Archives for: August 2010


Permalink 11:44:50 pm, by fourth, 388 words, 384 views   English (US)
Categories: General

OH8: Inventory that was admittedly investigatory was invalid

The defendant’s vehicle was lawfully searched and towed, but the scope of inventory was clearly pretextual, and cocaine found under the trunk carpet is suppressed. State v. Wells, 2010 Ohio 4000, 2010 Ohio App. LEXIS 3404 (8th Dist. August 24, 2010):

[*P13] An inventory search conducted with an investigatory intent and not in the manner of an inventory search does not constitute an inventory search. State v. Seals, 8th Dist. No. 90561, 2008 Ohio 5117, P28, citing Caponi, supra. It is apparent that Officer Yasenchack used the inventory search as a "pretext" for searching for more evidence. If he suspected evidence was in the wheel well, he should have obtained a search warrant to inspect it. The vehicle was not at risk of being driven away because, as Officer Yasenchack testified, it was to be towed to a secured police parking lot.

[*P14] We do not find the State's argument that the "automobile exception" to the warrant requirement allowed Officer Yasenchack to search the wheel well persuasive. The officer specifically stated that he performed an inventory search of the vehicle. Further, the prosecutor argued to the trial court that this was a "standard search of an automobile lawfully towed."

The stop in this case, with guns drawn and commands to show hands, was not a situation where the suspects were “free to leave.” State v. Mayberry, 2010 Ohio 4081, 2010 Ohio App. LEXIS 3458 (2d Dist. August 30, 2010)*:

[*P27] The threatening presence of several officers, the officer's wearing of a uniform, the officer's display of a weapon, and the officer's use of language or a tone of voice conveying that compliance is compelled are among various factors that indicate that an encounter is not consensual. State v. Saunders, Montgomery App. No. 22621, 2009 Ohio 1273, P16, quoting State v. Schott (May 16, 1997), Darke App. No. 1415, 1997 Ohio App. LEXIS 2061. Officer Dedrick's conduct of approaching the vehicle with his weapon drawn and ordering the occupants to show their hands, along with Officer Gustwiller's subsequent orders to Mayberry, constituted a display of authority such that the four individuals would not have believed that they were free to leave but, instead, that they were compelled to comply with the officers' orders. Accordingly, upon exiting the cruiser, the officers initiated an investigatory detention, which was lawful only if they had a reasonable and articulable suspicion of criminal activity when the detention began.

[posted 8/31--I had to get to court yesterday]


Permalink 09:10:47 pm, by fourth, 409 words, 3822 views   English (US)
Categories: General

Media discovers August 27th that Pineda-Moreno was decided January 11th

Have any of you noticed the sudden flurry of news stories in the last week, and today on CNN Headline News, about the Ninth Circuit’s United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), like it just happened yesterday? It was January 11th, posted here.

Other sleeping news organizations just noticing this 7½ month old decision are:

• CNN, August 27: Court allows agents to secretly put GPS trackers on cars

• FoxNews August 27: Court Allows Warrantless GPS Tracking

• All headline news, August 27: Ninth Circuit Appeals Court Allows Warrantless GPS Tracking

OPB News had it a week later on January 19: Ninth Circuit Court Allows GPS Surveillance Technique.

None of them bother to mention United States v. Maynard from the D.C. Circuit a few weeks ago or People v. Weaver from New York’s highest court last year, posted here holding that there are government limits on GPS. It isn't over their heads. Jeffery Toobin could do it, or the faux former judge on Fox with the plastic hair.

Where are you guys when "the right to be let alone" is swirling around and down the toilet? Where is the thoughtful analysis that should inform the public that this is going to the Supreme Court and what might happen there? Not from these people; not yet.

This was partly conceded in the We, the people, need to pay attention by Rochelle Riley in the Detroit Free Press:

We, the people, don't always keep up with what federal agencies are doing.

So while we, the people, aren't looking, we are losing our rights.

While we were sleeping, the U.S. 9th Circuit Court of Appeals -- which covers California and eight other states -- decided it was OK for agents from the federal Drug Enforcement Administration to sneak into a guy's driveway and put a GPS tracking device under the bottom of his car. The wise judges said that the agents did not need a warrant because the guy's driveway wasn't private.

That kind of thinking -- that you should have no expectation of privacy in your driveway -- is now law in nine states.

And, Ms. Riley, as for the others, it isn't that they were sleeping--their head was someplace else. Likely more "worried" about [read: fell for] any false political issues of the day designed to distract all of you from what is really going on in criminal justice, and it worked. It really worked.

Better late than never, apparently.

Permalink 09:52:46 am, by fourth, 318 words, 608 views   English (US)
Categories: General

New law review article: "Pervasive Surveillance and the Future of the Fourth Amendment"

Pervasive Surveillance and the Future of the Fourth Amendment, by Russell D. Covey, 80 Miss. L. J. No. 4 (2010):

We are in a period of intense technological change. The continued explosive growth in technology has two major effects on the scope and application of the Fourth Amendment. First, the diffusion of powerful new technologies like DNA synthesis and high-powered computing makes it far easier than ever before for ill-meaning groups or individuals to obtain powerful and destructive weapons. Regardless of who is perceived to desire such weapons, the very existence and potential use of such weapons poses a permanent and growing threat to national security. Second, with the development of new technologies, governments are finding it increasingly cheap and easy to conduct intrusive surveillance on their populations and to obtain data and information about individuals in quantities and in detail never before imagined. For both of these reasons, states are increasingly likely to adopt strategies of pervasive surveillance.

Fourth Amendment doctrine has failed to respond adequately to these trends. First, Fourth Amendment law – mainly, the so-called “third party doctrine” – fails to adequately protect privacy in light of new technology. Second, the few limits that have been placed on government use of technology threaten the ability of the state to conduct the type of surveillance necessary to effectively combat the risks posed by terrorism. The solution suggested is to shift the focus of the Fourth Amendment from its longstanding concern with acquisition of information to its use. Current practices already suggest that people generally are less concerned about revealing private information to others under appropriate circumstances than they are in ensuring that these limited disclosures are not misused by their recipients. In a future world where dangerous technologies are cheap and easily obtained, the critical problem will be to safeguard the population through carefully targeted surveillance, while ensuring that such surveillance cannot be used for pretextual or politically oppressive purposes.

Permalink 07:37:57 am, by fourth, 203 words, 671 views   English (US)
Categories: General

CA5: Knock-and-talk was actually an illegal entry, so consent was vitiated

The knock-and-talk in this case was a virtual entry without a warrant. Voluntariness of alleged consent was not the issue. Instead, the question was whether the alleged consent was an independent act of free will. Reversed. United States v. Hernandez, 392 Fed. Appx. 350 (5th Cir. 2010)*:

Our holding in Gomez-Moreno applies almost precisely to this case. The officers' conduct during their knock-and-talk—banging on doors and windows while demanding entry, attempting a forced entry by breaking the glass on Hernandez's door, then relying on her admission that an illegal alien was present as probable cause to enter—violated the Fourth Amendment.

The district court should have acknowledged that the officers' knock-and-talk conduct was an unreasonable search. Had it done so, the court then would have proceeded not to the six-factor voluntariness analysis of Hernandez's consent, but instead to the alternative analysis of whether her consent was an independent act of free will, breaking the chain of causation between the constitutional violation and the consent. United States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002). Courts consider that question by weighing three factors: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct. Id.

Permalink 07:30:01 am, by fourth, 479 words, 592 views   English (US)
Categories: General

D.Ariz.: Abandonment as a result of illegal police action leads to suppression

The government’s claim of defendant’s abandonment came as a result of defendant’s disavowal of ownership of a duffle bag full of cash after it was illegally seized. That is not abandonment, and the motion to suppress is granted. The exclusionary rule needs to apply to deter such actions. United States v. Templeton, 2010 U.S. Dist. LEXIS 87616 (D. Ariz. August 2, 2010):

An "abandonment must be voluntary, and an abandonment that results from [a] Fourth Amendment violation cannot be voluntary." United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000). Here, the officers conducted an illegal search of the vehicle and duffle bag and then asked whether the evidence found during that search belonged to Templeton. Templeton stated it did not, but that abandonment was involuntary as a matter of law. See United States v. Nicholson, 144 F.3d 632, 640 (10th Cir. 1998) (finding abandonment involuntary as a matter of law when the abandonment occurred after officers' Fourth Amendment violations). It would undermine one of the core purposes of the exclusionary rule if the government could conduct illegal searches, confront individuals with the fruits of those searches, and then rely on the illegally obtained evidence if the individual stated the evidence did not belong to him. See Crawford, 372 F.3d at 1054 (purpose of exclusionary rule is to deter police misconduct). Accepting the United States' position would, in effect, provide an incentive for the government to conduct illegal searches in the hopes that a suspect will disclaim ownership of the evidence illegally discovered. 2The Court cannot encourage such actions. See Herring v. United States, 129 S. Ct. 695, 700, 172 L. Ed. 2d 496 (2009) (exclusionary rule should be applied when it will deter future Fourth Amendment violations).

Defendant’s right wheels briefly touching the fog line was not a violation of Nebraska law, so the stop was invalid. United States v. Magallanes, 730 F. Supp. 2d 969 (D. Neb. 2010).*

On an arrest of co-conspirators two blocks away from defendant’s house, officers returned to the house to conduct an immediate warrantless entry. They had probable cause for the search, and, although a search warrant had not been issued, “[t]he facts in this case present a textbook example of the proper application of the independent source doctrine.” United States v. Martinez, 2010 U.S. Dist. LEXIS 88282 (S.D. Fla. August 26, 2010).*

Based on these same circumstances, and as per Murray, the independent source doctrine applies. We will assume that the agents' entry into the apartment following the defendants' arrest was illegal under the Fourth Amendment. Nevertheless, paraphrasing the Supreme Court, knowledge that the cocaine and paraphernalia were inside the apartment was assuredly acquired at the time of the unlawful entry. But it was also later acquired at the time of entry pursuant to a lawfully issued warrant, and if that later acquisition was not the result of the earlier entry there is also no reason here why the independent source doctrine should not apply.

Permalink 12:11:42 am, by fourth, 191 words, 685 views   English (US)
Categories: General

E.D.Tenn.: While court issuing search warrant was not a "court of record," suppression not ordered

A Tennessee General Sessions court judge was not a court of record, but a search warrant issued by that court that results in evidence in federal court is not subject to suppression for that reason alone under Rule 41. United States v. Green, 2010 U.S. Dist. LEXIS 88325 (E.D. Tenn. July 2, 2010):

There was no evidence presented to support a finding that the search warrant would not have been issued had Johnson gone to a federal magistrate judge or that the search would have been less abrasive had he done so. In addition, there is no evidence of intentional or deliberate disregard of Rule 41. Johnson testified he routinely conducts narcotics investigations as a detective for the Marion County Sheriff's Department and, in doing so, he routinely obtains search warrants from the Marion County General Sessions Judge. The investigation involving Charles Green was initiated as part of his duties with the Marion County Sheriff's Department, and Johnson was simply following his normal routine in obtaining the search warrant at issue from the General Sessions Judge. There was no intentional attempt to skirt Rule 41. Accordingly, even if Rule 41 did apply, the exclusionary rule does not.

Permalink 12:02:34 am, by fourth, 210 words, 553 views   English (US)
Categories: General

IN: IP address in subscriber information shows nexus to house

The IP address associated with a house and a subscriber is nexus for a search warrant for the house when child pornography is associated with the IP address. Also, there is no reasonable expectation of privacy in subscriber information under the Indiana Constitution, which has already been decided against him there. Rader v. State, 932 N.E.2d 755 (Ind. App. 2010):

Here, the probable cause affidavit explained that the subpoena return from Yahoo! revealed that the account for "monty20064" was registered in Monty Rader's name, and further listed the IP address used to log in to the account on the dates in question. These assertions are supported by the record. The probable cause affidavit further explained that the subpoena return from the ISP for the relevant IP address indicated that the same IP address that had been used to log in to the monty20064 account was "associated with" the address 829 East Washington Street in Greenfield, which the affidavit further explained was Rader's home address. Appellant's App. p. 149. This too is supported by the materials in the record.

The defendant’s probation search was called an “administrative search,” so you know where the case was going. The merits of the search was not at issue. United States v. Gavin, 394 Fed. Appx. 643 (11th Cir. 2010).*


Permalink 10:02:19 am, by fourth, 158 words, 551 views   English (US)
Categories: General

MI adopts Gant GFE

People v. Short, 289 Mich. App. 538 (2010):

A disputed search of defendant's vehicle after defendant was arrested and placed in the back of a police car raises a Fourth Amendment issue of first impression under Michigan law left unresolved by our Court's recent opinion in People v Mungo, ___ Mich App ___; ___ NW2d___ (2010). In light of the United States Supreme Court's decision in Arizona v Gant, 556 U.S. ___, 129 S Ct 1710, 173 L Ed 2d 485 (2009), which abrogated the well-established rule in New York v Belton, 453 U.S. 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981) and its progeny, we must consider whether an officer's good faith reliance on case law that is later overturned may form a proper basis to avoid the operation of the exclusionary rule. For the reasons explained below, and pursuant to the reasoning and rationale of rulings from the Tenth and Eleventh federal circuits, we hold that the good faith exception applies and the trial court correctly denied defendant's motion to suppress.

Permalink 09:48:38 am, by fourth, 372 words, 387 views   English (US)
Categories: General

LA2 recognizes a sliding scale of exigency for DWI cases

Defendant’s stop by an off-duty law enforcement officer driving home who was outside her jurisdiction was valid under Virginia v. Moore. She called for assistance in handling a DWI, and a state trooper told her to stop the car. There is a sliding scale of exigency in DWI cases. State v. Stapa, 46 So. 3d 264 (La. App. 2d Cir. 2010):

In Virginia v. Harris, 130 S. Ct. 10 (2009) Chief Justice Roberts, with whom Justice Scalia joined, dissented from the denial of certiorari. Justice Roberts observed:

There is no question that drunk driving is a serious and potentially deadly crime, as our cases have repeatedly emphasized. See, e.g., Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990) ("No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion"). The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases. In a case like (Florida v. J.L., 529 U.S. 266) the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.

Considering the especially grave and imminent dangers posed by drunk driving; the enhanced reliability and training of the Greenwood officer; that she was in a marked police vehicle; that she was driving behind defendant and observed his driving; that she contacted a state trooper with jurisdiction and was told to stop defendant; that there were exigent circumstances; that the trooper was at the stop within seconds; that traffic stops are typically less invasive than searches or seizures of individuals on foot; and the diminished expectation of privacy enjoyed by individuals driving their cars on public roads, we find that the stop by the Greenwood officer did not violate the constitutional protections against unreasonable seizures.

[Well, then, what about murder and rape? Really big drug cases? Meth labs? Firearms?]

Permalink 08:34:11 am, by fourth, 203 words, 585 views   English (US)
Categories: General

New law review article: "Digital Dossiers and the Dissipation of Fourth Amendment Privacy"

Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (2010):

In the Information Age, an increasing amount of personal information is contained in records maintained by Internet Service Providers (ISPs), phone companies, cable companies, merchants, bookstores, website, hotels, landlords, employers and private sector entities. Many private sector entities are beginning to aggregate the information in these records to create extensive digital dossiers.

The data in these digital dossiers increasingly flows from the private sector to the government, particularly for law enforcement use. Law enforcement agencies have long sought personal information about individuals from various third parties to investigate fraud, white-collar crime, drug trafficking, computer crime, child pornography, and other types of criminal activity. In the aftermath of the terrorist attacks of September 11, 2001, the impetus for the government to gather personal information has greatly increased, since such data can be useful to track down terrorists and to profile airline passengers for more thorough searches. Detailed records of an individual’s reading materials, purchases, diseases, and website activity enable the government to assemble a profile of an individual’s finances, health, psychology, beliefs, politics, interests, and lifestyle. This data can unveil a person’s anonymous speech and personal associations.

Permalink 12:10:41 am, by fourth, 485 words, 443 views   English (US)
Categories: General

KY: Strip search at place of arrest was not unreasonable here

Defendant was arrested on a warrant, and somebody yelled out “It’s in his crotch!” The situation was tense, and the officers conducted a strip search to recover what was there. It was indoors and not unreasonable under all the circumstances. Commonwealth v. Marshall, 319 S.W.3d 352 (Ky. 2010):

Here, the search was performed after the officers: recognized that Appellee might be subject to a bench warrant; witnessed him conceal something near his groin; faced a potentially dangerous, ongoing fracas; heard an individual scream “It’s in his crotch!”; knew that he sometimes carried a weapon; and became immediately aware that Appellee was harboring drugs on his person. We find that because of the need for officer and public safety and the need to preserve evidence, there existed ample justification to conduct this search.

. . .

Finally, we turn to the last Bell factor and consider the location in which the police conducted the search. Of all the factors considered thus far, we find this factor most troubling, yet ultimately conclude that it was reasonable under the circumstances. See Polk v. Montgomery Co., 782 F.2d 1196, 1201-02 (4th Cir.1986) (whether the strip search was conducted in private is especially relevant in determining whether a strip search is reasonable under the circumstances). We recognize that strip searches are necessary for a plethora of reasons, and we understand that in order to preserve the safety of officers, of the public and of evidence, they must sometimes be employed. But we also take this opportunity, as did the United States Supreme Court, to issue a caveat: these interests “hardly justify disrobing an arrestee on the street.” Illinois v. Lafayette, 462 U.S. 640, 645 (1983). Indeed some courts have suppressed evidence where police officers, in an attempt to recover evidence, have exposed an arrestee's most private anatomy to the public. However, most of those cases involved searches conducted outside of four walls. [citations omitted] We do not have that here.

Here, while it is true that Appellee was strip searched in a room with a partially opened door it is also true that no one was in the line of sight during the search and that only the officers were in the room. And while the Court of Appeals was concerned with the possibility that someone might be able to peer into the room where the search was taking place, the evidence is to the contrary. We refuse to suppress evidence based upon the unsupported assertion that the search was conducted in a manner potentially exposing Appellate to prospective onlookers. Where a search is conducted unnecessarily exposing an arrestee's naked body to the public, we will suppress absent the most extraordinary and bizarre circumstances--but conjecture without evidence will not be considered.

Ultimately, because Appellee was strip searched within four walls and because he was not exposed to anyone not involved with the search, we conclude that the place in which the search was conducted was reasonable.

Permalink 12:03:17 am, by fourth, 298 words, 428 views   English (US)
Categories: General

CA11: Rule 41(g) is treated like a civil case, and defendant showed enough to get a hearing

Defendant’s Rule 41(g) motion was improperly denied without a hearing. The government said that the property was destroyed after the case was over, but defendant had the right to seek return and have a hearing if she made a sufficient showing. United States v. Melquiades, 394 Fed. Appx. 578 (11th Cir. 2010):

Similarly, in this case, Melquiades needed only to allege facts sufficient to demonstrate his possessory interest in the seized goods. Despite the government's arguments to the contrary, he was not burdened with “show[ing] that the United States ever had seized the asserted property, most of which he described in extremely vague terms,” or “that the asserted property belonged to him.” Rather, when evaluating whether the district court correctly denied Melquiades's motion based solely on the party's pleadings, “we are concerned only with the allegations contained in [the motion] and not with actual evidence.” See Rodriguez-Aguirre, 264 F.3d at 1206. To hold otherwise and “[r]equir[e] evidence of ownership, as opposed to allegations of ownership, [would be] antithetical to the standards for reviewing 12(b)(1) motions to dismiss for lack of facial standing.” Id.

Construing Melquiades's Rule 41(g) motion—the functional equivalent of a civil complaint—in Melquiades's favor, and interpreting his pro se filings liberally, Melquiades alleged that when federal law enforcement agents searched his home on January 13, 2003, they confiscated certain, specifically listed items. Melquiades clearly stated that, “in this case the Movant is the owner of the property.” He also asserted entitlement to its return. Thus, Melquiades has alleged facts sufficient to show that he has a possessory interest in some property, that the government seized these items, and that they were not returned. Accordingly, it was error to deny Melquiades's motion without collecting evidence to resolve the parties' factual disputes. See Potes Ramirez, 260 F.3d at 1314.


Permalink 07:53:10 am, by fourth, 163 words, 658 views   English (US)
Categories: General

IA: Defendant's driveway not curtilage, at least as a place for an investigative stop

“Fernau’s driveway was not within the curtilage and the officers were permitted to conduct an investigatory stop in the driveway.” The stop was otherwise with reasonable suspicion. State v. Fernau, 2010 Iowa App. LEXIS 907 (August 25, 2010).*

When the defendant’s car was stopped for a traffic offense, the officer could smell burnt marijuana coming from the car. The subsequent search was valid under the automobile exception, not the search incident doctrine, and Gant did not apply. The trial court erred in granting suppression. State v. Williams, 43 So. 3d 145 (Fla. 3d DCA 2010).*

In a construction wire fraud case, the affidavit for the search warrant for the defendant’s office/law office was based on statements from a co-conspirator tax preparer who came to the FBI with documents that believed he was involved in preparation of false documents. The FBI corroborated details before they sought issuance of the warrant, so the search warrant was issued with probable cause. United States v. Clay, 09-3134 (8th Cir. August 27, 2010).*

Permalink 12:21:23 am, by fourth, 602 words, 546 views   English (US)
Categories: General

E.D.N.Y.: Defendant's actions in standing over agent's shoulder during search was implied consent

Defendant’s wife consented to entry of Customs officers in a child pornography investigation. She testified she believed they were looking into some national security offense, and they did not immediately disabuse her of belief. Defendant’s providing the password to the computer and then standing over the officer’s shoulder while the computer was perused was indicative of implied consent. United States v. Pollaro, 733 F. Supp. 2d 364 (E.D. N.Y. 2010):

The court finds that the Agents accurately represented themselves from the beginning as DHS/ICE agents, and did not attempt to mask their identity. (Tr. 70). Although Mrs. Pollaro testified to have interpreted the Agents' statements to mean there was an issue of national security at hand, the agents made no statements confirming or denying this presumption. (Tr. 71). Moreover, Mrs. Pollaro never testified regarding her suspicions regarding a potential national security issue aloud, giving the agents no reason to know of (or correct) her erroneous belief. Rather, the agents merely informed Mrs. Pollaro of the nature of their visit - to investigate suspicious activity on her home computer, including the possibility of child exploitation, -- and the evidence is clear that she willingly assisted them in their undertaking. (Tr. 71).

