Failure to raise exceeding scope of consent is a waiver. “We have held on multiple occasions that 'just as failure to file a timely motion to suppress evidence constitutes a waiver, so too does a failure to raise a particular ground in support of a motion to suppress.' E.g., United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002).” United States v. Valencia-Reuvelta, 380 Fed. Appx. 684 (9th Cir. 2010) (unpublished).*

Defendant agreed to answer further questions during traffic stop. “About then, a second officer with a drug-sniffing dog arrived. Van Buren asked Norwood for permission to search the car. Norwood declined, saying ‘I just want to get home.’ Van Buren told him, ‘Wait right here.’ About a minute and a half later, the drug-sniffing dog went around Norwood's car, and indicated the trunk. Searching there, officers found a kilogram of cocaine.” The additional two minutes was “de minimus” for the Fourth Amendment under $404,905 since there was reasonable suspicion from the suspicious travel plans, fast food wrappers in the car, and nervousness. United States v. Norwood, 377 Fed. Appx. 580 (8th Cir. 2010) (unpublished).

“Although the arrest occurred outside the apartment, the police had reason to believe that an individual posing a danger to the officers was in the apartment. The victim told the police that he had been assaulted and robbed by five men, but only three men emerged from the apartment following the officers' orders for all of the occupants to exit the apartment. The crimes that the officers were investigating occurred hours earlier and involved robbery and assault at gunpoint. Moreover, the victim told the officers that both appellant and another suspect carried a gun when they answered the front door of the apartment. Neither appellant nor another suspect had a gun when they exited the apartment, and another suspect who was believed to be armed did not emerge from appellant's apartment.” Maryland v. Buie permits a protective sweep on an arrest outside the home, and this was sufficient. Murphy v. State, 192 Md. App. 504, 995 A.2d 783 (2010).

The search of defendant’s car was justified as an inventory, so Gant did not apply. Thompson v. State, 995 A.2d 1030(Md. App. 2010).*

Defendant called his federal PO drunk from a motel room he was living in and made derogatory remarks about the judges on his case, including the claim that he could “blow a man's head off at a hundred yards with a rifle.” There was reasonable suspicion for a search of the motel room. United States v. Krug, 2010 U.S. Dist. LEXIS 52250 (M.D. Tenn. May 26, 2010).*

Defendant’s arrest allegedly in violation of state law as to the officer’s jurisdiction was irrelevant under the Fourth Amendment. United States v. Johnson, 2010 U.S. Dist. LEXIS 51961 (E.D. Pa. May 26, 2010).*

Officer could smell marijuana coming from the car after defendant’s stop, and that justified a search of the car. United States v. Lewis, 606 F.3d 193 (4th Cir. 2010).*

Application of Randolph to petitioner’s case was dealt with in the military courts, so it was not cognizable in habeas, even assuming that habeas review was possible from the military courts. Garcia v. Commandant, United States Disciplinary Barracks, 380 Fed. Appx. 762 (10th Cir. 2010) (unpublished).*

There is a move on in Congress to require prepaid cell phones be registered to a name. See yesterday's NYT: It’s Not Just Drug Dealers Who Buy Prepaid Phones. The "Times Square bomber" had such a phone.

Our server (not this site) was hacked for over a week by Triple Play Services of the Ukraine (IP address (109.86.128.0), Mihail A.Vovk and Kharkov Triolan owners. They were sucking all the bandwidth. Finally, the hack was isolated in the act. They'll probably be back.

From the to-pose-the-question-answers-it category is this: “A lot of child pornography cases come through our court, and most of them present fairly routine issues. This one, however, brings in tow a Fourth Amendment issue with important implications for the national security of the United States. When a foreign cargo vessel enters this country and is subject to a border search, may the cabins of its crew members be searched for contraband without reasonable suspicion?” Obviously, yes, even though on a ship like this, the rooms of the crew are their “homes.” The search was by an agriculture inspector looking for pests and seeds. DVDs were found in the desk drawer of defendant’s cabin, and children engaged in sex acts were on the cover. United States v. Alfaro-Moncada, 2010 U.S. App. LEXIS 10841 (11th Cir. May 27, 2010).

Not only is the national interest in searching for agricultural contraband coming into this country strong, but any expectation of privacy a crew member has in his living quarters is weaker when those quarters are brought to the border of this country. Montoya de Hernandez, 473 U.S. at 539, 105 S.Ct. at 3309-10; see also United States v. Hidalgo-Gato, 703 F.2d 1267 (11th Cir. 1983) ("On crossing a border the individual is on notice that a search may be made, and his privacy is arguably less invaded by such search." (quotation and other marks omitted)). There are no inspection-free zones on a foreign cargo vessel at the border, just as there are none in an airplane or a motor vehicle. Someone who travels to the border in a recreational vehicle that also serves as his home could not reasonably expect that it would not be subject to search. The same is true of a crewman whose cabin, along with the rest of his ship, travels three miles up the Miami River to dock.

GSR test at the police station shortly after arrest was constitutionally valid because of exigent circumstances. United States v. Simmons, 380 Fed. Appx. 323 (4th Cir. 2010) (unpublished), cert. denied 2010 U.S. LEXIS 7135 (U.S., Oct. 4, 2010):

Recently, the Fifth Circuit concluded that a GSR test is a reasonable search incident to arrest. United States v. Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006). As the court explained, "[b]ecause the presence of gun powder on his hands was relevant evidence that [the defendant] (or merely time) could have eventually removed or destroyed, if his arrest was valid, the performance of the gun powder residue test was lawful, and the admission of the results at trial was proper." Id. at 795-96. Such a result is dictated by Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973), in which the Supreme Court concluded that police, consistent with the Fourth Amendment, could take fingernail samples incident to a lawful arrest. Id. at 295-96. In Cupp, the Court explained the basis for the search incident to arrest doctrine was the belief that "it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession. Id. at 295. Applying that rationale, the Court concluded that the police were justified in performing a "very limited search necessary to preserve the highly evanescent evidence they found under his fingernails." Id.

Likewise, the GSR test in this case was constitutional. Simmons does not contest the lawfulness of his arrest, and, given that concession, the GSR test, a "very limited search," was appropriate as a search incident to arrest. In the alternative, exigent circumstances also justify the search because Simmons was requesting to use the bathroom and both parties agree that washing his hands could have removed any gun-shot residue. The district court did not err in denying the motion to suppress.

Search incident to arrest was justified for riding a bicycle without a helmet in violation of city ordinance. State v. Portillo, 2010 Tex. App. LEXIS 3929 (Tex. App. — El Paso April 30, 2010).

Anonymous 911 call did not justify stopping the defendant juvenile just because he was in a high crime area. State v. Eric K., 2010 NMCA 40, 148 N.M. 469, 237 P.3d 771 (2010).*

A protective sweep of the house and garage was justified because the officer had reason to believe that seven people were in the house but only three were accounted for. In the garage were drugs in the truck bed in plain view. United States v. Flores, 380 Fed. Appx. 921 (11th Cir. 2010) (unpublished).*

An employee had no reasonable expectation of privacy in his personnel files against their being used against him in an employment discrimination case. He had to expect the employer would use them. Roberts v. Mentzer, 382 Fed. Appx. 158 (3d Cir. 2010) (unpublished), cert. denied 2010 U.S. LEXIS 8578 (U.S., Nov. 1, 2010).*

Texas declines to adopt the apparent authority rationale that all persons living in somebody else’s house have presumptive exclusive authority over their own bedrooms. If somebody lives in somebody else’s house there must be indicia of exclusion, such as locks on the door or an express agreement. Hubert v. State, 312 S.W.3d 554 (Tex. Crim. App. 2010):

Notably, several courts have applied a different test and a different presumption. Mainly, these courts have followed the view that, when two autonomous adults jointly occupy a dwelling and have separate bedrooms, each occupant generally has a higher expectation of privacy in his or her own bedroom. Absent some showing that one occupant has exercised control, retained control, or come to an understanding with other occupants that control will be shared over the others' bedrooms, these courts start from the presumption that an occupant exercises sole control over his own bedroom and has no joint access to others' bedrooms. The State can overcome this presumption by presenting facts that would support a finding that the third party who consented to the search of another's bedroom did, in fact, exercise some control over the bedroom. However, absent any facts to indicate that control over a separate bedroom was shared or somehow retained, or that a third party had joint access to the room, a finding of actual authority cannot be supported. Under this view, even under circumstances in which the consenting third party is related to the person being searched, access and control are the paramount factors.

We refuse to apply such reasoning here. In our view it is more reasonable to conclude, on the particular facts of this case (viewed in the light most favorable to the trial court's ruling), that the appellant, lacking any proprietary interest in the house, or even any possessory right other than by the grace of his grandfather, assumed the risk that his grandfather might permit the search of any area of the house that he might reasonably suspect the appellant was using for criminal purposes, even including the appellant's bedroom--at least in the absence of any agreement between the two that would expressly prohibit the grandfather from making such an intrusion, or some other obvious indicium of exclusion, such as a lock on the door to demonstrate that the grandfather was.

On Reason.com from Rodney Balko: In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops. A motorcyclist had a helmetcam and, after his stop, the police raided his house for "wiretapping" them. He faces up to five years in prison after he posted the video of the officer pulling a gun on him on YouTube.

Cops have body cams. And they, of course, are exempt from the Fourth Amendment.

Prosecutor’s comment in opening statement about defendant’s refusal of consent violated the Fourth Amendment, but it was harmless. Fratcher v. State, 37 So. 3d 365 (Fla. App. 4th DCA 2010):

In this appeal, Fratcher complains of the following comment the prosecutor made during her opening statement:

The police get there. Fratcher opens the door and they place him under arrest. He immediately--the officer, you hear Detective McNally ... say, can I search your truck. No, you can't search my truck.

We believe that, under Gomez [v. State, 572 So. 2d 952, 953 (Fla. 5th DCA 1990)], the trial judge abused his discretion in overruling Fratcher's objection to this comment. While the prosecutor did not make the comment in a closing argument--so that it was not tinged with the argumentative character that made the Kearney comments so harmful--it was made as part of a narrative retelling of the facts, as was the impermissible comment in Gomez. Against this case's constitutional backdrop, the prosecutor's comment ran afoul of the strong prohibition against comment on a defendant's exercise of his Fourth Amendment rights that the fifth district announced in Gomez and we followed in Kearney. Nonetheless, we find the error to be harmless. See Goodwin v. State, 751 So. 2d 537 (Fla. 1999).

Contrary to Fratcher's argument, however, the judge did not abuse his discretion in denying the motion for mistrial."Improper prosecutorial comments give rise to error justifying mistrial when they are so prejudicial that they vitiate the entire trial. In determining whether reversal is warranted ..., the court must determine whether the effect of the comment was to prejudice the jury and impair the fairness of the proceeding." Mannarino v. State, 869 So. 2d 650, 652 (Fla. 4th DCA 2004) (citations omitted) (some internal punctuation marks omitted) (in context of comments made by prosecutor during closing argument). Here, the trial court ruled that the comment did not vitiate the entire trial. We agree. The prosecutor made the comment during opening statement in a non-argumentative manner and did not focus on the fact that Fratcher refused consent to a search. After the judge admonished the prosecutor not to mention it again, the prosecutor did not.

[An issue that remains unstated is a double jeopardy bar mistrial: If a mistrial were granted, the defendant would be able to assert a double jeopardy bar, and the loser of that issue would appeal, seriously prolonging the trial. If the comment is not outrageously flagrant and clearly designed to prejudice the accused, the trial court likely is better off to deny the mistrial for the time being and hold it under abeyance and admonish the prosecutor. If it recurs, mistrial; if not, the jury may cure the issue by acquitting. At least the court can view the issue in the context of the whole trial and rule on it in a motion for new trial on harmless error.]

Officers had [what appears to be kind of thin] exigent circumstances for a warrantless entry into defendant’s apartment for drug dealing with a weapon. The circumstances were sufficiently like Buie to justify a protective sweep. United States v. Richardson, 817 F. Supp. 2d 151 (W.D. N.Y. May 24, 2010),* affirmed United States v. Lucas, 2012 U.S. App. LEXIS 3221 (2d Cir. Feb. 15, 2012):

In this case, the Court concludes by a preponderance of evidence that exigent circumstances existed justifying the officers' warrantless entry into 1955 E. Main Street Apartment A-1. At the point they entered, Klein and the other officers, as discussed above, had probable cause to believe that the occupants of the apartment were engaged in drug trafficking and possessed a firearm in furtherance of their drug trafficking activities. When the apartment door opened the second time, Klein was able to see Richardson and Lucas, but not the shotgun. Finally, Richardson and Lucas refused the direction of Klein, a uniformed police officer, to come out of the apartment. Clearly, there was an urgent need for the police to take action.

A named complainant called the police to say that two men were sitting in a car in front of her house with a gun. Officers arrived and everything matched the details of the report except for the gun. There was a sufficient basis for a protective sweep of the car for the gun, and it was found. United States v. Harris, 2010 U.S. Dist. LEXIS 51847 (D. Minn. April 21, 2010)*:

Thompson properly conducted a Terry stop when he asked first Smith and then Harris to exit the vehicle. Moreover, as Harris was standing near the vehicle, and was not arrested or in handcuffs, he could have broken free from police control and retrieved a weapon from the front passenger area of the car. Therefore, it was proper for Thompson to conduct a protective search of the vehicle to ensure officer safety.

On the ACLU Blog of Rights: Reviving the Fourth Amendment and American Privacy:

. . .

Underlying all this, however, is a looming problem that has little to do with 9/11: the fact that the Supreme Court’s interpretation of the Fourth Amendment has gone badly off track. With all the privacy battles I’ve been involved in over the last nine years, that constitutional problem has always hung over us, often underlying or worsening more particular privacy issues such as data mining or financial privacy.

Now, I’ve written a paper for the American Constitution Society on this: Crisis in Fourth Amendment Jurisprudence.

[The link in the article did not work; this one does.]

From the Daily Princetonian: Kagan '81: Master's thesis in politics:

As the Senate Judiciary Committee prepares for the upcoming confirmation hearings of Elena Kagan, senators have been poring through thousands of pages documenting many of Kagan’s legal and political views. Among those pages, the New York Times reports , is her Master’s thesis in politics, written at Oxford in 1983, in which she discussed the history of the exclusionary rule (an element of Fourth Amendment jurisprudence) to advance an argument about how courts should go about effecting social change.

The thesis is particularly interesting because it comments on the issue of judicial activism—the charge leveled by judicial conservatives that the rulings of liberals on the bench have been guided not by legal principles, but instead by judges’ personal political preferences. Kagan’s argument in the thesis offers fodder to both sides of the debate. ...

Border laptop removal case reports

The post from 5/26 on the removal of a laptop from the border for a later search on reasonable suspicion was picked up by Computerworld: Border searches of laptops may be conducted off-site for cause, court rules, but the link in the article doesn't work.

AVN.com picked it up from them. [That's Adult Video News.]

How the Arizona "papers please" law might work

From my friend Tim Lynch at the Cato Institute: Immigration Law--Up Close with video of a stop.

[And, sorry about the error notices that have been showing. We moved to a new server for improved service, and it hasn't been working out very well.]

Defense counsel was not ineffective for not forecasting Gant. State v. Pearsall, 156 Wn. App. 357, 231 P.3d 849 (2010):

At the time of the search and throughout Pearsall's trial, the United States Supreme Court had not yet issued Gant. There is no basis for us to find ineffective assistance for defense counsel's failure to move to suppress evidence in anticipation of a change in the law. See Millan, 151 Wn. App. at 502-03 (citing United States v. Fields, 565 F.3d 290, 296 (5th Cir. 2009); State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995)). In State v. Contrerras, 92 Wn. App. 307, 318-19, 966 P.2d 915 (1998), for example, we refused to reverse a conviction on ineffective assistance grounds when Contrerras could not demonstrate that the trial court would have granted a motion to suppress even if defense counsel had brought such a motion. Such is the case here.

911 call was insufficient for an entry into defendant's house because there was insufficient showing of exigency of an injury of anybody inside. State v. Ford, 2010 VT 39, 188 Vt. 17, 998 A.2d 684 (2010).

Defendant was standing outside of a grocery store talking first to one man and then another and exchanging telephone numbers. The officer initiated a stop and questioned the defendant and it became a seizure without reasonable suspicion. While the conduct appeared suspicious, it was without reasonable suspicion because it also was legal. Commonwealth v. Hudson, 2010 PA Super 96, 995 A.2d 1253 (2010).*

The trial court’s conclusion that the defendant abandoned the car by flight when he was stopped and thereby waived any reasonable expectation of privacy in the car was susceptible to two interpretations: privacy interest in the contents v. possessory interest in the contents. It was his responsibility to provide a clear appellate record for review. Defendant didn’t so he loses. State v. Payne, 121 Conn. App. 308, 996 A.2d 302 (2010), appeal denied by State v. Payne, 297 Conn. 919, 2010 Conn. LEXIS 261 (2010).* [Does it actually matter? Should it? Both the majority and the concurring opinion find the distinction important, but differ on application.] In footnote 3 of the majority opinion:

FN3 In the present case, the court did not determine whether the defendant expected privacy in the invaded area. The concurring opinion reasons that this omission is inconsequential because "that line of inquiry need not be addressed if any such expectation held by the defendant is objectively unreasonable." Thus, the concurring opinion, reviewing a trial court decision that is devoid of a proper factual analysis of the claim, disposes of the claim on purely constitutional grounds. Even if we were to assume that the court's analysis of abandonment properly was rooted in fourth amendment principles, as opposed to property law, it is patently unclear whether the trial court applied the doctrine of abandonment because it found that the defendant did not expect privacy in the automobile or its contents at the time of the search or whether the court applied the doctrine because it concluded as a matter of law that the defendant's subjective expectation of privacy was not objectively reasonable.

[Query to complicate it more: If the driver flees from the car with the keys and locks the car, has he retained the reasonable expectation of privacy in the car? What about the locked trunk? Should flight always be a waiver of privacy in the car? A car registered to the accused with locks (locked or not) is far different than a packet of drugs or a bag or a gun. It is a far more significant container. After alleged abandonment, the car may be towed and impounded, but the towing company and the police will attempt to reunite the defendant with the car. Of course, the prosecutor will attempt to reunite the defendant and the contraband in court for criminal liability. Should a car be treated differently?]

