Archives for: June 2010


Permalink 10:17:29 pm, by fourth, 17 words, 523 views   English (US)
Categories: General "SB 1070 injunction hearing set for July 22"

On the Phoenix newspaper blog today: SB 1070 injunction hearing set for July 22 in U.S. District Court.

Permalink 08:21:51 am, by fourth, 234 words, 347 views   English (US)
Categories: General

S.D.N.Y.: Arrest task force's protective sweep of house unjustified or excessive

Arrest task force team searched defendant’s house without a search warrant, and it is suppressed. No theory for exigency works for the government. The protective sweep, even if valid, was excessive. United States v. Barone, 721 F. Supp. 2d 261 (S.D. N.Y. 2010)*:

In this case, because the Task Force arrest team searched Barone's home without a warrant, the government must establish that one of the recognized exceptions to the warrant requirement applies. We therefore analyze the constitutionality of the agents' conduct as follows. First, we assess the basis for the entry and search of Barone's home following his arrest in the driveway. We find that, because the entry and initial search cannot be justified under either strand of the "protective sweep" doctrine -- or under any other exception to the warrant requirement -- that entry violated Barone's constitutional rights. Alternatively, and assuming, arguendo, that the agents were within constitutional bounds when they entered the house and commenced a "protective sweep," we find that Detective Arrigo's seizure of the handgun from the bedroom closet exceeded the limited scope of protective sweeps because none of the incriminating contents of the gift bag were in "plain view." Under either analysis, we hold that the first gun was unlawfully seized and therefore must be suppressed.

"AEDPA’s § 2254(d) does not circumvent or override Stone v. Powell." Hillman v. Beightler, 2010 U.S. Dist. LEXIS 63564 (N.D. Ohio April 19, 2010).

Permalink 08:04:38 am, by fourth, 476 words, 815 views   English (US)
Categories: General

M.D.Fla.: Grand jury subpoena used as a search warrant; records returned

The target of a subpoena gets all its records back because the government used a grand jury subpoena as a search warrant. The court also cited 1906's Hale v. Henkel. In re Grand Jury No. 09-1, 2010 U.S. Dist. LEXIS 63667 (M.D. Fla. June 10, 2010):

More importantly, the grand jury's subpoena is improper on procedural grounds. Throughout its papers, the U.S. Attorneys' Office ignores a rather fundamental (but perhaps increasingly ignored) proposition of law: a subpoena is not a search warrant. With the exception of exemplars and other limited classes of physical evidence, see 1 Sara Sun Beale et al., GRAND JURY LAW AND PRACTICE § 6:5 (2d. ed. 2008), a grand jury subpoena duces tecum -- without more -- cannot be used to simply seize a witness's property. Documents, records and tangible evidence remain the exclusive property of the person required to produce them before the grand jury and, absent a court order or stipulation between the witness and the government, the witness has the right to remove his evidence at the end of each day of the grand jury's proceedings and at the end of the grand jury's session. See, e.g., Application of Mesta Machine Company, 184 F.2d 375, 375-76 (3d Cir. 1950); Application of Bendix Aviation Corp., 58 F.Supp. 953, 954 (S.D.N.Y. 1945). For this reason, U.S. Attorneys are specifically cautioned:

[I]t is strongly recommended that an impounding order be obtained at the initiation of the grand jury investigation (or at least before the return of any documents to the grand jury) and that it impound the documents at least for the life of that grand jury. This will obviate any claim by a subpoena recipient that it has complied with the subpoena by delivering the documents to the grand jury and has a right to remove the documents at the end of that session.

U.S. Department of Justice, Antitrust Division, Grand Jury Manual, Ch. IV, § E., 1. c., In contrast, a search warrant, which is supported by probable cause and interposes a neutral magistrate between a citizen and law enforcement, permits an officer to literally seize and take immediate possession of one's property. ...

. . .

Neither the grand jury nor the U.S. Attorneys' Office acting on its behalf may simply take possession of Signature's property through a subpoena. When Signature's property was seized (unlawfully) by the State of Florida pursuant to invalid search warrants, the property came into the possession of the State Court. The State Court did not lose possession of the property simply because the U.S. Attorneys' Office took physical custody of it and issued a subpoena on behalf of the federal grand jury. The State Court lost possession, of its own accord, when it decided to dispose of the property in a final order requiring the property to immediately be returned to Signature.

Permalink 07:51:46 am, by fourth, 179 words, 329 views   English (US)
Categories: General

W.D.N.C.: Gant did not change Long vehicle frisks on RS

Under the facts and circumstances here, a frisk of the vehicle for a possible weapon was permissible under Long. Gant did not change Long. United States v. Lewis, 2010 U.S. Dist. LEXIS 63716 (W.D. N.C. March 24, 2010).*

Defense counsel was not ineffective for not forecasting Gant. Torres v. United States, 2010 U.S. Dist. LEXIS 63457 (W.D. N.C. June 5, 2010).*

Officers had a search warrant for defendant’s house, and they entered with guns drawn. A vehicle outside was not listed in the search warrant as a place to be searched. “After the tense initial sweep of the residence, the testimony of Special Agent Price, Special Agent Hooker, Lathey, and Defendant all indicate that the atmosphere was relaxed. It was during this time, with Defendant and Lathey sitting on their couch engaging in small talk with the officers, that Special Agent Price requested consent to search the vehicle.” That search was by consent. United States v. Dean, 2010 U.S. Dist. LEXIS 63852 (S.D. W.Va. June 25, 2010)* [normally a SW for premises includes vehicles that belong there; that’s not discussed].


Permalink 08:23:28 am, by fourth, 338 words, 385 views   English (US)
Categories: General

VT: Search incident of defendant's backpack was unreasonable

Defendant was the target of a controlled buy of marijuana that had recently been brought across the border in a backpack and the courier detained. The courier agreed to make the delivery. When the police heard the code words on the wire, they came in to make the arrest, and found another backpack that belonged to defendant. The warrantless search of his own backpack violated the Vermont Constitution. The court rejects claims that just because the controlled delivery happened in a public place defendant had no expectation of privacy in the closed container. State v. Birchard, 2010 VT 57, 188 Vt. 172, 5 A.3d 879 (2010):

[*P13] In Savva, we announced the rule controlling our decision today that police cannot open and search a closed container when there is ample opportunity to obtain a warrant prior to doing so. 159 Vt. at 88, 616 A.2d at 781 (summarizing its conclusion that where no exigency exists, "a legitimate expectation of privacy was implicated" by the defendant's closed paper bags found in the hatchback of his car). Our decision in that case was grounded in a "separate and higher expectation of privacy" for the contents of such containers over objects in a vehicle exposed to plain view. Id. Even where probable cause exists to seize a closed container, that does not override the requirement for a warrant: police must proceed in the least intrusive manner with respect to a defendant's expectations of privacy in that container, obtaining a defendant's permission to search or seeking the oversight of a magistrate. Id. at 90, 616 A.2d at 782; .... Once seized, the container may be either opened pursuant to a warrant or under an exception to the requirements of Article 11. See Savva, 159 Vt. at 89, 616 A.2d at 782; accord Horton v. California, 496 U.S. 128, 141 n.11 (1990). We have declined to approve of administrative efficiency serves as an adequate grounds for such an exception, Bauder, 2007 VT 16, PP 11-12, choosing instead to preserve, whenever possible, the essential checks on unrestrained executive power by ensuring review by an impartial magistrate prior to a governmental invasion of privacy. Id. P 13.

Permalink 08:15:04 am, by fourth, 154 words, 949 views   English (US)
Categories: General

S.D.Ohio: Furtive movement during traffic stop justified patdown

Furtive movements in extremis (reclining in passenger seat and turning away from the officer as he approached and reaching for the waistband) justified a patdown. United States v. Craver, 2010 U.S. Dist. LEXIS 63305 (S.D. Ohio June 4, 2010).*

In this death penalty case, defendant was found to have consented to the search, so his lawyer was not ineffective for not challenging it. Pitchford v. State, 45 So. 3d 216 (Miss. 2010).*

Ohio’s burden of consent is clear and convincing evidence, more than a preponderance, and this consent satisfies that requirement. State v. Black, 2010 Ohio 2916, 2010 Ohio App. LEXIS 2439 (2d Dist. June 25, 2010).*

Defendant abandoned drugs when he saw the police, and the seizure of the drugs was probable cause to arrest. State v. Taylor, 2010 Ohio 2926, 2010 Ohio App. LEXIS 2445 (2d Dist. June 25, 2010).*

Considering all the details of reasonable suspicion along with the officer’s experience, there was reasonable suspicion on the totality. United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010).*

Permalink 07:41:42 am, by fourth, 251 words, 337 views   English (US)
Categories: General

CA4: 20 second wait after knock was constructive denial

Officers waited 20 seconds after knocking and announcing their presence to enter on an arrest warrant, and 20 seconds was a constructive denial. There was no question as to the validity of the arrest warrant or the knowledge defendant was present. Hudson did not have to be applied. United States v. Young, 609 F.3d 348 (4th Cir. 2010)*:

3 In Hudson v. Michigan, 547 U.S. 586, 594 (2006), the Supreme Court held that suppression is not an appropriate remedy for knock-and-announce violations occurring in the execution of search warrants. The government contends that Michigan applies to knock-and-announce violations arising from the execution of arrest warrants, see United States v. Pelletier, 469 F.3d 194, 201 (1st Cir. 2006) (concluding that Hudson applies in the context of an arrest warrant), while Young argues that there are different considerations present in arrest-warrant cases that counsel against an extension of Hudson. Given our conclusion that the agents complied with the knock-and-announce requirements, we need not consider whether Hudson applies in cases involving the execution of arrest warrants.

Traffic stop was completed when the officer said goodbye to the defendant, but then engaged him in further conversation which was consensual. “Indeed, Sullivan could have declined to answer Trooper Johnson's questions. He need not even have been informed explicitly that he was free to go, Ohio v. Robinette, 519 U.S. 33, 35 (1996) (holding that a lawfully seized individual need not be informed that he or she is free to go for a consent to search to be recognized as voluntary).” United States v. Walker, 719 F. Supp. 2d 586 (W.D. Pa. 2010).*


Permalink 02:07:59 pm, by fourth, 9 words, 332 views   English (US)
Categories: General

Missing posts now up

They are a little jumbled, but they are back.

Permalink 12:43:34 pm, by fourth, 205 words, 403 views   English (US)
Categories: General

OR: Direction to get out of car under circumstances was a seizure

Defendant was stopped for a traffic infraction, and the officer determined that he had no valid DL. After deciding that he would ticket defendant and tow the vehicle he told defendant to get out of the vehicle and asked if he had any contraband on him. Defendant admitted that he did. The trial court found that he was not free to leave but that the question was valid. “There is no bright-line rule as to whether an officer's request that a person step out of a vehicle in the context of a traffic stop constitutes a seizure for purposes of Article I, section 9. Such a request is merely one of the factors that is part of the totality of the circumstances that must be evaluated.” Here, the totality shows that it was a seizure, and it should have been suppressed. State v. Smith, 236 Ore. App. 5, 237 P.3d 853 (2010).*

The third party consenter had apparent authority to consent to the search of defendant’s house. She referred to it to the police as “my house.” Randolph does not stand for the proposition that the defendant cannot be removed from the premises to defeat consent. United States v. Shrader, 2010 U.S. Dist. LEXIS 62565 (S.D. W.Va. June 23, 2010).*

Permalink 11:19:20 am, by fourth, 139 words, 274 views   English (US)
Categories: General

OH5: Vehicle inventory permitted opening an apparent can safe

Officers stopped defendant for suspicion of shoplifting, and defendant refused to consent to a search of the car. The officers noted that the license was expired, so the car was impounded. An inventory of the car revealed an energy drink can that felt like it had a false compartment. The can was properly opened. State v. Colopy, 2010 Ohio 2804, 2010 Ohio App. LEXIS 2310 (5th Dist. June 14, 2010).

Defendant did not receive IAC from defense counsel for not filing a motion to suppress that would not have prevailed. The person who consented to the search to locate a recently discharged firearm had apparent authority as far as the police were concerned. State v. Pettaway, 2010 Ohio 2798, 2010 Ohio App. LEXIS 2305 (6th Dist. June 18, 2010).*

Defendant’s traffic offenses admittedly happened, so pretext is not an issue. State v. Howard, 2010 Ohio 2817, 2010 Ohio App. LEXIS 2345 (11th Dist. June 18, 2010).*

Permalink 11:10:32 am, by fourth, 161 words, 319 views   English (US)
Categories: General

W.D.N.Y.: Good faith reliance on impoundment ordinance to seize vehicle made inventory valid

The inventory of defendant’s vehicle was dependent upon the initial impoundment. Under Krull, the officers relied in good faith on the ordinance for impoundment, so the inventory under specific policy thereafter was valid. United States v. Arias, 2010 U.S. Dist. LEXIS 60724 (W.D. N.Y. June 17, 2010).*

Defendant admitted in his motion to suppress that he did not reside in the place searched, and he had no standing. It belonged to his father, and there was no evidence that he was an overnight guest. There were some clothes there that he could wear, but there was no evidence that they were his. United States v. Jack, 2010 U.S. Dist. LEXIS 60690 (E.D. Tenn. May 25, 2010).*

A report from store loss prevention employees was reliable enough on the totality to stop defendant after two transactions that appeared to be fraudulent, despite the fact the credit card was accepted for the transaction. United States v. Abney, 2010 U.S. Dist. LEXIS 60616 (E.D. Pa. June 18, 2010).*

Permalink 09:49:35 am, by fourth, 43 words, 477 views   English (US)
Categories: General

CNN: 20 ton dope seizure based on odor of marijuana Overwhelming odor of marijuana during a traffic stop of a tractor trailer led to discovery of 38,000 pounds of marijuana, 2,700 pounds of cocaine, and 67 pounds of methamphetamine in San Bernardino County, CA.

How does one hide the odor of 19 tons of marijuana?

Permalink 09:43:18 am, by fourth, 208 words, 438 views   English (US)
Categories: General

OR: Questions seeking consent before paperwork returned were without reasonable suspicion

Officer directed defendant out of the car before the ticket was written, and he asked the defendant if he had anything on him that he shouldn’t have. Defendant believed he was seized at the time of the questioning which was without reasonable suspicion, and the motion to suppress should have been granted. State v. Smith, 236 Ore. App. 5, 237 P.3d 853 (2010).*

Search of defendant’s car was reasonable when there was the smell of burnt marijuana coming from the car when it was stopped. Commonwealth v. Garden, 451 Mass. 43, 883 NE 2d 905 (2008), which only involved the smell of burnt marijuana on clothes as not justifying a search of the car is distinguished. Commonwealth v. Degray, 77 Mass. App. Ct. 122, 928 N.E.2d 971 (2010).*

Defendant was stopped for being involved in a possible theft offense. During the stop, it was determined that there was no theft offense, so the justification for the stop evaporated, and there was no additional justification. Suppression order affirmed. State v. Knox, 2010 Ohio 2889, 2010 Ohio App. LEXIS 2393 (8th Dist. June 24, 2010).*

A passenger’s conduct and words were an apparent diversion from the car which added to justification to get the passengers out and drugs were in plain view and validly seized. State v. Newsome, 2010 Ohio 2891, 2010 Ohio App. LEXIS 2394 (8th Dist. June 24, 2010).*

Permalink 09:22:32 am, by fourth, 227 words, 375 views   English (US)
Categories: General

KS: Apparent authority lacking for search of joint occupant's separate property she'd never been in

The consenter here did not have apparent authority to consent to a search of a school bus parked on joint property where she did not know what was in the bus, never been in it, and there was a chained guard dog guarding it. Suppression affirmed. State v. Kerestessy, 44 Kan. App. 2d 127, 233 P.3d 305 (2010):

The State's argument is flawed. The test is not whether the officers thought Konen had the apparent authority to consent. Rather, the test is whether a person of reasonable caution, having the same facts that the officers had, would believe Konen had mutual use of the school bus or any legal interest in the school bus, which would have given rise to apparent authority to consent to a search of the bus. In other words, would the officer have had a valid consent to search if the facts were as he or she reasonably believed them to be? See Porting, 281 Kan. at 328 (Officer was not mistaken about the facts, but reached an erroneous legal conclusion based on the facts.).

The trial court made findings of fact that Konen did not have the apparent authority to consent to a search of the bus. Therefore, this court will review the trial court's findings to determine if they are supported by substantial competent evidence as required by our standard of appellate review. See Thompson, 284 Kan. at 776.


Permalink 08:51:45 am, by fourth, 118 words, 472 views   English (US)
Categories: General

Cal.4: 911 caller could request valid citizen's arrest through officers

A 911 dispatcher who received 40 harassing telephone calls, a misdemeanor, in one night from defendant attorney directed officers to make a citizen’s arrest, and the arrest was valid under California law. He fought with the officers who came to arrest him. People v. Bloom, 185 Cal. App. 4th 1496, 111 Cal. Rptr. 3d 710 (4th Dist. 2010).*

Officers had information that a red VW Beetle was involved in a robbery, and, when they saw one, they had reasonable suspicion to stop it. United States v. Knight, 2010 U.S. Dist. LEXIS 63034 (M.D. Fla. February 4, 2010).*

The USMJ’s findings that the defendant consented to a seizure and search of his briefcase was supported by the evidence. United States v. Shafer, 608 F.3d 1056 (8th Cir. 2010).*

Permalink 08:28:30 am, by fourth, 132 words, 457 views   English (US)
Categories: General

AR: Codefendant's statement at scene corroborated CI

Defendant did not object to the cause of his stop on information from a CI, but he did to the patdown that produced nothing. Shortly thereafter, the police received information from his codefendant that he was hiding drugs in his buttocks, and that supported a further search for the drugs. Canada v. State, 2010 Ark. App. 510, 2010 Ark. App. LEXIS 548 (June 23, 2010), companion case Jackson v. State, 2010 Ark. App. 359, 374 S.W.3d 857 (2010).*

Defense counsel was not ineffective for not challenging the search of defendant’s car because there was probable cause for the search. Means v. State, 2010 Tenn. Crim. App. LEXIS 531 (June 21, 2010).*

The search of defendant’s car was with probable cause he possessed drugs, so Gant was not a bar to the search. United States v. Hodges, 2010 U.S. Dist. LEXIS 62760 (D. Kan. June 23, 2010).*

Permalink 08:15:32 am, by fourth, 176 words, 335 views   English (US)
Categories: General

D.Kan.: Person who borrowed truck had standing

Person who was loaned a truck had a sufficient possessory interest for standing. The stop was found otherwise valid, and the video showed defendant nodding his consent. United States v. Sanchez-Perez, 2010 U.S. Dist. LEXIS 62773 (D. Kan. June 23, 2010):

Here, defendant accurately gave the owner’s name, said the owner was his cousin, and said the owner had loaned him the truck. A computer check revealed that the automobile had not been reported stolen, and the insurance, although expired, was in the name of the person defendant said was his cousin who loaned him the truck. These facts are sufficient to establish a valid possessory interest in the truck, supporting defendant’s challenge to his detention and to the search of the truck.

In a controlled drug delivery, defendant answered the door, and the package was offered. He got a woman who came to the door and said that she lived there and was expecting the package. That was apparent authority to consent to a search of the apartment. United States v. Gonzalez, 609 F.3d 13 (1st Cir. 2010).*

Permalink 07:40:05 am, by fourth, 80 words, 265 views   English (US)
Categories: General

Moved to a new server and June 23-26 were lost

There are about 10 posts, and they just disappeared yesterday.

The move started on June 22, and that became an arbitrary cut off. I could see it on my software, but it would not post. They have to go back to the last server and recover it. I can't do it. I don't want to have to redo them.

That's why websites "migrate" to another computer--it isn't instant.

Remember all those days when access was limited? This is supposed to stop that.


Permalink 10:22:30 pm, by fourth, 120 words, 487 views   English (US)
Categories: General

CA10: Hospital locker search reasonable under O'Connor*

The search of plaintiff doctors’ lockers for stuff allegedly stolen from a hospital was reasonable based on O’Connor v. Ortega. Narotzky v. Natrona County Mem. Hosp. Bd. of Trs., 610 F.3d 558 (10th Cir. 2010).

After the state court dismissed criminal charges against plaintiff because of a bad knock and talk, plaintiff sued over the search and arrest. Defendants failed on summary judgment. Sufficient factual disputes remained, and the issue was not appealable. Tubbs v. Harrison, 383 Fed. Appx. 804 (10th Cir. 2010) (unpublished).*

Officers had probable cause based on reasonable inferences that plaintiff was engaged in credit card fraud to justify his arrest. The criminal charge against plaintiff was dismissed in state court. Painter v. City of Albuquerque, 383 Fed. Appx. 795 (10th Cir. 2010) (unpublished).*

Permalink 12:39:28 pm, by fourth, 442 words, 267 views   English (US)
Categories: General

OR: Search of a cell phone that was clearly evidence of the crime was valid

The search incident of defendant’s cell phone was valid on this limited record, partly because the issues asserted on appeal by the defendant were not presented to the trial court and the record was not developed. Aside from that, the record was replete with information that the cell phone was related to defendant’s crime, and that made the search incident valid on the record. State v. Nix, 236 Ore. App. 32, 237 P.3d 842 (2010):

Fourth, and finally, defendant, as respondent, advances an extended, and nuanced, argument that the search here would not be lawful under the Fourth Amendment as a search incident to arrest. That presentation proceeds from a discussion of myriad federal decisions--none of which was cited to the trial court--and ultimately urges that, given categorical constructs adopted by the federal courts and particular purported characteristics of cellular telephones, including with respect to data storage capacity, a warrantless search of an arrestee's cellular telephone cannot be deemed a lawful search incident under the Fourth Amendment. Again, no distinct Fourth Amendment analysis was raised before the trial court, and no record pertaining to the purported pertinent characteristics of cellular telephones generally--much less defendant's cell phone specifically--was developed before the trial court.

