and served. Officers opened a folded document that appeared to be a birth certificate, but it was a death certificate that turned out to be evidence of insurance fraud. It was lawfully seized. United States v. Jenkins, 2010 U.S. Dist. LEXIS 121358 (S.D. N.Y. November 9, 2010).*

Permalink 01:14:08 pm, by fourth, 373 words, 541 views   English (US)
Categories: General

CA9: Police had no exigent circumstances for entry into house where gun was fired where there was no indication anyone inside was injured

Defendant discharged a gun in his house, and he was in custody. The police had no reason to believe there was anyone else in the house, let alone injured in the house, so the suppression order was affirmed. United States v. Espinoza, 403 Fed. Appx. 239 (9th Cir. 2010) (unpublished):

The government's argument is not supported by the record. At the time of the entry into Espinoza's house, Espinoza was in custody and detained in the back of a police car. Neighbors had reported that Espinoza lived alone, and no one reported seeing or hearing anyone besides Espinoza inside the house. When the police arrived, they did not see anyone enter the house or hear any other voices coming from inside. In short, there were no facts upon which an officer could base a reasonable belief that an emergency existed after Espinoza was in custody. See United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993) (holding that warrantless search of a shooting suspect's tent was unreasonable because suspect was in custody and there was no actual ongoing threat despite the recent discharge of a firearm).

The Supreme Court stated in Michigan v. Fisher that officers do not require “ironclad proof of 'a likely serious, life-threatening' injury to invoke the emergency aid exception.” 130 S. Ct. 546, 549, 175 L. Ed. 2d 410 (2009). There, the police encountered a crazed, bleeding man barricaded inside his house throwing objects and shouting obscenities at the police. Id. at 547. The Court ruled that under those circumstances, even though it was doubtful that the man was seriously injured, a reasonable officer could have believed that the man or someone else inside might have needed immediate medical attention or faced imminent harm. Id. at 548-49. We do not read that fact-specific opinion to hold broadly that warrantless entry into a home is always justified where the police cannot confirm that there are no injured victims inside a house. We recognize the need for police officers to investigate and respond to credible threats of injury. Nothing in Michigan v. Fisher, however, indicates that the mere discharge of a firearm inside a house vitiates the protections of the Fourth Amendment when the shooting suspect is in custody and there are no circumstances suggesting that anyone else was present, much less injured.

Permalink 10:42:06 am, by fourth, 397 words, 500 views   English (US)
Categories: General

N.D.Ill.: Caregiver for disabled child found to have apparent authority to consent

Defendant’s niece was the caregiver to defendant’s disabled son. When the police got there, they asked questions about her control over the premises, and they concluded from her answers that she was one with actual and apparent authority to consent and full access to all parts of the house. When she testified at the suppression hearing, she backed off some things and seemed like she was trying to mitigate her consent. The court concludes that she was not credible. United States v. Garcia, 2010 U.S. Dist. LEXIS 121111 (N.D. Ill. November 16, 2010)* [I don't like this outcome. Freedom to go through the house as a caregiver simply cannot equate with apparent authority to let the police in to consent. What about the "cleaning lady"?]

There was no reasonable expectation of privacy in a laundry room in an apartment building common area. While there was a sign that the door was to remain locked, it wasn’t [not that that would be determinative anyway]. Anybody could come and go. United States v. Cureton, 2010 U.S. Dist. LEXIS 120911 (S.D. Ill. November 16, 2010).*

Defendant’s laptop and cameras were searched at a secondary inspection point at Lewiston NY after defendant, a German national with a permanent resident card, traveled to Niagara Falls for one night from Brooklyn knowing no one in Canada. When he was sent over for secondary inspection, there was no reason to believe defendant had child pornography on his computer. It is normal to look at the pictures on cameras, and those pictures were of children in suggestive poses. United States v. Rogozin, 2010 U.S. Dist. LEXIS 121162 (W.D. N.Y. November 16, 2010)*:

I need not decide whether or not the search of the laptop computer can be considered “routine”, because even if it was not, defendant's failure to maintain eye contact during the initial interview, coupled with his questionable itinerary (spending only one night in the area after driving from Brooklyn), were sufficient to create reasonable suspicion in the mind of inspector Janiszeski (Irving, supra), which would justify examining the laptop during the secondary inspection.

[People don't pay attention to these things, but U.S. and Canadian Customs share a database, and they know when a car crosses over into Canada. You lie about the length of your stay, and they will detain you for more questioning. They also know every past crossing your car made.]

11/18/10

Permalink 12:22:39 am, by fourth, 589 words, 858 views   English (US)
Categories: General

IL: State constitution recognizes privacy in bank records

Illinois holds that there is a state constitutional right of privacy in bank records, deciding that the state constitution is not interpreted in lockstep with the Fourth Amendment, and Miller would not be followed. People v. Nesbitt, 405 Ill. App. 3d 823, 938 N.E.2d 600, 345 Ill. Dec. 161 (2010):

Further, as the privacy clause of our state constitution expands upon the protections offered by the federal constitution, it also expands upon the rights guaranteed by our own search and seizure provision. The court in Caballes
noted that our constitution's privacy clause provides protection in addition to its search and seizure clause and that it is broadly written, with no definition limiting the types of privacy intended to be protected. Caballes, 221 Ill. 2d at 317. Moreover, the court noted that, when the 1970 constitution was adopted, the privacy clause was added for the purpose of creating an additional right applicable to situations not covered by the search and seizure provision. Caballes, 221 Ill. 2d at 318-19. Therefore, while the two may overlap, whether a search or seizure violates the privacy clause of article I, section 6, is an inquiry separate and apart from whether it violates that article's search and seizure clause.

Having clarified the distinction between our constitution’s privacy and search and seizure provisions, it is clear that the privacy clause of the Illinois Constitution protects an individual’s bank records. We disagree with the State that the privacy clause protects electronic and data entry records but not “traditional” records. Preliminarily, we note that, in today’s society, banking records and electronic records are not mutually exclusive. Moreover, the court in Caballes, in interpreting the privacy clause and considering the scope of its protection, drew no distinction between the various forms that private records may take, recognizing instead that “[t]he privacy clause is also implicated if, in the course of a criminal investigation, the state seeks access to medical or financial records that are within the scope of the protections of article I, section 6.” (Emphasis added.) Caballes, 221 Ill. 2d at 330. The court further noted its prior decision in In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 604 N.E.2d 929, 178 Ill. Dec. 406 (1992), where it recognized protection for individual privacy rights in “books and records” and where it held that it is reasonable for an individual to expect that his or her “private records” will not be exposed to public view or that his or her personal characteristics will not be scrutinized absent a valid reason. Caballes, 221 Ill. 2d at 320-21, 330, citing Will County Grand Jury, 152 Ill. 2d at 391-92, 396.

. . .

The State urges us to decide differently, noting that our supreme court has not explicitly weighed in on Miller’s applicability to our state constitution’s privacy provision. However, as previously mentioned, our supreme court has cited Jackson with approval. In addition, this court, in People v. DeLaire, 240 Ill. App. 3d 1012, 610 N.E.2d 1277, 183 Ill. Dec. 33 (1993), cited Will County Grand Jury, 152 Ill. 2d at 390, for the proposition that the Illinois Constitution exceeds the federal constitution’s privacy guarantees. DeLaire, 240 Ill. App. 3d at 1019. Further, we cited with approval Jackson’s conclusions that the Illinois Constitution’s privacy clause extends protection to bank records and that, because our state constitution provides greater protection for bank records than does the federal constitution, Miller does not control. DeLaire, 240 Ill. App. 3d at 1020. We see no compelling reason to depart from this line of reasoning. Accordingly, we reject the State’s argument that there is no right to privacy in bank records under article I, section 6, of the Illinois Constitution.

Permalink 12:14:04 am, by fourth, 411 words, 568 views   English (US)
Categories: General

OH2: Detained shoplifter did not have to be Mirandized before being asked for consent

Defendant was detained for shoplifting by a store’s loss prevention officer, and the police were called. When the officer arrived, he asked for consent to search the car for other stolen stuff. Defendant then admitted that he had drugs in the car. The admission alone was probable cause, and Miranda warnings were not required before asking for consent. State v. Severt, 2010 Ohio 5389, 2010 Ohio App. LEXIS 4539 (2d Dist. November 5, 2010)*:

[*P47] Initially, we note that a police officer’s request to a defendant for consent to search his vehicle does not constitute an interrogation. State v. Carver, Montgomery App. No. 21328, 2008 Ohio 4631. Thus, Miranda warnings were not necessary before the request to search was made. We are not persuaded that Officer Young’s response to Severt’s question that he wanted to search the vehicle in order to check for stolen merchandise and/or other illegal items was a statement designed to elicit an incriminating response from Severt regarding the contents of his vehicle.

[*P48] Moreover, Severt’s admission regarding the presence of contraband in his vehicle made immediately after being asked for consent supplied Officer Young with probable cause to search the vehicle. Probable cause has been defined as a “fair probability” that criminal activity is afoot. State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640. In the instant case, Severt’s statement that “there was some illegal items in the car,” gave Officer Young the necessary probable cause to search the vehicle for evidence of a crime. Thus, the trial court erred when it sustained Severt’s motion to suppress.

Defendant was stopped for speeding, and the officer talked to him through the window. When the defendant couldn’t produce a driver’s license, the officer directed him out of the car. Defendant was reaching for his right pocket repeatedly even when the officer told him not to. This was reasonable suspicion for a frisk for weapons. State v. Winston, 2010 Ohio 5381. 2010 Ohio App. LEXIS 4540 (2d Dist. November 5, 2010).*

Defendant was stopped for speeding, and the officer noted that he was excessively nervous during the stop. He related travel plans to a distant mall when gas was $4 a gallon, and it was a place of narcotics sales. Consented to the search of his car. Moreover, defendant was placed in the patrol car and told to hit a button to tell the officer to stop the search, an option he did not exercise. Vasquez v. State, 324 S.W.3d 912 (Tex. App.–-Houston (14th Dist.) 2010).*

11/17/10

Permalink 09:27:24 pm, by fourth, 143 words, 456 views   English (US)
Categories: General

WaPo: "TSA agent punched in chest by passenger"

WashingtonPost.com this afternoon: TSA agent punched in chest by passenger by Ed O'Keefe, allegedly playfully, but he was arrested for battery:

A passenger was arrested Tuesday for punching a Transportation Security Administration officer in the chest after passing through a body-imaging machine at Indianapolis International Airport, police said.

According to police, John A. Christina, 51, admitted to punching the officer after passing through the machine and asking the officer about increased security procedures. The officer replied that he does not normally work in Indianapolis and could not answer the question.

Christina then punched the officer in the chest, police said. The officer, who is normally assigned to the Dayton, Ohio, airport, asked Christina why he punched him.

"I was only kidding with you," Christina replied.

Other TSA agents and passengers witnessed the incident, police said, and Christina was arrested and charged with battery.

Permalink 09:07:05 am, by fourth, 164 words, 401 views   English (US)
Categories: General

VA: Corroborated tip that defendant had warrants was enough to stop him

A tip that the defendant was wanted and was at a particular location with a car was sufficient for a stop when defendant was surveilled, got into the car in the driveway, was followed, and the officer checked and there was, in fact, warrants for the defendant. That is certainly cause for a stop. Sidney v. Commonwealth, 2009 Va. App. LEXIS 600 (August 19, 2009).*

Odor of burnt marijuana in the car was probable cause for its search. [Also, defendant’s reverse 404(b) argument that a prior owner of the car had a bunch of cocaine on him in the car was not relevant because it didn’t have any effect on whether he had marijuana on the day in question.] United States v. Ushery, 400 Fed. Appx. 674 (3d Cir. 2010) (unpublished).*

Defendant’s handing a joint to the officer was probable cause to believe that there was more marijuana in the car. Probable cause is not certainty. United States v. Conerly, 2010 U.S. Dist. LEXIS 120410 (E.D. Mich. October 8, 2010).*

Permalink 08:33:22 am, by fourth, 215 words, 469 views   English (US)
Categories: General

E.D.Va.: CIA can search its employees' office computers

A CIA lawyer employee has no claim that the CIA searched and monitored his government issued computer as a part of maintaining his security clearance. Ciralsky v. CIA, 2010 U.S. Dist. LEXIS 120617 (E.D. Va. November 15, 2010):

Defendants are correct that the Fourth Amendment and FISA claims are far too general and do not satisfy civil pleading standards. Ciralsky has not alleged anything other than broad, conclusory statements about a search conducted by unknown officials. An equally important issue, which neither the defendants nor plaintiffs address, is that even if the allegations were more specific, the Fourth Amendment claim would not be legally viable. The Supreme Court, in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), found that a police department did not violate an employee’s Fourth Amendment rights when it monitored the employee's text messages on a government-issued pager because “the search was motivated by a legitimate work-related purpose.” Id. at 2633. Ciralsky alleges that the CIA monitored his employer-provided computer to determine whether to entrust him with access to national security information. As in Quon, the CIA search had a legitimate, work-related purpose and involved a computer that it provided, not Ciralsky’s personal computer. Therefore, Ciralsky does not state a valid Fourth Amendment claim.

This isn't even close. Talk about a national security exception ....

Permalink 05:48:37 am, by fourth, 704 words, 697 views   English (US)
Categories: General

Observations on Fourth Amendment and the news

The way I keep up with news about the Fourth Amendment is I have a stored Google-search that sends me stuff. I get things from newspapers, blogs, and websites, from the left and the right, sometimes extreme. I scan it all, but seldom post anything unless it has value (at least in my judgment) to the readers of this site.

This site went online in February 2003. Since then, without a doubt, the one topic of greatest interest with more Internet activity than anything else is the TSA's desire to grope and frisk every airline passenger in America in the name of Homeland Security. This is just in the last three weeks or so, likely because it hits home to all those who fly, and I do at least one round trip every two weeks. I have encountered two full body scans: CLE two years ago and DCA this fall.

The outrage of everybody seems to be rising over this issue.

What little outrage there was over the USA PATRIOT Act was spread out over years, and it took years for people to realize that Congress had sold out their rights. Then came the GPS monitoring of movement of people, which has only stirred people up this year. Go back to this post from August about United States v. Pineda-Moreno, the Ninth Circuit’s GPS case: Media discovers August 27th that Pineda-Moreno was decided January 11th. This was a result of Chief Judge Kozinski’s biting dissent on denial of rehearing en banc issued in August that underscored the class distinctions underlying the Ninth Circuit’s rationale. Only then did the intrepid press discover what the court held seven months earlier.

One result of shrinking newspaper budgets is that most reporters don’t cover the news anymore. They seem to read the internet for stories to regurgitate. You have to go to the legal news to see what’s going on in the law. Plenty of us are doing it in our own ways because we are actually reading the cases and not just linking to news stories.

Maybe TSA’s recent actions will crystallize public opinion to again support the Fourth Amendment and notions of individual privacy. When it is a criminal involved, citizens are less likely to care. But, when you are forced to endure a frisk the same as being checked into a jail on a misdemeanor or suspected of having a weapon just to fly around the country ....

Sometimes I’m just stunned. What have we come to in this country? The terrorists have won, thanks to TSA’s mindset. Our liberties have been curtailed by actions of people outside the country that the government feels compelled to respond to. Like the boiling frog, our rights get a little narrower everyday, and few people are noticing it.

But, can you really blame today’s TSA? Didn’t the passage of the USA PATRIOT Act prove that Americans can be bullied about by the government in the name of Homeland Security?

Just follow Secretary Napolitano’s advice: Don’t want to be frisked? Well, drive instead of fly. How does that change our way of life? I can almost hear Mr. Rogers saying “Can you say ‘police state’?” We will never get over 9/11 because the government is going to be reminding us everyday in its actions.

Twenty-one years ago, Judge Kozinski wrote:

Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.

United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989). That quote has been on the sidebar here since this website started. Just search "Kozinski" on this website for his colorful dissents. Pineda-Moreno is here.

Update: A friend sent my Penn and Tenner's Penn Julliette's account of his grope-frisk at the Las Vagas airport. See also The Hill: GOP lawmaker: Full-body scanners violate Fourth Amendment by Elise Viebeck. WSJ blog: All-Seeing Airport Scanners Sparking Litigation and Protests, by Nathan Koppel. CNN Opinion: Body scanners, pat-downs violate law and privacy by Marc Rotenberg. There is just too much to post.

11/16/10

Permalink 02:25:19 pm, by fourth, 112 words, 1119 views   English (US)
Categories: General

Wired.com: "100 Naked Citizens: 100 Leaked Body Scans"

On Wired.com today: 100 Naked Citizens: 100 Leaked Body Scans from U.S. Marshals with courthouse scans, no less.

At the heart of the controversy over “body scanners” is a promise: The images of our naked bodies will never be public. U.S. Marshals in a Florida Federal courthouse saved 35,000 images on their scanner. These are those images.

A Gizmodo investigation has revealed 100 of the photographs saved by the Gen 2 millimeter wave scanner from Brijot Imaging Systems, Inc., obtained by a FOIA request after it was recently revealed that U.S. Marshals operating the machine in the Orlando, Florida courthouse had improperly-perhaps illegally-saved images of the scans of public servants and private citizens.

Permalink 04:17:58 am, by fourth, 364 words, 435 views   English (US)
Categories: General

IA: SW did not permit entry into separate rented bedroom in the house; renter had his own REP

A search warrant for a house did not permit entry into a separate rented room within because the occupant of that room had his own expectation of privacy. State v. Fleming, 790 N.W.2d 560 (Iowa 2010):

We reject the rationale behind the community-living exception. We must consider society’s generally recognized and permitted expectations about privacy with respect to roommates living together in a single-family home. “Today it is not unusual to see a group of unrelated single persons living together and sharing expenses.” Ames Rental Prop. Ass’n v. City of Ames, 736 N.W.2d 255, 266 (Iowa 2007) (Wiggins, J., dissenting).2 We do not believe that when individuals decide on this type of living arrangement, they believe they are giving up the right to privacy in their personal space. Generally, when single, unrelated persons live together in a house, the kitchen, living room, bathroom, hallways and entryways are communal space, but the individual bedrooms remain private. As a social norm, this is fairly well established; thus, many of these individuals probably do not feel the need to clearly delineate their personal space with locks or signs. We find a reasonable expectation of privacy in an individual room rented within a single-family house.

2 At the time of the 2000 census, over 135,000 Iowans were living with nonrelatives. See Bureau of the Census, U.S. Dep’t of Commerce, Profile of General Demographic Characteristics for Iowa: 2000 (2001), available at http://www.census.gov/prod/2002pubs/c2kprof00-ia.pdf. A recent study also found that 12% of young adults age 18 to 34 have acquired a roommate because of recent economic conditions. Wendy Wang & Rich Morin, Pew Research Center, Home for the Holidays ... and Every Other Day (Nov. 24, 2009), available at http://pewsocialtrends.org/pubs/748/recession-brings-many-young-adults-back-to-the-nest.

Fleming has demonstrated a legitimate expectation of privacy in his bedroom. The testimony shows Fleming rented a room within Nearman’s house for $375 a month. He was not related to Nearman and testified that he had exclusive possession and control of his room. There is no indication he gave Nearman access to his private bedroom. We hold Fleming has demonstrated a reasonable expectation of privacy in his bedroom. Therefore, a warrant was required to enter Fleming’s bedroom.

Permalink 04:00:01 am, by fourth, 166 words, 396 views   English (US)
Categories: General

TX1: State showed valid inventory because vehicle was unregistered and uninsured

Defendant’s vehicle was properly impounded and inventoried because it was being driven without proper registration and proof of insurance. Also, there was no one to whom the vehicle could be released. The state has the burden of proving a valid inventory, and they did so. Moskey v. State, 333 S.W.3d 696 (Tex. App. – Houston (1st Dist.) 2010).*

Defendant’s IAC claim fails as to his search issue, too. He had the burden of showing something that the search warrant was improper, and he put on nothing at the hearing. Hanebutt v. State, 2010 Tenn. Crim. App. LEXIS 938 (November 9, 2010).*

The police received a 911 call from a woman who gave her first name and number complaining that the defendant offered marijuana for sex and described his car and that he had a gun and she felt threatened. When the police pulled up on the car matching the description, defendant fled. There was reasonable suspicion for the stop. United States v. Hairston, 402 Fed. Appx. 84, 2010 FED App. 0700N (6th Cir. 2010) (unpublished).*

Permalink 03:32:58 am, by fourth, 531 words, 3742 views   English (US)
Categories: General

SCOTUS cert. grant, another exclusionary rule case on identity evidence from an illegal stop

Tolentino v. New York, 09-11556, cert. granted November 15, 2010. SCOTUSBlog is here. The opinion below is People v. Tolentino, 2010 NY Slip Op 2643, 14 N.Y.3d 382, 926 N.E.2d 1212, 900 N.Y.S.2d 708 (2010), posted here back on April 1. From the New York Court of Appeals decision:

As the Farias-Gonzalez court pointed out, the policy rationale of the exclusionary rule would not be served by its application to identity-related evidence. The social costs of excluding such evidence are great: courts and the government are entitled to know who defendants are, since permitting defendants to hide their identity would undermine the administration of the criminal justice system and essentially allow suppression of the court's jurisdiction. On the other side of the equation, there are few deterrence benefits. The Constitution does not prohibit the government from requiring a person to identify himself to a police officer. In addition,

"even if a defendant in a criminal prosecution successfully suppresses all evidence of his identity and the charges are dropped, the Government can collect new, admissible evidence of identity and reindict him. This is so because identity-related evidence is not unique evidence that, once suppressed, cannot be obtained by other means" (Farias-Gonzalez, 556 F3d at 1188-1189 [citation omitted]).

As a result, "[t]he application of the exclusionary rule to identity-related evidence will have a minimal deterrence benefit, as its true effect will often be merely to postpone a criminal prosecution" (id. at 1189).

Nor do we believe that "[t]oday's opinion [will] give[ ] law enforcement an incentive to illegally stop, detain, and search anyone for the sole purpose of discovering the person's identity and determining if it matches any government records accessible by the police" (dissenting op at 390). Police are already deterred from conducting illegal car stops because evidence recovered in the course of an illegal stop remains subject to the exclusionary rule.

While the Supreme Court has held that fingerprint evidence—evidence the dissent describes as "paradigmatic identity evidence" (dissenting op at 389)—may be subject to the exclusionary rule (Davis v Mississippi, 394 US 721, 724 [1969]), Davis, as well as Hayes v Florida (470 US 811, 815 [1985]), is distinguishable from this case in two ways. First, the defendants in those cases were illegally stopped for the purpose of obtaining evidence—fingerprints—that would connect the defendants to crimes under investigation. The "identity evidence" was not preexisting. Second, the fingerprints were used, not to establish the identities of the individuals apprehended by the police and subject to the jurisdiction of the court, but to connect those individuals' fingerprints to latent prints recovered from the crime scene. The evidence established defendants' "identities" as the perpetrators, but not their "identities" in the sense relevant here. Our decision today would not alter the outcome of those cases. We merely hold that a defendant may not invoke the fruit-of-the-poisonous-tree doctrine when the only link between improper police activity and the disputed evidence is that the police learned the defendant's name.

