Archives for: November 2010


Permalink 07:46:09 am, by fourth, 213 words, 2992 views   English (US)
Categories: General

E.D.Mich.: Defendant's running a “large scale” drug trafficking operation is nexus to his home

Search warrant affidavit’s allegation that defendant ran a “large scale” drug trafficking operation is nexus to defendant’s home. United States v. Murrey, 2010 U.S. Dist. LEXIS 125121 (E.D. Mich. September 24, 2010):

Here, SA Brouillard’s affidavit in support of the search warrant for evidence of narcotics trafficking stated that, based on his training and experience, “[i]t is common for drug traffickers to conceal drug records, drug proceeds ... within their residences.” This statement, coupled with SA Brouillard’s detailed allegations linking Murrey to a large-scale cocaine distribution operation and attempts to injure law enforcement on December 2, 2008, established a sufficient nexus for the search of his residence. See also United States v. Gunter, 551 F.3d 472 (6th Cir. 2009) (where the search warrant affidavit shows that the resident had made repeated purchases of one or more kilograms of cocaine, it was reasonable to infer there would be evidence of drug trafficking in his home). As such, Murrey’s motion to be suppress should also be denied for this reason.

This vehicle was unlicensed, and a policy to tow unlicensed vehicles is reasonable. The fact a pill bottle was not listed under the inventory does not make it invalid if it was listed as evidence seized. State v. Wotring, 2010 Ohio 5797, 2010 Ohio App. LEXIS 4881 (11th Dist. November 24, 2010).*


Permalink 11:20:19 pm, by fourth, 135 words, 3749 views   English (US)
Categories: General

ABAJ: "Airport Body Scanners May Violate Alito’s ‘Minimally Intrusive’ Test"

Posted today on the ABAJournal website: Airport Body Scanners May Violate Alito’s ‘Minimally Intrusive’ Test linking to a piece in the Washington Post. As a Third Circuit Judge, Justice Alito looked at the issue of body scanners.

Justice Samuel A. Alito Jr. evaluated airport screening procedures when he was a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, according to George Washington University law professor Jeffrey Rosen. In an opinion column in the Washington Post, Rosen asserts that the full body scanners now being used at airports would fail Alito’s Fourth Amendment test, set out in a 2006 opinion.

Alito upheld searches using magnetometers and hand-held wands, saying the screening was “minimally intrusive” and “effective.” But Rosen doesn’t think that test would be satisfied by the methods being used now. ...

Permalink 07:32:21 am, by fourth, 245 words, 2796 views   English (US)
Categories: General

OR: Defendant could not have felt free to leave and was stopped without reasonable suspicion

The trial court [recognized the realities and] found that defendant would not reasonably feel free to leave after he was stopped and was talking to the officer who asked him what he had on him and called for backup, and back up arrived. The motion to suppress should have been granted because there was no reasonable suspicion for the detention. State v. Levias, 239 Ore. App. 116, 243 P.3d 880 (2009)*:

On appeal, defendant asserts that, considering the circumstances (including the hour of the day, the flashing overhead lights, the officer's call for backup, the high-crime location, and the direct questioning of defendant about criminal activity), defendant was stopped when Murphy asked him for consent to search. At that point, defendant contends, defendant reasonably believed that, in light of the circumstances, he was under investigation for criminal activity and therefore was not free to leave. In the state’s view, no stop occurred; rather, Murphy engaged defendant in mere conversation, and defendant subsequently voluntarily consented to the search of his person.

Officers were patrolling around a “low-end motel” known for drugs and prostitution where several arrests had been made. Defendant drove into the parking lot and ultimately got stopped and was handcuffed because it was a “high crime area.” The officers had a probable stolen vehicle in the parking lot, but there were no facts to link defendant to the vehicle nor to any crime. His stop was unreasonable. State v. Clack, 2010 Ohio 5747, 2010 Ohio App. LEXIS 4834 (2d Dist. November 24, 2010).*

Permalink 07:16:45 am, by fourth, 330 words, 2907 views   English (US)
Categories: General

NH: Stop to check on a car on a highway parking spot was without justification and unreasonable

Defendant’s stop in a “pull off area” along a New Hampshire highway in the winter was without justification. The officer parked and walked up and found two men smoking marijuana. This case was decided under the state constitution. State v. Boutin, 161 N.H. 139, 13 A.3d 334 (2010):

In this case, the officer testified that he approached Boutin’s vehicle, “[j]ust to see if everything -- if anything was wrong, make sure everything was okay.” He testified that he could not tell if there was an accident, if the vehicle was abandoned or if any occupants may have needed assistance or had health concerns. He also observed that Boutin’s vehicle was pulled off to the side of the road, but facing the wrong way. As in Boyle, while the officer may have had generalized concerns about the vehicle and its potential occupants, he did not describe any specific and articulable facts that justified the intrusion of Boutin’s protected interests. Boutin’s car was parked legally in a pull-off area and the officer did not observe any obvious signs of an accident, that the car was disabled, or that the passengers were in any type of distress. See State v. Burgess, 657 A.2d 202, 204 (Vt. 1995). In short, the officer’s concerns amounted to little more than a hunch. While the officer testified that he was concerned in part because it was dark and snow covered the ground, “[w]inters are traditionally long in [New Hampshire], and we cannot adhere to a theory that essentially renders [Part I, Article 19] protections seasonal.” Id.

Defendant’s traffic stop led to the officer smelling marijuana in the car. That was probable cause for a search, and Gant did not apply. State v. Dickerson, 2010 Ohio 5787, 2010 Ohio App. LEXIS 4869 (8th Dist. November 24, 2010).*

Trial court’s lack of findings of fact and conclusions of law makes it impossible for the court of criminal appeals to decide the suppression issues. Remanded. State v. Norton, 2010 Tenn. Crim. App. LEXIS 1001 (November 24, 2010).*

Permalink 01:02:02 am, by fourth, 829 words, 3068 views   English (US)
Categories: General

E.D.Tenn.: Forced medical removal of 10g crack from rectum was reasonable where defendant was medically paralyzed for the procedure

Defendant was arrested with probable cause and jailed. During the strip search, jailers saw string protruding from his rectum. They sought consent to remove it, which he refused. A forced digital rectal exam (“DRE”) didn’t work because defendant’s tight muscles did not permit entry. He was taken to a hospital for an examination and given drugs to make his sphincter relax. When that did not work, he was given a drug to paralyze him for 30 minutes. “Balancing these three factors [from Winston v. Lee], the Court finds that the DRE was a reasonable procedure under the circumstances and was reasonably employed, particularly given the risk to the Defendant from the drugs in his rectum for which there was a clear indication were there [Schmerber v. California] and the Defendant’s actions hindering their removal. Accordingly, the Court finds that the search in question did not violate the Defendant’s Fourth Amendment rights.” He had 10.2g of crack in him. United States v. Booker, 2010 U.S. Dist. LEXIS 124839 (E.D. Tenn. September 29, 2010), adopted United States v. Booker, 2010 U.S. Dist. LEXIS 124874 (E.D. Tenn. November 24, 2010):

After waiting “ten to fifteen minutes for the medicine to take full effect,” LaPaglia again attempted to perform a DRE. [Tr. 131]. This time, LaPaglia was able to feel a foreign object inside the Defendant’s rectum with the tip of his finger. [Tr. 131]. However, the Defendant was still non-cooperative, and LaPaglia was unable to complete the DRE and remove the foreign object. LaPaglia told the Defendant that his continued failure to cooperate required the administration of a combination of medications that would temporarily paralyze every muscle in his body. LaPaglia also told the Defendant that he would be rendered unconscious and intubated to allow for a complete DRE.

LaPaglia intravenously administered 20 milligrams of etomidate, a sedative, and 125 milligrams of succinylcholine, a paralytic agent, to the Defendant. [Tr. 142]; [Tr. 155 (Jones testified that intravenous therapy was established at 3:35 p.m.)]; [Exhibit 7]. At approximately 4:12 p.m., the Defendant was intubated. [Tr. 62, 156]; [Exhibit 7]. Once the Defendant was unconscious and completely paralyzed, LaPaglia performed a DRE and removed a rock of crack cocaine weighing 10.2 grams from the Defendant’s rectum. [Tr. 27]. Shortly after the rock was removed, Steakley placed it in an evidence bag and left the emergency room. [Tr. 27, 144-45]. The Defendant was intubated for approximately one hour total, during which time he was unconscious for 20 to 30 minutes and completely paralyzed for 7 to 8 minutes. [Tr. 143, 156]. At approximately 6:40 p.m., the Defendant’s intravenous therapy was discontinued. [Tr. 155]; [Exhibit 7]. The Defendant was subsequently discharged from the emergency room into Shelton’s custody. See [Tr. 125 (Shelton testified that he was told he could leave the hospital with the Defendant at 6:25 p.m., and that he arrived with the Defendant back at the Detention Facility at 6:59 p.m.); [Exhibit 7] (showing the Defendant’s departure time as 6:42 p.m.)].

The search was valid under Winston v. Lee because of the risk associated with any inmate in jail having drugs hidden in his body because of the potential for overdose.

In the event that the District Court finds that Dr. LaPaglia was acting at the officers’ direction and was, therefore, a government agent, the Court will briefly conduct an alternative analysis of whether the DRE was reasonable under the circumstances and was conducted in a reasonable manner. In Schmerber, the Court balanced three factors to determine whether the search was reasonable: “(1) ‘the extent to which the procedure may threaten the safety or health of the individual’; (2) ‘the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity’; and (3) ‘the community’s interest in fairly and accurately determining guilt or innocence.’” United States v. Husband, 312 F.3d 247, 253 (7th Cir. 2002) (quoting Winston v. Lee, 470 U.S. 753, 761-62 (1985) (analyzing the reasonableness of surgery to remove a bullet from the defendant’s chest under the Schmerber factors)).

Also, the doctor helpfully testified that he was acting on his own accord as a medical professional concerned about defendant overdosing, and not at the direction of the officers. The court also thus held that the doctor was a private actor.

Dr. LaPaglia further explained that he conducted a DRE of the Defendant because he was concerned that the Defendant was in danger—not because he intended to assist the police with their investigation. See [Tr. 148 (“The background information that I was given by the officers was that they suspected [the Defendant] had drugs in his rectum. That gave me suspicion enough to think that he was in danger.”)]; [Tr. 143 (stating that after the second attempt at performing a DRE, “I was very certain that [the Defendant] had an object [inside of him] and whether it’s a drug or an object, it needs to come out of the rectum.”)]. Based upon this testimony, the Court concludes that the DRE in this case was not a search within the scope of the Fourth Amendment’s protections because it was conducted by a private actor.

Permalink 12:28:17 am, by fourth, 468 words, 3476 views   English (US)
Categories: General

WV adopts community caretaking doctrine

WV adopts the community caretaking doctrine. Here, the officer encountered a car parked in front of a gate to a dirt road with the flashers on and the engine off. It was reasonable to try to locate the driver. This case arose in the context of a driver’s license suspension proceeding. Ullom v. Miller, 227 W. Va. 1, 705 S.E.2d 111 (2010):

We now believe it is appropriate to join the majority of jurisdictions who recognize the community caretaker doctrine, formally recognizing the expectation in West Virginia that the role of law enforcement personnel is not limited to merely the detection and prevention of criminal activity, but also encompasses a non-investigatory, non-criminal role of police officers to help to ensure the safety and welfare of our citizens. In recognizing this doctrine, however, we are mindful of the important protections of the Fourth Amendment and Article III, Section 6, relating to searches and seizures. In order to balance the caretaking role of police officers with the fundamental protections against unreasonable searches and seizures found in the United States Constitution and the Constitution of West Virginia, we believe it necessary to establish specific requirements for applicability of the community caretaker exception to ensure that the privacy expectations of West Virginia’s citizens are balanced with the immediate safety and welfare needs of motorists or the public in situations where the immediate safety and welfare of citizens is reasonably at issue.

No single set of specific requirements for applicability of the community caretaker exception has been adopted by a majority of those states recognizing the exception. Based upon our review of the requirements established in other states, we believe that the requirements recently adopted by the Supreme Court of South Dakota in State v. Deneui, 2009 SD 99, 775 N.W.2d 221 (S.D. 2009), cert. denied, __ U.S. ___, 130 S. Ct. 2072, 176 L. Ed. 2d 422 (2010), with modification, provide appropriate direction as we endeavor to best satisfy the reasonableness requirements of the Fourth Amendment and Article III, Section 6, and effect a necessary balance between the privacy expectations of West Virginia citizens and the need for police officers to properly execute their community caretaking duties. Accordingly, after due consideration, we now hold that, for an encounter to come within the community caretaker doctrine exception to the warrant requirement, the State must establish the following:

1. Given the totality of the circumstances, a reasonable and prudent police officer would have perceived a need to promptly act in the proper discharge of his or her community caretaker duties;

2. Community caretaking must be the objectively reasonable, independent and substantial justification for the intrusion;

3. The police officer’s action must be apart from the intent to arrest, or the detection, investigation, or acquisition of criminal evidence; and

4. The police officer must be able to articulate specific facts that, taken with rational inferences, reasonably warrant the intrusion.

Permalink 12:10:04 am, by fourth, 282 words, 2921 views   English (US)
Categories: General

FL2: One person who provided drugs from another was not acting as agent of police when asked for them; officers did not know about the other when asking

When the officer asked C.C. for the marijuana he had, the officer did not know that it was in C.D.M.’s possession. Thus, C.C. was not enlisted as an agent of the police. State v. C.D.M., 50 So. 3d 659 (Fla. App. 2d DCA 2010):

Finally, the fact that C.C. testified that he felt obligated to cooperate with Deputy Vinson did not transform him into an agent of the police. In Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the Supreme Court held that, even though a witness may have felt obliged to cooperate, “it is no[t] part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” In holding that the witness was not acting as an agent of the police in that case, even though she may have felt obliged to cooperate, the Court stated that the evidence could only be excluded if “some type of unconstitutional police conduct occurred.” Id. We conclude that Deputy Vinson’s conduct in asking C.C. if he was “willing to voluntarily give” up the marijuana was proper and in no way coercive. See State v. Martissa, 18 So. 3d 49, 52 (Fla. 2d DCA 2009) (“During a traffic stop an officer may ask if a person is in possession of a weapon or drugs.”).

Defendant was on probation with a search condition, so the search of his place was valid. Brown v. State, 307 Ga. App. 99, 704 S.E.2d 227 (2010).*

Defendant’s patdown was justified by a stop based on reasonable suspicion from a radio broadcast of a fellow officer. Thomas v. State, 8 A.3d 1195 (Del. 2010).*

Permalink 12:01:00 am, by fourth, 424 words, 897 views   English (US)
Categories: General

IA: Mistake of law for stop voids search

Officer’s mistake of law denies the state application of a “good faith exception” to a warrantless stop and seizure. The court declines to follow its own federal circuit because that case law is now undercut and other circuits do not agree. State v. Louwrens, 792 N.W.2d 649 (Iowa 2010):

This case, however, presents a different question: May an officer's mistake of law provide probable cause to authorize a traffic stop? We mentioned, but did not decide this question in Lloyd. 701 N.W.2d at 680 n.1. A majority of courts that have considered the issue have concluded a mistake of law cannot provide probable cause to justify a traffic stop. See United States v. McDonald, 453 F.3d 958, 962 (7th Cir. 2006); United States v. DeGasso, 369 F.3d 1139, 1144-45 (10th Cir. 2004); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003); United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000); United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998).

The State, however, urges us to adopt the minority view held by the Eighth Circuit Court of Appeals. That court has concluded “the legal determination of whether probable cause or reasonable suspicion existed for [a] stop is judged by whether the mistake of law was an 'objectively reasonable one.' “ United States v. Washington, 455 F.3d 824, 827 (8th Cir. 2006) (quoting United States v. Smart, 393 F.3d 767, 770 (8th Cir. 2005)).

However, our review of the development of the Eighth Circuit's position does not convince us to follow suit. In Smart, a case in which the officer “made neither a mistake of law nor one of fact,” the Eighth Circuit stated that “in our circuit the distinction between a mistake of law and a mistake of fact is irrelevant to the fourth amendment inquiry.” 393 F.3d at 769, 770 (citing United States v. Sanders, 196 F.3d 910 (8th Cir. 1999)). However, Sanders, the case cited by the court for this proposition, was not analyzed as a “mistake” case and did not discuss the distinction between a mistake of law and mistake of fact for Fourth Amendment purposes. See Sanders, 196 F.3d at 912-13. It was not until later that year that the Eighth Circuit applied the principle announced in Smart in a case actually involving a mistake of law. United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005). It did so without any discussion of the competing view that a mistake of law cannot provide probable cause to justify a traffic stop. In a subsequent decision, the court acknowledged the development of a different rule in other circuits, but did not discuss the rationale supporting that rule. Washington, 455 F.3d at 827 n.1.


Permalink 12:57:53 am, by fourth, 322 words, 568 views   English (US)
Categories: General

CO: DUI generally is serious enough offense to justify an exigent circumstance entry, but state has to show defendant would have been tested

DUI is a sufficiently grave offense that a warrantless entry might be justified. Here, however, it was not because the state could not show that defendant would consent to a taking of his breath or blood to test it. People v. Wehmas, 246 P.3d 642 (Colo. 2010):

Consistent with Welsh [v. Wisconsin], [Illinois v.] McArthur, and Mendez, we conclude that DUI is a sufficiently grave offense to potentially justify a warrantless home entry. In light of McArthur v. Illinois, it was legal error for the county court and district court to conclude otherwise.

As those cases suggest, however, this is not the end of the inquiry. Simply concluding that an underlying offense is grave does not create sufficiently exigent circumstances to justify warrantless entry. See Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (Pa. 1978) (finding warrantless home arrest for murder invalid after balancing the relevant factors and finding insufficient exigent circumstances, cited in Welsh, 466 U.S. at 752). We must proceed to review the circumstances surrounding the warrantless entry into Wehmas's apartment.

. . .

In this case, even before we reach the factors unique to the destruction of evidence, the circumstances suggest that the prosecution has failed to show sufficiently exigent circumstances to justify a warrantless entry. Although there was probable cause that a grave offense had been committed and it was likely that Wehmas was in the apartment, there was no evidence or objectively reasonable belief that he was armed or that he would escape if he was not quickly apprehended. There was also no evidence that obtaining a warrant was problematic because it was late at night; instead, the night-time entry weighs against considering the officers’ actions to be reasonable under the circumstances because of the highly intrusive nature of making the entry. The alleged offense had ended, no weapons were involved, and the defendant had not reemerged from his apartment. Moreover, the prosecution already had evidence of Wehmas’s intoxication based on reports from two eyewitnesses.

Permalink 12:30:24 am, by fourth, 166 words, 480 views   English (US)
Categories: General

LA2: Photograph of place to be searched with address was particular

A photograph of the place to be searched was attached to search warrant which provided the location, and that left no discretion as to the place to be searched. Therefore, the warrant was particular enough. State v. Morrison, 55 So. 3d 856 (La. App. 2d Cir. 2010).*

Defendant who did not let the police into his house in a knock and talk was not seized. He was informed of his options and chose to consent. City of Sheboygan v. Cesar, 2010 WI App 170, 330 Wis. 2d 760, 796 N.W.2d 429 (2010).*

The record supported the finding that defendant’s consent to search his person in a bar was voluntary. Two others had been arrested and were in handcuffs and officers told everybody to stay where they were. Still, it was voluntary. State v. Moran-Soto, 244 P.3d 1261 (Ida. App. November 22, 2010).*

The radio report of a specific battered multicolored vehicle being involved in a shooting justified defendant’s stop. [What were the odds?] United States v. Blair, 2010 U.S. Dist. LEXIS 124861 (W.D. Mo. November 9, 2010).*

Permalink 12:18:34 am, by fourth, 177 words, 539 views   English (US)
Categories: General

Cal.3d: Abandoned cigarette butt could be seized and DNA matched to a murder

Defendant was a suspect in a cold case murder from 1991. After DNA of someone other than the victim was recovered from the crime scene evidence in 2006, the police had renewed interest in him, and they followed him, picking up a discarded cigarette butt from the sidewalk. Seizure of the cigarette butt was valid and did not violate the Fourth Amendment because it was abandoned property. People v. Gallego, 190 Cal. App. 4th 388, 117 Cal. Rptr. 3d 907 (3d Dist. 2010).

Defense counsel was hardly ineffective for not challenging the police recovery of an abandoned video tape of defendant engaged in sex with a minor. Defendant moved out of an apartment and left it behind. His former roommate found it, confronted defendant with its contents, and then turned it over to the police who found the minor and confirmed the events. United States v. Meyer, 2010 U.S. Dist. LEXIS 124344 (W.D. Ark. October 15, 2010).*

Defendant’s motion to suppress was properly granted because Gant did not apply; the automobile exception did. United States v. Arriaza, 2010 U.S. App. LEXIS 24207 (4th Cir. November 24, 2010) (unpublished).*

Permalink 12:04:25 am, by fourth, 263 words, 434 views   English (US)
Categories: General

D.Minn.: Person who answers knock and the door and says the person the police are looking for is not in is showing sufficient familiarity with the premises to likely consent

The person who answers the door and says that the person the police is looking for is not there is showing familiarity with the residence, and here it was enough to show apparent authority to let the police in to look for the person. United States v. Tyvarus, 2010 U.S. Dist. LEXIS 123814 (D. Minn. November 22, 2010)*:

Without asking for permission or consulting anyone else in the residence, the woman agreed to allow the officers to search for Waldrop. The woman exercised the prerogative to admit strangers into the residence without giving the officers any reason to doubt her authority to invite them into the residence. On this record, the Court adopts the magistrate judge’s finding that “the woman acted with authority and familiarity at the door such that it was reasonable for the officers to rely on her authority to consent.” ...

The description given of the bank robbery was sufficiently specific that it supported defendant’s stop because he matched that description. Defendant’s cases are distinguished because they involved more vague descriptions than this one. United States v. Washington, 2010 U.S. Dist. LEXIS 124674 (D. Minn. November 24, 2010), adopting United States v. Washington, 2010 U.S. Dist. LEXIS 124807 (D. Minn. August 24, 2010).*

A sensor placed by the Border Patrol picked up two vehicles traveling on a lonely road known for smuggling. Officers saw the vehicles and they did not stop at any of the houses along the road. The vehicles had out of state plates and the officers then had reasonable suspicion for a stop. United States v. Milligan, 2010 U.S. Dist. LEXIS 124341 (D. Ariz. November 19, 2010).*


Permalink 05:08:23 pm, by fourth, 154 words, 398 views   English (US)
Categories: General

Note re this week's cases

It would seem this week that courts decided more search and seizure cases than any one week I remember. And this week had only three days. It took seven hours today to get caught up, and the cases are already on the website but spread out through Monday. Surprisingly, Lexis sent many cases yesterday and today, but I assume there may be none received Sunday and Monday because of the long weekend.

The page setup of this website would make too many go over to a second page and out of sight, so they are posted for Sunday and Monday. They will appear between 12 and 1 am Eastern Time.