Even if the court were to give Defendant the benefit of the doubt, finding that the Agents misrepresented their identities (which they did not), the use of trickery or deception in gaining entry into a dwelling does not by itself necessarily violate a defendant's Fourth Amendment rights. See, e.g., Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966); United States v. Alejandro, 368 F.3d 130, 135 (2d Cir. 2004). In support of this motion, Defendant attempts to compare his situation to that in United States v. Montes-Reyes, 547 F. Supp.2d 281 (S.D.N.Y. 2008), where the court held consent to have been invalid. There, however, the court's holding as to the invalidity of the consent was based upon the agent's representation that entry was necessary in connection with the searching for a missing child. See Montes-Reyes, 547 F. Supp.2d at 287-91. The court was careful to distinguish between cases in which "the kind of extreme' misrepresentation of investigatory purpose by which a person is 'deprive[d]… of the ability to make 'a fair assessment of the need to surrender his privacy'" and those in which "the deception in question was the use of an undercover agent who obtained otherwise voluntary consent through the use of his adopted identity." Id. at 288 (citation omitted). Here, even assuming the validity of Mrs. Pollaro's unspoken conjecture regarding any issue of national security and the presence of agents in her home, such circumstances would not rise to the level of the extreme deception required to render consent invalid. In sum, for the reasons set forth above, the court holds that the consent to enter the Pollaro's house was valid.

. . .

Although not necessary to address, the court addresses Defendant's argument that the search was unlawful because it was commenced before he signed the written consent form. Factually, the court finds Defendant's version of the events to be highly unlikely, given the credible testimony of the Agents testifying at the hearing. Even if the court were to accept Defendant's tenuous claim that the written consent form was signed after the search, Agent Handley's testimony regarding Defendant's action during the computer search, i.e., that Defendant turned on the computer for the Agent and stood over the Agent's shoulder during the search, is conduct that a reasonable officer would interpret as implied consent. (Tr. 14). See Buettner-Janusch, 646 F.2d at 764 ("consent may be inferred from an individual's words, gestures or conduct").

Permalink 12:15:29 am, by fourth, 218 words, 488 views   English (US)
Categories: General

OK: No Gant GFE

Oklahoma refuses to apply a Gant good faith exception. Baxter v. State, 2010 OK CR 20, 238 P.3d 934 (2010)*:

[*P12] The State argues that application of the law here would have no deterrent effect. Given the requirement, discussed above, that Gant must be applied to cases pending on direct appeal when it was decided, this argument is misplaced. In addition, applying Gant will have a deterrent effect. It will confirm to law enforcement officers in Oklahoma the change in the law and serve as an example and an explanation of the reason law enforcement agencies must adapt their vehicle search practice to conform to the law in Gant.

A gun found underneath the seat cushion where defendant was seated when he was arrested was within his immediate area of control and was properly the subject of a search incident. State v. Harrell, 2010 WI App 132, 329 Wis. 2d 480, 791 N.W.2d 677 (2010).*

Defendant’s claim that he did not consent was not properly preserved at trial. United States v. Strother, 387 Fed. Appx. 508 (5th Cir. August 18, 2010) (unpublished).

Defendant’s vehicle had just been registered, and it was not in the computer system. The officer was entitled to keep checking because of prior experience with false registrations, and defendant consented during that time period. United States v. Justice, 2010 U.S. Dist. LEXIS 87128 (E.D. Ky. August 24, 2010).*

Permalink 12:05:01 am, by fourth, 203 words, 402 views   English (US)
Categories: General

CA8: Consent to search the person includes the pockets, not just what's in his hands

Consent to search a person includes his pockets, not just what he was carrying. United States v. Dinwiddie, 618 F.3d 821 (8th Cir. 2010):

Dinwiddie was observed exiting a house to which a controlled delivery of drugs had just been made. He was observed carrying what appeared to be a packing slip from the just completed drug delivery. Police officers approached him and asked him if he would consent to a search of his person. He agreed. In this context, a reasonable person would have understood his consent to include his pants pocket and the recently observed packing slip therein.

Dinwiddie disagrees, relying upon language in Siwek to argue that the scope of his consent was limited to the objects about which he was just questioned--weapons and drugs. At issue in Siwek was whether consent to an automotive search included “any part of the truck” where the contraband that the defendant had just been questioned about might be stored. 453 F.3d at 1085. Siwek did not hold that the defendant's scope of consent was necessarily limited to only the items mentioned in the predicate questioning. Id. Rather, Siwek stated that the scope of consent included a thorough search for those items. Id. Accordingly, Siwek is inapposite.


Permalink 09:49:25 am, by fourth, 380 words, 438 views   English (US)
Categories: General

CA9: When officers knew exact gun they should have been looking for, SW was too broad for other firearms and gang evidence

The victim of an assault with a short-barreled shotgun with a pistol grip reported it to the police, along with a picture of the gun, and they got a search warrant for generic firearms and gang-related evidence. Based on what they had probable cause for, the description in the warrant was overbroad without any justification. Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2010):

We read the Fourth Amendment as requiring “specificity,” which has two aspects, “particularity and breadth.” United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir. 2009). “Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.” Id. (quoting In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 856-57 (9th Cir. 1991)). In determining whether a warrant's description is sufficiently specific to meet these Fourth Amendment requirements, we consider the following questions:

(1) whether probable cause exists to seize all items of a particular type described in the warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.

Spilotro, 800 F.2d at 963 (citations omitted). The first consideration encapsulates the overarching Fourth Amendment principle that police must have probable cause to search for and seize “all the items of a particular type described in the warrant.” In re Grand Jury Subpoenas, 926 F.2d at 857; see also SDI Future Health, 568 F.3d at 702-03; VonderAhe v. Howland, 508 F.2d 364, 369-70 (9th Cir. 1974). The second and third factors are relevant to determining whether the warrant satisfies this general rule.

. . .

In short, the deputies had probable cause to search for a single, identified weapon, whether assembled or disassembled. They had no probable cause to search for the broad class of firearms and firearm-related materials described in the warrant. Although we have upheld warrants describing broad classes of items in certain cases, see Storage Spaces, 777 F.2d at 1370; Hillyard, 677 F.2d at 1340, the rationales adopted in those cases are inapplicable here given the information the deputies possessed.

Permalink 09:33:45 am, by fourth, 418 words, 527 views   English (US)
Categories: General

E.D.Mich.: Photo of vehicle in stop contradicts the asserted justification for the stop

The motion to suppress the stop of defendant’s tractor trailer is granted because the court does not believe the officer. United States v. Moore, 2010 U.S. Dist. LEXIS 86906 (E.D. Mich. August 24, 2010)*:

It was not objectively reasonable for Corporal Bazzi to believe that the left turn signal on Moore’s semi-tractor was not illuminated. While Officer King testified that it was “a little foggy” on the night of the traffic stop, Corporal Bazzi had sufficient opportunity to determine whether the turn signal was illuminated. He had Moore's semi-tractor and trailer under surveillance for a couple of hours, and Officer King testified that Moore was driving slow. [¶] The Court finds the stop of Moore's semi-tractor and trailer was unlawful at its inception.

On de novo review from the USMJ’s grant of the motion to suppress for probable cause, the USDJ finds that there was, in fact, probable cause for search of the bag in defendant’s possession. The USDJ looked at the bag. United States v. Marshall, 2010 U.S. Dist. LEXIS 86983 (S.D. Fla. August 24, 2010),* rejecting in part R&R 2010 U.S. Dist. LEXIS 86986 (S.D. Fla. May 28, 2010)* [another example of the government getting two bites at the apple; the hearing before the USMJ is binding on the defendant but just a dry run for the government?].

“Based on the information provided by [CI] Olmsted—particularly that he had seen the anhydrous tank in the past week or so and had witnessed meth being cooked there before—along with [Officer] Kingsley’s own experience concerning methamphetamine labs, Kingsley had specific facts to form a reasonable suspicion that there was a meth lab in the cabin.” United States v. Barttelt, 2010 U.S. Dist. LEXIS 86786 (W.D. Wis. August 23, 2010).*

Weaving and driving too slow justified defendant’s stop because he might have been impaired, rejecting the R&R. United States v. Skutley, 2010 U.S. Dist. LEXIS 86643 (D. Utah August 19, 2010).*

In February 2009, defendant finally consented to an entry of his house so the police could look for another person. Inside, they saw a gun case and they knew defendant was a felon. They felt the gun case and told him to get rid of the gun. In December 2009, the police came back to serve an eviction notice on the defendant, and the gun was seen again. The second entry was valid. United States v. Preston, 2010 U.S. Dist. LEXIS 87098 (W.D. Mich. July 20, 2010).*

Corroboration of a 911 call was reasonable suspicion. United States v. Sanders, 394 Fed. Appx. 547 (11th Cir. 2010).*

Permalink 07:43:35 am, by fourth, 34 words, 398 views   English (US)
Categories: General


Sometimes CNN is way behind the curve: See Court allows agents to secretly put GPS trackers on cars on the Ninth Circuit's January GPS case and how easy it is to place a GPS.

Permalink 07:05:55 am, by fourth, 153 words, 436 views   English (US)
Categories: General

New law review article: "Applying the Fourth Amendment to the Internet: A General Approach"

Applying the Fourth Amendment to the Internet: A General Approach by Orin Kerr, 62 Stan. L. Rev. 1005 (2010). Full article here. First paragraph:

This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline. The Article reaches two major conclusions. First, Fourth Amendment protections online should depend on whether the data is content or non-content information. The contents of communications, like e-mail and remotely stored files, ordinarily should be protected. On the other hand, non-content information, such as IP addresses and e-mail addresses, ordinarily should not be protected. Second, courts should ordinarily require a search warrant if the government seeks to obtain the contents of protected Internet communications. Further, the scope of warrants should be based on individual users rather than individual accounts.


Permalink 06:57:52 am, by fourth, 209 words, 379 views   English (US)
Categories: General

OH6: Person with authority to feed the cat has no apparent authority to consent

The person with authority to enter defendant’s house to feed defendant’s cat on only three days obviously had no apparent common authority to consent to a search of the house. State v. Huntington, 2010 Ohio 3922, 190 Ohio App. 3d 711 (6th Dist. 2010).*

A hotel security guard’s report to the police that defendant had a gun on him was justification for a patdown. United States v. Montague, 2010 U.S. Dist. LEXIS 86179 (S.D. Fla. July 27, 2010).*

The officers had no reasonable suspicion for this stop, admittedly based on a hunch. United States v. Marcelino, 736 F. Supp. 2d 1343 (N.D. Ga. 2010)*:

The Government argues that the agents had the requisite reasonable suspicion to justify a Terry stop of the defendant based on three factors: (1) the officers were patrolling a well-known, high crime gang area; (2) the defendant was wearing loose, baggy clothing in colors that indicated gang membership; and (3) when the agents approached them, the two men immediately walked away and, when spoken to a second time by the agents, continued to walk away, this time even faster.

Defendant’s stop was justified by the officer’s inability to read the license plate, and he validly consented to a search of the car. State v. Bayliff, 2010 Ohio 3944, 2010 Ohio App. LEXIS 3340 (3d Dist. August 23, 2010).*

Permalink 06:37:23 am, by fourth, 268 words, 500 views   English (US)
Categories: General

D.P.R.: The defense argument to suppress is "nonsense" and "stunningly irrational and baseless"

Actually from last summer, is the failed argument of the summer:

From the carjacking capital of the United States, a claim that the carjacking was justified as their own extralegal drug investigation with probable cause, allegedly to steal drugs. United States v. Torres-Sobrado, 733 F. Supp. 2d 325 (D. P.R. 2009):

The arguments made by the defendants, first, that no property was unlawfully seized because the property in question consisted only of illegal substances and, second, that the defendants had probable cause to conduct the fateful traffic stop and therefore, presumably, that the resulting search and seizure were lawfully conducted is, quite simply, nonsense. Even if the property taken from the victim is property that is not constitutionally protected, and even if the movants were accompanied during the traffic stop by a "real" member of the Puerto Rico Police Department acting on a tip from a reliable source, the defendants' stop, detention, and search of Andrades were illegal according to the allegations in Count Six. Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit. For the defendants to argue that they had probable cause for the actions they are charged with, despite the fact that they are charged with staging that stop, despite the fact that neither is a real law enforcement official, despite the fact that they allegedly dressed up as law enforcement officials, is stunningly irrational and baseless. The Court rejects these arguments outright.

Also linked at Volokh Conspiracy.

Permalink 06:26:50 am, by fourth, 377 words, 474 views   English (US)
Categories: General

MO refuses Gant good faith exception

Missouri refuses to follow United States v. McCane and apply a Gant good faith exception. State v. Kingsley, 2010 Mo. App. LEXIS 1090 (W.D. Mo. August 24, 2010):

However, it should be noted that the integrity of judicial review and constitutional adjudication outweighs officer reliance. To apply the good-faith exception to cases pending when Gant was published would contravene the Supreme Court’s clear expression that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” Griffith, 479 U.S. at 328. The Griffith Court expressly considered the weight to be accorded to reliance of law enforcement officials and the burden on the administration of justice in its analysis. Id. at 326-27. It found those considerations outweighed by the necessity of adjudicating all currently pending cases according to constitutional law as it stands at the time of the adjudication and the necessity of treating similarly-situated defendants the same. Id. at 327-28. We further believe admitting unlawfully obtained evidence based on an officer’s reliance on his or her training would be setting a dangerous and unworkable precedent unjustified by the holdings in Leon and its progeny. Because we agree with the Johnson majority that the good-faith exception does not extend to police officers’ reliance on case law, the State’s sole point is denied.

The trial court denied the state’s motion to continue the suppression hearing because of its inability to get all its discovery together. “The judge's disposition may have been severe but it was not abusive of discretion. It came after a series of postponements, applied the criteria of a standing rule, and rested upon the essential authority of the court to manage the schedule of its criminal sessions. He was uniquely positioned to assess the credibility and motives of counsel appearing in his session. We affirm his orders denying the Commonwealth's motion to continue and allowing the defendants' motion to suppress.” Commonwealth v. Burston, 77 Mass. App. Ct. 411, 931 N.E.2d 1019 (2010).*

Defendant consented to a search for a gun in her own house. She was not restrained or under arrest at the time of her interaction with the officers. United States v. Lewis, 2010 U.S. Dist. LEXIS 86431 (N.D. Ga. June 16, 2010).*


Permalink 09:48:43 am, by fourth, 167 words, 3248 views   English (US)
Categories: General

Now mobile x-ray scanners

On Prison Planet: 4th Amendment Violating Mobile X-Ray Scanners Hit The Streets.

As we warned at the beginning of the year, X-ray body scanners currently being used and abused in airports across the world are set to hit the streets as American Science & Engineering reveals that “more than 500 backscatter x-ray scanners mounted in vans that can be driven past neighboring vehicles to see their contents” have been sold to government agencies.

In January, we divulged how the ultimate end use of the body scanners would not be limited to airports, and that they were going to be rolled out on the streets as mobile units that would scan vehicles at checkpoints as well as individuals and crowds attending public events.

Dutch police announced that they were developing a mobile scanner that would “see through people’s clothing and look for concealed weapons” and that it would be used “as an alternative to random body searches in high risk areas”.

Mobile scanners

Another post on Network World with video.

Permalink 07:30:59 am, by fourth, 220 words, 363 views   English (US)
Categories: General

E.D.Pa.: Officers could search defendant's pants which he sought to put on after his arrest

Officers who were arresting the defendant could search his pants before he put them on. United States v. Hull, 2010 U.S. Dist. LEXIS 86472 (E.D. Pa. August 19, 2010).*

911 hang up call was sufficient for a police entry in this § 1983 case. Johnson v. City of Memphis, 617 F.3d 864, 2010 FED App. 0259P (6th Cir. 2010) (unpublished)*:

We hold that the combination of a 911 hang call, an unanswered return call, and an open door with no response from within the residence is sufficient to satisfy the exigency requirement. The district court was correct in finding that the police were justified in entering the home to sweep for a person in need of immediate assistance under the emergency aid exception. The whole point of the 911 system is to provide people in need of emergency assistance an expeditious way to request it. Indeed, in many communities, the use of 911 for any purpose other than to report an emergency or to request emergency assistance is at least a misdemeanor offense.

The multiple blood draws of plaintiff who was involuntarily committed were to be governed by a Fourth Amendment analysis, but they were justified by special needs, were necessary, and were reasonably conducted under all the circumstances. Marcus v. Miraglia, 2010 U.S. Dist. LEXIS 86461 (S.D. N.Y. August 18, 2010),* on remand from Makas v. Miraglia, 300 Fed. Appx. 9 (2d Cir. 2008).

Permalink 07:02:46 am, by fourth, 172 words, 360 views   English (US)
Categories: General

TN: Judge's error (pm v. am) voided warrant because it was not a minor error under TN law

A judge’s scrivener’s error of writing “p.m.” instead of “a.m.” voided the warrant. The requirements of state Rule 41 serve a high and important function in protecting against abuse of search warrants. State v. Hayes, 337 S.W.3d 235 (Tenn. Crim. App. 2010):

With respect to Rule 41(c), in State v. Coffee, 54 S.W.3d 231, 233-34 (Tenn. 2001), the Tennessee Supreme Court reviewed the applicable law:

These procedural safeguards are intended “to secure the citizen against carelessness and abuse in the issuance and execution of search warrants.” Talley v. State, 208 Tenn. 275, 345 S.W.2d 867, 869 (1961).

“There is no writ more calculated to be abused in its use than the search warrant, for with it any home may be entered and the inmates disturbed, humiliated, and degraded. To prevent such a possibility from false informants made to officers inspired by overzeal, or acting from expediency, or obeying the command uttered by a mob impulse, the provisions of the Constitution and statutes found force and command observance.”

Id. (quoting Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1008 (1923)).

Permalink 06:50:20 am, by fourth, 192 words, 406 views   English (US)
Categories: General

CA2: Entry before the search warrant was signed did not void the search; inevitable discovery applied

The police were waiting for a search warrant to issue in a child pornography case, but they entered before it was signed. Images were seen on the screen. The seizure had an independent source from the warrantless entry, and the affidavit for the search warrant showed probable cause without the judge abandoning his judicial role. The failure to tell the magistrate about the unwarranted entry “may be criticized generally, but it did not mislead the issuing judge as to the content of the materials at issue. Thus, even if we were to conclude that probable cause requires a more particularized showing of lewdness than was made here, the police's failure to reveal information not relevant to that issue does not preclude application of the good-faith exception.” United States v. Bonczek, 391 Fed. Appx. 21 (2d Cir. 2010).*

Officers received a tip about a man drinking in a car at a little league ball park. The officer arrived and talked to the identified informant about 30 seconds when the car drove off. The stop was still justified by the report even though the driver committed no traffic offenses in her presence. Schneider v. State, 3 A.3d 1098 (Del. 2010).*


Permalink 02:37:06 pm, by fourth, 107 words, 833 views   English (US)
Categories: General

Cleveland trash police

From the "too much time on their hands" category:

Cleveland will soon use high-tech trash containers with RFID chips to see if you are recycling. See High-tech carts will tell on Cleveland residents who don't recycle ... and they face $100 fine. The city will monitor your trash habits from the collection vehicle.

Ratted out by your trash container ... If you don't put the recycling bin out regularly, the trash police will seize your trash, search it for recyclables, and prosecute if you aren't recycling. Containers bought with stimulus money, no less. And, in some cities, police and teachers are being laid off, but, in Cleveland, they are hiring.

Permalink 07:14:19 am, by fourth, 157 words, 399 views   English (US)
Categories: General

D.S.D.: While search would be invalid under Gant, gov't prevails on alternate theory of inventory

The search of defendant’s car was invalid under Gant, but the gun would have been inevitably discovered through a valid inventory which the government asserted as an alternative justification. United States v. Garreau, 735 F. Supp. 2d 1155 (D. S.D. 2010), R&R 2010 U.S. Dist. LEXIS 85597 (D. S.D. 2010).*

Officer’s approach to a parked car and tapping on the window was not a seizure. Richter v. N.D. DOT, 2010 ND 150, 786 N.W.2d 716 (2010).*

Officer’s observation of person getting into car with a beer bottle from a convenience store and opening it was reasonable suspicion for a stop. The driver’s license was suspended. State v. Sound Sleeper, 2010 SD 71, 787 N.W.2d 787 (2010).*

Pennsylvania law differs from California law, so Samson does not apply to this parole search. Nevertheless, defendant was driving unauthorized cars, and that justified a search of defendant’s home, too. United States v. Benjamin, 2010 U.S. Dist. LEXIS 85960 (E.D. Pa. July 26, 2010).*

Permalink 06:50:33 am, by fourth, 196 words, 378 views   English (US)
Categories: General

OH2: Frisk of defendant put in police car for officer's convenience was unjustified

The defendant was encountered in a high crime area, and the officer put her in the police car for “mere convenience,” and patted her down. She was not given the opportunity to identify herself, so no violation of the law occurred. Suppression order affirmed. State v. Habel, 2010 Ohio 3907, 190 Ohio App. 3d 393, 942 N.E.2d 389 (2d Dist. 2010).*

The officer saw defendant in a high crime area jaywalking (a non-arrestable offense), and he stopped him. The officer frisked him because he kept his hands in his pocket [it was cold] finding heroin. The frisk was lawful. State v. Lovins, 2010 Ohio 3916, 2010 Ohio App. LEXIS 3319 (2d Dist. August 20, 2010).*

Officers responding to an armed burglary call encountered the defendant in the place with a door open, with body armor at his feet. The search of defendant’s person was justified. State v. Tucker, 2010 Ohio 3920, 2010 Ohio App. LEXIS 3318 (2d Dist. August 20, 2010).*

An officer responded to a silent alarm at a child development center in the night and encountered the defendant walking way from the building with a duffle bag. The silent alarm is not treated like a CI. A frisk was justified. State v. Brandon, 2010 Ohio 3901, 2010 Ohio App. LEXIS 3303 (2d Dist. August 20, 2010).*

Permalink 06:33:39 am, by fourth, 263 words, 505 views   English (US)
Categories: General

ND: State statute created no REP in bank records against a mere subpoena

Defendant was charged with worker’s compensation fraud after bank records were subpoenaed to the administrative hearing. State statute did not create a reasonable expectation of privacy from a subpoena instead of a search warrant issued by a neutral and detached magistrate. State v. Hammer, 2010 ND 152, 787 N.W.2d 716 (2010).

