It was reasonable to have defendant’s vehicle inventoried and towed, rather than leave it parked in a high crime area that would have exposed it to vandalism or theft. Commonwealth v. Eddington, 76 Mass. App. Ct. 173, 920 N.E.2d 883 (2010) ("This evidence demonstrates a sufficient risk that the car might be vandalized or stolen so that, when combined with the risk of false claims for loss against the police, the impoundment of the car, pursuant to a constitutionally adequate police policy, was reasonable and thus permissible under the Fourth Amendment.").

Defendant’s father consented to a search of his juvenile daughter’s room, and the officer also searched her purse which was not in the room. There were “widely divergent” facts in the suppression hearing, and the suppression order must be affirmed. State v. V.S., 26 So. 3d 662, 35 Fla. L. Weekly D 235 (4th DCA 2010).*

Defendant was a visitor to a motel room, and he had no reasonable expectation of privacy to challenge its search. Smith v. State, 301 Ga. App. 128, 690 S.E.2d 449 (2010).*

The trial court’s conclusion that the search of defendant’s car was valid as an inventory from his arrest was affirmed. Alternatively, the trial court’s conclusion that defendant did not consent to the search of the car is unsupported by the evidence, and that is an alternative ground. People v Concepcion, 2010 NY Slip Op 701, 69 A.D.3d 956; 893 N.Y.S.2d 283 (2d Dept. 2010).*

The stop of defendant’s van was with reasonable suspicion because defendant’s “van [and occupants] matched the BOLO description in every detail” of robbery and murder suspects. The seriousness of the crime under investigation justified handcuffing him and putting him in a police car. In fact, “[t]he uncanny fact that Avery's van exactly matched the detailed description of the vehicle that fled the scenes of the robberies and murder would establish ‘a nexus between the place to be searched and the evidence sought.’ ....” The search was valid as a search incident or with probable cause. United States v. Avery, 2010 U.S. Dist. LEXIS 7190 (W.D. Tenn. January 28, 2010).*

Lack of nexus to find evidence at the place to be searched under the search warrant was not fatal to the search warrant and application of the good faith exception. United States v. Carney, 683 F. Supp. 2d 513 (W.D. Ky. 2010):

The facts provided in the affidavit, while not sufficient for probable cause, were not so vague as to be conclusory or meaningless. See Carpenter, 360 F.3d at 598. The affidavit was not totally lacking in facts connecting the vehicle and the apartment to the criminal activity. The affidavit clearly stated that Carney was identified as the individual who was driving the vehicle and presented the counterfeit currency at the Circle K. The affidavit stated that Carney was using the 4902 Saddlebrook Ct. #1 address as his personal address for Kentucky court records and Kentucky Probation and Parole records. Essentially, there was evidence that Carney and Williams attempted or did pass counterfeit money. Both were seen driving the same car immediately after the transactions. The car was parked in front of the address that Carney listed as his address. These facts are sufficient to establish the minimal nexus required for the good faith exception to be applicable; a well-trained officer would not have known the search was illegal, particularly in light of the fact the warrant was presented to and signed by a state circuit court judge. The exclusionary rule will not bar the admission of the evidence found as a result of the search warrant.

Government’s inability to show who conducted the patdown of the defendant alters the court’s view of approaching the issues, but ultimately it did not affect the outcome because the patdown was minimal, not flagrant, and for weapons, and defendant’s consent was shown to be attenuated. United States v. Beltran, 2010 U.S. Dist. LEXIS 7035 (N.D. Ill. January 28, 2010).*

Search warrant for a person, and “venue evidence” [formerly known in the cases as “indicia evidence”] was not unreasonable nor a pretext for a drug search. The officers were permitted to search in small and hidden places for the venue items, and that permitted the officers to look behind a mirror that led to discovery of drugs. United States v. Morrison, 594 F.3d 626 (8th Cir. 2010):

On May 25, 2007, Investigator Dreher completed a search warrant application for 315 East Dodge Street, requesting that the warrant cover both the person of Martinez as well as venue 2 items linking Martinez to the residence.

2 Investigator Dreher testified that venue evidence is "[a]ny mail that would have [Martinez's] name on it," including "mail, papers, [and] receipts." (Mot. Supp. Hr'g Tr. 13.)

Here, the warrant permitted officers to search for any indicia of Martinez's connection to 315 East Dodge Street. Venue evidence includes items such as bills, receipts, and letters. See, e.g., United States v. Timley, 443 F.3d 615, 623 (8th Cir. 2006) ("[A] warrant authorizing officers to seize anything related to indicia of occupancy is quite broad."); United States v. Blakeney, 942 F.2d 1001, 1027 (6th Cir. 1991) (finding that "indicia of occupancy" includes "any document or other object that would tend to provide the true identity of the owners or occupants of the premises"). These types of paper documents can obviously fit into small spaces and containers and, therefore, could be hidden in numerous locations in a residence. See, e.g., Blakeney, 942 F.2d at 1027-28 (finding that a warrant issued for "indicia of occupancy" and other documents and records permitted officers to search inside a suitcase--where they ultimately discovered drug evidence). Because venue evidence could be located in the laundry hamper, garage, cooler, behind a mirror or picture, behind a dresser, and underneath the bed, we find that officers lawfully conducted the search pursuant to the first search warrant when they searched these locations, and that the evidence discovered there was not the fruit of an illegal search.

Accord: United States v. Romo-Corrales, 592 F.3d 915 (8th Cir. 2010).

Officers pulled over defendant who was, to them, a regular, and that knowledge formed the basis of reasonable suspicion once stopped. In plain view were baggies for storing crack. (Sort of: His history with drugs and weapons was such that his merely being on the street is RS he is carrying something. [Technically not a good argument under Terry, officer.]) During the stop, defendant was excessively nervous. [If he’s a regular, why would be he nervous unless he was carrying?] The patdown was reasonable and not excessive. United States v. Johnson, 2010 U.S. Dist. LEXIS 7001 (W.D. Pa. January 27, 2010)*:

Sealock recognized defendant as the driver, having become familiar with him from numerous past incidents defendant had had with the police in Aliquippa, including several involving firearms. Incident Reports from these previous encounters were admitted as Government Exhibits 1, 3, 4 & 5. Because of this familiarity, Sealock had concerns about his safety and as to whether defendant may have been armed.

Sealock testified that defendant appeared extremely nervous and that he was sweating and stuttering. Defendant was unable to produce a valid driver's license, only a picture identification card. Sealock observed an open box of sandwich baggies on the floor of the passenger side of the vehicle, which in light of his training and experience he knew to be used sometimes in the packaging of narcotics.

Defendant had been stopped with 400 lbs of marijuana and he agreed to help set up the guy he was taking it to. His text messages were partially innocent in tone, but they were corroborative of the CI and PC. United States v. Laidlaw, 2010 U.S. Dist. LEXIS 6439 (D. Conn. January 27, 2010).*

On eff.org: FBI Replaced Legal Process with Post-It Notes to Obtain Phone Records discussing how the government respects privacy interests in emergency requests for phone records, and the phone companies let them.

The DOJ Office of Legal Counsel has also come up with a legal theory which it is keeping secret:

The OIG report discusses, in heavily redacted form, a new legal theory that the FBI now asserts allows telecoms to divulge phone records without legal process. Despite the Obama Administration's alleged commitment to openness and transparency, the OIG report redacts the basis for this legal theory, even redacting the statutory section number on which the FBI says it can rely. (hyperlink in original)

Officers had reasonable suspicion that the occupants of a boat were involved, at the minimum, in lobster smuggling. They got to the boat as it was being removed from the water, and the persons on the boat were excessively nervous. The defendant conceded probable cause for the stop, and the mobility of the boat made it subject to search. The officer looked in the cabin of the boat as a protective sweep, and 13 illegal aliens were found. United States v. Caraballo, 595 F.3d 1214 (11th Cir. 2010):

When taken in concert, these circumstances yielded a reasonable ground to believe that the defendant and others had unlawfully obtained lobsters and violated the Florida fisheries laws. We add that the exigency of the situation -- Caraballo was about to leave with the boat and any poached lobsters or fish would be easy to dispose of -- made it impossible to seek a warrant in due course. See Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct. 280, 69 L. Ed. 543, T.D. 3686 (1925) (stating that in conducting "a search of a ship, motor boat, wagon, or automobile ... it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought"); see also California v. Acevedo, 500 U.S. 565, 569, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991) (citing Carroll and explaining "[c]ontemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later, the Second and Fourth Congresses, distinguished between the need for a warrant to search for contraband concealed in a dwelling house or similar place and the need for a warrant to search for contraband concealed in a movable vessel.") (internal quotation marks and citation omitted); United States v. Bain, 736 F.2d 1480, 1488 (11th Cir. 1984) ("[T]he mobility of the vessel was an exigent circumstance justifying an immediate search.").

Third, and finally, once on board the vessel, Officer Andollo lawfully conducted a protective sweep that included opening the cabin door to ensure that there were no additional persons on board who could cause him harm. In Maryland v. Buie, the Supreme Court held that a protective sweep may be undertaken lawfully pursuant to an in-house arrest where the officer "possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." 494 U.S. 325, 337, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). "A 'protective sweep' is a quick and limited search of premises .... It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Id. at 327; see also United States v. Miller, 430 F.3d 93, 99 (2d Cir. 2005) (agreeing with the First, Seventh, Fifth, Sixth, one panel of the Ninth, and D.C. Circuits that protective searches may be undertaken even without an arrest warrant); see also United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005) ("We hold ... that 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, 1087-88 (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. Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en banc); 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); United States v. Patrick, 959 F.2d 991, 996-97, 294 U.S. App. D.C. 393 (D.C. Cir. 1992) abrogated on other grounds by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); but see United States v. Torres-Castro, 470 F.3d 992, 997 (10th Cir. 2006) (recognizing that, unlike the Tenth Circuit, "a majority of circuits have extended the protective sweep doctrine to cases where officers possess a reasonable suspicion that their safety is at risk, even in the absence of an arrest").

911 call alone did not justify the officer in detaining the caller. State v. Fair, 233 Ore. App. 298 (2010):

In sum, the test for determining whether a contact exceeded mere conversation is whether the officer engaged "in conduct significantly beyond that accepted in ordinary social intercourse." [Holmes] The "mere encounters" in Holmes and the cases underlying it occurred in streets or other public places. There is a significant difference between the typical circumstances of a police officer approaching a person on a public street--for example, by flagging down a motorist in order to conduct a brief exchange of information, as was the case in Holmes, Gerrish, and McFarland--and a police officer going to the door of a person's home, ordering the person out of the home, and instructing the person to remain with the police officer, which is what occurred in this case.

Exigent circumstances justified dispensing with a search warrant because the defendant was under surveillance and moving drugs. The time to get a warrant would have defeated the search entirely. State v. Sanders, 233 Ore. App. 373, 226 P.3d 82 (2010).*

Defendant’s patdown revealing nothing made reasonable suspicion evaporate because the officer lacked any reason to believe that what she might have been handed made it to her backpack while he was watching. State v. Lovell, 233 Ore. App. 381, 226 P.3d 76 (2010):

Nothing in the record indicates that defendant put anything in her backpack after the contact with Payne. Heinen testified that she was out of his view for only about five seconds, and nothing in his testimony suggests that she might have placed anything in the backpack during that time. Thus, once the patdown of defendant's person revealed nothing, Heinen no longer had reason to believe that Payne had handed her illegal drugs. It follows that he lacked reasonable suspicion to detain defendant when she consented to the search of the backpack.

Texas phony arrest scheme with Black motorists

On the WSJ blog, a story about police shakedowns of Black motorists in Tenaha TX seizing money for no reason and threatening prosecution to get it. The DA apparently is involved: Texas DA Sued Over Alleged Phony Arrest Scheme Left ‘High and Dry’.

There is a reference to an earlier post and a Chicago Tribune story from March: Highway robbery? Texas police seize black motorists' cash, cars / Suit says cops force motorists, largely black, to forfeit cash and cars—or be charged with trumped-up crimes.

Pot hidden in honey wagon

On CNN this story from Arizona: A septic tank cleaning truck was the subject of a stop and search that led to the finding of 743 lbs of marijuana hidden in the human waste.

Stopping defendant because he was standing on a street corner talking to another man, and they saw the police and turned and walked into a store was without reasonable suspicion. There were no furtive movements, and this was only a hunch of criminal activity. State v. Gaston, 2010 Ohio 248, 2010 Ohio App. LEXIS 185 (8th Dist. January 28, 2010).*

Defendant's tinted windows justified his stop, and a furtive movement of reaching down in the car justified his patdown after the stop. State v. Elliott, 2010 Ohio 241, 2010 Ohio App. LEXIS 179 (8th Dist. January 28, 2010).*

Police responded to a domestic disturbance call and were let in. Defendant refused to remove his hands from his pockets, and that justified a patdown. State v. Olden, 2010 Ohio 215, 2010 Ohio App. LEXIS 165 (2d Dist. January 22, 2010).*

Entry into defendant’s home was justified by community care taking exception where police came to door and knocked repeatedly, and defendant was not roused from the couch. The officer was justified in entering because the defendant appeared unconscious or dead. State v. Hos, 154 Wn. App. 238 (2010).*

Law of the case applied to defendant’s search claim on retrial of his murder case. The facts did not change much at all to justify reopening. State v. Deck, 303 S.W.3d 527 (Mo. 2010), corrected by State v. Deck, 2010 Mo. LEXIS 36 (Mo., Mar. 2, 2010), rehearing overruled by State v. Deck, 2010 Mo. LEXIS 46 (Mo., Mar. 2, 2010).*

The probation search of defendant’s premises was reasonable. State v. Angel, 31 So. 3d 547 (La. App. 2d Cir. 2010).*

Search of defendant’s car was valid with probable cause and not as a search incident under Gant. The officer smelled marijuana coming out of the open window and a dog alerted during the stop. State v. Freeman, 33 So. 3d 222 (La. App. 2d Cir. 2010).*

Defendant’s stop was based on a combination of traffic offense and information about drug trafficking, and it was still valid. Defendant’s pat down was justified, and plain feel supported the seizure. State v. Davis, 31 So. 3d 513 (5th Cir. 2010).*

Taking of DNA from a misdemeanant convicted of “predatory offense” of domestic assault that was originally a felony was reasonable. State v. Johnson, 777 N.W.2d 767 (Minn. App. 2010):

The Bartylla court concluded that the state has substantial interests in DNA collection, specifically identifying these interests as "exonerating the innocent, deterring recidivism, identifying offenders of past and future crimes, and bringing closure for victims of unsolved crimes." Id. at 18. Here, the legislature has narrowly defined the misdemeanor offenses to which Minn. Stat. § 609.117 applies, namely those arising from the same set of circumstances as a charged felony, such that the substantial state interests enumerated in Bartylla exist with equal force for these non-felony offenses.

These substantial state interests are balanced against the minimal intrusion involved in DNA collection for identification purposes and the reduced expectation of privacy held by an offender convicted of a misdemeanor of the type narrowly defined here by its connection to a felony charge. See id. (describing the physical intrusion involved in acquiring the DNA sample as "minimal"). The narrow scope of section 609.117 limits its application to those who have a reduced expectation of privacy based on the nature of their offense of conviction, which also weighs in favor of the statute's constitutionality.

Applying Bartylla's totality-of-the-circumstances analysis and balancing the substantial state interests against the diminished privacy expectations and minimal intrusion that exist here, we conclude that Minn. Stat. § 609.117, as applied to those convicted of a misdemeanor arising from the same set of circumstances as a charged felony, does not violate the search-and-seizure provisions of the United States or Minnesota constitutions.

Nexus was shown for the search warrant of defendant’s car for ecstasy pills. Investigation showed that 9,500 pills were being trafficked in defendant’s car, and it was common for drug traffickers to keep stuff in their house. United States v. Khami, 362 Fed. Appx. 501, 2010 FED App. 0050N (6th Cir. 2010) (unpublished).*

A witness saw defendant get into a fight and heard gunshots, and she called the police. This was reasonable suspicion for defendant’s stop. United States v. Johnson, 592 F.3d 442 (3d Cir. 2010).*

While the search of defendant’s car “was not justified as a search incident to arrest under Gant,” it was valid as an automobile search. United States v. Cooper, 2009 U.S. Dist. LEXIS 123984 (W.D. La. October 15, 2009).*

Whether defendant’s registration of his vehicle was valid was a question of fact about which the officer was likely mistaken, such that good faith would not apply. However, he was speeding, and that justified the stop. United States v. Reyes, 2009 U.S. Dist. LEXIS 123989 (W.D. La. February 25, 2009).*

Court considers good faith exception first, probable cause second in evaluating the validity of a search warrant. The court finds that an open barnlike structure that was before the living area was not a part of the curtilage. Defendant’s argument that the doors were left open for weeks because of hurricane damage supports the lack of curtilage. United States v. Cooke, 2010 U.S. Dist. LEXIS 6287 (S.D. Tex. January 27, 2010).*

Exigent circumstances existed for a warrantless entry of a house for a man with a gun who was known to use it. The fact he was asleep did not lessen the threat. United States v. Huddleston, 593 F.3d 596 (7th Cir. 2010)*:

Here, the officers were told that Huddleston--whom they knew to have a criminal history involving the discharge of a firearm--had a gun and was trespassing in the home of a woman whom he had threatened to kill earlier that evening. Based on those facts, it was reasonable for the officers to conclude that they were dealing with an armed man poised to carry out a death threat, who would not hesitate to discharge his weapon as he had in the past. In these circumstances, the officers had reasonable grounds to believe that Huddleston posed an immediate threat to their safety and the safety of others in the neighborhood. A number of other circuits have "found the presence of guns to justify searches and seizures on the basis of exigent circumstances." United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991) (holding that the presence of a sawed-off shotgun in plain view could have constituted a threat to the personal safety of the officers and thus justified the warrantless seizure); see also United States v. Rodgers, 924 F.2d 219, 222-23 (11th Cir. 1991) (exigent circumstances arose when police saw handguns that suspect, a convicted felon, was not allowed to possess, lying on a couch); United States v. Lindsey, 877 F.2d 777, 780-82 (9th Cir. 1989) (information about presence of guns and bombs justified warrantless entry); United States v. Hill, 730 F.2d 1163, 1170 (8th Cir. 1984) (entry justified by officer's observation through a sliding glass door of a pistol on a bookcase); United States v. McKinney, 477 F.2d 1184, 1186, 155 U.S. App. D.C. 299 (D.C. Cir. 1973) (sawed-off shotgun lying on night table in hotel room was exigent circumstance justifying warrantless entry and seizure).

The fact that Huddleston was asleep does not render the officers' belief that Huddleston posed an immediate threat unreasonable. As the district court concluded, there was a real risk that Huddleston--who was fully clothed, sitting up and holding the gun--could awaken at any time. Nor are we persuaded that it was unreasonable for the officers to conclude that Huddleston was trespassing without inquiring as to whether he had Tarana White's permission to be at the house.

A controlled buy from the defendant’s house 72 hours before the search warrant was sought was nexus to believe that drugs would be found. A controlled buy did not mean that there would be no drugs on the premises, contrary to defendant’s assertion. United States v. Smith, 2009 U.S. Dist. LEXIS 124043 (E.D. Tenn. November 19, 2009).*

There was probable cause on the totality from the CI in this case that defendant would be carrying drugs, so his stop and car search was reasonable under the automobile exception. United States v. Cooper, 2010 U.S. Dist. LEXIS 5730 (W.D. La. January 19, 2010).*

Defendant’s stop was not unreasonable when he was suspected of bank robbery. United States v. Lugo, 2010 U.S. Dist. LEXIS 5612 (M.D. Fla. January 6, 2010)*:

The Eleventh Circuit established a nonexclusive check list of four factors for the court to consider when reviewing whether or not the detention of a suspect was proper under Terry. In United States v. Acosta, the Eleventh Circuit stated the court should consider the law enforcement purposes served by the detention, the diligence with which the police pursued the investigation, the scope and intrusiveness of the detention, and the duration of the detention. 363 F.3d at 1146 (quoting U.S. v. Gil, 204 F.3d 1347, 1351 (11th Cir. 2000)).