. . .

Defendant's position is predicated on the proposition that the only pertinent crimes are those for which defendant was, in fact, arrested, viz., the crimes that were the subjects of the outstanding warrants. However, that proposition is erroneous. Under Owens, a search incident to arrest need not relate to the crime for which defendant was arrested so long as it relates to another crime for which the officer effecting the arrest also had probable cause. 302 Ore. at 204.

The state presented overwhelming, uncontroverted evidence establishing probable cause, as of the time of the search incident, to arrest defendant for delivery of a controlled substance. Defendant, who had a prior conviction for manufacturing of controlled substances, was the subject of an ongoing investigation for drug-related crimes. During the course of that investigation, the police monitored controlled buys from defendant's residence and interviewed people who claimed that defendant had dealt them methamphetamine. Moreover, on the day of his arrest, defendant was observed engaging in what appeared to be a "hand-to-hand" transaction involving controlled substances. Further, when Jones searched defendant, he discovered items consistent with that crime, including a number of small, clear plastic baggies commonly used for packaging controlled substances and a significant amount of cash. Based on his knowledge of the ongoing investigation and the items he found on defendant, Jones reasonably relied on the information he received from other officers that there was probable cause to arrest defendant for delivery of a controlled substance.


Permalink 10:31:53 pm, by fourth, 171 words, 271 views   English (US)
Categories: General

MT: Search warrant for premises included vehicle in garage not mentioned*

The search for premises mentioned a specific vehicle. It did not mention a motorcycle found parked in the garage. The search of the motorcycle saddlebag producing the murder weapon was permissible under the search warrant for the premises. State v. Stout, 2010 MT 137, 356 Mont. 468, 237 P.3d 37 (2010).

Defendant’s conditional release expired before he was arrested, so the search could not be justified by his release status. The government’s position that reasonable suspicion alone justified an entry into his house is rejected. There was no evidence at the time to justify a protective sweep of the house. However, the entry to seize firearms visible through the window was with probable cause and was valid as exigent circumstances. United States v. Franklin, 721 F. Supp. 2d 1229 (M.D. Fla. June 22, 2010),* R&R 2010 U.S. Dist. LEXIS 61993 (M.D. Fla. March 29, 2010).*

Officer’s alleged violation of Minnesota law was not even relevant to the legality of the search and seizure in federal court. United States v. Gaulden, 2010 U.S. Dist. LEXIS 62468 (D. Minn. June 14, 2010).*

Permalink 12:31:49 pm, by fourth, 188 words, 292 views   English (US)
Categories: General

LA2: Arrest for failure to pay child support and FTA with knowledge of usual gun supported search incident

Defendant was sought out by officers for a warrant for failure to pay child support and failure to appear. They found him by his 18 wheeler, and they knew he usually carried a gun. That justified a search of the truck under Gant, which the court would not apply under the good faith exception if it couldn’t. State v. Brown, 42 So. 3d 458 (La. App. 2d Cir. 2010).*

Officers encountered defendant parked in a high crime area, and talked to him. They had no reasonable suspicion of any crime. When they asked for his driver’s license, they turned what would have been a consensual encounter into a seizure without reasonable suspicion. State v. Jones, 2010 Ohio 2854, 188 Ohio App. 3d 628, 936 N.E.2d 529 (10th Dist. 2010).*

The officer did not stop the defendant. He approached her parked car because he suspected she might be in distress. He parked behind her such that her path was not blocked, and his blue lights were not on, just amber flashing lights. He was acting in a community caretaking function when he determined that defendant might be DUI. State v. Tindell, 2010 Tenn. Crim. App. LEXIS 528 (June 22, 2010).*

Permalink 12:13:12 pm, by fourth, 146 words, 302 views   English (US)
Categories: General

CA10: In an alleged false arrest case, officers don't have to know plaintiff's mental state; they can infer it.

Plaintiff’s arrest was with probable cause of bank fraud. His argument that they could not know his intent fails. Painter v. City of Albuquerque, 2010 U.S. App. LEXIS 12878 (10th Cir. June 23, 2010) (unpublished):

At the end of the day, the hard fact confronting Mr. Painter is that probable cause "does not deal with hard certainties, but with probabilities." Gates, 462 U.S. at 231. "Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Adams v. Williams, 407 U.S. 143, 149, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). And the facts known to the officers here, while not pointing uniformly in the same direction or metaphysically dispositive of Mr. Painter's intent, were sufficient for an objectively reasonable officer to think that Mr. Painter probably harbored the intent to cash a check he knew not to be valid.

Permalink 12:02:12 pm, by fourth, 131 words, 277 views   English (US)
Categories: General

M.D.Fla.: Issuance of arrest warrant did not extend state conditional release to support search after expiration

Defendant’s conditional release expired about six weeks before the search of his house, so his condition could not justify the search. Issuance of a violation arrest warrant before that date did not extend conditional release. United States v. Franklin, 2010 U.S. Dist. LEXIS 61993 (M.D. Fla. March 29, 2010), adopted 2010 U.S. Dist. LEXIS 61981 (M.D. Fla. June 22, 2010).

The passenger’s furtive movement as the officer walked up during a traffic stop justified a frisk of the car. Defendant’s arguments the search violated state law is inapplicable in federal court. United States v. Gaulden, 2010 U.S. Dist. LEXIS 62468 (D. Minn. June 14, 2010).*

Search of work lockers for missing equipment was justified under the circumstances and reasonable under O’Connor. Narotzky v. Natrona County Mem. Hosp. Bd. of Trs., 610 F.3d 558 (10th Cir. 2010).*

Permalink 11:56:54 am, by fourth, 317 words, 438 views   English (US)
Categories: General

D.Ariz.: Taking Fifth helped defeat standing in forfeiture case

Forfeiture claimant had standing but for taking the Fifth on everything other than possession. This was thus mere unexplained ownership, and that’s not enough. United States v. $133,420.00 in United States Currency, 2010 U.S. Dist. LEXIS 62270 (D. Ariz. June 23, 2010)*:

In this case, Louis' assertion of ownership in his responses to the Government's special interrogatories together with the fact that the currency was seized from the car he was driving would be enough to establish standing under $148,840.00. However, as the Government points out in its motion to strike Louis' discovery responses, Louis responded to the Government's special interrogatories only where advantageous to his cause. He conclusorily claimed an ownership interest in response to the Government's inquiries into the nature of his property interest in the currency, but declined, on Fifth Amendment self-incrimination grounds, to respond to follow-up questions about the details of that ownership interest, including how, why, or where he obtained the funds. Louis' invocation of the Fifth Amendment is therefore indistinguishable from that of the claimant in $148,840.00 and is a clear example of the impermissible use of the privilege as both a shield and a sword. Louis cannot be permitted to respond where it benefits his standing position yet shield that response from further scrutiny, thereby using the Fifth Amendment privilege "to mutilate the truth." Parcels of Land, 903 F.2d at 43.

The Court will therefore exercise its discretion to strike Louis' interrogatory responses and therefore his evidentiary assertion of ownership. What remains is the undisputed fact that Louis was in physical possession of the currency when it was seized. Louis has provided no explanation of that possession. Mere unexplained possession is insufficient for standing at any stage of the proceeding. See $191,910.00 in U.S. Currency, 16 F.3d at 1058; $148,840.00 in United States Currency, 521 F.3d at 1275-76.

The Court is mindful that the rules of decision proposed by both sides in this case are open to abuse. ...


Permalink 11:42:21 am, by fourth, 143 words, 274 views   English (US)
Categories: General

NM: Not arguing CI reliability waived issue for appeal

The reliability of the CI for defendant’ stop was virtually admitted at the suppression hearing, so defendant did not preserve the issue for appeal. The 15-20 minute wait for a drug dog was not unreasonable under the totality of the information that the officers had. State v. Martinez, 2010 NMCA 51, 233 N.M. 262, 233 P.3d 791 (2010), Certiorari Denied, May 5, 2010, No. 32,318.*

The District Court’s decision is supported by the record. “Further, although a surveillance video on the police car does not clearly show that Gonzalez's truck crossed the fog line, it does not contradict Dunn's testimony that the truck did cross the fog line.” United States v. Gonzalez, 383 Fed. Appx. 933 (11th Cir. 2010) (unpublished).*

Defendant’s counsel’s alleged failure to investigate witnesses in NYC would not have changed the outcome of what it was pertinent to, so no IAC. State v. Blake, 2010 Del. Super. LEXIS 255 (May 27, 2010).*

Permalink 11:37:20 am, by fourth, 161 words, 410 views   English (US)
Categories: General

E.D.La.: 5th Cir. policy is deciding GFE rather than PC

"The Fifth Circuit instructs that when a defendant moves to suppress evidence on the ground that the search warrant was not supported by probable cause, 'principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of evidence under the good-faith exception to the exclusionary rule will resolve the matter.' U.S. v. Flanders, 468 F.3d 269, 270 (5th Cir. 2006)." [You know where this is going.] Any entry prior to the issuance of the search warrant is mooted by the independent source doctrine. United States v. Jones, 2010 U.S. Dist. LEXIS 61625 (E.D. La. May 27, 2010).*

Knock-and-talk consent was valid, and it was accompanied by a statement that consent could be refused. United States v. Kopf, 2010 U.S. Dist. LEXIS 61461 (E.D. Mo. May 27, 2010).*

Direct appeal of a Fourth Amendment question is law of the case for § 2255. United States v. Edgerson, 2009 U.S. Dist. LEXIS 127617 (E.D. Mich. August 27, 2009).*

Permalink 11:33:27 am, by fourth, 117 words, 422 views   English (US)
Categories: General

TX3: Officer's conclusions insufficient in arrest warrant affidavit; omission of date fatal, too

Arrest warrant’s affidavit that was merely the conclusions of the officer and did not offer facts to the magistrate was insufficient under the Fourth Amendment. The omission of the date anything happened was fatal, too. State v. Jordan, 315 S.W.3d 660 (Tex. App.–Austin 2010).*

Defendant ran into the back of an off duty officer in uniform outside the officer’s jurisdiction. The officer ordered defendant from his vehicle, then back into it to wait for the local police, and took his keys. The officer suspected defendant was DUI, also having six priors. The arrest was invalid as a citizen’s arrest, and the DUI is set aside. Commonwealth v. Limone, 77 Mass. App. Ct. 903, 928 N.E.2d 669 (2010).*


Permalink 11:29:55 am, by fourth, 248 words, 421 views   English (US)
Categories: General

SC: SI or automobile or inventory search of a duffle bag all fail because arrest was for open container

Defendant was arrested for an open container and was handcuffed and put in a police car. Officers then searched a duffle bag that he had with him. The search incident of the duffle bag was unreasonable because the offense was complete and further evidence would not logically be found. The state’s alternative argument of probable cause for a vehicle search failed for the same reason, and the officer did not even take the beer can as evidence. The state’s next alternative of inventory fails because it did not even put on evidence to support inventory. State v. Brown, 389 S.C. 473, 698 S.E.2d 811 (2010).*

“Even assuming that the entry of the police officers into the residence located at 5330 Venus Street in New Orleans and initial security sweep of the premises occurred without exigent circumstances or consent and thus amounted to an illegal search of the dwelling, when officers have probable cause to believe that evidence of criminal activity is on the premises, they may temporarily secure the dwelling to protect themselves and to prevent the removal or destruction of evidence to preserve the status quo while obtaining a search warrant.” State v. Flores, 2010 La. LEXIS 1388 (June 18, 2010).*

The officer stopped defendant for a traffic offense and saw that he had an open container. Defendant was excessively nervous. When he opened the center console to get his DL, the officer saw two apparent bags of drugs. This was a valid plain view. State v. Flores, 996 A.2d 156 (R.I. 2010).*

Permalink 11:25:25 am, by fourth, 251 words, 427 views   English (US)
Categories: General

CO: Defense SDT for third-party's e-mails was a virtual search warrant and excessive

A defense pretrial subpoena duces tecum to a third party amounted to a search warrant of a computer for e-mails, and it was an excessive use of the subpoena power. Limiting the defense power did not violate the right to put on a defense or compulsory production, either. The DA had standing to bring the issue. In re: People v. Spykstra, 234 P.3d 662 (Colo. 2010):

Because the Nixon test addresses and prevents potential abuse of the rule as a broad discovery tool, we adopt a substantially similar standard, adding an initial element to make explicit what is otherwise inherent. Accordingly, when a criminal pretrial third-party subpoena is challenged, a defendant must demonstrate:

(1) A reasonable likelihood that the subpoenaed materials exist, by setting forth a specific factual basis;
(2) That the materials are evidentiary and relevant;
(3) That the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence;
(4) That the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and
(5) That the application is made in good faith and is not intended as a general fishing expedition.

See Nixon, 418 U.S. at 699-700; Mason, 989 P.2d at 761 (requiring the prosecution to demonstrate probable cause to obtain the defendant's protected bank and telephone records from third parties by showing (1) a reasonable likelihood that the evidence exists and (2) a nexus between the materials and the charges against the defendant).

Permalink 11:21:41 am, by fourth, 222 words, 242 views   English (US)
Categories: General

OH2: Delay of 3 mo. in arresting and then without an arrest warrant voided search incident on arrest

Defendant’s arrest months after an offense, timed to protect the identity of an informant, was without a warrant, and there was no justification for doing without one. The prior offense was used as the reason for the current stop, and the product of that arrest is suppressed. State v. VanNoy, 2010 Ohio 2845, 188 Ohio App. 3d 89, 934 N.E.2d 413 (2d Dist. 2010):

[*P26] According to the record, Detective Bell's testimony at the suppression hearing established that VanNoy was stopped in order to effectuate an arrest for drug trafficking offenses that had occurred several months before. Although Bell further testified that the delay was necessary to protect the identity of his confidential informant, nothing in Bell's testimony explains why the detective did not obtain an arrest warrant once he decided that he could arrest VanNoy without endangering his informant. Although VanNoy was the subject of an on-going investigation, Bell indicated that three months elapsed between the last alleged criminal activity and the stop. There was no suggestion that VanNoy's immediate, warrantless arrest on July 31, 2008, was necessary to protect the informant, to prevent VanNoy's fleeing, or for some other urgent reason.

Defendant was accosted by officers as a trespasser on housing authority property and he fled. He was not seized when he fled under Hodari D. State v. Roark, 2010 Ohio 2841, 2010 Ohio App. LEXIS 2328 (2d Dist. June 18, 2010).*


Permalink 04:02:49 pm, by fourth, 107 words, 468 views   English (US)
Categories: General

AP: "N.Y. May Mandate Taking DNA from All Criminals"

On today from the AP: N.Y. May Mandate Taking DNA from All Criminals | Law Would Be First in Nation to So Broadly Collect and Use DNA to Solve Crimes and Exonerate People Wrongly Convicted:

Gov. David Paterson has proposed roughly doubling New York's DNA database to include samples from even low-level offenders, making it the first in the nation to so broadly collect and use this evidence to solve crimes and exonerate people wrongly convicted.

New York's law would require adding about 48,000 samples a year to a laboratory system that state officials say is capable of handling the extra work, with no current backlogs.

Permalink 03:02:28 pm, by fourth, 282 words, 549 views   English (US)
Categories: General

CNET: Dragnet cell tracking

On CNET is this really interesting article: ACLU: FBI used 'dragnet'-style warrantless cell tracking by Declan McCullagh with links to pleadings.

To nab a pair of men accused of robbing banks in Connecticut, court documents show the FBI turned to a novel investigative technique last year: warrantless monitoring of the locations of about 180 different cell phones, court documents show.

The FBI obtained a secret order--it has not been made public--commanding nine different telephone companies to provide federal police "with all cell site tracking data and cell site locator information for all incoming and outgoing calls to and from the target numbers."

But because the U.S. Justice Department did not obtain a warrant by proving to a judge that there was probable cause to suspect criminal activity, there's now a risk that the evidence from the location surveillance may be tossed out of court as illegally obtained. (Here's a list (PDF) of the phone numbers tracked.)

An attorney for Luis Soto, one of two brothers accused of stealing about $90,000 from Webster Bank and New Alliance Bank, asked a Connecticut judge on May 18 to suppress the location information, saying "the government obtained information that could be used to track the movements and locate the whereabouts at specific times of up to 180 people." That violates their Fourth Amendment right to be free from unreasonable searches, Soto said.

On Friday, the ACLU and the Electronic Frontier Foundation submitted a friend-of-the-court brief (PDF) agreeing with the defense. It says: "Because cell site location information implicates an expectation of privacy that society is prepared to recognize as reasonable, the Fourth Amendment requires that the government obtain a warrant based on probable cause prior to collecting this information."

Permalink 09:50:50 am, by fourth, 265 words, 328 views   English (US)
Categories: General

CA10: Defendant's briefly backing up during stop was not a submission to authority

Under Hodari D., defendant did not submit to the officer’s show of authority at first by backing up. By the time he did submit, the officer had reasonable suspicion. United States v. Salazar, 609 F.3d 1059 (10th Cir. 2010):

Trooper Berner explained that, as Mr. Salazar's truck began to back away, he was concerned that "this vehicle [was] trying to allude [sic] me," Aplt's App. at 24, and that, at that point, "I'm not quite sure what he's doing or why he's doing what he's doing." Id. at 31. We find that assessment entirely reasonable. From the point of view of a "prudent, cautious, and trained officer[]," see Anderson, 154 F.3d at 1233, Mr. Salazar's backing up could have suggested a nascent attempt to flee, an effort to buy time so that he could dispose of contraband or formulate an explanation to provide to the officer, or simply a period of indecision before he determined what to do. In light of these reasonable interpretations of Mr. Salazar's backing up his pickup truck, we agree with the government that he did not submit to Trooper Berner's authority until he complied with the command to get out of the truck. Cf. United States v. Letsinger, 93 F.3d 140, 145 (4th Cir. 1996) (holding that, in order to constitute submission, "the suspect must clearly acquiesce to the officer's show of authority") (emphasis added).

In conducting a search for evidence of a shooting, officers did not exceed the scope of search by going into the kitchen. Evidence of the shooting could have been found there. Drugs were instead. State v. Munroe, 2010 Tenn. Crim. App. LEXIS 507 (June 18, 2010).*

Permalink 09:02:15 am, by fourth, 267 words, 384 views   English (US)
Categories: General

S.D.N.Y.: Terrorism suspect claiming PTSD from the CIA could not avoid jail strip searches on that ground

Defendant, accused of conspiring with bin Laden to bomb embassies in 1998 and awaiting trial in Manhattan, is strip searched whenever he goes to court. He claims PTSD flashbacks from the strip search to CIA interrogation techniques. The court rejects his claim because of the weighty interest in jail and courtroom security. United States v. Ghailani, S10 98 Crim. 1023 (LAK) (S.D. N.Y. June 14, 2010):

In light of the above Beard [v. Banks] analysis, and even assuming the truth of all of Dr. Porterfield’s testimony, which the Court does not now either accept or reject, the defendant is not entitled to relief. He has not “met [his] heavy burden of showing that these officials have exaggerated their response to the genuine security considerations that actuated these restrictions and practices.” The challenged prison regulation – namely, the requirement of visual inspection of defendant’s body cavities as part of a standard visual search performed whenever he travels to or from court – is justified by the legitimate governmental interest in protecting the safety of prison and court personnel and other inmates. The Court’s intervention in this matter would be inappropriate.


Defendant failed to show under Franks that the arrest affidavit had false information in it. It could have been better, however, “Significantly, during Hyatt’s cross-examination of Farris at the suppression hearing, he failed to ask any questions regarding the veracity of the statements that she made in her affidavit.” There was a private search of defendant’s computer, and the government had nothing to do with it. United States v. Hyatt, 383 Fed. Appx. 900 (11th Cir. 2010) (unpublished).*

Permalink 08:36:33 am, by fourth, 144 words, 301 views   English (US)
Categories: General

UT: Frisk of bystander was without RS and invalid

Defendant was a mere bystander to the frisk of his friend that produced a knife in the friend’s pocket. The officer frisked defendant, too, but without reasonable suspicion, and a hard cylindrical object was felt in defendant’s pocket. The officer went for it thinking it might be a knife, but it was a container of meth. The frisk was invalid. State v. Lowe, 2010 UT App 156, 2010 Utah App. LEXIS 160 (June 17, 2010).

