Defendant solicited an underage girl to come to his house for potentially nude picture taking, and this was sufficient probable case for issuance of a search warrant for the house for evidence of attempted production of child pornography. United States v. Davies, 2010 U.S. Dist. LEXIS 76778 (M.D. Pa. July 29, 2010)*:

This case is more like Vosburgh than Zimmerman. As in Vosburgh, the affidavit of probable cause set forth facts that would make it fairly probable, considering the totality of the circumstances, that evidence of attempted possession of child pornography in violation of 18 U.S.C. § 2252 would be found in Defendant's home. Defendant engaged in explicit online discussions with the agent, said he wanted to take pictures of her on his pool table, asked her to take off her hoodie and shirt in subsequent photographs, and then gave her his address. Therefore, there was sufficient evidence to give rise to probable cause to believe that Defendant attempted to produce and/or possess child pornography. This case is distinguishable from Zimmerman, where there was no evidence that the defendant had ever possessed or attempted to possess child pornography at any time. Thus, the warrant was issued on probable cause.

The search of defendant’s car for a weapon was justified by seeing the butt of the gun with a flashlight. Defendant’s car was stopped in a high-crime area, and a woman was leaning in the window, and that led the officer to conclude a hand-to-hand drug deal was happening. Defendant fled the vehicle when the officer approached. His handcuffing when he was caught was for safety reasons. He was a felon. State v. Williams, 2010 La. App. LEXIS 1073 (La.App. 5th Cir. July 27, 2010).*

Defense counsel filed an Anders brief after defendant’s plea, and he raised his search issue pro se, which was held waived by the guilty plea. State v. Turner, 2010 La. App. LEXIS 1071 (La.App. 5th Cir. July 27, 2010).*

In a civil rights/false arrest case, the officer had probable cause, or at least qualified immunity, for plaintiff’s arrest as a felon in possession without having to further investigate the status of the conviction which he was told about on a records check. Dickson v. City of Clovis, 2010 NMCA 58, 2010 N.M. App. LEXIS 81 (April 1, 2010), Filed, Certiorari Denied, No. 32,370, June 2, 2010.*

The defendant got in an argument with his girlfriend over his looking at underage nudity on his computer, and he hit her. She called the police, and they came. She told them the reason for the argument, and she consented to a search of the computer. She had apparent authority. He told her to get out of the house, but she hadn’t left yet, and she had unrestricted use of the premises and the computer. Therefore, she could consent to a search of his computer as a user. People v. Bell, 2010 Ill. App. LEXIS 744 (July 9, 2010).

Defendant’s vehicle stop was in an area known for stolen vehicles, and that was the basis for his stop and the car looked suspicious in the area, although it turned out it wasn’t stolen. There was, at least, reasonable suspicion for the stop. People v. Letner, 50 Cal. 4th 99 (July 29, 2010).*

The defendant had no expectation of privacy in observations of a car (assuming he even had standing in that car in the first place) parked in a ten unit parking space in an apartment building. State v. Collanzo, 2009 N.H. LEXIS 152 (February 23, 2009).*

The search of defendant’s car incident to his arrest on a failure to appear warrant, where he was already hooked up and in the police car, violated Gant, decided a year later. Gant is retroactive, and, noting the conflict in the courts, the good faith exception should not apply to case law. Here, the officer offered no reason why the car was searched, so it is assumed it was a search incident. State v. Frederick, 2010 Ida. LEXIS 144 (July 27, 2010):

Predictably, this tension has led to sharply divergent results from the courts that have considered this question. A number of courts have applied the exception, recognizing that there is a distinction between recognizing the constitutional violation and providing an appropriate remedy for the violation and concluding that the deterrent purpose underlying the exclusionary rule is not advanced when officers have relied on existing case law. See People v. Henry, Cal. Rptr. 3d , 184 Cal. App.4th 1313 (Cal. App. 1 Dist. 2010); United States v. Davis, 598 F.3d 1259 (11th Cir. 2010); State v. Baker, 2010 UT 18, 229 P.3d 650 (Utah 2010); State v. Riley, 154 Wn. App. 433, 225 P.3d 462 (Wash. App. Div. 1 2010); United States v. McCane, 573 F.3d 1037 (10th Cir. 2009); United States v. Gray, 2009 U.S. Dist. LEXIS 113436, 2009 WL 4739740 (D. Neb. Dec. 7, 2009) (noting the Ninth, Seventh, and Sixth Circuits have refused to apply the good faith exception while the Fifth and Tenth Circuits have held Leon's good-faith exception applies to warrantless searches considered lawful under the case law existing when the search was performed); Brown v. State, 24 So.3d 671, 680-82 (Fla. App. 5th Dist. 2009).

Other courts have found the tension resulting from application of the good faith exception to be “untenable” and accordingly declined to apply the exception. People v. McCarty, 229 P.3d 1041 (Colo. 2010); State v. Harris, 154 Wn. App. 87, 224 P.3d 830 (Wash. App. Div. 2 2010); United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) rehearing and rehearing en banc denied, 598 F.3d 1095 (9th Cir. 2010).

Yet other courts have recognized that retroactivity rules do not automatically exclude application of the good faith exception, yet have declined to apply the exception because the scope of Belton was not sufficiently defined as to warrant a finding of objective good faith by the law enforcement officials conducting the search. The Court of Appeals for the District of Columbia concluded that the scope of permissible searches of automobiles was not “settled law” and therefore declined to apply Leon. United States v. Debruhl, 993 A.2d 571 (D.C. 2010). Similarly, the Michigan Court of Appeals declined to apply the exception in the context of the search of an automobile pursuant to the arrest of a passenger in the vehicle, finding the question of extension of Belton to such circumstances to be a question of first impression. People v. Mungo, 2010 Mich. App. LEXIS 610, 2010 WL 1461620 (Mich. App. Apr. 13, 2010).

It is our view that retroactivity rules do not preclude application of the good faith exception when an officer relies on case law. We note, however, that the Supreme Court has emphasized that the good faith described in United States v. Leon “must be objectively reasonable.” 468 U.S. at 922. The burden of proving that such objectively reasonable good faith reliance existed is on the State. State v. Smith, 144 Idaho 482, 485, 163 P.3d 1194, 1197 (2007) (holding that “[t]he burden of proof is on the state to show that the search ... fell within one of the well-recognized exceptions to the warrant requirement.”) In this case, the State has failed to meet that burden.

The officer had no reasonable suspicion to detain the defendants, and the court discounts all of the [lame] justifications or indicators given by the officer as being meaningless, individually and collectively. However, the stop was justified by speeding, and the court is "regrettably" reluctant to grant suppression of the dog sniff that occurred reasonably promptly. United States v. Sepulveda-Sandoval, 2010 U.S. Dist. LEXIS 75784 (D. S.D. June 24, 2010)*:

Regrettably, this is a case where the defendants may not avail themselves of the remedy of suppression as a result of Trooper Oxner's Fourth Amendment violation. The court leaves for another day and a higher court Chief Justice Marshal's observation that every right has a remedy or it is no right at all. Marbury v. Madison, 1 Cranch 137, 163-64 (1803).

Putting a GPS on defendant’s vehicle during a drug investigation was not a violation of the Fourth Amendment. United States v. Jesus-Nunez, 2010 U.S. Dist. LEXIS 76107 (M.D. Pa. July 27, 2010).*

Defendant’s IAC claim is not proper in a direct appeal; he has to do it through a § 2255. United States v. King, 2010 U.S. App. LEXIS 15577 (3d Cir. July 27, 2010) (unpublished).*

The drug dog sniff of defendant’s car was justified during his stop with reasonable suspicion, and that developed from a wiretap on somebody else's telephone, and defendant refused consent [not a factor in RS; they tried that before the dog was called in]. United States v. Scott, 2010 U.S. Dist. LEXIS 75687 (D. Kan. July 27, 2010).*

There was probable cause for issuance of the search warrant in this case, and, even if there wasn’t, the good faith exception would make the evidence admissible. United States v. Wright, 2009 U.S. Dist. LEXIS 129240 (S.D. Ga. May 5, 2009).*

The police kept defendants from their house and home office while they procured a search warrant, 33 hours later. The officer getting the search warrant was not told to hurry it up. One defendant was an insulin-dependent diabetic, and officers would not permit him access to get it. The search and detention of the wife for the duration was unreasonable. United States v. Song Ja Cha, 2009 U.S. Dist. LEXIS 129278 (D. Guam February 19, 2009):

Applying the third factor to Mrs. Cha, the court notes that she was detained throughout the entire 33-hour period. Her possessory interest in her home can be said to be minimal. The same however, cannot be said regarding her possessory interest in the business establishment. While she may have been detained and arrested, she could have authorized the re-opening of the business and could have requested her husband to do so. Because of the seizure, the business was not able to open. While the allegations that she operated a prostitution house constitute a criminal offense, the opening of the lounge for the sale of alcoholic spirits is not illegal.

Finally, in applying the fourth factor the court finds 33 hours until procurement of the search warrant to be unreasonable. In McArthur, the Court found two hours to be a reasonable time frame in restricting the defendant from reentering his home without a police escort while the police diligently sought the warrant. In this case, it appears from the testimony presented that the police officers did not know they had a duty to diligently move to secure the search warrant. More importantly, Officer Perez, the officer tasked with drafting the search warrant, did not know that he had a duty to diligently pursue the drafting and eventual approval of the warrant by a detached magistrate. He had facts within his knowledge with which he could draft a search warrant with probable cause since he was at the briefing on the morning of January 13 when certain information was first divulged. But not knowing there was a sense of urgency, he waited until the police reports were all completed before he began drafting the warrant application. Officer Perez cannot solely be faulted for delaying the drafting of the information because he did not know there was urgency to do so. He testified that had he known there was a sense of urgency, he would have acted much sooner. But there was a sense of urgency and a duty of diligence because the possessory interests of Mr. Cha to the home and Mrs. Cha to the business enterprise were being interfered with by the police.

The search of defendant’s car for a weapon was not justified by any articulable facts. Lewis v. State, 2010 Ind. App. LEXIS 1366 (July 27, 2010).*

Dog sniff of the air from outside a car did not violate the state constitutional protection of “private affairs.” State v. Hartzell, 2010 Wash. App. LEXIS 1534 (July 19, 2010).*

The officer received a report of a potential drunk driver in defendant’s car. The officer was free to approach defendant’s garage to attempt to talk to him, and defendant’s admission that he was driving plus his condition was reasonable suspicion of DUI. The Fourth Amendment was not implicated until a second officer arrived for a field sobriety test. Banda v. State, 2010 Tex. App. LEXIS 5902 (Tex. App. — Houston (14th Dist.) July 27, 2010).*

Violation of constitutional no-knock requirement by SWAT team deciding on its own to enter without knocking without sufficient legal justification required suppression of the search under the Indiana Constitution. Lacey v. State, 2010 Ind. App. LEXIS 1367 (July 27, 2010):

Here, no circumstances bearing upon officer safety or escape arose after the issuance of the warrant and before its execution. There has been no allegation of furtive movement, attempted flight, or destruction of evidence. Under the totality of the circumstances, we find the unilateral decision to dispense with the knock-and-announce rule unreasonable under Article 1, Section 11 of the Indiana Constitution where the relevant facts could have been presented in application for a “no-knock” warrant.

Accordingly, we must decide whether the evidence obtained in the search should be excluded. The State urges that we follow Hudson v. Michigan, 547 U.S. 586, 590 (2006),which discussed the appropriateness of the exclusionary rule where a “no-knock” entry concededly violated the Fourth Amendment. At the outset, the Court observed that ”indiscriminate application of the exclusionary rule” had been rejected, and it was applicable only when its deterrence benefits outweigh its substantial social costs. Id. at 591. ...

. . .

In this case, the criminal histories of the targeted individuals were known well in advance of the execution of the search warrant. Nonetheless, the officer seeking the warrant did not advise a neutral judicial officer of the circumstances that would arguably have supported a “no-knock” authorization. Rather, the critical decision was made by a person charged with a duty of law enforcement.

Further, it was admittedly routine and systemic for the Emergency Service Team officers, as opposed to a neutral magistrate, to decide to serve warrants in a “no-knock” manner. Although police officers at times confront emerging exigent circumstances, to which an emergency response is appropriate under the Indiana Constitution, the instant situation did not involve exigencies arising when there was no opportunity to seek judicial sanction for a “no-knock” entry. As Sergeant Strausborger explained, “no-knock” entries into a residence increase the potential for violence against police officers due to misapprehension of circumstances by the occupants. In light of our Indiana Supreme Court’s pronouncement in Holder, acknowledging that intrusions based upon security concerns will be tolerated only “so long as they are reasonably aimed toward those concerns,” 847 N.E.2d at 940, we believe that such entries should remain rare and, where practicable, subject to review by a detached and neutral judicial officer.

And Wilkins v. State, 2010 Ind. App. LEXIS 1364 (July 27, 2010) holds blanket no-knock is unconstitutional:

Indiana Code Section 35-33-5-7 does not constitute a blanket prohibition upon no-knock warrants in this State. The “no-knock” execution of the search warrant was supported by reasonable suspicion and thus no Fourth Amendment violation is established. However, under the totality of the circumstances, the “no-knock” execution was unreasonable under the Indiana Constitution. We find suppression of the evidence to be an appropriate remedy in the particular circumstances of this case.

White House proposal would ease FBI access to records of Internet activity, by Ellen Nakashima, Washington Post, today:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Grabbing defendant’s arm when he reached into his pocket after having gotten out of his car at the officer’s direction was reasonable. United States v. Street, 2010 U.S. App. LEXIS 15264, 2010 FED App. 0216P (6th Cir. July 23, 2010).*

Defendant’s stop was objectively reasonable for a partially obscured license plate, and the officer’s other reasons for the stop were not pertinent. The officer had objective probable cause to arrest defendant for car theft. United States v. Boyd, 2010 U.S. App. LEXIS 15330 (11th Cir. July 26, 2010) (unpublished).*

Defendant failed to stop at a weigh station, so his stop was valid. After the officer looked at his paperwork and issued a ticket for the failure to stop and warnings for other infractions, he told defendant he could go. Then he asked for consent and got it. The court finds the officers more credible on the question of consent. United States v. Narcisse, 2010 U.S. Dist. LEXIS 75359 (M.D. Pa. July 26, 2010).*

The requirement of record keeping of sexually oriented performers to avoid child pornography, 18 U.S.C. §§ 2257 & 2257A, is a reasonable record keeping requirement and inspection of those records does not violate the Fourth Amendment. Three decades of regulation qualifies as closely regulated for the purposes of age documentation of performers. [The case also involves First and Fifth Amendment challenges.] EFF's page for the case does not have this opinion as of the time of this posting. Free Speech Coalition v. Holder, 2010 U.S. Dist. LEXIS 75471 (E.D. Pa. July 27, 2010):

It is well established that, under the Fourth Amendment, a person's reasonable expectation of privacy in his or her home or business exists "not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative searches designed to enforce regulatory statutes." New York v. Burger, 482 U.S. 691, 699-700 (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 312-13 (1978)). "An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home." Id. at 700 (citing Donovan v. Dewey, 452 U.S. 594, 598-99 (1981)).

This expectation is particularly attenuated in commercial property employed in "closely regulated" industries. Id. "'Certain industries have such a history of government oversight that no reasonable expectation of privacy [can] exist for a proprietor over the stock of such an enterprise.'" Id. (citation omitted) (quoting Marshall, 436 U.S. at 313). As the Third Circuit has explained, "one who is engaged in an industry that is pervasively regulated by the government or that has been historically subject to such close supervision is ordinarily held to be on notice that periodic inspections will occur and, accordingly, has no reasonable expectations of privacy in the areas where he knows those inspections will occur." Lovgren v. Byrne, 787 F.2d 857, 865 (3d Cir. 1986). For this reason, a warrantless inspection of commercial premises may be reasonable within the meaning of the Fourth Amendment, and the Supreme Court has correspondingly recognized an exception to the warrant requirement for searches of "closely" or "pervasively" regulated industries. Burger, 482 U.S. at 702-03.

A pervasively regulated business is one which has "such a history of government oversight that no reasonable expectation of privacy could exist." Marshall, 436 U.S. at 313 (citation omitted). "[T]he doctrine is essentially defined by 'the pervasiveness and regularity of the federal regulation' and the effect of such regulation upon an owner's expectation of privacy." Burger, 482 U.S. at 701 (quoting Donovan, 452 U.S. at 606). As the Third Circuit has emphasized, individuals who "voluntarily engage in such [closely or pervasively] regulated businesses accept the burdens as well as the benefits of the trade." Frey v. Panza, 621 F.2d 596, 597 (3d Cir. 1980) (per curiam).

As discussed at length above, for over three decades the creation, production, and distribution of sexually explicit expression has been the subject of extensive federal regulation aimed at protecting children from sexual exploitation. 24 As a result of this steadily strengthening web of initiatives--which include §§ 2257 and 2257A and their implementing regulations--producers of sexually explicit expression have been on notice for some time that, when it comes to ensuring the performers in their expression are adults, they will be subject to various forms of government oversight, including inspection of age-verification records. Indeed, the "regulatory presence is sufficiently comprehensive and defined" in this regard that producers of such expression "cannot help but be aware that their property will be subject to periodic inspections undertaken for specific purposes." Burger, 482 U.S. at 705 n.16 (internal quotation marks omitted). Accordingly, this Court finds that, "in light of the regulatory framework governing" the production of sexually explicit expression as it pertains to age verification and the protection of children from sexual exploitation, plaintiffs have a "reduced expectation of privacy in this 'closely regulated'" enterprise. Id. at 707.

In the Arizona SB1070 preliminary injunction case, the District Court cited Fourth Amendment implications of detentions on people detained for lack of papers which factored into the decision to grant the preliminary injunction. United States v. State of Arizona, CV 10-1413-PHX-SRB, at 16 (D. Ariz. July 28, 2010)*:

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.6

6 The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined, as raised by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB.

The parties did not raise the question of standing, but the court does sua sponte, and it finds that defendant lacks standing as a passenger in a rental car. “In the present case, the Defendant was a passenger in a Hertz rental car. It is undisputed that the driver ... was the only authorized driver on the rental agreement. Accordingly, the Court finds that the Defendant does not have a legitimate expectation of privacy in the rental car and, therefore, lacks standing to challenge the inventory search thereof.” Defendant’s claim that the officers should have released the car to her also fails, just in case there was standing. United States v. McCalebb-Pippens, 2010 U.S. Dist. LEXIS 74767 (E.D. Tenn. May 24, 2010).*

Defendant’s PO had reasonable suspicion to search him in connection with a murder. While he was not charged, he was nearby and he was in a city he was not permitted to be without permission. United States v. Benjamin, 2010 U.S. Dist. LEXIS 74941 (E.D. Pa. July 26, 2010).*

Officers approached people involved in a fight just to talk to them, and defendant walked away, so they told him to stop. It was reasonable to do so because it was likely the situation would flare up after they left. United States v. Parker, 2010 U.S. Dist. LEXIS 74733 (N.D. Ind. July 21, 2010).*

Defense counsel was not ineffective for not moving to suppress his breath test because it would not have been granted. State v. Brewer, 2010 Ohio 3441, 2010 Ohio App. LEXIS 2951 (2d Dist. July 23, 2010)*:

[*P26] The prejudice prong of the Strickland test requires more than a determination that the motion not made by trial counsel would have been a close call; it requires a finding that a motion to suppress, had it been made, would likely have been granted. We conclude, therefore, that Brewer's trial counsel was not ineffective for having failed to move to suppress the evidence.

Orin Kerr on Volokh Conspiracy: Good-Faith Exception for Changing Law Likely Headed to the Supreme Court. The Supremes denied his cert petition in McCane. DOJ resisted in McCane, but filed its own from United States v. Gonzalez, 598 F.3d 1095 (9th Cir. 2010), denying rehearing en banc from 578 F.3d 1130 (9th Cir. 2009). The government's cert petition, as usual, is more likely to be granted.

The government didn't want the issue heard when it was the winner, but it does when it is the loser. It had to know the case law would be hugely split by the time it would be argued.

McCane was decided a year ago today.

Defendant’s mother discovered that he had child pornography on his computer, and she brought the hard drive to the police. The police made some effort to locate the defendant, but he was hard to find because the police were looking for him. They decided to declare the hard drive abandoned and searched it, but the court found no evidence of abandonment. State v. Gould, 2010 Ohio 3437, 2010 Ohio App. LEXIS 2925 (6th Dist. July 23, 2010):

[*P28] The state contends that the hard drive was abandoned by appellant. Abandoned property is not subject to Fourth Amendment protection. Abel v. United States (1960), 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668. “Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts.” United States v. Colbert (C.A.5, 1973), 474 F.2d 174, 176. In determining whether someone has abandoned property, “[a]ll relevant circumstances existing at the time of the alleged abandonment should be considered.” Id. “The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” Id.