Gant did not apply to a search for evidence of driving on a suspended license because it was not reasonable to believe that evidence of that offense would be found. Gant, however, is not found to be retroactive to a search occurring before it was decided. People v. Henry, 184 Cal. App. 4th 1313, 110 Cal. Rptr. 3d 85 (1st Dist. 2010), Modified and rehearing denied by People v. Henry, 2010 Cal. App. LEXIS 924 (Cal. App. 1st Dist., June 18, 2010):

We see no discernable difference between the application of the good faith exception as in Krull, supra, 480 U.S. 340, when police rely upon a statute later determined to be unconstitutional, and police reliance upon prior decisional law subsequently changed by a decision of the United States Supreme Court. Suppression of the evidence seized by the police in the present case in reasonable reliance upon more than a quarter of a century of case law interpreting Belton, supra, 453 U.S. 454 to permit the search, would in no way deter future police misconduct, the primary purpose of the exclusionary rule. Indeed, application of the exclusionary rule in a situation such as this, where the police did not “blunder,” but rather did precisely what the courts told them was acceptable under the Fourth Amendment, would offend basic precepts of the criminal justice system by allowing criminals (including dangerous ex-felons who possess a firearm) to go free because of a major change in decisional law that occurred after their conduct. Such offensive results serve only to undermine public confidence in the judicial system. That being the case, even though Gant, supra, 129 S.Ct. 1710 may apply retroactively to defendant's case, the evidence seized from defendant's car should nevertheless be admissible under the good faith exception to the exclusionary rule.

Because of Gant's substantial departure from what was, by the decision's own admission, established case law interpreting the search-incident-to-arrest exception in the context of vehicle searches under Belton, supra, 453 U.S. 454, this precise issue has now been the subject of several published opinions. Recent decisions on this issue in federal courts were summarized in United States v. Amos (E.D. Tenn., Jan. 5, 2010, No. 3:08-CR-145) ___ F.Supp. ___ [2010 WL 56086], “There is presently a split between the Circuit Courts of Appeals as to whether the good faith exception applies to searches in violation of Gant that were conducted pre-Gant. Compare United States v. McCane [(10th Cir. 2009)] 573 F.3d 1037 (holding that the good-faith exception to the exclusionary rule applies to searches which occurred before Gant), with United States v. Gonzalez [(9th Cir. 2009) 578 F.3d 1130 (Gonzalez)] (holding that the good faith exception does not apply to pre-Gant searches). District courts within the Sixth Circuit are also divided as to whether the good faith exception applies. Compare United States v. Lopez (E.D. Ky. Sept. 23, 2009, No. 6:06-120-DCR [2009 WL 3112127] (applying the good-faith exception) with [United States v.] Peoples (W.D. Mich., Oct. 29, 2009, No. 1:09-CR-170) [2009 WL 3586564] (stating that ‘good[-]faith reliance upon case law cannot excuse suppression under the current formulation and application of the good[-]faith doctrine’); see also United States v. Buford (M.D. Tenn. 2009) 623 F.Supp.2d 923, 927 (… the extension of the good[-]faith exception would cause ‘perverse results’ in that case).” From among the collection of cases addressing the issue, we believe those decisions applying the good faith exception are better reasoned.

“[O]nce Deputy Perkins smelled the odor of marijuana coming from Defendant's car, he had probable cause to search the car, regardless of whether Defendant chose to withhold his consent to search. Although defense counsel tried to challenge the information in Deputy Perkins's report, the fact remains that Defendant did not provide an affidavit or any other evidence to dispute that Deputy Perkins detected an odor of marijuana emanating from Defendant's car. Not only is there nothing to contradict Deputy Perkins's report, the fact remains that 21 grams of marijuana were discovered in Defendant's car.” United States v. Johnson, 2008 U.S. Dist. LEXIS 114241 (S.D. Ga. July 30, 2008).*

The officer had reasonable suspicion to believe that the defendant was driving a car with a license plate that was not properly secured in violation of Kansas law, and that supported the stop. United States v. Lopez-Estrada, 2010 U.S. Dist. LEXIS 51254 (D. Kan. May 25, 2010).*

Defendant’s possession of potential burglar tools on the front seat of his car and confusing answers from the two in the car became reasonable suspicion. United States v. Kopp, 2010 U.S. Dist. LEXIS 51200 (D. Mont. May 24, 2010).*

Extending the defendant’s valid stop an additional couple of minutes, 5-6 minutes for the entire stop, was reasonable questioning and was not unconstitutional. United States v. Harrison, 606 F.3d 42 (2d Cir. 2010).*

The trial court erroneously suppressed the result of a second blood draw at a hospital in a DUI case where there was probable cause to believe defendant was under the influence when driving and the police used a search warrant to obtain the blood sample from the hospital. Commonwealth v. Miller, 2010 PA Super 93, 996 A.2d 508 (2010).*

In a RICO case, the district court’s finding on voluntariness of consent is supported by the evidence, so it is affirmed on appeal. United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010).*

Officers had an arrest warrant for the defendant, and they had probable cause to believe he was present to justify the entry for him. So, the court does not have to decide which standard should apply. United States v. Block, 378 Fed. Appx. 547, 2010 FED App. 0314N (6th Cir. 2010).*

Petitioner’s 2255 denial does not warrant a COA on any claim, including his Fourth Amendment IAC claim. United States v. Altamirano-Quintero, No. 10-1005, 379 Fed. Appx. 764 (10th Cir. 2010).*

Defendant’s computer was searched for child porn at Customs when he arrived at the Detroit airport. The computer was removed to another location for further analysis, which would be questionable under Place. The removal to another location could only occur with reasonable suspicion. “The defendant's analogy to the extended border search cases therefore is apt. But that does not mean that the subsequent examination of the Twinhead laptop was invalid. The Court believes instead that the ICE agents had reasonable suspicion to believe that [both] the computers ... contained contraband, and the continued detention and examination of those items was reasonable.” United States v. Stewart, 715 F. Supp. 2d 750 (E.D. Mich. 2010).

Officer on patrol heard six gunshots in the early morning hours coming from a high crime area. Being familiar with the area, he looked for vehicles which would flee on certain streets and saw defendant’s car, the only one. There was reasonable suspicion. United States v. Robinson, 2010 U.S. Dist. LEXIS 50848 (E.D. Tenn. May 24, 2010).*

On the advice of an Assistant State's Attorney because a warrant would take extra time to procure that day because of unavailability of the municipal judge, officers were justified in entering defendant's apartment with probable cause to freeze it and prevent destruction or sale of heroin when a warrant was obtained. No search occurred until the warrant issued. State v. Holt, 2010 Ohio 2298, 2010 Ohio App. LEXIS 1887 (3d Dist. May 24, 2010):

[*P44] The C[omputer] A[ssisted] D[ispatch] notes from February 23, 2009, indicated that Sanchez was stopped at 6:58 p.m. and her heroin was found at 7:08 p.m. It also indicated that Smith's heroin was found at 7:06 p.m. The notes further showed that the police entered the home at 7:22 p.m. and that Holt ran at that time. Also, these notes indicated that Holt was apprehended and the home secured at 7:28 p.m. Thus, the CAD notes revealed that the detectives entered the home less than twenty minutes after obtaining information sufficient to obtain a warrant. The CAD notes also confirmed the testimony of the detectives that everything happened fairly quickly once the Bravada was spotted despite the seeming disparity in times noted in the detectives' individual reports. Thus, the trial court could reasonably have relied upon the CAD time frames to support its finding that the police had a reasonably objective basis for concluding that the loss or destruction of evidence was imminent.

[*P45] Given these facts, we find that the police had an objectively reasonable belief that the destruction of heroin was imminent and they were justified in entering 492 Silver Street for the limited purpose of securing the premises and preventing the loss or destruction of evidence. Furthermore, their mode of entry was also reasonable given the need to act quickly, the limited time they had to organize an entry, and the fact that their need to act quickly resulted in an entry team consisting of only three men who were in plain clothes, armed with merely their sidearms, and only a vest to protect them, rather than entry by a heavily armed SWAT team in full protective gear. Additionally, they knocked on the door, waited for it to be answered before entering the home, and immediately identified themselves as police officers.

A protective sweep was justified along with the arrest of the occupant of a mobile home with an operating meth lab where officers could hear other people inside. A protective sweep may precede an arrest if the circumstances support it. State v. Fenn, 41 So. 3d 544 (La. App. 2d Cir. 2010), judgment rendered May 20, 2010:

An in-home protective sweep may occur after the suspect is arrested. Two Bienville Parish officers were investigating possible methamphetamine activity involving the applicant, whose vehicle was parked outside her residence, a mobile home in Saline, Louisiana. A man answered her door. When the door was opened, the officers smelled the strong odor of solvents, necessary components in the production of methamphetamine. The deputies also heard noises indicating the possible presence of an unknown individual in the dwelling. The man at the door denied that applicant Fenn was home. The officers left.

Within a few moments, the officers were informed of an outstanding Texas arrest warrant for the man who had been at the door. An arrest was quickly made, either at the door or on the porch, and the officers, for their protection, made a quick protective sweep of the home, to make certain that no one was present who could harm them. This sweep was predicated upon the foregoing specific and articulable facts, in concert with our culture's universally acknowledged nexus between guns and drugs. The actions of the officers to protect themselves were objectively reasonable and appropriate.

Joyriding defendant who claimed she did not know car was stolen had no reasonable expectation of privacy in a cigarette case she left in the backseat. Clark v. State, 231 P.3d 366 (Alas. App. 2010):

The prevailing view of cases from other jurisdictions is that a passenger has no expectation of privacy in containers left in a stolen vehicle.FN10 In response, Clark argues that there was no evidence establishing that she knew that Roatch's vehicle was stolen. But that is not the critical question. The critical question is what information was available to Officer Thompson at the time of the search.

FN10 See 6 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.3(e), at 206-07 (4th ed. 2004); Nelson v. State, 405 So.2d 392, 398 (Ala. Crim. App. 1980), rev'd on other grounds, 405 So.2d 401 (Ala. 1981) (holding that passenger in stolen vehicle lacked standing to object to search of vehicle); see also State v. Thompson, 490 S.W.2d 50, 51-52 (Mo. 1973); State v. May, 613 S.W. 2d 877, 881 (Mo. App. 1981); Harper v. State, 84 Nev. 233, 440 P.2d 893, 895-98 (Nev. 1968); State v. Scott, 860 P.2d 1005, 1007-08 (Utah App. 1993); State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W. 2d 503, 511-13 (Wis. 2007) (holding that defendant did not have reasonable expectation of privacy in makeup case he left in vehicle because he did not have permission to be in the vehicle).

Judge Blankenship found that Officer Thompson had probable cause to believe that the vehicle was stolen and that Clark was guilty of joyriding. These findings were adequately supported by Officer Thompson's testimony about Roatch's report that Thomas had stolen her vehicle. Based on this information, Officer Thompson could have reasonably concluded that Clark had a reduced expectation of privacy in the containers that were found in the stolen vehicle.

Moreover, Clark apparently chose to leave the cigarette case in the backseat of the vehicle rather than to carry it on her person. Passengers have a reduced interest in containers that they leave in another person's vehicle.

Capital murder defendant lacked standing to challenge the search of a car of another where his duffle bags were hidden. People v. Thompson, 49 Cal. 4th 79, 231 P.3d 289, 109 Cal. Rptr. 3d 549 (2010).*

Defendant registered as a sex offender under Tennessee law. The registry person in his county told him that he had to submit to “house checks,” random walk throughs of his house by the registry person and the police. He had been subjected to a few and then, after a dispute with a neighbor, they came by again. He admitted having a gun. The threatened entry was the product of coerced consent obtained by a false claim of authority. United States v. Arwood, 2010 U.S. Dist. LEXIS 50258 (E.D. Tenn. April 27, 2010):

Defendant argues that he believed that he had no choice other than to submit to the "house checks," and that he also was obligated to answer any questions asked by the police during those checks. The United States argues that "ignorance of the law is not a defense," citing United States v. International Minerals & Chemical Corp., 402 U.S. 558, 563, 91 S. Ct. 1697, 29 L. Ed. 2d 178 (1971), and therefore defendant's erroneous belief that he was required to answer Deputy Standifer's questions is irrelevant.

There was nothing inappropriate about Deputy Standifer's question to defendant regarding a gun in the house. The issue, however, is the validity--or voluntariness, if you will--of his response that there was indeed a gun in the house, as well as the validity of his consent that the officers enter his house.

Defendant was "ignorant" of the law, i.e., his rights, to the extent that he was under the misapprehension that he had no choice. That misapprehension, however, was the product of prior visits and statements by representatives of the Hamblen County Sheriffs Department.

A consent is not voluntary if it is given in response to a false threat that a search warrant will be obtained if the consent is withheld. See, e.g., United States v. White, 979 F.2d 539, 542 (7th Cir. 1992). Similarly, a consent based upon an officer's false representation that he possesses a warrant is no consent at all:

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

Bumper v. North Carolina, 391 U.S. 543, 548-550, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). There is no difference between an officer's misrepresentation regarding his intent to procure a warrant and his misrepresentation (by word or action) of his authority to conduct warrantless house checks and to require a convicted sex offender to answer his questions. In either situation the defendant's consent cannot truly be said to be valid and voluntary.

Defendant did not have a reasonable expectation of privacy in a gun safe where his guns were stored. The safe was in another person’s premises, and he had no control over it at all. Ubele v. United States, 2008 U.S. Dist. LEXIS 113966 (S.D. Ga. January 5, 2009).*

Blocking the door so defendant could not close it and terminate his conversation with the police involved the “threshold” and thus was an entry into the house without exigent circumstances. Terry does not permit entry into homes on reasonable suspicion. However, the officer could arrest defendant for hurting the officer, and the search incident of his person was valid. The search of his house was not. State v. Jefferson, 413 N.J. Super. 344, 994 A.2d 1067 (2010):

The trial court said, "the police were facing a potentially armed suspect who had not unequivocally indicated that he did not wish to speak to them." But defendant's possible willingness to speak to the police from inside his house did not translate into permission for them to enter. Defendant gave no indication that he had invited the police into the hallway, or into any part of his home. We reject the State's argument that Sergeant Smith could reasonably believe that she was permitted to "move to the threshold to view [defendant's] entire body and ascertain that defendant was not armed." In fact, she inserted herself into the doorway while defendant was peering from behind it, thus expressing his choice to exclude the police from his home.

The State has not cited any case recognizing an exception from the warrant requirement when the police wish to enter a home to effect a Terry-type investigative detention of a suspect. The State's argument that the police have such authority is inconsistent with the constitutional requirement that police have a warrant, or establish an exception to the warrant requirement, when they enter a home to make a formal arrest.

. . .

In this case, the police had no warrant and made no showing of an exception from the warrant requirement when Sergeant Smith partially entered defendant's residence to stop him from closing his front door. That conduct of the police infringed upon the “firm line at the entrance to the house” when applying the protections of the Fourth Amendment. Kirk, supra, 536 U.S. at 638, 122 S. Ct. at 2459, 153 L. Ed. 2d at 602 (quoting Payton, supra, 445 U.S. at 590, 100 S. Ct. at 1382, 63 L. Ed. 2d at 653).

Defendant could not raise on appeal from his revocation of probation conviction the search that led to his guilty plea that put him on probation in the first place. It was waived by the plea. State v. Lenard, 2010 Ohio 2220, 2010 Ohio App. LEXIS 1822 (8th Dist. May 14, 2010).*

The trial court’s findings that the state did not prove that consent was valid by clear and convincing evidence is binding on appeal because it is supported by the evidence. State v. Tell, 2010 Ohio 2217, 2010 Ohio App. LEXIS 1814 (8th Dist. May 20, 2010).*

The state showed sufficient necessity for continuing the wiretaps in this drug investigation to satisfy the Fourth Amendment. People v. Roberts, 184 Cal. App. 4th 1149, 109 Cal. Rptr. 3d 736 (4th Dist. 2010).*

Defendant and his girlfriend lived together in a hotel room. She was on probation and had previously signed blanket consent to search. When the PO came to the motel room to search, defendant did not specifically object to it. Randolph was not violated by his body language when he did not specifically object. State v. Tarasuik, 160 N.H. 323, 999 A.2d 409 (2010):

The defendant argues that he presented non-verbal cues that he was uncomfortable with the search, and if either officer had asked him for consent to search, he would have refused. Even if we assume that the defendant's body language implied that he did not consent to the search, the defendant's argument under Randolph fails. Randolph applies only when an occupant “expressly refuses to consent,” which did not occur here. Id. at 106. Additionally, the Supreme Court has acknowledged that officers do not have to ask all potential objectors whether they are willing to consent to the search:

[W]e have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.

Id. at 121. Here, the officers were not required to ask the defendant for his permission to search the hotel room.

[The larger question unanswered here is whether a cotenant of a person on probation or parole is subject to searches under the probationer's or parolee's consent or can the cotenant veto consent. This case answers this question purely as a matter of pre-given third party consent. If the defendant was going to object, it had to be express. If, however, he did expressly object, was this good enough under Randolph? In Randolph, the defendant refused consent, effectively vetoing it before the police asked his girlfriend. If she grants consent first and he is found there, is his objection valid at all? Maybe not, but, again, this case does not answer that precise question.]

Defendant’s arrest on an outstanding bench warrant for something else, for which there was probable cause, was not sufficiently pretextual to be a violation of the Fourth Amendment. State v. Jenkins, 782 N.W.2d 211 (2010)*:

With respect to Jenkins' claim that the police misused the bench warrant to arrest him for the two murders, we first note that there can be no question that an arrest pursuant to a valid warrant is supported by probable cause and is therefore reasonable. Jenkins has not identified, and we have not found, any case in which we have held otherwise. Nor are we aware of any case in which we have looked beyond the validity of the warrant and examined law enforcement's motive for executing the warrant, and we decline to do so in this case. Jenkins did not challenge the validity of the Crow Wing County bench warrant at the trial court, nor has he done so here. Further, the record before us does not contain anything that calls into question the validity of the bench warrant. Thus, we conclude that Jenkins' arrest pursuant to that warrant was proper.

