Archives for: December 2010

12/31/10

Permalink 10:17:47 pm, by fourth, 98 words, 737 views   English (US)
Categories: General

7,000 posts in 7 years (nearly 8)

Since going to this format, and I don't remember when it was, there have been 5,000 posts to this website, and a few million page views. I haven't even looked at the exact statistics in over a year, but it would be about 3-4M page views since February '03, almost eight years. According to DomainsOutlook, this website is ranked 2,022,352 in the world. Nowhere to go but up. WE'RE NUMBER 1. WE'RE NUMBER 1.

I'm thinking about changing the software, but I can't abandon 5,000 searchable posts. So, maybe 7,000 posts in the current and former format... The former format was not searchable.

Permalink 10:06:40 pm, by fourth, 27 words, 738 views   English (US)
Categories: General

Airport strip protest arrest

12/30/10

Permalink 09:14:43 am, by fourth, 198 words, 808 views   English (US)
Categories: General

MN S.Ct. takes case on roving housing inspectors

Minnesota Tenants Challenge Nosy Housing Inspectors in Reason Magazine:

Last week the Minnesota Supreme Court agreed to hear a case in which the Institute for Justice is challenging a local ordinance that lets housing inspectors roam people's apartments to make sure they're up to code. Red Wing, Minnesota, began requiring the inspections in 2006 as a condition of granting rental licenses to landlords. If a landlord or occupant does not agree to an inspection, the city can ask a judge for a warrant. But because the visits are classified as "administrative inspections," the city does not have to show there is any reason to suspect that a particular building is substandard. Armed with administrative warrants, inspectors can poke their noses into tenants' bedrooms, bathrooms, closets, and even, until a recent revision of the law, refrigerators and medicine cabinets. Although they are ostensibly looking for hazards that need to be corrected, they are expected to report evidence of certain crimes—including methamphetamine production, child abuse, elder abuse, and pet abuse—to the police. Inspectors thus can serve as proxies for the police, who would not be allowed to search people's homes without probable cause to support a criminal search warrant.

Permalink 08:27:24 am, by fourth, 276 words, 715 views   English (US)
Categories: General

W.D.Mo.: Cable installer was CI who testified at suppression hearing

Defendant had a cable installer at his house, and the cable installer suspected drugs on the premises and reported it to the police. The alleged falsehoods in the affidavit did not go to the probable cause but to the justification for a no-knock warrant, so the motion to suppress would not be granted. The cable installer was the CI and he testified at the suppression hearing. The questions about company policy of confidentiality concerning their work orders was not really pertinent to the Fourth Amendment question. United States v. Rodriguez, 2010 U.S. Dist. LEXIS 136155 (W.D. Mo. October 26, 2010).*

Under the circumstances, the possession of syringes the same as taken off another person just arrested at the same place was PC for drug paraphernalia, despite the legitimate uses of syringes. State v. Nimer, 2010 UT App 376, 246 P.3d 1194, 672 Utah Adv. Rep. 13 (2010).*

Defendant’s failure to object to the R&R means the motion to suppress is denied. United States v. Rodriguez, U.S. Dist. LEXIS 136150 (W.D. La. December 23, 2010).*

One plaintiff’s plea agreement included that she would not “pursue” any civil action, so this case was dismissed as to her, but not as to the co-plaintiffs. As to them, it failed under respondeat superior allegations. Robinson v. United States, 2010 U.S. Dist. LEXIS 136304 (M.D. La. November 9, 2010).*

Probable cause for search warrant of a drug house was shown by surveillance with short-term visitors coming and going, two having been stopped in possession of meth, and the smell of a meth lab in the house. The officers also conducted a knock and talk to see who was there. United States v. Gentry, 406 Fed. Appx. 274 (10th Cir. 2010) (unpublished).*

Permalink 07:50:55 am, by fourth, 751 words, 844 views   English (US)
Categories: General

UT: Police short search of stolen computer was negligent Fourth Amendment violation, but suppression not ordered

Defendant's computer was stolen and recovered at a vacant building when trespassers were arrested. The computer was open and on and a text document open. Through the serial number, the officers were able to locate the owner, and he was called. While waiting on the owner, the officer tried to open the document the thieves had opened to see if it incriminated them. He couldn't find it, so he explored and clicked on "My Pictures" and found thumbnails of underage females. He turned off the computer. When defendant arrived, they asked him for consent to search the computer for evidence of the thieves on the computer. A forensic examination was done, and evidence of sexual exploitation of a child was found. On defendant's motion to suppress, the court holds that a negligent violation of Fourth Amendment rights was here enough to not apply the exclusionary rule, analyzing all the factors. State v. Newland, 2010 UT App 380, 253 P.3d 71, 672 Utah Adv. Rep. 8 (2010):

[*P26] We must now decide whether the trial court correctly concluded that the consent was not obtained through exploitation of the initial illegality.

[T]he exploitation analysis requires a balancing of the relative egregiousness of the misconduct against the time and circumstances that intervene before the consent is given. [Thus, t]he nature and degree of the illegality will usually be inversely related to the effectiveness of time and intervening events to dissipate the presumed taint.

State v. Thurman, 846 P.2d 1256, 1264 (Utah 1993). “This balancing [test] necessitates consideration of all factors without giving any of them dispositive weight.” State v. Shoulderblade, 905 P.2d 289, 293 (Utah 1995). The factors, however, are not of mathematically equal importance. See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (noting the particular importance of the purpose and flagrancy factor); accord Thurman, 846 P.2d at 1263-64. “[W]here it appears that the illegality arose as the result of negligence, the lapse of time between the misconduct and the consent and the presence of intervening events become less critical to the dissipation of taint.” Thurman, 846 P.2d at 1264. In this case, because the temporal proximity factor is neutral, only the absence of intervening circumstances must be weighed against the lack of purposefulness and flagrancy. In light of the unchallenged negligence finding, however, “a clean break in the chain of events between the misconduct and the consent” was not required. Id. Moreover, because the officer’s conduct was due to negligence, we agree with the trial court that the deterrent value of suppression is minimal and “greatly outweighed by society’s interest in placing all relevant evidence before the jury,” see id. at 1274. The trial court therefore correctly denied Newland’s motion to suppress.10

10 In affirming here, to the extent that the initial search may have been illegal, we are not condoning an officer’s violation of Newland’s constitutional right to freedom from unreasonable searches of his personal effects. The United States Supreme Court, however, has “never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 700, 172 L. Ed. 2d 496 (2009) (internal quotation marks omitted).

The rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it. But [d]espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.

Brown, 422 U.S. at 599-600 (alteration in original) (citation and internal quotation marks omitted). “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 129 S. Ct. at 702.

This case is thoughtfully analyzed, and the court does not consider itself bound by the trial court’s negligence finding. When you get to the end of the opinion, though, you wonder “what happens next time” with this officer or in Utah in general. If the exclusionary rule is “calculated to prevent rather than repair,” does this case add anything to prevention? Should it? Considering how the computer was found, how likely was it that the “My Pictures” folder would have pictures of the thieves? One would surmise that clearly the officer had no business going anywhere other than the open text document or search files found created after it was reported stolen. Hard cases make bad law.

12/29/10

Permalink 09:49:47 am, by fourth, 266 words, 701 views   English (US)
Categories: General

OH8: Defendant was stopped without RS as officers were awaiting a SW for his house; car stop invalid

Officers were obtaining a search warrant for defendant’s house, and he left and those inside were looking out the windows. Officers decided to stop defendant because they hadn’t yet developed a plan for the search. Defendant’s stop was without legal justification, and the car search was invalid. State v. Okundaye, 2010 Ohio 6363, 2010 Ohio App. LEXIS 5282 (8th Dist. December 23, 2010).*

Defendant was stopped for speeding, and he made furtive movements, was extremely nervous, and there was masking odor. All of that was reasonable suspicion. State v. Franzen, 2010 ND 244, 792 N.W.2d 533 (2010).*

A telephone call from a citizen to the police said that two men were attempting to break into a bank’s night deposit drop. When the police approached men matching the description, they drove in a different direction. “This is not a case where a citizen's report was the only factor supporting the magistrate judge's probable cause determination. Bartz observed Datcu and Cipu in a location unusual for that day and time—parked in the evening in a concealed manner in an adjacent parking lot to the closed banks. Datcu's all black outfit made him less visible from a distance, and both men changed course once they saw Officer Bartz, apparently seeking to elude him and to distance themselves from the concealed vehicle with out of state license plates.” United States v. Datcu, 627 F.3d 1074 (8th Cir. 2010).*

Defendant claimed that defense counsel was ineffective for not arguing that his consent to search his backpack in an airport was inherently coercive. Defendant’s consent was voluntary anyway. United States v. Davis, 406 Fed. Appx. 268 (10th Cir. 2010) (unpublished).*

Permalink 09:12:18 am, by fourth, 156 words, 667 views   English (US)
Categories: General

DE: Trial judge holds GPS tracking requires a warrant

Following Maynard and Weaver, a Delaware Superior Court judge suppresses warrantless use of GPS to track the defendant’s movements. State v. Holden, 54 A.3d 1123 (Del. Super. 2010).*

On the totality of circumstances, there was probable cause for issuance of a search warrant for defendant’s blood in a DUI case. Foley v. State, 2010 Tex. App. LEXIS 10071 (Tex. App.– Corpus Christi–Edinburg December 21, 2010).* [Coincidentally, today on MSNBC’s morning news there was a story about judges in Texas issuing search warrants for blood because 50% of all DUI detainees refuse breath tests.]

There was probable cause for the search of defendant’s car, so Gant was inapplicable. United States v. Murphy, 405 Fed. Appx. 791 (4th Cir. 2010) (unpublished).*

A student’s leaving a school campus and then coming back during the day justified a T.L.O. “special needs” search of the student’s belongings under school policy. In re Sean A., 191 Cal. App. 4th 182, 120 Cal. Rptr. 3d 72 (4th Dist. 2010).*

Permalink 12:01:52 am, by fourth, 248 words, 706 views   English (US)
Categories: General

E.D.Pa.: Finding shooting victim after entry was dissipation of the exigency, so further search unreasonable

The police entered with exigent circumstances for a reported shooting. Having found the shooting victim, a search of the upstairs was unreasonable because there was no justification for going up there. United States v. Wolfe, 2010 U.S. Dist. LEXIS 135485 (E.D. Pa. December 21, 2010).*

Failure to signal on a parking lot is not a violation of the Missouri vehicle code, so defendant’s stop was unreasonable. Stop suppressed. State v. Loyd, 326 S.W.3d 908 (Mo. App. 2010).*

“[S]ociety does not recognize a reasonable expectation of privacy in blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient” when requested by law enforcement for DUI. State v. Davis, 161 N.H. 292, 12 A.3d 1271 (2010):

To the extent that the defendant may have a reasonable expectation of privacy in his medical records generally, see In Re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 226, 999 A.2d 210 (2010), we conclude that society does not recognize a reasonable expectation of privacy in blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient, where those results are requested by law enforcement for law enforcement purposes in connection with an incident giving rise to an investigation for driving while under the influence of intoxicating liquors or controlled drugs. See RSA 329:26.

We also disagree with the defendant that the United States Supreme Court's decision in Ferguson v. Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), leads to a different result. ...

12/28/10

Permalink 05:32:03 am, by fourth, 262 words, 1032 views   English (US)
Categories: General

New law review article: "Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases"

Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases by Stanley A. Goldman of Loyola Law School Los Angeles

Abstract:

Whether we are speaking of Hudson v. Michigan, Herring v. United States, Arizona v. Gant, Thornton v. United States or even though slightly older Illinois v. Wardlow, these cases represent a trend by the high court to limit the scope of both the 4th amendment and the exclusionary rule. The result is that law enforcement will obtain greater freedom to engage in stop and frisk as well as search and seizure without fear that the evidence may be excluded during the course of any subsequent criminal trial. The problem with these cases may be that they fail to recognize the societal costs of giving police such free reins without consequences. In this 25 page paper, the author summarizes and examines these and other recent United States Supreme Court cases and concludes that they are often being interpreted by lower courts to create broader powers in the police than the cases themselves actually provide. In some respects, this article is both an examination of what the cases "could" stand for if interpreted either broadly or narrowly. There is much for prosecutors in these cases, but there is also a surprising amount left to be argued by defense counsel, who may still find arguments for exclusion in the modifiers that are provided by either an essential 5th vote concurrence or by the majority opinion itself. If nothing else, this article provides a quick summary of the essentials of these transformative cases.

Permalink 12:22:58 am, by fourth, 159 words, 649 views   English (US)
Categories: General

W.D.Tex.: Voicing reservations about a dog sniff is not a revocation of consent

Defendant consented to a search of his car. He expressed reservations at a dog sniff, but he did not revoke consent. United States v. Benavides, 2010 U.S. Dist. LEXIS 135039 (W.D. Tex. December 21, 2010).*

The officer had reasonable suspicion for defendant’s stop and continued detention from suspicious circumstances, including a dash that did not work and getting off at an exit for gas that had no re-entry for that direction. United States v. Allen, 2010 U.S. Dist. LEXIS 135084 (E.D. Tenn. December 21, 2010).*

The officer was justified in a frisk of defendant who he saw with a gun in hand in a high crime area where a drug sale had just occurred. Defendant admittedly had no standing in the house searched, and the search of his car was valid under the automobile exception without regard to a search warrant. United States v. Haywood, 2010 U.S. Dist. LEXIS 135082 (W.D. Tenn. October 8, 2010), adopted 2010 U.S. Dist. LEXIS 135083 (W.D. Tenn. December 20, 2010).*

Permalink 12:10:57 am, by fourth, 350 words, 686 views   English (US)
Categories: General

E.D.Tenn.: Traffic stop was not abandoned in favor of drug investigation; consent was valid

Defendants’ stop was with probable cause for not signaling an abrupt turn. During the stop and running the paperwork, the owner of the car validly consented. United States v. Crawley, 2010 U.S. Dist. LEXIS 135212 (E.D. Tenn. June 29, 2010)*:

In summary, Everett establishes a simple framework for prolongation cases: if the traffic stop is “completed” or “definitively abandon[ed],” the officer must have independent reasonable suspicion supporting any further detention at the moment of completion or abandonment. See United States v. Urrieta, 520 F.3d 569, 574 (6th Cir. 2008). On the other hand, if the officer continues to pursue the purposes of the original traffic stop throughout the encounter, a reviewing court must examine the totality of the circumstances to determine whether the duration of the stop as a whole, with due consideration to the time spent on unrelated inquiries (such as questioning or dog sniffs), was reasonable—in other words, whether the “bulk of the interaction” between the officer and the suspect was monopolized by the unrelated inquiry. Everett, 601 F.3d at 494, 495.

Here, the traffic stop was never abandoned, and it was not completed until after Crawley, the owner of the car, gave consent to search the inside of the car. Lilly’s undisputed testimony established that Crawley told Lilly he could search the “inside” of the car before Lilly issued the summonses to Allen. The relevant inquiry in this case, therefore, is whether Lilly “diligently” pursued the purposes of the traffic stop throughout the encounter, and if he did not, whether the prolongation was supported by independent reasonable suspicion.

Taken as a whole, the officer had reasonable suspicion for defendant’s detention for nervous behavior, failure to make eye contact, driving on a drug corridor in a rented car claiming no rental contract. United States v. Derrick, 2010 U.S. Dist. LEXIS 135585 (M.D. Ill. December 22, 2010).*

Defendant’s arrest for driving on a suspended DL came after he was stopped for speeding. The computer check is PC. The officer did not have to Mirandize him before asking why he was speeding. United States v. Shirley, 2010 U.S. Dist. LEXIS 135376 (N.D. Ga. November 8, 2010).*

Permalink 12:01:15 am, by fourth, 336 words, 663 views   English (US)
Categories: General

IN: Finding loaded magazine after a furtive movement justified a second patdown for weapon

With defendant’s stop, he was asked if he was armed, and he reflexively reached down to the floorboard. The officer got him out of the car and searched the area for a gun finding a loaded magazine. The passengers were removed, and all were searched without finding the gun. A second patdown of the defendant produced a gun in his waistband. After finding ammunition, the second patdown was justified. Saffold v. State, 938 N.E.2d 837 (Ind. App. 2010).*

A text message photograph of marijuana from an 11 year old to his dad was justification for the officer to come to house where defendant lived with the child’s mother. Also viewing the photograph on the phone at the scene was corroboration of probable cause. Hurst v. State, 938 N.E.2d 814 (Ind. App. 2010).*

Defendant was parked in front of a drug house and drove off. Officers followed and pulled him over for not making a complete stop. He denied being at the drug house. He consented to a search of his person but not the car. Officers found nothing on him nor in a quick look in the car. His denial of being at the drug house was reason enough to look for a weapon. A search of the car found only drugs. The search was valid. State v. Johnson, 2010 Ohio 6224, 2010 Ohio App. LEXIS 5227 (2d Dist. December 17, 2010):

[*P14] In this case, appellant was seen leaving a well-known drug location at 1:30 A.M. Appellant subsequently implicated himself by denying this after being pulled over. Neither a pat down nor a cursory glance inside the vehicle can adequately negate the possibility that a weapon was in the vehicle. A brief protective sweep of the vehicle was necessary to ensure the safety of the officers and others. The limited, protective search was very brief. It only lasted about ten to fifteen seconds. Given the facts and circumstances, this was a legal search. The trial court did not err in admitting the crack cocaine as evidence and overruling appellant's motion to suppress.