The cert grant here was a surprise to both me and SCOTUSBlog, which has nothing yet on the case.

Update: I was thinking about this last night, and I now think that this is one of those cases where they took it just to further limit the exclusionary rule.

11/15/10

Permalink 03:55:17 pm, by fourth, 81 words, 665 views   English (US)
Categories: General

CNN: "TSA: Despite objections, all passengers must be screened"--Updated

CNN.com: TSA: Despite objections, all passengers must be screened.

Go to YouTube.com and search "TSA searches."

Update: Humorist Dave Barry And The TSA going up at 7 pm EST ("Host Melissa Block talks to writer Dave Barry about his unpleasant airport experience under the new security system that examines passengers electronically. He was singled out for a pat-down after authorities told him he had a 'blurry groin' — meaning the detector was unable to get a clear picture of his body.")

Permalink 12:33:34 am, by fourth, 341 words, 1023 views   English (US)
Categories: General

PA: Considering extrinsic evidence outside of "four corners rule" violates Fourth Amendment and state law

The suppression court had the discretion to revisit the grant of the suppression order within thirty days, but it violated state law when it considered extrinsic evidence outside of the “four corners rule” to validate the search. Here, the unanswered question was where was a bag of trash: inside the garage or outside? The affidavit did not answer that. Commonwealth v. James, 2010 PA Super 203, 12 A.3d 388 (2010):

We find that the trial court violated the four corners rule by considering extrinsic evidence that was not contained in the affidavit of probable cause to determine the validity of the search warrant. Appellant was not challenging the trash pull itself, but rather the existence of probable cause on the face of the affidavit. Thus, the question for the trial court was whether sufficient probable cause existed within the four corners of the affidavit to support the magistrate’s decision to issue the search warrant. See Pa.R.Crim.P. 203(D); Coleman, supra. Pa.R.Crim.P. 203(D) prohibits a reviewing court from hearing supplemental testimony on what it deems to be a “second constitutional issue,” (N.T., 10/22/08, at 4), and then using that evidence to determine whether sufficient probable existed for a magistrate to issue a search warrant. Indeed, this Court has specifically rejected the use of extrinsic evidence in order to salvage a deficient warrant, see Commonwealth v. Vaughan, 2001 PA Super 374, 789 A.2d 261, 266 (Pa. Super. 2001) (“While ... extrinsic evidence might be relevant to our analysis, we must defer to our Supreme Court to so state unequivocally and will not open the door to this method of salvaging a deficient warrant without that Court’s explicit guidance.”).

Accordingly, we find that the trial court violated Pa.R.Crim.P. 203(D) at the October 22, 2008 suppression hearing by soliciting and considering testimony outside the four corners of the affidavit of probable cause in the course of deciding whether the search warrant should have been issued. Accordingly, we vacate the order denying Appellant's motion to suppress and the judgment of sentence and remand for proceedings consistent with this opinion.

Permalink 12:22:13 am, by fourth, 427 words, 601 views   English (US)
Categories: General

ME: Lobster searches: Maine fishery officers have jurisdiction to board and search fishing vessels 25 miles off shore for illegally taking lobster

A Maine lobster search by state fishery officers in “international waters” but in the federal “exclusive economic zone” was valid. Officers did not need probable cause to boat and search. State v. Thomas, 2010 ME 116, 8 A.3d 638 (2010):

[*P3] On July 12, 2007, several Maine marine patrol officers located the Blue Water approximately thirty-five miles from Matinicus Island. On that day, the Blue Water was rigged for groundfishing. Thomas and the marine patrol officers were familiar with each other, and Thomas was unhappy that the officers had arrived at his boat. The officers asked to board the Blue Water, and Thomas initially refused them permission because he was fishing in federal waters beyond what he perceived to be their law enforcement jurisdiction. When the officers invoked their federal authority, Thomas allowed them to board, believing that he would be “taken into custody immediately” if he refused a federal inspection. [n. 5: Maine marine patrol officers are authorized by the federal government to exercise federal enforcement authority in federal waters.]

[*P4] Once aboard the Blue Water, the officers examined plastic totes on the deck of the Blue Water and found seventy-eight lobsters; twenty-four of the lobsters were oversize. A number of them were banded in the totes. Maine law establishes a maximum length for lobsters that may be kept. 12 M.R.S. § 6431(1). Maine law also prohibits taking lobsters by any method other than conventional lobster traps. 12 M.R.S. § 6432(1). Thomas was charged with violating both statutes. ...

[*P6] The Blue Water was in the federal exclusive economic zone (EEZ) at the time of the search. The EEZ extends two hundred nautical miles from where the territorial sea is measured, and “the inner boundary of that zone is a line coterminous with the seaward boundary of each of the coastal States.” 16 U.S.C.S. § 1802(11) (LexisNexis 1999); see also Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 14, 1983).

[*P7] The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.S. §§ 1801-1884 (LexisNexis 1999 & Supp. 2010), applies in the EEZ. ...

[*P9] The court denied Thomas’s motion to suppress, finding that the officers had an independent legal basis to search the Blue Water, because Maine law requires a person licensed under the marine resource laws “to submit to inspection and search for violations related to the licensed activities by a marine patrol officer.” 12 M.R.S. § 6306(1) (2007). The court held that section 6306 applied to the Blue Water in the EEZ because the Blue Water was a vessel registered under the laws of Maine. See 16 U.S.C.S. § 1856(a)(3). Therefore, neither Thomas’s consent nor probable cause was necessary to allow the search.

Permalink 12:15:29 am, by fourth, 283 words, 629 views   English (US)
Categories: General

IN: If a vehicle frisk for a weapon is proper, it can go into the locked glove compartment

The officer stopping defendant was told that he was a suspect in several shootings, including a homicide. That, and defendant’s slowness to respond to the officer’s commands to get out of the car, were justification for a vehicle frisk for a weapon, including the locked glove compartment. Parish v. State, 936 N.E.2d 346 (Ind. App. 2010):

At the time of the traffic stop, Parish was a suspect in several shootings, including a homicide, and the police were on high alert that Parish was armed. Indeed, a “gang unit” officer had warned other officers that Parish had threatened to kill the next police officer he encountered and was even taking drugs in preparation for a shootout with the police. In addition, when Officer Foster first approached Parish’s car and told him to step out of the vehicle, Parish did not immediately comply. He instead asked Officer Foster why she did not want to see his driver’s license and registration. Only when Officer Foster explained to Parish that she knew who he was and again told him to step out of the car did he slowly take off his seat belt and exit the car.

Under these facts and circumstances, a reasonably prudent person in Officer Foster's position would be warranted in the belief that her safety was in danger. Officer Foster was therefore justified in searching the passenger compartment of Parish’s car, limited to those areas in which a weapon might be placed or hidden. ...

A handgun in plain view on the floorboard of a car stopped by the police is justification for a search incident of the car under Gant. Johnson v. United States, 2010 D.C. App. LEXIS 666 (November 12, 2010).*

Permalink 12:08:21 am, by fourth, 164 words, 490 views   English (US)
Categories: General

CA11: Information that defendant was here illegally and was wanted for a double homicide in Mexico was justification for approaching him

Officers had reasonable suspicion to support their initial approach to defendant based on information that he was in the United States illegally and was wanted in Mexico for homicide. Defendant’s actions when he was told to raise his hands, but put them in front of his waistband gave rise to probable cause for arrest. His search produced a gun there. His wife validly consented, and all that was used to get a search warrant. United States v. Ochoa, 402 Fed. Appx. 478 (11th Cir. 2010) (unpublished).*

A bankruptcy case recognized the doctrine of collateral estoppel from a criminal conviction, noting that Allen v. McCurry, 449 U.S. 90, 95-96 (1980), is a collateral estoppel bar to relitigating a search claim in federal court that the state court has already affirmed. Williams v. Meyer (In re Williams), 438 B.R. 679 (10th Cir. BAP 2010).*

Defendant’s stop for speeding was valid despite the fact the police car did not have a certified speedometer. United States v. Rowls, 402 Fed. Appx. 467 (11th Cir. 2010) (unpublished).*

Permalink 12:01:43 am, by fourth, 218 words, 3143 views   English (US)
Categories: General

CA6: $100k verdict against officer procuring bad SW affirmed

$100,000 verdict for a wrongful search warrant arising from a landlord tenant dispute was affirmed. Ellison v. Balinski, 625 F.3d 953 (6th Cir. 2010):

In any case, even assuming the existence of probable cause as to the occurrence of a crime, the affidavit failed entirely to establish a nexus between the material to be seized and the place to be searched. The affidavit did not state how Defendant came to know that MyaBrooke Properties was located at the residence, or, more critically, why documentation of an allegedly fraudulent mortgage might with a fair probability be found there. Given these rather stark defects in the affidavit, a reasonable jury could conclude that Defendant lacked probable cause when she applied for the warrant to search Plaintiff's residence.

“‘The Court of Federal Claims is a court of limited jurisdiction.’ Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997). Plaintiff’s constitutional, tort and criminal claims fall outside of that limited jurisdiction.” Moreover, the State of California and individual defendants cannot be sued in that court. Reid v. United States, 95 Fed. Cl. 243 (2010).*

Defendant’s motion to suppress his stop on a club parking lot on a military base because it was not a “highway” within state law is granted and the case is dismissed. United States v. Irving, 2010 U.S. Dist. LEXIS 119627 (E.D. Va. November 10, 2010).*

11/14/10

Permalink 05:10:43 pm, by fourth, 31 words, 481 views   English (US)
Categories: General

Lexis's Emerging Issues Commentary on Maynard

On Lexis's Emerging Issues Commentary by Michele L. Berry: United States v. Maynard and GPS Surveillance: Prolonged Surveillance Equates a Search under the Fourth Amendment (summary version) [Lexis subscriber version here.]

Permalink 03:20:41 pm, by fourth, 305 words, 430 views   English (US)
Categories: General

D. Mass.: Entry into an office in Hong Kong by U.S. officials was not governed by the Fourth Amendment

Officers went into defendant’s offices in Hong Kong in an investigation of conspiracy to import illegal munitions into the U.S. The entry into the office by U.S. officials in Hong Kong was not governed by the Fourth Amendment because defendant was not a U.S. citizen, even if it was a “search” and not just a plain view. United States v. Shek, 2010 U.S. Dist. LEXIS 119484 (D. Mass. November 10, 2010):

Moreover, to the extent that it could be said there was a search of Jetpower by the U.S. agents, the Fourth Amendment’s protections do not apply. Both the Supreme Court and the First Circuit have unequivocally stated that the Fourth Amendment does not apply to searches or seizures of aliens that take place on foreign territory. See United States v. Verdugo-Urquidez, 494 U.S. 259, 267, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990) (“There is ... no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters.”); United States v. Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008) (“As we have said before, the Fourth Amendment does not apply to activities of the United States against aliens in international waters.” (citation and internal quotation marks omitted)).

Like the defendants in Verdugo-Urquídez and Vilches-Navarrete, at the time of the 2003 visit, Chan was an alien, not residing in the United States, and the search of his office took place on foreign soil. Verdugo-Urquídez, 494 U.S. at 274; Vilches-Navarrete, 523 F.3d at 13. Consequently, with respect to any observations made by the agents while present at Jetpower’s office either on October 20 or 29, 2003, “the Fourth Amendment has no application.” Verdugo-Urquídez, 494 U.S. at 275. Accordingly, I will deny the motion to suppress any evidence arising from the purported search of Jetpower’s office.

Permalink 03:14:25 pm, by fourth, 202 words, 450 views   English (US)
Categories: General

CA3: Daughter's complaint of sex abuse to police was PC for arrest foreclosing civil case, even if officers should have inquired further

Daughter’s claim of sexual abuse was probable cause for charges to be filed against the plaintiff. He was acquitted at trial. His § 1983 claim that a further investigation was required did not satisfy the “shock the conscience” standard. Livingston v. Allegheny County, 400 Fed. Appx. 659 (3d Cir. 2010) (unpublished):

No genuine issue exists in this case as to whether Appellees’ actions “shocked the conscience.” Appellees’ investigation certainly may have benefitted from additional interviews and evidence collection. Dr. Nathan recommended a forensic interview of B.W. and none was conducted. Appellees did not collect N.W.’s or B.W.’s school and hospital records, or CYF files. Evidence from these records and files would have revealed B.W.’s previous false allegation of physical abuse, CYF’s prior findings of no abuse in the Livingston house, and N.W.’s recent suicide attempt and emotional state. Yet, these failures do not rise to the required culpability standard that their behavior “shocked the conscience.”

The record supports the conclusion that defendant’s wife had actual and apparent authority to consent to the search of their home, and there was no question as to voluntariness of consent. United States v. Stone, 399 Fed. Appx. 684 (2d Cir. 2010) (unpublished).*

Permalink 10:08:19 am, by fourth, 165 words, 670 views   English (US)
Categories: General

OH4: Illegal search does not justify an assault on the officers

The forced warrantless entry into defendant’s camper was not justified by exigent circumstances. The assault on the deputies, however, was not justified by their illegal entry. A motion to suppress will not be granted over an independent criminal act. State v. Browning, 2010 Ohio 5417, 190 Ohio App. 3d 400, 942 N.E.2d 394 (4th Dist. 2010), discretionary appeal not
allowed, 2011 Ohio 1049, 128 Ohio St. 3d 1426, 943 N.E.2d 573 (2011).

After a traffic stop, a furtive movement toward the dashboard was justification for a frisk of the car under the dashboard. State v. Gillenwater, 2010 Ohio 5476, 2010 Ohio App. LEXIS 4609 (8th Dist. November 10, 2010).*

DUI stop resulted in a valid plain view of a vial in a compartment in the door of PCP. State v. Wilson, 2010 Ohio 5478, 2010 Ohio App. LEXIS 4606 (8th Dist. November 10, 2010)

The police knew the informant, and they were able to corroborate his information. This gave probable cause for the search of defendant’s car, and the issue of consent did not have to be decided. State v. Duffus, 125 Conn. App. 17, 6 A.3d 167 (2010).*

11/13/10

Permalink 11:32:24 am, by fourth, 322 words, 890 views   English (US)
Categories: General

WaPo: "New [TSA] searches too personal for some air travelers"

New searches too personal for some air travelers by Derek Kravitz in today's Washington Post:

Airport travelers call it groping, prodding or just plain inappropriate - a pat-down that probes places where the sun doesn't shine. The Transportation Security Administration calls it the new reality of airport security.

Following the uncovering of a terrorist plot last month to blow up cargo planes en route to the United States, the TSA has instituted a new type of pat-down of passengers, a move that's part of a general tightening of air security. If a full-body scanning machine shows something strange or a passenger declines to go through the machine - which is now in use in the Washington region's three major airports - an officer will perform a more personal search.

The examinations routinely involve the touching of breasts and genitals, invasive searches designed to find weapons and suspicious items. The searches, performed by TSA security officers of the same sex as the passenger, entail a sliding hand motion on parts of the body where a lighter touch was used before, aviation security analysts say. The areas of the body that are being touched haven't changed.

This is mild. Many citizens and bloggers are accusing TSA of sexual assault from such diverse sources as CBSNews, Prison Planet, Debate Politics, Compuserve, Huliq, and others.

The fact is that these patdowns are just as intrusive as, or more intrusive than, a patdown based on reasonable suspicion of being armed with a weapon or being checked into a jail. And just for the price of buying an airline ticket you get your genitals touched like a common criminal. What have we come to? Suspicionless patdowns that include the genitals.

Update: As I was sitting here starting to work on case postings, I just happened to think: Last month's "terrorist plot" involved laser printer cartridges in cargo, not genitals. What's the connection? Last Christmas was the underwear bomber.

Permalink 08:30:06 am, by fourth, 155 words, 673 views   English (US)
Categories: General

Findlaw: "Is Philly's 'Stop and Frisk' Racial Profiling?"

On the Findlaw Blotter: Is Philly's 'Stop and Frisk' Racial Profiling? by Laura Strachan:

Stop and frisk sounds more like a trendy dance move or a board game than a form of racial profiling. But that is exactly what some critics are claiming the real purpose behind Philly's stop and frisk approach to law enforcement is. The Philadelphia stop and frisk policy has now become the center of a civil rights lawsuit, according to The Philadelphia Inquirer.

The suit claims that in 2009, 72% of pedestrians that were stopped under the policy were African American. "Implicitly, the message is to make as many stops as you can and hopefully you will find something," said one attorney working on the case. The purpose behind the Philly stop and frisk policy was to decrease the rising crime rate on the streets. Although officers were trained, the suit alleges that the behavior of the force seems to ignore the training.

11/12/10

Permalink 12:25:03 am, by fourth, 201 words, 449 views   English (US)
Categories: General

GA: Audio of co-occupant's consent showed it was voluntary

Defendant was accused of beating a woman with a tree limb, and the police responded. He was in his house showering, and they were able to determine where he was. They were admitted by a co-occupant and had audio of the consent which showed it was voluntary. Evidence of the beating was found inside. Brown v. State, 2010 Ga. LEXIS 844 (November 8, 2010).*

The defendant’s shop in an outbuilding was not specifically named in the search warrant, but it was included within the warrant because it was a regularly used part of the household. Mere ministerial defects in the return did not invalidate the execution of the warrant. United States v. Wilkerson, 2010 U.S. Dist. LEXIS 117964 (M.D. Ala. August 18, 2010).*

Defendant was tasered by the officer after he refused to submit to arrest and fled from the stop with an assault rifle in hand. Considering the circumstances, tasering him during the arrest was reasonable, and the arrest was with probable cause. United States v. Harris, 2010 U.S. Dist. LEXIS 119015 (W.D. Pa. November 9, 2010).*

Use of force in a jail against an immigration detainee is governed by the due process clause, not the Fourth or Eighth Amendments. Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010).*

Permalink 12:13:38 am, by fourth, 278 words, 997 views   English (US)
Categories: General

W.D.Tenn.: Automatic License Plate Recognition (“ALPR”) alert of stolen car was reasonable suspicion

Memphis PD police cars have Automatic License Plate Recognition (“ALPR”) technology which reads license plates and compares the information against a national database of stolen cars. A hit is reasonable suspicion for a stop. Observation of shotgun shells in the back seat justified a search of the vehicle for a weapon. United States v. Lurry, 2010 U.S. Dist. LEXIS 118456 (W.D. Tenn. June 23, 2010).*

Gant would be applied retroactively without guidance from the Missouri Supreme Court. State v. Kingsley, 2010 Mo. App. LEXIS 1490 (November 9, 2010).*

The officer stopped because defendant’s car was broken down, so he did not stop the defendant. United States v. 2002 BMW 745i, 2010 U.S. Dist. LEXIS 118656 (D. Neb. November 5, 2010)*:

The BMW was completely disabled at the time the canine sniff was ordered and conducted, and Mr. Kasper was unable to remove the BMW from the roadside without a tow truck. Mr. Kasper's personal freedom of movement was not delayed as a result of the canine sniff or while the canine sniff was conducted, and had the canine not indicated to the presence of a controlled substance, the BMW would have been towed without any meaningful delay. Any delay caused by conducting the canine sniff before the towing procedures could begin did not violate Mr. Kasper’s Fourth Amendment rights. See, e.g., United States v. Va Lerie, 424 F.3d 694, 706 (8th Cir. 2005) (applying similar principles to the brief detention and canine sniff of a traveler’s luggage); United States v. Quoc Viet Hoang, 486 F.3d 1156, 1162 (9th Cir. 2007) (finding a brief detention of a package did not violate the fourth amendment where it did not interfere with the delivery in the normal course of business without meaningful delay).

Permalink 12:02:12 am, by fourth, 186 words, 786 views   English (US)
Categories: General

ID: The exclusionary rule does not apply in civil child protection cases

The exclusionary rule does not apply in child protection cases (citing a lot of cases from various jurisdictions). Idaho Dep't of Health & Welfare v. Doe, 244 P.3d 247 (Idaho App. 2010).

Defendant’s implied consent was still valid despite the officer’s comment that if she didn’t comply with giving a breath test, a blood test would occur. State v. Leclercq, 149 Idaho 905, 243 P.3d 1093 (App. 2010)*:

Here, Trooper DeBie informed LeClercq of his intention to obtain a blood draw should she refuse to comply with the breath test. The unpleasantness of the available options did not render the officer’s statement coercive. The magistrate determined that while the officer’s use of the word “force” to describe what would happen if LeClercq refused the breath test was troubling, under the totality of the circumstances, the officer's actions were permissible. Informing a suspect that refusal of a breath test will result in a “forcible” blood draw may not be an advisable practice. However, Trooper DeBie’s statement, in light of all of the circumstances, did not amount to coercion such that it rendered LeClercq’s implied consent involuntary.

11/11/10

Permalink 05:07:33 pm, by fourth, 133 words, 508 views   English (US)
Categories: General

CNN: Pilot's union urges members to avoid body imaging

Pilots urged to avoid body scanning by Marnie Hunter on CNN:

Pilots' unions for US Airways and American Airlines are urging their members to avoid full-body scanning at airport security checkpoints, citing health risks and concerns about intrusiveness and security officer behavior.

. . .

"Based on currently available medical information, USAPA has determined that frequent exposure to TSA-operated scanner devices may subject pilots to significant health risks," Cleary wrote.

American Airlines pilots have also received guidance from their union, the Allied Pilots Association, to decline full-body scanning. APA represents 11,000 pilots.

Officer behavior?

USAPA refers to incidents where Transportation Security Administration officers may have implemented the screening technique inappropriately.

One pilot described his experience as "sexual molestation," according to Cleary's letter. Bates wrote, "There is absolutely no denying that the enhanced pat-down is a demeaning experience."