[*P29] At the suppression hearing, there was no evidence presented to demonstrate appellant's intent, by words spoken or acts done, to abandon the hard drive.

[*P30] While intent of one in possession of property or premises often cannot be inferred from his actions, abandonment will not be presumed. It must be clearly established by the party asserting it. Coleman v. Maxwell (C.A.6, 1967), 387 F.2d 134, certiorari denied (1968), 393 U.S. 1007, 89 S. Ct. 492, 21 L. Ed. 2d 472. Mere absence from the premises without a clear intention to abandon could not legitimize a search of property found therein. U.S. v. Robinson (C.A.6, 1970), 430 F.2d 1141.

[*P31] Detective Lester's subjective belief that the hard drive had been abandoned was unsupported by the objective facts and Easterwood's testimony. More significantly, the detective could have obtained additional information concerning the circumstances surrounding Easterwood's access to the computer hard drive through further questioning and properly sought a search warrant for the hard drive. Accordingly, we find that the state failed to demonstrate by credible, competent evidence that the hard drive was abandoned.

Defendant was asked in Spanish for consent to search his vehicle, which he granted, after a simple and direct question. He was not Mirandized as he should have been, but that does not make the consent invalid. United States v. Solano-Fell, 2010 U.S. Dist. LEXIS 74324 (W.D. N.Y. May 17, 2010).*

Officers had a call of a suspicious person selling drugs on a street corner, so they went there, saw him, and approached. He threw down a gun, and that was probable cause to arrest. United States v. Chissem, 2009 U.S. Dist. LEXIS 129098 (E.D. Mo. April 17, 2009).*

Two apparent hand-to-hand sales of a man under surveillance was reasonable suspicion. United States v. Beard, 2009 U.S. Dist. LEXIS 129131 (E.D. Mo. April 8, 2009).*

Officers looking for a fugitive were on the “Johnson properties.” It was common knowledge in the community that two houses nearby were the “Johnson property,” and one person’s consent to search the “Johnson properties” reasonably was believed to include both buildings. The officers were lawfully there in the first place. State v. Johnson, 2010 Tenn. Crim. App. LEXIS 614 (July 22, 2010).*

In a DUI case, where the officer testified that he wasn’t sure who took the blood sample, and under statute only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or a LEO, it was a credibility determination against the state, and suppression was affirmed. State v. Robinson, 2010 Tex. App. LEXIS 4505 (Tex. App. – Waco June 16, 2010).*

The officer spoke to defendant in English, getting no response. So he spoke Spanish and defendant spoke to him. He asked if he could “take a look” and defendant agreed and was found to have consented. State v. Medina, 2010 N.C. App. LEXIS 1326 (July 20, 2010).*

Defendant’s claim that defense counsel was ineffective for not arguing that the search warrant specify the crime under investigation fails. Rule 41(e) does not require that, and it was amended out in 1972. His claim that the warrant have “scrupulous exactitude” comes from First Amendment implicating search warrants, Stanford v. Texas. Hale v. United States, 2010 U.S. Dist. LEXIS 73604 (N.D. Ill. July 22, 2010).*

Defendant failed in his burden of showing that the police lacked probable cause to arrest him without a warrant. People v Bulgin, 2010 NY Slip Op 20290, 2010 N.Y. Misc. LEXIS 3257 (Bronx Co. July 12, 2010):

At a suppression hearing, it is the People's burden to demonstrate the legality of the police conduct in the first instance, but defendant bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him and that the police lacked probable cause to arrest him. People v Thomas, 291 AD2d 462, 463 (2d Dept 2002); People v Sidhom, 204 AD2d 150 (1st Dept), lv denied, 84 NY2d 832 (1994).

The court is manifestly allocating the burden of proof to the wrong party under the Fourth Amendment. But, NY case law doesn't help any. This is the train of citations (Sidhom is not pertinent):

Thomas (2002):

The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him (see, People v Berrios, supra at 367; People v Baldwin, 25 NY2d 66, 70; People v Whitehurst, 25 NY2d 389, 391; Nardone v United States, 308 US 338, 341-342), and that the police lacked probable cause to arrest him (see, People v Milhouse, 246 AD2d 119).

. . .

Accordingly, the People satisfied their burden in the first instance to prove the legality of the police conduct. By contrast, the defendant failed to establish his ultimate burden by a fair preponderance of the credible evidence that there was no probable cause for his arrest.

Milhouse (1998):

At a suppression hearing, the burden of proof is on the defendant to show, by a preponderance of the evidence, that the officer lacked probable cause to arrest (People v Abdullah, 164 AD2d 260, 262).

Abdullah (1990) (without citation of authority):

After the Mapp hearing, at which Officer Reynolds was the only witness, the suppression court denied the motion to suppress finding: "the People met their burden of going forward, but the defendant did not meet his burden of proving *** by a preponderance of the evidence that the marijuana and the marijuana cigarette were unlawfully taken from his person".

If Mapp is authority, that was with a search warrant, so the rule is different.

How many times do we have to point this out to the Fourth Amendment-impaired? Under the Fourth Amendment, the burden is always on the government to prove that a warrantless arrest or search is valid.

In the NYTimes yesterday, by Adam Liptik: Court Under Roberts Is Most Conservative in Decades.

Remember the "balls and strikes" comment: Roberts: 'My job is to call balls and strikes and not to pitch or bat'?

It seems more to me like it has been calling a force play at second base a home run when one considers the exclusionary rule under Hudson and Herring. And remember, Roberts dissented in Gant. The Government can hardly do no wrong, and as an umpire, he can rig the game, 5-4, most of the time. The criminal defendant just does not fare well, unless it is a white collar crime.

Search warrant rules are constitutional (fundamental) and statutory (non-fundamental or technical). Technical errors require proof of prejudice. Here, a municipal judge signed a search warrant for property in an adjoining county, and that is not a fundamental error. State v. Ridenour, 2010 Ohio 3373, 2010 Ohio App. LEXIS 2860 (4th Dist. July 14, 2010).

Defense counsel was not ineffective for not filing a motion to suppress. “The evidence, as sifted through below, demonstrates that officers had a reasonable suspicion of criminal activity to justify the seizure and investigation of appellant.” State v. Young, 2010 Ohio 3402, 2010 Ohio App. LEXIS 2881 (8th Dist. July 22, 2010).*

Defendant was stopped because his license plate was not visible from the rear and no seatbelt. As the officer walked up, defendant made furtive movements like he was hiding something, and that justified a frisk of the car. State v. Allen, 2010 Ohio 3336, 2010 Ohio App. LEXIS 2825 (2d Dist. July 16, 2010).*

An officer saw defendant’s SUV parked behind a bar and saw furtive movements when the occupants saw the officer. He drove up on them shining his police car lights. He could smell marijuana smoke, and that was justification for a search of the car. State v. McMullen, 2010 Ohio 3369, 2010 Ohio App. LEXIS 2856 (12th Dist. July 19, 2010).* This is the reasonable suspicion, for which there is no articulable basis of a crime:

[*P2] Officer Scott Johnson of the Trenton Police Department was on patrol in the evening hours of March 27, 2009, when he pulled into the parking lot of Whitey's Bar. According to Johnson's testimony at the motion to suppress hearing, upon pulling into the parking lot, he noticed a parked SUV that was occupied by multiple people. When Johnson saw that some of the people in the vehicle were making furtive movements, he approached the SUV in his police cruiser and turned on his spotlight. Once Johnson shined his light into the vehicle, he noticed the front passenger "ducking underneath the dashboard" and that his head came up and down.

[*P3] Johnson also noticed that a "considerable" amount of smoke was coming from the vehicle and that the passengers continued to make furtive movements. At that point, Johnson exited his cruiser and approached the vehicle. As he walked closer, he saw some of the passengers bend over and put their hands down in the seat, and also noticed that the smoke coming from the vehicle smelled of "raw burnt marijuana." Johnson saw three people sitting in the back and two in the front of the vehicle, and continued to see smoke coming from the back corner.

So, if no furtive movements on seeing the police the stop was unjustified? This just is not reasonable suspicion.

Defendant’s traffic ticket took 17-20 minutes. He was free to leave, and the officer asked for consent, which defendant first hesitated about and the officer clarified, and he consented. United States v. Mohammed, 2009 U.S. Dist. LEXIS 129055 (M.D. Fla. June 29, 2009).*

Defendant’s traffic ticket took 16 minutes. As he was walking back to his car, he was asked for consent, which he gave. United States v. Cruz-Guzman, 2009 U.S. Dist. LEXIS 129013 (M.D. Fla. May 21, 2009).*

One could say that the defendants here were just stupid for consenting, which might be only a little true. Instead, I believe all these type cases involve the officer exploiting every motorist’s legal need to cooperate during a traffic stop, which his hardly ever discussed in the cases. While the officer may say the defendant is free to go, the defendant doesn’t necessarily know it even if the officer tells him he can go but then re-engages him in conversation. At that point, the defendant has to believe that his permission to leave has been revoked. Just how truly “free to leave” are you when the officer keeps talking? “He said I could go but now obviously I can't because he's asking questions.” How “free” is that?

This is truly exploitation of a fiction in both fact and the law, and it is sorely disappointing to read these cases with the officer exploiting the motorist to keep talking to get consent or reasonable suspicion. You'd have to read the case law to know you were free to leave, and who does that except us lawyers?

Defendant’s admission that he hung out with pot smokers was enough to justify a parole search of his premises. Under Pennsylvania law, however, the parole officer had to have reasonable suspicion for a search of his car for drugs, and that was lacking in this case. United States v. Rivera, 2010 U.S. Dist. LEXIS 73822 (E.D. Pa. July 22, 2010).*

Defendant’s claim that defense counsel was ineffective for not seeking a copy of the 911 call that reported a gang fight was about to start was hardly valid, considering officers responding to the call saw defendant with a shotgun in hand and arrested him. That was the basis for his arrest, not the call. Rivera v. United States, 2010 U.S. Dist. LEXIS 73976 (D. Conn. July 22, 2010).*

Defendant’s investigative detention was justified. There was a murder in the neighborhood the day before, and officers were in the area to prevent a retaliatory shooting. Defendant’s car was swerving and was pulled over, and there were furtive movements in the car as officers approached. This was reasonable. United States v. Clemmons, 2010 U.S. Dist. LEXIS 73666 (W.D. Tenn. July 21, 2010), R&R, 2010 U.S. Dist. LEXIS 73750 (W.D. Tenn. February 5, 2010).*

While there may have been innocent explanations for the defendant meeting for a probable drug deal, there was still probable cause. “‘Even if there is an innocent explanation, as long as there is a reasonable probability that there is criminal activity afoot, despite the presence of other probabilities, probable cause is present.’ United States v. Myrick, No. 97 CR 197, 1997 WL 564673, at *12 (N.D. Ill. Sept. 3, 1997) (quoting United States v. Dorfman, 542 F. Supp. 345, 359 (N.D. Ill.1982)). The possibility that Bennett may have been planning to meet Atkins for shopping or a meal does not therefore vitiate the possibility that Bennett and Atkins were meeting for a drug deal. See id. Taken together, Bennett’s actions ‘are difficult to explain as an innocent exchange, but quite easily understood, especially when observed by experienced narcotics officers, as a common method of conducting a drug deal.’ Funches, 327 F.3d at 586.” United States v. Bennett, 2010 U.S. Dist. LEXIS 73551 (N.D. Ill. July 21, 2010).*

Where the defendant consented to a search of his vehicle for drugs, the officer did not exceed the scope of consent by cutting into a package. United States v. Baptiste, 2010 U.S. App. LEXIS 15017 (11th Cir. July 21, 2010) (unpublished):

Permission to search an area for narcotics "may be construed as permission to search any compartment or container within the specified area where narcotics may be found," but officers may not intentionally damage the places or things to be searched. United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992). The permissible scope of the search generally includes any area where the item in question may be found, even if the search requires "separate acts of entry or opening," including "forcing open locked compartments or containers." Id. at 1120-21 (consent to search warehouse reasonably included consent to search locked trunk of car parked inside it, even though police had to force it open).

The officer did not exceed the scope of Baptiste's consent by cutting into the package, because it could have contained the drugs for which Baptiste had given consent to search. See Martinez, 949 F.2d at 1119. By that point the dog had already detected the smell of marijuana, and the officer had recognized the wrapped bundles as typical of the packaging often used by drug smugglers. Accordingly, we affirm the denial of Baptiste's motion to suppress and we affirm his and Volcy's convictions.

District Court’s pre-Herring order suppressing evidence is reversed and remanded for reconsideration in light of Herring. Defendant was an absconded parolee, and one issue might be whether he had an expectation of privacy where he was hiding out equal to (or less) than what he had in his own place as a parolee. United States v. Julius, 2010 U.S. App. LEXIS 15147 (2d Cir. June 11, 2010)*:

We emphasize that Herring should not serve as an enticement for law enforcement personnel to depart from search procedures which comply with the Fourth Amendment. Rather, Herring requires careful consideration by district courts of whether the goal of deterring violations of the Fourth Amendment outweighs the costs to truth-seeking and law enforcement objectives in each case.

By loaning his car to another, defendant had no reasonable expectation of privacy in the vehicle when the driver was stopped. United States v. Balcazar, 2010 U.S. Dist. LEXIS 73409 (D. Ariz. March 8, 2010):

In One 1977 Mercedes Benz, the Ninth Circuit Court of Appeals held that a defendant lacked standing to challenge the search of her vehicle where she had voluntarily turned possession of that automobile over to a third party for his exclusive use and had taken no precautions to safeguard any privacy interest within the vehicle. 708 F.2d at 449. The relevant holding from One 1977 Mercedes Benz has been applied broadly in this district. In United States v. Vizcarra, 835 F. Supp. 1160, 1162 (D. Ariz. 1993), the Court held, "where the owner of a vehicle has turned that vehicle over to someone else, the owner retains an insufficient privacy interest to possess standing to challenge the search of that vehicle."

As in One 1977 Mercedes Benz and Vizcarra, Velez-Willem turned his vehicle over to another person. Velez-Willem has offered no evidence regarding his expectation of privacy in the vehicle after he turned it over to Balcazar. Accordingly, Velez-Willem has not met his burden of demonstrating a reasonable expectation of privacy in the Ford Focus at the time the searches were conducted.

General allegations that plaintiff’s decedent was killed by an officer was insufficient under the Fourth Amendment. Garcia v. Hatcher, State of Nevada ex rel. Its Gaming Control Bd., 2010 U.S. Dist. LEXIS 73377 (D. Nev. July 19, 2010)*:

Other than the allegation concerning police back-up, Plaintiffs do not allege any specific facts suggesting that Hatcher's actions were unreasonable given the circumstances. Plaintiffs do not allege that Martinez was unarmed, that Martinez was not dangerous, or that Martinez was not attempting to flee the scene. Accordingly, Plaintiffs have failed to allege facts suggesting that Hatcher's action amounted to a constitutional violation of the Fourth Amendment.

Defendant on misdemeanor probation is subject to a probation search just as a felony probationer. “The [Knights] Court made no distinction between a felony and misdemeanor probationer.” United States v. Izatt, 2010 U.S. Dist. LEXIS 73028 (D. Idaho July 20, 2010).

Use of a Customs summons to get Internet subscriber information in a child pornography case violated no privacy interest. United States v. Cray, 2010 U.S. Dist. LEXIS 73351 (S.D. Ga. May 25, 2010)*:

"Every federal court to address [whether identifying information such as the defendant's name, address, etc., is protected by the Fourth Amendment] has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation." United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (citations omitted). In the instant case, the information gained pursuant to the Customs Summonses and used to support a probable cause finding for the search warrant was Cray's subscriber information, residence address, and bank records. Thus, Cray has no protected interest in the subscriber information he provided to AT&T.

Defendant’s stop for trafficking drugs because of movement between Kentucky and Ohio after surveillance was with reasonable suspicion. United States v. Chandler, 2010 U.S. Dist. LEXIS 73199 (E.D. Ky. July 20, 2010), R&R, 2010 U.S. Dist. LEXIS 73457 (E.D. Ky. July 2, 2010).*

While the question was really close, the court finds that the continued stop of the defendant was with reasonable suspicion. United States v. Johnson, 2010 U.S. Dist. LEXIS 73468 (E.D. Tenn. May 19, 2010).*

The search of defendant’s cell phone for text messages relating to a possible drug transaction that day was unreasonable under the Fourth Amendment [with no detailed cell phone analysis; just applying basic principles], but excising that information from the search warrant affidavit did not change the outcome and the search warrant was still valid. United States v. Sams, 2010 U.S. Dist. LEXIS 73358 (S.D. Ga. June 29, 2010):

The undersigned recognizes Scott's testimony that cell phones are commonly used communications devices, particularly in situations involving criminal activity. However, the undersigned does not find that Scott's searches of Washington's cell phone--either at the time of her arrest, or later, when Scott was at the station house--fit within an exception to the warrant requirement. There was no evidence at the hearing that Scott had a reasonable belief that, had he not searched Washington's cell phone without benefit of a warrant, evidence of alleged criminal activity would be destroyed. To the extent Scott could be considered conducting an inventory search, he merely had to note that Washington's cell phone was taken from the traffic stop and was being held in the station's property room. Finally, there is no evidence that exigent circumstances existed to justify Scott's warrantless searches of Washington's cell phone.

Nevertheless, the undersigned finds that evidence obtained as a result of a search of Washington's cell phone should not be subject to suppression. A review of the application for search warrant reveals that, even excising the information discovered during Scott's search of Washington's cell phone, the search warrant's issuance is supported by probable cause.

His arrest was with probable cause. United States v. Sams, 2010 U.S. Dist. LEXIS 73350 (S.D. Ga. June 29, 2010).*

Search warrant issued for a probation violator based on an anonymous letter with a wealth of detail about defendant, including his case number, was sufficient with reasonable suspicion. An anonymous telephone call did not measure up. Also, the good faith exception applied to this probation violation search warrant. United States v. Griswold, 2010 U.S. Dist. LEXIS 73142 (E.D. Pa. July 20, 2010).*

Franks motion fails without some kind of statement in support or an offer of proof of what would be shown. United States v. Rivera-Hidalgo, 2010 U.S. Dist.LEXIS 73101 (W.D. Mich. July 20, 2010)*:

Defendant has set forth no factual detail, let alone evidentiary support, indicating that the warrant affidavit contains a false statement made knowingly and intentionally, or with reckless disregard for the truth. ... Defendant's contentions are based on nothing more than mere supposition--aptly characterized by the Government as "rhetorical doubts"3 (Gov't Br. 14). Given the conclusory nature of Defendant's argument, and the failure to challenge any particular statements in the affidavit, no further analysis under Franks is warranted. ... Defendant's request for an evidentiary hearing is properly denied.

3 Defendant's artful argument begs the question and leads one to query "Where's the beef?"--both in terms of the challenge advanced and the rendition of the facts.

In an eyewitness ID case, it was IAC for defense counsel to fail to object to the prosecutor’s eliciting that defendant refused to consent to taking DNA evidence and then argue in it close. The other IAC claims are moot by the granting of a new trial. State v. Banks, 2010 Wisc. App. LEXIS 561 (July 21, 2010).

Changing lanes without signaling is not a violation of the law unless other cars are nearby such that it would be a hazard. Therefore, defendant’s stop was without probable cause. State v. Feaster, 2010 Tenn. Crim. App. LEXIS 603 (July 21, 2010).*

A dog sniff at the open window of his car was not a violation of the Washington Constitution’s protection of privacy. “The trial court correctly concluded that Hartzell did not have a reasonable expectation of privacy in the air coming from the open window of the vehicle. Hartzell was not in the SUV when the dog sniffed from a lawful vantage point outside the vehicle. The sniff was only minimally intrusive. The trial court did not err when it denied Hartzell's motion to suppress the evidence.” State v. Hartzell, 2009 Wash. App. LEXIS 3318 (November 16, 2009).*

Defendant moved to suppress, but he got no hearing on the motion, and then he did not timely object to testimony about the product of the search. The motion was waived, and it was colorable, although pre-Gant. Ratliff v. State, 2010 Tex. App. LEXIS 5629 (Tex. App. – Ft. Worth July 15, 2010).*

Defendant was arrested with probable cause where an eyewitness identified him as the offender. United States v. McKnight, 2010 U.S. App. LEXIS 14844, 2010 FED App. 0440N (6th Cir. July 19, 2010) (unpublished).*

Defendant was arrested with probable cause where an eyewitness identified him as the gunman, and the officers had found the gun. State v. Basil, 2010 N.J. LEXIS 657 (July 20, 2010).*

Officer’s entry into defendant’s mobile home was based on exigent circumstances. He found a toddler on the side of a highway near the home, and he was able to ascertain the one by seeing a picture of the child in a pickup truck parked outside. He looked in the vehicle for the registration, and officers were calling around trying to find the parent. Nobody answered at the mobile home, and the officer went to the back door which was ajar and a diaper was on the top step. While there was no sign of blood or foul play, the entry was reasonable under the circumstances. State v. Cline, 2010 N.C. App. LEXIS 1306 (July 20, 2010).