12/27/10

Permalink 11:13:05 am, by fourth, 318 words, 828 views   English (US)
Categories: General

FL4: Officer's direction to turn off car engine was seizure

The officer came upon defendant asleep at the wheel of his car with the engine running in a shopping center parking lot. Telling the defendant to turn off the engine was a seizure. There was no reasonable suspicion. Gentles v. State, 50 So. 3d 1192 (Fla. App. 4th DCA 2010):

Similarly, in this case, Officer Horn's direction for the defendant to turn off his engine constituted a show of authority which restrained the defendant's freedom of movement. An order to shut off one's car is as much a restraint on movement as an order to step out of the car. Both orders constitute a seizure because they convey to a reasonable person under the circumstances that he or she must comply and is not free to end the encounter and drive away. See Taylor v. State, 658 So. 2d 173, 173 (Fla. 5th DCA 1995) (holding that when an officer pulled up behind the defendant, who was parked in a driveway with the motor running, and ordered him to turn off his motor and produce his driver's license, the defendant was improperly seized and the search that followed was illegal).

Other vehicle-related police conduct found by Florida courts to constitute a seizure or detention include: using a police car to block the path of a car, Stennes v. State, 939 So. 2d 1148, 1149 (Fla. 4th DCA 2006); shining a flashlight or spotlight on a defendant's car, Leroy v. State, 982 So. 2d 1250, 1252 (Fla. 1st DCA 2008); displaying a weapon or physically touching the person, State v. Dixon, 976 So. 2d 1206, 1209 (Fla. 4th DCA 2008); ordering a driver in a stopped vehicle to roll down his window, Greider v. State, 977 So. 2d 789, 792-93 (Fla. 2d DCA 2008); and directing a defendant to remove his hand from his pocket, Delorenzo, 921 So. 2d at 876.

We have been unable to find a case on all fours with this one. ...

Defendant consented to the taking his fingerprints and DNA. Puglisi v. State, 56 So. 3d 787 (Fla. App. 4th DCA 2010).*

Permalink 12:16:42 am, by fourth, 346 words, 680 views   English (US)
Categories: General

W.D.Ky.: Including CP in internet sting SW lacked PC and GFE did not apply

An internet predator sting developed information on defendant soliciting a child for sex. When the police got a search warrant for his computer for evidence of solicitation they included child pornography. Under United States v. Hodson, the search warrant was overbroad for lack of probable cause for child pornography. The good faith exception does not apply. United States v. Underwood, 2010 U.S. Dist. LEXIS 134534 (W.D. Ky. October 18, 2010):

Hodson remains good law in this circuit and has not been overruled or otherwise abrogated by subsequent published appellate case law. A number of decisions from federal appellate and trial courts, however, have distinguished Hodson based on its facts.8 But no meaningful distinction can be made under the facts of this case. Here, Det. Jackman in his affidavit included no references to the transmission of pornographic or sexually explicit images from Defendant Underwood, nor did Jackman make reference to the repeated requests for such images by Underwood. Jackman's affidavit is similar in all material respects to the affidavit of KSP Det. Pickrell with the relatively minor distinction that Jackman applied for his search warrant within approximately 30 days after his final online exchange with the Defendant, whereas approximately three months passed between kidlatino12's last conversation with Hodson and Det. Pickrell's search warrant application on Jan. 19, 2006. Hodson, 543 F.3d at 287. Otherwise, both affidavits suffer the exact same defect -- each sets forth probable cause for one crime (sexual solicitation of a minor) in the warrant application while requesting authorization to search for evidence of a separate crime (possession of child pornography) and receiving authorization through the warrant to search only for evidence of the crime of child pornography.

The Court in such circumstances must agree with the panel in Hodson that not only does the Jackman affidavit fail to establish probable cause to conclude that child pornography would be found in Underwood's home on March 28, 2008, but also that no objectively reasonable police officer could rely upon such a search warrant in good faith to search for child pornography. The Government does not argue otherwise insofar as Hodson is concerned.

Permalink 12:01:36 am, by fourth, 411 words, 770 views   English (US)
Categories: General

WI: Man wanted for murder on the run was sufficient exigent circumstance for entry to arrest

Defendant was an overnight guest in an apartment and he had standing. He was wanted for murder, and the owner of the apartment let in the police to arrest him. They also had exigent circumstances. The time to get a search warrant could have thwarted the arrest entirely. State v. Ayala, 2011 WI App 6, 331 Wis. 2d 171, 793 N.W.2d 511 (2010).*

P18 When officers arrived at the Cervantes residence, they had probable cause to arrest Ayala for the Milford homicide and the three related armed robberies. 5 Various factors created probable cause: (1) there had been what appeared to be an intentional homicide using a gun; (2) officers had information from the other robbery/homicide participants that Ayala was the shooter; (3) Ayala was believed by officers to be a Latin Kings gang member; (4) the weapon used in the homicide had not been recovered, leading officers to believe Ayala might still have the gun in his possession; (5) the gun might be evidence of a crime; (6) if Ayala possessed the missing gun, it put the officers at risk of being shot by Ayala if they announced themselves or asked Ayala for consent to enter the bedroom; (7) the tavern below the apartment was frequented by Latin King members; (8) Rochelle operated the tavern below the apartment; and (9) because there were civilians in the apartment as well as the tavern below, all were at risk if Ayala began shooting while police procured a warrant.

The Alaska Supreme Court directed the Court of Appeals to reconsider an appeal under Gant which was decided in the interim. First, Gant is retroactive under Griffin v. Kentucky. Second, the search was valid as a search incident because she gave false information about her identity and her claim she did not have to be believed. Therefore, it was reasonable to believe that her driver’s license would be found in the car, so a search incident was valid. Deemer v. State, 244 P.3d 69 (Alaska App. 2010).*

The state could not establish that the “community caretaking function” entry into defendant’s house was justified. There was no indication that the home had to be entered for the protection of the homeowner. State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505 (2010).*

Defendant who was at the premises searched for only a short time for a drug deal who had no connection to the residents had no expectation of privacy that society was willing to recognize as reasonable. United States v. Rivera-Pabon, 2010 U.S. Dist. LEXIS 134800 (N.D. Ga. August 9, 2010).*

12/26/10

Permalink 08:27:28 am, by fourth, 63 words, 850 views   English (US)
Categories: General

TSA brags about finding drugs in full body scans

TSA is now bragging about finding drugs in full body scans: WaPo: More body scanners are coming to an airport near you, by Derek Kravitz.

And how is that relevant to "transportation security"? It is a general search. If it doesn't look like an explosive or a weapon, they should just ignore it.

"Mission creep" personified.

Airports with full body scanners are here.

Permalink 12:28:41 am, by fourth, 123 words, 668 views   English (US)
Categories: General

S.D.Tex.: Inventory of defendant's car was reasonable because he was inconsistent in how much money he had in it

Money in defendant’s vehicle had to be inventoried because he gave inconsistent versions of how much he had. The inventory policy was reasonable. United States v. Lewis, 2010 U.S. Dist. LEXIS 134801 (S.D. Tex. December 21, 2010).*

Defense counsel was not ineffective for not challenging the search in this case because defendant lacked standing to challenge the search. United States v. Washington, 2010 U.S. Dist. LEXIS 134991 (M.D. Pa. December 21, 2010).*

During a traffic stop, defendant’s refusal to keep his hands in sight in his car justified a frisk for a weapon. State v. Latson, 2010 Ohio 6297, 2010 Ohio App. LEXIS 5262 (10th Dist. December 21, 2010).*

Random weapons searches of probationers were justified by state law and this one was reasonable. Commonwealth v. Wilson, 2010 PA Super 233, 11 A.3d 519 (2010).*

Permalink 12:15:48 am, by fourth, 290 words, 665 views   English (US)
Categories: General

MD: State's failure to argue inevitable discovery here precluded reliance on it on appeal

The state did not raise inevitable discovery, so it was a “speculative inquiry” into whether it applied and the defendant likely was prejudiced by not getting to litigate the issue. Elliott v. State, 417 Md. 413, 10 A.3d 761 (2010):

Although appellate courts have some discretion in raising different justifications for lower court decisions, we may not use such discretion without restriction. In the present case, the record does not support a sua sponte holding of inevitable discovery. We are bound by the evidence presented at the suppression hearing. Unfortunately, in this case the record is not complete and cannot support a sua sponte finding of inevitable discovery. Even assuming arguendo that the evidence would inevitably have been discovered, the defense was unfairly prejudiced by the issue being raised for the first time in the appellate court. Further, any decision by the appellate court must be based on historical facts capable of easy verification, rather than speculation, which cannot be done in this case. See Williams, 372 Md. at 418, 813 A.2d at 250.

Defendant was driving behind another vehicle with no headlights stopped by an officer, and defendant stopped, too. He got out of his vehicle and was ordered back to the car by the officer, and this was a seizure, but it was reasonable. State v. Reiss, 45 Kan. App. 2d 85, 244 P.3d 693 (2010)*:

But there are situations—based on concerns of officer safety and the safety of the public—in which a person may be detained without reasonable suspicion of wrongdoing. The United States Supreme Court has held in two similar situations that concerns for public or officer safety allow for some intrusion on the liberty of those who simply find themselves near an otherwise-authorized law-enforcement action; such an intrusion does not violate the Fourth Amendment.

Permalink 12:01:00 am, by fourth, 111 words, 673 views   English (US)
Categories: General

AL: Dropping drugs in flight from stop was PC for search of car left behind

Defendant fled from police and allegedly dropped drugs in flight. He was not seized while fleeing. The drugs he dropped gave probable cause to search his car under the automobile exception and not Gant. State v. Jemison, 66 So. 3d 832 (Ala. Crim. App. 2010).*

Smell of marijuana and an open beer can justified a search of defendant’s car. Jackson v. State, 127 So. 3d 1251 (Ala. Crim. App. 2010).*

Smell of marijuana alone justified a search of defendant’s car. State v. Perry, 66 So. 3d 291 (Ala. Crim. App. 2010).*

Randolph on veto of consent does not apply to this consent search; defendant’s wife consented and he did not object. Payton v. Commonwealth, 2010 Ky. LEXIS 298 (December 16, 2010).*

12/25/10

Permalink 09:13:23 am, by fourth, 180 words, 627 views   English (US)
Categories: General

TN: Arrest in house and drug dog alert on car outside justified search of the car under automobile exception

Defendant was arrested with a warrant in his house by U.S. Marshals. A drug dog swept his car outside the house, and the dog alert supported the search of the car, even though the defendant was in custody and could not move the car. State v. Adkins, 2010 Tenn. Crim. App. LEXIS 1047 (December 16, 2010).*

Defendant had no reasonable expectation of privacy in his girlfriend’s cellphone records which were used to connect him to a crime. Commonwealth v. Benson, 2010 PA Super 234, 10 A.3d 1268 (2010).*

Furtive movements in a car as the car was stopped justified asking the passengers for their ID, too. State v. Frierson, 2010 Tenn. Crim. App. LEXIS 1043 (December 14, 2010).

Plaintiff’s car was booted for unpaid parking tickets and then towed. It was moved to an impound lot and notice was mailed, but plaintiff had an incorrect address. The car was sold off. The seizure of the car was reasonable under the Fourth Amendment, and she was afforded due process. Tate v. District of Columbia, 627 F.3d 904 (D.C. Cir. 2010), cert. denied 179 L. Ed. 2d 1198, 2011 U.S. LEXIS 3522 (U.S., May 2, 2011).*

Permalink 07:17:39 am, by fourth, 525 words, 882 views   English (US)
Categories: General

IA: LEO could not conduct parole search

Law enforcement officer’s search could not be justified by defendant’s parolee status. The court takes a foray into parole searches and doesn’t like Samson [only SCOTUS does]. State v. Ochoa, 792 N.W.2d 260 (Iowa 2010):

G. Academic Commentary on the Samson Approach. Academic commentary has generally been hostile to Samson and the departure of particularized suspicion. A raft of student notes takes the position that Samson spun the wheels off of the Fourth Amendment. See, e.g., Robert Cacace, Recent Development, Samson v. California: Tearing Down a Pillar of Fourth Amendment Protections, 42 Harv. C.R.-C.L. L. Rev. 223, 229-33 (2007) (stating that Samson confuses the reasonableness test with the special needs test, thereby undermining Fourth Amendment rights); John Lassetter, Article, Samson v. California: “Evil” Suspicionless Searches Become a Part of Everyday Life for Parolees, 25 Law & Ineq. 539, 554-55 (2007) (rejecting balancing test utilized by Samson and asserting that suspicionless searches of parolees are not reasonable); Rachael A. Lynch, Note, Two Wrongs Don’t Make a Fourth Amendment Right: Samson Court Errs in Choosing Proper Analytical Framework, Errs in Result, Parolees Lose Fourth Amendment Protection, 41 Akron L. Rev. 651, 681-88 (2008) (stating Samson ignores important Fourth Amendment interests of parolees and overstates state interests); David M. Stout, Note, Home Sweet Home?! Maybe Not for Parolees and Probationers When it Comes to Fourth Amendment Protection, 95 Ky. L.J. 811, 838 (2007) (arguing warrantless, suspicionless searches have negative impact on offender reintegration with little gain).

Leading academic commentators agree. For example, Professor LaFave finds Samson unpersuasive, characterizing the move away from “special needs” analysis into a general reasonableness analysis as “especially troublesome.” 5 Wayne R. LaFave, Search & Seizure § 10.10, at 44 (4th ed. Supp. 2010-2011).

. . .

The scope of the asserted power is stunningly broad. A person on parole for an alcohol-related crime, for instance, could be subject to warrantless searches of books, records, diaries, invoices, and intimate surroundings. The proposed invasion is not minimal and highly-defined as in Terry; nor is it closely-linked to an identified special need as in National Treasury Employees Union or Skinner. See Nat’l Treasury Employees Union, 489 U.S. at 669-71, 109 S. Ct. at 1392-93, 103 L. Ed. 2d at 704-05 (urine testing of employees to avoid corruption in the revenue service); Skinner, 489 U.S. at 623-24, 109 S. Ct. at 1416-17, 103 L. Ed. 2d at 663-64 (blood, urine, and breath testing for persons in safety sensitive jobs); Terry, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 910-11 (investigatory stops). The scope of the search in Samson thus is flatly contrary to the common-sense notion that “the scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19, 88 S. Ct. at 1878, 20 L. Ed. 2d at 904 (quoting Hayden, 387 U.S. at 310, 87 S. Ct. at 1652, 18 L. Ed. 2d at 794 (Fortas, J., concurring)). The scope of search authority in Samson reminds one of the search of Coke’s premises and the seizure of his children’s poem and his will; there are no limits to the scope of the search. See White, 31 U. Pitt L. Rev. at 194 (comparing broad searches of parolees’ dwelling places to general searches condemned by Otis).

Permalink 06:51:04 am, by fourth, 293 words, 893 views   English (US)
Categories: General

CA8: RS of drugs on the person = RS armed; coffee filter peeking from pocket supported frisk

A coffee filter sticking up from defendant’s pocket during a stop justified his frisk because, in the Eighth Circuit, knowledge of drugs equals dangerousness. United States v. Crippen, 627 F.3d 1056 (8th Cir. 2010):

A suspicion on the part of police that a person is involved in a drug transaction supports a reasonable belief that the person may be armed and dangerous because weapons and violence are frequently associated with drug transactions. United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005). The district court found that because Officer Palmer remembered Crippen from the October 2008 search of Conroy's house and knew coffee filters are used as part of the methamphetamine manufacturing process, he suspected Crippen was involved in a drug transaction and thus had reasonable suspicion Crippen was armed and dangerous. Accordingly, the pat-down search and seizure of the coffee filter was valid.

Defendant had a MySpace account that was suggestive to others of his being a pedofile and his online “friends” were all young boys. A search warrant was ultimately issued for defendant’s property. The USMJ concluded that the warrant did not authorize seizure of defendant’s computer, but the USDJ disagreed and overruled. Also, inevitable discovery would apply, as would the good faith exception. United States v. Underwood, 2010 U.S. Dist. LEXIS 134092 (W.D. Ky. December 17, 2010).*

The drug dog arrived while the traffic stop was still going on within eight minutes. The stop was only “as long as necessary.” United States v. McDowell, 2010 U.S. Dist. LEXIS 134010 (D. Kan. December 16, 2010).*

Defendant could not challenge the search of a computer of a person he was communicating with by instant messaging over the internet. United States v. Haffner, 2010 U.S. Dist. LEXIS 134460 (M.D. Fla. August 31, 2010), adopted 2010 U.S. Dist. LEXIS 134453 (M.D. Fla. December 20, 2010).*

12/24/10

Permalink 06:41:12 am, by fourth, 292 words, 760 views   English (US)
Categories: General

W.D.N.Y.: Failure to list computer in search warrant precludes its seizure

Government’s failure to include computer in the search warrant precluded it from seizing and then searching it. United States v. Abdellatif, 758 F. Supp. 2d 183 (W.D. N.Y. 2010)*:

By failing to respond to defendant’s argument that the computer was outside the scope of the warrant, the government “ha[s] essentially conceded the point”. Briscoe v. City of New Haven, 2010 U.S. Dist. LEXIS 69173, 2010 WL 2794231, *5 (D.Conn. 2010).

“There is no question that computers are capable of storing immense amounts of information and often contain a great deal of private information. Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers. Such considerations commonly support the need specifically to authorize the search of computers in a search warrant.” United States v. Payton, 573 F.3d 859, 861-62 (9th Cir. 2009). See, e.g., ¶7(a-e) of the schedule attached to the search warrant in United States v. Tigano, 08-CR-281S, 2010 U.S. Dist. LEXIS 63114 (Dkt. #52 in that case), specifically authorizing the search of computers.