In a traffic stop, defendant had both hands out the window as the officer approached, and there was a gun on the dashboard. The officer did not have to consider the situation safe and could frisk the car for more weapons. State v. King, 206 N.C. App. 585, 696 S.E.2d 913 (2010).*

Defendant was stopped on a citizen informant’s tip, and they are sufficient in themselves to create reasonable suspicion. Hadley v. State, 2010 Fla. App. LEXIS 12184 (Fla. 3DCA August 18, 2010).*

The issue of the duration of the stop making it unreasonable was not litigated in the trial court, so it was waived. State v. Hudson, 206 N.C. App. 482, 696 S.E.2d 577 (2010).*

Officers had repeated drug complaints at defendant’s apartment, and they came to do a knock and talk. The person answering the door let the officer in, but it was quickly determined that she was only a visitor. Before he could ask for consent, the officer heard others, so he walked further in to see who he was dealing with, described as a protective sweep, and he saw drug paraphernalia at defendant’s feet, which were propped up on a table. The officer’s search of defendant was justified, and it produced a Dilaudid tablet. State v. Kinsell, 2010 Ohio 3854, 2010 Ohio App. LEXIS 3254 (9th Dist. August 18, 2010).*


Permalink 12:02:00 am, by fourth, 191 words, 537 views   English (US)
Categories: General

CA4: Knowledge of right to refuse search helps show consent

Consent was found voluntary because defendant was arrested by plain clothes officers who did not pull any weapons, he knew some of them, he was cooperative, and he was told of his right to refuse. United States v. Alexander, 391 Fed. Appx. 274 (4th Cir. 2010), cert. denied 2011 U.S. LEXIS 98 (U.S., Jan. 10, 2011).*

The officer did not unreasonably prolong the stop. Defendant consented to a search of his person producing $3,000 in cash and he was nervous. That was reasonable suspicion for calling in a drug dog. United States v. Whitney, 391 Fed. Appx. 277 (4th Cir. 2010).*

Based on multiple intercepted telephone calls, the officers had probable cause to search defendant’s vehicle when he was found. United States v. Verdugo, 617 F.3d 565 (1st Cir. 2010).*

The smell of marijuana, which the court credits, was not only reasonable suspicion, it is probable cause. United States v. Ortega, 2010 U.S. Dist. LEXIS 85154 (E.D. Pa. July 22, 2010).*

The officer here developed information from a CI which was corroborated and rose to the level of probable cause. The officer called in the defendant’s probation officer for the search. United States v. Lish, 2010 U.S. Dist. LEXIS 85138 (D. Idaho August 12, 2010).*


Permalink 09:11:18 am, by fourth, 412 words, 1188 views   English (US)
Categories: General

D.Neb.: Search incident of cell phone in arrest on a warrant was unreasonable

The search incident of defendant’s cell phone when he was arrested on a warrant was unreasonable because there was no reason to believe that it was a weapon or that it contained evidence of the crime for which he was arrested. United States v. McGhee, 2009 U.S. Dist. LEXIS 129576 (D. Neb. June 19, 2009):

In today's world, cell phones may contain a vast array of information which would be expected to be free from intrusion by the general public and the government. United States v. Finley, 477 F. 3d 250, 259 (5th Cir. 2007). As such, McGhee had a reasonable expectation of privacy in the contents of his cell phone. Consequently, the Fourth Amendment required law enforcement officers to obtain a warrant to search the cell phone unless a recognized exception to the warrant requirement existed. Among the well recognized exceptions to the warrant requirement is a search incident to arrest. United States v. Robinson, 414 U.S. 218, 224 (1973). Further, prior to April 21, 2009, upon arrest, the so-called automobile exception to the warrant requirement allowed the search of closed containers found in a vehicle without a warrant or further showing of probable cause. See New York v. Belton, 453 U.S. 454, 461 (1981) (noting "lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have"); United States v. Hrasky, 453 F.3d 1099, 1100 (8th Cir. 2006); United States v. Harris, 956 F.2d 177, 179 (8th Cir. 1992). Accordingly, the government argues search of the cell phone's contents is legally justified when conducted incident to arrest for the purpose of searching for evidence of a crime.

. . .

In this case, McGhee was arrested pursuant to an arrest warrant based on a conspiracy to distribute drugs and for distribution of drugs during March 2008. The arrest took place in January 2009. Under these circumstances, it was not reasonable for the officers to believe a search of McGhee's cell phone would produce evidence related to the crime for which he was arrested. Moreover, although McGhee had the cell phone within his immediate control, the cell phone did not present a risk of harm to the officers. Additionally, no evidence suggests the cell phone appeared to be or to conceal contraband or other destructible evidence. Therefore, the officers were not justified in conducting a warrantless search of McGhee's cell phone as incident to his arrest. There is no evidence before the court regarding the circumstances of McGhee's arrest which would otherwise justify the warrantless search of the cell phone.

Search incident is § 16.10A of the 2009 and 2010 Supplements (the latter forthcoming in the fall).

Permalink 08:39:05 am, by fourth, 404 words, 340 views   English (US)
Categories: General

VA: Defendant's dropping gun during flight from allegedly illegal arrest was not cause for applying exclusionary rule

Defendant argued that his stop and assuming the position for a frisk was unreasonable, but he fled before the patdown could occur, and a gun fell from his waistband in flight. The dropping of the gun was unforeseeable to the officer, and the exclusionary rule would not be applied. Fitchett v. Commonwealth, 56 Va. App. 741, 697 S.E.2d 28 (2010)*:

Unlike in Smith, appellant's handgun was not first discovered during Officer Blount's seizure of appellant. Here, appellant ceased submitting to Officer Blount's authority and instead began running away from the officer. During his flight on foot, appellant tripped and fell, causing the handgun to fall from his waistband, where it had been concealed, and land on the ground. The officer never observed the handgun until it fell to the ground while appellant was fleeing from him. Because "[t]he primary justification for the exclusionary rule" is "the deterrence of police conduct that violates" a defendant's constitutional rights, Stone v. Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), the purpose of the exclusionary rule is satisfied only by the suppression of evidence that is the "foreseeable consequence[] of the police's illegal conduct." State v. Washington, 585 P.2d 249, 253, 120 Ariz. 229 (Ariz. Ct. App. 1978). Here, however, appellant's counsel conceded during oral argument before this Court that appellant's accidental dropping of the handgun was an entirely unforeseeable result of the officer's seizure of appellant.

Defendant was detained by officers standing outside the patrol car he was seated in, and he could not feel free to leave. The stop was continued without reasonable suspicion. State v. Tindall, 388
S.C. 518, 698 S.E.2d 203 (2010)*:

The question therefore becomes whether the officer reasonably suspected a serious crime at the point at which he chose not to conclude the traffic stop, despite his stated intention to issue a warning ticket, instead opting to continue his questioning. See Sullivan, 138 F.3d at 131. At that point, the officer had ascertained the following information: (1) Tindall was driving to Durham to meet his brother; (2) Tindall was driving a rental car rented the previous day by another individual which was to be returned to Atlanta on the day of the stop; (3) Tindall did a "felony stretch" on exiting the vehicle; and (4) Tindall seemed nervous. We find these facts did not provide the officer with a "reasonable suspicion" that a serious crime was afoot. Consequently, the continued detention was illegal and the drugs discovered during the search of the vehicle must be suppressed.

Permalink 08:28:53 am, by fourth, 199 words, 500 views   English (US)
Categories: General

OR: Illegal detention led to invalid consent

Illegal detention led to invalid consent. Defendant showed the necessary minimal connection, and the state could not show that it did not exploit that illegality. State v. Ayles, 348 Ore. 622, 237 P.3d 805 (2010).*

Defense counsel was not ineffective for not challenging the search of defendant because there was probable cause for his arrest. Brown v. State, 3 A.3d 1096 (Del. 2010).*

Defendant drove past a police officer who knew that there was a warrant for his arrest. He was followed to a convenience store where he was arrested. A police officer shined a flashlight into the car and saw a baggy of crack in plain view, and that justified an automobile exception search of the car. Suppression order reversed. State v. Sarden, Ga. App. 587, 699 S.E.2d 880 (2010).*

The search of defendant’s car did not violate Gant where he fought with the officer and fled from the car as the officer attempted to handcuff him, leaving the door open. This was an abandonment. Johnson v. State, 305 Ga. App. 635, 700 S.E.2d 612 (2010).*

Defendant was stopped for reckless driving, and the officer smelled marijuana coming from the car. Defense counsel was not ineffective for not challenging the search. Mason v. State, 42 So. 3d 629 (Miss. App. 2010).*

Permalink 07:51:51 am, by fourth, 105 words, 1343 views   English (US)
Categories: General

Fourth Amendment news: TSA "testing" "enhanced patdown"

TSA has started "enhanced patdown" at the Las Vegas and Boston airports before trying it nationwide. It is reserved for those passengers who fail the metal detector, and it involves the front of the hand rather than the back.

The American Civil Liberties Union of Massachusetts is questioning whether the new technique is effective enough to justify what it calls a "seemingly constant erosion of privacy."

Ever been frisked like that? It is intrusive. It is what Brussels airport security uses on those on American flights. The back of the hand doesn't work for them? This will inevitably lead to more fishing expeditions into pockets.


Permalink 10:06:34 am, by fourth, 310 words, 618 views   English (US)
Categories: General

E.D. Mich.: The pleading requirements for a Fourth Amendment violation in a Bivens or § 1983 claim

The pleading requirements for a Fourth Amendment violation in a Bivens or § 1983 claim: Yopp v. United States DOJ DEA, 2010 U.S. Dist. LEXIS 85354 (E.D. Mich. August 19, 2010):

Plaintiffs claim that the search warrant executed at the Yopp residence was not based on probable cause, and that the search warrant affidavit, which supported issuance of the warrant and remains under seal, contained knowingly false statements. (Compl. ¶¶ 6, 9, 10.) Putting aside for a moment the unrebutted testimony of Agent Jeneary that all statements contained in the warrant affidavit were truthful, the Complaint fails on its face to satisfy the pleading standards established in Iqbal and Twombly that are necessary to state a Fourth Amendment claim. The Complaint gives no indication of the substance of the alleged false statements and Plaintiffs’ response to Defendants’ motion does nothing to enhance the factual content on the issue of the claimed lack of probable cause. In their response, Plaintiffs merely quote the legal principles governing claims of qualified immunity and “contend that they allege [in their Complaint] sufficient facts to give notice of the allegations and potential claims.” (Pls.’s Resp. 3.) Plaintiffs’ response does not even mention probable cause or the allegedly false statements. Plaintiffs’ Complaint merely states the legal conclusion that Defendants “lacked probable cause” and gave “false statements” in support of the warrant affidavit. Such “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, supra 129 S.Ct. at 1949. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1948. Plaintiffs’ allegations do not “nudge” their claims across the line from possibility to plausibility. Plaintiffs’ Complaint fails to state a claim based upon insufficiency of the warrant or lack of probable cause to issue the warrant.

Permalink 10:01:16 am, by fourth, 233 words, 352 views   English (US)
Categories: General

M.D.Fla.: Approaching by the driveway does not violate curtilage

Officers approaching defendant’s house from the street up the driveway that led to a smell of fresh marijuana did not violate curtilage. “Even assuming the area of the driveway where the Agents detected the smell of cannabis was within the curtilage of the Banana Residence, the Agents still did not violate the Defendants’ Fourth Amendment rights. It is well established that ‘the Fourth Amendment is not “implicated by entry upon private land to knock on a citizen’s door for legitimate police purposes unconnected with the search of the premises.”’” United States v. Neth, 2010 U.S. Dist. LEXIS 83985 (M.D. Fla. March 30, 2010).*

A U.S. Forest Service Law Enforcement Officer was patrolling the El Dorado National Forest and nearly had an accident with the defendant. When they stopped on the snow covered road, she noticed that he looked like he was stoned. After getting his ID (no license) she came back and asked about marijuana, which he admitted he had. The stop and question was valid. United States v. Mitchell, 2010 U.S. Dist. LEXIS 84662 (E.D. Cal. July 16, 2010).*

Defendant filed a 2255 against defense counsel for, inter alia, not filing a motion to suppress. He did not show that he would not have pled guilty but for counsel’s not filing a motion to suppress which would have been denied anyway. Payton v. United States, 2010 U.S. Dist. LEXIS 83920 (E.D. Tex. June 30, 2010).*

Permalink 12:45:07 am, by fourth, 473 words, 782 views   English (US)
Categories: General

Cal.4th: By letting a probationer ride in the car, the owner did not become subject to a probation search

By permitting a parolee/probationer to ride in his car, the defendant did not reduce his expectation of privacy such that his car could be searched under the parole-probation search exception. To reduce a citizen's expectation of privacy for associating with parolee or probationers would ultimately be harmful to society. People v. Schmitz, 187 Cal. App. 4th 722 (4th Dist. 2010):

In this case, there was no evidence that Schmitz, merely by allowing a parolee to ride as a passenger in his car, ceded to that parolee any authority over the car at all, let alone the authority to permit inspections of the vehicle's interior “in his own right.” Indeed, there was no evidence Schmitz knew his passenger was a parolee. Had Schmitz left the vehicle in the parolee's possession, or allowed him to drive it, that would be different. (See People v. Ledesma (2006) 39 Cal.4th 641, 703 [47 Cal. Rptr. 3d 326, 140 P.3d 657] [“Cases from a number of jurisdictions have recognized that a guest who has the run of the house in the occupant's absence has the apparent authority to give consent to enter an area where a visitor normally would be received.” (Italics added.)]; United States v. Morales (1988) 861 F.2d 396, 399 [“Under the Matlock test, a driver of a vehicle has the authority to consent to a search of that vehicle. As the driver, he is the person having immediate possession of and control over the vehicle.”].) But Schmitz did neither. Instead, he simply allowed the parolee to visit the car temporarily as a passenger. Under those circumstances, the passenger/parolee himself would have had gained no expectation of privacy in the vehicle—and thus had no basis himself to either consent or object to its search (Rakas v. Illinois (1978) 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 [holding that mere passengers, who claimed neither a possessory nor any property interest in the vehicle searched, or in the items seized from it, could not object to the search or seizure])—while Schmitz gave up none of his own expectation of privacy, nor of his authority to prevent the officer's search of the vehicle.

Schmitz clearly had a reasonable expectation of privacy in his glove box, his console, his door pockets, his own seat, the back seat—indeed every part of his car except the front passenger seat where the parolee was sitting. The parolee, by contrast, had no expectation of privacy anywhere in the car and no standing to contest his own search. Nothing Schmitz did could reasonably have been viewed as ceding authority over his back seat to the parolee. The parolee had no right to open packages, eat food, or even read magazines he found in the back seat. He could only obtain authority over the chip bag at issue here by claiming ownership, which—given his lack of search and seizure rights—would have been bootless.

Permalink 12:26:01 am, by fourth, 281 words, 389 views   English (US)
Categories: General

E.D.Cal.: By entering a National Wildlife Refuge, a hunter does not impliedly consent to a search

By entering a National Wildlife Refuge, a hunter does not impliedly consent to a search. United States v. Azevedo, 2010 U.S. Dist. LEXIS 84591 (E.D. Cal. July 21, 2010):

Resolution of this motion therefore turns on whether by his entry onto the National Wildlife Refuge to hunt, Azevedo thereby gave his implied consent to a search for purposes of enforcing all applicable laws and regulations. The government argues that hunting in general is a heavily regulated activity and that all hunters are aware of compliance checks. The government also argues that various provisions of Title 50 C.F.R., state law, brochures, training booklets, and the "Harvest Record" permit issued to those hunting at the Colusa National Wildlife Refuge advise hunters of what they may and may not do (including that they may not possess controlled substances) and that they may be subject to ejection if they violate those provisions. Thus, the government concludes, just like an airline passenger who elects to fly thereby subjects himself to search upon entering the security checkpoint outside the gate area, defendant AZEVEDO had two options: enter the refuge and subject himself to possible search or not hunt. The government's argument misses the mark and is unpersuasive.

Where it is clear that the stop was justified, the standing question is moot. United States v. Houston, 2010 U.S. Dist. LEXIS 84438 (W.D. Tex. August 16, 2010).*

There was probable cause for issuance of four search warrants where the probable cause for the arrest was included in the affidavit for the warrants. The CI was corroborated and had a history with the officers. United States v. Ortega, 2010 U.S. Dist. LEXIS 84715 (D. Minn. May 25, 2010), adopted 2010 U.S. Dist. LEXIS 84706 (D. Minn. August 16, 2010).*

Permalink 12:18:24 am, by fourth, 340 words, 580 views   English (US)
Categories: General

CA10: Pulling a gun when perceiving a threat is reasonable

Officer's pointing a gun at an arrestee was not unreasonable. Handcuffing another who was cooperative with the police was unreasonable. Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010)*:

As an initial matter, the use of a gun does not in and of itself make an encounter an unlawful seizure. See United States v. Copening, 506 F.3d 1241, 1248 (10th Cir. 2007). "[T]he use of guns in connection with a stop is permissible where the police reasonably believe the weapons are necessary for their protection." United States v. Neff, 300 F.3d 1217, 1220 (10th Cir. 2002) (internal quotation marks omitted). "[T]he pointing of firearms should[, however,] be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time." Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (ellipsis and internal quotation marks omitted). In determining whether the use of weapons was reasonable, we look to the totality of the circumstances as viewed from the perspective of a reasonable officer on the scene. See Holland, 268 F.3d at 1188.

. . .

On these facts, when Officer Romero briefly pointed her gun at Lundstrom, she effectuated a reasonable seizure since she had a reasonable concern about her safety. See United States v. Perdue, 8 F.3d 1455, 1462-63 & n. 5 (10th Cir. 1993) (holding that effectuating an investigative detention by pointing guns at an individual was reasonable where the officers had reason to fear for their safety and noting officers need not be absolutely certain the individual is armed because the issue is whether reasonably prudent persons in the circumstances would be warranted in the belief that their safety is at risk). The encounter was limited in time and scope; Romero lowered her gun as soon as she saw Lundstrom's hands.

A swearing match between a citizen and an officer over the use of excessive force by using a take down move and slamming him to the floor seriously injuring him was enough to deny summary judgment. The law was well settled at the time. Shannon v. Koehler, 616 F.3d 855 (8th Cir. 2010).*

Permalink 12:08:54 am, by fourth, 277 words, 330 views   English (US)
Categories: General

CA3: Officers executing SW in high crime area could exclude occupants solely for safety of the officers

The Allentown SWAT team executed a search warrant in a homicide case at a bar in a high crime area known for weapons possession and drug dealing. The defendant was a security guard at the bar who was kept outside away from the bar, and he admitted having a gun, but he was a felon. This was valid, solely on safety of the officers. (The warrant was to collect videotapes, no less.) United States v. Allen, 618 F.3d 404 (3d Cir. 2010):

The only law enforcement interest relevant to our case, and indeed the only part of the Summers Court's reasoning that is applicable to the facts here, is minimizing the risk of harm to the officers. Indeed, the District Court relied solely on this interest in denying Allen's motion to suppress. We conclude that it was correct to do so because, per Rettele, in certain situations safety concerns alone may authorize a brief detention of the occupants of an establishment during execution of a search warrant, and the distinction between a search for contraband and a search for evidence is largely immaterial.

There is no evidence that ICE violated the immigrant’s rights in a warrantless arrest. “In any event, warrantless arrests of suspected illegal aliens are permissible in some situations, see 8 C.F.R. § 287.3 (2010), and there is no evidence that the government violated procedures associated with such an arrest in a way prejudicial to the petitioner in this case. See Martinez-Camargo, 282 F.3d at 492 (‘[T]he Supreme Court has held that where an administrative regulatory violation does not adversely affect a petitioner's substantive rights an exclusionary remedy is not available.’).” Gutierrez-Berdin v. Holder, 618 F.3d 647 (7th Cir. 2010).*

Permalink 12:01:40 am, by fourth, 175 words, 532 views   English (US)
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AL: 17-year-old could give third party consent to search parents home

In a case of first impression, a 17-year-old in control of the house while her parents were away had sufficient control over the premises to consent to a search of the premises, surveying many cases. Allen v. State, 44 So. 3d 525 (Ala. Crim. App. 2009), Released, Released for Publication August 2, 2010, Rehearing denied, 2009 Ala. Crim. App. LEXIS 206 (Ala. Crim. App., June 5, 2009). Lexis overview:

[A] minor child could provide valid third-party consent to a police request to search the house of the minor child's parents when no parent was present when the Atkins test was met. The court found that the test was satisfied: 1) the 17-year old daughter lived there; 2) she had the right of access to the house and the right to invite others there--although the computer in her parents' bedroom was password-protected, they entered the password so that she could access the Internet while they were away; 3) it was reasonable for the officers to conclude that she had sufficient control over the house to consent; and 4) she exercised sufficient discretion to freely consent to the warrantless search.


Permalink 09:00:57 am, by fourth, 189 words, 424 views   English (US)
Categories: General

NM: Probation officers' presence was pretext for criminal search

The probationer officer’s presence at the police search was subordinate to a police search and made it unreasonable. State v. Bolin, 2010 NMCA 66, 148 N.M. 489, 238 P.3d 363 (2010), Certiorari Denied, No. June 21, 2010, No. 32,416:

[*18] But for the police seeking Valdez on the outstanding warrant and their investigation, probation officers Guy and Carter never would have appeared at Defendant's doorstep. No home visit had been scheduled for that day and, once at Defendant's home, police actively participated in questioning Defendant, not only about Valdez's whereabouts, but about whether Defendant had herself been dealing drugs. Indeed, as Defendant's arrest warrant makes clear, police had Defendant in custody and were interrogating her while probation officers conducted the first search. When the probation officers' search revealed contraband, it was Sergeant Rains, not the probation officers on site, who ordered a halt while he could procure a search warrant.

A landlord had an expectation of privacy from a fire marshal’s administrative search, but the case is remanded for a hearing on the scope of the search of a common area. People v. M. Santulli, LLC, 2010 NY Slip Op 20328, 2010 N.Y. Misc. LEXIS 3836 (2d Dept. August 10, 2010).*

Permalink 08:43:09 am, by fourth, 266 words, 441 views   English (US)
Categories: General

D.Mass.: No standing in a package search where it wasn't addressed to defendant or sent by him

The government’s failure to support the CI in an affidavit for a search warrant for a package was not material because probable cause was otherwise shown, and the good faith exception would apply. Besides that, it is highly unlikely that the defendant even has standing to contest a search of a package that was neither sent by nor to the defendant. This latter issue is not decided, but only because the other issue was determinative. United States v. Contreras, 2010 U.S. Dist. LEXIS 84571 (D. Mass. August 18, 2010).*

Defendant passenger had standing to challenge the stop of the vehicle (which was with reasonable suspicion of a traffic offense), but not its search. United States v. Cruz-Chavez, 2010 U.S. Dist. LEXIS 84172 (D. Kan. August 17, 2010)*:

4. The court shall begin with the issue of standing. The government has only challenged the standing of the passenger, Toscano-Burgueno, to object to the car stop. During a traffic stop, a passenger is “seized” for Fourth Amendment purposes and thus has standing to challenge the validity of the stop at issue. Brendlin v. California, 551 U.S. 249, 251, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). However, the passenger's right to contest a subsequent search not of his or her person but the vehicle remains subject to analysis under Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). United States v. Cortez-Galaviz, 495 F.3d 1203, 1206 (10th Cir. 2007). In Rakas, the Supreme Court held that a passenger who asserts neither a possessory nor a property interest in a vehicle “would not normally have legitimate expectation of privacy” in the vehicle protected by the Fourth Amendment. Rakas, 439 U.S. at 148-49.