Permalink 10:37:11 am, by fourth, 206 words, 431 views   English (US)
Categories: General

N.D.Ind.: Defendant's claim of consent being involuntary because of intoxication not supported by record

“In determining voluntariness, the following facts are considered: (1) the person's age, intelligence and education; (2) whether she was advised of her constitutional rights; (3) how long she was detained before she gave her consent; (4) whether her consent was immediate, or was prompted by repeated requests by the authorities; (5) whether any physical coercion was used; (6) whether she was in police custody when she gave her consent; and (7) the intoxication of the individual.” Defendant said she was under the influence of Vicodin, but there is no evidence that she was intoxicated. United States v. Wiley, 2010 U.S. Dist. LEXIS 119037 (N.D. Ind. November 8, 2010).*

Defendant consented to go to the police station, and that contributed to the finding of voluntariness. United States v. Barber, 2010 U.S. Dist. LEXIS 118608 (S.D. W.Va. November 8, 2010).*

Stop for an open container was valid, and it was in a high-crime area the officer normally patrolled. Defendant’s furtive movement justified a patdown. United States v. Terry, 2010 U.S. Dist. LEXIS 118782 (W.D. Pa. November 8, 2010).*

Defendant’s claims of IAC for defense counsel at the suppression hearing was unavailing. The things that petitioner claimed would have aided the court wouldn’t, so no IAC. United States v. Alexander, 2010 U.S. Dist. LEXIS 118804 (W.D. Wis. November 8, 2010).*

Permalink 10:11:44 am, by fourth, 230 words, 425 views   English (US)
Categories: General

E.D.Pa.: 911 call about robbery was not specific enough for a stop, but the actions of the car and the area added enough to justify the stop

The police received an anonymous 911 call about a robbery by two black males in a silver Escalade. It was insufficient to provide reasonable suspicion for a stop without more, and, on following the car, more was evident and gave enough for a stop. United States v. Parker, 2010 U.S. Dist. LEXIS 118735 (E.D. Pa. November 5, 2010)*:

(1) The reputation of the area in which the stop occurred for criminal activity;
(2) A suspect's presence on a street at a late hour;
(3) A suspect's "nervous, evasive behavior," or flight from police;
(4) A suspect behaves in a way that conforms to police officers' specialized knowledge of criminal activity;
(5) the geographic and temporal proximity of the stop to the scene of the alleged crime; and
(6) the number of persons in the area.

Defendant was stopped and the officer could smell marijuana, but he did not immediately act on that, but the delay did not nullify the probable cause. His efforts to get defendant out of the car resulted in defendant being arrested for battery, and any affirmative defense to the battery did not undermine probable cause. United States v. Hampton, 2010 U.S. Dist. LEXIS 119092 (M.D. Fla. September 15, 2010).*

Petitioner’s habeas claim while his state criminal case is pending is barred by Younger v. Harris, so he obviously gets no COA for appeal. Grimes v. Fourth Judicial Dist. Court, 2010 U.S. Dist. LEXIS 118599 (D. Nev. October 20, 2010).*

Permalink 12:01:48 am, by fourth, 820 words, 647 views   English (US)
Categories: General

ID: GPS "search" claim not preserved, and not plain error since law unsettled

Defendant’s claim that GPS tracking was a “search” in violation of the Fourth Amendment was not preserved by his general foundation argument. Under plain error review, the court cannot find that it was fundamental error since the law is in disarray. State v. Danney, 2010 Opinion No. 73, 2010 Ida. App. LEXIS 89 (November 5, 2010)*:

Danney's claim of fundamental error does not satisfy this test, for the law is not settled on whether use of a GPS device to track a vehicle&s movements constitutes a “search” subject to the strictures of the Fourth Amendment. Neither the United States Supreme Court nor Idaho appellate courts have spoken to this issue, nor have the vast majority of the federal circuit courts. See People v. Weaver, 909 N.E.2d 1195, 1202 (N.Y. 2009) (noting that both the United States Supreme Court and most federal circuit courts had not yet ruled on the issue). To the extent that it has been addressed, the jurisprudence in this area is conflicting. The United States Supreme Court's decision that is closest on point is United States v. Knotts, 460 U.S. 276 (1983), where the Court examined the constitutionality of the warrantless use of a “beeper” device planted on a vehicle and used to track the progress of the vehicle by officers following the beeper's signals. The Court concluded that law enforcement officers did not conduct a “search” cognizable under the Fourth Amendment by using the beeper to track a vehicle because “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281. This was so, the Court said, because the particular route taken, stops made, and ultimate destination are apparent to any member of the public who happens to observe the vehicle's movements, and “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” Id. at 282. At least two federal circuit courts have held that the Knotts analysis applies equally to the more technologically advanced GPS devices now used by law enforcement, concluding that the warrantless placement of a GPS tracking device on a vehicle does not implicate the Fourth Amendment. United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007). See also Osburn v. State, 44 P.3d 523, 525-26 (Nev. 2002) (holding that the police use of an electronic mobile tracking device does not infringe a reasonable expectation of privacy). Of course, if Knotts, Pineda-Moreno, and Garcia control on this issue, then Danney has not only failed to show fundamental error, he has failed to show any error at all, for the officers' employment of a GPS device to track Danney's vehicle would not be deemed violative of the Fourth Amendment.

Danney points, however, to decisions of several state supreme courts that have held the use of a GPS tracking device without a warrant was impermissible under their respective state constitutions. See Commonwealth v. Connolly, 913 N.E.2d 356, 369 (Mass. 2009); Weaver, 909 N.E.2d at 1202; State v. Campbell, 759 P.2d 1040, 1041 (Or. 1988). Danney urges that we adopt the analysis of the Weaver court which, although deciding the issue according to state law, also strongly suggested that Knotts should be inapplicable to GPS technology. The Weaver court observed that while “[a]t first blush it would appear that Knotts does not bode well for Mr. Weaver, for in his case, as in Knotts, the surveillance technology was utilized for the purpose of tracking the progress of a vehicle over what may be safely supposed to have been predominately public roads and, as in Knotts, these movements were at least in theory exposed to anyone who wanted to look,” this was where the similarity ended. Weaver, 909 N.E.2d at 1198-99 (quoting Knotts, 460 U.S. at 281). The court focused on the disparity in the technology, noting that the device used in Knotts was a “very primitive tracking device” which was “fairly described ... as having functioned merely as an enhancing adjunct to the surveilling officers' senses ...,” while “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.” Weaver, 909 N.E.2d at 1199. ...

While the Weaver opinion presents an analysis by which the Knotts decision could be deemed inapplicable to the use of GPS tracking devices, it hardly demonstrates that there is settled law holding the warrantless use of such devices to constitute a search governed by Fourth Amendment standards. It is evident that the constitutionality of warrantless use of GPS technology to track vehicle movements is not “obvious” such that the admission of this evidence was plainly error. Accordingly, this issue is not one of fundamental error under the Perry standard that we can consider for the first time on appeal, and for that reason we do not reach the merits.

11/10/10

Permalink 07:46:09 am, by fourth, 506 words, 661 views   English (US)
Categories: General

E.D.Wis.: Ruse to get consent to look at defendant's computer was not invalid

Officers used a ruse to get access to defendant’s computer that there had been a computer security breach where family pictures had been posted on the internet. The court finds defendant’s authority, United States v. Richardson, sufficiently different that the consent was valid. United States v. Krueger, 2009 U.S. Dist. LEXIS 130067 (E.D. Wis. July 22, 2009):

Relying on United States v. Richardson, 583 F. Supp. 2d 694 (W.D. Pa. 2008), defendant argues that the police caused him to believe that he was a victim of a computer security breach, that his consent was limited to investigating such a breach, and that the search for images of child pornography thus exceeded the scope of his consent. Like the magistrate judge, I reject the argument.

In Richardson, officers conducting a child pornography investigation obtained consent to search the defendant’s computers by leading him to believe that he had been a victim of credit card fraud. Id. at 698-701. The officers then conducted a forensic examination of the computers, which revealed images of child pornography. Id. at 703-04. The lead officer admitted that she used a ruse to obtain consent, which she maintained throughout her dealings with the defendant. Id. at 701-05. The court found that, based on the officers’ artifice in approaching the defendant as a potential crime victim, his consent was limited to evidence of illegal credit card activity over the internet. Id. at 718.

The present case involves no similar trickery. Andrews told defendant:

I was following up on a computer investigation in which images of his family members had been posted to the Internet. And I told him that I was concerned because they were images of his family members. And, that’s why I had come to his house for the investigation, and that it involved computers in his house.

(Tr. at 11.) Andrews may not have fully disclosed the nature of her investigation, but she made no false or misleading statements. She did not lead defendant to believe that he — as opposed to his family members — was a victim, or suggest that the officers would refrain from searching the computers for any evidence of his potential wrongdoing. Further, unlike in Richardson, nothing in Andrews’s preliminary statements suggested a limitation on the scope of the search. In Richardson, the court found the forensic search for images wholly unrelated to the expressed object of the search — illegal, on-line use of credit cards. See id. at 720-21. Here, the conversation between defendant and Andrews, although general, pertained to “images” of defendant’s family members, and Andrews specifically advised defendant that the computers would be removed from the residence for a forensic exam. (Tr. at 16.) Finally, as the magistrate judge explained, an investigation into how the images Andrews mentioned ended up on the internet “would naturally include a review of image files on [defendant’s] computer to determine, for example, if the specific photographs were on [defendant’s] computer, as well as internet protocol data to determine, for example, which computer might have posted the photographs.” (R. 24 at 11.)

Permalink 07:29:40 am, by fourth, 377 words, 598 views   English (US)
Categories: General

N.D.Ga.: Forensic search of computer after Rule 41's ten day requirement not void

Search warrants do not have expiration dates. Defendant’s computer was seized within the time requirement of Rule 41, but it was not forensically searched for child pornography until after that. Plenty of authority says that the later forensic search under the original warrant is valid. There is nothing showing bad faith. United States v. Hodges, 2010 U.S. Dist. LEXIS 118437 (N.D. Ga. September 15, 2010):

Moreover, in this case, completion of the analysis of the hard drives after the expiration of the search warrant could not rise to the level of a constitutional violation and cannot be the basis for suppressing evidence seized because probable cause continues to exist, the government did not act in bad faith, and there was no prejudice to the Defendant. Probable cause did not dissipate during the nearly two-month delay in completing the off-site analysis of the hard drives. Because the computers were in possession of law enforcement, there was little chance that any incriminating evidence might be removed from the computers. Additionally, probable cause was actually enhanced by the delay because prior to the November 29, 2009 expiration of the search warrant, Special Agent Richardson began looking at the hard drives and found hundreds of images which contained erotica of young boys and child pornography. (Tr. 14). Furthermore, Special Agent Richardson did not act in bad faith in order to avoid any requirements imposed by the search warrant. The nearly two month delay was not unreasonable given that Special Agent Richardson had to clone the hard drives, load the images into his forensic analysis program, ran out of disc space, competed with other agents for time to use the imaging machine, and had difficulty accessing the information on the hard drives due to Defendant's encryption efforts. Finally, Defendant does not identify any prejudice resulting from the delay in completion of the forensic analysis. Therefore, Defendant's Motion to Suppress Evidence Obtained Pursuant to Warrantless Search of Computer Storage Equipment should be DENIED.

A GPS device was placed on the subject vehicle in this case, and the government had probable cause at the time of placement to believe that the vehicle would be used to transport drugs because it had been used for that twice before. United States v. Haces-Delgado, 2010 U.S. Dist. LEXIS 118438 (N.D. Ga. September 15, 2010).*

Permalink 07:13:23 am, by fourth, 317 words, 565 views   English (US)
Categories: General

N.D.Cal.: 9th Cir. CSLI warrants are governed by Pineda-Moreno GPS case

Cell site location information (“CSLI”) warrants in the Ninth Circuit have to be governed by its GPS case, Pineda-Moreno, and the government prevails. United States v. Velasquez, 2010 U.S. Dist. LEXIS 118045 (N.D. Cal. October 22, 2010):

In any event, even if defendant Velasquez had demonstrated a subjective expectation of privacy in (415) 240-0634, he cannot demonstrate that he had a reasonable expectation of privacy for Fourth Amendment purposes. There is no legitimate expectation of privacy in basic, non-content phone records — such as the telephone numbers of incoming and outgoing calls — which are by their nature voluntarily conveyed to the third-party service provider. See, e.g., Smith v. Maryland, 442 U.S. 735, 744, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); United States v. Plunk, 153 F.3d 1011, 1020 (9th Cir. 1998), overruled on other grounds by United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000); United States v. Lustig, 555 F.2d 737, 747 n.10 (9th Cir. 1977). Although our court of appeals has not specifically addressed the extent to which this line of decisions applies to CSLI, its decision in United States v. Pineda-Moreno is analogous and governs the inquiry of the records specifically at issue here. United States v. Pineda-Moreno, 591 F.3d 1212, 1217 (9th Cir. 2010).

After a GVR in light of Gant, the district court conducted a hearing and concluded that the evidence the officer had that the vehicle was likely stolen made its seizure and inventory valid, and the record supports that conclusion. United States v. Dunson, 2010 U.S. App. LEXIS 23172 (5th Cir. November 5, 2010) (unpublished).*

Officers working with a reliable [of course] CI buying off the defendant had arranged a signal for when the defendant would have drugs on him. The CI gave the signal, and the officers came in and arrested the defendant. His car nearby was searched with probable cause he brought drugs to the place of the buy and Gant did not apply, although it predated the suppression hearing. United States v. Webster, 625 F.3d 439 (8th Cir. 2010).*

11/09/10

Permalink 09:52:22 pm, by fourth, 57 words, 418 views   English (US)
Categories: General

Reuters: "Look out, your medicine is watching you"

Look out, your medicine is watching you by Ben Hirschler of Reuters: smart RFID transmitters in medication, activated by stomach acid, transmitting to a patch on the skin to tell whether the patient is taking medication properly.

And you thought those guys talking about the transmitters planted in their bodies were crazy... Just ahead of their time.

Permalink 09:43:21 pm, by fourth, 128 words, 678 views   English (US)
Categories: General

CNN: "Fliers debate airport prodding, scanning"

Fliers debate airport prodding, scanning by Marnie Hunter on CNN.com.

Increased scanning and prodding at airport checkpoints have many in the sock-footed parade of American air travelers up in arms about security screening.

Full-body imaging machines and enhanced pat downs are among the more recent -- and controversial -- tools the Transportation Security Administration has added to its layered approach to detecting threats.

CNN.com readers have expressed and debated their views in the comments area of stories related to airport screening. Here are some common views:

I got my first full body scan by the unseen character in the other room. I'm sure the TSA guy was joking just like the one in Miami.

Finally, a paying job for peeping toms and other men of vision.

Permalink 06:04:58 am, by fourth, 266 words, 525 views   English (US)
Categories: General

OR: A loud argument is not a DV call, and the warrantless entry was invalid

A mere loud argument in a motel room that the police were called to was not sufficient to justify a warrantless entry into the room. State v. Fredricks, 238 Ore. App. 349, 243 P.3d 97 (2010):

Here, the evidence in the record shows only that Walker overheard a loud argument that, in his words, was “not deescalating.” The record does not contain any other objective indicia of a “potential victim of a dangerous circumstance or a potential perpetrator of a dangerous act.” Id. Where police overhear a loud argument, unaccompanied by any sounds of “physical struggle or an indication that an act of violence ha[s] occured,” a warrantless entry into a defendant’s residence is not authorized by the emergency aid doctrine. Salisbury, 223 Ore. App. at 524. It follows that the trial court erred in denying defendant's motion to suppress.

Judge Moylan trashes the defense Fourth Amendment arguments as being pointless and without citation of authority. Also, the violation of the knock-and-announce rule he declares “trivial” (“the Exclusionary Rule of Mapp v. Ohio does not apply to such relatively trivial breaches of the Fourth Amendment as violations of the knock-and-announce rule. Hudson v. Michigan …”) was also meaningless since the search of the house produced nothing. There was a typo in the year of the search on the inventory which was also meaningless. Woods v. State, 2010 Md. App. LEXIS 170 (November 3, 2010).*

When the officer was standing at the door, the defendant said “Come on in,” and this was consent and supported the plain view of the gun in this case. United States v. Harris, 2010 U.S. Dist. LEXIS 117373 (E.D. Mo. September 27, 2010).*

11/08/10

Permalink 06:58:50 am, by fourth, 288 words, 445 views   English (US)
Categories: General

CA10: PC still found for search of defendant's home even though he had moved after crime

Defendant was indicted for a two year old murder, and police obtained a search warrant for the weapon and clothing potentially worn during the murder, as well as possible communications between defendant and co-conspirators. Even though the defendant moved between the murder and the search warrant, it was reasonable for the magistrate to conclude that the evidence would still be retained at defendant’s new address. Under the Tenth Circuit’s rule (United States v. Gonzales, 399 F.3d 1225 (10th Cir. 2005)), the question of probable cause does not have to even be addressed if the good faith exception would apply, and it does here. United States v. Birch, 401 Fed. Appx. 351 (10th Cir. 2010) (unpublished). [I've always disagreed with this approach to the GFE exception because it is judicial laziness to avoid deciding probable cause and it tends to stop development of the Fourth Amendment. Besides, Gates makes it so easy for judges to not have to think in the first place. So why not decide probable cause?]

Nobody had standing to challenge the stop of the car in this identity theft case. The driver did not know who owned it, and he could not even show how he was in possession of it. The others weren’t even in it. As to a search of a motel room and a house, only one defendant had standing as to them because nobody else claimed to be a guest there. As to the motel room, the government’s claim of protective sweep fails because it must be incident to arrest, and it wasn’t. However, the government did show that the search was by consent by a person with apparent authority. United States v. Poghosyan, 2010 U.S. Dist. LEXIS 117271 (D. Kan. October 28, 2010).*

Permalink 06:37:55 am, by fourth, 224 words, 796 views   English (US)
Categories: General

CA4: Franks motion failed after hearing; misstatement was negligent at worst, and PC anyway

Defendant here actually got to a Franks hearing on inaccurate statements in the affidavit for the search warrant. The USMJ and District Court concluded that the inaccurate statements were the product of the officer being pressed for time to get the search warrant application together, and it was only a misstatement and not intentional or reckless. Moreover, even if the false statement was intentional or reckless, after purging it from the affidavit, probable cause remains, so the motion was properly denied. United States v. Ross, 400 Fed. Appx. 730 (4th Cir. 2010) (unpublished).* [My view is: if in doubt, give the defendant a Franks hearing. It doesn't take that long, and it makes resolution of the motion and the appeal far easier. And, based on what I see from the cases, probable cause will usually be found on the remainder of the affidavit for search warrant anyway because Gates makes the question of probable cause so ephemeral anyway.]

Appellant’s Fourth Amendment claim that DHS workers illegally entered or stayed in her house on a home visit that led to a claim of unfit parenting was not within a final appealable order. Bryant v. People, 2010 V.I. Supreme LEXIS 66 (January 15, 2010).*

Defendant’s motion to suppress was denied and appealed, so it cannot be relitigated in a § 2255. United States v. Lopez-Mendoza, 2010 U.S. Dist. LEXIS 117318 (D. Neb. November 3, 2010).*

Permalink 04:07:37 am, by fourth, 401 words, 1040 views   English (US)
Categories: General

FL2: "Felony pick-up order" not issued by judge does not permit entry into home under Payton

A Florida "felony pick-up order" issued by a police supervisor and not a judicial officer authorizes a warrantless arrest on probable cause, but it cannot permit an entry into a dwelling under Payton. Bennett v. State, 46 So. 3d 1181 (Fla. 2d DCA 2010):

In his motion to suppress and on appeal, Bennett argues that a pick-up order is not a warrant and did not authorize the officer's entry into the premises. The State convinced the trial court that the officer's warrantless entry was justified by section 901.19(1), Florida Statutes (2007), which provides in pertinent part as follows:

901.19 Right of officer to break into building.

(1) If a peace officer fails to gain admittance after she or he has announced her or his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, the officer may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

We agree that the pick-up order authorized a warrantless arrest. See § 901.15(2) (authorizing officer to make warrantless arrest when "[a] felony has been committed and [the officer] reasonably believes that the person committed it"). But we cannot agree that the statute was a proper basis for the officer's entry into the dwelling.

The United States Supreme Court has clearly held that "the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Payton v. New York, 445 U.S. 573, 576 (1980) (citations omitted). In reaching this result, the Supreme Court had before it New York statutes, similar to the Florida statute cited by the State and described above, which (1) allowed a warrantless arrest when a felony was committed and the officer had reasonable cause to believe it was committed by the person to be arrested, and (2) allowed an officer, announcing his office and purpose, to break into a building after being refused admittance. Id. at 578 n.6. In fact, the Supreme Court cited Florida's statute, section 901.19, in its discussion of similar statutes enacted by some twenty-four states, id. at 598 n.46; and the Court later noted that Florida was one of only two states whose courts had found warrantless entries under such circumstances to be constitutional, id. at 600.

11/07/10

Permalink 11:38:40 pm, by fourth, 292 words, 443 views   English (US)
Categories: General

MA: No IAC for seeking to use evidence from bad search in murder trial -- Practice pointer in action

Defense counsel does not always want to exploit a bad search. In this murder case, a search warrant was issued for defendant’s house and his car that was not on the curtilage was searched under the warrant for the house. The state conceded that the search of the car was bad. However, during the trial, it became tactically important to defense counsel to go into what was found, and it became important during cross-examination of the investigating officers because it showed inconsistencies in the investigation. “Counsel in fact highlighted the inconsistencies just described in his cross-examination of Detective McDermott and Trooper Foley, and he argued the point forcefully in closing.” It was not ineffective assistance of counsel to do so. Commonwealth v. Greineder, 458 Mass. 207, 936 N.E.2d 372 (2010).

This case underscores what experienced defense counsel will inevitably encounter. As discussed in § 45.18 of the Treatise, do you need the evidence from the illegal search to prove another point that is more beneficial? You can file a motion to suppress, but, as the trial date closes in, the defense strategy for witness examination may be evolving and may require foregoing the motion to suppress entirely. Or, you may try the motion and win it, and then unexpectedly find you need to use the evidence at trial anyway. It happens, and it has happened to me. After all, no matter how well prepared you are, a trial always includes a series of unanticipated events that requires quick thinking and judgment calls based on one's experience. Just because you won or can win a motion to suppress doesn't mean that you have to remain locked in to it as the trial progresses. Usually the object is winning the criminal trial, not just the motion to suppress.

Permalink 11:00:32 pm, by fourth, 278 words, 438 views   English (US)
Categories: General

W.D.Okla.: Officer's stepping into house here after detaining one outside was reasonable

In a rapidly evolving situation involving a combative detainee outside, the officer’s action in stepping over the threshold of the house here was reasonable. United States v. Coulter, 2010 U.S. Dist. LEXIS 117232 (W.D. Okla. November 3, 2010)*:

The issue then becomes whether Officer Williams acted illegally when he followed Ms. Silva to the house and, without a warrant, stepped across the threshold. Although a close question, the court concludes that under the facts of this case, he acted reasonably and did not violate defendant's Fourth Amendment rights.

At the point when the detective entered the house, the officers were unaware of the reasons why defendant had reacted negatively to them and their vehicle. They also lacked any information about defendant. However, Detective Williams was familiar with the neighborhood. He stated he had been there many times during the past two years and had another target house just around the corner from defendant's residence. In just a matter of minutes the officers had been confronted by a combative defendant and a verbally aggressive girlfriend in a neighborhood connected with drug activity. Although Ms. Silva had calmed down somewhat, the officers still had valid safety concerns when she got up and started towards the house despite being told she could not enter unaccompanied. It was not unreasonable for the officers to want to keep her within eyesight until they determined what was going on. Detective Williams stepped in the house only far enough to observe Ms. Silva as she retrieved her license from her purse.

