The defendant was detained because he looked like the suspect they wanted. When they found out he was not the right guy, they should have released him and not took him in for questioning because that violated his Fourth Amendment rights. On this record, however, this violation was harmless. State v. Kinney, 225 Ariz. 550, 594 Ariz. Adv. Rep. 6, 241 P.3d 914 (App. 2010):

P15 Here, the officers had received a tip that Balentine, for whom there was an outstanding felony arrest warrant, was at a particular address. Officers found Kinney at that location and he somewhat matched Balentine's physical description. Based upon the totality of the circumstances, the officers had reasonable suspicion that Kinney might be Balentine and, therefore, was involved in criminal activity. Accordingly, the officers' initial investigatory detention was permissible. See Aguirre, 130 Ariz. at 56, 633 P.2d at 1049.

P16 Once the officers determined that Kinney was not Balentine, however, they no longer had reasonable suspicion that he was wanted in connection with the arrest warrant and therefore were required to end Kinney's detention. See Teagle, 217 Ariz. 17, P 32, 170 P.3d at 275. By detaining Kinney longer than necessary to determine whether he was Balentine and continuing to question him, the officers exceeded the permissible scope of the initial investigatory detention. See id. The trial court properly suppressed the statements Kinney made at the scene after officers learned he was not Balentine. See Florida v. Royer, 460 U.S. 491, 501 (1983) (noting "statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention"); In re Maricopa County Juv. Action No. JT30243, 186 Ariz. 213, 215-16, 218, 920 P.2d 779, 781-82, 784 (App. 1996) (confession resulting from illegal detention properly suppressed). And the court could have suppressed the statements at the station, had it been requested to do so.

A school administrator’s search that produced a gun was not a police search just because the school resource officer showed up while the search was going on. Ortiz v. State, 2010 Ga. App. LEXIS 1010 (October 27, 2010).*

Defendant’s claim that his counsel was ineffective for not challenging the seizure of body armor used in a robbery he was convicted of fails because he can’t show that the search would be suppressed. Nyane v. State, 2010 Ga. App. LEXIS 1008 (October 27, 2010).*

Defendant was speeding, and the officer had the subjective intent to stop the defendant. There were furtive movements before he got out of the car, and the officer smelled marijuana. His handcuffing was reasonable. State v. Mitchell, 52 So. 3d 155 (La. App. 5th Cir. 2010).*

Defendant’s car was parked, and the police pulled up with blue lights on. “The Illinois Rules of the Road do not permit motorists to disregard police lights or emergency vehicles,” so he was stopped, and it was without reasonable suspicion. United States v. Windom, 2010 U.S. Dist. LEXIS 114650 (S.D. Ill. October 28, 2010):

When the Tahoe (lights ablaze) zipped up and parked in front of Windom’s car (with the law enforcement vehicle parked at an angle facing Windom’s car on the “wrong side of the street,” partially blocking the street) and two officers hopped out and approached Windom’s vehicle, a reasonable person in Windom's shoes would not have felt free to ignore the officers, drive off, “decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501 U.S. at 435-36; United States v. Drayton, 536 U.S. 194, 202 (2002).

The court already upheld the search on consent to enter by apparent authority. On defendant’s motion to reconsider, nothing new was added that changes the outcome. United States v. Newton, 2010 U.S. Dist. LEXIS 114740 (N.D. Ind. October 28, 2010).*

Because there was no real factual issue with the probable cause for the search warrant of plaintiff’s property, the qualified immunity question does not even have to be addressed. Parkey v. Sample, 623 F.3d 1163 (7th Cir. 2010).*

Defendant was accused of child pornography by his own victims, and the police raced to get a search warrant for his computer which had pictures of the kids that he showed them. While the failure to attach appropriate documents violated Groh, the court refuses to suppress the search under the exclusionary rule and the good faith exception. United States v. Rosa, 626 F.3d 56 (2d Cir. 2010):

Upon examining the circumstances of the case, we conclude that the officers acted reasonably and that the exclusionary rule would serve little deterrent purpose in this case. Given the time pressures and the content of the application and the affidavit, it is only reasonable to conclude that the failure to ensure that the items to be seized were properly limited under the express terms of the warrant was simply an inadvertent error that was the product of “isolated negligence.” Herring, 129 S.Ct. at 698. There is nothing to suggest deliberateness and culpability on the officers’ part. See United States v. Riccardi, 405 F.3d 852, 863-64 (10th Cir. 2005) (applying the good faith exception to an officer’s search of a seized computer for evidence of child pornography despite the warrant’s lack of particularity). “[E]ven assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” Leon, 468 U.S. at 918-19; see Herring, 129 S.Ct. at 704 (“In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence ... rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’” (internal citations omitted)).

Rosa invokes Leon’s language that good faith may not be found where a “warrant [is] so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized,” to argue that a reasonable officer could not rely on this search warrant in good faith and that the exclusionary rule should therefore apply. He likewise relies on the Supreme Court’s denial of qualified immunity to the ATF agent in Groh as further support for applying the exclusionary rule. Not every facially deficient warrant, however, will be so defective that an officer will lack a reasonable basis for relying upon it, see Otero, 563 F.3d at 1134; Riccardi, 405 F.3d at 864, and the defective warrant in this case certainly did not have the glaring deficiencies of the itemless warrant in Groh. Moreover, the Court has made clear since Leon that while the objective inquiries underlying the good faith exception and qualified immunity are the same, see Groh, 540 U.S. at 565 n.8, application of the exclusionary rule requires the additional determination that the officers’ conduct was “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system,” Herring, 129 S.Ct. at 702. Because there is no evidence that Investigator Blake and his team of officers actually relied on the defective warrant, as opposed to their knowledge of the investigation and the contemplated limits of the town justice’s authorization, in executing the search, the requisite levels of deliberateness and culpability justifying suppression are lacking. Cf. Groh, 540 U.S. at 569 (Kennedy, J., dissenting) (“The issue in this case is whether an officer can reasonably fail to recognize a clerical error, not whether an officer who recognizes a clerical error can reasonably conclude that a defective warrant is legally valid.”); id. at 579 (Thomas, J., dissenting) (“[T]he Court does not even argue that the fact that [the agent] made a mistake in preparing the warrant was objectively unreasonable, nor could it. ... The only remaining question is whether [his] failure to notice the defect was objectively unreasonable.”).

The circumstances surrounding the investigation and application for a warrant, conducted with necessary speed in the early hours of the morning, and the search, executed by a team led by the application’s affiant, demonstrate that the officers proceeded as though the limitations contemplated by the supporting documents were present in the warrant itself, and, as a result, their actions “bear none of the hallmarks of a general search.” Liu, 239 F.3d at 141. Under the facts of this case, we conclude that the benefits of deterrence do not outweigh the costs. In so holding, however, we reiterate the importance of law enforcement’s compliance with the probable cause and particularity requirements of the Fourth Amendment and emphasize that application of the exclusionary rule will vary in accordance with the facts of each case.

Here, the CI’s information and the police surveillance that the defendant probationer lived at the place searched was the defendant’s were not sufficient to provide probable cause, and the motion to suppress is granted. United States v. Gates, 745 F. Supp. 2d 936 (N.D. Cal. 2010)*:

Here, the undisputed facts show that the CI does not meet the standard required by Gates to establish probable cause. First, the informant's basis of knowledge was never provided, and the information given about the 98th Avenue home (color, fencing, presence of dog in the yard) was consistent with what anyone walking by on the sidewalk would observe. Notably, the CI did not provide any specific information regarding the residence not known to the public. ... Second, the information the CI provided with specificity (that T-Della Reese had guns and marijuana) was only corroborated after the search had taken place. Lastly, the Government has provided no evidence that this CI was "tested," in that the CI had provided reliable information in the past. ...

The person consenting to entry had apparent authority to consent to an entry because the officer knew that he’d seen her there before and he knew that she and her kids lived there. United States v. Jackson, 2010 U.S. Dist. LEXIS 114095 (E.D. Tenn. October 26, 2010), adopting 2010 U.S. Dist. LEXIS 114029 (E.D. Tenn. August 25, 2010).*

A trash pull at defendant’s residence produced drug sale records and marijuana residue and that was sufficient for probable cause for the search warrant. United States v. Seidel, 2010 U.S. Dist. LEXIS 114168 (D. N.D. October 15, 2010).*

Defendant was parked outside of a known drug house at 3 a.m. sitting in the car with the inside lights on. The officer had enough to at least pull up and stop to see what was going on and he parked in front of the car. At this point, defendant dropped drugs and ran. He was not illegally detained when he ran. United States v. Mabery, 2010 U.S. Dist. LEXIS 114249 (W.D. Mo. October 8, 2010).*

While this defendant was the target of an eavesdropping order, he had no standing to challenge a recording at the jail between a lawyer and another person involving him where bribery of a witness was discussed. United States v. Ramos-Gonzalez, 2010 U.S. Dist. LEXIS 113971 (D. P.R. October 25, 2010):

During the period between November 8, 2007 and November 19, 2007 a meeting between cooperating defendant Canuelas and Bronco, a licensed attorney in the Puerto Rico state court, was arranged by Laboy with the assistance of Zabala. On December 1, 2007, Bronco and Arroyo, another lawyer, met with Canuelas without the previous authorization of his attorney. It is alleged that during this meeting, which was not recorded, Bronco asked Canuelas to sign a piece of paper indicating that Bronco had authorization from the cooperating defendant to meet with him and that Canuelas’ attorney was aware of the visit.

The Federal Bureau of Investigations (FBI) sent the Warden of the MDC a letter in which it requested and through which it obtained authorization to conduct covert recordings of the meetings between Canuelas and Bronco and Arroyo within the MDC. (Docket No. 934). As a result subsequent meetings between Canuelas and attorneys Bronco and Arroyo were audio and video recorded. The recorded meetings spanned from December 10, 2007 until January 2008. Defendant Bronco met with Canuelas on December 7, 2007. During this meeting Bronco hand-wrote a sworn statement that contained false statements concerning Canuelas’ knowledge of the involvements of several defendants in Criminal Case No. 07-318 (PG). Defendant Bronco then urged Canuelas to sign and initial the statement. The cooperating defendant signed the statement but reminded Bronco that the statements contained therein were false. On December 10, 2007 Arroyo met with Canuelas and urged the cooperating defendant to sign a typed version of the hand-written statement previously drafted by Bronco on December 7, 2007. Canuelas refused to sign the typed version of the statement after telling Arroyo that the statements contained therein were false. On December 11, 2007, Bronco and Arroyo met with Canuelas and sought to have him sign the typed version of the sworn statement. During this meeting Bronco was recorded on audio and video assuring the cooperating defendant that he would receive payment for his statement in the amount of twelve thousand dollars (12,000). Bronco again visited the cooperating defendant on January 2, 2008 with a slightly different false sworn statement in Bronco’s handwriting and had Canuelas sign it. On February 5, 2008 a Superseding Indictment, which included charges of conspiracy to tamper with a government witness, aiding and abetting to tamper with a government witness, and aiding and abetting to bribe a government witness, was returned.

They were also not protected by attorney-work product:

Defendant also claims that he has adequate standing to challenge the admission of the recordings under the work product doctrine. Although Defendant does not explicitly state his argument, the Court understands that he claims that he has standing to suppress the recordings because they are protected by the work product doctrine and are subject to an expectation of privacy under the Fourth Amendment. As discussed in the previous section, the Court understands that the Defendant is not an aggrieved person with standing to challenge the recordings. Moreover, the Court finds that Defendant lacks standing to assert any Fourth Amendment claims under the work product doctrine.

The work product privilege exempts documents prepared by an attorney in contemplation of litigation. ...

The work product doctrine is also vulnerable to the crime or fraud exception in situations where the work product is part of a criminal scheme. In re John Doe Corp., 675 F.2d 482, 491-492 (2d Cir. 1982); In re Special September 1978 Grand Jury (II), 640 F.2d 49, 62 (7th Cir. 1980). See also In re Doe, 662 F.2d 1073, 1078-1079 (4th Cir. 1981) (clarifying that the work product doctrine should not lend itself to use by lawyers seeking to insulate themselves from criminal prosecution).

Other sister courts have concluded that it would be perverse "to allow a lawyer to claim an evidentiary privilege to prevent disclosure of work product generated by those very activities the privilege was meant to prevent." Moody v. Internal Revenue Service, 654 F.2d 795, 800, 210 U.S. App. D.C. 80 (D.C. Cir. 1981). In other words, caselaw disfavors the use of the work product doctrine in order to cover up activities that are destructive of the legal system. Id. The Second Circuit has further stated examples of actions that are unlikely to be protected by the work product doctrine, "Similarly, where a party suborns perjury by a witness to bolster a claim or defense, [c]ommunications or work product relating to that witness may also be discoverable." In re Richard Roe, Inc., 168 F.3d 69, 72 (2d Cir. 1999).

. . .

The Court further concludes that even if Defendant met the work product standing requirements, the recordings in question would not be protected. The meetings between Bronco, Arroyo, and Canuelas were directed at convincing Canuelas to submit false sworn testimony rather than to interview a potential witness. (Docket No. 2437). The mere fact that Bronco was a licensed attorney and working for Defendant when he met with Canuelas does not mean that the conversations are automatically protected under the work product doctrine. Moreover, Bronco was not licensed to practice in the District Court of Puerto Rico and as a result his meetings with Canuelas could not have possibly been prepared in anticipation of litigation concerning the federal charges against Ramos.

Thus, the Court concludes that Bronco did not meet with Canuelas in his capacity as a lawyer and as a result the recorded conversations are not protected by the work product doctrine, nor do they have an expectation of privacy under the Fourth Amendment.

Finally, attorney-client privilege was rejected:

In his motion to suppress, Ramos attempts to convince the Court that the recorded conversations were covered under the attorney-client privilege. However, Defendant does not provide reasoning for this conclusion, nor does he cite relevant caselaw that would aid the Court in reaching this conclusion. The Court in its analysis and application of the law to the facts concludes that the totality of the circumstances suggest that there was no attorney client relationship. At the time that Canuelas met with Bronco and Arroyo, he was already represented by the Office of the Public Defender and Canuelas was not seeking legal advice. Moreover, the recorded conversations were not legal in nature and the meetings were concerned with illegal efforts to encourage Canuelas to submit a false statement. (Docket No.2437). Thus, when we examine the totality of the interactions between Canuelas, Bronco, and Arroyo we conclude that there was no attorney-client relationship and that the federal protections offered to attorney-client conversations do not extend to the communications that the Defendant seeks to suppress. The Court does not find it necessary to enter into an analysis regarding the crime-fraud exception because it finds that the attorney-client privilege is inapplicable in this case.

Remember Rule 5 in § 1:1 of my Professional Responsibility in Criminal Defense Practice (3d ed. 2005):

Say nothing or do nothing that you would be afraid to read about in the newspaper or in a transcript or hear in a courtroom someday.

Defendant was the apparent subject of a 911 caller about an indecent exposure complaint of a man in dreadlocks with a white shirt at a particular place. Defendant matched the description, and his encounter with the police, including his patdown was purely by consent. When defendant was arrested, the bag with him was properly inventoried. United States v. White, 2010 U.S. Dist. LEXIS 113991 (D. S.C. October 26, 2010).*

2255 petitioner’s Gant claim was unreviewable in post-conviction under Stone v. Powell. [He did not allege an IAC claim. Note to readers: I almost never include cases citing Stone. If criminal defense lawyers don’t know that by now, they are beyond my help here. You have to tie the Fourth Amendment claim to an IAC claim via Kimmelman. But, I know that nonlawyers read this, too, and pro se 2255's and state post-convictions make this mistake everyday, and Stone is 34 years old.] Smith v. United States, 2010 U.S. Dist. LEXIS 114199 (N.D. Ohio October 27, 2010).*

The CI here was clearly reliable because the police listened in to telephone calls between him and the defendant for their probable cause. United States v. Constantine, 2010 U.S. Dist. LEXIS 113969 (D. Minn. October 26, 2010).*

A Utah statute that required that sex offenders register their Internet identifiers with the state violates neither the First nor the Fourth Amendment. As to the Fourth Amendment, there is no high privacy interest in the identifiers that a person uses on the Internet because it is voluntarily provided to third parties. It also does not violate the ex post facto clause. Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010).*

Four officers show up at defendant’s house and seek admittance. He lets them in, and they Mirandize him and then ask for consent. That is acquiescence to a show of authority, and the “consent” is invalid. State v. Ojeda, 2010 Fla. App. LEXIS 16275 (3d DCA October 27, 2010).*

Defendant failed to file a motion to suppress, so the search of his car by search incident or impoundment was not preserved for appellate review. The trial record alone is insufficient. State v. Roberts, 240 P.3d 1198 (Wash. App. 2010).*

An obvious hand to hand drug sale on the street surveilled by officers was probable cause. Donaldson v. State, 416 Md. 467, 7 A.3d 84 (2010).*

Defendant had no reasonable expectation of privacy in a package in a controlled delivery anticipatory search case where the package was addressed to an alias that defendant did not use. The package came from a source city in the hands of FedEx, and it was subjected to a dog sniff en route. A warrant was issued when it arrived at the delivery city, and 1.3 lbs of cocaine was found inside. An anticipatory warrant was issued for the house for the controlled delivery. All the warrants were valid, and the good faith exception would apply anyway. United States v. Barker, 2010 U.S. Dist. LEXIS 113559 (W.D. Ark. October 14, 2010).*

The officer here had ample reasonable suspicion for defendant’s stop based on a prior drug deal and surveillance. The district court’s findings are supported by the record, and, on de novo review, it showed reasonable suspicion. United States v. Bailey, 622 F.3d 1 (D.C. Cir. 2010).*

Defendant was stopped with PC for a traffic violation, and, when defendant was out of the car, the officer saw a bulge in defendant’s waistband, which he asked about. Defendant reached for it, and the officer did, too, in case it was a weapon. It was a cigar box with a cellophane side which had marijuana in plain view. United States v. Alston, 2010 U.S. Dist. LEXIS 113529 (D. S.C. October 25, 2010).*

The police had exigent circumstances based on “information from appellant’s mother by which they could have reasonably inferred that appellant was agitated and possibly mentally disturbed. Certainly, appellant’s behavior in running from the car into the corn field, would have supported that inference.” State v. Sheffer, 2010 Ohio 5167, 2010 Ohio App. LEXIS 4353 (6th Dist. October 22, 2010), companion case at State v. Sheffer, 2010 Ohio 5165, 2010 Ohio App. LEXIS 4349 (6th Dist. October 22, 2010).*

Probable cause was shown by a link between defendant’s screen name and an IP address traced to defendant’s address, and “it was reasonable to infer that he had child pornography on the computer because he asked ‘Centralpamaster’ for photographs to view while masturbating.” State v. Shields, 124 Conn. App. 584, 5 A.3d 984 (2010).*

Officer’s mistake in stopping defendant with a special plate issued by the state without legal authority was a reasonable mistake of fact and not a mistake of law, so the stop was not invalid. State v. Horton, 150 Idaho 300, 246 P.3d 673 (App. 2010).*

Defendant was staying in a hotel room with his mother, and the police had no basis for concluding that she had apparent authority to consent to a search of the hotel room. All their information going in was that the defendant was in control and they had no information that gave her apparent authority. State v. Nicholas, 51 So. 3d 98 (La. App. 4th Cir. 2010)*:

Moreover, in marked contrast to Gettridge, Molette, and even Brown, the State presented no testimony indicating that Ms. Jones ever represented to Det. Stovall that she had the authority to consent to a search of her adult son's residence, which she happened to own. The only testimony was to the effect that she was asked to give consent and did so, not that the detective was in possession of any facts upon which he could rely to find that she had any authority. Instead, it appears that Det. Stovall simply believed that a hotel owner can give valid consent to the search of a hotel room. Considering the jurisprudence, such a belief is not reasonable nor does it justify the failure to seek a warrant before searching.