Since the seizure of the computer was not authorized by the warrant, the government bears the burden of proving the legality of that seizure. See United States v. Poulos, 2008 U.S. Dist. LEXIS 6185, 2008 WL 222272, *12 (D.Me. 2008), adopted, 2008 WL 619406 (D.Me. 2008) (“The government concedes that seizure of these items was not authorized by the Warrant but asserts that officers validly seized them inasmuch as they were in plain view .... The government meets its burden of proving the validity of their seizure”). The government has offered no justification for the seizure of the computer, nor has it argued that the seizure does not warrant suppression. Therefore, I recommend that any evidence derived from the seizure of the computer be suppressed.

Permalink 05:58:30 am, by fourth, 289 words, 719 views   English (US)
Categories: General

D.Ariz.: Stop was based on common factors and was unreasonable

“Agent Ramirez’s decision to stop Defendant's vehicle was based on factors too common to support a finding of reasonable suspicion of criminal activity. United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2002) (reasonable suspicion cannot rely solely on generalizations that, if accepted, cast suspicion on large segments or entire categories of the law abiding population).” Apparently, being a law abiding citizen is believed to be reasonable suspicion in Arizona. United States v. Mikels, 2010 U.S. Dist. LEXIS 133895 (D. Ariz. November 3, 2010).*

There was reasonable suspicion for defendants’ stop as drug traffickers, and a drug dog was called and alerted, and that made probable cause for a search of the vehicle. The court suggests that it was defendants’ burden to show that the search was invalid. “Although Defendant Cooper offers no substantive argument in support of his claim that the search of the Lincoln was unlawful – beyond the claim that the stop and detention were unlawful, he asserts that there was neither probable cause nor consent for the search. ... Defendant is wrong.” United States v. Parker, 2010 U.S. Dist. LEXIS 133789 (N.D. Ga. November 18, 2010).*

A male Lt. Col. in the Army was married to a female Capt. He was the subject of a child molestation investigation from being stationed in PR. In Georgia, Army investigators called in the Capt. for questioning, and she consented to a search of their home office, which should could do because she had joint access. After Army CID officers got in, they got a search warrant for child pornography in the computers and videos, which they validly found. The computers arguably were within his exclusive control, but access to them was by search warrant. United States v. Pagan-Torres, 2010 U.S. Dist. LEXIS 133832 (N.D. Ga. November 15, 2010).*

Permalink 12:55:33 am, by fourth, 403 words, 800 views   English (US)
Categories: General

N.D.Ga.: Protective sweep under Buie does not require an arrest warrant for entry if there is reason to fear a safety issue

A protective sweep does not require the officers be on the premises with an arrest warrant. Here, officers were let inside, but one person ran up the stairs and the officer gave chase. The person was rummaging in a bag in a closet with a gun in it. The entry into the bedroom was still reasonable under Buie. United States v. Cordova, 2010 U.S. Dist. LEXIS 133720 (N.D. Ga. June 23, 2010), adopted United States v. Cordova, 2010 Dist. LEXIS 133752 (N.D. Ga. December 17, 2010):

The Second Circuit also noted in Miller that the majority of other courts that have addressed this issue have held that the protective sweep doctrine set forth in Buie is also applicable to other situations in which officers are lawfully in the suspect’s home, even when the officers are not present in the home for the purpose of executing an arrest warrant. Miller, 430 F.3d at 99; see United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005) (“police who have lawfully entered a residence possess the same right to conduct a protective sweep whether an arrest warrant, a search warrant, or the existence of exigent circumstances prompts their entry.”); Leaf v. Shelnutt, 400 F.3d 1070, 1086-88 (7th Cir. 2005) (“[I]t was not necessary for the officers to have made an arrest in order for their search of the apartment to be justified; the only question is whether the search was objectively reasonable.”); United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001) (“[T]he principle enunciated in Buie with regard to officers making an arrest—that the police may conduct a limited protective sweep to ensure the safety of those officers—applies with equal force to an officer left behind to secure the premises while a warrant to search those premises is obtained.”); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993) (officers permitted to conduct protective sweep following consent entry); United States v. Patrick, 959 F.2d 991, 996-97, 294 U.S. App. D.C. 393 (D.C. Cir. 1992) (“Once the police were lawfully on the premises, they were authorized to conduct a protective sweep based on their reasonable belief that one of its inhabitants was trafficking in narcotics.”). But see United States v. Davis, 290 F.3d 1239, 1242 n.4 (10th Cir. 2002) (reading Buie narrowly to apply only in the context of an arrest); United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000) (same).

The Fifth Circuit’s decision in United States v. Gould, 364 F.3d 578 (5th Cir. 2004) (en banc) is instructive[, too].

Permalink 12:01:05 am, by fourth, 426 words, 727 views   English (US)
Categories: General

M.D.Fla.: Cab driver could remove passenger's luggage from cab on passenger's arrest on a warrant; plain view of marijuana valid

Officers had an arrest warrant for the defendant, and they were staking out his place. He got in a cab and left, and the officers waited for a traffic offense to stop the cab. [Like they needed one? Doesn’t the arrest warrant provide PC in itself? But I digress.] The cab was speeding, so the officers stopped the cab and got defendant out. The cab driver on his own removed defendant’s black bag from the cab and put it on the trunk, and the officers could see marijuana in the bag. That justified searching the bag. [The court talks of the cab driver having authority to consent to a search of the cab, but the cab driver has no apparent authority to consent to search a passenger’s luggage, so that part of the holding goes unnecessarily far. Same result, however.] United States v. Dixon, 2010 U.S. Dist. LEXIS 133489 (M.D. Fla. November 18, 2010), adopted 2010 U.S. Dist. LEXIS 133437 (M.D. Fla., Dec. 16, 2010):

Lastly, a number of reasons also justified the search of the Defendant's bag. Not only were the items in the bag in plain view (the cab driver removed the bag from the passenger compartment and placed it on the taxi's trunk), the cab driver had authority to consent to the search of the cab, and the detectives would have discovered the controlled substances in any event. See Harris, 526 F.3d at 1339 (cab driver has common authority over passenger compartment and can consent to search); United States v. Virden, 488 F.3d 1317, 1322 (11th Cir. 2007) (applying inevitable discovery doctrine). Besides, the detectives were justified in seizing and searching the bag incident to the Defendant's lawful arrest. Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1719, 173 L. Ed. 2d 485 (2009) (reiterating that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe that evidence relevant to the crime of arrest might be found inside the vehicle).

There was an arrest warrant for defendant, and his address was known. Officers went to the address, and it turned out that there might be two buildings at that address. When they announced their purpose, the door was slammed in their face, and the officers had a reasonable belief that he was inside and that was the correct address. United States v. Shaw, 2010 U.S. Dist. LEXIS 133973 (W.D. Tenn. December 17, 2010).*

Defendant’s being suspicious on the fenceline of a military installation was reasonable suspicion of criminal activity justifying a patdown. United States v. Kulkarni, 2010 U.S. Dist. LEXIS 133493 (E.D. Cal. December 2, 2010).*

12/23/10

Permalink 11:26:09 am, by fourth, 104 words, 740 views   English (US)
Categories: General

ABAJ: Feds ordered to pay $2.5M attorneys fees in warrantless wiretap case

ABAJ: Feds Must Pay Islamic Charity Lawyers and Their Counsel $2.5M in Warrantless Wiretap Case, by Martha Neil:

The chief federal district court judge in San Francisco has ordered the federal government to pay more than $2.5 million, primarily in attorney's fees, concerning its warrantless wiretap, under an executive surveillance program authorized by President George W. Bush, of two Washington, D.C., lawyers for a now-shuttered Islamic charity in Oregon.

Judge Vaughan Walker yesterday awarded $20,400 each in damages to attorneys Asim Ghafoor and Wendell Belew, and nothing to the charity, Al-Haramain Islamic Foundation, according to the New York Times (reg. req.) and the SF Appeal.

Permalink 09:43:45 am, by fourth, 328 words, 777 views   English (US)
Categories: General

CA3: Plain view moots a Gant claim

Officers had an arrest warrant for the defendant, and the search of vehicle was justified by seeing a firearm in plain view, not search incident. United States v. Patterson, 405 Fed. Appx. 602 (3d Cir. 2010) (unpublished).*

Defendant was stopped for a headlight being out, and the officer could direct the defendant out of the vehicle for safety purposes. Once out of the car, the officer could see a handgun protruding from under the floormat in plain view, and it could be seized. United States v. Dixon, 405 Fed. Appx. 19, 2010 FED App. 0764N (6th Cir. 2010) (unpublished).

Portland OR police who working a vice detail were watching a woman who made eye contact with the defendant and he stopped and she got into his car did not have reasonable suspicion to stop him. United States v. Miller, 2010 U.S. Dist. LEXIS 133002 (D. Ore. December 15, 2010)*:

This is an unfortunate situation in which experienced vice officers had an ultimately correct hunch. However, the Constitutional right of the individual to be free from unreasonable search and seizure prevails. In sum, a single female, dressed in jeans and sweater, strolling in a high vice area at 3:30 p.m. who makes eye contact with a driver, looks at traffic, and enters a parked car, all in less than sixty seconds, does not raise a reasonable suspicion that she is engaged in prostitution activity. The evidence arising out of the illegal stop must be suppressed. United States v. Colin, 314 F.3d 439, 443-46 (9th Cir. 2003).

Officers with an arrest warrant for the defendant had at least a reasonable belief or probable cause to believe that the defendant was in the premises of a third person. Since the Sixth Circuit hasn’t spoken on this issue, the court does not have to decide which applies because the Fourth Amendment was complied with under either. United States v. Gibbs, 2010 U.S. Dist. LEXIS 132942 (W.D. Tenn. December 14, 2010),* overruling in part United States v. Gibbs, 2010 U.S. Dist. LEXIS 132944 (W.D. Tenn. July 21, 2010).*

Permalink 08:53:20 am, by fourth, 243 words, 457 views   English (US)
Categories: General

N.D.Ga.: When officer asks about "anything illegal," consent after that is a general consent

Defendant consented to entry of his car to get his coat because he was cold and nodded toward his car to point it out. This request showed that he was not intimidated. He also consented to a general search of the car. United States v. Edwards, 2010 U.S. Dist. LEXIS 132690 (N.D. Ga. October 13, 2010)*:

At the same time, a defendant's lack of knowledge of what the officer is searching for does not change the effect of a "general consent." United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995) (interpreting Jimeno). The Snow Court concluded that it is self-evident that a police officer seeking general permission to search is looking for evidence of illegal activity. Id. It further noted that if the consent to search is entirely open-ended, a reasonable person would have no cause to believe that the search will be limited in some way.

There was probable cause for issuance of search warrants for defendant’s email accounts in extortion plot. United States v. Rosetter, 2010 U.S. Dist. LEXIS 132393 (D. Minn. October 1, 2010).*

Defendant’s mother had apparent authority, as far as the police were concerned, to consent to the search of a lock box because she knew where it was and had the key. The police came to the house to collect videos of sexual indecency with a child, and, informed of that, she went to the box and opened it without prompting. Valdez v. State, 336 S.W.3d 330 (Tex. App. — San Antonio 2010).*

Permalink 12:02:58 am, by fourth, 157 words, 668 views   English (US)
Categories: General

CA4: No REP in a cell phone she loaned to her boyfriend that the police seized

Plaintiff had nude pictures of herself on her cell phone, which she loaned to her boyfriend and was seized by the police when he was arrested. Several police officers viewed the pictures [can you imagine?]. She had no reasonable expectation of privacy in her cell phone from this kind of intrusion when she loaned it to her boyfriend. Casella v. Borders, 404 Fed. Appx. 800 (4th Cir. 2010) (unpublished).*

To undermine the trial court’s conclusion on credibility of witnesses on a search issue requires that the findings be “inherently implausible,” and here they aren’t. United States v. Miser, 403 Fed. Appx. 994, 2010 FED App. 0759N (6th Cir. 2010) (unpublished).*

While the renter of the hotel room rented under an alias did not have a key on him, he could always get another key from the front desk. That gave him control over the room to consent to a search. United States v. Randall, 2010 U.S. Dist. LEXIS 132385 (D. S.C. December 14, 2010).*

12/22/10

Permalink 12:18:56 am, by fourth, 588 words, 1745 views   English (US)
Categories: General

FL1: TSA's random opening of luggage to swab for explosives was reasonable, and it found child pornography

TSA random search of a suitcase at Pensacola airport for swabbing of exterior and contents for explosives resulted in a “plain view” of child pornography. Nothing was suspicious at all about defendant or his luggage. The TSA officer was permitted to look through papers rather than swab them [sounds like a search not in good faith to me]. The court distinguished two federal cases that found criminal searches by TSA unreasonable. Higerd v. State, 54 So. 3d 513 (Fla. App. 1st DCA 2010):

This is an issue of first impression; our independent research has not revealed any case directly deciding whether a purely administrative, physical search of checked luggage violates the Fourth Amendment. See United States v. Fofana, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009) (noting United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches); cf. United States v. McCarty, 672 F. Supp. 2d 1085, 1091 (D. Hawaii 2009) (examining administrative physical search of passenger’s checked luggage where suspicion was aroused by x-ray of the luggage). ...

Administrative searches in airports are an established exception. See United States v. Aukai, 497 F.3d 955, 959 (9th Cir. 2007) (“airport screening searches ... are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme’”) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). In 1980, the Florida Supreme Court held that a person attempting to board an airplane may be searched without probable cause within the security area of an airport as long as the search is reasonable and conducted solely for the purpose of discovering an immediate threat to air commerce. Shapiro v. State, 390 So. 2d 344, 350 (Fla. 1980).

Consent is not required to conduct an airport screen search, if the search is otherwise reasonable and conducted pursuant to statutory authority. McCarty, 672 F. Supp. 2d at 1096. ...

TSA’s protocol required officers to physically open a certain number of randomly selected bags, swab the inner contents, and test the swabs in one of the explosive detection machines. The TSA officer’s testimony was that she discovered several photographs while thumbing through a large file. TSA’s protocol reveals that the TSA officer had the discretion to flip through the papers found in Appellant’s bag while conducting the open bag search in lieu of swabbing every piece of paper. ...

Recently, two federal district courts determined similar administrative airport searches were unreasonable because they were not confined, in good faith, to searching for weapons or explosives. See Fofana, 620 F. Supp. 2d at 863-64; McCarty, 672 F. Supp. 2d at 1096. These opinions are distinguishable but instructive.

Unlike the officers in McCarty and Fofana, the TSA officer’s testimony in this case demonstrates her search remained confined, in good faith, to the purpose of searching for explosives or weapons. The TSA officer’s testimony was simple and unwavering: She was required to open a certain number of bags; Appellant’s bag was the next randomly selected bag; she was required to thumb through the contents of the accordion-type file folder found in Appellant’s bag, under TSA protocol; and she saw the photographs as soon as she opened the folder. She immediately stopped the search and contacted a supervisor. “The mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post facto.” United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005). Unlike the officers in Fofana and McCarty, the TSA officer’s testimony here did not hint that she was intentionally looking for evidence of criminal behavior.

Note: So, where is all the outrage about TSA frisks now?

Permalink 12:11:54 am, by fourth, 127 words, 3392 views   English (US)
Categories: General

Cal.1st: Use of night vision goggles was not a search

The use of night vision goggles by the police was not an unreasonable seizure. A metal shed near the driveway was visible from the street by anyone. People v. Lieng, 190 Cal. App. 4th 1213, 119 Cal. Rptr. 3d 200 (1st Dist. 2010).*

The officer tried to stop the defendant for missing a license plate and only one working headlight. Defendant did not stop and he made “gestures” toward the console while the vehicle was moving. Once stopped, the vehicle was subject to search for a weapon. State v. Breisch, 2010 Ohio 6113, 2010 Ohio App. LEXIS 5148 (2d Dist. December 10, 2010).*

Defendant was stopped for careless driving, and the officer put his hand in defendant’s pocket to search it, and the trial court properly suppressed it. State v. Watana, 50 So. 3d 92 (Fla. App. 4th DCA 2010).

Permalink 12:05:14 am, by fourth, 139 words, 662 views   English (US)
Categories: General

MO: Stalling traffic stop for drug dog was unreasonable

Stalling the traffic stop to get the drug dog there made the stop unreasonable. State v. Stover, 2010 Mo. App. LEXIS 1683 (December 14, 2010):

Officer Hagerty, however, did not promptly pursue his suspicions by asking for permission to search at that time, nor did he promptly summon the drug dog. Instead, Officer Hagerty continued efforts to interrogate Stover and the passenger as though he and the travelers had nothing better to do than to discuss many things unrelated to the traffic stop.

A DNA match is probable cause to arrest. Myles v. State, 54 So. 3d 509 (Fla. App. 3d DCA 2010).*

Defendant did not really challenge the officer’s testimony that she crossed the fog line three times. She said she was eating a hamburger and didn’t notice. She validly consented during the stop. State v. Malone, 56 So. 3d 336 (La. App. 2d Cir. 2010).*

12/21/10

Permalink 04:34:06 pm, by fourth, 141 words, 781 views   English (US)
Categories: General

Washington Metro police starts random bag checks

WMATA bag searches make transit less safe, not more:

This morning, the Metro Transit Police began conducting the system's first random bag checks. These inspections are couched in the language of security, but they actually make the system less safe.