The CI was reliable, and the dog sniff was reasonable. United States v. Maddox, 398 Fed. Appx. 613 (D.C. Cir. 2010) [two paragraph per curiam; no facts].*

11/06/10

Permalink 08:17:57 am, by fourth, 789 words, 672 views   English (US)
Categories: General

CA5: GFE saves search warrant without attachments limiting search because the search was not overbroad

The search warrant here did not have the attachments necessary when it was served, but the application for the warrant with all the attachments was reviewed by an AUSA, the USMJ, and all the officers involved were well aware of its limitations. The good faith exception applied. United States v. Allen, 625 F.3d 830 (5th Cir. 2010):

The warrant at issue clearly does not pass constitutional muster. It is undoubtedly broad because of its lack of particularity, absent the affidavit and attachments. Simply incorporating the affidavit and attachments, which stated specifically what the search entailed and what was to be seized, by reference in the warrant could have cured the deficiency of the warrant. That being said, the issue here is not the constitutional invalidity of the warrant, but whether the evidence seized pursuant to the unconstitutionally vague warrant should be suppressed. Indeed, the Supreme Court has clearly stated that suppression is “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

Even though the warrant in this case was not sufficiently particular, we conclude that the fruits of the search are admissible under the good-faith exception. See Leon, 468 U.S. at 913 (“[O]ur evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible ….”). The district court correctly found that the agents involved acted in objectively reasonable good-faith in relying on the search warrant.

As the Supreme Court pointed out recently in Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 699-700, 172 L. Ed. 2d 496 (2009), the exclusionary rule is a judicially fashioned remedy whose focus is not on restoring the victim to his rightful position but on deterring police officers from knowingly violating the Constitution. Therefore, evidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)); see also United States v. Otero, 563 F.3d 1127 (10th Cir. 2009). Otherwise, the “good-faith” rule of Leon applies.

. . .

After the review by his co-workers, Agent Stone presented the application and warrant to the U.S. Attorney's office for review. Only after that review was complete, did Agent Stone present the affidavit to Magistrate Judge Platt for review. Judge Platt took the time to review the affidavit and the search warrant. The agent also testified that Judge Platt signed off on language in the search warrant that states, "I am satisfied that the affidavit and any record testimony establish probable cause to believe that the person or property so described is now concealed on the person or premises above described and establish grounds for the issuance of this warrant." It is clear from the testimony given that Magistrate Judge Platt carefully reviewed the warrant, the affidavit, and the attachment and did not just give the documents a cursory review. Furthermore, he signed the affidavit to which the specific list of items to be seized was attached.

Prior to executing the search warrant, Agent Stone gave his fellow agents, including the forensic analyst, a copy of the search warrant as well as the affidavit and attachments which specifically listed the items to be seized. Stone testified that he did this so they could review it and know what they were searching for. In fact, all of the agents and law enforcement officers who participated in the search were given the affidavit and attachments in advance of the search. There was a brief meeting before executing the warrant, but the affidavit and its attachments were all reviewed and handed to the agents prior to that meeting. Agent Stone told the court at the suppression hearing that after they began executing the warrant, they contacted the U.S. Attorney's office several times with questions about what they could seize.

[It's well known that I'm no fan of the good faith exception as created by Leon, but this case is one of those where I cannot disagree. There clearly was probable cause [there was in Leon, too, but the court pretended there wasn't] and everybody involved in the search knew the limitations. The question of prejudice to the target of the search is always a relevant consideration from the warrant failures. Did the officers exceed the limits of the warrant per the attachments that were left off? No. If they did, then this would have been a far different case.]

Permalink 07:57:06 am, by fourth, 304 words, 576 views   English (US)
Categories: General

VA: Four cases in one day: Gant not preserved; "right result, wrong reason"

Defendant’s vehicle was searched incident to his arrest for public intoxication, and it was [supposedly] valid at the time. Gant was decided after, and the question of search incident was never raised until appeal, so Gant can’t apply. McGhee v. Commonwealth, 280 Va. 620, 701 S.E.2d 58 (2010).*

The officer received an anonymous tip that defendant had warrants for his arrest which was confirmed by dispatch; while he didn’t know whether they were for misdemeanors or felonies, that did not matter. The corroboration of a tip here would have to be applied differently than a tip of facts justifying a stop rather than existence of an arrest warrant. Sidney v. Commonwealth, 280 Va. 517, 702 S.E.2d 124 (2010).*

The “right result, wrong reason” doctrine saves this search of defendant’s person because the officer actually had probable cause before the patdown. Under this doctrine, all the facts necessary to the conclusion have to have been developed in the trial court, and here they were. The court compared other cases where the rule was not applied because the facts weren’t developed. Perry v. Commonwealth, 280 Va. 572, 701 S.E.2d 431 (2010).*

Following Perry then, the court of appeals erred in alternatively concluding that defendant consented to a search of his jacket when he asked for it on being arrested because the facts were not fully developed on this issue. There was a gun in the jacket, and he was a felon. Banks v. Commonwealth, 2010 Va. LEXIS 274 (November 4, 2010).* [One problem here will be “immediately apparent.” Depending on the gun, the weight of a gun in a jacket would be “immediately apparent” to anyone picking up the jacket, akin to “plain feel” under Dickerson. See where this is going? I’m not telling the prosecutors anything they probably won’t figure out on their own, even assuming they ever read this website.]

Permalink 07:27:52 am, by fourth, 199 words, 462 views   English (US)
Categories: General

N.D.Okla.: Taking the defendant's ID is a seizure of the person because no one would feel free to leave

The encounter with the defendants started out consensual. Although the officer did not tell them they were free to leave, it was conversational. Once the officer had IDs in hand and walked to his police car to call them in, it was a seizure. “[A]s the Tenth Circuit has explained, no reasonable person having had his identification taken away would have felt free to terminate the encounter.” United States v. Lopez, 443 F.3d 1280, 1285 (10th Cir. 2006). Turning to reasonable suspicion, the court finds that defendant’s “actions” in a high crime area were reasonable suspicion [but, boy, is this really thin]. United States v. Matthews, 2010 U.S. Dist. LEXIS 116791 (N.D. Okla. November 1, 2010).

The court credits from the videotape that the driver understood English enough to consent to the search of his vehicle. And, the passenger in this case doesn’t have standing. United States v. Torres-Guzman, 2010 U.S. Dist. LEXIS 116878 (E.D. Ark. October 22, 2010).*

Defendant’s objections to the R&R are overruled. The officer had reasonable suspicion, and his grabbing the arm of the defendant was a seizure, but it was reasonable on these facts. United States v. Baker, 750 F. Supp. 2d 921 (W.D. N.C. 2010).*

Permalink 07:01:19 am, by fourth, 577 words, 440 views   English (US)
Categories: General

W.D.N.Y.: Wandering around house to see what officers could see during execution of arrest warrant was unreasonable

Armed with an arrest warrant, officers lawfully entered defendant’s apartment to make an arrest since they had a reasonable belief he was present. Once inside, however, they roamed around to see what they could see, and this was not a valid plain view. “Since the government has not shown that the agents had a lawful reason to be in the living room or kitchen, where they allegedly observed the items which were subsequently seized, the search is illegal even if the items were in ‘plain view’ from those vantage points. ‘If the scope of the search exceeds that permitted by the … character of the relevant exception from the warrant requirement, the search is unconstitutional without more.’ Horton v. California, 496 U.S. 128, 140, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).” The government did not show that a search warrant would not have inevitably been issued, so the search of those rooms was invalid. United States v. Bazzi, 2010 U.S. Dist. LEXIS 117087 (W.D. N.Y. April 21, 2010).

In another order in that same case, an undercover officer going into defendant’s store to buy counterfeit goods was not a search and seizure under Maryland v. Macon. Once in the store, everything else that happened was in plain view. United States v. Bazzi, 2010 U.S. Dist. LEXIS 117024 (W.D. N.Y. April 14, 2010).*

Yet a third order holds that officers have a duty to allow arrestees to get clothing and get dressed, but the officers may control the defendant throughout for officer safety. United States v. Ling Zhen Hu, 2010 U.S. Dist. LEXIS 117088 (W.D. N.Y. November 3, 2010):

The second key fact making entry into the living room permissible in this case is that both defendants were in a state of undress when apprehended. Hu wore only a tank top and underwear, and Lin was dressed in a t-shirt and underwear. Numerous circuits, including the Second Circuit, recognize that a defendant’s scant clothing provides exigent circumstances for a warrantless entry so as to permit a defendant to search for proper clothing. See e.g. United States v. Di Stefano, 555 F.2d 1094, 1101 (2d Cir. 1977) (allowing an officer’s entry into a bedroom solely for the purpose of maintaining control over defendant while she dressed herself); see also United States v. Gwinn, 219 F.3d 326, 335 (4th Cir. 2000) (determining that a defendant’s lack of shirt and shoes while outdoors justified an officer’s warrantless re-entry into the house); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir. 1992) (permitting police to retrieve a defendant’s shoes from his house, but noting that entry into the house does not immediately follow from “the desire of law enforcement officers to complete the arrestee’s wardrobe”). Indeed, the Second Circuit has stated that officers have a “duty” to find appropriate clothing of a defendant upon arrest or to permit that defendant an opportunity to do so herself. DiStefano, 555 F.2d at 1101 (citing United States v. Titus, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S. Ct. 323, 30 L. Ed. 2d 274 (1971); see also United States v. Rudaj, 390 F. Supp. 2d 395, 401 (S.D.N.Y. 2005) (“The Second Circuit has long recognized that an arresting officer has a duty to ensure that an arrestee is sufficiently dressed before removing her from her residence.”). In the fulfillment of that duty, the officer may accompany the arrestee into the residence “to maintain a ‘watchful eye’ on her and to assure that she did not destroy evidence or procure a weapon.” Rudaj, 390 F. Supp. 2d at 401.

Permalink 12:03:12 am, by fourth, 430 words, 782 views   English (US)
Categories: General

New law review article: "The Framers’ Intent: John Adams, His Era, and the Fourth Amendment"

The Framers’ Intent: John Adams, His Era, and the Fourth Amendment by Thomas K. Clancy of the University of Mississippi School of Law, to be published in the Indiana Law Journal, Vol. 86, 2010, on SSRN:

Abstract:

For many years, I have relied on others to cull the historical records and have cited them to support what I thought was accurate historical reporting. In the past decade or so, there have been some broad claims about the historical record that contradict conventional wisdom. Those views have gained substantial traction. I believe that none of the prior accounts properly report or assess the origins of the Fourth Amendment and the central role John Adams played. That is the purpose of the article, which contains new information and adds a new context to the framing of the Amendment.

Courts and scholars seeking the original understanding of the Fourth Amendment have confronted two fundamental questions: what practices was the Amendment designed to regulate; how should a constitution regulate such practices? To inform the answers to those questions, this article offers a new perspective of, and information on, the historical record regarding the framing of the Amendment. It also presents for the first time a detailed examination of John Adams’ fundamental influence on the language and structure of the Amendment and his knowledge of, and views on, how to regulate searches and seizures.

Most of the language and structure of the Fourth Amendment was primarily the work of one man, John Adams. Upon examination, Adams stands out in the founding era as having profound opportunities to examine search and seizure practices and as having the most important role in formulating the language and structure of the Fourth Amendment. If the intent of the Framers is a fundamental consideration in construing the Constitution, as the Court has repeatedly told us it is, then John Adams’ knowledge and views should be considered an important source for understanding the Fourth Amendment. More fundamentally, Adams’ appreciation of search and seizure principles reflects a broader mosaic that demonstrates that the Fourth Amendment was the product of a rich jurisprudence on search and seizure. That jurisprudence offered a structured series of principles to regulate the search and seizure activities of that era and the Amendment was not merely a reaction to general warrants. Further, although the framing era sources did not always agree on the details of the criteria for regulating searches and seizures, they were united in seeking objective criteria to measure the propriety of governmental actions. That quest was firmly embedded into the language and structure of the Fourth Amendment.

11/05/10

Permalink 06:44:37 am, by fourth, 383 words, 446 views   English (US)
Categories: General

VA: Defendant did not abandon car just because he ran off after being confronted by an officer after he got out of it

Defendant got of out his car in an apartment building parking lot. He was encountered by the officer who asked him questions. The officer said that he noticed a bulge in defendant’s waistband, and he was going to pat defendant down. Defendant then ran away and the officer could not catch him. The officer came back and looked in the car, and he noticed the console was not sitting right, and it likely was a storage place for drugs. He asked around if anybody knew whose car this was, and nobody knew. He searched the car. The trial court held that the car was abandoned, but it wasn’t. Watts v. Commonwealth, 57 Va. App. 217, 700 S.E.2d 480 (2010):

Here, appellant neither denied ownership of the car nor relinquished physical control of it in the context of this case, and the additional circumstances also do not support a finding of abandonment. Officer Maxey testified that when he inquired whether the car belonged to appellant, appellant readily admitted rather than denied ownership.

Regarding physical control of the vehicle, Officer Maxey testified that appellant parked in the private parking lot in a fashion similar to the other cars parked there and that he exited the vehicle voluntarily and began walking away before Maxey approached and made appellant aware of his presence. No evidence established appellant left the car unlocked or left the keys behind.

The evidence failed to establish an additional element relevant to the “physical control” analysis--that appellant lacked authority to park where he did. Although Officer Maxey spoke with an unknown number of residents of the apartment building and none of them recognized the car, Officer Maxey did not ask whether any of the residents had seen or recognized appellant himself, and because Officer Maxey did not know who appellant was at that time, he was unable to ask about appellant by name. The Commonwealth also did not establish that Officer Maxey spoke with all of the building’s residents. Further, the gold vehicle bore temporary license tags, and appellant had told Officer Maxey he “just” bought the vehicle, thereby leaving open the hypothesis that appellant was authorized to park the car there and that the residents with whom Officer Maxey spoke simply were not yet able to recognize his new vehicle on sight.

Permalink 06:33:57 am, by fourth, 167 words, 454 views   English (US)
Categories: General

NC leaves open possibility its state exclusionary rule may be differently applied

“There is disagreement over whether there is such an exception to the North Carolina Constitution. Thus, it is possible that evidence not excluded by the federal constitution might be excluded by the North Carolina Constitution.” Here, however, that question cannot be resolved. State v. Banner, 207 N.C. App. 729, 701 S.E.2d 355 (2010).*

Defendant was being followed by a car and he pulled into a driveway to let the car pass. The driveway, however, was that of a police officer coincidentally following him on his way home, and the driveway was the police officer’s house. The officer was acting as a private person when the stop occurred and defendant was found under the influence. State v. Young, 2010 VT 97, 189 Vt. 37, 12 A.3d 510 (2010).*

Defendant’s neighbor had a wireless video system that accidentally recorded video from the defendant’s own system and recorded defendant’s attack on another person. That was a private act and not a governmental act, and it was admissible. State v. Smith, 2010 W. Va. LEXIS 110 (October 27, 2010).*

Permalink 05:56:57 am, by fourth, 233 words, 481 views   English (US)
Categories: General

CA7: Cover story for stop did not prevent application of "collective knowledge" doctrine

The use of a cover story for a stop to make it safer for officers does not prevent the use of the collective knowledge doctrine. It also applies between federal and state officers. United States v. Williams, 627 F.3d 247 (7th Cir. 2010):

Other appeals courts similarly have concluded that the application of the collective knowledge doctrine is unaffected by an officer’s use of a cover story to disguise a stop as a mere traffic stop. See United States v. Chavez, 534 F.3d 1338, 1341-42 (10th Cir. 2008) (where officer stopped suspect at DEA’s request, the fact that the officer pretended that the stop was for a failure to turn on headlights in order to conceal a confidential informant’s identity and protect the integrity of the DEA investigation did not preclude the application of the collective knowledge doctrine); United States v. Ramirez, 473 F.3d 1026, 1038 (9th Cir. 2007) (Kozinski, J., concurring) (“disguising the stop as a ‘traffic stop’ was a valid law enforcement tactic calculated to ensure an officer’s safety … [and] did not change the nature of the stop,” or the fact that the stop was made at the direction of an officer who had probable cause, such that the collective knowledge doctrine applies). Moreover, the Fifth and Tenth Circuits have considered instructions like the one Gutierrez gave Simon, and concluded that such an instruction does not bar the application of the collective knowledge doctrine.

Permalink 05:13:00 am, by fourth, 165 words, 548 views   English (US)
Categories: General

D.Conn.: The issue under the automobile exception is “inherent mobility,” not “probable mobility”

The issue under the automobile exception is “inherent mobility,” not “probable mobility.” See United States v. Howard, 489 F.3d 484 (2d Cir. 2007), and United States v. Navas, 597 F.3d 492 (2d Cir. 2010). The fact the officers had time to get a warrant was essentially irrelevant. United States v. McKreith, 708 F. Supp. 2d 216 (D. Conn. 2010).*

The officer’s observing defendant’s hand-to-hand sale from a baggie of apparent crack was reasonable suspicion for a stop. Then the defendant admitted that he had a gun on him. United States v. Baker, 750 F. Supp. 2d 921 (W.D. Tenn. 2010).*

Defendant’s [lame-ass] excuses for his lawyer’s alleged lack of performance at his suppression hearing were hardly relevant and did not show that he received ineffective assistance. United States v. Moran, 2010 U.S. Dist. LEXIS 116416 (W.D. Va. November 2, 2010).*

Defendant’s search claim was raised and litigated to conclusion pretrial and on appeal, so he can’t relitigate it via § 2255. United States v. Mitchell, 2010 U.S. Dist. LEXIS 116155 (D. Kan. October 31, 2010).*

Permalink 04:40:02 am, by fourth, 20 words, 721 views   English (US)
Categories: General

Gov. Perry: President Bush "Defended Us From Freedom."

In a moment of true candor, Gov. Rick Perry on The Today Show yesterday: President Bush "Defended Us From Freedom."

Permalink 04:29:08 am, by fourth, 7 words, 445 views   English (US)
Categories: General

Suppression hearings 2010--satirical video

11/04/10

Permalink 11:12:41 am, by fourth, 147 words, 470 views   English (US)
Categories: General

WA: Police officer with PO does not make PO "stalking horse"

A probation officer is not a “stalking horse” for the police just because a police officer comes along for the probation home visit. Also, the fact the PO that came was not defendant’s regular PO does not make it unreasonable, either. State v. Reichert, 158 Wn. App. 374, 242 P.3d 44 (2010).*

Defendant showed up at a storage building under surveillance, and he used a unique passcode for the unit under surveillance. That was reasonable suspicion. When the police moved in, he tried to flee, and it ripened then to probable cause. United States v. Monyoukaye, 2010 U.S. Dist. LEXIS 116440 (M.D. Pa. November 2, 2010).*

When a person is surreptitiously recording another in violation of that other person’s privacy, her reasonable expectation of privacy in this context was not the same as the one that had been developed under Fourth Amendment. People v Schreier, 29 Misc. 3d 1191, 909 N.Y.S.2d 885 (2010).*

11/03/10

Permalink 11:45:40 am, by fourth, 343 words, 566 views   English (US)
Categories: General

D.D.C.: SW to e-mail provider does not require notice to account holder

A search warrant for information about an e-mail account does not require notice to the account holder, just the provider. Application for Warrant for E-mail Account [Redacted]@gmail.com, No. 10-291-M-01 (November 1, 2010):

In the absence of textual or legislative guidance, this Court concludes that all of Rule 41’s procedural provisions apply to Section 2703(b)(1)(A), including Rule 41(f)(1)(C). As described below, however, 41(f)(1)(C) is satisfied by leaving a copy of the warrant with a third-party ISP.

Magistrate Judge Facciola’s Memorandum Order refers to “the notice thus required by Rule 41.” Mem. Order at 7. As the government notes, however, the relevant portion of Rule 41 does not include the word “notice.” Rather, Rule 41(f)(1)(C) requires that:

The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property. Rule 41 thus allows an officer to give a copy of the warrant and receipt to the person from whose premises the property is taken, even if that person does not own the property. There is no separate requirement that the property’s owner receive a copy of the warrant, a receipt, or any form of notice. Thus, the Eighth Circuit found that police complied with a state rule of criminal procedure virtually identical to Rule 41(f) when they left a copy of their warrant and a receipt at the Federal Express facility from which they had received the package. United States v. Zacher, 465 F.3d 336, 339 (8th Cir. 2006). The court held that it was therefore “immaterial” to notify the defendant of the seizure. Id.

Analogizing Zacher, the district court in In the Matter of the Application of the United States of America for a Search Warrant[, 665 F. Supp. 2d 1210 (D. Ore. 2009)] found that the government satisfied Rule 41(f)(1)(C) by serving ECPA warrant on the third-party ISPs.

See Blog of the Legal Times and PogoWasRight.org.

Permalink 08:18:04 am, by fourth, 1193 words, 2479 views   English (US)
Categories: General

S.D.Tex.: Cell phone location data subject to Fourth Amendment and is more invasive than GPS [updated with link]

Technology is changing faster than the law. Cell phone location data is subject to the Fourth Amendment because it can reveal information from within the home. Indeed, cell phone location data is more invasive than GPS tracking. In re Application of the United States of America for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010):

Five years ago the first reported decisions on government acquisition of cell site information from telephone companies appeared. 4 The focus of those early decisions was the appropriate legal standard for obtaining prospective location information under the Electronic Communications Privacy Act (ECPA). Thereafter, a handful of decisions addressed the related problem of law enforcement access to historical cell site data collected and maintained by providers over time. A few courts have held that such requests triggered the Fourth Amendment warrant requirement, 5 but most courts to date have granted government access to such information under the SCA, which imposes a less-than-probable cause standard. 6

4 See In re Application of U.S., 384 F. Supp. 2d 562 (E.D.N.Y. 2005), on reconsideration, 396 F. Supp. 2d 294 (E.D.N.Y. 2005) (Orenstein, M.J.); In re Application of U.S., 396 F. Supp. 2d 747 (S.D. Tex. 2005) (Smith, M.J.); In re Application of U.S., 402 F. Supp. 2d 597 (D. Md. 2005) (Bredar, Mag.); In re Application of U.S., 407 F. Supp. 2d 132 (D.D.C. 2005) (Facciola, M.J.); In re Application of U.S., 405 F. Supp. 2d 435 (S.D.N.Y. 2005) (Gorenstein, M.J.).

5 See In re Application of U.S., 534 F. Supp. 2d 585 (W.D. Pa. 2008) (Lenihan, M.J.), aff'd No. 07-524M, 2008 WL 4191511 (W.D. Pa. Sep. 10, 2008) (McVerry, D.J.), vacated __ F.3d ___, 2010 WL 3465170 (3d Cir. Sept. 7, 2010); In re Application of U.S., Nos. 1:06-MC-6, 1:06-MC-7, 2006 WL 1876847 (N.D. Ind. July 5, 2006) (Lee, D.J.).