Defendant had no standing in a car as a passenger. It was rented by his girlfriend’s father and driven by her. His subjective expectation of privacy in his gun in the car was not one that society would recognize as reasonable. United States v. Thompson, 2010 U.S. Dist. LEXIS 113279 (D. Me. October 21, 2010).*

Defendant’s 2255 that included a claim that defense counsel did not challenge a search failed to show prejudice because of the overwhelming proof against him. United States v. Ruelas, 2010 U.S. Dist. LEXIS 113157 (C.D. Cal. October 12, 2010).*

Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World by Jeffrey Bellin, SMU’s Dedman School of Law. Abstract:

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, while highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.

Nearly everyone agrees that, as an intuitive matter, the “reasonableness” of a search or seizure depends to some degree on the seriousness of the crime being investigated. Yet, current Fourth Amendment doctrine ignores this intuition. As a result, an invasive search of a suspected shoplifter is, legally speaking, no more or less reasonable than the same search of a suspected murderer.

Through the years, the primary objection raised by the Supreme Court and academics to altering this status quo is that a crime severity variable would be unworkable. While a handful of scholars continue to argue for an increased role for crime severity in Fourth Amendment jurisprudence, this powerful objection remains unanswered. In an effort to fill this void in the debate, and introduce crime severity as a critical component of a revitalized search and seizure jurisprudence, this Article proposes a concrete framework for incorporating crime severity into Fourth Amendment doctrine. The Article then explores specific applications of the framework to highlight the constructive role crime severity distinctions can play in defining the constitutional parameters of searches and seizures in the modern era.

FBI's GPS Tracking Raises Privacy Concerns?, by Mina Kim:

When Yasir Afifi took his car in for an oil change, his mechanic found an unusual wire hanging from below. It was part of a black rectangular device attached to his car by a magnet. After posting photos of it on an online forum, where posters identified it as a GPS tracking device, Afifi, a Santa Clara, Calif., college student and computer salesman, got a visit from FBI agents demanding their equipment back.

The FBI confirms the device belongs to the agency and that agents visited Afifi to get it back. But Special Agent Joseph Schadler won't say why it was there.

The search warrant for defendant’s computer for child pornography was not stale when the information was only ten months old, considering that CP is commonly kept for a long time. The probable cause here was based on a known CP file with a specific hash value being accessed in Germany from an IP address in the U.S. which was sent by German police to ICE which established that during the relevant time period was associated with defendant. The government also showed in the affidavit that defendant was involved with CP before that. United States v. Hampton, 2010 U.S. Dist. LEXIS 112970 (W.D. Ky. September 10, 2010).*

See Ralph C. Losey, Hash: the New Bates Stamp, 12 J. Tech. L. & Pol'y 1, 12 (2007):

What is hash? As the term is used today in electronic discovery, it is neither a food nor an illegal substance; hash is a mathematical process. To be precise, hash is an encryption algorithm. Hashing generates a unique alphanumeric value to identify the total combination of bits and bytes that make up a particular computer file, group of files, or even an entire hard drive. The unique number of a computer file is its hash value, also known in mathematical parlance as the "condensed representation" or "message digest" of the original message. It is more popularly known today as a "digital fingerprint."

[This is case is proof that one cannot even access child porn in another country without the U.S. government being able to find out about it.]

Defendant was not seized when the officer was talking to him and told him to take his hands out of his pocket. He could not show defense counsel was ineffective for not raising the issue. State v. Fortun-Cebada, 158 Wn. App. 158, 241 P.3d 800 (2010).

Hearsay during the suppression hearing was admissible. The officers had a witness’s description of the car involved in a drug store robbery, and stopped the car. Defendant never rebutted the testimony that the search of the car was by consent. Lloyd v. Commonwealth, 324 S.W.3d 384 (Ky. 2010).*

Defendant was not under arrest when he accompanied FBI agents in to talk about a crime they were investigating, and he ultimately validly confessed to sex crimes and murder. United States v. Redlightning, 624 F.3d 1090 (9th Cir. 2010).*

Detaining and then handcuffing a potential suspect during the execution of a search warrant was reasonable under the circumstances under Muehler, and it did not require probable cause as to him. United States v. Maddox, 2010 U.S. Dist. LEXIS 112847 (N.D. Ga. September 7, 2010):

While Maddox correctly notes that law enforcement's motives in sequestering him are relevant, so long as it was reasonable under the circumstances to detain Maddox during the execution of the search warrant by handcuffing and seating him in the rear of a police car, he was not subjected to an illegal detention or a de facto arrest. Here, unlike the individual challenging the constitutionality of her detention in Muehler, Maddox was not a mere innocent occupant of the house being searched, detained as a result of unfortunate happenstance. He was instead the primary suspect in a robbery investigation, and his presence during the execution of the search warrant presented a legitimate safety concern, as well as a risk that he would flee or interfere with the search. See Muehler, 544 U.S. at 98; Bautista, 684 F.2d 1286, at 1288.

Defendant’s patdown was justified by a 911 call of assault on the street of a pregnant woman by a specifically described man. The officer got to the scene and saw no woman, but saw the man who was nervous and sweating despite the cold and he would not take his hands out of his pockets. The officer was justified in patting him down, and the vials of drugs in his pocket were easily determined by plain feel to be drugs under Dickerson. United States v. Robinson, 2010 U.S. Dist. LEXIS 113204 (E.D. Pa. October 22, 2010).*

Defendant’s consent to seize his computer for child pornography did not limit when the government could get around to search it. United States v. Murinko, 410 Fed. Appx. 2 (9th Cir. 2010) (unpublished)*:

We reject Murinko’s contention that the FBI’s delay in obtaining a search warrant and forensically searching his computer violated his Fourth Amendment possessory interest. Murinko’s reliance on United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009) and United States v. Dass, 849 F.2d 414 (9th Cir. 1988) is misplaced. Mitchell and Dass both involved warrantless seizures based on probable cause, not consent.

Defendant was not seized by officers when they were just asking questions. He was not seized until he gave his real name, and it was discovered that there was a warrant for his arrest. United States v. Anthony, 2010 U.S. Dist. LEXIS 112736 (N.D. Tex. October 21, 2010).*

Officers were in defendant’s house with a search warrant for child pornography traced to the residence by the IP address. The officers let defendant’s wife and child leave to take the child to school. He was free to move around the house during the questioning, and he was not in custody for Miranda purposes. United States v. Asher, 2010 U.S. Dist. LEXIS 112823 (N.D. Ga. October 21, 2010).*

Defense counsel was not ineffective for not moving to suppress evidence found in his grandmother’s backyard. While it was curtilage, the drugs were immediately apparent to the officer and seen from off the property. The critical issue, however, is that even if he had guest standing in the house, it does not apply to the backyard. Thomas v. United States, 2010 U.S. Dist. LEXIS 112641 (N.D. Ill. October 22, 2010):

Citing affidavits submitted by a cousin and by his grandmother, Thomas suggests that he was in fact an overnight guest at his grandmother's house, entitled to claim Fourth Amendment protections as recognized in Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 1688 (1990). If Thomas was in fact an overnight guest, however, he would nevertheless have no reasonable expectation of privacy in the curtilage of the house. See United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (tenant could not assert an expectation of privacy in common areas of an apartment because other tenants used that space and could admit as many guests as they pleased); United States v. Villegas, 495 F.3d 761, 768 (7th Cir. 2007) (no legitimate expectation of privacy in the common hallway of a duplex in which defendant resided). While the need for a guest's privacy is reasonable, the expectation of privacy does not extend to those areas of the house-the backyard, for example-in which the guest's privacy would not likely be respected. See Olson, 495 U.S. at 99, 110 S. Ct. at 1689.

The CI did not personally appear before the issuing judge, but that is only a single factor in finding probable cause. The CI was otherwise corroborated. Also, the good faith exception applied. United States v. Hester, 2010 U.S. Dist. LEXIS 112670 (N.D. Ill. October 22, 2010).*

Once the court suppresses evidence, it cannot be included in the determination of whether the defendant should continue to be detained on the weight of the evidence against the accused. United States v. Barner, 743 F. Supp. 2d 225 (W.D. N.Y. 2010):

Some courts have held that evidence which is being suppressed for purposes of trial may nevertheless be considered in evaluating the “weight of the evidence” factor under § 3142(g). See Pina-Aboite, 97 Fed. Appx. 832, 2004 WL 1053235, *2 (“In a detention hearing, the district court is permitted to consider the evidence sought to be suppressed as if it were admissible”); United States v. Jay, 261 F.Supp.2d 1235, 1240 (D.Or. 2003) (“A court should have as much information as possible to evaluate properly whether a defendant poses any risk of danger to the community if released. Thus, even though this Court suppressed evidence for purposes of trial, that evidence may speak loudly concerning community safety because it involves convicted felons in unlawful possession of multiple weapons and cocaine”).

Notwithstanding these authorities from other circuits, for the following reasons I conclude that the suppressed evidence should be given little or no weight in applying this factor. In deciding to consider the suppressed evidence for purposes of pretrial detention, the court in Jay applied a “cost-benefit” analysis, citing United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984): “The court concludes … [that] consideration of the suppressed evidence is warranted under cost-benefit analysis, particularly when applying the statutory release factors that bear on community safety”. Jay, 261 F. Supp.2d at 1240.

A Secret Service agent who stopped a suspected counterfeiter and patted him down was able to conclude that the wad of cash in the pocket was immediately apparent as counterfeit money. United States v. Smith, 2010 U.S. Dist. LEXIS 112499 (W.D. Tenn. August 16, 2010):

While Agent Davis did not testify specifically about his personal observations when he felt the wad of cash in Smith's pocket, it is reasonable to believe that a Secret Service agent investigating a person for passing counterfeit would immediately recognize the feel of a wad of cash in the person's pocket and believe that it was incriminating evidence. In United States v. Bustos-Torres, 396 F.3d 935 (8th Cir. 2005), an officer observed what he believed to be a drug transaction, and as he conducted a Terry frisk of defendant Alfaro for weapons, the officer came across two wads of bills in Alfaro's pockets, which the officer seized. On appeal, the Court of Appeals considered whether the officer had probable cause to seize the money, that is, whether the bills, by their mass and contour, were immediately identifiable to the officer's touch as incriminating evidence. The court, "[p]ondering the question with a dose of common sense," held that the officer had probable cause to seize the money based on his prior observation of a possible drug transaction and the large number of bills in Alfaro's pockets. Id. at 945.

Where there were three consensual home visits by CPS before plaintiffs refused a fourth entry, there was no Fourth Amendment violation. Breakwell v. Allegheny County Departement of Human Servs., 406 Fed. Appx. 593 (3d Cir. 2010).*

En Banc 3rd Circuit Set to Hear DNA Samples Case by Shannon P. Duffy in The Legal Intelligencer, today.

When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal that is now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals.

At issue in United States v. Mitchell is perhaps one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant or wait for a conviction before taking a genetic sample.

The Justice Department's appeal in Mitchell was initially argued before a three-judge panel in April. But the court last week took the rare step of slating the case for en banc reargument without releasing a decision from the three judges.

Consent given by a driver with passengers in the car lawfully resulted in detention of the passengers while the search occurred. The officer’s comment that he was arresting everybody unless somebody claimed it resulted in defendant’s admission that he would “take the rap” and was a Miranda violation. England v. State, 46 So. 3d 127 (Fla. App. 2d DCA 2010).*

Farmer was accused of sale of counterfeit goods, and a seizure of the goods led to a seizure of drugs. He pled to the latter, and the counterfeit goods charge was dismissed. He was entitled to return of the goods because the seizure was not supported by a post-deprivation hearing. Farmer v. Florence County Sheriff’s Office, 390 S.C. 358, 701 S.E.2d 48 (2010)*:

The Sheriff's Office has not provided any concrete reasons to justify its refusal to return Farmer's merchandise or any meaningful argument that its delay in instituting forfeiture proceedings was justified; indeed, it has even asserted that law enforcement need not provide any reason whatsoever to hold lawfully seized goods beyond the fact that a warrant had been issued for the seizure. In making these arguments, however, the Sheriff's Office appears to disregard the recognized purpose of a forfeiture hearing, which is “to confirm the state had probable cause to seize the property in question.”

Officers had probable cause to believe that defendant lived in a particular hotel room. The CI gave the hotel, and the police established that defendant was there, and that was corroboration. United States v. Oneal, 2010 U.S. Dist. LEXIS 111744 (N.D. Cal. October 13, 2010).*

The fact a warning ticket was issued rather than a traffic ticket did not show that the stop was without probable cause. There was, however, probable cause for the stop for speeding. Defendant validly consented to the search of his car when the paperwork was returned. United States v. Peguero, 2010 U.S. Dist. LEXIS 111670 (N.D. Fla. October 7, 2010).*

Officers on the premises with a search warrant who see things that they determine before they leave are criminal evidence are legally able to seize that evidence. Any further investigation into the nature of those items did not entail an additional and unjustified search of, or unduly prolonged police presence on, the premises, for the seizure of those items, and it was permissible under the Fourth Amendment. White v. State, 729 S.W.2d 737 (Tex. Crim. App. 1987) is disapproved. State v. Dobbs, 323 S.W.3d 184 (Tex. Crim. App. 2010), revg State v. Dobbs, 2009 Tex. App. LEXIS 1857 (Tex. App.--Dallas March 18, 2009) (unpublished):

The further investigation that the officers undertook in this cause did not involve any search of the premises that was not already authorized by the search warrant. So the appellee’s privacy interest was not compromised. Nor were the golf clubs and shirts actually seized until after the officers, still legitimately on the premises, developed probable cause to believe they were stolen, by conducting further investigation that did not involve an unjustifiedly incremental search of the actual premises. So the appellee’s possessory interest was compromised--but legitimately so, even without an additional warrant. It does not serve the interests of the Fourth Amendment to construe the “immediately apparent” aspect of the plain-view doctrine to prohibit this kind of further investigation because it does not impact either the privacy or the possessory rights of the defendant beyond the encroachment already legitimized by the warrant.

To appreciate the sensibleness of this understanding of the plain-view doctrine, suppose the facts were slightly altered. Suppose that at the instant the officers executing the search warrant had originally come across the golf clubs and shirts, they had thought nothing of it and conducted no further investigation of those items. Then suppose an officer in the burglary division had called one of the searching officers to inform him to be on the lookout for stolen golf clubs and shirts on the premises, describing them with particularity, because of probable cause the burglary division had just developed, independently of the officers executing the warrant, to believe these items were stolen. What was not “immediately” apparent to the searching officers would now be readily apparent, while the officers are still on the premises and legitimately conducting their search. They would now have probable cause to seize the stolen items. Under these circumstances, it makes no more sense to require an additional warrant to justify seizing the items than it would to require a warrant to seize apparent contraband that is found in a public place. Moreover, it should make no difference that the searching officers generated their own probable cause while still on the premises, so long as their investigation did not entail any greater intrusion on the premises (from which the defendant's privacy interest, after all, derives) than the intrusion already legitimately underway.

While a residential fire probably caused by a fuel burning appliance was being extinguished, the fire department called a building inspector to determine whether there was another such appliance in the building. Another locked apartment was found there, and they entered to look at it. [And, this court unconstitutionally put the burden of proof on the defendant as N.Y. courts chronically do: “Defendant, however, based on the testimony adduced at the hearing, failed to establish by a preponderance of evidence that the seizure was unlawful. Though the fire had been extinguished, the existence of an emergency had not been negated.” When are NY lawyers going to challenge this?] People v. Denis, 29 Misc. 3d 1150, 909 N.Y.S.2d 325 (Nassau Co. 2010).

Defendant’s motion to suppress the product of a protective sweep was reversed because the officers validly saw items in plain view and then put the observations in a search warrant application and came back for them. Commonwealth v. Matos, 78 Mass. App. Ct. 156, 935 N.E.2d 1285 (2010).*

From Truckinginfo.com, Owner-Operator Group Challenges EOBR Rule, partly on Fourth Amendment grounds of government surveillance of realtime movements of big trucks:

The Owner-Operator Independent Drivers Association filed a petition seeking review of the final rule mandating electronic on-board recorders for motor carriers with chronic noncompliance with hours-of-service regulations.

The Federal Motor Carrier Safety Administration earlier this year issued a final rule, which will go into effect June 1, 2012, requiring carriers that violate hours of service rules 10 percent of the time, based on single compliance review, to use electronic onboard recorders to track driver hours.