Defendant was not seized as officers talked to him and he kept walking away from them. He stopped, turned around, and returned with his hands in his pockets, and officers told him to take his hands out of his pockets. One officer told the other to hook him up (for safety reasons), and defendant removed his hands discarding cocaine. The seizure of the cocaine was not the result of a Fourth Amendment violation. State v. Hamilton, 36 So. 3d 209 (La. 2010).*

The lady who lived in the other half of a duplex who reported suspected drug dealing was presumptively reliable where she was named and remained there when the police arrived. State v. Brown, 35 So. 3d 1069 (La. 2010).*

The search warrant affidavit referred to the offense under investigation as first degree murder, but it was merely assault. This did not, as defendant argues, make it invalid per se. “The courts also ‘allow some latitude for honest mistakes’ made in connection with warrants. United States v. Owens, 848 F.2d 462, 464 (4th Cir. 1988). Because there was probable cause, the warrant's reference to ‘first degree murder’ was harmless error. Accordingly, Hill’s motion to suppress the gun was denied.” United States v. Hill, 2010 U.S. Dist. LEXIS 49815 (D. Md. May 20, 2010).*

The electric company’s revenue loss investigator received a tip of electricity theft from the police and went to investigate. That did not make him an agent of the state. In consent cases, there is a two step process for analyzing consent. United States v. Viamontes, 2010 U.S. Dist. LEXIS 49616 (M.D. Fla. May 6, 2010)*:

“For consent given after an illegal seizure to be valid, the Government must prove two things: that the consent is voluntary, and that the consent was not the product of the illegal seizure.” Santa, 236 F.3d at 676. Under this standard, the voluntariness of consent is only a threshold requirement; voluntariness does not, in itself, remove the taint of an illegal seizure. Id. The second inquiry focuses on causation: “[w]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)) (emphasis added).

DUI is an offense for which evidence of an offense might be found, so a search incident is valid, rejecting Brown v. State, 24 So. 3d 671, 679 (Fla. Dist. 5DCA 2009). United States v. Reagan, 713 F. Supp. 2d 724 (E.D. Tenn. 2010).*

Police were called to a motel room because the manager suspected that defendant and his 12 year old daughter were having sex there. The officer knocked at the door, and asked to talk to the defendant, who showed at the door in only a towel. The officer asked if they could talk inside, and defendant said no and stepped into the hall and shut the door behind him. The interaction between the defendant and the officer was consensual. In any event, the conversation was based on reasonable suspicion. The entry into the room was also by consent, and incriminating evidence was in plain view. United States v. Pelling, 2010 U.S. Dist. LEXIS 50195 (D. Ore. May 20, 2010).*

Defense counsel did not file a motion to suppress the search of defendant’s bedroom because he believed it was valid as a search incident. The location of a gun found there was never referred to at trial. Cash was found in a nightstand drawer and that came into evidence. Even if there was a Fourth Amendment violation, the cash was harmless error in light of the other evidence at trial. Womack v. United States, 2010 U.S. Dist. LEXIS 50016 (S.D. Ill. May 20, 2010).*

The question for the legality of the stop is what the officer knew at the time of the stop, not what he learned after. Here, the officer admittedly lacked justification for the stop. Reversed. Carmichael v. Village of Palatine, 360 Fed. Appx. 686 (7th Cir. 2010)*:

Our earlier discussion should make clear--but we pause to emphasize--that our focus on the facts Officer Sharkey knew at the time that he decided to stop the vehicle, as evidenced by the defendants' admission and Officer Sharkey's own statements, should not be misread as adopting a subjective standard that focuses on Officer Sharkey's motivations. See Williams, 509 F.3d at 398-99. Indeed, this case involves a straightforward application of the objective test set forth by the Supreme Court in Whren, which requires us to evaluate probable cause from the perspective of a reasonable officer who saw what Officer Sharkey saw and heard what he heard. See United States v. Parra, 402 F.3d 752, 764 (7th Cir. 2005). The objective perspective dictated by Whren and its progeny prevents courts from eschewing objective facts in favor of evaluating the subjective motivations of a particular officer; however, it is not meant to give an arresting officer the added benefit of any facts that come to light after a relevant Fourth Amendment decision has been made. See Devenpeck, 543 U.S. at 153, 154 (noting the purposes of the objective test, including its assurance "that the constitutionality of an arrest under a given set of known facts" will not vary "from place to place and from time to time" (internal quotation marks omitted)).

The officer’s trash search at defendant’s house corroborated the informant who said that he saw marijuana in the house just before. The search warrant was issued with probable cause. Flores v. State, 319 S.W.3d 697 (Tex. Crim. App. 2010).*

Officer did not seize defendant when the officer woke him up in his car. By the time defendant was ordered out of the car, the officer had reasonable suspicion of intoxication. Sivik v. Driver & Motor Vehicle Servs. Div., 235 Ore. App. 358, 231 P.3d 1177 (2010):

Here, however, it is clear that, when Mills awakened petitioner and asked him if he was in distress, the encounter was mere conversation by anybody's standard. Mills did not interfere with petitioner's freedom of movement until he asked petitioner to step out of his van. By that time, he had developed a suspicion that petitioner had been driving while intoxicated, and that suspicion was reasonable; he had observed petitioner drive into the lot with the wheels of his van kicking up gravel, pull to a halt in front of a closed coffee kiosk, and slump over the steering wheel. Before actually conversing with petitioner, Mill had detected a strong odor of alcohol emanating from the van. Although he testified that he did not develop probable cause to believe that petitioner had been driving while intoxicated until after petitioner stepped out of the van, he also testified that he had developed a suspicion before making contact. The stop was lawful, and the ALJ did not err in rejecting petitioner's argument to the contrary.

The stop was justified either as a Terry stop or a traffic offense, and consent followed almost immediately. “This is about as brief as an investigation can be without having contraband in plain view.” State v. Brand, 309 S.W.3d 887 (Mo. App. 2010).*

Where PC was totally lacking, search warrant could not be relied upon in good faith. Agurs v. State, 415 Md. 62, 998 A.2d 868 (2010):

The affidavit supporting the warrant stated no facts suggesting that such items would be found in the home and stated only speculative and inconclusive facts suggesting that the petitioner was involved with controlled dangerous substances. Under these circumstances, the affidavit provided no indicia of probable cause that the petitioner had items related to controlled dangerous substances in his home. Accordingly, the good faith exception to the exclusionary rule did not apply because the police could not have relied on the warrant in good faith.

Defendant’s stop was valid, and defendant does not really dispute that. The court cannot reweigh the evidence. State v. Sitts, 926 N.E.2d 1118 (Ind. App. 2010).*

Officers arrested a suspect outside a house. They had a reasonable belief that others were inside, but no reason to believe that they posed any kind of threat. A protective sweep of those inside could have been valid if there were articulable reasons for it, but here there were none. Diaz v. State, 34 So. 3d 797 (Fla. App. 4DCA 2010) (good discussion of protective sweep doctrine).

Defendant prison official had qualified immunity for threatening force to obtain a DNA sample which plaintiff concedes he could obtain from him. Rendelman v. Scott, 378 Fed. Appx. 309 (4th Cir. 2010) (unpublished).*

Defendant denied living at the place searched; he only stored a couch there. He lacked a reasonable expectation of privacy there. All he had there was a couch he was storing. United States v. Perry, 379 Fed. Appx. 888 (11th Cir. 2010) (unpublished).*

Defendant’s stop was based on an anonymous and unreliable tip, and nothing was observed that indicated any criminality. State v. Taylor, 388 S.C. 101, 694 S.E.2d 60 (2010)* (this case is a good summary of the law of anonymous tips).

Defendant consented to a search of his car, and that revealed the odor of marijuana. Probable cause developed at that point, and the search was valid under the automobile exception. State v. Toledo, 204 N.C. App. 171, 693 S.E.2d 201 (2010).*

Police responded to a 911 call that defendant was on her property, and that justified their entry. They did not know that the caller wasn’t there. State v. Pierce, 155 Wn. App. 701, 230 P.3d 237 (2010).*

Law.com: Student's Privacy Rights Violated in Pa. 'Sexting' Case, ACLU Suit Says by Shannon P. Duffy The Legal Intelligencer:

The hot-button issue of "sexting" is coming back to court and this time the ACLU is setting out to establish that high school students have a right to privacy that includes the contents of their cell phones.

Biography Channel faces lawsuits over aired ride alongs on Reporter's Committee for Freedom of the Press:

The Biography Channel and its parent company face two federal lawsuits that look to test the limits of media liability for alleged civil rights violations that occur during police ride-along programs.

So far, only the Ninth Circuit has held that the news media can be liable for civil rights violations when they entered private property with officials.

Defendant’s car was stopped because there was a person in it wanted for drug offenses. The officers then called a drug dog that alerted on the car. The defendant did not show that the drug dog was not a “well trained” dog [and why is it the defendant’s burden to show that?]. As to the search of the defendant’s house, there was a question of standing since he had been in jail for a year and the rent was unpaid, but the standing question does not need to be decided. Instead, it was a private search by the landlord. United States v. Claude X, 2010 U.S. Dist. LEXIS 49046 (W.D. Mo. April 16, 2010).*

The government never conceded that defendant had standing in the apartment with a working meth lab. Anyway, standing was decided in the direct appeal, so it could not be raised in this § 2255. Beckstead v. United States, 2010 U.S. Dist. LEXIS 49138 (D. Utah May 18, 2010).*

Defendant consented to the search for weapons. He even volunteered it before the officer could ask. United States v. Griffin, 2010 U.S. Dist. LEXIS 49139 (D. Utah May 17, 2010).*

The government failed to show articulable reasonable suspicion for prolonging the stop. United States v. Mendez, 2010 U.S. Dist. LEXIS 49534 (M.D. Ga. May 18, 2010)*:

This is a fairly close case. The question boils down to whether there was an articulable suspicion which would justify prolongation of the traffic stop to the point where permission to search was asked for and granted. In the Court's opinion, the reasons given by the deputies to support their suspicion do not support anything in this case. The reasons are all reasons the Court has heard many times in many cases. If Defendant had rented the car for one day and said he was going to Florida, the circumstances may have been suspicious, but there is nothing suspicious about going from Gwinnett County to Moultrie and back in one day. Similarly, if Defendant had been going from Gwinnett County to Florida, the absence of luggage may have been sufficient to raise articulable suspicion. Further, while Broce testified that Defendant acted extremely nervous during the traffic stop, to the extent one can observe nervousness on a tape, the Court saw no nervousness on Defendant's part during the traffic stop. Defendant stood there and responded to both officers, and in fact, the Court has never seen anyone act less nervous. Finally, the fact that Defendant was coming from Gwinnett County by itself does not support an articulable suspicion of criminal activity.

[Is this dangerously close to Arvizu’s “divide and conquer” of reasonable suspicion but with a twist? After all, the court completely discredits nervousness.]

El Paso officers had a reliable tip that a van had a large quantity of marijuana in it. Officers followed the van from ground and air to a house that had all the appearances of a stash house. The unladen van left and was lost, so the officers returned to the house to make a knock-and-talk, and the smell of marijuana was powerful from the front yard. A knock at the door led to potential flight inside, and officers went to the back door to cut off an escape route and prevent access to potential weapons. The defendant then consented. The entry into the back yard had an independent source. United States v. Trejo, 378 Fed. Appx. 441 (5th Cir. 2010) (unpublished)*:

Even if we purge from the warrant affidavit any information officers obtained as a result of the intrusion of Trejo's backyard, under the independent source doctrine, sufficient facts remain to constitute probable cause. See United States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996) (citation omitted). This includes the corroborated tip about the van, the van appearing to deliver a cargo to Trejo's house, the appearance of the house, the smell of marijuana and masking agents, the boxes observed during the protective sweep, and the canine's positive alert for the presence of narcotics. See United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992) (en banc) (reasoning that the smell of marijuana can give rise to probable cause). Garza testified that he believed the officers had probable cause to seek a warrant after the officers smelled marijuana and the canine confirmed this observation. In light of these facts, we easily conclude that the officers would have sought a search warrant even had they not observed boxes through the back windows of Trejo's house. See Hassan, 83 F.3d at 697.

The district court’s findings on consent were not overcome by defendant’s arguments on appeal. United States v. Toledo, No. 09-4103 (10th Cir. May 18, 2010) (unpublished).*

ABA Annual Meeting on Fourth Amendment and Computers

Search and Seizure Evidence in the Computer Age: Fourth Amendment Implications, August 5th, San Francisco.

DE strip search case settled

The private prison in Delaware County has settled the strip search class action against it for $3M for 10,000 nonviolent non-drug arrestees. Settlement reached in strip-search lawsuit.

Ex-Cop talks about lying cops

Ex-Cop Goes Rogue on the Drug War, Tells Pot Smokers How to Outsmart the Police on AlterNet.

Defendant’s cooperation during the stop and search of his car showed that it was by consent. The officer told the defendant that his consent could be withdrawn. He also had experience with law enforcement in the past, and it was apparent that the defendant thought that the drugs were so well hidden that they would not be found. United States v. McCoy, 2010 U.S. Dist. LEXIS 48930 (N.D. Miss. April 21, 2010).*

One defendant was removed from the car and searched because of furtive movements, and the car was searched too. Having found nothing on him, the officer searched the other, but there was no articulable reasonable suspicion as to him. The government’s argument as to inevitable discovery fails as to the second defendant because there was no reason to believe that the vehicle had to be impounded until the second was searched. United States v. Fields, 2010 U.S. Dist. LEXIS 48777 (S.D. Ohio April 23, 2010).*

Third party consent to seize and search defendant’s computer for child porn by one with common authority over it was valid. A search warrant was thus not required. State v. Ramage, 2010 WI App 77, 325 Wis. 2d 483, 784 N.W.2d 746 (2010).*

Defendant was allegedly drug dealing out of a Hurricane Katrina damaged and abandoned building with no windows or doors, and a neighbor complained to the police. He had no expectation of privacy against a police entry. State v. Patterson, 38 So. 3d 1131 (La. App. 4th Cir. 2010);* State v. Carter, 38 So. 3d 1092 (La. App. 4th Cir. 2010).*

Since defendant’s unpursued motion to suppress was meritless, defense counsel cannot be ineffective assistance of counsel. Burgess v. United States, 2010 U.S. Dist. LEXIS 48464 (S.D. Ohio April 22, 2010).*

Defendant made a sufficient showing of a Randolph veto of consent issue to get a hearing. United States v. Penlton, 2010 U.S. Dist. LEXIS 48175 (W.D. Wis. April 16, 2010).*

College essays; I guess for sale?

School searches PowerPoint: Fourth Amendment Search & Seizure Issues on Campus.

More on the Detroit reality TV SWAT child killing in raiding the wrong house on ABAJ.com: Playing to the Cameras? Suit Filed Over Taped Police Raid That Resulted in Child’s Death. The complaint is here.

House votes to expand national DNA arrest database by Declan McCullagh on CNET News:

Millions of Americans arrested for but not convicted of crimes will likely have their DNA forcibly extracted and added to a national database, according to a bill approved by the U.S. House of Representatives on Tuesday.

By a 357 to 32 vote, the House approved legislation that will pay state governments to require DNA samples, which could mean drawing blood with a needle, from adults "arrested for" certain serious crimes. Not one Democrat voted against the database measure, which would hand out about $75 million to states that agree to make such testing mandatory.

Nothing the police did, other than being there, caused the defendant to flee. They had reasonable suspicion. Commonwealth v. Franklin, 456 Mass. 818, 926 N.E.2d 199 (2010):

The line we have attempted to draw is fact specific. Here, the defendant's flight was not prompted by anything the police did, and, indeed, began before the officers got out of their vehicle. There was no evidence that the police exercised any show of authority or commanded the defendant to stop. See Commonwealth v. Grandison, supra at 138. Nor did they block or impede his path. See Commonwealth v. Sykes, 449 Mass. 308, 313, 867 N.E.2d 733 (2007). Accordingly, the judge's conclusion that the defendant was seized when the police left their vehicle and began to run after him was incorrect. See Commonwealth v. Battle, supra at 474-475 (no seizure where police stopped cruiser, got out, and pursued defendants into outer hallway of building).

Thereafter, a seizure did take place when the police grabbed the defendant as he was climbing the fence. By that time, "suspicious conduct [gave] the officer[s] reason to suspect that [he had] committed, [was] committing, or [was] about to commit a crime." Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974).

Police showed up at an apartment complex ("a high crime area") to execute a search warrant. Defendant saw the police coming and fled, and that was reasonable suspicion. State v. Cowling, 34 So. 3d 717 (Ala. Crim. App. 2009), Released for Publication April 30, 2010.* [How about fleeing so as not to get shot by a stray bullet? Wouldn't that be prudent and not reasonable suspicion?]

The government failed to show probable cause for issuance of the search warrant that the item sought (a hunting bow) was evidence of a crime. However, the search warrant was not “so lacking” in probable cause that the good faith exception did not apply. United States v. Ray, 2010 U.S. Dist. LEXIS 48369 (E.D. Mich. April 20, 2010)*:

The “so lacking” test is less demanding than the “substantial basis” test for determining the existence of probable cause so the mere lack of probable cause does not preclude the application of the good faith rule. Washington, 380 F.3d at 241. The present affidavit is not a “bare bones” affidavit that contains merely conclusions by the affiant.** D/Sgt. Gillet had gathered information from defendant and his wife, from the investigation of the break-in at Ed's Archery, and from the manufacturer of the Matthews FX bow. These facts, rather than conclusions, were included in the affidavit and presented to the judge who decided probable cause did exist. Also, the warrant had been approved by an assistant prosecutor before being submitted to the judge. The nexus between the Matthews FX bow and the location to be searched was very clear. A reasonably trained officer would not have known the search was illegal despite the decision by the judge to issue the warrant. The undersigned concludes that the facts in the affidavit, while perhaps not amounting to a substantial basis to issue the search warrant, were sufficient to not be so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The exclusionary rule need not be applied to these circumstances despite the lack of probable cause for the issuance of the search warrant.