Aerial video of defendant’s alleged driving infraction somewhat corroborates and does not contradict it. Therefore, it was with probable cause. United States v. Sarabia, 2009 U.S. Dist. LEXIS 124021 (N.D. Ga. December 18, 2009).*

A state trooper’s hand gesture was sufficient to create a stop under the state constitution. Majaev v. State, 223 P.3d 629 (Alas. 2010):

The State's argument focuses on the wrong question. The relevant inquiry is not whether Majaev would actually have faced criminal prosecution or punishment under AS 28.35.182, but rather whether a reasonable person in Majaev's position would have believed that he was required to respond to the trooper's gesture in order to comply with the law. A reasonable person in Majaev's position would assume that he was not free to leave because ignoring Trooper Bordner's signal would be a violation of AS 28.35.182(b) and therefore could have subjected such a person to criminal sanction. Statutes like AS 28.35.182 are intended to influence behavior; thus this coercive effect must be considered within our analysis of whether Majaev was seized under the Waring test.

“[T]he Court finds that Listman's Fourth Amendment challenge fails as a matter of law. Because Listman raises no issues of fact in support of his motion, only conclusory legal objections, an evidentiary hearing is not required. See U.S. v. Losing, 539 F.2d 1174, 1177 (8th Cir. 1976) (‘Evidentiary hearings need not be set as a matter of course, but if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, an evidentiary hearing is required.’).” United States v. Listman, 2010 U.S. Dist. LEXIS 5239 (E.D. Ark. January 12, 2010).*

Ross governs the search of defendant’s car because it was with probable cause; it was not a search incident barred by Gant. United States v. Armstrong, 2010 U.S. Dist. LEXIS 4913 (E.D. Tex. January 11, 2010).*

Partially obscured license plate was probable cause for defendant’s stop. State v. Klinghammer, 2010 Iowa App. LEXIS 42 (January 22, 2010).*

The driver’s consent to search was reasonably interpreted by the officer to include all the bags in the car. The passenger’s bags were thus subject to the consent. State v. Harding, 2010 UT App 8, 223 P.3d 1148, 648 Utah Adv. Rep. 4 (2010).*

Based on video of credit card transactions, the police had reasonable suspicion to stop a car seen in the videos. State v. Figueroa, 2010 Ohio 189, 2010 Ohio App. LEXIS 164 (9th Dist. January 25, 2010).*

A teachers’ union is upset with a school district that authorized dog sniffs of student cars on school grounds without suspicion that also led the police to sniff the teachers’ cars. Nothing was found. So, does the rationale for school searches apply to teachers as well? T.L.O. logically can't go there.

Defendant was on a CBP watch list as a suspected child pornographer. When he arrived at DFW from an overseas trip that had no suspicion of being related to child pornography, he was first let through then detained after clearance and his laptop was seized. His computer was shipped to Detroit for analysis, and the District Court finds that this violated United States v. Place. United States v. Laich, 2010 U.S. Dist. LEXIS 4931 (E.D. Mich. January 20, 2010):

Even if the Court deemed this detention to be a valid exercise of the Government's police powers, there was no legal basis to support the permanent seizure of Laich's laptop computer. When the CBP officers directed Laich to return to the inspection area, they did not conduct an additional search of his laptop. Rather, they detained him and retained his computer for approximately ninety minutes and, thereafter, mailed the seized property to Buloushi in Detroit. Although the decision by the Supreme Court in United States v. Place, 462 U.S. 696,701-707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) may have provided the officers with the legal authority to briefly seize Laich's laptop to investigate the circumstances which aroused their reasonable suspicion of a criminal wrongdoing, such an investigative detention was not properly limited in its scope here. In the absence of a demonstrated probable cause, the Government's decision to permanently seize Laich's property in Dallas and transport it hundreds of miles to another jurisdiction for further search was unreasonable by Fourth Amendment standards.

Defendant locked his live-in girlfriend out of the house during an argument, but she had her key. When the police arrived because of the domestic disturbance, they could rely on her claim of authority to enter because she had a key. Baker v. State, 2010 WY 6, 223 P.3d 542 (2010)*:

[*P13] Here, the facts known to the officers at the time of the search support the conclusion that Merck had the authority to consent to a search of the residence. Merck reported a domestic disturbance from her home at the hands of her live-in boyfriend. She expected her boyfriend (Baker) to not answer the door, and told the officers that they could go inside the home, and she unlocked the back door with her own key from her personal keychain. And although a "no trespassing" sign was posted on the property, Merck's consent stands.

The DUI checkpoint in this case was validly set up. Defendant approached, and the officers smelled marijuana and saw furtive movements as they approached. A frisk based on the furtive movement produced a gun. United States v. Brock, 2010 U.S. Dist. LEXIS 4951 (N.D. Ind. January 22, 2010).*

KY reiterates that Ornelas de novo review of probable cause is the standard of review, and the trial court’s finding that the totality of the circumstances showed probable cause was correct and supported by the evidence, specifically the comparative analysis of the electrical usage of the defendant’s house and houses in the neighborhood. Commonwealth v. Pride, 302 S.W.3d 43 (Ky. 2010).*

Alleged exigency here was police created, and the police were not in hot pursuit at the time of the entry. While the odor of marijuana would be exigent circumstances for an automobile, it cannot be for a home. King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010):

Odor alone is generally an insufficient basis for the warrantless search of a home based on imminent destruction of evidence. In Johnson v. United States, 333 U.S. 10, 15, 68 S. Ct. 367, 92 L. Ed. 436 (1948), the Supreme Court held the warrantless search of a hotel room invalid where the officers detected "a strong odor of burning opium which to them was distinctive and unmistakable." Id. at 12. The Court stated that an odor, sufficiently distinctive to be recognized as an illegal substance, and detected by one qualified to recognize it, can be sufficient to justify the issuance of a warrant. Id. at 13. However, odor alone did not justify a warrantless search based on imminent destruction of evidence: "No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time will disappear. But they were not capable at any time of being reduced to possession for presentation to court." Id. at 15.

The odor of marijuana alone can justify the warrantless search of an automobile. Cooper v. Commonwealth, 577 S.W.2d 34, 37 (Ky. 1979), overruled on other grounds by Mash v. Commonwealth, 769 S.W.2d 42 (Ky. 1989). However, there is a strong distinction in Fourth Amendment jurisprudence between an automobile and a home. The mobility of an automobile creates an exigent circumstance per se. Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999) (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996)). By contrast, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton, 445 U.S. at 585 (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972)).

We also note that, in some circumstances, the odor of an illegal substance alone will create exigent circumstances justifying a warrantless search. This is particularly true where public safety is a concern. See, e.g., Bishop v. Commonwealth, 237 S.W.3d 567 (Ky. App. 2007) (strong chemical smell consistent with production of methamphetamine created exigent circumstances based on public safety due to inherent dangers in methamphetamine production). However, such circumstances are not present in this case.

A DNA profile in an arrest warrant issued the day before the statute of limitations for the offense satisfied the Fourth Amendment particularity requirement. Later match of prison collected DNA led to defendant. And, extraction of defendant’s DNA as a convict under state statute in effect in 1999 which might have been error did not mandate application of the federal exclusionary rule. People v. Robinson, 47 Cal. 4th 1104, 224 P.3d 55, 104 Cal. Rptr. 3d 727 (2010):

With regard to any privacy interest in identifying information, it is established that individuals in lawful custody cannot claim privacy in their identification. “Though, like fingerprinting, collection of a DNA sample for purposes of identification implicates the Fourth Amendment, persons incarcerated after conviction retain no constitutional privacy interest against their correct identification.” (Groceman v. U.S. Dep't of Justice (5th Cir. 2004) 354 F.3d 411, 413–414.) In Kincade, the court explained that “the DNA profile derived from the defendant's blood sample establishes only a record of the defendant's identity—otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense (indeed, once lawfully arrested and booked into state custody). For, as we recognized in Rise, ‘[o]nce a person is convicted of one of the felonies included as predicate offenses under [the Act], his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling.’ 59 F.3d 1560; see also Groceman [, supra,] 354 F.3d 413–[4]14; Jones [v. Murray (4th Cir. 1992)] 962 F.2d [302,] 306–307.” (Kincade, supra, 379 F.3d at p. 837.)

. . .

The fact that defendant Robinson's blood was collected in violation of our state law at the time does not alter our Fourth Amendment analysis. That law was more restrictive than the Fourth Amendment and, for Fourth Amendment purposes, it is not dispositive that a search and seizure was not permissible under state law. ...

. . .

However, even assuming, without deciding, that the state statutory violation that led to the nonconsensual extraction of defendant's blood for the March 2, 1999 blood sample constituted a Fourth Amendment violation, application of the federal exclusionary rule would not be appropriate for such a violation. (See Hudson v. Michigan (2006) 547 U.S. 586, 590, 602 [165 L. Ed. 2d 56, 126 S. Ct. 2159] (Hudson) [statutory knock-and-announce violation does not necessarily trigger the exclusionary rule].) ...

2. The Particularity Requirement

Defendant contends a John Doe arrest warrant accompanied by a DNA genetic profile does not constitute “a means of description ‘reasonable to the circumstances’” because, rather than “describ[ing]” the person to be arrested, it only “identifies a defendant by the use of a fictitious name without any description whatsoever” and therefore does not describe that person “with sufficient certainty.” Defendant argues that a fictitious name or a John Doe name is insufficient to identify anyone, and therefore is insufficient to identify anyone with particularity.

Under both federal and state law, an accusatory pleading or arrest warrant may issue with a fictitious name provided it names or describes the person being charged with reasonable certainty. (See, e.g., Cabell, supra, 153 U.S. at p. 85 [an arrest warrant “must truly name [the person charged], or describe him sufficiently to identify him”]; People v. Montoya, supra, 255 Cal. App. 2d at pp. 142–143; Ernst v. Municipal Court of Los Angeles (1980) 104 Cal. App. 3d 710, 718 [163 Cal. Rptr. 861].) As the court in Montoya explained, “[w]here a name that would reasonably identify the subject to be arrested cannot be provided, then some other means reasonable to the circumstances must be used to assist in the identification of the subject of the warrant.” (Montoya, supra, 255 Cal. App. 2d at p. 142, citing U. S. v. Swanner (E.D. Tenn. 1964) 237 F. Supp. 69, 71, italics added; see also Blocker v. Clark (1906) 126 Ga. 484 [54 S.E. 1022]; 3 LaFave, Search and Seizure (3d ed. 1996 & Supp. 2003) § 35.1(g).)

See State v. DNA Profile; Jurist.

Defendant was a "recent occupant" of his car, although it was locked and he was handcuffed, when he was arrested standing outside it where it was reasonable to believe that there was contraband in the car from the blunt he dropped. Dawkins v. United States, 987 A.2d 470 (D.C. App. 2010):

Under the D.C. Circuit Court's reasoning in Mapp and Booker, appellant was a "recent occupant," pursuant to Thornton's test of "temporal or spatial relationship to the car at the time of the arrest and search." 541 U.S. at 622. Appellant was leaning against his vehicle when the police approached and arrested him. The undercover officer saw appellant open the car door, briefly lean inside, close the door, and resume leaning against the car. The police searched appellant's car immediately after the arrest -- which had happened within "a matter of feet" of the car -- whereupon appellant exclaimed, "Why are you guys going to go in my car?" A sufficiently proximate relationship existed between appellant and his car so as to establish that he was a "recent occupant" at the time he was arrested.

But, as the Supreme Court said in Gant, that is not enough, and the warrantless search of an automobile incident to arrest is constitutionally permissible only if the police reasonably believe either that the suspect could have such access to his car as would pose a risk to the safety of the officers or potential destruction of evidence, as permitted by Chimel, or that evidence of the offense for which he was arrested could be found in the car, pursuant to Thornton. 129 S.Ct. at 1719. Here, appellant was arrested for possession of marijuana -- for which the police had probable cause -- after seeing him drop a blunt on the ground. The police had noticed that the blunt was unevenly rolled, which suggested that appellant had manipulated the cigar to smoke marijuana. We do not think that Chimel provides a basis to search the car incident to arrest because the car was locked (and appellant handcuffed) when he was arrested, and therefore did not pose a risk to the safety of the officers or the integrity of any evidence. But Thornton does furnish that basis, because having observed appellant lean into the car and close the door shortly before he was seen with a marijuana blunt, the officers reasonably could have believed that appellant had additional marijuana or drug paraphernalia in the car such that it was "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Gant, 129 S.Ct. at 1719.

“The question presented is whether a resident's consent to search her home is invalid because it was preceded by an allegedly illegal search of which the resident was unaware. We hold that the consent to search is valid under the circumstances.” State v. Guillen, 223 Ariz. 314, 223 P.3d 658 (2010):

¶15 Assuming, without deciding, that the dog sniff violated Article 2, Section 8, we conclude that Mrs. Guillen's consent was valid because under Brown's three-factor test, intervening circumstances obviated any alleged taint and the first dog sniff conducted from outside the garage was not flagrant police misconduct.

. . .

¶17 Mrs. Guillen's lack of knowledge of the dog sniff constitutes a major break in the causal chain. See, e.g., United States v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000) ("Lack of knowledge of a prior search is an intervening factor which dissipates the coercion inherent in a request for consent made after an unconstitutional search."), rev'd on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001); United States v. Carson, 793 F.2d 1141, 1155 (10th Cir. 1986) (holding that a defendant waived his Fourth Amendment rights when he consented to search without knowledge of prior illegal police search); cf. Moran v. Burbine, 475 U.S. 412, 422, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986) ("Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.").

¶15 Assuming, without deciding, that the dog sniff violated Article 2, Section 8, we conclude that Mrs. Guillen's consent was valid because under Brown's three-factor test, intervening circumstances obviated any alleged taint and the first dog sniff conducted from outside the garage was not flagrant police misconduct.

¶16 Mrs. Guillen's consent was obtained within a few hours after the dog sniff took place. Although this fact favors Guillen, see Delgadillo-Velasquez, 856 F.2d at 1300 (citing cases in which courts have held invalid consent given between a few minutes and a few hours after the illegal conduct), it does not weigh heavily in our analysis because of the presence of intervening circumstances. See State v. Reffitt, 145 Ariz. 452, 459, 702 P.2d 681, 688 (1985) (noting that the "factor of temporal proximity is scarcely outcome determinative" and "is often the least helpful of [Brown's] three criteria").

¶17 Mrs. Guillen's lack of knowledge of the dog sniff constitutes a major break in the causal chain. See, e.g., United States v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000) ("Lack of knowledge of a prior search is an intervening factor which dissipates the coercion inherent in a request for consent made after an unconstitutional search."), rev'd on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001); United States v. Carson, 793 F.2d 1141, 1155 (10th Cir. 1986) (holding that a defendant waived his Fourth Amendment rights when he consented to search without knowledge of prior illegal police search); cf. Moran v. Burbine, 475 U.S. 412, 422, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986) ("Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.").

Only a well founded suspicion is required for issuance of a bench warrant for arrest of a probationer. Here, the officer had obtained defendant’s ID and let him go, finding out shortly thereafter there was a bench warrant, so he apprehended the defendant and a search incident produced drugs. State v. Erickson, 168 Wn. 2d 41 (2010):

Once a person has been convicted of a crime, that person is subject to the court's authority. That authority includes the power to supervise an offender conditionally released. Neither the Fourth Amendment nor article I, section 7 of the state constitution requires the court to make a finding of probable cause at every step of the proceeding. We hold that once a person has been convicted of a felony and is on conditional release for that offense, a bench warrant may be issued for his arrest without probable cause that he has violated the terms of his release. Instead, the court needs only a well-founded suspicion that a violation of the terms of the release has occurred before it may issue an arrest warrant. Here, one of the conditions of Erickson's release was that he notify the court of any change of address. He did not do so and the returned summons provided the issuing judge with a well-founded suspicion that Erickson had violated that condition of his release. We affirm the Court of Appeals and Erickson's conviction for possession of a controlled substance.

Defendant’s guilty plea three months before Gant waived the search incident issue for appeal. State v. Brandenburg, 153 Wn. App. 944, 223 P.3d 1259 (2009).*

Telephonic search warrant was validly issued for defendant's house on smell of burning marijuana. Defendant's production of a medical marijuana authorization before the search did not negate probable cause because it was an affirmative defense to possession. State v. Fry, 168 Wn. 2d 1 (2010) (dissent):

There is no contention that the facts, including the information and smell of marijuana, do not support a finding of probable cause to search the Frys' residence. However, Fry contends the probable cause was negated once he produced the authorization. Although there was a later dispute over the validity of the authorization, there is no indication in the record that the officers or the magistrate questioned the validity at the time the search warrant was issued. Nevertheless, the officers' search and arrest were supported by probable cause, and a claimed authorization form does not negate probable cause.

. . .

Possession of marijuana, even in small amounts, is still a crime in the state of Washington. See RCW 69.50.4014. A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys' residence. Fry presented the officer with documentation purporting to authorize his use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore, based on the information of a marijuana growing operation and the strong odor of marijuana when the officers approached the Frys' home, a reasonable inference was established that criminal activity was taking place in the Frys' residence. Therefore, the officers had probable cause and the search warrant was properly obtained.

From CAAFlog is reference to an oral argument tomorrow in the Court of Appeals of the Armed Forces on computers and the reasonable expectation of privacy in the Army:

On Tuesday, following Blazier will be argument in United States v. Huntzinger, No. 09-0589/AR, where the four granted issues are:

I. Whether the military judge erred in concluding that no soldier at forward operating base (FOB) loyalty had a reasonable expectation of privacy in any regard.

II. Whether the military judge erred in denying a motion to suppress appellant’s external hard drive and password protected laptop when the commander who ordered the seizure of the equipment immediately searched the equipment upon seizure, demonstrating that he was performing law enforcement functions and was not neutral and detached when seizing the items.

III. Whether the doctrine of inevitable discovery is applicable when there are no independent police activities, or testimony or evidence of routine police practices, that would have inevitably resulted in discovery, and no other exception to the Fourth Amendment applies.

IV. Whether the Army Court of Criminal Appeals erred in concluding that probable cause existed to support the search authorization of appellant’s laptop computer and detachable hard drive.

Don't expect a decision in a while. I've always been intrigued by the quality of opinions from the CAAF, so I'm looking forward to it.

Forged prescription obtained from a pharmacist was not a “medical record” that a court approved subpoena was required for. A new suppression hearing is required, however. State v. Bean, 36 So. 3d 116 (Fla. App. 2d DCA 2010)*:

This is not a typical suppression case in which a seizure is made without a warrant and the State has the burden to prove that it had constitutional authority to make a warrantless search and seizure. See, e.g., Riggs v. State, 918 So. 2d 274 (Fla. 2005) (finding that the State proved exigent circumstances existed to justify warrantless entry and search of defendant's home); Smith v. State, 753 So. 2d 713 (Fla. 2d DCA 2000) (finding that the State failed to meet its burden of proving defendant consented to warrantless search of his mouth). In this case, Mr. Bean maintains that the pharmacist or the State violated section 456.057(7)(a)(3) and that this statutory violation justified the exclusion of the evidence. We conclude that he has the initial burden to prove the application of this statute and he has failed in that burden.

Given the abbreviated nature of the hearing on the motion to suppress and the incorrect assumption of the trial court that it could resolve this matter without a full hearing, we reverse the order on appeal without prejudice to further proceedings addressing the possible suppression of this evidence.

Accord: State v. Fernandez, 36 So. 3d 120 (Fla. App. 2d DCA 2010)*:

There may be merit to the State's claim that Fernandez lacks a reasonable expectation of privacy in the prescriptions if they were not in fact authorized by the doctor. Cf. Hicks, 929 So. 2d at 16 (holding that defendant had no reasonable expectation of privacy in stolen item because he did not lawfully possess it; therefore, he was not entitled to suppression of stolen item in a prosecution for offenses relating to stolen item); Lennon, 963 So. 2d at 770 (same). However, because this specific issue was never argued to the trial court below, the trial court never made any specific factual findings regarding whether the prescriptions were authorized and, if so, whether Fernandez had a reasonable expectation of privacy in them. The parties should be given a chance to fully address this issue. See McCauley, 842 So. 2d at 900. Accordingly, we reverse the order suppressing the evidence and remand for further proceedings. If Fernandez wishes to pursue her motion to suppress, the trial court shall hold a hearing on the issue of standing, at which time Fernandez will have the burden to establish that she had a reasonable expectation of privacy in the prescriptions. See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978); Hicks, 929 So. 2d at 16.