Officers reasonably believed that defendant dropped drugs during his flight from them, and his reappearance in bushes made reasonable his arrest. People v. Holman, 402 Ill. App. 3d 645, 937 N.E.2d 196 (2010).*

Police received a call from defendant’s wife that he was driving drunk, and the vehicle description and route to the high school to pick up kids was given. That was reasonable suspicion for a stop. State v. Wollam, 280 Neb. 43, 783 N.W.2d 612 (2010).*

Permalink 08:13:32 am, by fourth, 161 words, 321 views   English (US)
Categories: General

W.D.N.Y.: Good faith reliance on impoundment ordinance to seize vehicle made inventory valid

The inventory of defendant’s vehicle was dependent upon the initial impoundment. Under Krull, the officers relied in good faith on the ordinance for impoundment, so the inventory under specific policy thereafter was valid. United States v. Arias, 2010 U.S. Dist. LEXIS 60724 (W.D. N.Y. June 17, 2010).*

Defendant admitted in his motion to suppress that he did not reside in the place searched, and he had no standing. It belonged to his father, and there was no evidence that he was an overnight guest. There were some clothes there that he could wear, but there was no evidence that they were his. United States v. Jack, 2010 U.S. Dist. LEXIS 60690 (E.D. Tenn. May 25, 2010).*

A report from store loss prevention employees was reliable enough on the totality to stop defendant after two transactions that appeared to be fraudulent, despite the fact the credit card was accepted for the transaction. United States v. Abney, 2010 U.S. Dist. LEXIS 60616 (E.D. Pa. June 18, 2010).*


Permalink 11:21:41 am, by fourth, 31 words, 358 views   English (US)
Categories: General

New law review article: "Arrest Efficiency and the Fourth Amendment"

"Arrest Efficiency and the Fourth Amendment," L. Song Richardson of DePaul University College of Law to be published in the Minnesota Law Review. Abstract here. The article discusses unconscious racial profiling.

Permalink 09:16:16 am, by fourth, 161 words, 1406 views   English (US)
Categories: General

Fourth Amendment cases, citations, and links added

"Fourth Amendment cases[ by actual name], [full] citation, and links" is on the sidebar, and it is searchable by Ctrl + F.

[Update: This had a broken link on the sidebar. Nobody told me. Apparently nobody is online.]

This is a collection of 239 Fourth Amendment cases from the U.S. Supreme Court [from Boyd (1886) to Quon (2010)] and four historical cases from England in the 17th and 18th Centuries. This is the list I've used for three years to plug in links to case name here and to research Fourth Amendment cases and plug in citations in briefs.

I finally got around to posting it to share.


Fourth Amendment cases,
citations, and links [New]

Latest Slip Opinions:

U.S. Supreme Court (Home)
Federal Appellate Courts
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts

Permalink 01:18:23 am, by fourth, 138 words, 439 views   English (US)
Categories: General

PA: While defendant's pursuit by police was without RS, he dropped a gun, picked it up, and ran, and that made second pursuit legal

First pursuit of the defendant was unlawful, but defendant dropped a gun when he fell. He ignored the officer’s command to not reach for the gun–grabbing it, he ran again. The second pursuit was lawful. If he had dropped the gun and not grabbed it and ran again, the court would have suppressed. Commonwealth v. Taggart, 2010 PA Super 110, 997 A.2d 1189 (2010).*

Defendant was arrested for “upskirting,” and a search warrant was obtained for his home, computer, and car to look for the storage device. The court concludes that “upskirting” in a shopping mall is not a crime under the Tennessee law for video recording in a place where there is an expectation of privacy. Therefore, the SW was issued under a mistake of law, and the case is reversed. State v. Gilliland, 2010 Tenn. Crim. App. LEXIS 501 (June 17, 2010).*

Permalink 01:00:36 am, by fourth, 166 words, 394 views   English (US)
Categories: General

CA5: Cursing at the defendant while training a gun on him may be less than professional, but maybe not under the circumstances; it certainly does not warrant suppression

The officer’s cursing at defendant as he threatened to “blow [his] head off” did not itself make the stop unreasonable to require suppression. United States v. Craig, 381 Fed. Appx. 459 (5th Cir. 2010) (unpublished).

The license plates did not match the vehicle, so the officer was justified in the stop. Defendant was handcuffed and placed in the back of a police car. The search of the car was valid as a vehicle search and it was supported by plain view of crack in the car. Gant did not apply. United States v. Hunley, 2010 U.S. Dist. LEXIS 60036 (W.D. N.Y. February 26, 2010).*

The trial court erred in granting a suppression motion without a hearing since the facts were controverted by the state. The issue was whether credit cards seen during the execution of a search warrant that were not in the defendant’s name could be seized as being in plain view. People v. Mele, 2010 NY Slip Op 5425, 74 A.D.3d 1095, 903 N.Y.S.2d 133 (2d Dept. 2010).*


Permalink 02:04:46 pm, by fourth, 11 words, 296 views   English (US)
Categories: General

Server problems again.

I couldn't get in for nearly seven hours today. This sucks.

Permalink 01:12:30 am, by fourth, 476 words, 3008 views   English (US)
Categories: General

TX13: 14 year old visitor had no apparent authority and officer did not inquire

Officer lacked any reasonable belief that a 14 year old at the house, who was a mere visitor, had apparent authority to consent to an entry and search. Limon v. State, 314 S.W.3d 694 (Tex. App. Corpus Christi - Edinburg 2010), revd Limon v. State, 2011 Tex. Crim. App. LEXIS 830 (June 15, 2011) (dissent) (posted June 20, 2011):

First, mere presence at a residence is insufficient to support a reasonable belief that the person has authority to consent to a search. The State must present more evidence than mere presence to support a finding of apparent authority. See, e.g., United States v. Cos, 498 F.3d 1115, 1129 (10th Cir. 2007); Riordan v. State, 905 S.W.2d 765, 772 (Tex. App.-Austin 1995, no pet.) (holding that mere presence and relationship to defendant does not justify conclusion that person has apparent authority). A.S.’s mere act of answering the door in the middle of the night did not, by itself, justify Officer Perez’s conclusion that A.S. had authority to consent to entry into the home, and more specifically, into Limon’s bedroom, particularly given that Officer Perez knew that an adult owned and resided on the premises.

Second, a child is generally incapable of waiving his own rights without any instruction or guidance, and is even less fit to surrender the rights of another. ... More importantly, however, a child who may have been awakened from his or her slumber at 2:00 a.m. is unlikely to be thinking clearly or capable of making a reasoned decision whether to admit officers into the home. See Matt McCaughey, And a Child Shall Lead Them: The Validity of Children’s Consent to Warrantless Searches of the Family Home, 34 U. LOUISVILLE J. FAM. L. 747, 749 (1996) ("[C]hildren are far less likely to understand the consequences of their consent, and thus, some may not have the capacity to consent voluntarily to a warrantless search."). Officer Perez did not testify that he advised A.S. of the consequences of his consent to search or that A.S. understood those consequences and made a reasoned decision.

These circumstances created an ambiguity that Officer Perez was obligated to resolve before entering the home, requiring him to ask further questions, such as whether the child actually lived at the home, whether the child’s parents were available, whether the child understood that he did not have to consent, or whether the child wished to consult an adult on the premises. ... Had Officer Perez simply asked A.S.’s name, he would have realized that A.S. did not share the same last name as Limon, Sr. Upon that discovery, Officer Perez should have asked to speak to Limon, Sr., instead of relying on a thirteen - or fourteen-year-old’s consent to enter. The State did not meet its burden to present evidence demonstrating a reasonable belief that A.S. had authority to allow the officers to enter.

Permalink 12:47:48 am, by fourth, 218 words, 325 views   English (US)
Categories: General

GA: Bloody shoes seen during execution of an assault and false imprisonment SW could not be ignored; DNA not suppressed

Officers executing a search warrant in an aggravated assault and false imprisonment case saw a pair of tennis shoes with apparent blood on them. The bloody shoes were in plain view for a seizure. Bryant v. State, 304 Ga. App. 456, 696 S.E.2d 439 (2010).*

Defendant turned off his flashers and was driving on the shoulder when the officer stopped him. The stop was still reasonable under the community caretaking function. State v. Organ, 225 Ariz. 43, 234 P.3d 611, 585 Ariz. Adv. Rep. 10 (App. 2010)*:

P18 Based on the facts known to Officer Lamb at the time of the stop, it was reasonable for him to believe Defendant was having some emergency or trouble, that Defendant may have needed assistance and that a welfare check was necessary. Although Defendant's vehicle was no longer at a complete stop, because Defendant was driving slowly on the shoulder of the road for some distance, Officer Lamb's cause for concern was not alleviated. He could reasonably believe that Defendant had a continuing problem and needed help.

P19 Further, the officer's action in stopping the vehicle was "suitably circumscribed to serve the exigency which prompted it." Ray, 981 P.2d at 937. It was only after the officer noticed other suspicious behavior while performing the welfare check that his inquiry changed from ascertaining if Defendant needed assistance into a potential criminal investigation.

Permalink 12:26:45 am, by fourth, 139 words, 461 views   English (US)
Categories: General

IN: "Police spotter's" report juvenile was flashing a gun was RS for a frisk

It was reported to by a "police spotter" that defendant juvenile was flashing a gun in his waistband to others. That was reasonable suspicion for a frisk. W.H. v. State, 928
N.E.2d 288 (Ind. App. 2010).*

Police received a 911 call that an unidentified male had rung a doorbell at 2 a.m. Getting no response, he left. Officers responded and saw a person matching the description in a car in the neighborhood. He stopped too long at a stop sign, and the police pulled him over. The stop was with reasonable suspicion, and he was DUI. Ertel v. State, 928 N.E.2d 261 (Ind. App. 2010).*

Defendant was arrested for sexual assault, and the police conducted a protective sweep of his nearby vehicle. Defense counsel was not ineffective for not challenging this search. Commonwealth v. Jones, 77 Mass. App. Ct. 53, 928 N.E.2d 374 (2010).*

Permalink 12:20:54 am, by fourth, 140 words, 449 views   English (US)
Categories: General

NC: Digital scale could be seized under plain feel

Plain feel of a digital scale during a patdown was reasonable under Dickerson. State v. Morton, 204 N.C. App. 578, 694 S.E.2d 432 (2010).

Looking in on a stopped pickup truck in a parking lot at 2 a.m. with a driver slumped over the wheel was reasonable under the community caretaking function. The driver was DUI. City of Mandan v. Gerhardt, 2010 ND 112, 783 N.W.2d 818 (2010).* For the learning impaired courts:

[*P7] A person alleging a violation of Fourth Amendment rights has the initial burden of establishing a prima facie case of illegal seizure. City of Jamestown v. Jerome, 2002 ND 34, P 6, 639 N.W.2d 478 (citing City of Fargo v. Sivertson, 1997 ND 204, P 6, 571 N.W.2d 137). "After the person alleging a Fourth Amendment violation has made a prima facie case, the burden of persuasion is shifted to the State to justify its actions." Id.


Permalink 10:54:11 am, by fourth, 121 words, 744 views   English (US)
Categories: General

GA state rep.: Drug testing for unemployment benefits

On FoxNews today, for some reason: Laid Off? Take a Drug Test | Lawmaker wants people get drug-tested in order to get unemployment benefits (video actually from March, but it was discussed today, again), from a Georgia state lawmaker. See also from March. Its HB 1389, and the recipient of the funds has to pay for the test. Didn't that die without a vote? This is so old, it's not newsworthy. But, that's Fox--filling airtime with the scare of the day.

This is so unconstitutional, it's laughable. See Ferguson v. City of Charleston, 532 U.S. 67 (2001), and Chandler v. Miller, 520 U.S. 305 (1997) [from Georgia].

If it's me, its unconstitutional. If it's you, well that's reasonable government regulation designed to save the Republic.

Permalink 10:16:32 am, by fourth, 231 words, 312 views   English (US)
Categories: General

E.D.Mich.: Frisk of duffle bag was unreasonable without feeling it first

Defendant’s duffle bag made a “thud” when it was dropped, and it was searched for weapons. The court finds that the frisk of the duffle bag was unreasonable when looking to the government’s authorities where there was more information or even a feel of the bag on whether there was gun inside. Here, no. United States v. Davis-Devine, 721 F. Supp. 2d 571 (E.D. Mich. 2010):

Contrasting the officer's actions in Williams to Officer Reese's actions in the present case shows what Officer Reese could have done differently. In the present case, Officer Reese testified that he picked up Defendant's duffle bag from the floor, and immediately opened it. After securing the bag and ameliorating any purported safety concern, Officer Reese did not: (1) ask Defendant whether he could open the duffle bag; (2) ask Defendant what was in the duffle bag; or (3) feel the duffle bag to attempt to determine if it contained a weapon. Officer Reese should have taken some, or all, of these steps before opening Defendant's duffle bag.

Because the undersigned finds that the search of Defendant's duffle bag was unlawful, any evidence or contraband discovered as a result of that intrusion was illegally obtained. See United States v. Williams, 604 F.2d 1102, 1123 (8th Cir. 1979). Therefore, all the evidence recovered from Defendant's blue duffle bag, from Defendant's person after he was arrested and from Defendant's hotel room should be suppressed.

Permalink 10:06:38 am, by fourth, 150 words, 413 views   English (US)
Categories: General

PA: ID evidence not suppressible

Identification is not subject to suppression. Defendant reached for his wallet as he was being arrested, and dropped it when a gun was pulled. The police were not convinced he was the guy they were looking for. State v. Winters, 2010 Ohio 2678, 2010 Ohio App. LEXIS 2217 (11th Dist. June 11, 2010).*

Plaintiff was validly stopped for not having a properly lighted license plate. When the officer stopped him, the officer could go right to the driver without looking first at the license plate again. Gonzales v. Dickson, 2010 Ohio 2792, 2010 Ohio App. LEXIS 2302 (6th Dist. June 18, 2010).*

Pro forma motion to suppress did not state any proper grounds, and it was properly denied. Commonwealth v. Dixon, 2010 PA Super 109, 2010 Pa. Super. LEXIS 423 (June 15, 2010).*

Detailed information from the CI provided probable cause to believe that the defendant was carrying heroin, so his stop and search was reasonable. United States v. Vaughn, 2010 U.S. Dist. LEXIS 59849 (C.D. Ill. May 24, 2010).*

Permalink 09:52:59 am, by fourth, 296 words, 305 views   English (US)
Categories: General

NM: When RS dissipates, frisk is a fishing expedition

Once reasonable suspicion for the initial stop has dissipated, the officer acts unreasonably by detaining the defendant for a weapons frisk. This turned into a fishing expedition. The subsequent frisk was not by consent. State v. Figueroa, 2010 NMCA 48, 148 N.M. 811, 242 P.3d 378 (2010), cert. granted, 148 N.M. 584, 241 P.3d 182 (2010):

[*26] Having found no reason to investigate further and no reason to detain Defendant, Officer Mullins told Defendant he was free to leave. This constituted a recognition that his suspicion about Defendant's involvement in the domestic issue had been dispelled, and it ended his authority to detain Defendant or to investigate further. See Forfeiture, 1998 NMCA 29, PP 16-18. However, instead of letting Defendant leave, Officer Mullins successfully detained Defendant for a weapons check, even though there was no reasonable suspicion for his question about weapons and even though he articulated no danger to the officers.

[*27] His decision to continue questioning Defendant about weapons crossed the line into an impermissible fishing expedition and was not reasonable. Officer Mullins had already had contact with the woman who was complaining that her brother was harassing her, had knowledge that Defendant had not been identified in any way as being a part of the problem, and had received no report at any time that weapons had been a part of whatever was going on between the brother and sister. Drugs had not been mentioned by the sister, there was no reasonable suspicion that drugs played any part in the ongoing domestic issue, nor was there any other reasonable suspicion of drug activity. Consequently, we conclude that there was no evidence to support Officer Mullins' interest in weapons or drugs or to support his continued questioning of Defendant. For these reasons, we hold that Officer Mullins illegally expanded the scope of the initial investigatory stop.

Permalink 09:47:27 am, by fourth, 89 words, 500 views   English (US)
Categories: General

D.N.D.: 59 minute wait for drug dog not unreasonable

59 minute wait for a drug dog after an accident on a rural highway did not make the continuation of the stop unreasonable. United States v. Porras-Palma, 2010 U.S. Dist. LEXIS 59293 (D. N.D. May 24, 2010).*

Where the stop for suspicion of drug sales was valid, the immediate use of a drug dog was not unreasonable. State v. Johnson, 2010 Ark. 294, 2010 Ark. LEXIS 336 (June 17, 2010).*

Seizure “incident to arrest” in the forfeiture statute means around the time of the arrest, not a standard SI. Mycka v. 2003 GMC Envoy, 783 N.W.2d 234 (Minn. App. 2010).*

Permalink 09:27:05 am, by fourth, 193 words, 459 views   English (US)
Categories: General

IN: Looking in car in driveway with a flashlight when looking for the defendant during a community caretaking function was not unreasonable search

Reasonable suspicion supported the search of defendant’s truck on the parking lot of a school for possession of drugs. The officer verified as much detail as he could from the anonymous tip, and he saw what appeared to be marijuana when he looked through the window. People v. Perreault, 287 Mich. App. 168; 782 N.W.2d 526 (2010), revg 287 Mich. App. 168, 2010 Mich. App. LEXIS 94 (January 19, 2010).

Defendant and his cohorts pushing a wheeled city trash can down the sidewalk at 2:30 a.m. on a non-trash day was reasonable suspicion in light of a city ordinance against anybody other than the city to pick up trash. People v. Edward, 402 Ill. App. 3d 555, 341 Ill. Dec. 563, 930 N.E.2d 1077 (2010).*

Officers arrested defendant’s wife on outstanding warrants. The officers tried to find her husband to take their child. One officer went to his house looking for him, and in the car in the driveway was a modified propane tank for making meth. That led to a search warrant for the premises for meth because Mrs. Boggs had a record for making meth. Looking in the car with a flashlight was not unreasonable. Boggs v. State, 928 N.E.2d 855 (Ind. App. 2010).


Permalink 11:06:07 am, by fourth, 746 words, 566 views   English (US)
Categories: General

D.Utah: Defendant has burden of showing drug dog is not qualified [Wrong!]

The CI was corroborated in significant part, and the CI had a good track record, so the stop was justified by that and the fact the registration expired. A drug dog was used on the vehicle, and the defendant has the burden of showing the drug dog was unqualified. United States v. Nguyen, 2010 U.S. Dist. LEXIS 59455 (D. Utah June 15, 2010).*

Note: This is just so fundamentally wrong, and I am shocked, shocked that a judge can still be that obtuse in 2010. (See this post from May on the same issue where a federal judge granted a motion to reconsider after applying the wrong burden of proof at the government's request. "I'm from the government, and I'm here to help you.")

Let me say it again for the Fourth Amendment impaired in the judiciary and government:

The government always bears the burden of proof on the merits of any warrantless search. See this chain of citations from this case, which shows that the Tenth Circuit may have it wrong in 1994: this case only cites United States v. Clarkson, 551 F.3d 1196, 1202-03 (10th Cir. 2009), but that says nothing. It, in turn, cites United States v. Moore, 22 F.3d 241 (10th Cir. 1994), which states: "The proponent of a motion to suppress bears the burden of proof. Rakas v. Illinois, 439 U.S. 128, 130-31 n. 1, 99 S.Ct. 421, 423-24, 58 L.Ed.2d 387 (1978); United States v. Carr, 939 F.2d 1442, 1446 (10th Cir.1991)." Rakas's note 1 just says that the defendant has to show standing to get to the merits of the search claim. See United States v. Matlock, 415 U.S. 164, 177 n.14 (1974):

There was an inadvertence in articulating the applicable burden of proof, but it seems to have been occasioned by a similar inadvertence by the Government in presenting its case. In any event, the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence. See Lego v. Twomey, 404 U. S. 477, 488-489 (1972). We do not understand the Government to contend that the standard employed by the District Court was in error, and we have no occasion to consider whether it was.

Standing is one thing, the Fourth Amendment merits are another. Standing is a question of going forward, just like saying "I was the target of a warrantless search of my car, and I have standing because it is my car." It's that simple. When the defendant shows standing, the burden then shifts to the government to support the merits of the warrantless search. See, e.g., United States v. Jeffers, 342 U.S. 48, 51 (1951):

The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both "houses" and "effects." Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. See Weeks v. United States, 232 U. S. 383 (1914); Agnello v. United States, 269 U. S. 20 (1925). Only where incident to a valid arrest, United States v. Rabinowitz, 339 U. S. 56 (1950), or in "exceptional circumstances," Johnson v. United States, 333 U. S. 10 (1948), may an exemption lie, and then the burden is on those seeking the exemption to show the need for it, McDonald v. United States, 335 U. S. 451, 456 (1948). In so doing the Amendment does not place an unduly oppressive weight on law enforcement officers but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended. Johnson v. United States, supra. Officers instead of obeying this mandate have too often, as shown by the numerous cases in this Court, taken matters into their own hands and invaded the security of the people against unreasonable search and seizure.

This is settled law for over 60 years. Are you guys new at this?

Finally, the drug dog's reliability is generally satisfied by a few words from the officer about training, and the burden shifts to the defendant to attempt to rebut, say by the number of false positives. See, e.g., United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999):

A dog’s positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable. To establish the dog’s reliability, the affidavit need only state the dog has been trained and certified to detect drugs. An affidavit need not give a detailed account of the dog’s track record or education.

(See first here; it's essentially Brady, but not all courts would go that far. See here. Search "dog reliability" and "dog training" and "false positives" for more.)