The association's core argument against mandating "black boxes" is that there is no proof the devices can accurately and automatically record a driver's hours of service and duty status. An EOBR can only track the movement and location of a truck; it requires human interaction to record any change of duty status.

. . .

Another argument against the use of the electronic on-board tracking devices centers on the Fourth Amendment.

"The real-time, government mandated, 24-hour electronic surveillance of a driver's location and movements contemplated by the (notice of proposed rulemaking) is an unjustified and dangerous intrusion on drivers' right of privacy," the brief states.

The constitutional argument states that the constant monitoring constitutes a search of the driver within the meaning of the Fourth Amendment.

"Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret"–-Parts 1, 2, 3, all linked here.

Given the current surveillance state situation in America, the Keith case, formally known as United States v. U.S. District Court, is one of the most important cases from our recent past. But I don't really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn't have simple facts, but they are fascinating and instructive. So bear with me--this is going to take awhile, and will be laid out over a series of four posts.

This case is referred to by lawyers as the "Keith" case because Keith was the real party in interest.

“Indicia warrant” for “venue evidence” to show defendant’s connection to premises was broad but not overbroad. Under Eighth Circuit precedent, the search did not violate the Fourth Amendment. United States v. Darr, 2010 U.S. Dist. LEXIS 111623 (E.D. Mo. October 20, 2010):

“A warrant authorizing officers to seize anything related to indicia of occupancy is quite broad.” [United States v. Romo-Corrales, 592 F.3d 915, 920 (8th Cir. 2010)] (quoting United States v. Timley, 443 F.3d 615, 623 (8th Cir. 2006)). Thus, in Romo-Corrales, the court held that a warrant authorizing a search for “venue evidence” (i.e., mail, bills, receipts or other indicia of a suspect's connection to a residence) permitted officers to search “the laundry hamper, garage, cooler, behind a mirror or picture, behind a dresser, and underneath the bed,” because these were areas where such evidence could be located. Id. Likewise, in this case, the search warrant authorized the police to search closed containers in the defendant's room, as these were areas in which the items listed in the warrant could have been concealed.

While searching the defendant's bedroom, the police found digital images of child pornography and small boy’s underwear inside a VCR container. The seizure of these items did not violate the Fourth Amendment, as they were found during the course of a lawful search and their incriminating character was immediately apparent. See United States v. Alexander, 574 F.3d 484, 490-91 (8th Cir. 2009) (under plain view exception to warrant requirement, police lawfully seized evidence of child pornography found during execution of search warrant for evidence of crime of invasion of privacy).

So, in the Eighth Circuit, my home circuit, this means that “indicia warrant” for “venue evidence” can be used as a legal pretext to search virtually anywhere for evidence: a laundry hamper, VCR container? Result oriented jurisprudence at its worst.

DUI arrest under Gant and Thornton permits a search incident for alcohol and containers. Officer excluded defendant from his home for ten minutes, and he decided to “get this over with” and gave consent; did not make the search of the home unreasonable. United States v. Grote, 2010 U.S. App. LEXIS 21622 (9th Cir. October 20, 2010) (unpublished).*

A 2255 claim that defense counsel did not call one additional witness at the suppression hearing without showing how that would change the outcome was insufficient. Himmelreich v. United States, 2010 U.S. Dist. LEXIS 111552 (M.D. Pa. October 20, 2010).*

Defendants’ parole search was valid, and their legal objections to the search were all nullified by the parole search. United States v. Starnes, 2010 U.S. Dist. LEXIS 111720 (N.D. Ohio October 20, 2010).*

A request for consent to search at the same time the officer handed back defendant’s DL and registration papers did not mean that the stop was continued for the request for consent. State v. Eatmon, 2010 Ohio 5092, 2010 Ohio App. LEXIS 4287 (5th Dist. October 18, 2010)*:

[*P38] While the officer goes on to testify that standard operating procedure is to issue the warning and tell the person that he or she is free to leave before requesting consent to search, in the instant case appellant was not free to leave after she issued the warning because she had not yet returned his license and registration. While she could not remember whether she returned these items before or after the search of the vehicle, the request to search was contemporaneous with the return of appellant's license and registration, and the officer therefore had not completed the traffic stop at the time consent was received for the search. Appellant was not unlawfully detained at the time he gave consent to search.

Defendant’s nervous behavior and furtive movements in the car of him and the occupants was reasonable suspicion. State v. Agee, 2010 Ohio 5074, 2010 Ohio App. LEXIS 4267 (8th Dist. October 14, 2010).*

The entry into a third party’s home for an arrest violated Payton and Steagald. The defendant was hiding out and moving around, but the officers had no real evidence that he was staying where he was found. State v. Mansaray, 2010 Ohio 5119, 2010 Ohio App. LEXIS 4307 (8th Dist. October 21, 2010):

[*P18] Thus, pursuant to the above case law, when the police execute an arrest warrant, they can only enter a residence of a third party without a search warrant if they have a reasonable belief that the person named in the warrant lives at the residence and is in fact home. In the instant case, the evidence does not show that the [U.S.] marshals had a reasonable belief that Williams lived with Mansaray. ...

[*P20] He also stated that: “[W]illiams knew we were looking for him and he was moving every couple of hours ***.” Tr. 159. This information did not provide evidence to support a reasonable belief that Williams lived at Mansaray’s house. The confidential informants did not state that Williams lived with Mansaray, just that he “would be with Mansaray.” While the tracking of Mansaray’s cell phone indicated that it was being used in the vicinity of Mansaray’s home, this would be expected because although Williams was using the phone, it was still Mansaray’s phone. There was no indication that Williams was exclusively using the phone. While the officers may have had a reasonable belief Williams was in the home, the evidence does not establish that they had a reasonable belief that Williams lived at the home. Therefore, to enter Mansaray’s residence, in addition to the arrest warrant, they needed to present a search warrant.

Defendant had “standing” to challenge a search of his person, and it is irrelevant to standing that he denies ownership of a gun found on his person. United States v. Morgan, 2010 U.S. Dist. LEXIS 111120 (E.D. N.Y. June 22, 2010):

Moreover, a defendant is not required to have an expectation of privacy in the evidence seized in a search. Here, Morgan challenges the stop of his person and may seek to suppress the evidentiary fruits of that seizure under the “fruit of the poisonous tree” doctrine regardless of whether he would otherwise have standing to challenge the seizure of the gun itself. ... The defendant need only assert that his Fourth Amendment rights were violated with regard to the poisonous tree, here the stop, and not separately regarding the evidence which constitutes the fruit of that poisonous tree, the gun.

Defendant’s wife consented to search for a computer in the house. She asked if she could look for it, and they said no, they would have to, and what would happen if she refused, and they said they would get a warrant. She consented to the entry, and she also had apparent authority to consent. While she did not have a key to the room entered, she, like her husband, entered the room with a knife or screwdriver, and she had equal access to that room. United States v. McManaman, 2010 U.S. Dist. LEXIS 110855 (N.D. Iowa October 18, 2010).*

Refusal to consent here was considered by the officer a factor in reasonable suspicion, and this makes it unreasonable because the other factors failed, too. United States v. Jackson, 2010 U.S. Dist. LEXIS 110898 (W.D. Tex. October 13, 2010):

Refusal to consent to a search does not provide reasonable suspicion to justify a stop or continued detention. United States v. Machuca-Barrera, 261 F.3d 425, 435 n.32 (5th Cir. 2001) (citing United States v. Hunnicutt, 135 F.3d 1345, 1350-51 (10th Cir. 1998) (“[I]t would make a mockery of the reasonable suspicion and probable cause requirements ... if citizens’ insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.”)); see also Karnes v. Skrutski, 62 F.3d 485, 495 (3d Cir. 1995) (holding that refusal to consent to search “cannot support a finding of reasonable suspicion”); United States v. Gordon, 917 F. Supp. 485 (W.D. Tex. 1996) (holding officers lacked reasonable suspicion to continue to detain the defendant’s vehicle following the defendant’s refusal to consent to search his vehicle and that the defendant’s refusal to consent to a search of his vehicle could not be turned, by the officers, into a basis for the necessary level of reasonable articulable suspicion).

Furthermore, at one point Trooper Allick told Defendant that he respected Defendant’s Fourth Amendment rights. Video at 16:50. However, one cannot respect another’s Fourth Amendment rights and simultaneously punish that same person for exercising them. Had the other reasons Trooper Allick claimed after the fact been the true basis for any suspicion he may have had, he would have cited those reasons when explaining the situation during the stop on April 14, 2010. Instead, he referred only to Defendant’s exercise of his Fourth Amendment right to refuse consent, and he did so on six different occasions. Accordingly, this Court finds those later-mentioned reasons suspect.

. . .

In light of the totality of the circumstances and the evidence before it, the Court holds that Trooper Allick lacked an articulable factual basis to suspect wrongdoing. His continued detention of Defendant therefore violated Defendant’s Fourth Amendment rights.

Note: The court here discounted nervousness based on the video of the stop.

Defendant juvenile didn’t come home the night before, and he was reported as a runaway. The school resource police officer found him and another asleep in a car on the high school parking lot. A knife was seen in the back seat, and the school had a no tolerance police for weapons on school grounds. The owner of the car also consented to a search of the car. Defendant’s claim of a need for exigent circumstances under T.L.O. is different than in general. State v. Brown, 158 Wn. App. 49, 240 P.3d 1175 (2010):

An emergency under the school search exception is not the same as the exigent circumstances exception to the general requirement for a warrant. See Slattery, 56 Wn. App. at 823 (listing exceptions separately). An exigency under the school search exception is any threat to the order and discipline of a school. McKinnon, 88 Wn.2d at 81. An exigent circumstance under the exigent circumstances exception, however, is a true emergency. State v. Hinshaw, 149 Wn. App. 747, 754, 205 P.3d 178 (2009). It requires swift action to prevent danger to life, a suspect's imminent escape, or destruction of evidence. Id.

Repeated drug sales as probable cause to search a house also shows a lack of staleness. Wagner v. State, CR10-372 (Ark. October 21, 2010).*

Swabbing a cheek to procure a DNA sample constitutes a search under the Fourth Amendment and Wash. Const. art. I, § 7, and a search warrant is required. Assertions of an ASA during a hearing are not evidence, and the order for the DNA sample was not issued with probable cause. State v. Garcia-Salgado, 170 Wn. 2d 176, 240 P.3d 153 (2010).*

Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World by Jeffrey Bellin of SMU Dedman School of Law on SSRN. The Abstract:

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, while highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.

Nearly everyone agrees that, as an intuitive matter, the “reasonableness” of a search or seizure depends to some degree on the seriousness of the crime being investigated. Yet, current Fourth Amendment doctrine ignores this intuition. As a result, an invasive search of a suspected shoplifter is, legally speaking, no more or less reasonable than the same search of a suspected murderer.

Through the years, the primary objection raised by the Supreme Court and academics to altering this status quo is that a crime severity variable would be unworkable. While a handful of scholars continue to argue for an increased role for crime severity in Fourth Amendment jurisprudence, this powerful objection remains unanswered. In an effort to fill this void in the debate, and introduce crime severity as a critical component of a revitalized search and seizure jurisprudence, this Article proposes a concrete framework for incorporating crime severity into Fourth Amendment doctrine. The Article then explores specific applications of the framework to highlight the constructive role crime severity distinctions can play in defining the constitutional parameters of searches and seizures in the modern era.

Hat tip CrimProf Blog.

In the Detroit Free Press: Lawyers argue over secret taping of Jabalee brothers at gravesite:

Ryan Jabalee was heard crying or sobbing on a recording device set up by law enforcement at the gravesite of his murdered parents, Ronald and Christine Jabalee, in 2007.

His brother, Ronald Jabalee Jr. -- who is standing trial today in Macomb County Circuit Court in the October 2006 slayings -- did not sound distraught.

In opening statements, the prosecution painted Ronald as an uncaring son. The recording, if admitted, could support their claim.

Defense attorney Stephen Rabaut said the device was installed without a warrant and that the Fourth Amendment goes beyond telephone calls and includes invasion of privacy.

"It's eavesdropping," he said, adding that Michigan has a law about eavesdropping.

Assistant Prosecutor Steven Kaplan disagreed, saying "there's no privacy in public."

Could they eavesdrop in a public place with a parabolic microphone a la "The Conversation", or should a warrant be required? Is a graveside a "public place"? Is our society expectation that we will not be overhead alone at a graveside?

See Simple Justice Blog.

Pilot Refuses Full Body Scan, Says He's Fighting for Rights | Michael Roberts Could Lose Job for Refusing to Go Through Scan, Pat Down: 'It's an Outrage', by Lee Ferran and Jim Vojtech.

The Rutherford Institute has gotten involved.

The officer’s request to talk to the defendant was nonthreatening and noncoercive. The fact the defendant was respecting the officer’s wanting to ask questions and not feeling like he should just walk away was enough to make it consent. United States v. House, 2010 U.S. Dist. LEXIS 110740 (D. Utah October 18, 2010):

Although defense counsel argues that Officer Daley made a “show of force” by issuing commands at the defendant, the evidence presented at the hearing does not support this conclusion. In fact, the defendant’s own testimony demonstrates that Officer Daley’s request to speak with him was presented in a non-intrusive, non-aggressive manner. For example, when defense counsel asked the defendant, “Did you feel like you were free to leave at that point and walk away?” the defendant responded, “Well, sure, but I ain’t going to walk away from an officer trying to ask me questions.” (Tr. at 52.) Similarly, when defense counsel attempted to clarify the officer’s alleged “commands” by stating: “So [the officer] asked you to get off the phone? Or he’s making some indication you need to get off the phone?” The defendant responded, “No. He says, can I ask you a few questions. I told him, hold on, because I was talking to somebody at that point.” (Tr. at 52.) There is simply no evidence that Officer Daley used a commanding or threatening manner or tone of voice. Finally, the consensual nature of the encounter is not undermined by Officer Daley's failure to expressly tell the defendant he was free to leave. See INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984) (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”); ...

Update: This is addressed in my CLE presentation on societal understandings and vehicle stops, next at NORML Key West.

Our societal understanding is that we do not walk off from police officers; we at least show the courtesy of talking to them, and the police exploit that. My point is that the courts must respect that understanding. Otherwise, does this mean that citizens need to exercise their right to be discourteous to avoid the confrontation? As to our societal understandings underlying Katz's reasonable expectation of privacy, see, e.g., Minnesota v. Olson, 495 U.S. 91, 100 (1990):

Because respondent’s expectation of privacy in the Bergstrom home was rooted in “understandings that are recognized and permitted by society,” Rakas, supra, at 144, n. 12, it was legitimate, and respondent can claim the protection of the Fourth Amendment.

What is expected of the “reasonable person” v. reasonable police officer?

Illegal stop that led to a warrant being found on one in the car was subject to the exclusionary rule; otherwise, police would have free reign to stop anybody. The taking of a DNA sample, however, was with a warrant, so it is not suppressed because it is independent. United States v. Gross, 624 F.3d 309, 2010 FED App. 0332P (6th Cir. 2010):

To hold otherwise would result in a rule that creates a new form of police investigation, whereby an officer patrolling a high crime area may, without consequence, illegally stop a group of residents where he has a “police hunch” that the residents may: 1) have outstanding warrants; or 2) be engaged in some activity that does not rise to a level of reasonable suspicion. Despite a lack of reasonable suspicion, a well-established constitutional requirement, the officer may then seize those individuals, ask for their identifying information (which the individuals will feel coerced into giving as they will have been seized and will not feel free to leave or end the encounter), run their names through a warrant database, and then proceed to arrest and search those individuals for whom a warrant appears. Under this scenario, an officer need no longer have reasonable suspicion or probable cause, the very crux of our Fourth Amendment jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Williams, 615 F.3d at 670, n.6 (“[A]llowing information obtained from a suspect about an outstanding warrant to purge the taint of an unconstitutional search or seizure would have deleterious effects. It would encourage officers to seize individuals without reasonable suspicion-not merely engage them in consensual encounters-and ask them about outstanding warrants.”); see also Michael Kimberly, Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 YALE L.J.177 (2008) (commenting that a rule where the discovery of an outstanding warrant constitutes an intervening circumstance has the perverse effect of encouraging law enforcement officials to engage in illegal stops where they have an inarticulatable hunch regarding a person on the street or in a car).

[This case has an excellent discussion of the exclusionary rule in application here.]

Given that there was reasonable suspicion that the occupants of the car might be armed and dangerous, the fact the glove compartment had just been locked did not mean that it could not be subjected to a Long-type frisk for a weapon. The keys were available to anyone in the car, and it could still be opened. Commonwealth v. Graham, 78 Mass. App. Ct. 127, 935 N.E.2d 370 (2010).

Given that defendant’s vehicle was lawfully seized with probable cause after it and he matched a 911 call about a violent crime, the vehicle was lawfully searched under the automobile exception 2 ½ hours after the stop at the impound lot. Cars on the lot were not sufficiently protected from access by outsiders to remove exigency, and officers validly waited for a specially trained officer to arrive to search for hidden compartments. Commonwealth v. Bell, 78 Mass. App. Ct. 135, 935 N.E.2d 380 (2010).

In an ICE raid on a home occupied by persons who entered illegally, the fact they paid rent to the co-occupant did not dissipate the co-occupant’s ability to consent to entry against them. Escobar v. Holder, 398 Fed. Appx. 50 (5th Cir. 2010) (unpublished).*

While there was no reasonable suspicion for the continued detention of the defendants, the court finds the driver’s consent was valid and the product of independent free will sufficient to overcome it. United States v. Eskichyan, 2010 U.S. Dist. LEXIS 109836 (M.D. La. October 12, 2010)*:

The Court does not doubt Officer Averette's credibility, nor his training and experience. The Court also does not doubt that defendants' criminal histories may have been in Officer Averette's mind and that he was frightened when he called for backup. But no amount of training or experience can turn the simple, objective facts that defendants had criminal histories and exhibited ordinary nervousness into articulable suspicion that defendants were about to commit a crime. If such common circumstances qualified as reasonable suspicion, then many — if not most — interstate travelers would be subject to prolonged detention. Weighing the totality of the circumstances, the Court finds that the officer lacked the requisite reasonable suspicion to detain defendants after the computer check was complete, and therefore, the detention was unconstitutional.