And, there are some really interesting cases already in there involving abandoned DNA (not a search), DUI being exigency for an entry into the home, and medically paralyzing a suspect to conduct a digital rectal examination. If you need one of these now, let me know.

Permalink 04:50:27 pm, by fourth, 607 words, 599 views   English (US)
Categories: General

CA10: A person can live in two places at once for Payton/Steagald purposes

It is possible for somebody to have two residences, and then the court must decide whether Payton or Steagald applies if a third party is involved. Here, the officers had a reasonable belief defendant would be found in the place they entered under Steagald. United States v. Thompson, 402 Fed. Appx. 378 (10th Cir. 2010) (unpublished):

The Payton/Steagald distinction does not lend itself to resolving the situation where a suspect lives in more than one dwelling. Here, for example, the officers had information suggesting that, on the one hand, Thompson lived at 2213 N. Kelham and, on the other, that he lived at 4619 Creek Court. Can officers reasonably believe that a suspect lives at two or more places? The language in Payton suggests the answer is yes. Justice Stevens, writing on behalf of the Court, stated that, “an arrest warrant founded on probable cause carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (emphasis added). The use of the indefinite article “a” before “dwelling” suggests the “dwelling” need not be a specific dwelling. See Bryan A. Garner, Garner’s Modern American Usage (3rd ed. 2009) (“Each of these [indefinite articles] points to a non-specific object, thing, or person that is not distinguished from the other members of a class.”) The members of this class — as suggested by the language in Payton — would be the various dwellings in which the suspect lives. Had the Court contemplated a particular dwelling, that is, had the Court limited the reach of its rule to one dwelling per suspect, then it would have used the definite article “the,” which refers to a particular thing, in this case, a particular dwelling. See id. Given the Court’s choice of the indefinite article in writing “a dwelling,” the Court must have contemplated that a suspect can live in more than one dwelling. See also, e.g., United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996) (“We have found no authority to support [the defendant’s] implicit assumption that a person can have only one residence for Fourth Amendment purposes.”).

We conclude, then, that Payton does not void as “unreasonable” an officer’s belief that a suspect lives in a given dwelling merely because that suspect also “lives” in another. Here, although police may have reasonably believed Thompson lived at 2213 N. Kelham, it was also reasonable for them to believe he lived at 4619 Creek Court. This point is underscored by this court’s gloss on Payton. In Valdez v. McPheters, we stated that “[t]he rule announced in Payton is applicable so long as the suspect ‘possesses common authority over, or some other significant relationship to,’ the residence entered by police.” Valdez v. McPheters, 172 F.3d 1220, 1225 (10th Cir. 1999) (quoting United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996)). We acknowledge the term “significant relationship” lacks ideal utility. At what point, for example, does a suspect’s relationship with a residence become “significant” such that he or she can be said to be living there? This question could flummox law enforcement. We trust, however, that law enforcement will take the plain meaning of the word “significant” — important, notable — and not abuse this admittedly permissive standard. Whether they do so, unfortunately, we must address on a case-by-case basis. In any event, given the totality of the information the officers had in this case, we find that the officers reasonably believed Thompson had a “significant relationship” with the 4619 Creek Court address. Accordingly, under this analysis the officers did not require a search warrant to enter that residence.

Permalink 04:29:18 pm, by fourth, 262 words, 419 views   English (US)
Categories: General

KS: Detention for no apparent reason that produces arrest warrant is not suppressed; warrant intervening circumstance

Defendant was stopped for no apparent reason and his ID was checked, finding a warrant for his arrest. Under established precedent, the warrant was an intervening circumstance justifying the further detention. State v. Moralez, 44 Kan. App. 2d 1078, 242 P.3d 223 (2010) (over a strong dissent):

In summary, we find the facts herein to be difficult to distinguish from the facts of Martin in any meaningful way. In both cases, the officers encountered a citizen with no suspicion of criminal activity. In both cases, the citizen was presumably unlawfully detained for a brief period of time. In both cases, there was nothing to suggest that the officers' ultimate goal in contacting the citizen was to search the person for drugs. In both cases the officers requested the citizen's identification and for no apparent reason decided to run a warrant check. In both cases, the officers detained the citizen until the warrant check was completed. In both cases, the officers discovered an outstanding arrest warrant and searched the citizen incident to the arrest which led to the seizure of evidence of a crime.

In Martin, the court held that the officers' discovery of the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention so as to permit the admission of the evidence. 285 Kan. at 1005. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. ... Based on Jones and Martin, we conclude the district court did not err by denying the motion to suppress the evidence.

Permalink 12:52:33 pm, by fourth, 267 words, 443 views   English (US)
Categories: General

CA3: Just because a householder does not come to the door is not an exigent circumstance

The community caretaking doctrine could not justify a warrantless entry into the plaintiff’s home. The plaintiff had his kids, and his ex had come to the door to pick them up for visitation. He failed or refused to respond to the door or calls to his phone. Officers were called, and they knew of the acrimonious relationship between the plaintiff and his ex. They called for guidance and decided to enter. The entry violated the Fourth Amendment. However, the officers were entitled to qualified immunity. At the time of the officers’ actions, two circuits had arguably extended the community caretaking doctrine to warrantless entries into homes. This Circuit had addressed the issue only in a nonprecedential opinion one month prior to the officers’ actions, and it left unresolved whether a community caretaking exception might justify a warrantless search of a home. Under the circumstances, the officers were not on notice that their conduct was a clear violation of the law, and they acted reasonably in their belief that they could enter the home to check on the homeowner’s daughter. Ray v. Twp. of Warren, 626 F.3d 170 (3d Cir. 2010).*

Detaining defendant 20 minutes for a dog sniff because he was nervous and his story was unusual was unreasonable and without reasonable suspicion, so the motion to suppress is granted. United States v. Richardson, 2010 U.S. Dist. LEXIS 124076 (S.D. Tex. November 23, 2010).*

The court finds the officers’ version of the consent more credible. United States v. Kerner, 2010 U.S. Dist. LEXIS 124179 (E.D. Wis. November 23, 2010), adopting United States v. Kerner, 2010 U.S. Dist. LEXIS 124424 (E.D. Wis. October 22, 2010).*

Permalink 11:06:08 am, by fourth, 276 words, 423 views   English (US)
Categories: General

C.D.Ill.: Consent to search a tractor trailer was without limitation, and panels could be removed

The video of the stop showed that defendant understood English fluently. His consent to search was without limitation, and that meant that the officer could remove panels of the trailer his truck was pulling. United States v. Saucedo, 2010 U.S. Dist. LEXIS 123945 (C.D. Ill. November 3, 2010), adopted United States v. Saucedo, 2010 U.S. Dist. LEXIS 123898 (C.D. Ill. November 22, 2010).*

When a probationer lives with a non-probationer, some cases say that there has to be reasonable suspicion to differentiate the belongings of the two. Here, a backpack belonging to the defendant was with the probationer’s stuff, but the officers had reasonable suspicion as to it. “Officer Silvester needed more than a ‘hunch’ that the backpack was controlled by Black but less than probable cause that it belonged to her. The totality of the circumstances show that Officer Silvester had a reasonable suspicion that the backpack was controlled by Black or jointly controlled by Black and Bolivar.” United States v. Bolivar, 2010 U.S. Dist. LEXIS 123782 (D. Idaho November 20, 2010).*

For safety reasons, defendant’s mother was told to stay in the living room while a protective sweep was done of her house for defendant. This did not mean she was detained for consent to search the house, which the court found. She had apparent authority over the whole house; even his bedroom. United States v. Stovall, 2010 U.S. Dist. LEXIS 124061 (E.D. Ark. November 8, 2010).*

In a forfeiture action, a separate motion to suppress the evidence has to be filed. If it is just in the answer, it may not be dealt with. United States v. $40,000 in United States Currency, 2010 U.S. Dist. LEXIS 123807 (W.D. N.C. November 3, 2010).*

Permalink 10:46:56 am, by fourth, 365 words, 497 views   English (US)
Categories: General

N.D.Ga.: Consent to search a separate house on a family compound was not reasonable; there was a duty to inquire

Officers were on the Green family compound, and they received consent from one person to search another's home. Here, the officers were on notice that others lived in various places and it was not reasonable to get consent from one to search the dwelling of another. "Rodriguez placed some responsibility on the officer to assess the situation he faces critically." United States v. Green, 2010 U.S. Dist. LEXIS 124735 (N.D. Ga. October 6, 2010):

Rodriguez placed some responsibility on the officer to assess the situation he faces critically: “Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.” Rodriguez, 497 U.S. at 188. This duty of inquiry is triggered, for example, when the officer obtains information that is subject to differing interpretations. See United States v. Waller, 426 F.3d 838, 847 (6th Cir. 2005) (“a number of other courts have also recognized an officer’s duty to inquire in ambiguous situations”); United States v. Chun Yen Chiu, 857 F. Supp. 353, 361 (D.N.J. 1993) (“Where police officers are faced with an ambiguous situation, unless further inquiry is made which determines that the property about to be searched is subject to ‘mutual use’ by the person giving consent, it is unlawful to enter without a warrant.”).

In this case, it is undisputed that Mr. Green invited Deputy Davenport to enter his uncle’s apartment. However, it would be unreasonable for “law enforcement agents to believe in every instance that someone who invites them into a home or a room is authorized to do so.” United States v. Rosario, 962 F.2d 733, 738 (7th Cir. 1992). The Rosario court applied the “further inquiry” language from Rodriguez to suggest that, “in the absence of sufficient facts, officers have a duty to seek further information in order to determine whether they may reasonably infer that the inviter has the necessary authority to consent to an entry or search of the premises.” Id. Given the situation he faced, including his knowledge that Mr. Green did not reside in the apartment, Deputy Davenport had a duty to make further inquiry before accepting that invitation.


Permalink 03:22:57 pm, by fourth, 229 words, 789 views   English (US)
Categories: General

VA AG: School officials can search cellphone for evidence of “sexting” or “cyberbullying”

The Virginia AG issues an opinion authorizing school officials to search student belongings and cellphones on reasonable suspicion of a violation of law or a school regulation for “sexting” or “cyberbullying.” VA A.G. Op. 10-150 (November 24, 2010)*:

Accordingly, searches of a student’s belongings--including an examination of the messages found on a cell phone or laptop--are justified if, when the search is made, the teacher or principal has “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” In addition, the subsequent search must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

12 Id. at 342. See also In the Interest of Jane Doe, 887 P.2d 645 (Haw. 1994) (applying the T.L.O. framework and upholding search of a student’s purse).
13 Id; see also Safford Unified Sch. Dist. #1 v. Redding, 129 S. Ct. 2633, 2643 (2009) (finding a strip-search of student by school officials unreasonable and stating that T.L.O.’s mandate that school searches be reasonable in scope requires a specific suspicion that a student is hiding evidence of wrongdoing in his or her underwear “before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts”).

Permalink 02:38:37 pm, by fourth, 15 words, 657 views   English (US)
Categories: General

FPD Search and Seizure Outlines

Permalink 08:29:35 am, by fourth, 326 words, 391 views   English (US)
Categories: General

OH10: Flight after agreeing to talk to officers is RS

Defendant agreed to talk to the officers and then fled. That gave reasonable suspicion. State v. Banks, 2010 Ohio 5714, 2010 Ohio App. LEXIS 4809 (10th Dist. November 23, 2010)*:

[*P44] “Although ‘[a] suspect is “free to leave” a non-seizure interview, *** when he does so by abruptly bolting after having consented to talk, the officers are free to draw the natural conclusions.’” Moyer at P22, quoting State v. Holloway (Sept. 28, 2000), 10th Dist. No. 99AP-1455, 2000 Ohio App. LEXIS 4430. “Headlong flight--wherever it occurs--is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow (2000), 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L. Ed. 2d 570.

[*P45] When appellant bolted from the interview area, and even more so when he reached towards his waistband while running as the officers pursued, the officers were justified in concluding that they had before them specific and articulable facts to support a reasonable suspicion of criminal activity warranting an investigative stop.

After a controlled buy from a hotel room, officers sought a search warrant and determined that they would detain the occupants who left the room when they returned. They were stopped and taken into the room, but officers were directed not to search until the warrant was signed. When they were notified it was, the search commenced. There is no requirement that the search warrant be physically present at the time of the search. State v. Davis, 2010 Ohio 5704, 2010 Ohio App. LEXIS 4797 (5th Dist. November 15, 2010).*

The search of defendant’s car for a weapon after his traffic stop was valid based on his furtive movements, not the search incident doctrine or the automobile exception. State v. Lanier, 2010 Ohio 5765, 2010 Ohio App. LEXIS 4829 (8th Dist. November 24, 2010).*

Seizure of plaintiff’s computers under a valid search warrant and turning them over to the FBI for analysis resulting in loss of the hard drives did not state a claim against the state. Ferguson v. Ohio State Highway Patrol, 2010 Ohio 5691, 2010 Ohio Misc. LEXIS 325 (Court of Claims October 27, 2010).*

Permalink 07:20:33 am, by fourth, 347 words, 599 views   English (US)
Categories: General

DE: Passengers are subject to some scrutiny during a traffic stop

During a traffic stop, passengers are subject to some scrutiny. Asking questions of the passenger here led to finding drugs on him and in the car. Loper v. State, 8 A.3d 1169 (Del. 2010):

Loper’s first claim, that Officer Cancila exceeded the scope of the initial traffic stop by questioning Kennedy, runs as follows: Had Cancila not questioned Loper’s passenger, the police would have never discovered the PCP on Loper’s person or in his car. Because the police had no right to question Kennedy, the evidence ultimately seized as a result of searching Loper should have been suppressed. Loper’s argument fails, because he cannot show that by questioning Kennedy, the police exceeded the scope of the traffic stop or acted unreasonably under the circumstances. The United States Supreme Court has observed that during a routine traffic stop, all passengers are subject to some scrutiny.10 This Court has also held that during a routine traffic stop, the police may question a passenger about his or her identity, and that those questions are not beyond the scope of a reasonable investigation.11 Accordingly, the trial judge properly held that Officer Cancila did not exceed the permissible scope of a routine traffic stop by asking Loper’s passenger for identification and then running a background check.

10 Brendlin v. California, 551 U.S. 249, 257, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) ("[E]ven when the wrongdoing is only bad driving, [a] passenger will expect to be subject to some scrutiny. ...").

11 Mills v. State, 900 A.2d 101 (Table), 2006 WL 1027202, at *2 (Del. 2006) ("[Q]uestions concerning a suspect’s identity are a routine and accepted part [of an investigatory stop].") (quoting Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177, 186, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004)).

CI was identified and made admissions against penal interest that she smoked marijuana with the defendant at his house. That was PC for the search warrant. Lanham v. State, 937 N.E.2d 419 (Ind. App. 2010)* [I suspect that the only reason why the police went after this defendant was selling the joint for $5 to his 14 year old CI in his house.].

Permalink 07:02:07 am, by fourth, 155 words, 666 views   English (US)
Categories: General

E.D.N.C.: "Public safety" exception permitted questions leading to seizure of gun during execution of arrest warrant

Officers entered defendant’s home without a search warrant, but with an arrest warrant so the entry was permissible under Payton. Once inside, unMirandized questions were asked about the location of the gun he would have, and his admissions were valid under the “public safety exception” to Miranda. United States v. Battle, 2010 U.S. Dist. LEXIS 123448 (E.D. N.C. October 27, 2010).*

A dog alert was probable cause for a search warrant. In any event, the good faith exception would save this search. United States v. Herman, 2010 U.S. Dist. LEXIS 123947 (C.D. Ill. November 23, 2010).*

There is reasonable suspicion here based on the fact defendant had a car from a person he did not know on a 2,800 mile test drive to visit a person he could not name, he had no paperwork for the car, and he was on a road for drug couriers. United States v. Velasco-Garcia, 2010 U.S. Dist. LEXIS 124043 (S.D. Tex. November 23, 2010).*

Permalink 06:36:34 am, by fourth, 314 words, 607 views   English (US)
Categories: General

CA10: “[T]here [is] no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment”

Plaintiff claimed that IRS agents executing search warrant stole $2,000 from him between the seizure and turning it in. However, “there was no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment.” Springer v. Albin, 398 Fed. Appx. 427 (10th Cir. 2010)*:

We conclude that there was no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment. “The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was lawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), overruled in part on other grounds by Pearson, 129 S.Ct. at 818.

. . .

Furthermore, neither the Tenth Circuit nor the Supreme Court had case law on point in September 2005 establishing that a theft by federal agents of lawfully seized currency during the execution of a valid search warrant violated the Fourth Amendment. Other circuits, however, had considered a similar issue by September 2005. Those circuits split on the Fourth Amendment issue.

Three of the four cases that had addressed the failure to return lawfully seized property had held that there was no Fourth Amendment violation. In Shaul v. Cherry Valley-Springfield Central School District, 363 F.3d 177, 179 (2d Cir. 2004), a school teacher filed a § 1983 action against school officials for unreasonably searching his classroom and taking certain items. He contended that the failure to return the items was an unreasonable seizure of them. Id. at 187. Because the initial seizure was reasonable, the Second Circuit held that the defendants’ failure to return property did “not, by itself, state a separate Fourth Amendment claim of unreasonable seizure.” Id.

So, theft by an officer during a seizure is not an “unreasonable seizure”? If not, is it then “reasonable”? To just say it sounds idiotic.


Permalink 12:12:01 am, by fourth, 773 words, 596 views   English (US)
Categories: General

CA7: Milwaukee’s “winter rules” permitting city trash collectors to go on the curtilage to get trash so snowplows aren't interfered with permits valid entries on curtilage

The City of Milwaukee’s “winter rules” that allow the city trash collectors to go on the curtilage to get trash so the trash containers will not be left out to interfere with snowplow where the homeowner leaves the containers visible to the collectors creates consent to enter to get the trash. United States v. Simms, 626 F.3d 966 (7th Cir. 2010):

It appears, moreover, that the “winter rules” had the force of law, thus creating an easement to enter the defendant’s property to collect garbage. Milwaukee Code of Ordinances § 79-5(3) makes it “the responsibility of the owners and tenants of every premises where solid waste is collected to provide a clear and unhindered path to all containers. The path shall be a width specified by the commissioner and shall be free of hindrances such as, but not limited to, large debris, vehicles, locked fences, animals, ice or 3 or more inches of snow” (emphasis added).

. . .

We are not prepared to say that a place in which garbage carts or cans are kept can never be part of the curtilage. People who live in cities and have small yards prefer to leave their garbage carts in an alley, if there is one next to their house. If not, they will have to leave the carts in their yard, often in a shed at the edge of the yard; in our case the carts were left next to the segment of the driveway that is inside the fenced yard.

But the fact that the defendant's garbage carts were (we may assume) within the curtilage of his home does not conclude the constitutional analysis. For there is the ordinance, and there is a related issue of apparent consent to the search. Suppose that every Friday the defendant opened his gate, placed his garbage carts in the middle of the driveway just inside the open gate, and by these moves signaled that he wanted the garbage collectors to enter the yard, wheel the garbage carts to the street, empty them, and return them to their place in the driveway. This would show that nothing very private was going on in the yard on garbage-collection day. By leaving the gate open when winter rules were in force, without notice that the garbage collectors were not to enter—a notice they would not be bound to obey because it would violate the ordinance—the defendant allowed a reasonable person to think that nothing private was going on in his yard because he could expect the garbage collectors to enter it and wheel away the carts, consistent with the winter rules of which all homeowners were notified. That would be the natural inference from the circumstances although it is possible that the gate was open only because the snow prevented it from being shut. (But then the defendant must have opened it earlier.)

We conclude that the garbage search was lawful—that it was authorized by an appearance of consent to collect the garbage from the fenced yard under winter rules with the gate open. But there is another Fourth Amendment issue: whether the search of the defendant's car that yielded the gun that provided the basis for his mandatory 15-year sentence as an armed career criminal was permissible.

Police conducting undercover surveillance in preparation for executing the warrant to search the defendant's house saw him drive his car to his house, park it across the street, walk to another car, which had just backed into his driveway, take from the trunk of that car a package that a police officer testified was consistent with the way that he'd seen marijuana packaged before, and carry the package into his house. The police had every reason to think the package contained drugs (as indeed it did); the question is whether they had probable cause to think there was contraband or evidence of crime in the defendant's car as well. The answer is yes. They had reason to believe that he was a drug dealer and used his car in his drug business. Hence the car probably contained money, a gun, or evidence (even if just trace quantities) of illegal drugs, especially since the defendant was driving to a rendezvous with another drug dealer. Cf. United States v. Stotler, 591 F.3d 935, 939-40 (7th Cir. 2010).

Moreover, he was about to be arrested, and jailed indefinitely. His car could not be left unattended indefinitely. Eventually it would have been impounded by the police and subjected to an inventory search. The discovery of the gun was thus inevitable. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); United States v. Stotler, supra, 591 F.3d at 940.

Permalink 12:01:00 am, by fourth, 99 words, 462 views   English (US)
Categories: General

CA6: Visibly overweight and overwide truck was RS for stop

Plaintiff’s truck was properly stopped and detained with reasonable suspicion that it was overloaded and overwidth just by observation by the officer. Reid Mach. Inc. v. Lanzer, 421 Fed. Appx. 497, 2010 FED App. 0719N (6th Cir. 2010) (unpublished).*

CI’s information provided probable cause for search of defendant’s car, so Gant did not apply. United States v. Soto, 2010 U.S. Dist. LEXIS 123213 (E.D. Wis. November 19, 2010).*

As a passenger, defendant lacked standing to contest the search of the vehicle he was in. The officer was credited with the basis for the stop. United States v. Luckey, 402 Fed. Appx. 889 (5th Cir. 2010).*


Permalink 08:15:36 am, by fourth, 434 words, 522 views   English (US)
Categories: General

E.D.Cal.: Patdown by Park Ranger found box which could not be opened under the Fourth Amendment

Defendant was stopped for riding a bicycle on a roadway after dark without a light in Yosemite National Park. The officer had no reasonable suspicion that he was armed, but he asked about weapons, and defendant volunteered that he had a camping knife on him, which is normal in the Park. The officer patted him down and came upon a small hard box in his pocket that had MDMA in it. The box was not subject to “plain feel” under Dickerson and violated the Fourth Amendment. United States v. Arnold, 2010 U.S. Dist. LEXIS 122924 (E.D. Cal. November 3, 2010):

Thus, the salient question is whether, considering the totality of the circumstances in this case, it was reasonable for Ranger Jacobs to believe that the small hard box in Arnold’s pocket could constitute or contain a weapon. Mr. Arnold was stopped for bicycling at night, a crime certainly not reasonably associated with an armed and dangerous perpetrator. Nothing in the record suggests that Mr. Arnold was uncooperative or acted in a threatening manner at any time during the encounter. Ranger Mitrea stood alone with Mr. Arnold, without conducting a Terry frisk, until Ranger Jacobs responded to perform field sobriety tests. Both rangers testified that Mr. Arnold showed minimal signs of intoxication.