The defendant was talking with an officer and he dropped a folded dollar bill and put his foot over it. He then picked it up and the officer asked for it. The officer asked what it was and defendant said it was “a little bit for play”–cocaine. The admission was suppressible, but the seizure was not because it was with probable cause. State v. Delaoz, 2010 VT 65, 2010 Vt. LEXIS 67 (July 16, 2010).*

The entry into the defendant’s apartment was with exigent circumstances that he caused a gas leak after bizarre behavior. People v Leggett, 2010 NY Slip Op 6177, 2010 N.Y. App. Div. LEXIS 6251 (2d Dept. July 20, 2010)*:

The defendant, who had recently been released from prison, was staying in a friend's apartment, and refused to allow his friend to enter the apartment when she returned from visiting her mother. Despite the efforts of his father and the police, the defendant refused to leave the apartment, instead responding incoherently with threats, profanities, demands for a search warrant, and a request that the police supply him with drugs. When the police heard the defendant moving appliances to block the door, they became concerned about the possibility of a gas leak if the stove was moved. The police therefore forced open the door, which was blocked with a refrigerator, and they arrested the defendant, who was found in possession of three handguns and ammunition.

Defendant had no reasonable expectation of privacy in placement of a GPS on the exterior of his SUV, so Rule 41(b)(4) does not apply, even if it could because state officers put it there in a state investigation. United States v. Smith, 2010 U.S. App. LEXIS 14894 (11th Cir. July 20, 2010) (unpublished):

Although not applicable to a local police investigation conducted without federal involvement, see United States v. Lehder-Rivas, 955 F.2d 1510, 1522 (11th Cir. 1992), Federal Rule of Criminal Procedure 41(b)(4) establishes the federal procedure for obtaining a warrant to install a tracking device. The 2006 Amendment Notes to the rule clarify that “if the officers intend to install or use the device in a constitutionally protected area, they must obtain judicial approval to do so.” Id. “If, on the other hand, the officers intend to install and use the device without implicating any Fourth Amendment rights, there is no need to obtain the warrant.” Id. In United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc), we held that the placement of an electronic tracking device on the exterior of the defendant's vehicle when it was parked in a public parking lot did not violate his Fourth Amendment rights. Id. at 255-56 (“[W]e hold that the minimal intrusion involved in the attachment of a beeper to Michael's van, parked in a public place, was justified so as to satisfy any of Michael's fourth amendment expectation of privacy concerns.”).

Smith's argument that the installation of the GPS device violated his Fourth Amendment rights fails because the Escalade was parked in a place easily accessible to the public and was reachable from a public thoroughfare. Smith had no reasonable expectation of privacy with respect to the exterior of the vehicle.

When a taxpayer challenged his assessment of real property, the state can get a court order to inspect the property without violating the Fourth Amendment. Bleoaja v. Dep't of Revenue, 2010 Ore. Tax LEXIS 206 (July 19, 2010).*

A search warrant for “evidence of drug trafficking” permitted seizure of firearms. (§ 2255) United States v. Patterson, 2010 U.S. Dist. LEXIS 72785 (E.D. Pa. July 20, 2010).*

Defense counsel’s alleged failure to fully cross-examine the officer about the odor of marijuana in the car was not ineffective assistance of counsel where there was probable cause independent of that. (§ 2255) Mosby v. United States, 2010 U.S. Dist. LEXIS 72952 (C.D. Ill. July 20, 2010).*

Defendant was free to go after he got his warning, and the officer asked "I have another question for you, if you don't mind?" Then he asked about drugs and whether he could "peek" in his trailer, and the defendant said he could. This was consensual. United States v. Garcia, 2010 U.S. App. LEXIS 14959 (8th Cir. July 21, 2010).*

ICE agents illegally entered defendant’s hotel room to arrest him and then they obtained his consent. “‘[T]he question of whether the exclusionary rule applies is an issue separate from whether Fourth Amendment rights were violated.’ ... Suppression of evidence is only justified when the discovery of evidence results from illegal government action. ...” Supplemental briefing required on the exclusionary rule. United States v. Eggleston, 2010 U.S. Dist. LEXIS 72480 (D. Ore. July 19, 2010):

A three-part test is employed to determine attenuation: (1) the temporal proximity between the illegality and the discovery of evidence, (2) the presence of any intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. See United States v. Washington, 490 F.3d 765, 776-77 (9th Cir. 2007) (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). The government bears the burden to show admissibility of evidence. Id.

In the facts presented here, although the illegality was temporally proximate to the search of defendant's motel room, it was preceded by a legal arrest. The search of defendant's room appears to have been inevitable in light of the fact that ICE agents had followed him to the motel and had observed him carrying luggage. Additionally, as noted above, defendant was advised of his rights repeatedly and he consistently waived his Fourth Amendment rights both orally and in writing after the agents' improper entry into his room. After defendant was taken to the ICE office, he signed three written consent forms, one of which specifically allowed ICE agents to search his motel room.

However, under the exclusionary rule, the burden remains with the government to establish the admissibility of the evidence obtained after law enforcement officers entered defendant's motel room improperly. Because this burden has not yet been met, counsel are ordered to file supplemental briefs addressing whether the improper entry should result in suppression of evidence and, if so, the extent of that evidence. In light of the pending trial date, the schedule for this briefing must be accelerated. The parties are ordered to file their briefs no later than noon on July 26, 2010. No responses and no oral argument will be permitted. The briefs are limited to ten pages, plus attached exhibits if necessary.

How many bites at the apple does the government get? The entry was illegal. The "consent" occurred as a result. Come on.

The state procured a valid search warrant to put a GPS on defendant’s car while investigating him for stalking. The issue of whether this was a search does not have to be decided. State v. Sveum, 2010 WI 92, 2010 Wisc. LEXIS 171 (July 20, 2010), affg 2009 WI App 81, 319 Wis. 2d 498, 769 N.W.2d 53 (Ct. App. 2009):

¶2 Sveum and the State have briefed two issues for purposes of our review: (1) whether the installation of a GPS tracking device to Sveum's car while his car was parked in the driveway of his home and the subsequent electronic monitoring of Sveum's car using the GPS constituted a search or seizure within the meaning of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution; and (2) whether the court order authorizing the installation and monitoring of a GPS tracking device on Sveum's vehicle constituted a valid warrant and, if so, whether the police reasonably executed the warrant.

¶3 We elect not to resolve the first issue, and assume, without deciding, that a search or seizure occurred in this case that required authorization by a warrant. We therefore decide only the second issue, concluding that the order authorizing law enforcement to install and monitor a GPS tracking device on Sveum's vehicle constituted a valid warrant and that the officers' execution of the warrant was reasonable. Accordingly, we affirm the decision of the court of appeals.

Indeed, the best a privacy advocate could hope for is a search warrant before placing a GPS, like Kyllo's thermal imaging of a house. No court will ever hold that a GPS with a search warrant on a car is unreasonable.

Nexus was shown to defendant's car for a search warrant for proceeds and evidence of a bank robbery. There was probable cause as to defendant, and the car he left in his later escape from the police was seized. United States v. Sneed, 2010 U.S. App. LEXIS 14811, 2010 FED App. 0439N (6th Cir. July 19, 2010) (unpublished):

[T]his case presents a close call as to whether Lauber's affidavit established a nexus between Sneed's Cadillac and evidence of the bank robbery. Yet reading the affidavit as a whole, and based on the totality of the circumstances, we conclude that it set forth sufficient facts to meet the nexus requirement. See Lapsins, 570 F.3d at 763-64 (stating the standard for evaluating whether probable cause exists). Sneed does not dispute that the information contained in Lauber's affidavit clearly established probable cause to believe that Sneed was connected with the Sky Bank robbery. A reading of the affidavit in its entirety also supports an inference that Sneed would have kept instrumentalities from the robbery in his Cadillac. See Gunter, 551 F.3d at 481 (stating that an inference can be drawn that a suspect will keep criminal instrumentalities in his place of residence).

Defendant’s continued stop was based on reasonable suspicion, and a wait of up to 20 minutes for a drug dog to arrive was not unreasonable. United States v. Anderson, 2010 U.S. Dist. LEXIS 72039 (W.D. Mich. July 19, 2010).*

Same, 16 minutes. United States v. Curry, 2010 U.S. Dist. LEXIS 72074 (D. Md. July 16, 2010).*

In what was a “a close case,” officers came to a house with a door open and nobody answering their knocks and they went inside and found defendant asleep near drugs. It was reasonable to conclude that they overdosed, and this was a legitimate community caretaker function. State v. Pinkard, 2010 WI 81, 2010 Wisc. LEXIS 167 (July 15, 2010).*

The fact the consenter had permission to use the defendant’s bathroom did not give the consenter apparent authority to consent to a search of the bathroom. State v. Hansen, 2010 Ida. App. LEXIS 60 (July 15, 2010):

The State's showing that Kirsch had permission to use bathroom facilities in Hansen's house does not establish that he had “joint access or control for most purposes.” The evidence does not even show whether Kirsch had a key and could enter whenever he wished or could enter only when a resident was at home. There was no evidence that the residents had expressly or impliedly authorized Kirsch to admit others into the house. Kirsch's mere permission to use the bathroom in the home did not, in our view, confer “the right to permit inspection” of the bathroom such that inhabitants of the home had assumed that risk.

Report to the police of men with a gun was specific and corroborated when they were seen, justifying the stop. State v. Deluca, 2010 Fla. App. LEXIS 10453 (1st DCA July 16, 2010).*

The passenger was nervous and sitting on his hand and wouldn’t look at the officer. This justified a pat-frisk of the passenger for weapons. Commonwealth v. Hernandez, 2010 Mass. App. LEXIS 976 (July 16, 2010).*

The state’s CI used a buttonhole video camera to record a transaction in defendant’s home, and this did not violate the Fourth Amendment since he was invited in. The state constitutional claim that the state constitution should be interpreted different was waived. This arose as an IAC claim. People v. Meyer, 2010 Ill. App. LEXIS 713 (July 8, 2010).

Defendant had no constitutionally protected privacy interest in any activity that Meyers viewed in his home. This includes defendant's possession of the handgun. Meyers simply obtained the most reliable evidence of events that he witnessed and could have testified to. Because any motion to suppress the video on the grounds that it was obtained in violation of the fourth amendment would have failed, defendant's counsel's decision not to challenge the video on constitutional grounds was not deficient. Moreover, no prejudice arose because the video would not have been suppressed.

The officers were given consent to enter to make an arrest, and there was no articulable reason to conduct a protective sweep because of no showing of danger. State v. Davila, 2010 N.J. LEXIS 590 (July 14, 2010).

In a homicide investigation, officers also got a search warrant. They found Post-It Notes around the house which they seized because they related to the divorce proceedings between defendant and the victim. The plain view doctrine permitted their seizure, and “immediately apparent” means logically related to the subject of the investigation. Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 2010 Mass. LEXIS 405 (July 19, 2010):

Although the warrant for the defendant’s home did not authorize the officers to search for or seize documents or writings, it would be unrealistic to require officers to ignore what is immediately in front of them. See, e.g., United States v. Crouch, 648 F.2d 932, 933 (4th Cir.), cert. denied, 454 U.S. 952 (1981) (during search pursuant to warrant that did not authorize search for documents or writings, officers discovered incriminating letters; court attached no significance to “the fact that some cursory reading of the letters was necessary in order to establish their nature”); United States v. Ochs, 595 F.2d 1247, 1257 n.8 (2d Cir.), cert. denied, 444 U.S. 955 (1979) (“A number of courts ... have upheld without much discussion the seizure of documents during an otherwise valid search as in ‘plain view’ notwithstanding the fact that some perusal, generally fairly brief, of the documents was clearly necessary in order for the police to perceive the relevance of the document to crime”). See also 2 W.R. LaFave, Search and Seizure § 4.11(d), at 793 (4th ed. 2004).

The defendant further argues that the plain view doctrine was inapplicable here because the letter and the notes did not have an immediately apparent incriminating character, the third requirement of the doctrine. See D’Amour, 428 Mass. at 730. Trooper Frydryk, who was in charge of videotaping the crime scene, was the first to see the letter on the kitchen counter. He was able to view the phrases “Howard Safford,” “Joe has,” “verbally and emotionally,” “divorce,” and “take everything.” The trooper knew Safford to be an assistant district attorney, knew the victim had died in the house, and knew the victim’s first name was Joseph (or Joe). Additionally, the officers executing the search warrant for 56 Bear Hole Road knew that the victim and the defendant were in the midst of an impending divorce. While we do not agree with the motion judge that the incriminating nature of the letter was “immediately apparent,” in light of what was known at the time, the trooper could permissibly conclude that the letter was “plausibly related ... to criminal activity of which [he was] already aware.” Commonwealth v. Bond, 375 Mass. 201, 206 (1978) (“[m]ere evidence” may be seized under plain view doctrine only if police recognize plausible connection to criminal activity known to them). See D’Amour, 428 Mass. at 731; Commonwealth v. Accaputo, 380 Mass. 435, 447-448 (1980).

The passenger in a car had no standing to challenge a search of the car, and the finding of drugs in the car was not a fruit of the seizure of the passenger. United States v. Pack, 2010 U.S. App. LEXIS 14562 (5th Cir. July 15, 2010).

On the totality, the officer had reasonable suspicion to detain defendant in his rental car based on: inconsistent stories about their travel plans, the overwhelming smell of air freshener, cologne, or perfume coming from the inside of the car, and the increase in people transporting prescription drugs from Detroit to Kentucky. The USMJ credited three additional factors which the USDJ does not. Still, there was reasonable suspicion. The drug dog was not shown to be unreliable. United States v. Chapple, 2010 U.S. Dist. LEXIS 71526 (E.D. Mich. July 16, 2010),* R&R 2010 U.S. Dist. LEXIS 78616 (E.D. Mich. March 1, 2010).*

Defendant’s probation officer had authority to search defendant’s car for drugs based on reasonable suspicion of his possession of Percocet. United States v. Woodson, 2010 U.S. Dist. LEXIS 71542 (D. Del. July 14, 2010).*

Questions during a routine traffic stop are not subject to Miranda. Those questions led to reasonable suspicion. A “disclaimer,” like a crucifix, in isolation may be meaningless, but with other things can be reasonable suspicion. The subsequent search of the car was justified. United States v. Mendoza-Sorzano, 2010 U.S. Dist. LEXIS 71681 (D. Utah May 3, 2010).*

In a Colorado criminal libel investigation against a college student’s website, the ADA issued a search warrant for the student's house and his computers were seized. The DA’s office later refused to file a case against him, likely because the website was clearly protected speech. The search warrant violated the Fourth Amendment for lack of a discernable crime and any showing of particularity. Mink v. Knox, 2010 U.S. App. LEXIS 14684 (10th Cir. July 19, 2010):

Because a reasonable person would not take the statements in the editorial column as statements of facts by or about Professor Peake, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting search and seizure of Mr. Mink’s property.

Here, there was no reference anywhere in the warrant to any particular crime, much less to the Colorado criminal libel statute. See Ex. A. The only reference to a crime in the entire warrant was a citation to a portion of the Colorado Rule of Criminal Procedure 41(b), which specified generally:

A search warrant may be issued under this Rule to search for and seize any property:
(1) Which is stolen or embezzled; or
(2) Which is designed or intended for use as a means of committing a criminal offense; or
(3) Which is or has been used as a means of committing a criminal offense; or
(4) The possession of which is illegal; or
(5) Which would be material evidence in a subsequent criminal prosecution in this state or in another state ...
Colo. R. Crim. P. 41(b) (2003) (emphasis added).

The warrant authorized the search and seizure of all computer and noncomputer equipment and written materials in Mr. Mink’s house, without any mention of any particular crime to which they might be related, essentially authorizing a “general exploratory rummaging” through Mr. Mink’s belongings for any unspecified “criminal offense.” See Campos, 221 F.3d at 1147; see also Cassady, 567 F.3d at 637 (holding that a warrant permitting “search for all evidence of any crime [is] invalid.”). No paragraph tied the listed items to any particular crime. The warrant was therefore clearly invalid under the particularity clause of the Fourth Amendment.

Prior opinion: Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007), cert. denied, 128 S. Ct. 1122 (2008) (no prosecutorial absolute immunity for participating in issuing a search warrant).

In a Franks analysis, the affiant-officer’s law enforcement sources may be questioned, too. United States v. Ohoro, 2010 U.S. Dist. LEXIS 71597 (M.D. Ala. July 16, 2010), R&R 2010 U.S. Dist. LEXIS 71933 (M.D. Ala. April 12, 2010):

But in conducting a Franks analysis, the court will “hold the government accountable for statements made not only by the affiant but also for statements made by other government employees which were deliberately or recklessly false or misleading insofar as such statements were relied upon by the affiant in making the affidavit.” United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997); Hart v. O'Brien, 127 F.3d 424, 449 (5th Cir. 1997) (“A governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit.”); cf. Franks, 438 U.S. at 171 (“The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” (emphasis added)). “[A] different rule would permit government officials deliberately to keep from affiants or the court information material to the determination of probable cause and by such conduct avoid the necessity of a Franks hearing.” United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992).

Plaintiff was on parole, and Sprint turned over cellphone records on a demand from the police to locate plaintiff. He sued on the communications privacy statutes, § 1983, and the Fourth Amendment. His parole status permitted the state to look for him without process. There were also exigent circumstances. Sprint is entitled to summary judgment. (The criminal case is still pretrial.) Jayne v. Sprint P.C.S., 2010 U.S. Dist. LEXIS 71508 (E.D. Cal. July 14, 2010).*

In a qualified immunity case, the plaintiff cannot show that this right to be free from subpoena of personal emails was well established, particularly in light of Quon which chose not to decide the broad question of privacy in electronic communications as the technology evolves. Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010)*:

As these varied cases suggest, the questions of whether Fourth Amendment principles governing a search of Rehberg's home also should apply to subpoenas sent to a third-party ISP for electronic data stored on the third-party's server, and whether Rehberg had a reasonable privacy expectation in the contents of his personal emails sent voluntarily through that third-party ISP, are complex, difficult, and "far-reaching" legal issues that we should be cautious about resolving too broadly. As the Supreme Court advised us, "[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." [Quon] at 10. Given the lack of precedent, we now question whether it would be prudent in this case and on this limited factual record to establish broad precedent as to the reasonable privacy expectation in email content. Moreover, because this is a qualified immunity case, we need not reach the underlying constitutional issue. Instead, we can resolve this case narrowly, cf. id. at 1, because at a minimum Rehberg has not shown his alleged constitutional right was clearly established.

Officers went to defendant’s place based on an informant’s statement he was there dealing drugs and had an outstanding warrant. It was actually a commitment order for unpaid fines. When officers got there and knocked and announced, they heard running sounds inside. They could reasonably believe that the defendant was running to destroy evidence. State v. Robinson, 2010 WI 80, 2010 Wisc. LEXIS 112 (July 15, 2010).

Defense counsel was not ineffective for not challenging that search on the ground the officers manufactured exigent circumstances where it was clear there were exigent circumstances. State v. Artic, 2010 WI 83, 2010 Wisc. LEXIS 108 (July 15, 2010).*

Officers had a search warrant for defendant’s house, and found him 1½ blocks away. His stop and search was justified by the automobile exception. When the officers approached the car, they could smell burning marijuana. Commonwealth v. Velez, 2010 Mass. App. LEXIS 970 (July 16, 2010).*

The good faith exception does not save an arrest on an arrest warrant issued without any probable cause at all. “Judicial error” does not save the warrant. State v. Hess, 2010 WI 82, 2010 Wisc. LEXIS 109 (July 15, 2010)*, affg, 2009 WI App 105, 320 Wis. 2d 600, 770 N.W.2d 769:

[*P1] ... The issue presented in this case is whether the good-faith exception to the exclusionary rule permits the use of evidence obtained by a law enforcement officer in his execution of an arrest warrant that was void from the beginning because the warrant had no basis in fact or law. The State contends that suppression of evidence from a warrant issued solely as a result of judicial error would not further the purposes of the exclusionary rule.