Defendant’s claim he was stopped for a robbery because he was a young black male is contrary to the record that he was the age, height, and weight, and fit the clothing description of a robber of a slot machine cashier. United States v. Brown, 636 F. Supp. 2d 1116 (D. Nev. 2009) [erroneously put in 2008].

A state officer made a stop of defendant’s car and an inventory was going to be conducted. The feds were called to take over the investigation, and they did it instead. This did not make the process unreasonable. United States v. Taylor, 592 F.3d 1104 (10th Cir. 2010).*

The district court’s credibility determination was binding since “‘unless it is contrary to the laws of nature, or is so inconsistent or improbable on its face that no reasonable factfinder could accept it.’ United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).” United States v. Telcy, 362 Fed. Appx. 83 (11th Cir. 2010) (unpublished).*

Defendant’s IAC claim fails on failure to move to suppress a search because of an unsigned search warrant since it was clear that the original search warrant was signed. United States v. Askew, 2010 U.S. Dist. LEXIS 4516 (W.D. Pa. January 21, 2010).*

Defendant’s IAC claim fails because, while his electronic devices were searched incident to his arrest, he plead guilty waiving the claim. [I’m a little confused by other things the court said about the IAC claim and search, but waiver was a sufficient ground to decide the issue.] Carson v. United States, 2010 U.S. Dist. LEXIS 4690 (S.D. Ill. January 21, 2010).*

Defendant’s car search violated Gant, and the government argued inventory as an alternative. The record is incomplete on the inventory issue, and the court is somewhat doubtful that the SOPs of the police department were complied with, so another hearing will have to be held. The mere fact the officers did not complete a written inventory did not make it unreasonable. United States v. Westerman, 2009 U.S. Dist. LEXIS 123601 (N.D. Ga. October 1, 2009).*

DA’s investigators had state immunity for planning for and procuring a search warrant that led to no charges being filed, even if they were acting maliciously. County of L.A. v. Superior Court, 181 Cal. App. 4th 218 (2d Dist. 2009), Publication Status of this Document has been Changed by the Court from Unpublished to Published January 22, 2010:

More important, the immunity applies "even if the authorities later decide not to file charges." (Gillan, supra, 147 Cal.App.4th at p. 1048, italics added, citing Ingram, supra, 74 Cal.App.4th at p. 1293 & Amylou R., supra, 28 Cal.App.4th at pp. 1209-1211.) Government Code section 821.6 appears also to extend to conduct that occurred after the close of the proceeding. (Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496.) Ingram, supra, 74 Cal.App.4th 1280 held that where the District Attorney conducted an investigation in response to a complaint filed with the District Attorney's Office by interested citizens alleging Brown Act violations, the District Attorney was protected by the prosecutorial immunity of section 821.6 for the statements made after close of the investigation because those statements were part of the prosecution process and hence were an exercise of prosecutorial discretion even though no prosecution was brought. (Id. at p. 1293; cf. Gillan, supra, at pp. 1048-1049 [although public employee can be liable for false imprisonment, section 821.6 immunizes employee for conduct occurring after false imprisonment ends].) The test of immunity is not the timing of the offending conduct but whether there is a causal relationship between the act and the prosecution process. Thus, if the act is made as part of the process, it is protected by the immunity in section 821.6. (Cappuccio, Inc. v. Harmon, supra, at pp. 1498-1500.)

There was “arguable probable cause” for plaintiff’s arrest, so the arresting officer has qualified immunity from suit over the arrest. Moran v. Cameron, 362 Fed. Appx. 88 (11th Cir. 2010) (unpublished).*

Anonymous e-mails were sent to a church describing sex with young boys, and the police were able to search back through the e-mail’s IP information to an e-mail account in defendant’s wife’s name. The e-mails alluded to pictures. The search warrant for the computer and the e-mails did not specifically seek child pornography, but it did seek instrumentalities of the threats to have sex with young boys, and child porn qualified. A machine gun and silencer were also found in plain view. United States v. Williams, 592 F.3d 511 (4th Cir. 2010)*:

While the warrant did not explicitly authorize a search for child pornography, it did authorize a search for instrumentalities of computer harassment and "photographs ... indicati[ve] of" this offense, which involves communicating "obscene, vulgar, profane, lewd, lascivious, or indecent language," or making a "suggestion or proposal of an obscene nature," or threatening an "illegal or immoral act." Va. Code Ann. § 18.2-152.7:1. Particularly in the context of the threats made in this case, which indicated that the person sending the e-mails to the church was a pedophile, pornographic images involving children were relevant to demonstrating the authorship and purpose of the e-mails. The e-mails stated that the sender could not face life without having sex with the boys and that he could not attend the church again unless he could give oral sex to a specific boy at the church, whom he identified by the child's actual name. In addition, the sender of the e-mail stated, "I know your boy's names. I know where they go for lunch after church. I know where they live. I know when they come and leave school. There's boys I'd love to sleep with right now. There is an endless supply. Boy dick is everywhere."

The District Court erred in holding that the search warrant was so lacking in indicia of probable cause that the good faith exception did not apply. There was strong indication that child pornography images were e-mailed to defendant's e-mail account, and the fact that the wait was 18 months between the e-mail and the search warrant was not stale on its face, since CP is usually kept. Also, the police went to an AUSA to get the search warrant approved before issuance. Suppression order reversed. United States v. Pappas, 592 F.3d 799 (7th Cir. 2010)*:

In this case, Pappas argues, and the district court held, that the affidavit supporting the warrant was so lacking in probable cause that the officers could not rely upon it in good faith. We disagree. Here, the affidavit clearly documented evidence establishing that at least eleven images of child pornography had been sent to Pappas's email account and verifying that Pappas continued to maintain email access (thus indicating continued access to a computer on which child pornography could be stored). Additionally, prior to seeking a warrant, Agent Hanson consulted with an Assistant United States Attorney. Consulting "with the prosecutor prior to applying for [a] search warrant provides additional evidence of [that officer's] objective good faith." United States v. Bynum, 293 F.3d 192, 198 (4th Cir. 2002). See also United States v. Johnson, 78 F.3d 1258, 1264 (8th Cir. 1996) (stating that obtaining advice of a county attorney is an indication that an officer's reliance on a search warrant was objectively reasonable); United States v. Brown, 951 F.2d 999, 1005 (9th Cir. 1991) (noting "an officer's consultation with a government attorney is of significant importance to a finding of good faith ... [and it is] of even greater importance where, as here, a point of law relating to the scope of a Fourth Amendment search and seizure was not yet settled at the time the warrant issued "); United States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990) (explaining that officer's consultation "with the local district attorney before seeking the search warrant, and then submit[ting] the matter to a neutral magistrate" was "indicative of objective good faith").

Likely possession of marijuana in a backpack in a car justified its search under the automobile exception. The fact that there might have been less than an ounce was not determinative as to application of the automobile exception. State v. Smalley, 2010 Ore. App. LEXIS 21 (January 20, 2010):

According to defendant, Bingman stands for the proposition that, first, the automobile exception requires probable cause to believe that a crime, not a mere violation, has occurred, and second, that a strong odor cannot by itself form the basis for an objectively reasonable belief that an automobile contains more than an ounce of marijuana. Additional evidence is necessary, defendant contends, and, in the present case, there is nothing beyond odor.

We reject defendant's argument. Bingman overstated the import of Tallman. That case, as noted, holds only that possession of less than an ounce of marijuana cannot, by itself, support probable cause for an arrest or a search incident to an arrest. It says nothing about an automobile search. In fact, this court has never directly confronted the question whether the automobile exception encompasses situations in which an officer has probable cause to believe a violation, as opposed to a crime, has occurred. See ORS 161.505 (offense is either crime or violation)- But see ORS 131.005(6) ("criminal action" includes prosecution for commission of a violation). However, the Supreme Court in Brown specified that "probable cause to believe that a lawfully stopped automobile which was mobile at the time of the stop contains contraband or crime evidence justifies an immediate warrantless search of the entire automobile." 301 Ore. at 277 (emphasis added). By using the phrase, "contraband or crime evidence," the court signaled its understanding that the two things were not identical and that probable cause to believe in the presence of either could justify an automobile search; see also ORS 133.535(2) ("contraband" is subject to search and seizure).

The officers did not have exigent circumstances to enter defendant’s house without a warrant where they waited an hour before they decided to enter. Nothing was seized however, and the subsequent search warrant was issued with probable cause, given the “great deference” that search warrants get, and that was an independent basis for the search. State v. Mills, 2010 Tenn. Crim. App. LEXIS 43 (January 15, 2010).*

Officer’s finding of a screwdriver apparently used to remove car panels was relevant to the scope of his consent search—the screwdriver could be used to open the panel. United States v. Braiske, 2010 U.S. Dist. LEXIS 4798 (N.D. Iowa January 21, 2010):

The court finds, however, that the trooper's discovery of the screwdriver is relevant to the scope of the consent search, and shall overrule the remainder of the first Objection. While searching containers or areas where the object of the search may be present, law enforcement officers may "probe underneath the vehicle[] and open compartments that appear to be false or puncture such compartments in a minimally intrusive manner." United States v. Ferrer-Montoya, 483 F.3d 565, 568 (8th Cir. 2007). Therefore, evidence indicating that a compartment may be false is relevant to the scope of the search. See id. (officer did not exceed scope of consent to search for drugs by removing screws to access hidden compartment after noticing "scarred screws."). Before Trooper Andrews pulled back the panel, he discovered a screwdriver in the cargo area of the van. This discovery led him to believe, based on his training and experience, that drugs may be stored in an area that was not accessible without the use of a tool, such as a screwdriver. Accordingly, the court overrules the first Objection to the extent it disputes Judge Scoles's reliance on the trooper's discovery of a screw driver in his analysis regarding scope of consent.

From the USMJ’s opinion: Defendant was not denied the opportunity to withdraw consent because he was placed [locked] in a police car with the windows up, absent some showing that he actually attempted to withdraw his consent. United States v. Braiske, 2009 U.S. Dist. LEXIS 123655 (N.D. Iowa December 23, 2009).

Officers went into defendant’s backyard about midnight and looked around. They saw “no trespassing” signs on the building, which the court believes meant the backyard and not just the building (the building was a given). Going into the backyard was unreasonable. State v. Kruse, 306 S.W.3d 603 (W.D. Mo. 2010)*:

This is not a case where the police officers merely knocked on the front door to ask whether Beel was present. The officers went into the back yard before trying the front door. The officers did not fear present danger or present destruction of evidence. When the officers arrived at Kruse's residence, they called for and took the time to wait for additional officers to arrive. Beel's van had a flat tire. Beel was presumably unaware of police presence, and his van was essentially immobile. Prior to the police entry into the back yard, Beel had no motive to flee or destroy evidence. The police acknowledged that the situation did not call for immediate action. The officers had time to seek a warrant to search for Beel. In the unlikely case the warrant were denied, the officers still could have come back and knocked on the front door to ask about Beel.

Defense counsel was not ineffective for not moving to suppress a search of a meth lab entered on exigent circumstances. State v. Madden, 2010 Ohio 176, 2010 Ohio App. LEXIS 145 (4th Dist. January 14, 2010).*

In a child pornography case, the record supports the trial court’s conclusion that defendant’s wife consented to a seizure and search of their computer on which she admitted to seeing young girls in a state of undress. The issue of password protection of part of the computer as creating a privacy interest in it was not raised before the trial court and would not be considered on appeal. State v. Knisley, 2010 Ohio 116, 2010 Ohio App. LEXIS 94 (2d Dist. January 15, 2010).*

A controlled buy that was seen by the police to a CI was an adequate basis for defendant’s stop. State v. Johnson, 2010 Ohio 139, 2010 Ohio App. LEXIS 111 (5th Dist. January 19, 2010).*

Anonymous tip that defendant was dealing drugs at school was insufficient to justify a search by an assistant principal and the police on the school parking lot. The tip came through the PD and was passed on to the school. Another tip about another person proved fruitless. There was nothing to show why it was a reliable tip. People v. Perreault, 287 Mich. App. 168, 2010 Mich. App. LEXIS 94 (January 19, 2010)*:

Therefore, the anonymous tip was vague concerning defendant and could not be viewed with a "totality of the circumstances" because there were no other circumstances. Indeed, the only other possible circumstance weighed against the tip being reliable. "Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation" before governmental authorities may act against a suspect. White, supra at 329. (internal quotation marks and citation omitted). This is an example of such a tip. The tip alone did not provide a sufficient basis to form reasonable suspicion necessary for the search of defendant's vehicle, and the search was based on nothing more than the tip. The search was therefore unconstitutional, and the trial court should have suppressed the evidence as the fruit of an illegal search. See Wong Sun v United States, 371 U.S. 471, 487-488; 83 S Ct 407; 9 L Ed 2d 441 (1963); Cartwright, supra.

Reversed for reasons stated in the dissenting opinion [there was reasonable suspicion]. People v. Perreault, 2010 Mich. LEXIS 912 (Mich., May 21, 2010), posted June 19, 2010.

Search incident of a car for failure to produce identification was unreasonable under the Indiana Constitution. Chest v. State, 2009 Ind. App. Unpub. LEXIS 2157 (December 23, 2009), The Publication Status of this Document has been Changed by the Court from Unpublished to Published January 12, 2010, reported at Chest v. State, 2009 Ind. App. LEXIS 2871 (Ind. Ct. App., Dec. 23, 2009), ordered published by Chest v. State, 2010 Ind. App. LEXIS 13 (Ind. Ct. App., Jan. 12, 2010) [Note: The Lexis cites are a three word summary or nothing at all; the link in the case name is to the court's website]:

Officer Reynolds testified he conducted the search incident to Chest’s arrest, seeking Chest’s driver’s license or other ID. Historically, there are two rationales for the search incident to arrest exception to the warrant requirement: 1) “the need to disarm the suspect” or officer safety; and 2) “the need to preserve evidence for later use at trial.” Moore v. State, 796 N.E.2d 764, 767 n.5 (Ind. Ct. App. 2003), trans. denied. Neither of these rationales apply here. At the time of the search, Officer Reynolds had safely removed Chest from the vehicle, patted him down for weapons, handcuffed him, and secured him in the back seat of the police car. Officer Reynolds had also not seen Chest make any furtive movements when he pulled him over that might have justified a search of the vehicle. See id., 796 N.E.2d at 767 n.5 (“an officer will search a vehicle after placing an occupant under arrest when he or she is concerned about his or her safety because of furtive or threatening behavior on the part of the occupant of the vehicle.”). Therefore, Officer Reynolds’s safety was no longer a concern.

There was also no need to preserve any evidence in the vehicle for trial. Chest had refused to identify himself and, in so doing, committed the crime. The relevant evidence to convict Chest would be Officer Reynolds’s testimony regarding the refusal, not crimes, for which Officer Reynolds might expect to find evidence in the vehicle, his search of Chest’s vehicle violated Article 1, section 11 of the Indiana Constitution. As a result, the trial court erred when it admitted the evidence obtained during the search. Thus, we reverse Chest’s conviction for carrying a handgun without a license and remand with instructions for the trial court to vacate the conviction and sentence imposed thereon.

Request for counsel during traffic stop leads to finding body in trunk

On ABAJournal.com: Did Man’s Attorney Request Create Reason to Search Car? (Mom’s Body Was in Trunk), about a case in Missouri where the defendant when stopped immediately asked for a lawyer, so the cop searched the trunk.

Safety move to put cameras in locomotives results in privacy suit in CA

In NYT today: Panel Recommends Surveillance in Locomotives.

Kerr seeks cert in McCane

Orin Kerr filed a cert petition in the Gant good faith case of McCane because of a circuit split.

In a child pornography case, the Seventh Circuit finds that a search warrant for evidence of video voyeurism sought in defendant's house did not limit the government from using its software package to look for all picture and video files on defendant's computer. Child pornography was found, too. If the court has to take a position at all, which the defense invited, it sides with the dissent in United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc) (posted here) on the computer search issue. United States v. Mann, 592 F.3d 779 (7th Cir. 2010). (Also noted here.)

The government showed before the District Court, and on appeal, that the officers’ reliance on the search warrant was in good faith under Leon, and the search should not be suppressed, considering “the substantial societal costs” of suppression. While the government did not cross-appeal on the District Court’s finding of no probable cause, the Seventh Circuit virtually held that there was probable cause anyway. At any rate, reliance on the search warrant was reasonable and in good faith under Leon, so the search is not suppressed. United States v. Mitten, 592 F.3d 767 (7th Cir. 2010).*

"[A]nti-government rhetoric" language in the particularity description in a search warrant for the home and a hotel room of alleged tax protectors was vague and should be stricken from the search warrant. Many other records were legitimately seized because their evidentiary value was immediately apparent to the IRS agents executing the search warrant. Only five files, documents, binders, and books were suppressed. United States v. Dirr, 2009 U.S. Dist. LEXIS 123549 (E.D. Tenn. August 28, 2009)*, adopted United States v. Dirr, 2010 U.S. Dist. LEXIS 4309 (E.D. Tenn. January 20, 2010).*

Defendant was stopped for having trim around the license plate that covered the state of issuance. The officer asked her questions, and she “enthusiastically” agreed to let him keep asking. The suspicion, however, never ripened into something articulable, and the USMJ recommended suppression. United States v. Martin, 679 F. Supp. 2d 723 (W.D. La. 2009)*:

Perhaps of even greater importance is Linton's failure to explain a link between Martin's purportedly suspicious behavior and any specific criminal activity. Jenson, 462 F.3d at 405; Thibodeaux, supra. Linton testified that based upon all of the facts that he identified, he believed that Martin was up to no good and that "something [was] wrong." Linton later reiterated that he had determined that "something was wrong" and that he was going to search her vehicle. Linton, however, did not articulate how Martin's behavior and the remaining circumstances indicate that she was engaged in illegal drug activity or some other specific criminal activity. See Jenson, supra; see also Santiago, supra (search was unreasonable even though officer thought that the car might contain drugs, because any suspicion of drug trafficking was dispelled once the licenses cleared). Accordingly, Linton's suspicions comprised no more than a hunch, albeit a very good one. Jenson, supra; Thibodeaux, supra. Hunches, however, do not suffice.

Tossing a cigarette from a car justified its stop for littering, and a drug dog arrived within two minutes, which did not unreasonably extend the stop. United States v. Roach, 2010 U.S. Dist. LEXIS 3769 (D. S.C. January 15, 2010).*

Rolling stop justified traffic stop, and defendant was found to have consented to a search of his car. United States v. Cousin, 2009 U.S. Dist. LEXIS 123457 (E.D. Tenn. November 18, 2009)*; United States v. Coachman, 2010 U.S. Dist. LEXIS 4113 (W.D. Pa. January 20, 2010).*

In that same case, an equal protection claim is not subject to suppression. United States v. Cousin, 2009 U.S. Dist. LEXIS 123481 (E.D. Tenn. November 23, 2009):

Because the exclusionary rule is not an appropriate remedy for an Equal Protection violation by police pursuant to United States v. Nichols, 512 F.3d 789 (6th Cir. 2007), it is RECOMMENDED that defendant's motion to suppress and defendant's request for additional discovery and an evidentiary hearing on his Equal Protection claim be DENIED.