The only inclination that Mr. Arnold was armed was his admission that he possessed a camping knife. Ranger Jacobs testified that he believed with respect to weapons, "where there’s one, there’s more". While that may indeed be true in some cases, the facts of this case were such as to suggest the contrary. Possessing a camping knife in a National Park is so common that it cannot in and of itself suggest the likelihood of additional weapons. Mr. Arnold’s volunteering the knife’s existence is not consistent with a simultaneous desire to conceal another weapon. As noted, the nature of the crime here does not suggest the likelihood of an armed perpetrator. Clearly, the facts of this case are a far cry from those involving suspected burglars and carjackers in possession of a knife, gun, and ammunition as in Hartz.

Once the camping knife was recovered, it was not reasonable to believe that the small box in the pocket of a cooperative individual who had shown no signs of aggression was or could contain a weapon. Thus, the Court finds that removal of the box from Arnold’s pocket under these largely innocent circumstances exceeded the allowable scope of a Terry frisk. Ranger Jacobs’s manipulation of the box by removing it from Mr. Arnold’s pocket violated the Fourth Amendment.

Permalink 07:30:23 am, by fourth, 168 words, 652 views   English (US)
Categories: General

MA: Consent to search dorm room was not voluntary

The state did not prove voluntary consent to search defendant’s college dormitory room where officers came to the door and said that they wanted to search the room and filled out a consent to search form. Commonwealth v. Carr, 458 Mass. 295, 936 N.E.2d 883 (2010), aff'g Commonwealth v. Carr, 76 Mass. App. Ct. 41, 918 N.E.2d 847 (2009).

Defendant was stopped because he was acting suspiciously in an area known for burglaries. He was arrested on an outstanding warrant. When in booking, burglary tools and gloves with embedded glass were taken from him. Officers also photographed the sole of his boots, the imprint of which was used to connect him to a burglary. The seizure of the boots to photograph them was not done under any kind of jail inventory policy, and the motion to suppress the photographs should have been granted under the Oregon Constitution. Inevitable discovery also did not apply. State v. Hartman, 238 Ore. App. 582, 243 P.3d 480 (2010)* [Note: I don’t think this case would be followed outside of Oregon].

Permalink 06:51:37 am, by fourth, 440 words, 538 views   English (US)
Categories: General

MA: “There is no ‘firearm exception’ to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip”

An uncorroborated anonymous tip that a man pointed a gun in the air but never fired it was not sufficient to justify a stop and frisk. Commonwealth v. Gomes, 458 Mass. 1017, 937 N.E.2d 13 (2010), aff'g Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 917 N.E.2d 231 (2009):

The Commonwealth’s failure to introduce a recording of the 911 telephone call at the suppression hearing hampered the ability of the parties and the judge properly to address the caller’s reliability. Compare Commonwealth v. Mubdi, 456 Mass. 385, 396-397, 923 N.E.2d 1004 (2010) (where recording of 911 call not played at suppression hearing, court’s assessment of caller’s basis of knowledge and veracity was limited), with Commonwealth v. Depina, 456 Mass. 238, 243-245, 922 N.E.2d 778 (2010) (playing of 911 call allowed court to determine caller’s basis of knowledge and that her statements were reliable as excited utterances). The Commonwealth would be well advised in the future to make reasonable efforts to introduce such evidence.

. . .

The defendant moved to suppress the physical evidence under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. In denying the motion, the judge concluded that the information provided by the dispatch “was not simply that an individual was carrying a firearm, but rather that he was standing on the street, pointing the gun in the air. Such behavior suggested a potential threat to public safety.” We disagree that the evidence justified the stop and frisk of the defendant.

There is no “firearm exception” to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip. See Florida v. J.L., 529 U.S. 266, 272-274, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). This case involves such a tip, as there was no evidence about the 911 caller’s identity or identifiability. See Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 794-795, 917 N.E.2d 231 (2009), and cases cited. See also Florida v. J.L., supra at 270-271. Moreover, there was no evidence of the caller’s basis of knowledge or veracity; no predictions by the caller of facts later confirmed by the police, to show the caller had inside knowledge; and no evidence of corroboration by the police of more than innocent details, i.e., the defendant’s presence near a green Honda, his race, and his gray shirt. See Florida v. J.L., supra at 270-272. Thus, there was no basis to conclude that the 911 caller’s report of possibly criminal behavior was reliable. See id. at 272 (reasonable suspicion requires that tip be reliable “in its assertion of illegality, not just in its tendency to identify a determinate person”). See also Commonwealth v. Gomes, supra at 795-796, and cases cited.


Permalink 07:22:55 am, by fourth, 176 words, 402 views   English (US)
Categories: General

OH12: Admission driver had 8-10 drinks was cause for blood test

Defendant’s admission that he had 8-10 beers and shots and slurred speech was probable cause justification for a blood draw under Schmerber. State v. Palmieri, 2010 Ohio 5667, 2010 Ohio App. LEXIS 4782 (12th Dist. November 22, 2010).*

An officer saw a car parked in a subdivision under construction where there had been repeated thefts from the construction sites. He approached and found steamed up windows and defendant and his minor nephew. The nephew told the officer about sex in the car, but he didn’t want to get his uncle in trouble. The stop was valid, as was the arrest and then the impoundment and inventory of the car. State v. Klose, 2010 Ohio 5674, 2010 Ohio App. LEXIS 4786 (3d Dist. November 22, 2010).*

Defendant drove too fast into an apartment building parking lot, and the police were called. The officer talked to the defendant and smelled alcohol on his breath, and defendant refused to identify himself and became loud. The officer had probable cause to arrest defendant for being under the influence. City of Lakewood v. Crump, 2010 Ohio 5581, 2010 Ohio App. LEXIS 4697 (8th Dist. November 18, 2010).*

Permalink 07:03:49 am, by fourth, 146 words, 480 views   English (US)
Categories: General

FL3 conflicts with FL2 on following Hudson

One Florida appellate district follows Hudson not suppressing a violation of knock-and-announce while recognizing that another does not (Cable v. State, 18 So. 3d 37 (Fla. 2d DCA), review granted, 22 So. 3d 539 (Fla. 2009)), certifying the conflict to the Florida Supreme Court. State v. Fernandez, 50 So. 3d 37 (Fla. App. LEXIS 17683 (Fla. 3d DCA November 17, 2010).*

Officers entered with exigent circumstances to make defendant’s arrest for assault, and then brought him out. The officers wanted to go back in and defendant objected. The victim could not consent under Randolph because defendant already objected. The re-entry was without justification and the observations were suppressed. State v. Driggers, 306 Ga. App. 849,
702 S.E.2d 925 (2010).*

Defendant was on parole, so he had an even lesser expectation of privacy than a probationer. The officers had reasonable suspicion for a home search based on his glassy eyes. United States v. Justiniano, 401 Fed. Appx. 595 (2d Cir. 2010)* (unpublished).


Permalink 01:34:12 pm, by fourth, 78 words, 750 views   English (US)
Categories: General

D.C.Cir.: Rehearing en banc denied 5-4 in Maynard

The D.C. Circuit denied rehearing en banc 5-4 in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), in an order styled United States v. Jones, 08-3034, consolidated with 08-3030 which is Maynard. 625 F.3d 766 (D.C. Cir. November 22, 2010). Jones and Maynard are co-defendants. Hat tip to Courthouse News Service.

Now the conflict in the Circuits is apparent. Which case will SCOTUS take? This one or Pineda-Moreno (posted here and here (on denial of rehearing en banc))?

Permalink 12:36:37 am, by fourth, 368 words, 407 views   English (US)
Categories: General

OH10: Police responded immediately to house of video voyeur of children to protect the evidence, and it was reasonably done because defendant had to be aware he was discovered

Officers had exigent circumstances to remove defendant from his home pending obtaining a search warrant. Officers received a call from the mother of two underage girls who were at defendant’s house with others in the swimming pool, when they discovered a video camera hidden in the bathroom with them visible on the LCD screen. They went right to his house to preserve the crime scene. After he was removed, a search warrant was obtained and the camera and other child pornography was found. The police did not create the exigency; the defendant’s knowledge that the girls discovered the camera was the exigency. State v. Enyart, 2010 Ohio 5623, 2010 Ohio App. LEXIS 4740 (10th Dist. November 18, 2010):

[*P26] Here, as in Jenkins and Chamber, two patrol officers knocked loudly on defendant’s doors and announced “police” before the detectives from the sexual assault squad arrived and interviewed the neighborhood girls. (Tr. 15-16, 140.) The officers, however, did not create the exigent circumstances with their knocking. Having been informed of what the girls related to their mother, the officers knew that, after the girls discovered the video camera, defendant went into the bathroom, shut the door, and inevitably would have realized the girls discovered the camera: someone was aware of his criminal behavior. The information the girls supplied, coupled with the readily destructible nature of the evidence, justified the officers’ entry.

[*P27] As a result, unlike Chamber or Jenkins, where police’s knocking created the exigency by alerting the defendant to the officers’ presence, here the girls’ discovery of the camera, with defendant’s knowledge they had done so, created the likelihood that defendant would try to destroy the recording. As Kaeppner explained, “[i]f the camera was on *** we’re talking about electronic data which is easily erased. It’s readily destructible.” (Tr. 125.) Cf. State v. Bowe (1988), 52 Ohio App.3d 112, 114 (concluding VCRs, cameras and radios were “not of a type easily destroyed, and the record [did] not reflect any indication that the police thought otherwise”); United States v. Bates (C.A.6, 1996), 84 F.3d 790, 796 (determining officers were unreasonable in thinking “fifteen kilograms of powder cocaine could be quickly disposed of by flushing it down the toilet or dumping it down the sink drain”).

Permalink 12:18:55 am, by fourth, 202 words, 771 views   English (US)
Categories: General

IA: Fact registered owner of vehicle is known to have a suspended DL is RS for stop, unless officer knows registered owner not driving

“[A]n officer has reasonable suspicion to initiate an investigatory stop of a vehicle to investigate whether the driver has a valid driver’s license when the officer knows the registered owner of the vehicle has a suspended license, and the officer is unaware of any evidence or circumstances indicating the registered owner is not the driver of the vehicle.” State v. Vance, 790 N.W.2d 775 (Iowa 2010).*

The exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon K.S.A. 22-2501(c) prior to the United States Supreme Court’s decision in Arizona v. Gant under Illinois v. Krull. The statute had previously been held to violate Gant. State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010).*

An apartment complex did not state a Fourth Amendment claim against the city that limited parking around the complex for stadium events. Six tenants decided to move out of the 348 unit complex because of “traffic” issues, but the apartment complex could not assert their Fourth Amendment seizure rights. And, this asserted limitation on use of the property does not amount to a Fourth Amendment seizure anyway. Enclave Arlington Assocs., L.P. v. City of Arlington, 401 Fed. Appx. 936 (5th Cir. 2010) (unpublished).*

Permalink 12:06:44 am, by fourth, 296 words, 452 views   English (US)
Categories: General

AZ: Going into garage to look at car instead of doing "knock and talk" at door was unreasonable

An officer went to defendant’s house to do a knock and talk. Instead of going to the door, he went into the open garage to check out defendant’s car. This violated curtilage and was unreasonable, analyzing a bunch of curtilage cases from around the county. The court found “instructive” United States v. Magana, 512 F.2d 1169 (9th Cir. 1975), where a heroin deal went down in a garage, and that was a waiver of privacy. State v. Blakley, 226 Ariz. 25, 595 Ariz. Adv. Rep. 4, 243 P.3d 628 (2010):

P17 Here, instead of approaching the front door to make contact with any occupants of the residence, Silva walked past the pathway that led directly to the front door and continued walking down the driveway into an area ordinarily not used by visitors. And at the suppression hearing, Silva acknowledged that his original intent when he entered the property was to “knock and talk” to an occupant of the residence, but instead, he decided to investigate the vehicle. Applying Magana’s reasonableness test to the facts of this case, we conclude that in exceeding the boundaries of the area commonly accessed by visitors, with no intent to locate an occupant but, rather, for the purpose of conducting an investigation, Silva’s actions in approaching the vehicle violated Blakley’s reasonable expectation of privacy in that area of his property. Silva’s presence near the vehicle on Blakley’s driveway therefore was unlawful. And, in the absence of a warrant, or an exception to that requirement, the search of the garage that followed also was unlawful.

Defendant was stopped and arrested shortly after threatening to shoot up a bank. His car had been stopped, and a gun case was visible. This was a valid plain view. State v. Barnes, 158 Wn. App. 602, 243 P.3d 165 (2010).*

Permalink 12:01:00 am, by fourth, 309 words, 769 views   English (US)
Categories: General

CA8: GFE saved a state search warrant of flash drive for gambling information that produced child pornography

Iowa police received information that defendant, a casino employee, was running a high stakes poker game at his residence and that he was using his personal computer in the operation. They got a search warrant for his computer and flash drive and opened the flash drive, coming upon child pornography. They closed the flash drive and applied for a new search warrant for child pornography. The court does not even have to decide probable cause because the good faith exception to the warrant requirement saves the search in any event. Under Herring, application of the exclusionary rule is fact specific, and these facts all favor not excluding. United States v. Koch, 625 F.3d 470 (8th Cir. 2010):

Here, the basis for the district court's decision not to suppress the challenged evidence was that the probable cause underlying the original search warrant was still effective at the time the agents viewed the flash drive and thus the warrant was not stale. We need not address that issue, however, because we conclude that the agents had an objective, good faith belief under United States v. Leon that their search was legal. See United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007) (“applicability of the good-faith exception to the exclusionary rule” may be considered before assessing probable cause).

[Note: Applying the good faith exception here is a pointless exercise because there was a warrant to open the flash drive, and it would have survived even the most skeptical analysis. Applying the good faith exception, however, is particularly useful if one is of a mind to expand Herring, which most federal appellate courts are more than willing to do.]

Officers surveilled a drug operation, and they saw defendant put the suspected drugs into his trunk. This was probable cause for his stop and search under the automobile exception. United States v. Aguilera, 625 F.3d 482 (8th Cir. 2010).*


Permalink 10:25:22 am, by fourth, 113 words, 692 views   English (US)
Categories: General

LV R-J: "Pat-down is letdown at airport"

On the front page of today's Las Vegas Review Journal: Pat-down is letdown at airport by Adrienne Packer the "Road Warrior" columnist who tried to get to a "naked scanner" just so she could endure the search to report on it. To her, it wasn't as intrusive as she expected. The concluding paragraphs:

TSA agents clutching some innocent passenger's crotch isn't acceptable, but that is far from what I experienced. I saw no traveler being patted down other than myself.

And I had to work really hard to be physically searched in a respectful manner. Thanks for nothing, TSA.

Update: And even has a blog: Backlash grows against airport security measures

Permalink 09:05:49 am, by fourth, 221 words, 662 views   English (US)
Categories: General

VA: Defendant's real estate agent letting police in to look around was reasonable where there was no misrepresentation, plain view led to warrant

Defendant listed his residence for sale. He had been suspected of possessing firearms. Officers contacted the real estate agent and used that for access to the house to make a walk through. Guns were seen in a gun case. The defendant waived his expectation of privacy as to that which could be easily seen by permitting the real estate agent to bring people in to look around. This plain view led to a search warrant being issued for the residence. Redmond v. Commonwealth, 57 Va. App. 254, 701 S.E.2d 81 (2010):

We find the analysis of the Lucatero and Ferrari decisions compelling. In this instance, Flagg accepted the offer to enter and view the home at Middle Road when he contacted the real estate agent and indicated interest in the property. There was no evidence Flagg or Clutz made any representation to the realtor regarding their reason for wanting to tour the house. Moreover, the police officers' actions while inside the property did not exceed what one would expect of a prospective purchaser. Flagg and Clutz did not conduct an exhaustive search of the home when they visited it with the realtor. The firearms, ammunition, and pawn ticket all were in the officers' plain view and were readily observable on August 3, 2008. Thus, the officers' actions violated no reasonable expectation of privacy possessed by appellant.

Permalink 08:55:53 am, by fourth, 257 words, 564 views   English (US)
Categories: General

E.D.N.C.: DL checkpoint was valid

Driver’s license checkpoint was valid and not just for “general crime control.” A gun was seen in plain view, and a further search produced drugs. United States v. Waterman, 2010 U.S. Dist. LEXIS 122673 (E.D. N.C. September 21, 2010)*:

Here, a balancing of these three factors clearly weighs in favor of the Government. Regarding the first factor, drivers who are unlicensed or uninsured are in violation of the law and may present a danger to the community. This is certainly a matter of significant public concern. Regarding the second factor, checkpoints such as the one the GPD set up on May 9, 2009 serve both to find and punish such drivers as well as discourage would-be unlawful drivers from driving in the first place. This is not only a sufficient but a substantial advancement of the public's interest in safer roads and drivers. Regarding the third factor, there is nothing in the record to indicate that the GPD officers unreasonably interfered with the freedom of law-abiding motorists who arrived at the checkpoint. All of the officers at the checkpoint were clearly identifiable as such and at least one patrol car had its blue lights flashing. The checkpoint was clearly visible to approaching motorists from at least 200 feet away. Additionally, Officer Roberson testified that he typically asks drivers only for their license so as to not hold them up unnecessarily. Only in cases such as Defendant's, when additional suspicious activity resulted in further investigation, were motorists held up more than briefly.

[Note: Drug interdiction officers were also at the checkpoint.]

Permalink 08:42:58 am, by fourth, 310 words, 420 views   English (US)
Categories: General

IL: Car stopped at night on shoulder of road for ten minutes was subject to a community caretaking stop

A car was stopped at night on the shoulder of the road along the Mississippi River. It had been there for about ten minutes when the officer stopped to inquire. The driver rolled down the window and said he was waiting for a friend. Even assuming that the use of lights made this a seizure, it was reasonable under the community caretaking doctrine to see if any aid was required. The driver was found under the influence. People v. McDonough, 239 Ill. 2d 260, 940 N.E.2d 1100 (2010), rev'g 395 Ill. App. 3d 194, 917 N.E.2d 590, 334 Ill. Dec. 764:

Second, Brunnworth’s assumed seizure of defendant was reasonable because it was undertaken to protect public safety. Based on the objective and specific facts of record, it was reasonable for Brunnworth to approach defendant’s vehicle to offer any aid required under the circumstances. The public has a substantial interest in ensuring that police offer assistance to motorists who may be stranded on the side of a highway, especially after dark and in areas where assistance may not be close at hand.

Two guys that were likely faking raking the yard of a drug house that rode in another vehicle in tandem with a probable drug delivery were subject to arrest on probable cause. “[T]he existence of possible innocent explanations for the individual circumstances or even for the totality of the circumstances does not necessarily negate probable cause.” People v. Rodriguez-Chavez, 405 Ill. App. 3d 872, 938 N.E.2d 623, 345 Ill. Dec. 184 (2010).*

Defendant was stopped for a window tint violation, and he promptly consented to the search of his car. The stop was not prolonged by the question considering that the officer was handing back the paperwork as he asked the question. United States v. Stokes, 2010 U.S. Dist. LEXIS 122501 (M.D. Fla. October 27, 2010) [Note: The court does not inquire whether the defendant would feel free to leave.]


Permalink 01:37:03 pm, by fourth, 201 words, 506 views   English (US)
Categories: General

N.D.Cal.: Police view of what computer tech saw did not expand valid private search

Defendant took his computer in for repair to a CompUSA store in 2005, and the repair person found child pornography and called the police. The police came and the repair tech showed the pictures. The computer was seized and a search warrant obtained for it. The police search prior to the warrant did not exceed the scope of the private search under Walter and Jacobsen. The police later came to arrest the defendant, and his wife, who was seeking a divorce from him, consented to a search of his home office which she had equal access to. United States v. Tosti, 2010 U.S. Dist. LEXIS 122168 (N.D. Cal. November 1, 2010).*

The CI’s information was subjected to efforts to corroborate and he was brought before the issuing magistrate. His information was sufficient for probable cause. In any event, the good faith exception would save the search. United States v. Brown, 2010 U.S. Dist. LEXIS 122057 (N.D. Ill. November 17, 2010).*

Officers had an arrest warrant for one of two people living in the residence. They did a valid protective sweep to make sure they were safe on entry, and drugs in plain view were validly seized. McKibben v. State, 46 So. 3d 1224 (Fla. App. 1st DCA 2010).*

Permalink 03:43:03 am, by fourth, 213 words, 702 views   English (US)
Categories: General

NYT: SCOTUS in decline in quality of work

From the NYT: Justices Are Long on Words but Short on Guidance by Adam Liptak:

In June, the Supreme Court issued a decision on the privacy rights of a police officer whose sexually explicit text messages had been reviewed by his employer. Ever since, lower court judges have struggled to figure out what the decision means.

The case “touches issues of far-reaching significance,” Justice Anthony M. Kennedy wrote. Then he explained why the court would decide none of them. A definitive ruling should be avoided, he said, because “it might have implications for future cases that cannot be predicted.”

Justice Antonin Scalia went along with the decision, but he blasted his colleagues for “issuing opaque opinions.”

A month later, Judge Frank M. Hull of the federal appeals court in Atlanta complained that the privacy decision featured “a marked lack of clarity,” and was almost aggressively unhelpful to judges and lawyers.

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.

Permalink 12:02:06 am, by fourth, 148 words, 395 views   English (US)
Categories: General

N.D.Va.: Bankruptcy trustee can consent to search of bankrupt's property

Once the defendant files his company for bankruptcy, he loses any reasonable expectation of privacy in the records of the business to the trustee who can then consent to search. United States v. Pavlock, 2010 U.S. Dist. LEXIS 120767 (N.D. W.Va. October 26, 2010).*

Defendant had a package shipped to him with drugs in it, and the bus company opened it. They called the police, and the officer opened the package, too, and the search was invalid because the officer’s search exceeded the private search. State v. Rivera, 2010 NMSC 46, 148 N.M. 659, 241 P.3d 1099 (2010), revg State v. Rivera, 2009 NMCA 49, 146 N.M. 194, 207 P.3d 1171 (Ct. App. 2009).

Officers found out about a warrant on defendant, and he was arrested on that warrant and subjected to a search incident that produced marijuana. The search incident was valid, and the trial court erred in suppressing. State v. Edwards, 307 Ga. App. 267, 704 S.E.2d 816 (2010).*


Permalink 02:46:32 pm, by fourth, 142 words, 5229 views   English (US)
Categories: General

CA6: Transferring suitcase of drugs to co-conspirator's car was waiver of REP

As a part of a drug conspiracy, defendant transferred a suitcase from one car to a co-conspirator’s car. He lost any reasonable expectation of privacy in the suitcase by transferring it to another car and out of his control. United States v. Ocampo, 402 Fed. Appx. 90, 2010 FED App. 0701N (6th Cir. 2010) (unpublished).*

The informant’s information was detailed and specific, and it was corroborated by a phone call with the defendant the police were listening in on. State v. Butler, 2010 Tenn. Crim. App. LEXIS 951 (November 12, 2010).*

A state search warrant for a stolen birth certificate was issued and served. Officers opened a folded document that appeared to be a birth certificate, but it was a death certificate that turned out to be evidence of insurance fraud. It was lawfully seized. United States v. Jenkins, 2010 U.S. Dist. LEXIS 121358 (S.D. N.Y. November 9, 2010).*

Permalink 01:14:08 pm, by fourth, 373 words, 545 views   English (US)
Categories: General

CA9: Police had no exigent circumstances for entry into house where gun was fired where there was no indication anyone inside was injured

Defendant discharged a gun in his house, and he was in custody. The police had no reason to believe there was anyone else in the house, let alone injured in the house, so the suppression order was affirmed. United States v. Espinoza, 403 Fed. Appx. 239 (9th Cir. 2010) (unpublished):

The government's argument is not supported by the record. At the time of the entry into Espinoza's house, Espinoza was in custody and detained in the back of a police car. Neighbors had reported that Espinoza lived alone, and no one reported seeing or hearing anyone besides Espinoza inside the house. When the police arrived, they did not see anyone enter the house or hear any other voices coming from inside. In short, there were no facts upon which an officer could base a reasonable belief that an emergency existed after Espinoza was in custody. See United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993) (holding that warrantless search of a shooting suspect's tent was unreasonable because suspect was in custody and there was no actual ongoing threat despite the recent discharge of a firearm).

