Archives for: 2011

12/31/11

Permalink 12:25:17 am, by fourth, 649 words, 738 views   English (US)
Categories: General

CA4: Using knife to remove bag of drugs from penis in public was unreasonable

The use of a knife to remove a bag of drugs from a suspect’s penis in a public place at the time of arrest was a “sexually intrusive strip search” and was governed by Bell v. Wolfish. Here, it was unreasonable, and the search is suppressed. United States v. Edwards, 666 F.3d 877 (4th Cir. 2011):

Upon discovering the sandwich baggie tied around Edwards’ penis, another officer held Edwards’ pants and underwear open while Bailey put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife.4 [4 Nothing in the record suggests that Edwards suffered any physical injury as a result of this action.] After Bailey cut the baggie, he reached into Edwards’ underwear and removed the baggie and its contents. During this procedure, Edwards remained in handcuffs with his hands secured behind his back.

Bailey testified that there were several reasons he conducted this second search before placing Edwards into the police van. Bailey stated that “[a] complete search is always your best option,” because often “people hide things in those areas.” Bailey also stated that because Edwards was being arrested for a handgun violation, Bailey thought that a more extensive search was warranted to ensure the safety of the officers, including the driver of the transport van. Finally, Bailey testified that he was aware of Edwards’ criminal history, including that he previously had been arrested on drug charges. When asked whether it was customary for officers in Baltimore to search inside the underwear of arrestees, Bailey testified that “it’s about 50 percent of the time, because nobody likes to do that search. You know, it’s unpleasant for everybody involved. But if you have reason to believe that there might be something, then it’s a good idea to check, because often they do hide things down there.”

The officers conducted this search inside Edwards’ underwear in the middle of the street beside the police transport van. Although Edwards was searched at 11:30 p.m., a streetlight partially illuminated the area. All four officers, each of whom was male, saw the drugs being removed from inside Edwards’ underwear, but the district court found that only two officers, including Bailey, saw Edwards’ penis during the course of the search.

. . .

The manner in which contraband is removed from a suspect during a sexually intrusive search, no less than the manner in which the contraband initially is discovered, must be considered in determining under the Bell analysis whether the search was reasonable. Bell, 441 U.S. at 559-60; see United States v. Hambrick, 630 F.3d 742, 748 (8th Cir. 2011); United States v. Williams, 477 F.3d 974, 975-76 (8th Cir. 2007). Thus, the reasonableness of a sexually intrusive search depends in part on the manner in which the search was conducted and the consideration given to the privacy interests of the suspect. See Lafayette, 462 U.S. at 645; United States v. Ashley, 37 F.3d 678, 681-82 (D.C. Cir. 1994).

The safety of the suspect must be considered as well. A search that is theoretically permissible in one context may be impermissible in another if it is conducted in a cruel, painful, or dangerous manner. See United States v. Braks, 842 F.2d 509, 511-13 (1st Cir. 1988) (considering “whether the type of search exposes the suspect to pain or danger,” in court’s analysis of invasiveness of search, and upholding search in part because it did not result in “pain or danger” to defendant); United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir. 1981) (en banc) (considering whether search was painful or dangerous in analyzing invasiveness of search).

Noted in: WalshLaw: How likely is it that a police officer will mistakenly cut when using a knife to remove a drug-containing baggie tied around a particular male body part? and picked up by Volokh Conspiracy: Fourth Circuit Overturns Conviction Because Officer Used A Knife to Remove the Crack Tied Around An Arrestee’s Private Parts.

Permalink 12:21:43 am, by fourth, 272 words, 920 views   English (US)
Categories: General

NH discusses without deciding conflict of laws question

NH faces conflict of laws question in application of exclusionary rule, which it briefly discusses, but decides it doesn’t have to decide. State v. Ruggiero, 163 N.H. 129, 35 A.3d 616 (2011):

The question presented is whether telephonic evidence that is legally obtained in a sister state by a citizen thereof is admissible in a New Hampshire court proceeding where such evidence would not be admissible if it had been obtained in New Hampshire. This question is one of first impression in New Hampshire, which we review de novo. ...

Courts in other jurisdictions that have considered the issue have generally employed two approaches — the exclusionary rule approach and the conflicts-of-law approach. See State v. Schmidt, 712 N.W.2d 530, 535 (Minn. 2006) (discussing the conflicts-of-law approaches used by other states in deciding evidentiary issues); People v. Capolongo, 85 N.Y.2d 151, 647 N.E.2d 1286, 1293, 623 N.Y.S.2d 778 (N.Y. 1995) (discussing the split in jurisdictions between the exclusionary rule approach and the conflicts-of-law approach); see also 1 W. R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 1.5(c), at 183-86 (4th ed. 2004). Jurisdictions following the exclusionary rule approach “adhere to the Federal view that the overriding purpose of the exclusionary rule is to deter unlawful governmental conduct, and that one State’s laws have no deterrent effect on conduct of governmental agents of another jurisdiction.” Capolongo, 647 N.E.2d at 1293. Alternatively, jurisdictions that conduct a conflicts-of-law analysis typically weigh the interests of the forum state against those of the sister state and assess which state has the greater interest in the process by which the evidence was obtained. See State v. Lucas, 372 N.W.2d 731, 736-37 (Minn. 1985).

Permalink 12:01:27 am, by fourth, 120 words, 574 views   English (US)
Categories: General

OH10: No evidence supported trial court's fact finding leading to suppression; reversed

Where the trial court’s finding on a fact in granting a motion to suppress is not supported by any evidence, the appellate court can reverse it. State v. Battle, 2011 Ohio 6661, 2011 Ohio App. LEXIS 5488 (10th Dist. December 22, 2011).

The court credits the officer’s testimony that the drugs in this case were dropped from defendant’s blouse, and she was not made to lift it to cause them to fall out. United States v. Lighten, 2011 U.S. Dist. LEXIS 147801 (W.D. N.Y September 20, 2011).*

Defendant’s furtive movements and driving a stolen car in Pennsylvania reasonably justified his patdown that produced a weapon used to kill a police officer in D.C. Johnson v. United States, 33 A.3d 361 (D.C. App. 2011).*

12/30/11

Permalink 08:17:56 am, by fourth, 1355 words, 1337 views   English (US)
Categories: General

CA3: FISA surveillance led to domestic prosecution, and Patriot Act amendments not unconstitutional; even if they were, Krull wouldn't require exclusion

In the Fort Dix jihadist case, the use of FISA-derived evidence in a domestic case was not a violation of the Fourth Amendment. The Patriot Act amendments did not make the statute unconstitutional. But, even if it did, use of the evidence was not barred by the exclusionary rule under Krull. United States v. Duka, 671 F.3d 329 (3d Cir. 2011):

Defendants maintain that we must reverse their convictions because the government used unlawful FISA-derived evidence throughout the trial; the FISA-derived evidence resulted in their convictions; and, without that evidence, the government cannot prove the charges against them.

Aligning with all of the other courts of appeals that have considered this issue, however, we reject defendants’ constitutional challenge. We conclude that FISA’s amended “significant purpose” requirement is reasonable under the Fourth Amendment, and, therefore, that the government’s use of FISA-derived evidence in its case against defendants was lawful. We also observe that, even if we were to hold the statute unconstitutional, defendants still would not be entitled to have their convictions reversed. Defendants’ argument for reversal depends on the assumption that, if FISA is declared unconstitutional, then the exclusionary rule would preclude the use of FISA-derived evidence in their case. Not so. Where, as here, the challenged search was conducted in objectively reasonable reliance on a duly authorized statute, the Supreme Court has held that the exclusionary rule does not preclude the admission of the fruits of the search.

. . .

e. The “Significant Purpose” Test Is Reasonable

We agree with our sister courts of appeals and the Foreign Intelligence Surveillance Court of Review that amended FISA’s “significant purpose” standard is reasonable under the Fourth Amendment, for three reasons.

First, the “significant purpose” standard reflects a balance struck by Congress between “the legitimate need of Government for intelligence information” and “the protected rights of our citizens.” United States, 407 U.S. at 323. The legislative history reveals that “Congress was keenly aware that [the Patriot Act’s amendment to what is now § 1804(a)(6)(B)] relaxed a requirement that the government show that its primary purpose was other than criminal prosecution.” Sealed Case, 310 F.3d at 732. By adopting the amendment, Congress signaled its determination that the new standard was needed to promote coordination between intelligence and law enforcement officials in combating terrorism, acknowledging that, as a practical matter, these functions inevitably overlap. While Congress’s conclusion in that regard of course is not dispositive, nonetheless, the Supreme Court in Keith suggested that “congressional judgment” has an important role to play in weighing government interests and determining reasonable “protective standards” related to intelligence. United States, 407 U.S. at 322-23. We therefore view Congress’s actions in this area with some additional measure of deference.

. . .

Finally, and importantly, FISA contains significant procedural safeguards against abuse. As amended, FISA requires a senior government official (typically the Director of the FBI, see Sealed Case, 310 F.3d at 736) to certify that “obtaining foreign intelligence information ... is a bona fide purpose of the surveillance” and the Attorney General (or a senior-level designee, see 50 U.S.C. § 1801(g)) to approve each FISA application. Abu-Jihaad, 630 F.3d at 127. That senior Justice Department officials must approve every FISA application gives us additional comfort that this process does not provide an end run around the more stringent Fourth Amendment standards that apply in ordinary criminal cases.

The statute also provides for appropriate, albeit limited, judicial review. An Article III judge sitting on the FISA court reviews every application, makes particularized findings concerning the application’s compliance with the statute’s requirements, and issues an order specifying the parameters of the government’s surveillance authority. See 50 U.S.C. § 1805(a), (c). The FISA judge may demand “further inquiry into the certifying officer’s purpose — or perhaps even the Attorney General’s or Deputy Attorney General’s reasons for approval” of the application, and should deny the application if he or she “conclude[s] that the government’s sole objective [is] merely to gain evidence of past criminal conduct — even foreign intelligence crimes — to punish the agent rather than halt ongoing espionage or terrorist activity.” Sealed Case, 310 F.3d at 735-36. These safeguards confirm that FISA’s “significant purpose” standard is reasonable under the Fourth Amendment.

. . .

Here, we have concluded that searches in the form of surveillance conducted pursuant to FISA’s “significant purpose” requirement are reasonable under the Fourth Amendment. Accordingly, we join other courts of appeals in holding that evidence derived from duly authorized FISA surveillance is admissible in a criminal case. See Wen, 477 F.3d at 898 (holding that if, in the course of conducting FISA-authorized surveillance, “agents discover evidence of a domestic crime, they may use it to prosecute for that offense,” even if the agents knew or “may have known” when they applied for the FISA order “that they were likely to hear evidence of domestic crime”); see also Duggan, 743 F.2d at 78 (noting that “otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by [50 U.S.C.] § 1806(b), as evidence in a criminal trial” and holding that “the fact that domestic law enforcement concerns may also have been implicated” in government’s decision to seek a FISA order “did not eliminate the government’s ability to obtain a valid FISA order”).

2. Defendants Are Not Entitled to Relief Because the FISA Searches Were Conducted in Reasonable Reliance on a Statute

We are confident that FISA’s “significant purpose” test satisfies the Fourth Amendment. But even if we were not, we still would not overturn defendant’ convictions based on the government’s use of FISA-derived evidence at trial. Supreme Court precedent makes abundantly clear that, even if we were to conclude that amended FISA is unconstitutional, evidence derived from it would nevertheless have been admissible in the government’s case.

Defendant’ argument for reversal depends in part on the theory that, if FISA violates the Fourth Amendment, FISA-derived evidence automatically must have been excluded. See, e.g., Appellant’ Joint Opening Br. 53 (“By holding FISA as amended by the Patriot Act unconstitutional the evidence used will be illegally obtained and prohibited to be used in trial against the Appellants.”). But that is not necessarily so. See United States v. Tracey, 597 F.3d 140, 151 (3d Cir. 2010) (“[A] determination that the Fourth Amendment has been violated does not necessarily require application of the exclusionary rule.”). The exclusionary rule precludes the admission of evidence tainted by a Fourth Amendment violation “only in those unusual cases in which exclusion will further the purposes of the ... rule.” United States v. Leon, 468 U.S. 897, 918, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Because the rule “is designed to deter police misconduct,” id. at 916, it applies only where it will “alter the behavior of individual law enforcement officers or the policies of their departments,” id. at 918.

The Supreme Court has ruled categorically that “suppress[ing] evidence obtained by an officer acting in objectively reasonable reliance on a statute” would not further the purposes of the exclusionary rule, even if that statute is later declared unconstitutional. Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). Therefore, even a defendant who can establish that evidence against him or her was procured under a statute that violates the Fourth Amendment is not entitled to have such evidence excluded from his or her criminal trial unless he or she can establish that the officer’s reliance on the statute was not objectively reasonable. Cf. Krull, 480 U.S. at 368 (O’Connor, J., dissenting) (observing that, “under [the Court’s] decision today, no effective remedy is to be provided in the very case in which the statute at issue was held unconstitutional”).

The FISA amendment defendants challenge was duly enacted by Congress through the Patriot Act, and defendants have not argued on appeal that government officials did not reasonably rely on amended FISA in seeking the surveillance orders at issue in this case. Thus, under Krull, the exclusionary rule plainly does not apply, and, even if we agreed with defendants that the “significant purpose” test is unconstitutional, we would be powerless to overturn their convictions on that ground.

Permalink 12:11:55 am, by fourth, 354 words, 735 views   English (US)
Categories: General

CA9: NSA domestic surveillance case reversed; claim stated

NSA domestic surveillance case reversed by the Ninth Circuit and sent back to District Court. Jewel v. National Security Agency, 673 F.3d 902 (9th Cir. 2011):

This case is one of many arising from claims that the federal government, with the assistance of major telecommunications companies, engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks. At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.

In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Nor do prudential considerations bar this action. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political question nor are they inappropriate for judicial resolution. Finally, we do not impose, as suggested by the government, a heightened standing requirement simply because the case involves government officials in the national security context. We reverse the district court’s dismissal on standing grounds and remand for further proceedings. We leave for the district court to consider in the first instance the government’s alternative argument that Jewel’s claims are foreclosed by the state secrets privilege.

See Wired.com: Court Revives NSA Dragnet Surveillance Case by David Kravets:

A federal appeals court on Thursday reinstated a closely watched lawsuit accusing the federal government of working with the nation’s largest telecommunication companies to illegally funnel Americans’ electronic communications to the National Security Agency without court warrants.

While the 9th U.S. Circuit Court of Appeals revived the long-running case brought by the Electronic Frontier Foundation, the three-judge panel unanimously refused to rule on the merits of the case, or whether it was true the United States breached the public’s Fourth Amendment rights by undertaking an ongoing dragnet surveillance program the EFF said commenced under the Bush administration following 9/11.

Permalink 12:01:49 am, by fourth, 317 words, 1139 views   English (US)
Categories: General

ND: “No trespassing” sign on a farmstead is not enough to create REP

A “no trespassing” sign on a farmstead is not enough to create a reasonable expectation of privacy from an entrance to the property as any member of the public would. State v. Mittleider, 2011 ND 242, 809 N.W.2d 303 (2011):

[*P17] We have recognized that a “no trespassing” sign posted on a structure, particularly a residence, indicates a reasonable expectation of privacy. See Kochel, 2008 ND 28, ¶ 9, 744 N.W.2d 771. In Kochel, the defendant had a “no hunting or trespassing” sign posted on the steps outside his mobile home addition. Id. We noted “[a]ny uncertainty that the addition is an integral part of the home where privacy is reasonably expected is removed by the presence of the sign.” Id. (emphasis added). The “no trespassing” sign in Kochel is distinguishable from the “no trespassing” signs at issue here. In Kochel, the defendant posted a “no trespassing” sign on the steps immediately outside of a fully enclosed addition to his mobile home. Id. Here, the Mittleiders posted “no trespassing” signs around their farmstead, and it is unclear from the record how closely the signs were posted to the entrance. The district court noted any member of the public would have entered the farmstead in the same manner the officers did, and there was no evidence “that there was a ‘no trespass’ sign mounted on a post or immediately to the edge of the road[.]” We decline to adopt the Mittleiders’ broad argument that, on rural property in North Dakota, an individual’s expectation of privacy “envelopes much of the land.” We hold the “no trespassing” signs posted around the Mittleiders’ farmstead did not create a reasonable expectation of privacy in the entrance of the farmstead. Because a reasonable expectation of privacy was not invaded, art. I,§ 8 of the North Dakota Constitution is not implicated and we need not determine if it provides broader protection than its federal counterpart. Rydberg, 519 N.W.2d at 310.

12/29/11

Permalink 08:01:26 am, by fourth, 155 words, 938 views   English (US)
Categories: General

W.D.Ark.: $1 for excessive force in Tasering case

Remember my practice pointer about questioning the officer about what he would do if the person stopped walked away in determining whether the person was free to go? Imperfect, sure, but it often leads to the right answer. In a long fought case in the Western District of Arkansas, a USMJ awarded $1 in damages for excessive in unreasonably Tasering a person who walked away from a traffic stop. Man awarded $1 in Barling Taser case, Arkansas Democrat-Gazette (paywall):

The lawsuit alleged that Barbor fired a Taser at him when he tried to walk away from a traffic stop where his girlfriend had been arrested, and when he refused to let police search him for weapons.

That's a real deterrent to excessive force cases. The appeal was Kirby v. Roth, 10-3697 (8th Cir. May 2, 2011), where Kirby was pro se and the district court failed to award damages after the first trial. This was on remand for damages.

Permalink 12:23:57 am, by fourth, 189 words, 740 views   English (US)
Categories: General

CA8: Sexual assault during traffic stop by auxillary officer was a § 1983 violation and was under color of law

Sexual assault by an auxiliary officer during a traffic stop was a § 1983 violation and was under color of law. Also, he pled guilty to a criminal civil rights violation and that would be collateral estoppel. Johnson v. Phillips, 664 F.3d 232 (5th Cir. 2011):

Johnson's final constitutional claim is that Phillips violated her substantive due process right to bodily integrity. As of 2006, it was clearly established in this circuit that the commission of a sexual assault by a government official acting under color of law constitutes a violation of due process that shocks the conscience. Rogers v. City of Little Rock, Ark., 152 F.3d 790, 796 (8th Cir. 1998); Haberthur v. City of Raymore, Mo., 119 F.3d 720, 723 (8th Cir. 1997). Johnson alleges that Phillips pushed her up against the hood of her car, pulled her shorts and underwear to the side, took pictures of her genitals with his cellular phone, and penetrated her vagina with his finger. These allegations constitute "an egregious, nonconsensual entry into the body which was an exercise of power without any legitimate governmental objective." Rogers, 152 F.3d at 797. Any reasonable officer would have known that these actions violated clearly established law.

Permalink 12:17:27 am, by fourth, 362 words, 3729 views   English (US)
Categories: General

D.N.M.: “Concealed carry” and reasonable suspicion

In a “concealed carry” state, it is still possible for an officer to have reasonable suspicion that a person is possessing a gun in violation of law. Factors may warrant an officer to conduct a stop and frisk on reasonable suspicion of possession of a weapon, even though it creates a risk of stopping innocent people. United States v. Rodriguez, 836 F. Supp. 2d 1258 (D. N.M. 2011):

Rodriguez may object that the practical end result of the Court's decision is that, in New Mexico, a police officer's observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances. The Court reiterates, however, that it is not deciding whether seeing a concealed handgun by itself might trigger a reasonable suspicion that a crime is being committed under all factual scenarios. The surrounding circumstances would likely affect that inquiry in ways the Court need not address today.

Consequently, the officers could permissibly conduct an investigatory stop and question Rodriguez based on their reasonable suspicion that he was carrying a concealed firearm, at least until the investigatory stop transformed into an arrest under the Fourth Amendment. "[A] police officer may in appropriate circumstances," possession of reasonable suspicion, "and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. at 23.

Also noted at Volokh Conspiracy.

Permalink 12:10:28 am, by fourth, 221 words, 902 views   English (US)
Categories: General

CA9: Stop at San Clemente permanent checkpoint is quite limited

“A stop at a permanent immigration checkpoint, like the San Clemente checkpoint, is constitutional as long as the detention is limited to a few brief questions about immigration and the production of immigration documents. United States v. Preciado-Robles, 964 F.2d 882, 884 (9th Cir. 1992) (citing United States v. Martinez-Fuerte, 428 U.S. 543, 558, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976)). Whether or not the Border Patrol agent in this case impermissibly extended the immigration stop, the search of Ortiz-Flores’s backpack and the search of his person must be justified by consent or probable cause. Martinez-Fuerte, 428 U.S. at 566-67.” Here there was neither, and the motion to suppress should have been granted. United States v. Ortiz-Flores, 462 Fed. Appx. 759 (9th Cir. 2011).*

Defendant’s claim in his § 2255 that the DVD of his traffic stop was edited to remove exculpatory evidence fails for lack of any factual support. Even so it fails on the merits. Thomas v. United States, 2011 U.S. Dist. LEXIS 147971 (M.D. Tenn. December 23, 2011).*

“Mr. Dutton, a military veteran, has been preparing for the economic collapse of the world.” He freely talked with his ex-wife’s boyfriend about manufacturing explosives and arming grenades when their daughter was exchanged for visitation. His information to the police was enough for probable cause for manufacturing a destructive device. United States v. Dutton, 2011 U.S. Dist. LEXIS 147928 (D. Kan. December 23, 2011).*

Permalink 12:01:28 am, by fourth, 282 words, 568 views   English (US)
Categories: General

N.D.Tex.: Officer's credibility lacking, and no legal basis for stop was shown

Officer’s credibility did not support the asserted basis for his stop and its continuation. A reasonable person would not have felt free to leave. United States v. Dixon, 2011 U.S. Dist. LEXIS 147865 (N.D. Tex. December 23, 2011) (on motion to reconsider; original order from September 2010)*:

Because Ralson's credibility, for the reasons herein stated, has been severely discredited, the court cannot accept his account of the events regarding the revolver and when he saw it. Harris did not see a revolver until it fell to the ground underneath the car. Because of the inconsistencies and irrational position taken by Ralson regarding the cylinder, the court does not believe that Ralson saw the gun while Dixon was seated in the car. The court is convinced that Ralson did not see it until sometime after he ordered Dixon to step out of the vehicle and a struggle ensued. Accordingly, there was no legal basis — reasonable suspicion, probable cause, or otherwise — for him to order Dixon to step out of the vehicle. Ordering Dixon out of the car was not justified by Terry. Nothing had been done by the officers to determine the reliability of the anonymous tip as to criminal activity on Dixon's part or as to officer safety. Considering all the circumstances surrounding the encounter between Dixon and the officers, the court concludes that a reasonable person would not have believed that Dixon was free to leave once Ralson told her to step out of the vehicle.