[Oh, come on. The continuation of the stop was clearly invalid, but the consent was valid anyway without a notice to the driver of his right to refuse?]

The officer pulled in behind defendants’ car in the driveway, but they did not see it until they were out of the car. This was not a stop because they were on foot when they talked to the officers. The blocking of the car was not a stop because they were not stopped. The passenger lacked standing to challenge a search of the car. Thus, the passenger cannot invoke Brendlin. United States v. Allison, 398 Fed. Appx. 862 (4th Cir. 2010) (unpublished).*

Defendant’s coming and going from his place immediately before and after drug sales was nexus to search it. United States v. McCloud, 2010 U.S. Dist. LEXIS 110633 (M.D. Fla. September 26, 2010).*

Defense counsel was not ineffective for not challenging the valid third party consent here. Quibbling of a slight time difference in the reports did not show that it was a winning issue. Even if it was a plausible issue, it was harmless beyond a reasonable doubt. [This case has an interesting first issue in overcoming procedural default because of unclear state rules.] Johnson v. Thurmer, 624 F.3d 786 (7th Cir. 2010).*

Marijuana found in plain view in a car is probable cause to arrest everybody in the car under Pringle. United States v. Pertillo, 2010 U.S. Dist. LEXIS 110232 (S.D. W.Va. October 13, 2010).*

Because defendant's house was so far from the road that reasonable suspicion was required, but officers had reasonable suspicion to conduct a knock and talk and enter his property which was a long way from the roadway. United States v. Ardoin, 2010 U.S. Dist. LEXIS 109806 (M.D. La. October 14, 2010):

Though the roadway is not a curtilage, and is therefore not subject to the heightened standards applicable to homes, the officers still must have had a reasonable suspicion upon which to approach Ardoin's home to conduct a “knock and talk” investigation. If the officer has a reasonable suspicion of criminal activity, the officer may approach an individual's home, knock on the door, and talk to the home’s occupants, and the Fourth Amendment is not implicated because no search or seizure occurs. United States v. Walters, 529 F. Supp. 2d 628, 636 (E.D. Tex. 2007). Reasonable suspicion sufficient to validate a “knock and talk” investigation may be based upon complaints or tips that an individual's home is being used for drug activity. Jones, 239 F.3d at 718, 720.

(Note: Cases seldom hold that reasonable suspicion is required for a knock and talk. Here, an entry onto the curtilage was also an issue, so it was disposed of with reasonable suspicion.)

On the totality of circumstances, defendant’s PO had reasonable suspicion of a parole violation and that evidence would be found at his house, so that justified the parole search. United States v. Chatman, 2010 U.S. Dist. LEXIS 109881 (E.D. Pa. October 15, 2010).*

The defendant was the target of a search warrant for counterfeit evidence, and the government showed a “fair probability” that evidence would be found and a nexus to defendant’s place. For example, finding a flash drive on his person at the time of arrest meant that there was a likelihood there was a computer involved. Reference to defendant’s criminal history in the affidavit for similar crimes was not impermissible. United States v. Nance, 2010 U.S. Dist. LEXIS 110081 (W.D. Pa. October 18, 2010).*

Defendant did not show standing or a reasonable expectation of privacy in the place searched where he was a social guest; while he was a social guest, he had left the place and could not get back in when he was stopped on the porch. He had no key. He showed no standing in the home or the porch. United States v. Banister, 2010 U.S. Dist. LEXIS 110144 (D. Neb. October 15, 2010).*

Defendant’s 2255 for, inter alia, defense counsel’s failure to file a motion to suppress against a clearly lawful search incident was not IAC. Pariag v. United States, 2010 U.S. Dist. LEXIS 110104 (D. Md. October 14, 2010).*

SCOTUS cert grant in Ashcroft v. al-Kidd, 10-98 (Kagan, J., recused). ScotusBlog here and here.

Questions presented:

Respondent was arrested on a material witness warrant issued by a federal magistrate judge under 18 U.S.C. 3144 in connection with a pending prosecution. He later filed a Bivens action against petitioner, the former Attorney General of the United States, seeking damages for his arrest. Respondent alleged that his arrest resulted from a policy implemented by the former Attorney General of using the material witness statute as a "pretext" to investigate and preventively detain terrorism suspects. In addition, respondent alleged that the affidavit submitted in support of the warrant for his arrest contained false statements.

The questions presented are:

1. Whether the court of appeals erred in denying petitioner absolute immunity from the pretext claim.

2. Whether the court of appeals erred in denying petitioner qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of respondent's arrest.

The underage defendant was on his porch drinking a beer, and a plainclothes detective saw him and pulled out his badge from under his shirt on a badge chain so it could be seen and came onto the porch. This was not a Fourth Amendment violation because it was in a public place that could be seen from the street. State v. Swonger, 2010 Ohio 4995, 2010 Ohio App. LEXIS 4208 (10th Dist. October 14, 2010).*

Defendant was involved in a traffic stop, and his DL was suspended. The officers searched his person and relieved him of $2,500. While the stop was valid, defendant was entitled to return of the money, and the City showed no reason to keep it. City of Cleveland v. Wells, 2010 Ohio 5014, 2010 Ohio App. LEXIS 4218 (8th Dist. October 14, 2010)*:

The State may not deprive an individual of his property without due process of law. State v. Lilliock (1982), 70 Ohio St.2d 23, 28, 434 N.E.2d 723; Cleveland v. Fulton, 178 Ohio App.3d 451, 2008 Ohio 4702, 898 N.E.2d 983, P47. Insofar as the Sheriff took the money pursuant to this arrest, but provided the trial court with no evidence that the money was legally being held elsewhere, we hold that the municipal court erred in denying Wells's motion for return of the money seized from him when he was arrested.

The police received a tip that a man with a gun used in a homicide would be at a certain location. They stopped the car when they saw it for an alleged traffic offense, and admitted that they couldn’t give a ticket. Based on an alleged furtive movement, they decided to impound the car and defendant left on foot. A later search warrant for the car was issued, and the gun was found. The motion to suppress was denied, and the jury hung at trial. Defendant later entered a conditional plea and appealed. The Kentucky Court of Appeals reversed the denial of the motion to suppress because the basis for the search warrant was the anonymous tip that defendant would show up essentially at his girlfriend’s house; this was insufficient to show probable cause as a matter of law. The motion to suppress should have been granted. Reversed. Abdul-Jalil v. Commonwealth, 324 S.W.3d 433 (Ky. App. 2010):

This fact is essentially a non-issue considering the registered owner of the car lived at the address given and the driver of the car was the car owner’s paramour. It is safe to assume that the car and driver in this case would eventually end up at the address given under normal circumstances. This tip, viewed in light of what the officer knew at the time of the impoundment, lacked enough information to give the officer a “reasonable basis for suspecting ... unlawful conduct” sufficient to warrant the immediate impoundment of Abdul-Jalil’s car. J.L., 529 U.S. at 271, 120 S. Ct. at 1379.

The fact defendant was handcuffed did not make consent invalid. “Finally, we reject Silverio’s argument that he merely acquiesced to a claim of lawful authority in allowing the search, as his assertion is not supported by the evidence. Rather, he and his sister testified that the officers never asked for his consent to search the premises. Having denied that officers requested his consent, Silverio cannot now claim that he permitted a search.” Silverio v. State, 2010 Ga. App. LEXIS 964 (October 13, 2010).*

Defendant had no objectively reasonable expectation of privacy in a shopping bag of drugs that he handed over to a co-conspirator who put it in the co-conspirator’s car when that other car was searched. He may have had a subjective expectation of privacy, but it was not one that society would recognize as reasonable. By turning it over, he assumed the risk that it would be taken from the co-conspirator. Tri Pham v. State, 324 S.W.3d 869 (Tex. App. – Houston 2010).*

The officer here responded to a 911 domestic disturbance call involving a name the officer recognized as a troublemaker (for want of a better way to put it), and the officer arrived and saw him on an apartment building parking lot. The officer approached him and touched his arm, and he pulled away and a struggle ensued. Defendant was handcuffed. There was reasonable suspicion for the initial contact, and the defendant’s resistance ripened it into a valid arrest. United States v. Nelson, 2010 U.S. Dist. LEXIS 109244 (D. V.I. October 13, 2010).*

NYPD officers in the housing unit on routine patrol saw defendant sitting on a bench outside an apartment building, and they approached him and could smell he was smoking crack. Defendant broke and ran for the building. He was not seized until he was caught. United States v. Kinred, 2010 U.S. Dist. LEXIS 109516 (E.D. N.Y. May 18, 2010).*

By the time the officer asked defendant for and got consent for a dog sniff to search the car defendant was driving, he had reasonable suspicion. A dog was brought in for an alert first, and then the car was searched. The court did not address the problematic issue of defendant’s consent. He did not even know who owned the car he was driving, and the paperwork was no help. United States v. Hearns, 2010 U.S. Dist. LEXIS 109242 (D. S.C. October 13, 2010).*

On fd.org: Developments in Federal Search and Seizure Law by Stephen R. Sady, Chief Deputy Federal Public Defender, District of Oregon.

Defendant was a college professor found to have 13,000 images of child pornography on his college owned computer. There was a college wide upgrade of computers and all the files on his old hard drive were copied to the new one. Two years later, he complained to the IT department that the computer was not working right, and they came to check it out. They found the child porn, some dating back to five years before the upgrade, and reported it. Defense counsel never moved to suppress it, and this was not ineffective assistance because the defendant could not show a reasonable expectation of privacy in the college’s computer, even though it was used only by him. He called IT to look at it. (The record was silent on anything about the computer policy, but that doesn’t seem to matter.) People v. Kent, 2010 NY Slip Op 7364, 2010 N.Y. App. Div. LEXIS 7405 (2d Dept. October 12, 2010):

Here, the record establishes that the computer was the property of the College, but contains no further evidence regarding the terms of the College's computer policy or user agreement with the defendant, if any. The defendant cannot show on this record that he had a reasonable expectation of privacy in his personal files stored on the office computer. Absent additional facts, we cannot conclude that counsel's actions lacked any legitimate explanation. ... To the extent that the defendant's ineffective assistance of counsel claim is premised upon matter dehors the record, we are unable to review such a claim on direct appeal. ...

This defendant was the passenger in a car stopped for a traffic violation, and the driver almost immediately consented before the DL information came back from dispatch. The driver had authority to consent to the search against the passenger. In the back hatch area was a brick of marijuana that the officer could smell before it was found. Hall v. State, 306 Ga. App. 484, 702 S.E.2d 483 (2010).*

Defendant was charged with smoking in the boy’s room, and a school police officer searched his shoes finding a small quantity of drugs and marijuana. Searching the shoes was not shown to be reasonable under T.L.O. for the infraction under investigation, and the state failed in its burden of proof of showing the search of shoes reasonable for tobacco. State v. Taylor, 50 So. 3d 922 (La. App. 4th Cir. 2010).*

Defendant was not seized by officers who walked up in a nonthreatening manner where one said “‘Hey, what’s up’ or ‘Hey, what’s going on.’” He dropped (abandoned) a bag of drugs. State v. Stokes, 50 So. 3d 884 (La. App. 5th Cir. October 12, 2010).*

A CI gave information that a specifically described man was working a street corner selling drugs. The officer went to the area to watch the corner, and corroborated the CI by watching three apparent drug deals. There was thus reasonable suspicion for the stop. State v. Johnson, 52 So. 3d 110 (La. App. 5th Cir. 2010).*

Defendant was the subject of a Miranda violation and his statement is suppressed, but his consent is independent of that and it was voluntary. “[E]ven if the Defendant were illegally detained, the subsequent consent served to purge the taint of the illegal action.” United States v. Rakotojoelinandrasana, 2010 U.S. Dist. LEXIS 109139 (D. Minn. August 2, 2010) (also, in fn. 2, judicial notice taken of Google Maps), adopted 2010 U.S. Dist. LEXIS 109241 (D. Minn. October 13, 2010).

The package in a controlled delivery made it to defendant’s car, and a warrant was unnecessary to search the car for it. United States v. Trevino, 2010 U.S. Dist. LEXIS 109093 (M.D. Fla. September 23, 2010).*

Defendant was not free to leave. (“See [Exhibit 1 at 3:59:03 a.m. through 3:59:05 a.m. (In response to the Defendant's asking if he could leave, Walker replied, ‘No. You move off that car and you are going to have a bad day.’)]. The question for the Court’s resolution is whether the seizure of the Defendant was unreasonable.”) Based on the facts, the officer had reasonable suspicion that the vehicle was involved in a robbery. And, “handcuffing a suspect does not ‘exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution.’” United States v. Nance, 2010 U.S. Dist. LEXIS 108781 (E.D. Tenn. September 17, 2010).*

Defendant’s wife consented to a search of a gun safe that she did not have the key to (the key was on defendant’s person), but which she otherwise had apparent authority to enter. After her consent, the police retrieved the key from defendant’s pocket while he was locked in the back of the police car. The police also had no duty to ask him for consent under Randolph. United States v. Amratiel, 622 F.3d 914 (8th Cir. 2010):

Hibdon contends that the officers’ reliance on Ms. Hibdon’s apparent authority over the gun safe was unreasonable. Here, the available facts would “warrant a person of reasonable caution in the belief that the consenting party had authority over the [gun safe].” James, 353 F.3d at 615. At the time of consent, the officers knew: (1) the safe was in a common area, the garage; (2) Ms. Hibdon knew where the keys were (on Hibdon’s person) and how to unlock the safe (she unlocked it herself); (3) she never indicated that she had no access to the safe or that it was for Hibdon’s exclusive use; (4) as the officers removed the weapons, Ms. Hibdon identified one of the handguns as hers. Contrary to Hibdon’s contention, possession of a key is not the sole factor whether a third party has authority over a locked space. This court does “not accept [defendant’s] argument that a key is necessary to establish authority over the premises.” Iron Wing v. United States, 34 F.3d 662, 665 (8th Cir. 1994). Compare United States v. Backus, 349 F.3d 1298, 1304-05 (11th Cir. 2003) (estranged wife, a domestic abuse victim, who co-owned a home with her husband could consent to a search after her husband changed the locks), and United States v. Brannan, 898 F.2d 107, 108 (9th Cir. 1990) (wife who had moved out of a house she co-owned with her husband could consent to a search after her husband changed the locks), with United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (police acted unreasonably in forcing open a locked footlocker where the mother gave consent to search her son’s room, but specifically disclaimed any right of access to the footlocker), and United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st Cir. 1994) (police acted unreasonably in opening a locked briefcase when the party who consented to the search said specifically that he did not have access to it). While it may be possible for a spouse to maintain exclusive control over some private areas of the home, this is not such a case. See Almeida-Perez, 549 F.3d at 1172 (explaining that to rebut the presumption of a spouse’s authority to consent to a search, “the nonconsenting spouse must show that police had reason to know the area or container was off-limits to the consenting spouse.”).

Hibdon’s failure to object when the police took the keys from him is further evidence that the officers acted reasonably. Although Hibdon testified that he objected to the search, this court defers to the district court’s determination that because Hibdon’s testimony was inconsistent, bizarre and self-serving, he was not credible. See United States v. Tucker, 243 F.3d 499, 506 (8th Cir. 2001).

Note: The style of the case is United States v. Rachel Amratiel, f/k/a Thomas Hibdon, Defendant-Appellant.

The first fire scene search of defendant’s house by Army CID was a continuation of the fire department’s entry under Tyler. The second, days later, was with a dog to sniff for accelerants and was by consent of defendant’s wife (after the fact without her knowing of a probably illegal entry). It was not a continuation of the first entry under Clifford, but defendant’s wife did not know of that entry when she consented. An examination of the exterior of defendant’s car outside was reasonable. United States v. Smallwood, 2010 U.S. Dist. LEXIS 108762 (W.D. Ky. October 12, 2010).*

A court released defendant from supervision, but the Ohio Parole Authority disagreed that a court could. Subsequently, a parole search occurred, and it was still valid as far as the OPA was concerned. United States v. Starnes, 2010 U.S. Dist. LEXIS 109004 (N.D. Ohio October 13, 2010).*

Under U.S. v. Padilla, defendant had no standing to challenge the constitutionality of the arrest of his co-defendant. United States v. Smith, 2010 U.S. Dist. LEXIS 108775 (W.D. Tenn. October 12, 2010).*

The emergency search of defendant’s house because of the smell of animal feces was not justified under the Fourth Amendment. The police had been in contact with the defendant before, and, on the day in question, there was a few days of mail, cars parked outside, and dogs barking inside. While there certainly was probable cause for a warrant, there was no showing of an immediate threat. State v. Demarco, 124 Conn. App. 438, 5 A.3d 527 (2010).*

The court found that Cobb had previously had contacts with the defendant as a result of numerous complaints from his neighbors relating to his keeping of dogs, a notice from animal control that was left by Cobb was on the floor on the front porch when Cobb returned ten days later, there was mail overflowing from the mailbox, the defendant's neighbor had not seen him in a few days, the house smelled terribly, there were dogs barking and there were multiple vehicles parked on the premises. None of these facts, either individually or cumulatively, suggests that the defendant or the dogs were in immediate danger or that an objectively reasonable police officer would believe that a dangerous situation existed, such that it necessitated an emergency entry.

A controlled buy with a CI captured on video three days earlier provided probable cause for the search warrant. United States v. Smith, 2010 U.S. Dist. LEXIS 108639 (D. S.C. October 12, 2010).*

The search of defendant’s car would not be justified under Gant, but marijuana was seen in plain view in the car and that justified a search under the seat that produced a gun. United States v. Hall, 397 Fed. Appx. 860 (4th Cir. 2010) (unpublished).*

Defendant stayed at his wife’s place, but he was not on the lease. His wife had the authority to consent. He did not clearly object to the search. And, even if his statement to his wife was an objection to consent arguably valid under Randolph, there was plenty of probable cause, and the police could have gotten a search warrant, and that means that a search warrant would have issued if sought. Therefore, the motion to suppress was properly denied. State v. Lampkin, 2010 Ohio 4934, 2010 Ohio App. LEXIS 4174 (6th Dist. October 8, 2010):

[*P75] In this case, evidence was presented at the suppression hearing that appellant's wife and three children were the only residents listed on the application and approved to occupy the government subsidized home where the mask was found. Therefore, appellant was neither on the lease nor listed as a resident. As a result, his wife would have had the authority to give consent to the search, regardless of appellant's objections. Moreover, the detective testified that appellant repeatedly stated to his wife, it's "your home" and "you don't have to let them search." These statements indicate that appellant did not view the home as his own, even though he may have been staying there.