6 See 18 U.S.C. § 2703(d); In re Application of U.S., 509 F. Supp. 2d 76 (D. Mass. 2007) (Stearns, D.J.), reversing 509 F. Supp. 2d 64 (D. Mass. 2007) (Alexander, M.J.); United States v. Suarez-Blanca, No. 1:07-CR-0023-MHS/AJB, 2008 WL 4200156 (N.D. Ga. Apr. 21, 2008) (Baverman, M.J.);United States v. Benford, No. 2:09CR86, 2010 WL 1266507 (N.D. Ind. Mar. 26, 2010) (Moody, D.J.).

Several weeks ago U.S. Magistrate Judge James Orenstein, who authored the very first cell site opinion, suggested in a new opinion 7 that courts re-examine the constitutionality of historical cell site requests in light of recent appellate court decisions, such as that of the District of Columbia Court of Appeals in United States v. Maynard. 8 As if to underscore his point, two weeks later the Third Circuit became the first federal appellate court to issue an opinion dealing with government access to historical cell site data. 9 Rather than definitively resolving the Fourth Amendment issue, the court remanded the case to the district court, concluding that the factual record was insufficient to resolve whether such records "could encroach upon ... citizens' reasonable expectations of privacy regarding their physical movements and locations." 10

7 In re Application of U.S., No. 10-MJ-00550(JO), 2010 WL 3463132 (E.D.N.Y. Aug. 27, 2010) (holding that historical cell site information is protected by the warrant requirement of the Fourth Amendment).

8 615 F.3d 544 (D.C. Cir. 2010).

9 In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records, __ F.3d ___, 2010 WL 3465170 (3d Cir. Sept. 7, 2010).

10 Id. at *6.

Though significant, the caselaw developments have been outstripped by advancing technology. Recently, committees in both the House and Senate have conducted hearings on proposals to update ECPA, the 1986 statute establishing the regulatory regime governing electronic communications. Expert testimony at those hearings reveals that regulatory and market forces have produced dramatic advances in location technology over the past half-decade. As will be shown, this new technology has altered the legal landscape even more profoundly than the new caselaw.

. . .

Conclusions of Law

A. Under Current Location Technology, Cell Site Information Reveals Non-Public Information About Constitutionally Protected Spaces

. . .

Even if an exact latitude and longitude is not yet ascertainable or recorded for every single mobile call, network technology is inevitably headed there. As the Supreme Court observed in Kyllo v. United States regarding the ongoing research and development of radar surveillance devices:

While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or development.

533 U.S. 27, 36 (2001). Like the thermal imaging devices in Kyllo, the cellular location technology in use or development today crosses the "firm but also bright" Fourth Amendment line that the Supreme Court has drawn at the entrance to the house. Id. at 40. Accordingly, the cell site records generated by that technology are subject to constitutional protection.

B. Historical Cell Site Records Are Subject to Fourth Amendment Protection under the Prolonged Surveillance Doctrine of United States v. Maynard

It is true that cell site records for a single day may not always reveal particularly intimate details about the user's private life but merely that the user's cell phone (like the Karo beeper) was present in the home at a particular time. Nevertheless, as Justice Scalia has observed, "[i]n the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes." Kyllo, 533 U.S. at 37 (emphasis in original). In this case, the records sought by the Government are likely far more intrusive — not a single snapshot at a point in time, but a continuous reality TV show, exposing two months' worth of a person's movements, activities, and associations in relentless detail.

In his decision denying warrantless access to historical cell site information, Judge Orenstein relied most heavily on the recent decision of the Court of Appeals for the District of Columbia in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). In light of the technological developments noted above, reliance on the Maynard precedent is not essential to the ruling here. Even so, Maynard's treatment of month-long GPS surveillance is instructive, and provides additional support and alternative grounds for this decision.

. . .

In several respects, the historical cell site records sought here are more invasive than the GPS data revealed in Maynard. The duration and volume of information sought is more than doubled — 60 days as opposed to 28 days of movement. As we have found, the level of detail provided by cell site technology now approaches that of GPS, and its reliability in obtaining a location fix actually exceeds that of GPS. 79 Moreover, as Judge Orenstein points out, cell phone tracking is likely more revealing than a GPS device attached to a car, because the cell phone is carried on the person. 80 It will also inevitably be more intrusive, because the phone can be monitored indoors where the expectation of privacy is greatest. By contrast, the GPS device in Maynard revealed no information about the interior of a home or other constitutionally protected space.

This case also has a simple and insightful discussion of today's cell phone technology.

[I've looked online this morning for a free copy of this case. S.D. Tex., EFF, and EPIC don't have it posted yet. If somebody sees it free online, please forward me the link.]

Update: The ACLU provided me the link to the case. Thanks, ACLU.

Permalink 08:05:35 am, by fourth, 450 words, 453 views   English (US)
Categories: General

D.Idaho: SW to corroborate a witness was overbroad and invalid

The search warrant for weapons here was overbroad because evidence cannot be seized just to corroborate witnesses. United States v. Barnes, 749 F. Supp. 2d 1124 (D. Idaho 2010):

Here, Barnes challenges the specificity of the description of the items to be seized along with the probable cause to make the seizure. Barnes argues that there was insufficient probable cause to seize “knives or any other instrumentality of injury” as described in the search warrant. The Government concedes that there is merit to this argument. The Government acknowledges that Officer Vargas’ explanation that other weapons were to be seized “in order to corroborate [Atchinson’s] statements” has been recently rejected by the Ninth Circuit. Millender, 2010 WL 3307491, *10. (Holding that officers were not justified in searching for evidence that was not contraband or evidence of a crime for purposes of aiding their subsequent prosecution). The Court agrees.

. . .

In Millender, the Ninth Circuit determined that the officers had a precise description of the firearm used by the suspect in connection with the assault, and knew exactly what it needed and wanted. Therefore, the question of whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued cut against the validity of the warrant. Id. at *8.

This case is similar to Millender. With respect to the first question answered in determining whether a search warrant’s description is sufficiently specific to comply with the Fourth Amendment — whether probable cause exists to seize all items of a particular type described in the warrant — the Court concludes that it was not. Officer Vargas’ affidavit explains that three weeks earlier, Barnes obtained a handgun that was kept in the bedroom in a black, hard plastic case, and pointed it at Atchinson. Gov’t Ex. 2. The affidavit explains that Atchinson informed Officer Vargas that Barnes then pulled Atchinson’s head next to his and pointed the gun at his head and said: “see we could do this with one bullet and could get the both of us.” Id. Officer Vargas noted that Atchinson described a “revolver type handgun,” which was “silver and opening to the side to load the ammunition.” Id. Moreover, the search warrant affidavit specifically called for the search and seizure of this specific firearm. Id. The search warrant affidavit also described a sawed-off shotgun as being kept in the residence. Id.

Under these circumstances, there was probable cause to search for a specific, silver revolver type handgun — and perhaps a sawed-off shotgun. But there was nothing in the affidavit to form a basis for concluding there was probable cause to search and seize a generic class of firearms, knives and instrumentalities of injury.

Permalink 07:50:40 am, by fourth, 168 words, 440 views   English (US)
Categories: General

OH2: General motion to suppress search fails

Defendant’s motion to suppress was too general to advise the state of the grounds defendant was raising, so the motion was ineffective. State v. Whitt, 2010 Ohio 5291, 2010 Ohio App. LEXIS 4438 (2d Dist. October 29, 2010):

[*P40] Based on the wording of Whitt's motion to suppress and the accompanying memorandum, including the cases to which he cited to support [his argument part] II, we agree with the State that the motion to suppress failed to inform the State that Whitt was challenging his warrantless arrest for the reasons stated in Jones. Accordingly, Whitt has waived any challenge based on the officer's failure to obtain an arrest warrant.

The police responded to a domestic disturbance, and the officer was permitted in and out of the house by both. The officer asked the defendant for permission to search the garage and defendant gave it. Chiszar v. State, 936 N.E.2d 816 (Ind. App. 2010).*

Defendant was in custody, but he validly consented to a search. State v. Rox, 2010 Ohio 5238, 2010 Ohio App. LEXIS 4417 (8th Dist. October 28, 2010).*

11/02/10

Permalink 07:32:13 pm, by fourth, 45 words, 756 views   English (US)
Categories: General

EPIC's case against full body scanners compared to "upskirting"

Permalink 11:06:09 am, by fourth, 12 words, 411 views   English (US)
Categories: General

Turley and "Traffic Stop"

The always entertaining Jonathan Turley has Traffic Stop on his blog today.

Permalink 07:43:18 am, by fourth, 286 words, 594 views   English (US)
Categories: General

MD: SW for person permitted strip search for secreted drugs

Officers had a search warrant for defendant’s person based on probable cause. A search of his person did not produce contraband, so he was taken to the police station for a strip search. This moving was not an arrest and was reasonable. Moore v. State, 195 Md. App. 695, 7 A.3d 617 (2010):

Here, the search warrant authorized a search of a known drug dealer's person for illegal drugs and associated paraphernalia. It is well known in the law enforcement community, and probably to the public at large, that drug traffickers often secrete drugs in body cavities to avoid detection. In the “Probable Cause” section of the Application and Affidavit for Search and Seizure Warrant in this case, the affiants stated, generally, that they knew “through their training, knowledge and experience” that drug traffickers “[s]ecrete contraband … in secure locations within their person … for ready access and to conceal the same from law enforcement authorities.” (Emphasis added). Based on the facts of this case, and guided by Paulino and Bell, we are persuaded that the search of appellant pursuant to the warrant was reasonable, considering the nature of the items being searched for and the places in which they are often hidden.

Defendant does not get a Franks hearing here. The CI was interviewed on tape, and it supported the affidavit and showed probable cause. The defendant had standing to challenge the search because he was an overnight guest. United States v. Williams, 2010 U.S. Dist. LEXIS 115046 (D. Me. October 15, 2010).*

The affidavit described “child erotica,” and the fact that the images might have been computer generated and not real was not really a factor for probable cause. United States v. Ranke, 2010 U.S. Dist. LEXIS 115352 (E.D. Mich. October 29, 2010).*

Permalink 07:20:37 am, by fourth, 559 words, 486 views   English (US)
Categories: General

M.D.Ala.: Summary of the law of Franks

The Franks claim here fails because, while the affidavit was not perfect, it was good enough. Quibbling over the details where the affidavit was prepared in haste did not show that it was recklessly or intentionally false. United States v. Moreland, 2010 U.S. Dist. LEXIS 114618 (M.D. Ala. October 27, 2010), adopting 2010 U.S. Dist. LEXIS 115091 (M.D. Ala. June 25, 2010) (R&R), summarizing Franks law:

Affidavits supporting search warrants are presumed to be valid. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

To prevail on a motion-based on allegations of falsity in the supporting affidavit-to suppress evidence that was seized pursuant to a search warrant, the defendant has the burden of establishing that (1) the affiant made the alleged misrepresentations or omissions knowingly or recklessly and (2) exclusion of the alleged misrepresentations or inclusion of the alleged omissions would result in a lack of probable cause.

United States v. Fussell, 366 Fed. Appx. 102, 2010 WL 546714 (11th Cir. 2010) (No. 09-11555). See also United States v. Phillips, 323 Fed. Appx. 778, 780 (11th Cir. 2009) (No. 08-11502); United States v. Umansky, 291 Fed. Appx. 227 (11th Cir. 2008). "Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant." Franks, 438 U.S. at 171.

If a defendant demonstrates by a preponderance of the evidence that an affidavit used to procure a search warrant contains intentionally or recklessly false statements and that, without the false statements, the affidavit is insufficient to establish probable cause, the court must void the search warrant and exclude the fruits of the search. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). "[A] warrant affidavit violates the Fourth Amendment when it contains omissions "made intentionally or with a reckless disregard for the accuracy of the affidavit." Madiwale v. Savaiko, 117 F.3d 1321, 1326-27 (11th Cir. 1997) quoting United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). Thus, a defendant must establish (1) that information contained in the affidavit was untrue, (2) that inclusion of the untrue information was either deliberate or in "reckless disregard for the truth," and (3) that the untrue information was an essential element of the probable cause showing relied upon by the judicial officer in issuing the search warrant. See O'Ferrell v. United States, 253 F.3d 1257, 1267 (11th Cir. 2001).

. . .

The court recognizes, and nobody disputes, that the affidavit is not perfect. However, perfection is neither the standard nor the question; the court is bound by the standards set forth in Franks. Moreland has failed to present any objective evidence demonstrating that statements in the affidavit were false. Rather, he argues that the statements were inaccurate. Furthermore, although Moreland takes issue with the implication that the cooperating source had a history with James, he has failed to show by a preponderance of the evidence that the affidavit used to procure the state search warrant contained intentionally or recklessly false statements. At the time the affidavit was presented, the source was cooperating. Finally, the mere fact that more or different corroboration was available is insufficient to make the requisite showing under Franks that statements in the affidavit were untrue. Consequently, because the court concludes that Moreland has not established that the affidavit in support of the search warrant was based on intentionally or recklessly false information, his motion to suppress the items seized from his residence on Carlisle Street should be denied.

Permalink 07:07:49 am, by fourth, 163 words, 515 views   English (US)
Categories: General

Cal2: DMV record sufficient to stop here on expired license; temporary tag, too, not enough

The officer ran defendant’s vehicle tag through DMV records, and it came back expired. There was a temporary tag in the window, but the officers had no way to determine whether it cured the expired tag. The stop was objectively reasonable. People v. Greenwood, 189 Cal. App. 4th 742, 117 Cal. Rptr. 3d 60 (2d Dist. 2010).*

The arrest warrant gave authority to enter the premises of the person named in it. Defendant’s actions at the door only supported the belief that the person was inside, so they came in. Drugs were found in plain view. People v Paige, 2010 NY Slip Op 7629, 77 A.D.3d 1193 (3d Dept. October 28, 2010).*

Defendant was observed on casino surveillance doing a probable drug deal, and they called the police. The police saw the video and security pointed him out. Defendant was approached and consented to a pat down, and the drugs were found in a plain feel. The search was valid. State v. Ahumada, 225 Ariz. 544, 594 Ariz. Adv. Rep. 10, 241 P.3d 908 (App. 2010).*

11/01/10

Permalink 11:40:40 am, by fourth, 113 words, 740 views   English (US)
Categories: General

SCOTUS cert grant: Should GFE apply to Gant? "Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional."

Davis v. United States, 09-11328. Question presented:

In United States v. Leon, 468 U.S. 897 (1984), this Court created a good faith exception to the exclusionary rule of the Fourth Amendment. The Court has expanded the good-faith exception over time, most recently in Herring v. United States, __ U.S. __, 129 S.Ct. 695 (2009). Petitioner asks the Court to resolve a deepening split in the lower courts over whether the good-faith exception applies to changing interpretations of law. The question presented is this:

"Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional."

SCOTUSBlog here; Cert petition here; Eleventh Circuit's opinion here.

Permalink 05:08:49 am, by fourth, 279 words, 580 views   English (US)
Categories: General

D.Me.: The shifting burdens of proof on SWs and GFE

The officers executing a search warrant came upon papers during execution of a search warrant with website addresses and “lolita” and “boys” along with pictures of nude boys. This was plain view because the warrant was valid. United States v. Clark, 2010 U.S. Dist. LEXIS 115048 (D. Me. October 27, 2010)*:

A defendant bears the burden of proving the illegality of a warrant; if he succeeds, the burden shifts to the government to prove entitlement to the Leon good-faith exception. See, e.g., United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985) (“The general federal rule on who bears the burden of proof with respect to an allegedly illegal search or seizure is based upon the warrant-no warrant dichotomy: If the search or seizure was effected pursuant to a warrant, the defendant bears the burden of proving its illegality; if the police acted without a warrant, the prosecution bears the burden of establishing legality.”); see also, e.g., United States v. Koerth, 312 F.3d 862, 868 (7th Cir. 2002) (“If a defendant is successful in establishing the invalidity of the search warrant, the burden then shifts to the Government to establish that the police relied in good faith on the judge's decision to accept the affidavit and issue the warrant.”).

Defendant’s 2255 fails on all grounds, including the Fourth Amendment claim, because the defendant did not show that the Fourth Amendment claim could remotely succeed. His factual scenario was contrary to everything already in the record. United States v. Nichols, 2010 U.S. Dist. LEXIS 114949 (D. Kan. October 28, 2010).*

The video of the stop shows that the defendant verbally consented to the search of his vehicle. United States v. Griffith, 2010 U.S. Dist. LEXIS 114960 (D. S.C. October 28, 2010).*

Permalink 04:51:12 am, by fourth, 571 words, 6539 views   English (US)
Categories: General

D.Kan.: Defendant's drug courier profile stop was invalid

Buying a one-way bus ticket with cash going from Las Vegas to Des Moines was hardly reasonable suspicion. The defendant's encounter was without reasonable suspicion and his consent was not voluntary. [Essentially, the government confronts the defendant, gets him nervous, and then claims nervousness is a factor in reasonable suspicion. Defense counsel showed how consent was invalid.] United States v. Correa, 753 F. Supp. 2d 934 (D. Kan. 2010)*:

The court finds that the encounter most resembles a Terry-type investigative detention and the government’s contention that it was consensual does not make it so. The facts on which the officers relied to single out the defendant for questioning do not furnish the reasonable, articulable grounds for suspicion of criminal activity required to justify the detention of the defendant. The officers’ targeting of the defendant was based only on the facts that he purchased his ticket with cash shortly before departure and was traveling from Las Vegas to Des Moines. This rationale is troubling. The officer’s reliance on the defendant’s purchase of a one-way ticket for cash shortly before departure is no cause for suspicion. Absent some evidence that it is unusual for bus travelers to do so, the court can draw no inference from the defendant’s cash purchase. Bus tickets are generally less expensive than airplane tickets, and common sense dictates that bus transportation is more likely to be used by people who do not have credit cards. There is no evidence that the ground transportation industry provides any incentive to purchase a ticket early, as the airline industry does. Officer Scott’s reliance on the trip’s origination in Las Vegas is similarly meaningless. Because of the widespread availability of drugs and the prevalence of cross-country drug-trafficking, virtually every major metropolitan area in the United States can be identified as either a source or destination city, or both, for the illicit drug trade.

Further, the court attaches no significance to the defendant’s explanation of the purpose of his trip. It is neither suspect nor inconsistent to describe the place where a person grew up or where his family lives as “home.” Also, the fact that the defendant carried only a small piece of luggage and acted nervous does not give rise to suspicion. Traveling light is conduct that is typical of many innocent travelers, as is nervousness in the face of interrogation in a confined space by presumably armed law enforcement officers. Given the method of law enforcement’s encounter in this matter, the court has little doubt that these officers fully expected to obtain acquiescence to search from any passenger they chose.

The court next finds that the government has not sustained its burden of showing that the defendant’s consent to search was voluntary. There is nothing in the record to support the conclusion that the defendant was of average intelligence and could reasonably comprehend the situation. Scott testified that he did not know the defendant’s nationality, level of education or criminal history. The conversation lasted only a few minutes and included short responses, pointing and gesturing. The contention that the consent was a product of free and unconstrained choice is further undermined by the evidence of the defendant’s “defeated” demeanor when asked for permission to search the jacket. The defendant’s demeanor could be easily interpreted as reluctance to consent and at most shows a mere acquiescence to a claim of lawful authority.

Permalink 04:21:24 am, by fourth, 202 words, 492 views   English (US)
Categories: General

D.Minn.: Seven month old information in a CP case is not stale

Because child pornography is unlikely to be quickly discarded by a recipient, a seven month delay in obtaining the search warrant was not stale. United States v. Freeman, 2010 U.S. Dist. LEXIS 115074 (D. Minn. May 13, 2010) (R&R), adopted 2010 U.S. Dist. LEXIS 114911 (D. Minn. October 28, 2010)* [This is common in affidavits for CP SWs. I’ve represented two where some of the material was more than ten years old, and one had a collection dating back well before personal computers.]

Defendant who does not stop has no Fourth Amendment claim. Even so, the officer had reasonable suspicion. United States v. Slaughter, 2010 U.S. Dist. LEXIS 114666 (E.D. Mo. October 13, 2010).

The defendant’s computer was sent in by him for repair, and the repair technician saw child pornography on it and reported it. A search warrant was validly issued for the computer and it was limited in scope. United States v. Andrist, 2010 U.S. Dist. LEXIS 114011 (D. Minn. August 19, 2010).*

The court concludes that the officer had probable cause to believe that there was a gun in the car, and the passenger’s motion to suppress is denied [without ever getting to standing]. United States v. Constantine, 2010 U.S. Dist. LEXIS 114059 (D. Minn. August 17, 2010).*

Permalink 04:11:57 am, by fourth, 172 words, 583 views   English (US)
Categories: General

CA10: Cell phone search as exceeding scope of SW was waived

The USMJ issuing a search warrant for defendant’s stuff after a traffic stop struck out the words “electronic equipment,” and the officer searched the images on defendant’s cell phone anyway. This issue was not timely raised in the District Court, and it is waived for appeal. United States v. Jean-Claude, 400 Fed. Appx. 384 (10th Cir. 2010) (unpublished).*

Defendant’s traffic stop was valid, and the officer directed him out of the car. He left the door open, and the officer could see the grip of a handgun in plain view. United States v. Montes, 400 Fed. Appx. 390 (10th Cir. 2010) (unpublished).*

State inmate is denied a certificate of appealability (COA) for his habeas appeal of his Fourth Amendment claim because “we are not persuaded that reasonable jurists could disagree with the district court’s conclusion that his Fourth Amendment claim was fully and fairly litigated in the Colorado state courts.” Abram v. Milyard, 400 Fed. Appx. 380 (10th Cir. 2010) (unpublished)* [in my circuit, you would not even get an opinion on the denial of the COA].

Permalink 12:12:20 am, by fourth, 197 words, 502 views   English (US)
Categories: General

W.D.Pa.: Direction to get back into a vehicle is not a seizure

Directing the defendant who got out of his vehicle to get back in was not a seizure and did not violate the Fourth Amendment. United States v. Wolford, 2010 U.S. Dist. LEXIS 114800 (W.D. Pa. October 26, 2010)*:

We find that the rationale underlying the above-listed decisions is equally applicable to our scenario where it was the driver (as opposed to the passenger) that had exited a validly stopped vehicle. The strong public interest in officer safety outweighs Mr. Wolford's liberty interest, especially since Mr. Wolford had not only exited his van upon being stopped, but was walking away from the police officers at the time he was told to return to his vehicle. As such, we find that Officer Caterino's order to Mr. Wolford that he get back into his van after he had exited it did not constitute an illegal seizure that violated Mr. Wolford's Fourth Amendment rights. Moreover, in so holding, we find, contrary to the Defendant's argument, that the United States Supreme Court's decision in Arizona v. Gant, supra., is irrelevant to the issue of whether the police officer's order to Mr. Wolford to re-enter his van violated Mr. Wolford's right under the Fourth Amendment.