[*P2] We conclude that the good-faith exception to the exclusionary rule does not apply to a situation in which: (1) no facts existed that would justify an arrest without a warrant; (2) the civil arrest warrant issued by a circuit judge was void ab initio 1 because (a) it did not comply with any statute authorizing the court to issue a warrant; and (b) it was not supported by an oath or affirmation; and (3) the court issued the warrant without the benefit of verification of the facts or scrutiny of the procedure to ensure that the judge acted as a detached and neutral magistrate.

Defendant failed to show in his § 2255 that the failure of defense counsel to file a motion to suppress the search of her computers in a fraud case would have succeeded. No record that was admitted into evidence at the trial was outside a common understanding of the search warrant. Also, there was no search protocol for execution of the warrant, and there is no requirement that there be one. Borden v. United States, 2010 U.S. Dist. LEXIS 71406 (M.D. Fla. July 15, 2010).*

Defendant’s claim he signed a consent to search form in blank twice, initialing it 24 times, was incredible. United States v. Buckhanon, 2010 U.S. Dist. LEXIS 71388 (W.D. Tenn. May 19, 2010)*:

Moreover, the court finds Buckhanon's testimony to be unbelievable in its entirety. It strains credulity to believe that Buckhanon would initial a blank document 24 times and sign it twice if there were no answers filled in the blank spaces. If he was concerned about what he was signing, his mother, sister, and niece were present and could have witnessed the document. Plus, the answers written on the Rights Waiver Form contain a level of detail that would be difficult for the officers to fabricate.

State knock and announce rule was violated where officers knocked for 10-12 seconds on the door of a house at 10 p.m. The house was large enough that nobody inside could get to the door in 10-12 seconds, and the officers never considered the size of the house; they just followed their customary practice. Motion to suppress granted because the failure to consider how long it would take an occupant to get to the door at night was a violation of the state constitution. State v. Ulibarri, 2010 N.M. App. LEXIS 74 (July 8, 2010):

P18 In our view, the present case is distinguishable from Hand and Johnson. Here the warrant was executed at roughly 10:00 p.m. The Home is not small like a motel room or a trailer; it is a house with two entrances and separate rooms. It was understood that Defendant and the other suspects were not in the home when the search warrant was executed and that Defendant resided with Mr. Roybal. Accordingly, we conclude that the ten- to twelve-second period of silence which followed the knock and announce in the present matter cannot be measured in the same context as was the period of silence which followed the knock and announce in Hand and Johnson. Therefore, the fact that a ten-second waiting period was deemed reasonable in those cases is not determinative here.

P19 In our view, an objectively reasonable officer would consider the time at which the search warrant is executed, the identity of the occupants likely to be within the dwelling at the time of the search, and the size of the dwelling to be searched in assessing whether a period of nonresponsiveness following a knock and announce signals constructive refusal. No evidence was presented that the officers considered any of these facts. Rather, the findings indicate that the officers relied on the ten to twelve seconds of silence following the knock and announce, in and of itself, as the basis for their conclusion that they had been constructively refused admittance. Indeed, the lead officer testified that forcing entry after waiting ten seconds following a knock and announce is a "customary" practice. Such a practice not only violates a clear tenet of our case law that there are no bright line rules as to how long an officer must wait before inferring constructive refusal but, in this case, caused exactly the type of harms the knock-and-announce rule is designed to prevent: Roybal's home was needlessly damaged; Roybal was unnecessarily injured; and the limited duration of time between the knock and announce and forced entry interfered with Roybal's attempts to comply with the officers' requests for admission.

Clearly a product of Hudson v. Michigan ...

Defendant’s argument that the IP address alone could not provide probable cause to believe that he downloaded child pornography from another website was rejected. He argued that there could have been other computers there, another could have done it through his wireless network, and somebody could have used a proxy server to fake the IP address. United States v. Massey, 2009 U.S. Dist. LEXIS 128662 (E.D. Mo. September 15, 2009).*

Whether the county attorney violated state law in issuing a subpoena for utility records was not pertinent in federal court. United States v. Mc Intyre, 683 F. Supp. 2d 1020 (D. Neb. 2009).*

Defendant’s arrest for bank robbery justified a search incident of the getaway car. United States v. Singletary, 2009 U.S. Dist. LEXIS 128661 (W.D. Mo. October 15, 2009).*

Defendant put her purse in the cargo area of the vehicle, and when the officers asked about it, she specifically denied that it was hers. This was abandonment. United States v. Anderson, 2009 U.S. Dist. LEXIS 128668 (E.D. Mo. September 30, 2009).*

There was probable cause for the defendant’s arrest where she got out of a car that the CI said had a trashbag of marijuana in it, and she came in at the same time as the trashbag. State v. Hale, 2010 Ohio 3306, 2010 Ohio App. LEXIS 2802 (8th Dist. July 15, 2010).*

Defendant’s challenge to the search came for the first time on appeal so it is waived. State v. Layne, 2010 Ohio 2308, 2010 Ohio App. LEXIS 2819 (12th Dist. May 24, 2010).*

Defendant’s guilty plea waived any suppression issue. State v. Roberts, 2010 Ohio 3302, 2010 Ohio App. LEXIS 2800 (8th Dist. July 15, 2010).*

Officers approached defendants to talk to them and saw drugs in plain view, and that justified getting them out of the car and searching. State v. Moore, 2010 Ohio 3305, 2010 Ohio App. LEXIS 2799 (8th Dist. July 15, 2010).*

The CI pointed out a car as being involved in a coming bank robbery, and it was seen near the scene of the robbery three times. That corroborated the CI. Brown v. State, 2010 Tex. App. LEXIS 5483 (Tex. App. — Tyler July 14, 2010).*

A landlord has standing to challenge city housing code violations even though he was not in possession of the property. Also, a search warrant could not be issued for property because the vehicles outside have different surnames as owners as tending to show two families reside in a single family dwelling. People v. All State Properties, LLC, 2010 NY Slip Op 20275, 2010 N.Y. Misc. LEXIS 3095 (Nassau Co. June 2, 2010):

The defendant's motion also seeks to have evidence suppressed because evidence in the form of observations was obtained in violation of the Fourth Amendment of the United States Constitution. The prosecution argues that the defendant lacks standing to seek suppression of evidence because the defendant had no expectation of privacy. The defendant is the owner of the property but is not in possession. The property is occupied by tenants. The prosecution further argues that property ownership is only one factor to be considered when examining whether Fourth Amendment rights have been violated and that the defendant must also demonstrate a reasonable expectation of privacy in the searched premises.

Even though the defendant is a limited liability corporation, the protections of the Fourth Amendment apply. Hale v. Henkel 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652 (Sup.Ct. 1906). The Fourth Amendment to the Constitution states, "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A corporation is an association of individuals with a distinct name and legal entity, and in organizing itself as a collective body it does not waive appropriate constitutional immunities. Id. at 76.

The violations charged against the defendant could ultimately result in fines, penalties and liens imposed against the property. These pecuniary interests demonstrate a direct proprietary interest in the property.

Defendant's locked car was subjected to a search incident that would be invalid under Gant, but the court holds the good faith exception applies to a pre-Gant search incident. State v. Dearborn, 2010 WI 84, 2010 Wisc. LEXIS 110 (July 15, 2010), affg 2008 WI App 131, 313 Wis. 2d 767, 758 N.W.2d 463 (Ct. App. 2008):

[*P44] We can find no principled way to distinguish Krull or Ward from this case. Both this court and the United States Supreme Court have determined that the retroactivity rule does not bar application of the good faith exception in situations where police act in objectively reasonable reliance on settled (albeit subsequently overruled) law. As we have already explained, the officers were following the clear and settled precedent of this court; this is exactly what officers should do. Application of the exclusionary rule would have absolutely no deterrent effect on officer misconduct, while at the same time coming with the cost of allowing evidence of wrongdoing to be excluded. In short, under Krull or Ward, it is clear that applying the exclusionary rule would be an inappropriate remedy for the constitutional violations here.

How the court could reasonably conclude that the search incident doctrine applies to a locked car when the defendant is locked in a police car escapes me before Gant, and that kind of holding was what led to Gant. That isn't good faith.

Defendant’s medical records in a hospital are not his private papers (O.C.G.A. § 17-5-21) exempt from a search warrant as mere evidence. (The court gives a history of the state “private papers” exemption.) Brogdon v. State, 2010 Ga. LEXIS 560 (July 12, 2010).

Defendant did not raise lawfulness of search of his vehicle in the trial court, so application of Gant was waived. State v. Cross, 2010 Wash. App. LEXIS 1385 (June 29, 2010).*

Officers had probable cause to arrest defendant for obstructing a felony stop after officers responded to a call about a large fight. State v. Parsons, 2010 Iowa App. LEXIS 759 (July 14, 2010).*

Officers had reasonable suspicion from an informant’s statement that a drug deal would go down at Hardee’s from a “beat-up hooptie,” and a car matching that description showed up at the Hardee’s and nobody got out of the car. State v. Whitelow, 2010 Iowa App. LEXIS 725 (July 14, 2010).*

During a valid traffic stop, telling the driver to close the window and shut off the engine before the dog sniff was reasonable here and did not make it more of a seizure. United States v. Pina, 2010 U.S. App. LEXIS 14412 (10th Cir. July 14, 2010) (unpublished)*:

Pina and Lajara contend a different result is warranted here because Owen asked Lajara to close the window and turn off the vehicle before he walked his dog around the vehicle. We disagree. While we recognize the possibility an officer's instruction to close a window or turn off an engine could be seen as an unreasonable exercise of dominion and control in some circumstances, 4 we agree with the district court that these requests were reasonable here. As the court explained: "There's no reason for that car to be running while this search is going on with a passenger inside the car. It would be very simple for the passenger to move over and take off[.]" (R. Vol. II at 74.) And Owen testified he instructed Lajara to close the window in order to prevent his dog-an aggressive dog-from jumping in the window and potentially causing harm to Lajara. Considering Owen's instructions in the light of "common sense and ordinary human experience," United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985), they did not unreasonably or unnecessarily prolong the detention. Like the detention at issue in Patterson, Pina and Lajara's detention was reasonable in scope and duration.

Defendant who did not live in the house searched had no standing to challenge the search of the place. He kept stuff there and he had a longstanding relationship with those who lived there, but it wasn’t his place, so no standing. United States v. Tamborello, 2010 U.S. Dist. LEXIS 71313 (N.D. Iowa July 15, 2010).*

Defendant’s IAC claim fails that defense counsel did not move to dismiss the case because the officers allegedly lied to him during the search. Even if the issue was challenged as a suppression motion, defendant would not have prevailed, so defense counsel had no basis for moving to suppress. Philson v. United States, 2010 U.S. Dist. LEXIS 70896 (E.D. N.C. July 13, 2010).*

The affidavit for the search warrant for child pornography on defendant’s computer was issued with probable cause. A detailed description of the alleged child pornography is not required as it is with adult pornography because of the lack of First Amendment protection. United States v. Werlein, 2010 U.S. Dist. LEXIS 70725 (D. Minn. June 24, 2010).*

Defendant’s stop was because of a license plate light. When he got to the driver’s window, he noticed the strong odor of air freshener, the passenger window would not go down, and they had unusual travel plans. This was reasonable suspicion to keep talking. United States v. Collins, 2010 U.S. Dist. LEXIS 70334 (E.D. Tex. June 21, 2010).*

A gap in the information linking an IP address to defendant was sufficient to make a Franks showing for a hearing. The officer stated something as a fact when it was his deduction. The government does not get to rehabilitate the affidavit; all that can be done is strike the offending information. The information was necessary to the finding of probable cause, and the magistrate’s grant of the motion for a Franks hearing. United States v. Nelson, 2010 U.S. Dist. LEXIS 70317 (D. S.D. July 12, 2010):

Similarly, in this case, Agent Boone misled the issuing judge by misrepresenting his own analysis and conclusion regarding the identity of the subscriber associated with the suspected file-sharing activity as a factual statement made by Knology. Knology did not definitively state the identity and address of the subscriber of IP address 216.16.82.227 on the dates and times requested in the subpoena, but rather provided DHCP logs and data on which Agent Boone drew conclusions about the identity of the subscriber at the relevant time. Thus, like in McCain, Agent Boone's affidavit was false in two related ways: first, it falsely stated that Knology determined that Nelson was the subscriber at the relevant times, and second, it misrepresented Agent Boone's interpretation of the DHCP logs and other relevant data as a direct factual statement by Knology.

. . .

Despite Agent Boone's sincere belief that he accurately determined and stated in the affidavit the identity of the subscriber of the IP address engaging in distribution of child pornography, he recklessly misrepresented the source of this conclusion and made it impossible for the issuing judge to determine whether there was probable cause to search Nelson's home. Without this false statement, Agent Boone's affidavit does not establish probable cause to search Nelson's home or vehicle, and as a result, it is

ORDERED that the court adopts the Report and Recommendation of Magistrate Judge Simko (Docket 27) as supplemented herein, and therefore, Nelson's motion to suppress evidence and request for a Franks hearing (Docket 17) is granted.

In the NYTimes: Two Officers Are Accused of Lying About Searches, by Anahad O’Connor:

A New York City police sergeant lied to cover up several unlawful stops and seizures in Manhattan and forced subordinates to falsify paperwork to justify the stops, authorities said Thursday in announcing the indictment of two officers.

In the indictment, prosecutors portrayed the sergeant, William Eiseman, 41, as a renegade who routinely stopped people for no justifiable reason, searched their cars and then arrested them when he recovered drugs or weapons.

I'm "shocked, shocked" that police officers might lie about the justification for a stop and a search. 2 out of 800,000. Right.

A juvenile accused of a forced sex offense did not have a right to have an attorney or his parents present for execution of a search warrant for his DNA because it was not a "critical stage" of the proceedings. Also, the affidavit for the search warrant did not omit any material facts to the finding of probable cause. State v. Poitra, 2010 ND 137, 2010 N.D. LEXIS 132 (July 13, 2010):

[*P25] In general, a criminal defendant does not have a constitutional right to an attorney before submitting DNA during the execution of a search warrant. See, e.g., McClain v. State, 410 N.E.2d 1297, 1303 (Ind. 1980) (no right to counsel during execution of a search warrant for internal body secretions, swab emission test does not involve attempts to get testimony or assertions and is not a critical stage of the proceedings); State v. Delisle, 630 A.2d 767 (N.H. 1993) (a defendant does not have a right to an attorney prior to giving blood samples pursuant to a warrant); Hale v. State, 220 S.W.3d 180 (Tex. App. 2007) (no right to counsel when taking a saliva sample for DNA testing because it was not a critical stage of the proceedings). Poitra fails to cite any authority granting juveniles greater protections in executing a search warrant than an adult criminal defendant receives.

[*P26] Unlike cases where a juvenile must consent or refuse to take a chemical test, a juvenile does not have a choice whether to provide evidence when a search warrant has been issued. ...

The stop of the vehicle defendant was riding in was valid, and the continuation of the stop was de minimus. A dog alerted on the passenger side, and no drugs were found in the car. It was reasonable to then search the defendant’s person. United States v. Fox, 2010 U.S. Dist. LEXIS 70327 (D. Alaska July 13, 2010).*

Defendant’s Fourth Amendment rights were not violated by recording conversations from the jail. Defendant also raised a First Amendment free speech claim that monitoring the phone calls chills free speech rights to complain about the criminal charges. Even if it applied, the exclusionary rule does not apply to First Amendment violations. United States v. Korbe, 2010 U.S. Dist. LEXIS 70419 (W.D. Pa. July 14, 2010).*

Defendant’s § 2255 Fourth Amendment claim by an amended petition was time barred. The record showed that he was aware of the claim within the one year limitations period, not as a newly discovered claim. Casseday v. United States, 2010 U.S. Dist. LEXIS 70465 (D. D.C. July 13, 2010).*

“If that's what you guys want to do” in response to a request to search defendant’s car was not clear and unequivocal consent. Suppression order affirmed. State v. Mays, 2010 Ohio 3289, 2010 Ohio App. LEXIS 2789 (10th Dist. July 13, 2010).*

Defendant got out of a car that police then approached and smelled marijuana smoke and saw a blunt inside it. The search of defendant’s person was unjustified because the driver said that the blunt was his. State v. Johnson, 2009 Ohio 3436, 2009 Ohio App. LEXIS 5922 (10th Dist. July 14, 2009):

[*P20] If the issue before us were the search of the car, Moore would apply. However, no testimony at the hearing on the motion to suppress indicated that Johnson had any odor of marijuana smoke on him. At most, Johnson had been in a car while someone smoked marijuana earlier, but his presence in the car did not provide probable cause to believe he possessed marijuana at the time he was searched, especially in light of the driver's acknowledgement that the marijuana belonged to him (the driver). There was no probable cause to believe that more marijuana or any other controlled substance was in the possession of anyone outside the car.

Officers conducting a protective sweep looked up and saw a lactose bottle on a shelf, pulled it down, looked at it, and seized it. This was unreasonable under the protective sweep doctrine. United States v. Guzman, 2010 U.S. Dist. LEXIS 70384 (S.D. N.Y. July 14, 2010).

Opening an unmarked pill bottle during an inventory was reasonable. State v. Escoto, 2010 La. LEXIS 1664 (July 6, 2010).

While the case law is divided on whether a person not listed on the rental agreement has standing to contest a search of the car, in this case, the defendant made no effort to show standing, so he had none. State v. Jackson, 2010 La. LEXIS 1657 (July 6, 2010).*

Defendant failed to show standing in a hallway closet in his apartment building. State v. Harris, 122 Conn. App. 521, 2010 Conn. App. LEXIS 306 (July 13, 2010).*

Taking the alleged victim to the scene of execution of the search warrant and letting him dictate what else was seizable as plain view denied defendants qualified immunity in a state Fourth Amendment § 1983 case filed in state court. Debrower v. City of Bremer, 0-316 (Iowa July 14, 2010)*:

We conclude Deputy Miller’s conduct in seizing the additional eleven trees based on Burkle’s new allegations of ownership after he spotted newly-planted trees as he was leaving the property and based on whether the trees could be pulled out of the ground during a night-time search engenders a fact issue on whether “the incriminating feature of the object was immediately apparent.” Burkle’s handwritten statement clearly asserts “34 trees” were stolen “about 3 weeks ago” and thirty-four trees had already been seized under the warrant. Three weeks is sufficient time to accurately identify the number of trees stolen. Further, defendants provide no authority to support a seizure of property not listed in the warrant based upon unsworn claims made by a civilian participating in the search. Because a fact issue remains, summary judgment was improper. See Price-Cornelison v. Brooks, 524 F.3d 1103, 1117-18 (10th Cir. 2008) (stating “whether a police officer has actually aided a private party’s seizure of property ‘is particularly fact-sensitive’” and the right to avoid state participation in private party’s wrongful seizure of property was clearly established in 2003). Since the Bailey decision in 1991, Iowa officers knew “that the officers’ conduct in executing a search warrant is subject to review and an officer may face section 1983 liability for executing a warrant in an unreasonable manner.” Bailey v. Lancaster, 470 N.W.2d 351, 358 (Iowa 1991). A factual issue exists concerning the reasonableness of the officers‟ actions based on existing law.

Hat tip to appellant's counsel who forwarded it.

The search incident of defendant’s car pre-Gant for driving on a suspended license violated Gant, even though it was commonly understood that it was valid before Gant. The court concludes that Gant has to be retroactive under general rules of constitutional adjudication, and Gant would have said it wasn’t retroactive if it wasn’t supposed to be. McCane and other good faith cases are rejected because this proposed good faith exception conflicts with the principles of constitutional adjudication. Finally, the state did not show inventory as inevitable discovery. State v. Johnson, 2010 Mo. App. LEXIS 964 (July 13, 2010):

The effect of using objectively reasonable reliance on case law as a basis for applying the good-faith exception would be to ignore the Supreme Court's retroactivity rules, set forth above, in the context of Fourth Amendment cases. While truly "new" rules interpreting the Fourth Amendment might technically be applied retroactively, they could have no retroactive effect because a new constitutional rule interpreting the Fourth Amendment would in every case result in a good-faith exception to the exclusionary rule. We would recognize that the individual's rights were violated, but we would afford him no remedy. Therefore, applying the good-faith exception to reasonable reliance on precedent would cause a tension between the good-faith exception and the retroactivity doctrine that we find unacceptable. See United States v. Gonzales, 578 F.3d 1130, 1132 (9th Cir. 2009) (in a case factually similar to Johnson's, holding that to apply the good-faith exception would conflict with the Supreme Court's retroactivity precedents); United States v. Buford, 623 F. Supp. 2d 923, 926-27 (M.D. Tenn. 2009). 10 Applying the good-faith exception to reasonable reliance on precedent would require that we ignore the spirit, if not the letter, of Supreme Court precedent by interpreting Gant as having "fish[ed] one case from the stream of appellate review" while "permitting a stream of similar cases… to flow by unaffected." 11 Mackey, 401 U.S. at 679 (Harlan J., dissenting). Thus, the State, in asking us to apply the good-faith exception to reliance on case law, is effectively asking us to reinvigorate the clear break rationale, albeit under a new name, "good faith," for new constitutional rules affecting the Fourth Amendment.