Permalink 08:40:15 am, by fourth, 321 words, 472 views   English (US)
Categories: General

E.D.Tenn.: Vehicle frisk was invalid under Long, but a search incident was valid pre-Gant

A vehicle “frisk” under Long was impermissible here because the officer’s actions don’t support it. A search incident of the vehicle was valid at the time it was done, but not under Gant. Although the Sixth Circuit hasn’t yet spoken on Gant good faith, this court determines that there is no deterrence by making Gant retroactive, so the search is valid as a search incident. United States v. Bawgus, 2010 U.S. Dist. LEXIS 83084 (E.D. Tenn. May 4, 2010)*:

In addition, the validity of an officer's protective conduct when evaluated under Terry is "the reasonableness in all circumstances of the particular governmental intrusion of a citizen's personal security." Pennsylvania v. Mimms, 434 U.S., at 108-109 (1977)(quoting Terry, supra, 392 U.S., at 19). As "the passengers are already stopped by virtue of the stop of the vehicle," Wilson, supra, at 413-414, "the additional intrusion on the passenger is minimal." Id. at 415. In this case, the officers did not act reasonably by conducting a "frisk search of the passenger compartment of the vehicle" while leaving the passenger in the vehicle. Asking the passenger to exit the vehicle would have been a minimal intrusion and would have been more likely to assure the safety of the officers if they suspected a weapon was in the vehicle or in the purse of the passenger. The fact that Officer Bowers left the passenger in the vehicle and walked back to talk to Officer Allman, after he had seen the passenger acting suspiciously in trying to retrieve her ID from her purse and after he suspected that she might have drugs or a weapon, flies in the face of assuring the safety of officers and is patently unreasonable.

Weighing all the factors of reasonable suspicion, which was found here, the fact defendants were coming from Phoenix was not indicative of anything, despite it being a “source city.” United States v. Avezov, 731 F. Supp. 2d 1194 (N.D. Ill. 2010).*

Permalink 08:11:34 am, by fourth, 350 words, 338 views   English (US)
Categories: General

TN: State showed nexus between defendant, his street name, and the place to be searched

Whether the defendant was identified by his street name of “Zee” with the place to be searched was unnecessary for nexus. Nexus essentially is proved by common sense. State v. Gleaves, 2010 Tenn. Crim. App. LEXIS 672 (August 13, 2010)*:

The justification for allowing the search of a drug dealer's home is that, under some circumstances, one may reasonably infer that a drug dealer is storing evidence of his drug activity in his home. Saine, 297 S.W.3d at 206. Both common sense and the information commonly set forth by police applying for drug-related search warrants support this idea. In fact, as the officer in this case advised, drug sellers "very often" hide evidence of their drug transactions in "locations which they control." In our view, therefore, one could reasonably infer that a drug dealer is storing drug-related material in a home he uses, though he may not formally reside in the home. We note that the alternative position, that an affidavit must clearly establish that the place to be searched is the dealer's formal residence, would require law enforcement to acquire documentation connecting a dealer to a home. Acquiring this documentation would be impossible in some cases, e.g. where a dealer permanently lives in a home but is not mentioned in the title or lease pertaining to the home. Further, efforts by law enforcement personnel to obtain this information might inadvertently alert the dealer of their intent to obtain a search warrant of his home, leading the dealer to remove or destroy evidence. Another obvious ramification of this approach would be that drug dealers would operate out of the home of another without threat of police searching the home.

Defendant was found to have voluntarily come with the police to talk to them as a suspect in a capital murder case. She had her cell phone and car keys and was told that appearing was voluntary. She admitted enough to get charged as an accessory. Ervin v. State, 333 S.W.3d 187 (Tex. App. – Houston (1st Dist.) 2010),* Petition for discretionary review refused by In re Ervin, 2010 Tex. Crim. App. LEXIS 1694 (Tex. Crim. App., Dec. 15, 2010).

Permalink 07:58:50 am, by fourth, 329 words, 387 views   English (US)
Categories: General

S.D.N.Y.: Government satisfied "all records" seizure in money laundering case

In a money laundering case, the government satisfied the “all record” exception to particularity of “pervaded” with fraud. United States v. D’Amico, 734 F. Supp. 2d 321 (S.D. N.Y. 2010):

When there is probable cause to believe that an entire business is “pervaded” or “permeated” with fraud, seizure of all records of the business is appropriate, and broad language used in a search warrant will not offend the particularity requirement. See U.S. Postal Serv. v. C.E.C. Servs., 869 F.2d 184, 187 (2d Cir. 1989); Nat’l City Trading Corp. v. United States, 635 F.2d 1020, 1024-25 (2d Cir. 1980); see also United States v. Smith, No. 05-CR-293A. 2007 U.S. Dist. LEXIS 52377, at *8 (W.D.N.Y. July 19, 2007) (“Although the particularity requirement of the Fourth Amendment creates a general presumption against ‘general’ or ‘all-records’ warrants, courts, including the Second Circuit, have recognized an exception where there is probable cause to believe that criminal activity permeates the business to be searched.”). This is known as the “‘all-records’ exception” to the particularly requirement, United States v. Burke, 718 F. Supp. 1130, 1139 (S.D.N.Y. 1989), although “[t]he principle is not so much an ‘exception’ to the particularity requirement… as a recognition that a warrant--no matter how broad--is, nonetheless, legitimate if its scope does not exceed the probable cause upon which it is based,” United States v. Bowen, 689 F. Supp. 2d 675, 683 n.6 (S.D.N.Y. 2010) (internal quotations and citation omitted).

In order to trigger the all-records exception, “it is not necessary that the affidavit supporting the search warrant set forth specific factual evidence demonstrating that every part of the enterprise in question is engaged in fraud.” Burke, 718 F. Supp. at 1139. “Rather, the affidavit need contain only sufficient factual evidence of fraudulent activity from which a magistrate could infer that those activities are ‘just the tip of the iceberg.’” Id. (quoting United States v. Offices Known as 50 State Distributing Co., 708 F.2d 1371, 1375 (9th Cir. 1983), cert. denied, 465 U.S. 1021, 104 S. Ct. 1271, 104 S. Ct. 1272, 79 L. Ed. 2d 677 (1984)).

Permalink 07:51:37 am, by fourth, 180 words, 390 views   English (US)
Categories: General

D.N.J.: Tipster giving call back information is more believable

A tipster who gave call back information was more believable. The officers here had reasonable suspicion. United States v. Williams, 2010 U.S. Dist. LEXIS 83568 (D. N.J. August 13, 2010).*

“The Court finds that Officer Campbell’s reasonable belief that he had smelled marijuana and Mr. Diop’s reaction to questioning about money were sufficient to provide that ‘necessary reasonable suspicion’ to prolong the stop.” There was also time involved in getting back a report on wants or warrants from dispatch. United States v. $275,000 in United States Currency, 2009 U.S. Dist. LEXIS 129529 (M.D. Tenn. March 16, 2009).*

Defendant was found to have consented to a search of his car. Despite a language barrier, he said “Si” and pointed to the car when consent was sought. United States v. Real, 2010 U.S. Dist. LEXIS 83383 (E.D. Mo. July 30, 2010).*

Officers received a citizen’s report of a man with a gun, and they went to investigate and saw the defendant with a gun in his waistband. That was reasonable suspicion for the stop. United States v. Watson, 2010 U.S. Dist. LEXIS 83564 (D. N.J. August 16, 2010).*


Permalink 08:12:45 am, by fourth, 339 words, 926 views   English (US)
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NJ: Chambers v. Maroney rejected under N.J. Constitution

Exigency for an automobile only applies to its seizure, not its search. Chambers v. Maroney, 399 U.S. 42, 51-52 (1970), rejected under the NJ Constitution. State v. Minitee, 415 N.J. Super. 475 (2010). Lexis overview:

Defendants' conviction arose from a series of armed robberies of massage parlors. The appeal challenged the warrantless search of a vehicle that served as the alleged getaway car. The court held that one defendant, who was an occupant of the vehicle at issue, had standing to challenge the propriety of the search because he had a participatory interest in the vehicle where the items seized by police were found as a result of having been an occupant. The court held that the warrantless search of the motor vehicle was constitutionally impermissible because the vehicle had been impounded and, once impounded, the police were required to obtain a search warrant since no exigent circumstances existed. In its opinion, the court harmonized the seemingly inconsistent holdings in State v. Martin, 87 N.J. 561 (1981) and State v. Pena-Flores, 198 N.J. 6 (2009), by finding that the exigent circumstances that existed at the scene only permitted the police to seize the vehicle. The court also construed a United States Supreme Court's opinion, permitting warrantless searches of vehicles impounded by the police, to constitute binding authority only under the Fourth Amendment, U.S. Const. amend. IV.

Nexus shown to defendant’s house where there was no other place that the defendant could have been keeping the drugs he was repeatedly selling the CI. Grant of suppression reversed. Commonwealth v. Young, 77 Mass. App. Ct. 381, 931 N.E.2d 494 (2010):

In this search and seizure drug case, we are faced with the knotty issue of nexus. Here, a confidential informant (CI) repeatedly 1 purchased drugs (once by way of a controlled buy) from the defendant, Sammy Young, always within walking distance of the defendant's apartment. It is difficult to discern, on this record, where else other than his apartment the drugs that the drug dealer peddled could have been stored. As such, we reverse the allowance of his motion to suppress.

Permalink 08:02:07 am, by fourth, 415 words, 345 views   English (US)
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MA: Conflict of laws: Blood draw in MD complied with requirements of MA law

Defendant was stopped while driving his victim's car in Maryland, and the officer saw blood on him. Blood was drawn in Maryland and sent back to Massachusetts for testing. Defendant was not prejudiced by how the blood draw was done in Maryland, and it complied with the requirements of Massachusetts law. Commonwealth v. Banville, 457 Mass. 530, 931 N.E.2d 457 (2010):

At such a hearing the judge “must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other.” Id. at 836, quoting Matter of an Investigation into the Death of Abe A., 56 N.Y.2d 288, 291, 437 N.E.2d 265, 452 N.Y.S.2d 6 (1982). Such a hearing need not extend beyond affidavits and documentary evidence. Commonwealth v. Maxwell, 441 Mass. 773, 779, 808 N.E.2d 806 (2004). Written findings are preferred, but their absence “is not fatal where the record plainly supports the conclusion that any weighing of these factors would tilt heavily in favor of granting the Commonwealth's [application for the search warrant].” Id. at 779 n.13. See Commonwealth v. Williams, 439 Mass. 678, 685-686, 790 N.E.2d 662 (2003). The defendant does not suggest that any of these procedures are required under Maryland law.

Here, the record reflects that the warrant application plainly satisfies Massachusetts evidentiary requirements. Murder and rape are serious crimes. DNA evidence that definitively identifies the victim's blood or other bodily fluids on the defendant's person, or his saliva on the victim's body in areas suggesting sexual activity, is of great importance to the investigation. Finally, the intrusiveness of a buccal swab is minimal. See Commonwealth v. Maxwell; Commonwealth v. Williams, supra. Although there was no adversary hearing, the defendant has offered no argument that might have been made on his behalf at such a hearing, other than a contest of probable cause. If the Commonwealth had waited to apply for a warrant to obtain a buccal swab from the defendant, an adversary hearing would have been held and, based on the information in this application, a search warrant probably would have issued. The defendant has failed to show that the absence of an adversary hearing created a substantial likelihood of a miscarriage of justice.

This really begs the question: What if the blood draw was in complete accord with the other state's law? What deterrence is there in Massachusetts for a Maryland law enforcement officer doing what is required of him?

Permalink 07:45:33 am, by fourth, 150 words, 298 views   English (US)
Categories: General

LA4: State's unsworn motion for DNA inadequate

The state filed an unsworn motion for a DNA sample from the defendant, which the trial court granted. The defendant’s motion for a supervisory writ is granted. The state’s unsworn motion for DNA did not say why it needed it, and this is insufficient. State v. Franklin, 46 So. 3d 814 (La. App. 4th Cir. 2010).*

Defendant pleaded guilty to attempted murder. His argument on appeal that his motion to suppress the search of a black bag with drugs in it should have been granted was irrelevant to this case. State v. Bass, 47 So. 3d 541 (La. App. 2d Cir. 2010).*

The defendant’s girlfriend let the police search the defendant’s storage unit. She had the key and the access code. It was reasonable for the police to believe that she had apparent authority to consent, and the trial court credited findings of consent. United States v. Burcham, 388 Fed. Appx. 478 (6th Cir. 2010).*


Permalink 12:59:52 pm, by fourth, 337 words, 385 views   English (US)
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CA6: Handcuffing man having a seizure violated Fourth Amendment

Officers who handcuffed a man having a seizure violated clearly established rights and had no qualified immunity. McKenna v. Edgell, 617 F.3d 432, 2010 FED App. 0249P (6th Cir. 2010), prior appeal, McKenna v. City of Royal Oak, 469 F.3d 559 (6th Cir. 2006):

We conclude that whether the officers were entitled to qualified immunity depends on whether they acted in a law-enforcement capacity or in an emergency-medical-response capacity when engaging in the conduct that McKenna claimed violated the Fourth Amendment. If the officers acted as medical-emergency responders, then McKenna’s claim would amount to a complaint that he received dangerously negligent and invasive medical care. Under a function-dependent view of Peete, if any right to be free from such unintentional conduct by medical-emergency responders exists under the Fourth Amendment, it is not clearly established. Peete, 486 F.3d at 219. If the defendants acted in a law-enforcement (e.g., investigative or prosecutorial) capacity, however, McKenna’s claim does not “look[] like a medical malpractice claim,” id. at 222; rather, his claim is that he was subject to an unreasonable seizure and search. It is certainly clearly established that police violate the Fourth Amendment when they handcuff people whom they neither suspect of criminal wrongdoing nor believe to be a danger to themselves or others. See United States v. Davis, 514 F.3d 596, 607, 610 (6th Cir. 2008) (noting that an arrest is valid only if based on probable cause that defendant committed a crime); Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997) (“The Fourth Amendment requires an official seizing and detaining a person for a psychiatric evaluation to have probable cause to believe that the person is dangerous to himself or others.”); cf. Marvin v. City of Taylor, 509 F.3d 234, 248 (6th Cir. 2007) (“[I]t is clearly established that handcuffing an arrestee in an objectively unreasonable manner is a Fourth Amendment violation.”). Likewise, a person has a clearly established right to be free from unreasonable searches, including a warrantless search in the absence of exigent circumstances or some other warrant exception. See United States v. Purcell, 526 F.3d 953, 960 (6th Cir. 2008).

Permalink 09:07:46 am, by fourth, 149 words, 581 views   English (US)
Categories: General

CA10: A strip search for disorderly conduct was unreasonable

Plaintiff’s arrest for disorderly conduct did not justify his strip search. Stearns v. Clarkson, 615 F.3d 1278 (10th Cir. 2010).*

Plaintiff attorney’s supposed First and Fourth Amendment claims against the Pennsylvania Supreme Court for a disciplinary action for her actions in federal court was patently frivolous and was properly dismissed with sanctions. Her ad hominem attacks against one of the judges requires she be referred to the disciplinary committee. Haagensen v. Supreme Court of Pa., 390 Fed. Appx. 94 (3d Cir. 2010) (unpublished).*

Defendant was encountered in a high crime area in the rain, without a coat, carrying a duffle bag. The officer talked to him and got identifying information and let him go. He checked that information and found it was false. He reencountered the defendant and the defendant abandoned the bag. Searching the bag gave PC for a search for his house. United States v. Labelle, 390 Fed. Appx. 539 (6th Cir. 2010).*

Permalink 08:51:52 am, by fourth, 476 words, 361 views   English (US)
Categories: General

CA7: Disclaimer of ownership of a backpack in hand was not a complete abandonment, but he could still show a REP, but did not

Officers had search warrants and were on a drug sweep. That knocked on one door, and defendant ran out the back carrying a backpack. The officers were justified in stopping him and searching the backpack for a weapon. He got on the ground when directed, and the officers were not obliged not to look in the backpack just because he stopped. When stopped, he disclaimed ownership in the bag. That was not a pure abandonment, but he did not show a subjective expectation of privacy in the backpack. United States v. Carlisle, 614 F.3d 750 (7th Cir. 2010):

While we ultimately agree with the government's position, this case is closer to the line than it appears at first glance. Although Carlisle disclaimed ownership of the bag, there is no dispute that Carlisle was legitimately in possession of the property. This distinguishes Carlisle's situation from that of Rawlings, where Cox was in possession of the purse at the time of the search, and Peters, who was not near the car at the time of the search. Carlisle also indicated that he intended to maintain privacy in the bag by holding onto it as he left the house and by keeping it closed. The issue of exclusivity is murkier. From the testimony, it appears that at the time he was in possession of the bag, he had the right to exclude all others from the bag except Chapman. This factor distinguishes this case from Amaral-Estrada, where Amaral-Estrada expected others to take things from and leave things in the car while he was entrusted with it. What makes it questionable that Carlisle had exclusive control is the appellant's own testimony that he did not know what was in the bag or who was using the bag immediately prior to his taking it. This testimony strongly cuts against any claim of exclusive control and makes Carlisle's situation similar to Rawlings's situation where he lacked control over who had access to the searched property prior to the search. What pushes this case fully over the line is the complete lack of testimony that Carlisle had any subjective expectation that the bag would remain free from governmental invasion. Carlisle bears the burden of proving that he had a subjective privacy interest in the bag sufficient to challenge the search. See Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619. The record lacks any evidence of this subjective expectation and Carlisle's testimony cuts against a finding of any subjective expectation of privacy in the bag since he disclaimed ownership or even knowledge of its contents. Therefore, we find that Carlisle did not have a reasonable expectation of privacy in the backpack sufficient to allow him to challenge the search. Because Carlisle cannot validly assert a Fourth Amendment challenge to the search of the backpack, we do not reach the merits of whether the search was proper.


Permalink 11:54:47 pm, by fourth, 207 words, 337 views   English (US)
Categories: General

CA11: GFE applies to pre-Gant search incident ; alternatively, it was an inventory

The search of defendant’s car was valid under Belton, but not Gant, so the Gant good faith exception applies. Alternatively, inevitable discovery applied because the vehicle would be inventoried. United States v. Ethingor, 388 Fed. Appx. 858 (11th Cir. 2010).*

The defendant was stopped at a roadblock which had some defects in its establishment, but it was not unconstitutional because it was apparent what it was. When the officers saw defendant’s vehicle stop, a flashlight was shined in, and a bag of marijuana was seen in plain view. The use of the flashlight was not a search. United States v. Cole, 2010 U.S. Dist. LEXIS 82822 (N.D. Ga. August 11, 2010),* adopting 2010 U.S. Dist. LEXIS 82737 (N.D. Ga. May 12, 2010).*

A second entry without a warrant did not require suppression of a search warrant because nothing additional was seen or taken that had not already been found. United States v. Bergin, 732 F. Supp. 2d 1235 (M.D. Fla. 2010).*

A certificate of appealability (COA) from denial of habeas relief for failing to pursue a motion to suppress based on the smell of marijuana was denied because the case raises no issue for appeal that reasonable jurists would differ on. Mosby v. United States, 2010 U.S. Dist. LEXIS 83373 (C.D. Ill. August 12, 2010).*

[posted 8/18/10]


Permalink 08:54:15 am, by fourth, 286 words, 487 views   English (US)
Categories: General

IA: Fourth Amendment and state statute do not require warrant be at scene of search

Neither the Fourth Amendment (Grubbs and Groh) nor state law requires that a search warrant (here for a blood draw) requires that the warrant be in the hand of the executing officer. It may be “foolhardy,” but it is not unconstitutional. State v. Breuer, 2010 Iowa App. LEXIS 838 (August 11, 2010).

In United States v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987), the Eighth Circuit was presented with the argument that “it was unreasonable for law enforcement officials to commence the searches prior to the arrival of a warrant.” The court disagreed.

While it may be foolhardy to proceed in the absence of the physical presence of the warrant, it is not unconstitutional. Nothing in the [F]ourth amendment or Rule 41 requires that the search warrant be physically present prior to commencing the search. ...

“The Fourth Amendment says nothing specific about formalities in exercising a warrant's authorization,” it speaks to the manner of searching as well as to the legitimacy of searching “simply in terms of the right to be 'secure ... against unreasonable searches and seizures.'” United States v. Banks, 540 U.S. 31, 35, 124 S. Ct. 521, 524-25, 157 L. Ed. 2d 343, 352 (2003). Instead, the issue is one of reasonableness, which is determined on a case-by-case basis. Id. at 35-36, 124 S. Ct. at 525, 157 L. Ed. 2d at 352.

. . .

We agree with the [Grubbs] Court that the right of a person to be free from unreasonable searches and seizures is protected not by the person’s right to argue with law enforcement during execution of a warrant, but “by interposing, ex ante,” the “deliberate, impartial judgment of a judicial officer ... between the citizen and the police,” and “by providing, ex post, a right to suppress evidence improperly obtained.” Id. at 99, 126 S. Ct. at 1501, 164 L. Ed. 2d at 205.

Permalink 08:36:39 am, by fourth, 190 words, 323 views   English (US)
Categories: General

NY2: Failure to pay motel for room means no reasonable expectation of privacy

If the rent on a room is unpaid, the occupant has no reasonable expectation of privacy in it. The officers conducted a knock-and-talk to evict defendant for noise and unpaid fees, and the officers smell burnt marijuana and could see scales from the door. He admitted to smoking marijuana in the room. People v. Hardy, 2010 NY Slip Op 6382, 77 A.D.3d 133, 907 N.Y.S.2d 244 (2d Dept. 2010).

Gant should not be retroactive to a search that occurred before it was decided because there is no deterrent effect on officers. United States v. Tschacher, 2010 U.S. Dist. LEXIS 81092 (D. Neb. May 20, 2010).*

Defense counsel can choose the issues to appeal, and the record shows that the decision not to appeal a search claim was justified because defendant would not have prevailed because probable cause was shown. United States v. Thao, 2010 U.S. Dist. LEXIS 82260 (D. Minn. August 12, 2010)* (considering Gates’s “soft standard” of probable cause, it would take a really bad case to win on appeal).

There was reasonable suspicion for defendant’s stop for DUI because of his touching the fog line 16 times. State v. Mohl, 2010 ND 120, 2010 N.D. LEXIS 118 (June 30, 2010).*

Permalink 08:14:04 am, by fourth, 251 words, 649 views   English (US)
Categories: General

VA: Arrest for trespassing justified search incident

Defendant was seen under a “No Trespassing” sign behind a business engaging in hand-to-hand drug sales. The officer had probable cause to arrest for trespassing and then engage in a search incident. Joyce v. Commonwealth, 56 Va. App. 646, 696 S.E.2d 237 (2010)*:

In this case, we need not address whether the officer had reasonable grounds to believe Joyce was armed and dangerous for purposes of a Terry frisk if -- as the trial court found -- the officer had probable cause to arrest Joyce for trespassing prior to his search. “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001). The power to arrest is invariably coupled with the power to search incident to arrest. Moore, 553 U.S. at 178. We thus turn to the question whether the officer had probable cause to arrest Joyce for trespassing.