** A bare bones affidavit is one that contains “suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge.” United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996).

In a civil case over an alleged knock-and-announce violation, the plaintiff loses because the government showed sufficient reasonable suspicion to not have to do so. Plaintiff also did not show that the handling of the raid was excessive force. Jama v. United States, 2010 U.S. Dist. LEXIS 48133 (W.D. Wash. May 17, 2010)*:

Plaintiff's claim of excessive force fails. Having breached Plaintiff's door and detained all the occupants, officers were reasonable in “exercis[ing] unquestioned command of the situation.” Summers, 452 U.S. at 703. They therefore handcuffed all the apartment's occupants and detained them in a single location, while they searched the apartment. Moreover, they summoned medics when Plaintiff complained of pain in her shoulder. Medics examined Plaintiff, but determined that she did not need treatment. (Jama Decl. 2 (Dkt. No. 43)). Officers were reasonable in maintaining total control of the situation while conducting the search, just as they were reasonable in breaching the door after eight to ten seconds.

Defendant’s stop also included keeping him near the car he was stopped in. United States v. Rush, 2010 U.S. Dist. LEXIS 47780 (D. Neb. March 4, 2010).*

To Avoid 'Plain View,' Investigators Need Blinders by Leonard Deutchman of The Legal Intelligencer (Law.com) discussing Comprehensive Drug Testing. The bottom line:

The prudent course for law enforcement to follow when officers come upon evidence of a different crime than the one under investigation is to cease searching and obtain a warrant for that new evidence. Law enforcement officers examining computers should follow that course unless exigencies prohibit it. If they do not, courts will fashion remedies and law enforcement will find those remedies unpalatable, whether they are the protocols of the 9th Circuit or old-fashioned suppression of evidence.

In Detroit, Family of Michigan child killed in raid sues police on CNN.com where the child was first burned by a flash bang device and then shot and killed by the SWAT Team. See also Detroit Free Press which also has plaintiff's counsel alleging a police coverup.

The police conducted an illegal search of defendant’s house even with a signed consent form, and they exploited the prior illegality. Essentially, this search was clearly and objectively illegal. State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010):

We conclude that the district court incorrectly relied on the fact that Gorup did not see, and the police did not confront him with, the evidence Simones discovered during his illegal search before Gorup gave his consent to search again. This was not an intervening circumstance. Accepting this reasoning would permit officers to validate illegal searches and seizures by simply never confronting suspects with evidence they have illegally discovered or seized before obtaining their consent to search again. Our conclusion is not altered because Simones advised Gorup that he could refuse consent to search.

Both the Seventh Circuit and the Ninth Circuit have rejected the argument that a signed consent form, which advises suspects of their right to refuse consent, is a sufficient intervening circumstance to purge the taint of an illegal action when it is obtained shortly after the illegal action: "This would effectively eviscerate the exclusionary rule's goal of deterring police misconduct because it would give officers who recently violated a suspect's constitutional rights a chance to grant themselves a free pass by uttering a few magic words and encourage--rather than discourage--investigatory shortcuts." And the Ninth Circuit further recognized that permitting such advisements to purge the taint of the prior illegal search would be contrary to the U.S. Supreme Court's rejection of an analogous argument in Brown v. Illinois.

. . .

The State argues that the detectives, while mistaken in their belief that their conduct was legal, did not engage in flagrant misconduct. But the State fails to recognize that flagrant misconduct includes investigatory conduct that results in an obvious Fourth Amendment violation.

[17] We agree with federal courts that have stated the purpose and flagrancy of the official misconduct is the most important attenuation factor because it is directly tied to the exclusionary rule's purpose--deterring police misconduct. ...

. . .

[19] In this case, the court's reliance on whether the detectives knew their conduct was illegal missed the mark because it applied a subjective standard. Obviously, if the detectives had admitted that they knew the search was illegal, their misconduct would have been flagrant. But, here, the detectives were never asked whether they subjectively believed the search was legal. And even if law enforcement officers do not subjectively know that their conduct is illegal, they are also chargeable with knowing when their conduct is an obvious violation of the Fourth Amendment under an objective standard of reasonableness.

. . .

Our adherence to solid legal moorings requires that we reverse the trial court's ruling. For 40 years, U.S. Supreme Court case law has prohibited this type of search. In 1969, the U.S. Supreme Court held in Chimel v. California that a search incident to arrest is limited to the arrestee's person and the area within his or her immediate control. The following year, the Court specifically held that a warrantless search of a house was invalid as a search incident to an arrest when the defendant was arrested on the front steps of his house. We applied both of these decisions in a 1982 case to conclude that a warrantless search of a house was illegal. Many courts have long held that an arrest must take place within a suspect's residence to justify the search of the residence as an incident to the arrest, even in cases preceding Chimel.

City ordinance says it permits entry for trash cleanup and enforcement. It is not unconstitutional on its face. “If action taken pursuant to that authority violates Fourth Amendment warrant requirements, the resulting criminal prosecution may be tainted, but that does not render the authorizing statute unconstitutional. See, e.g., Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967).” The entry to his property over the driveway was reasonable under United States v. Dunn. The garage was 30'-45' from the house, so that made it not curtilage. Nikolas v. City of Omaha, 605 F.3d 539 (8th Cir. 2010):

Applying the multi-factor test in United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), the district court concluded that Benson did not need a warrant to approach the garage and peer in its windows because the garage was not part of the curtilage of the residence some thirty to forty-five feet away. We agree with this conclusion, which is consistent with our decisions that have applied Dunn to other garages and barns. ... [¶] Moreover, even if Nikolas had an expectation of privacy in the garage warranting protection comparable to that afforded the curtilage of a residence, we conclude that Benson's minimally intrusive exterior search and look through the windows was constitutionally reasonable.

Arrest warrant with reasonable cause to believe that defendant was at home justified entry into his house under Payton. United States v. Fance, 2010 U.S. Dist. LEXIS 47951 (S.D. Fla. April 13, 2010).*

The officers encouraged the search by a private person, and that made the search a government search. “[C]ommon authority does not depend on ‘property rights,’ but derives from the ‘mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.’ United States v. Waller, 426 F.3d 838, 845 (6th Cir. 2005) (quoting United States v. Matlock, 415 U.S. 164, 171 (1974)).” The government failed in its burden of showing by a preponderance of the evidence that the person who consented had actual authority. He had no key to enter and was locked out. United States v. Van Dyke, 2010 U.S. Dist. LEXIS 47652 (W.D. Mich. May 14, 2010).

Former officer of a corporation that was searched under a warrant could not show a reasonable expectation of privacy (“standing”) in the place searched. He was a legal officer of the corporation, but he did not use the offices searched. United States v. Renzi, 2010 U.S. Dist. LEXIS 47621 (D. Ariz. April 16, 2010).*

Defendant was a passenger in a livery cab stopped in the Bronx for failing to signal, and the officer approached the cab and defendant allegedly denied ownership of the plastic bag in the back of the cab. The court does not credit the officer’s testimony because it was recollected only on the eve of the hearing on the motion to suppress over a year after the arrest. Also, defendant had a reasonable expectation of privacy in the back of the cab while he was sitting in it, as shown by his trying to hide the bag of drugs. United States v. Bulluck, 2010 U.S. Dist. LEXIS 47577 (S.D. N.Y. May 13, 2010):

As to the subjective prong of this analysis -- whether Bulluck by his conduct exhibited a subjective expectation of privacy -- this Court finds that he did manifest such a subjective expectation. According to both Officer Robinson and Officer Doyle, when the police approached the livery cab, Bulluck sought to stuff the plastic bag under the front driver's seat, presumably to hide the bag. Under such circumstances, the Second Circuit and other courts have found that defendants have demonstrated a subjective expectation of privacy.

Defendant consented to the entry of his house, and then he was arrested for smoking marijuana inside. United States v. Raymond, 2010 U.S. Dist. LEXIS 47942 (N.D. Okla. May 14, 2010).*

911 call with information from a relative of the defendant was entitled to more credibility. State v. Roybal, 2010 UT 34, 232 P.3d 1016, 656 Utah Adv. Rep. 63 (2010):

[*P18] However, many courts have also considered tips from family or friends to be of greater reliability because a family member or close friend often has a greater opportunity to observe the criminal behavior of the suspect and may have an incentive not to report the suspect due to family loyalty. [citing cases]

Defendant’s DOB on his DL didn’t match the computer check, which also showed he was a regular user of aliases. “By the time the warning was issued, however, the factors identified above had coalesced into reasonable suspicion of criminal activity, which justified additional investigation.” When the officer asked about consent to search, the way the defendant responded created more reasonable suspicion. (“No. I hate having officers in my child's face every time. Don't do this to me.”) A drug dog was called. United States v. Spence, 2010 U.S. Dist. LEXIS 47398 (M.D. Fla. April 19, 2010).*

“Consent to search may be in the form of conduct, gestures, or words.” “When Detective Ogg asked Gamez if he could check to see if he had anything illegal on him, Gamez raised his hands above his head and spread out his feet. Further, when Detective Ogg asked to search him a second time, Gamez responded the same way by raising his hands. We conclude that these actions conveyed Gamez's consent to search his person.” State v. Gamez, 34 So. 3d 245 (Fla. App. 2DCA 2010).*

The evidence showed that defendant’s wife did not have express authorization to consent to a search, so the government bore the burden of showing she had common authority, which it did. She shared the computer, it was located in a separate room they called the “computer room,” and her access was unlimited. United States v. Smith, 2010 U.S. Dist. LEXIS 47553 (D. Ariz. April 19, 2010).*

Defendant’s furtive movements during her stop justified reasonable suspicion for a frisk. State v. Morgan, 348 Ore. 283, 230 P.3d 928 (2010).*

The record supports the conclusion that defendant’s consent was voluntary. Defendant’s own suppression testimony did not even touch on consent. United States v. Clark, 377 Fed. Appx. 451, 2010 FED App. 0290N (6th Cir. 2010) (unpublished).*

District Court's denial of defendant's § 2255 was reversed. Defense counsel's choice to waive the motion to suppress because defendant was a borrower of the car he was driving was unreasonable because defendant showed that he had a reasonable expectation of privacy in the car. Johnson v. United States, 604 F.3d 1016 (7th Cir. 2010):

It is well-established that a driver of a borrowed vehicle may establish a reasonable expectation of privacy in a vehicle even though that driver is not the owner of the vehicle. See United States v. Garcia, 897 F.2d 1413, 1418-19 (7th Cir. 1990); United States v. Thomas, 447 F.3d 1191, 1197-98 (9th Cir. 2006); United States v. Soto, 988 F.2d 1548, 1553 (10th Cir. 1993); United States v. Miller, 821 F.2d 546, 548-49 (11th Cir. 1987). In determining whether such a non-owner may claim a privacy interest in a car that he is driving, courts consider two factors: whether the driver manifested a subjective expectation of privacy in the area searched; and whether that expectation of privacy is one that society would find objectively reasonable. United States v. Amaral-Estrada, 509 F.3d 820, 826-27 (7th Cir. 2007). Courts have repeatedly recognized the right of a driver to assert a Fourth Amendment right to be free from unreasonable searches of a vehicle where the driver is operating that vehicle with the permission of the owner. Garcia, 897 F.2d at 1418-19; Soto, 988 F.2d at 1553; Miller, 821 F.2d at 548-49; see also Thomas, 447 F.3d at 1197-98 (holding that even a driver not listed as an authorized driver for a rental car could nevertheless have an expectation of privacy if given permission to use the car by an authorized driver). In lawfully possessing and controlling the car, the driver has the right to exclude others which corresponds with an expectation of privacy. Similar to an owner driving the car, the authorized driver may have an expectation of privacy in that circumstance. The inquiry is a fact specific one, however, because as we recognized in Amaral-Estrada, some facts may eviscerate any implication of a subjective expectation of privacy. In that case, Amaral-Estrada was operating the car for the purpose of transporting contraband such as U.S. currency, and his expectation was that others would enter the car, taking and leaving items therein. Amaral-Estrada, 509 F.3d at 826-27. In those circumstances, there was no subjective expectation of privacy and therefore he could not challenge the search of the vehicle. Id.

As the driver of the vehicle borrowed from his relative, Johnson could have sought to establish that he had a reasonable expectation of privacy in the vehicle and that the search violated the Fourth Amendment. The facts relating to this issue are of course scarce in the record, because it was never explored at trial. Nevertheless, those facts that are present do nothing to cast doubt on the existence of that reasonable expectation of privacy and in fact support a finding that Johnson exercised possession and control of the vehicle in a manner establishing an objectively reasonable expectation of privacy. The evidence indicates that Johnson borrowed the vehicle from a relative and that he was the driver and sole occupant of the vehicle during the relevant time period. There is no indication that he opened the vehicle to general access by other individuals such as would defeat that expectation of privacy.

Reckless driving arrest gave “unqualified” right in the officer to search defendant’s wallet under Robinson. The officer also had probable cause to search the vehicle for evidence of drug possession based on a story from a CI. [There was also a jurisdictional argument that was rejected on state law grounds without citing Virginia v. Moore since the case was in federal court.] United States v. Popplewell, 2010 U.S. Dist. LEXIS 46964 (W.D. Ky. May 12, 2010).*

Defendants were dropped at a safe house for illegal aliens. While he spent the night, he did not show that he was an authorized guest of the host for Olson. United States v. Vasquez, 706 F. Supp. 2d 1015 (C.D. Cal. 2010).*

Defendant was arrested for alien smuggling in a hotel room that was not his and the hotel key he had on him did not work on the door, and a duffle bag was seized with him. The Border Patrol agents took the bag to the station and inventoried it there. It was reasonable to take the bag with them to search later. United States v. Ramirez, 378 Fed. Appx. 727 (9th Cir. 2010) (unpublished).*

Fourth Amendment challenge to plaintiffs’ arrests failed because there was probable cause. Dickerson v. Napolitano, 604 F.3d 732 (2d Cir. 2010).*

The 2008 Sixth Circuit opinion was GVR’d in light of Safford Unified School Dist. #1 v. Redding. On remand, the court finds Sixth Circuit law was settled at the time of the student strip search, and there was no qualified immunity. Knisley v. Pike County Joint Vocational School, 604 F.3d 977, 2010 FED App. 0137P (6th Cir. 2010):

However, this Circuit's law on student strip searches was clearly established as early as 2005, when we published our opinion in Beard. We read Redding to affirm our constitutional holding in Beard. Thus, because Beard remains good constitutional law and because that law was clearly established at the time of the strip search in this case, Redding does not require a result contrary to that reached in Knisley I. Cf. Foster v. Raspberry, 652 F. Supp. 2d 1342, 1352 (M.D. Ga. 2009). Our Circuit's clearly established case law on this issue put the school and its employees on notice that this search was unconstitutional, so defendants are not entitled to qualified immunity protection.

So, a SCOTUS case in point is not required--what is the case law in the circuit on the issue?

CNET News: Apple spurred police in iPhone probe:

REDWOOD CITY, Calif.--Apple pressed local police to investigate the loss of a next-generation iPhone a day after Gizmodo published photographs, telling investigators that the prototype was so valuable, a price could not be placed on it, according to court documents made public Friday.

In response to arguments made by CNET and other media organizations, a San Mateo judge unsealed documents (PDF) that provide a glimpse into an April 20 meeting between law enforcement and Apple lawyers and executives. They also highlight a madcap dash for evidence that evening that led a police detective to a gas station, a church, and a bush in Redwood City where a thumb drive and a 1GB Lexar Media compact flash card were allegedly hidden. (link in original)

Defendant did not sufficiently strive to withdraw the consent to search his vehicle. United States v. Gutierrez, 2008 U.S. Dist. LEXIS 113454 (D. Neb. May 6, 2008)*:

There is no evidence the defendant attempted to attract the attention of Deputy Maddux. Although, the defendant said, “no” and “sir,” the defendant did not raise his voice, attempt to exit the vehicle, roll down a window, honk the horn, or make any other gesture to gain attention. The defendant was under some obligation to make his intent to withdraw consent known to Deputy Maddux. See id. Failure of the defendant to do so does not render Deputy Maddux's conduct unconstitutional.

When the defendant tried to get out of the police car, the officer grabbed for his arm, so defendant knew that he was not free to leave. At the time, the officer did not have articulable reasonable suspicion. United States v. Moss, 2008 U.S. Dist. LEXIS 113459 (D. Neb. June 10, 2008).*

Defendant was stopped for window overtint, and he gave a false name to the police officer. The stop thus continued with probable cause. United States v. Barrera-Gonzalez, 2008 U.S. Dist. LEXIS 113453 (D. Neb. May 21, 2008).*

The affidavit for search warrant showed probable cause based on the totality of the facts and the officer’s experience. United States v. Capps, 2008 U.S. Dist. LEXIS 113476 (S.D. Ga. May 14, 2008).*

By the time claimant withdrew his consent, the officer had probable cause to believe evidence of likely crime was in the vehicle, and that independently supported the search. United States v. $57,610.00 in United States Currency, 2010 U.S. Dist. LEXIS 47116 (D. Neb. May 13, 2010).*

Defendant’s claim that he was arrested without the officer’s identifying himself was unsupported by the record, even if it would have provided a ground for relief. State v. Dewitt, 2010 Iowa App. LEXIS 375 (May 12, 2010).*

“[T]he defendant had neither an actual, subjective expectation of privacy nor an objective expectation of privacy in the recorded conversations” from the jail. He argued for a reduced, but reasonable, expectation of privacy, but failed. State v. Hill, 333 S.W.3d 106 (Tenn. Crim. App. 2010).*

In today's NYTimes: The Threat to Miranda:

For nearly nine years, the threat of international terrorism has fueled a government jackhammer, cutting away at long-established protections of civil liberties. It has been used to justify warrantless wiretapping, an expansion of the state secrets privilege in federal lawsuits, the use of torture, and the indefinite detention of people labeled enemy combatants. None of these actions were necessary to fight terrorism, and neither is a dubious Obama administration proposal to loosen the Miranda rules when questioning terror suspects and to delay presenting suspects to a judge.