Defense counsel's unjustified language deriding the police in a motion to suppress gets a rebuke from the judge. This was a question of fact on whether the officers should be believed in whether it was a valid consent search, and the court believes the officers. United States v. Perez, 2010 U.S. Dist. LEXIS 3462 (E.D. Pa. January 15, 2010):

Relying on unjustified innuendo and the stylistic devices of aporia and rhetorical questioningN1 rather than evidence or logic, counsel for Defendant Juan Perez seeks to suppress the critical physical evidence gathered for use against Mr. Perez in this prosecution for violation of 21 U.S.C. § 841(a)(1),(b)(1)(D) Possession with Intent to Distribute Marijuana; 18 U.S.C. § 924(c)(1) Possession of a Firearm in Furtherance of a Drug Trafficking Offense; and 18 U.S.C. § 922(g)(1) Convicted Felon in Possession of a Firearm.

n. 1: In the Memorandum In Support of Motion To Suppress Physical Evidence there are at least 13 instances where gratuitous rhetorical questions are posed, apparently as a way to challenge or deride the opposing position. In other instances, the technique of aporia (i.e., expressing doubt--often feigned--by which the speaker appears uncertain as to what he should think, say or do) was employed. While the atypical pattern may provide some respite from conventional briefing, the Court finds both rhetorical devices--especially when so generously used without the benefits of any subtlety--ultimately distracting from the legal points Mr. Perez apparently hoped to make. By concentrating only on the issues raised (instead of on the overly argumentative manner by which they were addressed), the Court could understand full well Mr. Perez's positions. The language style employed did not--and could not--improve the chances of success of those positions. Furthermore, the defense position is certainly not aided by the startling, unwarranted and unveiled inflammatory suggestion that the police officers in this case comported themselves with "striking similarity" to a notorious police officer who pled guilty to charges of lying under oath. See defense Memorandum In Support at p.1.

I've said it before: This is just unprofessional to stoop to this and the argument's credibility is lost. Worse yet: It hurts the client.

Odor of marijuana was enough probable cause for a search during an otherwise valid traffic stop. United States v. Lesane, 361 Fed. Appx. 537 (4th Cir. 2010) (unpublished).*

For inevitable discovery to apply in the Second Circuit, there must be a “high level of confidence” that the search warrant would have issued. United States v. Cabassa, 62 F.3d 470 (2d Cir. 1995). United States v. Wilke, 689 F. Supp. 2d 455 (W.D. N.Y. 2010).*

Defendant’s consent during a traffic stop was shown by the government to be free and voluntary. The consent was rather easily achieved, shortly into the stop, and defendant did not have a right to be informed of his right to refuse. United States v. Cousin, 2010 U.S. Dist. LEXIS 3688 (E.D. Tenn. January 19, 2010).*

First entry into house was by consent, and that produced a small bag of marijuana. That observation validly made it into the search warrant request which authorized a greater search. United States v. McNeil, 2010 U.S. Dist. LEXIS 3747 (M.D. Pa. January 19, 2010).*

Defendant showed up at a house being searched under a search warrant, and rang the doorbell. One of the officers invited him in and then searched him without any effort to determine his connection to the premises. The search was unreasonable. Defendant was seized when he came into the house. People v. Chestnut, 398 Ill. App. 3d 1043, 336 Ill. Dec. 955, 921 N.E.2d 811 (2010).

The officer was told that the defendants were hauling cash hidden in the dashboard before the stop was made for a traffic offense. The defendant’s conduct after the stop was reasonable suspicion to continue questioning about drugs and cash. A dog was called, and it arrived within 15 minutes so the stop was not unreasonably extended. United States v. Guzman, 2009 U.S. Dist. LEXIS 123232 (D. Minn. November 25, 2009).*

The evidence supports the District Court’s finding that the defendant consented during a knock-and-talk of the hotel room where he lived. United States v. Phillips, 361 Fed. Appx. 679, 2010 FED App. 0028N (6th Cir. 2010) (unpublished).*

Plaintiff’s complaint that an officer induced her to have her husband arrested for a domestic dispute after she did not want to and then had her ride with him and touched her hand saying that he wanted to date her stated a Fourth Amendment claim without qualified immunity. Wilson v. Wilkins, 362 Fed. Appx. 440, 2010 FED App. 0030N (6th Cir. 2010) (unpublished).*

Defendant’s consent was invalid. He was asked for consent six times while he was sitting in his car, but he was equivocal or refused. The questions to him were loaded: “Would you mind if I search?” is different from “May I search?” in analyzing voluntariness. Meekins v. State, 303 S.W.3d 25 (Tex. App.—Amarillo 2009):

As previously described, the video of the stop revealed that Williams asked for consent about six times. Appellant's first five replies to those solicitations were evasive and so much so that they resulted in the officer informing him that the inquiry was a "yes or no question." The officer's desire to hear a "yes" or "no" answer continued until appellant said "yes" or "I guess" to the last solicitation. Because that utterance allegedly evinced to Williams "clear and unequivocal" consent, he ordered appellant to exit the vehicle. The problem comes, however, in the nature of the question to which appellant said "yes" or "I guess."

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

Opting for a Legislation Alternative to the Fourth Amendment Exclusionary Rule by Samuel Estreicher and Daniel P. Weick, both of NYU Law School, University of Missouri at Kansas City Law Review, Vol. 78, No. 4, Summer 2010, on SSRN. Abstract:

Our proposal for an alternative to the exclusionary rule differs from others in that while damages actions play an important role, it proposes a regulated experiment--crafted and enacted into law by Congress pursuant to its Section 5 power to enforce the Fourteenth Amendment--whereby federal, state and local law enforcement agencies can operate free of the exclusionary rule if they develop internal mechanisms to deter police misconduct. The central focus would be on developing systematic police compliance with the Fourteenth Amendment rather than addressing individual violations.

Defendant’s vehicle stop was with probable cause from a citizen informant saying he was carrying a stolen gun. The search of the trunk where the police were told by the citizen informant to look was justified by the automobile exception, consent, or the inventory exception. As to inventory, the police had no duty to locate the owner to come and get it rather than tow it. United States v. Clinton, 591 F.3d 968 (7th Cir. 2010).* (Note: This case is an example of how Gant is requiring the courts to go back to any valid alternative ground to sustain a vehicle search. Pre-Gant case law was virtually open season on cars, and that case forces courts to analyze all grounds for a vehicle search instead. And, at least half the time, an alternative works.)

During a knock-and-talk, the police asked the occupants to come outside to talk and they did. One asked if he could go back to get a shirt, and an officer said that he could but the officer had to follow for safety reasons. He assented. Inside, the officer saw crack in plain view, and that formed the basis of a search warrant request, which was valid. The entry was shown to be by consent. Woods v. State, 25 So. 3d 669 (Fla. App. 4th DCA 2010)* (Like Washington v. Chrisman).

CI’s information was not merely “neutral details”; it was specific as to times and dates and it justified defendant’s stop. After the stop, defendant’s actions were such that PC developed. State v. Roubideaux, 2010 Ohio 73, 2010 Ohio App. LEXIS 56 (8th Dist. January 14, 2010)*:

[*P38] By that point, based upon his own firsthand observations in conjunction with the information provided by the CS who saw Roubideaux's actions, Monnolly had probable cause to believe Roubideaux's car contained contraband. State v. Underwood, Butler App. No. CA2003-03-057, 2004 Ohio 504; State v. Branch, Licking App. No. 08-CA-153, 2009 Ohio 4152, P34 (distinguishing Florida v. J.L. (2000), 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254). Indeed, if Monnolly did not act, any evidence of criminal activity would be lost because Roubideaux could no longer be detained for the traffic accident.

Wisconsin officials are seeking to get DNA samples from 700 of 11,000 missing ex-offender names from the state DNA database who slipped through without being tested. They are threatening prosecution. State's DNA letter to felons may yield future setbacks in court by Ben Poston in the Milwaukee Journal-Sentinel:

A letter being sent by the Wisconsin Department of Corrections that orders released felons to submit DNA samples or face prosecution may exceed the state's authority and undermine future cases, legal experts, defense attorneys and even one prosecutor say.

The concerns are important because the use of DNA evidence obtained under questionable grounds could later be challenged in court if it is used to prosecute a future crime.

The notices have been mailed out by the Corrections Department since December to about 700 of the more than 11,000 offenders whose profiles are missing from the state DNA databank and who already have completed their sentences.

"If someone provides DNA because of the notice and then gets charged with a crime based on the DNA, he or she will file a motion to suppress on those grounds," retired Wisconsin Supreme Court Justice Janine Geske said. "I just think with so much uncertainty about what is allowed and not allowed, there is risk for (the department) in getting the DNA through this letter."

“We shall hold that the totality of the circumstances do not provide a concrete reason to associate the odor of ether with criminal activity or contraband, and, accordingly, the officer did not have probable cause to arrest the petitioner.” Bailey v. State, 412 Md. 349, 987 A.2d 72 (2010).

Search would be bad under Gant, but suppression not required because of inevitable discovery. United States v. Stotler, 591 F.3d 935 (7th Cir. 2010):

To all this, we add a final point. The inevitable discovery doctrine holds that even an illegally seized item need not be suppressed if the government can prove by a preponderance of the evidence that the officers would have discovered it by lawful means. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). See also United States v. Marrocco, 578 F.3d 627 (7th Cir. 2009). If the police had not searched Stotler's pickup when they did, the evidence would have undoubtedly been discovered a little later. Obviously, with Stotler in custody, he was not going to be allowed to get in his truck and drive away. Also obviously, the arresting officers would not have allowed the truck to just sit on the street after Stotler was carted away. What they would have done, in all likelihood, was impound the truck and have it towed away. An inventory search would have naturally followed; the evidence would have been inevitably discovered.

Search warrant for defendant’s premises was supported by probable cause. United States v. Cabinett, 2009 U.S. Dist. LEXIS 123162 (D. Minn. November 6, 2009).*

Defendant had standing to challenge police entry into the premises although he was considered by the government to be a squatter. He was invited in and stayed in one room. While he had standing, his flight out the window leaving a backpack behind was an abandonment. United States v. Martin, 2010 U.S. Dist. LEXIS 2962 (D. Utah January 14, 2010)*:

Based on the above, the Court finds that this case is distinguishable from the types of trespasser/squatter cases cited by the government. Rather, the Court finds that Defendant's status is much more akin to that of an overnight guest than of a trespasser or squatter. The Supreme Court, in Minnesota v. Olson, recognized that a person's "status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable." As set forth above, Defendant was invited to stay at the home by one with the apparent authority to do so, he was given a room to stay in, and he moved his personal possessions into that room. As to that room, the parties have stipulated that Defendant would testify that he believed that: his bedroom was his private domain, he had the right to exclude others from the bedroom, and others would not enter the bedroom without his express or implied consent. Based on these things, the Court finds that Defendant had a reasonable expectation of privacy and has the ability to challenge Deputy Gamble's entry into the home and the bedroom he occupied, in particular.

A fascinating article getting a lot of notice on the Internet today (CNet News, PogoWasRight) is Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing by David A. Couillard, 93 Minn. L. Rev. 2205 (2009):

Internet use has changed over time, expanding beyond text-based forums and e-mails to include images, videos, documents, interactive online applications, online storage, and more. Experts have coined the term “Web 2.0” to describe the shift in Internet usage from consumption to participation and metaphorically refer to this virtual platform as “the cloud,” where users interact with Internet applications and store data on distant servers rather than on their own hard drives. Despite the shift in Internet usage, users expect their information to be treated the same on this virtual cloud as it would be if it were stored on their own computer, phone, or iPod.

Meanwhile, the Fourth Amendment has also evolved over the past several decades, slowly adapting to various new technologies; but it took the Supreme Court until 1967—nearly a full century after the invention of the telephone—to recognize telephone conversations as constitutionally protected against unreasonable searches. Under a rubric of “reasonable expectations of privacy,” the Court has since defined the contours of the Fourth Amendment’s application in varying circumstances. But technology and society’s expectations are evolving faster than the law. Although statutory schemes exist, some argue that these laws are outdated.10 Meanwhile, the Supreme Court has not even addressed the Fourth Amendment’s application to e-mail, let alone the expanding uses of cloudcomputing platforms. Thus, Fourth Amendment law needs a framework that will adapt more quickly in order to keep pace with evolving technology.

This Note will analyze cloud computing specifically in the context of the Fourth Amendment, notwithstanding related statutory provisions. Part I will examine the evolution of Fourth Amendment jurisprudence in the last several decades and describe the newly emerging field of cloud computing and the implications of that trend. Part II will describe how courts analogize Fourth Amendment precedent to these new and different cloud-computing concepts and will address whether society is reasonable to expect privacy in things stored on the Internet. In addition, it will look at judicial attempts to treat computer accounts and websites as virtual containers and how methods of virtual concealment have been treated under the law. Finally, Part II will also look at the role of third-party intermediaries in this complex privacy equation. So far, judicial approaches to these issues are unclear and vary by jurisdiction, or the issues have been avoided altogether. Part III will synthesize these concerns and lay out a framework for courts to follow when applying Fourth Amendment law to the cloud.

As computer file storage expands offsite, what are the expectations of privacy? Is a password enough? It should be. The Supreme Court has yet to rule on much of anything with computers or the Internet and the Fourth Amendment, still, in 2010.

In an economic espionage case, the defendant had no standing in a computer server that he had only some access to store his own files and no access to many files of others. He did have standing in his own files that were password protected. United States v. Roberts, 2009 U.S. Dist. LEXIS 123188 (E.D. Tenn. December 21, 2009):

In so finding, the Court is guided by the decision of the District Court for the District of Connecticut, which held that while a supervisor had a reasonable expectation of privacy in his own work area and in other areas in which he worked, he had no reasonable expectation of privacy in data on computers other than that on his own desk. United States v. Costin, No. 3:05-CR-38, 2006 WL 2522377, *6 (D. Conn. July 31, 2006). Similarly, the present defendants could not expect privacy in computer files, other than their own files that were password protected, on Wyko's server. On the other hand, the password protected files resemble the records in United States v. Mancini, 8 F.3d 104, 110 (1st Cir. 1993). In Mancini, the First Circuit found that the defendant, a mayor, had an objectively reasonable expectation of privacy in his work records stored in an "archive attic" because the storage area was upstairs from his office of nineteen years, the defendant took precautions to assure that others would not have access to the records without his prior permission, and the defendant's records were labeled and segregated from the other items stored in the attic. Id. Here, by having some files on the server password protected, the defendant(s) took steps to make sure that others could not access his/their files. Accordingly, the Court finds that the defendants had no reasonable expectation of privacy in data stored on the server other than their own files that were password protected.

A SWAT team entered a house in Wilmington DE with a warrant looking for suspected murderer “Dwayne A. Walker,” but entered the house of younger “Dewayne Walker Jr.” instead. The entry before 6 a.m. lasted about 20 minutes when the police realized they were sent to the wrong house and then excused themselves. The court finds triable issues of a Franks and a nighttime search violation. Walker v. City of Wilmington, 360 Fed. Appx. 305 (3d Cir. 2010) (unpublished):

It is in this context that a jury could find that Lawson made his representation to the magistrate: "a past proven reliable informant ... stated [that] Walker is currently hiding at his mother's house in New Castle and is making plans to flee Delaware." App. at A115. We conclude that this representation regarding the whereabouts of Dwayne A. Walker was not only inaccurate but could be found by a jury to be knowingly false or made in reckless disregard of the truth.

In this case, the police, in addition to seeking evidence of a crime, were attempting to arrest a murder suspect. Murder is, of course, a very serious crime that makes it objectively reasonable for the police to deem the suspect potentially dangerous. Thus, it appears that the District Court's conclusion that having a large, armed SWAT team and a K-9 Unit present was not unreasonable is correct. Additionally, the SWAT team gathered and confined Plaintiffs in the living room, and as soon as the police realized that they were in the wrong place, they explained the situation and left the premises. Under the circumstances at the time, this conduct was not objectively unreasonable and provides no independent basis for holding the search and seizure to be constitutionally unreasonable.

The nighttime search issue is significant. The warrant authorized a daytime entry, but there was a fact dispute whether the entry was before 6 a.m., and, thus, a nighttime search:

We were confronted with a similar situation in United States ex rel. Boyance v. Myers, 398 F.2d 896 (3d Cir. 1968). We ruled as follows:

The time of a police search of an occupied family home may be a significant factor in determining whether, in a Fourth Amendment sense, the search is "unreasonable." At common law, prior to the adoption of the Fourth Amendment, there was a strong aversion to nighttime searches. Even the odious "writs of assistance" which outraged colonial America permitted search of dwellings only in the daytime. The significance of this aversion of the common law to nighttime searches is underscored by the Supreme Court's reminder that the search and seizure clause is properly "construed in the light of what was deemed an unreasonable search and seizure when it was adopted." Carroll v. United States, 1925, 267 U.S. 132, 149, 45 S. Ct. 280, 284, 69 L. Ed. 543, T.D. 3686.

During the early years of the republic this common-law tradition was embodied in two statutes passed by our first Congress that authorized only daytime searches. Thereafter, the reluctance to authorize nighttime searches except under exceptional circumstances continued as an integral part of our jurisprudence.

* * *

Here it is claimed that the search, though made late at night, was reasonable because authorized by a warrant issued by a magistrate ... However, the issue whether the search was in fact authorized by the warrant is determinable by a reading of the warrant's simple and unambiguous language. To find that a warrant which is explictly limited to daytime searches legalizes search at any hour of the day or night would be to disregard the magistrate's actual determination and thus to nullify the requirement of a prior impartial determination that a particular search will be reasonable. "When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman, or Government enforcement agent." Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436.

Motion to suppress did not allege a violation of curtilage so it was not properly before the court of appeals, so that part of the court of appeals opinion as to curtilage is ordered striken and the conviction affirmed. Vaughn v. Commonwealth, 279 Va. 20 (2010), modifying Vaughn v. Commonwealth, 53 Va. App. 643, 674 S.E.2d 558 (2009):

In Vaughn's motion to suppress filed in the circuit court, he argued, inter alia, that the search of the property violated the Fourth Amendment because "[t]here were insufficient underlying facts and circumstances presented to the officers for there to have been probable cause to believe that there was evidence located at the property that was subject to seizure[, c]onfiscation of the allegedly stolen items cannot be justified under any 'plain view' doctrine where the discovery was anticipated[, and t]here were no exigent circumstances to justify the warrantless search of the property." While Vaughn did argue that the Fourth Amendment requirements for a warrantless search of a dwelling's curtilage, i.e., probable cause and exigent circumstances, see Robinson, 273 Va. at 34, 639 S.E.2d at 221, were not met, Vaughn did not contest the lawfulness of the officer's presence in his backyard where the stolen items were plainly in view, or cite any cases that dealt with the doctrine of implied consent.

Being in a high crime area, flight on seeing the police, grabbing his pocket like securing a gun all added up to reasonable suspicion. He fell on gravel and the police caught up, and he admitted having a gun when collared. That was reasonable suspicion. Whitaker v. Commonwealth, 279 Va. 268 (2010).*

The officer’s “recent observations of Lawson leaving his apartment in his Jeep and apparently conducting drug transactions from his Jeep in a nearby park on multiple occasions, along with Tennis' information indicating that Lawson was also selling cocaine from his apartment, clearly established reasonable articulable suspicion (if not probable cause) that Lawson was, or was about to be, engaged in criminal activity.” Lawson v. Commonwealth, 55 Va. App. 549, 687 S.E.2d 94 (2010).*

CI was not shown to be reliable or credible to the police. Also, his statements about possession of drugs on the premises six months earlier added nothing about the day in question. “[T]he sale of drugs out of a residence is not inherently ongoing”; something has to be shown of a continuing nature. United States v. Ervin, 2010 U.S. Dist. LEXIS 2885 (E.D. Tenn. January 14, 2010).*

In an ongoing case from San Diego where three youths were arrested for the murder of a friend, prosecuted for a year and then DNA was finally tested that cleared them, a strip search claim and a claim over their search for blood without probable cause only survive. “Under clearly established Supreme Court and Ninth Circuit law, no reasonable police officer could have believed that the desire to prove that another person (presumably Michael) killed Stephanie established probable cause to draw Stephen and Cheryl's blood. The district court properly denied summary judgment and qualified immunity.” Crowe v. County of San Diego, 2010 U.S. App. LEXIS 894 (9th Cir. January 14, 2010, amended January 27, 2010) (argued June 1, 2008).* See Basically Law ("The Ninth Circuit ruled that several officers who used outrageous and manipulative interrogation techniques on teenagers are not entitled to qualified immunity. If you want to know how police can manipulate a confession out of vulnerable, and innocent, people, read the facts of this case."); Law.com ("A 9th Circuit panel on Thursday reinstated many of the legal claims of a Southern California man, who, as a 14-year-old boy, falsely confessed to killing his younger sister after a series of grueling and coercive interviews with police. [¶] Writing for a unanimous three-judge panel, Judge Sidney Thomas said authorities' marathon questioning of Michael Crowe and his accused accomplice, Aaron Houser, 'shocks the conscience.'").