The trial court credited the officer’s testimony that the defendant consented to a search of his person after the officer passed by and smelled marijuana from a group. State v. Garrett, 2011 Tenn. Crim. App. LEXIS 936 (December 20, 2011).*

12/28/11

Permalink 12:45:55 am, by fourth, 180 words, 559 views   English (US)
Categories: General

Volokh: "If a Dog Sniff Around a Car is Not A Search, What About a Dog Sniff Around a Home?"

Volokh Conspiracy: If a Dog Sniff Around a Car is Not A Search, What About a Dog Sniff Around a Home? by Orin Kerr:

SCOTUSblog flags a pending cert petition on an interesting Fourth Amendment question: What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.

Jardines is posted here.

Permalink 12:40:02 am, by fourth, 387 words, 577 views   English (US)
Categories: General

IL: Ordered out of car with officer's hand on gun and handcuffed without a word being said was an arrest

Defendant was arrested when he was searched. The officer approached him after a traffic stop at night with hand on gun, there were six officers there, and defendant was asked nothing but told to get out of the car and he was handcuffed. People v. Surles, 963 N.E.2d 957, 2011 IL App (1st) 100068 (2011)*:

[P26] The bulk of the evidence, however, weighs in favor of finding that defendant was under arrest before he was searched. Specifically, Officer McGrew testified that he approached defendant's side of the vehicle, either with his firearm drawn or with his hand on his firearm. He also stated that there were six officers, from three separate squad cars, present at the time. In addition, defendant was not asked any questions by Officer McGrew, but instead was given instructions to step out of the vehicle and immediately handcuffed behind his back. Defendant was not told that he could leave or refuse to cooperate, nor was he released after he was handcuffed. Instead, he was handed from Officer McGrew to Officer Solana, who then searched defendant's person. Thus, defendant's freedom of movement was restricted, both by physical restraints and the officers' show of authority.

[P27] We find that Officer McGrew approaching defendant with his weapon drawn or his hand on his weapon made the mood of the encounter more like an arrest. Further, the fact that defendant was ordered out of the vehicle while the officer had his hand on his firearm, and without any conversation, also would make a reasonable person feel restrained. Moreover, the fact that defendant was outnumbered by police officers, and the other occupants were already restrained, would decrease a reasonable person's feeling of freedom. After all of these things occurred, Officer McGrew placed defendant in handcuffs and kept hold of him until he was passed to Officer Solana. Thus, from the time defendant was placed in handcuffs, he was not free to move on his own. Given the show of force and authority by the officers and defendant's restraint, we conclude that defendant was arrested from the time he was handcuffed by Officer McGrew.

[Note: Perhaps what is more remarkable here was the state argument that this was not an arrest: six officers, ordered out of car with hand on gun or gun drawn, immediately handcuffed. What more does the state require?]

Permalink 12:24:32 am, by fourth, 293 words, 513 views   English (US)
Categories: General

CA3: Jury's § 1983 verdict for defendants not supported by evidence, and new trial granted

Where the facts of the case showed clear liability, maybe the plaintiff should have moved for a directed verdict for the plaintiff, but he didn’t. Nevertheless, the verdict is set aside as contrary to the evidence, and a new trial is granted Alvin v. Calabrese, Alvin v. Calabrese (3d Cir. 2011)*:

To be sure, the similarities between the undisputed facts of Brown [448 F.3d 239] and this case, even when viewed in the light most favorable to Calabrese and Karp, are striking. Other undisputed facts — for example, that other police officers, not just a victim, were coming to identify Alvin and that Calabrese held onto Alvin's identification while waiting for other officers — further the suggestion that Alvin was seized prior to his arrest. Given these undisputed facts, Alvin could have moved for judgment as a matter of law, citing our decision in Brown, as to this particular issue at the close of evidence. See Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 128 (3d Cir. 2003) (noting that whether a seizure has occurred may be determined by a district court, as a matter of law, without resort to the jury). But he did not.

Even if the jury's verdict was contrary to the great weight of evidence, the "stringent standard" necessary to obtain a new trial in these circumstances requires a showing that "the jury's verdict resulted in a miscarriage of justice" or that the verdict "cries out to be overturned or shocks our conscience." Sheridan, 100 F.3d at 1076; Williamson, 926 F.2d at 1353. In light of our decision in Brown and the undisputed facts suggestive of a seizure, we believe the verdict cries out to be overturned. We thus reverse the ruling on Alvin's motion for a new trial on his Fourth Amendment claim.

Permalink 12:18:34 am, by fourth, 617 words, 577 views   English (US)
Categories: General

CA3: Defense curtilage argument seemed to undermine REP in place to be searched

Five USMJs in Pennsylvania could issue search warrants for email accounts in other states. A search warrant for a specific email address was not a general warrant. The notice requirement on an email account goes to the email provider, not the person with that address. As to a search of property clearly named in a search warrant, defendant’s argument about curtilage actually undermined the reasonable expectation of privacy in the property. But all that was irrelevant: The property was clearly described and there was probable cause. The search of defendant’s car was valid as an inventory since he’d been indicted and was on the lam hoping to elude the police and skip the country at 1 am. United States v. Bansal, 06-1370 (3d Cir. December 14, 2011).

Fourth, Bansal contends that evidence obtained from his email accounts should have been suppressed on ground that the agents executing the warrants failed to adhere to the “notice requirements” imposed by Rule 41 because the executing agents did not provide him with a copy of the warrants. Rule 41 requires that searching officers put searched persons on notice of any property seized: ... The plain text of Rule 41 thus requires notice only “to the person from whom, or from whose premises, the property was taken.” Id. (emphasis added). Because Bansal does not deny that the warrant was provided to the internet service providers upon whom the search warrants were executed, we conclude that notice was properly made in this case. We will therefore affirm the District Court.

. . .

Bansal reargues on appeal that the garage was not within the curtilage and that the agents’ reliance upon an interested prosecutor’s telephone advice is not sufficient to establish a good faith defense. We will not reach the good faith inquiry because we conclude that the warrant authorized the search of the garage. First, the warrant was not limited only to a search of the home at 23 Garden Avenue. It authorized a search of the entire “premises,” which included the garage. Second, we are puzzled as to how Bansal’s case is advanced by his assertion that the garage was outside the curtilage of the home at 23 Garden Avenue. It is axiomatic that “[a] person’s curtilage is the area immediately adjacent to his home in which he has a legitimate expectation of privacy.” Estate of Smith v. Marasco, 430 F.3d 140, 156 n.14 (3d Cir. 2005) (citing United States v. Dunn, 480 U.S. 294, 300 (1987)). We are puzzled because Bansal’s contention that the garage was outside the curtilage actually decreases his legitimate expectation of privacy in the building, and presumably places it merely on the “premises” at 23 Garden Avenue, squarely within the terms of the search warrant. In sum, we conclude that if the garage was within the curtilage, as the District Court found, then for Fourth Amendment purposes it was part of the premises at 23 Garden Avenue (the search of which no party disputes was authorized); if it was instead beyond the curtilage, Bansal’s expectation of privacy was diminished to the point that no violation could have occurred.

And the court could not help but note the complexity of the briefs, and the government responding in kind:

We note at the outset that Bansal’s and Mullinix’s briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.

Permalink 12:02:45 am, by fourth, 375 words, 634 views   English (US)
Categories: General

AZ: Hudson waived by state for unreasonable entry

Giving defendant until count of three to open door or the police would break it down was not reasonable, and the motion to suppress should have been granted. The state did not claim Hudson made the search valid anyway. (Also, police audiotaped their announcement, but the tape disappeared before the suppression hearing, so they stipulated.) State v. Aguilar, 228 Ariz. 401, 624 Ariz. Adv. Rep 12, 267 P.3d 1193 (2011):

P21 Unlike the circumstances in King, in which the officers testified that, after they announced themselves, they could hear people moving things within the apartment, here, no testimony was presented that the officers heard any noise or made any other observations suggesting the imminent destruction of evidence. Instead, someone simply looked outside and observed police officers and defendant chose not to answer the door. As noted by the Supreme Court in King, “[w]hen law enforcement officers who are not armed with a warrant knock on a door ... the occupant has no obligation to open the door or to speak.” Id. at __, 131 S.Ct. at 1862. That none of the occupants opened the door when the police officers initially demanded that the door be opened, and one occupant peeked outside the motel window, did not give rise to an exigency justifying a warrantless entry. Therefore, the officers’ subsequent threat to forcibly enter the motel room was not reasonable conduct under the Fourth Amendment and was therefore unlawful. Accordingly, the evidence seized by the police following their entry must be suppressed.FN4

4. The State did not contend in the trial court, and has not asserted on appeal, that the evidence seized pursuant to the subsequently obtained search warrant would nonetheless be admissible. Cf. State v. Ault, 150 Ariz. 459, 465-66, 724 P.2d 545, 551-52 (1986) (concluding that evidence seized pursuant to a valid search warrant based on independent-source evidence was admissible, notwithstanding an invalid initial warrantless entry).

[Note: So, a Hudson claim is subject to waiver by the state, as it should be. Some states, like my own, wrongly find that the state can never raise standing in the trial court yet assert it on appeal without making a record. The same should be true of whether Hudson should save a search, but that is not even subject to proof. It seems quintessentially a question of law.]

12/27/11

Permalink 09:07:41 am, by fourth, 145 words, 3180 views   English (US)
Categories: General

AZ: Arrest on a quashed warrant does not make officers liable

“Clifford Ochser brought this civil rights action against two deputy sheriffs for arresting him on a warrant that had been quashed some thirteen months earlier. Although we hold that Ochser’s arrest was an unreasonable seizure prohibited by the Fourth Amendment, we conclude that the deputies are entitled to qualified immunity because then-existing law did not clearly establish the unconstitutionality of their actions.” Ochser v. Funk, 228 Ariz. 365, 624 Ariz. Adv. Rep. 35, 266 P.3d 1061 (2011).*

Pushing plaintiffs out of the way to keep them from interfering with a police drug investigation was reasonable under all the circumstances. Robles v. Cayton, 2011 U.S. App. LEXIS 25504 (5th Cir. December 21, 2011) (unpublished).*

Police received a 911 call of a break-in occurring at a house. They went to the house and found a man standing outside. His stop was on reasonable suspicion. United States v. McMullin, 2011 U.S. Dist. LEXIS 147528 (E.D. Mich. December 22, 2011).*

Permalink 08:53:27 am, by fourth, 335 words, 2929 views   English (US)
Categories: General

AZ: “Searching under beds is within the ambit of a protective sweep”

Defendant was found in North Carolina wanted for a murder in Arizona, and the SWAT team came to execute the arrest warrant. A protective sweep of the room included going under the mattress. “Searching under beds is within the ambit of a protective sweep.” There the police found the gun. State v. Manuel, 229 Ariz. 1, 624 Ariz. Adv. Rep. 4, 270 P.3d 828 (2011):

P19 The search of Manuel’s hotel room was justified under the first Buie exception. The police knew that Manuel had outstanding felony warrants and was possibly involved in a Phoenix murder. While they were completing the arrest in the hallway outside the room, D.J. came to the doorway, screaming hysterically. Officers placed her in handcuffs and removed her from the scene while other officers swept the room to determine if anyone else was inside who might pose a threat. The hotel room was immediately adjacent to the place where Manuel was arrested and D.J. was detained. Cf. United States v. Thomas, 429 F.3d 282, 287, 368 U.S. App. D.C. 285 (D.C. Cir. 2005) (upholding sweep of bedroom adjacent to living room where arrest occurred). Thus, the police could sweep the room even without reasonable suspicion that someone was inside. Cf. Fisher, 226 Ariz. at 567 ¶ 15, 250 P.3d at 1196 (invalidating sweep under second Buie exception because not supported by reasonable suspicion that others were in an apartment).

P20 Because the police were authorized under Buie to conduct a protective sweep of the room, the question becomes whether they lawfully discovered the pistol while conducting such a sweep. Buie permitted the officers to look under the hotel bed because a person could have been hiding there. See United States v. Green, 599 F.3d 360, 376 (4th Cir. 2010) (noting that “searching under beds is within the ambit of a protective sweep”). The police testified that, because of safety concerns, their usual practice is to look under a bed by lifting its mattress and box spring, and we conclude that their doing so here was within the permissible scope of a Buie sweep.

Permalink 08:41:32 am, by fourth, 201 words, 2875 views   English (US)
Categories: General

TN: One arriving before the search began is not a “transient visitor”

Defendant who arrived at the house before the search began and during surveillance was not a “transient visitor” under the state definition, which is arriving during the search. Because he was there when the search started, he was subject to being searched. State v. Dean, 2011 Tenn. Crim. App. LEXIS 930 (December 21, 2011).

Under the totality of circumstances, the government showed probable cause for the arrest of the defendant, so his search incident was valid. Because the district judge ignored authority on point, he is disqualified on remand. United States v. Steppello, 664 F.3d 359 (2d Cir. 2011)*:

The government brought our decision in Gagnon to the district judge’s attention in its motion for reconsideration, but the district judge denied the motion without comment. When circumstances “might reasonably cause an objective observer to question [the judge’s] impartiality,” we have the power to remand the case to a different judge. Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 21 (2d Cir. 1996) (alteration in original) (internal quotation marks omitted); see also United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc). We believe that is warranted here. Accordingly, we order that, upon remand to the district court, this case be transferred to a different judge.

Permalink 08:06:44 am, by fourth, 464 words, 2948 views   English (US)
Categories: General

UT: In CP knock and talk, defendant's saying “maybe I ought to just destroy my computer” was exigent circumstances to seize his computer

Police did a knock and talk in a child pornography case based on the ICAC finding that child porn had gone to defendant’s IP address. During the interview, defendant refused to consent to a search of the computer. His statement “maybe I ought to just destroy my computer” was exigent circumstances to seize his computer under Kentucky v. King. State v. Maxwell, 2011 UT 81, 698 Utah Adv. Rep. 41, 275 P.3d 220 (2011):

[*P16] This mischaracterizes the State’s evidentiary burden and the nature of reasonable belief under the Fourth Amendment. To prove exigent circumstances, the State need demonstrate only that ICAC agents had a reasonable suspicion that evidence would be destroyed if the agents delayed long enough to obtain a warrant. And the facts necessary to support reasonable suspicion are “commonsense, nontechnical,” “practical considerations of everyday life on which reasonable and prudent men” must make decisions. Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (internal quotation marks omitted). The State’s burden, therefore, is to show that an officer confronted with Maxwell’s statement about destroying his computer might reasonably have believed—based on “practical considerations of everyday life”—that Maxwell could and would destroy the evidence on his computer.

. . .

[*P19] The United States Supreme Court definitively resolved this conflict last term, holding that “warrantless [action] to prevent the destruction of evidence is reasonable and thus allowed” so long as “the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” King, 131 S. Ct. at 1858. The Court in King refused to examine officer motive for evidence of bad faith, noting that it has “'repeatedly rejected’ a subjective approach, asking only whether ‘the circumstances, viewed objectively, justify the action.’” Id. at 1859 (quoting Brigham City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006)). It refused to assess the foreseeability of exigency, “reject[ing] the notion that police may seize evidence without a warrant only when they come across the evidence by happenstance.” Id. It also refused to examine the existence of probable cause prior to police action, reiterating that “'officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause.’” Id. at 1860-61 (quoting Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966)). Finally, the Court refused to second-guess police investigative tactics, explaining that such an approach “fails to provide clear guidance for law enforcement officers and authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies.” Id. at 1861.

A knock and talk for child porn? How daring can the police be? Pretty daring since the courts will find a way to bail them out of their folly.

12/26/11

Permalink 08:34:24 am, by fourth, 320 words, 2957 views   English (US)
Categories: General

CA2: Just because plaintiff didn't have a gun in hand when shot doesn't mean force was excessive

Plaintiff was not entitled to judgment as a matter of law on an excessive force claim for being shot during execution of a search warrant just because a gun was not found on him after the shooting. Officers knew that he had a propensity for violence, and an officer not involved in the shooting had yet “shots fired.” A gun was later found outside a window. Carvajal v. Mihalek, 453 Fed. Appx. 69 (2d Cir. 2011) (unpublished)*:

Finally, we are not persuaded by Carvajal’s argument that no reasonable jury could have concluded that a warning was not feasible before shots were fired. See Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (holding that, if officers have probable cause to believe suspect poses threat of serious physical harm, “deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given”); accord Hemphill v. Schott, 141 F.3d 412, 417 (2d Cir. 1998). First, Carvajal's contention rests on a false premise that no warning was given. In fact, when police entered the apartment, Mihalek, Rizza, and other armed officers repeatedly warned Robert and Joseph Carvajal to "get down," which they disobeyed. ... Assuming arguendo that a further warning was required, a reasonable jury could have found that such a warning was not feasible in light of the rapidly evolving scenario in which an armed Robert Carjaval and his reputedly violent brother refused to comply with the "get down" order and appeared to be positioning themselves to use deadly force to resist arrest.

In sum, Carvajal was not entitled to judgment as a matter of law. As the district court correctly observed, the Bivens claim depended on an assessment of the parties' credibility, which a reasonable jury could resolve in favor of defendants. On such a determination, a reasonable jury could conclude from the evidence that defendants' use of force was objectively reasonable and, therefore, consistent with the Fourth Amendment.

Permalink 12:21:59 am, by fourth, 473 words, 2975 views   English (US)
Categories: General

PA: Detention on RS to get a search warrant was unreasonable

A detention on reasonable suspicion cannot be used as time to get a search warrant because there wasn’t any probable cause to get a search warrant. Commonwealth v. Joseph, 2011 PA Super 273, 34 A.3d 855 (2011):

In its reliance on Terry, however, [in Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008),] our Supreme Court emphasized that the nature of the stop in question was “to allow immediate investigation through temporarily maintaining the status quo.” Id. at 94, 960 A.2d at 115-16. The focus on the temporal nature of a Terry-type stop is important: “[O]ne must remember the reason why the Constitution tolerates the lesser standard articulated in Terry [i.e., reasonable suspicion] — the detention is allowed to maintain the status quo so the officer may conduct a brief and safe investigation to see if indeed there is criminal activity afoot.” Id. (emphasis added). Specifically, the Supreme Court described the limited scope of the police officer’s investigative authority: “In a Terry stop, the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Id. at 101-02, 960 A.2d at 120 (quoting Commonwealth v. Mistler, 590 Pa. 390, 411, 912 A.2d 1265, 1277 (2006) (Eakin, J., dissenting) (quoting Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).

The issue in the case sub judice, of course, is not the propriety of the initial stop of Joseph’s vehicle, as Trooper Yingst clearly had a reasonable suspicion that Joseph had violated traffic laws (including driving under the influence). Instead, the issue here is the constitutionality of Trooper Yingst’s seizure of Joseph’s vehicle during the course of the traffic stop. To this end, the record on appeal contains no evidence regarding the length of time that would have been required for the troopers to obtain a warrant (including the drafting of an affidavit, its presentation to a magistrate, and then a return to the scene for service). As such, we cannot agree that Trooper Yingst’s seizure of Joseph’s vehicle while attempting to obtain a warrant constituted a “brief” Terry-type investigation. See, e.g., United States v. Place, 462 U.S. 696, 708, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (“The length of detention of respondent’s luggage [90 minutes] alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.”). For these reasons, of this we conclude that seizure of a vehicle for an indeterminate amount of time while the police attempt to obtain a search warrant cannot be constitutionally justified as a “Terry stop” based upon mere reasonable suspicion.

[Note: What gets me is the state arguing with a straight face that they could detain on reasonable suspicion to get a search warrant which requires probable cause to be issued. And, obviously, a search warrant would never have been issued, if this had gone that far.]

Permalink 12:12:29 am, by fourth, 163 words, 3034 views   English (US)
Categories: General

IN: Search of pill bottle found in patdown was unreasonable

Defendant was searched with reasonable suspicion, and a pill bottle was found. Search of the pill bottle was not justified as a search incident to arrest. Also, the altered label on the pill bottle did not lead to probable cause to search it. Corwin v. State, 962 N.E.2d 118 (Ind. App. 2011).*

Officer safety justified a patdown of a juvenile put into a police car after finding he was a truant from school. Where there was no reasonable suspicion he’d committed a crime, officer safety justified it. D.O. v. State, 77 So. 3d 787 (Fla. 3d DCA 2011).*

Defendant did not receive IAC from defense counsel not objecting to his strip search at the stationhouse, which was valid anyway on probable cause. Also, whether defendant had ineffective assistance of counsel from defense counsel not objecting to defendant’s statement that he had marijuana on him was harmless in light of what was found hidden in his buttocks. Bryant v. State, 959 N.E.2d 315 (Ind. App. 2011).*

Permalink 12:03:46 am, by fourth, 176 words, 615 views   English (US)
Categories: General

FL1: Where defendant's wife left him because of abuse, she still had common authority to consent to search their home

Defendant’s wife had common authority to consent to a search of the house despite moving out because of defendant’s abuse. “‘There is a difference between voluntarily giving up your home and being forced to flee from it in fear for your life ...’ U.S. v. Backus, 349 F.3d 1298, 1304 (11th Cir. 2003) (affirming the lower court's denial of the defendant's motion to suppress because the defendant's wife, who fled as a result of the defendant's abuse, still had enough common authority over, or a sufficient relationship to, the marital home to consent to a search of it).” Barnes v. State, 75 So. 3d 1287 (Fla. 1st DCA 2011).