Seven hour delay between alleged offense and officer obtaining a penile DNA swab did not show dissipation of the exigency. Time was still of the essence because of the evanescent nature of the evidence and its ability to disappear. Kaliku v. United States, 994 A.2d 765 (D.C. 2010):

We are convinced that the trial court properly denied the motion to suppress the penile swab evidence by applying the exigent circumstances doctrine to this case. In response to cross-examination questions, Officer Strong, who gave instructions to Mr. Kaliku and Mr. Matthews about how to obtain the penile swab samples, testified that he did not seek a court order or transport the appellants to a hospital where the sample could have been taken because "[e]vidence could have been wiped away ... [or] contaminated ... [or] rubbed away at any time." Because of the delicate nature of the DNA evidence in this case and the area in which it was located, it could easily have disappeared. Therefore, there was an urgency to its collection which justified the officer's reliance on exigent circumstances, rather than seeking a court order. Schmerber, supra, 384 U.S. at 770 ("The officer ... might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence") (internal quotation marks and citation omitted).

Officers did not violate the Fourth Amendment by seeing defendant through the open door and then entering. Oxner v. United States, 995 A.2d 205 (D.C. App. 2010)*:

These principles govern the present case. The police did not conduct an unreasonable search or seizure in contravention of the Fourth Amendment merely by knocking on the door of appellant's apartment and looking in from the hallway after the door was opened. At that point, before they crossed the apartment threshold without a warrant or consent, the officers saw a man matching the detailed description of the seller standing inside the apartment from which, only minutes earlier, the seller had emerged with the drugs. That correspondence of description, time and location provided at least reasonable suspicion to justify an investigative detention of the man--appellant--for purposes of a show-up identification (as the trial judge concluded), if not probable cause to arrest him then and there. Appellant therefore was in legal custody when he was shown to Officers Washington and Turner, and their identifications of him were not excludable as the fruit of the warrantless and nonconsensual entry into his home, even if that intrusion was not supported by exigent circumstances.

Game wardens approached a boat on Lake Lewisville TX to conduct a safety check because it had improper lighting. They smelled and observed smoking of marijuana on the boat, and they conducted a search of the boat’s glove compartment and defendant’s wallet for marijuana. The search of the wallet was valid because it was a place where marijuana could be hidden for purposes of the automobile exception, which applies to boats on water. Dahlem v. State, 322 S.W.3d 685 (Tex. App. — Ft. Worth 2010).

A truant officer saw a car parked in a handicapped spot without a placard or proper plate and the windows were fogged up. He parked behind the car and talked to the occupants, who were stoned. The driver had been “tweaking.” He asked for their names and ran them. An outstanding warrant came back. The stop was with reasonable suspicion. State v. Johnson, 156 Wn. App. 82, 231 P.3d 225 (2010).*

The search warrant, that this judge signed in the first place, adequately shows probable cause under Gates. United States v. Williams, 2010 U.S. Dist. LEXIS 46283 (E.D. Wis. January 27, 2010).*

Defendant was illegally stopped, but an outstanding warrant was found and he was arrested on that, and that supported the search of the car and attenuated the illegal stop. Hudson v. Michigan on applicability of the exclusionary rule supports this conclusion. State v. Grayson, 2010 Mo. App. LEXIS 586 (May 11, 2010)

We believe the principle set forth in Hudson has application here. Defendant's Fourth Amendment right to be free from unreasonable seizure was violated when he was stopped and detained without a reasonable, articulable suspicion that he was engaged in criminal activity. However, the methamphetamine evidence found on Defendant's person and in Officer Lambert's police cruiser was not found because of the invalid stop. Instead, this evidence was found after a search incident to Defendant's arrest on a valid warrant. The existence of that outstanding arrest warrant meant that Defendant could be seized and arrested at any time by any law enforcement officer. To our knowledge, an absence of reasonable, articulable suspicion necessary to support a Terry stop has never protected a person from being seized based on a valid arrest warrant.

[I don’t think so. Saying it doesn't make it so, Missouri. This case ignores the "but for" standard, and essentially likens it (without saying so, because that would be even more intellectually dishonest) to abandonment in flight from an illegal stop. So, an illegal stop is cured by finding evidence of crime, whether the defendant discards the drugs before arrest or after? I'm stunned.]

Defendant’s parole search was based on reasonable suspicion that defendant had missed parole meetings. The PO saw defendant driving his car, so he went to the house, and saw the car. Defendant would not answer the door, so the PO called for police backup. State v. Benavidez, 2010 NMCA 35, 148 N.M. 190, 231 P.3d 1132 (2010), Certiorari Denied, March 24, 2010, No. 32,254.*

New York Search Warrants and The Particularity Requirement by Michael Joseph on New York Criminal Lawyers Blog.

Epstein, Murphy, and Kerr On the Third-Party Doctrine by Orin Kerr on Lawkipedia:

Last year I published an article, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009), defending the widely-criticized Fourth Amendment rule that what a person discloses to a third party cannot retain Fourth Amendment protection.

The Berkeley Technology Law Journal has now published three essays on the third party doctrine at least in part in response to my article. First, Richard Epstein wrote an essay offering his own take on the third-party doctrine, and at times responds directly to some of my ideas. Second, Erin Murphy wrote a short reply that is largely a critical response to my article. Finally, the BTLJ published a short response by me to both Epstein and Murphy.

Texting while driving does not support a search incident. Proper purpose of traffic offenses in NY is to just issue a summons and let the driver go on his way, and that is state policy. This arrest was thus pretextual. People v. Abdul-Akim, 5518/09 (Kings Co. NY May 6, 2010):

Given that backdrop, the court concludes that the police conduct here constituted an unreasonable intrusion on privacy, even on the assumption that defendant Ayala committed the cell phone infraction. There was no need to arrest defendant Ayala. Issuance of a citation was eminently practicable, for defendant Ayala had numerous items of identification — and, of course, a valid license. Beyond that, the back seat passenger, Brown, was licensed, and could have driven the car had defendant Ayala not been able to. Moreover, the choice to arrest defendant Ayala was accompanied by a decision to seize his automobile, and ultimately to inventory all its contents. Even though the arrest was authorized by statute, the disproportionate nature of the police response to a supposed cell phone violation is apparent. That police response was unreasonable. [¶] A custodial arrest may not be employed as a pretext to conduct a search.

NYLJ article here.

Motion to suppress granted. Officers created their own exigency for this entry by approaching the property in the first place. They had no warrant. United States v. Willis, 711 F. Supp. 2d 683 (E.D. Tex. 2010), Adopted by, Objection overruled by, Findings of fact/conclusions of law at 2010 U.S. Dist. LEXIS 45905 (E.D. Tex., May 10, 2010):

Turning to the present case, the Court finds that if exigent circumstances existed, the exigency was caused by the officers' conduct. Despite somewhat contradictory testimony, the Court credits the officers' belief they were in danger when positioned on Defendant's property. See Rico, 51 F.3d at 501 (finding it reasonable to believe officers were in danger when standing in front yard and residence's occupants were thought to be armed). Based on the officers' testimony, however, the Court fails to find any conduct or actions on the part of individuals on Defendant's property that prompted the officers' decision to approach the residence. Compare id. at 505-06 (finding suspects' actions created exigent circumstances justifying officers' approach of residence) with Vega, 221 F.3d at 800 (finding officers' approach of residence not justified "by an absence of time to secure warrant or by any other reasonable predicate"); Munoz-Guerra, 788 F.2d at 298 (finding officers' unprovoked approach of residence created exigent circumstances). Rather, the officers' approach into a dangerous situation without a warrant was without a reasonable predicate. Moreover, with the tip as to Creson's whereabouts coming early in the afternoon on a weekday, officers had the opportunity to obtain a warrant prior to approaching the house. Compare Menchaca-Castruita, 587 F.3d at 294 (finding "'the amount of time necessary to obtain a warrant' likely would be minimal, as the incident took place early on a weekday afternoon - as opposed to late in the evening or on a weekend when officers might not have had ready access to a magistrate") with Rico, 51 F.3d at 503 (concluding officers' approach was reasonable because there was inadequate time to obtain a warrant). There appears to have been no reason why surveillance could not have been conducted while another officer quickly obtained a warrant. Indeed, the officers were able to obtain a warrant for Defendant's residence within two hours of executing the initial warrantless search, see DEF.'S MOT. at EX. 1, and, as Officer Wingo testified, the risk to the officers would not have increased had they waited for the warrant. See Munoz-Guerra, 788 F.2d at 298 (finding "no basis, on these facts, for believing that resort to a magistrate would have created risks of a greater magnitude than these, which are present in any case where the police has probable cause but delay pending receipt of a warrant").

Meeting with the defendant in his house was consensual and nonconfrontational. The defendant was asked to provide fingerprints, and he did. The officer asked about guns and the defendant admitted there were guns in the house. Some were locked in a gun safe for which he didn’t have the key. One was in a soft case which he showed the officer which was not seized at the time. United States v. Alcorn, 2010 U.S. Dist. LEXIS 45817 (E.D. Mo. April 15, 2010).*

Defendant got out of his car and was walking when the officer approached him to talk. He was stopped by the officer. The officer, however, had reasonable suspicion that defendant was involved in a robbery, and the stop continued lawfully. United States v. Rush, 2010 U.S. Dist. LEXIS 46824 (D. Neb. April 9, 2010).*

Officers had probable cause based on the smell of burnt marijuana and then a dog alert. Defendant also consented orally and in writing. United States v. Bianchini, 2010 U.S. Dist. LEXIS 45699 (E.D. Tenn. April 19, 2010).*

Defense counsel was not ineffective in challenging defendant’s stop because there was reasonable suspicion. Jones v. United States, 2010 U.S. Dist. LEXIS 46587 (E.D. Tenn. May 11, 2010).*

On summary judgment, the defendant’s Art. III standing was not shown, but he gets a break to try again because the Ninth Circuit’s law isn’t clear. United States v. $133,420.00 in United States Currency, 2010 U.S. Dist. LEXIS 46863 (D. Ariz. April 9, 2010):

Louis' responses to the interrogatories merely assert bald, unexplained ownership and possessory interests in the currency. There is no explanation of how or why he acquired the funds. While he is entitled to invoke Fifth Amendment protection against self-incrimination, he does so at the peril of failing to produce sufficient evidence of standing to contest this civil proceeding. Louis has produced no evidence corroborating his claims other than the fact that the currency was in his possession at the time it was seized. Mere unexplained possession does not establish a possessory interest even at the pleading stage, and it is insufficient to create a genuine issue of material fact as to ownership.

The stop of defendant’s car was justified, so the consent that came later was valid. United States v. Nero, 2010 U.S. Dist. LEXIS 46755 (S.D. Ga. April 2, 2010).*

On YouTube.com: Fox News Freedom Watch's Judge Napolitano Shreds Columbia, MO SWAT Raid.

(Too bad judges and their law clerks don't read this blog, because they prefer the ivory tower to real life.)

Defendant was stopped after officers surveilling a head shop, and he produced a still wrapped pipe. This was insufficient to justify a search incident of his car under Gant. Even if Gant applied, the court would not make the good faith exception to this warrantless search retroactive. People v. McCarty, 229 P.3d 1041 (Colo. 2010).

Under Gant, a search of a glove compartment in a car is unlawful where the driver was neither within reaching distance of the vehicle’s passenger compartment and there was no indication that any evidence of the offense of arrest would be found in the car. Even if the driver disclaimed any possessory interest in the glove compartment, his possessory interest in the car itself prevents an officer from entering the vehicle in order to access the glove compartment within it. Perez v. People, 231 P.3d 957 (Colo. 2010):

Even if we assume, without deciding, that Perez lacked a possessory interest in the glove compartment, such a conclusion would be irrelevant. Both sides in this case agree that Perez had a possessory interest in the car and therefore had standing to protest the search of the car itself. As we have explained above, Gant leaves the officers in this case with no lawful basis to search the vehicle without a warrant. Because the officers could not access the glove compartment without first gaining access to the car itself, the police could not lawfully access the glove compartment. This is the necessary and unavoidable result of Gant. Unless some other established exception to the warrant requirement applies, a container cannot be accessed if the vehicle containing it cannot be searched under Gant. See, e.g., Pineda v. People, 2010 Colo. LEXIS 359, 08SC756 (Colo. May 10, 2010). No other exception to the warrant requirement was argued in this case.

The seizure of defendant’s laptop computer in this child pornography case was reasonable under the plain view doctrine. The child’s information said that there was child pornography on the computer and it needed to be seized rather than left behind because defendant could alter it if he learned about the investigation before the search warrant was issued. Also, the child had free access to the computer, and she could consent to its search and seizure. There was a little bit of plain view search of the computer too, but it was not outcome determinative. United States v. Vallimont, 378 Fed. Appx. 972 (11th Cir. 2010) (unpublished):

First, we reject Vallimont's claim that the seizure of his computer was unconstitutional. Seizure of a container, pending issuance of a warrant to examine its contents, is permitted where there is (1) probable cause to believe that it holds contraband or evidence of a crime and (2) if the "exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present." United States v. Place, 462 U.S. 696, 701, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). ...

Coincidentally, today's The Legal Intelligencer: Do Computer Searches Distort the 'Plain View' Doctrine? by Leonard Deutchman, analyzing four computer search cases:

But application of the plain view exception when computers are being searched poses challenges to the doctrine.

The requirement that the viewer must be near what is being viewed imposed physical restrictions to the doctrine, but with a computer search, those physical limitations disappear.

The officer who has stopped the driver for ignoring the stop sign could view only the area immediately around the car, posing no worry to the courts later reviewing the officer's conduct that the officer could have somehow easily segued into searching the driver's bedroom miles away, for example. Given, however, the hundreds of thousands of files that can easily be stored on a computer, and the manner in which a computer search is conducted -- looking for keywords, for example, across all files -- a computer search is akin to an officer walking into the foyer of a mansion and being able to see in plain view every person and object in the entire structure. Under those circumstances, a search for files pertaining to one crime will often, and easily, yield evidence of wholly unrelated crimes.

How, then, should the plain view doctrine apply to computer searches?

Different courts have provided different answers.

ABAJ: Biometric ID Card Might Be Able to Pass Muster in the Supreme Court, Debra Cassens Weiss, referring to a UPI.com article:

UPI considers the question and says the justices would likely turn down a constitutional challenge. The story cites the Supreme Court’s 6-3 decision in 2008, Crawford v. Marion County Election Board, in which the justices upheld a law requiring voters to present government-issued IDs. The lead opinion by Justice John Paul Stevens said the law was supported by the valid interest of protecting the electoral process.

The arresting officer in this case just is not believable that he did not stop the defendant for pretextual reasons. United States v. Padilla, 2010 U.S. Dist. LEXIS 45708 (D. Ariz. March 3, 2010)*:

The Government need only show one traffic violation for a legitimate pretextual stop. As discussed above, there was no license plate light violation, speed violation, crossing the fog line violation or failure to pull over in response to the emergency lights. That Defendant Padilla in fact violated the seatbelt requirement is undisputed. What is disputed is whether Officer Henry knew about the violation before or after the stop. The timing of his knowledge rests solely on Officer Henry's credibility.

As the investigating officer in this case, Officer Henry has an interest in the outcome of the case. As discussed in detail above, in many instances, Officer Henry's testimony concerning the license plate light, speeding, crossing the fog line and failure to pull over was not credible and not consistent with his prior written and verbal statements and not consistent with the evidence. On those four violations, Officer Henry simply was not credible.

When Officer Henry testifies about the seatbelt, his credibility does not start with a clean slate. Rather, Officer Henry's willingness to stray from the facts on these related issues leads to the conclusion that he would be similarly unconstrained by the actual facts when testifying about the seatbelt. This Court finds that Officer Henry's testimony was not credible. As such, the Government has not satisfied its burden of proof that Officer Henry observed the seatbelt violation, the silhouette of the belt hanging vertically, prior to stopping the vehicle driven by Defendant Padilla.

The Magistrate Judge recommends that the District Court grant the motion to suppress evidence based on lack of reasonable suspicion for the traffic stop. Officer Henry did not have reasonable suspicion that any criminal activity was afoot when he stopped the Defendants' vehicle. Furthermore, Officer Henry's assertions that he stopped the Defendants' vehicle for independent traffic violations are not credible and are not supported by the evidence presented at the hearing.

When officers received no response to their knock-and-talk at the front door, they could go to the back door without violating cartilage. A burn barrel in the back yard was seen, and a search warrant was obtained. United States v. Rothermich, 2010 U.S. Dist. LEXIS 45798 (E.D. Mo. April 30, 2010):

To the extent that the defendant claims that the officers violated his Fourth Amendment rights by entering onto his property to conduct their "knock and talk" procedure, such claim has no merit. "Law enforcement officers may encroach upon the curtilage of a home for the purpose of asking questions of the occupants." United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir.), cert. denied, 534 U.S. 866 (2001); United States v. Raines, 243 F.3d 419, 421 (8th Cir. 2001). Nor does the fact that the officers walked to the rear of the structures in order to locate occupants of the property constitute any Fourth Amendment violation. United States v. Anderson, 552 F.2d 1296, 1300 (8th Cir. 1977)("We cannot say that the agents' actions in proceeding to the rear after receiving no answer at the front door was so incompatible with the scope of their original purpose that any evidence inadvertently seen by them must be excluded as the fruit of an illegal search.").

[This just smells wrong because it is too convenient to make it up.]

Habeas petitioner’s Fourth Amendment claim was fully and fairly considered in the state court, so federal court has no jurisdiction to decide it. Mason v. Allen, 605 F.3d 1114 (11th Cir. 2010).*

The plaintiff sought return under Rule 41 of surreptitiously recorded videotapes of adults in his bar in private areas because they were seized during a search but not used as evidence in his case. The district court made no findings as to whether the female subjects of the videos had a reasonable expectation of privacy where they were recorded. Remanded for findings. The court discusses the law of video voyeurism and the reasonable expectation of privacy. Savoy v. United States, 2010 U.S. App. LEXIS 9652, 2010 FED App. 0131P (6th Cir. May 12, 2010),* prior opinion affirming conviction, United States v. Savoy, 280 Fed. App’x 504, 506 (6th Cir.), cert. denied, 129 S. Ct. 742 (2008).