10 The State cites United States v. McCane, 573 F.3d 1037, 1039 (10th Cir. 2009), where the Tenth Circuit held that, regardless of any retroactive effect of Gant, the good-faith exception should be used to admit evidence found during a search incident to arrest that Gant would deem unconstitutional. Because we believe that both the United States Supreme Court and the Missouri Supreme Court would apply the Griffith retroactivity rule over Leon's good-faith exception in cases where the two doctrines conflict, we do not find McCane persuasive. However, we acknowledge that a number of other courts have applied the good-faith exception to post-Gant motions to suppress. See, e.g., United States v. Allison, 637 F. Supp. 2d 657 (S.D. Iowa 2009); United States v. Lopez, Crim. Action No. 6:06-120-DCR, 2009 WL 3112127 (E.D.Ky. Sept. 23, 2009); Brown v. State, 24 So.3d 671 (Fla. Dist. Ct. App. 2009). See also United States v. Grote, No. CR-08-6057-LRS, 2009 WL 2068023 (E.D. Wash. July 15, 2009) (ruled in the alternative that, even if the search of defendant's vehicle was not a valid search incident to arrest, evidence obtained from the search should not be excluded because the officer conducted the search in objective good faith based on pre-Gant case law).

Plaintiff’s strip search which he alleged included a sexual touching was a de minimus claim for a jail, and summary judgment is granted. Brown v. Brooks, 2010 U.S. Dist. LEXIS 69383 (E.D. La. June 17, 2010)*:

Even if the touching was sexually motivated, as Brown alleges, such conduct, while despicable, must be characterized as constitutionally de minimis in this context. Copeland, 2001 WL 274738, at *3; see Brown v. Sloan, No. 1:09-cv-01066, 2010 WL 476720, at *2 (W.D. La. Feb. 10, 2010) (Drell, J.) (citing Copeland, 2001 WL 274738 at *3) (quoting Boddie, 105 F.3d at 861) (Plaintiff's claim that corrections officer fondled him while conducting a shakedown failed to state an Eighth Amendment claim when plaintiff did not allege any physical injury. "This single incident is not severe enough to be objectively sufficiently serious or egregious to state a constitutional violation. ... [S]uch conduct does 'not involve a harm of federal constitutional proportions as defined by" the Supreme Court.); accord McGill v. Corrections Corp., No. 08-CV-0923, 2009 WL 790363, at *5 (W.D. La. Mar. 25, 2009) (Drell, J.) (citing Copeland, 2001 WL 274738, at *2); Washington v. City of Shreveport, No. 03-2057, 2006 WL 1778756, at *5-6 (W.D. La. June 26, 2006) (Hicks, J.) (citing Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998); Boddie, 105 F.3d at 861; Copeland, 2001 WL 274738, at *2; Buckley v. Dallas County, No. 397-CV-1649BC, 2000 WL 502845, at *5 (N.D. Tex. Apr. 27, 2000)).

. . . Under the Fifth Circuit's standards, a prison official's burden of proving the reasonableness of a strip search "is a light burden because an administrator's decisions and actions in the prison or jail context are entitled to great deference." Tuft, 2010 WL 420003, at *7 (citing Elliott, 38 F.3d at 191).

Officers did a knock-and-talk to effect an arrest warrant, and they asked for ID. Once the person was ID’d, they stepped in, and this was not unreasonable to secure the situation. United States v. Roberts, 2010 U.S. App. LEXIS 14359 (5th Cir. July 13, 2010)*:

The facts here are even stronger than in Chrisman. The Supreme Court found that the entry to maintain control was reasonable even in the "absence of an affirmative indication that the ... person might have a weapon available or might attempt to escape." Id. at 6. (emphasis added). Here, the officers acted well within their authority in stepping into Roberts's apartment. Not only did they need to maintain control over their suspect, but they had affirmative information indicating the presence of weapons based on information provided by the other building residents.

Defense counsel’s failure to challenge the search of defendant’s cabin on a ship hauling cocaine was not ineffective assistance because it would not have prevailed in any event. De La Rosa v. United States, 2010 U.S. Dist. LEXIS 69628 (D. P.R. July 12, 2010).*

Basic questions while preparing the paperwork of a stop did not unlawfully extend it. United States v. Hidalgo, 2010 U.S. App. LEXIS 14241 (5th Cir. July 12, 2010) (unpublished).*

Not a Fourth Amendment case, but one with some Fourth Amendment implications:

Officers testified falsely about what happened in defendant’s home during arrest. He was strip searched and assaulted and allegedly made a statement. The District Court suppresses the statement. The government, to its credit, also treated a statement from another officer for the suppression hearing about the search as Giglio material and turned it over. United States v. Gonzalez, 2010 U.S. Dist. LEXIS 69763 (D. Mass. June 30, 2010)*:

Because the government has not proven that Gonzalez waived his Fifth Amendment rights knowingly or voluntarily, both his statements and the physical evidence derived from them must be suppressed. See United States v. Patane, 542 U.S. 630, 639 (2004); Chavez v. Martinez, 538 U.S. 760, 769 (2003). The inevitable discovery exception to the exclusionary rule does not qualify this conclusion. Permitting the contents of the shoebox to be used as evidence would significantly weaken the protections provided by the Fifth Amendment. See United States v. Almeida, 434 F.3d 25, 28 (1st Cir. 2006); Rullo, 748 F. Supp. at 40-45. It would also abet police misconduct, which in this case involved not only Smith punitively punching Gonzalez, but Smith testifying falsely about events at Gonzalez's home as well. See Almeida, 434 F.3d at 28; Rullo, 748 F. Supp. at 40-45.

It is not clear whether the suppression of the gun and crack found in the shoebox will result in Gonzalez escaping conviction because the court may find that the second gun found in a search of Gonzalez's bedroom after he disclosed the shoebox is admissible. However, even if all of the evidence is suppressed and the case dismissed, the cost to society of condoning the police misconduct in this case would be unacceptable. As Justice Louis D. Brandeis explained, in words that are etched into this courthouse:

Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

Defendant argued that if his frisk was justified, it should stop with finding the gun. However, on these facts, the finding of a gun ripened to probable cause so the continued search was valid. Blyden v. People, 2010 V.I. Supreme LEXIS 25 (July 7, 2010):

After reviewing the record in this case, we conclude that the Fourth Amendment was not violated by Dowdye's seizure of the additional items because probable cause arose to arrest Blyden at the time Dowdye recovered the firearm during the lawful Terry stop. “Probable cause exists where facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been … committed by the person to be arrested.” United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990). As we have concluded above, it was reasonable for Dowdye to conclude that Blyden had just committed a crime involving gunfire in light of his presence in the vicinity of the crime very soon after the shooting as well as his overall physical appearance. With this knowledge, the recovery of a firearm from Blyden, a person suspected of having recently committed a shooting, ripened Dowdye's reasonable suspicion to stop and frisk Blyden into probable cause to arrest him as a suspect in the shooting. [citing cases]

The issuing magistrate had a factual basis for issuing the search warrant for child pornography on defendant’s computer and cameras in his room involving his grandchildren. Eubanks v. State, 2010 Tex. App. LEXIS 5399 (Tex. App. — Houston (First District) July 8, 2010).*

Defendant was not “merely present” as in Ybarra. He was in a drug house, and there was probable cause as to everybody. United States v. Nelson, 2010 U.S. App. LEXIS 14193 (7th Cir. July 12, 2010) (unpublished):

The police had probable cause to arrest Nelson at Tompkins's home because, unlike Ybarra, the arrest here is based on more than his "mere presence" near criminal activity in a public place of lawful business. Nelson was present in a private dwelling that, with its drug paraphernalia, drug transactions, lack of furnishings and no running water, appeared to have no lawful purpose. In United States v. Pace, 898 F.2d 1218, 1240 (7th Cir. 1990), we rejected the defendants' argument that the police lacked probable cause to arrest them where officers executing a search warrant for a home suspected to be a site for drug-dealing observed the defendants exiting rooms in which the police found large quantities of either drugs or money out in the open. We reasoned that these observations, combined with the fact that the homeowner trusted the defendants enough to have them in his home while the money and cocaine were out in the open, could lead a reasonable person to conclude that the defendants were involved in a cocaine deal with the owner. Id. Here, similarly, Tompkins appeared to trust Nelson enough not to hide his drug dealing and paraphernalia, giving Nelson ready access to that paraphernalia at a private site that appeared to be a place specifically for drug dealing. These facts supported an inference that Nelson himself might be a drug customer or dealer.

Defendant leased a Tahoe from Enterprise, and it was equipped with OnStar. The government got a court order to monitor the GPS in the vehicle to see where he was. That court order did not violate the Fourth Amendment or any reasonable expectation of privacy. United States v. Dantzler, 2010 U.S. Dist. LEXIS 68753 (W.D. La. June 16, 2010):

Applying the foregoing considerations to the case at bar, it is manifest that Dantzler did not enjoy a reasonable expectation of privacy in the movement of his rented vehicle on public thoroughfares. The OnStar system revealed no more information than what law enforcement officers could have observed from constant surveillance of the vehicle from the time that it was rented in Houston until the time of the stop. Although defendant trumpets the fact that the court order was issued to a Michigan corporation, for a vehicle that was rented in Texas, there is no evidence that Louisiana law enforcement officials acted upon any information provided by OnStar until the vehicle approached the Louisiana border. It was not until the vehicle passed the officers' surveillance point in Louisiana that an OnStar representative actively assisted the state trooper to confirm that the vehicle had passed his vantage point. Moreover, this is not a case where authorities physically installed a tracking device on defendant's vehicle. Rather, the officers merely accessed information that defendant's rented vehicle had transmitted to a third-party monitoring service.

Furthermore, Dantzler either knew or should have known that he was renting an OnStar-equipped vehicle that was capable of transmitting the vehicle's location to a monitoring service. As a result, defendant accepted the risk that the information that the tracking system transmitted to the third-party monitoring service could be forwarded to others. See Smith v. Maryland, 442 U.S. 735, 743-744, 99 S.Ct. 2577, 2582, 61 L. Ed. 2d 220 (1979) (by using his telephone, petitioner conveyed information to the telephone company and assumed the risk that the information would be turned over to the police). Even if Dantzler was not aware that he was renting a vehicle outfitted with OnStar, he has not demonstrated that society expects the movements of a rental car to remain private. See Smith, supra.

For those interested in GPS under the Fourth Amendment, this case thoroughly discusses the reasonable expectation of privacy issues and what those advocating a reasonable expectation of privacy from GPS monitoring have to overcome. I'd provide a pdf of the opinion, but it costs too much to do it very often.

Officer was sincere but mistaken in whether defendant consented. Her testimony was contrary to defendant and other officer. Defendant’s testimony also credited because he was sincere and cooperative with officers throughout. United States v. Mills, 2010 U.S. Dist. LEXIS 68853 (M.D. Fla. June 17, 2010).*

There were some inconsistencies with the search warrant affidavit with some testimony in the case, but that did not undermine the probable cause. The reference to firearms offenses shows a continuing occurrence that overcomes staleness, and the good faith exception would apply. United States v. Stout, 2010 U.S. Dist. LEXIS 68770 (N.D. Okla. July 9, 2010).*

Plaintiff failed to show that a school official listened in to a telephone call and intercepted it. Walsh v. Krantz, 2010 U.S. App. LEXIS 14253 (3d Cir. July 12, 2010) (unpublished).*

The Fourth Amendment Right To Delete by Paul Ohm in the Harvard Law Review. First paragraph and last paragraph of introduction:

For years the police have entered homes and offices, hauled away filing cabinets full of records, and searched them back at the police station for evidence. In Fourth Amendment terms, these actions are entry, seizure, and search, respectively, and usually require the police to obtain a warrant. Modern-day police can avoid some of these messy steps with the help of technology: They have tools that duplicate stored records and collect evidence of behavior, all from a distance and without the need for physical entry. These tools generate huge amounts of data that may be searched immediately or stored indefinitely for later analysis. Meanwhile, it is unclear whether the Fourth Amendment’s restrictions apply to these technologies: Are the acts of duplication and collection themselves seizure? Before the data are analyzed, has a search occurred?

. . .

The right to delete explains why imaging is seizure without requiring Hicks to be overruled or otherwise conflicting with existing jurisprudence. It will also help determine the Fourth Amendment status of the ongoing data collection of heat emanations, keypresses, monitor images, WiFi communications, GPS tracks, web browsing records, and new technologies yet to be invented. Ultimately, a physical-property based reading of Fourth Amendment seizure fails to properly translate the Amendment’s protections to intangible, digital property.

Defendant’s pickup truck was stopped for a traffic violation late at night and there was an alleged furtive movement in the truck as the officers approached, also allegedly seeing a hunting knife in plain view, which the court finds not credible. United States v. Miller, 2010 U.S. Dist. LEXIS 68613 (W.D. Okla. July 9, 2010)*:

Based upon the totality of circumstances, and in particular the questionable credibility of Officer Barnes and Sergeant Bowden, the Court finds that the factors present here do not constitute reasonable suspicion. Specifically, the factors which weigh in favor of reasonable suspicion are of minimal significance and susceptible to varying interpretations so as to be innocuous. Because "the question is whether this suspicion was reasonable and articulable rather than a hunch that turned out accurate," the Court finds that the officer and sergeant's "inchoate and unparticularized suspicions or hunches were insufficient to give rise to reasonable suspicion" that defendant was armed and dangerous. Simpson, 2010 WL 2559796, at *11. Therefore, the Court concludes the officer's and sergeant's actions were outside the bounds of the Fourth Amendment such that the evidence obtained should be suppressed.

Defendant did not per se legally abandon his car by parking it and running from it. He parked it in his own apartment complex parking lot. State v. Nesbitt, 2010 Ga. App. LEXIS 656 (July 8, 2010):

[T]he facts of this case more closely resemble those of Dean and Scrivner rather than cases in which the suspects ran away from vehicles illegally parked or parked in some hazardous manner. When Nesbitt ran away, the officer had just observed him park the Altima within a parking space of an apartment complex, where lived -- as was readily ascertained by the officer based upon his investigation of the car's tag -- the person to whom the Altima's registered owner had entrusted the vehicle. In light of this evidentiary record, we cannot conclude that the trial court clearly erred in rejecting the state's argument that Nesbitt abandoned the Altima and consequently lost any reasonable expectation of privacy with regard to the car. Under applicable standards of review, we must affirm that part of the judgment suppressing evidence found inside the Altima.

Officer learned from the victim and another that defendant had child pornography in a briefcase in his house. The officer enlisted the friend to get the briefcase and bring it to the officer. When the officer had it, he obtained a search warrant for the contents. The search was reasonable under the Fourth Amendment by inevitable discovery despite using a private person to seize the briefcase. Wilder v. State, 2010 Ga. App. LEXIS 669 (July 8, 2010).*

Housing authority director could not consent to a police entry for "health and safety" reasons, even if the lease permitted it. Bowden v. State, 2010 Ga. App. LEXIS 667 (July 8, 2010):

The state nonetheless contends that the director's consent was authorized by the terms of the tenant's lease, which allegedly provided that the director could enter the premises in the event of a threat to the health and safety of the residents or the property. First, we note that a copy of the lease was not tendered into evidence in the trial court and is not contained in the appellate record, so the state has failed to meet its burden on this front. See OCGA § 17-5-30(b); Welchel v. State, 255 Ga. App. 556, 558 (565 SE2d 870) (2002) (the state bears the "heavy burden" of proving circumstances that justify a warrantless entry into a home). But regardless, we reject the state's argument that the limited right of entry allegedly contained in the lease amounted to a waiver of any expectation of privacy as to all entries into the leased premises. See Arnold, 237 Ga. App. at 859 (1). The record is devoid of any evidence that the fugitive was a dangerous individual, or that the officer's failure to immediately locate and arrest the fugitive posed a threat to the health and safety of the residents or the property. See Looney, 293 Ga. App. at 641. And contrary to the state's argument, it is irrelevant whether the officer believed in good faith that the director possessed the power to consent to the search. See Oliver, 183 Ga. App. at 93 ("[T]he fact that the officers believed in good faith that [a landlord] had authority to consent to their search [does not] make their search and seizure without a warrant lawful."). See also Looney, 293 Ga. App. at 642.

Oral motion to suppress ineffective in Georgia under OCGA § 17-5-30. Nelson v. State, 2010 Ga. App. LEXIS 652 (July 8, 2010).

Officers noticed that defendant appeared to the guy wanted in an arrest warrant for domestic violence. They ran the license plate of this motorcycle, and it came up belonging to another vehicle, a crime. The plain view doctrine supported the seizure of the license plate and the towing of the vehicle, and a lawful inventory led to a gun. United States v. Sanchez, 2010 U.S. App. LEXIS 14016 (1st Cir. July 9, 2010).*

Oregon explains Randolph, Matlock, and Rodriguez in detail where the objector was removed from the scene. His objection continues. State v. Caster, 2010 Ore. App. LEXIS 731 (July 7, 2010):

Randolph is best viewed not as an “exception” to co-occupant consent cases like Matlock and Rodriguez, but rather as an illustration of the ordinary rule that warrantless searches are unauthorized. That is, Randolph is properly understood as a case in which the Court was unable to find, as it had in Matlock and Rodriguez, an exception to the warrant requirement. In determining whether the circumstances merited a departure from the ordinary rule, the Court explained that the “constant element” in assessing whether a warrantless entry is reasonable based on the co-occupant's consent is “the great significance given to widely shared social expectations.” 547 US at 111. The Court ultimately concluded that police cannot reasonably rely on a co-occupant’s consent in the face of an express, “at-the-door” objection, because there is ordinarily “no societal understanding of superior and inferior” as between the rights of co-occupants. 547 US at 114. Such is the case, according to the Court, “whether the issue is the color of the curtains or invitations to outsiders.” Id.

Thus, the question before us is whether some different societal understanding obtains once the objecting tenant has been arrested. That is, does it somehow become “reasonable” under the Fourth Amendment for police to ignore a tenant's earlier objection once that tenant is arrested? We are not persuaded that it does.

Being ordered out of the car at gun point was a seizure. “Again, Reinhart gave no indication that he was armed or dangerous. Nevertheless, with the laser sight of Deputy Coney’s gun prominently fixed on him, Reinhart was ordered first to kneel with his hands behind his head for a period and then lie face down on the ground for an additional period of time while waiting for the second police officer to arrive. Reinhart was then handcuffed before he was searched twice. We believe that a reasonable person in Reinhart's position would not have believed himself to be free to leave but instead would have considered his freedom of movement to have been restrained to the degree associated with a formal arrest. ... [¶] While we are mindful of the significant danger faced by police officers during traffic stops, we must balance the interests of officer safety with the privacy interests protected by the Fourth Amendment in requiring law enforcement to use the least intrusive means necessary to investigate a traffic stop.” Reinhart v. State, 2010 Ind. App. LEXIS 1207 (July 9, 2010).* (The only thing that makes no sense here is the state’s argument that this was not a seizure.).

An individual in a house made statements that supported the need for a protective sweep (“[I]t wasn’t us with the gun, it wasn’t us with the gun.”), and it was valid under Buie. Taylor v. State, 2010 Ind. App. LEXIS 1209 (July 9, 2010).*

On rehearing from Bush v. State, 925 N.E.2d 787 (Ind. App. 2010) (not precedental), the state was found to have changed its original theory, not the defendant. The state waived Gant. Bush v. State, 2010 Ind. App. LEXIS 1153 (July 6, 2010)*:

In its petition for rehearing, the State correctly points out that this court cannot reverse on issues raised sua sponte unless the grounds for reversal constitute fundamental error. .... However, given the parties' arguments as discussed above, we do not regard the reasonableness of Bush's detention and the canine sniff of his automobile as an issue raised sua sponte. The State, by not responding in its brief to Bush's contentions regarding Gant and instead focusing its Fourth Amendment argument on the canine sniff as the basis for the warrantless search, impliedly consented to litigating this case on the grounds addressed in our original opinion. It is too late for the State to switch course and insist the warrantless search issue is properly framed only in terms of whether the search was valid under Gant.1 ....