Defendant was stopped for a traffic offense, smelled of alcohol and admitted to being in a bar which just had happy hour. That was reasonable suspicion for a further detention. State v. Montelauro, 2011 Ohio 6568, 2011 Ohio App. LEXIS 5408 (10th Dist. December 20, 2011).*

The search and seizure issue raised on appeal was not the same one litigated in the trial court, so the issue is waived. State v. Williams, 2011 Tenn. Crim. App. LEXIS 929 (December 15, 2011).*

12/25/11

Permalink 08:36:34 am, by fourth, 260 words, 729 views   English (US)
Categories: General

Cardozo L. Rev.: "A Mosaic Shield: Maynard, the Fourth Amendment, and Privacy Rights in the Digital Age"

Erin Smith Dennis, A Mosaic Shield: Maynard, the Fourth Amendment, and Privacy Rights in the Digital Age, 33 Cardozo L. Rev 757 (2011). From the conclusion:

In Smith, the Court’s wholesale adoption of the third-party doctrine effectively stunted Fourth Amendment protections at the advent of the digital revolution. Maynard opens up a much-needed pathway for reinvigorating Fourth Amendment protections in an age of rapidly ad-vancing technology, where reliance on third-party intermediaries is no longer optional, but part and parcel of a normal productive existence. Effective balancing of the public’s “reasonable expectation of privacy” against law enforcement concerns cannot occur under a judicial doctrine which eviscerates that expectation by fiat. Instead, it necessitates a statutory scheme that allows room for judicial analysis and evolution of what a reasonable expectation of privacy is with regard to electronic communications.

The amount and tenor of information available to law enforcement via the Pen Register statute can easily be aggregated into a mosaic re-vealing intimate details about an individual, ad infinitum. If the Fourth Amendment is to continue to protect citizens against unreasonable searches and seizures, it must protect the information that we so value, be it physical or intangible.

The Maynard decision articulating a mosaic theory of privacy at the very least illustrates the mounting tension between Fourth Amendment privacy protections and rapidly advancing technology. More importantly, it signals a new chapter in the judiciary’s efforts to redraw and adapt the Fourth Amendment parameters for the digital age, thereby guaranteeing that its safeguards remain vital, responsive, and reliable in a rapidly changing technological landscape.

Permalink 12:22:00 am, by fourth, 166 words, 721 views   English (US)
Categories: General

NY3: Defense counsel not ineffective for choosing to exploit the product of the search (and he would have lost anyhow)

Defense counsel waived the motions to suppress on the record because he needed some exculpatory evidence from the search and statement, and that was reasonable strategy. In dicta, the court says that the search incident, including the cell phone, had “no colorable basis.” People v Nguyen, 2011 NY Slip Op 9216, 90 A.D.3d 1330, 935 N.Y.S.2d 195 (3d Dept. 2011). Practice pointer: In § 45.18 of the Treatise, it is observed that sometimes the police likely violated the client’s right to be free from unreasonable search and seizure, but the product of the search may even be more helpful to the case as a whole: “Accordingly, counsel must always ultimately determine whether the defendant’s trial strategy would be aided or harmed by the admission or exclusion of the allegedly illegally seized evidence.” I’ve had cases where the product of the search wasn’t critical to the prosecution’s case but was actually exculpatory to the defense. So, why file a motion to suppress if you need it?

Permalink 12:12:14 am, by fourth, 281 words, 545 views   English (US)
Categories: General

W.D.Va.: Officer's hearing of order of protection on motorist justified more caution

When the computer check revealed an order of protection on the motorist being detained, the officer was justified in being more concerned for his own safety. Thus, it was not improper for the officer to inquire into that, and it didn’t extend the stop any. United States v. Green, 2011 U.S. Dist. LEXIS 146916 (W.D. Va. December 21, 2011).*

While Trooper Johnson also inquired about topics other than the traffic infractions, such as Green’s travel plans and Green’s reference to his lawyer, these brief questions did not run afoul of the scope or duration component of Terry’s second prong. See Johnson, 555 U.S. at 333 (holding that a law enforcement officer’s “inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure,” provided the questions “do not measurably extend the duration of the stop”).

At approximately 10:14 a.m., dispatch advised Trooper Johnson that Green had a protective order against him, which Green confirmed. Upon receiving this report, Trooper Johnson requested additional information regarding the protective order. As Trooper Johnson noted during the suppression hearing, the existence of a protective order raises officer safety concerns, since the order can be indicative of assaultive or threatening behavior. Because there is no indication that Trooper Johnson’s inquiry regarding the protective order measurably prolonged the stop, the court is persuaded that it did not alter the stop’s lawful character. See Soriano-Jarquin, 492 F.3d at 500 (emphasizing that “[i]t is well established that officers performing a lawful stop are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety’”) (quoting United States v. Hensley, 469 U.S. 221, 235 (1985)).

Permalink 12:04:00 am, by fourth, 166 words, 581 views   English (US)
Categories: General

D.N.J.: In an overprescribing prosecution, seizure of medical records and computer for off premises search was reasonable

In a prosecution for overprescribing, the government showed that it was reasonable to seize voluminous medical records and a computer for later search off premises. United States v. Durante, 2011 U.S. Dist. LEXIS 147010 (D. N.J. December 19, 2011).* [Note: I don’t think any business would want the FBI or DEA on premises for weeks while they conduct a search of the records. It only makes sense to enable them to take the records and copy them as needed and return the originals when done. If the defendant has a problem with the government having the records or the computer, he has remedies under Rule 41 for unreasonableness and interference with the business, and the court can monitor it, or get a master or USMJ to.]

There was probable cause for issuance of the search warrant in this case, and the temporary seizure of the premises pending arrival of a search warrant was reasonable. People v Pinkney, 2011 NY Slip Op 9212, 2011 N.Y. App. Div. LEXIS 9034 (3d Dept. December 22, 2011).*

12/24/11

Permalink 03:24:06 pm, by fourth, 354 words, 853 views   English (US)
Categories: General

AZ Republic: "Arpaio case: Latinos allowed to join class-action suit"

Arpaio case: Latinos allowed to join class-action suit by JJ Hensley:

A federal judge issued a ruling Friday that will curtail the Maricopa County Sheriff's Office's ability to target illegal immigrants and gives thousands of Hispanics standing in a civil lawsuit that seeks to fundamentally alter Sheriff Joe Arpaio's immigration-enforcement efforts.

Judge Murray Snow's ruling created a class action, giving every Latino stopped, questioned or detained by the Sheriff's Office since January 2007 standing in the 4-year-old civil-rights lawsuit.

The suit does not request monetary awards but seeks to change the way Arpaio's deputies enforce immigration laws.

The judge's ruling also bars all sheriff's officers from arresting any person "only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States."

Such knowledge or belief, Snow ruled, does not amount to cause for arrest.

ACLU press release here:

PHOENIX – A federal district court has put a halt to the systematic practice by the Maricopa County Sheriff’s Office of stopping and arresting Latinos based only on suspicion of unlawful presence in the United States and without any evidence of criminal activity, ruling that such detentions violate constitutional guarantees against unreasonable search and seizure.

U.S. District Court Judge Murray Snow also ruled on Dec. 23 that the lawsuit against the sheriff’s office, run by Sheriff Joe Arpaio, should proceed to trial on the separate claim of unconstitutional racial profiling and noted that the plaintiffs have already made a strong showing of intentional race discrimination.

The court also ordered that the case should proceed as a class action. As a result, all Latino drivers and passengers who may be stopped, searched or detained unconstitutionally will have a remedy under today’s order.

. . .

At issue are so-called crime saturation patrols and traffic stops done without evidence of criminal activity, which the plaintiffs charge are motivated by racial bias, and result in racially discriminatory treatment. The ruling comes in a 2008 lawsuit filed on behalf of five individuals and the Somos America immigrants’ rights coalition challenging racial profiling by the sheriff’s office.

Ortega-Melendres v. Arpaio, 2011 U.S. Dist. LEXIS 148223 (D. Ariz. December 23, 2011).

Permalink 10:30:44 am, by fourth, 202 words, 675 views   English (US)
Categories: General

WI: Common area of duplex that was secured by a security door gave defendant a REP in area

Where there was a shut security door to the common entrance to a duplex, the defendant had and manifested a reasonable expectation of privacy from entry. The reliance on the apparent authority of an identified woman to consent is a not consent. State v. Guard, 2012 WI App 8, 338 Wis. 2d 385, 808 N.W.2d 718 (2011):

P22 Under all the circumstances present here, considering particularly the relevant factors identified in Rewolinski, we conclude that Guard had a reasonable expectation of privacy not merely in his unit, but also in the only entrance to his unit, which was the back hallway. Consequently, in the absence of consent to the entry or exigent circumstances, the warrantless entry by the police into that back hallway was a violation of Guard’s rights under the Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution.

Defendant’s lane change was not a valid reason for a traffic stop because no other cars could be affected by it. Defendant was on parole but the officers didn’t know it, so that couldn’t be relied on for the stop and removal from the car. United States v. Hiley, 2011 U.S. Dist. LEXIS 147548 (C.D. Cal. December 22, 2011).*

Permalink 12:25:10 am, by fourth, 276 words, 3042 views   English (US)
Categories: General

PoliceOne.com: Patrolling the Waterways, Drug interdiction: The 'search authority' of maritime cops

PoliceOne.com: Patrolling the Waterways, Drug interdiction: The 'search authority' of maritime cops by Tom Burrell:

The other day I was surfing the web, looking for ideas for my next article when I came across a series of online chat groups which all dealt with the same topic — When can an officer stop and board my boat? Because I often find the opinions of online “legal authorities” amusing, I decided to take a moment to browse the comments.

At first I encountered the expected comments from those who had obviously been on the wrong end of a bad police contact — people complaining about their rights being trampled for no reason, often followed by claims that they would never let another officer check their equipment without a warrant. Next came the advice from well-meaning citizens who agreed that they did not like being “stopped for no reason” but felt that officers were just doing their job and suggested quiet compliance so the officers could finish quickly and be on their way. Finally, there were the “former law enforcement officers” who were quick to inform other readers that the boating officers had “more authority than street cops” and could board your boat whenever they wished.

Was I surprised? No, not really. Like I said earlier, I find these chat boards amusing and generally read them as a momentary escape — not because I expect to learn what a Supreme Court Justice has to say on the topic. But in this instance, I found myself thinking back to a recent case involving a stop made by one of my officers which led to an arrest for boating under the influence.

Permalink 12:14:42 am, by fourth, 423 words, 3032 views   English (US)
Categories: General

W.D.Tex.: Stop could not be continued to get consent on a mere hunch; motion to suppress granted

Officer’s mere hunch of wrongdoing was not reasonable suspicion. The claim of reasonable suspicion fails, and the motion to suppress is granted. United States v. Preciado, 2011 U.S. Dist. LEXIS 146366 (W.D. Tex. December 20, 2011):

The Fifth Circuit case law continues to develop in this area. Recently, the Court reversed a trial court’s denial of a motion to suppress a firearm uncovered during a warrantless automobile search. See U.S. v. Macias, 658 F.3d 509 (5th Cir. 2011). In Macias, that defendant argued that before the officer ran the computer checks, the officer engaged in detailed questioning about matters unrelated to the defendant’s driver’s license, his proof of insurance, the vehicle registration, or the purpose and itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. Id. at 518. The Macias Court determined that the unrelated questions impermissibly extended the duration of the stop. The Government argued that Trooper Barragan was permitted to ask these questions because, as soon as he stopped Macias, he had reasonable suspicion that Macias was involved in criminal activity. Distinguishing Brigham, the Macias Court stated that the Brigham officer’s “increasing suspicion was also fueled by Brigham’s extreme nervousness, his avoidance of eye contact, and his pattern of answering the officer’s questions with questions of his own.” Brigham, 382 F.3d at 508. Accordingly, the Macias Court found that the Brigham officer’s questioning represented “a graduated response to emerging facts” whereas Trooper Barragan “could only point to Macias’s extreme nervousness, which is not sufficient to support the extended detention.” Macias, 658 F. 3d. at 520. The Macias Court also stated that “potentially undercutting Trooper Barragan’s reasonable suspicion is the Government’s failure to present any evidence that sets out Trooper Barragan’s experience.” Id.

In this case, the Government established that Trooper Cipriani had four years of law enforcement experience, had conducted numerous vehicle stops and had attended “interdiction” schools, where he has received training in body language and vehicle indicators to detect contraband. The above notwithstanding, looking at the totality of the circumstances, Trooper Cipriani did not have a “particularized and objective basis for suspecting legal wrongdoing.” U.S. v. Vasquez, 253 Fed. Appx. 365, 370 (5th Cir. 2007). Reasonable suspicion may not be based on “inarticulate hunches of wrongdoing.” U.S. v. Thibodeaux, 276 Fed. Appx. 372, 377 (5th Cir. 2008). The Trooper had “mere uneasy feelings” about the believability of what he was being told. However, that does not constitute articulable facts that support a reasonable suspicion. U.S. v. Cavitt, 550 F. 3d 430, 437 (5th Cir. 2008).

Permalink 12:04:20 am, by fourth, 184 words, 2989 views   English (US)
Categories: General

WI: Giving full access to a computer gives apparent authority to consent

Defendant invited his girlfriend to spend the weekend at a relative’s house while the relative was gone for the weekend. He told her she could use his computer. While on the computer, she found child pornography, and she called the police. Because she had been given full access to the computer, she had apparent authority to consent to a look at the computer by the police who later obtained a search warrant. State v. Sobczak, 2012 WI App 6, 338 Wis. 2d 410, 808 N.W.2d 730 (2011), affd State v. Sobczak, 2013 WI 52, 2013 Wisc. LEXIS 264 (June 20, 2013), posted here.

There was probable cause for arrest of the plaintiff university professor for disorderly conduct and stalking, so his false arrest claims fail. Collins v. Univ. of N.H., 664 F.3d 8 (1st Cir. 2011).*

The court credits the officers’ version that they got defendant out of the car during a traffic stop and his gun fell during a scuffle with the officers. Defendant says that it came from an unreasonable search of the car, which the court finds did not happen. United States v. Jones, 2011 U.S. Dist. LEXIS 146519 (E.D. Pa. December 20, 2011).*

12/23/11

Permalink 11:55:56 am, by fourth, 193 words, 3121 views   English (US)
Categories: General

OH5: Smell of marijuana from car justified search of whole thing

Officers smelled marijuana during a traffic stop, and that gave probable cause as to the entire car, including a passenger’s purse. “[O]nce probable cause exists to search the vehicle, the entire vehicle may be searched. [¶] A police officer with probable cause to search a vehicle may inspect a passenger’s belongings found in the car which are capable of concealing an object of the search. Wyoming v. Houghton (1999), 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408.” State v. Abbuhl, 2011 Ohio 6550, 2011 Ohio App. LEXIS 5401 (5th Dist. December 14, 2011).*

There was probable cause for plaintiff’s arrest for shooting down a police helicopter, even though the charges were dropped and he wasn’t convicted. Kerns v. Bader, 663 F.3d 1173 (10th Cir. 2011).*

When computer checks came back clean, the officer was required to have new reasonable suspicion to continue the stop. Here it was a rental agreement that didn’t make sense, and defendant was a serial driver of rented cars. Then came a dog alert, and that was probable cause for a full search. United States v. Reid, 2011 U.S. Dist. LEXIS 146170 (W.D. La. November 14, 2011), adopted 2011 U.S. Dist. LEXIS 146184 (W.D. La., Dec. 20, 2011).*

Permalink 12:15:39 am, by fourth, 116 words, 2948 views   English (US)
Categories: General

D.Me.: Being neither recipient nor sender of a Fed Ex package means no standing

Defendant was neither recipient nor sender of a Fed Ex package with oxycodone, so he lacked standing to challenge its search. There was also probable cause for search of the package under the search warrant. United States v. LeClair, 2011 U.S. Dist. LEXIS 145498 (D. Maine December 19, 2011).*

In an IRS civil enforcement proceeding, the IRS agent’s affidavit is sufficient to satisfy the Powell requirements of subpoenas. Then, the burden shifts to the taxpayer to prove otherwise. United States v. Lund, 2011 U.S. Dist. LEXIS 145921 (D. Ore. December 14, 2011).*

Defendant’s 2255 alluded to a defective search warrant but never elaborated on it, and it is treated as waived. United States v. Dodd, 828 F. Supp. 2d 39 (D. D.C. 2011).*

Permalink 12:03:00 am, by fourth, 187 words, 2977 views   English (US)
Categories: General

MO: Gant limited to search of car, not effects during arrest on street

Defendant was being cited for urinating in public, and he tried to walk off, and then arrested for not complying. He was put in a police car, and his backpack was searched. Gant was distinguished as involving a car. The search of the backpack was valid. State v. Ellis, 355 S.W.3d 522 (Mo. App. 2011):

Although Gant was decided prior to defendant's arrest, it applied to vehicle searches and the seizure of items in vehicles that are not immediately associated with the person of an arrestee. Defendant has not provided a citation to any published appellate opinion, much less one having precedential value in Missouri and decided prior to October 31, 2009, that extends Gant to a search of the personal effects on the person of an arrestee during a search of a person. The search conducted in this case strictly complied with binding precedent that had not been overruled or abrogated and that allowed, as part of the search of a person incident to arrest, the search of the personal effects on the person of an arrestee. The controlled substance recovered was therefore not subject to the exclusionary rule.

12/22/11

Permalink 06:12:30 am, by fourth, 317 words, 2934 views   English (US)
Categories: General

D.Md.: Driver of stolen car failed to show standing to challenge placement of GPS

Defendant failed to show he had standing to contest placement of a GPS on a stolen vehicle that was allegedly used in a bank robbery. United States v. Davis, 2011 U.S. Dist. LEXIS 145444 (D. Md. December 19, 2011):

Defendant asserted in his motion papers that “[a]t a hearing on this motion, the evidence will show that the defendant was not involved with the alleged theft of the automobile, and in fact he purchased the automobile from a third party months after the vehicle is alleged to have been reported stolen.” (ECF No. 57, at 10). No such evidence was presented at the hearing, however. The court raised the possibility that although Defendant had no standing to contest the placement of the GPS device, he might nevertheless have standing with respect to the monitoring of the movement of the Charger. The United States Court of Appeals for the Fifth Circuit made this distinction in United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011). In that case, the court held that the defendant lacked standing to challenge the placement of a GPS device on the undercarriage of his brother's truck, but did have standing to challenge “the use of the GPS device to follow the truck's path.” Hernandez, 647 F.3d at 220. That distinction was based, however, on the fact that the defendant was driving the truck with his brother's permission. See id. (quoting United States v. Lee, 898 F.2d 1034, 1038 (5th Cir. 1990) (“where a person has borrowed an automobile from another, with the other’s consent, the borrower becomes a lawful possessor of the vehicle and thus has standing to challenge its search.”)). Here, Defendant has not established that he had a reasonable expectation of privacy in the Dodge Charger or the monitoring of its movement on the highways. Thus, he lacks standing to bring his Fourth Amendment challenge, and the court does not reach the question of whether the Government's search was reasonable.

Permalink 12:16:43 am, by fourth, 268 words, 534 views   English (US)
Categories: General

CA1: With great detail, independently corroborated, CI's story is more believable

Defendant made three challenges to the search warrant and affidavit for a grow operation. First, the CI provided probable cause by his detail, which was corroborated by recorded telephone calls. While some of the calls seemed innocent, they take on a different color compared to the CI’s information. Second, the warrant was not stale, despite the two month lapse from the last PC to the issuances of the warrant because it was for an ongoing grow operation that would likely be there. Third, the warrant was not general. “Courts have recognized that ‘officers executing a search warrant are 'required to interpret it,’ and they are ‘not obliged to interpret it narrowly.’” Here, they knew they were looking for a grow operation. United States v. Tiem Trinh, 665 F.3d 1 (1st Cir. 2011):

Furthermore, authorities independently corroborated many of the CS’s details through intercepted phone conversations and general monitoring of the Trinhs. See United States v. Soule, 908 F.2d 1032, 1039 (1st Cir. 1990) (noting that police officers’ contemporaneous corroboration of the “material elements” of the CS’s information “lent substantial intrinsic verification to the informant’s veracity and basis of knowledge”). Thus, the fact that surveillance observed seemingly innocent van travels between Boston and Buffalo takes on a greater significance and supports the CS’s credibility when viewed in light of other corroborative evidence indicating incriminating activity. See Greenburg, 410 F.3d at 69 (providing that a surveillance agent’s “observation of seemingly innocent truck movement, which matched the informant’s prediction about such activity, helped establish a substantial reason to believe that the informant’s description of the entire scheme was accurate”).

Permalink 12:05:51 am, by fourth, 218 words, 546 views   English (US)
Categories: General

W.D.Mo.: Consent to search a car for drugs includes containers where drugs could be kept

Defendant would lose on the merits of the search argument not appealed, so defense counsel could not be ineffective for not appealing. The issue was consent to search a vehicle for drugs, and that included any containers in which drugs might be found. Parker v. United States, 2011 U.S. Dist. LEXIS 145970 (W.D. Mo. December 20, 2011).*

Officers in the NYC Anti-Crime Unit stopped the livery car defendant was a passenger in for speeding, yet the proof showed that they had maybe one second to judge the speed by eye without a radar gun. All things considered, without a showing of training in speed detection, the testimony was not credible, and the stop was suppressed. United States v. Moore, 2011 U.S. Dist. LEXIS 145729 (S.D. N.Y. December 19, 2011).* [Note: The court never got into the question of the propriety of a search of the passenger area of a livery car for speeding.]