Defendant’s arrest for carrying a weapon without a carry permit was based on probable cause, and that supported a further search of the car. United States v. Foster, 2010 U.S. Dist. LEXIS 46234 (D.Minn. April 9, 2010).*

A 17 day delay between obtaining the search warrant and execution of the search warrant did not make the warrant stale because of evidence of ongoing sales from the premises. The warrant could have become stale, but it did not because probable cause was ongoing. "To protect the CI, the police delayed serving the search warrant." Ingle v. State, 2010 Ark. App. 409 (May 12, 2010):

We hold, therefore, that the totality of the circumstances establishes that the warrant here was not stale when it was executed. It was executed seventeen days after it was issued, and eighteen days after a controlled buy occurred at the premises. Further, even though it was not included in the affidavit, the CI told the affiant that the residence “was one of his regular stops” and that he had bought drugs there many times[.]” Therefore, it was not error for the circuit court to determine that the warrant was timely executed two-and-one-half weeks after its issuance, given evidence of the controlled buy and of other drug purchases occurring over a period of time.

Recorded telephone calls with the CI in this case were properly admitted into evidence, and they were not obtained by a violation of the Fourth Amendment. Commonwealth v. Brown, 456 Mass. 708, 925 N.E.2d 845 (2010).*

Removing defendant’s wallet from his pocket was reasonable were there was reasonable suspicion. It is possible a knife could have been hidden in the wallet. Currency sticking out was in plain view and there was reason to seize it where defendant was a suspect in a robbery. United States v. Muhammad, 604 F.3d 1022 (8th Cir. 2010).*

Search warrant did not list items to be seized, but the affidavit did, and the warrant here referred to the affidavit. Even so, the good faith exception would save this search. State v. Maxwell, 38 So. 3d 1086 (La. App. 1st Cir. 2010).*

Parent of adult child living at home had apparent authority to consent under the “My house, my rules” doctrine [my words] of third party consent. United States v. Zarabozo, 378 Fed. Appx. 939 (11th Cir. 2010) (unpublished):

We conclude the district court did not err in ruling the evidence taken from Zarabozo's bedroom was admissible, because Zarabozo's mother had apparent authority to consent to the search of his room that led FBI agents to the probable cause they used to obtain a warrant. Zarabozo's mother told FBI agents she was the head of the house and that by living in her house, Zarabozo had agreed he would abide by her rules and let her be "in his business."

Zarabozo shared the bedroom with his thirteen-year-old stepsister. Zarabozo's mother told the FBI agents she often went into the room to clean and straighten it. He kept the door to the room ajar. His mother repeatedly entered and exited Zarabozo's bedroom, retrieving and replacing various items, during her interview with the FBI agents. Zarabozo's mother opened Zarabozo's mail and told FBI agents Zarabozo gave her the code to the lockbox for his gun, which he kept in his room. His mother made no mention that Zarabozo paid her $ 300 per month in rent. The district court found Zarabozo's mother's voluntarily showed the FBI agents into Zarabozo's room and opened the lockbox for them without being asked. All of these events made it appear that Zarabozo's mother exercised authority over Zarabozo's space and belongings.

Curfew violation was reasonable suspicion. State v. Wise, 2010 Ohio 2040, 2010 Ohio App. LEXIS 1674 (5th Dist. May 6, 2010):

[*P18] In the instant case, the officer saw a group of individuals who appeared to be young in age walking in the street rather than on the sidewalk at 1:15 a.m. He recognized one member of the group and knew that individual to be under the age of 18 and therefore out after curfew. When the group saw the officer, they began walking away at a fast pace. The officer had reasonable suspicion to stop the group and investigate further.

The officer parked near defendant and walked up. The patrol car’s lights were not on. The interaction with defendant was consensual because he was not commanded to stop. State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010):

Rennerfeldt approached Casillas on foot. He did not turn on the overhead lights of his police cruiser. Rennerfeldt did not interfere with Casillas' prior activity of sitting in the truck. Instead, he asked for identification and posed a few questions to Casillas. We have explained that a seizure does not occur simply by reason of the fact that a police officer approaches an individual, asks him or her for identification, and poses a few questions to that individual, so long as the officer does not indicate that compliance with his or her request is required and the questioning is carried on without interrupting or restraining the person's movement.

In a Franks challenge, the court should not look beyond the affidavit and what it shows. A CD was proffered into evidence which the court did not listen to because it went beyond the scope of the court’s standard of review. United States v. Buis, 2009 U.S. Dist. LEXIS 126967 (E.D. Tenn. May 8, 2009):

Generally, in determining the sufficiency of the search warrant affidavit, the Court is "concerned only with the statements of fact contained in the affidavit." United States v. Hatcher, 473 F.2d 321, 323 (6th Cir. 1973); see also Whiteley v. Warden, 401 U.S. 560, 565 (1971). In reviewing the propriety of the search warrant, the Court considers "the evidence that the issuing magistrate had before him only 'to ensure that [he] ha[d] a substantial basis ... for concluding that probable cause existed.'" United States v. Jones, 159 F.3d 969, 973 (6th Cir. 1998) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)) (alterations in original). In other words, the Court does not look beyond the four corners of the affidavit in assessing whether it provides probable cause.

Forfeiture plaintiff had a reasonable expectation of privacy in a trailer parked on the street. Brownstein v. Doe, 2010 U.S. Dist. LEXIS 45507 (E.D. N.Y. May 5, 2010).*

Defendant’s Fourth Amendment claim in his § 2255 case was “baseless.” Moreover, he was actively cooperating with the government, and it is highly unlikely that he would have even filed a motion to suppress. United States v. Allen, 2010 U.S. Dist. LEXIS 45098 (E.D. La. March 30, 2010).*

On reconsideration from Kindhearts for Charitable Humanitarian Dev. v. Geithner, 647 F. Supp. 2d 857 (N.D. Ohio 2009), posted here, the indefinite asset seizure by Office of Foreign Asset Control is not a reasonable seizure, and the plaintiff must have a Fourth Amendment remedy, and this is a difficult question. Giving a post-deprivation remedy satisfies the Fourth Amendment. Kindhearts for Charitable Humanitarian Dev. v. Geithner, 710 F. Supp. 2d 637 (N.D. Ohio 2010):

It is the role of the judiciary, however, to ensure the protection of individual rights. E.g., Trop v. Dulles, 356 U.S. 86, 103 (1958) ("The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away [fundamental rights] ..., the safeguards of the Constitution should be examined with special diligence."); accord Brill v. Hedges, 783 F. Supp. 340, 346 (S.D. Ohio 1991) ("[T]he judiciary's role [is to serve] as a protector of individual rights and freedoms.").

This is true in even the most dire of circumstances. See Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion) ("We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."); see also Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426 (1934) (holding that "even the war power does not remove constitutional limitations safeguarding essential liberties").

This tension between assuring security and protecting liberty is never-ending, and has been present since the founding of our Republic: "Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency." Blaisdell, supra, 290 U.S. at 425.

The question is probable cause to believe that the OFAC laws are being violated, not evidence of a crime, and a post-deprivation finding of probable cause as a remedy would satisfy reasonableness:

I conclude that the government need not show probable cause to believe that evidence of a crime will be found. The government must instead show that, at the time of the original seizure, it had probable cause -- that is, a reasonable ground -- to believe that KindHearts, specifically, was subject to designation under E.O. 13224 § 1.

I further find that if the government can show probable cause for the original seizure, even at this very late date, the post-hoc judicial finding of such cause remedies the Fourth Amendment violation.

. . .

If the government shows probable cause for the seizure, even at this very late date, then the Fourth Amendment violation will be remedied and thus harmless, and the government can retain the plaintiff's assets pending completion of the administrative SDGT process.

A police officer responding to a domestic call comes to defendant’s house and demands entry with gun drawn. Defendant says no, what about a warrant? The officer comes in anyway. The defendant’s obstruction conviction is reversed and dismissed because the officer was, at most, barred from entry only for seconds. The defendant did not raise this as a Fourth Amendment issue so that was not decided, and the court didn’t exactly decide that invoking one’s constitutional right to ask for a warrant to enter the house is not obstruction of justice. Kee v. City of Hampton, 24 VLW 679 (November 10, 2009) (unpublished).* Hat tip to Virginia Family Law Appeals: Kee v. Hampton: Using 4th Amdt. Rights Isn't Obstruction of Justice.

In a § 2254 habeas case, the Eleventh Circuit remanded for a hearing on the merits of a Fourth Amendment claim to decide whether defense counsel was ineffective in not pursuing his Franks challenge. Still applying the AEDPA standard of review, the state court’s findings have support in the record, such that they did not act unreasonably in deciding that he did not state a Franks claim. Hearn v. Sec'y of Corrections, 2010 U.S. Dist. LEXIS 45209 (M.D. Fla. April 13, 2010).*

Picture This: Body Worn Video Devices ('Head Cams') as Tools for Ensuring Fourth Amendment Compliance by Police by David A. Harris of the University of Pittsburgh School of Law forthcoming in the Texas Tech Law Review.

Abstract:

A new technology has emerged with the potential to increase police compliance with the law and to increase officers’ accountability for their conduct. Called “body worn video” (BWV) or “head cams,” these devices are smaller, lighter versions of the video and audio recording systems mounted on the dash boards of police cars. These systems are small enough that they consist of something the size and shape of a cellular telephone earpiece, and are worn by police officers the same way. Recordings are downloaded directly from the device into a central computer system for storage and indexing, which protects them from tampering and assures a defensible chain of custody.

This article explores the good that BWV can do for both the police and members of the public, particularly how these recordings might play a role in assuring that officers comply with Fourth Amendment search and seizure rules. Field tests of BWV in Britain have shown that police used the devices to keep records and record evidence, and that the devices were a uniquely effective bulwark against false complaints. Coupled with a requirement that every citizen encounter involving a search or seizure be recorded, and a presumption that without a recording the factfinder must draw inferences in favor of the defendant, BWV can help resolve disputes over search and seizure activities, and give the public a heretofore unattainable degree of assurance that police officers enforcing the law obey it as they do so. While BWV is certainly no panacea, and presents significant issues of tampering and reliability, it can help bring accountability and rule following to an aspect of police behavior that has largely proven resistant to it.

Hat tip to Crim Law Prof blog.

Defendant had standing in the residence of his girlfriend even though he was married to somebody else and he was not an overnight guest; he had a key and he paid her bills. At the suppression hearing, she “testified to the intimate nature of her relationship with Defendant Watson, including the frequency of his visits and the typical duration of his stay with her.” United States v. Watson, 2010 U.S. Dist. LEXIS 44777 (E.D. Pa. May 6, 2010).

The Court of Appeals held that the complete search of defendant’s car’s passenger compartment was valid under the search incident doctrine. After that, Gant was decided, and the search incident rationale for a complete passenger compartment search as a matter of course was invalid. Because there was probable cause, however, the court finds that the inventory exception likely applies, so the case is remanded to the trial court for a new suppression hearing. Pineda v. People, 230 P.3d 1181 (Colo. 2010):

The inventory-search exception allows officers to conduct an administrative inventory search of a vehicle after it has lawfully been taken into custody, provided the search is conducted in accordance with the policies and procedures of the police department and is not merely a pretext for an investigatory search. See Colorado v. Bertine, 479 U.S. 367, 372 (1987); People v. Hauseman, 900 P.2d 74, 79-80 (Colo. 1995). The undisputed evidence in this case demonstrates that the officers had ample probable cause to stop and arrest Pineda and that they followed departmental policies and procedures in taking the vehicle into custody and inventorying its contents. Therefore, we hold that the officers conducted a valid inventory search of Pineda's vehicle. Accordingly, we affirm the court of appeals on different grounds. We remand this case to that court so that it may be returned to the trial court for proceedings consistent with this opinion.

Defendant did not file a motion to suppress before trial, and he objected when the state offered it into evidence. He waived the motion to suppress by not pursuing it before trial. Helms v. State, 926 N.E.2d 511 (Ind. App. 2010).*

The question at the time of arrest is probable cause, not convictability. The fact defendant was acquitted on the underlying traffic offense does not mean that there was no probable cause. State v. Zervos, 2010 Ohio 1998, 2010 Ohio App. LEXIS 1663 (6th Dist. May 7, 2010).

The continuation of defendant's stop was not consensual, and the officers said so. Also, the CI was not corroborated, so there was no probable cause. State v. McCord, 2010 Ohio 1979, 2010 Ohio App. LEXIS 1637 (8th Dist. May 6, 2010)

[*P12] In the case before us, the stop was not consensual. At the suppression hearing, Officer Taylor testified that although the Hummer was not "pinned" in, there was no question the occupants of the car were not free to leave. Where it is not a consensual encounter, the Fourth Amendment requires that the officers possess a reasonable and articulable suspicion that criminal activity is occurring. In this case, the officers' suspicion was based on an anonymous tip as well as knowledge of a prior conviction.

. . .

[*P17] We do not mean to suggest that McCord and the men with him that day are necessarily innocent of the charges brought against them by the state. Nor do we fail to appreciate the pressure the police are under to keep our streets safe and crime-free. Quite the contrary. Their search uncovered heroin, ecstasy, and cocaine; the officers knew of an earlier arrest McCord had for a drug-related offense. Nevertheless, the Fourth Amendment does not permit officers to conduct searches and seizures on any person known to have a criminal record without corroborating information that that same person is presently involved in criminal activity.

When stopped, defendant said that he had the baseball bat in the backseat for protection. That was sufficient to look for a weapon. He was frisked and a folding knife was found. The officer asked if he had “anything else on his person.” “The defendant stated, ‘To the best of my knowledge, I don't have anything.’ Wilmot replied, ‘What does that mean?’ and the defendant said, ‘There shouldn’t be anything.’ ... Wilmot asked again, ‘What, if anything, you know, do you have on you?’ The defendant then admitted that he had drugs and produced two diazepam tablets wrapped in cellophane from the coin pocket on his right hip.” The diazepam was lawfully found. State v. Michelson, 160 N.H. 270, 999 A.2d 372 (2010).*

An FBI Agent trolling in a Yahoo! child pornography chat room was able to tell that "markie_zkidluv6" had uploaded child porn. An administrative subpoena was served on Yahoo! for the subscriber information, and information was used to get a search warrant for Bynum's a/k/a "markie_zkidluv6"'s house. There manifestly is no reasonable expectation of privacy in one's subscriber information with an internet service provider. Also minor date discrepancies in the affidavit for the search warrant were not material to the finding of probable cause from the fact of the uploads to his IP address. United States v. Bynum, 604 F.3d 161 (4th Cir. May 5, 2010), certiorari denied 2010 U.S. LEXIS 4928 (U.S. June 14, 2010):

First, Bynum contends that the Government’s use of "secret" administrative subpoenas violated his Fourth Amendment rights. He offers no case law supporting this theory, and we have found none. "The ‘touchstone’ of Fourth Amendment analysis is whether the individual has a reasonable expectation of privacy in the area searched ...." [United States v. Breza, 308 F.3d 430,] at 433 (quoting Oliver v. United States, 466 U.S. 170, 177 (1984)). In order to demonstrate a legitimate expectation of privacy, Bynum "must have a subjective expectation of privacy, and ... that subjective expectation must be reasonable." United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997).

In this case, Bynum can point to no evidence that he had a subjective expectation of privacy in his internet and phone "subscriber information"—i.e., his name, email address, telephone number, and physical address—which the Government obtained through the administrative subpoenas. Bynum voluntarily conveyed all this information to his internet and phone companies. In so doing, Bynum "assumed the risk that th[os]e compan[ies] would reveal [that information] to police." Smith v. Maryland, 442 U.S. 735, 744 (1979). Moreover, Bynum deliberately chose a screen name derived from his first name, compare "markie_zkidluv6" with "Marques," and voluntarily posted his photo, location, sex, and age on his Yahoo profile page.

Even if Bynum could show that he had a subjective expectation of privacy in his subscriber information, such an expectation would not be objectively reasonable. Indeed, "[e]very federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation." United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (collecting cases).

No case yet disagrees, and, in light of Smith v. Maryland, there won't be soon. The opinion does not reveal how the issue was presented to see if SCOTUS will be asked for review.

In searching for junk cars, the Virgin Islands Waste Management Authority entered defendant’s backyard to search and photograph. The entry into the backyard, despite the observations from off the property, was without a warrant and unreasonable. Simmonds v. People, 53 V.I. 549 (2010):

But the salient question in this appeal does not concern the observations the officers made from the public road or from Simmonds’ front yard. Rather, at issue is the evidence gathered from Simmonds’ back yard: the observations the officers made after they entered the back yard and the photographs they took from that vantage point. Even if the officers, while standing in the public road or in Simmonds’ front yard, observed violations situated within Simmonds’ back yard, those observations would have merely provided probable cause, not authorization for a warrantless search of the curtilage. See United States v. Whaley, 781 F.2d 417, 419 (5th Cir. 1986) (“the mere observation of [marijuana plants] from the road or driveway would not justify entry into the home or curtilage to search or to seize property found there. That would have given probable cause to support a warrant.” (citation omitted)); Morgan v. State, 645 S.E.2d 745, 748) (Ga. Ct. App. 2007) (“the officer's initial plain view observations from the driveway and road, in and of themselves, did not authorize the officer to then make a warrantless entry into Morgan’s backyard-a location undisputably [sic] within the curtilage surrounding the residence-and take steps culminating in the dogs there being seized and removed from the property.”).

Furthermore, even if the officers were armed with probable cause based on their permissible observations from outside the curtilage of waste in Simmonds’ back yard, a warrantless search or seizure within the back yard was “presumptively unreasonable” absent Simmonds’ consent or exigent circumstances. Karo, 468 U.S. at 717; 104 S.Ct. at 3304 (listing certain automobile searches, consensual searches and exigent circumstances as examples of the limited exceptions to the warrant requirement recognized by the Supreme Court); .... In this case, it is undisputed that Simmonds did not consent to the officers entering his back yard. In fact, prior to the warrantless entry, Simmonds told Officer Husband to leave his property. Thus, the warrantless entry into Simmonds back yard could only have been justified, if at all, by exigent circumstances. [And there wasn’t any.]