Passengers boarding during the morning rush at Braddock Road and College Park faced these screenings. The Washington Post's Dr. Gridlock reported that one man's check took 8 minutes, and yet nothing threatening was found.

People have been objecting to these random bag checks on a variety of grounds. The ACLU says that they infringe on civil liberties. Dr. Gridlock disputed the argument that they are a "necessary evil," writing that "To be a necessary evil, a thing must be both necessary and evil," and that this policy is only the latter, not the former. Even Congresswoman Eleanor Holmes Norton thinks they're ineffective.

Permalink 12:53:09 am, by fourth, 607 words, 757 views   English (US)
Categories: General

W.D.Pa.: Two affidavits for warrants against same person can be read together to show PC, one for a GPS warrant

Two affidavits for search warrants against the defendant can be read together to support each other. Here, officers had probable cause to believe that defendant was a drug dealer, and they got a warrant to install a GPS on a package for him to see where it would go. When the package stopped moving, that information was used to get a search warrant for the place. United States v. Abdul-Ganui, 2010 U.S. Dist. LEXIS 131993 (W.D. Pa. December 14, 2010):

Other cases have followed these principles and permitted “probable cause to be determined from separate affidavits filed to obtain several warrants in the same criminal investigation.” State v. Smith, 836 S.W.2d 137, 140 (Tenn. Crim. App. 1992). In Smith, two separate affidavits were simultaneously presented to a magistrate judge in support of two different warrants, one warrant authorizing the search of the defendant’s residence and the other authorizing procurement of a blood sample. The court rejected the argument that the affidavit in support of the first warrant could not be used to determine whether probable cause existed for the second. It stated that “it would be hypertechnical for the [magistrate judge] not to act upon an entire picture disclosed to him in interrelated affidavits presented to him on the same day.” Id.; accord State v. Kalai, 56 Haw. 366, 537 P.2d 8, 10 (Haw. 1975) (“Where two closely related affidavits, referring to the same individual and the same criminal charge, are presented to the issuing magistrate simultaneously, he may consider both for the purpose of ascertaining the existence of probable cause.”); United States v. Fogarty, 663 F.2d 928, 929-30 (9th Cir. 1981) (A magistrate judge is not required to read an affidavit with “tunnel vision” and thus is not limited to the four corners of a single affidavit where “facts are presented simultaneously in two related affidavits seeking two warrants.”).

Similarly, these principles have been applied to scenarios where the affidavits were not presented simultaneously. In Kaiser v. Lief, the United States Court of Appeals for the Tenth Circuit held that a magistrate judge may rely on facts included in two separate affidavits presented a day apart. In upholding the search, the court recognized that while the two affidavits were not presented to the magistrate judge on the same day, “all of the information on which the magistrate relied was included in sworn documents.” 874 F.2d 732, 735 (10th Cir. 1989). In United States v. Manufacturers National Bank of Detroit, Livernois-Lyndon Streets, Safety Deposit Box # 127, Detroit, Michigan, two separate affidavits were presented to a magistrate judge within a day of each other by an officer seeking warrants to search the defendant’s residence and security deposit box. The Sixth Circuit held that the issuing magistrate judge was entitled to consider both affidavits in reaching a probable cause finding, and opined that it “would needlessly restrict the discretion of a magistrate to hold that two affidavits filed so close in time and referring to a single criminal investigation which was still continuing could not be considered together in determining whether to authorize a further search.” 536 F.2d 699, 702 (6th Cir. 1976); accord United States v. Markis, 352 F.2d 860, 864 (2d Cir. 1965) (upholding magistrate judge’s probable cause determination based on affidavits relating to the same person and the same offense presented four days apart), vacated on other grounds, Markis v. United States, 387 U.S. 425, 87 S. Ct. 1709, 18 L. Ed. 2d 864 (1967); Cf. Commonwealth of Massachusetts v. Saleh, 396 Mass. 406, 486 N.E.2d 706, 709 (Mass. 1985) (observing in upholding probable cause determination based on two separate affidavits that “[e]ach affidavit contributes to the total picture from which the magistrate determines probable cause.”).

So, how hard is it to get a search warrant to install a GPS? Not that hard.

Permalink 12:36:52 am, by fourth, 351 words, 668 views   English (US)
Categories: General

OH2: Trial court erred in finding GFE applied without considering PC first; remanded

The officer had a search warrant which he executed but also obtained consent to search. The trial court considered only consent and the good faith exception. This was error because probable cause had to be determined before moving to the good faith exception. State v. Mendell, 2010 Ohio 6107, 191 Ohio App. 3d 325, 945 N.E.2d 1130 (2d Dist. 2010):

[*P17] In overruling the motion to suppress, the trial court addressed two issues that Mendell raised in connection with his motion: the timing of the warrant (whether it was executed before it was filed); and the voluntariness of Mendell's written consent to search, and resolved both of them in the State's favor. But the trial court did not address two other issues that Mendell and the State raised: whether the affidavit in support of the search warrant made out probable cause for the issuance of the warrant; and, if not, whether the police acted in good faith in executing the warrant, under United States v. Leon (1984), 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677. The issue of the good-faith exception is dependent not only upon the officers' objective good faith, but also upon their subjective good faith, which, in turn, is dependent upon the trial court's findings of fact. Although the trial court made findings of fact, it did not make findings of fact specific to these issues. Therefore, we reverse the judgment of the trial court, and remand this cause for findings on the probable-cause and good-faith issues. If the trial court shall find in favor of the State on either or both of these issues, it may re-enter a judgment of conviction based upon Mendell's no-contest plea, and impose an appropriate sentence.

[Note: This holding is what I've been saying for years. PC first, GFE second, always, unlike a recent case from the Eighth Circuit posted here. Leon did not say that courts could avoid deciding probable cause, but it implied it. Unless the courts want to default their jobs and fail to perform the judicial function, they have to decide probable cause so the police will know what is probable cause and what isn't.]

Permalink 12:36:48 am, by fourth, 159 words, 676 views   English (US)
Categories: General

OH2: Arrest for unlicensed pit bull found at a knock and talk did not justify warrantless entry

Police got a tip through a school counselor that a seven year old reported marijuana where he lived. They came for a knock and talk, and arrested the defendant for an uninsured pit bull. That did not justify a warrentless entry into the house. State v. McGuire, 2010 Ohio 6105, 2010 Ohio App. LEXIS 5145 (2d Dist. December 10, 2010).*

The fact that the officer did not tell the search warrant’s issuing magistrate that the CI was paid was not material under Franks, considering the detail. State v. Williams, 53 So. 3d 669 (4th Cir. 2010).*

Odd travel plans with a rented car going 1000 miles each way in 48 hours was enough to ask questions, resulting in conflicting stories about travel plans. Defendant’s mother was his passenger and he said she rode with him, but she said he drove to pick her up. He was excessively nervous. That was reasonable suspicion for a longer detention. United States v. Shelby, 2010 U.S. Dist. LEXIS 132064 (E.D. Tex. November 23, 2010).*

Permalink 12:03:29 am, by fourth, 157 words, 760 views   English (US)
Categories: General

S.D.Ga.: Flight after traffic stop was probable cause

Defendant was stopped for following too close on an interstate highway, and, as the officer walked up to the car, defendant drove off and fled on foot when the vehicle was stopped. This was probable cause and exigent circumstances for a search of the car. Alternatively, the abandonment would have led to an inventory. United States v. Wright, 2010 U.S. Dist. LEXIS 131554 (S.D. Ga. November 5, 2010).*

The Arkansas Motor Carrier Act provides sufficient protection to be a warrant substitute. United States v. Ruiz, 569 F.3d 355, 357 (8th Cir. 2009). The inspection of defendant’s truck would have been justified, and defendant consented to a more detailed search anyway. United States v. Harris, 2010 U.S. Dist. LEXIS 131209 (E.D. Ark. November 30, 2010).*

Defendant’s common law wife had apparent authority to consent to a search. She was also advised in English and Spanish of her right to refuse consent. United States v. Huerta-Rodriguez, 2010 U.S. Dist. LEXIS 131603 (D. N.M. October 20, 2010).*

12/20/10

Permalink 03:13:35 pm, by fourth, 161 words, 541 views   English (US)
Categories: General

Joe McCarthy lives in SnapScout, seeking to create a nation of snitches

SnapScout Keeps America Safe

Want to earn tons of cool badges and prizes while competing with you [sic] friends to see who can be the best American? Download the SnapScouts app for your Android phone (iPhone app coming soon) and get started patrolling your neighborhood.

It's up to you to keep America safe! If you see something suspicious, Snap it! If you see someone who doesn't belong, Snap it! Not sure if someone or something is suspicious? Snap it anyway!

Play with your friends and family to see who can get the best prizes. Join the SnapScouts today!

SnapScout Features

* Colorful interface and sounds makes reporting a potential crime fun and easy!
* Submit reports anonymously to stay safe and secure!
* Help law enforcement collect evidence in real-time!
* Collect a variety of awards and badges to compare with friends!
* Makes civic duty and community fun!
* Coming soon: Multi-crime tagging to catch more crimes at once!

Update: I think this may be satire.

Permalink 09:56:27 am, by fourth, 168 words, 989 views   English (US)
Categories: General

New law review article: "The Fourth Amendment and the Brave New World of Online Social Networking"

The Fourth Amendment and the Brave New World of Online Social Networking by Nathan Petrashek, 93 Marq. L. Rev. 1495 (2010):

No phenomenon is more demonstrative of the brave new technological world than online social networking. Each day, millions of Americans log on to social networking web sites, whose astonishingly rapid user growth has turned many into multi-billion-dollar marketing machines. But wholly aside from their business impact, these web services perform important social functions by allowing users to meet or remain in touch with others, share ideas, start organizations, and generally contribute to a vibrant and open society.

Left unstated by Justice Thomas is his notion of how the thorny legal issues surrounding this new communicative forum should be resolved. Existing Fourth Amendment doctrine is ill-equipped to handle the convergence of the public and the private; generally, one loses all privacy expectations in what is shared with the world. Though this tension between constitutional doctrine and social practice has yet to play out in the courts, it may soon do so.

Permalink 07:33:47 am, by fourth, 436 words, 704 views   English (US)
Categories: General

N.D.N.Y.: Tribal officer designated for border stops needed advance approval of stop, which here was lacking

Defendant was on an Indian reservation in Franklin County NY that was partly in New York and Quebec. He was observed crossing the border at an unmanned border crossing by a tribal officer and then promptly return. The tribal officer was designated to make border stops by CBP, but he needed advance telephone authority which he lacked here. The stop was invalid. United States v. Wilson, 754 F. Supp. 2d 450 (N.D. N.Y. 2010). The conclusion:

Sgt. Rourke and Inv. Barnes' stop of Wilson's vehicle was outside the legal boundary of the St. Regis Mohawk Reservation and thus they lacked authority to conduct the stop as St. Regis Mohawk tribal police officers. Although Sgt. Rourke possessed delegated Title 19 authority to act as a customs officer, he failed to notify the ICE agent in charge before stopping defendant's vehicle as required by the Designation Agreement. Because he did not telephone the agent in charge and obtain authorization prior to performing his Title 19 duties, he was not acting in his Title 19 capacity when he and Inv. Barnes seized defendant's vehicle near the intersection of Route 37 and Route 37C.

Likewise, Sgt. Rourke and Inv. Barnes cannot rely on New York Indian Law Section 114(8) to validate the stop of Wilson's vehicle off the reservation. Their pursuit did not commence on the reservation because they did not observe Wilson's vehicle until it was at Truck Stop #9, located off the reservation. Nor did they have probable cause to arrest Wilson within the boundary of the St. Regis territory based solely on the radio traffic reports and their speculation that he was not going to report to a port of entry as required by 19 U.S.C. § 1433(b).

While Wilson's exit from and reentry to the United States within a short time frame coupled with the officers' knowledge of drug trafficking behavior in the area may have been enough to establish reasonable suspicion to justify a Terry stop, the fact remains that as SRMPD officers, Sgt. Rourke and Inv. Barnes did not have authority to conduct a Terry stop outside of the boundary of the St. Regis Mohawk Reservation. Because they were acting in their official capacities as on duty SRMPD officers, the stop cannot be justified as a citizen's arrest.

Lastly, simply because Agent Chamberlain was allegedly planning to stop the vehicle and had the authority to do so as a USBP Agent does not mean that the discovery of the marijuana in the trunk was inevitable. The Government has failed to establish its inevitable discovery by a preponderance of the evidence and thus this exception will not save the otherwise unlawful seizure.

Permalink 07:14:21 am, by fourth, 279 words, 689 views   English (US)
Categories: General

N.D.Ill.: Forfeiture claimant's incredible story about ownership justified not believing him on consent to search, either

Defendant’s incredible story during these forfeiture proceedings that he inherited the money from his mother which was not raised until well into the proceedings justified the court not believing his version that the search was without his consent in the first place. United States v. Funds in the Amount of $40,000, 2010 U.S. Dist. LEXIS 131582 (N.D. Ill. December 13, 2010).*

Officers applied for a search warrant for a drug house with ongoing sales. While waiting, they decided they could do a probation search and entered. Because there were ongoing drug sales on the property, they were justified in doing frisks of the people inside because of the number alone. This was not a one on one encounter on the street. State v. Crooks, 150 Idaho 117, 244 P.3d 261 (App. 2010).*

An officer passed a vehicle with a headlight out and he turned around and pulled it over. When stopped, there were three vehicles together that stopped with the officer in the middle. The officer walked back to another vehicle to tell them what he was doing, and he smelled marijuana in the vehicle. The person in that vehicle would not feel free to leave when the officer came back to talk to him, so that person’s encounter was unreasonable when the officer told him to stay put. State v. Ray, 2010 Ida. App. LEXIS 101 (December 10, 2010)* [Note: I think that the officer had a right to go back to the vehicle that stopped behind him for his own safety to make sure this was not an ambush coming. Here, telling that driver to stay was the seizure. He should have just told them to take off and leave him alone to do his job.]

Permalink 06:57:40 am, by fourth, 282 words, 711 views   English (US)
Categories: General

MD: A Moylan primer on strip search

Defendant’s arrest for drugs on the street was justification for his strip search at the jail. Directing him to take off his pants and then seeing drugs fall out was not unreasonable. This case is a detailed review of the law of strip search. State v. Harding, 196 Md. App. 384, 9 A.3d 547 (2010):

With yet no direct guidance from the Supreme Court, a nation-wide debate (or series of more or less related debates) has been raging over the extent to which the search of an individual for evidence may, in its intensity, go beyond the limits of the traditional search incident to lawful arrest and still be deemed reasonable within the contemplation of the Fourth Amendment. That debate, thus far, has produced far more heat than light. The case law and the academic commentary have been growing so prolifically that they are producing a chaotic sprawl. An effort has to be made to organize this growing mass of material into more manageable and comprehensible sub-units. Part of our goal in this opinion will be that of reducing the doctrinal clutter.

Our special concern on this appeal will be with the precise justification required to expand a routine search incident into what may be characterized as a "strip search." The law has been in a quandary about how to understand, and to explain, the relationship between the strip search and the search incident. The heart of the problem is that the strip search grows out of the search incident -- but not automatically. In getting a handle on that troubled relationship, the key concepts will be 1) that a search incident does not demand particularization but 2) that a strip search (or anything more invasive) does.

12/19/10

Permalink 04:12:09 pm, by fourth, 14 words, 697 views   English (US)
Categories: General

Pardoning "Billy the Kid"?

See the Billy the Kid pardon site on the New Mexico state government website.

12/18/10

Permalink 12:54:16 pm, by fourth, 322 words, 645 views   English (US)
Categories: General

CA8: Officer's questions before consent essentially defined scope of consent

Probable cause was found: “The magistrate judge identified several ‘suspicious circumstances’ giving the troopers probable cause to believe drug contraband would be found in the minivan: (1) Braiske’s signs of nervousness, including shaking hands, labored breathing, a visible pulse in his neck, and the development of red blotches on his face; (2) Mayo’s extreme nervousness, including heavy breathing, sweating, a visible pulse in his neck, and avoidance of eye contact; (3) Braiske and Mayo’s contradictory statements about their travel history; (4) Braiske’s significant criminal history of drug related offenses; and (5) trooper Andrews’s discovery of two bindles consistent with drug packaging in plain view. The district court agreed and concluded that ‘the items recovered during the search are admissible under the automobile exception.’” This is supported by the evidence. United States v. Mayo, 627 F.3d 709 (8th Cir. 2010):

In United States v. Ferrer-Montoya, we held that when a defendant gives his consent to search a vehicle, officers may “search containers within that car which might bear drugs, probe underneath the vehicle, and open compartments that appear to be false, or puncture such compartments in a minimally intrusive manner.” 483 F.3d 565, 568 (8th Cir. 2007) (per curiam) (citations omitted). Though Braiske initially only consented to a “real quick” search of the minivan, he then clarified his answer by telling Andrews that, “yes,” he could “go ahead” and search the minivan. As we held in Ferrer-Montoya, we conclude that a “typical reasonable person” would have understood Andrews to be asking to search the entire minivan for drugs, including behind the door’s interior panels, and that Braiske’s answer authorized such a search. Because Andrews and his colleagues opened those panels in a minimally intrusive manner and because Braiske at no time objected or attempted to withdraw his consent, we conclude that the district court did not clearly err in finding that the officers’ search of the minivan did not exceed the scope of Braiske’s consent.