The Supreme Court stated in Michigan v. Fisher that officers do not require “ironclad proof of 'a likely serious, life-threatening' injury to invoke the emergency aid exception.” 130 S. Ct. 546, 549, 175 L. Ed. 2d 410 (2009). There, the police encountered a crazed, bleeding man barricaded inside his house throwing objects and shouting obscenities at the police. Id. at 547. The Court ruled that under those circumstances, even though it was doubtful that the man was seriously injured, a reasonable officer could have believed that the man or someone else inside might have needed immediate medical attention or faced imminent harm. Id. at 548-49. We do not read that fact-specific opinion to hold broadly that warrantless entry into a home is always justified where the police cannot confirm that there are no injured victims inside a house. We recognize the need for police officers to investigate and respond to credible threats of injury. Nothing in Michigan v. Fisher, however, indicates that the mere discharge of a firearm inside a house vitiates the protections of the Fourth Amendment when the shooting suspect is in custody and there are no circumstances suggesting that anyone else was present, much less injured.

Permalink 10:42:06 am, by fourth, 397 words, 501 views   English (US)
Categories: General

N.D.Ill.: Caregiver for disabled child found to have apparent authority to consent

Defendant’s niece was the caregiver to defendant’s disabled son. When the police got there, they asked questions about her control over the premises, and they concluded from her answers that she was one with actual and apparent authority to consent and full access to all parts of the house. When she testified at the suppression hearing, she backed off some things and seemed like she was trying to mitigate her consent. The court concludes that she was not credible. United States v. Garcia, 2010 U.S. Dist. LEXIS 121111 (N.D. Ill. November 16, 2010)* [I don't like this outcome. Freedom to go through the house as a caregiver simply cannot equate with apparent authority to let the police in to consent. What about the "cleaning lady"?]

There was no reasonable expectation of privacy in a laundry room in an apartment building common area. While there was a sign that the door was to remain locked, it wasn’t [not that that would be determinative anyway]. Anybody could come and go. United States v. Cureton, 2010 U.S. Dist. LEXIS 120911 (S.D. Ill. November 16, 2010).*

Defendant’s laptop and cameras were searched at a secondary inspection point at Lewiston NY after defendant, a German national with a permanent resident card, traveled to Niagara Falls for one night from Brooklyn knowing no one in Canada. When he was sent over for secondary inspection, there was no reason to believe defendant had child pornography on his computer. It is normal to look at the pictures on cameras, and those pictures were of children in suggestive poses. United States v. Rogozin, 2010 U.S. Dist. LEXIS 121162 (W.D. N.Y. November 16, 2010)*:

I need not decide whether or not the search of the laptop computer can be considered “routine”, because even if it was not, defendant's failure to maintain eye contact during the initial interview, coupled with his questionable itinerary (spending only one night in the area after driving from Brooklyn), were sufficient to create reasonable suspicion in the mind of inspector Janiszeski (Irving, supra), which would justify examining the laptop during the secondary inspection.

[People don't pay attention to these things, but U.S. and Canadian Customs share a database, and they know when a car crosses over into Canada. You lie about the length of your stay, and they will detain you for more questioning. They also know every past crossing your car made.]


Permalink 12:22:39 am, by fourth, 589 words, 860 views   English (US)
Categories: General

IL: State constitution recognizes privacy in bank records

Illinois holds that there is a state constitutional right of privacy in bank records, deciding that the state constitution is not interpreted in lockstep with the Fourth Amendment, and Miller would not be followed. People v. Nesbitt, 405 Ill. App. 3d 823, 938 N.E.2d 600, 345 Ill. Dec. 161 (2010):

Further, as the privacy clause of our state constitution expands upon the protections offered by the federal constitution, it also expands upon the rights guaranteed by our own search and seizure provision. The court in Caballes
noted that our constitution's privacy clause provides protection in addition to its search and seizure clause and that it is broadly written, with no definition limiting the types of privacy intended to be protected. Caballes, 221 Ill. 2d at 317. Moreover, the court noted that, when the 1970 constitution was adopted, the privacy clause was added for the purpose of creating an additional right applicable to situations not covered by the search and seizure provision. Caballes, 221 Ill. 2d at 318-19. Therefore, while the two may overlap, whether a search or seizure violates the privacy clause of article I, section 6, is an inquiry separate and apart from whether it violates that article's search and seizure clause.

Having clarified the distinction between our constitution’s privacy and search and seizure provisions, it is clear that the privacy clause of the Illinois Constitution protects an individual’s bank records. We disagree with the State that the privacy clause protects electronic and data entry records but not “traditional” records. Preliminarily, we note that, in today’s society, banking records and electronic records are not mutually exclusive. Moreover, the court in Caballes, in interpreting the privacy clause and considering the scope of its protection, drew no distinction between the various forms that private records may take, recognizing instead that “[t]he privacy clause is also implicated if, in the course of a criminal investigation, the state seeks access to medical or financial records that are within the scope of the protections of article I, section 6.” (Emphasis added.) Caballes, 221 Ill. 2d at 330. The court further noted its prior decision in In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 604 N.E.2d 929, 178 Ill. Dec. 406 (1992), where it recognized protection for individual privacy rights in “books and records” and where it held that it is reasonable for an individual to expect that his or her “private records” will not be exposed to public view or that his or her personal characteristics will not be scrutinized absent a valid reason. Caballes, 221 Ill. 2d at 320-21, 330, citing Will County Grand Jury, 152 Ill. 2d at 391-92, 396.

. . .

The State urges us to decide differently, noting that our supreme court has not explicitly weighed in on Miller’s applicability to our state constitution’s privacy provision. However, as previously mentioned, our supreme court has cited Jackson with approval. In addition, this court, in People v. DeLaire, 240 Ill. App. 3d 1012, 610 N.E.2d 1277, 183 Ill. Dec. 33 (1993), cited Will County Grand Jury, 152 Ill. 2d at 390, for the proposition that the Illinois Constitution exceeds the federal constitution’s privacy guarantees. DeLaire, 240 Ill. App. 3d at 1019. Further, we cited with approval Jackson’s conclusions that the Illinois Constitution’s privacy clause extends protection to bank records and that, because our state constitution provides greater protection for bank records than does the federal constitution, Miller does not control. DeLaire, 240 Ill. App. 3d at 1020. We see no compelling reason to depart from this line of reasoning. Accordingly, we reject the State’s argument that there is no right to privacy in bank records under article I, section 6, of the Illinois Constitution.

Permalink 12:14:04 am, by fourth, 411 words, 571 views   English (US)
Categories: General

OH2: Detained shoplifter did not have to be Mirandized before being asked for consent

Defendant was detained for shoplifting by a store’s loss prevention officer, and the police were called. When the officer arrived, he asked for consent to search the car for other stolen stuff. Defendant then admitted that he had drugs in the car. The admission alone was probable cause, and Miranda warnings were not required before asking for consent. State v. Severt, 2010 Ohio 5389, 2010 Ohio App. LEXIS 4539 (2d Dist. November 5, 2010)*:

[*P47] Initially, we note that a police officer’s request to a defendant for consent to search his vehicle does not constitute an interrogation. State v. Carver, Montgomery App. No. 21328, 2008 Ohio 4631. Thus, Miranda warnings were not necessary before the request to search was made. We are not persuaded that Officer Young’s response to Severt’s question that he wanted to search the vehicle in order to check for stolen merchandise and/or other illegal items was a statement designed to elicit an incriminating response from Severt regarding the contents of his vehicle.

[*P48] Moreover, Severt’s admission regarding the presence of contraband in his vehicle made immediately after being asked for consent supplied Officer Young with probable cause to search the vehicle. Probable cause has been defined as a “fair probability” that criminal activity is afoot. State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640. In the instant case, Severt’s statement that “there was some illegal items in the car,” gave Officer Young the necessary probable cause to search the vehicle for evidence of a crime. Thus, the trial court erred when it sustained Severt’s motion to suppress.

Defendant was stopped for speeding, and the officer talked to him through the window. When the defendant couldn’t produce a driver’s license, the officer directed him out of the car. Defendant was reaching for his right pocket repeatedly even when the officer told him not to. This was reasonable suspicion for a frisk for weapons. State v. Winston, 2010 Ohio 5381. 2010 Ohio App. LEXIS 4540 (2d Dist. November 5, 2010).*

Defendant was stopped for speeding, and the officer noted that he was excessively nervous during the stop. He related travel plans to a distant mall when gas was $4 a gallon, and it was a place of narcotics sales. Consented to the search of his car. Moreover, defendant was placed in the patrol car and told to hit a button to tell the officer to stop the search, an option he did not exercise. Vasquez v. State, 324 S.W.3d 912 (Tex. App.–-Houston (14th Dist.) 2010).*


Permalink 09:27:24 pm, by fourth, 143 words, 459 views   English (US)
Categories: General

WaPo: "TSA agent punched in chest by passenger" this afternoon: TSA agent punched in chest by passenger by Ed O'Keefe, allegedly playfully, but he was arrested for battery:

A passenger was arrested Tuesday for punching a Transportation Security Administration officer in the chest after passing through a body-imaging machine at Indianapolis International Airport, police said.

According to police, John A. Christina, 51, admitted to punching the officer after passing through the machine and asking the officer about increased security procedures. The officer replied that he does not normally work in Indianapolis and could not answer the question.

Christina then punched the officer in the chest, police said. The officer, who is normally assigned to the Dayton, Ohio, airport, asked Christina why he punched him.

"I was only kidding with you," Christina replied.

Other TSA agents and passengers witnessed the incident, police said, and Christina was arrested and charged with battery.

Permalink 09:07:05 am, by fourth, 164 words, 401 views   English (US)
Categories: General

VA: Corroborated tip that defendant had warrants was enough to stop him

A tip that the defendant was wanted and was at a particular location with a car was sufficient for a stop when defendant was surveilled, got into the car in the driveway, was followed, and the officer checked and there was, in fact, warrants for the defendant. That is certainly cause for a stop. Sidney v. Commonwealth, 2009 Va. App. LEXIS 600 (August 19, 2009).*

Odor of burnt marijuana in the car was probable cause for its search. [Also, defendant’s reverse 404(b) argument that a prior owner of the car had a bunch of cocaine on him in the car was not relevant because it didn’t have any effect on whether he had marijuana on the day in question.] United States v. Ushery, 400 Fed. Appx. 674 (3d Cir. 2010) (unpublished).*

Defendant’s handing a joint to the officer was probable cause to believe that there was more marijuana in the car. Probable cause is not certainty. United States v. Conerly, 2010 U.S. Dist. LEXIS 120410 (E.D. Mich. October 8, 2010).*

Permalink 08:33:22 am, by fourth, 215 words, 472 views   English (US)
Categories: General

E.D.Va.: CIA can search its employees' office computers

A CIA lawyer employee has no claim that the CIA searched and monitored his government issued computer as a part of maintaining his security clearance. Ciralsky v. CIA, 2010 U.S. Dist. LEXIS 120617 (E.D. Va. November 15, 2010):

Defendants are correct that the Fourth Amendment and FISA claims are far too general and do not satisfy civil pleading standards. Ciralsky has not alleged anything other than broad, conclusory statements about a search conducted by unknown officials. An equally important issue, which neither the defendants nor plaintiffs address, is that even if the allegations were more specific, the Fourth Amendment claim would not be legally viable. The Supreme Court, in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), found that a police department did not violate an employee’s Fourth Amendment rights when it monitored the employee's text messages on a government-issued pager because “the search was motivated by a legitimate work-related purpose.” Id. at 2633. Ciralsky alleges that the CIA monitored his employer-provided computer to determine whether to entrust him with access to national security information. As in Quon, the CIA search had a legitimate, work-related purpose and involved a computer that it provided, not Ciralsky’s personal computer. Therefore, Ciralsky does not state a valid Fourth Amendment claim.

This isn't even close. Talk about a national security exception ....

Permalink 05:48:37 am, by fourth, 704 words, 698 views   English (US)
Categories: General

Observations on Fourth Amendment and the news

The way I keep up with news about the Fourth Amendment is I have a stored Google-search that sends me stuff. I get things from newspapers, blogs, and websites, from the left and the right, sometimes extreme. I scan it all, but seldom post anything unless it has value (at least in my judgment) to the readers of this site.

This site went online in February 2003. Since then, without a doubt, the one topic of greatest interest with more Internet activity than anything else is the TSA's desire to grope and frisk every airline passenger in America in the name of Homeland Security. This is just in the last three weeks or so, likely because it hits home to all those who fly, and I do at least one round trip every two weeks. I have encountered two full body scans: CLE two years ago and DCA this fall.

The outrage of everybody seems to be rising over this issue.

What little outrage there was over the USA PATRIOT Act was spread out over years, and it took years for people to realize that Congress had sold out their rights. Then came the GPS monitoring of movement of people, which has only stirred people up this year. Go back to this post from August about United States v. Pineda-Moreno, the Ninth Circuit’s GPS case: Media discovers August 27th that Pineda-Moreno was decided January 11th. This was a result of Chief Judge Kozinski’s biting dissent on denial of rehearing en banc issued in August that underscored the class distinctions underlying the Ninth Circuit’s rationale. Only then did the intrepid press discover what the court held seven months earlier.

One result of shrinking newspaper budgets is that most reporters don’t cover the news anymore. They seem to read the internet for stories to regurgitate. You have to go to the legal news to see what’s going on in the law. Plenty of us are doing it in our own ways because we are actually reading the cases and not just linking to news stories.

Maybe TSA’s recent actions will crystallize public opinion to again support the Fourth Amendment and notions of individual privacy. When it is a criminal involved, citizens are less likely to care. But, when you are forced to endure a frisk the same as being checked into a jail on a misdemeanor or suspected of having a weapon just to fly around the country ....

Sometimes I’m just stunned. What have we come to in this country? The terrorists have won, thanks to TSA’s mindset. Our liberties have been curtailed by actions of people outside the country that the government feels compelled to respond to. Like the boiling frog, our rights get a little narrower everyday, and few people are noticing it.

But, can you really blame today’s TSA? Didn’t the passage of the USA PATRIOT Act prove that Americans can be bullied about by the government in the name of Homeland Security?

Just follow Secretary Napolitano’s advice: Don’t want to be frisked? Well, drive instead of fly. How does that change our way of life? I can almost hear Mr. Rogers saying “Can you say ‘police state’?” We will never get over 9/11 because the government is going to be reminding us everyday in its actions.

Twenty-one years ago, Judge Kozinski wrote:

Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.

United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989). That quote has been on the sidebar here since this website started. Just search "Kozinski" on this website for his colorful dissents. Pineda-Moreno is here.

Update: A friend sent my Penn and Tenner's Penn Julliette's account of his grope-frisk at the Las Vagas airport. See also The Hill: GOP lawmaker: Full-body scanners violate Fourth Amendment by Elise Viebeck. WSJ blog: All-Seeing Airport Scanners Sparking Litigation and Protests, by Nathan Koppel. CNN Opinion: Body scanners, pat-downs violate law and privacy by Marc Rotenberg. There is just too much to post.


Permalink 02:25:19 pm, by fourth, 112 words, 1124 views   English (US)
Categories: General "100 Naked Citizens: 100 Leaked Body Scans"

On today: 100 Naked Citizens: 100 Leaked Body Scans from U.S. Marshals with courthouse scans, no less.

At the heart of the controversy over “body scanners” is a promise: The images of our naked bodies will never be public. U.S. Marshals in a Florida Federal courthouse saved 35,000 images on their scanner. These are those images.

A Gizmodo investigation has revealed 100 of the photographs saved by the Gen 2 millimeter wave scanner from Brijot Imaging Systems, Inc., obtained by a FOIA request after it was recently revealed that U.S. Marshals operating the machine in the Orlando, Florida courthouse had improperly-perhaps illegally-saved images of the scans of public servants and private citizens.

Permalink 04:17:58 am, by fourth, 364 words, 437 views   English (US)
Categories: General

IA: SW did not permit entry into separate rented bedroom in the house; renter had his own REP

A search warrant for a house did not permit entry into a separate rented room within because the occupant of that room had his own expectation of privacy. State v. Fleming, 790 N.W.2d 560 (Iowa 2010):

We reject the rationale behind the community-living exception. We must consider society’s generally recognized and permitted expectations about privacy with respect to roommates living together in a single-family home. “Today it is not unusual to see a group of unrelated single persons living together and sharing expenses.” Ames Rental Prop. Ass’n v. City of Ames, 736 N.W.2d 255, 266 (Iowa 2007) (Wiggins, J., dissenting).2 We do not believe that when individuals decide on this type of living arrangement, they believe they are giving up the right to privacy in their personal space. Generally, when single, unrelated persons live together in a house, the kitchen, living room, bathroom, hallways and entryways are communal space, but the individual bedrooms remain private. As a social norm, this is fairly well established; thus, many of these individuals probably do not feel the need to clearly delineate their personal space with locks or signs. We find a reasonable expectation of privacy in an individual room rented within a single-family house.

2 At the time of the 2000 census, over 135,000 Iowans were living with nonrelatives. See Bureau of the Census, U.S. Dep’t of Commerce, Profile of General Demographic Characteristics for Iowa: 2000 (2001), available at A recent study also found that 12% of young adults age 18 to 34 have acquired a roommate because of recent economic conditions. Wendy Wang & Rich Morin, Pew Research Center, Home for the Holidays ... and Every Other Day (Nov. 24, 2009), available at

Fleming has demonstrated a legitimate expectation of privacy in his bedroom. The testimony shows Fleming rented a room within Nearman’s house for $375 a month. He was not related to Nearman and testified that he had exclusive possession and control of his room. There is no indication he gave Nearman access to his private bedroom. We hold Fleming has demonstrated a reasonable expectation of privacy in his bedroom. Therefore, a warrant was required to enter Fleming’s bedroom.

Permalink 04:00:01 am, by fourth, 166 words, 396 views   English (US)
Categories: General

TX1: State showed valid inventory because vehicle was unregistered and uninsured

Defendant’s vehicle was properly impounded and inventoried because it was being driven without proper registration and proof of insurance. Also, there was no one to whom the vehicle could be released. The state has the burden of proving a valid inventory, and they did so. Moskey v. State, 333 S.W.3d 696 (Tex. App. – Houston (1st Dist.) 2010).*

Defendant’s IAC claim fails as to his search issue, too. He had the burden of showing something that the search warrant was improper, and he put on nothing at the hearing. Hanebutt v. State, 2010 Tenn. Crim. App. LEXIS 938 (November 9, 2010).*

The police received a 911 call from a woman who gave her first name and number complaining that the defendant offered marijuana for sex and described his car and that he had a gun and she felt threatened. When the police pulled up on the car matching the description, defendant fled. There was reasonable suspicion for the stop. United States v. Hairston, 402 Fed. Appx. 84, 2010 FED App. 0700N (6th Cir. 2010) (unpublished).*

Permalink 03:32:58 am, by fourth, 531 words, 3765 views   English (US)
Categories: General

SCOTUS cert. grant, another exclusionary rule case on identity evidence from an illegal stop

Tolentino v. New York, 09-11556, cert. granted November 15, 2010. SCOTUSBlog is here. The opinion below is People v. Tolentino, 2010 NY Slip Op 2643, 14 N.Y.3d 382, 926 N.E.2d 1212, 900 N.Y.S.2d 708 (2010), posted here back on April 1. From the New York Court of Appeals decision:

As the Farias-Gonzalez court pointed out, the policy rationale of the exclusionary rule would not be served by its application to identity-related evidence. The social costs of excluding such evidence are great: courts and the government are entitled to know who defendants are, since permitting defendants to hide their identity would undermine the administration of the criminal justice system and essentially allow suppression of the court's jurisdiction. On the other side of the equation, there are few deterrence benefits. The Constitution does not prohibit the government from requiring a person to identify himself to a police officer. In addition,

"even if a defendant in a criminal prosecution successfully suppresses all evidence of his identity and the charges are dropped, the Government can collect new, admissible evidence of identity and reindict him. This is so because identity-related evidence is not unique evidence that, once suppressed, cannot be obtained by other means" (Farias-Gonzalez, 556 F3d at 1188-1189 [citation omitted]).

As a result, "[t]he application of the exclusionary rule to identity-related evidence will have a minimal deterrence benefit, as its true effect will often be merely to postpone a criminal prosecution" (id. at 1189).

Nor do we believe that "[t]oday's opinion [will] give[ ] law enforcement an incentive to illegally stop, detain, and search anyone for the sole purpose of discovering the person's identity and determining if it matches any government records accessible by the police" (dissenting op at 390). Police are already deterred from conducting illegal car stops because evidence recovered in the course of an illegal stop remains subject to the exclusionary rule.

While the Supreme Court has held that fingerprint evidence—evidence the dissent describes as "paradigmatic identity evidence" (dissenting op at 389)—may be subject to the exclusionary rule (Davis v Mississippi, 394 US 721, 724 [1969]), Davis, as well as Hayes v Florida (470 US 811, 815 [1985]), is distinguishable from this case in two ways. First, the defendants in those cases were illegally stopped for the purpose of obtaining evidence—fingerprints—that would connect the defendants to crimes under investigation. The "identity evidence" was not preexisting. Second, the fingerprints were used, not to establish the identities of the individuals apprehended by the police and subject to the jurisdiction of the court, but to connect those individuals' fingerprints to latent prints recovered from the crime scene. The evidence established defendants' "identities" as the perpetrators, but not their "identities" in the sense relevant here. Our decision today would not alter the outcome of those cases. We merely hold that a defendant may not invoke the fruit-of-the-poisonous-tree doctrine when the only link between improper police activity and the disputed evidence is that the police learned the defendant's name.

The cert grant here was a surprise to both me and SCOTUSBlog, which has nothing yet on the case.

Update: I was thinking about this last night, and I now think that this is one of those cases where they took it just to further limit the exclusionary rule.


Permalink 03:55:17 pm, by fourth, 81 words, 667 views   English (US)
Categories: General

CNN: "TSA: Despite objections, all passengers must be screened"--Updated TSA: Despite objections, all passengers must be screened.

Go to and search "TSA searches."