Defendant’s stop was with reasonable suspicion of an illegal U-turn. When the officer approached, he could smell marijuana from the vehicle. The defendant unambiguously consented [and did not even really defend against that]. When the officer got in the car, he could smell marijuana, and that was probable cause for an automobile exception search. United States v. James, 2011 U.S. Dist. LEXIS 145234 (S.D. N.Y. December 16, 2011).*

12/21/11

Permalink 10:26:43 am, by fourth, 154 words, 676 views   English (US)
Categories: General

Daily Beast: "Local Cops Ready for War With Homeland Security-Funded Military Weapons"

Daily Beast: Local Cops Ready for War With Homeland Security-Funded Military Weapons:

A decade of billions in spending in the name of homeland security has armed local police departments with military-style equipment and a new commando mentality. But has it gone too far? Andrew Becker and G.W. Schulz of the Center for Investigative Reporting report.

Nestled amid plains so flat the locals joke you can watch your dog run away for miles, Fargo treasures its placid lifestyle, seldom pierced by the mayhem and violence common in other urban communities. North Dakota’s largest city has averaged fewer than two homicides a year since 2005, and there’s not been a single international terrorism prosecution in the last decade.

But that hasn’t stopped authorities in Fargo and its surrounding county from going on an $8 million buying spree to arm police officers with the sort of gear once reserved only for soldiers fighting foreign wars.

Permalink 08:03:49 am, by fourth, 272 words, 565 views   English (US)
Categories: General

Orin Kerr's "An Equilibrium-Adjustment Theory of the Fourth Amendment" now in Harv.L.Rev.

Orin Kerr's An Equilibrium-Adjustment Theory of the Fourth Amendment, previously noted on Volokh Conspiracy, has been published in the Harvard Law Review.

Worth a read, and the Table of Contents:

INTRODUCTION, 479
I. THE THEORY OF EQUILIBRIUM-ADJUSTMENT IN FOURTH AMENDMENT LAW, 482
A. The Fourth Amendment in Year Zero, 482
B. How New Facts Threaten the Balance of Power, 485
C. The Theory of Equilibrium-Adjustment and Six Scenarios, 487
1. The Government Uses a New Tool to Find Evidence, 489
2. Criminals Use a New Tool to Evade Detection, 489
3. New Crimes and New Practices, 489
4. Both Criminals and the Police Use a New Tool, 489
5. The Status Quo, 489
6. Defeating Countermeasures, 489
D. Equilibrium-Adjustment and Fourth Amendment Doctrine, at Both the Principles Layer and the Application Layer, 490
E. Equilibrium-Adjustment and Common Law Reasoning, 492
II. EXAMPLES OF EQUILIBRIUM-ADJUSTMENT IN FOURTH AMENDMENT LAW, 494
A. New Government Tools: Thermal Imagers, Beepers, and GPS Devices, 496
1. Thermal Imaging Devices, 496
2. Beepers and GPS Devices, 499
3. Sense-Enhancing Devices and Equilibrium-Adjustment, 501
B. New Tools to Commit Crime: The Automobile Exception, 502
1. How Automobiles Challenged the Privacy Balance of Year Zero, 503
2. Equilibrium-Adjustment and the Automobile Exception, 507
C. New Practices and New Crimes: The Subpoena Power and the End of the Mere Evidence Rule, 508
1. Rejecting the Equivalence Between Orders to Compel and Direct Physical Entry, 509
2. The End of the Mere Evidence Rule, 510
D. Both Sides Use a New Tool: Telephone Network Surveillance, 512
1. Contents of Telephone Calls: From Olmstead to Katz, 513
2. Surveillance of Numbers Dialed, 516
E. The Status Quo: Physical Entry into the Home, the Use of Undercover Agents, and
the Law of Arrests, 517
1. The Special Protections of the Home, 517
2. Undercover Agents, 518
3. The Law of Arrests, 521
F. Defeating Countermeasures: Open Fields and Aerial Surveillance, 522
1. Crossing over Fences, 523

Permalink 12:13:00 am, by fourth, 399 words, 765 views   English (US)
Categories: General

N.D.Cal.: No REP in a university owned computer where defendant was warned of no privacy in computer

A government contractor doing cyber security noticed that there was high traffic to potential child pornography websites from a government office in a university. After further investigation, it was determined that a particular IP address was involved, and then it was narrowed down to one computer issued to defendant by the university under a policy that said that the computer belonged to the university and was subject to monitoring. The computer was seized by university police, and then a search warrant was issued for its contents on a wealth of probable cause, including a prior offense for sexually molesting a child. There was no reasonable expectation of privacy in this computer. United States v. Busby, 2011 U.S. Dist. LEXIS 145217 (N.D. Cal. December 14, 2011):

As a general matter, courts have found that an employee’s expectation of privacy in files stored on a work-issued computer is not objectively reasonable where the employer notifies employees that their computer files are subject to monitoring. See United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (holding that government employee’s belief that his computer files were private was not objectively reasonable where the employer’s policy reserved its right to “audit, inspect, and monitor” his computer files); United States v. Angevine, 281 F.3d 1130, 1134 (10th Cir. 2002) (upholding denial of defendant professor’s motion to suppress child pornography located on the erased files on his office computer which was part of a university network where the university’s computer use policy notified users that internet activity was subject to monitoring); Sporer v. UAL Corp., No. C 08-02835 JSW, 2009 U.S. Dist. LEXIS 76852, 2009 WL 2761329, at *5 (N.D. Cal. Aug. 27, 2009) (finding that employee lacked a reasonable expectation of privacy in his work email where the employer had a policy of monitoring its employee’s computer use and warned employees that they had no expectation of privacy on e-mail transmitted on the company system); Wasson v. Sonoma County Junior Coll., 4 F. Supp. 2d 893, 905-906 (N.D. Cal. 1997) (employer’s computer policy giving it “the right to access all information stored on [the employer’s] computers” defeated employee’s reasonable expectation of privacy in files stored on employer’s computers); but see United States v. Heckenkamp, 482 F.3d 1142, 1147 (9th Cir. 2007) (university student had a reasonable expectation of privacy in files on his personal computer connected to the university network where the university had “no announced monitoring policy on the network”).

Permalink 12:04:41 am, by fourth, 505 words, 964 views   English (US)
Categories: General

UT: Does consent to search a vehicle apply to all the passengers' bags? Probably not

The driver’s consent to search the car likely does not apply to the other occupant's stuff, and the case is remanded for further fact finding. State v. Harding, 2011 UT 78, 697 Utah Adv. Rep. 54, 282 P.3d 31 (2011), on cert. from State v. Harding, 2010 UT App 8, 223 P.3d 1148 (2010):

¶1 The sole question before us is whether a police officer may search two backpacks belonging to a passenger in an automobile after receiving only the driver’s consent to search the vehicle. The district court’s factual findings are not sufficiently particularized for us to conclusively make this determination. We therefore remand with instructions for the district court to make additional factual findings.

¶16 Courts applying Rodriguez's apparent authority doctrine are generally in agreement that an officer's search of a passenger's belongings based only on a driver's consent is unreasonable where the facts clearly indicate the driver has no authority over the items to be searched. For example, courts are unanimous in holding that it is unreasonable for an officer to search a female passenger's purse after obtaining only the consent of a male driver because it is unreasonable to believe that the man has authority over the woman's purse. See United States v. Welch, 4 F.3d 761, 765 (9th Cir. 1993); State v. Friedel, 714 N.E.2d 1231, 1240-41 (Ind. Ct. App. 1999); State v. Caniglia, 1 Neb. Ct. App. 730, 510 N.W.2d 372, 374 (Neb. Ct. App. 1993); State v. Zachodni, 466 N.W.2d 624, 628 (S.D. 1991), abrogated on other grounds by State v. Akuba, 2004 SD 94, 686 N.W. 2d 406 (S.D. 2004). And a Florida court held that it was unreasonable for an officer to search a passenger's fanny pack based only on the driver's consent where the officer had observed the passenger sitting in the car with the fanny pack on her lap. Brown v. State, 789 So. 2d 1021, 1021-22 (Fla. Dist. Ct. App. 2001). Similarly, a federal court held that it was unreasonable for an officer to search a passenger's briefcase in the trunk of a car without obtaining the passenger’s consent after the driver informed the officer the briefcase belonged to the passenger. United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st Cir. 1994).

. . .

¶33 In this case, similar to James, Frank, and Norris, there were four passengers and several bags in the vehicle. In such a situation, the probability that one or more of the bags belonged to one of the passengers is extremely high. Thus, as in James, Frank, and Norris, it likely would have been unreasonable for Officer Westerman to believe that all of the bags in the car belonged to the driver.

¶34 The State makes much of the fact that the backpacks did not contain labels identifying Ms. Harding as the owner. It is true that some courts have emphasized such evidence, see, e.g., Hammons, 152 F.3d 1025, 1027-28 (8th Cir. 1998), and we agree that it is a fact that should be considered. But we also believe the value of such information is limited in gauging the reasonableness of an officer's actions because it is hardly commonplace for people to place labels on the exterior of their belongings.

12/20/11

Permalink 10:50:39 am, by fourth, 534 words, 701 views   English (US)
Categories: General

Cal: Indicia warrant was properly issued in murder case

Search warrant for evidence of ownership and control of the premises where a murder occurred was properly issued. Incriminating evidence was seen when it was executed. Also, exculpatory evidence omitted from the affidavit was not material. People v. Eubanks, 53 Cal. 4th 110, 134 Cal. Rptr. 3d 795 (2011):

Here, in light of the information available to the affiant sheriff’s detective at the time he sought the first warrant, he could not have realistically described the personal property sought to establish dominion and control with any more particularity. (See, e.g., U.S. v. Spilotro (9th Cir. 1986) 800 F.2d 959, 964; U.S. v. Cardwell (9th Cir. 1982) 680 F.2d 75, 78.) Officers knew that multiple murders recently had occurred inside the house, but they had little information as to how they were carried out or why. While it appeared that defendant had committed the crimes, her responsibility had to be ascertained with more certainty, and any others who had access to the property or dominion and control of it needed to be considered or eliminated as suspects.

In People v. Nicolaus (1991) 54 Cal.3d 551 (Nicolaus), police obtained a search warrant to search the defendant’s apartment for “letters, papers and bills tending to show who occupied the apartment” (id. at p. 575), after they learned defendant’s address from a dying woman who said defendant had shot her. During the search of the apartment, an officer opened a folder on the defendant’s desk and found documents in the defendant’s handwriting that described his plans to harm the victim and revealed his motives and state of mind before the murder. In finding the search into the folder for indicia of occupancy constitutional, we rejected defendant’s contention that the search authorized by the above quoted phrase was not “sufficiently particularized.” (Ibid.) We additionally noted that, “[i]n any event, the officers acted entirely properly in seeking independent evidence to establish defendant’s occupancy of the apartment, and defendant’s control over any evidence seized therefrom, for presentation in court.” (Ibid.)

. . .

4. Seizure of Dominion and Control Evidence.

Defendant next faults the investigating officers for reading and seizing the letters lying about her bed. She claims those letters were not relevant to dominion and control, that they were “merely [her] personal writings,” and the officers had “no authorization to seize them under the guise of ‘dominion and control.’” However, as officers searching defendant’s residence for items tending to show dominion and control were entitled to search through trash cans and to look at any paper items inside the home, they were also entitled to seize defendant’s letters, though not listed in the warrant, because they were in plain view and their incriminating character was immediately apparent. (Horton v. California (1990) 496 U.S. 128, 136-137; Kraft, supra, 23 Cal.4th at p. 1043; Nicolaus, supra, 54 Cal.3d at p. 575.) Defendant’s reliance on Arizona v. Hicks (1987) 480 U.S. 321, is misplaced. In that case, investigating officers engaged in conduct unrelated to the objectives of the authorized intrusion to search for a shooter and for weapons when they moved stereo equipment and obtained its serial numbers. (Id. at pp. 324-326.) Here, by contrast, the officers were engaged in an authorized search when they came upon the immediately apparent incriminating letters.

Permalink 10:21:37 am, by fourth, 256 words, 709 views   English (US)
Categories: General

CA6: Arrest for public intox was not shown with a factual basis

The arrest of plaintiff for public intoxication was not shown to be objectively reasonable, so qualified immunity was properly denied. Haley v. Elsmere Police Dep't, 452 Fed. Appx. 623, 2011 FED App. 0849N (6th Cir. 2011) (unpublished)*:

Under Haley's version of the facts as they were known to Officer Markesbery, it was objectively unreasonable for an officer to believe he had probable cause to arrest Haley for alcohol intoxication. Though Haley stated that he had consumed two beers, and the officers saw him crouching down (perhaps appearing to be trying to vomit—though no one testified that he ever did vomit), nothing else about his conduct would have made a reasonable officer conclude he was "manifestly" intoxicated. Nor, under Haley's version of the facts, was there any indication that he was unreasonably annoying anyone. A reasonable officer might have concluded that, had Haley been manifestly under the influence, he could have posed a danger to himself or others because he was in the parking lot, perhaps intending to get in his car. But since a reasonable officer could not have concluded he was manifestly intoxicated in the first place, that is irrelevant. And at any rate, Haley's offer to submit to a breathalyzer undercuts any potential danger he might have posed by driving under the influence. Accepting Haley's version of the facts, a reasonable officer could not have found the elements of the statutory offense of alcohol intoxication. The district court did not commit a purely legal error in denying summary judgment to Markesbery on the basis of qualified immunity.

Permalink 12:01:31 am, by fourth, 221 words, 548 views   English (US)
Categories: General

OH2: Consent was revoked when defendant put down his arms and asked “we really have to do this?”

Defendant was validly stopped for suspicion of counterfeiting. He said the $20 bill came from another store, and he agreed to a patdown for more currency, but he finally revoked. “The State admits that Defendant's consent was likely revoked once he lowered his arms and protested whether ‘we really have to do this,’ demonstrating by his conduct that he did not consent to the patdown search extending to his jacket pocket. We agree.” That led to finding a baggie of cocaine, which was unreasonable. State v. Jacko, 2011 Ohio 6494, 2011 Ohio App. LEXIS 5353 (2d Dist. December 16, 2011).*

Defendant failed to show any connection to the premises for standing as a resident or guest. Even if he did, the search was valid by third-party consent. State v. Smith, 2011 Ohio 6466, 2011 Ohio App. LEXIS 5307 (8th Dist. December 15, 2011).*

An alleged failure of a law enforcement officer to follow protocol established by the Kansas Department of Health and Environment for administering a breath test to determine the blood-alcohol level of a suspected drunk driver is not itself a violation of a constitutional right and is not legally sufficient to support a motion to suppress. But because the alleged failure goes to the evidentiary foundation for admission of the test results, such evidence might be challenged before trial by a motion in limine. State v. Smith, 46 Kan. App. 2d 939, 268 P.3d 1206 (2011).*

12/19/11

Permalink 11:13:18 am, by fourth, 182 words, 578 views   English (US)
Categories: General

Think Progress: "Eighth Circuit Embraces Dangerous Legal Claim Endangering Undocumented Immigrants’ Fourth Amendment Rights"

Think Progress: Eighth Circuit Embraces Dangerous Legal Claim Endangering Undocumented Immigrants’ Fourth Amendment Rights by Ian Millhiser:

Last June, the U.S. Court of Appeals for the Fifth Circuit held, wrongly, that the Second Amendment does not apply to undocumented immigrants. Last week, in a single paragraph order, the Eighth Circuit agreed. As ThinkProgress explained when the Fifth Circuit opinion was handed down, this decision isn’t just wrong, it is disastrously so. Indeed, if allowed to stand, it could strip all undocumented immigrants of their constitutional right to be free from unlawful searches and seizures.

Several constitutional provisions refer to rights that belong to “the people.” The Second Amendment refers to “the right of the people to keep and bear Arms.” And the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” According to the Fifth Circuit’s reasoning, which was embraced last week by the Eighth Circuit, undocumented immigrants enjoy neither right because they are not part of “the people”: ....

Permalink 06:49:15 am, by fourth, 194 words, 561 views   English (US)
Categories: General

E.D.Pa.: Consent was not invalid because officer was too nice

Court rejects consent was invalid because officer was too nice. As a threshold issue, none of the three had standing since they weren't on the paperwork for the rented car and didn't show they had permission to drive it. Alternatively, the consent shown on video was voluntary. United States v. Goode, 2011 U.S. Dist. LEXIS 144899 (E.D. Pa. December 16, 2011):

The defense argues that Trooper Lora’s friendly and respectful demeanor was so much so as to be actually and literally disarming and, hence, violative of Mr. Goode’s exercise of his free will. The Court declines to entertain an argument (or cynicism, generally) that would lead to a finding that politeness and good humor on the part of law enforcement officers can be subject to such alchemy as to unconstitutionally eviscerate the will power and intelligence of a fully functional adult. It is difficult to imagine the precise admonition that would have to be given to police officers to explain that they should beware of being “too nice” lest the exclusionary rule be invoked. Such a situation would set on its head the truism that more flies are caught with honey than with vinegar.

Permalink 12:22:22 am, by fourth, 211 words, 3250 views   English (US)
Categories: General

AL: Search incident of cell phone reasonable

Following California’s Diaz and the clear majority of jurisdictions, the search incident of defendant’s cell phone was reasonable. Gracie v. State, 2011 Ala. Crim. App. LEXIS 123 (December 16, 2011):

We agree with the majority of jurisdictions surveyed that a warrantless search of a defendant's cellular telephone following his arrest does not violate Fourth Amendment principles; we are not persuaded by the rationale in Smith that a cellular telephone may not be searched incident to a lawful arrest without first obtaining a warrant because the cellular telephone is not a container. In the instant case, the record indicates that Detective Soronen saw Gracie using a cellular telephone after the robbery. After placing Gracie under arrest, Detective Soronen searched the call log and text messages contained in Gracie's cellular telephone to determine if Gracie had an accomplice. The cellular telephone was immediately associated with Gracie's person, and pursuant to the decision of the United States Supreme Court in Robinson, Detective Soronen was permitted to inspect the cellular telephone. 414 U.S. at 236. Accordingly, the warrantless search of Gracie's cellular telephone following Gracie's arrest did not violate Fourth Amendment principles, and the circuit court did not err in denying Gracie's motion to suppress the text message seized pursuant to Detective Soronen's search of Gracie's cellular telephone.

Permalink 12:12:20 am, by fourth, 552 words, 2979 views   English (US)
Categories: General

E.D.Wis.: Belize search warrant executed in Belize was not a “joint venture” even though U.S. officers there

A search warrant issued for defendant’s Belize residence was not governed by the Fourth Amendment because it was conducted under and enforcing Belize law and was otherwise reasonably executed. There was no showing of a “joint venture” of the U.S. and Belize even though U.S. officers were present. United States v. Flath, 2011 U.S. Dist. LEXIS 144931 (E.D. Wis. November 18, 2011):

In arguing that he is subject to the protection of the Fourth Amendment, Flath contends that the “joint venture” doctrine is applicable to his case. I disagree. To be clear, the record shows cooperation between the U.S. officers and Belizean officers. And a Belizean officer believed the search to be a “joint operation.” But, whether the search is a joint venture depends on the level of U.S. participation. See Marzano, 537 F.2d at 271 (finding that Grand Cayman officer’s intent to help the United States was not a sufficient reason to treat his actions as those of United States agents); United States v. Baboolal, No. 05-CR-215, 2006 WL 1942357, *3 (E.D. Wis. July 11, 2006) (“[T]he mere fact that the Canadians and Americans were cooperating as part of the Toronto Strategic Partnership does not transform any subsequent search into a joint venture.”). That the U.S. also expressed interest in prosecuting Flath for violation of U.S. laws does not alter the analysis. See Marzano, 537 F.2d at 271; Baboolal, 2006 WL 1942357, at *3 (stating that “if the fact that the case ultimately ends up in a United States court was significant, the [joint venture] doctrine would apply in virtually all cases involving foreign searches”).

At the outset, I see a distinction between the U.S. officers’ involvement in the search at issue and in the interrogation of Flath which is not at issue. The U.S. was substantially involved in Flath’s interrogation. A U.S. officer read Flath his Miranda rights, questioned him, and showed him incriminating evidence.

By contrast, the U.S. officers’ level of involvement in the search, on which I must focus, was more peripheral. Marzano, 537 F.2d at 270 (whether the Government participated as to render the search a Government action must be determined by examining the facts surrounding the search). Here, the U.S. officers’ involvement in the search was as follows. The U.S. officers passed the incriminating video to the local Belizean police which launched the investigation. The U.S. officers accompanied Belizean police to get the search warrant. The U.S. officers accompanied Belizean police to the residence. The U.S. officers waited at the back door with Belizean police upon arrival at the residence. The U.S. officers stopped and secured Flath at the back door when he tried to leave. The U.S. officers were present but did not participate in the search.

These facts do not support a finding that the U.S. officers’ actions in the search were so substantial as to be considered participants in the search. Passing of information and presence during the search are not sufficient. Marzano, 537 F.2d at 270 (“[T]he law is clear that providing information to a foreign functionary is not sufficient involvement for the Government to be considered a participant in acts the foreign functionary takes based on that information .... Mere presence of federal officers is not sufficient to make the officers participants.”).