Permalink 09:21:55 am, by fourth, 153 words, 379 views   English (US)
Categories: General

D.V.I.: Failure to consent can become admissible if defendant "opens the door"

While comments on defendant’s refusal to consent are general inadmissible, the government can admit evidence of defendant’s refusal to consent to a search if the defendant argues at trial the absence of evidence (matching DNA) that would have been found. United States v. Davis, 2010 U.S. Dist. LEXIS 59354 (D. V.I. June 15, 2010).

An alleged date discrepancy on an arrest warrant was not sufficient to put the officer on notice that the arrest warrant was invalid for qualified immunity purposes. Pair v. City of Parker FL Police Dep't, 383 Fed. Appx. 835 (11th Cir. 2010) (unpublished).*

Officer’s entry onto property at 4 a.m. was ostensibly to investigate a burglary and he entered an open door. The court finds that the proffered explanation was pretext for a meth lab investigation. The fact the officers left for 30 minutes and came back shows no exigency. United States v. Wells, 2010 U.S. Dist. LEXIS 59408 (E.D. Mo. June 14, 2010).*

Permalink 09:07:49 am, by fourth, 238 words, 381 views   English (US)
Categories: General

D.Kan.: Officers being out of their state who conducted a stop was not a Fourth Amendment issue

Officers from Missouri were conducting surveillance when they were following defendant and they unknowingly traveled into Kansas. The fact they were outside their jurisdiction was irrelevant under the Fourth Amendment. United States v. Jones, 2010 U.S. Dist. LEXIS 59429 (D. Kan. June 15, 2010):

The fact that the officers were out of their authorized jurisdiction may be relevant for purposes of state law but does not change this court's analysis for purposes of suppression. "[I]t is not the province of the Fourth Amendment to enforce state law." Virginia v. Moore, 128 S.Ct. 1598, 1607-08 (2008) (holding that a search of a person, conducted incident to an arrest that was beyond the arresting officers' authority under state law, nonetheless should be evaluated by Fourth Amendment standards for warrantless searches). See also Bowling v. Rector, 584 F.3d 956, 968 (10th Cir. 2009) (holding that Fourth-Amendment analysis was proper inquiry to evaluate validity of search warrant sought and executed by an officer who was investigating a matter outside the limited subject-matter jurisdiction granted to him by Oklahoma law); United States v. Green, 178 F.3d 1099, 1107 (10th Cir. 1999) (applying Fourth Amendment analysis to officers' execution of search warrant outside their state-authorized jurisdiction); United States v. Gonzales, 535 F.3d 1174, 1183 (10th Cir. 2008) (state jurisdictional law irrelevant to inquiry of reasonableness of traffic stop under Fourth Amendment); United States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2006) (stating that officer's authority under state law is irrelevant for purposes of analyzing validity of consent to search).

Permalink 08:48:48 am, by fourth, 304 words, 592 views   English (US)
Categories: General

CA4: Standard military inspection of iPod found CP and was reasonable

The inspection of a military servicemember's iPod was necessary and conducted under military necessity (Mil. R. Evid. 313, "to locate and confiscate unlawful weapons and other contraband") under standard military protocol without any individualized suspicion at a base for processing out. Child pornography was found, and defendant admitted that more would be found at the computer at his parent's house. A search warrant was issued for the house. The search of the iPod was reasonable. Military necessity is governed by U.S. Const., art. I, § 8, cl. 14, although service members are protected by the Fourth Amendment as well. Military necessity alters the "special needs" doctrine (United States v. Jenkins, 986 F.2d 76, 78 (4th Cir. 1993)). United States v. Rendon, 607 F.3d 982 (4th Cir. 2010):

In this case, as noted above, there is no evidence in the record that anyone had a particularized suspicion of Rendon when he was first inspected, nor is there any evidence that he was treated any differently from any other soldier entering the unit. The search of his personal property was conducted pursuant to a regularly scheduled intake protocol for new members of the unit, and the search stayed within the parameters authorized by the commanding officer in the DSCB Handbook and defined in Military Rule of Evidence 313. Even though a purpose of the search was the detection of contraband, it appropriately related to the good order and discipline of the unit. The search was, therefore, a valid military inspection, conducted as part of the regular procedure performed for all entrants into the unit to ensure discipline within the unit and service members’ compliance with military rules. See United States v. Hay, 3 M.J. 654, 656 (A.C.M.R. 1977). Because the search of Rendon’s MP3 player was conducted as part of a valid military inspection, no reasonable expectation of privacy in its contents was violated.

Permalink 08:32:19 am, by fourth, 269 words, 303 views   English (US)
Categories: General

E.D.Ky.: Seizure of a computer in a CP investigation was justified by exigent circumstances where defendant knew the police were on to him

A child pornography investigation brought investigators to a fire station after an IP address was traced there. The officer could not open the files after defendant consented to a look at the computer. At that point, seizure of defendant’s computer was justified by exigent circumstances because it was likely defendant would destroy the images before a search warrant could be obtained. United States v. Bradley, 2010 U.S. Dist. LEXIS 59816 (E.D. Ky. June 16, 2010):

Although Bradley had consented to the image scan and examination of his LimeWire props, Bradley still could have attempted to destroy evidence once out of the investigators' presence. See United States v. Lamb, No 09-CR-44, 2010 U.S. Dist. LEXIS 19899, at *22 (N.D. W. Va. Jan. 14, 2010) (noting that although it seemed unlikely that the defendant would have destroyed evidence because he was cooperating with agents, he "could have gone into the residence and deleted some or all of the images from his computer or destroyed his computer"). Because Investigator Bell had a reasonable expectation that Bradley would destroy the evidence, exigent circumstances were present when Bell seized the computer. See Vallimont, 2010 U.S. App. LEXIS 9651 at *4 (noting that concern about destruction of evidence was understandable where defendant might become aware of the investigation); United States v. Stiles, 2010 U.S. Dist. LEXIS 41325, at *13 (holding that because the defendant had already admitted that the computer contained child pornography, there was a risk the computer would disappear if the agents did not immediately seize it); cf. United States v. Santa, 236 F.3d 662, 670 (11th Cir. 2000) (holding that there were no exigent circumstances where defendants were "unaware of their impending arrest").

Permalink 08:11:03 am, by fourth, 451 words, 839 views   English (US)
Categories: General

CA7: Denial of medical care to arrestee can be a Fourth Amendment issue

Denial of medical care to an arrestee can also be determined under the Fourth Amendment rather than the Eighth Amendment, based on reasonableness. Legg v. Pappas, 383 Fed. Appx. 547 (7th Cir. 2010) (unpublished):

Finally, Legg argues that Agee and Hutt violated his Fourth Amendment rights by unreasonably denying him medical care. Whether the officers acted reasonably is determined by four factors: the officers' notice of the arrestee's medical needs; the seriousness of the medical needs; the scope of the requested treatment; and police interests. Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007). All four factors show that Hutt and Agee behaved reasonably. First, there is nothing in the record that suggests that Hutt or Agee had notice that Legg was in need of medical care. By all accounts, it appeared that Legg was just plain drunk. Furthermore, neither he nor his family members said he needed medical care. Indeed, when Legg went to the hospital, he told Dr. Oakley that "there's nothing wrong with me, I'm just drunk." The second factor is of no help to Legg because he was not in serious medical need at the time he was transported from his brother's house. Furthermore, since no one requested treatment, the third factor also shows that Agee and Hutt behaved reasonably. Finally, the police had an interest in taking Legg into custody because he had outstanding warrants. Since none of the factors favor Legg, the district court's grant of summary judgment was proper.

Williams v. Rodriguez:

The severity of the medical condition under this standard need not, on its own, rise to the level of objective seriousness required under the Eighth and Fourteenth Amendment. Instead, the Fourth Amendment's reasonableness analysis operates on a sliding scale, balancing the seriousness of the medical need with the third factor--the scope of the requested treatment. In Sides for example, the court noted that the plaintiff was partially responsible for his lengthy detention outdoors, since he insisted that the officers not charge him at all, rather than requesting that the officers take him to the station house or write him a citation immediately. Id. Finally, police interests also factor into the reasonableness determination. This factor is wide-ranging in scope and can include administrative, penological, or investigatory concerns. Sides reflected the latter of these interests, with the court emphasizing the importance of an on-site investigation and noting that the officers did not prolong the plaintiff's detention once this investigation was completed. Id. Again, we offer no opinion as to whether defendants' conduct violated Williams's Fourth Amendment rights under this multi-factor analysis, but for the reasons discussed above, Williams has failed to meet the higher burden of showing that Officer Rodriguez was deliberately indifferent to an objectively serious medical condition.


Permalink 11:57:24 am, by fourth, 14 words, 437 views   English (US)
Categories: General

Hacked again?

Are we being hacked again? Today we were down from 6:30 am to 10:45 am Central.

Permalink 11:56:17 am, by fourth, 1413 words, 701 views   English (US)
Categories: General

SCOTUS: Quon decided; City’s access of employee’s text messages was reasonable under O’Connor v. Ortega

Quon decided; city’s access of employee’s text messages was reasonable under O’Connor v. Ortega, 480 U. S. 709 (1987), and, significantly, the Court assumes the employee has a reasonable expectation of privacy that the employer could overcome. City of Ontario v. Quon 2010 U.S. LEXIS 4972 (U.S. June 17, 2010):

Petitioner Ontario (hereinafter City) acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD’s chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of Quon’s and another employee’s August and September 2002 text messages, it was discovered that many of Quon’s messages were not work related, and some were sexually explicit. Scharf referred the matter to OPD’s internal affairs division. The investigating officer used Quon’s work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules. He and the other respondents—each of whom had exchanged text messages with Quon during August and September—filed this suit, alleging, inter alia, that petitioners violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of Quon’s pager messages, and that Arch Wireless violated the SCA by giving the City the transcript.The District Court denied respondents summary judgment on the constitutional claims, relying on the plurality opinion in O’Connor v. Ortega, 480 U. S. 709, to determine that Quon had a reasonable expectation of privacy in the content of his messages. Whether the audit was nonetheless reasonable, the court concluded, turned on whether Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden work-related costs. After the jury concluded that Scharf’s intent was legitimate, the court granted petitioners summary judgment on the ground they did not violate the Fourth Amendment. The Ninth Circuit reversed. Although it agreed that Quon had a reasonable expectation of privacy in his text messages, the appeals court concluded that the search was not reasonable even though it was conducted on a legitimate, work-related rationale. The opinion pointed to a host of means less intrusive than the audit that Scharf could have used. The court further concluded that Arch Wireless had violated the SCA by giving the City the transcript.

Held: Because the search of Quon’s text messages was reasonable, petitioners did not violate respondents’ Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise. Pp. 7–17.

(a) The Amendment guarantees a person’s privacy, dignity, and security against arbitrary and invasive governmental acts, without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 613–614. It applies as well when the government acts in its capacity as an employer. Treasury Employees v. Von Raab, 489 U. S. 656, 665. The Members of the O’Connor Court disagreed on the proper analytical framework for Fourth Amendment claims against government employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because “some [government] offices may be so open ... that no expectation of privacy is reasonable,” a court must consider “[t]he operational realities of the workplace” to determine if an employee’s constitutional rights are implicated. 480 U. S., at 718. Second, where an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id., at 725–726.

JUSTICE SCALIA, concurring in the judgment, would have dispensed with the “operational realities” inquiry and concluded “that the offices of government employees ... are [generally] covered by Fourth Amendment protections,” id., at 731, but he would also have held “that government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context—do not violate the ... Amendment,” id., at 732. Pp. 7–9.

(b) Even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable under both O’Connor approaches, the plurality’s and JUSTICE SCALIA’s. Pp. 9–17.

(1) The Court does not resolve the parties’ disagreement over Quon’s privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve. Because it is therefore preferable to dispose of this case on narrower grounds, the Court assumes, arguendo, that: (1) Quon had a reasonable privacy expectation; (2) petitioners’ review of the transcript constituted a Fourth Amendment search; and (3) the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic sphere. Pp. 9–12.

(2) Petitioners’ warrantless review of Quon’s pager transcript was reasonable under the O’Connor plurality’s approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. See 480 U. S., at 726. There were “reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose,” ibid., in that Chief Scharf had ordered the audit to determine whether the City’s contractual character limit was sufficient to meet the City’s needs. It was also “reasonably related to the objectives of the search,” ibid., because both the City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon’s overages. And the review was also not “excessively intrusive.” Ibid. Although Quon had exceeded his monthly allotment a number of times, OPD requested transcripts for only August and September 2002 in order to obtain a large enough sample to decide the character limits’ efficaciousness, and all the messages that Quon sent while off duty were redacted. And from OPD’s perspective, the fact that Quon likely had only a limited privacy expectation lessened the risk that the review would intrude on highly private details of Quon’s life. Similarly, because the City had a legitimate reason for the search and it was not excessively intrusive in light of that justification, the search would be “regarded as reasonable and normal in the private-employer context” and thereby satisfy the approach of JUSTICE SCALIA’s concurrence, id., at 732. Conversely, the Ninth Circuit’s“least intrusive” means approach was inconsistent with controlling precedents. See, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 663. Pp. 12–16.

(c) Whether the other respondents can have a reasonable expectation of privacy in their text messages to Quon need not be resolved. They argue that because the search was unreasonable as to Quon, it was also unreasonable as to them, but they make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to them. Given this litigating position and the Court’s conclusion that the search was reasonable as to Quon, these other respondents cannot prevail. Pp. 16–17.

529 F. 3d 892, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, THOMAS, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined, and in which SCALIA, J., joined except for Part III–A. STEVENS, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in part and concurring in the judgment.

Permalink 07:35:57 am, by fourth, 139 words, 278 views   English (US)
Categories: General

MO: PC to believe defendant was involved in an armed robbery permitted SI under Gant

Defendant was stopped for being involved in an armed robbery. When he got out of the car, he had wads of cash in both hands and fled. The officers had a basis for a search incident or a search under the automobile exception. State v. Richardson, 313 S.W.3d 696 (Mo. App. 2010).*

The record supports the district court’s conclusion that the defendant consented to a search after a knock-and-talk. He consented first to an entry at the officer’s suggestion so they would not be discussing the matter in the hallway outside. United States v. Lewis, 608 F.3d 996 (7th Cir. 2010).*

During a probation officer’s “home visit” of defendant’s place, a person with apparent authority consented to a search, and it was reasonable for the officers to rely on it. United States v. Sanchez, 608 F.3d 685 (10th Cir. 2010).*

Permalink 07:24:12 am, by fourth, 275 words, 733 views   English (US)
Categories: General

CA7: 911 hangup and no answer on call back is probable cause

A 911 hangup and no answer on call back is probable cause. Hanson v. Dane County, 608 F.3d 335 (7th Cir. 2010):

[A] 911 call provides probable cause for entry, if a call back goes unanswered. The 911 line is supposed to be used for emergencies only. A lack of an answer on the return of an incomplete emergency call implies that the caller is unable to pick up the phone—because of injury, illness (a heart attack, for example), or a threat of violence. See United States v. Jenkins, 329 F.3d 579, 581 (7th Cir. 2003); United States v. Richardson, 208 F.3d 626, 629–30 (7th Cir. 2000). Any of these three possibilities supplies both probable cause and an exigent circumstance that dispenses with the need for a warrant. See Brigham City v. Stuart, 547 U.S. 398 (2006). There are of course other possibilities. Perhaps a child dialed 911 by mistake, or perhaps the ringer had been set to silent so the phone did not alert anyone to the incoming call from the 911 dispatcher. But probable cause just means a good reason to act (the fourth amendment protects people against “unreasonable” searches and seizures); it does not mean certainty, or even more likely than not, that a crime has been committed or a medical emergency is ongoing. See Illinois v. Gates, 462 U.S. 213, 235 (1983).

Karen asked the police to leave, but officers who have probable cause need not cancel an investigation on request. The fourth amendment does not contain a least restrictive-alternative rule. See Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 629 n.9 (1989). Nor did Karen’s statement that she was unharmed establish that there was no need for further inquiry. ... To the contrary, her statements supported the officers’ actions.

Permalink 07:12:13 am, by fourth, 147 words, 270 views   English (US)
Categories: General

D.Me.: Two week old information in grow operation was not stale

CI’s information about defendant’s grow operation, “which is not a fly-by-night affair,” was a couple of weeks old but it was not stale. United States v. Widi, 2010 U.S. Dist. LEXIS 58881 (D. Me. February 23, 2010).*

Defendant admittedly consented to the officer’s entry during a knock-and-talk, and there is no showing they refused to leave. He consented to the later search. United States v. Perez-Saavedra, 2010 U.S. Dist. LEXIS 59071 (N.D. Iowa May 7, 2010).*

Defendant would fail on the prejudice prong of ineffective assistance because it is apparent the motion would have been denied. United States v. Carrasco, 2010 U.S. Dist. LEXIS 58789 (E.D. Mich. April 19, 2010).*

Appellate counsel’s failure to argue defendant’s search and seizure claim on appeal was not ineffective assistance because it was frivolous to argue there was no probable cause. Garey v. United States, 2010 U.S. Dist. LEXIS 59239 (M.D. Ga. March 29, 2010).*

Permalink 06:48:18 am, by fourth, 225 words, 382 views   English (US)
Categories: General

D.R.I. Failure to say in a § 2255 how defendant would have prevailed means it is denied

Defendant’s “reference [in his § 2255] to his trial counsel’s failure to file a motion to suppress items seized in a search (presumably referring to a search of his apartment made with his consent) is devoid of discussion as to why such a motion would have succeeded.” Thompson v. United States, 2010 U.S. Dist. LEXIS 58805 (D. R.I. June 10, 2010).*

This was a consent after a knock-and-talk, and defendant’s authorities were all cases involving apparent coercion during the talk. United States v. Perez-Saavedra, 2010 U.S. Dist. LEXIS 59217 (N.D. Iowa June 15, 2010).*

Defense counsel withdrew his motion to suppress before defendant’s guilty plea to interstate travel for sex with a minor. This was a reasonable tactical choice after defense counsel learned that the defendant was on a jail recording talking to her to change her story. Carrasco v. United States, 2010 U.S. Dist. LEXIS 58788 (E.D. Mich. June 14, 2010).*

“[I]t was objectively reasonable for agent Jackson to conclude that Awan voluntarily consented to the search of his suitcases at Mian’s residence. Awan has failed to show that the district court committed clear error in crediting Jackson's testimony rather than Awan’s affidavit.” United States v. Awan, 384 Fed. Appx. 9 (2d Cir. 2010) (unpublished).* [Shouldn’t the question really be a finding defendant consented rather than the officer’s belief defendant consented? Aren’t they different things?]


Permalink 12:01:16 pm, by fourth, 633 words, 437 views   English (US)
Categories: General

W.D. N.Y.: SWAT team entry into excluded apartment for protective sweep on smelling bulk marijuana was unreasonable

The search warrant for a building specifically excluded the second floor front apartment as occupied by somebody else. When executing the search warrant for the building, the door to the excluded apartment was opened, and the officers smelled bulk marijuana. This did not justify a protective sweep under Buie. United States v. Baker, 2009 U.S. Dist. LEXIS 127395 (W.D. N.Y. December 11, 2009):

First of all, the entry into the building at 1334 Clinton Street occurred at 6:35 a.m. on February 9, 2007, and the knocking on the door of the second floor front apartment occurred within a matter of minutes thereafter. (T. 32).

The “mere propinquity” of the second floor front apartment to the second floor rear apartment does not create a justification for a protective search or sweep of that apartment. (See Ybarra v. Illinois, 444 U.S. 85, 91 (1979). “A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”).

Detective Rinaldo testified at the evidentiary hearing that he “had not heard anybody in that other [second floor front] apartment;” and that at that point in time, “there was no reason to believe that anyone else would be in that apartment.” (T. 53, 30-31).

Safety or security sweeps or searches “may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the ... scene.” Maryland v. Buie, supra at 336; United States v. Moran, 376 F.3d 112, 117 (2d Cir. 2004); United States v. Miller, 430 F.3d 93, 95 (2d Cir. 2005).

As the Court of Appeals for the Second Circuit has stated:

The Buie court explicitly declined to hold that the danger inherent in executing an arrest warrant will ipso facto justify a protective sweep. ... Officers must point to facts that give rise to an individualized suspicion and cannot rely solely on generalizations that suspects are usually accompanied by dangerous third parties.

United States v. Gandia, 424 F.3d 255, 263-264 (2d Cir. 2005).

The fact that Detective Rinaldo smelled a “strong [odor] of marijuana” which “smelled like bulk marijuana” did not justify a warrantless entry into the second floor front apartment for “odors alone do not authorize a search without a warrant.” Johnson v. United States, 333 U.S. 10, 13 (1948).

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

Id. at 13-14.

Detective Rinaldo’s belief, no matter how well founded, that the second floor front apartment contained “bulk marijuana” based on what he “smelled” while standing outside that apartment, did not justify a warrantless entry into the apartment by the S.W.A.T. team for purposes of conducting a “protective search.”

Permalink 08:29:56 am, by fourth, 216 words, 266 views   English (US)
Categories: General

E.D.Wis.: Challenge typo in SW return almost too clever by half for the court

Errors in the search warrant and return for the wrong address (8111 Cherry Valley v. 3111 Cheerful Valley) but the right address was searched were not material. Taking the defendant’s argument to its conclusion makes no sense. United States v. Derrick, 2010 U.S. Dist. LEXIS 58360 (E.D. Wis. June 11, 2010)*:

In addition to being wrong on the facts, defendant’s argument made little sense. Defendant did not claim that he was living at 3111 Cheerful (or Cherry) Valley rather than 8111 Cheerful Valley. If the officers actually searched 3111 Cheerful (or Cherry) Valley rather than 8111 Cheerful Valley, why would defendant care? And how could any evidence relevant to defendant's charges have been seized from the wrong place? And how would defendant have standing?