1 The State's petition for rehearing does not argue the search of Bush's automobile was valid under Gant.

State's argument that defendant had constructive possession of drugs in his girlfriend's purse came really close to a virtual concession that he, then, would have standing to challenge the search of her purse because of his alleged control over it. The issue was purely possession based on his having possession of the drugs "just prior" to the search, but the court found it to be speculative. State v. Daniels, No. S057832 (Ore. July 9, 2010):

In the alternative, the state contends that defendant had constructive possession of the methamphetamine in Perdune's bag. The concept of constructive possession broadens the scope of the crime of possession beyond physical control. State v. Casey, 346 Or 54, 60, 203 P3d 202 (2009). In accordance with that concept, under ORS 161.015(9), "possess" means not only physical possession, but "otherwise exercis[ing] dominion or control over property."

The state contends that the jury could have found that defendant exercised dominion or control of the methamphetamine on September 21, 2006, because he shared control of it with Perdune. The state relies on the same circumstances outlined above: defendant was a drug dealer and user; defendant and Perdune were in a romantic relationship; and Perdune's bag was located in defendant's bedroom. Accordingly, the state contends that "it is likely that the drugs were available for defendant's use, and that he, therefore, constructively possessed them." (Emphasis added.)

We reject the state's argument for two reasons. First, proximity to property owned by a social guest does not establish that the host exercises dominion or control over that property. Second, the facts did not permit a reasonable inference that Perdune was more than defendant's social guest.

Again, standing was not the issue here, but defense lawyers generally should watch for state arguments trying to show possession that can amount to virtual admissions of standing. (Few prosecutors read this website, so don't worry about that.)

Random searches of prison employees’ vehicles in prison parking lots because of community custody inmates allegedly having access to cars was not subject to summary judgment for the state in an employee’s Fourth Amendment claim. There are fact disputes on the reasonableness of the search. True v. Nebraska, 2010 U.S. App. LEXIS 14007 (8th Cir. July 9, 2010):

The location of a parking lot and the circumstances of inmate access are relevant to the "interests of the correctional institution in maintaining security"; a lot outside the confines of the prison has greater potential to be a source of contraband when prisoners have unsupervised access to it. Randomly searching such a lot may be an efficient means of preventing the smuggling of contraband. Therefore, balancing a prison employee's privacy interests against "the substantial government interests in the efficient and proper operation of the workplace," specifically, the interests of the correctional institution in maintaining security, it is reasonable under all the circumstances to search, by "systematic random selection," employee vehicles in prison parking lots to which inmates have unsupervised access. [McDonell v. Hunter, 809 F.2d 1302, 1310 (8th Cir. 1987), an O'Connor-like analysis]

The Muskogee Creek Nation sued Oklahoma, inter alia, over enforcement by its tax collectors against Nation vehicles transporting cigarettes in the Nation which were stopped and searched. The Fourth Amendment claim is too generalized for injunctive relief and also subsumed within the Eleventh Amendment immunity of the state. Muskogee Creek Nation v. Okla. Tax Comm'n, 2010 U.S. App. LEXIS 14027 (10th Cir. July 9, 2010).*

NYS is allegedly using the National Guard to help investigate drug crimes. See NY National Guard Violate Posse Comitatus:

Reports from the Empire State indicate that the National Guard is assisting local law enforcement in Albany, that state's capital city, to search and seize weapons from citizens — an apparent violation of the Fourth Amendment and the Posse Comitatus Act.

The unique charter of the National Guard creates a force that is a "joint reserve component of the United States Army" and therefore it is proscribed from exercising police power (the exclusive province of the state and the municipalities thereof) except under the very limited circumstances set forth in the Constitution and the Posse Comitatus Act.

See also Prison Planet:

Yesterday we reported on how the New York National Guard is working with local law enforcement authorities to perform sophisticated scans of vehicles entering the New York area looking for guns and drugs, a program celebrated by local news station Fox 23, who today ran a part two on the Guard’s activities in the region.

The news clip lauds the fact that the National Guard are conducting surveillance flights over the area “looking for marijuana” using infrared cameras.

Remember when National Guard troops stood next to airport security after September 11th, 2001 with automatic weapons at the ready in a meaningless show of force? It turned out that the guns were unloaded. Was that legal or illegal under the Posse Comitatus Act? (It was really disconcerting. I was always afraid that some guy with a gun who was unhinged would open up on the airport passengers.)

The best legal resource: The Posse Comitatus Act: A Resource Guide. See also Rand.org.

Reading Miranda warnings does not turn a consensual stop into a seizure. Caldwell v. State, 2010 Fla. LEXIS 1115 (July 8, 2010), approving Caldwell v. State, 985 So. 2d 602 (Fla. 2d DCA 2008)* and rejecting Raysor v. State, 795 So. 2d 1071 (Fla. 4th DCA 2001).*

Court declines to decide whether a field sobriety test is a seizure since officer had probable cause at the time of the seizure. [Like you can refuse or get back in your car and drive off? You get arrested if you refuse or drive off.] “Based upon the indicia of intoxication, Officer Kirby had probable cause to arrest defendant for OVI when he advised defendant that he would arrest him if he refused to do the walk-and-turn test.” City of Columbus v. Bickis, 2010 Ohio 3208, 2010 Ohio App. LEXIS 2739 (10th Dist. July 8, 2010).*

Defendant sued his prison officials for subjecting his mother to ion scanning for drugs before her visits rather than strip searching her as a First Amendment free association claim. He did not have standing for such a claim. Johnson v. Miller, 2010 U.S. App. LEXIS 13936 (10th Cir. July 8, 2010) (unpublished)* (I'm sure she'd rather be subjected to an ion scan rather than a strip search.)

The use of a private software company to retrieve deleted images did not violate the Fourth Amendment. A law enforcement officer was not necessary at the time of the search, and their expertise made this reasonable. Also, defendant was permitted to file his motion to suppress after the motions deadline where the motion to dismiss was first denied and the defendant’s indictment was superseded. CI’s detailed description of images of apparent child pornography that he saw in defendant’s home supported issuance of the search warrant. United States v. Heggebo, 2010 U.S. Dist. LEXIS 67527 (N.D. Iowa July 7, 2010).*

Defendant’s email activities, while the last was 13 months before the search warrant, showed that the warrant was not stale and there was still probable cause to believe that child pornography was present. There is no requirement that the judge issuing the search warrant actually see the pictures unlike adult porn. The warrant for the entire premises was not overbroad, although others lived there. United States v. Rubinstein, 2010 U.S. Dist. LEXIS 67896 (S.D. Fla. June 23, 2010).*

Defendant was in a barbershop, and officers wanted him to come outside voluntarily if possible. The court concludes that the defendant was not arrested until he was handcuffed outside despite the officer being armed. The officer, of course, wanted to “control the situation” for safety reasons in case defendant panicked or attempted to struggle with the officers, but that intent was known to defendant. United States v. Wiggan, 2010 U.S. Dist. LEXIS 67717 (D. Conn. July 8, 2010).*

Man on the street pointing was like an anonymous tipster. Garcia v. Commonwealth, 2010 Ky. App. LEXIS 116 (June 25, 2010)*:

Although the pointing man in this case is similar to the two pointing individuals in the Kelly case [Commonwealth v. Kelly, 180 S.W.3d 474 (Ky. 2005)], there is nothing in the record that reflects that Officer May reasonably believed that he had face-to-face contact with the actual tipster. In fact, the only testimony Officer May gave with respect to this issue was that he saw a man in a van pointing to the Appellants' vehicle and that he did not have a conversation with the pointing man. Additionally, the trial judge made the following finding at the suppression hearing: "We have no way of knowing if the person in the van was the anonymous caller. An argument could be made that maybe they [sic] were. But just as likely, maybe it wasn't." Further, unlike the tipsters in Kelly who identified their place of employment, the tipster in this case did not provide any identifying information. Accordingly, the tip at issue in this appeal was not from an identifiable citizen informant.

Red rejection sticker for state vehicle inspection was reasonable suspicion for a stop. Commonwealth v. Rivas, 2010 Mass. App. LEXIS 898 (July 6, 2010).*

While the trunk of defendant’s rental car could not be searched incident to arrest, inevitable discovery saved this search as an inventory. It could have been done as an inventory, and it appeared to be investigatory, but that’s not enough for inevitable discovery. United States v. Thompson-Bey, 2010 U.S. Dist. LEXIS 67181 (E.D. Tenn. January 12, 2010)*:

Even if the officers could properly search the passenger compartment of the car for evidence relating to the Defendant’s arrest on drug charges, they could not search the trunk of the car pursuant to the search incident to arrest exception. The line of cases governing the search incident to arrest exception, beginning with Chimel v. California, 395 U.S. 752 (1969), permit officers to “search incident to arrest only the space within an arrestee’s ‘immediate control,’ meaning ‘the area from within which he might gain possession of a weapon or destructible evidence.’” Gant, 129 S. Ct. at 1714, 1716 (quoting Chimel, 395 U.S. at 763)). “That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.” Gant, 129 S. Ct. at 1716. The trunk of the vehicle is not a place within the arrestee’s immediate control.

. . .

In the present case, Trooper Robe’s decision to search the Defendant’s rental car was not the result of negligence but, instead, was the result of his accurate determination that the inventory policy required him to impound the car because the passengers could not legally take custody of it. Although Trooper Robe’s testimony suggests that the department intended to use the inventory policy to perform searches that would no longer be justified incident to the suspect’s arrest in the wake of the Gant decision, neither that testimony nor Trooper Robe’s conduct reveal that inventory searches were being conducted when they were not permitted by the inventory policy. Accordingly, the Court finds no bad faith on the part of law enforcement. The Court finds that the exclusionary rule should not be applied in this case but questions whether Herring, which turns upon police negligence, applies. Instead, the Court finds, as discussed in the previous section, that the exclusionary rule should not be applied because the evidence in question would have been inevitably discovered in an inventory search subsequent to the impoundment of the rental car. See Williams, 467 U.S. at 444 (questioning the applicability of the exclusionary rule when the evidence “ultimately or inevitably would have been discovered by lawful means”). The Court recommends that the defendant's motion to suppress evidence [Doc. 115] be denied.

Court’s [mild and virtually meaningless] admonition to jury in a death penalty case to disregard prosecutor’s opening statement comment that defendant refused to consent to a search that opening statements are not evidence was sufficient to cure any error. People v. Tate, 2010 Cal. LEXIS 6548 (July 8, 2010)*:

Assuming, as defendant contends, that the prosecutor committed misconduct by commenting on defendant’s exercise of his Fourth Amendment right to refuse consent to a search and by arguing evidence that would be inadmissible at trial, the court’s response was sufficient to resolve the problem. The court immediately “asked” – i.e., politely admonished – the jury to disregard the argument, and later instructed the jury that “[s]tatements made by attorneys during the trial are not evidence.”

So lame.

Defendant was stopped [in a classic Terry stop] casing a check cashing store to rob it. An outstanding warrant was found. The search of the backpack was not justified by the search incident doctrine, but it was justified as an inventory under a lawful arrest. Motion to suppress denied. United States v. Matthews, 2010 U.S. Dist. LEXIS 66925 (E.D. Pa. July 1, 2010).*

Defendant’s continued stop lacked any reasonable suspicion, and the search was suppressed. Nervousness alone is not enough. King v. State, 2010 Md. App. LEXIS 111 (July 7, 2010)*:

Lacking here, however, is any reasonable articulable suspicion that the occupants of the car were engaged in any criminal activity. Thus, the seizure was not reasonable. After conducting illuminated visual sweeps of the vehicle by search light and flashlight, Officer Chindblom observed no indication of criminal activity. Conversations with the four occupants revealed nothing constituting articulable suspicion of criminal activity. Neither McBride’s nor King’s perspiration or nervous appearance, alone, was enough to suggest criminal wrongdoing. [citation omitted] The officer did not smell any odor of illicit drugs. He did not observe any drug paraphernalia or, prior to the seizures of the sedan’s occupants, any weapons. A license check did not return anything unusual. Continued questioning merely produced multiple assertions that the occupants were not engaged in illegal activity.

This police-citizen interaction morphed from a legal encounter that was properly concluded into a second “stop” that was not justified by reasonable articulable suspicion. The Fourth Amendment violation occurred prior to McBride’s exiting the vehicle and the discovery of the gun. The State does not argue that the later voluntary consent to a search of the car cured the prior violation. The suppression motion was improperly denied.

Applying Rochin’s shocking the conscience test, the arrest of the plaintiff wasn’t. Fourth Amendment reasonableness discussed but not applied on these facts. Smith v. Bortner, 2010 Md. App. LEXIS 112 (July 7, 2010).*

Officers had exigent circumstances for an entry. [With all the laboring to find justification, the fact of “hostages” one would think would be enough.] Also, exigent circumstances were not manufactured. United States v. Flores-Castaneda, 2010 U.S. App. LEXIS 13786 (5th Cir. June 28, 2010) (unpublished):*

In this case, agents testified that (1) a cell phone associated with the alien smugglers was inside the residence, (2) alien smugglers generally employ guns in their trade; (3) after the agents knocked on the door, they heard movement inside but Flores-Castaneda did not open the door for approximately two minutes, which seemed long to the officers; and (4) a man inside the residence spotted the agents, turned, and ran back into the interior of the house despite the agent's request for the man to return to the door. The agent who entered the house believed that the man was likely running to get a gun. The district court credited this testimony and found that the officers and hostages were in imminent danger, which danger justified the warrantless entry. This finding is not clearly erroneous.

Plaintiff’s Fourth Amendment case was objectively frivolous after plaintiff’s deposition, and he was responsible for defendant’s attorney’s fees. The case is remanded for consideration of whether fees are awarded under 28 U.S.C. § 1927 or 42 U.S.C. § 1988, and whether plaintiff’s counsel is also responsible for them. Santhuff v. Seitz, 2010 U.S. App. LEXIS 13783 (11th Cir. July 6, 2010) (unpublished).*

Defense counsel was not ineffective for not forecasting Gant under which defendant might well have prevailed. Hoskins v. State, 2010 Ida. App. LEXIS 53 (July 2, 2010)*:

It appears that if the standards announced in Gant were applied, a suppression motion might have merit in Hoskins' case. That does not mean, however, that Hoskins has shown that he received ineffective assistance of counsel. The Sixth Amendment entitles criminal defendants to reasonably competent counsel, but not perfect or prescient counsel. ... [¶] Despite his protests to the contrary, Hoskins is asking this Court to hold his defense counsel deficient for failing to anticipate future developments in the law. The constitutional standard for effective assistance of counsel does not demand such prescience. Accordingly, we agree with the district court's assessment that Hoskins' claim for ineffective assistance of counsel is without merit.

Officer reasonably believed the defendant was driving on a “public road” not a private street when he stopped defendant, so the stop was valid. State v. Hopper, 2010 N.C. App. LEXIS 1156 (July 6, 2010).*

“[T]he closely regulated business exception permitted a warrantless administrative inspection of certain areas of the tractor trailer, but the search turned unlawful when it progressed into unregulated areas without the exigent circumstances required by State v. Pena-Flores, 198 N.J. 6, 28, 965 A.2d 114 (2009). We reverse the order denying the suppression of evidence ....” State v. Pompa, 2010 N.J. Super. LEXIS 114 (July 2, 2010):

For decades, tractor trailers have been subject to extensive federal regulation. See 49 C.F.R. §§ 300-399; see also N.J.S.A. 39:5B-32; N.J.A.C. 13:60-2.1. These regulations govern a vast array of topics, including, among other things: hours of service, 49 C.F.R. § 395; necessary parts and accessories, 49 C.F.R. § 393; driver qualifications, 49 C.F.R. § 391; record retention, 49 C.F.R. § 379; and licensing, 49 C.F.R. § 383. The regulations also purport to authorize warrantless roadside inspections of commercial vehicles to ensure compliance with safety standards. 49 C.F.R. § 396.9.

These regulations contain specifications for sleeper cabins. For example, the regulations contain length, width, and shape requirements for the sleeper cabin and demand that the cabin have at least two access points so that emergency exits are not unduly hindered. 49 C.F.R. § 393.76. The regulations impose bedding requirements and provide that all sleeper cabins not contained within the driver compartment must contain communication devices between the sleeper cabin and the cockpit. Ibid. Thus, truckers may reasonably anticipate administrative inspections for the purpose of ensuring compliance.

. . .

The circumstances presented here differ because the Trooper's search was not concerned with the trailer portion of the vehicle, but focused instead on the sleeper cabin and, even more specifically, a closet within the sleeper cabin and closed containers within that closet. These areas were certainly more private than a cargo hold or, as in Hewitt, a secret compartment attached to a cargo hold. Accord United States v. Knight, 306 F.3d 534, 535 (8th Cir. 2002) (concluding that the closely regulated business exception does not permit the opening of a truck driver's briefcase without a warrant during an administrative inspection).

See Law.com: More Than a Whiff of Weed Needed for Warrantless Truck Search, N.J. Court Rules.

911 call of a person stuffed in a trunk in Las Vegas in summer was reasonable suspicion because it meant a possible kidnaping. United States v. Chacon, 2009 U.S. Dist. LEXIS 128175 (D. Nev. March 23, 2009):

The touchstone of the Fourth Amendment is reasonableness. Terry-Crespo, 356 F.3d a 1176. Adults do not normally get into automobile trunks voluntarily. They especially do not engage in such conduct on a summer day in Las Vegas, Nevada. The 911 caller's information that he had just seen a man put a woman in the trunk of a Cadillac therefore clearly raised reasonable suspicion that a kidnaping crime was in progress which required an immediate police response before the vehicle disappeared into traffic or the woman reported to be in the trunk suffered injury or further injury.

Gant retroactively applies, and this USMJ would apply the good faith exception. United States v. Amos, 2010 U.S. Dist. LEXIS 66929 (E.D. Tenn. June 9, 2010).*

Entry to retrieve a recently fired gun was either by consent from one with apparent authority or by exigent circumstances. United States v. Skeen, 2010 U.S. Dist. LEXIS 66746 (E.D. Tenn. June 10, 2010).*

I found this insidious practice in Oakland today from New American, Oakland Officials Get SMART to Circumvent the Constitution from East Bay Express's Oakland Police Search Without Warrants by Alex Weber, summarized as follows:

In a little-known city program that critics say may be unconstitutional, cops join fire and building inspectors as they enter homes without a warrant and then arrest residents if they find anything illegal.

The first two paragraphs:

On a gloomy recent morning in West Oakland, tenants at the David Gray Building — or, Off-Ramp Studios, as everyone who lives there calls it — stood in the hallways outside their lofts. They gathered around their doors in nervous clusters and spoke in hushed tones, wondering aloud whether they should head to work or stay and observe while two Oakland police officers, two building services code enforcers, a fire inspector, and three property management representatives entered all of their units one by one.

Traditionally the entire procedure would have required a search warrant. But on this day, the group of cops and city officials were operating under a little-known Oakland city program, called "SMART" — Specialized Multi-Agency Response Team — that some legal experts say may be unconstitutional. That's because they enter people's homes without consent or a warrant.

This isn't even close to constitutional nor in good faith. King George's messengers* would be proud of what they wrought.

__________

* So referred to in Entick v. Carrington, 19 Howell’s St. Tr. 1029, 95 Eng. Rep. 807 (K.B. 1765), and Leach v. Three of the King's Messengers, 19 Howell's St. Tr. 1001, 97 Eng. Rep. 1074 (K.B. 1765) (sometimes called Leach v. Money but not by SCOTUS, see United States v. United States District Court (Keith), 407 U.S. 297, 316 (1972)).