Permalink 11:47:00 am, by fourth, 144 words, 1059 views   English (US)
Categories: General

OH8: Defendant still had REP in his boarded up house when entered by police after nuisance injunction had expired

Defendant’s house was the subject of a drug nuisance injunction and ordered boarded up. By the time the injunction expired, he was occupying again, and the police entered without a warrant, even though it was still boarded up. He had an expectation of privacy anyway. The police never checked to find out that the injunction had expired. State v. Harris, 2010 Ohio 6019, 2010 Ohio App. LEXIS 5063 (8th Dist. December 9, 2010).

Defendant was parked in a high crime area after midnight, standing outside his car with the door open. When the officer called out to him, he got in the car and left. The officer had reasonable suspicion for a stop. State v. Rowe, 2010 Ohio 6030, 2010 Ohio App. LEXIS 5069 (8th Dist. December 9, 2010).*

The four corners of the affidavit shows probable cause for issuance of the search warrant. United States v. Nguyen, 2010 U.S. Dist. LEXIS 130626 (D. Minn. October 13, 2010).*

Permalink 11:14:26 am, by fourth, 279 words, 730 views   English (US)
Categories: General

OH8: Dispatch report of stolen car supported stop in good faith, and, under Herring, the evidence should not be excluded

Defendant was stopped because the car came back stolen from dispatch, but it wasn’t stolen. Under Herring, the stop was in good faith, and there would be no deterrence, so the exclusionary rule would not be applied. State v. Geiter, 2010 Ohio 6017, 190 Ohio App. 3d 541, 942 N.E.2d 1161 (8th Dist. 2010)*:

[*P42] “At its core, the good faith exception recognizes that the purpose of the exclusionary rule, to deter unlawful police conduct, cannot be furthered by excluding evidence seized by an officer who had reasonable grounds to believe the search warrant was properly issued. See Leon at 919, 923. Thus, ‘evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may be properly charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ Herrings [sic], 129 S.Ct. at 701; Leon, 468 U.S. at 919.” (Emphasis added.)

[*P43] For purposes of this case, the word “stop” may be substituted for the word “search” in the foregoing opinions. In applying the relevant analysis, therefore, the trial court properly focused on Nan’s objective reliance on the information conveyed to him via police dispatch. Nan had no reason to question the reliability of the “local system’s” information, particularly to justify a minimally intrusive traffic stop. State v. Commins, Clinton App. Nos. CA2009-06-004 and 005, 2009 Ohio 6415; cf., State v. Jacob, supra.

[*P44] Applying the exclusionary rule under these circumstances would not deter “unlawful police conduct,” since Nan himself could not know his conduct in stopping a car to investigate possible criminal activity would subsequently prove to lack a foundation. In fact, Terry v. Ohio (1968), 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889, precisely permits such an action.

Permalink 10:28:28 am, by fourth, 365 words, 695 views   English (US)
Categories: General

OH8: Ordinary citizen report is not treated the same as a CI

An unidentified citizen’s report of a man with a gun in his waistband apparently casing a gas station to rob it was sufficient to stop and frisk him. The officer went to the gas station within a minute of the report and found the defendant who he had assume the position, finding the gun. The stop and frisk was reasonable. A citizen complaint is different than an anonymous report. State v. Cisternino, 2010 Ohio 6027, 2010 Ohio App. LEXIS 5056 (8th Dist. December 9, 2010)*:

[*P15] We disagree with Cisternino, and instead find, as did the Weisner court, that an ordinary citizen informant who does not happen to give a name should not be treated like an anonymous informant. See State v. Jordan, Montgomery App. No. 18600, 2001 Ohio 1630, citing Weisner. The Second District Court of Appeals held that “[i]nformation from an ordinary citizen who has personally observed what appears to be criminal conduct carries with it indicia of reliability and is presumed to be reliable.” State v. Carstensen (Dec. 18, 1991), Miami App. No. 91-CA-13, 1991 Ohio App. LEXIS 6116, unreported. Similarly, the First District Court of Appeals held that an unidentified informant who stops an officer to provide information about a crime is not anonymous: “There is nothing even remotely anonymous, clandestine, or surreptitious about a citizen stopping a police officer on the street to report criminal activity.” State v. Ramey (1998), 129 Ohio App.3d 409, 416, 717 N.E.2d 1153.

[*P16] In the case before us, the citizen who flagged down Officer Rock to report what he suspected was criminal conduct was not “anonymous” under the three classifications of informants. There is nothing in the record to suggest that the citizen would have refused to give his name if asked or that he attempted to conceal his identity in any way. Whether an informant is “anonymous” depends on whether the informant himself took steps to maintain anonymity, not on whether the police had time to get his name. See Ramey, supra.

The defendant was speeding. The officer called in the license plate and found that the owner had a suspended license. The driver met the description of the owner. The stop was justified by the speeding. State v. Jenkins, 2010 Ohio 5943, 2010 Ohio App. LEXIS 4999 (3d Dist. December 6, 2010).*

12/17/10

Permalink 12:10:30 am, by fourth, 50 words, 509 views   English (US)
Categories: General

Trial going to jury today

After two weeks of trial, my case goes to the jury today, and I'll get caught up this weekend.

I hate being days behind, because now it will take two full days to get caught up. At least I have something to do through the Christmas break of the courts.

12/16/10

Permalink 09:23:22 pm, by fourth, 68 words, 427 views   English (US)
Categories: General

SCOTUS ready for the technology revolutuion?

The Supreme Court and technology--are the Justices ready for 21st century cases? More and more technology cases are heading to the Supreme Court. Do the Justices understand technology well enough to render accurate decisions in highly technical cases? by Ryan Fraas on ITWorld.com.

No. And we are a decade into the Twenty-First Century. Hopefully, the law clerks are, but they don't ask the questions at oral argument.

Permalink 09:18:22 pm, by fourth, 307 words, 590 views   English (US)
Categories: General

New law review article: "The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning"

The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning by Andrew E. Taslitz of Howard University School of Law, Texas Tech Law Review, Vol. 43, 2010. The Abstract on SSRN:

Much debate about the role of history in constitutional interpretation centers on the difference between originalism and non-originalism. Yet most writers agree that history must play some role. If it does, for what should we be looking when we mine history? Originalists say, "for the original intent of the Framers or the original meaning of the Founding moment" or some variation. Non-originalists are less clear. Starting from a non-originalist perspective, this article argues that one important thing to mine history for is lessons about what promotes individuals' and the People's happiness. The article considers the implications for this stance for Fourth Amendment interpretation. The article first defines a "People" by its shared commitments, finding the American People thus to be defined in part by the "pursuit of happiness" as stated in the Declaration of Independence. The piece argues that the Declaration has an appropriate role to play in interpreting the Constitution. Next, the piece reviews relevant historical meanings of "happiness" and its pursuit and finds them consistent with modern social science on these topics. Specifically, the article finds that happiness's pursuit for individuals and the American People partly requires that citizens, groups, and the People as a whole have an effective voice in government and that the state also work to promote certain types of equality (though not income equality). The article argues that these happiness-promoting functions are particularly central to history's role in interpreting the Fourth Amendment, concluding with three examples focusing on racial and viewpoint minorities and their interactions with the police. The article was written as part of a symposium panel on the role of history in understanding the Fourth Amendment's meaning.

12/15/10

Permalink 12:02:33 am, by fourth, 652 words, 676 views   English (US)
Categories: General

CA6: E-mail has Fourth Amendment protection

In the Smilin' Bob Enzyte case from the Sixth Circuit, United States v. Washak, 631 F.3d 266 (6th Cir. 2010), the Court held that emails have Fourth Amendment protection. First, a summary of the holding:

(1) Warshak enjoyed a reasonable expectation of privacy in his emails vis-a-vis NuVox, his Internet Service Provider. See Katz v. United States, 389 U.S. 347 (1967). Thus, government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause. However, because the agents relied in good faith on provisions of the Stored Communications Act, the exclusionary rule does not apply in this instance. See Illinois v. Krull, 480 U.S. 340 (1987).

From the opinion:

Turning first to the subjective component of the test, we find that Warshak plainly manifested an expectation that his emails would be shielded from outside scrutiny. As he notes in his brief, his “entire business and personal life was contained within the ... emails seized.” Appellant’s Br. at 39-40. Given the often sensitive and sometimes damning substance of his emails,15 we think it highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty laundry in plain view. See, e.g., United States v. Maxwell, 45 M.J. 406, 417 (C.A.A.F. 1996) (“[T]he tenor and content of e-mail conversations between appellant and his correspondent, ‘Launchboy,’ reveal a[n] ... expectation that the conversations were private.”). Therefore, we conclude that Warshak had a subjective expectation of privacy in the contents of his emails.

The next question is whether society is prepared to recognize that expectation as reasonable. See Smith, 442 U.S. at 740. This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication. Cf. Katz, 389 U.S. at 352 (suggesting that the Constitution must be read to account for “the vital role that the public telephone has come to play in private communication”). Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment.

In confronting this question, we take note of two bedrock principles. First, the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration. See ibid.; United States v. U. S. Dist. Court, 407 U.S. 297, 313 (1972) (“[T]he broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.”). Second, the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish. See Kyllo v. United States, 533 U.S. 27, 34 (2001) (noting that evolving technology must not be permitted to “erode the privacy guaranteed by the Fourth Amendment”); see also Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1007 (2010) (arguing that “the differences between the facts of physical space and the facts of the Internet require courts to identify new Fourth Amendment distinctions to maintain the function of Fourth Amendment rules in an online environment”).

See Electronic Frontier Foundation, ZDNet.

12/14/10

Permalink 06:12:32 am, by fourth, 390 words, 640 views   English (US)
Categories: General

SD: Objectively unreasonable mistakes of law do not support arrests

Noting a conflict in the cases, with the majority of cases saying a mistake of law is not objective good faith, South Dakota decides that objectively unreasonable mistakes of law do not support arrests. State v. Wright, 2010 SD 91, 791 N.W.2d 791 (December 8, 2010):

[*P21] This case is thus more analogous to Webb and Washington than Martin. Trooper Biehl may have believed in good faith that Wright violated SDCL 32-17-7, “[b]ut his subjective good faith is not sufficient to justify the stop[.]” Martin, 411 F.3d at 1001. “[O]fficers have an obligation to understand the laws that they are entrusted with enforcing, at least to a level that is objectively reasonable.” Id. “Any mistake of law that results in a search or seizure, therefore, must be objectively reasonable to avoid running afoul of the Fourth Amendment.” Id. Trooper Biehl acted upon a mistake concerning a clear and unambiguous statute. Given the clear and unambiguous language of SDCL 32-17-7, Trooper Biehl’s mistake of law was not objectively reasonable. Consequently, the trial court erred by denying Wright’s motion to suppress the evidence discovered during the stop and subsequent search of his vehicle.

The fact the officer arrested defendant with probable cause but contrary to a Sheriff’s directive or in violation of statute was not a Fourth Amendment issue. State v. Talbot, 2010 UT App 352, 246 P.3d 112, 671 Utah Adv. Rep. 12 (2010):

[*P10] For purposes of this appeal, we accept Talbot’s assertion that the Deputy’s initial encounter with Talbot was an arrest rather than a detention. Talbot makes no claim that the Deputy’s inherent authority as a serving peace officer to arrest malefactors was constrained by anything other than the Sheriff’s instructions and constitutional boundaries. Applying the reasoning of Harker, we conclude that so long as Talbot’s arrest was justified by probable cause, the fact that the Deputy may have exceeded the instructions given to him by the Sheriff has no bearing on whether Talbot’s arrest was “lawful” under the Constitution. If an arrest in violation of a statutory restriction does not itself raise constitutional issues, then, a fortiori, an arrest that exceeds a superior’s immediate directive in a particular circumstance does not do so. Therefore, the pivotal question in determining whether Talbot’s arrest was constitutional is whether the arrest was supported by probable cause.

Permalink 12:01:40 am, by fourth, 164 words, 584 views   English (US)
Categories: General

Article: "The SWAT Team Would Like to See Your Alcohol Permit / How police use regulatory inspections to conduct warrantless searches"

The SWAT Team Would Like to See Your Alcohol Permit / How police use regulatory inspections to conduct warrantless searches by Rodney Balko.

In August a team of heavily armed Orange County, Florida, sheriff’s deputies raided several black- and Hispanic-owned barbershops in the Orlando area. There were more raids in September and October. According to the Orlando Sentinel, barbers and customers were held at gunpoint, some in handcuffs, while police turned the shops upside down. A total of nine shops were raided, and 37 people were arrested.

By all appearances, these raids were drug sweeps. Shop owners told the Sentinel police asked where they were hiding illegal drugs and weapons. But in the end, 34 of the 37 arrests were for "barbering without a licence," a misdemeanor for which only three people have ever served jail time in Florida. Two arrests were for misdemeanor marijuana possession. Just one person was arrested on felony drug and weapon charges.

See this posting from 2009, on SWAT teams executing administrative warrants.

12/13/10

Permalink 10:10:44 pm, by fourth, 6 words, 452 views   English (US)
Categories: General

Still in trial

I probably will post something tomorrow.

Permalink 07:46:53 am, by fourth, 262 words, 447 views   English (US)
Categories: General

N.D.Iowa: There is no Fourth Amendment requirement for actual recording of PC showing

There is no Fourth Amendment requirement that the statement from the officer in support of a search warrant be actually recorded. Rule 41(d)(2) requires a court reporter or “suitable recording device,” but the Fourth Amendment does mention how. And, this was a state court warrant. Here, the officers testified consistently concerning what was given the issuing judge. Also, the record showed who the source of information was and the issuing magistrate could credit it. There was also good faith reliance on the warrant by the officers, and it was not so “facially deficient” that it could not be relied upon. United States v. Patten, 2010 U.S. Dist. LEXIS 130730 (N.D. Iowa December 9, 2010).* [Query: How was recording done in 1789? Does common availability of recording by affidavit or actual recording change this? Was there a court reporter available at that time?]

The video of the stop showed that defendant’s consent was valid, and that he was freely moving around the scene of the stop. The officers were not required to tell the defendant he was free to leave, but he expected to get a ride with the tow truck driver and leave the scene. United States v. Foerster, 2010 U.S. Dist. LEXIS 130623 (D. Vt. December 9, 2010).*

“Even without considering the display of religious and patriotic symbols, Gonzalez’s prior drug arrest, excessive nervousness, and the fact that he was traveling on a known drug corridor, provided [Officer] Dupree with reasonable suspicion to extend the search.” The video of the stop was credited. United States v. Gonzalez-Hernandez, 2010 U.S. Dist. LEXIS 130558 (W.D. La. November 23, 2010).*

Permalink 07:27:29 am, by fourth, 342 words, 492 views   English (US)
Categories: General

IN: Officer not obligated to give a parking ticket before defendant drove off; stop was reasonable

The officer here saw the defendant parking in a handicapped spot without a sticker, and then drove off. That justified the stop, and defendant was driving with his DL forfeited for life, and that's a felony. Haynes v. State, 937 N.E.2d 1248 (Ind. App. 2010).*

Different recollections of the police officers as to “the time and place that consent” did not go to the voluntariness and was insufficient to find the trial court’s finding erroneous. Clemmons v. State, 2010 Ark. App. 810, 2010 Ark. App. LEXIS 856 (December 8, 2010).*

Police bike officers saw a middle aged couple in a park talking, and they seemed unusual for the park because of their age. So, the officers came up and asked for ID but said that they were not in any trouble. It turned out the man was under a restraining order to stay away from the woman, and he was arrested for it. One officer asked the woman in an after thought whether she had anything in her purse that was illegal, and she said no, and then consented to a search of her purse. A reasonable person would not have concluded that she was seized at the time she consented. State v. Ashbaugh, 349 Ore. 297, 244 P.3d 360 (),* revg State v. Ashbaugh, 225 Ore. App. 16, 200 P.3d 149 (2008):

Considering the totality of the circumstances, we conclude that [Officer] Schaer’s actions in asking defendant the questions that he did under the circumstances that existed did not “intentionally and significantly” restrict or interfere with her liberty. We further conclude that an objectively reasonable person in defendant’s circumstances would not believe that Schaer had done so. Accordingly, we reject defendant’s contention that, in light of the surrounding circumstances, Schaer’s questions about the contents of her purse and his request for consent to search the purse amounted to a seizure for purposes of Article I, section 9, of the Oregon Constitution. It follows that, whatever connection there might be between those questions and defendant’s consent to the search of her purse, the consent was not the product of an unlawful seizure.

Permalink 07:01:23 am, by fourth, 224 words, 473 views   English (US)
Categories: General

E.D.N.C.: "Hastily included" reference to CI was negligent and did not violate Franks

Defendant fails in his Franks burden where the court can conclude that the part of the affidavit that offends him was “hastily included” in the affidavit and was not intentional or even reckless. United States v. Nedd, 2010 U.S. Dist. LEXIS 130618 (E.D. N.C. December 9, 2010)*:

On this prong, Nedd fails to carry his burden. Other than pointing to Officer Monroe's mistaken inclusion of a reference to a “confidential informant” Nedd puts forth no evidence tending to establish that the officer's reference was anything other than a hastily included mistake. Nothing in the record supports a finding that Monroe acted intentionally or even recklessly in including the reference to the confidential informant.