As the United States Supreme Court has recently emphasized, the “very phrase 'probable cause' confirms that the Fourth Amendment does not demand all possible precision.” Herring v. United States, 129 S. Ct. 695, 699, 172 L. Ed. 2d 496 (2009). We thus employ a “common sense approach” not a “hypertechnical, rigid, and legalistic analysis” when reviewing probable cause determinations. ... The standard is not calibrated to “deal with hard certainties, but with probabilities.” ... Nor does it “demand any showing that such a belief be correct or more likely true than false.” ....


Permalink 09:39:49 am, by fourth, 423 words, 368 views   English (US)
Categories: General

CA7: A diabetic assaulted by officer for suspected DWI survives summary judgment

Plaintiff’s case against an officer for excessive force who was “pissed off” at plaintiff for allegedly being a drunk driver resulted in plaintiff being thrown to the ground and seriously manhandled and injured survives summary judgment and qualified immunity. Plaintiff was in hypoglycemic shock, which the officer was trained to recognize, and an EMT saw plaintiff’s medical alert bracelet and the officer then calmed down and removed the handcuffs from plaintiff’s bleeding wrists. McAllister v. Price, 615 F.3d 877 (7th Cir. 2010)*:

Claims that officers used excessive force in seizing a person are evaluated under the Fourth Amendment's reasonableness standard. See Acevedo v. Canterbury, 457 F.3d 721, 724 (7th Cir. 2004). The dispositive question is whether, in light of the facts and circumstances that confronted the officer (and not 20/20 hindsight), the officer behaved in an "objectively reasonable" manner. See Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The Supreme Court has directed lower courts to consider three factors in this inquiry: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of officers or others; and (3) whether the suspect is actively resisting arrest by flight. Id. at 396.

. . .

While we are hesitant to second-guess the snap judgments made by law enforcement personnel, McAllister has come forward with enough evidence so that a jury could infer that Price's mistaken belief that McAllister was intoxicated was unreasonable. It was clear to Price, as it was to the other witnesses, that McAllister was impaired in some way during and after the accident. Thus, this is not a case like Estate of Phillips, where the plaintiff's medical condition was completely hidden. Multiple eyewitnesses observed McAllister to be convulsing or twitching, and at least one concluded that McAllister was not intoxicated. Price was trained to ask if someone who appears unwell is diabetic, but did not do so before applying the challenged force. McAllister was wearing a medical alert necklace--something that Price was trained to look for--but Price made no attempt to check for it until this course of action was suggested by a witness. Finally, Price was trained to recognize people under the influence of alcohol and drugs; yet if we draw all reasonable inferences in favor of McAllister, Price did not follow that training and leapt to the conclusion that McAllister was intoxicated. For these reasons, the district court did not err in finding a genuine issue of material fact regarding McAllister's diabetic condition.

Lower court opinion: McAllister v. Town of Burns Harbor, 693 F. Supp. 2d 815 (N.D. Ind. 2010).

Permalink 09:23:36 am, by fourth, 375 words, 466 views   English (US)
Categories: General

N.D.Ind.: Abortion provider's suit against inspection of records without court order or subpoena not ripe

Local ordinance mandated government review of some medical records upon a “credible complaint” about itinerant doctors providing abortion services without backup medical care. The plaintiff doctor sued over application of the ordinance to him. The court held that the Fourth Amendment claim was not ripe for decision because there had been no effort to review his medical records. The ordinance may very well create a constitutional violation, but the case is not ripe to decide it. Ft. Wayne Women’s Health v. Bd. of Comm'rs, Allen County, Ind., 2010 U.S. Dist. LEXIS 82128 (N.D. Ind. August 11, 2010):

Dr. Klopfer insists his Fourth Amendment challenge is an as-applied challenge. The Board of Commissioners argues that the challenge isn't ripe because no search has occurred yet, so Dr. Klopfer's challenge must be considered a facial Fourth Amendment challenge to the ordinance, which courts disfavor. The distinction makes no difference here. Without a subpoena, unconsented searches of patient records would be unconstitutional. Because the case law is so developed on this question, no government official would be entitled to qualified immunity in a § 1983 suit if he or she conducted such an unconsented search. See Doe v. Heck, 327 F.3d at 517 ("At this juncture, however, we now make it clear that it is patently unconstitutional for government officials to search the premises of a private or parochial school and/or seize a child attending that school without a warrant or court order, probable cause, consent, or exigent circumstances."); see also Camara v. Municipal Court, 387 U.S. at 528-529 (stating that search of private property without proper consent is unreasonable unless authorized by valid search warrant). Though the ordinance might be read as providing an instruction to conduct an unconstitutional search, it is appropriate to presume that government officials in Allen County will apply the ordinance in a constitutional manner and obtain either consent or a subpoena before undertaking a search of patient notification forms. See, e.g., United States v. Ramsey, 503 F.2d 524, 530-531 (7th Cir. 1974) (noting that normal application of statute wouldn't ordinarily lead to Fourth Amendment violations and that unconstitutional applications of the statute were inhibited by other protections). In the absence of an actual unconstitutional search, Dr. Klopfer is unlikely to succeed on his Fourth Amendment claim.

Permalink 08:01:04 am, by fourth, 218 words, 425 views   English (US)
Categories: General

E.D.Ky.: "Evidence of thefts of ATVs" is particular enough because the crime has certain indicia during the search, like a key copier

A particularity clause for evidence of ATV thefts was sufficiently particular. “The universe of responsive items reasonably finds a limit in the subject matter of the designated crime, which in this case presents a logical and discernible limit and thus confines officer discretion. See, e.g., Sanders v. Parrish, 141 F. App'x 412, 417 (6th Cir. 2005) (referencing materials in the search warrant affidavit to remedy a deficient description of items to be seized).” United States v. Taylor, 2010 U.S. Dist. LEXIS 81617 (E.D. Ky. July 26, 2010) (R&R), adopted United States v. Taylor, 2010 U.S. Dist. LEXIS 81769 (E.D. Ky. August 11, 2010) (“While multiple items could fall within the warrant’s terms, this by no means dooms the warrant’s particularity. ... Other courts have held that warrants with language similar to the warrant issued in this case are sufficiently particularized.”).*

“James Cameron moves to suppress evidence obtained by Yahoo! during its search of photo albums located on the Yahoo! Network. The Court rejects the Defendant's contention that in searching for and reporting to the Government that one of its customers was committing a crime against children, Yahoo! acted as an agent of the Government for Fourth Amendment purposes.” Yahoo! was acting as a citizen informant in turning the evidence over to the government. United States v. Cameron, 729 F. Supp. 2d 418 (D. Me. 2010).*

Permalink 12:17:37 am, by fourth, 372 words, 440 views   English (US)
Categories: General

CA6: "Frisk" of a suspected bank robber's duffle bag for the gun they reasonably believed he had was reasonable

Frisking defendant’s duffle bag that was partly unzipped for a weapon that the officers reasonably believed was in there was reasonable. He was wanted for bank robbery, and there was reason to believe he was armed. United States v. Walker, 615 F.3d 728, 2010 FED App. 0244P (6th Cir. 2010):

The directive to steer clear of “unreasonable” searches cannot be reduced to a “frisk first” or any other one-size-fits-all command, which is presumably why courts of appeals have declined to adopt a “frisk first” requirement for Terry searches. See, e.g., United States v. Shranklen, 315 F.3d 959, 963-64 (8th Cir. 2003); United States v. Thomson, 354 F.3d 1197, 1200-01 (10th Cir. 2003); United States v. Rhind, 289 F.3d 690, 693-94 (11th Cir. 2002); United States v. Brown, 133 F.3d 993, 998-99 (7th Cir. 1998). Other courts likewise have recognized that non-frisk search methods may be reasonable under the Fourth Amendment. See, e.g., United States v. Landry, 903 F.2d 334, 337 (5th Cir. 1990) (grabbing a bag and looking inside); People v. Jackson, 79 N.Y.2d 907, 590 N.E.2d 240, 241, 581 N.Y.S.2d 655 (N.Y. 1992) (shining a flashlight through a plastic bag). The courts’ job is to ask what was reasonable under the circumstances, not to poke and prod for lesser-included options that might not occur to even the most reasonable and seasoned officer in the immediacy of a dangerous encounter.

If it is a loaded gun that concerns the officer, moreover, it is by no means clear that poking and prodding the outside of a duffel bag is the most sensible way to find it. No doubt, the frisking of the outside of a bag intrudes less on the privacy of the suspect. But at what cost? Who looks for a gun by aimlessly grabbing and manipulating the outside of a large bag that may or may not contain the gun--and a loaded gun at that? That, we suspect, is not what gun-safety programs recommend. If Terry permits officers to open a closed container located in a car after a stop and after the officers have removed the passengers from the car, see Long, 463 U.S. at 1050-51, it surely permits an officer to unzip a duffel bag, one that is already partially unzipped, to see what is lying on top of it.

Permalink 12:08:51 am, by fourth, 500 words, 697 views   English (US)
Categories: General

CA10: Use of deadly force that does not stop or seize a person is not a Fourth Amendment issue

Officers shot at a burglar who shot at them, hitting him, but he fled the scene. He was apprehended three days later. The use of deadly force against him was not a seizure since he was not seized. Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010):

Following Hodari and Lewis, the Supreme Court again considered what constitutes a seizure by summarizing, “[a] person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (internal quotation marks and citations omitted and emphasis added). As to Hodari and Lewis, it further clarified, “[a] police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” Id. As to what constitutes actual “submission,” the Supreme Court explained it depends on ‘the totality of the circumstances -- the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981), and, as the Brendlin Court offered, “what may amount to submission depends on what a person was doing before the show of authority; a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.” 551 U.S. at 262.

Not only have we applied these same principles in considering seizure situations, but none of our holdings suggest the mere use of physical force or show of authority alone, without termination of movement or submission, constitutes a seizure. For instance, in Reeves, we determined two individuals were not “seized” for the purpose of a Fourth Amendment violation when law enforcement officers pointed their guns at them and ordered them not to move, but they failed to submit to their assertions of authority. See 484 F.3d at 1248-50, 1253-54 & n.17. In Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997), we held an officer did not seize a suspect during an interstate pursuit, even though he shot out two of the suspect’s tires, given it “did not cause [him] to submit to … authority or succeed in stopping him.” Id. at 700. Likewise, in Bella, we determined a seizure did not occur when a law enforcement officer shot at and struck a helicopter operated by an innocent hostage. 24 F.3d at 1254-56. We concluded that while the shots constituted an intentional assertion of authority, they did not cause the hostage to submit or otherwise succeed in stopping him, and therefore, it did not constitute a seizure within the meaning of the Fourth Amendment. Id. at 1255-56. Similarly, in this case, the intentional use of deadly force in shooting Mr. Brooks neither prevented his freedom of movement nor otherwise succeeded in stopping him.


Permalink 07:36:37 pm, by fourth, 269 words, 348 views   English (US)
Categories: General

CA1: Probationer who completes probation can't bar later use of DNA in CODIS

A probationer who completed his probation who had DNA taken for his false statements offense had no right to keep the government from ever using his DNA. However, the court leaves open the possibility that other, more intrusive, uses of DNA may be actionable. Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010).*

We recognize, as we did in Weikert, the possibility that the government may eventually seek to put Boroian’s retained DNA profile to uses that go beyond the mere matching of identification records, thereby making the fingerprint analogy less powerful and providing the basis for an argument that a new search has occurred. For example, “scientific advances might make it possible to deduce information beyond identity from the junk DNA” that forms the thirteen-loci profiles stored in CODIS. Weikert, 504 F.3d at 12-13. Future government uses of the DNA profiles in CODIS could potentially reveal more intimate or private information about the profile’s owner and depart from the uses for which the profiles were originally lawfully created and retained.

Defendant raised a search issue in a suppression motion and then pled to the charge, so he waived the suppression motion and he does not show that it was ineffective not to have. United States v. Sterling, 2010 U.S. Dist. LEXIS 81285 (W.D. La. August 5, 2010).*

The illegal immigrants in this case consented to give officers information about their immigration status, so the exclusionary rule does not apply to this immigration proceeding. The alleged violation of Fourth Amendment rights would have to be egregious for exclusion to apply, and this was not. Martinez-Medina v. Holder, 616 F.3d 1011 (9th Cir. 2010).*

Permalink 07:10:35 pm, by fourth, 224 words, 456 views   English (US)
Categories: General

N.D.Cal.: Officer's demanding consent or be arrested was without reasonable suspicion, so it is suppressed

The officer had a hunch there was contraband in defendant’s car, and he told her to turn it over under threat of arrest. This was not consent. United States v. Darling, 2010 U.S. Dist. LEXIS 81658 (N.D. Cal. July 14, 2010)*:

Defendant handed the putative contraband over to Ranger Jay only after he threatened arrest (as opposed to a citation) if she did not. Consent to a search is not voluntary when made under a threat of arrest. The Ninth Circuit has observed that even if an arrest had not yet been made, "consent obtained under threat of subjecting [Defendant] to such an arrest cannot be said to be voluntary." United States v. Ocheltree, 622 F.2d 992, 994 (9th Cir. 1980); United States v. Soriano, 361 F.3d 494, 602 (9th Cir. 2004) (factors in assessing voluntariness of consent include whether defendant was in custody [see discussion below regarding arrest], whether Miranda warnings were given, and whether defendant was notified that she had a right not to consent).

Defendant ran from the police on a “show of authority” and abandoned his gun. A show of authority is not a seizure. United States v. Baker, 2010 U.S. Dist. LEXIS 81457 (S.D. Ohio July 1, 2010).*

Defendant’s traffic stop was valid, despite the subjective basis argued for it, so everything flowed from that. United States v. Raffa, 2010 U.S. Dist. LEXIS 81573 (E.D. Tenn. July 22, 2010).*


Permalink 06:36:09 pm, by fourth, 427 words, 2447 views   English (US)
Categories: General

CA9: Rehearing en banc denied in Pineda-Moreno, with 5 dissenting

The Ninth Circuit upheld GPS surveillance in United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. January 11, 2010). Yesterday, the denial of rehearing en banc was entered, with Judge Kozinski dissenting, with four others:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

. . .

I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

Permalink 08:33:51 am, by fourth, 461 words, 498 views   English (US)
Categories: General

CA9: Search incident of closed containers in a car was invalid where defendant was handcuffed in a police car

Search incident of closed containers in a car without probable cause was invalid as a search incident. The defendant was handcuffed and in a police car at the time, and there was no exigency. United States v. Maddox, 614 F.3d 1046 (9th Cir. 2010):

Contrary to the dissent’s opening description, this was not a search of Maddox’s person incident to arrest. Maddox’s person was handcuffed in the back of the squad car, incapable of either destroying evidence or presenting any threat to the arresting officer. While the key chain was within Maddox’s immediate control while he was arrested, subsequent events—namely Officer Bonney’s handcuffing of Maddox and placing Maddox in the back of the patrol car—rendered the search unreasonable. In Turner, we found valid the search of baggies found after the defendant was handcuffed and taken into the next room because of a legitimate concern for the officers’ safety: “they had already discovered a concealed weapon beneath the bedding.” Id. at 888; accord United States v. Hudson, 100 F.3d 1409, 1420 (9th Cir. 1996) (search of bedroom valid search incident to arrest even after defendant had been arrested and removed from the room, where “[w]hen Hudson was called out of his bedroom and arrested, one of the arresting officers noticed a rifle case near his feet”). No such weapon or threat was found here, and Maddox’s demeanor, as the dissent argues, see Dissenting Op., at 11445 n.1, did not provide such legitimate concern for Officer Bonney’s safety, as after initially yelling, Maddox subsequently cooperated with the officer and the arrest. Mere temporal or spatial proximity of the search to the arrest does not justify a search; some threat or exigency must be present to justify the delay. See United States v. Chadwick, 433 U.S. 1, 15 (1977), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 571 (1991) (“warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the search is remote in time or place from the arrest, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.”) (internal quotations and citations omitted). With Maddox handcuffed in the backseat of the patrol car, no possibility of Maddox concealing or destroying the key chain and the items contained therein, and no sighting of weapons or other such threats, Officer Bonney’s search of Maddox’s key chain was not a valid search incident to arrest.

Permalink 08:26:12 am, by fourth, 384 words, 428 views   English (US)
Categories: General

CA3: Search incident of gym bag of handcuffed defendant was valid

The officer had a warrant for the defendant and saw him in a check-in line at a hotel with a gym bag in hand. When the defendant’s confederate saw the officer, he shouted out to the defendant who turned to look at him. Hotel security grabbed the confederate. The officer grabbed defendant to arrest him, and the defendant dropped the gym bag to his feet. Defendant was handcuffed, and the search incident of the bag on the spot was valid under Gant. United States v. Shakir, 616 F.3d 315 (3d Cir. 2010):

We held that this search was not lawfully incident to Myers's arrest. In doing so, we quoted with approval an opinion of the Court of Appeals for the District of Columbia Circuit which suggested that a search under these circumstances would be valid as incident to the arrest "[a]bsent some objective basis upon which to conclude that the arresting officer had no reason to fear either the arrestee or the environment in which the arrest unfolded." Id. at 267 (quoting United States v. Abdul-Saboor, 85 F.3d 664, 670, 318 U.S. App. D.C. 98 (D.C. Cir. 1996) (emphasis omitted)). We also acknowledged that "where, in the heat of an arrest, an officer concludes that a particular item is within the arrestee's grasp, courts are extremely reluctant to subsequently determine that the officer's conclusion was unreasonable and thereby suppress whatever evidence may have been found." Id. at 273. Nevertheless, the facts of Myers's case presented an objective basis to conclude that he was no longer dangerous when the search occurred: he was lying on the floor and guarded by two policemen, he had already been frisked for weapons, the bag that was searched was three feet away from him and zipped shut, and the searching officer had not seen the need to search the bag at the time of arrest, but instead went downstairs and interviewed a witness first. Id. Significantly for purposes of the instant appeal, we noted that, "[h]ad [the officer] searched the bag . . . before going downstairs, we would have a different set of circumstances to consider against the teachings of Chimel and its progeny." Id. at 274. We also emphasized that the officer's testimony suggested that he was not concerned about the possible presence of a weapon until after he opened the bag. Id. at 274.

Permalink 08:09:32 am, by fourth, 192 words, 288 views   English (US)
Categories: General

NY1: Statute may say a court may specifically order a probation search, but a court can still order home visits

The trial court ordered home visits by a probation officer as a condition of probation. Statute also said that courts could order entries. Home visits do not require a court order, and the probation search here satisfied Griffin. People v Pagan, 2010 NY Slip Op 6351, 76 A.D.3d 414, 906 N.Y.S.2d 37 (1st Dept. 2010).*

Defendant was stopped for crossing the fog line a few times, and the officer asked for and received a general consent to search, which the defendant did not dispute. The scope of that consent was broad, and the officer could look in kitty litter containers. United States v. Guajardo, 388 Fed. Appx. 483 (6th Cir. 2010).*

The issue of defendant’s stop for traffic offenses leaving a known drug house under surveillance was deemed frivolous on this record by defense counsel, and it was. United States v. Hayden, 389 Fed. Appx. 544 (7th Cir. 2010).*

In an invasion of privacy suit, appellant is a worker’s compensation claimant who was videotaped from the street in a mosque praying for 45 minutes in front of a window. He had no expectation of privacy in front of a window. Tagouma v. Investigative Consultant Servs., 2010 PA Super 147, 4 A.3d 170 (2010).*


Permalink 08:00:48 am, by fourth, 166 words, 317 views   English (US)
Categories: General

M.D.Fla.: Three month old information was not stale where current information corroborated it

Information that was three months old about drug sales was not stale when it was conected to information from a neighborhood watch group meeting regularly that defendant was engaged in hand to hand sales from the premises. United States v. Powell, 2010 U.S. Dist. LEXIS 80320 (M.D. Fla. July 9, 2010).*

Defendant’s arrest in his car also justified the search of the car under the automobile exception, and Gant was not an issue. United States v. Dixon, 2010 U.S. Dist. LEXIS 80463 (W.D. N.Y. May 26, 2010).*

The officer was able to articulate a reasonable suspicion for a stop of the defendant for driving without a license based on eight month old information and defendant’s general pattern of driving without a license. United States v. Cherry, 2010 U.S. Dist. LEXIS 80435 (E.D. Pa. August 9, 2010).*

Defendant’s stop was based on his headlights not being on at dusk, and the officer approached and smelled burnt marijuana. United States v. Blair, 2010 U.S. Dist. LEXIS 80621 (E.D. Tenn. July 13, 2010).*


Permalink 03:35:45 pm, by fourth, 205 words, 456 views   English (US)
Categories: General

CCR notes 21% increase in stop and frisk in NYC

The Center for Constitutional Rights issued a press release this afternoon concerning the fact that the NYPD's stop and frisk statistics show a 21% increase over the same period last year.

CCR has found significant racial disparities for stop-and-frisks over the last decade based on NYPD data turned over by court order. CCR, which represents victims of the NYPD’s racially discriminatory stop-and-frisk policies in a class action lawsuit, will receive more comprehensive data than the summary numbers released to the City Council yesterday and will provide those results as soon as they are available.

Meanwhile, the preliminary numbers reported indicate a 21 percent rise in the number of New Yorkers being stopped by the police over the same period last year, with 88 percent of the New Yorkers stopped being Black and Hispanic. By contrast, from 2005 to 2008, approximately 80 percent of total stops made were of Blacks and Latinos, who comprise approximately 25 percent and 28 percent of New York City’s total population, respectively.

. . .

Earlier data and other documents are available at www.ccrjustice/stopandfrisk. A ruling by U.S. District Judge Shira Scheindlin required the NYPD to make public all raw stop-and-frisk data from 1998 through the present in relation to the case, Floyd v. City of New York.

Permalink 07:15:38 am, by fourth, 229 words, 459 views   English (US)
Categories: General

OH2: Defendant had no expectation of privacy from a probation search of brother's place when staying with him when he was on probation

Defendant claimed she was staying with her brother for a few weeks prior to the search. He was on probation and signed a prior consent to a search of his premises. The PO searched under that consent and found drugs attributable to her. His consent to search was valid against her as to the whole premises. State v. McBeath, 2010 Ohio 3653, 2010 Ohio App. LEXIS 3102 (2d Dist. August 6, 2010) [without any real analysis].