Update: Humorist Dave Barry And The TSA going up at 7 pm EST ("Host Melissa Block talks to writer Dave Barry about his unpleasant airport experience under the new security system that examines passengers electronically. He was singled out for a pat-down after authorities told him he had a 'blurry groin' — meaning the detector was unable to get a clear picture of his body.")

Permalink 12:33:34 am, by fourth, 341 words, 1026 views   English (US)
Categories: General

PA: Considering extrinsic evidence outside of "four corners rule" violates Fourth Amendment and state law

The suppression court had the discretion to revisit the grant of the suppression order within thirty days, but it violated state law when it considered extrinsic evidence outside of the “four corners rule” to validate the search. Here, the unanswered question was where was a bag of trash: inside the garage or outside? The affidavit did not answer that. Commonwealth v. James, 2010 PA Super 203, 12 A.3d 388 (2010):

We find that the trial court violated the four corners rule by considering extrinsic evidence that was not contained in the affidavit of probable cause to determine the validity of the search warrant. Appellant was not challenging the trash pull itself, but rather the existence of probable cause on the face of the affidavit. Thus, the question for the trial court was whether sufficient probable cause existed within the four corners of the affidavit to support the magistrate’s decision to issue the search warrant. See Pa.R.Crim.P. 203(D); Coleman, supra. Pa.R.Crim.P. 203(D) prohibits a reviewing court from hearing supplemental testimony on what it deems to be a “second constitutional issue,” (N.T., 10/22/08, at 4), and then using that evidence to determine whether sufficient probable existed for a magistrate to issue a search warrant. Indeed, this Court has specifically rejected the use of extrinsic evidence in order to salvage a deficient warrant, see Commonwealth v. Vaughan, 2001 PA Super 374, 789 A.2d 261, 266 (Pa. Super. 2001) (“While ... extrinsic evidence might be relevant to our analysis, we must defer to our Supreme Court to so state unequivocally and will not open the door to this method of salvaging a deficient warrant without that Court’s explicit guidance.”).

Accordingly, we find that the trial court violated Pa.R.Crim.P. 203(D) at the October 22, 2008 suppression hearing by soliciting and considering testimony outside the four corners of the affidavit of probable cause in the course of deciding whether the search warrant should have been issued. Accordingly, we vacate the order denying Appellant's motion to suppress and the judgment of sentence and remand for proceedings consistent with this opinion.

Permalink 12:22:13 am, by fourth, 427 words, 602 views   English (US)
Categories: General

ME: Lobster searches: Maine fishery officers have jurisdiction to board and search fishing vessels 25 miles off shore for illegally taking lobster

A Maine lobster search by state fishery officers in “international waters” but in the federal “exclusive economic zone” was valid. Officers did not need probable cause to boat and search. State v. Thomas, 2010 ME 116, 8 A.3d 638 (2010):

[*P3] On July 12, 2007, several Maine marine patrol officers located the Blue Water approximately thirty-five miles from Matinicus Island. On that day, the Blue Water was rigged for groundfishing. Thomas and the marine patrol officers were familiar with each other, and Thomas was unhappy that the officers had arrived at his boat. The officers asked to board the Blue Water, and Thomas initially refused them permission because he was fishing in federal waters beyond what he perceived to be their law enforcement jurisdiction. When the officers invoked their federal authority, Thomas allowed them to board, believing that he would be “taken into custody immediately” if he refused a federal inspection. [n. 5: Maine marine patrol officers are authorized by the federal government to exercise federal enforcement authority in federal waters.]

[*P4] Once aboard the Blue Water, the officers examined plastic totes on the deck of the Blue Water and found seventy-eight lobsters; twenty-four of the lobsters were oversize. A number of them were banded in the totes. Maine law establishes a maximum length for lobsters that may be kept. 12 M.R.S. § 6431(1). Maine law also prohibits taking lobsters by any method other than conventional lobster traps. 12 M.R.S. § 6432(1). Thomas was charged with violating both statutes. ...

[*P6] The Blue Water was in the federal exclusive economic zone (EEZ) at the time of the search. The EEZ extends two hundred nautical miles from where the territorial sea is measured, and “the inner boundary of that zone is a line coterminous with the seaward boundary of each of the coastal States.” 16 U.S.C.S. § 1802(11) (LexisNexis 1999); see also Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 14, 1983).

[*P7] The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.S. §§ 1801-1884 (LexisNexis 1999 & Supp. 2010), applies in the EEZ. ...

[*P9] The court denied Thomas’s motion to suppress, finding that the officers had an independent legal basis to search the Blue Water, because Maine law requires a person licensed under the marine resource laws “to submit to inspection and search for violations related to the licensed activities by a marine patrol officer.” 12 M.R.S. § 6306(1) (2007). The court held that section 6306 applied to the Blue Water in the EEZ because the Blue Water was a vessel registered under the laws of Maine. See 16 U.S.C.S. § 1856(a)(3). Therefore, neither Thomas’s consent nor probable cause was necessary to allow the search.

Permalink 12:15:29 am, by fourth, 283 words, 631 views   English (US)
Categories: General

IN: If a vehicle frisk for a weapon is proper, it can go into the locked glove compartment

The officer stopping defendant was told that he was a suspect in several shootings, including a homicide. That, and defendant’s slowness to respond to the officer’s commands to get out of the car, were justification for a vehicle frisk for a weapon, including the locked glove compartment. Parish v. State, 936 N.E.2d 346 (Ind. App. 2010):

At the time of the traffic stop, Parish was a suspect in several shootings, including a homicide, and the police were on high alert that Parish was armed. Indeed, a “gang unit” officer had warned other officers that Parish had threatened to kill the next police officer he encountered and was even taking drugs in preparation for a shootout with the police. In addition, when Officer Foster first approached Parish’s car and told him to step out of the vehicle, Parish did not immediately comply. He instead asked Officer Foster why she did not want to see his driver’s license and registration. Only when Officer Foster explained to Parish that she knew who he was and again told him to step out of the car did he slowly take off his seat belt and exit the car.

Under these facts and circumstances, a reasonably prudent person in Officer Foster's position would be warranted in the belief that her safety was in danger. Officer Foster was therefore justified in searching the passenger compartment of Parish’s car, limited to those areas in which a weapon might be placed or hidden. ...

A handgun in plain view on the floorboard of a car stopped by the police is justification for a search incident of the car under Gant. Johnson v. United States, 2010 D.C. App. LEXIS 666 (November 12, 2010).*

Permalink 12:08:21 am, by fourth, 164 words, 493 views   English (US)
Categories: General

CA11: Information that defendant was here illegally and was wanted for a double homicide in Mexico was justification for approaching him

Officers had reasonable suspicion to support their initial approach to defendant based on information that he was in the United States illegally and was wanted in Mexico for homicide. Defendant’s actions when he was told to raise his hands, but put them in front of his waistband gave rise to probable cause for arrest. His search produced a gun there. His wife validly consented, and all that was used to get a search warrant. United States v. Ochoa, 402 Fed. Appx. 478 (11th Cir. 2010) (unpublished).*

A bankruptcy case recognized the doctrine of collateral estoppel from a criminal conviction, noting that Allen v. McCurry, 449 U.S. 90, 95-96 (1980), is a collateral estoppel bar to relitigating a search claim in federal court that the state court has already affirmed. Williams v. Meyer (In re Williams), 438 B.R. 679 (10th Cir. BAP 2010).*

Defendant’s stop for speeding was valid despite the fact the police car did not have a certified speedometer. United States v. Rowls, 402 Fed. Appx. 467 (11th Cir. 2010) (unpublished).*

Permalink 12:01:43 am, by fourth, 218 words, 3151 views   English (US)
Categories: General

CA6: $100k verdict against officer procuring bad SW affirmed

$100,000 verdict for a wrongful search warrant arising from a landlord tenant dispute was affirmed. Ellison v. Balinski, 625 F.3d 953 (6th Cir. 2010):

In any case, even assuming the existence of probable cause as to the occurrence of a crime, the affidavit failed entirely to establish a nexus between the material to be seized and the place to be searched. The affidavit did not state how Defendant came to know that MyaBrooke Properties was located at the residence, or, more critically, why documentation of an allegedly fraudulent mortgage might with a fair probability be found there. Given these rather stark defects in the affidavit, a reasonable jury could conclude that Defendant lacked probable cause when she applied for the warrant to search Plaintiff's residence.

“‘The Court of Federal Claims is a court of limited jurisdiction.’ Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997). Plaintiff’s constitutional, tort and criminal claims fall outside of that limited jurisdiction.” Moreover, the State of California and individual defendants cannot be sued in that court. Reid v. United States, 95 Fed. Cl. 243 (2010).*

Defendant’s motion to suppress his stop on a club parking lot on a military base because it was not a “highway” within state law is granted and the case is dismissed. United States v. Irving, 2010 U.S. Dist. LEXIS 119627 (E.D. Va. November 10, 2010).*


Permalink 05:10:43 pm, by fourth, 31 words, 481 views   English (US)
Categories: General

Lexis's Emerging Issues Commentary on Maynard

On Lexis's Emerging Issues Commentary by Michele L. Berry: United States v. Maynard and GPS Surveillance: Prolonged Surveillance Equates a Search under the Fourth Amendment (summary version) [Lexis subscriber version here.]

Permalink 03:20:41 pm, by fourth, 305 words, 432 views   English (US)
Categories: General

D. Mass.: Entry into an office in Hong Kong by U.S. officials was not governed by the Fourth Amendment

Officers went into defendant’s offices in Hong Kong in an investigation of conspiracy to import illegal munitions into the U.S. The entry into the office by U.S. officials in Hong Kong was not governed by the Fourth Amendment because defendant was not a U.S. citizen, even if it was a “search” and not just a plain view. United States v. Shek, 2010 U.S. Dist. LEXIS 119484 (D. Mass. November 10, 2010):

Moreover, to the extent that it could be said there was a search of Jetpower by the U.S. agents, the Fourth Amendment’s protections do not apply. Both the Supreme Court and the First Circuit have unequivocally stated that the Fourth Amendment does not apply to searches or seizures of aliens that take place on foreign territory. See United States v. Verdugo-Urquidez, 494 U.S. 259, 267, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990) (“There is ... no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters.”); United States v. Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008) (“As we have said before, the Fourth Amendment does not apply to activities of the United States against aliens in international waters.” (citation and internal quotation marks omitted)).

Like the defendants in Verdugo-Urquídez and Vilches-Navarrete, at the time of the 2003 visit, Chan was an alien, not residing in the United States, and the search of his office took place on foreign soil. Verdugo-Urquídez, 494 U.S. at 274; Vilches-Navarrete, 523 F.3d at 13. Consequently, with respect to any observations made by the agents while present at Jetpower’s office either on October 20 or 29, 2003, “the Fourth Amendment has no application.” Verdugo-Urquídez, 494 U.S. at 275. Accordingly, I will deny the motion to suppress any evidence arising from the purported search of Jetpower’s office.

Permalink 03:14:25 pm, by fourth, 202 words, 454 views   English (US)
Categories: General

CA3: Daughter's complaint of sex abuse to police was PC for arrest foreclosing civil case, even if officers should have inquired further

Daughter’s claim of sexual abuse was probable cause for charges to be filed against the plaintiff. He was acquitted at trial. His § 1983 claim that a further investigation was required did not satisfy the “shock the conscience” standard. Livingston v. Allegheny County, 400 Fed. Appx. 659 (3d Cir. 2010) (unpublished):

No genuine issue exists in this case as to whether Appellees’ actions “shocked the conscience.” Appellees’ investigation certainly may have benefitted from additional interviews and evidence collection. Dr. Nathan recommended a forensic interview of B.W. and none was conducted. Appellees did not collect N.W.’s or B.W.’s school and hospital records, or CYF files. Evidence from these records and files would have revealed B.W.’s previous false allegation of physical abuse, CYF’s prior findings of no abuse in the Livingston house, and N.W.’s recent suicide attempt and emotional state. Yet, these failures do not rise to the required culpability standard that their behavior “shocked the conscience.”

The record supports the conclusion that defendant’s wife had actual and apparent authority to consent to the search of their home, and there was no question as to voluntariness of consent. United States v. Stone, 399 Fed. Appx. 684 (2d Cir. 2010) (unpublished).*

Permalink 10:08:19 am, by fourth, 165 words, 672 views   English (US)
Categories: General

OH4: Illegal search does not justify an assault on the officers

The forced warrantless entry into defendant’s camper was not justified by exigent circumstances. The assault on the deputies, however, was not justified by their illegal entry. A motion to suppress will not be granted over an independent criminal act. State v. Browning, 2010 Ohio 5417, 190 Ohio App. 3d 400, 942 N.E.2d 394 (4th Dist. 2010), discretionary appeal not
allowed, 2011 Ohio 1049, 128 Ohio St. 3d 1426, 943 N.E.2d 573 (2011).

After a traffic stop, a furtive movement toward the dashboard was justification for a frisk of the car under the dashboard. State v. Gillenwater, 2010 Ohio 5476, 2010 Ohio App. LEXIS 4609 (8th Dist. November 10, 2010).*

DUI stop resulted in a valid plain view of a vial in a compartment in the door of PCP. State v. Wilson, 2010 Ohio 5478, 2010 Ohio App. LEXIS 4606 (8th Dist. November 10, 2010)

The police knew the informant, and they were able to corroborate his information. This gave probable cause for the search of defendant’s car, and the issue of consent did not have to be decided. State v. Duffus, 125 Conn. App. 17, 6 A.3d 167 (2010).*


Permalink 11:32:24 am, by fourth, 322 words, 895 views   English (US)
Categories: General

WaPo: "New [TSA] searches too personal for some air travelers"

New searches too personal for some air travelers by Derek Kravitz in today's Washington Post:

Airport travelers call it groping, prodding or just plain inappropriate - a pat-down that probes places where the sun doesn't shine. The Transportation Security Administration calls it the new reality of airport security.

Following the uncovering of a terrorist plot last month to blow up cargo planes en route to the United States, the TSA has instituted a new type of pat-down of passengers, a move that's part of a general tightening of air security. If a full-body scanning machine shows something strange or a passenger declines to go through the machine - which is now in use in the Washington region's three major airports - an officer will perform a more personal search.

The examinations routinely involve the touching of breasts and genitals, invasive searches designed to find weapons and suspicious items. The searches, performed by TSA security officers of the same sex as the passenger, entail a sliding hand motion on parts of the body where a lighter touch was used before, aviation security analysts say. The areas of the body that are being touched haven't changed.

This is mild. Many citizens and bloggers are accusing TSA of sexual assault from such diverse sources as CBSNews, Prison Planet, Debate Politics, Compuserve, Huliq, and others.

The fact is that these patdowns are just as intrusive as, or more intrusive than, a patdown based on reasonable suspicion of being armed with a weapon or being checked into a jail. And just for the price of buying an airline ticket you get your genitals touched like a common criminal. What have we come to? Suspicionless patdowns that include the genitals.

Update: As I was sitting here starting to work on case postings, I just happened to think: Last month's "terrorist plot" involved laser printer cartridges in cargo, not genitals. What's the connection? Last Christmas was the underwear bomber.

Permalink 08:30:06 am, by fourth, 155 words, 678 views   English (US)
Categories: General

Findlaw: "Is Philly's 'Stop and Frisk' Racial Profiling?"

On the Findlaw Blotter: Is Philly's 'Stop and Frisk' Racial Profiling? by Laura Strachan:

Stop and frisk sounds more like a trendy dance move or a board game than a form of racial profiling. But that is exactly what some critics are claiming the real purpose behind Philly's stop and frisk approach to law enforcement is. The Philadelphia stop and frisk policy has now become the center of a civil rights lawsuit, according to The Philadelphia Inquirer.

The suit claims that in 2009, 72% of pedestrians that were stopped under the policy were African American. "Implicitly, the message is to make as many stops as you can and hopefully you will find something," said one attorney working on the case. The purpose behind the Philly stop and frisk policy was to decrease the rising crime rate on the streets. Although officers were trained, the suit alleges that the behavior of the force seems to ignore the training.


Permalink 12:25:03 am, by fourth, 201 words, 450 views   English (US)
Categories: General

GA: Audio of co-occupant's consent showed it was voluntary

Defendant was accused of beating a woman with a tree limb, and the police responded. He was in his house showering, and they were able to determine where he was. They were admitted by a co-occupant and had audio of the consent which showed it was voluntary. Evidence of the beating was found inside. Brown v. State, 2010 Ga. LEXIS 844 (November 8, 2010).*

The defendant’s shop in an outbuilding was not specifically named in the search warrant, but it was included within the warrant because it was a regularly used part of the household. Mere ministerial defects in the return did not invalidate the execution of the warrant. United States v. Wilkerson, 2010 U.S. Dist. LEXIS 117964 (M.D. Ala. August 18, 2010).*

Defendant was tasered by the officer after he refused to submit to arrest and fled from the stop with an assault rifle in hand. Considering the circumstances, tasering him during the arrest was reasonable, and the arrest was with probable cause. United States v. Harris, 2010 U.S. Dist. LEXIS 119015 (W.D. Pa. November 9, 2010).*

Use of force in a jail against an immigration detainee is governed by the due process clause, not the Fourth or Eighth Amendments. Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010).*

Permalink 12:13:38 am, by fourth, 278 words, 1003 views   English (US)
Categories: General

W.D.Tenn.: Automatic License Plate Recognition (“ALPR”) alert of stolen car was reasonable suspicion

Memphis PD police cars have Automatic License Plate Recognition (“ALPR”) technology which reads license plates and compares the information against a national database of stolen cars. A hit is reasonable suspicion for a stop. Observation of shotgun shells in the back seat justified a search of the vehicle for a weapon. United States v. Lurry, 2010 U.S. Dist. LEXIS 118456 (W.D. Tenn. June 23, 2010).*

Gant would be applied retroactively without guidance from the Missouri Supreme Court. State v. Kingsley, 2010 Mo. App. LEXIS 1490 (November 9, 2010).*

The officer stopped because defendant’s car was broken down, so he did not stop the defendant. United States v. 2002 BMW 745i, 2010 U.S. Dist. LEXIS 118656 (D. Neb. November 5, 2010)*:

The BMW was completely disabled at the time the canine sniff was ordered and conducted, and Mr. Kasper was unable to remove the BMW from the roadside without a tow truck. Mr. Kasper's personal freedom of movement was not delayed as a result of the canine sniff or while the canine sniff was conducted, and had the canine not indicated to the presence of a controlled substance, the BMW would have been towed without any meaningful delay. Any delay caused by conducting the canine sniff before the towing procedures could begin did not violate Mr. Kasper’s Fourth Amendment rights. See, e.g., United States v. Va Lerie, 424 F.3d 694, 706 (8th Cir. 2005) (applying similar principles to the brief detention and canine sniff of a traveler’s luggage); United States v. Quoc Viet Hoang, 486 F.3d 1156, 1162 (9th Cir. 2007) (finding a brief detention of a package did not violate the fourth amendment where it did not interfere with the delivery in the normal course of business without meaningful delay).

Permalink 12:02:12 am, by fourth, 186 words, 791 views   English (US)
Categories: General

ID: The exclusionary rule does not apply in civil child protection cases

The exclusionary rule does not apply in child protection cases (citing a lot of cases from various jurisdictions). Idaho Dep't of Health & Welfare v. Doe, 244 P.3d 247 (Idaho App. 2010).

Defendant’s implied consent was still valid despite the officer’s comment that if she didn’t comply with giving a breath test, a blood test would occur. State v. Leclercq, 149 Idaho 905, 243 P.3d 1093 (App. 2010)*:

Here, Trooper DeBie informed LeClercq of his intention to obtain a blood draw should she refuse to comply with the breath test. The unpleasantness of the available options did not render the officer’s statement coercive. The magistrate determined that while the officer’s use of the word “force” to describe what would happen if LeClercq refused the breath test was troubling, under the totality of the circumstances, the officer's actions were permissible. Informing a suspect that refusal of a breath test will result in a “forcible” blood draw may not be an advisable practice. However, Trooper DeBie’s statement, in light of all of the circumstances, did not amount to coercion such that it rendered LeClercq’s implied consent involuntary.


Permalink 05:07:33 pm, by fourth, 133 words, 511 views   English (US)
Categories: General

CNN: Pilot's union urges members to avoid body imaging

Pilots urged to avoid body scanning by Marnie Hunter on CNN:

Pilots' unions for US Airways and American Airlines are urging their members to avoid full-body scanning at airport security checkpoints, citing health risks and concerns about intrusiveness and security officer behavior.

. . .

"Based on currently available medical information, USAPA has determined that frequent exposure to TSA-operated scanner devices may subject pilots to significant health risks," Cleary wrote.

American Airlines pilots have also received guidance from their union, the Allied Pilots Association, to decline full-body scanning. APA represents 11,000 pilots.

Officer behavior?

USAPA refers to incidents where Transportation Security Administration officers may have implemented the screening technique inappropriately.

One pilot described his experience as "sexual molestation," according to Cleary's letter. Bates wrote, "There is absolutely no denying that the enhanced pat-down is a demeaning experience."

Permalink 10:37:11 am, by fourth, 206 words, 433 views   English (US)
Categories: General

N.D.Ind.: Defendant's claim of consent being involuntary because of intoxication not supported by record

“In determining voluntariness, the following facts are considered: (1) the person's age, intelligence and education; (2) whether she was advised of her constitutional rights; (3) how long she was detained before she gave her consent; (4) whether her consent was immediate, or was prompted by repeated requests by the authorities; (5) whether any physical coercion was used; (6) whether she was in police custody when she gave her consent; and (7) the intoxication of the individual.” Defendant said she was under the influence of Vicodin, but there is no evidence that she was intoxicated. United States v. Wiley, 2010 U.S. Dist. LEXIS 119037 (N.D. Ind. November 8, 2010).*

Defendant consented to go to the police station, and that contributed to the finding of voluntariness. United States v. Barber, 2010 U.S. Dist. LEXIS 118608 (S.D. W.Va. November 8, 2010).*

Stop for an open container was valid, and it was in a high-crime area the officer normally patrolled. Defendant’s furtive movement justified a patdown. United States v. Terry, 2010 U.S. Dist. LEXIS 118782 (W.D. Pa. November 8, 2010).*

Defendant’s claims of IAC for defense counsel at the suppression hearing was unavailing. The things that petitioner claimed would have aided the court wouldn’t, so no IAC. United States v. Alexander, 2010 U.S. Dist. LEXIS 118804 (W.D. Wis. November 8, 2010).*

Permalink 10:11:44 am, by fourth, 230 words, 425 views   English (US)
Categories: General

E.D.Pa.: 911 call about robbery was not specific enough for a stop, but the actions of the car and the area added enough to justify the stop

The police received an anonymous 911 call about a robbery by two black males in a silver Escalade. It was insufficient to provide reasonable suspicion for a stop without more, and, on following the car, more was evident and gave enough for a stop. United States v. Parker, 2010 U.S. Dist. LEXIS 118735 (E.D. Pa. November 5, 2010)*:

(1) The reputation of the area in which the stop occurred for criminal activity;
(2) A suspect's presence on a street at a late hour;
(3) A suspect's "nervous, evasive behavior," or flight from police;
(4) A suspect behaves in a way that conforms to police officers' specialized knowledge of criminal activity;
(5) the geographic and temporal proximity of the stop to the scene of the alleged crime; and
(6) the number of persons in the area.