An officer heard a radio report of a robbery, and he stopped a car which he thought could have been involved in the robbery for a broken taillight. There were several in the car, and he ordered them all out of the car so he could watch them, and they were nervous, had inconsistent stories, and had bulging pockets. The stop and patdowns were reasonable, as was the detention. State v. Cooper, 55 So. 3d 873 (La. App. 2d Cir. 2010).*

The state showed that the defendant’s consent to a blood draw at the hospital after an accident was voluntary, so the blood test results were properly admitted. Irby v. State, 49 So. 3d 94 (Miss. 2010).*

12/12/10

Permalink 05:55:03 pm, by fourth, 539 words, 1177 views   English (US)
Categories: General

FL: State statute requries exclusionary rule for knock-and-announce violation, declining to follow Hudson

Florida holds that state law requires exclusion of evidence obtained in violation of the knock-and-announce requirement. The court is not obligated to follow Hudson under the Fourth Amendment. State v. Cable, 51 So. 3d 434 (Fla. 2010), aff'g Cable v. State, 18 So. 3d 37 (Fla. 2d DCA 2009):

We conclude that Hudson does not control the question of whether the exclusionary rule applies to statutory knock-and-announce violations in Florida because we deem the distinction between common law remedies and constitutional remedies stressed in Cable a meaningful one. As explained by the Second District in Cable:

The issue in the instant case, however, is not—as it was in Hudson-—whether the evidence is subject to suppression under the Fourth Amendment. Instead, the issue is whether suppression of the evidence is a remedy that must be applied for the violation of the statutory knock-and-announce provision. The Florida case law recognizes the common law and constitutional background for the knock-and-announce statute. See Benefield, 160 So. 2d at 710 (stating that section 901.19 “appears to represent a codification of the English common law which recognized the fundamental sanctity of one’s home”); State v. Loeffler, 410 So. 2d 589, 593 (Fla. 2d DCA 1982) (stating that the purpose of the knock-and-announce statute “parallels that of the constitutional guarantees against search and seizure”). But the case law does not support the conclusion that the statute has no force independent of the requirements of the Fourth Amendment. Under the Florida case law, it is by no means clear that the exclusionary rule has been applied to violations of the knock-and-announce statute only because Fourth Amendment knock-and-announce violations were subject to the exclusionary rule. Indeed, Benefield applied the exclusionary rule for violations of the knock-and-announce statute long before the United States Supreme Court decided in Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), that the common law knock-and-announce rule was also a “‘command of the Fourth Amendment.’” Id. at 931 (quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)).

Cable, 18 So. 3d at 39.

Under Hudson, it is clear that the exclusionary rule does not apply to Fourth Amendment knock-and-announce violations. However, Hudson is not automatically dispositive of the question of whether the exclusionary rule may be applied for violations of Florida’s knock-and-announce statute because, as explained in State v. Slaney, 653 So. 2d 422, 425 (Fla. 3d DCA 1995):

[T]he states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967) (state constitutional provision on search and seizure); Sibron v. New York, 392 U.S. 40, 61, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) (state statute). In Florida, these higher standards may not, as a matter of state law, be imposed under the state constitutional guarantee against unreasonable searches and seizures, Art. I, § 12, Fla. Const. (1982 amendments); Bernie v. State, 524 So. 2d 988 (Fla. 1988), but may be imposed by other provisions of Florida law, including a state statute.

(Emphasis added.) As a matter of state law, a state may provide a remedy for violations of state knock-and-announce statutes, and nothing in Hudson prohibits it from doing so. Benefield was based on state law grounds and not the Fourth Amendment.

Also, the court would not retreat from Benefield.

Permalink 05:31:29 pm, by fourth, 221 words, 423 views   English (US)
Categories: General

D.Alaska: Valid inventory can create PC for further search

Defendant’s arrest for driving 99 mph captured on video and being lethargic when detained. He was arrested for reckless driving and driving on a revoked license. The impoundment was conducted under Alaska State Trooper regulations and was valid. The finding of a gun gave probable cause for further search of the vehicle beyond mere inventory. United States v. Greenwood, 2010 U.S. Dist. LEXIS 129867 (D. Alaska December 7, 2010).*

Defense counsel was not ineffective for not predicting Randolph, if it even applied. The court could not tell from the motion to suppress and the supporting papers whether defendant was present or not at the time of the search to object to it. His wife consented, and “Defendant's primary strategy at trial was to show that he was set up by his wife.” United States v. Blakley, 2010 U.S. Dist. LEXIS 130132 (E.D. Ky. November 8, 2010).*

Officers here collectively knew enough to make probable cause under the “collective knowledge” doctrine. And, the search of defendant’s car here was justified by the automobile exception. United States v. Nicksion, 628 F.3d 368 (7th Cir. 2010).*

Defendant consented to first a patdown during the traffic stop and then a minute later to a search of the vehicle, in writing, after a drug dog alerted to the vehicle. This was all on video. State v. Lopez, 2010 Tenn. Crim. App. LEXIS 1029 (December 6, 2010).*

Permalink 04:19:42 pm, by fourth, 280 words, 457 views   English (US)
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D.Md.: The court finds not credible that officers could see the crack in defendant's windshield for his stop

“The officers activated their lights and sirens and pulled the Crown Victoria over for a purported traffic stop.” Defendant made furtive movements. The court does not find at all credible the officer’s testimony that he could see the crack in defendant’s windshield as a basis for the traffic stop in this case, and the stop is suppressed. United States v. Gaines, 2010 U.S. Dist. LEXIS 130111 (D. Md. December 8, 2010)*:

In addition to those facts discussed above, this Court will now highlight several further findings of fact relevant to the analysis of this case. First, it is uncontested that there is indeed a crack in right portion of the windshield of the Crown Victoria. However, as will be discussed in more detail below, this Court does not believe it was possible for the police officers to see the crack in the windshield as they have described it. Furthermore, it is similarly uncontested that Officer Shetterly discovered the gun in the Defendant's waistband before Defendant made any evasive or assaultive movements towards the officers. It was only after yelling “GUN” that the Defendant became violent. The legal effect of this last fact will be discussed in the following sections.

“When a search warrant is reviewed for a sufficiency-of-probable cause determination, its supporting affidavit must be read in its entirety and construed in a common sense and nontechnical manner.” There was clearly a “fair probability” defendant was involved in sexual exploitation of a child, which defendant does not challenge; only nexus for warrants for his Internet accounts. That argument also fails, so the good faith exception saves this search, too. United States v. Noyes, 2010 U.S. Dist. LEXIS 130041 (W.D. Pa. December 8, 2010).*

12/11/10

Permalink 08:40:00 am, by fourth, 57 words, 663 views   English (US)
Categories: General

C-SPAN Radio playing Mapp v. Ohio oral argument today

From Politics Daily: C-SPAN Supreme Court Series: Search and Seizure and the 'Exclusionary' Rule. C-SPAN Radio has been playing oral arguments of famous Supreme Court cases. Today:

The latest tape in the series, focusing on Mapp v. Ohio, an important evidence exclusion case from 1961, will be heard on C-SPAN Radio at 6 p.m. ET on Saturday, Dec. 11.

Permalink 08:33:32 am, by fourth, 189 words, 653 views   English (US)
Categories: General

Article: "Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms"

Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms by Jason C. Miller on SSRN:

Do Not Disturb addresses the sometimes thorny issue of when occupants of a hotel room have standing under the Fourth Amendment to object to an illegal search of the room. This becomes particularly problematic when the occupant is not a typical hotel guest or violates a hotel policy. The Tenth Circuit requires an occupant to prove that he or she is a registered guest of the hotel, while the Sixth Circuit holds that invalid registration is the hotel’s concern alone.

Although hotel rooms pose interesting Fourth Amendment problems, such as invalid registrations, fake names, guests of guests, and guests who stay beyond the rental period, this paper argues that the expectation of privacy in hotels should be measured in the same way that the Fourth Amendment deals with other types of residences and proposes that courts universally apply a rule requiring the hotel to act first to terminate the expectation of privacy of a guest who violates hotel policy.

The SSRN posting does not show where else it is being published.

Permalink 08:15:32 am, by fourth, 429 words, 789 views   English (US)
Categories: General

MA: Indictment of DNA profile was constitutional

Following other states, Massachusetts holds that DNA profile John Doe indictment was constitutionally sufficient to toll limitations period in a rape case. After the indictment, the DNA profile was matched via CODIS. Commonwealth v. Dixon, 458 Mass. 446, 938 N.E.2d 878 (2010):

The John Doe indictments in this case, identifying Dixon primarily by his unique DNA profile, are an entirely different species. Where a general John Doe indictment, bereft of any particularity, must fail as generally anonymous, the converse is true of a DNA indictment: it prevails as precisely eponymous. A properly generated DNA profile is a string of code that exclusively identifies a person’s hereditary composition with near infallibility. ...

In sum, the March 15 and July 11 indictments incorporating Dixon’s unique DNA profile, and bolstered by age, height, weight, and race descriptions, comport with art. 12 and, in this respect, were valid when rendered by the grand juries. Connor, supra at 576-578.FN18

18. In holding as we do, we are in accord with several other jurisdictions that have upheld the validity of accusatory documents that name a unique DNA profile. See People v. Robinson, 47 Cal.4th 1104, 1133-1135, cert. denied, 131 S.Ct. 72 (2010) (arrest warrant for thirteen-loci DNA profile, which also offered explanation that profile had random match probability essentially incapable of duplication in human population, complied with particularity requirements of Fourth Amendment to United States Constitution and California Constitution); State v. Belt, 285 Kan. 949, 960-962 (2008) (expressing agreement “in the abstract” with proposition that warrant identifying person to be arrested for sexual offense by person’s unique DNA profile can satisfy constitutional and statutory particularity requirements, but affirming dismissal where warrant and supporting affidavits did not incorporate unique DNA sequence, but rather DNA loci common to all people); People v. Martinez, 52 A.D.3d 68, 73 (N.Y.2008) (especially in light of prevalence of DNA data banks as criminal justice tools, “DNA indictment is an appropriate method to prosecute perpetrators of some of the most heinous criminal acts”); State v. Dabney, supra at 853, 854, quoting Scheer v. Keown, 29 Wis. 586, 588 (1872) (when name is unknown, complaint or warrant may issue if referencing “best description of the person prosecuted” and noting that “for purposes of identifying ‘a particular person’ as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible”).

[Note: Also, there is this point: There is no indiscriminate arrest of people on the DNA profile, as could happen on a John Doe warrant or a mere physical description. Here the arrest does not occur until the DNA profile has already been matched from some other source, so there is no general warrant problem.]

12/10/10

Permalink 07:14:43 am, by fourth, 124 words, 572 views   English (US)
Categories: General

MT: Construction flagger made valid citizen's arrest for DUI

A road construction flagger saw a possible drunk driver and stopped him. This was a valid citizen’s arrest. State v. Schubert, 2010 MT 255, 358 Mont. 286, 244 P.3d 748 (2010).*

Defendant had a reasonable expectation of privacy in his hotel room as a place where a person could “retreat” as a “zone of privacy,” and the police had no reason to believe that the person granting consent to enter the room had apparent authority to do so. Commonwealth v. Lopez, 458 Mass. 383, 937 N.E.2d 949 (2010), rev’g Commonwealth v. Lopez, 74 Mass. App. Ct. 815, 911 N.E.2d 214 (2009).

Because state troopers have authority to execute search warrants statewide, there is no requirement that a sheriff be along for the search to validate it. State v. Walker, 330 S.W.3d 122 (Mo. App. 2010).*

Permalink 06:59:33 am, by fourth, 256 words, 456 views   English (US)
Categories: General

N.D.Ind.: Affidavit for SW did not have to refer to God to be valid

Defendant’s technical arguments over whether the affidavit in support of the warrant was sufficiently sworn or an affirmation fails. The affidavit did to have to refer to God to be valid. United States v. Scott, 2010 U.S. Dist. LEXIS 128847 (N.D. Ind. December 6, 2010):

The Defendant is correct that the Affidavit in this case does not explicitly reference God in a formal oath, expressly mention penalties of perjury, or directly state that Detective Cain believed the stated facts to be true. However, the Court finds that the Search Warrant Affidavit at issue in case was valid, that it was not deficient, and that it satisfied Fourth Amendment requirements. To invalidate the Search Warrant in this case on the grounds presented by the Defendant would require the Court to interpret the Affidavit in the sort of hyper-technical manner that the Supreme Court and the Seventh Circuit have instructed courts not to apply.

Officer drove onto defendant’s rural property for a knock-and-talk, and they saw a barn 80' from a house and 700-800' from where defendant lived. They went to the barn, and defendant came out of a door. He was handcuffed and consented. The barn was not within the curtilage of the house. United States v. Diaz, 404 Fed. Appx. 381 (11th Cir. 2010) (unpublished).*

The officers had sufficient reasonable suspicion to stop defendant because of his suspicious conduct, and he then consented to a search of the bag on the front seat of his car. United States v. Scott, 2010 U.S. Dist. LEXIS 128668 (M.D. Pa. December 6, 2010).*

12/09/10

Permalink 09:09:36 am, by fourth, 275 words, 668 views   English (US)
Categories: General

AR: Officer’s stall in handing over traffic ticket to allow the drug dog to get there made the stop unreasonable [but reversed on pet. for rev. on RS]

Officer’s stall in handing over traffic ticket to allow the drug dog to get there made the stop unreasonable. Menne v. State, 2010 Ark. App. 806, 2010 Ark. App. LEXIS 865 (December 8, 2010)* [but reversed Menne v. State, 2012 Ark. 37, 2012 Ark. LEXIS 57 (February 2, 2012) posted here]:

The issue before us is whether the traffic stop was complete when Trooper Roark obtained consent from Menne. Based on Sims and Ayala, we hold that it was. The legitimate purpose of the traffic stop ended after nine-and-a-half minutes, when Trooper Roark had received, verified, and returned all of Menne’s documentation. The trooper specifically testified that he had completed his speeding investigation, and he had written the warning ticket. We acknowledge that Trooper Roark had not yet given the ticket to Menne to sign. However, relying upon our holdings in Sims and Ayala along with the trooper’s testimony that his investigation was complete, that fact does not alter our conclusion. Nine-and-a-half minutes after stopping Menne, the legitimate purpose of the stop was complete. The trooper’s failure to hand over the warning ticket to Menne at that time was nothing more than a stalling tactic to allow time for the drug dog’s arrival. Therefore, the trial court erred when it denied Menne’s motion to suppress. Menne’s detention beyond the completion of the traffic stop was illegal, and any subsequent consent given by Menne was invalid.

On the state's petition for review, the Arkansas Supreme Court affirmed the conviction, finding that the record supports the trial court's finding of reasonable suspicion to continue the stop. Also, defendant was advised of a right to refuse consent, although it was not legally required.

Permalink 08:11:19 am, by fourth, 162 words, 2700 views   English (US)
Categories: General

CA1: SW for defendant's person for drugs permitted search of his buttocks

Officers had a search warrant for drugs on defendant’s person, and they had information that he kept drugs hidden in his buttocks. When defendant was apprehended, he “forcibly” resisted moving his pants by tangling his ankles and struggling saying they could not “stick a finger up [his] ass.” That reinforced the belief that drugs would be found in his buttocks, and drugs were found there. That search was reasonable. United States v. McGhee, 627 F.3d 454 (1st Cir. 2010).*

Defendant’s affidavit from motel room renter that he was an invited guest for three weeks to have standing was rejected as untimely, and then the appellate brief did not address it, so defendant failed to show standing in the motel room. United States v. Rios, 2010 U.S. App. LEXIS 24935 (10th Cir. December 7, 2010) (unpublished).*

Defense counsel is credited that a motion to suppress would have been frivolous, defense counsel was not ineffective. United States v. Laverde-Gutierrez, 2010 U.S. Dist. LEXIS 128941 (S.D. Tex. December 7, 2010).*

Permalink 05:17:04 am, by fourth, 258 words, 421 views   English (US)
Categories: General

W.D.Okla.: Defendant's refusal to produce DL and registration delayed the stop so a drug dog came in the interim and alerted

Defendant’s stop was justified because of his “severely cracked” windshield. When stopped, he was agitated and a patdown was required. Part of the delay of the stop was defendant refusing to timely produce his DL and insurance papers, and the officer put him in the patrol car. He said they were in the glove compartment, but he refused the officer permission to go in the car to look for them. The officer called for a drug dog, “continued his efforts to obtain and verify defendant’s information.” The dog arrived and sniffed the car [apparently, because the opinion doesn’t say] before the DL was produced. The dog alerted, and the trunk was opened, and a gun was found in the trunk in a diaper bag. Defendant was a felon in possession. United States v. Marzette, 2010 U.S. Dist. LEXIS 127968 (W.D. Okla. December 2, 2010).*

Officers stopped one parolee at a hotel for violating conditions of parole, and it was reasonably suspected that he was a drug dealer. Another parolee was found at the same room, so it was reasonable to suspect that he was associating with a known drug offender, and his search was based on his parole condition. United States v. Alston, 626 F.3d 397 (8th Cir. 2010).*

The search of defendant’s car was justified either by search incident or inevitable discovery by the inventory that took place after his custodial arrest and because the vehicle registration had expired and it could not be driven. United States v. Zareck, 2010 U.S. Dist. LEXIS 128372 (W.D. Pa. December 3, 2010).*

12/08/10

Permalink 06:52:08 am, by fourth, 224 words, 2691 views   English (US)
Categories: General

AK: Seatbelt law was legislative prerogative, and there was no showing it was being used as a pretext here

The state adopted a seatbelt statute, as have all other states, based on evidence of savings of lives and money. It was a legislative prerogative to do so. Defendant failed to show that the purpose of the statute was to give police a basis for pretextual stops. The day of the stop, the officer was working overtime on a “click-it-or-ticket” enforcement program. Chase v. State, 243 P.3d 1014 (Alaska App. 2010):

Although Chase uses the phrase “pretext stop” to describe his claim on appeal, he is not actually talking about the “pretext” stop doctrine that this Court discussed in Morgan, Grohs, and Nease.