The use of deadly force was objectively reasonable here as a matter of law under the Fourth Amendment. Plaintiff’s decedent was shot by an officer in an attempt to arrest after a PIT maneuver when one officer thought that another had been run over and decedent was still driving recklessly at them. The dissent believed there were still issues for trial. Wilkinson v. Torres, 09-35098 (9th Cir. July 6, 2010) (2-1):

Here, Torres did not violate a constitutional right [in shooting plaintiff’s decedent]. Even construing the facts in the light most favorable to Plaintiffs, a reasonable officer in Torres’ position had probable cause to believe that Wilkinson posed an immediate threat to the safety of Key and himself. When he fired the shots, Torres was standing in a slippery yard with a minivan accelerating around him. The driver of the minivan had failed to yield to police sirens as well as to direct commands to put his hands up and to stop the vehicle. Cf. Brosseau, 543 U.S. at 200 (finding that “shoot[ing] a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight” was not a clearly established Fourth Amendment violation). The minivan was accelerating, its tires were spinning, mud was flying up, and a fellow officer was nearby either lying fallen on the ground or standing but disoriented. The situation had quickly turned from one involving a crashed vehicle to one in which the driver of a moving vehicle, ignoring police commands, attempted to accelerate within close quarters of two officers on foot. In this “tense, uncertain, and rapidly evolving” situation, a reasonable officer had probable cause to believe that the threat to safety justified the use of deadly force.

DNA Sample Bill Passes Despite 4th Amendment Concerns from Civitas Review Online:

The United States Constitution was discussed on the floor of the House of Representatives yesterday with regards to HB1403, which passed 92-23. Previously, I posted a debate between another intern and myself about the bill on the Civitas website. HB1403, entitled “Collect DNA Sample on Arrest,” was objected to on Fourth Amendment grounds as numerous legislators claimed that using a cheek swab to obtain DNA from individuals arrested for certain serious crimes was an “unreasonable search” that compromised the personal privacy of innocent people. The objection to the bill is a reasonable one, but bill supporters claim to have sufficient safeguards in the bill to ensure against privacy concerns.

What was most interesting yesterday was the discussion of the Constitution. It was nice to hear legislators discuss the constitutional limits on government power. If our legislators discussed the constitutionality of all legislation – both in Raleigh and in Washington, D.C. – it’s possible We The People would think more highly of them. ...

HB1403 does not apply to all crimes--just more serious ones, and then after a showing of probable cause:

This section shall apply to a person arrested for violating any one of the following offenses in Chapter 14 of the General Statutes:
(1) G.S. 14-17. First and Second Degree Murder.
(2) G.S. 14-18. Manslaughter.
(3) Any offense in Article 7A, Rape and Other Sex Offenses.
(4) Any offense in Article 10, Kidnapping and Abduction, or Article 10A, Human Trafficking.
(5) Any offense in Article 14, Burglary.
(6) Any offense which would require the person to register under the provisions of Article 27A of Chapter 14 of the General Statutes, Sex Offender and Public Protection Registration Programs.
(7) G.S. 14-196.3, Cyberstalking.
(8) G.S. 14-277.3A, Stalking

On SSRN: Police, Vehicles & the Fourth Amendment–-Part Two: Maryland Cases by Byron L. Warnken of the University of Baltimore School of Law, published in Trooper Magazine 2006.

Walking late at night in an area known for burglaries, and defendant’s grabbing at his waist as the officer drove by was not reasonable suspicion. Overhead lights and a direction to “come over here” is a seizure. Crain v. State, 2010 Tex. Crim. App. LEXIS 794 (June 30, 2010) (6-3):

Neither time of day nor level of criminal activity in an area are suspicious in and of themselves; the two are merely factors to be considered in making a determination of reasonable suspicion. Neither fact proves that the suspect is engaged in any sort of criminal offense. In order for these facts to affect the assessment of the suspect's actions, the surroundings must raise a suspicion that the particular person is engaged in illegal behavior. Griffin did not offer any testimony that might have raised his suspicion that the appellant was engaged in criminal activity before he approached the appellant and smelled marihuana on him. We find no other indicia of reasonable suspicion on the record before us.

Defendant’s wife consented to the search. She consented because (1) she didn’t think anything would be found and (2) she was told that they would have her leave in the cold while the officers procured a warrant. She had been arrested before, and it was voluntary. United States v. Short, 2010 U.S. App. LEXIS 13648 (4th Cir. July 2, 2010) (unpublished).*

Officers had an arrest warrant for one Hernandez, but they had only an anonymous tip where he would be found, and that was insufficient basis for an entry into defendant’s apartment, since an anonymous tip would not support a Terry stop either. Payton requires a “reasonable belief” that the suspect is home before an entry is permitted. The cases are divided whether that is “reasonable suspicion” or more, like just a little less than probable cause. This court does not have to decide which applies because the state cannot satisfy even the lowest standard of reasonable suspicion. The entry violated the Fourth Amendment and the Indiana Constitution, and the evidence of an unrelated crime is suppressed. Duran v. State, 2010 Ind. LEXIS 408 (June 30, 2010):

The next issue is what the officers must reasonably believe. When the home that officers seek to enter is not that of the subject of the arrest warrant, officers must obtain a search warrant absent exigent circumstances. Steagald v. United States, .... Most jurisdictions require that the police have a reasonable belief that the dwelling is the residence of the subject of the warrant and that the subject is present at the time the officers attempt to enter on authority of an arrest warrant. ...

It is well established that a reasonable belief that a suspect lives in an apartment building does not give the police the authority to enter every apartment in that building. Flaherty v. State, 443 N.E.2d 340, 343 (Ind. Ct. App. 1982); Thompson v. State, 198 Ind. 496, 497, 154 N.E. 278, 279 (1926). Residents and owners of units in condominium and apartment buildings enjoy the same Fourth Amendment protection as people who live in single-family homes. This is equally true of large complexes and "very small" apartment buildings. The officers therefore required a reasonable belief that Hernandez resided behind the green door, not merely a reasonable belief that he resided somewhere in 2001 Broadway. ...

Duran argues that even under the more relaxed view of "reasonable belief," equating it to reasonable suspicion required for a Terry stop, the officers' entry into his apartment violated the Fourth Amendment. The officers had reason to believe that Hernandez was residing in the apartment building at 2001 Broadway based on Hernandez's mother's report that he was living with her sister in that general area, and Maldonado's having personally dropped Hernandez off with his possessions outside the building a few days earlier and seeing an older woman helping him into the building. Hernandez was on crutches and in a full leg cast, so it was reasonable to believe he had not relocated his residence in the few days since his ride home from the hospital.

Despite their reasonable belief as to Hernandez's residence in the building, the police here lacked even reasonable suspicion that his residence was behind the green door. An anonymous tip, standing alone, does not justify a Terry stop. Alabama v. White, .... The officers had only statements of an unidentified man on the street who may or may not have had any connection to the apartment building. This anonymous informant did not enjoy the credibility that is afforded to one who is identified and is thereby exposed to potential civil or even criminal consequences for false information.

Defendant consented to the taking of his DNA in a sex crime prosecution. There was a court order for taking the DNA in the event he refused, but he never knew about it until later. The validity of the court order is thus irrelevant. State v. Morgan, 2010 La. App. LEXIS 1014 (2d Cir. April 14, 2010).*

The officer was in defendant’s apartment by consent. A woman appeared from a back room and retreated inside. The officer could follow, and evidence was found in a valid plain view. In appellate review of a motion to suppress, the court can consider the trial evidence as well. State v. Gipson, 34 So. 3d 1090 (La. App. 2d Cir. 2010).

“[T]here is no constitutional requirement that a police officer issue a traffic citation; the police officer can pull a car over if he simply observes that car committing a traffic infraction.” Here, it was also reasonable for the officer to conclude that defendant’s DL was still likely suspended for a DUI. United States v. Woods, 2010 U.S. App. LEXIS 13642 (11th Cir. July 2, 2010) (unpublished).*

Defendant consented to the search of his car. Alternatively, the officer had probable cause from smelling marijuana. Alternatively, the fact defendant’s car was missing a license plate required towing and an inventory under Kansas City PD procedure. United States v. Wiggins, 2010 U.S. Dist. LEXIS 65617 (W.D. Mo. June 7, 2010).*

The entry into defendant’s house to investigate a home invasion robbery by consent was neither by trickery or deception. Recognizing that “[i]f deception reaches the point of coercion, it can vitiate a consent,” the officers knew that the place was a crack house. Defendant opened a drawer to get receipts for the stolen stuff, and inside was a gun he was allegedly loaned after the robbery for protection. He was a felon and was arrested. The entry was valid. United States v. Dickerson, 2010 U.S. Dist. LEXIS 65575 (E.D. Mo. June 2, 2010).*

Today is the 26th anniversary of United States v. Leon and the good faith exception.

When I remembered that this morning, I had a flash back to the last CLE I did for prosecutors about 1990 where the speaker after me referred to July 5th as "Independence Day from the Fourth Amendment." There was rousing applause from the audience. This was in Memphis, and it is a telling commentary on the thinking of law enforcement and the Fourth Amendment.

Perhaps it is fitting that the good faith exception was created in 1984.

As I stated two days ago, "Close only applies in horseshoes, nuclear war, and the good faith exception." The good faith exception to the exclusionary rule is judicial recognition of "close enough for government work."

Because of the “combustible nature” of domestic disturbance calls, the officer could reasonably enter the house to make an assessment of the potential threat to the caller. United States v. Lauderdale, 2010 U.S. Dist. LEXIS 65674 (S.D. Ohio June 9, 2010)*:

The "risk-of-danger" exception to the requirement that a warrant be obtained before searching a home applies in this case. Officers Gross and Blackburn were responding to a peace officer assistance call made by Rogers for assistance in gathering her belongings. In their experience, peace officer assistance calls typically involve domestic disputes which are inherently unpredictable. Further, police protocol dictates that police officers responding to this type of call make a face-to-face contact with the caller to assess any potential threat to the caller.

City zoning ordinance that limited the number of undergraduate students that could live in a building did not invade privacy because there was no enforcement power in the zoning commission. Rosenberg v. City of Boston & Boston Zoning Comm'n, 18 LCR 253, 2010 Mass. LCR LEXIS 50 (Mass. Land Ct. May 25, 2010).*

The smell of Bondo and fresh paint on a vehicle with unusual travel plans was reasonable suspicion. United States v. Garcia-Aleman, 2010 U.S. Dist. LEXIS 65333 (E.D. Tex. June 9, 2010).*

A roadblock set up to catch a fleeing bank robber was constitutional, and the court denied subpoenas on the constitutional question before the suppression hearing. “See City of Indianapolis v. Edmond, 531 U.S. 32. 44 (2000) ('[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to ... catch a dangerous criminal who is likely to flee by way of a particular route.’).” At the suppression hearing, the defendant tried to show the traffic backup made it unconstitutional, but the court finds that traffic backing up for 10 miles with a 20-30 minute delay alone does not make it so. Merrett v. Dempsey, 1993 WL 774466 (N.D. Fla. Apr. 2, 1993), aff'd, Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995). The tracking device gave probable cause. United States v. Rodger, 2010 U.S. Dist. LEXIS 65850 (S.D. Ga. April 16, 2010):

[T]his exception emphasized by the Supreme Court in Edmond is applicable to the facts of this case. Indeed, an armed robbery suspect is no doubt a dangerous criminal, and the record establishes that police knew that the suspect was fleeing west on I-20 based on the signal from the electronic tracking device. See United States v. Abbott, 265 Fed. App'x 307, 309 (5th Cir. 2008) (finding that a roadblock set up to catch a bank robber was constitutional where, inter alia, the defendant's vehicle was located in dense traffic where electronic tracking devices embedded in stolen money suggested the car was to be found). The fact that Defendant matched the description of the robbery suspect and the presence of the electronic tracking device in his vehicle also undermines Defendant's argument that police did not possess "individualized suspicion" to investigate him further.

Defendant’s vehicle with three passengers was stopped for a traffic offense, and the officer saw what appeared to be cocaine in the driver’s hand. That enabled the officer to search the car, and he could get all four out of the car and separate them for safety. State v. Flowers, 2010 Ohio 2952, 2010 Ohio App. LEXIS 2451 (11th Dist. June 25, 2010).*

Drug dog going around the defendant’s car while he was stopped for a traffic offense was not unreasonable. State v. Meredith, 2010 Ohio 3121, 2010 Ohio App. LEXIS 2617 (5th Dist. July 1, 2010).*

The court finds defendant’s afterthought testimony that he told the officers that they could not search his place before his cotenant agreed so he could rely on Randolph to be incredible. United States v. Penlton, 2010 U.S. Dist. LEXIS 65750 (E.D. Wis. May 20, 2010)*:

A significant fact that is not captured in the transcript of this exchange is that between the court's question of whether the police said anything else, (denoted by an asterisk in the excerpt above), and Penlton beginning his response, there were, by the court's estimation, five full seconds of thought by Penlton. This substantial period of contemplation and deliberation was entirely inconsistent with the tempo and tenor of Penlton's other testimony. This suggests that once Penlton realized he had neglected the key component of his claim, he changed his testimony and included this refusal of consent in place of what had previously been merely a statement that it did not matter who was in the house. Such a seemingly conscious alteration of testimony is not indicative of truthfulness.

Truthout’s July 3d Restoring the Fourth Amendment: How We, the People, Can Win Over Washington is a thought provoking piece focusing on the Bush Administration’s hostility to the Fourth Amendment and the Obama Administration’s inability to change it. The article promotes citizen action to restore the Fourth Amendment.

But let’s step back to look at the larger picture of why the government does not now, nor ever has, respected the values of the Fourth Amendment.

We as a society have to change the government’s thinking about the Fourth Amendment. But, don’t blame Bush or Obama; blame yourself. If the government never has much respected the values of the Fourth Amendment, apparently “We the People,” the collective we, haven’t either.

It’s always the other guy’s privacy rights at issue, never yours. That short sighted thinking for the life of this country is what got us in this Constitutional mess. The rights of every citizen are protected when the rights of any one of us are. This is the boiling frog syndrome in action–what little rights we have we don’t even try to protect because we don’t see them slipping away when it is always the other guy who’s rights are violated.

We always have had “ends justifies the means” policy of government and law enforcement that has been around as long as there has been government desire to monitor its citizens. George W. Bush just capitalized on fear to take away our liberties.

Government hostility to individual privacy is endemic for government employees and officials, and it long pre-dates the Fourth Amendment. The general warrants used by the King of England to collect customs taxes here in the colonies before the Revolution were the impetus for the adoption of the Fourth Amendment, two years after the Constitution.

The Founding Fathers understood the threats of general warrants and writs of assistance, and that is why we have a Fourth Amendment. Making government respect the Fourth Amendment is the rub. We can make them say the words, but, as yet, we cannot make them do it.

How was George W. Bush fundamentally any different than King George in 1761?

Since the exclusionary rule was effectively recognized (well, sort of) in 1886 in Boyd v. United States, government and its law enforcement arm have been constantly trying to find ways to nullify it, and the courts are complicit and let them. We have judges appointed and elected because they promise to be ‟law and order,” like Chief Justice Warren E. Burger, appointed by President Nixon to promote that agenda because Nixon thought the Supreme Court was ‟seriously hamstringing the peace forces in our society and strengthening the criminal forces.”

With cases like the Court’s 1967's recognition of the “reasonable expectation of privacy” in Katz v. United States? Today, we take this concept for granted. Richard Nixon apparently hated it that government couldn’t just listen in on Katz’s call from a telephone booth, and a bookie’s case became harder to prosecute.

Burger early made it clear in his opinions, like in Bivens first suggesting the good faith exception in 1971, that he despised the Fourth Amendment’s exclusionary rule. After three more quick Nixon appointments to the Court, what little progress that had been made under the Fourth Amendment was in serious trouble.

American law enforcement officers and politicians only respect the Fourth Amendment and individual privacy when made to, or maybe embarrassed into it. The courts rule case-by-case, but even a finding the government violated a citizen’s rights does little or nothing to alter its behavior. What happens the next time? Likely the same thing.

So, Nixon, too, was capitalizing on fear to take away civil liberties–demonize the Constitution by demonizing some of the beneficiaries. It always works.

And that’s exactly how government and ninety percent of all politicians think: Fear of the other guy is how most politicians believe you get elected; not that you can do a better job.

And the voters fall for it. Politicians know that people collectively are dumb. If a judge upholds the Fourth Amendment against the government, Republicans immediately call that judge “activist,” their political epithet.

Upholding the Constitution is being an “activist”? What country to you think this is?

To get government to respect the Fourth Amendment as a government policy will take a seismic shift in American thinking. The civil libertarians couldn’t do it, President Obama can’t do it, and the Tea Partiers and government won’t do it. I don’t see Americans today doing it because individual privacy is not a “hot button” issue for anybody in 2010 except for the person who just lost his or her privacy. Apparently the right to possess a gun is more important and fundamental a right to the Supreme Court and some people than the right to be free from unreasonable searches and seizures. My gun is my gun; I don’t care about your privacy.

It is folly to think that any one person can change any of this. It is the responsibility of every citizen in this Nation to hold local, state, and the federal government accountable under the Fourth Amendment. When they violate it, tell them or make them accountable in civil or criminal cases, but litigation takes too long.

You can complain to their superiors. But don’t hold your breath. Police departments might discipline an officer for an egregious violation of the Fourth Amendment, but not the small ones. As Ninth Circuit Judge Alex Kozinski wrote in 1989,

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.

Kozinksi was channeling Justice Brandeis’s words dissenting in United States v. Olmstead, 85 years ago last week that still ring true today:

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.

The Bill of Rights lives case by case; whether it is the drug test of the railroad employee or unemployment benefits recipient, spying on a student at home through the student’s laptop’s camera, or looking at the messages on a government owned pager. Government thinking probably won’t change without a court telling it that it was wrong, and even then, they’ll try to find a way around it. Count on nothing with the Roberts Court. He's Warren Burger with a brain.

It is the nature of government to thwart individual liberties, and the Founding Fathers thought the United States would be different. They were only partly right. If the Tea Partiers would ever take up the mantel of the Fourth Amendment, I might even join them. But, when one is a “constitutionalist” for only part of the Constitution in a way that makes me believe that person never read it, well, you lost me.

Yes, the Bill of Rights was a 1791 afterthought to our Constitution, and to far too many it still is.

The question is: how do we change our collective thinking?

Defendant’s consent to search his motel room was general and unlimited. He gave over the key to the room. Defendant’s approach to consent here was essentially unworkable. United States v. Green, 2010 U.S. App. LEXIS 13544 (5th Cir. July 1, 2010) (unpublished)*:

By insisting that we consider only his nonspecific acquiescence in Officer Turrentine's statement that he would enter the motel room and retrieve Ms. Perkins from it, Green essentially urges us to adopt an artificially surgical approach to delimiting the outer bounds of consent. Such an approach cannot be squared with the reasonableness standard that our precedents have established for analyzing the scope of consent, especially when, as here, Green's actions so belie his claims.

Defendant’s Franks challenge fails. “[I]it is clear that Detectives Mounts and Friend had reasonable grounds to believe that the statements made in the affidavit were true” about defendant’s involvement in the crime. United States v. Jefferson, 2010 U.S. Dist. LEXIS 65673 (S.D. Ohio June 14, 2010).*

Defendant consented to the taking of his blood. He is charged with involuntary manslaughter on an Indian reservation. United States v. Dow, 2010 U.S. Dist. LEXIS 65375 (D. Minn. June 11, 2010).*

Choice of law question (Kansas where search occurred or Mississippi where the trial occurred) was essentially irrelevant where neither party argues in their briefs that the outcome would be different. There was probable cause for defendant’s arrest. Gillett v. State, 2010 Miss. LEXIS 337 (July 1, 2010).

Touching the fog line 16 times was reasonable suspicion for a stop. State v. Mohl, 2010 ND 120, 2010 N.D. LEXIS 118 (June 30, 2010).*

The stop of the defendant was justified by reasonable suspicion that he was involved in a murder. “The only police conduct that fairly may be characterized as coercive was the action undertaken by the officers in blocking the defendant's vehicle to ensure that he would not leave the area before they could speak to him. In light of the defendant's attempt to leave almost immediately after he pulled up to his house, we agree with the trial court that blocking the defendant’s vehicle likely was the most efficacious way to maintain the status quo so that the police could gain the defendant's attention.” State v. Courchesne, 2010 Conn. LEXIS 227 (June 15, 2010)* (argued March 19, 2008).

See "America was neither founded, nor freed, by the well-behaved," posted July 4, 2008.

See Thoughts on a Declaration from the NY Times on Friday.

Due to the part time patriots who suddenly discovered the Constitution, the Bill of Rights, and other founding documents only after the election of an African-American President, I must point out that I've been mentioning them here every July 4th since going online in 2003. "We the People" was always an important concept to this civil libertarian with the crush of civil liberties under the last President in the name of "national security," along with the 1775 Gadsden flag they stole.

My Gadsden has been in my office window, facing the street, since 2003. Now it has a disclaimer that it was a longstanding belief, been there for seven years, and is not just a political slogan of a part time patriot.

It shows how devalued any word can get through misuse and abuse. Share my views, and you're a patriot; don't and you're a Nazi, Socialist, Communist [pick one or more].