The burden of proof for consent in federal court is preponderance of the evidence, not “clear and convincing” as in Tennessee state courts, and the burden was satisfied here. United States v. Roberts, 2010 U.S. Dist. LEXIS 2855 (E.D. Tenn. January 14, 2010).*

In looking for drugs after a tag light was out, a 45 minute detention became unreasonable and was not connected to any articulable facts. United States v. Valle-Tellez, 2009 U.S. Dist. LEXIS 122995 (N.D. Miss. December 18, 2009).*

Defendant was arrested when he showed up as an internet traveler for arranging sex with a minor over the Internet. There was probable cause to search his car. United States v. Deal, 2009 U.S. Dist. LEXIS 122874 (M.D. Fla. July 29, 2009)* [In my experience with these cases, there is evidence in the car at least 75% of the time.]

The district court’s findings of consent are supported by the record. United States v. Ray, 361 Fed. Appx. 674, 2010 FED App. 0026N (6th Cir. 2010) (unpublished).*

Leaving a copy of a search warrant at the premises when the defendant is arrested is [substantial] compliance with the requirement that the target of the search be served a copy of a search warrant. The knock-and-announce requirement was satisfied here, so whether the state should follow Hudson is moot. State v. Davis, 2010 Tenn. Crim. App. LEXIS 30 (January 12, 2010).*

Officer was in a house with a suspect with a history of threatening with a gun. When the defendant admitted having a gun in the house, the situation for the officer became more “worrisome” and the officer was not obliged to let the defendant retrieve the gun. Officer’s looking for the gun in this situation was reasonable. United States v. Zetterman, 2009 U.S. Dist. LEXIS 122823 (D. Me. November 16, 2009).*

Defendant’s motion to suppress did not allege standing or that the consent was involuntary, and it was denied. United States v. Cerna, 2009 U.S. Dist. LEXIS 122847 (N.D. Cal. December 21, 2009).*

Parole hold was subject to Miranda requirements, and defendant’s unMirandized statement he had a gun in his house was fruit of the poisonous tree as was the search for the gun. Fowler v. State, 2010 Ark. App. 23, 2010 Ark. App. LEXIS 35 (January 13, 2010).*

Defendant's car search was justified by probable cause, so Gant was inapplicable as a search incident. Cain v. State, 2010 Ark. App. 30, 373 S.W.3d 392 (2010).*

Officer after a traffic stop told the defendant that he was “good to go,” and then tried to engage the defendant in further conversation, which the defendant refused to consent to. Because defendant did not consent, the stop was unreasonably extended without reasonable suspicion. United States v. Flores-Loza, 2010 U.S. Dist. LEXIS 1934 (D. Utah January 11, 2010).*

Apartment security’s armed guard detained defendants with reasonable suspicion of breaking into cars on the parking lot, and he called 911 to get the police there. The police had reasonable suspicion when they got there. United States v. McHugh, 2010 U.S. Dist. LEXIS 1960 (N.D. Okla. January 11, 2010).*

Officer pulled up behind defendant’s car but did not stop him. The officer engaged him in a consensual encounter, so there was no stop. United States v. Huerta, 2010 U.S. Dist. LEXIS 2275 (E.D. Tenn. January 12, 2010).*

Warrantless entry into defendant’s apartment because of feared mental instability of the defendant and his access to a weapon was justified. United States v. Zetterman, 2010 U.S. Dist. LEXIS 2009 (D. Maine January 11, 2010).*

The government’s seizure of a medical marijuana supplier’s cash was based on a false affidavit by LAPD to create probable cause under state law. Without the affidavit, there was no probable cause, and judgment is entered for the supplier. United States v. $186,416.00 in United States Currency, 590 F.3d 942 (9th Cir. 2010):

This police misconduct is both highly objectionable and closely connected to the Feil declaration. The LAPD's omission of crucial information from the warrant affidavit enabled its illegal search of UMCC's offices and its seizure of the defendant currency. This, in turn, led directly to Feil's declaration as, without a statement of ownership, UMCC would have been left without legal recourse to regain the currency that was illegally taken from its possession. Because this unbroken "causal chain" links the initial illegality and Feil's subsequent statement, the Feil declaration is not "sufficiently an act of free will to purge the primary taint" from the LAPD's unlawful actions. Brown, 422 U.S. at 602 (quoting Wong Sun, 371 U.S. at 486).

During a parole search where entry was by consent, and defendant was on parole for child pornography, officers were permitted to open the top of his computer connected to the internet. “The yet unanswered question of what Hamilton may have been trying to hide, coupled with the knowledge that Hamilton was on parole for possessing child pornography received over the internet and that he had told his parole officer that he owned a computer and accessed the internet, justified the officers' actions in opening the lid to the laptop computer that was sitting on the table.” United States v. Hamilton, 591 F.3d 1017 (8th Cir. 2010).*

Defendant was handed his paperwork back, and he continued to talk to the officer. A question about drug trafficking in general did not necessarily implicate defendant’s conduct, and defendant consented to a search of his car. His general consent permitted a search of his backpack in the vehicle. United States v. Munoz, 2010 U.S. App. LEXIS 762 (8th Cir. January 13, 2010).*

Use of Taser by police during a domestic disturbance call was reasonable because of a risk of danger. Mattos v. Agarano, 2010 U.S. App. LEXIS 694 (9th Cir. January 12, 2010):

Finally, in weighing the gravity of the Fourth Amendment intrusion against the government's interest, we conclude that the force used against Jayzel was reasonable within the meaning of the Fourth Amendment. Even though we find that use of a Taser represents a serious intrusion on interests protected by the Fourth Amendment, we recognize that in responding to a domestic violence call, the officers confronted a dangerous and volatile situation. When an intoxicated Troy began yelling profanities at the officers and demanding that they leave, the officers felt the need to arrest him to finish their investigation and diffuse the situation. Because Jayzel interfered with Troy's arrest and, in doing so, made contact with Aikala, Aikala was justified in removing her from Troy's side. Although an alternative method of force may have been advisable, the Fourth Amendment does not require an officer to use the minimum amount of force necessary to move Jayzel and arrest Troy. See, e.g., Bryan v. McPherson, __ F.3d ___, No. 08-55622, 2009 U.S. App. LEXIS 28413, *31 (9th Cir. Dec. 28, 2009). In this heated situation, Aikala's deployment of a Taser did not violate Jayzel's constitutional rights.

Plaintiff claimed that he was falsely arrested by being framed for a burglary by the police. His complaint was dismissed, and affirmed, for failing to properly show that he was the subject of a Fourth Amendment seizure. Rhodes v. Prince, 360 Fed. Appx. 555 (5th Cir. 2010) (unpublished).*

The defendant’s traffic stop was proper, and it took a while for the computer checks to come back. While waiting, a drug dog was run around the vehicle which alerted, and this was not unreasonable. United States v. Williams, 2010 U.S. Dist. LEXIS 1673 (M.D. Fla. January 8, 2010)*:

The Court finds that Det. Kirkby and Lt. Hedrick had not received responses from all of their legitimate computer inquiries, and Lt. Hedrick had not completely filled out the written warning notice, until after the drug dog alerted (Doc. # 79, pp. 57-59). Since neither the written warning nor all pending computer record checks had been completed, the Court finds that the legitimate purpose of the traffic stop had not yet been fulfilled at the time the drug dog alerted. United States v. Simms, 385 F.3d 1347, 1353 (11th Cir. 2004). Therefore, the duration of the detention attributable to the traffic stop was approximately 20 to 22 minutes (see Doc. # 108, p. 26), at which point the drug dog's alert provided probable cause. Under the circumstances of this case, that length of time was not unreasonable.

What about intentionally delayed computer checks, just to facilitate this conduct? Could the officer give a code word to dispatch to "take your time on this so I can run the drug dog"? If so, then reasonableness has been manipulated.

Defendant’s conviction was reversed by the Sixth Circuit for a violation of Gant. On remand, the government sought to reopen the suppression hearing to show that inevitable discovery would have saved the search because it would have been found in an inventory, but it requested that relief from the Sixth Circuit which did not do so. The government had its chance to present alternate theories and failed. Motion to suppress granted on remand. United States v. Jackson, 2010 U.S. Dist. LEXIS 1699 (S.D. Ohio January 11, 2010).*

Defendant’s mother consented to a search of the premises by police after one of them, a firefighter-police officer combination, entered the premises on a smoke call and looked through the house for a fire, finding a grow operation on the top floor. After there was no fire found, he left the house, informed police officers outside, and he removed his fire gear and got supervisor permission to act as a police officer. Defendant’s mother was asked for consent and told she did not have to, and she still validly did. Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87920 N.E.2d 45 (2010), Review denied by Commonwealth v. Farnsworth, 456 Mass. 1102, 922 N.E.2d 153 (2010).

Defendant had no reasonable expectation of privacy in a cell phone that was not actually his and was used by others and left in a house that the police searched. Videos on the cell phone depicted defendant. State v. Thunder, 2010 SD 3, 777 N.W.2d 373 (2010).*

When is a Parent's Authority Apparent? Reconsidering Third-Party Consent Searches of an Adult Child's Private Bedroom and Property, by Jason C. Miller, in Criminal Justice, Winter 2010, 34-37:

By requiring police to more thoroughly develop an understanding of the relationship, rather than assuming all parents can consent to searches of all adult children’s rooms, courts would better protect the right to be free from unreasonable searches and seizures of both parents and their adult children. All adults should be treated as equals under the law, even those who reside with their parents.

911 call to a potentially suicidal person brought police to defendant’s house. Once inside, they saw a blood stain and smelled a foul odor from what turned out to be corpses found in a valid walk through before the officers left the house. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264:

Keeping in mind Rule 14.3 and this court's application of that rule, we turn now to the Facts surrounding the search in this case. Fort Smith Police Officer Stephen Hutchinson testified at the hearing on the motion to suppress that he was dispatched pursuant to a 911 call from Miller's father, who was in Colorado and had received a text message from Miller stating that Miller was thinking of killing himself with pills. Officer Hutchinson and Officer Derek Harwood went to an apartment rented to Bridgette Barr to conduct a welfare check on Miller. They knocked on the door and Miller opened it. They explained to Miller that they were there in response to a 911 call from his father about a suicide threat and that they were checking to see how he was doing. Officer Hutchinson asked if they could come inside to talk because it was so cold outside. After first asking to leave immediately with the officers, Miller agreed to let them in the apartment and to wait for an ambulance to take him to the hospital for a mental-health evaluation. While inside the entryway, Officer Hutchinson began to offer help to Miller and to inquire about what kind of problems he was having. Miller stated that he and his girlfriend had been fighting. While this conversation was occurring inside the apartment, Officer Hutchinson noticed pictures of a woman, whom Hutchinson thought to be Miller's girlfriend because he had his arm around her and two small children. He also noticed a dried blood stain approximately six to eight inches in diameter on the door. Despite having a head cold at the time, Officer Hutchinson also noticed a foul odor in the apartment.

. . .

In conducting the walk-through of the apartment, the officers saw in plain view a foot with toenails painted red extending from a pile of blankets on the floor at the end of a bed. Officer Hutchinson pulled the blanket back just enough to see the forehead of a body that appeared to be decayed. Both officers then left the apartment, returned to the ambulance outside, and read Miller his Miranda rights. Officer Hutchinson then asked Miller if he had killed the person in the bedroom; Miller answered yes. Remembering that he had also seen pictures of two small children, Officer Hutchinson asked Miller where the children in the picture were. Miller stated they were in the house and then admitted to killing the children also.

Holding DL for five minutes while checking validity was reasonable during a stop. Fallon v. State, 2010 Alas. App. LEXIS 1 (January 8, 2010)*:

Based on this record, we conclude that the stop was a valid community caretaker stop. Trooper Carson was therefore authorized under AS 28.15.131 to request Fallon's driver's license. By calling dispatch to check on the status of the license, Carson did not unreasonably expand the scope or duration of the stop. Although Fallon testified that he sat in his car for about five minutes waiting for Carson to return his license, the electronic recording of the contact indicates that only three minutes passed between the time Carson asked for, and returned, Fallon's license. Some of this time was occupied pulling Fallon's vehicle back onto the roadway.

Civilly committed inmates have only limited Fourth Amendment rights, but, here, strip [not body cavity] searches after visits are reasonable. Pat downs after using the gym are also reasonable. Semler v. Ludeman, 2009 U.S. Dist. LEXIS 122567 (D. Minn. November 23, 2009):

The Eighth Circuit has held that involuntarily civilly committed persons retain the Fourth Amendment right to be free from unreasonable searches, analogous to the right retained by pretrial detainees. Serna v. Goodno, 567 F.3d 944, 948 (8th Cir. 2009) [posted here]. Elaborating on the grounds for applying the standard for pretrial detainees set forth in Bell, 441 U.S. at 520, the Eighth Circuit noted that pretrial detainees are kept in custody because there is cause to believe they are dangerous; similarly, commitment under Minnesota law as a sexually dangerous person requires a finding of dangerousness. Id.

. . .

Balancing the significant security interests of the institution against the privacy interests of Plaintiffs, see Bell, 441 U.S. at 1885, the Court does not find that MSOP's policy of requiring Plaintiffs to submit to an unclothed visual body cavity search after contact visits is unreasonable. 9 The policy is in place in order to maintain a safe environment, is applied only after patients have a particular type of visit or contact, and similar searches have been upheld as constitutional by the Supreme Court and the Eighth Circuit. The Court recommends that Plaintiffs' claims regarding the unclothed visual body cavity searches be dismissed.

Defendant as a passenger had standing to challenge the stop, but the stop was with reasonable suspicion. The CI’s tip was specific and corroborated, and he had a good track record. United States v. Owens, 2010 U.S. Dist. LEXIS 1290 (M.D. Pa. January 8, 2010).*

Defendant’s stop was valid based on overtinting. He validly consented. His prior experience with law enforcement was a factor in considering his consent. United States v. Pena, 2009 U.S. Dist. LEXIS 122552 (E.D. N.C. December 11, 2009).*

The fact private security guards in Virginia are regulated and licensed by the state does not make them state actors in any case where they conduct a search and seizure. The fact the state had disciplinary authority over these guards does not make agency or that they were encouraged in their actions by the state. United States v. Day, 591 F.3d 679 (4th Cir. 2010), revg United States v. Day, 590 F. Supp. 2d 796 (E.D. Va. 2008) (posted here):

In these circumstances, we cannot agree with the district court that Virginia's regulatory scheme served to "affirmatively encourage" Costa and Slader's challenged conduct. Rather, Costa and Slader were simply empowered by the Commonwealth to make an arrest. This "'[m]ere governmental authorization'" for an arrest by Costa and Slader, "'in the absence of more active participation or encouragement,'" is insufficient to implicate the Fourth and Fifth Amendments. See Jarrett, 338 F.3d at 345 (quoting United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981)); cf. Poe, 556 F.3d at 1124 (explaining that "Oklahoma's extensive statutory regulation of the bail bonds industry, coupled with conferring the powers of arrest," was insufficient to establish governmental "knowledge of or acquiescence in the [bounty hunters'] challenged search" (internal quotation marks omitted)); Shahid, 117 F.3d at 327 (observing that "[t]he government cannot be said to have induced" the challenged search by mall security officers, who expected no "benefit or detriment from the government as a result of their actions").

Entering defendant's driveway at 4 a.m. to install a GPS device on his car violated no reasonable expectation of privacy. They entered where anybody approaching the property would or had to. United States v. Pineda-Moreno, 08-30385 (9th Cir. January 11, 2010):

Pineda-Moreno’s case differs from [United States v.] McIver, [186 F.3d 1119 (9th Cir. 1999)] in only one respect. Whereas McIver conceded that his car was not parked within the curtilage of his home when the agents attached the tracking device, id. at 1126, the government here concedes that Pineda-Moreno’s Jeep was parked within the curtilage of his home when the agents attached the tracking device. We need not decide, however, whether Pineda-Moreno’s vehicle was parked within the curtilage of his home. Even assuming it was, it was parked in his driveway, which “is only a semiprivate area.” United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975). “In order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.” Maisano v. Welcher, 940 F.2d 499, 503 (9th Cir. 1991). Pineda-Moreno offers no such evidence. To the contrary, the driveway had no gate, no “No Trespassing” signs, and no features to prevent someone standing in the street from seeing the entire driveway. Additionally, one of the investigating agents testified that “an individual going up to the house to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” If a neighborhood child had walked up Pineda-Moreno’s driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain. Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.

Pinedo-Moreno argues that the driveway was nonetheless an area in which he possessed a reasonable expectation of privacy because the agents entered his driveway between 4:00 and 5:00 a.m. But just as the timing of the agents’ actions was immaterial to our analysis in McIver, where we upheld agents’ entry onto a suspect’s driveway at 3:30 a.m. to attach a mobile tracking device to his vehicle, 186 F.3d at 1123, 1126, the time of day is immaterial here.

The Uses and Misuses of Fourth Amendment History by David E. Steinberg, 10 U.Pa. J. Const. L. 581 (2008)

Probable Cause, Reasonableness, and the Importance of Fourth Amendment History: A Response to Professor Arcila by David E. Steinburg, 10 U.Pa. J. Const. L. 1211 (2008)

A Response to Professor Steinberg’s Fourth Amendment Chutzpah by Fabio Arcila, Jr., 10 U.Pa. J. Const. L. 1229 (2008)

The Potential Abuse of the Subpoena Power under the Inevitable Discovery Doctrine by Jeffrey D. Coren, 11 U.Pa. J. Const. L. 755 (2009)

The Viability of Area Warrants in a Suspicionless Search Regime by Christopher Lee, 11 U.Pa. J. Const. L. 1015 (2009)

Defendant by his own admission abandoned property at his campsite in Tennessee in flight from a murder, and the hosts called the police because the valuable things appeared to them to have been stolen. [No conflict of laws issue, and result would be the same in a Tennessee court; decided on Fourth Amendment.] Twilegar v. State, 42 So. 3d 177, 35 Fla. L. Weekly S 13 (2010).*

In response to a shooting call, defendant and his victim were found lying in a pool of blood. The entry and view were reasonable. State v. Plauche, 32 So. 3d 852 (La. App. 3d Cir. 2010).*

Officers saw an occupant of a car urinate in public and get back in the car and throw a can out of it. They approached and saw marijuana in plain view. On questioning, defendant admitted he had a gun. The stop was valid. People v Wright, 2010 NY Slip Op 19, 2010 N.Y. App. Div. LEXIS 19 (3d Dept. January 7, 2010).*

“We agree with the District Court that the parole agents clearly possessed reasonable suspicion to conduct the searches, and we therefore need not decide whether the Supreme Court's decision in United States v. Samson, 547 U.S. 843 (2006), otherwise permits suspicion-less searches in the current circumstances.” United States v. Henry, 360 Fed. Appx. 395 (3d Cir. 2010) (unpublished).*

Apartment complex manager’s office reported to narcs that what appeared to be drug and money exchanges were occurring at regular intervals on a cul-de-sac in the apartment complex, and occupants were complaining. The exchanges occurred between non-tenants. The police surveilled and another exchange occurred, and that was reasonable suspicion for a stop. United States v. Woods, 2010 U.S. Dist. LEXIS 637 (N.D. Ind. January 5, 2010)*:

The Court finds the following facts to be specific and articulable facts giving rise to a particularized and reasonable suspicion that the occupants of the two vehicles meeting at the Plumwood Apartments on March 31, 2009, were engaged in illegal drug trafficking. Twice a month over the course of several months, two men backed their vehicles up to a wooded area at the end of a cul-de-sac in an apartment complex. The two men would meet briefly, just long enough to exchange a loaded garbage bag for a duffel bag. They were not tenants of the apartment complex, and the vehicles did not belong to anyone who lived at the complex. One of the cars that was always present was from Ohio. Only one road provided access to the meeting spot, thus allowing the men to see any approaching threats and view possible police presence.