[*P76] Even presuming, arguendo, that appellant was living with his wife and did have authority as a co-tenant, we conclude that the evidence was still admissible. Appellant was physically present at the residence and his comments could be construed as an objection to the search consented to by his wife. Thus, under Georgia v. Randolph, supra, it is arguable that his Fourth Amendment rights were violated by the subsequent warrantless search and seizure of the mask from the bedroom. Nevertheless, prior to the search, appellant had been identified as one of the assailants by the victim and was placed under arrest shortly after the police entered the home. Since the police had probable cause and could have gotten a warrant and conducted the search of the home without appellant's consent, the evidence was admissible under the inevitable discovery doctrine. Therefore, appellant's motion to suppress the mask and its wrapper was properly denied.

Defendant does not get a Franks hearing on omitted information because every affidavit omits something. More is required in the preliminary showing that just something was omitted. United States v. Polly, 2010 U.S. Dist. LEXIS 108661 (E.D. Ky. October 8, 2010)*:

Franks hearings are not like lollipops at the bank—you do not get one just because you ask. Search warrant affidavits are presumptively valid. Franks v. Delaware, 438 U.S. 154, 172 (1978). Nevertheless, police officers may not intentionally or recklessly lie in their affidavits or omit material information in order to gin-up probable cause where it might not otherwise exist. Criminal defendants may challenge search warrant affidavits on these grounds, but the right to mount such a challenge is not automatic. Before the Court will grant the defendant an opportunity to challenge the affidavit in an evidentiary hearing, the defendant must pass an initial hurdle. This hurdle is particularly high where, as here, the defendant does not allege that the officer affirmatively lied in his affidavit, but rather that the officer omitted important information. After all, every affidavit omits some facts—that is an inherent part of the exercise of reducing real-world events to paper. Because “an allegation of omission potentially opens officers to endless conjecture about investigative leads, fragments of information, or other matters that might, if included, have redounded to the defendant’s benefit,” United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997), the defendant must make a particularly strong preliminary showing before the Court will open the door to a Franks hearing. He must show that the affiant “engaged in ‘deliberate falsehood’ or ‘reckless disregard for the truth’ in omitting information from the affidavit” and that, if the omitted information had been included, probable cause would no longer exist. Id.

Identified business records for a specified time period was not overbroad. United States v. Simon, 2010 U.S. Dist. LEXIS 108079 (N.D. Ind. October 8, 2010):

A warrant satisfies the particularity requirement if the warrant tells a reasonable executing officer what items are to be seized. ...

This warrant listed the Simons' business affiliations and limited the records search concerning those businesses to a particular time frame. It specified tax documents within a particular time frame. The other categories of items are limited by subject matter rather than by time frame. Greater specificity would be needed for a search of an accountant's office, but this warrant related to a residence.

Seizure of the financial aid documents neither exceeded the warrant's scope nor demonstrated an impermissible lack of particularity. The financial aid applications contained information from the Simons about taxable income, expenses, and loans, and included copies of tax returns. The warrant specified evidence of the obtaining and concealment of assets by Mr. and Mrs. Simon, and the financial aid documents appear to fall within that category of items.

Defendant was encountered in the hallway of an apartment building by an officer looking for an immigration fugitive. The officer’s talking to him was not a seizure. The officer also told him to sit down on the floor, so he could be questioned later, and that was not a seizure either. When defendant revealed he was from Guatemala without papers, there was reasonable suspicion. United States v. Castillo-Martinez, 2010 U.S. Dist. LEXIS 108154 (N.D. Iowa October 8, 2010).*

In this drug case, the police knocked and announced, and the door was open and unlocked and they came in after a brief wait. Because the subject of the search was drugs and they were easily disposed of, the shortness of time was reasonable under the circumstances. State v. Terry, 207 N.C. App. 311, 699 S.E.2d 671 (2010).*

Defendant drove a few inches over the fog line for an estimated 500', and that justified the stop. The officer smelled raw marijuana, and that justified a search of the vehicle. Dods v. State, 2010 WY 133, 240 P.3d 1208 (2010).*

In a stop at 2:30 a.m., a dispatch report that the vehicle was likely involved in a shooting coupled with the motorist's nervousness justified a patdown of the driver. United States v. Rochin, 2010 U.S. Dist. LEXIS 107708 (D. N.M. September 20, 2010).*

The affidavit for the search warrant in a stabbing case established probable cause to search defendant’s home for evidence of the crime when they were looking for bloodstained clothing, DNA, and the weapon. [Nexus not mentioned, but that's what the court is referring to.] Gang related information was properly included in the affidavit because of what the assailant said during the attack. United States v. Guevara, 745 F. Supp. 2d 1039 (N.D. Cal. 2010):

Here, the warrant was not overbroad as there was probable cause to seize all items described in the warrant — a DNA sample, a knife or similar cutting instrument (the suspect weapon), bloodstained clothing that may have been worn during the stabbings, and items related to Mara Salvatrucha. The Lau affidavit specified that Mission Female Victim identified Mr. Guevara as the male assailant and Mission Witness No. 1 stated Mr. Guevara resembled the male assailant. From this, Judge Kahn reasonably concluded that there was a fair probability that evidence of the stabbings would be found at Mr. Guevara's residence, in his vehicle, or on his person. Additionally, unlike Millender v. County of Los Angeles, __ F.3d __, 2010 U.S. App. LEXIS 17673, 2010 WL 3307491 (9th Cir. Aug. 24, 2010), the affidavit established probable cause that Mr. Guevara's suspected gang-affiliation was directly related to the stabbings. The Lau affidavit explained that the male assailant yelled "MS" and "Mara Salvatrucha" during the stabbings, indicating the stabbings were likely gang-motivated.

Defendant was arrested in his RV at an RV park, and it was his home requiring a warrant or exigent circumstances to enter, neither of which the police had. His consent was obtained when he was facedown in handcuffs and the officer likely had his hand on his gun, so the consent was vitiated. However, officers got a search warrant based on probable cause of identity theft and only one paragraph of many involved the consent. Removing reference to that still showed probable cause, and the search warrant was valid and the product of the consent was thus valid under inevitable discovery. United States v. Kapis, 2010 U.S. Dist. LEXIS 107637 (D. Ore. October 7, 2010).*

Angad Singh, Stepping out of the Vehicle: The Potential of Arizona v. Gant to End Automatic Searches Incident to Arrest Beyond the Vehicular Context, 59 Am. U. L. Rev. 1759 (2010). Interesting reading, and this is the third paragraph:

This Comment argues that Gant not only enhances Fourth Amendment protections overall by limiting authority to search an automobile upon arrest, but that its first holding also undermines other cases permitting automatic searches incident to arrest in nonvehicular situations. Gant's affirmation of two specific rationales that permit a search incident to arrest, officer safety and the preservation of evidence, directly conflicts with nonvehicular cases allowing automatic searches irrespective of these rationales. Since Gant undermines such cases by reconnecting the search incident to arrest exception with its justifications, applying Gant to cases that permit automatic searches of containers on the person, and certain automatic home searches incident to arrest, serves to enhance privacy protections against these nonvehicular searches that have become police entitlements.

Quarterly in-home maintenance of electronic monitoring system and thus checking on registered sex offenders does not violate the Fourth Amendment. State v. Bowditch, 364 N.C. 335, 700 S.E.2d 1 (2010):

Noting the maintenance that must be performed by DCC personnel every ninety days, typically within an offender's residence, the dissenting opinion argues that the SBM program unnecessarily burdens the Fourth Amendment rights of those convicted felons subject to SBM. However, it is beyond dispute that convicted felons do not enjoy the same measure of constitutional protections, including the expectation of privacy under the Fourth Amendment, as do citizens who have not been convicted of a felony. See, e.g., Velasquez v. Woods, 329 F.3d 420 (5th Cir. 2003) (per curiam) (holding that collecting blood samples from felons for registration in a DNA databank does not violate the Fourth Amendment); Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997) (holding that convicted sex offenders have no right of privacy preventing a state from requiring them to register as such and be subject to community notification of their residences), cert. denied, 523 U.S. 1007, 118 S. Ct. 1191, 140 L. Ed. 2d 321 (1998); Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992) ("Even probationers lose the protection of the Fourth Amendment with respect to their right to privacy against searches of their homes pursuant to an established program to ensure rehabilitation and security." (citing Griffin, 483 U.S. at 868)), cert. denied, 506 U.S. 977, 113 S. Ct. 472, 121 L. Ed. 2d 378 (1992); Standley, 362 N.C. at 329-33, 661 S.E.2d at 730-32 (holding that a convicted sex offender's constitutional rights were not violated by a municipal ordinance that prohibited him from access to public parks); Bryant, 359 N.C. at 557-70, 614 S.E.2d at 481-89 (holding that no due process violation occurred when a convicted sex offender who was required to register in South Carolina failed to register in North Carolina, even though he received no actual notice of registration requirement). Here felons convicted of multiple counts of indecent liberties with children are not visited by DCC personnel for random searches, but simply to ensure the SBM system is working properly.

Interestingly, the Wisconsin electronic monitoring system went down recently requiring officers to go looking for their charges. Hat tip to Stockycat, http://stockycat.blogspot.com/, which I discovered only today because the author communicated about something else. Great new blog "focused non-exclusively on the intersection between criminal law and emerging technology. Dedicated to the idea that effective law enforcement is not incompatible with a vigorous interpretation of the Fourth Amendment." More about that later. [Embedding a link isn't working, and that's my software.]

The Supreme Court granted cert yesterday and consolidated Camreta v. Greene (09-1454) and Alford v. Greene (09-1478) both from the Ninth Circuit. ScotusBlog's summary is here. The Ninth Circuit held in Greene (posted here) that interviewing a potential child abuse victim at school violated family privacy. Greene's question presented from the cert petition:

Does the Fourth Amendment require a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused by her father.

See Youthtoday here.

Defendant’s truck and fifth wheel camper were stopped for a missing front license plate required in the state the truck was from. After the paperwork was completed, the officer told the defendant that he was not free to leave until the drug dog completed his work, and the dog arrived just as he said that. The stop was not extended more than a minute or so by sniff, and that was not unreasonable. State v. Overbey, 2010 SD 78, 790 N.W.2d 35 (2010)*:

[*P24] Defendant's final argument is that the detention exceeded the scope of the stop because it went beyond the time required to conduct a computer check, verify documents, examine vehicle equipment, and issue a citation. Without indicating what Officer Langenfeld should or should not have done during the stop, it is difficult to ascertain the essence of Defendant's argument. Defendant appears to be arguing that Officer Langenfeld should not have called for the drug dog because it impermissibly extended the time it took to conduct the necessary steps for the traffic stop. However, the trial court found that when Officer Langenfeld told Jason that only a warning ticket would be issued, Langenfeld also told Jason he would not be free to leave until after the drug dog conducted a sniff of the vehicle’s exterior. At that exact moment, Trooper Severyn and Cas arrived and the drug sniff was conducted immediately. Within three minutes the drug sniff was completed and the law enforcement officers called dispatch to report that they would be conducting a vehicle search.

A baggie of drugs protruding from the defendant’s waistband during a traffic stop was in plain view. State v. Prude, 2010 Ohio 4892, 2010 Ohio App. LEXIS 4138 (8th Dist. October 7, 2010).*

Everybody was ordered out of the car and they were handcuffed. A search incident at that point was not lawful because nobody could get to the car to conceal or destroy evidence. State v. Chesley, 158 Wn. App. 36, 239 P.3d 1160 (2010).*

An officer saw members of a gang chasing after others, the defendant with a brick in his hand apparently planning on using it on somebody. Based on what he saw and heard, he had probable cause to arrest the defendant for possession of a deadly weapon. In re J.G., 188 Cal. App. 4th 1501, 115 Cal. Rptr. 3d 912 (4th Dist. 2010).*

Defendant sought a supervisory writ over pretrial suppression issues, and the denial of the writ precludes appellate review of the same issue. State v. Marinello, 49 So. 3d 488 (La. App. 3d Cir. 2010).*

The Mississippi DOC’s legal mail rules for signing and sealing outgoing legal mail is reasonable and serves legitimate penological interests. Returning mail to him that was noncompliant was not a seizure of the mail in violation of the Fourth Amendment. Weatherspoon v. Ferguson, 398 Fed. Appx. 7 (5th Cir. 2010) (unpublished).*

A probationer was detained for investigation of theft from her employer and returned to prison. After a few days it was determined that she was not a thief and she was released. She sued the Alaska DOC for her seizure, and the court found that her “seizure” did not violate the Fourth Amendment because she was actually still in their custody. Diaz v. State, Department of Corrections, 239 P.3d 723 (Alas. 2010)*:

We affirm the superior court’s decision because: (1) Diaz’s officer-escorted trip to and interrogation at the travel agency did not implicate her Fourth Amendment rights as she was already in DOC custody when the DOC officers “seized” her; (2) the DOC officers’ actions, although disturbing, did not “shock the conscience” as required for a violation of the Fourteenth Amendment; (3) Diaz’s return to prison, her day of segregation from the general population, and the two days of telephone restrictions did not deprive her of a liberty interest in violation of the Fourteenth Amendment because her freedom was not restrained in excess of her sentence and she did not experience an atypical or significant hardship in comparison to ordinary prison life; and (4) the private detective and his agency are not liable for conspiring with state officials to violate Diaz's constitutional rights because no such violation occurred.

The officer’s mistake of law as to defendant’s use of the turn signal made the stop without reasonable suspicion, so the trial court suppression order is affirmed. State v. Ruelas, 327 S.W.3d 321 (Tex. App. – El Paso 2010).*

Defendant tried to enter a club with a cocked loaded gun that club security relieved him of. Police were called. When defendant did not identify himself, it was permissible for the police to frisk him for his ID. State v. Hollins, 789 N.W.2d 244 (Minn. App. 2010).

“In sum, we conclude that Allen had a subjective expectation of privacy in his cell-phone conversation with Golie and that our society is willing to recognize that expectation as reasonable. Accordingly, Golie's recording of the conversation at the behest of law enforcement constituted a search under Article II, Sections 10 and 11 of the Montana Constitution.” Thus, two party consent is required under the state constitution. State v. Allen, 2010 MT 214, 357 Mont. 495, 241 P.3d 1045 (2010).*

Defendant was lawfully stopped for a traffic offense, and a request for consent was sought before defendant’s paperwork was returned to him. This unlawfully prolonged the stop. [The state argued that Muehler v. Mena permitted extending the stop, and the state court to its credit did not fall for it.] People v. Burei, 2010 Ill. App. LEXIS 1051 (September 30, 2010):

While the initial seizure of the defendant in this case was lawful, it became unlawful when it was prolonged beyond the time reasonably required to complete its purpose, namely, to issue the appropriate traffic citations. Long after the detention should have ended, Officer Tienstra continued to question the defendant during which time he consented to the search. While contrary to the defendant's assertion, the trial court found that he consented to the search, and the court further found and, we agree, that the defendant's consent to search was tainted by the unlawful detention.

Defendant Thompson parked his RV in defendant’s driveway and hooked up to power and water. They claimed they didn’t see each other much after that. A search warrant was executed on the house, and Thompson’s RV. Defendant Jevarjian had no standing in Thompson’s RV. State v. Jevarjian, 124 Conn. App. 331, 4 A.3d 1231 (2010); State v. Thompson, 124 Conn. App. 353, 5 A.3d 513 (2010).

Officer’s arrest of defendant for DWI slightly outside of the officer’s jurisdiction is something not subject to the exclusionary rule. Here, the exclusionary rule is weighed against the defendant’s repeated inability to conform his conduct to the law, so why should he benefit from exclusion? Delker v. State, 50 So. 3d 300 (Miss. 2010):

P3. A Fourth Amendment violation does not automatically precipitate the exclusion of evidence. Rather, it sets into motion a separate inquiry, i.e., whether application of the exclusionary rule outweighs the costs to society in allowing the criminal to be set free. See Herring, 129 S. Ct. at 700 (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006)) (“exclusion ‘has always been our last resort, not our first impulse’”). Each case must be considered based upon the facts presented in that case. We find the exclusionary rule inapplicable in Delker’s case and affirm the result reached by the circuit court and affirmed by the Court of Appeals.

. . .

P17. Any purported deterrent effect in encouraging officers to be aware of jurisdictional boundaries is dubious at best, given the dearth of similar cases involving errors in jurisdictional boundaries presented to this Court over the years. This alone should negate any perception of the beneficent need for exclusion to the end of “appreciable” or “substantial” deterrence of such errors in the future. Herring, 129 S. Ct. at 700-01. But even assuming arguendo that a marginal deterrent effect exists, it is significantly outweighed by the “substantial social costs” and “harm to the justice system” exacted by exclusion. Id. at 700-02, 704. It takes neither a judge nor a lawyer to recognize the compelling social interest in protecting innocent citizens from drunk drivers and the offense to “basic concepts of the criminal justice system” by “letting guilty and possibly dangerous defendants go free.” Herring, 129 S. Ct. at 701 (quoting Leon, 468 U.S. at 908). Here, a multiple DUI offender, who was driving under the influence on Christmas Eve, would not be required to answer for his actions because of Langston’s error. The counter-effect would be that innocent citizens of this State, who look to the government for protection from drunk drivers, would be subjected to the potentially fatal risk of a recalcitrant, multiple-DUI offender being placed back on their roadways. This risk only adds to the undeniable substantial social costs exacted by drunk drivers through not only fatalities, but also through grief to the survivors; personal injuries ranging from catastrophic to minor; and property loss. Moreover, harm to the justice system is self-evident. Delker has demonstrated a deliberate, reckless, and flagrant disrespect of the laws of this State, despite opportunity after opportunity to alter his conduct.