Permalink 12:02:30 am, by fourth, 458 words, 491 views   English (US)
Categories: General

D.Minn.: Motion to suppress granted after guilty verdict; no RS for vehicle frisk

After the jury verdict, the court grants the motion to suppress on the ground the defendant’s stop was without reasonable suspicion and the search was without cause, and a judgment of acquittal is entered. United States v. Foster, 752 F. Supp. 2d 1060 (D. Minn. 2010):

Importantly, the Fourth Amendment does not permit police to conduct routine, suspicionless searches of people or vehicles during traffic stops. See Long, 463 U.S. at 1049 n.14 (“We stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop ....”). Indeed, as the Supreme Court recently held in Arizona v. Gant, even if a traffic stop leads to an arrest, the police may not automatically search the stopped vehicle. 129 S. Ct. 1710, 1723-24, 173 L. Ed. 2d 485 (2009) (“Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”). To the extent that the government argues otherwise in this case, the government is mistaken.

. . .

North Minneapolis is indeed a high-crime area, but the vast majority of its residents, and the vast majority of those driving through it, are not criminals. The Court does not believe that when police see a person lean forward in a car that they have stopped — even if they have stopped the car late at night in a high-crime area — they have reasonable suspicion to believe that the person is armed and dangerous. There are simply too many alternative explanations for why a person would lean forward, such as to retrieve ID from a purse or backpack, or to move from a slouched to an upright position in the seat. ...

In sum, the Court cannot find, by a preponderance of the evidence, that Bohnsack and Ochs had reasonable suspicion to believe that Foster was armed and dangerous when Foster stepped out of the car at the officers' request. Accordingly, Bohnsack was not justified in conducting a patdown search of Foster. The Court therefore suppresses the magazine that was found in Foster's pocket. Further, because Bohnsack and Ochs would not have had any reason to search the interior of the Taurus if Bohnsack had not found the magazine on Foster's person, the Court suppresses the gun that was found in the Taurus. Without this evidence, no reasonable jury could find Foster guilty of unlawfully possessing a firearm or ammunition, and the Court therefore grants Foster's motion for a judgment of acquittal notwithstanding the jury's verdict.

10/31/10

Permalink 10:35:57 am, by fourth, 295 words, 506 views   English (US)
Categories: General

AZ: When officers realized defendant was not the wanted man, they should have released him, not take him in for questioning

The defendant was detained because he looked like the suspect they wanted. When they found out he was not the right guy, they should have released him and not took him in for questioning because that violated his Fourth Amendment rights. On this record, however, this violation was harmless. State v. Kinney, 225 Ariz. 550, 594 Ariz. Adv. Rep. 6, 241 P.3d 914 (App. 2010):

P15 Here, the officers had received a tip that Balentine, for whom there was an outstanding felony arrest warrant, was at a particular address. Officers found Kinney at that location and he somewhat matched Balentine's physical description. Based upon the totality of the circumstances, the officers had reasonable suspicion that Kinney might be Balentine and, therefore, was involved in criminal activity. Accordingly, the officers' initial investigatory detention was permissible. See Aguirre, 130 Ariz. at 56, 633 P.2d at 1049.

P16 Once the officers determined that Kinney was not Balentine, however, they no longer had reasonable suspicion that he was wanted in connection with the arrest warrant and therefore were required to end Kinney's detention. See Teagle, 217 Ariz. 17, P 32, 170 P.3d at 275. By detaining Kinney longer than necessary to determine whether he was Balentine and continuing to question him, the officers exceeded the permissible scope of the initial investigatory detention. See id. The trial court properly suppressed the statements Kinney made at the scene after officers learned he was not Balentine. See Florida v. Royer, 460 U.S. 491, 501 (1983) (noting "statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention"); In re Maricopa County Juv. Action No. JT30243, 186 Ariz. 213, 215-16, 218, 920 P.2d 779, 781-82, 784 (App. 1996) (confession resulting from illegal detention properly suppressed). And the court could have suppressed the statements at the station, had it been requested to do so.

Permalink 10:18:00 am, by fourth, 121 words, 434 views   English (US)
Categories: General

GA: School resource arriving during administrator's search for a weapon was not a police search

A school administrator’s search that produced a gun was not a police search just because the school resource officer showed up while the search was going on. Ortiz v. State, 2010 Ga. App. LEXIS 1010 (October 27, 2010).*

Defendant’s claim that his counsel was ineffective for not challenging the seizure of body armor used in a robbery he was convicted of fails because he can’t show that the search would be suppressed. Nyane v. State, 2010 Ga. App. LEXIS 1008 (October 27, 2010).*

Defendant was speeding, and the officer had the subjective intent to stop the defendant. There were furtive movements before he got out of the car, and the officer smelled marijuana. His handcuffing was reasonable. State v. Mitchell, 52 So. 3d 155 (La. App. 5th Cir. 2010).*

Permalink 09:33:29 am, by fourth, 215 words, 490 views   English (US)
Categories: General

S.D.Ill.: A motorist can't ignore blue lights, so he was stopped

Defendant’s car was parked, and the police pulled up with blue lights on. “The Illinois Rules of the Road do not permit motorists to disregard police lights or emergency vehicles,” so he was stopped, and it was without reasonable suspicion. United States v. Windom, 2010 U.S. Dist. LEXIS 114650 (S.D. Ill. October 28, 2010):

When the Tahoe (lights ablaze) zipped up and parked in front of Windom’s car (with the law enforcement vehicle parked at an angle facing Windom’s car on the “wrong side of the street,” partially blocking the street) and two officers hopped out and approached Windom’s vehicle, a reasonable person in Windom's shoes would not have felt free to ignore the officers, drive off, “decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501 U.S. at 435-36; United States v. Drayton, 536 U.S. 194, 202 (2002).

The court already upheld the search on consent to enter by apparent authority. On defendant’s motion to reconsider, nothing new was added that changes the outcome. United States v. Newton, 2010 U.S. Dist. LEXIS 114740 (N.D. Ind. October 28, 2010).*

Because there was no real factual issue with the probable cause for the search warrant of plaintiff’s property, the qualified immunity question does not even have to be addressed. Parkey v. Sample, 623 F.3d 1163 (7th Cir. 2010).*

Permalink 09:07:36 am, by fourth, 790 words, 1004 views   English (US)
Categories: General

CA2: While child porn SW violated Groh, exclusionary rule not applied under Herring and Leon

Defendant was accused of child pornography by his own victims, and the police raced to get a search warrant for his computer which had pictures of the kids that he showed them. While the failure to attach appropriate documents violated Groh, the court refuses to suppress the search under the exclusionary rule and the good faith exception. United States v. Rosa, 626 F.3d 56 (2d Cir. 2010):

Upon examining the circumstances of the case, we conclude that the officers acted reasonably and that the exclusionary rule would serve little deterrent purpose in this case. Given the time pressures and the content of the application and the affidavit, it is only reasonable to conclude that the failure to ensure that the items to be seized were properly limited under the express terms of the warrant was simply an inadvertent error that was the product of “isolated negligence.” Herring, 129 S.Ct. at 698. There is nothing to suggest deliberateness and culpability on the officers’ part. See United States v. Riccardi, 405 F.3d 852, 863-64 (10th Cir. 2005) (applying the good faith exception to an officer’s search of a seized computer for evidence of child pornography despite the warrant’s lack of particularity). “[E]ven assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” Leon, 468 U.S. at 918-19; see Herring, 129 S.Ct. at 704 (“In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence ... rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’” (internal citations omitted)).

Rosa invokes Leon’s language that good faith may not be found where a “warrant [is] so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized,” to argue that a reasonable officer could not rely on this search warrant in good faith and that the exclusionary rule should therefore apply. He likewise relies on the Supreme Court’s denial of qualified immunity to the ATF agent in Groh as further support for applying the exclusionary rule. Not every facially deficient warrant, however, will be so defective that an officer will lack a reasonable basis for relying upon it, see Otero, 563 F.3d at 1134; Riccardi, 405 F.3d at 864, and the defective warrant in this case certainly did not have the glaring deficiencies of the itemless warrant in Groh. Moreover, the Court has made clear since Leon that while the objective inquiries underlying the good faith exception and qualified immunity are the same, see Groh, 540 U.S. at 565 n.8, application of the exclusionary rule requires the additional determination that the officers’ conduct was “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system,” Herring, 129 S.Ct. at 702. Because there is no evidence that Investigator Blake and his team of officers actually relied on the defective warrant, as opposed to their knowledge of the investigation and the contemplated limits of the town justice’s authorization, in executing the search, the requisite levels of deliberateness and culpability justifying suppression are lacking. Cf. Groh, 540 U.S. at 569 (Kennedy, J., dissenting) (“The issue in this case is whether an officer can reasonably fail to recognize a clerical error, not whether an officer who recognizes a clerical error can reasonably conclude that a defective warrant is legally valid.”); id. at 579 (Thomas, J., dissenting) (“[T]he Court does not even argue that the fact that [the agent] made a mistake in preparing the warrant was objectively unreasonable, nor could it. ... The only remaining question is whether [his] failure to notice the defect was objectively unreasonable.”).

The circumstances surrounding the investigation and application for a warrant, conducted with necessary speed in the early hours of the morning, and the search, executed by a team led by the application’s affiant, demonstrate that the officers proceeded as though the limitations contemplated by the supporting documents were present in the warrant itself, and, as a result, their actions “bear none of the hallmarks of a general search.” Liu, 239 F.3d at 141. Under the facts of this case, we conclude that the benefits of deterrence do not outweigh the costs. In so holding, however, we reiterate the importance of law enforcement’s compliance with the probable cause and particularity requirements of the Fourth Amendment and emphasize that application of the exclusionary rule will vary in accordance with the facts of each case.

Permalink 07:33:29 am, by fourth, 334 words, 554 views   English (US)
Categories: General

N.D.Cal.: CI's information and surveillance still not PC here

Here, the CI’s information and the police surveillance that the defendant probationer lived at the place searched was the defendant’s were not sufficient to provide probable cause, and the motion to suppress is granted. United States v. Gates, 745 F. Supp. 2d 936 (N.D. Cal. 2010)*:

Here, the undisputed facts show that the CI does not meet the standard required by Gates to establish probable cause. First, the informant's basis of knowledge was never provided, and the information given about the 98th Avenue home (color, fencing, presence of dog in the yard) was consistent with what anyone walking by on the sidewalk would observe. Notably, the CI did not provide any specific information regarding the residence not known to the public. ... Second, the information the CI provided with specificity (that T-Della Reese had guns and marijuana) was only corroborated after the search had taken place. Lastly, the Government has provided no evidence that this CI was "tested," in that the CI had provided reliable information in the past. ...

The person consenting to entry had apparent authority to consent to an entry because the officer knew that he’d seen her there before and he knew that she and her kids lived there. United States v. Jackson, 2010 U.S. Dist. LEXIS 114095 (E.D. Tenn. October 26, 2010), adopting 2010 U.S. Dist. LEXIS 114029 (E.D. Tenn. August 25, 2010).*

A trash pull at defendant’s residence produced drug sale records and marijuana residue and that was sufficient for probable cause for the search warrant. United States v. Seidel, 2010 U.S. Dist. LEXIS 114168 (D. N.D. October 15, 2010).*

Defendant was parked outside of a known drug house at 3 a.m. sitting in the car with the inside lights on. The officer had enough to at least pull up and stop to see what was going on and he parked in front of the car. At this point, defendant dropped drugs and ran. He was not illegally detained when he ran. United States v. Mabery, 2010 U.S. Dist. LEXIS 114249 (W.D. Mo. October 8, 2010).*

10/30/10

Permalink 11:41:21 am, by fourth, 1167 words, 746 views   English (US)
Categories: General

D.P.R.: Audio and video recording of attorney jail visit not protected because attorney was a co-conspirator

While this defendant was the target of an eavesdropping order, he had no standing to challenge a recording at the jail between a lawyer and another person involving him where bribery of a witness was discussed. United States v. Ramos-Gonzalez, 2010 U.S. Dist. LEXIS 113971 (D. P.R. October 25, 2010):

During the period between November 8, 2007 and November 19, 2007 a meeting between cooperating defendant Canuelas and Bronco, a licensed attorney in the Puerto Rico state court, was arranged by Laboy with the assistance of Zabala. On December 1, 2007, Bronco and Arroyo, another lawyer, met with Canuelas without the previous authorization of his attorney. It is alleged that during this meeting, which was not recorded, Bronco asked Canuelas to sign a piece of paper indicating that Bronco had authorization from the cooperating defendant to meet with him and that Canuelas’ attorney was aware of the visit.

The Federal Bureau of Investigations (FBI) sent the Warden of the MDC a letter in which it requested and through which it obtained authorization to conduct covert recordings of the meetings between Canuelas and Bronco and Arroyo within the MDC. (Docket No. 934). As a result subsequent meetings between Canuelas and attorneys Bronco and Arroyo were audio and video recorded. The recorded meetings spanned from December 10, 2007 until January 2008. Defendant Bronco met with Canuelas on December 7, 2007. During this meeting Bronco hand-wrote a sworn statement that contained false statements concerning Canuelas’ knowledge of the involvements of several defendants in Criminal Case No. 07-318 (PG). Defendant Bronco then urged Canuelas to sign and initial the statement. The cooperating defendant signed the statement but reminded Bronco that the statements contained therein were false. On December 10, 2007 Arroyo met with Canuelas and urged the cooperating defendant to sign a typed version of the hand-written statement previously drafted by Bronco on December 7, 2007. Canuelas refused to sign the typed version of the statement after telling Arroyo that the statements contained therein were false. On December 11, 2007, Bronco and Arroyo met with Canuelas and sought to have him sign the typed version of the sworn statement. During this meeting Bronco was recorded on audio and video assuring the cooperating defendant that he would receive payment for his statement in the amount of twelve thousand dollars (12,000). Bronco again visited the cooperating defendant on January 2, 2008 with a slightly different false sworn statement in Bronco’s handwriting and had Canuelas sign it. On February 5, 2008 a Superseding Indictment, which included charges of conspiracy to tamper with a government witness, aiding and abetting to tamper with a government witness, and aiding and abetting to bribe a government witness, was returned.

They were also not protected by attorney-work product:

Defendant also claims that he has adequate standing to challenge the admission of the recordings under the work product doctrine. Although Defendant does not explicitly state his argument, the Court understands that he claims that he has standing to suppress the recordings because they are protected by the work product doctrine and are subject to an expectation of privacy under the Fourth Amendment. As discussed in the previous section, the Court understands that the Defendant is not an aggrieved person with standing to challenge the recordings. Moreover, the Court finds that Defendant lacks standing to assert any Fourth Amendment claims under the work product doctrine.

The work product privilege exempts documents prepared by an attorney in contemplation of litigation. ...

The work product doctrine is also vulnerable to the crime or fraud exception in situations where the work product is part of a criminal scheme. In re John Doe Corp., 675 F.2d 482, 491-492 (2d Cir. 1982); In re Special September 1978 Grand Jury (II), 640 F.2d 49, 62 (7th Cir. 1980). See also In re Doe, 662 F.2d 1073, 1078-1079 (4th Cir. 1981) (clarifying that the work product doctrine should not lend itself to use by lawyers seeking to insulate themselves from criminal prosecution).

Other sister courts have concluded that it would be perverse "to allow a lawyer to claim an evidentiary privilege to prevent disclosure of work product generated by those very activities the privilege was meant to prevent." Moody v. Internal Revenue Service, 654 F.2d 795, 800, 210 U.S. App. D.C. 80 (D.C. Cir. 1981). In other words, caselaw disfavors the use of the work product doctrine in order to cover up activities that are destructive of the legal system. Id. The Second Circuit has further stated examples of actions that are unlikely to be protected by the work product doctrine, "Similarly, where a party suborns perjury by a witness to bolster a claim or defense, [c]ommunications or work product relating to that witness may also be discoverable." In re Richard Roe, Inc., 168 F.3d 69, 72 (2d Cir. 1999).

. . .

The Court further concludes that even if Defendant met the work product standing requirements, the recordings in question would not be protected. The meetings between Bronco, Arroyo, and Canuelas were directed at convincing Canuelas to submit false sworn testimony rather than to interview a potential witness. (Docket No. 2437). The mere fact that Bronco was a licensed attorney and working for Defendant when he met with Canuelas does not mean that the conversations are automatically protected under the work product doctrine. Moreover, Bronco was not licensed to practice in the District Court of Puerto Rico and as a result his meetings with Canuelas could not have possibly been prepared in anticipation of litigation concerning the federal charges against Ramos.

Thus, the Court concludes that Bronco did not meet with Canuelas in his capacity as a lawyer and as a result the recorded conversations are not protected by the work product doctrine, nor do they have an expectation of privacy under the Fourth Amendment.

Finally, attorney-client privilege was rejected:

In his motion to suppress, Ramos attempts to convince the Court that the recorded conversations were covered under the attorney-client privilege. However, Defendant does not provide reasoning for this conclusion, nor does he cite relevant caselaw that would aid the Court in reaching this conclusion. The Court in its analysis and application of the law to the facts concludes that the totality of the circumstances suggest that there was no attorney client relationship. At the time that Canuelas met with Bronco and Arroyo, he was already represented by the Office of the Public Defender and Canuelas was not seeking legal advice. Moreover, the recorded conversations were not legal in nature and the meetings were concerned with illegal efforts to encourage Canuelas to submit a false statement. (Docket No.2437). Thus, when we examine the totality of the interactions between Canuelas, Bronco, and Arroyo we conclude that there was no attorney-client relationship and that the federal protections offered to attorney-client conversations do not extend to the communications that the Defendant seeks to suppress. The Court does not find it necessary to enter into an analysis regarding the crime-fraud exception because it finds that the attorney-client privilege is inapplicable in this case.

Remember Rule 5 in § 1:1 of my Professional Responsibility in Criminal Defense Practice (3d ed. 2005):

Say nothing or do nothing that you would be afraid to read about in the newspaper or in a transcript or hear in a courtroom someday.

Permalink 11:22:32 am, by fourth, 195 words, 481 views   English (US)
Categories: General

D.S.C.: Defendant's bag in his hands was subject to inventory on his custodial arrest

Defendant was the apparent subject of a 911 caller about an indecent exposure complaint of a man in dreadlocks with a white shirt at a particular place. Defendant matched the description, and his encounter with the police, including his patdown was purely by consent. When defendant was arrested, the bag with him was properly inventoried. United States v. White, 2010 U.S. Dist. LEXIS 113991 (D. S.C. October 26, 2010).*

2255 petitioner’s Gant claim was unreviewable in post-conviction under Stone v. Powell. [He did not allege an IAC claim. Note to readers: I almost never include cases citing Stone. If criminal defense lawyers don’t know that by now, they are beyond my help here. You have to tie the Fourth Amendment claim to an IAC claim via Kimmelman. But, I know that nonlawyers read this, too, and pro se 2255's and state post-convictions make this mistake everyday, and Stone is 34 years old.] Smith v. United States, 2010 U.S. Dist. LEXIS 114199 (N.D. Ohio October 27, 2010).*

The CI here was clearly reliable because the police listened in to telephone calls between him and the defendant for their probable cause. United States v. Constantine, 2010 U.S. Dist. LEXIS 113969 (D. Minn. October 26, 2010).*

10/29/10

Permalink 05:23:22 am, by fourth, 175 words, 808 views   English (US)
Categories: General

CA10: Utah statute requiring sex offenders to register Internet identifiers violates neither First nor Fourth Amendments nor ex post facto clause

A Utah statute that required that sex offenders register their Internet identifiers with the state violates neither the First nor the Fourth Amendment. As to the Fourth Amendment, there is no high privacy interest in the identifiers that a person uses on the Internet because it is voluntarily provided to third parties. It also does not violate the ex post facto clause. Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010).*

Four officers show up at defendant’s house and seek admittance. He lets them in, and they Mirandize him and then ask for consent. That is acquiescence to a show of authority, and the “consent” is invalid. State v. Ojeda, 2010 Fla. App. LEXIS 16275 (3d DCA October 27, 2010).*

Defendant failed to file a motion to suppress, so the search of his car by search incident or impoundment was not preserved for appellate review. The trial record alone is insufficient. State v. Roberts, 240 P.3d 1198 (Wash. App. 2010).*

An obvious hand to hand drug sale on the street surveilled by officers was probable cause. Donaldson v. State, 416 Md. 467, 7 A.3d 84 (2010).*

10/28/10

Permalink 08:09:16 am, by fourth, 226 words, 516 views   English (US)
Categories: General

W.D.Ark.: No REP in a package without defendant's name or alias on it

Defendant had no reasonable expectation of privacy in a package in a controlled delivery anticipatory search case where the package was addressed to an alias that defendant did not use. The package came from a source city in the hands of FedEx, and it was subjected to a dog sniff en route. A warrant was issued when it arrived at the delivery city, and 1.3 lbs of cocaine was found inside. An anticipatory warrant was issued for the house for the controlled delivery. All the warrants were valid, and the good faith exception would apply anyway. United States v. Barker, 2010 U.S. Dist. LEXIS 113559 (W.D. Ark. October 14, 2010).*

The officer here had ample reasonable suspicion for defendant’s stop based on a prior drug deal and surveillance. The district court’s findings are supported by the record, and, on de novo review, it showed reasonable suspicion. United States v. Bailey, 622 F.3d 1 (D.C. Cir. 2010).*

Defendant was stopped with PC for a traffic violation, and, when defendant was out of the car, the officer saw a bulge in defendant’s waistband, which he asked about. Defendant reached for it, and the officer did, too, in case it was a weapon. It was a cigar box with a cellophane side which had marijuana in plain view. United States v. Alston, 2010 U.S. Dist. LEXIS 113529 (D. S.C. October 25, 2010).*

Permalink 07:35:17 am, by fourth, 162 words, 540 views   English (US)
Categories: General

OH6: Defendant's apparent obvious mental disturbance was exigent circumstance

The police had exigent circumstances based on “information from appellant’s mother by which they could have reasonably inferred that appellant was agitated and possibly mentally disturbed. Certainly, appellant’s behavior in running from the car into the corn field, would have supported that inference.” State v. Sheffer, 2010 Ohio 5167, 2010 Ohio App. LEXIS 4353 (6th Dist. October 22, 2010), companion case at State v. Sheffer, 2010 Ohio 5165, 2010 Ohio App. LEXIS 4349 (6th Dist. October 22, 2010).*

Probable cause was shown by a link between defendant’s screen name and an IP address traced to defendant’s address, and “it was reasonable to infer that he had child pornography on the computer because he asked ‘Centralpamaster’ for photographs to view while masturbating.” State v. Shields, 124 Conn. App. 584, 5 A.3d 984 (2010).*

Officer’s mistake in stopping defendant with a special plate issued by the state without legal authority was a reasonable mistake of fact and not a mistake of law, so the stop was not invalid. State v. Horton, 150 Idaho 300, 246 P.3d 673 (App. 2010).*

Permalink 07:07:35 am, by fourth, 280 words, 549 views   English (US)
Categories: General

LA4: Police lacked reasonable belief in apparent authority of defendant's mother in jointly used hotel room

Defendant was staying in a hotel room with his mother, and the police had no basis for concluding that she had apparent authority to consent to a search of the hotel room. All their information going in was that the defendant was in control and they had no information that gave her apparent authority. State v. Nicholas, 51 So. 3d 98 (La. App. 4th Cir. 2010)*:

Moreover, in marked contrast to Gettridge, Molette, and even Brown, the State presented no testimony indicating that Ms. Jones ever represented to Det. Stovall that she had the authority to consent to a search of her adult son's residence, which she happened to own. The only testimony was to the effect that she was asked to give consent and did so, not that the detective was in possession of any facts upon which he could rely to find that she had any authority. Instead, it appears that Det. Stovall simply believed that a hotel owner can give valid consent to the search of a hotel room. Considering the jurisprudence, such a belief is not reasonable nor does it justify the failure to seek a warrant before searching.