The behavior of these individuals, viewed from the perspective of experienced narcotics detectives, reasonably suggested that the occupants of the vehicles were at the apartment complex for the purpose of conducting a drug deal.

Consenter had apparent authority to consent: She’d lived there two months, shared bank statements mailed to that address, came and went as she pleased. United States v. Bouie, 2010 U.S. Dist. LEXIS 960 (D. Utah January 6, 2010).*

Open shed door and open camper door was a reasonable belief that a burglary occurred and justified a warrantless entry. United States v. Wells, 2009 U.S. Dist. LEXIS 122391 (E.D. Mo. December 15, 2009).*

Delay in stopping, furtive movements, and smell of marijuana smoke justified a frisk of the car. The car was also registered at the location of a recent drive-by. United States v. Barefield, 2010 U.S. Dist. LEXIS 625 (D. Kan. January 5, 2010).*

Defendant pulled off I-70 in Kansas after coming upon a ruse checkpoint. At that exit were only a few houses. He was followed and he pulled into a driveway, saw the police, and was startled. The officer could conclude that there was either reasonable suspicion the car was carrying drugs or they were casing houses for a burglary. [This is a stretch to find reasonable suspicion, which it does.] United States v. Neff, 2010 U.S. Dist. LEXIS 623 (D. Kan. January 5, 2010):

The Supreme Court has held that, although a defendant's presence in a high-crime area is not sufficient to warrant an investigative detention, a person's intentional evasion of police while in a high-crime area and apparent "nervous, evasive behavior" are pertinent factors in determining whether the stop was supported by "reasonable suspicion." Based on his extensive training and experience in drug interdiction, Trooper Smith's good faith observations on July 31, 2009, were sufficient under the totality of the circumstances to rise to the level of "reasonable suspicion" that the driver and occupants were evading the drug check lane or attempting to avoid Trooper Smith because they were engaged in illegal activity, whether it was the transport of drugs or casing houses for a possible burglary, as Trooper Smith originally suspected. The driver left the Interstate immediately after passing drug check signs; however, he did not immediately loop back onto the Interstate at the first available opportunity, nor did he use the first available private driveway to turn around; his license plate indicated he did not live in Wabaunsee County; furthermore, when he noticed the patrol car behind him, he seemed unsettled and immediately pulled out of the private drive. Based on Trooper Smith's training and experience, such uncertain driving patterns immediately after passing signs indicating a drug check, and the driver's nervous reaction upon seeing a marked patrol car, were sufficient to establish reasonable suspicion for a short investigatory detention.

Defendant’s stop was with PC for a traffic violation, but he pulled over, one got out, and the car fled. There was no stop until the car finally pulled over. United States v. Moore, 2010 U.S. Dist. LEXIS 814 (E.D. Pa. January 6, 2010).*

Defendant’s § 2255 IAC Fourth Amendment claim was the same as his direct appeal and could not be relitigated. Digsby v. United States, 2010 U.S. Dist. LEXIS 867 (W.D. N.C. January 6, 2010).*

Challenge to whether drug dog was “properly trained” to find drugs failed. While there were two methods of training, neither mistrains the dog. State v. Foster, 233 Ore. App. 135 (January 6, 2010):

Defendant, who was convicted of possession of methamphetamine, ORS 475.894, argues on appeal that the trial court erred in denying his motion to suppress evidence found during a warrantless search of his car. In particular, defendant argues that the trial court erred in concluding that probable cause existed to support the search. As explained below, we conclude that the trial court properly denied suppression. Accordingly, we affirm.

. . .

In particular, we note that two aspects of the state's evidence strongly suggest that, for the purpose at issue here, Benny is adequately trained to detect drugs. First, and disregarding Hulte's testimony concerning what he considers to be corroboration in approximately two-thirds of the instances that Benny has alerted when he has been deployed in the field, drugs were discovered at the location where he alerted. Second, Benny passed the OPCA certification test, which required a 90 percent accuracy rate. Moreover, the state presented evidence rebutting Woodford's critique of the OPCA certification test. As discussed, Woodford suggested that handlers might be cueing the dogs about where the drugs were located or that the dogs might be following human scent to the location where the human placed the drugs. Fyfe testified, however, that handlers did not place the drugs for the test or know where the drugs were located, that the people who placed the drugs wore gloves, and also that the people who placed the drugs went to numerous areas in the environment so that the dogs would not simply go to the place that had most recently been disturbed. Given that evidence--in addition to the undisputed evidence by both parties that dogs do, in fact, have superior abilities to detect odors and can be trained to alert to specific odors--we agree with the trial court that the evidence of Benny's alert to defendant's car door handle, when combined with other evidence, provided sufficient probable cause for the search at issue here.

Defendant was followed to a store by a bail bondsman looking to arrest him on outstanding warrants. The bondsman saw a police officer outside the store and enlisted his aid in the arrest. It turned out that the defendant was not the man wanted but he exactly matched the description the bondsman had developed, down to color of shirt and cornrows in his hair. The officer approached defendant and asked his name three times, which he refused to provide, and then he turned to flee, and he was Tasered. After the officer found out he was the wrong guy, he asked why he ran” “I’ve got some sh*t on me.” That led to a search incident, which was valid. 240 month sentence for crack possession affirmed. United States v. Bourrage, 08-3823 (8th Cir. January 7, 2010) (unpublished):

Here, Warner was carrying papers as she approached Sergeant Voigts. She told him that a man inside the grocery store named Rickman was wanted on misdemeanor and felony warrants and she provided a brief description of Rickman. Sergeant Voigts “could assess [Warner’s] credibility because the information was provided in person.” See United States v. Carpenter, 422 F.3d 738, 744 (8th Cir. 2005); see also United States v. Kent, 531 F.3d 642, 648-49 (8th Cir. 2008); United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) (stating that “a face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false”). Moreover, if the tip turned out to be false, Warner could be charged with knowingly providing false information to a police officer. See Iowa Code § 718.6(1); see also Adams v. Williams, 407 U.S. 143, 146-47 (1972). Nevertheless, Warner not only provided the information in person but accompanied Sergeant Voigts into the store to search for the suspect. After searching the store with Sergeant Voigts, Warner suddenly indicated that the suspect was in the store when she said either “There he is” or “There they go.” Under these circumstances, we hold that the district court did not err in concluding that Sergeant Voigts had a reasonable suspicion that Rickman was wanted in connection with a completed felony.

“Keith's motion to suppress, though well-argued, is not well-taken.” There was plenty of reasonable suspicion to stop him, and his drug activities raised a sufficient nexus to weapons that a frisk would be justified. United States v. Keith, 2010 U.S. Dist. LEXIS 795 (N.D. Ohio January 6, 2010).*

Defendant’s BAC level for DUI was obtained in violation of HIPAA since a trial subpoena was issued by the clerk without a court order, but the court refuses to suppress the evidence as a result because HIPAA does not require it. United States v. Elliott, 676 F. Supp. 2d 431 (D. Md. 2009):

Neither Sutherland nor Keshecki compel a finding that medical information obtained through the use of an improper subpoena under HIPAA's law enforcement exception should be prohibited from use at trial. As mentioned above, HIPAA itself does not provide that medical information so obtained must be suppressed. The Court is unaware of any authority which compels the suppression of the records at trial. Nevertheless, the Court must still determine whether or not suppression is appropriate. Federal courts have acknowledged the importance of protecting a patient's right to privacy in medical records. That right, however, is not absolute, and must be balanced against the government's interests in obtaining the information. Sutherland,143 F. Supp. 2d 609, 611-612 (W.D. Va. 2001). As the court in Zamora observed "…HIPAA was passed to ensure an individual's right to privacy over medical records, it was not intended to be a means for evading prosecution in criminal proceedings". Zamora, 408 F. Supp. 2d at 298.

Applying a balancing test, the Court finds that the Government's interest in obtaining records related to the defendant's blood alcohol concentration on the day of the accident are compelling. Federal, state and local authorities have a strong interest in prosecuting people who drive while under the influence of alcohol and/or drugs. As the Supreme Court noted "No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 2485, 110 L. Ed. 2d 412 (1990). "Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage." Sitz, 110 S. Ct. at 2485-86. In this case the defendant was involved in a serious accident in which she suffered serious personal injuries. ....

One court takes a dim view of the viability of the exclusionary rule in civil forfeiture cases. United States v. Real Property Located at 265 Falcon Road, Carbondale, Williamson County, Illinois, 2010 U.S. Dist. LEXIS 223 (S.D. Ill. January 4, 2010)*:

Assuming (1) the exclusionary rule applies in civil forfeiture cases, see One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965) 1, ....

1 This has been called into question, see United States v. Marrocco, 578 F.3d 627, 642 (7th Cir. 2009) (Easterbrook, C.J., concurring) (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984); United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976)).

[Note: This would only qualify as a weak "cf." reference because there is no analysis of the issue at all. This case is instructive as to the leanings of the writer: USDJ Phil Gilbert.]

Defendant’s guilty plea waived his motion to suppress. Webb v. United States, 2009 U.S. Dist. LEXIS 121731 (E.D. Mo. December 31, 2009).*

An administrative subpoena for ISP information violated no Fourth Amendment interest of the defendant, even if he had “standing,” which he doesn’t. Also, the good faith exception would apply to an administrative subpoena. United States v. Guthmiller, 2009 U.S. Dist. LEXIS 121794 (D. Minn. December 14, 2009).*

Officers entered defendant’s property from areas from which any visitor would come, so their knock-and-talk did not intrude on a private area. Defendant came out from a different area, and talked to the officers and consented. United States v. Faller, 681 F. Supp. 2d 1028 (E.D. Mo. 2009).*

Search incident of defendant at stationhouse after a custodial traffic arrest was reasonable. United States v. Amankwaa, 2010 U.S. Dist. LEXIS 118 (M.D. Pa. January 4, 2010).*

“All records” search was authorized by the showing of probable cause. And, “[g]iven the complex nature of the criminal scheme and the number of years in which it was ongoing, a lack of a specific time frame in the search warrants is not sufficient in of itself to render the warrants constitutionally overbroad. See United States v. Gotti, 42 F. Supp. 2d 252, 274 (S.D.N.Y. 1999) (lack of time limitation did not render warrant defective).” United States v. Hernandez, 2010 U.S. Dist. LEXIS 719 (S.D. N.Y. January 6, 2010)*:

However, the nature of the location and related alleged criminal activity as described by the affidavit indicates that the "all records" exception is applicable to this search. See Nat'l City Trading Corp. v. United States, 635 F.2d 1020, 1026-27 (2d Cir. 1980). "When the criminal activity pervades that entire business, seizure of all records of the business is appropriate, and broad language used in warrants will not offend the particularity requirements." United States Postal Serv. v. C.E.C. Servs., 869 F.2d 184, 187 (2d Cir. 1989); see also United States v. Sugar, 606 F. Supp. 1134 (S.D.N.Y. 1985). The affidavit describes a number of facts that indicate the business at the Clearfield Office location was thoroughly permeated with criminal activity: there was little activity for several months after signing the lease; the office was not used during normal business hours but typically only at night; three different business names related to the preparation of tax returns were associated with the office despite being only one business; maintenance staff never saw customers going in or out of the office; EFINs registered to different locations and individuals were nevertheless traced back to the location; and high rates of fraudulent returns were filed from EFINs associated with the location. "[I]t is not necessary that the affidavit…set forth specific factual evidence demonstrating that every part of the enterprise in question is engaged in fraud…[r]ather, the affidavit need contain only sufficient factual evidence of fraudulent activity from which a magistrate could infer that those activities are just the tip of the iceberg." United States v. Burke, 718 F. Supp. 1130, 1140 (S.D.N.Y. 1989) (but refusing to apply exception because of two discrete businesses, only one of which permeated by fraud). Based on the information provided by the affidavit, at the Clearfield Street Office, "criminal activity permeates much of the business," Dinero Express, Inc. 2000 WL 254012 at *10, and there was little that could be done to further cabin the scope of the search at that location, C.E.C. Servs., 869 F.2d at 187 (noting that it would be "virtually impossible to segregate documents" where most of the business was likely involved in criminal activities). "The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect's possession." Andresen v. Maryland, 427 U.S. 463, 482 (1976).

A citation to appear is not a Fourth Amendment seizure. The Second Circuit thus joins the other circuits. Here, Burg ignored the ticket and a warrant was issued. Burg v. Gosselin, 09-0708-cv (2d Cir. January 7, 2010):

We hold that the issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restrictions, does not constitute a Fourth Amendment seizure. This summons does no more than require Burg to appear in court on a single occasion, and operates to effectuate due process. There is no restriction on travel, which mattered in Murphy. Moreover, in Murphy, there were eight court appearances, not the single appearance required by the summons issued by Gosselin. The number of appearances may bear upon whether there was a seizure--though it is hard to see how multiple appearances required by a court, or for the convenience of the person answering the summons, can be attributed to the conduct of the officer who issues it. ... Finally, Burg’s alleged offense was an infraction, and the summons thus does not impose the burdens, identified by Justice Ginsburg, that are imposed when “[a] person fac[es] serious criminal charges.” Albright, 510 U.S. at 278 (Ginsburg, J., concurring).

III

Other Circuits that have considered this issue have uniformly determined that such a summons (at least one that requires no more than a single court appearance) does not constitute a Fourth Amendment seizure.

Officer was justified in frisking defendant for weapons after the car he was in was stopped and a drug dog gave a positive alert. Stokeling v. State, 189 Md. App. 653, 985 A.2d 175 (2009).

In response to defendant’s claim that his search incident was invalid under Gant, the government instead relies on reasonable suspicion for the stop, which was found, and probable cause for a search based on the smell of marijuana, which was found. United States v. Awolowo, 2009 U.S. Dist. LEXIS 121798 (E.D. Tenn. December 14, 2009).*

Defendant was speeding. “The fact that the officers were looking for Jesus Huerta to arrest him on an outstanding federal warrant is quite beside the point; so-called pretextual traffic stops are permissible so long as the officer has probable cause to believe that a traffic violation had occurred.” United States v. Huerta, 2009 U.S. Dist. LEXIS 121778 (E.D. Tenn. December 9, 2009)* (And, if they had PC to believe that Huerta was in the vehicle, that would support the stop, too.)

A person not legitimately on the premises at the time of an alleged illegal search has no “standing” to sue either. McPheters v. City of Boise, 361 Fed. Appx. 754 (9th Cir. 2010) (unpublished).*

Officers were assured that defendant was in the place where the officers went with an arrest warrant, so the entry was with knowledge he would be found there. United States v. Collins, 359 Fed. Appx. 639, 2010 FED App. 0001N (6th Cir. 2010) (unpublished).*

Loose tobacco can be a factor in the totality of circumstances for probable cause. State v. Simmons, 201 N.C. App. 698, 688 S.E.2d 28 (2010):

Although the State has cited a number of cases in its brief involving the presence of loose tobacco, State v. Jacobs, 162 N.C. App. 251, 253, 590 S.E.2d 437, 439 (2004) (stating during the recitation of the facts that the investigating officer, while examining the interior of a car, recovered a bundle of bills and noticed an odor of marijuana and the presence of loose tobacco that the officer believed to have come from hollowed-out cigars used to smoke marijuana); People v. Shabazz, 301 App. Div. 2d 412, 413, 755 N.Y.S.2d 20, 22 (2003) (holding that the trial court properly denied the defendant's motion to suppress the search of a car since a bag that had been thrown from the car contained a cigar that had been modified for the purpose of smoking marijuana and since loose tobacco or marijuana could be seen on the floorboard of the car); People v. Mays, 190 Misc. 2d 310, 315-17, 738 N.Y.S.2d 152, 157-58 (2001) (holding that a suppression motion should be denied since the defendant showed signs of impairment, since defendant was parked near a nightclub which was "a problem" at 4:00 a.m., and since there was a pile of loose tobacco in defendant's car), the parties have not provided us with any authority tending to show that the mere presence of "cigar guts," standing alone, is sufficient to justify a finding of probable cause. Instead, the available decisions tend to show merely that the presence of loose tobacco, along with other factors, may suffice to support a valid search and seizure. Thus, given that all of the cases dealing with loose tobacco are factually distinguishable from this case, we have no choice except to attempt to decide this case on the basis of general principles of search and seizure law.

CI’s basis of knowledge was shown by the fact that the informant said that he saw the defendant with drugs. United States v. Boxley, 2009 D.C. App. LEXIS 648 (D.C. December 31, 2009).*

Search of defendant’s car was lawful as an inventory search, so problematic inevitable discovery (State v. Weinstein, 12/3/09, posted here) did not have to be reached. State v. Morales, 154 Wn. App. 26, 225 P.3d 311 (2010).

Ohio judge issued a search warrant which was executed in California, and this violated the Fourth Amendment. State v. Jacob, 2009 Ohio 7048, 185 Ohio App. 3d 408, 924 N.E.2d 410 (2d Dist. 2009):

[*P25] We agree that, in Jacob's situation, a violation of statutory provisions that a judge can issue a valid search warrant only within his or her court's jurisdiction is a fundamental violation of Fourth Amendment principles. As Justice Holmes said in a different context in Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, T.D. 2984, 17 Ohio L. Rep. 514, a line must be drawn somewhere to prevent the Fourth Amendment's guarantee against unreasonable searches and seizures from becoming no more than a "form of words." Crossing state lines by allowing an Ohio court to determine when California citizens and property are subject to search and seizure crosses this constitutional line. In Hardy and Wilmoth, at least, the court that issued the warrant, the court that had authority to issue it, and the law enforcement officers were all in Ohio, albeit in different legislatively-created venues, and, as such, their actions were all subject to Ohio law. Allowing one state's court to determine when property, residences, and residents of another state may be subject to search and seizure would trample the sovereignty of states to determine the procedures by which a warrant may be issued and executed and of their courts to determine the consequences of a failure to follow those laws.

A fish and game officer in California does not have the authority to conduct suspicionless inspections of a vehicle [a boat yes, a car no] for lobster taken out of season. Considering the stop as a roadblock, it was invalid because it was for general law enforcement purposes. People v. Maikhio, 180 Cal. App. 4th 1178 (4th Dept. 2010), revd People v. Maikhio, 51 Cal. 4th 1074, 253 P.3d 247, 126 Cal. Rptr. 3d 74 (2011) posted June 21, 2011:

Accordingly, “[t]here is a two-step analysis applicable to Fourth Amendment checkpoint cases. First, the court must ‘determine whether the primary purpose of the [checkpoint] was to advance “the general interest in crime control.'” [Citation.] ’If so, then the stop … is per se invalid under the Fourth Amendment.' [Citations.] [¶] If the checkpoint is not per se invalid as a crime control device, then the court must ‘judge [the checkpoint's] reasonableness, hence, its constitutionality, on the basis of the individual circumstances.’ [Citation.] This requires consideration of ‘the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.’ [Citations.]” (U.S. v. Fraire (9th Cir. 2009) 575 F.3d 929, 932.) Although Fraire's two-step analysis specifically addressed vehicle checkpoints, there is no reason why the same analysis should not apply to other traffic stops of vehicles, including the stop of Maikhio's vehicle in this case.