Plaintiff failed to show a pattern and practice of unconstitutional plain view searches by the defendant police department’s officers. No other example was shown. Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161 (5th Cir. 2010).*

Defendant was found to have consented to a patdown and a search of his luggage, so the court does not have to decide whether plain feel applies to drugs duct taped to his ankles. United States v. Contreras, 2010 U.S. Dist. LEXIS 79989 (D. Neb. August 6, 2010).*

Defendant was escorted away from a house by the police, and they received a call that he was back. They came again and handcuffed him without even asking questions. The frisk thereafter was not shown to be justified, and the gun in his sock was suppressed. [The state appealed the suppression grant, and the defense did not file a brief and still won on the credibility finding.] People v. Wells, 403 Ill. App. 3d 849, 934 N.E.2d 1015, 343 Ill. Dec. 412 (2010).*

Permalink 06:46:09 am, by fourth, 465 words, 424 views   English (US)
Categories: General

S.D.N.Y.: Co-conspirator in a drug trafficking ring had apparent authority to consent to search of hotel room he was staying in but did not rent

A hotel guest with the defendant had apparent authority to consent to a search of the room that they were in as a part of a conspiracy to import 100,000 ecstasy pills. In addition, under the S.D. N.Y.’s practice rule to provide an affidavit of facts in dispute it is the defendant’s burden to show a fact dispute to get an evidentiary hearing. Without the fact dispute, the court does not have to have a hearing. United States v. Cicuto, 2010 U.S. Dist. LEXIS 79674 (S.D. N.Y. August 6, 2010):

But since a third party's authority to consent to a search does not turn on “technical property interest[s],” Randolph, 547 U.S. at 110, whether or not Mannu was registered with the hotel as a guest staying in Room 233 is nearly irrelevant. Indeed, other courts have recognized the authority of third-parties sharing hotel rooms to consent to a search of the room even if the room is not registered in their name. See United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004) (“Although Defendant was not the registered guest who had paid for the room, he had stayed there overnight, left his possessions there, and carried a key to the room. This supports a finding that Defendant had joint access or control over the room, and thus had actual authority to consent.”); United States v. Clark, 234 F. Supp. 2d 471, 476-77 (D. N.J. 2002) (third-party had actual authority to consent to search of hotel room where he stayed overnight despite not being a registered guest). Mannu was clearly an occupant of Room 233 with “access to the area searched” and “common authority over the area.” Davis, 967 F.2d at 87. As such, he had actual authority to consent to the search. Id. In light of Mannu's authority to consent to the DEA agents' search of the hotel room, Cicuto ran the risk that “a guest obnoxious to ... [him] would be admitted in his absence,” Randolph, 547 U.S. at 110, and the search of Room 233 did not violate the Fourth Amendment.

Even if Mannu did not have actual authority, it was objectively reasonable for the DEA agents to believe that he had the authority to consent to a search of Room 233, and so he had apparent authority. Rodriguez, 497 U.S. at 188. Mannu “reasonably appeared to ... [the DEA agents] to possess authority to consent to the search,” McGee, 564 F.3d at 139, because he told the informant he was staying at the Ramada; provided the informant with the hotel phone number and room extension; answered the phone in Room 233 both the day before and morning of the search; and was alone in Room 233 when the agents knocked on the door after arresting Cicuto. Since Mannu had apparent authority to consent to the search of Room 233, his consent and the search were valid.


Permalink 08:36:44 am, by fourth, 172 words, 375 views   English (US)
Categories: General

CA6: Search of defendant's person during a felony stop was all without probable cause

Officers received a tip that the car defendant was in had cocaine in it. They stopped the car and searched it finding nothing. Then they searched the defendant passenger finding drugs. The district court suppressed the search because the police justification of officer safety was belied by the fact they waited 45 minutes after the stop and searches of the car. There was no probable cause for the search of defendant’s person during the stop. United States v. Moore, 390 Fed. Appx. 503 (6th Cir. 2010).*

Officers were in defendant’s house for 50 minutes talking to him about child pornography on his computer, and that counseled in favor of consent. The district court credited that the officers warned him of his right to refuse consent. Defendant knew exactly what the officers were looking for. United States v. Bach, 388 Fed. Appx. 2 (1st Cir. 2010).*

The driveway of a private residence is not private within the curtilage. Officers could enter to investigate what they saw there. United States v. Alvin, 2009 U.S. Dist. LEXIS 129433 (S.D. Ga. January 12, 2009).*

Permalink 08:08:27 am, by fourth, 369 words, 513 views   English (US)
Categories: General

M.D.Fla.: Entry through screened-in porch to knock at door did not violate Fourth Amendment

The screened-in porch is an area not entitled to Fourth Amendment protection. Even it it was, the officers acted reasonably when they entered to knock on the door to the house inside the porch with an arrest warrant. United States v. Bergin, 2010 U.S. Dist. LEXIS 79583 (M.D. Fla. August 6, 2010):

Defendants argue that Deputy Roberts violated the Fourth Amendment when he entered the screened-in porch area to knock on the door. The Report and Recommendation correctly rejects this argument (Doc. #205, p. 29, n.6). Even in the absence of any type of warrant, officers may approach a residence and knock on the door for legitimate police purposes unconnected with a search of the premises, United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006); United States v. Bervaldi, 226 F.3d 1256, 1263 (11th Cir. 2000) and may tell the suspect to exit the residence. Knight v. Jacobson, 300 F.3d 1272, 1277-78 (11th Cir. 2002). The Supreme Court drew a "firm line" at the threshold of the home, not the front porch. Payton v. New York, 445 U.S. 573, 590 (1980); .... The Fourth Amendment was not violated when the officer entered the porch area, and defendants' objections to the contrary are overruled.

Alternatively, the Court will assume that the screen-enclosed front porch constituted a portion of the home to which there was a reasonable expectation of privacy, either as curtilege, United States v. Dunn, 480 U.S. 294, 300 (1987), or as a component of the house itself within the meaning of Payton. See McClish v. Nugent, 483 F.3d 1231, 1241-42 (11th Cir. 2007) (Payton created a firm line delimiting a zone of privacy defined by the "unambiguous physical dimensions of an individual's home.") The Court will further assume that the screen door to that porch was the "threshold" referred to in Payton. With these assumptions, the officer's entry into the screened-in porch was nonetheless lawful. There were two outstanding felony arrest warrants against Jason Bergin for violation of probation. The officers could lawfully enter the house to arrest defendant because there was a valid outstanding arrest warrant, the location was defendant's residence, and defendant was inside the residence. United States v. Bennett, 555 F.3d 962, 965 (11th Cir. 2009); .... Therefore, even assuming the porch is a protected portion of the residence, the entry into the porch area was nevertheless lawful.

Permalink 07:43:00 am, by fourth, 191 words, 383 views   English (US)
Categories: General

S.D.Cal.: Seizure of file cabinets for off-site search was not unreasonable where up to 75% of documents viewed were seizable

After 12 hours of searching under a search warrant finding 65-75% of the files covered by the search warrant, the government agents seized file cabinets and left to search off premises. That off-site search took 160 hours. That was not unreasonable. United States v. Western Titanium, Inc., 2010 U.S. Dist. LEXIS 79508 (S.D. Cal. August 6, 2010):

Nor does the Court believe that the removal of the file cabinets from the premises by Agent Dao demonstrates a flagrant disregard for the terms of the search warrant. Agents had already determined that 65-75% of the documents within similar file cabinets fell within the scope of the search warrant before the cabinets were removed. The off-site search of the cabinets consumed approximately 160 hours while agents reviewed the documents to determine whether they fell within the scope of the warrant. Given that significant effort was expended in attempt to comply with the terms of the search warrant, the Court does not find that the agents flagrantly disregarded the search warrant by ignoring its terms or engaging in indiscriminate fishing expeditions. Accordingly, Defendants' request for suppression of all of the documents seized pursuant to the search warrant is denied.


Permalink 09:48:31 am, by fourth, 531 words, 1042 views   English (US)
Categories: General

CA6: Police destruction of plaintiff's garage was a "meaningful interference," and a trial question remains on reasonablenss

Plaintiffs' claim against defendants for executing a search warrant unreasonably survived summary judgment on qualified immunity. Officers got a search warrant for plaintiff’s property to search for a person missing since 1997. They drilled holes in plaintiff’s concrete garage floor, and a cadaver dog allegedly alerted. They emptied the garage and started digging. They piled dirt on plaintiff’s belongings considering it “junk.” Their digging down 15' undermined the structure, and they supported it on their own. They found nothing and left, and they felt unobliged to do anything to restore the condition of the property. Ground water from rain created a pond in plaintiff’s garage. This was a “meaningful interference” with plaintiffs' property and fact questions remain on whether it was reasonable [and it certainly seems from the opinion that it was not], and this right was clearly established at the time. Spangler v. Wenninger, 388 Fed. Appx. 507 (6th Cir. 2010) (unpublished):

. . . The destruction of property is a “meaningful interference” with personal property and constitutes a seizure within the meaning of the Fourth Amendment. Jacobsen, 466 U.S. at 124-25. The manner in which the seizure is conducted is reviewed for “reasonableness, and in a § 1983 action the District Court must determine not whether the destruction was ‘reasonably necessary to effectively execute the search warrant’ but whether the plaintiff has raised factual issues to be submitted to a jury on this point.” Hill v. McIntyre, 884 F.2d 271, 278 (6th Cir. 1989) (quoting Tarpley v. Greene, 684 F.2d 1, 9 (D.C. Cir. 1982)).

Photographs of the property following the search show that the property was left in complete disarray with piles of dirt placed all over Plaintiffs’ vehicles and property. While Defendants claim that they had no choice but to pile dirt on Plaintiffs’ personal property, there was evidence that there were other areas of the property where the dirt or personal property could have been placed. Defendants could have sought to expand the search warrant to allow for the placement of the extracted dirt in these other areas, but they did not. They have failed to identify any exigent circumstances that explain their failure to do so although Plaintiffs’ two-acre property could have easily accommodated this. Wenninger was at the site on several occasions, operating a Bobcat and piling dirt on Plaintiffs’ property. The officers were aware that doing this would damage Plaintiffs’ property. Additionally, Defendants failed to fill the hole that they dug during the search, leaving a hole that was up to fifteen feet deep in the garage that became filled with water. Defendants fail to explain why they did not fill the hole, and merely argue that they believed that they were not required to do so. However, Wenninger testified that the officers were aware that the hole could become filled with water upon conclusion of the search. The totality of the circumstances did not warrant the knowing destruction of Plaintiffs’ personal property by unnecessarily piling dirt on it, and failing to fill the large hole that remained in the garage. Viewing the evidence in the light most favorable to the nonmoving parties in this case, Plaintiffs, we find that genuine issues of material fact remain concerning the reasonableness of Defendants’ conduct here.

Permalink 07:35:02 am, by fourth, 300 words, 426 views   English (US)
Categories: General

TX6: State failed to show community caretaking function stop was valid

The state could not show that the defendant’s stop under the community caretaking doctrine was valid. The trial court’s finding is reversed. Travis v. State, 322 S.W.3d 747 (Tex. App.––Texarkana 2010):

Since “the purpose of the community caretaking exception is to allow an officer to “seize” and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight.” Id. In this case, this factor undeniably weighs against admission since Poole testified Travis did not appear to be in distress. See id. at 277-78. Although there is record evidence that Travis was driving on a county road suggesting isolation, he may have been close to an intersection. It is the State's burden to demonstrate the reasonableness of the stop. State v. Dixon, 151 S.W.3d 271, 273 (Tex. App.--Texarkana 2004), aff'd, 206 S.W.3d 587 (Tex. Crim. App. 2006). We find this factor to be neutral. See Corbin, 85 S.W.3d at 278. Poole testified Travis was alone, indicating that he did not have access to assistance. However, because Travis was not distressed, there is not much weight to this factor. In regard to the fourth factor, Poole testified he had no reason to believe Travis was a danger to himself or others. Nevertheless, Poole stopped Travis “to check his current state, his welfare, to make sure he is okay.” While the trial court was free to consider Poole's subjective concern, we find Poole's belief that Travis required aid objectively unreasonable. Therefore, the narrow community caretaker exception did not justify Poole's stop. Thus, Travis' Fourth Amendment rights were violated.

The government showed that the search of defendant’s room was with consent, so his fruit of the poisonous tree argument fails with it. United States v. Quintero, 2010 U.S. Dist. LEXIS 79350 (D. Ariz. July 12, 2010).*

Permalink 07:25:25 am, by fourth, 401 words, 618 views   English (US)
Categories: General

CA11: Pillow case with dye pack stains showed its "outward appearance" so no reasonable expectation of privacy

Defendant had an expectation of privacy in the pillow case he carried from a bank robbery, but it was not an expectation that society was prepared to recognize as reasonable considering it was stained from the dye pack such that its "outward appearance" belied its contents. United States v. Epps, 613 F.3d 1093 (11th Cir. 2010):

In this case, considering the totality of the circumstances, the fact that the pillowcase contained dye packs and possibly other items associated with the bank robbery could “be inferred from [its] outward appearance.” Sanders, 442 U.S. at 764 n.13, 99 S. Ct. at 2593 n.13; see also United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994) (“[T]he circumstances under which an officer finds the container may add to the apparent nature of its contents.”). Deputy Kent saw Mr. Epps with a white bag in his hand, running away from a blue Cavalier parked at an angle with its driver's door open. The deputy knew that a blue Cavalier had been carjacked, and he believed that the carjacking was related to a bank robbery that had taken place in the same area just minutes before. After being directed to stop, the fleeing individual pointed a gun at the deputy. Upon closer inspection, the white bag was found to be a pillowcase with pink stains on it. Tellers frequently give bank robbers dye packs, which are designed to explode after the robbery and permanently mark the bills with ink. See United States v. King, 842 F.2d 311, 312 (11th Cir. 1988) (“Although [Officer] Morton was not aware of the ... robbery, he knew that bank tellers frequently insert red dye bombs in packages during bank robberies.”); United States v. Gidley, 527 F.2d 1345, 1348 & n.1 (5th Cir. 1976) (discussing detective's awareness that “dye stained money often is a result of the explosion of a dye bomb planted during a bank robbery,” and finding it “unlikely” that “the other officers were unaware of the significance of stained money”).

Because the pillowcase's contents could be inferred from its outwardly visible stains and the circumstances under which the police obtained it, the pillowcase was one of those containers that “by [its] very nature cannot support any reasonable expectation of privacy.” Sanders, 442 U.S. at 764 n.13, 99 S. Ct. at 2593 n.13. The pillowcase therefore fell outside the protective ambit of the Fourth Amendment, and the police did not violate Mr. Epps's constitutional rights when they opened the pillowcase without first obtaining a warrant.

Permalink 12:33:07 am, by fourth, 257 words, 551 views   English (US)
Categories: General

CA3: CI claiming to have seen CP on defendant's computer was not so unbelievable police could not act on it

A CI used defendant’s computer to illegally download music from it, and he saw child pornography. He was not so incredible that the officers could not act on what he said. A search warrant properly issued on this independent information. United States v. Barefoot, 2010 U.S. App. LEXIS 16388 (3d Cir. August 5, 2010) (unpublished)*:

When detectives interviewed Beley and searched Barefoot's apartment prior to the warrantless search, they were following up on Lukotich's tip, which they would not have done had they believed Lukotich's tip lacked credibility. Additionally, by telling police that he had violated Barefoot's privacy to download music, Lukotich incriminated himself, which bolsters his credibility. Detectives had enough information from Lukotich's tip and their interview with Beley linking Barefoot to the apartment to have been prompted to apply for a warrant. The court may presume law enforcement officers will act reasonably, absent evidence to the contrary. See United States v. Sicilano, 578 F.3d 61, 69 (1st Cir. 2009). Therefore, the District Court did not err in holding that there was an independent source for the evidence.

Plaintiff’s Bivens claim against IRS agents who searched his house for a tax violation seizing $19,000 which is what his wife said. At a bank, the counting machine only recorded $17,000, and that is what they obtained a cashier’s check for. He sued for theft of $2,000. The court held that the law was not clearly established that the alleged theft of $2,000 after a lawful seizure with a warrant violated the Fourth Amendment. Springer v. Albin, 2010 U.S. App. LEXIS 16324 (10th Cir. August 5, 2010) (unpublished).*

Permalink 12:16:14 am, by fourth, 290 words, 343 views   English (US)
Categories: General

CA6: Defendant was unlawfully seized essentially "hop[ing] that something might turn up" and it did and was suppressed

Singling defendant out in a group of four or five, two officers approached him and accused him of a crime. This was a seizure because a reasonable person would not feel free to disengage from it. Applying the Brown attenuation factors, defendant’s statement is suppressed. United States v. Williams, 615 F.3d 657, 2010 FED App. 0234P (6th Cir. 2010):

Finally, although Vass's misconduct was not flagrant, his purpose weighs against attenuation. The Supreme Court has explained that the purposefulness factor is met when the unlawful action is investigatory, that is, when officers unlawfully seize a defendant "in the hope that something might turn up." Brown, 422 U.S. at 605; Shaw, 464 F.3d at 630-31. The purpose of stopping Williams was to seek evidence against him, and toward that end Vass immediately asked several questions related to criminal activity other than trespassing. ... Indeed, the warrant and firearm evidence came out only because Vass asked about it. ...

P17 The totality of the circumstances, analyzed through the Brown factors, makes clear that there was no attenuation of the connection between Vass's unconstitutional seizure of Williams and the incriminating evidence. Rather, this case calls for a straightforward application of the exclusionary rule and the related fruit-of-the-poisonous-tree doctrine. Because the incriminating evidence was "come at by exploitation of th[e] illegality" of the seizure, not "by means sufficiently distinguishable to be purged of the primary taint," Wong Sun, 371 U.S. at 488, the district court correctly suppressed it.

Defendant was illegally arrested in his own home, and the situation was found coercive of his consent, also involving his “young son.” Suppression granted. United States v. Stokely, 733 F. Supp. 2d 868 (E.D. Tenn. June 17, 2010) (R&R), 2010 U.S. Dist. LEXIS 79303 (E.D. Tenn. August 5, 2010), Nunc Pro Tunc to July 16, 2010.

Permalink 12:05:42 am, by fourth, 252 words, 319 views   English (US)
Categories: General

CA3: Gov't waived a justification for the search and exclusionary rule by not arguing it below

The government waived the argument presented on appeal by not first presenting the issue to the District Court. Also, citing a case for one proposition does not include any other argument that might flow from it. United States v. Dupree, 617 F.3d 724 (3d Cir. 2010):

As the Government recognized at oral argument, simply citing a case in the District Court is not sufficient to raise all arguments that might flow from it. See Nee, 261 F.3d at 86. To preserve the argument that it now makes on appeal, the Government had to do more than broadly reference Hodari D. Instead, it had to give the District Court the opportunity to consider the argument it now makes, i.e., whether the policies underlying the exclusionary rule demonstrate that it should apply where, as here, an illegally seized defendant breaks free and discards evidence while fleeing. Because it did not do so, the Government failed to preserve its argument for appeal.

. . .

In this appeal, the Government proffers two alternative bases for reversing the District Court's suppression of Dupree's firearm. The Government's principal argument reflects a thoughtful consideration of the Supreme Court's more recent exclusionary rule jurisprudence. We undoubtedly will have occasion to consider that argument in the future, but not in a case, such as this one, where it was never presented to the District Court. For the reasons stated herein and in Judge Fisher's concurring opinion, we will affirm the District Court's orders granting Dupree's motion to suppress and denying the Government's motion for reconsideration.


Permalink 01:16:29 pm, by fourth, 464 words, 452 views   English (US)
Categories: General

TX9: Entry was without PC, but for officer safety, so plain view not suppressed

The police lacked probable cause to enter the defendant’s home on the totality of circumstances. There was a valid justification for officer safety, so the entry and plain view inside is not suppressed. Pace v. State, 318 S.W.3d 526 (Tex. App. – Beaumont 2010)* [TX website under maintenance today]:

We conclude the totality of the circumstances in this case did not give the officer probable cause to enter the residence. Officer Clack knew about the residence and its occupants. The police had responded to harassment and noise calls there in the past. Other than the allegation from an unidentified source of drug use in front of children in the home, there was no specific information regarding appellant's current possession of drugs. See State v. Hoffman, 293 S.W.3d 633, 636 (Tex. App.--San Antonio 2009, pet. ref'd) (citing Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)); see also United States v. Scroggins, 599 F.3d 433, 444 (5th Cir. 2010) ("[T]he government cites no authority to support the proposition that police may stop and frisk an individual in his own home based on the same indications of criminality that would allow the detention elsewhere. The Terry doctrine was developed to determine when police could 'detain individuals on the street.'") (quoting United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994)). Moreover, after the officer talked with Ms. Pace by telephone, he knew that the child was with her in her vehicle and not at the residence. Appellant's retreat into the residence was legally insufficient to establish probable cause that the instrumentality of a crime or evidence of a crime would be found in the residence. See Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion." Id.

. . .

A reasonable, articulable suspicion of danger may justify a limited, cursory inspection to dispel the suspicion. See United States v. Scroggins, 599 F.3d at 444-45. The trial court's finding that the officer entered the bedroom to ensure his safety is supported by testimony in the record; the officer had a right to be there. Having followed appellant for the purposes of dispelling the suspicion of danger, the officer observed the evidence in plain view. See Randolph, 547 U.S. at 118; Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (citing Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)) (Under the "plain view" doctrine, law enforcement must have a right to be where they are, and it must "be immediately apparent that the item seized constitutes evidence, that is, there is probable cause to associate the item with criminal activity."). The trial court did not abuse its discretion in denying the motion to suppress.

Permalink 12:59:14 pm, by fourth, 227 words, 304 views   English (US)
Categories: General

OH8: Defendant was a guest in his grandmother's house with standing

The defendant was a fairly regular guest at his grandmother’s house, eating meals there and often spending the night. The trial court erred in holding that there was insufficient evidence he regularly stayed there because that was not the question. State v. Alexander, 2010 Ohio 3598, 2010 Ohio App. LEXIS 3073 (8th Dist. August 5, 2010):

[*P14] The trial court did not address Alexander's status as an overnight guest when deciding the motion to suppress; it simply concluded there was not enough evidence to demonstrate that he regularly stayed at the apartment. Although that may be true, the evidence that he was staying there on the day in question was undisputed. Accordingly, the trial court erred in ruling that he did not have standing to challenge the warrantless entry. As Alexander had standing, and the trial court ruled that there were no exigent circumstances justifying the warrantless entry, the motion to suppress should have been granted. Accordingly, the matter is remanded for a new trial.

Officers did a knock-and-talk on a hotel room, and defendant permitted them to enter, so the entry was by consent. State v. Bowling, 2010 Ohio 3595, 188 Ohio App. 3d 777 (8th Dist. August 5, 2010).*

Defendant’s car was stopped for driving with his door open and weaving, and a search for an open container was justified by the facts. State v. Burke, 2010 Ohio 3597, 188 Ohio App. 3d 777, 936 N.E.2d 1019 (8th Dist. 2010).*

Permalink 12:15:39 pm, by fourth, 188 words, 320 views   English (US)
Categories: General

D.Neb.: Stop for weaving was unreasonable and consent suppressed

Defendant was weaving slightly in his lane, and the court finds that there was no probable cause nor reasonable suspicion for his stop for impaired driving. Defendant’s consent thereafter was a product of this illegal stop, and it is suppressed. United States v. Magallanes, 2010 U.S. Dist. LEXIS 79272 (D. Neb. August 3, 2010).*

A 10 year CI called to say that defendant was selling drugs from his SUV. Police set up surveillance and saw three apparent hand to hand transactions. They arrested him and drove his vehicle to the police station where a dog alerted and a search warrant was obtained. The removal of the car was with probable cause and was not unreasonable. The search warrant depended on nothing from the moving of the vehicle. Commonwealth v. Williams, 2010 PA Super 141, 2 A.3d 611 (2010),* following Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).