Defendant had no standing in a car as a passenger. It was rented by his girlfriend’s father and driven by her. His subjective expectation of privacy in his gun in the car was not one that society would recognize as reasonable. United States v. Thompson, 2010 U.S. Dist. LEXIS 113279 (D. Me. October 21, 2010).*

Defendant’s 2255 that included a claim that defense counsel did not challenge a search failed to show prejudice because of the overwhelming proof against him. United States v. Ruelas, 2010 U.S. Dist. LEXIS 113157 (C.D. Cal. October 12, 2010).*

10/27/10

Permalink 08:50:02 pm, by fourth, 264 words, 506 views   English (US)
Categories: General

New law review article: "Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World"

Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World by Jeffrey Bellin, SMU’s Dedman School of Law. Abstract:

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, while highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.

Nearly everyone agrees that, as an intuitive matter, the “reasonableness” of a search or seizure depends to some degree on the seriousness of the crime being investigated. Yet, current Fourth Amendment doctrine ignores this intuition. As a result, an invasive search of a suspected shoplifter is, legally speaking, no more or less reasonable than the same search of a suspected murderer.

Through the years, the primary objection raised by the Supreme Court and academics to altering this status quo is that a crime severity variable would be unworkable. While a handful of scholars continue to argue for an increased role for crime severity in Fourth Amendment jurisprudence, this powerful objection remains unanswered. In an effort to fill this void in the debate, and introduce crime severity as a critical component of a revitalized search and seizure jurisprudence, this Article proposes a concrete framework for incorporating crime severity into Fourth Amendment doctrine. The Article then explores specific applications of the framework to highlight the constructive role crime severity distinctions can play in defining the constitutional parameters of searches and seizures in the modern era.

Permalink 04:38:48 pm, by fourth, 111 words, 492 views   English (US)
Categories: General

More on the FBI's "lost" GPS tracker

FBI's GPS Tracking Raises Privacy Concerns?, by Mina Kim:

When Yasir Afifi took his car in for an oil change, his mechanic found an unusual wire hanging from below. It was part of a black rectangular device attached to his car by a magnet. After posting photos of it on an online forum, where posters identified it as a GPS tracking device, Afifi, a Santa Clara, Calif., college student and computer salesman, got a visit from FBI agents demanding their equipment back.

The FBI confirms the device belongs to the agency and that agents visited Afifi to get it back. But Special Agent Joseph Schadler won't say why it was there.

Permalink 09:11:57 am, by fourth, 249 words, 455 views   English (US)
Categories: General

W.D.Ky.: PC for CP was shown off hashmarks on image found on a German computer associated with a US IP address

The search warrant for defendant’s computer for child pornography was not stale when the information was only ten months old, considering that CP is commonly kept for a long time. The probable cause here was based on a known CP file with a specific hash value being accessed in Germany from an IP address in the U.S. which was sent by German police to ICE which established that during the relevant time period was associated with defendant. The government also showed in the affidavit that defendant was involved with CP before that. United States v. Hampton, 2010 U.S. Dist. LEXIS 112970 (W.D. Ky. September 10, 2010).*

See Ralph C. Losey, Hash: the New Bates Stamp, 12 J. Tech. L. & Pol'y 1, 12 (2007):

What is hash? As the term is used today in electronic discovery, it is neither a food nor an illegal substance; hash is a mathematical process. To be precise, hash is an encryption algorithm. Hashing generates a unique alphanumeric value to identify the total combination of bits and bytes that make up a particular computer file, group of files, or even an entire hard drive. The unique number of a computer file is its hash value, also known in mathematical parlance as the "condensed representation" or "message digest" of the original message. It is more popularly known today as a "digital fingerprint."

[This is case is proof that one cannot even access child porn in another country without the U.S. government being able to find out about it.]

Permalink 08:00:41 am, by fourth, 127 words, 444 views   English (US)
Categories: General

WA: Telling suspect to take hands from pockets is not a seizure

Defendant was not seized when the officer was talking to him and told him to take his hands out of his pocket. He could not show defense counsel was ineffective for not raising the issue. State v. Fortun-Cebada, 158 Wn. App. 158, 241 P.3d 800 (2010).

Hearsay during the suppression hearing was admissible. The officers had a witness’s description of the car involved in a drug store robbery, and stopped the car. Defendant never rebutted the testimony that the search of the car was by consent. Lloyd v. Commonwealth, 324 S.W.3d 384 (Ky. 2010).*

Defendant was not under arrest when he accompanied FBI agents in to talk about a crime they were investigating, and he ultimately validly confessed to sex crimes and murder. United States v. Redlightning, 624 F.3d 1090 (9th Cir. 2010).*

Permalink 07:45:14 am, by fourth, 273 words, 413 views   English (US)
Categories: General

N.D.Ga.: Defendant who was also a suspect could be detained without PC during execution of SW

Detaining and then handcuffing a potential suspect during the execution of a search warrant was reasonable under the circumstances under Muehler, and it did not require probable cause as to him. United States v. Maddox, 2010 U.S. Dist. LEXIS 112847 (N.D. Ga. September 7, 2010):

While Maddox correctly notes that law enforcement's motives in sequestering him are relevant, so long as it was reasonable under the circumstances to detain Maddox during the execution of the search warrant by handcuffing and seating him in the rear of a police car, he was not subjected to an illegal detention or a de facto arrest. Here, unlike the individual challenging the constitutionality of her detention in Muehler, Maddox was not a mere innocent occupant of the house being searched, detained as a result of unfortunate happenstance. He was instead the primary suspect in a robbery investigation, and his presence during the execution of the search warrant presented a legitimate safety concern, as well as a risk that he would flee or interfere with the search. See Muehler, 544 U.S. at 98; Bautista, 684 F.2d 1286, at 1288.

Defendant’s patdown was justified by a 911 call of assault on the street of a pregnant woman by a specifically described man. The officer got to the scene and saw no woman, but saw the man who was nervous and sweating despite the cold and he would not take his hands out of his pockets. The officer was justified in patting him down, and the vials of drugs in his pocket were easily determined by plain feel to be drugs under Dickerson. United States v. Robinson, 2010 U.S. Dist. LEXIS 113204 (E.D. Pa. October 22, 2010).*

10/26/10

Permalink 09:23:23 am, by fourth, 207 words, 6234 views   English (US)
Categories: General

CA9: Consent to seize computer for CP did not limit when it could be searched

Defendant’s consent to seize his computer for child pornography did not limit when the government could get around to search it. United States v. Murinko, 410 Fed. Appx. 2 (9th Cir. 2010) (unpublished)*:

We reject Murinko’s contention that the FBI’s delay in obtaining a search warrant and forensically searching his computer violated his Fourth Amendment possessory interest. Murinko’s reliance on United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009) and United States v. Dass, 849 F.2d 414 (9th Cir. 1988) is misplaced. Mitchell and Dass both involved warrantless seizures based on probable cause, not consent.

Defendant was not seized by officers when they were just asking questions. He was not seized until he gave his real name, and it was discovered that there was a warrant for his arrest. United States v. Anthony, 2010 U.S. Dist. LEXIS 112736 (N.D. Tex. October 21, 2010).*

Officers were in defendant’s house with a search warrant for child pornography traced to the residence by the IP address. The officers let defendant’s wife and child leave to take the child to school. He was free to move around the house during the questioning, and he was not in custody for Miranda purposes. United States v. Asher, 2010 U.S. Dist. LEXIS 112823 (N.D. Ga. October 21, 2010).*

Permalink 07:34:48 am, by fourth, 282 words, 6128 views   English (US)
Categories: General

N.D.Ill.: Guest standing under Olson does not extend to the backyard

Defense counsel was not ineffective for not moving to suppress evidence found in his grandmother’s backyard. While it was curtilage, the drugs were immediately apparent to the officer and seen from off the property. The critical issue, however, is that even if he had guest standing in the house, it does not apply to the backyard. Thomas v. United States, 2010 U.S. Dist. LEXIS 112641 (N.D. Ill. October 22, 2010):

Citing affidavits submitted by a cousin and by his grandmother, Thomas suggests that he was in fact an overnight guest at his grandmother's house, entitled to claim Fourth Amendment protections as recognized in Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 1688 (1990). If Thomas was in fact an overnight guest, however, he would nevertheless have no reasonable expectation of privacy in the curtilage of the house. See United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (tenant could not assert an expectation of privacy in common areas of an apartment because other tenants used that space and could admit as many guests as they pleased); United States v. Villegas, 495 F.3d 761, 768 (7th Cir. 2007) (no legitimate expectation of privacy in the common hallway of a duplex in which defendant resided). While the need for a guest's privacy is reasonable, the expectation of privacy does not extend to those areas of the house-the backyard, for example-in which the guest's privacy would not likely be respected. See Olson, 495 U.S. at 99, 110 S. Ct. at 1689.

The CI did not personally appear before the issuing judge, but that is only a single factor in finding probable cause. The CI was otherwise corroborated. Also, the good faith exception applied. United States v. Hester, 2010 U.S. Dist. LEXIS 112670 (N.D. Ill. October 22, 2010).*

Permalink 07:22:52 am, by fourth, 252 words, 6206 views   English (US)
Categories: General

W.D.N.Y.: Suppressed evidence not considered in detention hearing under 18 U.S.C. § 3142(g)

Once the court suppresses evidence, it cannot be included in the determination of whether the defendant should continue to be detained on the weight of the evidence against the accused. United States v. Barner, 743 F. Supp. 2d 225 (W.D. N.Y. 2010):

Some courts have held that evidence which is being suppressed for purposes of trial may nevertheless be considered in evaluating the “weight of the evidence” factor under § 3142(g). See Pina-Aboite, 97 Fed. Appx. 832, 2004 WL 1053235, *2 (“In a detention hearing, the district court is permitted to consider the evidence sought to be suppressed as if it were admissible”); United States v. Jay, 261 F.Supp.2d 1235, 1240 (D.Or. 2003) (“A court should have as much information as possible to evaluate properly whether a defendant poses any risk of danger to the community if released. Thus, even though this Court suppressed evidence for purposes of trial, that evidence may speak loudly concerning community safety because it involves convicted felons in unlawful possession of multiple weapons and cocaine”).

Notwithstanding these authorities from other circuits, for the following reasons I conclude that the suppressed evidence should be given little or no weight in applying this factor. In deciding to consider the suppressed evidence for purposes of pretrial detention, the court in Jay applied a “cost-benefit” analysis, citing United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984): “The court concludes … [that] consideration of the suppressed evidence is warranted under cost-benefit analysis, particularly when applying the statutory release factors that bear on community safety”. Jay, 261 F. Supp.2d at 1240.

Permalink 07:11:01 am, by fourth, 262 words, 6232 views   English (US)
Categories: General

W.D.Tenn.: A wad of cash is "immediately apparent" to a Secret Service agent investigating counterfeiting

A Secret Service agent who stopped a suspected counterfeiter and patted him down was able to conclude that the wad of cash in the pocket was immediately apparent as counterfeit money. United States v. Smith, 2010 U.S. Dist. LEXIS 112499 (W.D. Tenn. August 16, 2010):

While Agent Davis did not testify specifically about his personal observations when he felt the wad of cash in Smith's pocket, it is reasonable to believe that a Secret Service agent investigating a person for passing counterfeit would immediately recognize the feel of a wad of cash in the person's pocket and believe that it was incriminating evidence. In United States v. Bustos-Torres, 396 F.3d 935 (8th Cir. 2005), an officer observed what he believed to be a drug transaction, and as he conducted a Terry frisk of defendant Alfaro for weapons, the officer came across two wads of bills in Alfaro's pockets, which the officer seized. On appeal, the Court of Appeals considered whether the officer had probable cause to seize the money, that is, whether the bills, by their mass and contour, were immediately identifiable to the officer's touch as incriminating evidence. The court, "[p]ondering the question with a dose of common sense," held that the officer had probable cause to seize the money based on his prior observation of a possible drug transaction and the large number of bills in Alfaro's pockets. Id. at 945.

Where there were three consensual home visits by CPS before plaintiffs refused a fourth entry, there was no Fourth Amendment violation. Breakwell v. Allegheny County Departement of Human Servs., 406 Fed. Appx. 593 (3d Cir. 2010).*

Permalink 12:02:05 am, by fourth, 162 words, 6058 views   English (US)
Categories: General

NLJ: 3d Cir. sua sponte sets en banc on DNA draw case after argument but before decision

En Banc 3rd Circuit Set to Hear DNA Samples Case by Shannon P. Duffy in The Legal Intelligencer, today.

When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal that is now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals.

At issue in United States v. Mitchell is perhaps one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant or wait for a conviction before taking a genetic sample.

The Justice Department's appeal in Mitchell was initially argued before a three-judge panel in April. But the court last week took the rare step of slating the case for en banc reargument without releasing a decision from the three judges.

10/25/10

Permalink 12:24:57 am, by fourth, 316 words, 6184 views   English (US)
Categories: General

FL2: Driver's consent to search inevitably but lawfully results in detention of passengers for the duration of the search

Consent given by a driver with passengers in the car lawfully resulted in detention of the passengers while the search occurred. The officer’s comment that he was arresting everybody unless somebody claimed it resulted in defendant’s admission that he would “take the rap” and was a Miranda violation. England v. State, 46 So. 3d 127 (Fla. App. 2d DCA 2010).*

Farmer was accused of sale of counterfeit goods, and a seizure of the goods led to a seizure of drugs. He pled to the latter, and the counterfeit goods charge was dismissed. He was entitled to return of the goods because the seizure was not supported by a post-deprivation hearing. Farmer v. Florence County Sheriff’s Office, 390 S.C. 358, 701 S.E.2d 48 (2010)*:

The Sheriff's Office has not provided any concrete reasons to justify its refusal to return Farmer's merchandise or any meaningful argument that its delay in instituting forfeiture proceedings was justified; indeed, it has even asserted that law enforcement need not provide any reason whatsoever to hold lawfully seized goods beyond the fact that a warrant had been issued for the seizure. In making these arguments, however, the Sheriff's Office appears to disregard the recognized purpose of a forfeiture hearing, which is “to confirm the state had probable cause to seize the property in question.”

Officers had probable cause to believe that defendant lived in a particular hotel room. The CI gave the hotel, and the police established that defendant was there, and that was corroboration. United States v. Oneal, 2010 U.S. Dist. LEXIS 111744 (N.D. Cal. October 13, 2010).*

The fact a warning ticket was issued rather than a traffic ticket did not show that the stop was without probable cause. There was, however, probable cause for the stop for speeding. Defendant validly consented to the search of his car when the paperwork was returned. United States v. Peguero, 2010 U.S. Dist. LEXIS 111670 (N.D. Fla. October 7, 2010).*

Permalink 12:15:16 am, by fourth, 475 words, 6029 views   English (US)
Categories: General

TX: Officers serving a SW are not precluded from investigating further when they think they found stolen property, limiting 1987 case

Officers on the premises with a search warrant who see things that they determine before they leave are criminal evidence are legally able to seize that evidence. Any further investigation into the nature of those items did not entail an additional and unjustified search of, or unduly prolonged police presence on, the premises, for the seizure of those items, and it was permissible under the Fourth Amendment. White v. State, 729 S.W.2d 737 (Tex. Crim. App. 1987) is disapproved. State v. Dobbs, 323 S.W.3d 184 (Tex. Crim. App. 2010), revg State v. Dobbs, 2009 Tex. App. LEXIS 1857 (Tex. App.--Dallas March 18, 2009) (unpublished):

The further investigation that the officers undertook in this cause did not involve any search of the premises that was not already authorized by the search warrant. So the appellee’s privacy interest was not compromised. Nor were the golf clubs and shirts actually seized until after the officers, still legitimately on the premises, developed probable cause to believe they were stolen, by conducting further investigation that did not involve an unjustifiedly incremental search of the actual premises. So the appellee’s possessory interest was compromised--but legitimately so, even without an additional warrant. It does not serve the interests of the Fourth Amendment to construe the “immediately apparent” aspect of the plain-view doctrine to prohibit this kind of further investigation because it does not impact either the privacy or the possessory rights of the defendant beyond the encroachment already legitimized by the warrant.

To appreciate the sensibleness of this understanding of the plain-view doctrine, suppose the facts were slightly altered. Suppose that at the instant the officers executing the search warrant had originally come across the golf clubs and shirts, they had thought nothing of it and conducted no further investigation of those items. Then suppose an officer in the burglary division had called one of the searching officers to inform him to be on the lookout for stolen golf clubs and shirts on the premises, describing them with particularity, because of probable cause the burglary division had just developed, independently of the officers executing the warrant, to believe these items were stolen. What was not “immediately” apparent to the searching officers would now be readily apparent, while the officers are still on the premises and legitimately conducting their search. They would now have probable cause to seize the stolen items. Under these circumstances, it makes no more sense to require an additional warrant to justify seizing the items than it would to require a warrant to seize apparent contraband that is found in a public place. Moreover, it should make no difference that the searching officers generated their own probable cause while still on the premises, so long as their investigation did not entail any greater intrusion on the premises (from which the defendant's privacy interest, after all, derives) than the intrusion already legitimately underway.

Permalink 12:05:40 am, by fourth, 166 words, 390 views   English (US)
Categories: General

NY, Nassau Co.: Calling housing inspector to scene of fire to see if premises were safe was reasonable

While a residential fire probably caused by a fuel burning appliance was being extinguished, the fire department called a building inspector to determine whether there was another such appliance in the building. Another locked apartment was found there, and they entered to look at it. [And, this court unconstitutionally put the burden of proof on the defendant as N.Y. courts chronically do: “Defendant, however, based on the testimony adduced at the hearing, failed to establish by a preponderance of evidence that the seizure was unlawful. Though the fire had been extinguished, the existence of an emergency had not been negated.” When are NY lawyers going to challenge this?] People v. Denis, 29 Misc. 3d 1150, 909 N.Y.S.2d 325 (Nassau Co. 2010).

Defendant’s motion to suppress the product of a protective sweep was reversed because the officers validly saw items in plain view and then put the observations in a search warrant application and came back for them. Commonwealth v. Matos, 78 Mass. App. Ct. 156, 935 N.E.2d 1285 (2010).*

10/24/10

Permalink 02:23:08 pm, by fourth, 217 words, 701 views   English (US)
Categories: General

News: Trucking industry to resist mandatory black box recording truck movements; new regulations 6/1/12

From Truckinginfo.com, Owner-Operator Group Challenges EOBR Rule, partly on Fourth Amendment grounds of government surveillance of realtime movements of big trucks:

The Owner-Operator Independent Drivers Association filed a petition seeking review of the final rule mandating electronic on-board recorders for motor carriers with chronic noncompliance with hours-of-service regulations.

The Federal Motor Carrier Safety Administration earlier this year issued a final rule, which will go into effect June 1, 2012, requiring carriers that violate hours of service rules 10 percent of the time, based on single compliance review, to use electronic onboard recorders to track driver hours.

The association's core argument against mandating "black boxes" is that there is no proof the devices can accurately and automatically record a driver's hours of service and duty status. An EOBR can only track the movement and location of a truck; it requires human interaction to record any change of duty status.

. . .

Another argument against the use of the electronic on-board tracking devices centers on the Fourth Amendment.

"The real-time, government mandated, 24-hour electronic surveillance of a driver's location and movements contemplated by the (notice of proposed rulemaking) is an unjustified and dangerous intrusion on drivers' right of privacy," the brief states.

The constitutional argument states that the constant monitoring constitutes a search of the driver within the meaning of the Fourth Amendment.

Permalink 02:14:31 pm, by fourth, 126 words, 675 views   English (US)
Categories: General

Blog: An analysis of United States v. U.S. District Court

"Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret"–-Parts 1, 2, 3, all linked here.

Given the current surveillance state situation in America, the Keith case, formally known as United States v. U.S. District Court, is one of the most important cases from our recent past. But I don't really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn't have simple facts, but they are fascinating and instructive. So bear with me--this is going to take awhile, and will be laid out over a series of four posts.

This case is referred to by lawyers as the "Keith" case because Keith was the real party in interest.

Permalink 12:53:20 am, by fourth, 298 words, 1001 views   English (US)
Categories: General

E.D.Mo.: “Indicia warrant” for “venue evidence” to show defendant’s connection to premises was broad but not overbroad

“Indicia warrant” for “venue evidence” to show defendant’s connection to premises was broad but not overbroad. Under Eighth Circuit precedent, the search did not violate the Fourth Amendment. United States v. Darr, 2010 U.S. Dist. LEXIS 111623 (E.D. Mo. October 20, 2010):

“A warrant authorizing officers to seize anything related to indicia of occupancy is quite broad.” [United States v. Romo-Corrales, 592 F.3d 915, 920 (8th Cir. 2010)] (quoting United States v. Timley, 443 F.3d 615, 623 (8th Cir. 2006)). Thus, in Romo-Corrales, the court held that a warrant authorizing a search for “venue evidence” (i.e., mail, bills, receipts or other indicia of a suspect's connection to a residence) permitted officers to search “the laundry hamper, garage, cooler, behind a mirror or picture, behind a dresser, and underneath the bed,” because these were areas where such evidence could be located. Id. Likewise, in this case, the search warrant authorized the police to search closed containers in the defendant's room, as these were areas in which the items listed in the warrant could have been concealed.

While searching the defendant's bedroom, the police found digital images of child pornography and small boy’s underwear inside a VCR container. The seizure of these items did not violate the Fourth Amendment, as they were found during the course of a lawful search and their incriminating character was immediately apparent. See United States v. Alexander, 574 F.3d 484, 490-91 (8th Cir. 2009) (under plain view exception to warrant requirement, police lawfully seized evidence of child pornography found during execution of search warrant for evidence of crime of invasion of privacy).