Permalink 12:01:34 am, by fourth, 87 words, 2861 views   English (US)
Categories: General

ND: Being ordered from car during stop not a “seizure”

Defendant could be ordered from his car during a traffic stop without it being a “seizure.” Engstrom v. N.D. DOT, 2011 ND 235, 807 N.W.2d 602 (2011).*

The smell of alcohol is reasonable suspicion for a further detention. State v. Smith, 2011 Tenn. Crim. App. LEXIS 913 (December 12, 2011).*

Court reaffirms (State v. Machuca, 231 Ore. App. 232, 218 P.3d 145 (2009) (Machuca I),rev'd on other grounds, 347 Ore. 644, 227 P.3d 729 (2010) (Machuca II)), that consent obtained after explanation of the economic penalties involved in refusal of consent is involuntary. State v. Moore, 247 Ore. App. 39, 269 P.3d 72 (2011).*

12/18/11

Permalink 11:21:15 am, by fourth, 183 words, 2999 views   English (US)
Categories: General

OR: Consent sought during “unavoidable lull” in a stop and did not extend it

Asking for consent while waiting for return of information from dispatch was during an “unavoidable lull” in a stop and did not extend it. State v. Hampton, 247 Ore. App. 147, 268 P.3d 711 (2011)*:

Asking for consent to search the car did not extend the stop because it occurred during an unavoidable lull in the traffic stop while defendant was looking for his registration. See State v. Jones, 239 Or App 201, 208, 245 P3d 148 (2010), rev den, 350 Or 230 (2011) (holding that, because the defendant's consent to search occurred during an unavoidable lull in an ongoing traffic stop, the request for consent to search did not delay the stop).

The evidence supports the trial court’s conclusion and findings that the air freshener hanging from defendant’s mirror was a “material obstruction” to the driver’s view. “‘In making its decision on the motion, the trial court's focus is not on “whether an offense was actually committed but whether an arresting officer reasonably suspected at the time of the stop that criminal activity was taking place or about to take place.”’” People v. Price, 2011 IL App (4th) 110272, 962 N.E.2d 1035 (December 12, 2011).*

Permalink 09:57:44 am, by fourth, 248 words, 2912 views   English (US)
Categories: General

ND: Record did not show defendant was seized during stop

The record does not show that defendant was seized, and defendant did not show that he wasn’t free to leave, so he did not show a Fourth Amendment violation. State v. Aguilar, 2011 ND 236, 809 N.W.2d 285 (2011)*:

[*P14] The State argues Sanchez was not illegally seized because he was not being detained until he was arrested for possessing the methamphetamine and the pipe. Sanchez relied on Aguilar’s arguments at the suppression hearing and did not present any evidence that Sanchez was seized while Officer Sommer was waiting for additional officers to arrive.

[*P15] A Fourth Amendment seizure occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Fields, 2003 ND 81, 662 N.W.2d 242, ¶ 11 (quoting State v. Koskela, 329 N.W.2d 587, 589 (N.D. 1983)). At the district court suppression hearing, Sanchez presented no evidence that he was not free to leave before he was arrested, and nothing in the record suggests otherwise. The sniff did not violate Sanchez's right to be free from unreasonable seizures because Sanchez was not seized until after the sniff occurred.

[Note: Since the burden in a warrantless search is on the government, why is this court holding that defendant had the burden to show that he was “seized.” The burden is on the state to show that he was not seized. Here, at least, the court says that nothing in the record shows that he was seized. Unfortunate language.]

Permalink 09:48:40 am, by fourth, 87 words, 2858 views   English (US)
Categories: General

Throwdown cases from IL and LA

Officers’ extraterritorial stop was without reasonable suspicion, and his throwdown was properly suppressed. People v. Contreras, 2011 IL App (2d) 100930, 357 Ill. Dec. 239, 962 N.E.2d 1140 (2011).*

The officer was investigating a burglary report and was at defendant’s threshold where defendant was observed with his pants down bleeding from the leg, and he volunteered that he was injured running from the police because he had drugs. That was reasonable suspicion to detain, and defendant’s throwdown was a valid seizure. State v. Wilford, 81 So. 3d 868 (La. App. 5th Cir. 2011).*

Permalink 12:13:12 am, by fourth, 329 words, 2982 views   English (US)
Categories: General

DC: When defendant assaults officer during illegal patdown, acquittal not the remedy for a Fourth Amendment violation

Defendant was stopped without legal justification, and one thing led to another and he assaulted the officer. Acquittal was not an appropriate remedy for what was a separate crime despite the Fourth Amendment violation. Crossland v. United States, 32 A.3d 1005 (D.C. 2011):

In his post-trial Motion for Judgment of Acquittal, appellant argued that “because Officer Baldwin’s behavior violated his [Fourth Amendment] rights,” the trial court “should consider sanctioning the Government” by entering a judgment of acquittal. Relying on Mapp v. Ohio, appellant argues that the trial court erred in denying his motion, contending that “the only way to deter the MPD police policy of ‘aggressive high visibility patrol,’ ... is to remove the incentive” for police officers to disregard constitutional rights. We discern no reason to doubt (and the government does not dispute) that Officer Baldwin’s conduct — forcibly searching appellant when, as the officer acknowledged, appellant was doing nothing unlawful — violated appellant’s Fourth Amendment right to be free from unreasonable searches and seizures. However, application of the sanction established by Mapp (the so-called “exclusionary rule”) has “been limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct.” Artis v. United States, 802 A.2d 959, 967 (D.C. 2002) (quoting United States v. Leon, 468 U.S. 897, 910, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). This case did not involve the seizure of evidence, and the authority that appellant cited did not require or authorize the trial court to grant appellant’s request for a judgment of acquittal. Moreover, as the trial court recognized, the APO statute “prohibits forceful resistance even if the officer’s conduct is unlawful.” Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008) (explaining that the rationale for this rule is to “deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty”) (citations and internal quotation marks omitted). The trial court did not err in denying appellant’s motion.

Permalink 12:02:40 am, by fourth, 191 words, 2805 views   English (US)
Categories: General

M.D.Ala.: Knowledge of place to be searched by executing officer not shown in affidavit may be considered

The knowledge of the executing officer of the place to be searched may be considered, even if not reflected in affidavit for the search warrant. United States v. Harbison, 2011 U.S. Dist. LEXIS 143957 (M.D. Ala. November 18, 2011):

The court may consider “the knowledge of the officer executing the warrant, even where such knowledge was not reflected in the warrant or in the affidavit supporting the warrant.” Burke, 784 F.2d at 1093. Based on the officers’ knowledge and prior experience at the residence, the search warrants described the residence to be search with sufficient particularity to ensure that the correct residence was searched. “The Fourth Amendment requires only that the search warrant describe the premises in such a way that the searching officer may “‘with reasonable effort ascertain and identify the place intended.’” (internal citations omitted).

Leaving one hotel to go to another is an abandonment of what’s in the first. United States v. Thornton, 2011 U.S. Dist. LEXIS 143843 (N.D. Ga. July 28, 2011).*

The search of defendant’s car was valid either as a search incident to arrest with probable cause or consent. State v. Roberson, 81 So. 3d 911 (La. App. 2d Cir. 2011).*

12/17/11

Permalink 11:48:20 am, by fourth, 269 words, 2858 views   English (US)
Categories: General

LA: SW for DNA need only show that there is evidence to be tested, not probable cause that it will match

In order to obtain a search warrant for a DNA sample, the government does not need to conclusively demonstrate the existence of an unknown DNA sample: “it suffices that the state has established that its evidence, removed from defendant’s residence, contains recoverable biological samples that may, but not necessarily will, provide a DNA profile useful for forensic purposes” (a blood stain and a hair with follicular matter). Also, the taking of DNA by buccal swab is no longer considered intrusive. State v. Franklin, 11-1909 (La. December 16, 2011).

The search warrant was issued with probable cause and the place to be searched was described with sufficient particularity to reasonably find it to search it. State v. Turner, 82 So. 3d 449 (La. App. 2d Cir. 2011).*

The officer had reasonable suspicion for detention of defendant after his stop for driving a couple of miles 10-15 mph below the speed limit in the left lane of a highway. State v. Lee, 2011 La. App. LEXIS 1555 (La. App. 2d Cir. December 14, 2011)*:

The factors which Sgt. Parker identified, for his suspicion of possible drug courier activity were: the nervousness of Morris; the varying and incomplete accounts of the defendants' trip to and from Texas; the varying accounts of Morris's length of time in driving the vehicle; the multiple air fresheners in the vehicle; the ownership of the vehicle by a party who was not traveling with the defendants in the cross-country trip; and the prior criminal records of Morris and Smith involving illegal drugs. These facts allowed a permissible shift in the trooper's focus and were adequate to create a reasonable suspicion of separate illegal drug activity.

Permalink 11:02:44 am, by fourth, 215 words, 3103 views   English (US)
Categories: General

N.D.Ind.: Consent was verbal and non-verbal by gesture

A third party consented to the search both verbally and non-verbally by gesturing the police to enter. United States v. Lee, 835 F. Supp. 2d 657 (N.D. Ind. 2011):

What's more, Saffa also gave non-verbal consent for the agents to come into the house. Consent to enter can be non-verbal. U.S. v. Villegas, 388 F.3d 317, 324-25 (7th Cir. 2004); U.S. v. Cotnam, 88 F.3d 487, 495 (7th Cir. 1996). In other words, a person’s actions alone can manifest his or her consent to a search. U.S. v. Walls, 225 F.3d 858, 863-64 (7th Cir. 2000); U.S. v. Rosario, 962 F.2d 733, 735, 737 (7th Cir. 1992). Recall that after Saffa opened the door, the agents asked if Krystal Lee was there, and independent of her words, Saffa non-verbally communicated to the agents that Krystal was in the house, and that they could enter it. She did this by opening the door wider, stepping back, and gesturing into the house. Opening a door, stepping back to permit agents to enter the home, and gesturing to come in convey consent to enter. Lewis, 608 F.3d at 999; Walls, 225 F.3d at 862-63; Rosario, 962 F.2d at 737. In this case, it is clear from the testimony of the officers — and from Saffa herself — that her actions constituted non-verbal consent to enter the house to find Krystal.

Permalink 10:58:19 am, by fourth, 157 words, 2973 views   English (US)
Categories: General

OH7: State's failure to support stop required suppression of search of passenger when car was towed

Defendant was a passenger of a vehicle stopped because the driver was allegedly under the influence. When the vehicle was being towed and the passenger was going into the police car, he was patted down, and drugs were found. Defendant filed a motion to suppress the stop, and the state was thus on notice that the stop was invalid. The state did not support the stop in defendant’s case, and the motion to suppress should have been granted. State v. Burnette, 2011 Ohio 6400, 2011 Ohio App. LEXIS 5257 (7th Dist. December 5, 2011).

The search of defendant’s cell phone was waived by the defendant. Then, the government had an independent source of subpoenaed records. On plain error, it isn’t. United States v. Moody, 664 F.3d 164 (7th Cir. 2011).*

The evidence supports the USMJ’s finding of consent. United States v. Dearing, 2011 U.S. Dist. LEXIS 144007 (N.D. Ohio December 14, 2011), R&R 2011 U.S. Dist. LEXIS 144005 (N.D. Ohio September 21, 2011).

Permalink 12:54:55 am, by fourth, 172 words, 5967 views   English (US)
Categories: General

ACLU.org: "Justice Department Avoids Decision On Warrantless Cell Phone Tracking"

ACLU.org: Justice Department Avoids Decision On Warrantless Cell Phone Tracking by Catherine Crump:

Federal law enforcement has used people’s cell phones to track their movements for at least a decade, but even today there is no clear answer to whether the government needs a warrant to do so. Why? In part because the U.S. Justice Department appears to be pursuing a conscious strategy of trying to avoid a ruling on this question by a court of appeals.

Here’s how that happens: Federal agents track people without a warrant, and in some instances, are slapped down by some district courts for this (in our view and in the view of these district courts) unlawful behavior. But they refrain from taking those losses to the Courts of Appeals, perhaps because a ruling that they need a warrant would then become the law of the land in the territory of that appeals court, and they want to be able to continue to engage in warrantless cell phone tracking whenever they can.

Permalink 12:28:11 am, by fourth, 697 words, 6062 views   English (US)
Categories: General

Cal.1st: One unsupported informant is not probable cause, but three unsupported informants is the good faith exception; or “three wrongs make a right”

One unsupported informant is not probable cause, but three unsupported informants is the good faith exception because past cases suggested that it might be OK. People v. French, 201 Cal. App. 4th 1307, 134 Cal. Rptr. 3d 383 (1st Dist. 2011):

A search warrant affidavit contains information from three informants, none of whom are reliable. Each informant states two named individuals are selling drugs from a particular residence and drive a particular vehicle. The affiant officer corroborates those facts and determines that one of the alleged drug dealers has a history of narcotics offenses, but fails to include in the affidavit the dates and any details of those offenses. We conclude that the affidavit was insufficient to establish probable cause to issue the warrant, in part because the police corroboration of the informants’ statements and the “interlocking” details of those statements related to “pedestrian” facts. However, we find the good faith exception to the exclusionary rule applicable and affirm.

. . .

The minimal police investigation and lack of detail in the affidavit are factors weighing against application of the good faith exception. Where “neither the veracity nor basis of knowledge of the informant is directly established, the information is not so detailed as to be self-verifying and there is no logistical or other reason why verification from other sources cannot be achieved, … the failure to corroborate may be indicative that it was objectively unreasonable for the officer to believe in the existence of probable cause.” (Maestas, supra, 204 Cal.App.3d at pp. 1220–1221.) Nevertheless, the question under Leon, supra, 468 U.S. 879, “is not whether further investigation would have been reasonable, but whether a reasonable officer in [the affiant's] position would have known that the affidavit, as it existed at the time it was to be presented to the magistrate, was legally insufficient without additional and more recent corroboration.” (Camarella, supra, 54 Cal.3d at p. 606, fn. omitted.)

We apply the good faith exception in the present case because broad language in several prior court decisions may have led a reasonable officer to conclude the affidavit presented a debatable question as to the existence of probable cause. In particular, several decisions contain language flatly suggesting that multiple unreliable informants can corroborate each other. Thus, in Sheridan, supra, 2 Cal.App.3d at page 489, the court stated, “[I]t may not be said as a matter of law, that two or more independent reports of previously untested informers each corroborating the other, of the same criminal activity, do not constitute probable cause for an arrest or search. … [S]imilar information from separate unrelated sources substantially increases the probability of its credibility.” In Balassy, supra, 30 Cal.App.3d at page 621, the court stated, “one ‘unreliable’ informer's statements may be corroborated by those of another, if they were interviewed independently, at a different time and place. [Citations.]” (Accord, Green, supra, 117 Cal.App.3d at p. 205.) And in Laws, supra, 808 F.2d at page 103, the court stated, “The fact that two apparently unassociated persons make the same assertion increases the probability that it is true.” (See also Hyde, supra, 574 F.2d at p. 863, fn. omitted.)

. . .

As explained previously, all of those cases are distinguishable from the present case. However, because the broad language in the decisions in the previous paragraph was “arguably supportive legal authority” in favor of issuance of the warrant, we conclude the existence of probable cause was debatable and, therefore, the trial court properly denied the motion to suppress the evidence seized under the search warrant. (Garcia, supra, 111 Cal.App.4th at p. 723; see also People v. Pressey (2002) 102 Cal.App.4th 1178, 1191 [126 Cal. Rptr. 2d 162] [“Given the dearth of authority directly on point and the existence of potentially supportive precedent, the issue of probable cause was ‘debatable’ when the warrant herein was sought, even though the issue, upon examination, is not a particularly close one.”].)

[Note: So, California: what about the next time? Does this case mean that the good faith exception will not be applied, or is it still “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation” that warrants can, in fact, still be issued without probable cause? In this case, probable cause was “debatable” so there is no change in the law.]

Permalink 12:12:57 am, by fourth, 483 words, 5887 views   English (US)
Categories: General

TX14: Defendant was not "stopped" when officer approached and demanded he answer questions

Defendant was not stopped and was free to go when the officer parked near and in front of him but not blocking him, shone the police car spotlight in his face, and demanded to know what he was doing there. Johnson v. State, 359 S.W.3d 725 (Tex. App.—Houston (14th Dist.) 2011) (concurring judge found reasonable suspicion)*:

In summary, viewed in the light most favorable to the trial court’s ruling, the evidence supports implicit findings that during the initial interaction between Johnson and Hendrie (1) Hendrie approached Johnson's vehicle, which was backed into a parking spot outside the gate of an apartment complex at night with its lights on and engine running; (2) Hendrie parked his police vehicle at an angle that partially blocked Johnson's egress but did not prevent him from maneuvering around him and driving away; (3) Hendrie shined his police vehicle's spotlight inside Johnson's car; (4) Hendrie did not activate his siren or emergency lights, or use a bullhorn or loudspeaker to communicate with Johnson; (5) Hendrie approached Johnson's car and asked, “What’s going on, what are you doing out here?” and requested Johnson's identification; and (6) Hendrie did not carry a flashlight, draw a weapon, order Johnson to put his hands up, or otherwise inform him that he was being detained. On these facts, the trial court could have concluded that a reasonable person in Johnson’s position would have believed that he was free to ignore Hendrie’s requests or terminate the interaction, and therefore the initial interaction between Hendrie and Johnson was a voluntary encounter rather than a Fourth Amendment seizure.

[Note: This is utter fiction and shows that appellate judges haven't a clue as to what happens in criminal court or on the streets. The purpose of shining the light in the driver's face is to control the situation and disorient him. It shows to me that he was stopped. With these facts the officer did not have a flashlight becomes meaningless and not supportive of anything. When the officer approaches on foot, it certainly is to block egress. Thus, what person in his right mind would think that he could drive off? If you try to leave and the officer has to move, at least around here, they'd charge you with aggravated assault on a police officer. If you, heaven forbid, touch the police officer jumping in front of you, they'd charge you with attempted capital murder. Practice Pointer: Develop the facts that the officer was positioned such that defendant could not really leave and no person in his right mind would seriously think he was not detained. Again, develop the cross in such a way that when you ask the officer what he'd do if the defendant ignored him and drove off; 9 times out of 10 he'd say defendant would be stopped for ignoring a police officer's commands. Then, by the officer's own admission he was not free to leave.]

Permalink 12:02:07 am, by fourth, 294 words, 5963 views   English (US)
Categories: General

N.D.Ga.: When USMJ decides on two grounds, both must be addressed under § 636 "appeal" to USDJ

The USMJ found that defendant lacked standing to contest the search of a motel room he vacated and the co-occupant consented. Defendant’s attack before the USDJ did not address both arguments, so the findings of the USMJ are sustained because either was sufficient. United States v. Stephens, 2011 U.S. Dist. LEXIS 143551 (N.D. Ga. December 13, 2011):

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review as to those portions of the R&R to which Defendant timely and specifically objected. The Court may accept, reject or modify, in whole or in part, the findings and recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1). Portions of the R&R to which Plaintiff has not specifically objected are reviewed for clear error only. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373 (N.D. Ga. 2006) (Story, J.) ("[I]ssues upon which no specific objections are raised do not so require de novo review; the district court may therefore 'accept, reject, or modify, in whole or in parts the findings or recommendations made by the magistrate judge[,]' applying a clearly erroneous standard.") (quoting 28 U.S.C. § 636(b)(1)).

The co-occupant of a hotel room consented to an entry by the police, and they saw a sweater matching the description of a sweater worn in a bank robbery laying on an open suitcase. It was in plain view to the officer. State v. Sullivan, 2011 Ohio 6384, 2011 Ohio App. LEXIS 5243 (10th Dist. December 13, 2011).*

On remand from United States v. McCarty, 648 F.3d 820 (9th Cir. 2011), the district court finds the accidental viewing of child pornography photographs that fell from an envelope when a computer was removed from a bag was a valid administrative search. United States v. McCarty, 835 F. Supp. 2d 938 (D. Haw. 2011).*

12/16/11

Permalink 01:28:02 pm, by fourth, 245 words, 3135 views   English (US)
Categories: General

Brookings Institution: The Constitution and Technology: How Far is Too Far?

Brookings Institution: The Constitution and Technology: How Far is Too Far? by Jeffrey Rosen, Nonresident Senior Fellow, Governance Studies:

Although we are early in the twenty-first century, breathtaking changes in technology are posing stark challenges to our constitutional values. From free speech to privacy, from liberty and personal autonomy to the right against self-incrimination, basic constitutional principles are under stress from technological advances unimaginable even a few decades ago, let alone during the founding era. In Constitution 3.0, we asked a group of provocative thinkers to imagine the ways in which technological change will challenge our constitutional and legal values in the year 2030.

Will privacy become obsolete, for example, in a world where ubiquitous surveillance is becoming the norm? Imagine that Facebook and Google post live feeds to public and private surveillance cameras, allowing 24/7 tracking of any citizen in the world. How can we protect free speech now that Facebook, Google, and other private intermediaries have more power than any king, president, or Supreme Court justice to decide who can speak and who can be heard? How will advanced brain-scan technology affect the constitutional right against self-incrimination? And on a more elemental level, should people have the right to manipulate their genes and design their own babies? Should we be allowed to patent new forms of life that seem virtually human? And we then asked our contributors to propose ways of translating and preserving constitutional values in the year 2030, in the face of dizzying technological change.

Permalink 06:27:54 am, by fourth, 611 words, 5963 views   English (US)
Categories: General

D.Minn.: After TSA plain view and property returned, it still is in “plain view” for the police later

TSA having seen cash, it was still legally in “plain view” even though it had been returned to defendant in the airport and was zipped up in his bag. United States v. Rosales, 2011 U.S. Dist. LEXIS 143264 (D. Minn. December 13, 2011):

As noted, the Court has already held that the TSA agent’s search of Rosales’s bag was lawful. Thus, the TSA agent was lawfully in a position to see the cash. As Rosales points out, though, the TSA agent did not seize the cash. Instead, the TSA agent returned Rosales’s property to him and let him go on his way. Rosales’s cash was later seized by airport police (not the TSA) only after Rosales voluntarily agreed to return to the screening area and speak with airport police officers (who had been told by the TSA that Rosales was carrying a large amount of cash, see Docket No. 329 at 4-5, 65-66, 68).