Defendant was stopped and the officer could smell marijuana, but he did not immediately act on that, but the delay did not nullify the probable cause. His efforts to get defendant out of the car resulted in defendant being arrested for battery, and any affirmative defense to the battery did not undermine probable cause. United States v. Hampton, 2010 U.S. Dist. LEXIS 119092 (M.D. Fla. September 15, 2010).*

Petitioner’s habeas claim while his state criminal case is pending is barred by Younger v. Harris, so he obviously gets no COA for appeal. Grimes v. Fourth Judicial Dist. Court, 2010 U.S. Dist. LEXIS 118599 (D. Nev. October 20, 2010).*

Permalink 12:01:48 am, by fourth, 820 words, 648 views   English (US)
Categories: General

ID: GPS "search" claim not preserved, and not plain error since law unsettled

Defendant’s claim that GPS tracking was a “search” in violation of the Fourth Amendment was not preserved by his general foundation argument. Under plain error review, the court cannot find that it was fundamental error since the law is in disarray. State v. Danney, 2010 Opinion No. 73, 2010 Ida. App. LEXIS 89 (November 5, 2010)*:

Danney's claim of fundamental error does not satisfy this test, for the law is not settled on whether use of a GPS device to track a vehicle&s movements constitutes a “search” subject to the strictures of the Fourth Amendment. Neither the United States Supreme Court nor Idaho appellate courts have spoken to this issue, nor have the vast majority of the federal circuit courts. See People v. Weaver, 909 N.E.2d 1195, 1202 (N.Y. 2009) (noting that both the United States Supreme Court and most federal circuit courts had not yet ruled on the issue). To the extent that it has been addressed, the jurisprudence in this area is conflicting. The United States Supreme Court's decision that is closest on point is United States v. Knotts, 460 U.S. 276 (1983), where the Court examined the constitutionality of the warrantless use of a “beeper” device planted on a vehicle and used to track the progress of the vehicle by officers following the beeper's signals. The Court concluded that law enforcement officers did not conduct a “search” cognizable under the Fourth Amendment by using the beeper to track a vehicle because “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281. This was so, the Court said, because the particular route taken, stops made, and ultimate destination are apparent to any member of the public who happens to observe the vehicle's movements, and “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” Id. at 282. At least two federal circuit courts have held that the Knotts analysis applies equally to the more technologically advanced GPS devices now used by law enforcement, concluding that the warrantless placement of a GPS tracking device on a vehicle does not implicate the Fourth Amendment. United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007). See also Osburn v. State, 44 P.3d 523, 525-26 (Nev. 2002) (holding that the police use of an electronic mobile tracking device does not infringe a reasonable expectation of privacy). Of course, if Knotts, Pineda-Moreno, and Garcia control on this issue, then Danney has not only failed to show fundamental error, he has failed to show any error at all, for the officers' employment of a GPS device to track Danney's vehicle would not be deemed violative of the Fourth Amendment.

Danney points, however, to decisions of several state supreme courts that have held the use of a GPS tracking device without a warrant was impermissible under their respective state constitutions. See Commonwealth v. Connolly, 913 N.E.2d 356, 369 (Mass. 2009); Weaver, 909 N.E.2d at 1202; State v. Campbell, 759 P.2d 1040, 1041 (Or. 1988). Danney urges that we adopt the analysis of the Weaver court which, although deciding the issue according to state law, also strongly suggested that Knotts should be inapplicable to GPS technology. The Weaver court observed that while “[a]t first blush it would appear that Knotts does not bode well for Mr. Weaver, for in his case, as in Knotts, the surveillance technology was utilized for the purpose of tracking the progress of a vehicle over what may be safely supposed to have been predominately public roads and, as in Knotts, these movements were at least in theory exposed to anyone who wanted to look,” this was where the similarity ended. Weaver, 909 N.E.2d at 1198-99 (quoting Knotts, 460 U.S. at 281). The court focused on the disparity in the technology, noting that the device used in Knotts was a “very primitive tracking device” which was “fairly described ... as having functioned merely as an enhancing adjunct to the surveilling officers' senses ...,” while “GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability.” Weaver, 909 N.E.2d at 1199. ...

While the Weaver opinion presents an analysis by which the Knotts decision could be deemed inapplicable to the use of GPS tracking devices, it hardly demonstrates that there is settled law holding the warrantless use of such devices to constitute a search governed by Fourth Amendment standards. It is evident that the constitutionality of warrantless use of GPS technology to track vehicle movements is not “obvious” such that the admission of this evidence was plainly error. Accordingly, this issue is not one of fundamental error under the Perry standard that we can consider for the first time on appeal, and for that reason we do not reach the merits.


Permalink 07:46:09 am, by fourth, 506 words, 662 views   English (US)
Categories: General

E.D.Wis.: Ruse to get consent to look at defendant's computer was not invalid

Officers used a ruse to get access to defendant’s computer that there had been a computer security breach where family pictures had been posted on the internet. The court finds defendant’s authority, United States v. Richardson, sufficiently different that the consent was valid. United States v. Krueger, 2009 U.S. Dist. LEXIS 130067 (E.D. Wis. July 22, 2009):

Relying on United States v. Richardson, 583 F. Supp. 2d 694 (W.D. Pa. 2008), defendant argues that the police caused him to believe that he was a victim of a computer security breach, that his consent was limited to investigating such a breach, and that the search for images of child pornography thus exceeded the scope of his consent. Like the magistrate judge, I reject the argument.

In Richardson, officers conducting a child pornography investigation obtained consent to search the defendant’s computers by leading him to believe that he had been a victim of credit card fraud. Id. at 698-701. The officers then conducted a forensic examination of the computers, which revealed images of child pornography. Id. at 703-04. The lead officer admitted that she used a ruse to obtain consent, which she maintained throughout her dealings with the defendant. Id. at 701-05. The court found that, based on the officers’ artifice in approaching the defendant as a potential crime victim, his consent was limited to evidence of illegal credit card activity over the internet. Id. at 718.

The present case involves no similar trickery. Andrews told defendant:

I was following up on a computer investigation in which images of his family members had been posted to the Internet. And I told him that I was concerned because they were images of his family members. And, that’s why I had come to his house for the investigation, and that it involved computers in his house.

(Tr. at 11.) Andrews may not have fully disclosed the nature of her investigation, but she made no false or misleading statements. She did not lead defendant to believe that he — as opposed to his family members — was a victim, or suggest that the officers would refrain from searching the computers for any evidence of his potential wrongdoing. Further, unlike in Richardson, nothing in Andrews’s preliminary statements suggested a limitation on the scope of the search. In Richardson, the court found the forensic search for images wholly unrelated to the expressed object of the search — illegal, on-line use of credit cards. See id. at 720-21. Here, the conversation between defendant and Andrews, although general, pertained to “images” of defendant’s family members, and Andrews specifically advised defendant that the computers would be removed from the residence for a forensic exam. (Tr. at 16.) Finally, as the magistrate judge explained, an investigation into how the images Andrews mentioned ended up on the internet “would naturally include a review of image files on [defendant’s] computer to determine, for example, if the specific photographs were on [defendant’s] computer, as well as internet protocol data to determine, for example, which computer might have posted the photographs.” (R. 24 at 11.)

Permalink 07:29:40 am, by fourth, 377 words, 601 views   English (US)
Categories: General

N.D.Ga.: Forensic search of computer after Rule 41's ten day requirement not void

Search warrants do not have expiration dates. Defendant’s computer was seized within the time requirement of Rule 41, but it was not forensically searched for child pornography until after that. Plenty of authority says that the later forensic search under the original warrant is valid. There is nothing showing bad faith. United States v. Hodges, 2010 U.S. Dist. LEXIS 118437 (N.D. Ga. September 15, 2010):

Moreover, in this case, completion of the analysis of the hard drives after the expiration of the search warrant could not rise to the level of a constitutional violation and cannot be the basis for suppressing evidence seized because probable cause continues to exist, the government did not act in bad faith, and there was no prejudice to the Defendant. Probable cause did not dissipate during the nearly two-month delay in completing the off-site analysis of the hard drives. Because the computers were in possession of law enforcement, there was little chance that any incriminating evidence might be removed from the computers. Additionally, probable cause was actually enhanced by the delay because prior to the November 29, 2009 expiration of the search warrant, Special Agent Richardson began looking at the hard drives and found hundreds of images which contained erotica of young boys and child pornography. (Tr. 14). Furthermore, Special Agent Richardson did not act in bad faith in order to avoid any requirements imposed by the search warrant. The nearly two month delay was not unreasonable given that Special Agent Richardson had to clone the hard drives, load the images into his forensic analysis program, ran out of disc space, competed with other agents for time to use the imaging machine, and had difficulty accessing the information on the hard drives due to Defendant's encryption efforts. Finally, Defendant does not identify any prejudice resulting from the delay in completion of the forensic analysis. Therefore, Defendant's Motion to Suppress Evidence Obtained Pursuant to Warrantless Search of Computer Storage Equipment should be DENIED.

A GPS device was placed on the subject vehicle in this case, and the government had probable cause at the time of placement to believe that the vehicle would be used to transport drugs because it had been used for that twice before. United States v. Haces-Delgado, 2010 U.S. Dist. LEXIS 118438 (N.D. Ga. September 15, 2010).*

Permalink 07:13:23 am, by fourth, 317 words, 569 views   English (US)
Categories: General

N.D.Cal.: 9th Cir. CSLI warrants are governed by Pineda-Moreno GPS case

Cell site location information (“CSLI”) warrants in the Ninth Circuit have to be governed by its GPS case, Pineda-Moreno, and the government prevails. United States v. Velasquez, 2010 U.S. Dist. LEXIS 118045 (N.D. Cal. October 22, 2010):

In any event, even if defendant Velasquez had demonstrated a subjective expectation of privacy in (415) 240-0634, he cannot demonstrate that he had a reasonable expectation of privacy for Fourth Amendment purposes. There is no legitimate expectation of privacy in basic, non-content phone records — such as the telephone numbers of incoming and outgoing calls — which are by their nature voluntarily conveyed to the third-party service provider. See, e.g., Smith v. Maryland, 442 U.S. 735, 744, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); United States v. Plunk, 153 F.3d 1011, 1020 (9th Cir. 1998), overruled on other grounds by United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000); United States v. Lustig, 555 F.2d 737, 747 n.10 (9th Cir. 1977). Although our court of appeals has not specifically addressed the extent to which this line of decisions applies to CSLI, its decision in United States v. Pineda-Moreno is analogous and governs the inquiry of the records specifically at issue here. United States v. Pineda-Moreno, 591 F.3d 1212, 1217 (9th Cir. 2010).

After a GVR in light of Gant, the district court conducted a hearing and concluded that the evidence the officer had that the vehicle was likely stolen made its seizure and inventory valid, and the record supports that conclusion. United States v. Dunson, 2010 U.S. App. LEXIS 23172 (5th Cir. November 5, 2010) (unpublished).*

Officers working with a reliable [of course] CI buying off the defendant had arranged a signal for when the defendant would have drugs on him. The CI gave the signal, and the officers came in and arrested the defendant. His car nearby was searched with probable cause he brought drugs to the place of the buy and Gant did not apply, although it predated the suppression hearing. United States v. Webster, 625 F.3d 439 (8th Cir. 2010).*


Permalink 09:52:22 pm, by fourth, 57 words, 419 views   English (US)
Categories: General

Reuters: "Look out, your medicine is watching you"

Look out, your medicine is watching you by Ben Hirschler of Reuters: smart RFID transmitters in medication, activated by stomach acid, transmitting to a patch on the skin to tell whether the patient is taking medication properly.

And you thought those guys talking about the transmitters planted in their bodies were crazy... Just ahead of their time.

Permalink 09:43:21 pm, by fourth, 128 words, 681 views   English (US)
Categories: General

CNN: "Fliers debate airport prodding, scanning"

Fliers debate airport prodding, scanning by Marnie Hunter on

Increased scanning and prodding at airport checkpoints have many in the sock-footed parade of American air travelers up in arms about security screening.

Full-body imaging machines and enhanced pat downs are among the more recent -- and controversial -- tools the Transportation Security Administration has added to its layered approach to detecting threats. readers have expressed and debated their views in the comments area of stories related to airport screening. Here are some common views:

I got my first full body scan by the unseen character in the other room. I'm sure the TSA guy was joking just like the one in Miami.

Finally, a paying job for peeping toms and other men of vision.

Permalink 06:04:58 am, by fourth, 266 words, 526 views   English (US)
Categories: General

OR: A loud argument is not a DV call, and the warrantless entry was invalid

A mere loud argument in a motel room that the police were called to was not sufficient to justify a warrantless entry into the room. State v. Fredricks, 238 Ore. App. 349, 243 P.3d 97 (2010):

Here, the evidence in the record shows only that Walker overheard a loud argument that, in his words, was “not deescalating.” The record does not contain any other objective indicia of a “potential victim of a dangerous circumstance or a potential perpetrator of a dangerous act.” Id. Where police overhear a loud argument, unaccompanied by any sounds of “physical struggle or an indication that an act of violence ha[s] occured,” a warrantless entry into a defendant’s residence is not authorized by the emergency aid doctrine. Salisbury, 223 Ore. App. at 524. It follows that the trial court erred in denying defendant's motion to suppress.

Judge Moylan trashes the defense Fourth Amendment arguments as being pointless and without citation of authority. Also, the violation of the knock-and-announce rule he declares “trivial” (“the Exclusionary Rule of Mapp v. Ohio does not apply to such relatively trivial breaches of the Fourth Amendment as violations of the knock-and-announce rule. Hudson v. Michigan …”) was also meaningless since the search of the house produced nothing. There was a typo in the year of the search on the inventory which was also meaningless. Woods v. State, 2010 Md. App. LEXIS 170 (November 3, 2010).*

When the officer was standing at the door, the defendant said “Come on in,” and this was consent and supported the plain view of the gun in this case. United States v. Harris, 2010 U.S. Dist. LEXIS 117373 (E.D. Mo. September 27, 2010).*


Permalink 06:58:50 am, by fourth, 288 words, 448 views   English (US)
Categories: General

CA10: PC still found for search of defendant's home even though he had moved after crime

Defendant was indicted for a two year old murder, and police obtained a search warrant for the weapon and clothing potentially worn during the murder, as well as possible communications between defendant and co-conspirators. Even though the defendant moved between the murder and the search warrant, it was reasonable for the magistrate to conclude that the evidence would still be retained at defendant’s new address. Under the Tenth Circuit’s rule (United States v. Gonzales, 399 F.3d 1225 (10th Cir. 2005)), the question of probable cause does not have to even be addressed if the good faith exception would apply, and it does here. United States v. Birch, 401 Fed. Appx. 351 (10th Cir. 2010) (unpublished). [I've always disagreed with this approach to the GFE exception because it is judicial laziness to avoid deciding probable cause and it tends to stop development of the Fourth Amendment. Besides, Gates makes it so easy for judges to not have to think in the first place. So why not decide probable cause?]

Nobody had standing to challenge the stop of the car in this identity theft case. The driver did not know who owned it, and he could not even show how he was in possession of it. The others weren’t even in it. As to a search of a motel room and a house, only one defendant had standing as to them because nobody else claimed to be a guest there. As to the motel room, the government’s claim of protective sweep fails because it must be incident to arrest, and it wasn’t. However, the government did show that the search was by consent by a person with apparent authority. United States v. Poghosyan, 2010 U.S. Dist. LEXIS 117271 (D. Kan. October 28, 2010).*

Permalink 06:37:55 am, by fourth, 224 words, 799 views   English (US)
Categories: General

CA4: Franks motion failed after hearing; misstatement was negligent at worst, and PC anyway

Defendant here actually got to a Franks hearing on inaccurate statements in the affidavit for the search warrant. The USMJ and District Court concluded that the inaccurate statements were the product of the officer being pressed for time to get the search warrant application together, and it was only a misstatement and not intentional or reckless. Moreover, even if the false statement was intentional or reckless, after purging it from the affidavit, probable cause remains, so the motion was properly denied. United States v. Ross, 400 Fed. Appx. 730 (4th Cir. 2010) (unpublished).* [My view is: if in doubt, give the defendant a Franks hearing. It doesn't take that long, and it makes resolution of the motion and the appeal far easier. And, based on what I see from the cases, probable cause will usually be found on the remainder of the affidavit for search warrant anyway because Gates makes the question of probable cause so ephemeral anyway.]

Appellant’s Fourth Amendment claim that DHS workers illegally entered or stayed in her house on a home visit that led to a claim of unfit parenting was not within a final appealable order. Bryant v. People, 2010 V.I. Supreme LEXIS 66 (January 15, 2010).*

Defendant’s motion to suppress was denied and appealed, so it cannot be relitigated in a § 2255. United States v. Lopez-Mendoza, 2010 U.S. Dist. LEXIS 117318 (D. Neb. November 3, 2010).*

Permalink 04:07:37 am, by fourth, 401 words, 1045 views   English (US)
Categories: General

FL2: "Felony pick-up order" not issued by judge does not permit entry into home under Payton

A Florida "felony pick-up order" issued by a police supervisor and not a judicial officer authorizes a warrantless arrest on probable cause, but it cannot permit an entry into a dwelling under Payton. Bennett v. State, 46 So. 3d 1181 (Fla. 2d DCA 2010):

In his motion to suppress and on appeal, Bennett argues that a pick-up order is not a warrant and did not authorize the officer's entry into the premises. The State convinced the trial court that the officer's warrantless entry was justified by section 901.19(1), Florida Statutes (2007), which provides in pertinent part as follows:

901.19 Right of officer to break into building.

(1) If a peace officer fails to gain admittance after she or he has announced her or his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, the officer may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

We agree that the pick-up order authorized a warrantless arrest. See § 901.15(2) (authorizing officer to make warrantless arrest when "[a] felony has been committed and [the officer] reasonably believes that the person committed it"). But we cannot agree that the statute was a proper basis for the officer's entry into the dwelling.

The United States Supreme Court has clearly held that "the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Payton v. New York, 445 U.S. 573, 576 (1980) (citations omitted). In reaching this result, the Supreme Court had before it New York statutes, similar to the Florida statute cited by the State and described above, which (1) allowed a warrantless arrest when a felony was committed and the officer had reasonable cause to believe it was committed by the person to be arrested, and (2) allowed an officer, announcing his office and purpose, to break into a building after being refused admittance. Id. at 578 n.6. In fact, the Supreme Court cited Florida's statute, section 901.19, in its discussion of similar statutes enacted by some twenty-four states, id. at 598 n.46; and the Court later noted that Florida was one of only two states whose courts had found warrantless entries under such circumstances to be constitutional, id. at 600.


Permalink 11:38:40 pm, by fourth, 292 words, 444 views   English (US)
Categories: General

MA: No IAC for seeking to use evidence from bad search in murder trial -- Practice pointer in action

Defense counsel does not always want to exploit a bad search. In this murder case, a search warrant was issued for defendant’s house and his car that was not on the curtilage was searched under the warrant for the house. The state conceded that the search of the car was bad. However, during the trial, it became tactically important to defense counsel to go into what was found, and it became important during cross-examination of the investigating officers because it showed inconsistencies in the investigation. “Counsel in fact highlighted the inconsistencies just described in his cross-examination of Detective McDermott and Trooper Foley, and he argued the point forcefully in closing.” It was not ineffective assistance of counsel to do so. Commonwealth v. Greineder, 458 Mass. 207, 936 N.E.2d 372 (2010).

This case underscores what experienced defense counsel will inevitably encounter. As discussed in § 45.18 of the Treatise, do you need the evidence from the illegal search to prove another point that is more beneficial? You can file a motion to suppress, but, as the trial date closes in, the defense strategy for witness examination may be evolving and may require foregoing the motion to suppress entirely. Or, you may try the motion and win it, and then unexpectedly find you need to use the evidence at trial anyway. It happens, and it has happened to me. After all, no matter how well prepared you are, a trial always includes a series of unanticipated events that requires quick thinking and judgment calls based on one's experience. Just because you won or can win a motion to suppress doesn't mean that you have to remain locked in to it as the trial progresses. Usually the object is winning the criminal trial, not just the motion to suppress.

Permalink 11:00:32 pm, by fourth, 278 words, 438 views   English (US)
Categories: General

W.D.Okla.: Officer's stepping into house here after detaining one outside was reasonable

In a rapidly evolving situation involving a combative detainee outside, the officer’s action in stepping over the threshold of the house here was reasonable. United States v. Coulter, 2010 U.S. Dist. LEXIS 117232 (W.D. Okla. November 3, 2010)*:

The issue then becomes whether Officer Williams acted illegally when he followed Ms. Silva to the house and, without a warrant, stepped across the threshold. Although a close question, the court concludes that under the facts of this case, he acted reasonably and did not violate defendant's Fourth Amendment rights.

At the point when the detective entered the house, the officers were unaware of the reasons why defendant had reacted negatively to them and their vehicle. They also lacked any information about defendant. However, Detective Williams was familiar with the neighborhood. He stated he had been there many times during the past two years and had another target house just around the corner from defendant's residence. In just a matter of minutes the officers had been confronted by a combative defendant and a verbally aggressive girlfriend in a neighborhood connected with drug activity. Although Ms. Silva had calmed down somewhat, the officers still had valid safety concerns when she got up and started towards the house despite being told she could not enter unaccompanied. It was not unreasonable for the officers to want to keep her within eyesight until they determined what was going on. Detective Williams stepped in the house only far enough to observe Ms. Silva as she retrieved her license from her purse.

The CI was reliable, and the dog sniff was reasonable. United States v. Maddox, 398 Fed. Appx. 613 (D.C. Cir. 2010) [two paragraph per curiam; no facts].*


Permalink 08:17:57 am, by fourth, 789 words, 674 views   English (US)
Categories: General

CA5: GFE saves search warrant without attachments limiting search because the search was not overbroad

The search warrant here did not have the attachments necessary when it was served, but the application for the warrant with all the attachments was reviewed by an AUSA, the USMJ, and all the officers involved were well aware of its limitations. The good faith exception applied. United States v. Allen, 625 F.3d 830 (5th Cir. 2010):

The warrant at issue clearly does not pass constitutional muster. It is undoubtedly broad because of its lack of particularity, absent the affidavit and attachments. Simply incorporating the affidavit and attachments, which stated specifically what the search entailed and what was to be seized, by reference in the warrant could have cured the deficiency of the warrant. That being said, the issue here is not the constitutional invalidity of the warrant, but whether the evidence seized pursuant to the unconstitutionally vague warrant should be suppressed. Indeed, the Supreme Court has clearly stated that suppression is “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

Even though the warrant in this case was not sufficiently particular, we conclude that the fruits of the search are admissible under the good-faith exception. See Leon, 468 U.S. at 913 (“[O]ur evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible ….”). The district court correctly found that the agents involved acted in objectively reasonable good-faith in relying on the search warrant.