So, is it reasonable to assume, then, that the exclusionary rule in Mississippi will not be applied on a sliding scale of the gravity of the crime? So, if this were Delker's first offense, would the exclusionary rule apply? Second in five years? What about any murder case in Mississippi, considering the NYTimes op-ed piece from three days ago, High Cost of Crime (a murder costs society $17+M)? Can the language of this case be applied to the “scourge” of drug dealers who might be selling to innocent children or minors? I don't see this case being limited to its facts, and this is truly one of those “bad facts making bad law” scenarios.

Defendant was driving a truck that the trucking officer estimated was over 10,000 lbs and thus subject to regulation. He pulled the truck over, and defendant had a suspended license. The stop was valid as an administrative stop because the commercial trucking industry is heavily regulated under Burger for safety of trucks. Commonwealth v. Leboeuf, 78 Mass. App. Ct. 45, 934 N.E.2d 1285 (2010).

“Accordingly, pursuant to the ‘well-settled principle ... that the scope of a warrant authorizing the search of a particularly described premises, includes automobiles owned or controlled by the owner thereof, which are found on the premises,’ Commonwealth v. Signorine, 404 Mass. 400, 403, 535 N.E.2d 601 (1989), the police were authorized to search the defendant's Honda. The evidence that resulted was properly admitted.” Commonwealth v. Fernandez, 458 Mass. 137, 934 N.E.2d 810 (2010).*

Defendant was stopped for a traffic offense, and when the officer approached, defendant said “Why the f*** are you stopping me?”, and he started to get out of the car. The officer did not like his aggressive tone, and the officer tried to keep defendant in the car. Defendant succeeded in getting the door open and knocking the officer down. The officer Maced him as he ran off. This was an abandonment of the car, which was lawfully impounded and inventoried. United States v. Jefferson, 2010 U.S. Dist. LEXIS 105628 (N.D. Ga. May 25, 2010).*

Defendant’s admission about there being a meth pipe was suppressible, but the evidence would have inevitably been found during the ongoing execution of the search warrant at his house. United States v. Rodriguez, 2010 U.S. Dist. LEXIS 106417 (D. S.D. September 9, 2010).*

Defendant was stopped for a host of traffic offenses, and he argued that the police were actually more interested in him because of suspected drug activity. Well, that’s just irrelevant under the Fourth Amendment since he gave them probable cause to stop him for the traffic offenses. United States v. Mendoza, 2010 U.S. Dist. LEXIS 105570 (S.D. Iowa June 4, 2010).*

Officers went to defendant’s property and mobile home to do a knock-and-talk about cocaine trafficking. In the driveway were two vehicles with out of state license plates, and nobody answered a knock at the front door. Officers went to the back door, which was not blocked by any fencing, in case those inside could not hear the knocking. They saw a 30 ton hydraulic press that is commonly used to compress cocaine for shipment. That was a valid plain view, and curtilage was not unreasonably violated by trying the back door. United States v. Gonzalez, 2010 U.S. Dist. LEXIS 106448 (S.D. Iowa June 4, 2010)*:

The Court finds that there was a sufficient indication that someone might be home for a police officer to knock at an alternate entrance. The presence of several cars at the residence made it reasonably likely for a police officer to believe that someone was home. Raines, 243 F.3d at 420. Because of Special Agent Stepleton's stated familiarity with the layout of single-wide trailers, it was entirely reasonable for the agents to try an alternate entrance once no one answered at the front door. They also left the curtilage area after no one answered the back door. With an investigatory purpose in mind and cars at the residence, the Court finds that it was a reasonable and "limited intrusion" for the agents to knock at the back door of the residence. Anderson, 552 F.2d at 1298. Once the agents discovered that no one was home, the agents did not remain in the backyard. It is reasonable for an officer to initially enter a backyard to determine if a defendant is home. Estate of Smith, 430 F.3d at 157. Accordingly, the government has met its burden to show that the agents were in a place where they had the right to be when they discovered the 30 ton hydraulic press.

So, just how easy is it for the police to make up the circumstances to go to the back door and claim it was reasonable?

Defendant abandoned his jacket, where his cell phone was found, when he slipped out of the jacket to get away from a Wal-Mart loss prevention employee who was trying to stop him. Thus, the cell phone was abandoned, too. State v. Dailey, 2010 Ohio 4816, 2010 Ohio App. LEXIS 4068 (3d Dist. October 4, 2010):

[*P16] In this particular case, we believe that it was clear that Dailey voluntarily abandoned his cell phone when he slipped out of his coat and left it and its contents behind in order to escape being detained by a Wal-Mart store employee. When Stafford reached Dailey at the Wal-Mart sliding doors, Dailey turned around and tried to elbow him in the face. A physical altercation ensued between the two, which eventually spilled into the store's parking lot. At one point, Stafford grabbed Dailey's jacket, but Dailey managed to maneuver his way out of the jacket and quickly ran off, leaving his jacket in Stafford's possession. At no time thereafter did Dailey request his jacket or any of its contents be returned to him.

A 911 cell phone call about a possible drunk driver did not support defendant’s stop because there was no showing of any connection to defendant’s vehicle and the call. State v. Renzulli, 935
N.E.2d 200 (Ind. App. 2010).*

The victim of an armed robbery gave a description to an officer who told other officers. Defendant matched that description, and that was reasonable suspicion for his patdown. Brooks v. State, 934
N.E.2d 1234 (Ind. App. 2010).*

The state did not raise standing in the trial court, so it cannot raise it for the first time on appeal. Nevertheless, defendant has a “participatory interest” in the area where the drugs were found in the car, so he can challenge the search, which is found illegal, and they both win. State v. Minitee, 2010 N.J. Super. LEXIS 200 (August 16, 2010):

In short, from this record, we discern no reason that justifies the State's failure to raise this threshold question in a timely fashion before the trial court. We will nevertheless address it because we are satisfied that Bland has the requisite "participatory" interest in the motor vehicle and the property seized to confer him with the standing necessary to challenge the State's warrantless search.

Under our state constitution, "a criminal defendant has standing to move to suppress evidence from a claimed unreasonable search or seizure 'if he has a proprietary, possessory or participatory interest in either the place searched or the property seized.'" State v. Johnson, 193 N.J. 528, 541 (2008) (quoting Alston, supra, 88 N.J. at 288). In State v. Mollica, 114 N.J. 329, 339-40 (1989), the Court recognized the defendant's “participatory interest” in property that was not owned by the defendant. Armed with a search warrant, the police searched the defendant's hotel room. Id. at 334. The search warrant was based on information obtained from a codefendant's telephone records documenting illegal gambling activities. Ibid. Because these records were generated by the defendant's criminal gambling activities, the Court held that the defendant had standing to challenge how they were seized. Id. at 335.

Here, Bland's participatory interest in the red SUV registered to Minitee stems from his occupancy of the vehicle at the time Officer Lorenzo first stopped it. His occupancy gave him dominion and use of the area in and around the vehicle where the police subsequently found the incriminatory evidence. This participatory interest continued, unabated, to that point in time when the police seized the vehicle and arrested Minitee and her codefendant.

In my state, the appellate courts apply procedural default in extremis against the defendant, but seldom, if ever, against the state. I had a case 12 years ago where the state never raised standing in the trial court, but the state raised it in its appellee’s brief, and I argued waiver from Steagald v. United States, which is the first issue in that famous case extending Payton to third party premises. The Arkansas Court of Appeals, however, as it is wont to do, just ignored me because that would mean that a defendant might win a search and seizure case, and they just couldn't have such a state of affairs. Richard v. State, 64 Ark. App. 177, 983 S.W.2d 438 (1998) (it was his aunt’s house, and he could come and go as he pleased like he lived there). When they seem to delight in defaulting defense counsel, how come they seem to have so much trouble doing it to the state? Double standard?

The affidavit for the search warrant was based on CI information that was not clear as to the time being recent. The officer sought to rehabilitate the search warrant in the face of a staleness challenge by testifying at the suppression hearing that he thought he told the issuing magistrate that the information was within the last 24 hours, but he was unclear as to that. Under Ex parte Green, 15 So. 3d 489 (Ala. 2008), the warrant fails. McIntosh v. State, 71 So. 3d 41 (Ala. Crim. App. 2010).*

Defendant was driving a Cadillac Escalade in a neighborhood suspiciously, and the officer felt that he was casing houses for burglary. When defendant crossed the centerline, he pulled him over. Defendant seemed under the influence, but not enough to arrest. The officer was going to let him go but asked for consent, which defendant gave. The drug dog was in the patrol car, came out, and alerted. It was all valid. State v. Ellis, 2010 Ala. Crim. App. LEXIS 91 (October 1, 2010).*

The mistaken delivery and later police search case of Walter v. United States did not apply to a computer brought to Best Buy’s Geek Squad to remove viruses. While working on the computer, viruses would apparently be removed but would reappear, and they were isolated to files which had child pornography in them. When defendant turned the computer over to the Geek Squad for virus repair, he permitted them to do anything to it to fix it. They called the police, as they were supposed to. This is not an expectation of privacy that public is going to find reasonable. Melton v. State, 69 So. 3d 916 (Ala. Crim. App. LEXIS 2010),* certiorari denied Ex parte Melton, 69 So. 3d 932 (Ala. 2011).*

Defendant was on a peer to peer network sharing child pornography, but the government used a different way into his computer. He was linked to a network, and while he was using the computer sharing with others, the government got into his computer with “enhanced software.” He was sharing files, so he had no reasonable expectation of privacy from this particular intrusion. United States v. Gabel, 2010 U.S. Dist. LEXIS 107131 (S.D. Fla. September 16, 2010).*

Defendant’s traffic stop leaving a suspected “stash house” was valid, based on lack of mud flaps on his truck as required by state law. United States v. Rios, 2010 U.S. Dist. LEXIS 107109 (D. Ariz. September 2, 2010).*

Defendant was the subject of a child sexual abuse investigation, and a search warrant was obtained for his computer in South Dakota, and it was seized. It was transferred to Wisconsin where another search warrant was issued to search it. The search warrants were based on probable cause to believe that there was child pornography [despite all the boilerplate revealed in the opinion] because the victim’s mother checked the computer and its Internet history and saw that child porn was defendant’s focus. That gave probable cause. United States v. Houston, 754 F. Supp. 2d 1059 (D. S.D. 2010).*

The use of deadly force instead of spike strips to stop the defendant who had run a roadblock and was trying to outrun the police did not make the search of him and his car when he was finally stopped unreasonable. The defendant fled and was driving erratically, and the use of force here was reasonable under the circumstances. United States v. Ramos, 2010 U.S. Dist. LEXIS 107292 (S.D. Cal. October 6, 2010):

The Court must determine whether the agents reasonably believed that the force used was necessary in order to protect themselves based upon the totality of the circumstances. "To assess the reasonableness of th[e] conduct, [a court] must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion paying careful attention to the facts and circumstances of each particular case." Guzman-Padilla, 573 F.3d at 886 (citations and quotations omitted). After the full presentation of evidence, the Court concludes that the interest of the government agents in protecting their safety was very strong in this case based upon the imminent and serious danger posed by the actions of the Defendant. The agents lawfully attempted to stop the vehicle based upon reasonable suspicion that the Defendant was engaged in criminal activity. Defendant refused to stop his vehicle and began a high speed encounter with border patrol. Defendant used dangerous means to attempt to avoid apprehension over a lengthy period of time. Defendant traveled over twenty miles in the dark on Interstate 8 at over one hundred miles per hour, weaving in and out of traffic posing a serious danger to the public.

Officers arrested people outside the house, and one of those detained was a neighbor “literally at the wrong place and the wrong time.” After a security sweep, she was released and went back to her house. The premises were secured, and a search warrant was sought. She became a witness for the defense on the search issue, observing from her own place. The court found her testimony embellished because of the way she complained about her treatment when the police made the arrest. The warrant was valid, as was the search. United States v. Denson, 2010 U.S. Dist. LEXIS 107374 (W.D. Pa. October 7, 2010).*

Been through what is now called a "naked scanner"? They are really "backscatter scanners." So innocuous sounding. But, naked scanner is appropriately descriptive. Get this from a German website: "What can the 'naked' scanner really see? Pregnancy, intimate piercings, genitals..." I tried embedding the link, but it didn't work, so here it is:
http://www.bild.de/BILD/news/bild-english/world-news/2009/12/31/pregnancy-body-piercings-genitals/what-can-naked-scanners-really-see.html. Note that it is from December. Wonder why I didn't see it sooner?

More to the point, since Germans are not as sexually repressed as Americans, you can see the image on the website of a woman which clearly shows her nipples and pubic area. You can also see a gun hidden in the small of her back, which would be found by conventional technology. But not a bomb, or anything hidden in a body cavity. Prison inmates hide shanks and even cell phones in body cavities. Not enough of a bomb to bring a plane down, or would it be? All it has to do is breach the fuselage at 30,000 ft and down it comes, like the PanAm 103 bombing. That one was hidden in a radio in the luggage compartment. But I digress into next having body cavity searches to get on an American airplane. Meanwhile, back to the article:

How intimate are the pictures?

Security advisor Hans-Detlef Dau (54, Hamburg), who sells the scanner, said: “Unlike with a complete X-ray examination, the rays do not go deeply under the skin. They see only the things which lie over it, so bladed weapons and firearms as well as ceramics.

“Beyond that, they show intimate piercings, catheters and the form of breasts and penises.

“But newer devices can automatically distort intimate areas in the picture.”

See prior posts here and here, among others. Remember that last one from May where one TSA worker in Miami was sent through the device and a coworker commented on his penis size which led to a workplace assault? Was he joking, or could he really see? Apparently he really could see.

Sadly, TSA might be a perfect job for a voyeur if he can get scanner duty. My home airport isn't big enough to ever have one, but I fly through DCA all the time, and the Delta concourse has one.

Finally, the German website mentions a company that sells pasties for going through scanners: FlyingPasties.com. "The next time they tell you that they can't see you naked, watch this and get back to us..." with video.

What are we becoming? Wearing pasties to fly? The terrorists really are winning. We're selling our liberty out.

Yesterday was a post about the California man that found an FBI installed GPS on his car, posted here. Yesterday on PogoWasRight is this post: Is there a storm brewing over FBI surveillance? If not, there should be. That post has a link to a TV interview with the GPS target. Wired.com's story is here.

One can be assured that the government had made no pre-installation showing of probable cause. What is more surprising is that the FBI actually had to grovel and go to the target and ask for the GPS device back. After all, asking for it back led to them telling him, according to Wired.com's story, that he'd been under surveillance for three to six months. Maybe he wasn't a terrorist after all. If he was, I'd think that they would just put another one on his car and sure not tell him about it.

The blogosphere is having fun with this: See CNN.com, DisInfo.com, NewsPlurk, AboveTopSecret.com. Google it. The number of appearances is astounding, aside from the mainstream press.

A silver lining? Anything that calls more attention to wanton GPS surveillance of citizens is well worth talking about because, mark my words, the Supreme Court is going to get this issue soon if United States v. Maynard, 615 F.3d 544 (D.C.Cir. August 6, 2010), posted here, survives rehearing en banc because that is the case they will take. (Note that Orin Kerr in the previous link on Volokh Conspiracy thinks that Maynard is not the case for SCOTUS to take.)

An officer came to defendant’s house on a knock-and-talk to ask about a stolen computer. “Defendant said that he had only two computers, one in the living room and one in his bedroom. After defendant showed the deputies a desktop computer in the living room, Yazzolino asked to see the computer in the bedroom. Defendant consented but asked whether they had a ‘good reason’ for talking to him. Yazzolino replied, ‘I wouldn’t be there if I didn’t.’” Defendant succeeded in being asked for consent serially about various things in his house and consented to all of it. Officers found guns, and he admitted that he was a felon in possession. He contended that he was coerced but he agreed that the officer used “nice words.” He was found to have voluntarily consented, over and over again. State v. Zamora, 237 Ore. App. 514, 240 P.3d 91 (2010).*

When the officer first asked for consent to search defendant’s car, it was denied and he did not have probable cause. Then, defendant’s girlfriend admitted there was marijuana in the car, and that gave probable cause to search it and it was still mobile. State v. Kurokawa-Lasciak, 237 Ore. App. 492, 239 P.3d 1046 (2010).*

Defendant’s travel plans here were indicative of reasonable suspicion on the totality of circumstances [and, it is barely suspicious]. United States v. Berg, 2010 U.S. Dist. LEXIS 106730 (E.D. Mich. October 6, 2010).*

Consent was obtained after the officers threatened to get a search warrant, but the threat was not baseless. So, the consent was valid. United States v. Bigi, 2010 U.S. Dist. LEXIS 105954 (S.D. Ohio September 22, 2010)*:

The Sixth Circuit has repeatedly held that an officer's threat to obtain a warrant if the defendant does not consent to the search does not taint the defendant's subsequent consent to a search, unless the threat is baseless. See United States v. Salvo, 133 F.3d 943, 954 (6th Cir. 1998) (citing a number of cases from other circuits); United States v. Blanco, 844 F.2d 344, 351 (6th Cir.), cert. denied, 486 U.S. 1046 (1988); United States v. Watson, No. 96-5037, 1997 U.S. App. LEXIS 17186 (6th Cir.), cert. denied, 522 U.S. 961 (1997) ("Notifying a person that a warrant can be obtained does not render consent involuntary unless the threat to obtain the warrant is baseless.").