Officers responding to an armed robbery call saw a vehicle matching the description of the vehicle involved and stopped it. There was reasonable suspicion for the stop and the frisk of the occupants and the van. United States v. Bailey, 2010 U.S. Dist. LEXIS 58357 (N.D. Okla. June 11, 2010).*

Officer watching a car sitting at the curb with the motor running in an area known for its street drug dealing and people coming and going and the driver furtively looking over his shoulder had reasonable suspicion under Terry. United States v. Nelson, 2010 U.S. Dist. LEXIS 58300 (D. Minn. March 29, 2010).*


Permalink 09:21:54 am, by fourth, 186 words, 526 views   English (US)
Categories: General

NY: State constitution requires reasonable suspicion for a dog sniff of a car

NY Constitution requires reasonable suspicion for a dog sniff of a car on the street. There at least is some reasonable expectation of privacy in a car. Not as much as a house, but more than luggage in the hands of a third person. People v. Devone, 2010 NY Slip Op 04828 (N.Y. June 8, 2010):

Based on our State jurisprudence, therefore, whether a canine sniff constitutes a search is necessarily dependent upon whether it constitutes an intrusion into a place where a person has a reasonable expectation of privacy. One clearly has a greater expectation of privacy in one’s home than in an automobile (see New York v Class, 475 US 106, 112-113 [1986]), but that does not render the latter interest undeserving of constitutional protection (see Arizona v Gant, __ US __, 129 SCt 1710, 1720 [2009] [addressing warrantless searches of automobiles]). There is a legitimate, albeit reduced expectation of privacy in an automobile. But that expectation is greater than the significantly reduced expectation of privacy one has in luggage turned over to a common carrier. We therefore hold that a canine sniff of the exterior of an automobile constitutes a search under article I, § 12.

Permalink 09:16:14 am, by fourth, 180 words, 293 views   English (US)
Categories: General

W.D.Pa.: Warrant for address of controlled delivery was issued with PC

A dog sniff of a postal package in Pittsburgh was conducted after Postal Inspectors there were alerted the package was coming by Postal Inspectors in Los Angeles, with a fictitious return address. A search warrant was prepared for the package, and then the address where the package was going. The SW was issued with probable cause, and, in any event, the good faith exception would apply. United States v. Morris, 2010 U.S. Dist. LEXIS 57661 (W.D. Pa. June 10, 2010).*

Defense counsel could not be ineffective for not challenging a search where there the defendant clearly had no standing. Hairston v. State, 314 S.W.3d 356 (Mo. App. 2010).*

Defendant was stopped for a noisy exhaust, but the officer found that he had a suspended license. His car was subject to towing and inventory even under Gant decided shortly after the arrest but before the suppression hearing. Marijuana was seen in plain view. State v. Swinderman, 2010 Ohio 2659, 2010 Ohio App. LEXIS 2182 (5th Dist. June 10, 2010).*

The video of defendant’s driving shows cause for his stop for DUI. State v. Soller, 2010 Tenn. Crim. App. LEXIS 471 (June 9, 2010).*

Permalink 08:55:30 am, by fourth, 405 words, 277 views   English (US)
Categories: General

M.D.Fla.: SW for pharmacy in steroid investigation was a "general warrant"

Search warrant for a pharmacy for all its records in a steroid prescribing case, where there was no link to the pharmacy and the prescribing doctors, was a general warrant for every piece of paper in the pharmacy with no way to limit the search to an offense. One defendant filed a summary judgment motion, and he lost. Signature Pharmarcy v. Soares, 2010 U.S. Dist. LEXIS 57714 (M.D. Fla. June 10, 2010):

A lengthy laundry list of specific items unconnected--in any way--to an alleged crime is no better than a warrant for “all evidence” of an alleged crime. Absent at least some nexus between the alleged crime and the items to be seized, an officer can simply “rummage and seize at will.” Minnesota v. Dickerson, 508 U.S. 366, 378 (1993) (internal citations and quotations omitted). Exploratory searches such as these have been roundly condemned since well before the founding of our nation.

In sum, the search warrants in this case amount to general warrants that failed to comply with the particularity requirements of the Fourth Amendment. On the day of the raids, “[n]othing circumscribed [Wright’s] activities ... except [his] own good senses.” U.S. v. Matlock, 415 U.S. 164, 185 (1974) (internal citations and quotations omitted). No reasonable officer could possibly have believed that the warrants Wright possessed gave him the authority to simply arrive with U-Haul trucks, enter any office or suite in the buildings shared by Signature, and cart away virtually everything found therein. That is precisely, however, what appears to have occurred in this case.

Notwithstanding the foregoing, the sum total of Wright’s argument concerning the seizures consists of the following:

The search conducted in this case was made pursuant to a lawfully issued search warrant supported by probable cause. ... Furthermore, Agent Wright did not exceed the scope of the search warrant. All items seized were encompassed within the scope of the search warrant, evidence of criminal activity or properly seized pursuant to Florida’s Contraband Act. 40 After the seizure of evidence took place, a judicial determination was timely made that probable cause support [sic] seizure of all items.

(Docs. 129 at 21 and 221 at 9). Wright fails to provide a single example of an item of evidence that amounted to evidence of criminal activity. ...

Probable cause at least existed for search warrant for a pharmacy’s records of steroid sales such that the officer that prepared the warrant gets qualified immunity for issuance of the warrant in the first place.

Permalink 08:25:52 am, by fourth, 203 words, 320 views   English (US)
Categories: General

D.S.D.: Defense counsel not ineffective for not forecasting Gant

Defense counsel was not ineffective for not forecasting Gant, and it was not a "new rule." Wright v. United States, 2010 U.S. Dist. LEXIS 57875 (D. S.D. June 11, 2010)*:

The Supreme Court of the United States has never held that Gant articulated a “new rule” of criminal procedure and has not made Gant retroactive to cases on collateral review. See, e.g., Lopez v. Vazquez, 2010 U.S. Dist. LEXIS 46225, No. 1:10-cv-00345, at *10 (E.D. Cal. Apr. 7, 2010) (finding that Gant did not state it was articulating a “new rule” and that the Supreme Court did not hold that Gant should be retroactively applied on collateral review); Bess v. United States, 2010 U.S. Dist. LEXIS 46690, No. CV209-160 (S.D. Ga. Mar. 19, 2010) (“the Supreme Court has not made Gant retroactively applicable to cases on collateral review); United States v. Brown, 2009 U.S. Dist. LEXIS 47425, No. 8:06-246, at *4 (D.S.C. June 5, 2009). Therefore, assuming the accuracy of Petitioner's factual allegations, counsel did not perform ineffectively under Strickland when failing to advise Petitioner of the law as subsequently articulated in the Gant opinion.

The evidence supports the fact finding of the district court that there consent was not coerced. United States v. Cienfuegos-Pompa, 381 Fed. Appx. 353 (5th Cir. 2010) (unpublished).*

Permalink 08:11:22 am, by fourth, 87 words, 449 views   English (US)
Categories: General

Fourth Amendment news--DNA searches for family of offenders

On O Brother, Where Art Thou? | It's time for legislators to look more closely at familial searches of DNA databases, by Natalie Ram and Michael Seringhaus:

More worrisome is the effective inclusion of many innocent individuals in the [CODIS] database, via novel and almost completely unregulated search techniques called "partial matching" and "familial searching." By adopting one or both of these search techniques, some states are quietly expanding database coverage to "virtually" include the innocent relatives of profiled offenders—nearly always without any legislative oversight.


Permalink 02:24:21 pm, by fourth, 81 words, 338 views   English (US)
Categories: General

LAT: "New concerns arise over body scanners"

LATimes Saturday: New concerns arise over body scanners | Aviation security experts say the machines may miss items that metal detectors catch. Airline passengers may also be able to hide materials in the groin or body cavities. by Ken Dilanian, Tribune Washington Bureau:

Reporting from Washington — As the government begins deploying whole-body imaging machines to replace metal detectors at airports nationwide, some security experts worry that the new technology could make it easier, not harder, to sneak weapons and explosives onto airplanes.

Permalink 12:25:56 am, by fourth, 436 words, 789 views   English (US)
Categories: General

CA4: ISP's duty to report child porn did not make its investigation a government search

AOL came upon child pornography and conducted its own investigation. As a “mandatory reporter,” AOL reported the child pornography to the government. AOL was not acting as an agent of the government, and defendant’s [creative] argument that the mandatory reporting requirements of Skinner applied here were rejected because the situations and interests were different. [AOL filed an amicus brief in support of the government.] United States v. Richardson, 607 F.3d 357 (4th Cir. 2010):

On June 10, 2004, AOL, pursuant to a mandatory reporting requirement set forth in 42 U.S.C. § 13032(b)(1),*1 reported to the Cyber Tip Line at the National Center for Missing and Exploited Children (“NCMEC”) that AOL had detected the transmission of child pornography images by a subscriber using an e-mail address called NCMEC, also as mandated by the same federal law, passed along this information to the North Carolina State Bureau of Investigation (“SBI”), which, in turn, served AOL with an administrative subpoena for subscriber information related to the “” address. AOL determined that the “” account was registered to Richardson at 2541 Pine View Lane, Apartment H, Gastonia, North Carolina. The screen name “tr2066" was also linked to this account. By August 2004, however, when SBI agents received and followed up on this information, Richardson no longer resided at the 2541 Pine View Lane address and no forwarding address was available.

*1 This particular provision is no longer in effect. The reporting requirements were amended and are now codified in 18 U.S.C. § 2258A.

. . .

The question of whether a private entity such as AOL serves as a mere conduit for the Government in performing a search “necessarily turns on the degree of the Government's participation in the private party's activities.” Skinner, 489 U.S. at 614. “[T]here must be some evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional. Passive acceptance by the Government is not enough.” Jarrett, 338 F.3d at 346. Additionally, we generally look for evidence bearing upon the question of “whether the private party's purpose for conducting the search was to assist law enforcement efforts or to further h[is] own ends.” Ellyson, 326 F.3d at 527 (internal quotation marks omitted).

Thus, the key factors bearing upon the question of whether a search by a private person constitutes a Government search are: “(1) whether the Government knew of and acquiesced in the private search; and (2) whether the private individual intended to assist law enforcement or had some other independent motivation.” Jarrett, 338 F.3d at 344.

There is no question that law enforcement agents did not actually participate in the search at issue here. ...

Permalink 12:17:47 am, by fourth, 126 words, 348 views   English (US)
Categories: General

IN: Forced catheterization for urine for police stated claim against hospital

Forced catheterization by a hospital for urine sample and then turning urine over to police in a DUI case stated a claim for relief against the hospital. Elliott v. Rush Mem. Hosp., 928 N.E.2d 634 (Ind. App. 2010):

In sum, we hold that Elliott's proposed complaint adequately stated factual issues regarding whether Elliott's urine sample was obtained pursuant to a written request meeting the dictates of subsection (g)(2), whether the taking of the sample constituted unreasonable force in contravention of subsection (g)(3), and whether forced catheterization constituted a "medically accepted manner" for obtaining a urine sample under subsection (i). The Defendants have not established that they are entitled to immunity as a matter of law under Section 9-30-6-6 against any civil claims Elliott might bring.

Permalink 12:07:42 am, by fourth, 152 words, 285 views   English (US)
Categories: General

N.D.W.Va.: The facts defendant's heroin "works" were not inventoried did not require suppression

Defendant was stopped for a traffic offense and the officer quickly had suspicion of DUI. The defendant’s prior drug arrests coupled with information about alleged recent drug dealing supported the frisk. Defendant also consented to the search of his car, and he abandoned heroin on the side of the road. The vehicle was properly inventoried for lack of a driver. The fact that the defendants "works" [my word] were left off the inventory did not require suppression Motion to suppress denied. United States v. Seman, 2010 U.S. Dist. LEXIS 57550 (N.D. W.Va. June 10, 2010)*:

The defendant argues that certain items seized, including a dirty spoon and hypodermic needle were not listed on the inventory sheet (although apparently listed on the officer's incident report). Given the purposes of the inventory search, this is not surprising. These items would not fall within the items to be protected from theft by the inventory search.

Permalink 12:01:09 am, by fourth, 203 words, 545 views   English (US)
Categories: General

OR: General motion to suppress properly denied

Defendant’s general motion to suppress citing only the Fourth Amendment and the state constitution with an assertion it appeared there was no probable cause was not sufficient to put the state and court on notice as to the issue to be heard in this case, and the memorandum of law filed the day of the hearing in response to the motion to strike to deny as untimely did not add anything of substance to the motion. Otherwise, there was no clear error. State v. Roth, 235 Ore. App. 441, 234 P.3d 1019 (2010):

On October 16, 2007, defendant filed a motion to suppress “all evidence that resulted from the search of the defendant's purse.” In the “points and authorities” section of the motion, defendant relied on the “Oregon Constitution, Article I, Section 9 and all relevant caselaw pertaining thereto. United States Constitution, Amendments IV, V and XIV and all relevant caselaw pertaining thereto.” Defendant's trial attorney filed an affidavit in support of the motion to suppress that included the pertinent facts set forth above, and the following assertion that, “I have read the police reports in this matter and believe that it is questionable whether [the officer] had reasonable suspicion or probable cause to search [defendant] or her purse.”


Permalink 12:30:21 pm, by fourth, 291 words, 635 views   English (US)
Categories: General

NY2: Seeking tax reassessment not a waiver of Fourth Amendment rights as to the tax assessor

By seeking a reassessment, taxpayers were not waiving Fourth Amendment rights against an entry by the tax assessor. Matter of Yee v Town of Orangetown, 2010 NY Slip Op 5017, 76 A.D.3d 104, 904 N.Y.S.2d 88 (2d Dept. 2010):

The JHO [“Judicial Hearing Officer”] distinguished such a situation, holding that a homeowner makes a limited, revocable waiver of Fourth Amendment rights and consents to an assessor's inspection by commencing a SCAR [“Small Claim Assessment Review”] proceeding. This was error. A waiver of Constitutional rights must be knowing and intelligent (see Fiore v Oakwood Plaza Shopping Ctr., 78 NY2d 572, 581, 585 N.E.2d 364, 578 N.Y.S.2d 115, cert denied 506 U.S. 823, 113 S. Ct. 75, 121 L. Ed. 2d 40; People v Leftwich, 134 AD2d 371, 520 N.Y.S.2d 849). Nothing about commencing a SCAR proceeding, with its informal nature and lack of disclosure, puts the homeowner on notice that the assessor must be allowed into the residence for an inspection or the proceeding will be dismissed.

In Schlesinger v Town of Ramapo (11 Misc 3d 697, 807 N.Y.S.2d 865), a tax certiorari proceeding, the Supreme Court held that the town did not have a right to send an appraiser to perform an inspection of the premises without the homeowner's permission and that the requested inspection was an unreasonable search. Citing the Fourth Amendment prohibition on unreasonable searches and the opinion of ORPS that an assessor may not enter a private residence without permission, the court held that the requested inspection was unreasonable. ...

If homeowners do not waive their right to refuse access by commencing a tax certiorari proceeding, where rules of disclosure apply (see RPTL 700[2]), then it follows that they do not waive such right by commencing a more informal SCAR proceeding, an argument persuasively raised by the petitioners herein.

Permalink 12:23:10 pm, by fourth, 300 words, 293 views   English (US)
Categories: General

OR: School search under state constitution is valid on RS not PC

School search under Oregon Constitution requires only reasonable suspicion and not probable cause. The court of appeals erred in requiring PC. State ex rel Juv. Dept. v. M. A. D., 348 Ore. 381 (June 10, 2010), revg State ex rel Juv. Dept. v. M. A. D., 226 Ore. App. 21, 202 P.3d 249 (2009):

We conclude that the school context is sufficiently different from the setting in which ordinary police-citizen interactions occur to justify an exception to the warrant requirement in certain circumstances, and we turn to the scope and application of the state's proposed exception. First, we describe what we view as the closest analogy to that exception, the long-standing and well-defined "officer-safety exception" to the warrant requirement of Article I, section 9. Under the officer-safety exception, a police officer may take "reasonable steps" -- including a limited search -- to protect the officer or others if, "during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present." State v. Foster, 347 Ore. 1, 8, 217 P3d 168 (2009) (quoting State v. Bates, 304 Ore. 519, 524, 747 P2d 991 (1987)) (internal quotation marks omitted). The officer-safety exception is necessary because of the unique circumstances to which it applies:

"'A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made.'"

Id. (quoting Bates, 304 Ore. at 524-25). ...

Permalink 12:06:14 pm, by fourth, 154 words, 458 views   English (US)
Categories: General

OR: Private search of contents of hotel safe left after checkout could be turned over to police

Private search by hotel employees of things left in a hotel safe after checkout is not unreasonable. State v. Stokke, 235 Ore. App. 477, 237 P.3d 829 (2010), on remand from State v. Stokke, 348 Ore. 114, 228 P3d 1213 (2010) (reconsider in light of State v. Luman, 347 Ore. 487, 223 P3d 1041 (2009)).

Defendant was a suspect in a homicide and he was stopped by an officer off duty in a pickup truck. A patdown for a weapon was permissible. “We further conclude that Detective Bartlett's initial pat-down of the defendant was reasonable because the officer knew that the weapon was at-large and because the defendant would be riding next to the officer in a pick-up truck, with the only restraint being a seatbelt.” State v. Rose, 2010 Tenn. Crim. App. LEXIS 466 (May 20, 2010).*

Officer saw defendant’s car sitting in the middle of the intersection during a red light, and that was reasonable suspicion for a stop. State v. Wiggins, 2010 Tenn. Crim. App. LEXIS 450 (June 7, 2010).*

Permalink 09:15:19 am, by fourth, 81 words, 429 views   English (US)
Categories: General

D.Ariz.: § 1983 Fourth Amendment case could not be filed against SWAT team; individuals must be named

Pro se plaintiff did not state a claim against any person who used excessive force during the raid on his property, so the complaint is dismissed as to the police department. Warren v. SWAT, Tucson Police Dep’t, 2010 U.S. Dist. LEXIS 57542 (D. Ariz. May 17, 2010).*

Defendant granted consent for officers to enter to look at photographs on his wall. Others with apparent authority consented to the look going further. United States v. Ramirez-Vazquez, 2009 U.S. Dist. LEXIS 127338 (M.D. Fla. January 16, 2009).*


Permalink 12:46:45 am, by fourth, 210 words, 325 views   English (US)
Categories: General

FL4: Robbery investigation exigency had dissipated; officer's entry was invalid

Robbery victims’ apartment was entered without asking and without consent, and other evidence of crime was seen. There was no exigency to enter because the robbers were gone. Dixon v. State, 36 So. 3d 920 (Fla. App. 4th DCA 2010):

Most importantly, [Officer] Leitman did not testify that he suspected the robbery suspects were in the apartment as soon as he reached the apartment door. He became suspicious only after he entered the apartment without consent, saw evidence of the robbery, and observed Dixon nervous and agitated after disappearing to another room. These observations do not support Leitman's warrantless entry into the apartment prior to making the observations.

We conclude that the exigency dissipated once Leitman received the initial description of the robbery from the victim who was out of harm's way, and, thereafter, from his conversation with Dixon and his girlfriend at the apartment door. Accordingly, Leitman's search of Dixon's apartment leading to his discovery of evidence of criminal conduct constituted an unreasonable search and seizure. All physical evidence derived from the Leitman's initial unlawful search, including evidence discovered after the officers acquired a search warrant, should have been suppressed. Accordingly, we reverse the order denying Dixon's motions to suppress, vacate Dixon's convictions, and remand for further proceedings consistent with this opinion.

Permalink 12:23:16 am, by fourth, 238 words, 297 views   English (US)
Categories: General

OH6: Search of locked car where defendant fled was without exigency and was suppressed

Defendant drove to a house under surveillance for a coming drug raid. The defendant went back and forth between the house and the car. After the raid on the house, the defendant fled on foot, and the car was left locked. While the car was locked, there was no exigency because the defendant was gone. State v. Washington, 2010 Ohio 2580, 2010 Ohio App. LEXIS 2126 (6th Dist. June 4, 2010):

Under these circumstances, there does not appear to be any reason for the officer to believe any evidence would be destroyed or lost without an immediate search of the automobile. While it is true the officer was unsure of the cocaine's whereabouts (whether it was in the trunk or still with appellant), there is no immediate threat that would prevent the officer from waiting to obtain a warrant. Having arranged and observed the transaction, there certainly was probable cause that the cocaine was located in the locked car's trunk. That being said, in order for a search to be reasonable under the Fourth Amendment, it must be based upon probable cause and executed pursuant to a warrant; a failure to do so without showing an exception causes the evidence seized in the unreasonable search to be suppressed. State v. Moore (2000), 90 Ohio St.3d 47, 2000 Ohio 10, 734 N.E.2d 804. Here, absent a warrant, no exception applies and it is the opinion of this court that the trial court erred in denying the motion to suppress.