Defendant’s failure to allege he had standing in the place searched was fatal to his suppression motion. People v. Scully, 2010 NY Slip Op 3799, 14 N.Y.3d 861, 903 N.Y.S.2d 302, 929 N.E.2d 364 (2010).

Defense counsel could not be ineffective for not moving to suppress a search of defendant’s sister’s home because defendant did not show any standing there. People v. Peele, 2010 NY Slip Op 3804, 73 A.D.3d 1219, 900 N.Y.S.2d 776 (3d Dept. 2010).

Officer had reasonable suspicion for detention of nervous defendant towing a boat from Texas to Tennessee, ostensibly to see his mother for Mother’s Day, and he was stopped minutes before midnight Mother’s Day in Louisiana. Consent included the boat, and marijuana was found. State v. Snelling, 36 So. 3d 1060 (La. App. 5th Dist. 2010).*

Plaintiff’s suit against the state for a wrongful parole search fails because the parole officer had the authority to do what he did. Cutler v. McGee, 38 So. 3d 481 (La. App. 3d Cir. 2010).*

Motion to reconsider motion to suppress is granted and motion to suppress granted. The court erroneously put the burden of proof on the defendant, at the government’s request, to prove that the warrantless search was unreasonable. United States v. Tompkins, 2009 U.S. Dist. LEXIS 126944 (C.D. Cal. November 2, 2009):

It is fundamental to our system of criminal justice that the Government must justify the searches or seizures it conducts, either by seeking a warrant based upon probable cause or by proving that it has acted lawfully pursuant to an exception to the warrant requirement. Requiring the defendant whose Fourth Amendment rights have allegedly been violated to prove the absence of a lawful basis for the search or seizure would flip the Fourth Amendment on its head.

Bearing this fundamental principle in mind, the Court must now answer the question set forth at the outset: on a motion to suppress evidence arising from a Terry stop where the evidence is in equipoise, who bears the ultimate burden of proof? The Government. It is the Government's burden to prove by a preponderance of the evidence that the officer conducting the stop had a reasonable and articulable suspicion that the defendant was engaged in criminal activity. See Terry, 392 U.S. at 30; see also United States v. Matlock, 415 U.S. 164, 177 (1974) (referring to the government's burden on a motion to suppress as a preponderance). In other words, in the event of a tie, the defendant must prevail.

The Court therefore concludes that the Government has not satisfied its burden of establishing that it is more probably true than not that Defendant failed to stop at the stop sign. As a result, Officer Vazquez's seizure of Defendant was not justified.

Practice Pointer: Every once in a while, the government leads a court into error by arguing the wrong burden of proof--see e.g., here and here. Aside from the fundamental mistake is the problem with a judge or an appellate panel being so government-oriented that they fall for it without thinking. Consequently, it underscores that defense counsel cannot assume the court knows what the burden of proof is. Therefore, in every case, if the burden is on the government, say so in the motion to suppress and cite something.

Patdown of female breasts was unreasonable. Overly intensive search was suppressed. State v. Williams, 312 S.W.3d 276 (Tex. App.—Houston (14th Dist.) 2010):

Here, the trial court concluded that Officer Duncan would have been justified in conducting a pat-down of Williams. The distinction between Sheppard and Carmouche and the case at bar is that Officer Duncan did not conduct a Terry pat-down before employing more intrusive means of searching Williams. If a pat-down had been conducted, and if a weapon or other contraband had been detected as a result, then either Officer Duncan or the female officer could have attempted to extract the item or could have conducted a more intrusive search.

Additionally, although Officer Duncan had been told that Williams had a knife, he was not told, nor was there any other indication, that Williams had hidden the knife in her bra. Furthermore, there is nothing to show that a pat-down would have been dangerous or ineffective. Officer Duncan stated that he did not want to pat-down a female, but the State has not cited any authority to show that he was therefore justified in conducting a more intrusive search. And the "more than average" size of Williams's bust, as Officer Duncan described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search. See Balentine, 71 S.W.3d at 770. Because the State has not presented us with a situation justifying a search exceeding the scope of a pat-down, we cannot say the trial court abused its discretion in suppressing the evidence.

Officers had information a passenger was on the “FBI’s terrorist watch list,’ and that was reasonable suspicion to continue the stop. Finally, there was consent. United States v. Abdow, 2010 U.S. Dist. LEXIS 44582 (D. Minn. February 22, 2010).*

The stop of defendant’s car was with probable cause, as was the search. Defendant’s consent argument fails because the court finds he intended to consent, despite the language barrier. United States v. Valenzuela-Beltran, 2010 U.S. Dist. LEXIS 44490 (W.D. La. April 21, 2010).*

Information about controlled buy relayed to officer who stopped the car was sufficient for a stop. United States v. Garcia, 2010 U.S. Dist. LEXIS 44162 (D. Minn. March 22, 2010).*

In a Brooklyn search warrant sought by the Joint Terrorism Task Force, the items seized were all within the scope of the warrant. The government still has to show relevance at trial. United States v. Defreitas, 701 F. Supp. 2d 309 (E.D. N.Y. May 6, 2010),* prior opinion 701 F. Supp. 2d 297 (E.D. N.Y. 2010).

Officer had probable cause to search defendants’ vehicle, and the fact that it took place a couple of hours later at the police station did not make it unreasonable. Also, when there is PC for a search, it can be complete, and scope of search is not an issue. United States v. Hightower, 376 Fed. Appx. 60 (2d Cir. 2010) (unpublished).* [indexed as Pender; first party listed is Hightower]

The affidavit for the search warrant was “replete” with detail, so PC exists, and it was not “bare bones” such that the exception to the good faith exception would bar use of the evidence. United States v. Thompkins, 377 Fed. Appx. 292 (4th Cir. 2010) (unpublished).*

Defendant, arguing his appeal pro se, waived his search and seizure claim by not having raised it in the district court. United States v. Byrd, 377 Fed. Appx. 374 (5th Cir. 2010) (unpublished)* (he also argued the jury was incompetent to decide his case because it didn't see his fraud his way).

Plain view inadvertency requirement abolished under state constitution as to drugs, weapons, and other items “dangerous in themselves.” State v. Nieves, 160 N.H. 245, 999 A.2d 389 (2010):

Some state courts have followed Horton and completely abolished the inadvertency requirement. See, e.g., State v. Loh, 914 P.2d 592, 600 (Mont. 1996); State v. Julius, 408 S.E.2d 1, 7 (W. Va. 1991). Hawaii and Massachusetts have declined to follow Horton and continue to require inadvertency. See Com. v. Balicki, 762 N.E.2d 290, 298 (Mass. 2002); State v. Meyer, 893 P.2d 159, 165 n.6 (Haw. 1995). A few courts have recognized the exception for objects that are “contraband,” “stolen,” or “dangerous in themselves” set out in Coolidge, 403 U.S. at 471. See, e.g., State v. Eady, 733 A.2d 112, 116 n.7 (Conn.), cert. denied, 528 U.S. 1030 (1999); State v. Nieves, 782 A.2d 203, 207 n.6 (Conn. App. Ct. 2001); Com. v. LaPlante, 622 N.E.2d 1357, 1361 n.9 (Mass. 1993) (inadvertency requirement does not apply to stolen goods). But see Balicki, 762 N.E.2d at 298 (finding that inadvertency requirement “continues to protect the possessory interests conferred on our citizens by” state constitution).

We hold today that, with respect to drugs, weapons, and other items “dangerous in themselves,” there is no longer an inadvertency requirement under our State Constitution. Coolidge, 403 U.S. at 471; see Eady, 733 A.2d at 116 n.7; Com. v. Hason, 439 N.E.2d 251, 256 (Mass. 1982). Thus, we need not consider the State's argument that we should adopt Horton.

At a border checkpoint, defendant was stopped and referred to a secondary checkpoint area. The car was sniffed by a dog and she consented to an x-ray of the car. A large quantity of meth was found, and the DEA was called in because of the size of the find. They showed up nearly four hours later because of the long drive, and defendant then was found to have consented to a search of her cell phone. United States v. Velderraint, 2010 U.S. Dist. LEXIS 44025 (S.D. Cal. May 5, 2010).*

If an officer has the authority to order the occupant of a vehicle to exit a vehicle, the officer can open the door, too. A gun was seen. State v. Mai, 202 N.J. 12, 993 A.2d 1216 (2010):

We see no reason to depart from the elegant reasoning that undergirds this settled principle in making the parallel determination of whether a police officer has the authority to open a vehicle door as part of issuing an order to exit the vehicle. In the realm of defining reasonable searches and seizures, no meaningful or relevant difference exists between the grant of authority to order an occupant of a vehicle to exit the vehicle and the authority to open the door as part of issuing that lawful order. Plain logic demands that the principles that govern whether a passenger of a vehicle lawfully can be ordered out of the vehicle must apply with equal force to whether a police officer is entitled, as a corollary and reasonable safety measure, to open the door as part of issuing a proper order to exit. See State v. Matthews, 330 N.J. Super. 1, 6 (App. Div. 2000) (holding that "[s]ince the officer was entitled to order defendant out of the car, he was equally entitled to open the door to accomplish that object"); State v. Conquest, 243 N.J. Super. 528, 533 (App. Div. 1990) (combining authority to order passenger from vehicle with authority to open door, holding that "both the order to exit and the method of effectuating it [opening door] were proper"). We therefore turn to the application of that rule to this case.

The officer had probable cause to search defendant’s vehicle for a police radio after he heard radio traffic from under the car seat. Gant was inapplicable. Merchant v. State, 926 N.E.2d 1058 (Ind. App. 2010).*

Search warrant for medical records, in the future, requires the record holder to produce in camera to protect doctor-patient privilege so the patient can object to the disclosure. This case was decided under the court's supervisory powers. In re Search Warrant for Med. Records of C.T., 160 N.H. 214, 999 A.2d 210 (2010):

Accordingly, we exercise our supervisory powers to provide guidance to trial courts and parties as to a uniform and fair process to be applied in future cases. ... We instruct that, henceforth, any search warrant for privileged medical records shall order the hospital or medical provider to comply within a reasonable time by producing the records under seal for in camera review by the trial court. The trial court shall then determine the manner by which the patient shall be provided notice that such records were produced and shall give the patient and hospital or medical provider an opportunity to object to their disclosure. Upon objection, the State must demonstrate "essential need" for the information contained in the record, i.e., the State must prove both that the information is unavailable from another source and that there is a compelling justification for its disclosure. Cf. Payne, 150 N.H. at 442.

Arrest warrant for defendant’s boyfriend permitted police to enter the motel room they were living in when the officers had current and reliable information they were staying there. Webb v. State, 2010 Ark. App. 373, 2010 Ark. App. LEXIS 406 (May 5, 2010)* [Court cites Fourteenth Amendment, not Fourth Amendment.]

The grand jury subpoena in this case was hardly used to conduct a search and seizure or violate due process. Voluntary surrender of the documents was permitted and done before the appearance. United States v. Mower, 2010 U.S. Dist. LEXIS 43966 (D. Utah April 27, 2010).*

Once blood is taken under the implied consent law, there is no reasonable expectation of privacy in it. Harrison v. Comm'r of Pub. Safety, 781 N.W.2d 918 (Minn. App. 2010).*

A TSA worker went through a full body scanner for training. His supervisor allegedly commented on the lack of size of his "manhood." The enraged TSA worker assaulted the supervisor. See Violent TSA Worker Can’t Take His Own Medicine on CrimeFileNews.com. See MiamiHerald.com.

So, just how much can TSA see? Or was it a joke?

The search of defendant’s car for a weapon was permissible under Michigan v. Long, so Gant did not apply. State v. Butler, 296 Conn. 62, 993 A.2d 970 (2010).

Typo in address (174 v. 184) could be overlooked where it was the only house that otherwise matched the description: mobile home perpendicular to the road, dog pen in backyard, only house in proximity. Price v. State, 2010 Ga. App. LEXIS 377, 2010 Fulton County D. Rep. 1395 (April 7, 2010).

Defendant’s wife who had equal access to his computer, although she had her own, had the apparent authority to consent to search and seizure of defendant’s computer by the police after she saw child pornography on it. She feared violence by the defendant so she called the police. United States v. Harper, 2010 U.S. Dist. LEXIS 43616 (E.D. Mo. April 23, 2010).*

While the search of defendant’s car might have been invalid under the later decided Gant, it would have inevitably been searched under a search warrant, so the motion to suppress is denied. United States v. Norwood, 2010 U.S. Dist. LEXIS 43432 (E.D. Ark. April 1, 2010).*

The police received a 911 call that a man with a backpack climbed over a neighbor’s fence and might be a burglar. The police came, kicked open the gate and stopped the defendant, who matched the description and had a backpack in hand. They searched the backpack finding a gun, and he was a former felon. It turned out he lived there. The officers lacked probable cause to believe that he was committing a burglary because he had not attempted to enter the house. Viewing his presence as at least a trespass, the police were doing what we objectively expect of them. They did have at least reasonable suspicion, but not probable cause, and they could have asked him his name since he was posing no threat when they drew down on him. The government’s stretch to apply exigent circumstances to their conduct was rejected. [This is an interesting analysis of exigency and entry into the curtilage.] United States v. Struckman, 603 F.3d 731 (9th Cir. 2010):

In a case closely analogous to this one, the Sixth Circuit concluded that “[t]here is simply no legal support for holding that an ongoing criminal trespass, on its own, constitutes an exigency that overrides the warrant requirement.” United States v. Washington, 573 F.3d 279, 287 (6th Cir. 2009). We agree. The risk from an ongoing crime can sometimes make a critical difference in determining the reasonableness of police conduct. See Georgia v. Randolph, 547 U.S. 103, 126 (2006) (Breyer, J., concurring) (discussing instances of domestic abuse); see also United States v. Hensley, 469 U.S. 221, 228 (1985). But in the absence of any “immediate and serious consequences,” McDonald v. United States, 335 U.S. 451, 460 (1948) (Jackson, J., concurring), resulting from the commission of a crime, the “overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, 445 U.S. at 601, militates against warrantless entry.

Nighttime searches are dangerous and must be limited. However, in this case, the police emptied the house while they waited for a search warrant which arrived at night, so the prohibition on nighttime searches should not apply. State v. Santiago, 2010 NMSC 18, 148 N.M. 144, 231 P.3d 600 (2010):

[*11] As a general proposition, a nighttime search implicates special concerns of privacy and safety--especially when the search is of a home. See Monroe v. Pape, 365 U.S. 167, 210 (1961) (“Searches of the dwelling house were the special object of this universal condemnation of official intrusion. Night-time search was the evil in its most obnoxious form.” (footnote omitted)), overruled on other grounds by Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 658-59 (1978); Jones v. United States, 357 U.S. 493, 498 (1958) (“[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home.”); see also Gooding v. United States, 416 U.S. 430, 464 (1974) (Marshall, J., dissenting) (“[S]earches conducted in the middle of the night ... involve a greater intrusion than ordinary searches and therefore require a greater justification.” (internal quotation marks and citation omitted)).

[*12] Chief among these concerns are the “peculiar abrasiveness of official intrusions at such periods,” United States v. Ravich, 421 F.2d 1196, 1201 (2d Cir. 1970), and the heightened “possibility of terror and gunplay which may arise from forcible nighttime entries,” State v. Brock, 653 P.2d 543, 545 (Or. 1982). Courts are aware that a person is especially vulnerable in “the privacy of his place of repose during the nighttime hours,” if he is forced “to face a nocturnal confrontation with the police.” United States v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997) (citing Monroe, 365 U.S. at 210 (Frankfurter, J., dissenting)). Consequently, our Rules of Criminal Procedure require law enforcement to obtain special permission from the issuing judge to serve a warrant after 10:00 p.m.

It was reasonable to believe that there would be evidence of fraud on defendant’s computer for this search warrant. In an unrelated fraud investigation, computer generated false bills were found apparently coming from defendant. That was the link to the computer, hard drives, and thumb drive. In the officer’s experience [even in common experience], computers are used in committing alleged frauds like this one. United States v. Graziola, 2010 U.S. Dist. LEXIS 42903 (D. Minn. April 13, 2010).*

The officer had qualified immunity for the wrongful stop of the plaintiff for avoiding a stop sign by driving through private property. He called the State Patrol for confirmation, but they were wrong. Still, that says nothing about his use of excessive force on the plaintiff. Solis v. Oules, 378 Fed. Appx. 642 (9th Cir. 2010) (unpublished).*

Defendant was under investigation for a violation of the Clean Water Act, and the government obtained from the USMJ an order permitting entry. The order itself is not unreasonable and does not violate the Fourth Amendment just because defendant is under investigation. United States v. Acquest Wehrle LLC, 2010 U.S. Dist. LEXIS 42789 (W.D. N.Y. April 30, 2010).*

Defendant’s denial of ownership of stolen credit cards and a gun in the car was an abandonment and a waiver of standing at the time of arrest. “Hernandez claims it would be illogical for the Court not to find standing when the government has charged him with possession of a firearm based on the firearm found in the vehicle. While it does seem somewhat illogical, the Court cannot create standing where none exists.” United States v. Hernandez, 2010 U.S. Dist. LEXIS 42922 (D. Idaho May 3, 2010).*

Use of the “two second rule of thumb” that a vehicle was following too close does not make the stop unreasonable. United States v. Hunter, 2010 U.S. Dist. LEXIS 42865 (D. Kan. April 30, 2010).*

Nexus to the home for drugs can be shown by inference. Here, defendant went to his house before going to the location for a drug sale, and that was enough to show nexus, relying on State v. Saine, 297 S.W.3d 199 (Tenn. 2009). State v. Summers, 2010 Tenn. Crim. App. LEXIS 353 (April 28, 2010).*

Defendant’s blood test at the hospital was not unreasonable and not a violation of the Fourth Amendment. He also did not raise it at trial. State v. Asbury, 2010 Tenn. Crim. App. LEXIS 354 (April 30, 2010).*

Defendant’s movements were the articulable basis for his frisk. He took a long time to stop the car, there were furtive movements in the car, when he got out of the car he reached back in, and then he brushed his shirt like he was hiding something. State v. Rodriguez, 2010 Ohio 1944, 2010 Ohio App. LEXIS 1614 (12th Dist. May 3, 2010).*

In the "famous last words" category, on ABAJ.com by Martha Neil: Student Warned Defendant School Dist. in ‘08 of Potential Webcam Privacy Peril:

Lower Merion School District would have the ability to monitor students remotely, via the laptops' webcams, and "I could see not informing parents and students of this fact causing a huge uproar," the unidentified teen said in an e-mail reviewed by the Philadelphia Inquirer.