Defense counsel could not be ineffective for not moving to suppress a plain view during the execution of an otherwise valid search warrant. Crawford v. United States, 2010 U.S. Dist. LEXIS 106172 (E.D. Pa. October 4, 2010).*

Defendant was stopped for a traffic offense, and the officer decided to call for a drug dog which arrived before the ticket was even filled out. Therefore, defendant was not detained unreasonably by the use of the drug dog. United States v. Aguando-Garcia, 2010 U.S. Dist. LEXIS 106042 (S.D. Ohio September 27, 2010).*

In this law office search case, “[t]here is no evidence to establish that the search team grossly exceeded the scope of the warrant in this case, nor that the search was overly broad as to give rise to constitutional concerns.” The use of a “taint team” protected attorney client communications and was not a constitutional violation. United States v. Mower, 2010 U.S. Dist. LEXIS 106927 (D. Utah October 6, 2010):

Defendants argue that the government's use of taint teams to protect against the improper intrusion into attorney-client privileged information constitutes a per se intrusion on the attorney-client privilege. While courts have expressed mixed reviews on the appropriateness of the use of taint teams in addressing attorney-client privilege issues, the use of a taint team itself does not constitute an intrusion warranting complete suppression of all evidence seized. This is especially true in cases such as this case where the government has already obtained the physical control of potentially privileged documents, the legality of the seizure of documents was not initially challenged, and there are large volumes of documents at issue. See, e.g., In re Grand Jury Subpoenas 04-124-03 and 04-124-05, 454 F.3d 511, 522-23 (6th Cir. 2006); United States v. Winters, no. 06-cr-54, 2006 U.S. Dist. LEXIS 70488, 2006 WL 2789864 at *2 (S.D.N.Y. 9/27/06); Hicks v. Bush, 452 F. Supp. 2d 88, 103 n. 12 (D. D.C. 2006).

The taint team at issue in this case was formed prior to the search and was available for privilege determinations during and throughout the search. The government has stated that the documents all went through several levels of review by the taint team according to the classes of privilege of the documents as designated by the agents, the taint team attorneys and defendants' counsel. Finally, the government's use of a taint team was approved by a neutral and detached magistrate and as it was used in conjunction with a valid search warrant, the use of a taint team, in itself, does not warrant a blanket suppression. ...

Note: I personally have problems with the entire "taint team" concept when the team comes from DoJ because it leaves the appearance of impropriety for the government and the defendant will never believe that privilege was not breached. A special master process would be far better, but that would cost the government money--retaining a civil lawyer from the community to review everything. The problem with that is protecting grand jury secrecy, but that can be arranged up front. Better yet, let a USMJ do it.

An escapee has no greater rights than he had in his prison cell or as a parolee. He essentially has no subjective reasonable expectation of privacy that anyone would recognize anywhere he is found. United States v. Cartwright, 2010 U.S. Dist. LEXIS 106473 (N.D. Okla. October 5, 2010):

The question now before the Court is where to place Cartwright on the continuum of punishment between a convict in his cell and a probationer. The Court finds that there should be no functional difference between Cartwright and the prisoner in Hudson, as a prisoner may not alter the terms of his imprisonment by means of escape. Although the question is one of first impression in this jurisdiction, other circuits have held that one who effects his own escape does not gain the benefit of additional constitutional protections.

Citing, inter alia, United States v. Roy, 734 F.2d 108 (2d Cir. 1984), and United States v. Ward, 561 F.3d 414 (5th Cir. 2009). To my knowledge, no case holds to the contrary.

Forced catheterization for a urine sample of a prisoner on a hunger strike was not an unreasonable search where it was clearly medically necessary. Hurrey v. Unknown Tech Med. Person “A”, 2010 U.S. Dist. LEXIS 106035 (N.D. Tex. September 15, 2010):

Plaintiff appears to argue that court authorization was necessary for the forced catheterization; however, a court order is not required for an involuntary medical procedure. Prison officials are not required to allow an inmate to harm himself or commit suicide by fasting. Even force-feeding an inmate under those circumstances is not a violation of his civil rights. See, e.g., Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (rejecting claim that force-feeding an inmate after seven days on a hunger strike was unconstitutional). A forced catheterization on the seventeenth day of a hunger strike to monitor plaintiff's well-being is not constitutionally offensive. Although plaintiff maintains he was simply trying to lose weight, prison officials had no way of determining why plaintiff was no longer eating, or, more importantly, whatever his goal, whether he was harming himself. Even if they had known plaintiff was trying to lose weight, that would not relieve them of the duty to provide medical care for plaintiff's serious medical needs, including a determination of whether his self-imposed fast was doing serious harm to his body.

Defendant was stopped at a DL checkpoint, and he did not have one and appeared really nervous. He consented to a search of his person producing cocaine, and that led to a “limited protective search” of his car, which would have been valid under the automobile exception. United States v. Nixon, 396 Fed. Appx. 1 (4th Cir. 2010),* cert. den. 2011 U.S. LEXIS 1519 (U.S., Feb. 22, 2011).

The stop of defendant’s vehicle was valid because the police recognized the passenger and had a warrant for him. Defendant’s minor questioning while waiting for the paperwork to be verified led to an admission that the car was going to a drug deal, and that supported a search. United States v. Savath, 398 Fed. Appx. 237 (9th Cir. 2010) (unpublished).*

The question of exigent circumstances for the police entry into defendant’s home was irrelevant because nothing of any consequence was found and nothing from that entry was used at trial. The fact it was a potentially dangerous situation was essentially moot and abstract. United States v. Escobedo, 397 Fed. Appx. 205 (7th Cir. 2010).*

Officer’s use of slight force to get defendant out of the car when defendant refused did not make the action unreasonable. United States v. Jefferson, 2010 U.S. Dist. LEXIS 105629 (N.D. Ga. October 4, 2010)*:

Police officers are authorized to use reasonable force to remove a person from a car in the face of even mild resistance by a driver. See United States v. Bradley, 2009 WL 4281260, at *3 n.5 (S.D. Ga. Nov. 5, 2009), adopted at 2009 WL 4348951, at *1 (N.D. Ga. Nov. 30, 2009) (police officer was “entitled to employ reasonable force to remove defendant from the vehicle” once defendant failed to comply with the officer’s lawful order that defendant exit the vehicle); United States v. Rookard, 2007 WL 2176895, at *6 (W.D.N.Y. July 27, 2007), adopted at *1 (police officer could physically remove defendant from the car after defendant repeatedly refused to comply with the officer's orders to show his hands); United States v. Douglass, 467 F.3d 621, 622-623 (7th Cir. 2006) (police officer did not violate defendant’s Fourth Amendment rights when, after defendant's refusal to exit the car, the officer reached through the partially opened window of the car to physically remove defendant from the car).

PA SPCA’s lack of direct involvement in an animal cruelty raid by the government did not permit it to be sued under § 1983. Blank v. Pennsylvania Society for the Prevention of Cruelty to Animals, 2010 U.S. Dist. LEXIS 106142 (E.D. Pa. October 5, 2010).*

Defendant who admittedly only carried a duffle bag into an apartment and expected to stay only 20-45 minutes, where he did not live, would not stay, and had no key or belongings there, had no standing to contest a search of the premises. United States v. Mitchell, 2010 U.S. Dist. LEXIS 105594 (M.D. Pa. October 4, 2010).*

Officers had probable cause to believe that the defendant’s truck to which 200 lbs of marijuana had been transferred had evidence of crime, so Gant did not apply. United States v. Micali, 2010 U.S. Dist. LEXIS 105386 (E.D. N.Y. September 29, 2010).*

Defendant was sleeping like a homeless man in a private parking garage. When he was rousted and fled, he left some stuff including a laptop computer, anti-Israeli literature (similar comments were on his Facebook page), and bottle that was capable of being a small bomb based on its contents. A search warrant was issued for the computer [aside from the abandonment issue which isn’t discussed], and the court concludes the search warrant for evidence of terrorist activities is specific enough. His claim that he was entitled to possess the anti-Israeli literature under the First Amendment was not at all determinative of the outcome. Moreover, the showing of PC was close enough that the good faith exception would apply. United States v. McNamara-Harvey, 2010 U.S. Dist. LEXIS 106141 (E.D. Pa. October 5, 2010).*

A mechanic working on a car that belonged to a California student with a Middle Eastern name found a GPS device planted on his car and gave it to him. The FBI came calling as a result: On ABAJ.com: Student’s Discovery of GPS Tracking Device Brings Visits by FBI, ACLU, a story via Wired.com:

A California student was visited first by the FBI and then by the American Civil Liberties Union after reports surfaced that his mechanic had found a GPS tracking device on his car.

After Yasir Afifi discovered the device, a friend posted photos online, prompting “wide speculation about whether the device was real, whether the young Arab-American was being targeted in a terrorism investigation and what the authorities would do,” Wired.com reports on its blog Threat Level. The 20-year-old Arab-American student at Mission College in Santa Clara soon found out, the story says.

Afifi told Wired that FBI agents and police officers came to his apartment and demanded the return of the device. One agent reportedly told Afifi they knew what restaurants he frequented and congratulated him on his new job. Officers also asked about Afifi’s acquaintances and showed him a blog post written by his friend that had “something to do with a mall or a bomb,” Afifi said; the friend later said it was just something stupid he wrote.

See also The Green Room.

A Fourth Amendment for the Poor Alone: Subconstitutional Status and the Myth of the Inviolate Home by Jordan C. Budd of the University of New Hampshire School of Law, to be published in the Indiana Law Journal, Vol. 85, No. 2, 2010. Abstract at the link.

YouTube video: Police threaten to KILL Pastor over License Plate Light being Burned Out.

"The main action of the video is between minutes 0:00-4:00 and 10:50-15:35. The death threat is found around 2:10-2:30."

The use of an agent to rent a hotel room under an assumed name did not defeat a reasonable expectation of privacy in the room. They had keys to the room and their stuff was in it. That was enough. United States v. Domenech, 623 F.3d 325 (6th Cir. 2010):

Had the Domenech brothers rented Room 22 under their own name, they unquestionably would possess a legally cognizable expectation of privacy. See Allen, 106 F.3d at 699. That they used an agent to rent the room for them does not change this. The D.C. Circuit focused on the relationship of self-registration to one’s expectation of privacy in a hotel room in United States v. Lyons, where “a key to the room that had been rented on [the defendant’s] behalf was given to him by a third party (whose identity remains secret) ....” 706 F.2d 321, 324 (D.C. Cir. 1983). The court held that one can possess a reasonable privacy expectation—even though lacking a legally enforceable contract or property right to the room—because “each [guest] regards the space provided for him as his temporary place of abode.” Id. at 327; see also Washington, 573 F.3d at 283 n.1 (“A person may acquire a reasonable expectation of privacy in property in which he has neither ownership nor any other legal interest.”).

. . .

We do not read Carr as espousing the registration-required-for-privacy rule applied by the district court, but, instead, understand it to confirm that “[important considerations in the expectation of privacy equation include ownership, lawful possession or lawful control of the premises searched.” Carr, 939 F.2d at 1446; see also United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998) (relying on Carr’s list of considerations). Carr and Bruce easily reconcile with suppression of the evidence garnered from Room 22 at the Green Acres Motel. The Domenech brothers demonstrated lawful control/possession with evidence that they procured the room for their own use through their agent, paid for the room, possessed the key to the room, and occupied it both physically and with belongings.

Cases from other Circuits also hold that the use of an alias does not eliminate Fourth Amendment protections. ....

This case was reversed on rehearing on United States v. Domenech, 2011 U.S. App. LEXIS 14452, 2011 FED App. 0467N (6th Cir. July 12, 2011) (unpublished), posted July 19, 2011, on exigent circumstances, whether there was a reasonable expectation of privacy or not.

This is a thought provoking consent article: Compare consent in a rape case to consent in Fourth Amendment doctrine, and the searched defendant's perspective should prevail. Blaming the Victim: ‘Consent’ within the Fourth Amendment and Rape Law by Josephine Ross of Howard University School of Law to be published in Harvard Journal of Racial & Ethnic Justice, Vol. 26, p. 1, Spring 2010.

The link on the article name is the SSRN Abstract.

The state did not show that a court order for DNA swabbing, a search, was issued with probable cause, and the probable cause for arrest is not necessarily probable cause to believe that evidence will be found in a search. The DNA swab was suppressed. State v. Garcia-Salado, 240 P.3d 13 (Wash. 2010):

While a cheek swab for DNA is a search and requires a warrant absent the existence of an exception, the warrant requirement of the Fourth Amendment and article I, section 7 may be satisfied by a court order. Normally, a warrant in Washington State is issued under CrR 2.3, but neither the state constitution nor federal constitution limits warrants to only those issued under CrR 2.3. A court order may function as a warrant as long as it meets constitutional requirements. E.g., United States v. Mendez-Jimenez, 709 F.2d 1300, 1302 (9th Cir. 1983). In the case of a search that intrudes into the body, such an order must meet both the requirements of a warrant and the additional requirements announced in Schmerber. Therefore, to support a search that intrudes into the body, a CrR 4.7(b)(2)(vi) order must be entered by a neutral and detached magistrate, must describe the place to be searched and items to be seized, must be supported by probable cause based on oath or affirmation, and there must be a clear indication that the desired evidence will be found, the method of intrusion must be reasonable, and the intrusion must be performed in a reasonable manner.

Other than the deputy prosecutor’s assertions, it is unclear what information was brought to the attention of the trial court. The State urges us to consider the certification of probable cause in support of Garcia-Salgado’s arrest, but the record does not establish that the trial judge ever read the certification. Ideally, the CrR 4.7(b)(2)(vi) order itself would reference the evidence relied upon for the probable cause determination, but the order is silent, and nothing in the transcript of the record reveals what information was before the trial court when it entered the CrR 4.7(b)(2)(vi) order. Because we do not know what the trial court considered, we cannot say that probable cause supported the order. Accordingly, we cannot find that the warrant requirement has been satisfied. It is the State’s burden to establish that an exception to the warrant requirement has been met. Garvin, 166 Wn.2d at 250. The State has not established an exception in this case. Therefore, we reverse the Court of Appeals and remand.

See this unintentionally hilarious piece on WorldnetDaily, a bastion of truth and unabashed promoter of Sarah Palin for President as a government visionary, tells us yesterday in Worldnet Daily: Obama's euthanizing of 4th Amendment that the Justice Department's desire to make it possible to wiretap the Internet is the end of the Fourth Amendment.

WND, December 22, 2005 praising President Bush for keeping tabs on the enemy:

No, this debate is about partisan politics. The left wants to deprive Americans of yet another tool in the war on terror, this time by curtailing the ability of our commander in chief to secretly keep tabs on those who wish to kill us. President Bush has briefed senators more than 12 times about this program; he has re-authorized it more than 30 times since 9-11. This program is hardly news to anyone in the know.

If you love the President, then he can do no wrong in trying to "keep tabs on the enemy." If you hate the President, then his trying to "keep tabs on the enemy" is an affront to the Fourth Amendment. Wiretapping the Internet is a scary thought, but it is but a logical extension of the USA PATRIOT Act, brought to you by the Republican Party at a scary time when nobody in government cared about the civil liberties implications. If you were for the USA PATRIOT Act, you are complicit in what is happening now.

There is also another WND article today that evolution is false, but I digress.

Officers came to defendant’s bar with a writ of execution to levy on a judgment. It authorized seizure of cash on the premises or defendant’s person. When defendant was pulling cash from his pocket, a baggie of meth fell out. Officers called for a drug dog which alerted on defendant’s car. They got a search warrant and more was found. The search on the writ was legal because defendant had the opportunity to defend the civil case that led to its issuance. The search was reasonable. State v. Sittingdown, 2010 OK CR 22, 240 P.3d 714 (2010):

[*P13] Because a civil order or writ is court process, the resulting seizure’s constitutionality is subject to the “ultimate standard” of “reasonableness.” Soldal, 506 U.S. at 71, 113 S.Ct. at 549; quoting Camara, 387 U.S. at 539, 87 S.Ct. at 1736. In Soldal the Supreme Court noted that where officers were acting pursuant to a court order, a showing of unreasonableness in the execution of the civil process would be a “laborious task indeed.” Soldal, 506 U.S. at 71, 113 S.Ct. at 549.

[*P14] The seizure in the present case was reasonable. The seizure was conducted solely pursuant to the civil writ of execution. The writ has not been shown to be unreasonable on its face. No challenge was made to the writ in the District Court. Furthermore, the officer’s actions did not go outside the authority of the writ. The writ was executed as it was presented to the officer.

[*P15] The writ of execution authorized the officer to assume control and dominion over the contents of Appellee’s pockets. A writ of execution is a command to the officer, to whom it is directed, to collect the money specified in the writ from the goods and chattels of the debtor. ...

Just because a suspect is moved slightly during his stop, it is not turned into an arrest: “We conclude, therefore, that when required for the safety of the officer or suspect, a suspect may be moved a short distance during an investigatory detention if that is consistent with the purposes of the investigation, does not unduly prolong the duration of the detention, and does not otherwise turn the situation into the equivalent of a formal arrest.” State v. Barriger, 44 Kan. App. 2d 648, 239 P.3d 1290 (2010).*

Seeing defendant on school property without a school uniform was reasonable suspicion of trespassing on school property. When she opened her purse, a knife was in plain view. State in the Interest of K.M., 2010 La. App. LEXIS 1305 (4th Cir. September 29, 2010).*

Defendant was arrested after an entry by the SWAT team, and he was in his underwear. The entry was lawful, as was recovery of the gun. He was asked where the gun was without being Mirandized, and that did not fit within Quarles and the “public safety” exception. The search was otherwise valid, but his admission is suppressed. United States v. Carrizales, 2010 U.S. Dist. LEXIS 104798 (N.D. Ohio September 29, 2010).*

There were exigent circumstances for entry into defendant’s home by the police where they received a tip that he might be inside in distress by a neighbor, they knocked repeatedly and got no answer, and then heard moaning from inside and a foul odor suggesting a death. United States v. Smith, 2010 U.S. Dist. LEXIS 103324 (S.D. Fla. September 17, 2010).*

Defendant consented to a search of his barracks computer for child pornography, and that supported the conclusion that defendant should be discharged from the military for conduct prejudicial to the military. United States v. Phillips, 69 M.J. 642 (N.-M. Ct. Crim. App. 2010).*

While search incident would not support the search of defendant’s car, the automobile exception did. The officer had PC to believe that there was something in the car and a dog alerted. State v. Hobbs, 933 N.E.2d 1281 (Ind. 2010).*

Defendant’s consent was attenuated from the illegal stop by time, clear advice of a right to refuse the search by underlining the portion of the consent form so stating, and the officers’ conduct not being flagrant. United States v. Blackburn, 398 Fed. Appx. 453 (11th Cir. 2010) (unpublished).*

Officers assisting in an arrest that they are not told is without a warrant are entitled to qualified immunity where they reasonably believed it was with a warrant. Shepard v. Hallandale Beach Police Dep't, 398 Fed. Appx. 480 (11th Cir. 2010)* (unpublished).