Permalink 12:17:42 am, by fourth, 243 words, 281 views   English (US)
Categories: General

OH8: Inventory of wheel well was invalid

Inventory of wheel well was with an investigative purpose and violated Fourth Amendment. State v. Wells, 2010 Ohio 2603, 2010 Ohio App. LEXIS 2145 (8th Dist. June 10, 2010):

[*P11] The search at issue in this case was conducted with an investigatory intent. The Cleveland General Police Order regarding vehicle tows, pursuant to which Officer Yasenchack performed his search, provides that property found in unlocked closed containers in a vehicle shall be inventoried, and property such as jewelry, cameras, radios, and other valuables should be inventoried and removed from the car prior to tow. It says nothing about searching wheel wells as part of an inventory search. Thus, Officer Yasenchack’s search of the wheel well was not pursuant to standard police policy.

[*P12] Furthermore, Officer Yasenchack admitted that the inventory search was actually a pretext for an investigatory search for more drugs. On direct examination, Officer Yasenchack testified that after Wells was arrested, “we did an inventory search of the vehicle.” But he testified that he looked in the wheel well because it is a “common area to hide contraband, weapons, drugs” and because he suspected that Wells and his passenger were involved in the sale of drugs. When challenged on cross-examination as to the purpose of his search of the wheel well, he admitted that he was performing a “dual purpose search” and “also searching for more drugs” and, with that intention, he “pulled the fabric [back from around the wheel well] to reveal the cavity inside.”

Permalink 12:09:11 am, by fourth, 132 words, 285 views   English (US)
Categories: General

FL4: Frisk of truant was without RS

Defendant’s pat down as a stopped potential truant was invalid because it was conducted without reasonable suspicion he was armed. T.M. v. State, 37 So. 3d 384 (Fla. App. 4th DCA 2010).*

“Once defendant punched Officer Porras, any allegedly unlawful conduct in stopping and questioning defendant was attenuated by his calculated, aggressive and wholly distinct conduct ....” People v. Holland, 2010 NY Slip Op 4922, 74 A.D.3d 520, 904 N.Y.S.2d 10 (1st Dept. 2010).*

“We find that the officer’s suspicion that Trejo was tired or impaired [as a driver] is not sufficient to constitute a reasonable basis for the traffic stop.” [The state actually argued, apparently with a straight face, that the defendant had no standing to challenge a search of her person.] Trejo v. State, 76 So. 3d 702 (Miss. App. 2010), aff'd 2011 Miss. LEXIS 602 (Miss., Dec. 15, 2011).*


Permalink 03:00:04 pm, by fourth, 275 words, 370 views   English (US)
Categories: General

CA8: Open door not relevant to legality of entry, but it might be to flagrancy of unlawful entry

Whether a door is open or closed does not matter--“the Fourth Amendment has drawn a firm line at the entrance to the house”--Payton. The entry here was illegal, but not flagrantly so, so later consent was still valid. United States v. Greer, 607 F.3d 559 (8th Cir. 2010):

But absent a finding of consent, which is not urged, or a suspect standing in the doorway, cf. United States v. Santana, 427 U.S. 38, 42 (1976), the status of the door is not determinative. In Payton itself, the officers saw the suspect through an open door, crossed the threshold, and arrested him, 445 U.S. at 578, but the Court held that “the Fourth Amendment has drawn a firm line at the entrance to the house.” Id. at 590. The government says it is significant that the police had “first hand knowledge” that Smiley was in the house, not merely second-hand probable cause, but there is no certitude exception to the warrant requirement. The entry to the home was unlawful.

. . .

The circumstances here demonstrate purgation of the taint. The Supreme Court has placed “particular” emphasis on the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 604. Those factors suggest that Greer’s voluntary consent was an independent act of free will. The purpose of the unlawful entry was not to investigate Greer. The officers spotted a fugitive in the residence, and their intrusion was aimed at apprehending her. The entry was not especially flagrant; the door to the residence was open, and the officers used no force to gain access. The officers smelled marijuana before going into the house, so the unlawful entry did not prompt the request to search.

Permalink 11:26:04 am, by fourth, 189 words, 365 views   English (US)
Categories: General

NM: Patdown while investigating shooting led to finding glass pipe and no weapon; seizure invalid under Fourth Amendment

911 call about a gunshot at a park led to officers approaching defendant’s parked car, and they got the defendant out at gun point. He was patted down for a weapon, and it was apparent that all he had in his pocket was a glass pipe. The seizure of the glass pipe was unreasonable. State v. Johnson, 2010 NMCA 45, 233 N.M. 237, 233 P.3d 371 (2010).

Consent to enter mooted the question of the Fourth Amendment legality of the entry on an arrest warrant for the right person with the same name but the wrong identifiers. The search warrant issued thereafter was valid. United States v. Hinojosa, 606 F.3d 875 (6th Cir. 2010)* (“See, e.g., United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir. 1994) (‘[A] denial of a motion to suppress will be affirmed on appeal if the district court’s conclusion can be justified for any reason.’).”

Defendant’s stop was justified under community caretaking function when the officer encountered defendant and another walking away from the area of gunshots and a possible stabbing. Defendant was holding his stomach, and the officer objectively believed he was a victim. Moore v. State, 997 A.2d 656 (Del. 2010).*

Permalink 10:23:01 am, by fourth, 287 words, 296 views   English (US)
Categories: General

CA6: Overseizure during execution of SW was not flagrant on this record, so no suppression

Officer’s overseizure of “things of value” during execution of a search warrant was not flagrant disregard of the warrant. The officer consulted a local DA as to what to do, and the DA said to seize “things of value.” United States v. O’Campo, 381 Fed. Appx. 974 (11th Cir. 2010) (unpublished)*:

Although some improper seizures occurred here, we conclude that the executing officers did not flagrantly disregard the terms of the search warrant. The executing officer, Slade McCullogh, testified that he seized these items, in part, because they were items of value and could indicate ill-gotten gains or living above one's means; but the warrant authorized seizure of things of value only if those things were in close proximity to controlled substances. That the executing officer may not have fully understood what the warrant covered is insufficient to support a conclusion of flagrant disregard. McCullough attempted to stay within the boundaries of the warrant by contacting the District Attorney's Office to inquire about what items could be seized. The DA's office advised McCullough that he was authorized to seize electronic equipment and other things of value. Thus, McCullough exercised some discretion in executing the warrant and did not simply seize all things of value. We cannot say that McCullough's misunderstanding of the warrant or lack of judgment demonstrated flagrant disregard warranting total suppression.

Extended border search in Calexico was reasonable despite the fact a Customs drug dog did not find 37½ lbs of cocaine [the dog was fired; n.1]. The CI’s tip did not pan out exactly as to the defendant’s actions, but the stops likely caused that to happen. There was reasonable suspicion based on defendant’s actions. United States v. Villasenor, 608 F.3d 467 (9th Cir. 2010).*

Permalink 09:45:12 am, by fourth, 295 words, 475 views   English (US)
Categories: General

CA4: The fact vehicle inventory started where defendant reached did not show pretext

The search of defendant’s car was valid as a search incident before Gant, but it was valid as an inventory. But, the inventory was not rendered invalid just because the officer went where defendant was reaching before he was arrested. That was the logical place to start and did not show it to be pretextual. United States v. Stitt, 382 Fed. Appx. 253 (4th Cir. 2010) (unpublished):

Stitt makes much of the fact that Officer Hawes testified that he believed when he began the search there was contraband in the center console of the Acura, arguing that this testimony proves that the search was for the purpose of obtaining incriminating evidence. Given the fact that Officer Hawes had observed Stitt appear to close the center console as he was being pulled over, as well as the fact that a search of the Acura incident to the arrest was permissible at the time of the arrest (i.e., before Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)), it is not at all surprising that the officer would have begun the search in the console. In any event, simply because Officer Hawes might have had additional legal grounds to search the Acura apart from the inventory search does not render the inventory search invalid. See, e.g., United States v. Matthews, 591 F.3d 230, 235 n.7 (4th Cir. 2009) (noting that an officer’s suspicion that contraband may be present in the vehicle does not invalidate an otherwise lawful inventory search); United States v. Stephens, 350 F.3d 778, 780 (8th Cir. 2003) (holding that the vehicle search “was properly conducted, both as an inventory search and a search incident to arrest”).

Window tint violation led to officer smelling marijuana which was probable cause. United States v. Barnett, 2009 U.S. Dist. LEXIS 127287 (M.D. Fla. January 14, 2009).*

Permalink 09:31:07 am, by fourth, 405 words, 542 views   English (US)
Categories: General

D.Ariz.: Wiretap seizure of telephone calls with defense counsel was unreasonable and violated the Fourth Amendment

Wiretap seizure of telephone calls with defense counsel was unreasonable and violated the Fourth Amendment. United States v. Renzi, 722 F. Supp. 2d 1100 (D. Ariz. 2010):

Section 2518(10)(a)(i), however, provides that a defendant may move to suppress the contents of communications intercepted under that chapter on the grounds that “the communication was unlawfully intercepted.” The Supreme Court has opined that section (i) “must include some constitutional violations. Suppression for lack of probable cause, for example, is not provided for in so many words and must fall within paragraph (i) unless, as is most unlikely, the statutory suppression procedures were not intended to reach constitutional violations at all.” United States v. Giordano, 416 U.S. 505, 525-26, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974). The Court finds that the privileged communications were unlawfully intercepted, under § 2518(10)(a)(I), in violation of Renzi’s Fourth Amendment protections.

The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. AMND. IV. Because our society recognizes a person’s legitimate expectation of privacy when consulting with counsel, see DeMassa v. Nunez, 770 F.2d 1505, 1506-07 (9th Cir. 1985), the seizure of potentially privileged communications raises serious Fourth Amendment issues. See, e.g., Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 960-62 (3d Cir. 1984) (requiring special procedures to protect the attorney-client privilege during the search of a law firm).

A search is unreasonable, and thus violates the Fourth Amendment, when it is performed without proper judicial authorization, Groh v. Ramirez, 540 U.S. 551, 562-63, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004), when the government seizes evidence beyond that which is authorized in the warrant, United States v. Mittelman, 999 F.2d 440, 445 (9th Cir. 1993), or when the government executes the search in an unreasonable manner. See San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 971 (9th Cir. 2005). Although the Wiretap Order did not address specifically the monitoring of privileged conversations between Congressman Renzi and his attorneys, Agent Odom specifically represented to the Supervising Court in his affidavit in support of the application for the interception of wire communications, that the government would minimize privileged calls and carefully train the monitors to recognize calls between lawyers and clients. By knowingly recording privileged calls, the government violated the Wiretap Order and seized evidence beyond that which was authorized. For these reasons, the government’s seizure of privileged calls violated the Fourth Amendment.


Permalink 09:54:18 am, by fourth, 427 words, 978 views   English (US)
Categories: General

More on vehicle "black boxes"--applying the "Big Brother" standard under the Fourth Amendment

“Black Box” Standard for New Cars Could Be Big Gain for Street Safety by Charles Komanoff on discusses a NHTSA proposed requirement of black boxes in all cars. According to the blog, they started appearing voluntarily in the 1990s to protect manufacturers from potential lawsuits, and became widespread in 2004. How often do the police really look there? (Search "black box," the first post here.)

What about the privacy implications? Can the government legitimately require a "black box" as an event recorder? They do in commercial airliners, but the interests are vastly different, and the FAA heavily regulates all air traffic. What's the government interest in having them in all cars manufactured after a certain date, which I'm guessing means they will be in 85+% of all cars in ten years?

People have been convicted based on evidence from the "black box" refuting their statements to the police, as noted in the blog and the case law. My view is that a search warrant is required for the "black box" in a car. It is not like any other search of a car. Liken it to finding a computer in a car. It can't be searched under the automobile exception or inventory, and a warrant is required for it, too.

They are far less intrusive than a GPS device which measures speed and exact location. GPS devices planted by the police are already not a Fourth Amendment issue, but state law may be different, as in New York's People v. Weaver discussed here (opinion) and here (article).

I suggest applying the "Big Brother" standard: Does it creep you out like Orwell's 1984 surveillance? If so, then it should violate the Fourth Amendment. GPS far more so than black boxes, so it meets that standard.* "Black boxes" less so. Kyllo on thermal imaging a house creeps me out. I submit that black box searches won't be used except in really bad crash cases because it takes a warrant to get them and (1) either the police won't bother, or (2) the courts won't give them one unless it is really necessary.

And, the "Big Brother" standard also depends on the interests involved. Some will require a search warrant (Kyllo; GPS on cars should (but depends on the state)), but some may be so intrusive they they are beyond a search warrant, like search warrants to go below the skin for evidence (like for bullets in Winston v. Lee), or seizing adult pornography in the home which is a constitutionally protected right (Stanley v. Georgia).


* Federal courts disagree under the Fourth Amendment.

Permalink 08:57:40 am, by fourth, 164 words, 301 views   English (US)
Categories: General

E.D.Mo.: Strong smell of ether justified entry onto the curtilage

Officer’s entry on to the curtilage was justified by the smell of ether (exigent circumstances) and defendant’s prior involvement with manufacturing meth. United States v. Weiler, 2010 U.S. Dist. LEXIS 55793 (E.D. Mo. May 20, 2010).*

Defendant’s § 2255 claim that defense counsel was ineffective for not specifically challenging certain parts of the USMJ’s findings on his search claim did not prejudice him when the court made findings on those issues anyway. United States v. Goodlett, 2010 U.S. Dist. LEXIS 56009 (N.D. Okla. June 4, 2010).*

The court finds more credible the government’s version that the defendant and his father consented to a search of their property for stolen property linked to defendant. United States v. Clutter, 2010 U.S. Dist. LEXIS 55810 (W.D. Mo. May 17, 2010).*

Defendant’s § 2255 argument that defense counsel did not press a specific search argument is belied by the record. The issue was fully addressed by the USMJ, USDJ, and USCA. Jones v. United States, 2010 U.S. Dist. LEXIS 55750 (D. Maine May 10, 2010).*

Permalink 08:31:25 am, by fourth, 167 words, 383 views   English (US)
Categories: General

W.D.Mich.: § 2255 Franks claim as to CI fails where trash pulls showed PC

Defendant’s § 2255 Franks claim fails because the information about the CI in the search warrant affidavit was virtually irrelevant compared to the results of two trash pulls finding drug evidence and that was probable cause. Thomas v. United States, 2010 U.S. Dist. LEXIS 56023 (W.D. Mich. June 7, 2010).*

Court finds as a fact that the officer did not ask for consent to look for evidence of drug dealing in his computer. It was a general consent, and child pornography was found. United States v. Adkins, 2010 U.S. Dist. LEXIS 55657 (N.D. Ind. June 7, 2010)*:

On these factual findings, Adkins' motion to suppress fails because the express written consents he gave for the search of the computers and their stored files were broad and unlimited, and certainly contained no limitation making the agents' review of the ".jpg" image files beyond their scope. Neither McCabe nor any other agent made any representation to Adkins justifying any belief that the scope of his consent was limited to a particular kind of evidence.


Permalink 06:34:09 pm, by fourth, 243 words, 311 views   English (US)
Categories: General

CA3: Protective sweep that was probably illegal was mooted by issuance of SW on independent PC

Officers who made three controlled buys from defendant had a search warrant for his home, but did not execute it because he was not home. A fourth controlled buy was done, and then the officers went back to his apartment to conduct a protective sweep on the authority of a prosecutor because defendant left the lights on[!]. After the sweep, another search warrant was sought which was based on the same information as the first and included the fourth controlled buy. “Finally, because we agree with the District Court that the second search of the apartment was justified by the independent search doctrine, we need not decide whether the warrantless protective sweep of the apartment was unlawful or whether the circumstances underlying the first search warrant were suspect.” United States v. Davis, 383 Fed. Appx. 172 (3d Cir. 2010) (unpublished).*

Defendant was not seized when the officer drew a Taser on him when he refused to show his hands. The officer, however, already had reasonable suspicion at the point the Taser was drawn. United States v. Coleman, 383 Fed. Appx. 180 (3d Cir. 2010) (unpublished).*

Defendant’s being slow to show his hands during a traffic stop and then keeping one hand down was reasonable suspicion. United States v. Ford, 2010 U.S. Dist. LEXIS 55566 (D. V.I. June 4, 2010).*

CI passed on two pieces of information about the defendant and both were corroborated, and that made reasonable suspicion. United States v. Hanson, 2010 U.S. Dist. LEXIS 55382 (N.D. Iowa March 19, 2010).*

Permalink 06:24:14 am, by fourth, 209 words, 3496 views   English (US)
Categories: General

CA11: Arguable PC is sufficient for qualified immunity

“Defendant Norris had at least arguable probable cause to arrest Brown for disorderly conduct.” Therefore, he had qualified immunity against a § 1983 case. “In short, we look only to whether a reasonable officer, knowing what Sergeant Norris knew at the time, objectively could have believed probable cause existed. We conclude Brown’s actions in playing loud music, stopping her car, and rolling her window down could have indicated to an objectively reasonable officer at the scene that Brown was making unreasonable noise with intent to create public annoyance, even if those circumstances were insufficient to prove an actual violation of § 13A-11-7.” Joi v. City of Huntsville, 608 F.3d 724 (11th Cir. 2010).*

Excessive force claim survives qualified immunity analysis to get to trial. Miller v. Sanilac County, 606 F.3d 240, 2010 FED App. 0165P (6th Cir. 2010)*:

Miller’s claim of excessive force admittedly comes close to the “scintilla of evidence” of excessive force this Court has previously found to be insufficient to survive summary judgment. ... However, we believe that a jury could reasonably find that slamming an arrestee into a vehicle constitutes excessive force when the offense is non-violent, the arrestee posed no immediate safety threat, and the arrestee had not attempted to escape and was not actively resisting. Graham, 490 U.S. at 396.


Permalink 05:08:00 pm, by fourth, 323 words, 605 views   English (US)
Categories: General

CA8: Stop of a man in a hoodie for carrying a weapon lacked reasonable suspicion

The officer suspected that defendant was carrying a gun in the pocket of his hoodie, but it was based on his experience as an officer and no other facts about the hands or what he might be holding. The Eighth Circuit [surprise!] finds this not enough for reasonable suspicion under Terry and Arvizu. United States v. Jones, 09-1731 (8th Cir. June 8, 2010):

Like the district court, we conclude that Officer Hasiak lacked the requisite reasonable suspicion that Jones was carrying a concealed firearm in his hoodie pocket, as opposed to some other object, or no object at all. The critical question is, again, whether Hasiak had a “particularized and objective basis” for his suspicion. Arvizu, 534 U.S. at 273. Given the deference we must accord both Hasiak’s training and experience and the inferences drawn by a resident district judge, this is a close question.

The government emphasizes that Jones by clutching the outside of his hoodie pocket exhibited one of the firearm-carrying clues Hasiak had been trained to observe, and Hasiak’s testimony that, on ten other occasions, the suspect he stopped and frisked was in fact armed. But this evidence was not as conclusive as the government suggests. On cross examination, Hasiak admitted that he was unable to see the size or shape of whatever was in Jones’s hoodie pocket, and that Jones exhibited none of the other clues Hasiak had been trained to look for, such as walking with an unusual gait, turning that part of his body away from the officers’ view, adjusting his grip or the location of the item in his pocket, or running away. Compare United States v. Jackson, 175 F.3d 600, 601-02 (8th Cir.), cert. denied, 528 U.S. 828 (1999). Government counsel then failed to clarify whether the other ten suspects to whom Hasiak generally referred had likewise exhibited only this one telltale clue. Because totality of the circumstances is the test, undue focus on one circumstance is suspect.

Permalink 11:47:12 am, by fourth, 359 words, 301 views   English (US)
Categories: General

KS: Defendant was talked to as a witness to accident, not a suspect, and officer concluded he was DUI

Officers received a call about a car partially submerged in a creek and responded. When the officer arrived, he saw the vehicle in the water and another car parked near it. The officer engaged in chit-chat with the driver of the other car about what he knew about it, never considering him a suspect in anything, but it became apparent he was under the influence. Defendant was not detained until reasonable suspicion developed. State v. McGinnis, 290 Kan. 547, 233 P.3d 246 (2010)*:

Deputy Clark did not activate his vehicle emergency lights or sirens. Nor did he consider McGinnis a suspect. He got out to ask if McGinnis knew anything about the partially submerged vehicle. When walking by McGinnis' car, Clark saw through the window a 12-pack of Natural Light Beer on the front passenger seat. Clark could not tell if any cans were open. He did not suspect McGinnis of intoxication because he had not witnessed any traffic infractions while following McGinnis there.

When Deputy Clark approached McGinnis near the creek bank, he said "Hi" and asked how McGinnis was doing. He also asked if McGinnis knew anything about the partially submerged vehicle. McGinnis denied having knowledge of the vehicle and indicated that he was looking for a fishing spot, which is common in the area. During this brief encounter, Deputy Clark noticed three indicia of possible intoxication: McGinnis' slurred speech, bloodshot eyes, and an odor of alcohol coming from him. According to Clark, at this point he began an investigation of driving under the influence of alcohol (DUI).

McGinnis admitted to consuming two beers and consented to a field sobriety test. ...