Nevertheless, the Court finds that the seizure was proper under the plain-view doctrine. The Supreme Court has upheld a search under analogous circumstances, explaining that “absent a substantial likelihood that the contents have been changed, there is no legitimate expectation of privacy in the contents of a container previously opened under lawful authority.” Illinois v. Andreas, 463 U.S. 765, 773, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983); see also United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 87-88 (2d Cir. 2002) (Sotomayor, J.) (holding that a police officer’s opening of a briefcase that had just been searched by airport security did not constitute an additional “search” within the meaning of the Fourth Amendment); United States v. $145,850 U.S. Currency, No. 10-71, 2010 U.S. Dist. LEXIS 77686, 2010 WL 3063814, at *6 n.2 (E.D. Va. July 30, 2010) (“That Arrington zipped up his suitcase and began to exit the airport is immaterial to whether the plain view justification for seizure continued to apply.”). In other words, after a container has been lawfully searched and its contents lawfully viewed in the course of that search, those contents are deemed to remain in plain view (even if they are put back in the container and carried off) up until the point that it becomes substantially likely that the contents of the container have changed. Cf. Andreas, 463 U.S. at 771-72 (“once a container has been found to a certainty to contain illicit drugs, the contraband becomes like objects physically within the plain view of the police, and the claim to privacy is lost” (footnote omitted)).

In this case, there is no substantial likelihood that the contents of Rosales’s bag changed between the time that the TSA agent allowed Rosales to leave the screening area and the time that airport police seized the cash. Although the record does not definitively establish the amount of time that passed between Rosales leaving and returning to the screening area, it appears to have been a matter of minutes; moreover, Rosales was nearby and apparently visible to TSA agents the entire time. See Docket No. 329 at 42, 48-49, 53-55; cf. Andreas, 463 U.S. at 767-68, 772-73 (holding that there was no substantial likelihood that the contents of a shipping container changed during the 30 to 45 minutes that it was in an apartment and out of the officers’ sight). In addition, given that Rosales was at the airport the entire time, it is reasonable to believe that he maintained his possessions in the bag in which he had packed them. Without any substantial likelihood that the contents of Rosales’s bag changed, therefore, the cash is treated as though it remained in plain view — as though Rosales had held it in an outstretched hand at all times, including while talking with airport police.

Permalink 06:16:26 am, by fourth, 201 words, 5939 views   English (US)
Categories: General

D.N.J.: An IRS agent is not required to tell a taxpayer when asking for consent that a criminal investigation may ensue

An IRS agent is not required to tell a taxpayer when asking for consent that a criminal investigation may ensue. United States v. Dilworth, 2011 U.S. Dist. LEXIS 142941 (D. N.J. December 12, 2011):

“A consent search is unreasonable under the Fourth Amendment if the consent was induced by the deceit, trickery or misrepresentation of the Internal Revenue Agent.” United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977). However, “the mere failure of a revenue agent (be he regular or special) to warn the taxpayer that the investigation may result in criminal charges, absent any acts by the agent which materially misrepresent the nature of the inquiry, do not constitute fraud, deceit and trickery.” Id. Importantly, “the record must disclose some affirmative misrepresentation to establish the existence of fraud, and the showing must be clear and convincing.” Id.

“Shuffling, scuffling sound inside the trailer” when police knocked was exigent circumstance for entry to prevent desctruction of evidence. United States v. Aguirre, 664 F.3d 606 (5th Cir. 2011).

Defendant was stopped in the area of a recent burglary because he matched the description given by the victims and was near the place. His stop and patdown were with reasonable suspicion. State v. McCormack, 132 Conn. App. 490, 33 A.3d 264 (2011).*

Permalink 12:15:58 am, by fourth, 492 words, 6121 views   English (US)
Categories: General

CT: Cell phone location ping not exigency without showing it was "real time"

While the police had probable cause to believe that a person was involved in a New Jersey homicide, they did not have probable cause for an entry into the bedroom of the house they entered. There was information that people were there, but not specifically the defendants. A cell phone ping put a particular phone at that address at the time, too, but unless it was shown to be “real time,” it wasn’t timely information. State v. Kendrick, 132 Conn. App. 473, 31 A.3d 1189 (2011):

After reviewing the record, we conclude that, under the totality of the circumstances existing at the time of entry into the bedroom, a reasonable, well-trained police officer would not have had reasonable grounds to believe that Singer was in the bedroom, or that the occupants of the bedroom would flee, destroy evidence, or, in the time necessary to procure a warrant, endanger the safety of others.

. . .

Here, in contrast, the police were not relying on either their own or an eyewitness’ affirmative identification of Singer. The lights in the bedroom were off, the door to the bedroom was slightly ajar and there is no indication in the record that the police could see the occupants of the bedroom. Rather, the trial court's limited findings, the testimony at the suppression hearing and the state’s position at oral argument reveal the following factors in support of the belief by the police that Singer was present in the bedroom at the time of the warrantless entry: (1) the cellular telephone ping information, (2) the general description given by the landlord and (3) Blanca Valvo’s statement that two African-American males were present in the apartment. Under the totality of the circumstances known to the police at the time of their entry into the bedroom, including but not limited to the absence of any specific identification by the landlord or Blanca Valvo of a light-skinned African-American male with tear drop tattoos on his face as one of the persons present in the apartment or the bedroom, we conclude that it was unreasonable for the police to assume that Singer was present in the apartment or the bedroom and posing an imminent threat of harm to its occupants. Accordingly, it was improper for the court to conclude that an exigency justified the warrantless entry.

Thus, although it may be clear that the police had probable cause to believe that Singer had committed the New Jersey homicide, that he was armed and that he posed a continuing threat to others, there is no evidence in the record that persuades us that the police had a reasonable basis to believe that an immediate warrantless entry of the bedroom was necessary. Rather, at the time the New Jersey police entered the bedroom, their belief that Singer was armed, present, and posing an immediate danger to their safety and the safety of those in the residence was premised on a string of attenuated speculation without any positive identification of Singer.

Permalink 12:03:07 am, by fourth, 214 words, 5947 views   English (US)
Categories: General

N.D.Iowa: When government says suppression motion is moot, it is still precluded from using evidence

When the government says a suppression motion is moot because it will not offer evidence, it is still precluded from using it, but the motion is denied as moot. United States v. Armstead, 2011 U.S. Dist. LEXIS 143200 (N.D. Iowa December 13, 2011):

As a practical matter, it is unclear whether there is a significant difference between granting the motion to suppress or denying the motion as moot (based on the Government's promise not to offer the evidence during its case in chief). Under either alternative, the Government is precluded from offering into evidence during its case in chief the items seized during the warrantless search. When the Government agrees not to offer evidence which is the subject of the motion to suppress, however, it would appear that the common practice is to deny the motion as moot. Accordingly, the Court recommends that outcome here.

[Note: When the government says the motion is moot, it is agreeing not to offer the evidence. If the government later wants to use the evidence, a suppression motion would still be required.]

The district court found two alternative grounds to sustain the search and seizure, but defendant appealed only one, and that was a waiver of the other, so that is affirmed. United States v. Sosa-Almontes, 451 Fed. Appx. 441 (5th Cir. 2011).

12/15/11

Permalink 08:43:35 am, by fourth, 219 words, 6029 views   English (US)
Categories: General

CA4: Reasonable to assume subject in arrest warrant at home at 7 a.m.

It is reasonable to assume that the subject of an arrest warrant was home at 7 a.m., absent evidence to the contrary. United States v. Felder, 457 Fed. Appx. 316 (4th Cir. 2011) (unpublished):

Courts routinely rely on the time of day as a key factor in determining whether officers could reasonably believe the subject of an arrest warrant was home. E.g., United States v. Edmonds, 52 F.3d 1236, 1248 (3d Cir. 1995), vacated on other grounds, 80 F.3d 810 (3d Cir. 1996) (reasoning that 6:45 a.m. was “early enough that it was unlikely someone living in the apartment would have already departed for the day”). The Eleventh Circuit has noted that “officers may presume that a person is home at certain times of the day—a presumption which can be rebutted by contrary evidence regarding the suspect’s known schedule.” United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995); see also United States v. Bervaldi, 226 F.3d 1256, 1267 (11th Cir. 2000) (“It was reasonable to believe, in the absence of contrary evidence, that [the suspect] would be at his residence at 6:00 in the morning.”). Similarly, the D.C. Circuit has concluded, without citing any other factors, that “the early morning hour was reason enough” for officers to believe a defendant was home when they attempted to execute an arrest warrant between 6:00 and 6:30 a.m. Thomas, 429 F.3d at 284, 286.

Permalink 08:20:05 am, by fourth, 162 words, 5923 views   English (US)
Categories: General

N.D.W.Va.: Inventory policy does not have to be detailed if it otherwise complies with Bertine

An inventory policy does not have to be detailed if it otherwise complies with Bertine. United States v. Davis, 2011 U.S. Dist. LEXIS 142923 (N.D. W.Va. December 12, 2011)*:

While it is true that there is not a written precise step-by-step process as to how to perform an inventory of a seized vehicle outlined in the Department’s policy, it does require the following:

1. the officer must have “lawful custody” of the vehicle; and

2. “[t]he scope of the inventory shall be limited to those parts of a vehicle likely to conceal important, hazardous, or valuable items including, but not limited to, the passenger compartment, the trunk, and glove compartment.”

The undersigned concludes the above quoted limitations in totality constitute the type of “standardized criteria” referred to in Bertine, Id., and certainly acts to “‘curtail the discretion of the searching officer so as to prevent searches from becoming a “ruse for a general rummaging in order to discover incriminating evidence.’” Banks, supra at 738, 739.

Permalink 08:16:31 am, by fourth, 150 words, 5911 views   English (US)
Categories: General

E.D.Va.: Wife's consent in Africa to seizure of weapon was valid where trial in U.S.

Defendant was accused of domestic battery while on a diplomatic mission in Africa. Defendant’s wife consented to a search of the house, and the seizure of a doll house that was used as a weapon was by her consent. United States v. Makalou, 2011 U.S. Dist. LEXIS 142538 (E.D. Va. December 12, 2011).*

Defendant’s traffic stop was based on PC an offense occurred, and the defendant consented to a search of the vehicle thereafter. United States v. Crump, 2011 U.S. Dist. LEXIS 142363 (N.D. Ga. December 12, 2011), R&R 2011 U.S. Dist. LEXIS 142778 (N.D. Ga. November 21, 2011).*

While the state trooper was going to issue a warning ticket, he still went though the criminal history checks, and that was not unreasonable. In the course of that, the occupant's travel plans became inconsistent, and that led to a valid request for consent. United States v. Buenrostro, 454 Fed. Appx. 523 (8th Cir. 2011) (unpublished).*

Permalink 07:50:33 am, by fourth, 350 words, 6006 views   English (US)
Categories: General

CA10: Officer not limited to traditional weapons in a patdown

Defendant had no paperwork on him after a stop of his car, and he assented to a patdown. The officer felt two long hard objects in the pockets but couldn’t determine what they were. After defendant refused to explain, the officer removed them finding glass pipes with drug residue. Removal of the pipes was valid. United States v. Rochin, 662 F.3d 1272 (10th Cir. 2011):

And we don’t hesitate to hold that test satisfied here. A reasonable officer could have concluded that the long and hard objects detected in Mr. Rochin’s pockets might be used as instruments of assault, particularly given that an effort to ask Mr. Rochin about the identity of the objects had proved fruitless. To be sure, the pipes Mr. Rochin turned out to have aren’t conventionally considered weapons. But a reasonable officer isn’t credited with x-ray vision and can’t be faulted for having failed to divine the true identity of the objects. And neither is “the scope of a Terry frisk ... limited to [traditional] weapons.” Holmes, 385 F.3d at 791. During a lawful pat down an officer may remove not just objects that seem to be guns, knives and the like, but also any other objects that he reasonably thinks “might be used as instruments of assault” against him or others who may be in the area. Sibron, 392 U.S. at 65. And two hard and long objects filling a suspect’s trouser pockets “fit that description well,” better than the “hard, square object” at issue in Holmes, 385 F.3d at 791, and better than many other objects courts have held officers may lawfully remove during Terry stops, see, e.g., United States v. Rahman, 189 F.3d 88, 120 (2d Cir. 1999) (envelope); United States ex rel. McNeil v. Rundle, 325 F. Supp. 672, 677 (E.D. Pa. 1971) (watch). None of this is to say we necessarily endorse (or reject) the conclusions reached about the objects at issue in these other cases. It is instead only to emphasize by comparison how much more (objectively reasonable) reason there was for an officer to worry about the objects in the case at hand.

Permalink 07:38:58 am, by fourth, 325 words, 3043 views   English (US)
Categories: General

Today is Bill of Rights Day

The 220th anniversary of the ratification of the Bill of Rights. Bill of Rights Day was designated in 1941, seven days after the declaration of war in WWII. They weren't adopted overnight--they were referred to the thirteen states 27 months earlier. [Update: see Cato.org, too.]

Still, too few people even recognize the Bill of Rights (1991 here and 1998 here). This is remarkable, except when one considers the United States is interested in spreading democracy abroad while most of its own citizens do not understand its fundamental documents.

Look at the members of state legislatures and Congress so willing to give up Fourth Amendment rights of all in the name of some expediency, be it fighting terrorism or drug testing recipients of government funds. This is the misguided belief that others losing Fourth Amendment rights doesn't mean anything as to the country as a whole. As to the recipients of government funds, there is no indication of a problem, but that doesn't stop legislators (see posts here, here, here). I remember one state legislator saying that his constituents "really wanted" this. Why don't we just get over it and drug test every recipient of government funds, starting with the Governor of Florida down to all state legislators, all government workers, welfare recipients, government contractors, CJA lawyers, judges, etc?

Because we can't under Skinner and Von Raab, that's why; and none of these clowns knows it because, while legislators are presumed to know what the courts have said on an issue, that only means that they are actively defying the Fourth Amendment, or just don't care about the Constitution when it is the rights of somebody else, notwithstanding that destroying the rights of one can quickly lead to destroying the rights of all.

Happy Bill of Rights Day. Enjoy it while you still can.

[On a related note: On FoxNews's "Fox and Friends" this morning, "Today in History" is the release of Michael Jackson's "Black or White" video. Sigh.]

12/14/11

Permalink 03:15:36 pm, by fourth, 101 words, 5926 views   English (US)
Categories: General

Law.com: "Government agrees to place conviction in FCPA case on hold"

Law.com: Government agrees to place conviction in FCPA case on hold by Amanda Bronstad:

Prosecutors in a disastrous Foreign Corrupt Practices Act case agreed to toss the conviction of a third individual defendant in light of a federal judge's dismissal of related charges against two co-defendants for prosecutorial misconduct.

. . .

Then, on Dec. 1, U.S. District Judge Howard Matz in Los Angeles threw out the convictions of the company and the two executives. He cited false statements that an FBI agent made to the grand jury and false information in affidavits submitted by the government for search-and-seizure warrants, among other wrongdoing.

Permalink 07:05:44 am, by fourth, 401 words, 5900 views   English (US)
Categories: General

CO: One prescription pill in pocket is not PC for search of car

The finding of one pill and a small bindle of drugs for personal use on defendant’s person during a traffic stop did not justify a search of his car under search incident or the automobile exception. There was no probable cause as to the car under Gant and Thornton because what was possessed here suggests nothing about the car. People v. Coates, 266 P.3d 397 (Colo. 2011):

The People offer no specific evidential hypothesis from which a fair probability of more contraband could be inferred, and we can discern none. While being wrapped in a piece of paper might suggest that the driver’s lone pill was not lawfully prescribed for him by a practitioner, see § 18-18-302(3)(c), C.R.S. (2011), the pill itself was clearly a prescription medication rather than contraband by its very nature. And whether lawful or not, possession of the single prescription pill in this case implied that the driver was the ultimate user and nothing more. Cf. Wimberly v. Superior Court, 16 Cal. 3d 557, 128 Cal. Rptr. 641, 547 P.2d 417, 427 (Cal. 1976) (small quantity of marijuana found in car indicative of personal use rather than distribution). As the People seem to acknowledge, nothing in the driver's possession of a single prescription pill of Xanax, standing alone, created a fair probability that he had more of the same, and even if so, that he would be transporting it in the vehicle he was illegally driving rather than carrying any other pills he might have in his pocket, along with the sole pill discovered by the police.

Even assuming some degree of articulable suspicion, however, it is difficult to explain how the nervousness of an underage driver, stopped while unlawfully possessing a prescription drug, and his claim to have had a prescription for that drug, could in any way strengthen the inference, much less elevate suspicion to a “fair probability,” that more contraband would be found in the defendant's vehicle. The reactions of the driver in this case would have been just as naturally explained simply by his having been stopped while driving illegally, in unlawful possession. See People v. Goessl, 526 P.2d 664, 665, 186 Colo. 208, 211 (1974). Nothing suggested the passengers were aware that the driver was carrying contraband, much less that they themselves were also in possession or acting as his suppliers. In fact, the testifying officer conceded that he had no other reason to believe more drugs would be found in the vehicle.

Permalink 06:56:20 am, by fourth, 328 words, 5908 views   English (US)
Categories: General

Cal.2d: Visit to doctor's waiting room was not a search

In a Medi-Cal investigation of a doctor for false billing for cheaper IUDs, investigators went to his waiting room and requested that he provide documentation within ten days as required by state law. The doctor mailed the invoices. The visit to the waiting room was not an illegal search. People v. Guzman, 201 Cal. App. 4th 1090, 134 Cal. Rptr. 3d 66 (2d Dist. 2011):

At the preliminary hearing, appellant made a section 1538.5 motion to suppress the invoices as the fruit of an unlawful search and seizure. Appellant's counsel conceded that the investigators’ entry into the waiting room did not violate the Fourth Amendment “because … the waiting room area … is open to the public.” Counsel was correct. (See People v. Pham (1987) 189 Cal.App.3d 1531, 1533 [235 Cal. Rptr. 99].) Counsel argued that the Fourth Amendment violation occurred when, without advance notice, the investigators requested the invoices: “I think any of us can go into a doctor[']s waiting room cause it's almost like a public area. But when you go in unannounced and then you say give me documents, that exceeds the 4th amendment.”

. . .

Even were we to assume that the unannounced visit to appellant's office was unlawful, the invoices would not be subject to suppression as the fruit of an unreasonable search and seizure. The remedy of suppression is permissible only when compelled by the Fourth Amendment. (In re Lance W. (1985) 37 Cal.3d 873, 888–889 [210 Cal. Rptr. 631, 694 P.2d 744].) There is no authority supporting the proposition that an otherwise lawful request for records at a doctor's office violates the Fourth Amendment merely because of noncompliance with a statutory notice requirement. Even if such an authority existed, we agree with the magistrate's analysis. Suppression of evidence is not required because the investigators did not demand the immediate production of the records. Instead, they gave appellant seven days to produce the invoices. By so deferring the production of the documents, the investigators substantially complied with the notice requirement. They did not disrupt the operation of appellant's medical practice.

Permalink 05:53:57 am, by fourth, 233 words, 5916 views   English (US)
Categories: General

OH11: Not stopping immediately and getting out of car to walk to officer was RS

Defendant did not stop as soon as the officer put on his lights, and when he did, he approached the officer which made the officer suspicious that there was something in the car he didn’t want the officer to see or smell. He was nervous, and his hands were shaking. The detention was not too long, and the drug dog arrived within six minutes. State v. Simmons, 2011 Ohio 6339, 2011 Ohio App. LEXIS 5219 (11th Dist. December 12, 2011)*:

Mr. Simmons' expression of nervousness, coupled with his unusual behavior of not pulling over immediately when the lights were activated, and then turning left to parking in an area not designated for parking and exiting his car to approach the police officer, provided Officer Burrington with an articulable reasonable suspicion to extend the detention and perform a K-9 sniff. See State v. Sherrod, 11th Dist. No. 2009-L-086, 2010 Ohio 1273 (holding that a totality of circumstances similar to the case sub judice justified continued detention of the appellant for the purposes of conducting a K-9 sniff). The facts changed, and so did the officer's ability to continue detaining Mr. Simmons.

As the officer approached defendant’s car, he saw a “furtive movement” of handling a pipe and hiding it and putting his hand under the dash more than once. Since the officer could see the pipe, that was probable cause. State v. Aaron, 2011 Ohio 6309, 2011 Ohio App. LEXIS 5176 (6th Dist. December 9, 2011).*

Permalink 05:39:07 am, by fourth, 597 words, 5934 views   English (US)
Categories: General

W.D.La.: Stop, arrest, and search on anonymous tip was insufficient

The stop of defendant’s airplane in Louisiana was without probable cause, and the search was suppressed. A local police officer told an operator at a small airport to be on the look out for suspicious airplanes and conduct. An anonymous tip to some other officer from the operate led to innocuous conduct being parlayed into suspicion of crime, and it wasn't. Officers "met Morgan's plane with weapons drawn threatening to shoot. They ordered the occupants out, placed them face down on the tarmac and handcuffed them. After they were handcuffed they were allowed to sit on the tarmac separated from each other, immediately adjacent to an armed law enforcement officer until the air interdiction agents arrived." Understatement of the month: "This show of force would make any reasonable person believe that he was not free to leave." United States v. Morgan, 2011 U.S. Dist. LEXIS 142065 (W.D. La. December 8, 2011)*:

The totality of the circumstances reveals that the officers of the St. Landry Parish Sheriff’s Department did not have probable cause to arrest Morgan and the passengers on his plane. Agent Evans testified that all she informed the Air and Marine Operations Center was that she needed a K-9 and personnel assistance to detain the occupants in Opelousas until they arrived. She also advised them that a source contacted her and said individuals at the Victoria airport were acting strangely, smelled like marijuana, that there were “possibly two illegal aliens” (which she surmised from the report of the two Hispanic males) and they needed to make sure everything was “on the up and up.” Although nobody from the Sheriff's Department who participated in the actual arrest testified, according to Agent Evans this was the only information that would have been in the possession of the Sheriff's Department at the time of the arrest. However, even if all of the information in the possession of Agent Evans is imputed to the Sheriff’s Department, it still does not rise to the level of probable cause as she candidly admitted.