The officer who stopped Chase testified that he was on patrol, working overtime as part of a nationwide “click-it-or-ticket” law enforcement campaign — in other words, he was looking specifically for drivers who were not wearing their seatbelts. Thus, the officer had no ulterior motive when he stopped Chase for not wearing a seatbelt. The officer's express motive was to look for drivers who were violating the seatbelt law, and to cite these drivers for this offense.

Defendant was properly stopped by a police officer looking across the city limits into an adjoining city seeing him commit traffic offenses. On the stop, defendant’s breath smelled of alcohol, and that justified a detention. Thomas v. State, 336 S.W.3d 703 (Tex. App. – Houston (1st Dist.) 2010).*

Permalink 06:36:13 am, by fourth, 246 words, 2679 views   English (US)
Categories: General

RI: Trash pull refreshed alleged stale info from CI and corroborated it

Not only did the trash pull “refresh” the two month old information from the CI, it corroborated it. There was a substantial basis for issuing the search warrant. Inclusion of defendant’s non-drug criminal history was not erroneous because the issuing magistrate could consider it. State v. Storey, 8 A.3d 454 (R.I. 2010).*

Police got a call about a possible DUI, so they found the car and followed it, observing actions that supported a valid stop. State v. McFarland, 2010 Tenn. Crim. App. LEXIS 1025 (December 3, 2010).*

Defendant’s PO went to defendant’s girlfriend’s house to arrest him and did. Defendant was handcuffed and placed in a police car. The PO realized that his glasses were left inside, and he got permission to go back inside for them. Defendant was in the police car screaming at her not to let them in. The girlfriend consented to reentry and a further search because she was afraid of him, but she did not want him to hear her consent. State v. Yarbrough, 2010 Ohio 5882, 2010 Ohio App. LEXIS 4962 (2d Dist. December 3, 2010).*

Officers were surveilling a drug house, and defendant drove away. Officers followed observing a traffic offense, and he was pulled over and directed out of the car. Officers observed him put something in his mouth as he was getting out of the car and two baggies fell to the out while talking to the officer. That was a valid plain view. State v. Brock, 2010 Ohio 5885, 2010 Ohio App. LEXIS 4966 (2d Dist. December 3, 2010).*

12/07/10

Permalink 12:56:00 pm, by fourth, 212 words, 2691 views   English (US)
Categories: General

D.D.C.: Suit over government's alleged plan to murder U.S. citizen as a potential enemy combatant dismissed for lack of standing

The father of a U.S. citizen whose son is overseas exhorting others to kill Americans and whose son is allegedly on a government "kill or capture" list has no standing to sue for his son's Fourth and Fifth Amendment rights. Al-Aulaqi v. Obama, 10-1469 (JDB) (D. D.C. December 7, 2010).

NTTimes today: Suit Over Killing Order in Terror Case Is Dismissed:

A federal judge on Tuesday threw out a lawsuit aimed at preventing the United States from targeting U.S.-born anti-American cleric Anwar al-Awlaki for death.

U.S. District Judge John Bates said in a written opinion that al-Awlaki's father does not have the authority to sue to stop the United States from killing his son. But Bates also said the "unique and extraordinary case" raises serious issues about whether the United States can plan to kill one of its own citizens without judicial review.

Al-Awlaki has urged Muslims to kill Americans. He also has been linked to last year's shooting at Fort Hood, Texas, and the attempted bombing of a U.S.-bound flight last Christmas. He is believed to be hiding in Yemen and has issued videos online repeatedly calling for Muslims to kill Americans.

Washington Post: Judge in D.C. tosses suit against Obama administration about cleric Aulaqi.

Permalink 05:51:18 am, by fourth, words, 2684 views   English (US)
Categories: General

In trial for next two weeks, so postings may be spotty some days

Permalink 05:46:53 am, by fourth, 491 words, 2794 views   English (US)
Categories: General

AK: Civil inspection of property order complied with Fourth Amendment

In a nuisance civil case, a discovery order under Alaska Civil Rule 34 [similar to F.R.C.P. 34] required plaintiff to submit to an inspection for hazardous materials. The order was narrowly tailored to protect privacy interests, including the Fourth Amendment. Whittle v. Weber, 243 P.3d 208 (Alaska 2010):

Other jurisdictions have used similar balancing tests and considered similar factors when reviewing discovery requests for entry onto private property. Overall, to determine whether an inspection is appropriate, courts “must balance the respective interests by weighing the degree to which the proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection.”17 Most courts focus on the second Jones [v. Jennings] factor: the “compelling interest” element. To determine whether a compelling interest exists, courts scrutinize the relevance of the proposed inspection to the issue in the legal action. The Kentucky Supreme Court, looking to federal courts’ practices, observed that “[i]n each case, the place to be inspected is somehow ‘at issue’ in the underlying law suit.”18 Thus, other jurisdictions have concluded that the property or item to be inspected must be directly connected with the main issue of the legal action; some have determined that this “nexus” must appear on the face of the discovery order.19 Besides focusing on the nexus between the location and the legal cause of action, courts may also consider additional factors that connect the inspection to the lawsuit; for example, whether a legal action has begun,20 or whether the inspection is necessary (i.e., the information cannot be obtained through other avenues).21

17 Welzel v. Bernstein, 233 F.R.D. 185, 186 (D.D.C. 2005) (internal quotation marks omitted); see also DUSA Pharms., Inc. v. New England Compounding Pharmacy, Inc., 232 F.R.D. 153, 154 (D. Mass. 2005) (denying motion to compel inspection where “any benefit from the inspection ... is outweighed by the burdens that such inspection will impose”).

18 Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796, 802 (Ky. 2000); see also Belcher v. Basset Furniture Industrs., Inc., 588 F.2d 904, 910 (4th Cir. 1978) (“Most cases involving on-site inspections concern a given object on the premises which is the subject matter of the action ....”); Welzel, 233 F.R.D. at 186 (“In cases in which a site inspection has been allowed, the rationale has often been because the specific location relates to the subject matter of the cause of action.”).

19 See Wal-Mart Stores, Inc., 29 S.W.3d at 802 (requiring a “nexus between the premises to be inspected and the underlying cause of action” and that “this nexus must appear on the face of the order”).

20 See, e.g., Lake Charles Harbor & Terminal Dist. v. Phoenix Dev. Co., 624 So. 2d 972, 974 (La. App. 1993) (holding that trial court lacked authority to allow entry on land before suit was filed).

21 See, e.g., DUSA Pharms., 232 F.R.D. at 154 (denying motion to compel entry where “the defendant [had] offered plaintiffs access to its premises under reasonable terms” and “alternative and reasonably adequate methods of discovery” were available).

Permalink 05:20:57 am, by fourth, 407 words, 2731 views   English (US)
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D.N.M.: Giving officers discretion to decide whether to tow or not was not an unconstitutional inventory policy

Albuquerque PD policy giving officers limited discretion to tow or not tow a vehicle does not violate the Fourth Amendment. United States v. Kelly, 2010 U.S. Dist. LEXIS 127394 (D. N.M. November 17, 2010):

Moreover, officers cannot perform an inventory search unless they are authorized to tow a vehicle in the first place. Allowing an officer to change his or her mind will not expand the scope when an inventory search is permitted; rather, it will allow an officer to abort a plan to have a vehicle towed, which will produce less of an interference with an individual’s rights, not more. It makes little sense to come up with a bright-line constitutional rule that requires a further invasion of property rights and deprivation of property — and requires towing — when practical circumstances change or no longer dictate relocation of a vehicle. The Constitution should not be in conflict with common sense. Mapp v. Ohio, 367 U.S. at 657 (“There is no war between the Constitution and common sense.”). If an officer decides not to tow an individual’s vehicle, then the individual’s deprivation of his or her vehicle is lessened because the vehicle is seized to a lesser degree than if it were towed. Regardless, an inventory search would be permitted even if the officer were not allowed to change his mind once it was performed. “[I]n forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical ‘all or nothing’ fashion.” Florida v. Wells, 495 U.S. at 4 (addressing whether “[a] police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself).

The search warrant for defendant’s vehicle was properly issued for firearms, but drugs were included in the particularity clause for which there was no probable cause. That did not make seizure of the drugs invalid because they would have been found in plain view during the execution of the warrant. United States v. Walker, 403 Fed. Appx. 803 (4th Cir. 2010) (unpublished)

Probable cause existed to detain plaintiff for something; here, driving a prohibited vehicle on a public road; so his claim that he was framed for DUI to justify his arrest was rejected. A false arrest claim requires a showing that there was no probable cause. Jackson v. Parker, 627 F.3d 634 (7th Cir. 2010).*

12/06/10

Permalink 06:51:44 am, by fourth, 231 words, 2685 views   English (US)
Categories: General

CA7: The person with the keys and alarm code to open a business appeared to have apparent authority to consent

A person with the keys to the business came and opened it in the morning and turned off the alarm. Officers came in the unlocked door and talked to him, and he consented to the search. Because he had the keys and alarm code, he had apparent authority to consent. The fact the business was not “open for business” is not dispositive. United States v. King, 627 F.3d 641 (7th Cir. 2010):

The district judge concluded that Cabrera-Lopez had apparent authority to consent to the search. We agree. Cabrera-Lopez had keys to the restaurant and the code to deactivate the alarm. He also opened the restaurant alone, and it was a small establishment. Cabrera-Lopez's actions clearly justified the officers' belief that he had full control over the premises, including the authority to grant access to others. See United States v. Pineda-Buenaventura, 622 F.3d 761, 777 (7th Cir. 2010) (stating that officers have a duty to inquire further as to a third party's authority only "when the circumstances make the authority questionable in the first place"). And the fact that the officers knew that Cabrera-Lopez was not the owner does not invalidate his authority. See United States v. Matlock, 415 U.S. 164, 171 n.7 (1974) ("The authority which justifies the third-party consent does not rest upon the law of property ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes.").

Permalink 06:44:38 am, by fourth, 303 words, 393 views   English (US)
Categories: General

ND: Entry and search was based on apparent authority, and it ended when it was found the consenter probably lacked apparent authority; the view up to then was valid

Officer had a reasonable belief at the time he entered a house to investigate an allegation of sex with a child that the mother was in control of the house and she had apparent authority to consent. When the officer got to an office in the basement, he first saw pornography and a computer, and then saw a utility bill in defendant’s name, so he concluded that defendant was the owner and left the room. At that point, he was informed that the room was “off limits” to the consenter and her family. The belief in common authority and view up to that point was reasonable. State v. Huether, 2010 ND 233, 790 N.W.2d 901 (2010).*

The officer’s direction to defendant to roll down the window of his car was found by the trial court to be a request and not an order. Defendant was on his cell phone and testified that he interpreted it as an order to get off the phone and talk to the officer. The officer also requested defendant to turn down the radio. This was not an order. State v. Steffes, 2010 ND 232, 791 N.W.2d 633 (2010).*

Defense counsel was not ineffective for not raising a state constitutional challenge to a search that was essentially already foreclosed. Jones v. State, 2010 Ark. 470, 2010 Ark. LEXIS 573 (December 2, 2010).*

Defendant was being followed by the police after a CI said he was in defendant’s car when defendant sold crack. Defendant made turns to see if the officer was going to stop him, and finally pulled into a yard and parked. The officer parked behind him and got out to talk to him. Defendant consented to a search of his person, and then got combative. A vial of crack fell to the ground and it was validly seized. Franklin v. State, 2010 Ark. App. 792, 378 S.W.3d 296 (2010).*

Permalink 06:09:11 am, by fourth, 239 words, 455 views   English (US)
Categories: General

OR: Consent sought during "unavoidable lull" in a traffic stop was valid

Case law provided no authority for the proposition that police inquiries during an unavoidable lull in a traffic stop had to be justified by independent reasonable suspicion. The officer's request for consent to search occurred during an unavoidable lull in an ongoing traffic stop while the officer was attempting to ascertain and confirm defendant's identity. Because the request for consent to search did not delay the stop, it was not unreasonable. Because it was authorized by Or. Rev. Stat. § 810.410, the request did not require independent reasonable suspicion or probable cause. State v. Jones, 239 Ore. App. 201, 245 P.3d 148 (2010).*

A marijuana spotter from the air for more than 20 years with an asserted 3% error rate who said he saw a marijuana grow operation was probable cause for a search warrant for the property. [The question is, after all, only probability. Dogs can be less reliable and there still be probable cause.] State v. Fronterhouse, 239 Ore. App. 194, 243 P.3d 1208 (2010).*

A burglary in progress call of a white male in a dark coat being involved that led to defendant’s detention was without reasonable suspicion. It was too generic to base a stop. Segar v. State, 937 N.E.2d 917 (Ind. App. 2010).*

A multi-agency warrant task force, including defendant’s parole officer, arrived at a house where they believed defendant would be staying. The householder granted consent for the officers to enter, and that was valid. State v. Jason, 53 So. 3d 508 (La. App. 1st Cir. 2010).*

12/05/10

Permalink 11:27:20 am, by fourth, 163 words, 574 views   English (US)
Categories: General

E.D.Mo.: Inconsistent stories about travel plans was RS

“Conflicting statements by the occupants of a vehicle about their travel may be sufficient to establish the required reasonable suspicion to detain the occupants for further investigation.” United States v. Rivera-Apodaca, 2010 U.S. Dist. LEXIS 127300 (E.D. Mo. August 20, 2010).*

A suppression motion for possession of knife on school grounds was granted, and the state appealed. The court of appeals reversed for consideration of whether there was individualized suspicion under T.L.O. On the record here, it seemed that the search was random, but the record is inadequate. State v. Gage R., 2010 NMCA 104, 149 N.M. 14, 243 P.3d 453 (2010).*

Defendant was arrested with her john for prostitution, and the john said that she was paid with drugs which she put under her tongue. [I guess that ruled out fellatio? Maybe not.] When the officer got this information from the john, he could force defendant to open her mouth because the evidence was easily destructible just by swallowing. State v. Geer, 391 S.C. 179, 705 S.E.2d 441 (2010).*

Permalink 11:20:03 am, by fourth, 331 words, 585 views   English (US)
Categories: General

NH: A deck in a yard shielded from the street by bushes showed a REP

Defendant showed a reasonable expectation of privacy in his deck because it was shielded from view by bushes and could not be seen from the road. State v. Orde, 161 N.H. 260, 13 A.3d 338 (2010) (decided under state constitution):

We begin by addressing the trial court's conclusion that the defendant did not exhibit an expectation of privacy in the deck. The defendant's property is lined with trees. There is no evidence that the deck could be seen from the road. The side of the deck facing the road is lined with lilac bushes, further shielding the deck from passersby. Although Corrado testified that from the side door of the home he could see the deck steps and the existence of the deck, there is no evidence that he could see whether anything or anyone was on the deck. There is no path leading from the side door of the home to the deck steps. Further, the lilac bushes near the deck would impede any perceived route from the door to the deck because, as Corrado testified, in order to get to the deck he had to walk “in between” the lilac bushes where there was “a little bit of an opening.”

Under these facts, the defendant exhibited an expectation of privacy in his deck. The defendant made efforts to obscure the deck and the activities on the deck from public view. There is no evidence that the deck was visible from the road. The placement of the deck and the lilac bushes prevented Corrado, or any other member of the public, from viewing the activities on the deck from the driveway. The defendant further exhibited an expectation of privacy in his deck by not creating a path connecting the side door with the deck steps and placing the lilac bushes in between the side door and the deck. Accordingly, we conclude that the trial court erred, as a matter of law, in finding that the defendant did not exhibit an expectation of privacy.

Permalink 11:03:13 am, by fourth, 689 words, 913 views   English (US)
Categories: General

GA: A cell phone used for text messaging an undercover officer was subject to search upon its seizure at the time of defendant's drug arrest

A cell phone used for text messaging an undercover officer was subject to search upon its seizure at the time of defendant's drug arrest.There obviously was probable cause for searching it. Hawkins v. State, 307 Ga. App. 253, 704 S.E.2d 886 (2010):

That the text messages were stored in electronic form in Hawkins’s cell phone, rather than in plain view, does not deny the officer the right to discover them. When an officer is authorized to search in a vehicle for a specific object and, in the course of his search, comes across a container that reasonably might contain the object of his search, the officer is authorized to open the container and search within it for the object. See Ross, 456 U. S. at 824 (IV) (“The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”); see also Gant, 129 SC at 1719 (III) (“[In some cases], the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein [for evidence of the crime of arrest].” (emphasis added)). The pertinent question, in this case, then, is whether a cell phone is enough like a “container” to be treated like one in the context of a search for electronic data that might be stored on the phone. We think it is.