Traffic stop led to officer smelling marijuana, and that created probable cause. United States v. Johnson, 2010 U.S. Dist. LEXIS 54868 (M.D. Ala. May 7, 2010),* adopted 2010 U.S. Dist. LEXIS 54867 (M.D. Ala. June 4, 2010).*

Defendant’s vehicle was lawfully impounded after a DUI arrest, and the officer conducted an inventory of the car finding drugs in the trunk. It was a lawful inventory. People v. Shafrir, 183 Cal. App. 4th 1238, 107 Cal. Rptr. 3d 721 (1st Dist. March 29, 2010), Publication Status of this Document has been Changed by the Court from Unpublished to Published April 14, 2010.*

Permalink 11:24:53 am, by fourth, 304 words, 306 views   English (US)
Categories: General

D.Minn.: Consent form was understandable enough to show voluntary waiver

Defendant consented to the taking of a DNA sample. He was informed that he had a right to refuse consent, but he objected that he did not understand the form or what DNA was. The court finds the form simple and understandable, and he voluntarily consented. [The court downplayed the role of knowledge of the right to refuse consent in voluntariness.] United States v. Cloud, 2010 U.S. Dist. LEXIS 54861 (D. Minn. April 19, 2010):

In addition, though the Defendant contends that his consent was not knowing, because Iverson did not explain the meaning of a "voluntary submission," the language of the Consent Form is clear and simple, and plainly informs the reader that there is no requirement to consent, and that any consent is voluntarily given. As a consequence, we find that the Defendant was sufficiently apprised of the voluntary nature of his consent and, in addition, we observe that, while it may factor into the totality of the circumstances analysis, "[t]he Supreme 'Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search.'" United States v. Va Lerie, supra at 710, quoting United States v. Drayton, 536 U.S. 194, 206 (2002); see also, United States v. Esquivias, supra at 701 ("While the officers did not inform [the defendant] of his right to refuse consent, a defendant need not be aware, nor must an officer inform him, of his right to refuse consent for his consent to be voluntary."), citing United States v. Becker, 333 F.3d 858, 861 (8th Cir. 2003); United States v. Alcantar, supra at 737 ("Although [the defendant] was not advised of his right to refuse consent, that was not in and of itself sufficient to find that consent was not voluntarily given."), citing United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999).

Permalink 11:19:08 am, by fourth, 321 words, 309 views   English (US)
Categories: General

S.D.Fla.: Knock-and-talk led to defendant coming to door with baggie of crack in hand; that's an exigent circumstance for entry

Officers received information that drug dealing was going on at a house, and they went to the premises to conduct a knock-and-talk. While talking to the man that answered the door, the defendant came into view with a baggie of crack in hand. That was an exigent circumstance for an entry. After police entered, consent to search was granted after the occupants were told in writing they could refuse and require a search warrant. United States v. St. Villien, 2010 U.S. Dist. LEXIS 54656 (S.D. Fla. May 17, 2010):

The Court emphasized, however, that the exigency which justifies the warrantless entry cannot be one that is created by the police. Thus, in Santa, the Court held that exigent circumstances did not justify the warrantless entry into the defendants' apartment to arrest the defendants where the law enforcement agents had advance notice that the defendants were going to conduct a narcotics transaction with an informant at that location. Accord United States v. McGregor, 31 F.3d 1067, 1069 (11th Cir. 1994).

In the case at bar, the police had received information that a drug trafficker known as "Gucci" lived at the subject premises, and was distributing drugs from that location. Based upon the receipt of that information, they reasonably decided to investigate the premises in an effort to verify the information. Once they arrived at the premises, and knocked on the door, Mr. Barberena opened the door. As Officer Oliva began to speak with him to tell him why they were there, he saw the Defendant walk into view carrying a baggie of crack cocaine. The Defendant has not disputed the conclusion that at that point, the police had probable cause to enter the residence, seize the crack cocaine and detain the Defendant. Rather, the only dispute is whether Officer Oliva, in fact, saw the Defendant carrying the crack cocaine before he entered the residence, and the undersigned has credited the testimony of the officers that he did.


Permalink 12:58:04 am, by fourth, 267 words, 451 views   English (US)
Categories: General

Cal.2: Live animals in distress is an exigent circumstance

A live animal in obvious distress, as reported to police, justified a warrantless entry into defendant’s apartment when the officers independently developed reason to believe there was a hurt dog in defendant’s condominium after defendant answered the door. There is a long history in American life of animal welfare. See United States v. Stevens (SCOTUS, April 10, 2010) (“‘the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies.’”). California’s animal welfare statute was passed in 1872. Exigent circumstances justified the entry under the Fourth Amendment, and exigent circumstances are not limited to people in distress. Other states are in accord: People v. Thornton, 286 Ill.App.3d 624, 676 N.E.2d 1024, 222 Ill. Dec. 60 (1997); Suss v. American Society for Prevention of Cruelty to Animals, 823 F.Supp. 181 (S.D.N.Y.1993) (cat); Tuck v. United States, 477 A.2d 1115 (D.C.App.1984) (rabbits); State v. Bauer, 127 Wis.2d 401, 379 N.W.2d 895 (1985) (horses). People v. Chung, 185 Cal. App. 4th 247, 110 Cal. Rptr. 3d 253 (2d Dist. 2010), Modified and rehearing denied by People v. Chung, 2010 Cal. App. LEXIS 1031 (Cal. App. 2d Dist., July 1, 2010):

Exigent circumstances properly may be found when an officer reasonably believes immediate warrantless entry into a residence is required to aid a live animal in distress. Where an officer reasonably believes an animal on the property is in immediate need of aid due to injury or mistreatment, the exigent circumstances exception to the warrant requirement of the Fourth Amendment may be invoked to permit warrantless entry to aid the animal. On the record presented, the trial court properly denied Chung's suppression motion.

Permalink 12:48:38 am, by fourth, 354 words, 422 views   English (US)
Categories: General

IN: Asking motorist about a suspicious bulge in pocket after a seatbelt stop exceeds police statutory authority

Indiana’s seatbelt enforcement statute limits the authority of officers to search after a stop for violation of the statute. “Indiana Code section 9-19-10-3.1, also known as the Seatbelt Enforcement Act (‘Act’), provides that ‘a vehicle may be stopped to determine compliance with this chapter. However, a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of this chapter.’” The officer noticed a “suspicious bulge” in defendant’s pocket and asked about it. This exceeded the statute, and the constitutional question did not have to be decided. State v. Richardson, 927 N.E.2d 379 (Ind. 2010):

Here, Officer Eastwood initiated a traffic stop solely under the Act after she observed Richardson driving without wearing a seat belt. When Officer Eastwood approached Richardson's car, she recognized him from a prior traffic stop, during which she had encountered no problems with violence or resistance. Additionally, Richardson was immediately cooperative with Officer Eastwood and admitted that he was not wearing his seat belt. While Officer Eastwood did observe an "unusual bulge," this fact standing alone did not provide the independent basis of reasonable suspicion that Baldwin requires, especially in light of Richardson's immediate compliance and Officer Eastwood's prior peaceful exchanges with Richardson. Cf. Morris , 732 N.E.2d at 228 (finding an independent basis for further inquiry above and beyond the seat belt violation, where the defendant failed to produce a valid license, and a computer check later revealed his license was suspended). On these facts, we agree with the trial court that Officer Eastwood's questioning about the "unusual bulge" contravened the Act.

There will, of course, be circumstances where something more than an "unusual bulge" will be visible, or other conditions that provide a police officer with the requisite reasonable suspicion to conduct further inquiry. This is not one of them. And even if the facts were such that Officer Eastwood's questioning about the bulge was proper, the fact remains that Richardson's production of a valid gun permit should have resulted in the termination of any further questioning.

Permalink 12:32:06 am, by fourth, 301 words, 323 views   English (US)
Categories: General

NC: Pre-Gant SI was invalid; record well developed, and the state gets no remand

The search of defendant’s car based on driving on a suspended license a year before Gant was invalid under Gant. The state sought a remand, but the court finds the record sufficient even though the suppression hearing was well before Gant. The state’s alternative of plain view fails because the gun was found after the car door was opened. State v. Johnson, 204 N.C. App. 260, 693 S.E.2d 711 (2010):

While the suppression hearing was focused on the constitutionality of the police officer's stop of defendant, the record exceeds that scope, and covers in detail all aspects of the encounter including: the stop, the officer's questioning of defendant regarding his license, defendant's arrest for driving on a suspended or revoked license, defendant's removal to the backseat of the patrol car, and the subsequent search of defendant's car incident to his arrest.

The prosecutor's questions at the hearing were designed to elicit all information concerning the officer's stop and subsequent search of defendant's vehicle. Further, Officer Dickerson's detailed report concerning the entire incident was admitted at the hearing and is included in the record on appeal. According to the officers, defendant was arrested shortly after the stop. For instance, defendant was asked for his driver's license; defendant admitted he did not have a license; and as a result, the officers immediately arrested defendant for driving with a revoked license. After being arrested, defendant was placed in the rear of the patrol car and Sergeant Osborne searched the car. While searching, Sergeant Osborne found a handgun after he opened the door and looked under the driver's seat.

Defendant was arrested for driving on a suspended license, and a search of his person was conduct. Gant does not apply to searches of the person, only the car. State v. Whitney, 156 Wn. App. 405, 232 P.3d 582 (2010).*

Permalink 12:17:16 am, by fourth, 313 words, 546 views   English (US)
Categories: General

D.Minn: Search warrant issued five days after bank robbery was not stale

The search warrant for evidence of a bank robbery was not stale five days after the robbery where some of the information was obtained within hours of the issuance of the warrant. United States v. Lowen, 2010 U.S. Dist. LEXIS 53215 (D. Minn. June 1, 2010)*:

“There is no bright-line test for determining when information is stale,” and the passage of time, alone, is “not always the controlling factor,” as other factors, such as “the nature of the criminal activity involved and the kind of property subject to the search,” are also relevant to the inquiry. Id., quoting United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993); United States v. Rugh, 968 F.2d 750, 754 (8th Cir. 1992); see also, United States v. Kennedy, supra at 1141; United States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir. 2002).

As a result, in our analysis, we must not “simply count[] the number of days between the occurrence of the facts supplied and the issuance of the affidavit,” but must consider any passage of time “in the context of a specific case and the nature of the crime under investigation.” United States v. Maxim, supra at 397, quoting United States v. Koelling, supra at 822. Furthermore, “‘where recent information corroborates otherwise stale information, probable cause may be found.’” United States v. Ozar, supra at 1446, quoting United States v. Macklin, 902 F.2d 1320, 1326 (8th Cir. 1990), cert. denied, 498 U.S. 1031, 111 S. Ct. 689, 112 L. Ed. 2d 680 (1991).

Quite plainly, the information contained in the Search Warrant was not impermissibly stale, since all of the information was, at most, only a few days old. Indeed, the bank robbery occurred on February 26, 2010, and the Search Warrant was obtained on March 3, 2010. Moreover, information, that was obtained just hours before the Search Warrant issued, revealed that evidence of the bank robbery would still be found on the property, since law enforcement had observed attire, and other evidence, while at the Defendant’s residence on that same date.


Permalink 10:47:00 am, by fourth, 274 words, 504 views   English (US)
Categories: General

CA5: PC not resolved under good faith exception without a "novel question"

Defendant was indicted and wanted in Tennessee, and he was seen in Bowie County, Texas. He was a known drug dealer. The officer put all he knew about the defendant in the search warrant request and included that in his experience drug dealers keep drugs and guns. The affidavit was not bare bones, and the question of probable cause is not even addressed because of the lack of a “novel question” of PC. The defendant then consented to a search of off-site storage buildings. United States v. Fields, 380 Fed. Appx. 400 (5th Cir. 2010) (unpublished)*:

“This court reviews conclusions of law regarding the sufficiency of a warrant de novo. Our review involves a two-step process, whereby we must first determine whether the good-faith exception to the exclusionary rule applies. Only if a novel legal question is presented or the good-faith exception does not apply must we then ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Whether (1) knowledge of where a drug-dealer resides plus (2) an officer’s experience that such people hide drugs in their homes can support reliance on a warrant is not a novel question in this Circuit, so we engage only in the good-faith analysis.

. . .

The officers in good faith relied on a warrant to search Fields’s home. Because the warrant allowed the police to search the “premises,” the police could comb-through Fields’s car parked on the property. The district court did not err in allowing fruits of the home and car searches to come in evidence based on the good-faith exception, emphasizing again that we do not pass on whether probable cause existed. (footnotes omitted)

Permalink 10:19:16 am, by fourth, 258 words, 307 views   English (US)
Categories: General

N.D.Iowa: Defendant agreed to talk with trooper and to a dog sniff

The trooper told defendant he was free to go handing back papers and saying “have a nice trip.” Then the trooper said “have you got time for a couple of quick questions?,” and the defendant agreed to talk, and the trooper asked about drugs. Defendant asked why, and he said he had “indicators.” He was not seized when he agreed to a drug dog coming to sniff the car. United States v. Bowman, 2010 U.S. Dist. LEXIS 54194 (N.D. Iowa June 3, 2010)*:

Here, Trooper Simmons had returned Defendant’s driver’s license, registration, and insurance papers, and told Defendant that he was free to leave. The video demonstrates that Simmons did not block Defendant’s path to his vehicle, nor did he raise his voice or otherwise suggest that Defendant’s compliance was required. In fact, when Simmons asked for permission to search the car, Defendant refused. Accordingly, Defendant apparently understood that he was not required to consent to Simmons’ requests. When Simmons asked whether or not it would be “cool” for a canine to do a free air search of the car, Defendant agreed, responding “yeah, that's cool.” The Court concludes that Defendant was not seized during the encounter with Simmons between the cars.

Police responding to a domestic disturbance call were given consent to search by the woman involved for a gun that the defendant with a prior conviction had put to her head. Also, it was in plain view when the officer came in. United States v. Moylan, 2010 U.S. Dist. LEXIS 53619 (W.D. Mo. May 10, 2010).*

Permalink 09:52:50 am, by fourth, 142 words, 487 views   English (US)
Categories: General

D.V.I.: Mail from the mainland is subject to a Customs search

U.S. Mail from Georgia to the Virgin Islands by statute goes through Customs even though mail to Puerto Rico does not. The customs search here was valid. United States v. Larsen, 2010 U.S. Dist. LEXIS 54597 (D. V.I. June 1, 2010):

The Court notes Smith's concern. Indeed, a letter mailed by a United States citizen from Puerto Rico to Georgia, through the United States Postal Service, absent some extenuating circumstance, is not subject to warrantless search because the relevant case law holds that it is traveling within the customs territory of the United States. However, the same letter, if mailed by the same person from the United States Virgin Islands to Georgia, through the United States Postal Service, may be subject to a warrantless search.

While that treatment may seem disparate and problematic, Hyde has determined that for constitutional purposes it is not.

Permalink 09:40:54 am, by fourth, 208 words, 522 views   English (US)
Categories: General

D.Kan.: Window tinting permitted SI because of McCane

Window tinting stop in Kansas was valid, and defendants had no valid state driver’s license. One had a Mexican ID card and the other had a Mexican DL. That justified detaining them to determine whether either could lawfully drive. Calling in a drug dog during the detention was not unreasonable. The window tint violation justified a search incident which was valid under the Tenth Circuit's Gant good faith case, United States v. McCane, because this search incident predated Gant. (There was, however, no probable cause to arrest for not having a valid driver’s license, but that doesn't matter in the end.) United States v. Beltran-Palafox, 731 F. Supp. 2d 1126 (D. Kan. 2010).*

Defendant’s guilty plea waived his search issue for appeal, and it was not cognizable in a § 2255 for IAC of defense counsel. His appeal to the Sixth Circuit was dismissed for the same reason. United States v. McCorkle, 2010 U.S. Dist. LEXIS 53844 (W.D. Mich. March 30, 2010).*

Defendants’ stop near the border was justified by reasonable suspicion because of their location in the desert and it being highly unlikely they would be up to anything else. When stopped, the smell of marijuana came from the car. United States v. Ramon, 2010 U.S. Dist. LEXIS 54360 (D. Ariz. May 13, 2010).*

Permalink 01:38:55 am, by fourth, 121 words, 307 views   English (US)
Categories: General

NJ's automatic standing rule does not apply to abandonment

While New Jersey recognizes automatic standing, not so with abandonment. Here, police had CI information that defendant was coming on a bus with drugs. The police met the bus in Union City and the passengers got off. They approached defendant to talk and he said that he had no luggage. On the bus remained one bag which was searched, and defendant clearly abandoned the bag. Stuff inside can be identified to him. State v. Carvajal, 202 N.J. 214, 996 A.2d 1029 (2010).*

The fact the police chief personally knew the CI since both were children enabled the chief to give the CI more credibility, and it was corroborated. The stop was based on reasonable suspicion. State v. Crowell, 204 N.C. App. 362, 693 S.E.2d 370 (2010).*


Permalink 07:54:02 am, by fourth, 261 words, 408 views   English (US)
Categories: General

AZ2: In a business records seizure, magistrate should take testimony on return of records

In a seizure of business records, the Arizona statute involved required that the magistrate take testimony on whether the documents should be returned when no forfeiture of the seized property is sought. In re Search Warrant, No. 08 SW 1417, 224 Ariz. 505, 233 P.3d 618 (Ariz. App. 2010):

P12 We agree with the essence of Franklin’s interpretation. Section 13-3922 clearly and unambiguously provides that a magistrate “shall proceed to take testimony” unless a forfeiture action relating to the same property interest “is or has been” filed. Thus, if such a forfeiture action is pending, the magistrate is precluded only from taking testimony. Nothing in the statute's plain language suggests the magistrate also is precluded from deciding the motion on the papers. Despite neither citing supporting authority nor providing any analysis, the state argues this interpretation of the statute is “absurdly tortured.” We disagree. Because the language of § 13-3922 is clear, we need not examine either the statutory scheme as a whole or the statute's context, subject matter, historical background, effects, consequences, spirit, or purpose. See Ross, 214 Ariz. 280, P 22, 151 P.3d at 1264.

P13 Accordingly, the trial court erred in dismissing Franklin's motion to controvert. Moreover, we observe that the court may take testimony, if offered, relevant to Franklin's motion as it relates to the seizure of his business records. Because the state has not sought forfeiture of those records, no “proceeding pursuant to chapter 39 of this title is or has been initiated” with respect to Franklin's property interest in those records. § 13-3922(A). In light of our ruling, we need not address Franklin’s remaining arguments.

Permalink 07:31:04 am, by fourth, 222 words, 513 views   English (US)
Categories: General

DE: Conclusory motion to suppress denied without a response required

A motion to suppress with no facts, no law, and only a conclusion is denied without a hearing or even a response from the state. State v. Small, 2010 Del. Super. LEXIS 221 (May 27, 2010):

The Court is in receipt of Defendant's motion to suppress evidence filed on May 14, 2010, which reads in its entirety:


COMES NOW the defendant, above, by and through counsel, Joe Hurley, who moves to suppress all evidence found as a result of the defendant's vehicle, and in support of such application, maintains that the defendant did not give consent to search his vehicle and, therefore, the putative consent cannot form the basis of validating the otherwise unlawful search of his vehicle.

WHEREFORE, the defendant moves to suppress the evidence.

“Here, Defendant was walking down a public street when he stated, ‘What? Do you want to jump out on me? I'm 29 negative, I'm clean. Pat me down. Search me.’ Defendant invited the Officers to pat him down. While perhaps unwise, the consent was explicit and completely voluntary. Based on the totality of the circumstances, the Court is satisfied that Defendant freely and unequivocally consented to the search. ... Here, Defendant consented to the search before the encounter rose to the level of a ‘stop.’” If no consent, outcome would have been different. State v. Watson, 2009 Del. Super. LEXIS 518 (May 1, 2009).*

Permalink 06:57:34 am, by fourth, 178 words, 294 views   English (US)
Categories: General

E.D.Wis.: Brendlin standing is to the stop, not the subsequent search

Brendlin only gives standing to object to the stop of the car, which was found to be with probable cause. It does not extend standing to a search of the car. United States v. Collins, 2010 U.S. Dist. LEXIS 53939 (E.D. Wis. April 9, 2010), R&R adopted 2010 U.S. Dist. LEXIS 53933 (E.D. Wis. June 2, 2010).*

District court did not abuse its discretion in denying defendant’s motion to reopen the suppression hearing to test the officer’s credibility on the failure of the video in the police car during the stop. United States v. McWhorter, 380 Fed. Appx. 965 (11th Cir. 2010) (unpublished).*

Defendant is entitled to photographs of evidence seized under F.R.Crim.P. 16 discovery. United States v. Landron-Class, 714 F. Supp. 2d 278 (D. P.R. 2010).*

Defendant’s consent was not involuntary because he was suffering from hypoglycemia a few hours after the stop. His first contention was no consent. As the hearing progressed, it moved to he was ill. The magistrate's findings are supported by the evidence. United States v. Mbodji, 2010 U.S. Dist. LEXIS 53367 (E.D. Tenn. May 28, 2010).*

Permalink 06:30:21 am, by fourth, 443 words, 365 views   English (US)
Categories: General

S.D.Fla.: Difference between a stop based on mistakes of law and of fact

Claimant’s stop was based on reasonable suspicion of a traffic violation, and there was no mistake of law or fact. The court discusses the difference. United States v. $33,020.00 in United States Currency, 2010 U.S. Dist. LEXIS 53550 (S.D. Fla. June 1, 2010)*:

a. Mistakes of Law

Twilley [United States v. Twilley, 222 F.3d 1092, 1094 (9th Cir. 2000)] illustrates the situation where reasonable suspicion for a traffic stop was lacking because of a mistake of law. In Twilley, a California Highway Patrol officer spotted a vehicle with a Michigan license plate on the rear. The officer mistakenly believed that Michigan law required a license plate on the front of the vehicle in addition to the license plate on the rear. It was the officer's basis for stopping the vehicle. However, the officer was wrong as a matter of law. Michigan law did not require display of a front license plate. Consequently, the Ninth Circuit held that the officer did not have reasonable suspicion, the traffic stop violated the Fourth Amendment, and evidence from the search that followed should be suppressed. Id.

b. Mistakes of Fact

United States v. Wallace, 213 F.3d 1216 (9th Cir. 2000), illustrates the opposite situation. In Wallace, as in the present case, police officers were following a vehicle that was suspected of involvement with illegal narcotics activity. The officers were hoping to see a traffic violation in order to stop the driver. The officer noticed that the front window glass of the target car was darkly tinted. California's Vehicle Code prohibits dark tinted windows on the front part of a car. Specifically, any tinting darker than tinted glass which allows 70% light transmittance is prohibited by California law.