As the Supreme Court pointed out recently in Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 699-700, 172 L. Ed. 2d 496 (2009), the exclusionary rule is a judicially fashioned remedy whose focus is not on restoring the victim to his rightful position but on deterring police officers from knowingly violating the Constitution. Therefore, evidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)); see also United States v. Otero, 563 F.3d 1127 (10th Cir. 2009). Otherwise, the “good-faith” rule of Leon applies.

. . .

After the review by his co-workers, Agent Stone presented the application and warrant to the U.S. Attorney's office for review. Only after that review was complete, did Agent Stone present the affidavit to Magistrate Judge Platt for review. Judge Platt took the time to review the affidavit and the search warrant. The agent also testified that Judge Platt signed off on language in the search warrant that states, "I am satisfied that the affidavit and any record testimony establish probable cause to believe that the person or property so described is now concealed on the person or premises above described and establish grounds for the issuance of this warrant." It is clear from the testimony given that Magistrate Judge Platt carefully reviewed the warrant, the affidavit, and the attachment and did not just give the documents a cursory review. Furthermore, he signed the affidavit to which the specific list of items to be seized was attached.

Prior to executing the search warrant, Agent Stone gave his fellow agents, including the forensic analyst, a copy of the search warrant as well as the affidavit and attachments which specifically listed the items to be seized. Stone testified that he did this so they could review it and know what they were searching for. In fact, all of the agents and law enforcement officers who participated in the search were given the affidavit and attachments in advance of the search. There was a brief meeting before executing the warrant, but the affidavit and its attachments were all reviewed and handed to the agents prior to that meeting. Agent Stone told the court at the suppression hearing that after they began executing the warrant, they contacted the U.S. Attorney's office several times with questions about what they could seize.

[It's well known that I'm no fan of the good faith exception as created by Leon, but this case is one of those where I cannot disagree. There clearly was probable cause [there was in Leon, too, but the court pretended there wasn't] and everybody involved in the search knew the limitations. The question of prejudice to the target of the search is always a relevant consideration from the warrant failures. Did the officers exceed the limits of the warrant per the attachments that were left off? No. If they did, then this would have been a far different case.]

Permalink 07:57:06 am, by fourth, 304 words, 576 views   English (US)
Categories: General

VA: Four cases in one day: Gant not preserved; "right result, wrong reason"

Defendant’s vehicle was searched incident to his arrest for public intoxication, and it was [supposedly] valid at the time. Gant was decided after, and the question of search incident was never raised until appeal, so Gant can’t apply. McGhee v. Commonwealth, 280 Va. 620, 701 S.E.2d 58 (2010).*

The officer received an anonymous tip that defendant had warrants for his arrest which was confirmed by dispatch; while he didn’t know whether they were for misdemeanors or felonies, that did not matter. The corroboration of a tip here would have to be applied differently than a tip of facts justifying a stop rather than existence of an arrest warrant. Sidney v. Commonwealth, 280 Va. 517, 702 S.E.2d 124 (2010).*

The “right result, wrong reason” doctrine saves this search of defendant’s person because the officer actually had probable cause before the patdown. Under this doctrine, all the facts necessary to the conclusion have to have been developed in the trial court, and here they were. The court compared other cases where the rule was not applied because the facts weren’t developed. Perry v. Commonwealth, 280 Va. 572, 701 S.E.2d 431 (2010).*

Following Perry then, the court of appeals erred in alternatively concluding that defendant consented to a search of his jacket when he asked for it on being arrested because the facts were not fully developed on this issue. There was a gun in the jacket, and he was a felon. Banks v. Commonwealth, 2010 Va. LEXIS 274 (November 4, 2010).* [One problem here will be “immediately apparent.” Depending on the gun, the weight of a gun in a jacket would be “immediately apparent” to anyone picking up the jacket, akin to “plain feel” under Dickerson. See where this is going? I’m not telling the prosecutors anything they probably won’t figure out on their own, even assuming they ever read this website.]

Permalink 07:27:52 am, by fourth, 199 words, 464 views   English (US)
Categories: General

N.D.Okla.: Taking the defendant's ID is a seizure of the person because no one would feel free to leave

The encounter with the defendants started out consensual. Although the officer did not tell them they were free to leave, it was conversational. Once the officer had IDs in hand and walked to his police car to call them in, it was a seizure. “[A]s the Tenth Circuit has explained, no reasonable person having had his identification taken away would have felt free to terminate the encounter.” United States v. Lopez, 443 F.3d 1280, 1285 (10th Cir. 2006). Turning to reasonable suspicion, the court finds that defendant’s “actions” in a high crime area were reasonable suspicion [but, boy, is this really thin]. United States v. Matthews, 2010 U.S. Dist. LEXIS 116791 (N.D. Okla. November 1, 2010).

The court credits from the videotape that the driver understood English enough to consent to the search of his vehicle. And, the passenger in this case doesn’t have standing. United States v. Torres-Guzman, 2010 U.S. Dist. LEXIS 116878 (E.D. Ark. October 22, 2010).*

Defendant’s objections to the R&R are overruled. The officer had reasonable suspicion, and his grabbing the arm of the defendant was a seizure, but it was reasonable on these facts. United States v. Baker, 750 F. Supp. 2d 921 (W.D. N.C. 2010).*

Permalink 07:01:19 am, by fourth, 577 words, 443 views   English (US)
Categories: General

W.D.N.Y.: Wandering around house to see what officers could see during execution of arrest warrant was unreasonable

Armed with an arrest warrant, officers lawfully entered defendant’s apartment to make an arrest since they had a reasonable belief he was present. Once inside, however, they roamed around to see what they could see, and this was not a valid plain view. “Since the government has not shown that the agents had a lawful reason to be in the living room or kitchen, where they allegedly observed the items which were subsequently seized, the search is illegal even if the items were in ‘plain view’ from those vantage points. ‘If the scope of the search exceeds that permitted by the … character of the relevant exception from the warrant requirement, the search is unconstitutional without more.’ Horton v. California, 496 U.S. 128, 140, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).” The government did not show that a search warrant would not have inevitably been issued, so the search of those rooms was invalid. United States v. Bazzi, 2010 U.S. Dist. LEXIS 117087 (W.D. N.Y. April 21, 2010).

In another order in that same case, an undercover officer going into defendant’s store to buy counterfeit goods was not a search and seizure under Maryland v. Macon. Once in the store, everything else that happened was in plain view. United States v. Bazzi, 2010 U.S. Dist. LEXIS 117024 (W.D. N.Y. April 14, 2010).*

Yet a third order holds that officers have a duty to allow arrestees to get clothing and get dressed, but the officers may control the defendant throughout for officer safety. United States v. Ling Zhen Hu, 2010 U.S. Dist. LEXIS 117088 (W.D. N.Y. November 3, 2010):

The second key fact making entry into the living room permissible in this case is that both defendants were in a state of undress when apprehended. Hu wore only a tank top and underwear, and Lin was dressed in a t-shirt and underwear. Numerous circuits, including the Second Circuit, recognize that a defendant’s scant clothing provides exigent circumstances for a warrantless entry so as to permit a defendant to search for proper clothing. See e.g. United States v. Di Stefano, 555 F.2d 1094, 1101 (2d Cir. 1977) (allowing an officer’s entry into a bedroom solely for the purpose of maintaining control over defendant while she dressed herself); see also United States v. Gwinn, 219 F.3d 326, 335 (4th Cir. 2000) (determining that a defendant’s lack of shirt and shoes while outdoors justified an officer’s warrantless re-entry into the house); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir. 1992) (permitting police to retrieve a defendant’s shoes from his house, but noting that entry into the house does not immediately follow from “the desire of law enforcement officers to complete the arrestee’s wardrobe”). Indeed, the Second Circuit has stated that officers have a “duty” to find appropriate clothing of a defendant upon arrest or to permit that defendant an opportunity to do so herself. DiStefano, 555 F.2d at 1101 (citing United States v. Titus, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S. Ct. 323, 30 L. Ed. 2d 274 (1971); see also United States v. Rudaj, 390 F. Supp. 2d 395, 401 (S.D.N.Y. 2005) (“The Second Circuit has long recognized that an arresting officer has a duty to ensure that an arrestee is sufficiently dressed before removing her from her residence.”). In the fulfillment of that duty, the officer may accompany the arrestee into the residence “to maintain a ‘watchful eye’ on her and to assure that she did not destroy evidence or procure a weapon.” Rudaj, 390 F. Supp. 2d at 401.

Permalink 12:03:12 am, by fourth, 430 words, 787 views   English (US)
Categories: General

New law review article: "The Framers’ Intent: John Adams, His Era, and the Fourth Amendment"

The Framers’ Intent: John Adams, His Era, and the Fourth Amendment by Thomas K. Clancy of the University of Mississippi School of Law, to be published in the Indiana Law Journal, Vol. 86, 2010, on SSRN:


For many years, I have relied on others to cull the historical records and have cited them to support what I thought was accurate historical reporting. In the past decade or so, there have been some broad claims about the historical record that contradict conventional wisdom. Those views have gained substantial traction. I believe that none of the prior accounts properly report or assess the origins of the Fourth Amendment and the central role John Adams played. That is the purpose of the article, which contains new information and adds a new context to the framing of the Amendment.

Courts and scholars seeking the original understanding of the Fourth Amendment have confronted two fundamental questions: what practices was the Amendment designed to regulate; how should a constitution regulate such practices? To inform the answers to those questions, this article offers a new perspective of, and information on, the historical record regarding the framing of the Amendment. It also presents for the first time a detailed examination of John Adams’ fundamental influence on the language and structure of the Amendment and his knowledge of, and views on, how to regulate searches and seizures.

Most of the language and structure of the Fourth Amendment was primarily the work of one man, John Adams. Upon examination, Adams stands out in the founding era as having profound opportunities to examine search and seizure practices and as having the most important role in formulating the language and structure of the Fourth Amendment. If the intent of the Framers is a fundamental consideration in construing the Constitution, as the Court has repeatedly told us it is, then John Adams’ knowledge and views should be considered an important source for understanding the Fourth Amendment. More fundamentally, Adams’ appreciation of search and seizure principles reflects a broader mosaic that demonstrates that the Fourth Amendment was the product of a rich jurisprudence on search and seizure. That jurisprudence offered a structured series of principles to regulate the search and seizure activities of that era and the Amendment was not merely a reaction to general warrants. Further, although the framing era sources did not always agree on the details of the criteria for regulating searches and seizures, they were united in seeking objective criteria to measure the propriety of governmental actions. That quest was firmly embedded into the language and structure of the Fourth Amendment.


Permalink 06:44:37 am, by fourth, 383 words, 447 views   English (US)
Categories: General

VA: Defendant did not abandon car just because he ran off after being confronted by an officer after he got out of it

Defendant got of out his car in an apartment building parking lot. He was encountered by the officer who asked him questions. The officer said that he noticed a bulge in defendant’s waistband, and he was going to pat defendant down. Defendant then ran away and the officer could not catch him. The officer came back and looked in the car, and he noticed the console was not sitting right, and it likely was a storage place for drugs. He asked around if anybody knew whose car this was, and nobody knew. He searched the car. The trial court held that the car was abandoned, but it wasn’t. Watts v. Commonwealth, 57 Va. App. 217, 700 S.E.2d 480 (2010):

Here, appellant neither denied ownership of the car nor relinquished physical control of it in the context of this case, and the additional circumstances also do not support a finding of abandonment. Officer Maxey testified that when he inquired whether the car belonged to appellant, appellant readily admitted rather than denied ownership.

Regarding physical control of the vehicle, Officer Maxey testified that appellant parked in the private parking lot in a fashion similar to the other cars parked there and that he exited the vehicle voluntarily and began walking away before Maxey approached and made appellant aware of his presence. No evidence established appellant left the car unlocked or left the keys behind.

The evidence failed to establish an additional element relevant to the “physical control” analysis--that appellant lacked authority to park where he did. Although Officer Maxey spoke with an unknown number of residents of the apartment building and none of them recognized the car, Officer Maxey did not ask whether any of the residents had seen or recognized appellant himself, and because Officer Maxey did not know who appellant was at that time, he was unable to ask about appellant by name. The Commonwealth also did not establish that Officer Maxey spoke with all of the building’s residents. Further, the gold vehicle bore temporary license tags, and appellant had told Officer Maxey he “just” bought the vehicle, thereby leaving open the hypothesis that appellant was authorized to park the car there and that the residents with whom Officer Maxey spoke simply were not yet able to recognize his new vehicle on sight.

Permalink 06:33:57 am, by fourth, 167 words, 456 views   English (US)
Categories: General

NC leaves open possibility its state exclusionary rule may be differently applied

“There is disagreement over whether there is such an exception to the North Carolina Constitution. Thus, it is possible that evidence not excluded by the federal constitution might be excluded by the North Carolina Constitution.” Here, however, that question cannot be resolved. State v. Banner, 207 N.C. App. 729, 701 S.E.2d 355 (2010).*

Defendant was being followed by a car and he pulled into a driveway to let the car pass. The driveway, however, was that of a police officer coincidentally following him on his way home, and the driveway was the police officer’s house. The officer was acting as a private person when the stop occurred and defendant was found under the influence. State v. Young, 2010 VT 97, 189 Vt. 37, 12 A.3d 510 (2010).*

Defendant’s neighbor had a wireless video system that accidentally recorded video from the defendant’s own system and recorded defendant’s attack on another person. That was a private act and not a governmental act, and it was admissible. State v. Smith, 2010 W. Va. LEXIS 110 (October 27, 2010).*

Permalink 05:56:57 am, by fourth, 233 words, 483 views   English (US)
Categories: General

CA7: Cover story for stop did not prevent application of "collective knowledge" doctrine

The use of a cover story for a stop to make it safer for officers does not prevent the use of the collective knowledge doctrine. It also applies between federal and state officers. United States v. Williams, 627 F.3d 247 (7th Cir. 2010):

Other appeals courts similarly have concluded that the application of the collective knowledge doctrine is unaffected by an officer’s use of a cover story to disguise a stop as a mere traffic stop. See United States v. Chavez, 534 F.3d 1338, 1341-42 (10th Cir. 2008) (where officer stopped suspect at DEA’s request, the fact that the officer pretended that the stop was for a failure to turn on headlights in order to conceal a confidential informant’s identity and protect the integrity of the DEA investigation did not preclude the application of the collective knowledge doctrine); United States v. Ramirez, 473 F.3d 1026, 1038 (9th Cir. 2007) (Kozinski, J., concurring) (“disguising the stop as a ‘traffic stop’ was a valid law enforcement tactic calculated to ensure an officer’s safety … [and] did not change the nature of the stop,” or the fact that the stop was made at the direction of an officer who had probable cause, such that the collective knowledge doctrine applies). Moreover, the Fifth and Tenth Circuits have considered instructions like the one Gutierrez gave Simon, and concluded that such an instruction does not bar the application of the collective knowledge doctrine.

Permalink 05:13:00 am, by fourth, 165 words, 551 views   English (US)
Categories: General

D.Conn.: The issue under the automobile exception is “inherent mobility,” not “probable mobility”

The issue under the automobile exception is “inherent mobility,” not “probable mobility.” See United States v. Howard, 489 F.3d 484 (2d Cir. 2007), and United States v. Navas, 597 F.3d 492 (2d Cir. 2010). The fact the officers had time to get a warrant was essentially irrelevant. United States v. McKreith, 708 F. Supp. 2d 216 (D. Conn. 2010).*

The officer’s observing defendant’s hand-to-hand sale from a baggie of apparent crack was reasonable suspicion for a stop. Then the defendant admitted that he had a gun on him. United States v. Baker, 750 F. Supp. 2d 921 (W.D. Tenn. 2010).*

Defendant’s [lame-ass] excuses for his lawyer’s alleged lack of performance at his suppression hearing were hardly relevant and did not show that he received ineffective assistance. United States v. Moran, 2010 U.S. Dist. LEXIS 116416 (W.D. Va. November 2, 2010).*

Defendant’s search claim was raised and litigated to conclusion pretrial and on appeal, so he can’t relitigate it via § 2255. United States v. Mitchell, 2010 U.S. Dist. LEXIS 116155 (D. Kan. October 31, 2010).*

Permalink 04:40:02 am, by fourth, 20 words, 724 views   English (US)
Categories: General

Gov. Perry: President Bush "Defended Us From Freedom."

In a moment of true candor, Gov. Rick Perry on The Today Show yesterday: President Bush "Defended Us From Freedom."

Permalink 04:29:08 am, by fourth, 7 words, 445 views   English (US)
Categories: General

Suppression hearings 2010--satirical video


Permalink 11:12:41 am, by fourth, 147 words, 472 views   English (US)
Categories: General

WA: Police officer with PO does not make PO "stalking horse"

A probation officer is not a “stalking horse” for the police just because a police officer comes along for the probation home visit. Also, the fact the PO that came was not defendant’s regular PO does not make it unreasonable, either. State v. Reichert, 158 Wn. App. 374, 242 P.3d 44 (2010).*

Defendant showed up at a storage building under surveillance, and he used a unique passcode for the unit under surveillance. That was reasonable suspicion. When the police moved in, he tried to flee, and it ripened then to probable cause. United States v. Monyoukaye, 2010 U.S. Dist. LEXIS 116440 (M.D. Pa. November 2, 2010).*

When a person is surreptitiously recording another in violation of that other person’s privacy, her reasonable expectation of privacy in this context was not the same as the one that had been developed under Fourth Amendment. People v Schreier, 29 Misc. 3d 1191, 909 N.Y.S.2d 885 (2010).*


Permalink 11:45:40 am, by fourth, 343 words, 569 views   English (US)
Categories: General

D.D.C.: SW to e-mail provider does not require notice to account holder

A search warrant for information about an e-mail account does not require notice to the account holder, just the provider. Application for Warrant for E-mail Account [Redacted], No. 10-291-M-01 (November 1, 2010):

In the absence of textual or legislative guidance, this Court concludes that all of Rule 41’s procedural provisions apply to Section 2703(b)(1)(A), including Rule 41(f)(1)(C). As described below, however, 41(f)(1)(C) is satisfied by leaving a copy of the warrant with a third-party ISP.

Magistrate Judge Facciola’s Memorandum Order refers to “the notice thus required by Rule 41.” Mem. Order at 7. As the government notes, however, the relevant portion of Rule 41 does not include the word “notice.” Rather, Rule 41(f)(1)(C) requires that:

The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property. Rule 41 thus allows an officer to give a copy of the warrant and receipt to the person from whose premises the property is taken, even if that person does not own the property. There is no separate requirement that the property’s owner receive a copy of the warrant, a receipt, or any form of notice. Thus, the Eighth Circuit found that police complied with a state rule of criminal procedure virtually identical to Rule 41(f) when they left a copy of their warrant and a receipt at the Federal Express facility from which they had received the package. United States v. Zacher, 465 F.3d 336, 339 (8th Cir. 2006). The court held that it was therefore “immaterial” to notify the defendant of the seizure. Id.

Analogizing Zacher, the district court in In the Matter of the Application of the United States of America for a Search Warrant[, 665 F. Supp. 2d 1210 (D. Ore. 2009)] found that the government satisfied Rule 41(f)(1)(C) by serving ECPA warrant on the third-party ISPs.

See Blog of the Legal Times and

Permalink 08:18:04 am, by fourth, 1193 words, 2489 views   English (US)
Categories: General

S.D.Tex.: Cell phone location data subject to Fourth Amendment and is more invasive than GPS [updated with link]

Technology is changing faster than the law. Cell phone location data is subject to the Fourth Amendment because it can reveal information from within the home. Indeed, cell phone location data is more invasive than GPS tracking. In re Application of the United States of America for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010):

Five years ago the first reported decisions on government acquisition of cell site information from telephone companies appeared. 4 The focus of those early decisions was the appropriate legal standard for obtaining prospective location information under the Electronic Communications Privacy Act (ECPA). Thereafter, a handful of decisions addressed the related problem of law enforcement access to historical cell site data collected and maintained by providers over time. A few courts have held that such requests triggered the Fourth Amendment warrant requirement, 5 but most courts to date have granted government access to such information under the SCA, which imposes a less-than-probable cause standard. 6

4 See In re Application of U.S., 384 F. Supp. 2d 562 (E.D.N.Y. 2005), on reconsideration, 396 F. Supp. 2d 294 (E.D.N.Y. 2005) (Orenstein, M.J.); In re Application of U.S., 396 F. Supp. 2d 747 (S.D. Tex. 2005) (Smith, M.J.); In re Application of U.S., 402 F. Supp. 2d 597 (D. Md. 2005) (Bredar, Mag.); In re Application of U.S., 407 F. Supp. 2d 132 (D.D.C. 2005) (Facciola, M.J.); In re Application of U.S., 405 F. Supp. 2d 435 (S.D.N.Y. 2005) (Gorenstein, M.J.).

5 See In re Application of U.S., 534 F. Supp. 2d 585 (W.D. Pa. 2008) (Lenihan, M.J.), aff'd No. 07-524M, 2008 WL 4191511 (W.D. Pa. Sep. 10, 2008) (McVerry, D.J.), vacated __ F.3d ___, 2010 WL 3465170 (3d Cir. Sept. 7, 2010); In re Application of U.S., Nos. 1:06-MC-6, 1:06-MC-7, 2006 WL 1876847 (N.D. Ind. July 5, 2006) (Lee, D.J.).

6 See 18 U.S.C. § 2703(d); In re Application of U.S., 509 F. Supp. 2d 76 (D. Mass. 2007) (Stearns, D.J.), reversing 509 F. Supp. 2d 64 (D. Mass. 2007) (Alexander, M.J.); United States v. Suarez-Blanca, No. 1:07-CR-0023-MHS/AJB, 2008 WL 4200156 (N.D. Ga. Apr. 21, 2008) (Baverman, M.J.);United States v. Benford, No. 2:09CR86, 2010 WL 1266507 (N.D. Ind. Mar. 26, 2010) (Moody, D.J.).

Several weeks ago U.S. Magistrate Judge James Orenstein, who authored the very first cell site opinion, suggested in a new opinion 7 that courts re-examine the constitutionality of historical cell site requests in light of recent appellate court decisions, such as that of the District of Columbia Court of Appeals in United States v. Maynard. 8 As if to underscore his point, two weeks later the Third Circuit became the first federal appellate court to issue an opinion dealing with government access to historical cell site data. 9 Rather than definitively resolving the Fourth Amendment issue, the court remanded the case to the district court, concluding that the factual record was insufficient to resolve whether such records "could encroach upon ... citizens' reasonable expectations of privacy regarding their physical movements and locations." 10

7 In re Application of U.S., No. 10-MJ-00550(JO), 2010 WL 3463132 (E.D.N.Y. Aug. 27, 2010) (holding that historical cell site information is protected by the warrant requirement of the Fourth Amendment).

8 615 F.3d 544 (D.C. Cir. 2010).

9 In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records, __ F.3d ___, 2010 WL 3465170 (3d Cir. Sept. 7, 2010).

10 Id. at *6.

Though significant, the caselaw developments have been outstripped by advancing technology. Recently, committees in both the House and Senate have conducted hearings on proposals to update ECPA, the 1986 statute establishing the regulatory regime governing electronic communications. Expert testimony at those hearings reveals that regulatory and market forces have produced dramatic advances in location technology over the past half-decade. As will be shown, this new technology has altered the legal landscape even more profoundly than the new caselaw.