In the circumstances of this case, we conclude Fleet's stop of Maikhio's vehicle was indisputably made for normal law enforcement needs and to uncover evidence of ordinary criminal wrongdoing (i.e., a misdemeanor fishing offense) by a specific individual (i.e., Maikhio). As described in the factual and procedural section above, Fleet saw Maikhio hand-line fishing. He saw Maikhio catch something and place it in a black bag, but he could not see what Maikhio had caught. Fleet watched as Maikhio left the pier and drove away from the parking lot in his vehicle. Fleet then conducted a traffic stop of Maikhio's vehicle on a public street because he “wanted to make sure … that [Maikhio] was in compliance with the California fishing laws and regulations.” Accordingly, the primary, if not sole, purpose of Fleet's stop of Maikhio's vehicle was to determine whether Maikhio had violated a fishing law (i.e., committed a misdemeanor fishing offense) and presumably to cite Maikhio if Fleet determined he had done so. That purpose was clearly to detect or uncover evidence of ordinary criminal wrongdoing and therefore promote the general purpose of crime control. Because Fleet's stop of Maikhio's vehicle did not serve a “special need” of government, it was per se unreasonable under the Fourth Amendment (absent the existence of reasonable suspicion that Maikhio was involved in criminal activity). (Edmond, supra, 531 U.S. at pp. 37-38, 41–42, 47; U.S. v. Fraire, supra, 575 F.3d at pp. 931–932.) “Because the primary purpose of [Fleet's stop of Maikhio's vehicle was to uncover evidence of ordinary criminal wrongdoing, the [stop] contravene[d] the Fourth Amendment [if Fleet had no reasonable suspicion that Maikhio was involved in criminal activity].” (Edmond, at pp. 41–42.) Like the court in Edmond, “[w]e decline to suspend the usual requirement of individualized suspicion where [a DFG warden] seek[s] to employ a [traffic stop of a specific vehicle] primarily for the ordinary enterprise of investigating crimes.” (Id. at p. 44.)

The officer got defendant's consent to take and search his computer by saying that he wanted the child pornography to locate the abused children. This was not a material misrepresentation to get consent. It doesn't work that way in getting statements, either. Computer search not suppressed. United States v. Webb, 2010 U.S. Dist. LEXIS 75 (S.D. Ala. January 4, 2010):

Webb's primary argument is that he was tricked into consenting because he believed that the agent's purpose was to find and protect the children that were depicted in the images. The recording clearly supports a finding that the agent's statement led Webb (or any reasonable person) to believe that the agent's primary purpose for asking for consent was to find the abused children. However this does not render the consent involuntary. In Tukes v. Dugger, 911 F.2d 508, 516 (11th Cir. 1990) the Court rejected the defendant's "contention that police are under an obligation to tell a suspect that he is the sole suspect when they seek consent for a search[]" and held that "[t]o require that a suspect be fully aware of the investigator's view of the degree of the suspect's involvement in the offense would contradict Schneckloth." The same reasoning is applicable in this instance.

Moreover, the recording does not support a finding that the agent materially misrepresented the nature of the inquiry. See U.S. v. Prudden, 424 F.2d 1021, 1033 (5th Cir. 1970) (providing that "the mere failure of a revenue agent ... to warn the taxpayer that the investigation may result in criminal charges, absent any acts by the agent which materially misrepresent the nature of the inquiry, do not constitute fraud, deceit and trickery[]"). No doubt, it is a primary focus of the FBI in all child pornography cases to locate the producer of the pornography as well as the abused children; thus the court finds these statements to be true and not misleading. As to Webb's potential exposure to criminal prosecution, in this case the agent clearly told Webb that he already knew that child pornography images were downloaded to Webb's gigatribe account. The fact that the agent did not explain to Webb that Webb could be criminally prosecuted for possession of child pornography was not a material misrepresentation.

Defendant’s pre-Gant guilty plea is permitted to be withdrawn. The factors to be considered for withdrawal of the plea favor defendant. The government argued for application of a “Gant good faith exception” which the court finds uncertain because of the split in the circuits. United States v. Amos, 2010 U.S. Dist. LEXIS 515 (E.D. Tenn. January 5, 2010).*

Defendant’s stop at a bus station and request to see his bus ticket and search his bag was voluntary and reasonable. United States v. Torres, 2010 U.S. Dist. LEXIS 230 (D. Neb. January 4, 2010).*

After execution of a probation violation warrant for defendant’s arrest, the PO could still conduct a search of his property for evidence of a violation. It was likely he would be released and would return to the place because the violation was for a dirty UA. A meth lab was found. United States v. King, 2009 U.S. Dist. LEXIS 121849 (N.D. Ga. December 30, 2009).*

An IP address associated with the defendant is nexus to defendant’s property for execution of a search warrant alleging computer hacking. United States v. Kim, 677 F. Supp. 2d 930 (S.D. Tex. 2009).*

In light of Gant sending police and courts back to the automobile exception or inventory search, the Fourth Circuit did a slight refresher on the law of inventory search of a closed container in a car. The inventory policy did not say that closed containers could be searched, but it is implicit. United States v. Matthews, 2009 U.S. App. LEXIS 28764 (4th Cir. December 31, 2009):

n.7 "[a]n officer's suspicion that contraband may be present [in the vehicle] does not invalidate an otherwise lawful inventory search." United States v. Cox, No. 90-5853, 1992 U.S. App. LEXIS 2229, 1992 WL 29136, at *3 (4th Cir. Feb. 20, 1992); see also United States v. Lewis, 3 F.3d 252, 254 (8th Cir. 1993); United States v. Cecala, No. 99-4049, 2000 U.S. App. LEXIS 384, 2000 WL 18948, at *2 (10th Cir. Jan. 12, 2000).

A police department's policy on inventory searches does not have to specifically use the phrase "closed containers" to permit the search and seizure of such items. See, e.g., United States v. Richardson, 121 F.3d 1051, 1055-56 (7th Cir. 1997); Thompson, 29 F.3d at 66; United States v. Wilson, 938 F.2d 785, 789-90 (7th Cir. 1991). In Thompson, for example, the Second Circuit examined whether certain inventory search regulations provided standardized criteria as to the opening of closed containers. The regulations stated, in relevant part, "A member of the Department who impounds any motor vehicle shall inventory the contents of the vehicle and record the results. ... It is not necessary to enter locked portions of any vehicle to conduct an inventory search when keys to enter are not available." 29 F.3d at 66. The court determined that the regulations need not "specifically mention the term 'closed containers'" to regulate the opening of such containers. Id. Instead, the court found that "[t]he terms 'contents' and 'locked portions' in the regulations provide sufficient elucidation to satisfy the constitutional requirements for an inventory search of a closed container when keys are available." Id.

Twenty seconds of tasering defendant in the hospital to get him to spit out drugs in his mouth was an unreasonable and excessive seizure. It was so bad that the court cites Rochin, the stomach pumping case. Hereford v. State, 302 S.W.3d 903 (Tex. App.—Amarillo 2009):

One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument's log. At the time, appellant was handcuffed and being held down in a hospital emergency room. Arp wanted appellant to spit-out what he had in his mouth. When appellant did not comply after Arp's first foray, the tasings resumed. No one viewed appellant as a threat to others during the episode. Nor had he attacked anyone. Arp simply wanted appellant to comply. When asked if "repeated taser use [was] acceptable" and whether "20 seconds worth of tasering" was "okay," he policeman answered "yes" to both.

Arp was not the first to tase appellant, though. Officer Williams had already done so twice at a locale miles away from the hospital. He too wanted appellant to remove the items, which Williams thought to be drugs, from his mouth, and met with no success. So, Williams decided to take appellant to the hospital in effort to gain medical assistance.

In continuing where Williams had failed, Arp said he administered all but one of the electrical shocks to Hereford's inner thigh region; others saw them being administered to appellant's "groin area."

. . .

One need only harken back to first year constitutional and criminal procedure class to recall our United States Supreme Court stating: "[i]t has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained." Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 210, 96 L.Ed.183 (1952). In Rochin, the police transported a suspect, who they thought swallowed drugs, to the hospital to undergo the non-consensual pumping of his stomach. This was done after their attempts to physically force Rochin to open his mouth met with no success. Id. 342 U.S. at 166, 72 S.Ct. at 206. According to the Court, recognizing the use of "brutal conduct" as a legitimate means of securing evidence is tantamount to "afford[ing] brutality the cloak of law." Id. 342 U.S. at 173, 72 S.Ct. at 210. And, most importantly, it opted against that by viewing the police conduct as a denial of due process. See Brown v. State of Mississippi, 297 U.S. 278, 287, 56 S.Ct. 461, 465-66, 80 L.Ed. 682 (1936) (holding that whipping or beating of a suspect to gain his confession violated due process).

Call to the police of a burglary in progress justified police entry into the defendant’s apartment when the police arrived and found the door open. People v. Ferral, 397 Ill. App. 3d 697, 921 N.E.2d 414, 336 Ill. Dec. 800 (2009).*

Defendant’s showing up at the scene of a suspected drug buy did not justify his search because he was completely unknown to the police and there were no facts suggesting that he was involved in the expected drug transaction that was going down. People v. Christmas, 396 Ill. App. 3d 951, 920 N.E.2d 1240, 336 Ill. Dec. 650 (2009).*

Defense counsel’s agreeing with the facts recited by the trial court during the suppression hearing precludes arguing to the contrary on appeal. State v. Corbin, 233 Ore. App. 113, 224 P.3d 705 (2009).*

Police testimony about a protective sweep was more credible and believable than the defense witnesses that there actually was an illegal search during the protect sweep. The defense testimony is just too “speculative and convenient.” United States v. Salazar, 2009 U.S. Dist. LEXIS 121471 (N.D. Tex. December 31, 2009).*

Defendant still had an expectation of privacy in his shared folder file of his computer from police entry, despite the fact that others could access it on a peer to peer sharing where the government did not enter the computer through peer to peer sharing. The government also showed probable cause to search individual files that were identified. United States v. Beatty, 2009 U.S. Dist. LEXIS 121473 (W.D. Pa. December 31, 2009)*:

However, none of the cases cited by the Government stand for the proposition that an individual running P2P software thereby loses his Fourth Amendment "standing" to challenge a search which involves entry into his home and the seizure and subsequent search of his entire computer. Were that the case, Agent Brenneis could have entered the Defendant's home and downloaded from his computer any shared files without having first obtained any warrant at all. In short, even if the Defendant suffered no Fourth Amendment intrusion by virtue of Trooper Pearson's conduct in remotely accessing certain shared computer files, the Defendant nevertheless retained a reasonable expectation of privacy in his computer and his home such that he possesses "standing" to challenge the merits of the subject search.

Blue discoloration on an ammonia tank announced its contents, and a warrant was not needed to test it. State v. Heckathorne, 347 Ore. 474, 223 P.3d 1034 (2009), revg State v. Heckathorne, 218 Ore. App. 283, 179 P.3d 693 (2008):

The same must be said with respect to that court's ruling on the merits. The Court of Appeals concentrated its attention on the meaning of the blue discoloration on the fittings of the cylinder: Did that discoloration, or did it not, fairly give rise to the inference that the cylinder contained anhydrous ammonia? In our view, that issue can be argued either way, and it has been. We express no opinion on it, however, because the record in this case contained other, decisive evidence.

As noted above, the police opened and vented some of the contents of the cylinder. Defendants do not in this court challenge either the police possession of the cylinder or Studebaker's venting of the cylinder -- they challenge only the later testing of the cylinder to confirm the contents. However, according to Bettencourt, Studebaker reported a strong odor of ammonia when he vented the container. In other words, when the cylinder was vented, the contents of the cylinder, that is, the ammonia, became discernable to Studebaker. And, because the ammonia was exposed and discernable (through the sense of smell), defendants no longer had a privacy interest in the contents of the cylinder. Thus, as in Owens, the use of the Drager device to perform a confirmatory test on the contents of the cylinder did not infringe any privacy interest protected by the Oregon Constitution. Therefore, the trial court did not err in denying defendants' motion to suppress evidence of the contents of the cylinder. The Court of Appeals erred in ruling to the contrary.

For the same reasons, once the ammonia was plainly discernable, Studebaker's testing of the contents of the cylinder did not violate defendants' Fourth Amendment rights. See United States v. Jacobsen, 466 US 109, 123-25, 104 S Ct 1652, 80 L Ed 2d 85 (1984) (field test of substance for the presence of cocaine was not unlawful search or seizure because test could reveal only whether substance was cocaine and thus could not compromise any legitimate privacy interest).

A search warrant was not needed to recreate a private search of videotapes that were viewed by them and turned over to the police. State v. Luman, 347 Ore. 487 (2009), revg State v. Luman, 220 Ore. App. 617 (2008):

In this case, defendant's employees seized the videotape, viewed it, handed it over to the deputy, and told him exactly what was on it. (And, as noted, none of that private conduct violated defendant's Article I, section 9, rights.) At that point, defendant no longer retained a protected possessory or privacy interest in the piece of evidence; those interests were destroyed by the private conduct. That is, defendant no longer had a right to privacy in the videotape. Because the deputy's act in viewing the videotape invaded neither a possessory interest nor a right to privacy in the images on the videotape that was protected by Article I, section 9, of the Oregon Constitution, that act was not a search and no warrant was required.

Thermal imaging 2010

Orin Kerr on Volokh Conspiracy: Can the Police Now Use Thermal Imaging Devices Without a Warrant? A Reexamination of Kyllo in Light of the Widespread Use of Infrared Temperature Sensors.

Judge reprimanded and sued for ordering drug test without cause

Tennessee Judge Reprimanded and Sued For Policy of Forced Drug Tests Based on Courtroom “Hunches”. The judge is reported to have selected an observer in his court for a court ordered drug test based solely on a hunch, without evidence to support it.

'Move On' Orders as Fourth Amendment Seizures by Stephen E. Henderson, Widener University School of Law, 2008 B.Y.U. L. Rev. 1. Abstract:

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as well as the potential for discriminatory harassment if such orders are unrestricted, and thus state and local legislatures should investigate how best to restrict the MO authority of their agents.

Court finds defendant's consent was not voluntary, faulting in part the government's failure to develop on cross-examination things that supported voluntariness. Since the government carried the burden of consent, it failed. United States v. Brown, 2009 U.S. Dist. LEXIS 121514 (D. N.J. December 30, 2009)*:

After balancing the testimony of Ms. Ford and Detective Santiago and consideration of the submissions and evidence, this Court finds that the totality of the circumstances supports a finding that Ms. Ford's consent was not voluntary. The Court finds the following facts significant: the time of the incident; the number and types of officers involved; the fact that the officers had a specific target prior to coming to the apartment yet had no plan for a method of further investigation that did not involve obtaining access to the apartment; the fact that the officers reported that the gun was ultimately found in plain view even though they allegedly conducted a visual sweep of the kitchen earlier and did not find the gun; the threat of DYFS involvement; and the way the form was given to Ms. Ford, completely filled out by the officers and folded over showing only the signature line. The Court finds that the Government has not met its burden that Ms. Ford knew she was consenting to a search of her apartment, as opposed to just signing a form the officers were insisting she sign so they would go away. Additionally, even if she knew the form was a consent to search form, the Court finds that, under the circumstances, the Government has not met its burden that Ms. Ford's acquiescence was voluntary as opposed to given under the threat of her children being taken away by DYFS. Therefore, the gun seized as a result of the search is suppressed.

The trial court’s findings of lack of consent and exigent circumstances are supported by the evidence. State v. Angelo, 2009 Ohio 6966, 2009 Ohio App. LEXIS 5862 (9th Dist. December 31, 2009).* As to exigent circumstances:

[*P18] We conclude that the State also failed to present evidence of articulable facts that the officers reasonably believed that re-entry into the home was necessary to respond to some emergency. Id. at PP17-18. Neither officer testified that Angelo or Goldsby were exhibiting frantic or erratic behavior or otherwise impeding the officers' investigation. The officers did not describe the scene at the home as hectic or chaotic. Goldsby and Angelo were no longer physically or verbally assaulting each other when the officers arrived and it is reasonable to believe that removing Goldsby from the home quelled the threat of further violence. Moreover, Officer Stump testified that he was able to observe Angelo through the window in the front door as Angelo was sitting on the couch speaking with others in the house. Officer Stump did not testify that Angelo was exhibiting erratic or aggressive actions as they observed him. Additionally, as Goldsby was secured in the police cruiser, she was no longer in any danger by way of any conduct Goldsby attributed to Angelo prior to the police arriving. Finally, at no point while the officers were at the home was Angelo armed with a weapon. The facts presented do not demonstrate that there was an emergency in the home that required response from the officers on scene. Accordingly, it was not an error for the trial court to find that exigent circumstances did not justify re-entry into the home.

Defendant’s stop was based on his vehicle tags not matching the vehicle, and the officer saw the makings of a blunt, which led to him asking for consent, which was valid. State v. Williams, 2009 Ohio 6955, 2009 Ohio App. LEXIS 5848 (9th Dist. December 31, 2009).*

Analyzing all the facts in detail, the court concludes on the totality of circumstances that defendant’s consent to search his vehicle for a gun was valid. United States v. Swanson, 677 F. Supp. 2d 1030 (N.D. Ill. 2009).*

The affidavit for the search warrant was devoid of nexus to defendant’s home and the crime, and the good faith exception did not save this search. State v. Wildman, 2009 Ohio 6986, 185 Ohio App. 3d 346, 923 N.E.2d 1240 (6th Dist. 2009):

[*P19] Here, because the affidavit does not provide a basis upon which probable cause could be found to search the premises at 126 Venango Street, the officer's belief that probable cause existed to search that property was unreasonable. The officer's testimony at the motion to suppress hearing as to how they determined that the Venango Street address was appellant's residence does not change the analysis. "[An] officer cannot claim good faith reliance on a search warrant based on less than probable cause where he has failed to place in the affidavit information known to him that would support probable cause[;] the officer's reliance on the warrant can be objectively reasonable only if his belief that the affidavit contains facts sufficient to create probable cause is itself objectively reasonable." State v. Klosterman (1996), 114 Ohio App.3d 327, 333, 683 N.E.2d 100.

Defendant’s license plate light did not work, and that was the basis for the stop. The video of the stop did not support defendant’s position that the license plate was lit. State v. Hundley, 2009 Ohio 6873, 2009 Ohio App. LEXIS 5775 (3d Dist. December 28, 2009).*

Driving slowly, stopping, and then engaging in a possible hand to hand drug transaction in a high crime area was reasonable suspicion. State v. Martin, 2009 Ohio 6948, 2009 Ohio App. LEXIS 5855 (9th Dist. December 31, 2009).*

Defendant was ordered out of the car with the others in it, and his movements made the officer concerned for his safety, so a frisk was justified. The incriminating nature of the object was unknown, however, so the search of a cigarette pack was invalid. State v. Brown, 30 So. 3d 907 (La. App. 5th Cir. 2009), released for publication January 26, 2010*:

The case before us is distinguishable from Morton in that there is nothing in the record to show that the cocaine evidence seized from defendant's pocket would inevitably have been discovered in a legal manner. According to the testimony, there was nothing the officer could have arrested defendant for at the time of the traffic stop aside from the discovery of the cocaine. The record contains no evidence that defendant had outstanding warrants. Nor could the drugs found inside the other passenger's purse be attributed to defendant. Therefore, there would have been no search incident to arrest that would have led the officer to find defendant's cocaine legally.

The trial court credited the officer that defendant was speeding, and that justified defendant’s stop. When he was ordered from the car, rocks of crack were seen in plain view on the floorboard, and that justified a search of the car. State v. Wolff, 30 So. 3d 897 (La. App. 5th Cir. 2009).*

Where defendant’s conviction was affirmed but remanded, he could not raise a search and seizure issue that should have been raised in the first appeal. State v. Evans, 30 So. 3d 958 (La. App. 5th Cir. 2009).*

Defendant filed a motion to suppress but never requested a hearing on it, and that was a waiver of the motion. State v. Oliver, 30 So. 3d 946 (La. App. 5th Cir. 2009).*

Defendant’s moving his hand from his pocket at the officer’s direction and then behind his back, ostensibly to “itch his butt” raised safety concerns for the officer and justified a frisk. State v. Mason, 2009 Iowa App. LEXIS 1671 (December 30, 2009).*

Defendant claimed that he had a reasonable expectation of privacy not to have a government planted GPS hooked up to the wiring of his car. The trial court did not decide this issue, and it is remanded for another hearing. State v. Dalton, 2009 Ohio 6910, 2009 Ohio App. LEXIS 5804 (9th Dist. December 30, 2009):

[*P15] In his motion to suppress, Dalton argued that he had a reasonable expectation of privacy in the electrical system of his vehicle and that his "right to be free from unreasonable search and seizure was violated when police wired the GPS tracking device into his vehicle's electrical system in order to gain information on the travels and locations of the vehicle." Therefore, Dalton was not only arguing that the information gathered from the GPS device amounted to an unlawful search and seizure, but also that the warrantless placement of the GPS device on his car was unconstitutional. Although, as we further explain below, we conclude that there is a second prong to the argument in Dalton's motion to suppress that the trial court did not consider, we note that this argument is not drafted as clearly as it could have been. Dalton does not fully delineate before the trial court the distinction between placement of the GPS and the collection of the information from the device. In any event, the nuance has important legal implications and the trial court neglected to consider the second prong of Dalton's argument.