So, in the Eighth Circuit, my home circuit, this means that “indicia warrant” for “venue evidence” can be used as a legal pretext to search virtually anywhere for evidence: a laundry hamper, VCR container? Result oriented jurisprudence at its worst.

Permalink 12:15:10 am, by fourth, 123 words, 495 views   English (US)
Categories: General

CA9: DUI arrest justified SI of vehicle under Gant

DUI arrest under Gant and Thornton permits a search incident for alcohol and containers. Officer excluded defendant from his home for ten minutes, and he decided to “get this over with” and gave consent; did not make the search of the home unreasonable. United States v. Grote, 2010 U.S. App. LEXIS 21622 (9th Cir. October 20, 2010) (unpublished).*

A 2255 claim that defense counsel did not call one additional witness at the suppression hearing without showing how that would change the outcome was insufficient. Himmelreich v. United States, 2010 U.S. Dist. LEXIS 111552 (M.D. Pa. October 20, 2010).*

Defendants’ parole search was valid, and their legal objections to the search were all nullified by the parole search. United States v. Starnes, 2010 U.S. Dist. LEXIS 111720 (N.D. Ohio October 20, 2010).*

Permalink 12:05:09 am, by fourth, 194 words, 356 views   English (US)
Categories: General

OH5: Request for consent while handing papers back did not unreasonably extend the stop

A request for consent to search at the same time the officer handed back defendant’s DL and registration papers did not mean that the stop was continued for the request for consent. State v. Eatmon, 2010 Ohio 5092, 2010 Ohio App. LEXIS 4287 (5th Dist. October 18, 2010)*:

[*P38] While the officer goes on to testify that standard operating procedure is to issue the warning and tell the person that he or she is free to leave before requesting consent to search, in the instant case appellant was not free to leave after she issued the warning because she had not yet returned his license and registration. While she could not remember whether she returned these items before or after the search of the vehicle, the request to search was contemporaneous with the return of appellant's license and registration, and the officer therefore had not completed the traffic stop at the time consent was received for the search. Appellant was not unlawfully detained at the time he gave consent to search.

Defendant’s nervous behavior and furtive movements in the car of him and the occupants was reasonable suspicion. State v. Agee, 2010 Ohio 5074, 2010 Ohio App. LEXIS 4267 (8th Dist. October 14, 2010).*

10/23/10

Permalink 10:38:44 am, by fourth, 279 words, 586 views   English (US)
Categories: General

OH8: Entry into third party's home violated Payton and Steagald

The entry into a third party’s home for an arrest violated Payton and Steagald. The defendant was hiding out and moving around, but the officers had no real evidence that he was staying where he was found. State v. Mansaray, 2010 Ohio 5119, 2010 Ohio App. LEXIS 4307 (8th Dist. October 21, 2010):

[*P18] Thus, pursuant to the above case law, when the police execute an arrest warrant, they can only enter a residence of a third party without a search warrant if they have a reasonable belief that the person named in the warrant lives at the residence and is in fact home. In the instant case, the evidence does not show that the [U.S.] marshals had a reasonable belief that Williams lived with Mansaray. ...

[*P20] He also stated that: “[W]illiams knew we were looking for him and he was moving every couple of hours ***.” Tr. 159. This information did not provide evidence to support a reasonable belief that Williams lived at Mansaray’s house. The confidential informants did not state that Williams lived with Mansaray, just that he “would be with Mansaray.” While the tracking of Mansaray’s cell phone indicated that it was being used in the vicinity of Mansaray’s home, this would be expected because although Williams was using the phone, it was still Mansaray’s phone. There was no indication that Williams was exclusively using the phone. While the officers may have had a reasonable belief Williams was in the home, the evidence does not establish that they had a reasonable belief that Williams lived at the home. Therefore, to enter Mansaray’s residence, in addition to the arrest warrant, they needed to present a search warrant.

Permalink 10:01:06 am, by fourth, 238 words, 429 views   English (US)
Categories: General

E.D.N.Y.: One always has standing to challenge the search of his person

Defendant had “standing” to challenge a search of his person, and it is irrelevant to standing that he denies ownership of a gun found on his person. United States v. Morgan, 2010 U.S. Dist. LEXIS 111120 (E.D. N.Y. June 22, 2010):

Moreover, a defendant is not required to have an expectation of privacy in the evidence seized in a search. Here, Morgan challenges the stop of his person and may seek to suppress the evidentiary fruits of that seizure under the “fruit of the poisonous tree” doctrine regardless of whether he would otherwise have standing to challenge the seizure of the gun itself. ... The defendant need only assert that his Fourth Amendment rights were violated with regard to the poisonous tree, here the stop, and not separately regarding the evidence which constitutes the fruit of that poisonous tree, the gun.

Defendant’s wife consented to search for a computer in the house. She asked if she could look for it, and they said no, they would have to, and what would happen if she refused, and they said they would get a warrant. She consented to the entry, and she also had apparent authority to consent. While she did not have a key to the room entered, she, like her husband, entered the room with a knife or screwdriver, and she had equal access to that room. United States v. McManaman, 2010 U.S. Dist. LEXIS 110855 (N.D. Iowa October 18, 2010).*

Permalink 09:47:05 am, by fourth, 357 words, 1380 views   English (US)
Categories: General

W.D.Tex.: Refusal to consent cannot be a factor in reasonable suspicion

Refusal to consent here was considered by the officer a factor in reasonable suspicion, and this makes it unreasonable because the other factors failed, too. United States v. Jackson, 2010 U.S. Dist. LEXIS 110898 (W.D. Tex. October 13, 2010):

Refusal to consent to a search does not provide reasonable suspicion to justify a stop or continued detention. United States v. Machuca-Barrera, 261 F.3d 425, 435 n.32 (5th Cir. 2001) (citing United States v. Hunnicutt, 135 F.3d 1345, 1350-51 (10th Cir. 1998) (“[I]t would make a mockery of the reasonable suspicion and probable cause requirements ... if citizens’ insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.”)); see also Karnes v. Skrutski, 62 F.3d 485, 495 (3d Cir. 1995) (holding that refusal to consent to search “cannot support a finding of reasonable suspicion”); United States v. Gordon, 917 F. Supp. 485 (W.D. Tex. 1996) (holding officers lacked reasonable suspicion to continue to detain the defendant’s vehicle following the defendant’s refusal to consent to search his vehicle and that the defendant’s refusal to consent to a search of his vehicle could not be turned, by the officers, into a basis for the necessary level of reasonable articulable suspicion).

Furthermore, at one point Trooper Allick told Defendant that he respected Defendant’s Fourth Amendment rights. Video at 16:50. However, one cannot respect another’s Fourth Amendment rights and simultaneously punish that same person for exercising them. Had the other reasons Trooper Allick claimed after the fact been the true basis for any suspicion he may have had, he would have cited those reasons when explaining the situation during the stop on April 14, 2010. Instead, he referred only to Defendant’s exercise of his Fourth Amendment right to refuse consent, and he did so on six different occasions. Accordingly, this Court finds those later-mentioned reasons suspect.

. . .

In light of the totality of the circumstances and the evidence before it, the Court holds that Trooper Allick lacked an articulable factual basis to suspect wrongdoing. His continued detention of Defendant therefore violated Defendant’s Fourth Amendment rights.

Note: The court here discounted nervousness based on the video of the stop.

Permalink 09:18:33 am, by fourth, 264 words, 548 views   English (US)
Categories: General

WA: Exigency under school search exception is different

Defendant juvenile didn’t come home the night before, and he was reported as a runaway. The school resource police officer found him and another asleep in a car on the high school parking lot. A knife was seen in the back seat, and the school had a no tolerance police for weapons on school grounds. The owner of the car also consented to a search of the car. Defendant’s claim of a need for exigent circumstances under T.L.O. is different than in general. State v. Brown, 158 Wn. App. 49, 240 P.3d 1175 (2010):

An emergency under the school search exception is not the same as the exigent circumstances exception to the general requirement for a warrant. See Slattery, 56 Wn. App. at 823 (listing exceptions separately). An exigency under the school search exception is any threat to the order and discipline of a school. McKinnon, 88 Wn.2d at 81. An exigent circumstance under the exigent circumstances exception, however, is a true emergency. State v. Hinshaw, 149 Wn. App. 747, 754, 205 P.3d 178 (2009). It requires swift action to prevent danger to life, a suspect's imminent escape, or destruction of evidence. Id.

Repeated drug sales as probable cause to search a house also shows a lack of staleness. Wagner v. State, CR10-372 (Ark. October 21, 2010).*

Swabbing a cheek to procure a DNA sample constitutes a search under the Fourth Amendment and Wash. Const. art. I, § 7, and a search warrant is required. Assertions of an ASA during a hearing are not evidence, and the order for the DNA sample was not issued with probable cause. State v. Garcia-Salgado, 170 Wn. 2d 176, 240 P.3d 153 (2010).*

10/22/10

Permalink 02:11:17 pm, by fourth, 271 words, 595 views   English (US)
Categories: General

New law review article: "Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World"

Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World by Jeffrey Bellin of SMU Dedman School of Law on SSRN. The Abstract:

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, while highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.

Nearly everyone agrees that, as an intuitive matter, the “reasonableness” of a search or seizure depends to some degree on the seriousness of the crime being investigated. Yet, current Fourth Amendment doctrine ignores this intuition. As a result, an invasive search of a suspected shoplifter is, legally speaking, no more or less reasonable than the same search of a suspected murderer.

Through the years, the primary objection raised by the Supreme Court and academics to altering this status quo is that a crime severity variable would be unworkable. While a handful of scholars continue to argue for an increased role for crime severity in Fourth Amendment jurisprudence, this powerful objection remains unanswered. In an effort to fill this void in the debate, and introduce crime severity as a critical component of a revitalized search and seizure jurisprudence, this Article proposes a concrete framework for incorporating crime severity into Fourth Amendment doctrine. The Article then explores specific applications of the framework to highlight the constructive role crime severity distinctions can play in defining the constitutional parameters of searches and seizures in the modern era.

Hat tip CrimProf Blog.

Permalink 10:56:50 am, by fourth, 181 words, 525 views   English (US)
Categories: General

FreeP: "Lawyers argue over secret taping of Jabalee brothers at gravesite"

In the Detroit Free Press: Lawyers argue over secret taping of Jabalee brothers at gravesite:

Ryan Jabalee was heard crying or sobbing on a recording device set up by law enforcement at the gravesite of his murdered parents, Ronald and Christine Jabalee, in 2007.

His brother, Ronald Jabalee Jr. -- who is standing trial today in Macomb County Circuit Court in the October 2006 slayings -- did not sound distraught.

In opening statements, the prosecution painted Ronald as an uncaring son. The recording, if admitted, could support their claim.

Defense attorney Stephen Rabaut said the device was installed without a warrant and that the Fourth Amendment goes beyond telephone calls and includes invasion of privacy.

"It's eavesdropping," he said, adding that Michigan has a law about eavesdropping.

Assistant Prosecutor Steven Kaplan disagreed, saying "there's no privacy in public."

Could they eavesdrop in a public place with a parabolic microphone a la "The Conversation", or should a warrant be required? Is a graveside a "public place"? Is our society expectation that we will not be overhead alone at a graveside?

See Simple Justice Blog.

Permalink 10:31:56 am, by fourth, 38 words, 615 views   English (US)
Categories: General

ABC News: "Pilot Refuses Full Body Scan" and a patdown; risks firing

Permalink 05:31:11 am, by fourth, 448 words, 4630 views   English (US)
Categories: General

D.Utah: Defendant's merely respecting officer's asking questions still made it voluntary

The officer’s request to talk to the defendant was nonthreatening and noncoercive. The fact the defendant was respecting the officer’s wanting to ask questions and not feeling like he should just walk away was enough to make it consent. United States v. House, 2010 U.S. Dist. LEXIS 110740 (D. Utah October 18, 2010):

Although defense counsel argues that Officer Daley made a “show of force” by issuing commands at the defendant, the evidence presented at the hearing does not support this conclusion. In fact, the defendant’s own testimony demonstrates that Officer Daley’s request to speak with him was presented in a non-intrusive, non-aggressive manner. For example, when defense counsel asked the defendant, “Did you feel like you were free to leave at that point and walk away?” the defendant responded, “Well, sure, but I ain’t going to walk away from an officer trying to ask me questions.” (Tr. at 52.) Similarly, when defense counsel attempted to clarify the officer’s alleged “commands” by stating: “So [the officer] asked you to get off the phone? Or he’s making some indication you need to get off the phone?” The defendant responded, “No. He says, can I ask you a few questions. I told him, hold on, because I was talking to somebody at that point.” (Tr. at 52.) There is simply no evidence that Officer Daley used a commanding or threatening manner or tone of voice. Finally, the consensual nature of the encounter is not undermined by Officer Daley's failure to expressly tell the defendant he was free to leave. See INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984) (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”); ...

Update: This is addressed in my CLE presentation on societal understandings and vehicle stops, next at NORML Key West.

Our societal understanding is that we do not walk off from police officers; we at least show the courtesy of talking to them, and the police exploit that. My point is that the courts must respect that understanding. Otherwise, does this mean that citizens need to exercise their right to be discourteous to avoid the confrontation? As to our societal understandings underlying Katz's reasonable expectation of privacy, see, e.g., Minnesota v. Olson, 495 U.S. 91, 100 (1990):

Because respondent’s expectation of privacy in the Bergstrom home was rooted in “understandings that are recognized and permitted by society,” Rakas, supra, at 144, n. 12, it was legitimate, and respondent can claim the protection of the Fourth Amendment.

What is expected of the “reasonable person” v. reasonable police officer?

Permalink 05:20:09 am, by fourth, 346 words, 4695 views   English (US)
Categories: General

CA6: Illegal stop finding arrest warrant justifies application of exclusionary rule

Illegal stop that led to a warrant being found on one in the car was subject to the exclusionary rule; otherwise, police would have free reign to stop anybody. The taking of a DNA sample, however, was with a warrant, so it is not suppressed because it is independent. United States v. Gross, 624 F.3d 309, 2010 FED App. 0332P (6th Cir. 2010):

To hold otherwise would result in a rule that creates a new form of police investigation, whereby an officer patrolling a high crime area may, without consequence, illegally stop a group of residents where he has a “police hunch” that the residents may: 1) have outstanding warrants; or 2) be engaged in some activity that does not rise to a level of reasonable suspicion. Despite a lack of reasonable suspicion, a well-established constitutional requirement, the officer may then seize those individuals, ask for their identifying information (which the individuals will feel coerced into giving as they will have been seized and will not feel free to leave or end the encounter), run their names through a warrant database, and then proceed to arrest and search those individuals for whom a warrant appears. Under this scenario, an officer need no longer have reasonable suspicion or probable cause, the very crux of our Fourth Amendment jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Williams, 615 F.3d at 670, n.6 (“[A]llowing information obtained from a suspect about an outstanding warrant to purge the taint of an unconstitutional search or seizure would have deleterious effects. It would encourage officers to seize individuals without reasonable suspicion-not merely engage them in consensual encounters-and ask them about outstanding warrants.”); see also Michael Kimberly, Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 YALE L.J.177 (2008) (commenting that a rule where the discovery of an outstanding warrant constitutes an intervening circumstance has the perverse effect of encouraging law enforcement officials to engage in illegal stops where they have an inarticulatable hunch regarding a person on the street or in a car).

[This case has an excellent discussion of the exclusionary rule in application here.]

Permalink 05:07:56 am, by fourth, 187 words, 4503 views   English (US)
Categories: General

MA: Where there was RS of weapons in the car, a locked glove box was subject to frisk

Given that there was reasonable suspicion that the occupants of the car might be armed and dangerous, the fact the glove compartment had just been locked did not mean that it could not be subjected to a Long-type frisk for a weapon. The keys were available to anyone in the car, and it could still be opened. Commonwealth v. Graham, 78 Mass. App. Ct. 127, 935 N.E.2d 370 (2010).

Given that defendant’s vehicle was lawfully seized with probable cause after it and he matched a 911 call about a violent crime, the vehicle was lawfully searched under the automobile exception 2 ½ hours after the stop at the impound lot. Cars on the lot were not sufficiently protected from access by outsiders to remove exigency, and officers validly waited for a specially trained officer to arrive to search for hidden compartments. Commonwealth v. Bell, 78 Mass. App. Ct. 135, 935 N.E.2d 380 (2010).

In an ICE raid on a home occupied by persons who entered illegally, the fact they paid rent to the co-occupant did not dissipate the co-occupant’s ability to consent to entry against them. Escobar v. Holder, 398 Fed. Appx. 50 (5th Cir. 2010) (unpublished).*

10/21/10

Permalink 12:56:03 am, by fourth, 278 words, 4519 views   English (US)
Categories: General

M.D.La.: While detention was without RS, consent was independent act of free will

While there was no reasonable suspicion for the continued detention of the defendants, the court finds the driver’s consent was valid and the product of independent free will sufficient to overcome it. United States v. Eskichyan, 2010 U.S. Dist. LEXIS 109836 (M.D. La. October 12, 2010)*:

The Court does not doubt Officer Averette's credibility, nor his training and experience. The Court also does not doubt that defendants' criminal histories may have been in Officer Averette's mind and that he was frightened when he called for backup. But no amount of training or experience can turn the simple, objective facts that defendants had criminal histories and exhibited ordinary nervousness into articulable suspicion that defendants were about to commit a crime. If such common circumstances qualified as reasonable suspicion, then many — if not most — interstate travelers would be subject to prolonged detention. Weighing the totality of the circumstances, the Court finds that the officer lacked the requisite reasonable suspicion to detain defendants after the computer check was complete, and therefore, the detention was unconstitutional.

[Oh, come on. The continuation of the stop was clearly invalid, but the consent was valid anyway without a notice to the driver of his right to refuse?]

The officer pulled in behind defendants’ car in the driveway, but they did not see it until they were out of the car. This was not a stop because they were on foot when they talked to the officers. The blocking of the car was not a stop because they were not stopped. The passenger lacked standing to challenge a search of the car. Thus, the passenger cannot invoke Brendlin. United States v. Allison, 398 Fed. Appx. 862 (4th Cir. 2010) (unpublished).*

10/20/10

Permalink 06:52:38 am, by fourth, 132 words, 4545 views   English (US)
Categories: General

M.D.Fla.: Defendant's going from and returning to house around a drug sale showed nexus

Defendant’s coming and going from his place immediately before and after drug sales was nexus to search it. United States v. McCloud, 2010 U.S. Dist. LEXIS 110633 (M.D. Fla. September 26, 2010).*

Defense counsel was not ineffective for not challenging the valid third party consent here. Quibbling of a slight time difference in the reports did not show that it was a winning issue. Even if it was a plausible issue, it was harmless beyond a reasonable doubt. [This case has an interesting first issue in overcoming procedural default because of unclear state rules.] Johnson v. Thurmer, 624 F.3d 786 (7th Cir. 2010).*

Marijuana found in plain view in a car is probable cause to arrest everybody in the car under Pringle. United States v. Pertillo, 2010 U.S. Dist. LEXIS 110232 (S.D. W.Va. October 13, 2010).*

Permalink 06:24:45 am, by fourth, 246 words, 4515 views   English (US)
Categories: General

M.D.La.: RS required for knock and talk far off the road

Because defendant's house was so far from the road that reasonable suspicion was required, but officers had reasonable suspicion to conduct a knock and talk and enter his property which was a long way from the roadway. United States v. Ardoin, 2010 U.S. Dist. LEXIS 109806 (M.D. La. October 14, 2010):

Though the roadway is not a curtilage, and is therefore not subject to the heightened standards applicable to homes, the officers still must have had a reasonable suspicion upon which to approach Ardoin's home to conduct a “knock and talk” investigation. If the officer has a reasonable suspicion of criminal activity, the officer may approach an individual's home, knock on the door, and talk to the home’s occupants, and the Fourth Amendment is not implicated because no search or seizure occurs. United States v. Walters, 529 F. Supp. 2d 628, 636 (E.D. Tex. 2007). Reasonable suspicion sufficient to validate a “knock and talk” investigation may be based upon complaints or tips that an individual's home is being used for drug activity. Jones, 239 F.3d at 718, 720.

(Note: Cases seldom hold that reasonable suspicion is required for a knock and talk. Here, an entry onto the curtilage was also an issue, so it was disposed of with reasonable suspicion.)

On the totality of circumstances, defendant’s PO had reasonable suspicion of a parole violation and that evidence would be found at his house, so that justified the parole search. United States v. Chatman, 2010 U.S. Dist. LEXIS 109881 (E.D. Pa. October 15, 2010).*

10/19/10

Permalink 06:14:13 am, by fourth, 188 words, 4518 views   English (US)
Categories: General

W.D.Pa.: Flash drive on the person related to a financial crime was nexus to defendant's house

The defendant was the target of a search warrant for counterfeit evidence, and the government showed a “fair probability” that evidence would be found and a nexus to defendant’s place. For example, finding a flash drive on his person at the time of arrest meant that there was a likelihood there was a computer involved. Reference to defendant’s criminal history in the affidavit for similar crimes was not impermissible. United States v. Nance, 2010 U.S. Dist. LEXIS 110081 (W.D. Pa. October 18, 2010).*

Defendant did not show standing or a reasonable expectation of privacy in the place searched where he was a social guest; while he was a social guest, he had left the place and could not get back in when he was stopped on the porch. He had no key. He showed no standing in the home or the porch. United States v. Banister, 2010 U.S. Dist. LEXIS 110144 (D. Neb. October 15, 2010).*

Defendant’s 2255 for, inter alia, defense counsel’s failure to file a motion to suppress against a clearly lawful search incident was not IAC. Pariag v. United States, 2010 U.S. Dist. LEXIS 110104 (D. Md. October 14, 2010).*

10/18/10

Permalink 06:05:26 pm, by fourth, 193 words, 563 views   English (US)
Categories: General

SCOTUS cert grant: AG's immunity for using material witness statute as a pretext for detention

SCOTUS cert grant in Ashcroft v. al-Kidd, 10-98 (Kagan, J., recused). ScotusBlog here and here.

Questions presented:

Respondent was arrested on a material witness warrant issued by a federal magistrate judge under 18 U.S.C. 3144 in connection with a pending prosecution. He later filed a Bivens action against petitioner, the former Attorney General of the United States, seeking damages for his arrest. Respondent alleged that his arrest resulted from a policy implemented by the former Attorney General of using the material witness statute as a "pretext" to investigate and preventively detain terrorism suspects. In addition, respondent alleged that the affidavit submitted in support of the warrant for his arrest contained false statements.

The questions presented are:

1. Whether the court of appeals erred in denying petitioner absolute immunity from the pretext claim.

2. Whether the court of appeals erred in denying petitioner qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of respondent's arrest.