. . .

Conclusions of Law

A. Under Current Location Technology, Cell Site Information Reveals Non-Public Information About Constitutionally Protected Spaces

. . .

Even if an exact latitude and longitude is not yet ascertainable or recorded for every single mobile call, network technology is inevitably headed there. As the Supreme Court observed in Kyllo v. United States regarding the ongoing research and development of radar surveillance devices:

While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or development.

533 U.S. 27, 36 (2001). Like the thermal imaging devices in Kyllo, the cellular location technology in use or development today crosses the "firm but also bright" Fourth Amendment line that the Supreme Court has drawn at the entrance to the house. Id. at 40. Accordingly, the cell site records generated by that technology are subject to constitutional protection.

B. Historical Cell Site Records Are Subject to Fourth Amendment Protection under the Prolonged Surveillance Doctrine of United States v. Maynard

It is true that cell site records for a single day may not always reveal particularly intimate details about the user's private life but merely that the user's cell phone (like the Karo beeper) was present in the home at a particular time. Nevertheless, as Justice Scalia has observed, "[i]n the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes." Kyllo, 533 U.S. at 37 (emphasis in original). In this case, the records sought by the Government are likely far more intrusive — not a single snapshot at a point in time, but a continuous reality TV show, exposing two months' worth of a person's movements, activities, and associations in relentless detail.

In his decision denying warrantless access to historical cell site information, Judge Orenstein relied most heavily on the recent decision of the Court of Appeals for the District of Columbia in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). In light of the technological developments noted above, reliance on the Maynard precedent is not essential to the ruling here. Even so, Maynard's treatment of month-long GPS surveillance is instructive, and provides additional support and alternative grounds for this decision.

. . .

In several respects, the historical cell site records sought here are more invasive than the GPS data revealed in Maynard. The duration and volume of information sought is more than doubled — 60 days as opposed to 28 days of movement. As we have found, the level of detail provided by cell site technology now approaches that of GPS, and its reliability in obtaining a location fix actually exceeds that of GPS. 79 Moreover, as Judge Orenstein points out, cell phone tracking is likely more revealing than a GPS device attached to a car, because the cell phone is carried on the person. 80 It will also inevitably be more intrusive, because the phone can be monitored indoors where the expectation of privacy is greatest. By contrast, the GPS device in Maynard revealed no information about the interior of a home or other constitutionally protected space.

This case also has a simple and insightful discussion of today's cell phone technology.

[I've looked online this morning for a free copy of this case. S.D. Tex., EFF, and EPIC don't have it posted yet. If somebody sees it free online, please forward me the link.]

Update: The ACLU provided me the link to the case. Thanks, ACLU.

Permalink 08:05:35 am, by fourth, 450 words, 454 views   English (US)
Categories: General

D.Idaho: SW to corroborate a witness was overbroad and invalid

The search warrant for weapons here was overbroad because evidence cannot be seized just to corroborate witnesses. United States v. Barnes, 749 F. Supp. 2d 1124 (D. Idaho 2010):

Here, Barnes challenges the specificity of the description of the items to be seized along with the probable cause to make the seizure. Barnes argues that there was insufficient probable cause to seize “knives or any other instrumentality of injury” as described in the search warrant. The Government concedes that there is merit to this argument. The Government acknowledges that Officer Vargas’ explanation that other weapons were to be seized “in order to corroborate [Atchinson’s] statements” has been recently rejected by the Ninth Circuit. Millender, 2010 WL 3307491, *10. (Holding that officers were not justified in searching for evidence that was not contraband or evidence of a crime for purposes of aiding their subsequent prosecution). The Court agrees.

. . .

In Millender, the Ninth Circuit determined that the officers had a precise description of the firearm used by the suspect in connection with the assault, and knew exactly what it needed and wanted. Therefore, the question of whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued cut against the validity of the warrant. Id. at *8.

This case is similar to Millender. With respect to the first question answered in determining whether a search warrant’s description is sufficiently specific to comply with the Fourth Amendment — whether probable cause exists to seize all items of a particular type described in the warrant — the Court concludes that it was not. Officer Vargas’ affidavit explains that three weeks earlier, Barnes obtained a handgun that was kept in the bedroom in a black, hard plastic case, and pointed it at Atchinson. Gov’t Ex. 2. The affidavit explains that Atchinson informed Officer Vargas that Barnes then pulled Atchinson’s head next to his and pointed the gun at his head and said: “see we could do this with one bullet and could get the both of us.” Id. Officer Vargas noted that Atchinson described a “revolver type handgun,” which was “silver and opening to the side to load the ammunition.” Id. Moreover, the search warrant affidavit specifically called for the search and seizure of this specific firearm. Id. The search warrant affidavit also described a sawed-off shotgun as being kept in the residence. Id.

Under these circumstances, there was probable cause to search for a specific, silver revolver type handgun — and perhaps a sawed-off shotgun. But there was nothing in the affidavit to form a basis for concluding there was probable cause to search and seize a generic class of firearms, knives and instrumentalities of injury.

Permalink 07:50:40 am, by fourth, 168 words, 441 views   English (US)
Categories: General

OH2: General motion to suppress search fails

Defendant’s motion to suppress was too general to advise the state of the grounds defendant was raising, so the motion was ineffective. State v. Whitt, 2010 Ohio 5291, 2010 Ohio App. LEXIS 4438 (2d Dist. October 29, 2010):

[*P40] Based on the wording of Whitt's motion to suppress and the accompanying memorandum, including the cases to which he cited to support [his argument part] II, we agree with the State that the motion to suppress failed to inform the State that Whitt was challenging his warrantless arrest for the reasons stated in Jones. Accordingly, Whitt has waived any challenge based on the officer's failure to obtain an arrest warrant.

The police responded to a domestic disturbance, and the officer was permitted in and out of the house by both. The officer asked the defendant for permission to search the garage and defendant gave it. Chiszar v. State, 936 N.E.2d 816 (Ind. App. 2010).*

Defendant was in custody, but he validly consented to a search. State v. Rox, 2010 Ohio 5238, 2010 Ohio App. LEXIS 4417 (8th Dist. October 28, 2010).*


Permalink 07:32:13 pm, by fourth, 45 words, 759 views   English (US)
Categories: General

EPIC's case against full body scanners compared to "upskirting"

Permalink 11:06:09 am, by fourth, 12 words, 412 views   English (US)
Categories: General

Turley and "Traffic Stop"

The always entertaining Jonathan Turley has Traffic Stop on his blog today.

Permalink 07:43:18 am, by fourth, 286 words, 597 views   English (US)
Categories: General

MD: SW for person permitted strip search for secreted drugs

Officers had a search warrant for defendant’s person based on probable cause. A search of his person did not produce contraband, so he was taken to the police station for a strip search. This moving was not an arrest and was reasonable. Moore v. State, 195 Md. App. 695, 7 A.3d 617 (2010):

Here, the search warrant authorized a search of a known drug dealer's person for illegal drugs and associated paraphernalia. It is well known in the law enforcement community, and probably to the public at large, that drug traffickers often secrete drugs in body cavities to avoid detection. In the “Probable Cause” section of the Application and Affidavit for Search and Seizure Warrant in this case, the affiants stated, generally, that they knew “through their training, knowledge and experience” that drug traffickers “[s]ecrete contraband … in secure locations within their person … for ready access and to conceal the same from law enforcement authorities.” (Emphasis added). Based on the facts of this case, and guided by Paulino and Bell, we are persuaded that the search of appellant pursuant to the warrant was reasonable, considering the nature of the items being searched for and the places in which they are often hidden.

Defendant does not get a Franks hearing here. The CI was interviewed on tape, and it supported the affidavit and showed probable cause. The defendant had standing to challenge the search because he was an overnight guest. United States v. Williams, 2010 U.S. Dist. LEXIS 115046 (D. Me. October 15, 2010).*

The affidavit described “child erotica,” and the fact that the images might have been computer generated and not real was not really a factor for probable cause. United States v. Ranke, 2010 U.S. Dist. LEXIS 115352 (E.D. Mich. October 29, 2010).*

Permalink 07:20:37 am, by fourth, 559 words, 487 views   English (US)
Categories: General

M.D.Ala.: Summary of the law of Franks

The Franks claim here fails because, while the affidavit was not perfect, it was good enough. Quibbling over the details where the affidavit was prepared in haste did not show that it was recklessly or intentionally false. United States v. Moreland, 2010 U.S. Dist. LEXIS 114618 (M.D. Ala. October 27, 2010), adopting 2010 U.S. Dist. LEXIS 115091 (M.D. Ala. June 25, 2010) (R&R), summarizing Franks law:

Affidavits supporting search warrants are presumed to be valid. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

To prevail on a motion-based on allegations of falsity in the supporting affidavit-to suppress evidence that was seized pursuant to a search warrant, the defendant has the burden of establishing that (1) the affiant made the alleged misrepresentations or omissions knowingly or recklessly and (2) exclusion of the alleged misrepresentations or inclusion of the alleged omissions would result in a lack of probable cause.

United States v. Fussell, 366 Fed. Appx. 102, 2010 WL 546714 (11th Cir. 2010) (No. 09-11555). See also United States v. Phillips, 323 Fed. Appx. 778, 780 (11th Cir. 2009) (No. 08-11502); United States v. Umansky, 291 Fed. Appx. 227 (11th Cir. 2008). "Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant." Franks, 438 U.S. at 171.

If a defendant demonstrates by a preponderance of the evidence that an affidavit used to procure a search warrant contains intentionally or recklessly false statements and that, without the false statements, the affidavit is insufficient to establish probable cause, the court must void the search warrant and exclude the fruits of the search. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). "[A] warrant affidavit violates the Fourth Amendment when it contains omissions "made intentionally or with a reckless disregard for the accuracy of the affidavit." Madiwale v. Savaiko, 117 F.3d 1321, 1326-27 (11th Cir. 1997) quoting United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). Thus, a defendant must establish (1) that information contained in the affidavit was untrue, (2) that inclusion of the untrue information was either deliberate or in "reckless disregard for the truth," and (3) that the untrue information was an essential element of the probable cause showing relied upon by the judicial officer in issuing the search warrant. See O'Ferrell v. United States, 253 F.3d 1257, 1267 (11th Cir. 2001).

. . .

The court recognizes, and nobody disputes, that the affidavit is not perfect. However, perfection is neither the standard nor the question; the court is bound by the standards set forth in Franks. Moreland has failed to present any objective evidence demonstrating that statements in the affidavit were false. Rather, he argues that the statements were inaccurate. Furthermore, although Moreland takes issue with the implication that the cooperating source had a history with James, he has failed to show by a preponderance of the evidence that the affidavit used to procure the state search warrant contained intentionally or recklessly false statements. At the time the affidavit was presented, the source was cooperating. Finally, the mere fact that more or different corroboration was available is insufficient to make the requisite showing under Franks that statements in the affidavit were untrue. Consequently, because the court concludes that Moreland has not established that the affidavit in support of the search warrant was based on intentionally or recklessly false information, his motion to suppress the items seized from his residence on Carlisle Street should be denied.

Permalink 07:07:49 am, by fourth, 163 words, 517 views   English (US)
Categories: General

Cal2: DMV record sufficient to stop here on expired license; temporary tag, too, not enough

The officer ran defendant’s vehicle tag through DMV records, and it came back expired. There was a temporary tag in the window, but the officers had no way to determine whether it cured the expired tag. The stop was objectively reasonable. People v. Greenwood, 189 Cal. App. 4th 742, 117 Cal. Rptr. 3d 60 (2d Dist. 2010).*

The arrest warrant gave authority to enter the premises of the person named in it. Defendant’s actions at the door only supported the belief that the person was inside, so they came in. Drugs were found in plain view. People v Paige, 2010 NY Slip Op 7629, 77 A.D.3d 1193 (3d Dept. October 28, 2010).*

Defendant was observed on casino surveillance doing a probable drug deal, and they called the police. The police saw the video and security pointed him out. Defendant was approached and consented to a pat down, and the drugs were found in a plain feel. The search was valid. State v. Ahumada, 225 Ariz. 544, 594 Ariz. Adv. Rep. 10, 241 P.3d 908 (App. 2010).*


Permalink 11:40:40 am, by fourth, 113 words, 744 views   English (US)
Categories: General

SCOTUS cert grant: Should GFE apply to Gant? "Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional."

Davis v. United States, 09-11328. Question presented:

In United States v. Leon, 468 U.S. 897 (1984), this Court created a good faith exception to the exclusionary rule of the Fourth Amendment. The Court has expanded the good-faith exception over time, most recently in Herring v. United States, __ U.S. __, 129 S.Ct. 695 (2009). Petitioner asks the Court to resolve a deepening split in the lower courts over whether the good-faith exception applies to changing interpretations of law. The question presented is this:

"Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional."

SCOTUSBlog here; Cert petition here; Eleventh Circuit's opinion here.

Permalink 05:08:49 am, by fourth, 279 words, 581 views   English (US)
Categories: General

D.Me.: The shifting burdens of proof on SWs and GFE

The officers executing a search warrant came upon papers during execution of a search warrant with website addresses and “lolita” and “boys” along with pictures of nude boys. This was plain view because the warrant was valid. United States v. Clark, 2010 U.S. Dist. LEXIS 115048 (D. Me. October 27, 2010)*:

A defendant bears the burden of proving the illegality of a warrant; if he succeeds, the burden shifts to the government to prove entitlement to the Leon good-faith exception. See, e.g., United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985) (“The general federal rule on who bears the burden of proof with respect to an allegedly illegal search or seizure is based upon the warrant-no warrant dichotomy: If the search or seizure was effected pursuant to a warrant, the defendant bears the burden of proving its illegality; if the police acted without a warrant, the prosecution bears the burden of establishing legality.”); see also, e.g., United States v. Koerth, 312 F.3d 862, 868 (7th Cir. 2002) (“If a defendant is successful in establishing the invalidity of the search warrant, the burden then shifts to the Government to establish that the police relied in good faith on the judge's decision to accept the affidavit and issue the warrant.”).

Defendant’s 2255 fails on all grounds, including the Fourth Amendment claim, because the defendant did not show that the Fourth Amendment claim could remotely succeed. His factual scenario was contrary to everything already in the record. United States v. Nichols, 2010 U.S. Dist. LEXIS 114949 (D. Kan. October 28, 2010).*

The video of the stop shows that the defendant verbally consented to the search of his vehicle. United States v. Griffith, 2010 U.S. Dist. LEXIS 114960 (D. S.C. October 28, 2010).*

Permalink 04:51:12 am, by fourth, 571 words, 6556 views   English (US)
Categories: General

D.Kan.: Defendant's drug courier profile stop was invalid

Buying a one-way bus ticket with cash going from Las Vegas to Des Moines was hardly reasonable suspicion. The defendant's encounter was without reasonable suspicion and his consent was not voluntary. [Essentially, the government confronts the defendant, gets him nervous, and then claims nervousness is a factor in reasonable suspicion. Defense counsel showed how consent was invalid.] United States v. Correa, 753 F. Supp. 2d 934 (D. Kan. 2010)*:

The court finds that the encounter most resembles a Terry-type investigative detention and the government’s contention that it was consensual does not make it so. The facts on which the officers relied to single out the defendant for questioning do not furnish the reasonable, articulable grounds for suspicion of criminal activity required to justify the detention of the defendant. The officers’ targeting of the defendant was based only on the facts that he purchased his ticket with cash shortly before departure and was traveling from Las Vegas to Des Moines. This rationale is troubling. The officer’s reliance on the defendant’s purchase of a one-way ticket for cash shortly before departure is no cause for suspicion. Absent some evidence that it is unusual for bus travelers to do so, the court can draw no inference from the defendant’s cash purchase. Bus tickets are generally less expensive than airplane tickets, and common sense dictates that bus transportation is more likely to be used by people who do not have credit cards. There is no evidence that the ground transportation industry provides any incentive to purchase a ticket early, as the airline industry does. Officer Scott’s reliance on the trip’s origination in Las Vegas is similarly meaningless. Because of the widespread availability of drugs and the prevalence of cross-country drug-trafficking, virtually every major metropolitan area in the United States can be identified as either a source or destination city, or both, for the illicit drug trade.

Further, the court attaches no significance to the defendant’s explanation of the purpose of his trip. It is neither suspect nor inconsistent to describe the place where a person grew up or where his family lives as “home.” Also, the fact that the defendant carried only a small piece of luggage and acted nervous does not give rise to suspicion. Traveling light is conduct that is typical of many innocent travelers, as is nervousness in the face of interrogation in a confined space by presumably armed law enforcement officers. Given the method of law enforcement’s encounter in this matter, the court has little doubt that these officers fully expected to obtain acquiescence to search from any passenger they chose.

The court next finds that the government has not sustained its burden of showing that the defendant’s consent to search was voluntary. There is nothing in the record to support the conclusion that the defendant was of average intelligence and could reasonably comprehend the situation. Scott testified that he did not know the defendant’s nationality, level of education or criminal history. The conversation lasted only a few minutes and included short responses, pointing and gesturing. The contention that the consent was a product of free and unconstrained choice is further undermined by the evidence of the defendant’s “defeated” demeanor when asked for permission to search the jacket. The defendant’s demeanor could be easily interpreted as reluctance to consent and at most shows a mere acquiescence to a claim of lawful authority.

Permalink 04:21:24 am, by fourth, 202 words, 493 views   English (US)
Categories: General

D.Minn.: Seven month old information in a CP case is not stale

Because child pornography is unlikely to be quickly discarded by a recipient, a seven month delay in obtaining the search warrant was not stale. United States v. Freeman, 2010 U.S. Dist. LEXIS 115074 (D. Minn. May 13, 2010) (R&R), adopted 2010 U.S. Dist. LEXIS 114911 (D. Minn. October 28, 2010)* [This is common in affidavits for CP SWs. I’ve represented two where some of the material was more than ten years old, and one had a collection dating back well before personal computers.]

Defendant who does not stop has no Fourth Amendment claim. Even so, the officer had reasonable suspicion. United States v. Slaughter, 2010 U.S. Dist. LEXIS 114666 (E.D. Mo. October 13, 2010).

The defendant’s computer was sent in by him for repair, and the repair technician saw child pornography on it and reported it. A search warrant was validly issued for the computer and it was limited in scope. United States v. Andrist, 2010 U.S. Dist. LEXIS 114011 (D. Minn. August 19, 2010).*

The court concludes that the officer had probable cause to believe that there was a gun in the car, and the passenger’s motion to suppress is denied [without ever getting to standing]. United States v. Constantine, 2010 U.S. Dist. LEXIS 114059 (D. Minn. August 17, 2010).*

Permalink 04:11:57 am, by fourth, 172 words, 586 views   English (US)
Categories: General

CA10: Cell phone search as exceeding scope of SW was waived

The USMJ issuing a search warrant for defendant’s stuff after a traffic stop struck out the words “electronic equipment,” and the officer searched the images on defendant’s cell phone anyway. This issue was not timely raised in the District Court, and it is waived for appeal. United States v. Jean-Claude, 400 Fed. Appx. 384 (10th Cir. 2010) (unpublished).*

Defendant’s traffic stop was valid, and the officer directed him out of the car. He left the door open, and the officer could see the grip of a handgun in plain view. United States v. Montes, 400 Fed. Appx. 390 (10th Cir. 2010) (unpublished).*

State inmate is denied a certificate of appealability (COA) for his habeas appeal of his Fourth Amendment claim because “we are not persuaded that reasonable jurists could disagree with the district court’s conclusion that his Fourth Amendment claim was fully and fairly litigated in the Colorado state courts.” Abram v. Milyard, 400 Fed. Appx. 380 (10th Cir. 2010) (unpublished)* [in my circuit, you would not even get an opinion on the denial of the COA].

Permalink 12:12:20 am, by fourth, 197 words, 504 views   English (US)
Categories: General

W.D.Pa.: Direction to get back into a vehicle is not a seizure

Directing the defendant who got out of his vehicle to get back in was not a seizure and did not violate the Fourth Amendment. United States v. Wolford, 2010 U.S. Dist. LEXIS 114800 (W.D. Pa. October 26, 2010)*:

We find that the rationale underlying the above-listed decisions is equally applicable to our scenario where it was the driver (as opposed to the passenger) that had exited a validly stopped vehicle. The strong public interest in officer safety outweighs Mr. Wolford's liberty interest, especially since Mr. Wolford had not only exited his van upon being stopped, but was walking away from the police officers at the time he was told to return to his vehicle. As such, we find that Officer Caterino's order to Mr. Wolford that he get back into his van after he had exited it did not constitute an illegal seizure that violated Mr. Wolford's Fourth Amendment rights. Moreover, in so holding, we find, contrary to the Defendant's argument, that the United States Supreme Court's decision in Arizona v. Gant, supra., is irrelevant to the issue of whether the police officer's order to Mr. Wolford to re-enter his van violated Mr. Wolford's right under the Fourth Amendment.

Permalink 12:02:30 am, by fourth, 458 words, 491 views   English (US)
Categories: General

D.Minn.: Motion to suppress granted after guilty verdict; no RS for vehicle frisk

After the jury verdict, the court grants the motion to suppress on the ground the defendant’s stop was without reasonable suspicion and the search was without cause, and a judgment of acquittal is entered. United States v. Foster, 752 F. Supp. 2d 1060 (D. Minn. 2010):

Importantly, the Fourth Amendment does not permit police to conduct routine, suspicionless searches of people or vehicles during traffic stops. See Long, 463 U.S. at 1049 n.14 (“We stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop ....”). Indeed, as the Supreme Court recently held in Arizona v. Gant, even if a traffic stop leads to an arrest, the police may not automatically search the stopped vehicle. 129 S. Ct. 1710, 1723-24, 173 L. Ed. 2d 485 (2009) (“Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”). To the extent that the government argues otherwise in this case, the government is mistaken.

. . .

North Minneapolis is indeed a high-crime area, but the vast majority of its residents, and the vast majority of those driving through it, are not criminals. The Court does not believe that when police see a person lean forward in a car that they have stopped — even if they have stopped the car late at night in a high-crime area — they have reasonable suspicion to believe that the person is armed and dangerous. There are simply too many alternative explanations for why a person would lean forward, such as to retrieve ID from a purse or backpack, or to move from a slouched to an upright position in the seat. ...

In sum, the Court cannot find, by a preponderance of the evidence, that Bohnsack and Ochs had reasonable suspicion to believe that Foster was armed and dangerous when Foster stepped out of the car at the officers' request. Accordingly, Bohnsack was not justified in conducting a patdown search of Foster. The Court therefore suppresses the magazine that was found in Foster's pocket. Further, because Bohnsack and Ochs would not have had any reason to search the interior of the Taurus if Bohnsack had not found the magazine on Foster's person, the Court suppresses the gun that was found in the Taurus. Without this evidence, no reasonable jury could find Foster guilty of unlawfully possessing a firearm or ammunition, and the Court therefore grants Foster's motion for a judgment of acquittal notwithstanding the jury's verdict.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
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  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
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  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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