The evidence presented was that Agent Evans received an anonymous tip from someone at the Victoria, Texas airport whose reliability she could not verify other than to verify the itinerary. This source reported that the passengers on Morgan's airplane were “acting strangely,” but neither Agent Evans nor the source clarified what actions constituted “acting strangely,” what that description meant or to whom this observation applied. The source said the plane occupants smelled of marijuana, however, Agent Evans did not know on which day the occupants allegedly smelled of marijuana, the day they arrived, the day they left or both. The source said the pilot purchased gasoline with cash which Agent Evans testified was a “red flag” that the pilot was trying to avoid a paper trail. However, the amount of gasoline purchased with cash was a relatively small amount — $155.20 — and there is no evidence that any effort was made by Morgan to destroy the paper trail for the purchase. On the contrary, the receipt introduced into evidence identified the tail number of the plane, the amount of the purchase, and the date and time it was purchased. From this information, the owner of the plane could be readily identified. Yet Agent Evans did not identify the owner until she got to the airport in Opelousas. The source said Morgan dropped off the two women passengers in Victoria, flew to McAllen, then returned with two additional men who appeared to be Hispanic. Agent Catalan confirmed that there is an Hispanic population in McAllen that is legally in this country.

12/13/11

Permalink 04:36:34 pm, by fourth, 111 words, 5940 views   English (US)
Categories: General

WaPo: "FBI turns down request for info. on Carrier IQ"

WaPo: FBI turns down request for info. on Carrier IQ by Hayley Tsukayama:

The Federal Bureau of Investigation has denied a request regarding Carrier IQ, a piece of software found on smartphones and designed to send information on handsets to carriers. The request, filed by reporter Michael Morisy of Muckrock News under the Freedom of Information Act, asked for “manuals, documents of other written guidance used to access or analyze data” gathered by any Carrier IQ program.

In denying the request, the FBI said it had information but could not disclose it because it is considered “law enforcement records.” In other words, they’re vital to some kind of ongoing investigation.

Permalink 06:13:40 am, by fourth, 440 words, 5986 views   English (US)
Categories: General

IN: SW for surveillance recorder was based on probable cause from autopsy not matching defendant's version of death

Defendant was convicted of murdering his wife. The search warrant for defendant’s home surveillance system was based on probable cause and was not based on stale information. While it was a close case, doubts are resolved in favor of the search warrant, and it did not violate the Fourth Amendment. As to the stale information, it was excised from the affidavit and the remainder still provided probable cause. Pattison v. State, 958 N.E.2d 11 (Ind. App. 2011):

In summary, setting aside stale information and uncorroborated hearsay, the probable cause affidavit indicates that an autopsy produced evidence that conflicted with Pattison's explanation for Lisa's death, that Pattison and Lisa were having marital problems to the point that Pattison had filed for divorce, and that a camera surveillance system may have recorded footage outside of the Pattisons' home on the day that Lisa died. We acknowledge that this is a close case. However, in determining whether an affidavit provided probable cause for the issuance of a search warrant, doubtful cases are to be resolved in favor of upholding the warrant. Mehring v. State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008), trans. denied. Thus, reasonable inferences drawn from the totality of the evidence indicate that there was a fair probability that evidence of murder would be found in the surveillance system, and the trial court had a reasonable basis to issue the search warrant. The admission of the surveillance system equipment and video into evidence did not violate the Fourth Amendment.

[Note: Probable cause is probable cause that evidence will be found, and proving a crime isn’t required. So, I don’t think that this is that close. The autopsy did not match defendant’s explanation. That alone should be enough to get the search warrant for the surveillance system to see if there is something that might contradict the defendant’s version. I’m not one to frivolously issue search warrants, but the law has always encouraged resort to search warrants, not discourage them. The moral to the story is that surveillance systems never seem to help somebody suspected of a crime. Cameras often lead to no-knock search warrants in drug and weapons cases, and cameras strongly suggest evidence can be found in the recorder. In a drug sale case, the recorder would have evidence of who is coming and going. It’s sort of like a burglar alarm: If you have a burglar alarm on your house, you’ve invited the police any time the alarm goes off. So, if you’re going to have a burglar alarm, don’t have a grow operation or contraband left out in plain view.]

Permalink 05:49:18 am, by fourth, 326 words, 5911 views   English (US)
Categories: General

OH2: Search between mattress and box spring under emergency aid entry unreasonable

While the entry was valid on exigent circumstances for a mistaken but reasonable belief of a person in need of aid, searching between the mattress and box springs for that person was not reasonable on this record. State v. Hunter, 2011 Ohio 6321, 2011 Ohio App. LEXIS 5186 (2d Dist. December 9, 2011):

[*P3] We conclude that the police officers lawfully entered the residence without a warrant, based upon anonymous 9-1-1 reports that a person was being held captive in the residence, corroborated by the occupants of the residence ignoring the responding police officers' repeated attempts to gain their attention and, after finally answering the door, immediately attempting to close the door.

. . .

[*P40] We conclude that the evidence in the record of the suppression hearing, even when viewed in a light most favorable to the State, is too sparse to support the trial court's finding that the firearms were found under a bed. Detective Reed did testify that firearms were found in an area where a person could be hidden, but it appears that this was by report, not within his personal knowledge, and the conclusion that the firearms were found in an area where a person could be hidden does not affirmatively establish where the firearms were found. The only reasonable conclusion that we can draw from the sparse evidence at the suppression hearing was that the firearms were found between the mattress and the box springs.

[Note: If officers are looking for a hiding suspect, searches have often been permitted where the officer lifts the mattress off the box springs because it is a recognized hiding place. Here, however, it was for a person in need of aid, and it was argued that the facts of the search did not support this search. Seriously: Would a person in need of aid be hiding under the mattress? A fleeing felon, sure. I expect this one will go up to the Ohio Supreme Court. Here, weapons were found under the mattress.]

Permalink 12:12:36 am, by fourth, 122 words, 6060 views   English (US)
Categories: General

Slatest & LAT: Police Use Predator Drone To Nab North Dakota Suspects

The Slatest: Police Use Predator Drone To Nab North Dakota Suspects; Operation leads to first known arrests of U.S. citizens with aid of unmanned spy planes by Will Oremus:

Drones: They’re not just for hunting foreigners anymore.

The Los Angeles Times reports that police in North Dakota this past summer made what are believed to be the first arrests of U.S. citizens with the help of a Predator spy drone.

Nelson County Sheriff Kelly Janke called in the unmanned, unarmed aircraft after he was chased off of a family farm by three men with rifles, the Times explains. It circled the 3,000-acre plot, tracked down the suspects and showed they were unarmed, allowing police to converge and arrest them.

Permalink 12:02:16 am, by fourth, 216 words, 5943 views   English (US)
Categories: General

N.D.Ind.: Consent to search a closed container for stolen items and drugs did not permit searching a memory card

Defendant consented to a search of a case for stolen items and drugs. That did not include a search of a memory card found. United States v. Brooks, 2011 U.S. Dist. LEXIS 141869 (N.D. Ind. December 9, 2011):

The court finds that Mr. Brooks consented to the search of the Sentry case while he was in custody in May 2010. The scope of that consent was limited to the objects of the search: stolen items and items related to drugs. The December 2011 search of the contents of the memory card exceeded the scope of the consent search, and wasn't done pursuant to a warrant or another exception to the warrant requirement. The contents of the memory card are not admissible at Mr. Brooks's trial.

The record [without saying what it says] supports the finding of consent. United States v. Escue, 457 Fed. Appx. 295 (4th Cir. 2011) (unpublished).*

Plaintiff’s arrest was with arguable probable cause that plaintiff created an illegal state lottery, and summary judgment was properly granted. Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011).*

The officer observed defendant make a wide turn and almost hit a curb, and that justified a stop for suspicion of DUI. The officer acted within his discretion of getting a DUI suspect out of the car. United States v. Smith, 448 Fed. Appx. 936 (11th Cir. 2011) (unpublished).*

12/12/11

Permalink 08:48:58 pm, by fourth, 375 words, 6023 views   English (US)
Categories: General

SCOTUS cert grant in Arizona "papers please" law

Cert granted today in Arizona v. United States, 11-182. It is not directly a Fourth Amendment case, but it probably will implicate probable cause and reasonable suspicion and suspected illegal aliens.

From ScotusBlog.com:

Arizona’s governor, Janice Brewer, in taking the fate of S.B. 1070 on to the Supreme Court, is portraying the case as a major test of the sovereignty of the states to make their own social policies under traditional “police power” principles. The federal government, which tried unsuccessfully to persuade the Court not to get involved in the case at this point, is treating the case as a test of whether states may adopt their own immigration policies that frustrate specific goals of federal policy.

With Justice Kagan not taking part, presumably because she had something to do with the issue in her former role in the Obama Administration Justice Department, there is the possibility that the eight participating Justices will wind up split 4-4 in the case. That would have the effect of simply upholding a Ninth Circuit Court decision, but without opinion and without setting a nationwide precedent. The practical effect of that would be that Arizona could not enforce four key provisions of S.B. 1070, blocked by both the Ninth Circuit and, earlier, by a federal District judge in Arizona.

The four provisions at issue are:

** A requirement that police in making any stop or arrest to try to determine the individual’s legal right to be in the U.S., if the officer has a “reasonable suspicion” of illegality. If arrested, the individual cannot be released until his legal status is verified by the federal government. That is the law’s Section 2(B).

** A provision making it a crime under state law for an individual to intentionally fail to obtain and carry legal immigrant papers with him while in Arizona (Section 3).

** A provision making it a misdemeanor for an undocumented immigrant to apply for a job, publicly solicit a job, or actually work in Arizona (Section 5[C]).

** And, a provision that allows police to arrest without a warrant any person for whom the officer has “probable cause to believe” that the individual has committed any crime, anywhere, that would make that individual subject to being deported (Section 6).

Permalink 06:49:15 am, by fourth, 245 words, 6032 views   English (US)
Categories: General

E.D.Pa.: Court finds officer's plain view claim unbelievable

Defendant was stopped for a traffic offense and the officer claimed that a gun was in plain view, justifying its seizure. The court finds that incredible. United States v. Zamichieli, 2011 U.S. Dist. LEXIS 141610 (E.D. Pa. December 9, 2011)*:

Nonetheless, Zamichieli argues that the search and seizure of the gun during the traffic stop violated his Fourth Amendment rights. Weighing the evidence presented, the Court finds the officers' version of the story implausible. There was no reason for Zamichieli to turn on the dome light when he had already opened the driver-side window to speak with Officer Victor and was not asked to provide his paperwork—nor is it likely that Zamichieli would do so with a gun sitting in plain view on the front passenger seat. Without the dome light on, it would be nearly impossible for Officer Andrews to see a gun on the front seat through a closed, tinted window in the dark of night. The Court therefore credits Zamichieli's testimony that the gun was under the front passenger seat. Because the gun was not in plain view, the only way for the officers to find it was to search the vehicle. Absent an applicable exception, the officers were not permitted to conduct a warrantless search of the Impala without probable cause to believe it contained evidence of criminal activity. See United States v. Burton, 288 F.3d 91, 100 (3d Cir. 2002). The Government has not met its burden of showing that the search was reasonable.

Permalink 06:42:29 am, by fourth, 146 words, 6165 views   English (US)
Categories: General

CA4: Terry déjà vu at a convenience store

Officers staked out convenience store that was particularly vulnerable to being robbed, and they observed defendant acting suspiciously late in the night inside the store. It was factually similar to Terry where the suspects were casing a jewelry store like they were going to rob it. United States v. Glover, 662 F.3d 694 (4th Cir. 2011).*

Fellow officer rule applies to traffic stops. The fellow officer’s information was from an established CI. The trial court found that defendant consented to a search of his car. State v. Allen, 79 So. 3d 1220 (La. App. 3d Cir. 2011).*

Plaintiff abandoned property before the search occurred. The claim that the affidavit was misleading or failed to include exculpatory evidence was denied, and summary judgment was properly granted. The reasonable construction of the lease was that plaintiff took stuff that didn’t belong to her. Blanchard v. Lonero, 452 Fed. Appx. 577 (5th Cir. 2011) (unpublished).*

Permalink 06:24:53 am, by fourth, 263 words, 6110 views   English (US)
Categories: General

CA4: Search of outgoing prisoner mail was reasonable

Search of outgoing prisoner mail was valid as ongoing concern about defendant's secreting stolen evidence. United States v. Cook, 457 Fed. Appx. 285 (4th Cir. 2011) (unpublished):

[W]e find that the district court did not err in denying Cook’s motion to suppress because the search of his outgoing mail by jail officials did not violate the Fourth Amendment. We have held that a prison official may constitutionally conduct a warrantless search of an inmate’s outgoing mail so long as the search is “reasonably related to legitimate penological interests.” Altizer v. Deeds, 191 F.3d 540, 547 (4th Cir. 1999) (internal quotation marks omitted). As the U.S. Supreme Court has often observed, the investigation and prevention of ongoing illegal inmate activity furthers the legitimate penological objectives of prison security and inmate rehabilitation. See Thornburgh v. Abbott, 490 U.S. 401, 411-12, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989); Procunier v. Martinez, 416 U.S. 396, 412-13, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974); see also United States v. Workman, 80 F.3d 688, 698-99 (2d Cir. 1996).

Here, jail officials’ search of Cook’s mail was part of an effort to prevent him from further secreting or trafficking in stolen goods. Because their actions were based on a reasonable belief that the correspondence in question contained information regarding such criminal activity, the search of Cook’s mail was reasonably related to a legitimate penological interest and did not offend his Fourth Amendment rights.

The officer had reasonable suspicion to grab defendant’s arm to talk to him. When defendant fled the officer had probable cause to arrest. United States v. Flint, 2011 U.S. Dist. LEXIS 141224 (D. Utah December 8, 2011).*

Permalink 06:11:26 am, by fourth, 201 words, 5898 views   English (US)
Categories: General

IA: Private entrance to business had a REP

A private entrance to a business was an area where the defendant had a reasonable expectation of privacy. The fact it was a screen door was still a door and did not invite an entry. State v. Dierks, 2011 Iowa App. LEXIS 1422 (December 7, 2011):

Under the record presented, we conclude the door was a private, not a public, entrance to the business. It makes no difference that the security door was open; the screen door to the private entrance was closed. There was no “open gate” inviting entry. See Tolar, 268 F.3d at 532; see also Sandoval-Vasquez, 435 F.3d at 742-44. Based on these specific facts and circumstances, we conclude Dierks had a legitimate expectation of privacy in the area of his business premises where he was confronted by Quandt.

Defendant gave consent to search his car on the street and nothing incriminating was found. He was transported to the police station, and his car was driven there so he’d have access to it. At the police station, another officer searched the car again, and this was within the original consent. The court surveyed cases from several states reaching the same result. People v. Valencia, 201 Cal. App. 4th 922, 136 Cal. Rptr. 3d 25 (2d Dist. 2011).

12/11/11

Permalink 08:52:36 am, by fourth, 695 words, 6007 views   English (US)
Categories: General

CA5: OFAC seizure subject to balancing of interest was reasonable

OFAC blocking order was a seizure but was not challenged, and a balancing of interests support the government’s actions so the evidence was not suppressed. United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011):

We agree with the Ninth Circuit’s assessment of the debilitating effect of a blocking order, but because the defendants have not challenged the order in this case, our analysis begins at a different point than Al Haramain [posted here], and the applicable balancing of interests yields a different result. Here, the unchallenged blocking order gave the Government complete control over both HLF’s assets and the premises and reduced the defendants’ interests to a minimum. As the Ninth Circuit recognized in Al Haramain, the significant effects of a blocking order are “by design.” 660 F.3d 1019, Id. at * 22 (“[T]here is no limited scope or scale to the effect of the blocking order.”). Indeed, a “designation [as a SDT] is not a mere inconvenience or burden on certain property interests; designation indefinitely renders a domestic organization financially defunct.” 660 F.3d 1019, Id. at *10. Further, “[a] blocking order effectively shuts down the private entity.” 660 F.3d 1019, Id. at *22.

The text of the blocking order in this case demonstrates the Government’s control and the virtual elimination of any possessory and privacy interests held by the defendants in the assets and premises of HLF. The blocking order expressly directed all persons to leave the offices. It prohibited the defendants from engaging in any activity involving HLF’s property, and it even prohibited the defendants from occupying the premises without OFAC’s prior authorization. The warrantless imposition of these conditions has not been contested here. Unlike in Al Haramain, we are therefore faced with a presumptively valid order that stripped the defendants of any possessory interests in the HLF offices and assets. Any remaining privacy interest that the defendants had was minimal, and, as we discuss below, was protected by the subsequent warrant obtained prior to the Government’s search.

Balanced against the defendants’ significantly diminished privacy interests is the Government’s “extremely high” interest in preventing actions that could facilitate terrorism. Al Haramain, 660 F.3d 1019, 2011 WL 4424934, at *23. An important purpose of a blocking order is to prevent asset flight, which was a genuine concern in this case. The evidence here showed that the defendants had been funneling millions of dollars to organizations associated with Hamas. They were capable of quickly transferring large sums of money by wire transfer to overseas bank accounts controlled by HLF and others. These accounts were in locations such as the West Bank and Gaza, where they were likely to be beyond the reach of a judicial warrant. The Government therefore had a strong interest in moving quickly to prevent the flight of assets that could be used to further terrorist activity. See 660 F.3d 1019, id. at *23 (recognizing that “'asset flight’ is a legitimate concern”).

In addition to considering the competing interests of the defendants and the Government, we also consider the nature of the Government’s intrusion into the defendants’ interests. We address here an uncontested blocking order that has comprehensively restricted the defendants’ privacy and possessory interests. Viewed objectively, therefore, we believe that the Government’s mere transfer of HLF’s property from the offices to a storage facility pursuant to the blocking order, without invading the contents of the material, did not intrude into the defendant’s privacy or possessory rights any more than was reasonable under the initial blocking order. See Jacobsen, 466 U.S. at 115 (“The reasonableness of an official invasion of the citizen’s privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred.”).

We stress the importance of the fact that the Government took custody of the property without searching it and secured it to prevent unauthorized use, loss, or destruction. As we have said, the Government was already permitted by IEEPA and the blocking order to control the property and the premises, and its transfer of the assets to storage did not further circumscribe the defendants’ interests. Had the Government actually examined the property before obtaining a warrant, this might be a different case.

Permalink 08:33:10 am, by fourth, 176 words, 5910 views   English (US)
Categories: General

WA explains attenuation as to witnesses

Police violated defendant’s constitutional privacy rights by looking at a hotel registry, but the witnesses' testimony was attenuated from it. State v. Smith, 165 Wn. App. 296, 266 P.3d 250 (2011):

Relevant factors we consider in determining whether the witness's testimony is sufficiently attenuated from the police misconduct are: (1) the length of the “road” between the unlawful police conduct and the witness's testimony; (2) the degree of free will the witness exercised; and (3) whether exclusion would permanently disable the witness from testifying about relevant and material facts, even though her testimony might be unrelated to the original illegal search’s purpose or the evidence discovered during it. State v. Childress, 35 Wn. App. 314, 316, 666 P.2d 941, review denied, 100 Wn.2d 1031 (1983). Additional factors we consider to determine attenuation between police misconduct and witness testimony are: (1) the witnesses’ stated willingness to testify; (2) the role the illegally-seized evidence played in gaining the witnesses’ cooperation; (3) the proximity between the illegal behavior, the witnesses’ decisions to cooperate, and the actual trial testimony; and (4) the police motivation in conducting the search. State v. Stone, 56 Wn. App. 153, 162, 782 P.2d 1093 (1989) ...

Permalink 08:28:14 am, by fourth, 202 words, 5964 views   English (US)
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OR: Defendant's negotiating conditions of consent showed it voluntary

Defendant consented to search after negotiating with officers to sit without handcuffs, smoke, put away his dogs, and not have the officers ransack his house. He invoked his right to counsel, too, but that did not make the consent invalid. State v. Hatfield, 246 Ore. App. 736, 268 P.3d 654 (2011):

After defendant requested an attorney, McCarley again explained to him that, if he did not consent to a search of his residence, the officers would apply for a search warrant. Defendant “thought for a moment” and asked McCarley whether, if he gave consent, he would be permitted to sit on his couch with his handcuffs removed, put away his dogs, and smoke a cigarette; he also asked whether the officers would “tear apart his house.” McCarley agreed to defendant’s requests and told him that the officers would not ransack the house. Defendant consented to a search of his residence under those conditions.