Defendant was in jail on a child sex offense for four months when his wife discovered on their computer inappropriate pictures and a video clip. She took it to the police who searched it and charged defendant with video voyeurism in the making of the video clip. She had joint access or control, and there were no limitations on her usage. State v. Aschinger, 149 Idaho 53, 232 P.3d 831 (2009), review denied, 2010 Ida. LEXIS 86 (Idaho, May 11, 2010).*

Officer’s personal observation of defendant in a hallway after a call that a man with a gun was beating on the door led him to ask whether defendant had a gun. He said he did and reached for it, and the officer pulled his weapon. Terry was complied with. United States v. Savage, 677 F. Supp. 2d 756 (E.D. Pa. 2009)*:

Here, police saw Savage just moments after receiving a report of a woman complaining of an armed man banging on her door. Savage was the only person in the hallway, and he was exactly where the woman indicated that he would be located, doing exactly what the woman indicated that he would be doing. The officer's personal observation of Savage's banging on the door and the corroboration of the informant's tip established reasonable suspicion to conduct a Terry stop. Also relevant is the fact that the woman was reporting a crime in progress. This allowed the officers to arrive quickly enough to witness the complained of activity (Savage banging on the door).

FISA’s less than probable cause standard is constitutional under U.S. v. U.S. District Court (Keith). United States v. Shnewer, 2008 U.S. Dist. LEXIS 112001 (D. N.J. August 14, 2008, decided, December 29, 2009, filed):

First, Defendants argue FISA is unconstitutional because it lacks a requirement that the government show that a crime has been or is being committed. The probable cause requirement under FISA is different than the probable cause to seek a Title III wiretap. As noted by Judge Easterbrook in United States v. Ning Wen, 477 F.3d 896 (7th Cir. 2007), however, "the probable cause of which the fourth amendment speaks is not necessarily probable cause to believe that any law is being violated." Id. at 898. The court in that case analogized the probable cause required by FISA to the probable cause requirements for administrative search warrants, which may issue on probable cause to believe that the government has adopted a reasonable system of regulations and inspections and is not targeting individuals for improper reasons. The Supreme Court in Keith recognized that Congress is constitutionally permitted to set different standards for probable cause in the context of foreign intelligence surveillance than in ordinary criminal surveillance. This different probable cause requirement does not render FISA in violation of the Fourth Amendment.

. . .

In addition, Defendants argue the government may retain and use FISA-derived information without providing a defendant with a meaningful opportunity to challenge a FISA order. This is a challenge to the ex parte, in camera review contemplated by FISA. Defendants seek disclosure of the currently classified applications so that they may more effectively challenge the FISA orders. As noted above, while other courts have sympathized with the difficulty of Defendants' position and the uphill battle they face in challenging orders of which they cannot know the content, such a system is permissible given the requirements of foreign intelligence gathering. See, e.g., Mubayyid, 521 F. Supp. 2d at 131.

Defendants argue further that without a criminal prosecution, no notice is ever given to a target that FISA-approved surveillance has occurred, and the notice provisions in general are impermissibly broad. The government argues, and the Court agrees, that Defendants do not have standing to raise this issue because a criminal prosecution was initiated in this case and the Defendants were given notice.

Officers mistakenly yet reasonably believed that an armed fugitive was on the premises and they had an arrest warrant for him. His distinguishing feature was a tattoo under his eye. Officers were let in the house by one with authority to consent (the validity of consent is a given), and they said they were looking for a guy with a tattoo under his eye. While they were not in the right house, coincidentally a person upstairs had a tattoo under his eye, and they were directed upstairs. Heading up the stairs, appellant encountered them and ordered them out of the house without a search warrant. They went upstairs and found a man hiding in a closet. A search incident of the room found a silencer and three guns. The search was valid by exigent circumstances. United States v. Wilhelm, 358 Fed. Appx. 452 (4th Cir. 2009) (unpublished)*:

Here, the district court found that exigent circumstances arose based on the information provided by Christina Wilhelm and on the commotion created by Appellant. The court noted the following exigent circumstances: (1) the officers had good reason to believe that a fugitive armed robber was on the premises; (2) they had reason to believe the fugitive was aware that they were there; and (3) withdrawal from the search could have resulted in a hostage situation or posed danger to the officers. These findings are supported by the record. First, given that the man described by Christina Wilhelm matched the fugitive’s unique characteristic of having a tattoo under his left eye, the officers certainly had reason to believe the fugitive was on the premises. Secondly, given the commotion created by Appellant, the officers had reason to believe that the fugitive was aware of their presence. Finally, it is objectively reasonable to conclude that a fugitive armed robber who has just become aware that he has been discovered by police may react in a way that poses a danger for those in the immediate vicinity including occupants of the home and law enforcement officers. Therefore, we cannot say that the district court clearly erred in finding that there were exigent circumstances sufficient to justify the warrantless search.

Defendant did not reserve for appeal his search issue, so it is waived. A prior case recognized that the government can waive waiver, but it didn’t here. United States v. Are, 590 F.3d 499 (7th Cir. 2009).*

Finding a dead body in defendant’s vehicle was reason to go to defendant’s house. There the officers found blood on the sidewalk and on a broom on the sidewalk. Officers went to the door and heard a faint voice inside. There were exigent circumstances for the entry, and PC for the search warrant issued thereafter. [Note: This is not even a close call.] Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783 (2009), cert. denied 176 L. Ed. 2d 565 (U.S. 2010):

Here, the affidavits of probable cause offered in support of the search warrant provided a description of the police observing Appellant driving the van at night without its headlights illuminated, the stopping of the van, the observation, in plain view, of Kolesnik's body, which was covered in a tarp which was wrapped with electrical wire, and on which there was blood. Additionally, the affidavits contained the officers' observations of blood on Appellant's leg, wrist watch, and glasses. The affidavits also contained the police officers' observations of fresh blood leading from the front door of Appellant's residence to the sidewalk, and a blood-covered broom on the sidewalk. Moreover, the affidavits described the officers' approach to the door to determine if persons were in need of emergency treatment, the hearing of a faint voice, and the officers' entry into the residence. Finally, the affidavits described the officers' search for persons within the residence, and the observations of the officers once inside the residence. Specifically, the affidavits referenced the officers' observation of a fresh pool of blood on the carpet next to the bed and an expended bullet shell casing on the floor next to the bed.

Video of defendant’s stop supported it—her car was weaving and the taillight was out. State v. Mercer, 2009 Tenn. Crim. App. LEXIS 1041 (December 22, 2009).*

Officers testified that the defendant consented, but he testified he told them to leave. Officers’ testimony credited and binding. State v. Simonton, 2009 Tenn. Crim. App. LEXIS 1062 (December 29, 2009).*

Full body scanners

Eroding our Fourth Amendment on Character Counts.

What's being said on the web about "full body scanner images" from Surchur. Somewhat informative about the technology.

Potentially the oxymoron headline of the year: Newark Liberty Airport to receive full-body scanners. "Liberty" and "full-body scanners" in the same headline ....

Update: CNN.com: Body scanners not 'magic technology' against terror.

Fourth-Party Data Brokers

Using Fourth-Party Data Brokers To Bypass the Fourth Amendment on TechBlogger.org, referring to Buying You: The Government's Use of Fourth-Parties to Launder Data about 'The People' by Joshua L. Simmons on SSRN. Abstract:

Your information is for sale, and the government is buying it at alarming rates. The CIA, FBI, Justice Department, Defense Department, and other government agencies are at this very moment turning to a group of companies to provide them information that these companies can gather without the restrictions that bind government intelligence agencies. The information is gathered from sources that few would believe the government could gain unfettered access to, but which, under current Fourth Amendment doctrine and statutory protections, are completely accessible.

Fourth-parties, such as ChoicePoint or LexisNexis, are private companies that aggregate data for the government, and they comprise the private security-industrial complex that arose after the attacks of September 11, 2001. They are in the business of acquiring information, not from the information’s originator (the first-party), nor from the information’s anticipated recipient (the second-party), but from the unavoidable digital intermediaries that transmit and store the information (third-parties). These fourth-party companies act with impunity as they gather information that the government wants but would be unable to collect on its own due to Fourth Amendment or statutory prohibitions. This paper argues that when fourth-parties disclose to law enforcement information generated as a result of searches that would be violations had the government conducted the searches itself, those fourth-parties’ actions should be considered searches by agents of the government, and the data should retain privacy protections.

On September 11, 2001, the 19 hijackers' financial information was provided to the government by Acxiom in Arkansas, a private consumer-banking database. Since they were dead, they no longer had any privacy interest in the records, such that it was, from subpoena or anything else. When Acxiom's database was hacked for marginal information, the feds prosecuted vigorously. [It is also reputed that DHS police protect the mainframe, if there is one. I never confirmed that.]

A sewage commission’s landscaper was subject to random drug screens because the equipment he operated needed unimpaired operators. Mollo v. Passaic Valley Sewerage Comm'rs, 2009 U.S. Dist. LEXIS 121009 (D. N.J. December 30, 2009):

On the other side of the calculus, the government's interest in suspicionless drug testing of Landscapers like Mollo is weighty, since landscaping duties at the PVSC involves the use of and close contact with machinery that can pose a danger to other employees and the public, and because Mollo sometimes performed his job duties alone and without supervision.

Although the main thrust of Mollo's job duties was not to safeguard the public, like those of police officers, Policeman's Benevolent Ass'n, 850 F.2d at 135, or firefighters, Wilcher, 139 F.3d at 374-75, Mollo did "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." See Skinner, 489 U.S. at 628. Mollo drove trucks throughout the facility and operated other vehicles, like snow plows. As the Southern District of New York has stated, "[l]ike a gun, a motor vehicle on a public motorway can instantly become a deadly instrument if misused." Burka v. New York City Transit Authority, 739 F. Supp. 814, 822 (S.D.N.Y. 1990). Although Mollo did not customarily operate vehicles on public roadways, an impaired Landscaper driving snow plows or trucks on the extensive roadways of the PVSC facility poses a substantial risk of danger to co-workers or business invitees who may be on or near the facility's roadways.

Additionally, Landscapers are required to work in the close vicinity of a cryogenic plant, electrical substation, clarifiers, and Archimedes screw pumps. Each poses a unique risk to the unwary Landscaper, as well as to co-workers and the public. A Landscaper could be crushed by or drown in the clarifiers or Archimedes screw pumps, or electrocute himself if exposed to "buss work" outside of the electrical substation. A Landscaper who inadvertently created a spark or flame near the stored oxygen in the cryogenic plant could cause an explosion, resulting in death or injury to any person in the vicinity. Major damage to the facility would interrupt waste treatment service for PVSC's 1.3 million customers.

Probable cause to arrest and probable cause to search are different constitutional events. Just because probable cause to arrest is lacking does not mean that probable cause to search for evidence is too. State v. Chippero, 201 N.J. 14, 987 A.2d 555 (2009):

We join those many courts in recognizing that probable cause to arrest and probable cause to search involve distinct and not necessarily identical inquiries. A finding of probable cause as to one does not mean that probable cause as to the other must follow, nor does the lack of one compel a finding that there is a lack of support for the other. Although a probable cause determination that an individual committed a crime may increase the likelihood that the individual's residence contains evidence of the crime, a court may find a lack of probable cause to arrest an individual and yet determine that probable cause exists to search the home where that individual resides. See, e.g., Jones, supra, 994 F.2d at 1055-56; Melvin, supra, 596 F.2d at 495-96. Simply put, a probable cause determination to search a home where the suspect lives may be valid irrespective of whether probable cause to arrest that particular individual has crystallized. See, e.g., Jones, supra, 994 F.2d at 1055-56; Melvin, supra, 596 F.2d at 495-96.

Part of a sex offender statute effective January 1, 2010 that provides for warrantless monitoring of internet usage of offenders who have done their time and are off parole likely violates ex Post Facto Clause and Fourth Amendment, so preliminary injunction granted as to that. The state conceded the Fourth Amendment violation. Doe v. State of Nebraska, 2009 U.S. Dist. LEXIS 121104 (D. Neb. December 30, 2009):

Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska's registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was "free to ... live ... as other citizens, with no supervision") (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed "kiddie porn" crimes. In either context, those restrictions are clearly "punishment."

To be clear, like the Attorney General of the United States, I do not equate the SORNA requirement that a registrant report in person (and provide a limited amount of information) as the equivalent of "supervision" within the meaning of Smith v. Doe. See National Guidelines, at 2008 WL 2594934, at *38046 (concluding that SORNA was consistent with Smith v. Doe). See also Pataki, 120 F.3d at 1284-85 (registration provisions of New York's sex offender registration law imposing duty to register in person every 90 days for minimum of ten years, did not inflict "punishment" within meaning of Ex Post Facto Clause). On the other hand, I do equate an in-person reporting requirement, when coupled with invasive consent to search, electronic monitoring, and Internet prohibition provisos, to be "supervision" within the meaning of Smith v. Doe.

So, here's the point: It is probable that Plaintiffs will succeed on the merits of their Ex Post Facto Clause claim regarding these two amendments. In evaluating the validity of this conclusion, please observe that Nebraska was unable to give me any comparable legislation that had passed constitutional muster. Instead, Nebraska candidly conceded that the "consent to search" requirement violated the Fourth Amendment. (E.g., Filing 57 at CM/ECF p. 22 ("We begin by acknowledging that the consent to search of all computers or electronic communication devices that is required under LB 97 and LB 285 is likely not legally valid under the requirements of the Fourth Amendment, as applied to individuals no longer on parole, probation or court supervision.").) That concession was compelled by Judge Hamilton's thorough and thoughtful opinion in Doe v. Prosecutor, Marion County, Indiana, 566 F. Supp. 2d 862, 883 (S.D. Ind. 2008) (holding requirement in Indiana sex and violent offender registration statute that offenders not currently on parole or probation consent to warrantless searches of personal computers or devices with Internet capability at any time, or be subject to felony prosecution, violated Fourth Amendment and stating that Indiana's legislature had "taken an unprecedented step in stripping plaintiffs of their right to be secure in their homes, 'papers,' and personal effects.").

Overwhelming number and odd collection of air fresheners is reasonable suspicion. State v. Richards, 2009 UT App 397 (December 31, 2009):

¶1 This appeal presents the issue of whether a police officer had a reasonable, articulable suspicion that criminal activity was afoot so as to justify the investigatory detention of Defendant Heather Richards when the officer was confronted with the overwhelming smell of air fresheners and saw multiple odor masking agents such as orange rinds, Lysol, and Armor All. We conclude that the odd combination of odor masking agents and strong smells emanating from defendant's vehicle are objective facts that gave rise to a reasonable, articulable suspicion that
Defendant was involved in drug trafficking.

Dealing with prior authority that both sides argued supported their case, the Pennsylvania Supreme Court holds that an apparent hand-to-hand drug deal in a high crime area at night was probable cause for a stop. The officer’s experience alone is not enough. Commonwealth v. Thompson, 604 Pa. 198, 985 A.2d 928 (2009):

Because we have determined that a police officer's experience may be fairly regarded as a relevant factor in determining probable cause, and due to the presence of additional factors in support of Officer Ortiz's conclusion that he was witnessing a drug transaction, we find no error in the Superior Court's conclusion that probable cause was present in this case. We do not base our decision solely on Officer Ortiz's experience and the connection he articulated between that experience and what he observed. We also rely on the fact that the transaction at issue occurred in the nighttime hours, on the street, in a neighborhood that the police department selected for the "Operation Safe Streets" program. We conclude that the Superior Court properly upheld the denial of suppression in this case and properly affirmed the judgment of sentence.

Dissent 1; Dissent 2.

Defendant got off a highway to avoid a ruse checkpoint, and she did not signal her turn until after she stopped. This was a violation of Nebraska law and that justified her stop. United States v. Adler, 2009 U.S. App. LEXIS 28755 (8th Cir. December 31, 2009).*

“Curtilage” in a search warrant is not vague. United States v. Thomas, 2009 U.S. Dist. LEXIS 120653 (M.D. N.C. December 28, 2009):

. . . Thomas argues that the phrase "curtilage" is conclusory and imbued with legal, not factual, meaning. Thus, he concludes, the magistrate was unable to exercise his or her independent judgment in determining whether to grant the application for the warrant.

Thomas's argument is unpersuasive. While having legal meaning, the term "curtilage" also has a common, factual definition. Webster's Third New International Dictionary defines curtilage as "a yard, courtyard, or other place of ground included within a fence surrounding a dwelling house." Webster's Third New Int'l Dictionary at 558 (1986 Ed.) Further, Black's Law Dictionary defines it as "[t]he land or yard adjoining a house, usu. protected by an enclosure." Black's Law Dictionary at 441 (9th Ed. 2009). Thus, the everyday, common meaning is sufficiently co-extensive with any "legal" meaning. Further, to the extent a phrase may be more commonly known to those familiar with and having some training in law, a magistrate is generally such a person.

“In the instant case, the trial court erred in denying Fuentes's motion to suppress, as Officer Keirnan did not have a reasonable suspicion of criminal activity when she conducted the investigatory stop. The facts known to Officer Keirnan at the time of the stop were not indicative of criminal activity.” The informant’s information was not corroborated. Fuentes v. State, 24 So. 3d 1231 (Fla. App. 4th DCA 2009).*

The stop was invalid for lack of probable cause. The search for a weapon was not justified either, even if the stop was valid. United States v. Ferrell, 2009 U.S. Dist. LEXIS 120841 (E.D. Pa. December 29, 2009).*

Florida holds in a case of first impression for a state court that applications for historical cell site information was obtainable by court order and not a search warrant. Mitchell v. State, 25 So. 3d 632 (Fla. App. 4th DCA 2009):

In a case of first impression, the District Court for Massachusetts held that historical cell site information was obtainable through a court order issued pursuant to subsections 2703(c)(1)(B) and (d) of Title 18 of the United States Code. In re Applications of the U.S. for Orders Pursuant to Title 18 U.S.C. § 2703(d), 509 F. Supp. 2d 76 (D. Mass. 2007) (reversing a decision by the Magistrate Judge which required a warrant to obtain historical cell site information).

The district court applied a three-part test to determine if section 2703 provided a proper means to obtain the information. First, the court determined that a cell phone service provider fits within the statutory definition of a "provider of electronic communication service[s]," as defined by the SCA. Id. at 79 (quoting 18 U.S.C. § 2510(15)). Second, the court determined that historical cell site information was "a record or other information pertaining to a subscriber to or customer of" an electronic communications service because it contained "data specific to the handling of a customer's call." Id. at 79-80 (quoting 18 U.S.C. § 2703(c)(1)). Third, the court determined that the information was not "content" information because the location of a cell tower disclosed nothing about the "substance, purport, or meaning" of the call. Id. at 80 (quoting 18 U.S.C. § 2510(8)). Lastly, the court found that because historical cell site information disclosed only information in the past and not the current location of the defendant, it did not implicate the Fourth Amendment. Id. at 80-81.

We now adopt the reasoning of the District Court of Massachusetts because our statutory scheme is so similar to the federal statute. We hold that historical cell site information is not content-based. The user of a cell phone has no expectation of privacy in those records. See Smith v. Maryland, 442 U.S. 735 (1979). And, because historical cell site information discloses only the defendant's past location and does not pinpoint his current location in a private area, it does not implicate Fourth Amendment protections. See United States v. Knotts, 460 U.S. 276 (1983). In short, law enforcement need only comply with the provisions of section 934 to obtain historical cell site information.