Defendant’s consent was found to be voluntary. On the question of credibility of the witnesses, the court finds the officer credible, and the defendant did not testify, only submitting an affidavit to raise the search issue. United States v. Thompson, 2010 U.S. Dist. LEXIS 78694 (S.D. N.Y. July 28, 2010).*

Permalink 12:04:29 pm, by fourth, 307 words, 522 views   English (US)
Categories: General

WA: Ability to get telephonic search warrant showed no exigency for car search

Despite there being probable cause to believe that defendant’s vehicle had drugs in it, he was stopped for a defective taillight, he was out of the car, and there was no exigency for a search under the Washington Constitution. There was time to get a telephonic warrant under state law because the officer had a cell phone. State v. Tibbles, 169 Wn. 2d 364, 236 P.3d 885 (2010):

¶11 On the stipulated facts in this case, the State has not shown any need for particular haste. The suspect was not fleeing, nor has there been any showing that he presented a risk of flight. While there was probable cause that evidence of contraband existed in the vehicle, Tibbles was outside the vehicle when Trooper Larsen searched it and the State has not established that the destruction of evidence was imminent. Additionally, the State has not established that obtaining a warrant was otherwise impracticable. For example, we do not know whether Larsen could have used a cell phone or radio to procure a telephonic warrant or whether he could have called backup to secure the scene while Larsen went to procure a warrant. The record contains no evidence of what Larsen would have had to do to procure a warrant at the time of the search.

¶12 With regard to safety concerns, the stipulated facts do not establish that Trooper Larsen felt he or anyone else was in danger as a result of Tibbles's actions. CP at 44. Tibbles was not stopped on suspicion of impaired driving, but rather for a defective taillight. Id. Tibbles was alone, was compliant with the trooper's requests, and moreover, was released rather than arrested and allowed to drive away even after Trooper Larsen searched the car and seized the marijuana and drug paraphernalia. Id.

Note: Complain all you want about telephonic warrants--they undermine a government claim of exigency.


Permalink 09:53:41 am, by fourth, 230 words, 390 views   English (US)
Categories: General

CA8: Four Fourth Amendment cases in two days

Officer safety justified a search incident of defendant’s car even though he was not right near it because he spoke to others in a foreign language, and the others were not secured. United States v. Salamasina, 615 F.3d 925 (8th Cir. 2010).

Defendant’s stop was not unconstitutionally extended, and defendant consented: “If you’d like to. I mean, I’m fine.” United States v. $231,930.00 in United States Currency, 614 F.3d 837 (8th Cir. 2010) (not on court's website):

Also, the presence of three officers, alone, does not make the encounter a seizure, and Sergeant Vance had no duty to tell Kupczyk that he could deny the request to search. "There is no per se requirement that an officer inform a citizen of his right to refuse consent, and there is no presumption that consent is invalid where given without an explicit notification of the right to refuse." United States v. Vera, 457 F.3d 831, 835 (8th Cir. 2006).

Conflicting statements from the defendant and his wife justified prolonging the detention [which could have been argued was consensual by the government, but it didn’t have to]. United States v. Bracamontes, 09-3897 (8th Cir. August 5, 2010).*

In a conspiracy investigation also with some wiretaps, it was developed that a certain car likely was involved, and there was probable cause to believe that there was drug evidence in the car. United States v. Williams, 616 F.3d 760 (8th Cir. 2010).*

Permalink 09:03:13 am, by fourth, 142 words, 345 views   English (US)
Categories: General

FL4: 14-year-old passenger who "assumed the position" on a traffic stop without being told did not validly consent

A 14-year-old passenger who got out of a car after the driver was stopped for being under the influence "assumed the position" without being told to, so the officer frisked her. That was not a showing of true consent because of age and inexperience. E.J. v. State, 2010 Fla. App. LEXIS 11284 (4th DCA August 4, 2010).

Detention from stop to arrest was less than 7 minutes, and it was reasonable in length. United States v. Benson, 2010 U.S. Dist. LEXIS 78472 (E.D. Tenn. June 18, 2010).*

Defendant’s stop was valid because officers had reasonable suspicion, and, as the circumstances compounded, it got worse for the defendant. Seizure of drugs from the back of his SUV was based on plain view, and the officers were justified following defendant into the bathroom at Wendy’s and keeping him from flushing drugs. State v. Mann, 203 N.J. 328, 2 A.3d 379 (2010).*

Permalink 08:54:19 am, by fourth, 336 words, 398 views   English (US)
Categories: General

CA7: Entry with PC to maintain status quo was a “straight-forward application of Segura

In a “straight-forward application of Segura,” the police could enter the defendant’s apartment with probable cause to freeze the situation to preserve evidence and then get a search warrant. United States v. Etchin, 614 F.3d 726 (7th Cir. 2010):

The fact that police behaved illegally does not mean that the remedy of excluding evidence is necessarily appropriate. Herring v. United States, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). In this case, a straight-forward application of Segura leads us to two conclusions: first, Detective Reitzler's four-hour occupation of Etchin's apartment did not add anything to the violation of the Fourth Amendment that had already occurred with the entry; and second, the drugs later found were admissible.

1. The Seizure of Etchin's Apartment. Segura holds that officers who enter and seize a home to preserve the status quo while waiting for a search warrant do not commit an independently sanctionable violation of the Fourth Amendment as long as they had probable cause at the moment of entry and the seizure is not unreasonably long. 468 U.S. at 798. The Court reasoned that "the home is sacred in Fourth Amendment terms not primarily because of the occupants' possessory interests in the premises, but because of their privacy interests in the activities that take place within," and so a police occupation (which infringes on possession) is permitted even when a search (which implicates privacy interests) would be unreasonable. Id. at 810. The second of the Court's concerns--duration--is not at issue here, as the seizure here was shorter than the one upheld in Segura. We therefore focus exclusively on the question whether the probable cause criterion was satisfied.

Defendant contended that the entry into his apartment based on the alleged exigency of his missing girlfriend whom he had beaten nearly to death and stuffed in a storage barrel to die violated the Fourth Amendment. Considering the victim survived and testified against him in his kidnaping and interstate domestic violence trial, any possible error was harmless beyond a reasonable doubt. United States v. Larsen, 615 F.3d 780 (7th Cir. 2010).*


Permalink 11:15:35 pm, by fourth, 960 words, 4412 views   English (US)
Categories: General

D.C.Cir.: Warrant needed for GPS surveillance (setting up a conflict in the circuits)

The D.C. Circuit held on Friday that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limiting Knotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, 615 F.3d 544 (D.C.Cir. August 6, 2010):

Two circuits, relying upon Knotts, have held the use of a GPS tracking device to monitor an individual’s movements in his vehicle over a prolonged period is not a search, United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), but in neither case did the appellant argue that Knotts by its terms does not control whether prolonged surveillance is a search, as Jones argues here. Indeed, in Garcia the appellant explicitly conceded the point. ...

In a third related case the Eighth Circuit held the use of a GPS device to track a truck used by a drug trafficking operation was not a search. United States v. Marquez, 605 F.3d 604 (2010). ...

In each of these three cases the court expressly reserved the issue it seems to have thought the Supreme Court had reserved in Knotts, to wit, whether wholesale, or mass electronic surveillance of many individuals requires a warrant. Marquez, 605 F.3d at 610; Pineda-Moreno, 591 F.3d at 1216 n.2; Garcia, 474 F.3d at 996. As we have explained, in Knotts the Court actually reserved the issue of prolonged surveillance. That issue is squarely presented in this case. Here the police used the GPS device not to track Jones’s movements from one place to another, Knotts, 460 U.S. at 281, but rather to track Jones’s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.


Two considerations persuade us the information the police discovered in this case — the totality of Jones’s movements over the course of a month — was not exposed to the public: First, unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts.

a. Actually exposed?

The holding in Knotts flowed naturally from the reasoning in Katz: ―What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection,. 389 U.S. at 351. See Knotts, 460 U.S. at 281–82 (movements observed by police were ―voluntarily conveyed to anyone who wanted to look.). The Government argues the same reasoning applies here as well. We first consider the precedent governing our analysis of whether the subject of a purported search has been exposed to the public, then hold the information the police discovered using the GPS device was not so exposed.

. . .

As with the mosaic theory, often invoked by the Government in cases involving national security information, what may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene. CIA v. Sims, 471 U.S. 159, 178 (1985) (internal quotation marks deleted); see J. Roderick MacArthur Found. v. F.B.I., 102 F.3d 600, 604 (D.C. Cir. 1996). Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

Other courts have recognized prolonged surveillance of a person’s movements may reveal an intimate picture of his life. See Galella v. Onassis, 353 F. Supp. 196, 227–28 (S.D.N.Y. 1972) (Plaintiff’s endless snooping constitutes tortious invasion of privacy .... [he] has insinuated himself into the very fabric of Mrs. Onassis’ life.) (aff’d in relevant part 487 F.2d 986, 994 & n.12 (2nd Cir. 1973) (if required to reach privacy issue would be inclined to agree with district court’s treatment)). Indeed, they have reached that conclusion in cases involving prolonged GPS monitoring. See People v. Weaver, 909 N.E. 2d 1194, 1199 (N.Y. 2009) (Prolonged GPS monitoring yields ... a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits.); State v. Jackson, 76 P.3d 217, 224 (Wash. 2003) (en banc) (In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles. The GPS tracking devices record all of these travels, and thus can provide a detailed picture of one’s life.).

See Orin Kerr in the Volokh Conspiracy and's Court Rejects Warrantless GPS Tracking, EFF-ACLU Arguments Against Always-On Surveillance Win The Day.

Permalink 06:48:20 am, by fourth, 326 words, 579 views   English (US)
Categories: General

KS: Gant not retroactive to search occurring before it was decided

Gant is not retroactive in Kansas. State v. Karson, 44 Kan. App. 2d 306, 235 P.3d 1260 (2010):

On this issue, we are in accord with the majority of courts, which have concluded that the good-faith exception applies to searches conducted in accordance with the prevailing understanding of the Belton rule before Gant was decided. Compare McCane, 573 F.3d at 1045 (applying good-faith exception); United States v. Davis, 598 F.3d 1259 (11th Cir. 2010) (same); United States v. Allison, 637 F. Supp. 2d 657 (S.D. Iowa 2009) (same); United States v. Lopez, 2009 WL 3112127 (E.D. Ky. 2009) (unpublished opinion) (same); United States v. Schuttpelz, 2010 WL 200827 (E.D. Mich. 2010) (unpublished opinion); United States v. Lee, 2009 WL 3762404 (W.D. Mo. 2009) (unpublished opinion) (same); United States v. Gray, 2009 WL 4739740 (D. Neb. 2009) (unpublished opinion); United States v. Southerland, 2009 WL 5149263 (E.D.N.C. 2009) (unpublished opinion); United States v. Grote, 629 F. Supp. 2d 1201 (E.D. Wash. 2009) (same); People v. Henry, 184 Cal. App. 4th 1313, 110 Cal. Rptr. 3d 85 (2009) (same); Brown v. State, 24 So. 3d 671 (Fla. Dist. App. 2009) (same); Meister v. State, 912 N.E.2d 412, 418 n.1 (Ind. App. 2009) (same); State v. Baker, 229 P.3d 650 (Utah 2010) (same); State v. Riley, 154 Wash. App. 433, 225 P.3d 462 (2010) (same); State v. Dearborn, __ N.W.2d __, 2010 WL 2773536, at *6-10 (Wisc. 2010), with United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) (declining to apply good-faith exception); United States v. Peoples, 668 F. Supp. 2d 1042 (W.D. Mich. 2009) (same); United States v. Buford, 623 F. Supp. 2d 923 (M.D. Tenn. 2009) (same); People v. McCarty, 229 P.3d 1041 (Colo. 2010) (same); United States v. Debruhl, 993 A.2d 571 (D.C. 2010) (same); Valesquez v. Commw., ___ S.W.3d ___, 2010 WL 567325, at *3 (Ky. App.) (same); People v. Mungo, ___ N.W.2d ___, 2010 WL 1461620 (Mich. App. 2010) (same); State v. Johnson, ___ S.W.3d ___, 2010 WL 2730593, at *6-13 (Mo. App. 2010) (same); State v. Harris, 154 Wash. App. 87, 100-01, 224 P.3d 830 (2010) (same). We find the majority's approach (exemplified by the Tenth Circuit's opinion in McCane) squarely in line with the Supreme Court's application of the good-faith exception--and certainly with the rationale for that rule set out in Herring.

Permalink 06:32:58 am, by fourth, 131 words, 515 views   English (US)
Categories: General

D.Mass.: Extraterriorial arrest by U.S. Park Ranger did not violate Fourth Amendment

U.S. Park Ranger stopped the defendant outside a park for an offense seen in the park. While the stop was extraterritorial under his statutory authority, it did not violate the Fourth Amendment under Virginia v. Moore. United States v. Ryan, 729 F. Supp. 2d 479 (D. Mass. 2010).*

Defendant’s traffic stop was lawful, and the officer saw a Vicodin pill bottle in plain view, the subject of the investigation. United States v. Adams, 2010 U.S. Dist. LEXIS 78535 (E.D. Mich. August 4, 2010).*

The arrest warrant justified the entry into defendant’s residence to look for him. The proffered alternative justification by the government of protective sweep is rejected because there is no clear showing that it was necessary. The entry satisfied knock-and-announce. United States v. Watson, 2010 U.S. Dist. LEXIS 78620 (D. Md. August 3, 2010).*

Permalink 05:59:25 am, by fourth, 186 words, 295 views   English (US)
Categories: General

VA: A vengeful CI could not have predicted alleged drug courier's actions like this, so CI was corroborated

The CI told the police that “Bobby” would be bringing drugs to a certain place. Bobby’s actions corroborated the CI. Smith v. Commonwealth, 56 Va. App. 592, 696 S.E.2d 211 (2010)*:

But a vengeful neighbor who meant to harass or annoy the appellant by making false or unfounded allegations could not possibly control the way “Bobby” would react to the arrival of the police. Under these circumstances, the male's reaction was more than extremely suspicious. Indeed, when viewed in the light most favorable to the Commonwealth, we hold that the officer's observations through the appellant's open door after receiving the anonymous tip amounted to probable cause that a drug offense was being committed.

The officer’s inability to cite the specific statute that the defendant violated in his driving did not make the stop unconstitutional. He was weaving in his lane, and there was reasonable suspicion of driving under the influence. State v. Hunt, 2010 Tenn. Crim. App. LEXIS 652 (July 30, 2010).*

While the individual factors of reasonable suspicion might have been innocent, collectively they were not, so the continuation of the stop was valid. Frazier v. State, 2010 WY 107, 236 P.3d 295 (2010).*

Permalink 05:47:15 am, by fourth, 271 words, 3710 views   English (US)
Categories: General

TX8: Riding a bicycle without a helmet justified search incident

Defendant’s search incident for riding a bicycle without a helmet was reasonable. State v. Portillo, 314 S.W.3d 210 (Tex. App.–El Paso 2010):

A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). A search incident to an arrest permits officers to search a defendant, or areas within the defendant's immediate control, in order to remove any weapons that the arrestee may seek to use in order to resist arrest or effect escape. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); see McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). An arresting officer may also search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. Chimel, 395 U.S. at 763, 89 S.Ct. at 2040; see McGee, 105 S.W.3d at 615.

Because Officer McOsker observed Portillo riding a bicycle without a helmet as required by the Dallas bicycle helmet ordinance, he was permitted to arrest Portillo for the ordinance violation and search Portillo incident to the arrest. Chimel, 395 U.S. at 763, 89 S.Ct. at 2040; see McGee, 105 S.W.3d at 615. Consequently, we find that the trial court clearly abused its discretion when it suppressed the evidence, here cocaine, which was the fruit of a lawful search conducted incident to a warrantless arrest for violation of a valid ordinance. See Wood, 828 S.W.2d at 474; see also Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). Accordingly, we sustain the State's sole issue.

Incredible. I'm sure there was evidence of that offense to be found.


Permalink 05:18:38 pm, by fourth, 230 words, 322 views   English (US)
Categories: General

D.Neb.: High crime area and suspicious vehicle led to valid pat down

A woman flagged down a police officer about a disturbance in an apartment parking lot, and the officer went to investigate. He saw a car that did not belong in the parking lot, and he stopped it, and defendant’s conduct made him do a patdown. United States v. Tapia-Uribe, 2009 U.S. Dist. LEXIS 129404 (D. Neb. June 2, 2009):

Officer Turnbull considered several factors before making the decision to conduct a pat-down search of Tapia-Uribe. Those factors included: the late time of night, the urgent warning that officers investigate a disturbance, the high-crime nature of the area, the history of disturbances and drug complaints at the Nodaway Apartments, and the suspicious statements made by Tapia-Uribe and his companion.

Defendant’s traffic offense justified his stop. United States v. Williams, 2010 U.S. Dist. LEXIS 77993 (N.D. Okla. July 30, 2010).*

Defendant’s traffic offense justified his stop, and reasonable suspicion the continued detention. United States v. Gardenhire, 2010 U.S. Dist. LEXIS 77843 (D. Kan. July 30, 2010).*

Where defendant’s premises was searched with a search warrant, his claim that defense counsel did not challenge his consent was irrelevant. United States v. Thompson, 2010 U.S. Dist. LEXIS 78042 (E.D. Wis. June 30, 2010).*

Defendant’s guilty plea and plea agreement waived his post conviction challenge, and his claim that his search was invalid was barred by the agreement. Rader v. United States, 2010 U.S. Dist. LEXIS 77794 (S.D. Miss. June 30, 2010).*

Permalink 09:30:22 am, by fourth, 213 words, 660 views   English (US)
Categories: General

N.D. Ga.: Search incident of cell phone was shown to be with exigent circumstances

The search incident of defendant’s cell phone was shown to be with exigent circumstances because the government showed a risk of the phone losing its data before a warrant could be obtained, including remote “wiping” of the phone. United States v. Salgado, 2010 U.S. Dist. LEXIS 77266 (N.D. Ga. June 15, 2010)* (surveying the case law). [I think that the cases are too deferential of exigence, like Belton, and this situation cries out for real litigation.]

The stop of defendant’s vehicle was an investigative stop for threatening a woman with a gun and a baseball bat. Defendant was likely under the influence, so the stop was with reasonable suspicion. United States v. Camacho, 2009 U.S. Dist. LEXIS 129373 (D. Neb. June 24, 2009).*

Defendant was a mere trespasser, so he had no standing in a wooden shack he was staying in. The facts were in dispute. “Defendant has not established that his subjective expectation of privacy in the wooden structure and its curtilage is one ‘that society recognizes as legitimate.’” United States v. Murray, 53 V.I. 831, 2010 U.S. Dist. LEXIS 77954 (D. V.I. August 2, 2010).*

Defendant’s probation and parole search was justified by complaints from the neighbors that he was drug dealing from his house. United States v. Strike, 2010 U.S. Dist. LEXIS 78127 (D. Mont. August 2, 2010).*

Permalink 06:29:56 am, by fourth, 78 words, 815 views   English (US)
Categories: General

CNET: TSA storing body scanner images

On CNET News it is revealed that TSA officers are storing body scanner images. See Feds admit storing checkpoint body scan images, by Declan McCullagh. Remember, TSA sold us on being able to use scanners because the images would not be stored. The article mentions that EPIC has sued TSA over this revelation.

What of the body scan images of celebrities, the beautiful, the ugly getting passed around. Is that not a violation of our expectation of privacy?


Permalink 11:46:00 am, by fourth, 47 words, 324 views   English (US)
Categories: General

ChiTrib: DNA on arrest in VA may clear IL man

Today's Chicago Tribune: Hobbs DNA saga fuels debate on taking DNA samples after an arrest, instead of convictions. "Arrest in Virginia led to a DNA sample that may exonerate Illinois dad, but if the arrest had been made in Illinois, the DNA sample wouldn't have been taken."

Permalink 07:47:25 am, by fourth, 171 words, 341 views   English (US)
Categories: General

OH3: Defendants did not show standing in the pickup truck they were in

Defendants’ truck was stopped because it was behind a business with a large amount of wire in the bed that the officer thought was stolen. The defendants did not show a connection to the truck to have standing. Even so, they consented to the search. State v. Graziani, 2010 Ohio 3550, 2010 Ohio App. LEXIS 3017 (3d Dist. August 2, 2010).*

The officer’s detailing of alleged drug transactions in the affidavit for the search warrant showed probable cause. State v. Tinsley, 2010 Ohio 3535, 2010 Ohio App. LEXIS 3035 (2d Dist. July 30, 2010).*

The trial court considered the totality of circumstances in determining that defendant did not consent to the search, so the order granting the suppression motion is granted. State v. Wilburn, 2010 Ohio 3536, 188 Ohio App. 3d 384, 935 N.E.2d 509 (2d Dist. 2010).*

The video supports the defendant’s consent. State v. Stepp, 2010 Ohio 3540, 2010 Ohio App. LEXIS 3038 (4th Dist. July 20, 2010).*

Being placed in the patrol car was not a Fourth Amendment seizure. The dog sniff did not take too long. State v. Kelly, 2010 Ohio 3560, 188 Ohio App. 3d 842, 937 N.E.2d 149 (12th Dist. 2010).*

Permalink 07:27:03 am, by fourth, 251 words, 503 views   English (US)
Categories: General

E.D.Va.: TSA inspection led to valid seizure of cash when claimant couldn't come up with a good explanation

Claimant was subjected to a cash seizure at Dulles airport after TSA saw “unknown masses” in x-ray of carry-on luggage. They opened his suitcase and saw it and photographed it, and he chose to leave the airport. The DEA was alerted. The claimant did not challenge the TSA snooping. United States v. $145,850 United States Currency, 2010 U.S. Dist. LEXIS 77686 (E.D. Va. July 30, 2010):

Arrington does not dispute that the initial inspection of his bags was constitutional. See United States v. DeAngelo, 584 F.2d 46, 47-48 (4th Cir. 1978) (holding that an airport x-ray search is a lawful search and also noting that a suspect's voluntary entrance into a security line acts as consent to the search); see also, e.g., United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005), opinion amended on other grounds, 2005 WL 1661572 (9th Cir. July 18, 2005); U.S. v. Lopez-Pages, 767 F.2d 776, 778 (11th Cir. 1985). Thus, Arrington tacitly agrees that authorities were in a lawful vantage point to view the undefined masses in his suitcase. Well within the scope of this lawful search, the TSA agents permissibly inquired further and discovered that the masses were separately-wrapped bundles of money. Id. Provided that authorities had probable cause to believe the cash was contraband, the subsequent seizure of the cash visible in plain view was constitutional. See Payton, 445 U.S. at 587.