The credibility determination of the USMJ was not based on status, but correctly noted defendant’s interest in the case as a factor. It was not clearly erroneous. United States v. Griffith, 397 Fed. Appx. 613 (11th Cir. 2010).*

In this capital case, Pennsylvania police received word in 1994 that defendant in Leavenworth Federal Penitentiary was a suspect in a 1988 Tennessee murder. Tennessee officers went there with a Kansas search warrant for defendant’s DNA, which they did not serve on him at the time as required by state rule 41, but they mailed him a copy. After getting his DNA, defendant confessed to the muder. In 1989, the state court of appeals held in an unpublished opinion (not in S.W.2d, that is) that failure to immediately serve a search warrant on an incarcerated suspect was not fatal to the search, and that case is followed. State v. Henretta, 325 S.W.3d 112 (Tenn. 2010)* (since the search warrant was issued and served in Kansas, why was not Kansas law applied?).

An officer received word from fireman that a particular vehicle was driving like the driver was drunk, and they gave the license number. The officer ran the license and it came back to defendant. The officer went to defendant’s address and found defendant asleep at the wheel in the driveway. The arrest was valid and the “stop” with reasonable suspicion. State v. Patterson, 2010 Tenn. Crim. App. LEXIS 821 (September 30, 2010).*

A stop for failing to move over for flashing lights of emergency vehicles on the shoulder supported defendant’s stop. While waiting for the DL information to come back, defendant’s story about his travel plans seemed suspicious. Then he started contradicting himself, raising more suspicion. The officer admitted that he was trained to converse with motorists while waiting for the DL check to come back to find criminal indicators. Defendant was asked about consenting to a search, which he did. There was a drug dog in the police car right behind him. The subsequent search was valid. State v. Cooper, 2009 Tenn. Crim. App. LEXIS 1085 (September 29, 2010).*

Defendant was arrested for driving without insurance, and the arrest violated state law because it was not in the “presence” of the officer. The arrest was valid under the Fourth Amendment, however, under Virginia v. Moore. The search incident of defendant’s person was valid. State v. Harker, 2010 UT 56, 240 P.3d 780, 666 Utah Adv. Rep. 11 (2010).*

Reasonable suspicion found for a dog sniff where defendant had an Arizona driver’s license but the vehicle bore Iowa plates, where: the truck was registered to a third party, neither defendant nor his passenger knew the owner’s name despite being in the middle of an extended journey from Arizona to an unknown location in Iowa, neither could identify their destination other than “Iowa,” defendant never provided evidence that he was authorized to drive the car, and defendant did not know the last name of his passenger. People v. Garcia, 251 P.3d 1152 (Colo. 2010).*

In this child pornography search, officers had a search warrant based on defendant’s computer coming up via IP address as sharing via Limewire. They came to the house in what appears to be a knock and talk and defendant consented to a search of his computer and essentially everything the state needed to know. They then presented him with a search warrant for it. State v. Tremaine, 315 S.W.3d 769 (Mo. App. 2010).*

A child told her mother that defendant had taken potentially pornographic pictures of her with a digital camera. Coupled with the fact defendant was known to be “proficient” with a computer, it was reasonable for the judge issuing the search warrant to draw the conclusion that the pictures would be on his computer, too. State v. Wild, 2010 Ohio 4751, 2010 Ohio App. LEXIS 4020 (2d Dist. October 1, 2010).*

Defendant was seen leaving a drug house in his car, and he was known to have a suspended DL. That was justification for the stop. He fled and dropped baggies of drugs in flight. State v. Mitchell, 2010 Ohio 4708, 2010 Ohio App. LEXIS 3967 (6th Dist. September 30, 2010),*

Defense counsel was not ineffective for not challenging the search of defendant’s car two years before Gant because it was valid as an inventory anyway because he was driving on a suspended DL. State v. Walker, 2010 Ohio 4695, 2010 Ohio App. LEXIS 4002 (11th Dist. September 30, 2010).*

In State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949 (2009), posted here, the Ohio Supreme Court decided 4-3 that a search incident of a cell phone was improper. Today, SCOTUS denied cert (today's orders page 73).

SCOTUSBlog here.

Where a drug dog jumps into a stopped car on his own, without direction of the officer to conduct the sniff, it is not a search, and Place governs. A few other courts have reached the issue, and they are in accord. United States v. Pierce, 09-3865 (3d Cir. October 1, 2010):

In determining that Cole’s “interior sniffs” were not a search, the District Court was persuaded by the reasoning set forth in United States v. Hutchinson, 471 F. Supp. 2d 497 (M.D. Pa. 2007), where the defendant, like Pierce, entered a conditional guilty plea and preserved the issue of the legality of a K-9 dog’s “interior sniffs,” which led to the recovery of substantial quantities of marijuana from the back seat of the van he was driving. Indeed, the District Court, Pierce, and the government agree that Hutchinson, and the cases cited in it, provide the legal framework for deciding when an interior dog sniff transforms into a “search.” (App. 14; Appellant’s Br. 12; Appellee’s Br. 15-16.) Although we affirmed in a not precedential opinion, we did not discuss this issue. United States v. Hutchinson, 316 Fed. App’x 137 (3d Cir. 2009).

We find that the district court’s decision in Hutchinson correctly applies the governing law to the facts germane to the Fourth Amendment issue. The Supreme Court has addressed the use of trained dogs to sniff for illegal drugs in various factual contexts. In United States v. Place, 462 U.S. 696 (1983), the Court applied the Terry stop-and-frisk principles to dog sniffs of luggage: “[T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.” Id. at 707.

. . .

Moving to the particular issue before us, the interior sniffs and alerts that led to the discovery of narcotics, both the Hutchinson decision and the District Court’s opinion here rejecting Pierce’s suppression arguments particularly relied on the Tenth Circuit’s reasoning in United States v. Stone that a trained narcotic dog’s instinctive action of jumping into the car does not violate the Fourth Amendment. 866 F.2d 359, 364 (10th Cir. 1989). Perforce, “instinctive” implies the dog enters the car without assistance, facilitation, or other intentional action by its handler. The Tenth Circuit recently reaffirmed Stone in United States v. Vasquez, 555 F.3d 923 (10th Cir. 2009), noting, “we have upheld the legality of such a sniff during a lawful detention when, as here, (1) the dog’s leap into the car was instinctual rather than orchestrated and (2) the officers did not ask the driver to open the point of entry such as a hatchback or a window, used by the dog.” Id. at 930 (citing Stone, 866 F.2d at 364; cf. United States v. Winningham, 140 F.3d 1328, 1330-31 (10th Cir. 1998)). The Eighth Circuit cited to Stone in its reasoning in United States v. Lyons, 486 F.3d 367 (8th Cir. 2007), where the K-9 dog under scrutiny, Capone, “stuck his head through the open passenger-side window and then sat down beside the front passenger door, his indication that he had found the strongest source of the odor of narcotics.” Id. at 370. ...

How do you disprove that the officer hadn’t permitted the dog to do it before, so the dog has already learned that he jumps in open windows? In that situation, the officer has essentially trained the dog to jump in car windows, but didn't specifically direct it in that case. Then what? All the officer has to say is that “He did it on his own.” Defense counsel will have to ask about the number of times it has happened in the past and then hope the officer is truthful.

Defendant was seen around an apartment complex, and officers knew that there was an arrest warrant for him. They had their “eye out” for him. He was seen, the officer called out to him, and he fled into an apartment. It was determined that the apartment was not his, and there was no discernable connection to him and the apartment. Officers banged on the door for him to come out, and they finally got “I’m coming,” but he didn’t come out. They were afraid he was arming himself or was destroying evidence, so they secured a ballistic shield and broke in. Defendant was found hiding inside, and a protective sweep was done. Marijuana was found in plain view 5' from defendant’s point of arrest. Nobody would consent to a search so a search warrant was obtained for the apartment. The entry was valid. United States v. Willis, 2010 U.S. Dist. LEXIS 103223 (E.D. Mich. September 29, 2010).*

Defendant’s tractor trailer seen in a truck stop was unregistered and appeared overweight. This justified a stop when the truck pulled out. The officer developed reasonable suspicion that the truck had drugs in it from various factors, including the fact the truck was off route and passed up several places to refuel to do so farther from the highway to be less noticeable. Defendant consented to a search of the trailer. United States v. Mungia, 743 F. Supp. 2d 694 (E.D. Mich. 2010).*

Defendant’s motion to suppress cellular telephone site location information produced by administrative subpoena without a showing of probable cause is moot because the government is not going to rely on the information. The government’s claims that the cell provider conducted a private search or that inevitable discovery would somehow validate it were rejected. The cell provider should not have given the information, but it did, but the government’s disclaimer of the evidence leaves defendant with only a possible civil remedy against the cell phone provider. United States v. Redd, 2010 U.S. Dist. LEXIS 103385 (D. Kan. September 29, 2010).*

Defendant’s cross examination during the suppression hearing produced his testimony that he felt “100%” free to leave when the officer handed all the paperwork back to him, started to walk away, turned around and came back and started talking again. Defendant consented to a search of the car. Defendant conceded from the beginning that the stop was lawful. State v. Salvador, 237 Ore. App. 424, 241 P.3d 324 (2010). This is reminiscent of Kentucky v. Rawlings where the defendant admitted he had no reasonable expectation of privacy in the drugs he stuck in a woman's purse. No matter how much one prepares a client for a suppression hearing, clients will often hang themselves on standing or the merits of the search. Here, it was necessary to put the client on to at least raise a fact question that he did not feel free to leave, and then he gave the wrong answer.

Defendant did not preserve the claim that an adversary proceeding is a prerequisite to surgical removal of a bullet from his arm. The warrant here was otherwise valid. State v. Everett, 237 Ore. App. 556, 240 P.3d 102 (2010).

The vehicle occupants’ false answers extended the stop, not the officer, so the extension of the stop and the “exit order” were with reasonable suspicion. Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 934 N.E.2d 837 (2010).*

Officers had developed information that there was a grow house, and they staked it out. From the fenced backyard came a truck and trailer, which they stopped with reasonable suspicion. A drug dog alerted, and 900 lbs of marijuana was found. A search warrant for the premises was based on probable cause and was not based in part on stale information, not to mention the truck just stopped. Prado v. State, 306 Ga. App. 240, 701 S.E.2d 871 (2010).*

The search of defendant’s car was valid under the inventory policy the government put into evidence. The court could not conclude that the search was a pretext for a criminal search. United States v. Astorga, 2010 U.S. Dist. LEXIS 102421 (D. Utah September 28, 2010).*

Officers had qualified immunity for executing a facially valid arrest warrant, despite plaintiff’s truthful assertions that the warrant had been quashed in court the previous day. The information just had not made it to the computer yet. Ochser v. Funk, 225 Ariz. 484, 240 P.3d 1246 (App. 2010).*

Defendant was notorious to the University of Louisville Art Library staff and patrons for using the public terminals to view pornography, likely child pornography. They were on the look out. When he showed up and signed in on a terminal, the staff could see pornography, and they called university police. The officer came to defendant, who minimized the image so nobody could see what he was looking at. The officer asked him to come outside so they could talk, and defendant came out. The officer asked about child pornography, and defendant "freely" admitted looking at it and having it on a thumb drive with him. He was arrested. There was probable cause for the arrest. The officer came to the computer and opened the screen seeing child pornography. Defendant had no reasonable expectation of privacy in a library public use computer terminal. He consented to a search of his apartment, that computer, and the thumb drive. United States v. LaPradd, 2010 U.S. Dist. LEXIS 102355 (W.D. Ky. September 28, 2010):

LaPradd did not have a subjective expectation of privacy using the public computers at the Art Library. The computers are located in the lobby of the library and in plain view of the patrons and staff. Indeed, that other patrons saw LaPradd viewing pornographic images indicates just how little privacy is afforded those who use the Art Library's public computers. Additionally, access to the computers appears to be granted at the library staff's discretion, illustrating that LaPradd had ultimately no control over whether he could use the computer, and consequently could not have expected any privacy as to his computer-related activities. Finally, the internet sites to which the computer terminal was connected did not contain personal information relevant to LaPradd, such as an email account; instead they were generally accessible to all with a computer and the internet, and therefore LaPradd had no expectation of privacy in viewing those particular sites.

Courts around the country have also been reluctant to extend broad Fourth Amendment search protections to computers and computer-generated information located on a computer outside of one's residence or place of work. ...

[Posted 10/3; I got busy yesterday]

Defendant had standing to challenge the entry into the apartment he was in in a housing project. He was the father of the tenant’s three children, although the record is not clear whether they were married in Cuba in 1995 or not. Nevertheless, he regularly watched their children when she was at work, and he could come and go as he pleased. The government's reliance on Minnesota v. Carter, the drug manufacturing case, is clearly misplaced. The court finds, however, that his girlfriend consented to the entry of the police. She was not credible at all on what happened, and she clearly exaggerated facts. United States v. Romero-Leon, 2010 U.S. Dist. LEXIS 101760 (D. N.M. April 19, 2010)*:

While there is no case law specifically on point, the Court finds that Defendant's relationship with Virgen Garcia and the children combined with his regular visits to their home give Defendant a reasonable expectation of privacy in the Princess Jeanne residence. Ms. Garcia and the children clearly considered Defendant a part of their family. The evidence shows that Defendant spent a significant number of his waking hours at the Princess Jeanne address—often without Ms. Garcia present. In addition, Ms. Garcia had given Defendant a key to the home so that he could come and go freely. Taken together, all these facts suggest that Defendant subjectively treated the house as his own, even though he did not permanently reside there. Furthermore, given his familial relationship with Ms. Garcia and the children, the Court finds that Defendant's expectation was objectively reasonable.

“[T]he warrant did authorize the seizure of ‘documents relating to the illegal trafficking of firearms and ammunition.’” Documents relating to defendant’s occupancy of the premises could be seized under the warrant. United States v. Victor, 394 Fed. Appx. 747 (2d Cir. 2010).*

Defendant flew into Liberal, KS from Las Cruces, NM without a flight plan with a plane rented in CT. The FAA was mildly suspicious of the flight, since a plane with cocaine had come in six months earlier. The pilot left the plane with the FBO's aircraft service and asked that it be put in a hanger for the night. He paid for the hanger rental in cash, which was unusual. The police were called and came and a dog sniff was done on the plane, with the dog alerting. The police considered calling a locksmith but the hanger operator had a bucket of loose keys, and one opened the plane. Inside was a locked suitcase which was opened, containing about 28 kilos of cocaine. The government showed that the dog was well-trained, and there were no true false alerts, and the defendant did not rebut it. Defendant had no reasonable expectation of privacy in the hanger. Before the trip, the defendant wrote to his landlord in CT saying he unexpectedly moved to AZ, and he was not coming back to the property, and the landlord could keep the furniture but save the clothing, electronics, and papers. The locks had been changed, and the landlord had to have the locks drilled out to get in. Inside, the landlord found cash and called the police. A further search found cocaine. Defendant had no reasonable expectation of privacy in the house because he told the landlord he abandoned it. United States v. Ruiz, 2010 U.S. Dist. LEXIS 102088 (D. Kan. September 17, 2010).

During defendant’s valid traffic stop, instead of looking for his paperwork for the car, he stared straight ahead. “Rather than attempt to avoid a traffic citation by locating those documents, Defendant remained still and his gaze remained straight ahead. When asked again to locate the registration and insurance information, this time with the suggestion that he look in the vehicle's glove compartment, Defendant's nervousness visibly escalated. These behaviors gave rise to increased suspicion by the officers, who now suspected that illegal drugs or a firearm was in the car's glove compartment.” United States v. Smith, 2010 U.S. Dist. LEXIS 101121 (S.D. W.Va. September 21, 2010).*

Defendant was stopped for overtinted windows, and he made furtive movements before getting out of the car. That justified a frisk of the car for a weapon. United States v. Boyd, 2010 U.S. Dist. LEXIS 101233 (W.D. Mo. August 27, 2010).*

Defendant’s car search may not have been valid under Gant, but it was valid as an inventory, and the officer testified for two pages about the department inventory policy. United States v. Rollins, 2010 U.S. Dist. LEXIS 101952 (E.D. Ky. September 27, 2010).*

A shots fired call brought the police to defendant’s house, and witnesses said the shooter was inside. That was a sufficient exigent circumstance for an entry and a protective sweep. State v. Thomas, 2010 Ohio 4627, 2010 Ohio App. LEXIS 3915 (5th Dist. September 24, 2010).*

“Enactment of a statute that permits self-help repossession does not amount to the significant state involvement necessary for the Fourth and Fourteenth Amendments to apply.” Ford Motor Credit Co. v. Ryan, 2010 Ohio 4601, 189 Ohio App. 3d 560, 939 N.E.2d 891 (10th Dist. 2010).*

Defendant who was under constructive arrest in the hospital after a DWI accident was subject to a taking of his blood, and it was reasonable in this case. State v. May, 2010 Ohio 4594, 2010 Ohio App. LEXIS 3879 (5th Dist. September 24, 2010).*

The fact defendant seemed nervous when two detectives walk into a bar and announce themselves is not reasonable suspicion for a patdown. There were no facts justifying a patdown. State v. Gilmer, 2010 Ohio 4631, 2010 Ohio App. LEXIS 3905 (5th Dist. September 27, 2010).*

Defendant’s attempting to go the wrong way out of a gated community was not a violation of any traffic law, so her stop was without reasonable suspicion. State v. James, 2010 Ohio 4556, 2010 Ohio App. LEXIS 3870 (11th Dist. September 24, 2010).*

Defendant was stopped for not using a signal as he left a known drug house. The officer saw cocaine in plain view. State v. Davis, 2010 Ohio 4636, 2010 Ohio App. LEXIS 3908 (9th Dist. September 29, 2010).*