Based upon the dark tinting, the police officer pulled Wallace over and the ensuing search of his vehicle revealed 130 pounds of marijuana. The officer correctly believed that the vehicle code prohibited dark tinting. That he incorrectly believed that all tinting was prohibited, or that he had not precisely measured the light transmitting quality of the window glass (which was later measured as only 29%), was of no moment. In holding that the officer had objective, probable cause justifying the traffic stop, the Ninth Circuit explained that the officer “was not taking the bar exam.” Id. at 1220. Instead, the issue, “is not how well [the officer] understood California’s window tinting laws, but whether he had objective, probable cause to believe that these windows were, in fact, in violation.” Wrote the court, “Officer Lieber's observations correctly caused him to believe that Wallace's window tinting was illegal; he was just wrong about exactly why.” Id. Consequently, the Ninth Circuit reversed, holding that the motion to suppress should be denied. Id. at 1221.


Permalink 12:18:52 am, by fourth, 169 words, 422 views   English (US)
Categories: General

CA11: Search of briefcase of arrested internet predator was justified by inventory

Defendant’s consent to search his laptop computer after he was arrested at the Atlanta airport for traveling interstate for sex with a minor in an internet sting case came after he knew what was under investigation and he was told of his right to refuse. The seizure of his briefcase and the subsequent search of it was valid at least as an inventory. United States v. Farley, 607 F.3d 1294 (11th Cir. 2010).* This is an interesting (and long: 112 pages long) opinion raising a huge number of issues, including that fact there was no minor therefore no crime (he lost), and an aside by the court about the defendant wondering seven times in the chat sessions whether this was a sting operation:

As Farley had suspected out loud to “Stephanie” on seven different occasions, it was a sting operation. Still, he had single-mindedly pursued his “dream.”FN4

4 Farley’s damn-the-suspicions-and-full-speed-ahead recklessness is not unusual with sex predators who prey on children.

What follows is a quote from Louis Freeh's biography.

Permalink 12:12:08 am, by fourth, 289 words, 300 views   English (US)
Categories: General

DC: Screaming for help from the police in a high crime area not disorderly

An officer saw several people congregating in the Sursum Corda neighborhood of D.C. who the officer knew had priors, and he approached them. All left but T.L. whom the officer asked about drugs. He said he didn’t have any, and the officer asked about searching. He found a lot of cash on T.L. and took it telling him that he had to prove he earned it to get it back. T.L. shouted and called for help because he thought he was being “robbed” by the police officer, who, the court noted, gratuitously took his money. That brought people out of their homes. The officer then arrested T.L. for disorderly conduct and searched him incident to that finding crack. T.L.’s actions were not disorderly, and the search was invalid. Drug suppressed. In re T.L., No. 06-FS-798 (D.C. June 3, 2010).*

The search warrant for defendant’s computer for child pornography was sufficiently particular considering that cameras and video media were involved. United States v. Hyer, 2010 U.S. Dist. LEXIS 53221 (E.D. Mo. April 29, 2010)*:

In this case, the search warrant authorized officers to search for specific items related to the downloading and storage of images of child pornography. As noted in Alexander, these electronic files may be found in a number of different places and mediums. Given these realities, the Eighth Circuit has found that a search warrant for “all video tapes and DVDs, pornographic pictures, video and digital recording devices and equipment, all equipment that is used to develop, upload, or download photographs and movies, computers, and any indicia of occupancy” satisfied the Fourth Amendment's particularity requirement. Summage, 481 F.3d at 1079. Looking to Alexander and Summmage, the 2005 search warrant was sufficiently particular.

Permalink 12:07:56 am, by fourth, 321 words, 295 views   English (US)
Categories: General

MD: State's changing theory on suppression after evidence in denied defendant a fair hearing; lifting shirt exceeded frisk

State’s changing theories of the justification for the warrantless search of the defendant’s person after the proof closed denied the defendant a fair opportunity to litigate the search issue. “We hold that the suppression hearing ruling, based on an unraised, undeveloped, and unargued Fourth Amendment theory, was in error and that the physical evidence should, therefore, have been suppressed.” Then, the lifting of defendant’s shirt after the frisk exceeded the scope of the frisk, and it violated the Fourth Amendment. Epps v. State, 193 Md. App. 687, 1 A.3d 488 (2010):

Directing the appellant to lift his shirt went beyond the limited scope of a frisk. It revealed “a small, clear plastic baggie … protruding from the top of his pants.” A pat-down of the appellant would not have permitted the recovery of that baggie. It was not a hard metallic object that could have been mistaken for a weapon. Although, to the touch through clothing, it might have aroused suspicion, it by no means communicated probable cause as per the “plain feel doctrine” of Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). A properly limited frisk of the appellant would not have produced the cocaine, for the possession of which the appellant is now facing 25 years of imprisonment without the possibility of parole.

The suppression hearing judge reasoned, sua sponte, that the lifting of the shirt was reasonable because it was less intrusive than a pat-down would have been. The degree of intrusiveness, however, is not the controlling criterion. Nor is the duration of the intrusion. Nor is the degree of embarrassment that the intrusion might cause. The critical limitation is that the intrusion must be only that which is necessary to detect the presence of a weapon -- and nothing more. In this case, the alternative intrusion self-evidently detected something other than the presence of a weapon and the appellant is paying a heavy price for that incremental revelation.


Permalink 09:51:45 am, by fourth, 248 words, 859 views   English (US)
Categories: General

W.D.Ky: Billing fraud case permitted broad description in SW

Allegations of a billing fraud case were sufficiently particular in the drafting of the affidavit for the search warrant. The officers did not know what kind of evidence they would encounter in the search for evidence of the scheme. United States v. Gordon, 2010 U.S. Dist. LEXIS 53209 (W.D. Ky. June 1, 2010)*:

Likewise, Graas did not know what exact documents would contain information relating to the scheme to defraud others based on services not provided. However, the financial documents of the company were "likely to provide information concerning the [defendant’s] involvement in the [over-billing] scheme." Id. Therefore, the warrant was sufficiently particularized with respect to the things to be seized. See also United States v. Gardiner, 463 F.3d 445, 471 (6th Cir. 2006) (finding sufficient particularity in a warrant that allowed seizure of numerous things including "financial documents"); United States v. Abboud, 438 F.3d 554, 575 (6th Cir. 2006) ("In a business fraud case, the authorization to search for general business records is not overbroad."); United States v. Dirr, No. 3:08-CR-42, 2009 WL 5892996, at *19 (E.D. Tenn. Aug. 28, 2009) (finding sufficient particularity where warrant allowed seizure of "personal financial records from 1999 through August 2005" and "business financial records from 1999 through August 2005").

The act of subscribing to a child pornography website was an intentional act, and it showed probable cause to believe that defendant had purchased child porn over the Internet and downloaded it to his computer, or at least accessed it. The warrant also was not stale. State v. Hale, 2010 Ohio 2389, 2010 Ohio App. LEXIS 1975 (2d Dist. May 28, 2010).*

Permalink 09:36:34 am, by fourth, 278 words, 288 views   English (US)
Categories: General

OH6: Knock-and-talk on garage door was valid

Officer had an anonymous tip from a CI that a meth lab was in defendant’s house. He pulled into the driveway and heard music from the closed garage. He did the knock and talk on the garage door, and it was valid. State v. Birdsall, 2010 Ohio 2382, 2010 Ohio App. LEXIS 1959 (6th Dist. May 28, 2010)*:

[*P16] Ruskey testified that as he pulled into appellant's driveway, he saw the garage directly in front of him. The house was located five feet to the left. He testified that appellant's driveway was standard sized, approximately 25 feet long. He approached the garage because he heard music coming from inside and he thought that someone might be there. There is no evidence of an enclosure around the garage and there is no evidence that the garage was hidden from street view. Ruskey, in entering appellant's property and knocking on the garage door was acting much like any "reasonably respectful citizen" would. The fact that Ruskey was there based on information he received from an uncorroborated anonymous tip is irrelevant for our purposes here. Accordingly, appellant's sole assignment of error is found not well-taken.

Defendant consented to a search of his car, but, before the search occurred, the defendant admitted he had drugs in the car. That was probable cause. State v. McClure, 53 So. 3d 169 (Ala. Crim. App. 2010).*

Particularity description of “weapons and any and all illegal items or substances used in the commission of burglary, theft, arson or any other felonies or proceeds thereof” was sufficiently particular here. The police were looking for stolen property, and they found a stolen camera which alternatively was in plain view. Green v. State, 2010 Ala. Crim. App. LEXIS 46 (May 28, 2010).*

Permalink 08:18:01 am, by fourth, 236 words, 451 views   English (US)
Categories: General

M.D.Ala.: Fact defendant was a State Trooper was a factor in voluntariness of consent

Defendant was in an automatically locked interview room at the police station for several hours in a child abuse investigation, when he finally consented to a search of his computer. He was cooperative throughout. He was a police officer, and he was allowed out of the room twice at his request. He could have asked to leave, and didn’t. His consent was valid. United States v. Stanton, 2010 U.S. Dist. LEXIS 52817 (M.D. Ala. April 30, 2010):

Stanton demonstrated a great willingness to cooperate with police. He agreed to go to the police station, agreed to be interviewed, and agreed to execute a waiver of rights. There is nothing in the record to suggest anything but a willingness to cooperate. There is no evidence of coercive police action. There is no evidence Stanton lacked the education or intelligence to reach any decision to consent. Stanton was a trained Alabama State Trooper and was fully aware of his rights. His willingness to consent suggests a belief that no incriminating evidence might be found. Accordingly, the court finds that Stanton voluntarily consented to the search.

Defendant was stopped driving by a house where a search warrant was being executed by officers who had stopped him before for excessive window tint. A drug dog was present and defendant consented to a sniff by the dog. It was valid. United States v. Kemp, 2010 U.S. Dist. LEXIS 52848 (S.D. Fla. May 19, 2010).*

Permalink 08:07:12 am, by fourth, 567 words, 700 views   English (US)
Categories: General

ID: Parents of juvenile offender could not be ordered to give UA as condition of daughter's probation

The parents of a juvenile offender could not be ordered under the Fourth Amendment to undergo urinalysis as a condition of their daughter’s juvenile probation. They are presumed innocent, and such a test intrudes on their reasonable expectation of privacy under Ferguson because the test is for general crime control. State v. Doe II, No. 36121 (Idaho June 1, 2010) (opinion via Leagle, Inc.):

Although the Does’ daughter is on probation, it does not necessarily follow that they themselves are subject to a diminished expectation of privacy in their bodily fluids. Parolees, probationers, and indeed all criminal offenders are on a “continuum of state-imposed punishments. Samson v. California, 547 U.S. 843, 850, 126 S. Ct. 2193, 2198 (2006) (quotations omitted). The probationer can expect to be supervised by the State on the theory that the probationer, as a recent offender, “is more likely than the ordinary citizen to violate the law.” United States v. Knights, 534 U.S. 112, 119-20, 122 S. Ct. 587, 591-92 (2001). However, this theory only applies to offenders-probation, parole, and other criminal sanctions can only be imposed on individuals “after verdict, finding, or plea of guilty.” Griffin, 483 at 874, 107 S. Ct. at 3168. It is for this reason that the Ninth Circuit has found unconstitutional home urine testing for people released pending trial, reasoning that they have not yet suffered “judicial abridgment of their constitutional rights.” United States v. Scott, 450 F.3d 863, 872 (9th Cir. 2006). The Does have not been adjudicated guilty of any drug crime, nor has any neutral magistrate formally issued a warrant based on probable cause for such a criminal investigation. State v. Nunez, 138 Idaho 636, 642, 67 P.3d 831, 837 (2003) (citing United States v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 3416 (1984)). The Does are presumed innocent and are therefore not located anywhere on the “continuum of state—imposed punishments.” Aside from pointing to the possibility in their daughter’s presentence social investigation that the Does abused drugs, the State has not overcome any formal procedural safeguards to diminish the Does’ Fourth Amendment rights in their bodies. The Does therefore retain the full measure of Fourth Amendment privacy.

. . .

Just like the testing program in Ferguson, testing in this case is characterized by a general interest in law enforcement. The magistrate imposed the urinalysis requirement during juvenile delinquency proceedings under the JCA, which are quasi-criminal in nature. See I.C. § 20-508 (allowing courts to waive jurisdiction under the JCA so that the juvenile may be transferred to “adult criminal proceedings”). The magistrate’s order requires the Does to report to their daughter’s probation officer, who is an officer of the county required by law to “enforce probation conditions.” Id. §§ 20-529, -533(3). Nothing prevented the probation officer from conveying the Does’ test results to law enforcement. Their failure to comply could result in contempt sanctions, which would be brought and pursued by the prosecuting attorney. Indeed, the juvenile probation officer in this case reported the parents’ positive urinalysis results to the prosecutor. It also appears that such evidence could be used to obtain search warrants against the Does and would be admissible against the Does in further criminal proceedings for encouraging their daughter’s delinquency. See id. § 20-526 (punishing anyone “who by any act or neglect encourages, aids or causes a juvenile to come within the purview or jurisdiction of [the JCA]”).

The State contends that the goal here is primarily to rehabilitate the minor, not to enforce criminal sanctions. The U.S. Supreme Court dealt with a similar argument in Ferguson: ....


Permalink 04:04:37 pm, by fourth, 313 words, 799 views   English (US)
Categories: General

NE: Search by private security assisted by off-duty police to enter a dance club violated Fourth Amendment

A dance club in Omaha had contract security to pat down customers to keep drugs and weapons out of the club, and it used off-duty police officers to assist them. Defendant was subjected to a pat down but resisted the going into his pockets, and the off-duty police officer told him to keep his hands in the air. This was a joint endeavor between the police and the club, and the search violated the Fourth Amendment. State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010):

[8-10] The question whether a search is a private search or a government search is one that must be answered taking into consideration the totality of the circumstances. On the record before us, it is clear that the search of Smith was a joint endeavor involving a private person and a state or governmental official. First, we conclude that Harper, although off duty at the time, was acting as a governmental official in his capacity as a police officer. A police officer on "off-duty" status is obligated to preserve the public peace and to protect the lives and property of the public in general. Police officers are considered to be under a duty to respond as police officers 24 hours a day. It has been widely held, based both on common law and statute, that a police officer is not relieved of his or her obligation to preserve the peace while off duty. In Nebraska, it has long been the case that a police officer may provide security to a commercial establishment while off duty and make arrests or take other authoritative action in connection therewith. At the time of the search, Harper was in full police uniform and was carrying a firearm. Although Harper was off duty and employed by the Club, he was acting in his official capacity as a police officer, not as a private citizen. (footnotes omitted)

Permalink 03:57:19 pm, by fourth, 510 words, 538 views   English (US)
Categories: General

W.D.Tex.: Consent to search car for stolen electronics included turning on a camera; and no standing in a stolen camera, anyway

Defendant clearly consented to a search of his car for stolen property, specifically electronics. Turning on a camera to look at the pictures did not exceed the scope of the consent, and the defendant had to understand that was likely from the blanket consent. Even if consent was exceeded, he had no standing in the stolen camera anyway. United States v. Guevara, 2010 U.S. Dist. LEXIS 52803 (W.D. Tex. May 27, 2010):

However, given that the officers were searching for stolen goods (and specifically electronics), it is entirely natural they would closely inspect any electronics in the car, and attempt to ascertain whether they belonged to Defendant or anyone else. It is well-settled if a defendant chooses not to place any explicit limitations in his response to an officer's general request to search, this is considered evidence of general consent to search. Id. (citing United States v. Crain, 33 F.3d 480, 484 (5th Cir. 1994)). For instance, law enforcement officials are not required to separately request permission to search each container within a vehicle for which they have received consent to search. Id. (citing Jimeno, 500 U.S. at 252). The Fifth Circuit has repeatedly stated "the defendant, as the individual knowing the contents of the vehicle, has the responsibility to limit the scope of the consent." Id. (quoting United States v. McSween, 53 F.3d 684, 688 (5th Cir. 1995). By assuring the officers there were no stolen goods in the car, Defendant granted consent without giving the officers any basis to think he was asserting an expectation of privacy in any of the goods in the vehicle. Because the officers did exactly what they had obtained consent to do--conduct a general search of the car for stolen electronics--the Court finds they did not exceed the scope of Defendant's consent in this case.

. . .

The Fifth Circuit, along with other courts, has held (albeit in the slightly different context of electronic monitoring) a defendant cannot demonstrate a "legitimate expectation of privacy" such as is required to invoke the Fourth Amendment where the property in question is contraband or stolen goods, because persons can have no legitimate expectation of privacy in articles of this nature, which they have no right to possess. See, e.g., United States v. Pringle, 576 F.2d 1114, 1119 (5th Cir.1978) (holding "possessors of [contraband] have no legitimate expectation of privacy in substances which they have no right to possess at all."); United States v. Moore, 562 F.2d 106 (1st Cir. 1977) (same). Likewise, it is well-settled a defendant has no legitimate expectation of privacy in a stolen vehicle, and thus has no standing to contest a warrantless search of the vehicle. United States v. Hensel, 672 F.2d 578 (6th Cir. 1981); United States v. Hargrove, 647 F.2d 411 (4th Cir. 1981). This reasoning is sound, and applies with equal force to the case at hand. Defendant cannot assert any legitimate expectation of privacy in a digital camera, which was stolen property and which he therefore had no right to possess. Thus, Defendant has no standing to object to the officers' search of the camera's contents, even if it did exceed the scope of his consent.


Permalink 12:06:54 pm, by fourth, 241 words, 487 views   English (US)
Categories: General

New law review article: "The Inviolate Home...."

The Inviolate Home: Housing Exceptionalism in the Fourth Amendment by Stephanie Stern of Chicago-Kent College of Law to be published in Cornell Law Review, Vol. 95, 2010. Abstract:

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces but do not harm interpersonal and domestic privacy. Contrary to claims in the case law and commentary, there is little evidence to support the broad territorial conception of privacy inherent to the “sanctity of the home,” a vital personhood interest in the physical home, or even uniformly robust subjective privacy expectations in varying residential contexts. Similarly, closer examination of the political and historical rationales for housing exceptionalism reveals a nuanced, and equivocal, view of common justifications for privileging the home. This Article advocates replacing the broad sweep of housing exceptionalism, and its emphasis on the physical home, with a narrower set of residential privacy interests that are more attentive to substantive privacy and intimate association.

Permalink 07:06:06 am, by fourth, 303 words, 435 views   English (US)
Categories: General

MA: Pushing officer's hands away to avoid a frisk was not independent assault; it was a fruit of the unjustified stop

Defendant’s stop and frisk was unjustified by any articulable suspicion. When the officer started the frisk the defendant pushed his hands away saying “Don’t touch me.” The act of pushing the officer’s hands away was not a new crime of assault rending the exclusionary rule inapplicable. “Thus, whatever acts may have intervened, they did not influence the decision to seize the defendant, and accordingly the acts cannot have dissipated the taint of the original unlawful seizure. By the same reasoning, the renewed patfrisk was not an arrest for assault and battery on a police officer.” Commonwealth v. Martin, 457 Mass. 14, 927 N.E.2d 432 (2010), revg 73 Mass. App. Ct. 526, 529, 899 N.E.2d 869 (2009).

Defendant used a false ID and credit card to rent a hotel room. When she was ordered out of the room, she left behind bags that she denied were hers. This was an abandonment. State v. Brown, 348 Ore. 293, 232 P.3d 962 (2010), rev’g 228 Ore. App. 197, 206 P.3d 1180 (2009).* [The court concedes standing in the room based on the state constitution.]

When defendant’s car was stopped, the passenger admitted to having a gun with a carry permit. The officer looked under the passenger seat for the gun and then looked in a coat in the back seat in case there was another. That search was justified for officer safety under Chimel based on the officer’s reasonable belief that where there is one gun another might be found. State v. Williamson, 2010 Ohio 2331, 2010 Ohio App. LEXIS 1919 (5th Dist. May 24, 2010).*

Specific information from a known CI that defendant was selling drugs from a particular location supported defendant’s stop which resulted in a plain view of drugs on the seat. The stop and plain view was valid. A known informant was entitled to more credibility than an anonymous informant. Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473 (2010).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

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

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

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

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
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"If it was easy, everybody would be doing it. It isn't, and they don't."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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