Can you say "Mission creep"? What if he challenged the TSA calling the DEA? Cash is not inherently contraband, and this is not TSA's business. See this prior post and the links within it.

Permalink 07:17:14 am, by fourth, 545 words, 652 views   English (US)
Categories: General

W.D.Tex. clarifies USMJs' position on cell phone tracking orders, summarizing all the case law

A Magistrate Judge of the Western District of Texas issues an opinion summarizing five years of case law to guide applications for cellular site location information (“CSLI”). In re United States for an Order: Authorizing the Use of a Pen Register and Trap and Trace Device, 727 F. Supp. 2d 571 (W.D. Tex. 2010):

As technology has advanced, new investigative tools have become available that federal law does not explicitly address. The Court's focus in the present application is on cellular site location information (“CSLI”), which is information that resides on computer servers of telecommunications providers which allows law enforcement agencies to locate a cell phone, and its user, in both real time and, by accessing historical data, in the past. A request for CSLI presents a number of legal issues, and a growing number of decisions addressing these many have been handed down by magistrate and district judges in the past few years. The primary issue presented in those cases is the standard the Government's evidence must meet for it to obtain an order requiring the disclosure of CSLI, and whether that standard is different depending upon the type of information sought (historical v. prospective data), or the means by which the information is to be acquired (single tower, multiple towers, or GPS data).

After meetings in 2005-06 with members of the United States Attorney's office and representatives of law enforcement agencies, the magistrate judges in the Austin Division of this Court determined that a showing of probable cause would be required to obtain an order for any type of prospective CSLI. Those meetings were informal, and no written order expressing the basis for that conclusion was ever issued. In this opinion, the Court reviews the caselaw that has developed over the past five years on these issues, reviews the position of the Government, revisits the approach the Court has taken to date in these cases, and clarifies the procedures it will require when the Government wishes to obtain CSLI in the future.

. . .


What is the significance of the conclusion that a cell phone acts as a tracking device when it transmits information about its location? The significance is that if cell phones squarely meet the definition of “tracking devices” it is time to stop treating them as something else, at least when the Government seeks to use them to track a person's movements. Rule 41 contains express procedures governing tracking device warrants, and those procedures need to be followed with regard to future requests for CSLI. This means several things. First, in past applications, the Government has taken the position that it has no obligation to provide notice of the tracking to the cell phone user, as its notice obligation was met by service of the order on the telecommunications provider from whom it received the CSLI. This does not meet the requirements of Rule 41, which provides that when a tracking device warrant is authorized, “the officer must serve a copy of the warrant on the person who was tracked or whose property was tracked.” FED. R. CRIM. P. 41(f)(2)(C). 19 Thus, warrants seeking CSLI must meet this obligation of Rule 41. Similarly, a return must be filed, as with all other warrants. FED. R. CRIM. P. 41(f)(2)(B).

Permalink 07:03:03 am, by fourth, 584 words, 381 views   English (US)
Categories: General

E.D.Pa.: Complete absence of "things to be seized" voided warrant and required exclusion even in face of GFE

The search warrant’s failure to include a list of things to be seized or an attachment made it a general warrant. The affidavit could not be relied upon where it was sealed and unavailable. This situation is close to the situation in Groh. With a full analysis of the situation and case law, the complete failure to include a list of things to be seized required application of the exclusionary rule. United States v. Wright, 730 F. Supp. 2d 358 (E.D. Pa. 2010)*:

In this case, we are presented with a warrant that, on its face, contains no description of the items to be seized and includes no attachment meeting the particularization requirement. In Groh, the Supreme Court recognized that a search conducted pursuant to such a warrant is an unconstitutional warrantless search, even when the warrant application sets forth the items to be seized during the search and the agent executing the search limits himself to the scope of the application. Therefore, I decline to characterize the Wright warrants as "general," because they contain not a vague or generic list of items to be seized, but rather, as in Groh, no description at all. The Wright brothers' argument that the warrants are invalid for lack of particularity is correct. See United States v. Yusuf, 461 F.3d 374, 393, 48 V.I. 980 (3d Cir. 2006) (discussing Groh); United States v. Wecht, 619 F.Supp.2d 213 (W.D.Pa. 2009) (granting a motion to suppress evidence when the affidavit, which was referred to on the warrant as an "Exhibit" and which contained the list of items to be seized, was sealed and was not attached to the warrant during execution).

. . .

Lazar and Hamilton are the two Circuit Court cases most factually similar to this case. Other courts, including the Third Circuit in Tracey, and the Second and Tenth Circuits, have issued opinions calling attention to Herring's focus on the level of police culpability in determining whether to apply the exclusionary rule. However, in those cases, there was enough specificity in the warrants for the courts to consider applying the good faith rule. In this case, the warrants were facially invalid and we therefore are not required to determine whether the executing officer acted in good faith.

In Herring, the Supreme Court did not abandon or question its clear statement in Leon that "a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid." 468 U.S. at 923. In Tracey, the Third Circuit repeated this rule, presuming it to be valid even in light of Herring. In the absence of a clear Supreme Court or Third Circuit ruling that a facially invalid warrant can somehow be relied on in objective good faith, I do not believe the good faith inquiry set forth in Herring applies in this case. I acknowledge that the level of "police culpability" in this case is low, and that, had the warrant here had some description of the items to be seized, Herring would mandate a consideration of Officer Taylor's level of responsibility for the error in this case. However, the Third Circuit has not signaled that Herring spelled the end of the exclusionary rule for facially invalid warrants, and a facially invalid warrant is what is clearly before me.


For the reasons set forth above, I will grant the motions to suppress the physical evidence seized during the search of the Wright apartments.

Permalink 06:50:03 am, by fourth, 123 words, 396 views   English (US)
Categories: General

CA8: Experienced criminal's will was not overborne for consent

An experienced criminal was not found to have been overborne for consent. United States v. Golinveaux, 611 F.3d 956 (8th Cir. 2010) (unpublished):

Under the circumstances of this case, we conclude Golinveaux's consent to the search of her car was voluntary. At most, Golinveaux was in police custody for thirty-eight minutes before she gave consent to search, and was subject to the possible physical intimidation described above and Captain Berte's "dangerous chemical speech" for less than twenty-three minutes. We do not believe, in such a short time, an experienced criminal such as Golinveaux--particularly given her history of assaulting law enforcement officers--was so overcome by police authority or by Captain Berte's persuasive powers as to make her consent involuntary. Golinveaux's motion to suppress was properly denied.


Permalink 05:20:40 pm, by fourth, 530 words, 644 views   English (US)
Categories: General

CA3: False arrest by officer of rape victim for false report violated Fourth Amendment; she had a reasonable expectation of her blood draw in the rape kit

A sexual assault victim who worked at a convenience store and was robbed and sexually attacked there was later arrested by the police for a false police report. The officer inexplicably believed that she made a false report to cover up her own theft, after the police were on notice that she was the victim of a serial rapist. The court held that the district court erred in concluding there was no fact question for trial. There was a fact question whether the officer could reasonably believe that she committed a crime of making a false statement in the face of later information that she was attacked by a serial rapist. The officer also lacked qualified immunity. Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010):

For the reasons described above, it must be said that, viewing the evidence from Reedy’s perspective, “no reasonably competent officer would have concluded that a warrant should issue” when it did for her arrest for making a false report of the rape, for theft, and for receiving stolen property. See Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996) (“[Crucial to the resolution of any assertion of qualified immunity is a careful examination of the record ... to establish, for purposes of summary judgment, a detailed factual description of the actions of each individual defendant viewed in a light most favorable to the plaintiff.”) (internal punctuation omitted). The District Court thus erred in granting summary judgment on the basis of qualified immunity.

She also consented only to a blood draw for the rape kit, and the officer violated the Fourth Amendment by getting a search warrant for the blood. She tested positive for diazepam and marijuana, and the officer considered that illegal drug use. She had a reasonable expectation of privacy in the blood draw violated by the officer:

As in Ferguson I and Ferguson II, an important inquiry about the blood samples at issue here is whether Reedy understood that her blood was being tested for the law enforcement purpose of obtaining incriminating evidence against her. The answer seems plainly to be no. She consented to having her blood drawn in the context of a rape kit examination. She had just been sexually assaulted and was being tested for sexually transmitted diseases and for potential evidence concerning her assailant. She indisputably had a reasonable expectation of privacy in her blood when it was drawn, and she did nothing to forfeit that expectation. The Fourth Amendment protects against unreasonable government intrusion into the personal and private aspects of life. There is little that is more personal than an individual’s bodily integrity. See Schmerber, 384 U.S. at 772 (“The integrity of an individual’s person is a cherished value of our society.”) Consequently, Evanson’s warrantless search of Reedy’s blood for drug use, without Reedy’s consent, violated the Fourth Amendment. The District Court’s conclusion to the contrary was error.

This case belongs in the annals of the "adding insult to injury" category of Fourth Amendment cases.

Hat tip to Litigation and Trial's Third Circuit Reinstates Civil Rights Suit Of Rape Victim Arrested For Telling The Truth which also discusses amicus briefs in the case.

Permalink 09:00:10 am, by fourth, 308 words, 309 views   English (US)
Categories: General

CA10: Defendant's saying he had “something on him” meant a gun and that was exigent circumstances here

Whether defendant’s apartment entry way was a public place was briefed but did not have to be decided because the officers had exigent circumstances from defendant’s admission he had “something on him.” United States v. Martin, 613 F.3d 1295 (10th Cir. 2010)*:

First, the arresting officer testified that, based upon his experience, when a suspect states that he has “something on him,” that usually means “he has a gun.” ... No one seriously disputes as much. Before entering the building, then, the officers had come face to face with a man who had likely shot someone else earlier in the day, who claimed he had a gun on him, and who, after being told to place his hands on the wall, dropped his hands from sight. In these circumstances, the “officers had an objectively reasonable basis to believe that there was an immediate need to enter to protect [their] safety.” Reeves, 524 F.3d at 1169; see also Walker, 474 F.3d at 1251-53 (exigent circumstances permitting entry into home existed after man inside the house, in response to the officer announcing his presence outside, shouted, “Yeah, and I got a goddamn gun”); United States v. Thomas, 372 F.3d 1173, 1175, 1178 (10th Cir. 2004) (warrantless entry permitted after defendant brandished a weapon).

Officers were at the defendant’s house based on a 911 call that a woman was being held hostage against her will. When they got there, the woman was not harmed, but the officers entered to check it out. Drugs were found in plain view. The entry was still with exigent circumstances, and the first appearances were not binding. State v. Arnold, 2010 Tenn. Crim. App. LEXIS 637 (July 26, 2010).*

The video, not presented at the suppression hearing, was shown at trial, so it could be relied upon to determine the reasonable suspicion for defendant’s stop and seizure. State v. Wilson, 2010 Tenn. Crim. App. LEXIS 646 (July 26, 2010).*

Permalink 08:37:04 am, by fourth, 121 words, 343 views   English (US)
Categories: General

IN: Trial court put burden on defendant to litigate warrantless search, but, on de novo review, state satisfied burden

The trial court mistakenly (with the aid of defense counsel) put the burden of proof on the defendant to prove that a warrantless search was invalid. However, applying de novo review to the motion to suppress, the search was still valid under all the facts before the trial court because, if the correct burden were applied, the state still would have won. Danner v. State, 931 N.E.2d 421 (Ind. App. 2010).*

Defendant was not seized by just following him and then his flight. State v. Jamison, 2010 Ala. Crim. App. LEXIS 64 (July 30, 2010).*

Holding on to defendant’s driver’s license while a warrants check was run for 5-10 minutes was not unreasonable. State v. Hummons, 225 Ariz. 254, 236 P.3d 1201, 587 Ariz. Adv. Rep. 4 (Ariz. App. 2010).*


Permalink 09:40:49 am, by fourth, 385 words, 620 views   English (US)
Categories: General

AZ: Gun in vehicle could be seized under "community caretaker doctrine" which is not the same as Quarles's Fifth Amendment public safety exception

Defendant's disabled pickup truck had a gun in it, and it was visible. Officers could enter the vehicle to seize it under the public safety exception to protect against its theft or use. This is not the same as Quarles's public safety exception to Miranda. State v. Mendoza-Ruiz, 225 Ariz. 473, 240 P.3d 1235, 587 Ariz. Adv. Rep. 6 (Ariz. App. 2010):

P12 Here, the officers entered the cab of the pickup and removed the gun because of their legitimate concern for public safety. At the suppression hearing, Officer J.M. said that the gun was clearly visible from outside the cab of the vehicle. She testified that the area where the truck was parked was busy because of a nearby restaurant and nightclub. She also testified that the restaurant where the truck was parked was a “location of high crime, shootings, [and] aggravated assaults.” As the Supreme Court did in Cady, we conclude it was reasonable for Officers N.D. and J.M. to enter the vehicle and secure the firearm to protect public safety. In fact, the public danger here was even more pressing than in Cady, in which the firearm was not visible because it was in the trunk, and the car was crashed on the side of a rural road, rather than in a busy, high-crime neighborhood.

P13 We also reject defendant's argument that the community caretaker doctrine is “interchangeable” with the public safety exception to Miranda v. Arizona, 384 U.S. 436 (1966), and therefore only relates to the admissibility of statements and not physical evidence. The public safety exception was most notably expressed in New York v. Quarles, 467 U.S. 649, 655-56 (1984), in which the Court held that Miranda did not require suppression of a defendant's answer when questioned by a police officer about where he hid a gun while being pursued in a grocery store because the question was “reasonably prompted by a concern for the public safety.” But the two doctrines are not interchangeable because they pertain to two entirely different rules. Quarles allowed a public safety exception to the general rule that a suspect's statement made during custodial interrogation is not admissible unless he is first informed of his Fifth Amendment rights. Id. at 655-56. The community caretaker function as applied in Cady concerns the admissibility of physical evidence under the Fourth Amendment. 413 U.S. at 441.

Permalink 12:40:55 am, by fourth, 242 words, 343 views   English (US)
Categories: General

CA11: Govt. persuades court that significant sales from premises was exigency

Sole exigency here was that cocaine was being cooked up in defendant’s house and sold (thus “removed”) quickly, and that was sufficient to overcome not getting a search warrant before the entry. United States v. Walker, 390 Fed. Appx. 854 (11th Cir. 2010)*:

Walker argues that the government failed to establish an objective basis supporting the detectives' fear that the evidence would quickly be sold. However, the district court credited the detectives' combined training and experience, together with their personal experience buying crack from Walker's home, and found that the detectives had a sufficient, objective basis for believing that the drugs would likely be removed from the home before they could obtain a search warrant. This finding was not clearly erroneous. Reid requires nothing more, since "[t]he test for whether or not exigent circumstances exist is whether the facts would lead a reasonable, experienced agent to believe that evidence might be destroyed or removed before a warrant could be secured." Reid, 69 F.3d at 1113.

Defendant’s stop for a traffic offense led to seeing she wore no seatbelt and had an unrestrained child. A joint was seen, and that was probable cause for more of a search. United States v. Smith, 2010 U.S. Dist. LEXIS 76423 (E.D. Ky. July 28, 2010).*

Knock-and-announce at defendant’s house was not required under the “useless gesture” exception since defendant was in custody and nobody was home. United States v. May, 2010 U.S. Dist. LEXIS 76266 (S.D. Ala. July 26, 2010).*

Permalink 12:25:13 am, by fourth, 256 words, 316 views   English (US)
Categories: General

M.D.Ala.: Search of defendant's back yard violated curtilage under Dunn

Officers found marijuana plants in defendant’s back yard, although 20 yards from the back of the house. They were still on the curtilage under Dunn’s four factor test. Among other factors, he mowed the area, and that indicates habitation. United States v. Garrott, 745 F. Supp. 2d 1206 (M.D. Ala. 2010), rejecting R&R 2010 U.S. Dist. LEXIS 77029 (M.D. Ala. July 6, 2010).*

Officers responded to a 911 call about gunfire. At the defendant’s house, they saw bullet holes in the outside wall and the person inside was extremely distraught and talking on the telephone and unsure whether anyone else was home. That was exigent circumstances for an entry in case somebody was shot inside. United States v. Parton, 2010 U.S. Dist. LEXIS 77015 (E.D. Tenn. July 2, 2010).*

Court notes that the protective sweep in this case was “questionable” (actually it looked really bad; court was just being nice), but it led to no evidence. One defendant “very short cut-off jeans” was really unlikely to be armed for a frisk under Terry. “The evidence also did not establish ‘“specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.’ See United States v. Graham, 483 F.3d 431, 438 (6th Cir. 2007). As such, neither Terry or a danger exigency justified the search.” The search of the car in this case was, however, with probable cause. United States v. Redmond, 2009 U.S. Dist. LEXIS 129352 (E.D. Ky. February 9, 2009).*


Permalink 09:51:11 am, by fourth, 267 words, 411 views   English (US)
Categories: General

CA7: Existence of PC made threat to get a SW not an "empty threat"

The threat to get a search warrant if defendant did not consent was not an "empty threat" because the officers had probable cause. Therefore, it was not unlawful coercion. United States v. Jones, 614 F.3d 423 (7th Cir. 2010):

In addition, Jones argues that Joseph was coerced into consenting based on Arnold's "empty threat" that a search warrant would eventually be obtained. Jones is correct in asserting that baseless threats to obtain a search warrant may indeed render a consent to search involuntary. United States v. Hicks, 539 F.3d 566, 571 (7th Cir. 2008); United States v. White, 979 F.2d 539, 542 (7th Cir. 1992). The appropriate focus, then, is on whether the police had a genuine intention to seek such a warrant, and more specifically, whether they had a reasonable factual basis to believe they had probable cause to obtain a warrant. Hicks, 539 F.3d at 572. [¶] The officers in this case had a reasonable factual basis to believe that there was sufficient probable cause to obtain a warrant.

Although defendant was in custody, he consented to letting a police officer search his cell phone for child pornography. His “low mental functioning” defense to consent is rejected because his actions showed he knew what he was doing when he was trying to hide the cell phone and his responses to questions about what was on the phone. The erect penis in the photograph, in context of other pictures on the phone, was probable cause to believe it was of a minor, although it could not be discerned with certainty. United States v. McGlothlin, 391 Fed. Appx. 542 (7th Cir. 2010)* (Anders brief, but the issue is fully discussed.)

Permalink 12:42:26 am, by fourth, 243 words, 546 views   English (US)
Categories: General

CA8: “May I see your driver's license or your ID?” is a request not a command

Defendant was riding an interstate bus which stopped at the MSP airport, and officers boarded the bus to talk to passengers. Defendant talked with the officers and refused to consent to a search of his bag. The officer asked: “May I see your driver's license or your ID?” This was a request in a friendly tone and not a command, and a reasonable person would have felt free to not provide it. United States v. Richards, 611 F.3d 966 (8th Cir. 2010):

This was not a case of multiple officers coercing a bus passenger into submission by assailing him with multiple requests for the same thing until he complied. Nor was it a case in which police crafted an environment so coercive that Richards' will was overborne and he had no choice but to produce his identification. Richards was free to decline to present identification at the time that he was asked for it, regardless of Askerooth's hindsight reflection that, in light of his suspicious behavior, she would have likely detained Richards had he refused to cooperate. We conclude that, when viewed in the light of the totality of the circumstances, a reasonable person would have felt at liberty to decline Askerooth's request for identification, and thus it did not constitute a seizure for the purposes of the Fourth Amendment.

[I don't agree that any person feels free to refuse a request for ID when multiple police officers are on an interstate bus asking questions.]

Permalink 12:15:28 am, by fourth, 177 words, 584 views   English (US)
Categories: General

CA1: ATF could search defendant's FFL records on instigation of local police

Defendant ATF agent had qualified immunity for a search of plaintiff’s gun store at the request of local police. Having an FFL means you are in a highly regulated industry and have a reduced expectation of privacy in your records. Giragosian v. Bettencourt, 614 F.3d 25 (1st Cir. 2010):

Pursuant to 18 U.S.C. § 923(g)(1)(B)(ii), the government may conduct compliance inspections of gun shop premises without either a warrant or reasonable cause, as long as it does not do so more than once in any twelve-month period. The Supreme Court has explicitly upheld the constitutionality of this provision under the Fourth Amendment. Biswell, 406 U.S. at 317 (holding that the “urgent federal interest” in regulating firearms traffic outweighs any threat to gun dealers' privacy). Bettencourt's 2007 compliance inspection of Giragosian's gun shop was the first in twelve months -- indeed, in ten years. It thus met all of the requirements of § 923(g)(1)(B)(ii).

The stop and subsequent search were valid, and any appeal would be frivolous (Anders brief). United States v. Pedraza-Bucio, 386 Fed. Appx. 822 (10th Cir. 2010) (unpublished).*

Permalink 12:06:24 am, by fourth, 298 words, 385 views   English (US)
Categories: General

ME: Warrantless "preview search" of hard drive for child porn violated Fourth Amendment, but the warrant would have issued anyway

Defendant was found to have consented to seizure of the portable hard drive to his computer after police asked him about child pornography on it, based on reports from another having seen it when he showed him. The “preview search” of the computer without a warrant violated the Fourth Amendment, but the search was permissible by inevitable discovery because of defendant’s admissions there was child pornography on the hard drive. The full forensic examination of the computer was with a warrant, and, excluding the preview search from the affidavit, the warrant would have been granted anyway. State v. Nadeau, 2010 ME 71, 1 A.3d 445 (2010).* (This case has a helpful analysis of applying the exclusionary rule or not under inevitable discovery, and the court finds that applying the exclusionary rule here would not advance Fourth Amendment interests.)

The search of defendant’s briefcase at the time of his arrest would have violated Gant, but it was valid as inevitable discovery because it would have been searched at book-in. United States v. Miles, 2010 U.S. Dist. LEXIS 76725 (E.D. Pa. July 29, 2010).*

One defendant consented to the officers entering the house to look for an alleged runaway, and the court of appeals did not properly consider the audio of the occurrence from one officer’s body recorder where he asked “may I.” Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010), revg Eduardo Valtierra v. State, 293 S.W.3d 725 (Tex. App.-San Antonio 2009); Heriberto Valtierra v. State, 293 S.W.3d 697 (Tex. App.-San Antonio 2009).

Defendant’s stop led to questions simultaneous with the paperwork which led to consent. “Although the results of the questioning led to a police-citizen encounter that was longer than it would have been without the questioning, that fact is not relevant.” State v. Gomes, 236 Ore. App. 364, 236 P.3d 841 (2010).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

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

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

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

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

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"If it was easy, everybody would be doing it. It isn't, and they don't."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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