The stop of defendant’s car was without probable cause, despite his apparent lack of standing to challenge the search of the car. The CI gave hearsay information to him, and there was no observation by the officer of any criminality. People v Voner, 2010 NY Slip Op 5803, 2010 N.Y. App. Div. LEXIS 5734 (2d Dept. June 29, 2010):

Here, even assuming that McMahon's testimony that the confidential informant had supplied information leading to prior arrests was sufficient, standing alone, to establish the informant's reliability ..., the basis-of-knowledge prong of the Aguilar-Spinelli test was not satisfied. The informant never indicated to McMahon that the information he was supplying was based upon his personal knowledge or observations. Furthermore, the information was not so highly detailed, and McMahon's observations were not sufficiently corroborative of criminal activity, to support a reasonable belief that the informant's tip must have been based on firsthand observation .... McMahon first saw the defendant's vehicle approximately half a mile away from the reservation where the cigarettes had allegedly been purchased, and the thick black plastic bags used to transport the cigarettes were not of such a distinctive character that a trained police officer could readily determine that they contained untaxed cigarettes.

Arrest of a passenger for an outstanding trespass warrant did not justify a search incident of the car and there was no reason to believe there was any evidence of a crime or a weapon. State v. Afana, 2010 Wash. LEXIS 539 (July 1, 2010). Lexis overview:

Petitioner argued that the warrantless search of his car incident to the arrest of his passenger violated his constitutional rights. The trial court granted the motion to suppress, but the appellate court reversed. On review, the court reversed the appellate court's decision. While the warrant for petitioner's passenger's arrest gave a deputy a valid basis for arresting her, he had no reason to believe that the vehicle contained evidence of the crime of trespass, for which she was arrested, nor did the deputy have reason to believe that she posed a safety risk because she was already in custody at the time of the search. Just because petitioner, the driver, was unsecured at the time of the search, this did not justify the search. Thus, the deputy had no authority to search petitioner's vehicle, and the search violated Wash. Const. art. I, § 7. The court rejected the argument that the good faith exception was consistent with the court's past decisions. The court held that it was incompatible with the nearly categorical exclusionary rule under the constitution.

Pro se litigant wins his search claim that the officer had no justification to search his car. Gomez v. Markley, 2010 U.S. App. LEXIS 13591 (3d Cir. July 1, 2010) (unpublished)*:

Thus, if we accept the facts in the light most favorable to Gomez, we would consider that Officer Markley reasonably believed that Gomez was operating a vehicle with an expired registration and without inspection stickers and was driving with a suspended license. Furthermore Gomez had explained that the address on his license was outdated. These facts do not support a finding of probable cause to search the car. Even if we were to also accept that, at some point, Gomez began acting nervously, the facts are still not sufficient to support a finding as a matter of law that Officer Markley had probable cause to believe that there were drugs in the car before he commenced his search.

Exclusionary rule does not apply to revocation of federal supervised release, analogizing parole and probation revocation cases. United States v. Jimenez-Torres, 2010 U.S. Dist. LEXIS 65741 (D. P.R. June 30, 2010):

In his motion to suppress, Jimenez-Torres first attempts to distinguish his case by arguing that Scott is specifically about parole hearings and there is no parole in the federal system. See Docket No. 28 at page 5. The Defendant adds that different from parole proceedings, federal revocation proceedings are adversarial, and thus the exclusionary rule should apply therein. Id. at 4.

Faced with the same objection, the Fourth Circuit Court of Appeals noted that "parole and supervised release are 'analogous contexts.'" Armstrong, 187 F.3d at 394 (citing United States v. Woodrup, 86 F.3d 359, 361 (4th Cir.1996)) (holding exclusionary rule did not apply to federal supervised release revocation proceedings after drugs and weapons were discovered in defendant's car during routine traffic stop). Accordingly, the court in Armstrong found that "[a]lthough supervised release revocation proceedings, unlike parole revocation proceedings, do take place before a judge, they are characterized by the same 'flexibility' that the Supreme Court found significant in Scott." Armstrong, 187 F.3d at 394. See also Scott 524 U.S. at 365 ("The exclusionary rule, … , is incompatible with the traditionally flexible, administrative procedures of parole revocation).

Moreover, the District Court of Massachusetts, analyzing a similar inquiry to the one before this Court, stated that "[a]s the standards and interests involved are essentially the same in the parole, probation, and supervised release revocation contexts, the reasoning underlying cases concerning the admissibility of evidence in one type of hearing are applicable to the other two as well." Gravina, 906 F.Supp. at 53 n. 1 ....

Defendant’s drug deal on the street alone did not justify a search warrant for his home. And, this is “bare bones” for Leon’s purposes. People v. Lenyoun, 2010 Ill. App. LEXIS 641 (June 28, 2010) [case not yet on IL courts website]:

The unusual facts of the instant case fall far below the bar set by this court in Beck [which was a "close case"]. To uphold the second warrant in this case would undermine the sanctity of a citizen’s home “upon the mere commission of a crime and an affidavit of a law enforcement officer” warned against by the Beck court. Beck, 306 Ill. App. 3d at 181. More than the commission of a crime on the street while in a vehicle is required to justify opening up the defendant’s home to a search. Where the clear intent of the second warrant was to recover contraband, the sworn complaint for the search warrant must give rise to a reasonable inference that criminal activity was ongoing in the home itself. See People v. Cooke, 299 Ill. App. 3d 273, 279, 701 N.E.2d 526, 233 Ill. Dec. 676 (1998) (circuit court’s judgment suppressing evidence seized pursuant to a search warrant that resulted in charges of weapons possession by a felon and misdemeanor drug possession was reversed where confidential source observed a “‘long gun (shotgun or rifle)’” in the defendant’s residence and a handgun carried by the defendant, which made the search warrant at least partially valid). Here, as confirmed by the examination of Detective Viscioni at the good-faith hearing, nothing was ever observed connecting the defendant’s drug activity on the street to the defendant’s apartment. Nor does the State point us to any facts or circumstances set forth in the second complaint for a search warrant from which the issuing judge could independently determine probable cause that evidence of the defendant’s criminal activity was present in his apartment.

I suggest something more blunt than this court: The state's argument makes a mockery of the good faith exception because this is, to me, a complete abdication of responsibility by the issuing magistrate and the officer who drafted the affidavit for the house. This isn't even close. Other cases have found a sufficient nexus to the house from the addition of information in the affidavit that the house had the stash. Here, nothing.

"Close only applies in horseshoes, nuclear war, and the good faith exception." The good faith exception to the exclusionary rule is judicial recognition of "close enough for government work."

Search and seizure claim not Heck barred [Heck’s n. 7] arose at the time of the event, not prevailing in the case. Hall v. Elrod, 2010 U.S. Dist. LEXIS 65426 (W.D.Ark. February 1, 2010)*:

In this case, all actions that Hall alleges are unconstitutional stem from his arrest on August 27, 2004, and the report of the officers about the arrest. Hall's allegation about the officers' false testimony is based on the fact that at later court proceedings they offered testimony consistent with their report.

Hall's illegal search and seizure claims were not barred by Heck and the causes of action accrued on August 27, 2004. See e.g., Moore v. Sims, 200 F.3d 1170, 1171-72 (8th Cir. 2000)(noting footnote seven and concluding unlawful search and seizure claims are not barred by Heck); Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983)(cause of action for illegal search or seizure accrues when act occurs).

The affidavit for the search warrant had misstatements, but they dealt with the caliber and make of a gun and they were hardly material to the issuance of the search warrant. Also, inclusion of some omitted information was not material either. State v. Andersen, 2010 Minn. LEXIS 339 (June 30, 2010).*

The issue about whether a search warrant application was public or not was not material to the alibi defense in the case, so it could not be ineffective assistance to not raise it. Staunton v. State, 2010 Minn. LEXIS 347 (June 30, 2010).*

Search of defendant’s purse and clothing was justified by her conduct fleeing the police prior to her crash. State v. Gates, 2010 Iowa App. LEXIS 667 (June 30, 2010).*

While the officer did not have reasonable suspicion for entry into the house [or probable cause?], there was still consent from a person with apparent authority. He was also on probation. State v. Cosie, 2010 La. App. LEXIS 979 (5th Cir. June 29, 2010).*

The Key West PD got a phone call about a drug dealer in a car. Defendant was approached by four officers in the dark in a manner that indicated an investigatory stop was taking place. One officer drove his patrol car the wrong way on a one-way street and parked the car directly in front of defendant, pointing the car’s spotlight on him and the woman he was with. Another officer approached defendant on foot in a manner that indicated a sense of urgency. That method of approach and show of authority were akin to the threatening presence of several officers, and this was a Fourth Amendment seizure. Hill v. State, 2010 Fla. App. LEXIS 9560 (3d DCA June 30, 2010).*

Defendant’s speeding stop led to reasonable suspicion of DUI. State v. Prescott, 280 Neb. 96, 2010 Neb. LEXIS 76 (June 25, 2010).*

The search warrant here was issued with probable cause on the totality of circumstances. United States v. Lopez, 2010 U.S. Dist. LEXIS 64823 (D. Minn. June 11, 2010).*

USMJ’s findings that the officers would have applied for a search warrant other than finding drug ledgers taped to the wall of the defendant’s premises was supported by the evidence. This was on remand, and the government was free to raise the independent source doctrine for the first time on remand. United States v. Castellanos, 2010 U.S. App. LEXIS 13468 (8th Cir. July 1, 2010)*:

Although parties should present alternative arguments whenever sound strategy dictates, the government in this case was not required to anticipate every possible outcome on appeal and formulate a responsive argument for each alternative. "[T]he principle that a party who failed to raise an argument in its initial appeal is held to have waived its right to raise that argument on remand or on a second appeal. ... must be limited to issues appropriate to be raised on appeal." Robinson v. Johnson, 313 F.3d 128, 141 n.5 (3d Cir. 2002). "It does not require a party to raise an issue that had not been previously treated or even raised in the district court." Id. "Issues that arise anew on remand are generally within the scope of the remand." Husband, 312 F.3d at 251 n.4; ....

Under the facts of this case, the application of the independent source doctrine was an argument arising for the first time on remand. ... In Castellanos I, we explicitly directed the district court to engage in further proceedings consistent with our opinion. Implicit in that order was an expectation that the district court would consider arguments raised by both parties as to how the exclusion of the information obtained during the illegal search of the bedroom would impact the validity of the search warrant. The government raised the independent source doctrine at the earliest practicable time, and did not waive the application of the independent source doctrine on remand. The district court did not err in relying upon the independent source doctrine when denying Castellanos's supplemental motion to suppress.

In a wiretapping case, the diverse places that defendant stored drugs made the use of a search warrant ineffective as an investigative device because only a small part of his stash would be recovered, and the execution of warrants would blow their cover and cause the rest to disappear. This was necessity for a wiretap. United States v. Stewart, 2010 U.S. Dist. LEXIS 64720 (N.D. Ill. June 29, 2010)*:

Sixth, Agent Biegalski avers that the use of search warrants would have been ineffective and compromised the investigation. (See Biegalski Aff. PP 65-68.) Because Defendants stored contraband in multiple locations, many of which were unknown to the Government, any seizure would have represented just a fraction of the drugs and money in Defendants' possession. (See id.) Moreover, execution of search warrants would have tipped off Defendants to the Government's investigation, possibly causing them to flee the jurisdiction, destroy evidence, or step up counter-surveillance efforts. (See id.) Warrant-backed searches would therefore have been ineffective in determining the full scope of the Atkins conspiracy, thus supporting Judge Holderman's determination of necessity. See Gray, 410 F.3d at 343 (holding that search warrant would be ineffective in obtaining all of drug gang's contraband and would tip off defendants, thus supporting necessity of wiretap).

The officers’ equivocation on the consent issue was reason enough for the USMJ to conclude that the government failed to prove that the search of defendant’s property for a gun was by consent or reasonable, and the USMJ recommendation to grant the motion to suppress is granted. United States v. Taylor, 2010 U.S. Dist. LEXIS 64633 (W.D. Tenn. June 29, 2010),* R&R 2010 U.S. Dist. LEXIS 64636 (W.D. Tenn. May 5, 2010).*

Plaintiff’s arrest for possession of a weapon in his luggage while on an interstate trip by air arguably legal under 18 U.S.C. § 926A did not make his arrest for possession of a firearm in violation of N.Y. law a false arrest. Torraco v. Port Authority of New York and New Jersey, 2010 U.S. App. LEXIS 13379 (2d Cir. June 30, 2010).* [Volokh Conspiracy here.]

Outrageous government misconduct claim of presenting allegedly false information to the grand jury that came from search warrants is rejected. “The grand jury serves as a referee or buffer between the government and the people. United States v. Williams, 504 U.S. 36, 47 (1992). It is an accusatory body that sits ‘not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.’ Id. at 51; Bracy v. United States, 435 U.S. 1301, 1302 (1978).” United States v. Dynkowski, 2010 U.S. Dist. LEXIS 64485 (D. Del. June 29, 2010):

The "judiciary is extremely hesitant to find law enforcement conduct so offensive that it violates the Due Process Clause." United States v. Voigt, 89 F.3d 1050, 1065 (3d Cir. 1996). To that end, the Third Circuit has admonished that the doctrine is to be implicated only "in the face of the most intolerable government conduct" and "not each time the government acts deceptively or participates in a crime that it is investigating." Lakhani, 480 F.3d at 180 (citations and quotations omitted); United States v. Pitt, 193 F.3d 751, 761 n.11 (3d Cir. 1999) (collecting cases); United States v. DeRewal, 10 F.3d 100, 105 n.3 (3d Cir. 1993) ("in the 15 years since [the outrageous conduct doctrine] was decided, [the Third Circuit] has not found any case warranting dismissal of criminal charges on a similar ground").

The court finds the challenged misconduct, even if true, does not establish the extent of outrageous government conduct that would be necessary to prevail. Significantly, the alleged false and inflammatory information that was the alleged catalyst to the investigation and was included in the search warrants and presented to the grand jury occurred after the crimes had occurred. The Third Circuit has not recognized such conduct as sufficiently outrageous to implicate the doctrine and the court finds that none of the conduct was demonstrably outrageous or intolerable or even close to meeting the rigorous standards enunciated in United States v. Nolan-Cooper, 155 F.3d at 230-231; United States v. Montgomery, 336 Fed. Appx. 221 (3d Cir. 2009); United States v. Georgiou, 2009 WL 4641719 (E.D. Pa. December 7, 2009).

Under California law (Vehicle C. § 14602.6), one driving a vehicle with a suspended license is subject to having his or her vehicle impounded for up to 30 days, with a provision for administrative review and mitigation of the impoundment. The statute provides due process, and, thus, no Fourth Amendment violation. Alviso v. Sonoma County Sheriff's Dep't, 186 Cal. App. 4th 198 (3d Dist. 2010):

Our conclusion that the prompt administrative hearing provided under sections 14602.6 and 22852 satisfies the requirements of due process dispenses also with Alviso's contention that the impoundment provisions authorize an unlawful seizure in violation of the state and federal Constitutions, which rests on the same premise--i.e., that the Constitution requires post-seizure judicial review. Alviso does not challenge the initial seizure of his or any other vehicle under section 14602.6, but "only the continued warrantless retention of the vehicle for 30 days or more without post-seizure judicial review." Since the validity of the initial seizure is therefore not at issue and our analysis under Mathews satisfies us that the administrative hearing available on two days' notice satisfies due process requirements for the government's continued retention of the seized vehicle during the 30-day impoundment, the statutory scheme does not effect an unconstitutional seizure.

Defendant’s patdown was too intense and involved lifting his shirt to expose drugs in his waistband. The officer had reason for a patdown, but didn’t pat him down. Instead, he lifted his shirt. State v. Privott, 2010 N.J. LEXIS 543 (June 29, 2010) (applying Fourth Amendment and N.J. Const.).

“Finally, although the petitioner complains that counsel performed deficiently by failing to file a motion to suppress, the record establishes that any suppression motion would have been unsuccessful given the petitioner’s pretrial admission that he had granted the officers consent to search his residence and the officers’ corroborating testimony that consent was given. Furthermore, counsel testified that, pursuant to the policy of the district attorney’s office, the filing of a motion to suppress would have caused the state to revoke the plea offer, which included Mrs. Raney’s probationary sentence. Under these circumstances, the petitioner has failed to establish that his counsel performed deficiently by failing to file a motion to suppress.” Raney v. State, 2010 Tenn. Crim. App. LEXIS 536 (June 23, 2010).*

Defendant’s car’s search incident was invalid under Gant, although it occurred a year before Gant was decided. The court has previously applied Gant retroactively, and the state does not even cite it in its brief on appeal. Order denying suppression reversed. State v. Bauer, 2010 Wisc. App. LEXIS 487 (June 29, 2010)*:

P11 In light of the Gant decision, the broad rule adopted in Fry, 131 Wis. 2d at 174-75, is no longer good law, much less "black-letter law." "Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." Gant, 129 S. Ct. at 1714. While citizens may be afforded greater protections under the Wisconsin Constitution, they may not be afforded less; they are always entitled to the minimum protections afforded by the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. See State v. Knapp, 2005 WI 127, P59, 285 Wis. 2d 86, 700 N.W.2d 899; ... We are perplexed that the State still relies on Fry despite Bauer's reliance on Gant. We deem the State's failure to respond to Bauer's Gant argument as a concession. ...

Defendant was arrested on an immigration warrant, and, while in detention, he directed his brother to retrieve a suitcase from his house. The brother opened the suitcase at home and found false ID documents. The police arrived, and the brother consented to a search and seizure with apparent authority to consent. He had an expectation of privacy in the suitcase. United States v. Al-Salibi, 2010 U.S. App. LEXIS 13231 (3d Cir. June 29, 2010) (unpublished).*

The officer smelled marijuana coming from defendant’s truck pulling his travel trailer. The travel trailer was not searched based on that finding, but there were other circumstances on the totality for the search of the travel trailer, too. The government’s fall back position of inevitable discovery did not have to be considered. United States v. Ballard, 2010 U.S. App. LEXIS 13185 (5th Cir. June 28, 2010) (unpublished).*

The officer’s testimony on consent is credited over the defendant’s, and the court explains its credibility determination. United States v. Stevenson, 2010 U.S. Dist. LEXIS 64377 (S.D. Ga. June 4, 2010)*:

Stevenson's mendacious demeanor at the hearing weighs heavily against him. He was evasive, often refusing to answer straightforward questions, and he minced words when he did answer. For instance, .... Moreover, he has a track record of telling half truths. ... [¶] In contrast to Stevenson's vacillations, the officers' testimony was consistent and clear. ...

Defendant could not show standing to challenge the search of a vehicle by his mere possession of an allegedly borrowed vehicle without showing the authority of the person who allegedly loaned it to him. However, he still has standing to challenge the stop even if the person who loaned it to him stole it. United States v. Gardeley, 2010 U.S. Dist. LEXIS 64260 (D. Nev. May 11, 2010):

Gardeley does not own the vehicle, nor has he established that he was in lawful possession of the vehicle. Although Gardeley claims he was given permission by a friend to use the vehicle, he has failed to show that the friend had authority to give that permission. There is nothing in the record indicating that Gardeley's friend owned the vehicle or was in lawful possession of the vehicle prior to giving Gardeley permission to use it. Indeed, the record shows that Gardeley's friend matches the description of the person suspected of stealing the vehicle from a rental agency. Thus, to the extent Gardeley is challenging the search of the vehicle, he has not carried his burden to show that he has standing to do so.

However, it appears that Gardeley's Fourth Amendment challenge is aimed at the stop, not the search, of the vehicle. Occupants of a vehicle have standing to challenge the stop of the vehicle even if they have no possessory or ownership interest in the vehicle. United States v. Colin, 314 F.3d 439, 442-43 (9th Cir. 2002) (finding that both the driver and passenger of a vehicle had Fourth Amendment standing to challenge the stop of a vehicle the police suspected was stolen); United States v. Pulliam, 405 F.3d 782, 787 (9th Cir. 2005) (citing United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001) for the proposition that "[a]lthough a defendant may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the [defendant's] illegal detention."); United States v. Twilley, 222 F.3d 1092 (9th Cir. 2000) (finding that the defendant could challenge the stop of the vehicle on Fourth Amendment grounds even with no possessory or ownership interest in the vehicle). Thus, although Gardeley does not have standing to challenge the search directly, he has standing to argue that the initial stop violated the Fourth Amendment, and that the evidence seized as a result of the stop is subject to suppression. Twilley, 222 F.3d at 1095.