Although it is a matter of first impression for our Court, many other courts have addressed this issue. Most have concluded that, when a search for electronic data that might reasonably be stored in a cell phone is authorized, the cell phone is roughly analogous to an electronic “container” that properly can be “opened” and searched for the data, much as a traditional “container” can be opened to search for tangible objects within. See United States v. Finley, 477 F.3d 250, 260 (III) (B), n.7 (5th Cir. 2007); see also United States v. Wurie, 612 F.Supp.2d 104, 109 (D. Mass. 2009) (“Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest ... exception[] appl[ies] to searches of the contents of cell phones.”) (citations omitted). Federal courts in Georgia are among those that have reached this conclusion. See, e.g., United States v. Cole, 2010 U. S. Dist. LEXIS 82822 at *60-68 (7) (N.D. Ga. 2010) (concluding that the defendant’s cell phone was a “container” for purposes of applying an exception to the warrant requirement since it contained information not readily apparent without manipulating the cell phone itself); United States v. McCray, 2008 U. S. Dist. LEXIS 116044 at *13 (S.D. Ga. 2008) (concluding that “[a] cell phone, like a beeper, is an electronic ‘container,’ in that it stores information that may have great evidentiary value (and that might easily be destroyed or corrupted)”). We are persuaded that, as a general matter, these decisions are correct.

Cell phones and other mobile electronic data storage devices, however, are unlike traditional “containers” in several respects, and for this reason, we must apply the principles set forth in traditional “container” cases to searches for electronic data with great care and caution. A traditional “container” encloses tangible things and, therefore, can hold only a finite number of things and only things as voluminous as the physical volume of the container allows. An electronic “container,” on the other hand, may contain innumerable electronic data of almost infinite variety in a volume having little, if any, relation to the physical size of the electronic “container.” And, unlike a traditional “container,” which simply contains whatever it contains, an electronic “container,” through an Internet browser or other application, may have the capability to reach out and retrieve data from other places during the course of a search.

In addition, as the Supreme Court has recognized, vehicles and the traditional “containers” transported in them “‘seldom serve as ... the repository of [tangible] personal effects.’” See Wyoming v. Houghton, 526 U. S. 295, 303 (II) (119 SC 1297, 143 LE2d 408) (1999).

12/04/10

Permalink 08:07:28 am, by fourth, 295 words, 620 views   English (US)
Categories: General

E.D.Wis.: Unlawful entry was one step over threshold to ask defendant to come outside; later consent not suppressed

Unlawful entry here was only to the extent of step into the threshold and asking defendant to come out. Once outside defendant consented. This was not so flagrant the exclusionary rule should be applied. United States v. Ramirez-Martinez, 2010 U.S. Dist. LEXIS 126902 (E.D. Wis. December 1, 2010)*:

I agree with the magistrate judge that the government met its burdens here. First, while it is true that the officers obtained the consents of defendant's mother and girlfriend shortly after the unlawful entry, the nature of that misconduct was minimal. This was not a case in which multiple officers broke down the door and entered with guns drawn. Cf. Robeles-Ortega, 348 F.3d at 680-81. Rather, Arzaga briefly and minimally entered the house and redirected defendant back outside. Further, neither defendant's mother or girlfriend were unlawfully seized; nor were they even present inside the house when Arzaga unlawfully entered it. Defendant's mother witnessed the encounter at close quarters, but as the magistrate judge noted, a reasonable layperson in her position may not have even understood that anything improper occurred. For her part, it is unclear whether Stephanie, who encountered Hansen in the backyard, observed Arzaga unlawfully enter the house and seize defendant. Thus, it is hard to see how the unlawful entry and seizure may have tainted her later consent.

When an officer stops a car and smells burnt marijuana, the entire car and its containers are subject to search. United States v. Ford, 2010 U.S. App. LEXIS 24549 (4th Cir. November 30, 2010) (unpublished).*

The proof in the District Court showed that defendant was lawfully seized with reasonable suspicion, and then he voluntarily consented to a search of his place. The evidence supports both conclusions on de novo review. United States v. Ward, 400 Fed. Appx. 991, 2010 FED App. 0747N (6th Cir. 2010) (unpublished).*

12/03/10

Permalink 11:13:22 am, by fourth, 174 words, 485 views   English (US)
Categories: General

Wired: "Feds Warrantlessly Tracking Americans’ Credit Cards in Real Time"

On Wired's Threat Level: Feds Warrantlessly Tracking Americans’ Credit Cards in Real Time:

Federal law enforcement agencies have been tracking Americans in real-time using credit cards, loyalty cards and travel reservations without getting a court order, a new document released under a government sunshine request shows.

The document, obtained by security researcher Christopher Soghoian, explains how so-called “Hotwatch” orders allow for real-time tracking of individuals in a criminal investigation via credit card companies, rental car agencies, calling cards, and even grocery store loyalty programs. The revelation sheds a little more light on the Justice Department’s increasing power and willingness to surveil Americans with little to no judicial or Congressional oversight.

For credit cards, agents can get real-time information on a person’s purchases by writing their own subpoena, followed up by a order from a judge that the surveillance not be disclosed. Agents can also go the traditional route — going to a judge, proving probable cause and getting a search warrant — which means the target will eventually be notified they were spied on.

Permalink 08:54:52 am, by fourth, 247 words, 535 views   English (US)
Categories: General

N.D.Ga.: "opinion and experience combined with circumstantial evidence has been found to provide probable cause"

The search warrant here was for evidence that defendant was unlawfully seeking refugee status in the U.S. but was a combatant in the Bosnian war. “[A]n agent’s opinion and experience combined with circumstantial evidence has been found to provide probable cause to search a residence. See United States v. Jenkins, 901 F.2d 1075, 1081 (11th Cir. 1990) ... [¶] Additionally, several similar search warrants issued in investigations of Bosnian ex-military immigrants show that courts have found a spectrum of direct and opinion evidence sufficient to establish probable cause.” United States v. Zekic, 2010 U.S. Dist. LEXIS 126619 (N.D. Ga. October 28, 2010).*

The affidavit for the two search warrants showed probable cause for the place to be searched, and, even if it didn’t, the good faith exception would apply. United States v. Washington, 2010 U.S. Dist. LEXIS 126574 (E.D. Mich. December 1, 2010).*

While defendant was handcuffed and in custody, which alone is not enough under Watson to show a lack of voluntariness, he was otherwise cooperative and consented. United States v. Solorzano, 2010 U.S. Dist. LEXIS 126663 (E.D. La. December 1, 2010).*

For probable cause in a child pornography search warrant, the officers do not have to show that defendant actually downloaded it or that the people in the images were actually under 18. The affidavit could have better recited that the officer knew child porn when he saw it based on his experience, but this was not fatal to the warrant. United States v. Lyon, 2010 U.S. Dist. LEXIS 126753 (E.D. Tenn. November 15, 2010).*

Permalink 01:00:38 am, by fourth, 201 words, 539 views   English (US)
Categories: General

CA9: Tasering was excessive because the victim didn't deserve it, but the officer gets qualified immunity

The tasering of plaintiff was unreasonable on these facts because it was unjustified and excessive force. As of the date of the occurrence, there was no case definitively holding that tasering was unreasonable under facts like these. Therefore, the officer is entitled to qualified immunity. Bryan v. Macpherson, 630 F.3d 805 (9th Cir. 2010).*

Defendant’s arrest was based on probable cause, and he had no standing to challenge the discarded evidence from the person of a codefendant. United States v. Acon, 2010 U.S. Dist. LEXIS 125552 (D. Minn. November 15, 2010), adopted 2010 U.S. Dist. LEXIS 125680 (D. Minn. November 29, 2010).*

The CI’s in this case were arrestees seeking favorable treatment, so they had no presumption of reliability. They were corroborated, so probable cause was shown. United States v. Williams, 2010 U.S. Dist. LEXIS 125717 (E.D. Wis. November 2, 2010).*

The video does not overcome Officer Madison's testimony and is not enough to demonstrate that the record preponderates against the trial court's findings of fact. State v. Hewitt, 2010 Tenn. Crim. App. LEXIS 1005 (November 29, 2010).*

The record supports the fact finding and the conclusion there was reasonable suspicion for defendant’s stop. The stop being valid, his confession is too. Peralta v. State, 338 S.W.3d 598 (Tex. App. – El Paso 2010).*

12/02/10

Permalink 06:07:48 pm, by fourth, 322 words, 400 views   English (US)
Categories: General

MS: Handcuffed suspect could have still reached car such that a search incident of the car was valid

Handcuffed suspect could have still reached car such that a search incident of the car was valid. [!] Johnson v. State, 49 So. 3d 130 (Miss. App. 2010)*:

P12. Further, in rejecting Johnson's motion to suppress, the circuit court also observed that there are many instances where a handcuffed suspect may still "obtain weaponry or other items to the detriment and danger" of law enforcement. The United States Court of Appeals for the Fifth Circuit also has noted this danger, stating:

Handcuffs are a temporary restraining device; they limit but do not eliminate a person's ability to perform various acts. They obviously do not impair a person's ability to use his legs and feet, whether to walk, run, or kick. Handcuffs do limit a person's ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors, including the handcuffed person's size, strength, bone and joint structure, flexibility, and tolerance of pain. Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim, to a bystander, or even to himself. Finally, like any mechanical device, handcuffs can and do fail on occasion.

United States v. Sanders, 994 F.2d 200, 209 (5th Cir. 1993) (emphasis added) (footnote omitted). The circuit judge, sitting as the fact-finder, was in the best position to evaluate the evidence, such as Johnson's height and build and his proximity to the vehicle, based on the totality of the circumstances. Thus, we agree with the circuit court's finding that it was reasonable for law enforcement to search the front area of the car in order to ensure officer safety. We find that the circuit court did not abuse its discretion in denying Johnson's motion to suppress as credible evidence existed to support the ruling. This issue is without merit.

Permalink 04:54:51 pm, by fourth, 540 words, 446 views   English (US)
Categories: General

W.D. N.Y.: Violating search protocol does not require suppression under Herring

Government agents violated the search protocol by not timely searching the defendant’s computers, but the court does not find that the search should be suppressed as a result because there was no “but for” causation. United States v. Widner, 2010 U.S. Dist. LEXIS 125920 (W.D. N.Y. August 20, 2010), adopted 2010 U.S. Dist. LEXIS 125942 (W.D. N.Y. November 30, 2010):

Applying the above-referenced authority to the Widner warrant, I find that the failure to conduct an onsite preview of the material seized did not render the warrant itself insufficiently particular or otherwise invalid. The defense contends that “blanket suppression” of all the evidence is nonetheless justified because the warrant was executed in “flagrant disregard” of the warrant’s terms. See United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) (“when items outside the scope of a valid warrant are seized, the normal remedy is suppression and return of those items[, ...] the drastic remedy of the suppression of all evidence is not justified unless those executing the warrant acted in flagrant disregard of the warrant’s terms”) (internal quotation omitted; emphasis in original); United States v. Defreitas, 701 F. Supp. 2d 297, 2010 WL 1223244, *4 (E.D.N.Y. 2010). Government agents act in flagrant disregard of a warrant justifying “wholesale suppression … only when (1) they effect a widespread seizure of items that were not within the scope of the warrant, and (2) do not act in good faith.” United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir. 2000) (internal citations and quotations omitted), cert. denied, 534 U.S. 816, 122 S. Ct. 44, 151 L. Ed. 2d 16 (2001). The first prong of this test requires proof that the search conducted actually resembled a “general search,” which has been described as a “wide-ranging exploratory search []” or an “indiscriminate rummaging,” and “ha[s] long been deemed to violate fundamental rights.” Id. at 140. In the absence of such evidence, the Court need not address whether the agents acted in bad faith in executing the search. Id. at 142 (declining to reach issue of whether search was conducted in good faith where first prong of test was not met).

. . .

The one final question is whether the search team’s non-compliance with a court-ordered directive in the warrant itself justifies suppression as a sanction. In my opinion, the Supreme Court’s decision in Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), counsels against that result. There, the agents executing a search warrant failed to comply with the Fourth Amendment’s “knock and announce” provision. The Court refused to order suppression, noting that it is a “last resort, not our first impulse” because of its “substantial social costs.” Hudson v. Michigan, 547 U.S. at 591. The Court reasoned that suppression was too drastic a remedy because the agents would have discovered the incriminating evidence “[w]hether the preliminary misstep had occurred or not.” Id. at 592 (emphasis in original). Accord .... The record here makes clear that the agents would have discovered the child pornography whether the forensic preview had been conducted onsite, as directed, or offsite, as in fact occurred. Thus, the failure to conduct the forensic preview at the residence cannot be considered the “but-for cause of obtaining the evidence,” making suppression an inappropriate sanction. Hudson, 547 U.S. at 592 (“but-for causality is ... a necessary ... condition of suppression”); Acosta, 502 F.3d at 58.

12/01/10

Permalink 11:10:37 am, by fourth, 185 words, 513 views   English (US)
Categories: General

OH12 permits GPS without a warrant under Fourth Amendment rejecting Weaver and Jackson and ignoring Maynard

In a GPS case, where all the right things were argued, Ohio’s 12th District Court of Appeals rejects NY’s Weaver (2009) and Washington’s Jackson (2003) because the Ohio Supreme Court says that the state constitution is to be interpreted like the Fourth Amendment. The opinion glaringly omits reference to the D.C. Cir's Maynard (2010). State v. Johnson, 2010 Ohio 5808, 190 Ohio App. 3d 750, 944 N.E.2d 270 (12th Dist. 2010).*

The officer here was parked on the street in front of a house, and the defendant parked nearby and walked up to the officer to ask why he was parked there and to see what was going on. The defendant smelled strongly of alcohol and had bloodshot eyes. The officer had reasonable suspicion to perform a field sobriety test. Commonwealth v. Cauley, 2010 PA Super 217, 10 A.3d 321 (2010).*

As long as the officer has probable cause for some offense to stop defendant’s car, it does not matter that defendant was arrested for a different offense. Here, the existence of probable cause made Gant inapplicable, and search incident was not preserved below anyway. State v. Louthan, 158 Wn. App. 732, 242 P.3d 954 (2010).*

Permalink 08:47:51 am, by fourth, 311 words, 532 views   English (US)
Categories: General

MO: Consent given when officer still had papers in hand

Where defendant consented to a search while the officer had all her paperwork after a valid traffic stop, the consent to search was valid. State v. Pesce, 325 S.W.3d 565 (Mo. App. 2010)* [This case is just so wrong.]:

Here, it is clear that Pesce's consent was obtained during a reasonable investigation of a traffic violation. When Trooper Gilliland requested consent to search her car, Pesce had not yet been cited for the driving infraction, nor had she had been given her identification back. Ultimately, Pesce points to no evidence before the trial court that demonstrated that this investigation of the traffic violation was needlessly prolonged by Trooper Gilliland beyond the confines of a reasonable search as contemplated by the Missouri Supreme Court.

Officers went to defendant's address to do a parole check on Jones who had that address listed as one of two where he was staying. At the window, the officers saw defendant on the couch and talked to him through the window. They asked if they could enter to look for Jones, and they were let in. Inside was a bunch of marijuana packaged for individual sale and the strong odor of marijuana. The dryer in the kitchen was making a racket, so the officer opened the door to stop the noise so they could call out to the person upstairs. Inside the dryer was more marijuana. The search was reasonable, as was opening the dryer door. People v. Smith, 190 Cal. App. 4th 572, 118 Cal. Rptr. 3d 483 (2d Dist. 2010).*

Defendant was stopped with reasonable suspicion after a traffic stop. She was targeted for surveillance after a CI’s information on her where the CI had been used “25-50” with success in the past. When she was out of the car, it was reasonable to frisk her based on the information that the officer had. Lewis v. State, 9 A.3d 476 (Del. 2010).*

Permalink 07:20:30 am, by fourth, 409 words, 483 views   English (US)
Categories: General

CA4 & 5: Two comparisons of reasonable suspicion

The officer’s observations here were more than just suspicious activities in a high crime area–he was reasonably certain that a gang fight was about to break out, and he isolated one who was particularly suspicious, questioned her, and performed a frisk. The area being “high crime” is not enough, but it is a factor in the totality. United States v. Hernandez-Mendez, 626 F.3d 203 (4th Cir. 2010)*:

His concern that the previous night's stabbing might result in retaliation near the school led him to set up a surveillance team the following afternoon. [¶] The gathering of seven Hispanic males and one Hispanic female across the street from the high school, shortly before the end of the school day, the day following a gang-related stabbing, alerted him to the possibility that the group might be planning some sort of retaliatory action. Officer Webster noted that, while some in the group looked to be school-age, several looked to be older. The males, who were gathered around a male wearing a red shirt, appeared to be having a meeting or discussion, while occasionally looking toward the school's entrance.

The officer lacked reasonable suspicion that defendant was involved in a broken window complaint in an apartment complex that was not a night crime area; there was no movement at that early hour (3:35 am) until defendant’s car started to leave the parking lot. There was nothing linking defendant’s car or defendant to the complaint. United States v. Benjamin, 481 Fed. Appx. 92 (5th Cir. 2010)*:

When viewed "in the context of the totality of circumstances," however, these three facts do not establish reasonable suspicion. Id. at 340-41. As explained, the officers knew absolutely nothing about the vandal or vandals other than that he, she, or they had broken a window. Unlike Jaquez, this window breaking did not occur in a high-crime neighborhood. Also, more than enough time had elapsed for the vandal to have departed by car or on foot after breaking the window. Finally, the officers' suspicion necessarily rested on an unreasonable assumption—that the vandal would have remained in the vicinity of the window that he had just broken, even after the police had arrived. Officer Kellum first arrived around 3:50 a.m. He spent the next ten minutes inside the apartment, interviewing the complainants. If the vandal had not already fled, one would certainly expect that he would have done so during that ten-minute period, knowing that the police had arrived on the scene.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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www.johnwesleyhall.com

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Most recent SCOTUS cases:
2009 to date:

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

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

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

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

2009-10 Term:

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

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


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

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

"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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