In response, information systems director Virginia DiMedio told him he should "take a breath and relax," the newspaper recounts. The district is not "a police state" and had no intention of monitoring students at home, she e-mailed back.

The story came from the Philadelphia Inquirer, and the paper got it from an e-mail sent to the school in 2008.

General consent to search defendant’s car included a backpack in the backseat. United States v. Cruz-Castro, 378 Fed. Appx. 632 (9th Cir. 2010) (unpublished), cert. denied 2010 U.S.
LEXIS 7226 (U.S., Oct. 4, 2010), cert. denied 2010 U.S. LEXIS 7249 (U.S., Oct. 4, 2010).*

A citizen complaint that the defendant threatened him with a knife while standing in a movie line was reasonable suspicion for a patdown for the knife under Terry. Harrod v. State, 192 Md. App. 85, 993 A.2d 1113 (2010).*

The evidence supports the conclusion that the search warrant was issued before the search. Defendant’s affidavit in a motion to reconsider was of no effect. State v. Anderson, 2010 Ohio 1886, 2010 Ohio App. LEXIS 1564 (6th Dist. April 30, 2010).*

The officer stopped defendant’s vehicle, and he could smell marijuana. Defendant’s admission that he had marijuana justified a drug dog sniff and the alert justified a search. State v. Wright, 155 Wn. App. 537, 230 P.3d 1063 (2010).*

Two defendants who were guests in a hotel room who were with the renter had not yet spent the night still had standing. United States v. Ibarra-Penuelas, 2010 U.S. Dist. LEXIS 42110 (D. Neb. March 16, 2010):

The court finds Ibarra and Ramirez had standing to challenge the officers' entry into the hotel room. When Cruz and the defendants checked into the hotel, all three individuals were visible from the front desk, even though only two individuals approached the front desk. The room was furnished for multiple occupants. Merely by having only Cruz's name appear on the receipt does not indicate he was the sole guest at the hotel. The court finds the defendants manifested a subjective expectation of privacy in the hotel room and such expectation of privacy in the hotel room is objectively reasonable. Therefore, the defendants have standing to challenge the officers' entry into Room 220.

Search by consent included use of a fiberoptic scope on the gas tank. That created probable cause. United States v. Harris, 2010 U.S. Dist. LEXIS 42617 (C.D. Ill. April 30, 2010).

“[T]his key opens the back door” is a manifestation of consent. United States v. Livingston, 2010 U.S. Dist. LEXIS 42399 (M.D. Pa. April 30, 2010).*

More on the new Colorado statute requiring notice of a right to refuse a search: New law requires notification of right to refuse search. Prior post is here.

A burglar was hiding in the house of others he had no connection to, and the police could not get them to respond to their calls. The police could consider the occupants at risk of harm. When the police came in, they found drugs and drug paraphernalia and arrested the owner. State v. Fausel, 295 Conn. 785, 993 A.2d 455 (2010):

It therefore is of no moment that the police officers in the present case did not encounter an emergency when they entered the residence. They were objectively reasonable in believing that an emergency situation existed within the residence. The Appellate Court thus improperly concluded that "[a] mere concern that someone might be inside and might be in need of immediate assistance does not warrant police intrusion into a private dwelling under the emergency doctrine." (Emphasis in original.) State v. Fausel, supra, 109 Conn. App. 830. That conclusion does not comport with the objectively reasonable standard as applied in this state.

The trial court’s findings that the person who made the down payment and mortgage payments on a house that was burned by arson had apparent authority to consent were supported by the evidence. Defendant never objected to her entering after the fire and looking around. Orr v. State, 2010 Tex. App. LEXIS 3244 (Tex. App. — Ft. Worth February 18, 2010).*

SCOTUS GVR’d this case after Gant. On remand, the court finds the search was justified under the automobile exception instead of search incident because there was probable cause. United States v. Grooms, 602 F.3d 939 (8th Cir. 2010).*

Defendant had a reasonable expectation of privacy in the contents of his cell phone and his number, contrary to the state’s argument. Just giving out the number to others is not a waiver of the expectation of privacy. State v. Boyd, 295 Conn. 707, 992 A.2d 1071 (2010):

The state also claims, however, that even if the defendant owned and controlled the cell phone, he failed to establish that he had a reasonable expectation of privacy in the cell phone number because he presented no evidence that he had made any attempt to keep it private. In support of this claim, the state relies on United States v. Fierros-Alavarez, 547 F. Sup. 2d 1206 (D. Kan. 2008). In that case, the court concluded that, because the defendant had lawful possession and control of his cell phone when it was seized and searched by the police, he had a subjective expectation of privacy in it. Id., 1210. The court also concluded, however, that the defendant had no reasonable expectation of privacy in the cell phone's recent call directory showing the numbers that the defendant had called from the cell phone because he had provided that information to third parties. Id., 1210-11. In support of this conclusion, the court relied on Smith v. Maryland, 442 U.S. 735, 742-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (no reasonable expectation of privacy in dialed telephone number because telephone company must receive telephone number to complete call and person has no legitimate expectation of privacy in information he voluntarily turns over to third parties), and United States v. Forrester, 512 F.3d 500, 509-10 (9th Cir. 2008) (applying Smith to validate police surveillance of defendant's computer to obtain e-mail addresses of outgoing e-mails and addresses of web sites visited).

We do not find the court's reasoning in Fierros-Alavarez to be persuasive. In Smith and Forrester, the government had not obtained the dialed telephone numbers and e-mail addresses from an item or area in which the defendant had a reasonable expectation of privacy, but had obtained the information from, respectively, the telephone company and the Internet provider. See Smith v. Maryland, supra, 442 U.S. 741 (government installed pen register to record numbers dialed from defendant's telephone on telephone company property at telephone company's central offices); United States v. Forrester, supra, 512 F.3d 505 (government installed "pen register analogue" at Internet provider's facility). 10 Thus, we understand the cases to stand for the proposition that the government can obtain information that the defendant has provided to a third party from that third party without implicating the defendant's fourth amendment rights. For example, in the present case, if the police had obtained the defendant's cell phone number from Gagliardi or from the cell phone carrier, there would have been no fourth amendment violation under Smith and Forrester because the defendant could have no reasonable expectation that Gagliardi and the carrier would not reveal the information. Contrary to the court's assumption in Fierros-Alavarez, however, nothing in either case supports a conclusion that, if a defendant has a reasonable expectation of privacy in an area or item, the government may search that area or item for any information that the defendant had provided to third parties without triggering fourth amendment protections. We conclude, therefore, that the fact that the defendant in the present case had provided his cell phone number to third parties and had not taken steps to ensure that it was confidential does not mean that he had no reasonable expectation that the police would not search the contents of his cell phone for the number without a warrant. We conclude, therefore, that the defendant had a reasonable expectation of privacy in all of the contents of his cell phone, including his subscriber number.

Defendant who installed a hard drive in another person’s computer, and claimed ownership of the hard drive [a “unique issue”] assumes the risk of disclosure by the owner of the computer. Also, diverging with the Ninth Circuit, Randolph only applies to real property, not personalty (there is a detailed anaylsis of this issue). United States v. King, 604 F.3d 125 (3d Cir. 2010):

Because Randolph does not apply to personal effects, King's suppression argument necessarily fails. A computer is a personal effect, see, e.g, Andrus, 483 F.3d at 718-20 (analogizing a computer to a container). Therefore, we apply the Matlock rule and ask whether King relinquished his privacy in the hard drive with respect to Larkin. Here, King placed his hard drive inside the computer Larkin owned and that the two of them shared, without any password protection. As a result, he assumed the risk that Larkin would consent to its seizure. Accordingly, the District Court did not err in holding that the seizure of Larkin's computer did not violate the Fourth Amendment and evidence derived therefrom was admissible against King.

CI’s information showed probable cause for the search of defendant’s car. United States v. Dewar, 375 Fed. Appx. 90 (2d Cir. 2010) (unpublished).*

Courthouse screening did not deny the defendant his right to a public trial. Screening is necessary for safety. State v. O'Connor, 155 Wn. App. 282, 229 P.3d 880 (2010).*

Defendant’s wife had apparent authority to consent to a search of a safe found in her bedroom although she did not know the combination to the safe. Her passport and car title were inside. [Comes close to justifying a search by its product.] United States v. Santana-Cabrera, 2010 U.S. Dist. LEXIS 41895 (S.D. Ind. April 28, 2010)*:

Essentially, Flores-Lopez's argument boils down to a claim that, because Juaquina did not have access to, or control of, the safe, she could not consent to its search. This argument is not persuasive. First, in addition to containing $53,000 in cash and several firearms, the safe also housed, among other things, Juaquina's passport and the title to a vehicle owned solely by Juaquina. Second, the safe's location -- in Juaquina's bedroom -- further rebuts Flores-Lopez's argument that Juaquina did not have access to, or control over, it. Although it is true that Juaquina did not know the safe's combination, that alone does not convince the Court that the safe was solely her husband's property. Based on the totality of the circumstances, the officers were justified in believing that Juaquina had authority to consent, and did indeed consent to the search of the safe. See Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990).

[And why doesn't it?]

Assuming the confrontation clause applies in a suppression hearing [don’t assume that], a signed consent to search form is not hearsay; it is an admission of a party opponent. United States v. Molina-Alfonso, 377 Fed. Appx. 850 (11th Cir. 2010) (unpublished).*

Odor of drugs coming from a locked car at a club in Louisiana that was blocked in by police cars, and the driver was not around to produce the keys. The car was not “readily mobile” for the automobile exception. State v. Millet, 2010 La. App. LEXIS 577 (La. App. 5th Cir. April 27, 2010).

Defendant was validly arrested for being a resident of Massachusetts without a valid license, having a New Brunswick license instead, but living here. His pickup truck was towed and inventoried, and the only issue was the validity of the arrest for driving without a license. If the arrest was valid, so was the search. Commonwealth v. Chown, 76 Mass. App. Ct. 684, 925 N.E.2d 562 (2010),* revd Commonwealth v. Chown, 2011 Mass. LEXIS 349 (May 20, 2011) (here).*

In a § 1983 trial over consent to search, the trial court properly put the burden of proof on the defendants to prove that consent was voluntary. Tirreno v. Mott, 375 Fed. Appx. 140 (2d Cir. 2010) (unpublished).

The traffic stop took 20 minutes including the computer check. After that, the officer engaged in conversation unrelated to the purpose of the stop, and this was not unreasonable. Defendant consented to a search of the vehicle, but revoked consent when the officer talked about removing the gas tank. Then a drug dog was called, and the extra time was de minimus. United States v. Torres, 2010 U.S. Dist. LEXIS 41623 (D. Neb. March 10, 2010), adopted 2010 U.S. Dist. LEXIS 41727 (D. Neb. April 28, 2010).

Strip search in “public” for cocaine hidden in defendant’s butt crack was reasonable where defendant was not yet under arrest and he consented. The officers opened patrol car doors and other officers stood around to make cover so bystanders could not see. Jackson v. State, 2010 Ark. App. 359, 2010 Ark. App. LEXIS 368 (April 28, 2010).*

A federal law enforcement officer had the authority to make an arrest on property near (allegedly “adjacent”) to federal property under state law. [It sure would not violate the Fourth Amendment.] Alternatively, this argument was not preserved for appeal. People v. Redd, 48 Cal. 4th 691, 108 Cal. Rptr. 3d 192, 229 P.3d 101 (2010).*

Officer conducting a driver’s license roadblock saw defendant making furtive movements, and they looked for a weapon, not finding one. Asking for ID had to be related to the purposes of the stop, and here it wasn’t. Reversed. State v. Waldrup, 2010 Mo. App. LEXIS 529 (April 27, 2010):

To allow the grounds for reasonable suspicion that Mr. Waldrup had a weapon to also support reasonable suspicion that he was a "threat" to public safety after no weapon was found, as the sole justification for requesting his identification, would erode Fourth Amendment protections. The police are not entitled to a suspect's identification during a Terry stop unless it is related to the circumstances justifying the stop. Thus, different grounds for reasonable suspicion were needed to justify the identification request from Mr. Waldrup and the subsequent identification check. Because Mr. Waldrup's identity did not relate to the circumstances justifying the stop, Trooper Primm's request for Mr. Waldrup's identification and Trooper Isringhausen's check of the identification constituted an unlawful seizure.

The fact a search was invalid under state law is irrelevant to the Fourth Amendment analysis. United States v. Ramsey, 376 Fed. Appx. 968 (11th Cir. 2010), cert. denied, 2010 U.S. LEXIS 7134 (U.S., Oct. 4, 2010) (unpublished).*

Defendant was not told he was free to leave when the officer called for a drug dog. There was no reasonable suspicion for continuing the stop, so the use of the drug dog here was unreasonable. Bush v. State, 925 N.E.2d 787 (Ind. App. 2010):

Bush argues the purpose of the traffic stop was complete before the canine unit arrived and thus the canine sniff of his automobile unreasonably prolonged his detention. Unlike either of the above sets of cases, we are faced with a record that, as the parties agree, is silent regarding the time frame of events. Thus, the burden of proof is potentially outcome determinative. The State conceded at oral argument, and we agree, "[t]he burden is on the State to show the time for the traffic stop was not increased due to the canine sweep." Wells, 922 N.E.2d at 700 (quoting Wilson, 847 N.E.2d at 1067); see Bannister v. State, 904 N.E.2d 1254, 1256 (Ind. 2009) (under Fourth Amendment analysis of traffic stop, "[t]he State has the burden to show that under the totality of the circumstances its intrusion was reasonable").

Our review of the record discloses the State failed to present sufficient evidence to support a finding "that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop." Caballes, 543 U.S. at 408. ....

Being stopped in a high-crime area with a person leaning in the window is not reasonable suspicion. “Even viewing all the facts asserted by the police in this matter as a whole, such facts fail ‘to eliminate a substantial portion of innocent travelers.; Mathurin, 561 F. 3d at 174 (citing Karnes, 62 F.3d at 493).” United States v. Gordon, 2010 U.S. Dist. LEXIS 41811 (D. V.I. April 27, 2010).*

Identified but unknown CI did not provide justification for the defendant’s stop because he merely relayed generally known information that shows no reason to believe that a crime was occurring. L.W. v. State, 926 N.E.2d 52 (Ind. App. 2010):

Here, there is no evidence in the record that law enforcement had verified Shockley's identity or that his reliability was known prior to the investigatory stop of L.W. On this record, while Shockley identified himself, he was nonetheless a virtual stranger. Neither Officer Cantrell nor the police department knew whether he was "a concerned citizen, a prankster, or an imposter." See Glass, 769 N.E.2d at 643. And there is no evidence that Shockley identified himself in such a way that would place his credibility at risk or subject himself to criminal penalties. See id. Nor is there any indication that the tipster indicated that he had inside knowledge about the burglary or the suspect. Shockley merely described the suspect's general build, shirt, and shoes. That same information was available to the general public and did not provide the police with sufficient information to corroborate Shockley's assertions. See Kellems, 842 N.E.2d at 356. This case is easily distinguishable on its facts from Kellems, where the tipster not only identified herself but was a person known to the police and accurately predicted future behavior.

The trial court’s evaluation of the evidence under the totality of circumstances was like the analysis condemned in Arvizu. The totality of circumstances here showed probable cause. State v. Christopher, 2010 Ohio 1816, 2010 Ohio App. LEXIS 1504 (12th Dist. April 26, 2010).*

Defendant was stopped for a traffic offense, and the paperwork was completed in 12 minutes. When defendant would not consent to a search, a drug dog was called, and its task extended the whole stop to 29 minutes. There was no reasonable suspicion, and the de minimus rule of $404,905 is rejected, not that this was de minimus. Whitfield v. State, 33 So. 3d 787 (Fla. App. 5th DCA 2010).

Defendant got out of her car with purse in hand. When she was arrested, her purse was searched incident to her arrest. It was not unreasonable under Gant because the car was not entered. State v. Johnson, 155 Wn. App. 270, 229 P.3d 824 (2010), ordered published by, Modified by State v. Johnson, 2010 Wash. App. LEXIS 867 (Wash. Ct. App., Apr. 22, 2010)
.*

Excessive nervousness, air freshener in the back, and a suspicious answer to travel plans was reasonable suspicion. United States v. Castelan-Benitez, 2010 U.S. App. LEXIS 8803 (11th Cir. April 28, 2010) (unpublished).*

Defendant was present when the search warrant was executed and he was handcuffed. Fifteen minutes into the search, he was searched too. The search warrant was diligently being pursued, and the search of his person was not unreasonable because of the length of the detention. State v. Winton, 2010 NMCA 20, 148 N.M. 75, 229 P.3d 1247 (November 18, 2009), certiorari denied, 2010 147 N.M. 673, 227 P.3d 1055 (2010).

Defendant was seen fumbling around in his car when stopped, and the officer got him out. His belt was undone and his shirttail was protruding through the fly. The officer had reasonable suspicion, and he was justified in looking where the shirttail was coming from. State v. Williams, 2010 NMCA 30, 148 N.M. 160, 231 P.3d 616 (2010), certiorari granted, April 1, 2010, No. 32,263.

Defense counsel was not ineffective for not challenging the officer’s entry into the property in response to a 911 call for help. State v. Pierce, 155 Wn. App. 701 (2010).*