The officer had probable cause to search the car and the containers inside it, including defendant’s backpack, after seeing in plain view a marijuana pipe in the car and noting defendant’s nervous behavior with his backpack when the officer began searching the car. State v. Smith, 152 Idaho 115, 266 P.3d 1220 (App. 2011).*

Permalink 08:02:55 am, by fourth, 152 words, 5915 views   English (US)
Categories: General

D.Md.: PC for SI extended to cell phone in drug case

Officers had probable cause to stop and search defendant, including his cell phone which was being used to communicate with co-conspirators. United States v. Johnson, 2011 U.S. Dist. LEXIS 141358 (D. Md. December 7, 2011).*

A FedEx employee opened a package on his own in California destined for Hawai’i and found a kilo of meth. This was purely a private search. A warrant was then used to install a tracking device for a delivery in Hawai’i. United States v. Faaita, 2011 U.S. Dist. LEXIS 141549 (D. Haw. December 8, 2011).*

Defendant’s wife’s consent to seize and search a computer was voluntary on the totality. United States v. Mueller, 2011 U.S. Dist. LEXIS 141185 (E.D. Ark. December 7, 2011).*

Defendants’ stop was not based on racial profiling, but two sales clerks spotting probable identity theft, and that was reasonable suspicion at the time of the stop. United States v. Campbell, 2011 U.S. Dist. LEXIS 141469 (D. Me. December 6, 2011).*

12/10/11

Permalink 10:37:26 am, by fourth, 314 words, 2974 views   English (US)
Categories: General

D.Ariz.: Failing to pay for storage unit is abandonment

A disbarred attorney lost any expectation of privacy in storage units he failed to pay for. The defendants included state bar conservators of his files. Howell v. Arizona Storage Inns, 2011 U.S. Dist. LEXIS 140894 (D. Ariz. December 6, 2011).*

An informant provided information about defendant’s carrying cocaine, which was partially corroborated and added up to reasonable suspicion after the stop for speeding. United States v. De La Luz Perez, 2011 U.S. Dist. LEXIS 141559 (W.D. Tex. December 8, 2011)*:

2. After the defendant was stopped for speeding, the officers' questions and defendant's detention were brief and reasonably related in scope to the circumstances that justified the stop. The totality of the circumstances which justify the detention and investigation include the following:
• the vehicle and its occupants matched the descriptions provided by the informant;
• the vehicle had made ten crossings into or out of Mexico in the previous two months;
• the occupants were initially asked for only basic information, including identification related documents, insurance, ownership of the vehicle and destination, which only one of the occupants could communicate;
• because only the occupant who had limited English proficiency could respond to the officer's questions and because the officer was unable to communicate independently with the driver of the vehicle who did not speak English and verify the responses of the passenger, it was necessary to request a Spanish speaking officer assist;
• the officer observed no luggage or bags in the vehicle other than the driver and passenger's purses;
• defendant agreed to the search of the car and exited carrying their purses;
• a canine "showed interest" in the passenger compartment of the car;
• defendant and her passenger were observed to be nervous as the investigation progressed;
• defendant and her passenger consented to the search of their purses; and
• a mere 45-60 minutes elapsed from the time the defendant was stopped to the time the cocaine was found and defendant was arrested.

Permalink 09:50:22 am, by fourth, 166 words, 3064 views   English (US)
Categories: General

CA10: Pulling occupant out of car for not getting out during a "welfare check" was suppressed

Officers pulled up behind a car parked in a residential district to check on the welfare of its occupants. There was no suspicion of criminality. When one didn’t get out of the car fast enough to please the officer he was pulled out. That is inconsistent with a stop and frisk, and the motion to suppress was properly granted. State v. Forrest, 2011 Ohio 6234, 2011 Ohio App. LEXIS 5109 (10th Dist. December 6, 2011).*

A warrant was used to place a GPS on defendant’s vehicle, but he had no reasonable expectation of privacy in movements on a public road, so there was no basis to suppress. State v. Winningham, 2011 Ohio 6229, 2011 Ohio App. LEXIS 5115 (1st Dist. December 7, 2011).* [This is a pointless exercise because Johnson is pending in the Ohio Supreme Court, argued about two months ago, and Jones was argued in SCOTUS on November 8th.]

Following Davis, when a search was valid under Belton, the good faith exception validates the search despite Gant. State v. Johnson, 354 S.W.3d 627 (Mo. 2011).*

Permalink 07:50:57 am, by fourth, 181 words, 2907 views   English (US)
Categories: General

FL4: With arrest outside house, no facts supported a protective sweep; generalization about drug cases not enough

Defendant’s arrest was outside the house, and a protective sweep was unjustified on this record. Once inside, the father’s consent was tainted by the officers’ presence during the protective sweep. Diaz v. State, 34 So. 3d 797 (Fla. 4th DCA 2010), is similar. Rozzo v. State, 75 So. 3d 409 (Fla. 4th DCA 2011):

Similarly, “exigent circumstances exist where the occupants of a house are aware of the presence of someone outside, and are engaged in activities that justify the officers in the belief that the occupants are actually trying to escape or destroy evidence.” Lee v. State, 856 So. 2d 1133, 1138 (Fla. 1st DCA 2003) (citing Benefield v. State, 160 So. 2d 706 (Fla. 1964)) (emphasis in original). Fears for officer safety based on generalizations about drug cases, rather than on any specific risk presented by the facts of defendant's case, do not qualify as exigent circumstances. Lee, 856 So. 2d at 1139-40.

Police were called to an altercation in a rural area, and they walked down a gravel driveway. On the driveway, marijuana plants were plainly visible, and the view was reasonable. Dora v. State, 957 N.E.2d 1049 (Ind. App. 2011).*

Permalink 07:21:38 am, by fourth, 142 words, 2929 views   English (US)
Categories: General

D.Vt.: Consent was found valid where defendant was warned of right to refuse

Defendant did not testify at the suppression hearing, and the court concludes that he consented to an entry into his motel room after he was advised of his right to refuse and to a search of his pockets. United States v. Manor, 2011 U.S. Dist. LEXIS 140377 (D. Vt. December 6, 2011).*

Officers had probable cause to believe that defendant was transporting a meth lab in his vehicle, and that justified its search under the automobile exception. Officers also had reason to believe there was a meth lab in a building to which defendant made no effort to show standing. United States v. Skoda, 2011 U.S. Dist. LEXIS 140363 (D. Neb. November 23, 2011).*

Not knowing the owner of the vehicle, vague travel plans, and not looking the officer in the eye was reasonable suspicion for more. United States v. Sanchez, 2011 U.S. Dist. LEXIS 140846 (D. Kan. December 7, 2011).*

12/09/11

Permalink 05:41:55 pm, by fourth, 600 words, 3011 views   English (US)
Categories: General

CA9: Omission that target of search was in prison six months at time of the probable cause was material

Plaintiffs stated a claim for a Franks violation in a § 1983 for a search warrant for their house for evidence that Bravo Jr. was involved in a drive-by shooting. At the time of the shooting and raid on the house, Bravo Jr. had been in prison for six months. Bravo v. City of Santa Maria, 665 F.3d 1076 (9th Cir. 2011):

Hope Bravo and Javier Bravo Sr., along with their minor granddaughter E.B. (collectively “the Bravos”), appeal the adverse summary judgment grant in their 42 U.S.C. § 1983 action arising out of the nighttime SWAT team search of their home for weapons suspected of being used in a drive-by shooting and stored in the Bravo home by their son, Javier Bravo Jr. (“Javier Jr.”). The Bravos allege their Fourth Amendment rights were violated by the issuance and execution of a search warrant whose application failed to disclose that Javier Jr. was at that time, and for over six months had been, incarcerated in the California prison system and therefore not only was not present in the Bravo home, but moreover could not have been involved in the shooting or the storage of weapons used in it. Because the Bravos presented sufficient evidence establishing a genuine issue as to whether Santa Maria Police Department (“SMPD”) Detective Louis Tanore’s (“Tanore”) omission of this material fact was intentional or reckless, as opposed to merely negligent, we reverse the summary judgment grant in his favor and remand.

. . .

Nonetheless, we must ask whether probable cause remains once the affidavit is supplemented with the challenged omission—here, Javier Jr.’s two-year sentence imposed over six months prior to the incident occasioning the search warrant, and his consequent incarceration in state prison at the time of the drive-by shooting and of the warrant’s execution. We conclude that the corrected affidavit could not establish probable cause for the search and especially does not meet the heightened standard of justification required for nighttime SWAT service.

The district court reasoned that Javier Jr.’s presence was immaterial because the warrant was not for his arrest but only to search for evidence related to the April 21 shooting. This fact, however, was highly material to the search, which authorized the seizure of evidence relating to the April 21 shooting. Javier Jr.’s custody status meant not only that he would not be present in the Bravo residence at the time of the search, but that he could not have been involved in the shooting or in concealing the evidence. Tanore had no evidence that Mr. and Mrs. Bravo or E.B. were involved in the April 21 shooting or that during a period in which Javier Jr. was not residing in their home they would have assisted Tangas gang members in concealing evidence, and specifically in concealing evidence from the shooting. The generalized statements in the affidavit that it is “common” for families of gang members to assist other members of the gang are insufficient to support probable cause to search the Bravos’ home. See United States v. Rodgers, 656 F.3d 1023, 1030-31 (9th Cir. 2011) (stating that “an assumption that most sixteen-year-old passengers have identification does not lead to probable cause to search every car carrying a teenager absent some individualized suspicion regarding the teenager, the vehicle in question, and the crime at issue”); United States v. McCarty, 648 F.3d 820, 830 (9th Cir. 2011) (“Searches and seizures are ordinarily unreasonable in the absence of individualized suspicion of wrongdoing, and the circumstances under which a warrantless search not supported by probable cause may be considered reasonable under the Fourth Amendment are very limited.”) (internal quotation marks and citations omitted).

Permalink 04:25:04 pm, by fourth, 168 words, 2933 views   English (US)
Categories: General

HuffPo: "GOP Jobs Bill Slashes Benefits, Allows States To Drug-Test The Unemployed"

HuffPo: GOP Jobs Bill Slashes Benefits, Allows States To Drug-Test The Unemployed:

Republican leaders in the House of Representatives unveiled legislation Friday that would cut 40 weeks from the duration of federal unemployment compensation and allow states to require the unemployed to pass drug tests in order to receive benefits.

Republicans have not cited any data suggesting that drug use contributes to joblessness or that there is an elevated rate of drug abuse among the unemployed. Michael Steel, a spokesman for House Speaker John Boehner (R-Ohio), said the measure is inspired by lawmakers' conversations with businesses in their districts.

Rep. Jack Kingston (R-Ga.) cited a local business this week when he introduced a stand-alone drug testing proposal. "I had an employer tell me of an overwhelming response for job openings," said Kingston. "There was just one problem: Half the people who applied could not even pass a drug test."

So test the job applicants. That's a private search. Finally, a GOP jobs bill, and it violates the Fourth Amendment.

Permalink 07:37:22 am, by fourth, 317 words, 2933 views   English (US)
Categories: General

WI: Looking in a vehicle for safety purposes did not permit search of two vials for which there was no reason to believe were a threat

When defendant was stopped in a large conversion van for a traffic offense, the driver was not communicative about her travel plans, which was her right. However, the vehicle was moving like there was someone in it, and that gave the officer concern for his safety. When he opened the van, he found two blue vials which he opened, and this exceeded the scope of permitted instruction. State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 808 N.W.2d 411 (2011):

P10 ... The cylinders here, however, were opaque, not clear, so Officer Bartol could not see what was inside, and thus, as noted, she did not have “plain view” of the pills. Further, her other experience—that pills can be transported “in a container in which people believe that police will not think is a prescription” applies to any opaque tube, box, carton, jug, can, urn, and the like. That is too slippery a criterion to permit the warrantless search of a container that could not, by its size or shape, hold a weapon. Cf. Denk, 2008 WI 130, ¶¶59-60, 315 Wis. 2d at 27-28, 758 N.W.2d at 786-787 (Officers could search inside of hard, opaque eyeglass case dropped by passenger because: (1) it could have held “a small weapon, such as a knife or a razor blade,” and (2) it could also have held evidence of the crime for which the officers arrested the driver.). Further, Sutton was, as we have seen, entirely within his rights not to tell Officer Bartol where he had been, so his refusal to answer that question is not part of the probable-cause calculus.

P11 Officer Bartol did not have “probable cause to believe there [was] a connection between the [opaque cylinders] and criminal activity.” See Buchanan, 2011 WI 49, ¶23, 334 Wis. 2d at 399, 799 N.W.2d at 785 (quotation marks and quoted sources omitted). She thus had to get a search warrant, if she could, before she opened them. Accordingly, we reverse.

Permalink 07:26:39 am, by fourth, 607 words, 3008 views   English (US)
Categories: General

D.Minn.: TSA behavioral observations led to valid intense secondary screening and seizure of cash

TSA officers noticed defendant and his traveling companion because of suspicious activities at the Delta counter at MSP airport, according to a behavioral specialist. By the time they got to security, officers were sure they would be subjected to secondary screening, and that led to intensive questioning and seizure of case in aid of local law enforcement who also got involved, reporting that defendant was allegedly involved in a drug deal the day before. United States v. Rosales, 2011 U.S. Dist. LEXIS 140949 (D. Minn. October 28, 2011):

Warrantless and suspicionless airport screening searches “are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.’” United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). TSA is statutorily charged with developing and executing airport screening search procedures. See 49 U.S.C. § 44901(a). More generally, TSA is responsible for creating “regulations to protect passengers and property on an aircraft ... against an act of criminal violence or aircraft piracy.” 49 U.S.C. § 44903(b). Under 49 C.F.R. § 1540.111(a), individuals may not carry a “weapon, explosive, or incendiary” onto an airplane. Title 49 of the United States Code, Section 44902(a) requires that TSA prohibit commercial airlines from transporting “a passenger who does not consent to a search ... [thus] establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance.” 49 U.S.C. § 44902(a). Pursuant to its mandate, TSA has established a “prohibited items list” which is posted online and sets forth what items may not be carried aboard aircraft. 68 Fed. Reg. 7444, 49 C.F.R. § 1540.3. The prohibited items list includes a number of small items such as razors, matchbooks, blasting caps, flares, plastic explosives, and the like. See http://www.tsa.gov/travelers/airtravel/prohibited/permitted-prohibited-items.shtm#9 (last visited October 28, 2011).

Administrative searches are exempt from the warrant and probable cause requirements if they are reasonable. Because these searches remain subject to the Fourth Amendment, however, a particular search is “constitutionally reasonable [only where] it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [and where] it is confined in good faith to that purpose.’” Aukai, 497 F.3d at 962 (quoting Davis, 482 F.2d at 913).2 To determine the reasonableness of an administrative airport search, this Court must balance an individual’s right to be free of intrusion with “society’s interest in safe air travel.” United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005).

. . .

This Court concludes that the search procedures used in this case were neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons, explosives, or other prohibited items that might be carried on an airplane. After passing through a magnetometer, Rosales was directed to secondary screening under TSA rules because he was a traveling companion of Perez, who displayed a sufficient amount of suspicious behavior indicators to require a secondary inspection of him at the security checkpoint. TSA Officer Leonard testified that the secondary screening process begins once a person walks through the magnetometer and all their accessible property has been X-ray screened. If there are no specific target areas observed by the X-ray operator that the agents need to identify first, then “as behavior detection officers we collect all their accessible property, we ask for assistance from a checkpoint certified screening officer, another transportation security officer, to do a pat-down of their person to make sure that there is no artfully concealed items on them.”

Permalink 07:10:36 am, by fourth, 275 words, 2909 views   English (US)
Categories: General

N.D.Ga.: “Indicia” evidence in SW did not make it per se overbroad

A warrant seeking “indicia” evidence, evidence of ownership or control of property, was not overbroad. Also, defendant’s brief does not show standing in the property searched. There was nothing tending to show that he had control over the property. United States v. Lisbon, 835 F. Supp. 2d 1329 (N.D. Ga. 2011):

Here, the items sought (identification documents and mail) were tempered by the object of the search – evidence of identity and/or occupancy of the premises searched – and in relation to the crimes under investigation. See Gurleski, 405 F.2d at 258 (noting that the “search must be one directed in good faith toward the objects specified in the warrant or for other means and instrumentalities by which the crime charged had been committed”). The executing agents were therefore given sufficient direction in executing the warrant and as a result, the warrant did not offend the particularity requirement of the Fourth Amendment. The former Fifth Circuit's discussion in United States v. Haydel, 649 F.2d 1152 (5th Cir. Unit A July 1981), upon which Lisbon relied, demonstrates the inadequacy of Lisbon's showing on standing. In Haydel, the evidence established that the defendant's parents had given him permission to use their home and had given him a key, causing the court to conclude that his access was for all practical purposes unencumbered. Id. at 1155. Although the defendant in Haydel did not reside regularly at his parents' home, he kept clothing there and had occasionally remained overnight, when he and his wife had domestic problems. Id. & n.2. Unlike Haydel, Lisbon's statements that he kept belongings there are insufficient to establish the requisite legitimate expectation of privacy in the premises, as explained below.

Permalink 06:45:09 am, by fourth, 260 words, 2920 views   English (US)
Categories: General

N.D.Ohio: Giving officers some discretion as to what documents to seize does not make SW overbroad

Giving the officers executing a search warrant some minimal judgment as to what to seize does not make it overbroad. Here, it was papers relating to drug trafficking. United States v. Willoughby, 2011 U.S. Dist. LEXIS 139623 (N.D. Ohio November 15, 2011)*:

The categories outlined in the search warrant are no doubt broad, encompassing papers, computers, pictures, personal and business contacts, and other categories of evidence, but “‘[a] generalized seizure of business documents may be justified’ if it is demonstrated that ‘the government could not reasonably segregate ... documents on the basis of whether or not they were likely to evidence criminal activity.’” United States v. Banks, 556 F.3d 967, 973 (9th Cir. 2009) (quoting United States v. Kow, 58 F.3d 423 (9th Cir. 1995)). Here, it is not clear how officers could have made the categories any more particular. It appears from Defendant’s brief he wanted something similar to the phrase “in connection with prostitution and/or drug-related activity” to follow each category of evidence. However, such a recitation would be redundant in light of the list of specific crimes to which the search was related appearing on page two of the search warrant. Defendant also states the search warrant description would have allowed officers to collect anything located in his home. But officers executing the warrant are permitted to exercise some minimal judgment as to whether a particular document or item fell within a described category, and therefore, that fact alone does not warrant the relief Defendant seeks. See Blair, 214 F.3d at 697. In short, the search warrant is sufficiently particular and not overly broad.

Permalink 12:02:16 am, by fourth, 173 words, 2908 views   English (US)
Categories: General

WSJ: "Marijuana arrests drop after NYPD order"

WSJ: Marijuana arrests drop after NYPD order:

Arrests for low-level marijuana possession fell in the city in the weeks after Police Commissioner Raymond Kelly cautioned officers not to bust people for small amounts of the drug found in pockets or bags, according to department data released Wednesday.

Kelly issued the internal order Sept. 19 after claims that officers were wrongly arresting people. In New York, possessing a small amount of marijuana is punishable with a fine. But smoking the drug in public or having it visible remains a low-level crime that carries jail time.

There are more arrests on the pot charge — about 50,000 a year — than any other crime in New York City, accounting for about one of every seven cases that turn up in criminal courts. Critics say the numbers are driven in part by the department's strategy of stopping and frisking people who meet crime suspects' descriptions.

More than 450,000 people, mostly black and Hispanic men, were stopped so far this year, unfair targets, critics say. About 10 percent of stops result in arrests.

12/08/11

Permalink 06:25:40 am, by fourth, 197 words, 2916 views   English (US)
Categories: General

W.D.Tenn.: Motion to reconsider is not place to raise new arguments against legality of search

Defendant’s argument in a motion to reconsider that his roommates were acting as agents of the police in conducting a private search that turned up child pornography was not timely. That was not the purpose of a motion to reconsider. United States v. Jones, 2011 U.S. Dist. LEXIS 139561 (W.D. Tenn. September 23, 2011).*

Inconsistent and nervous responses, the suspicious method of travel, and failure to stop for a mile was reasonable suspicion. United States v. Cotton, 2011 U.S. Dist. LEXIS 139636 (E.D. Tex. November 7, 2011)*:

Lt. Viator testified that the inconsistent and nervous responses, the suspicious method of travel, and the fact that Cotton drove for nearly one mile before pulling the vehicle to the shoulder all contributed to a reasonable suspicion that criminal activity was afoot. The undersigned agrees. Given the totality of the circumstances, Lt. Viator's questioning exemplified a graduated response to emerging facts, and therefore does not constitute a Fourth Amendment violation. Brigham at 508 & nn. 5-6 (“‘[D]etention, not questioning, is the evil at which Terry’s second prong is aimed.’”) (citation omitted).

Failure to file a suppression motion was a waiver of the issue for appeal. Carroll v. State, 202 Md. App. 487, 32 A.3d 1090 (2011).*

Permalink 06:10:29 am, by fourth, 367 words, 2952 views   English (US)
Categories: General

D.Utah: UPS Store employee opened package with rattle as a private searcher

UPS Store employee opened a package that rattled because he feared an unfounded insurance claim. He was not acting as an agent of the police. United States v. Lawrence, 2011 U.S. Dist. LEXIS 139655 (D. Utah December 5, 2011)*:

In determining whether a private person has become an agent of the government, the Tenth Circuit uses a two-part inquiry: “1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir. 1989). Both prongs must be met before the private search is deemed governmental conduct. United States v. Leffall, 82 F.3d 343, 347 (10th Cir. 1996).

Defendant abandoned CDs with child pornography on them by leaving them in a house foreclosed on that he moved out of and never tried to reclaim them. United States v. Larson, 2011 U.S. Dist. LEXIS 139566 (W.D. Mo. November 17, 2011)*:

Defendant's subjective desire to someday retrieve the computer disks borders on the absurd. He no longer owned the house. He moved out of the house. Someone else bought the house and moved in. Defendant never contacted Fannie Mae, he never contacted the new owner. More than a year from the date of foreclosure had gone by before defendant learned the authorities had possession of those disks; nearly eight months had gone by since he vacated the premises. It is unclear to me exactly when defendant planned to try to retrieve these disks, and it is ridiculous to think that he had any privacy interest in these disks which were sitting in someone else's house for this length of time.

Not surprisingly, there are no cases which support defendant's theory on this point. However, United States v. Thomas, 451 F.3d 543 (8th Cir. 2006), cert. denied, 549 U.S. 1144, 127 S. Ct. 1010, 166 L. Ed. 2d 761 (2007), is similar in that the defendant in that case left mail in a mailbox at Mail Boxes, Etc. He failed to pay the rent on the box or come by to ask for the mail for about a year. Police obtained the mail from the Mail Boxes, Etc., establishment and opened it without a warrant. The court held that the mail was clearly abandoned.

Permalink 06:00:33 am, by fourth, 218 words, 2900 views   English (US)
Categories: General

CA3: Entry into home on arrest was reasonable where subject of warrant gave that address

Officers had a reasonable belief that the subject of an arrest warrant, plaintiff’s son, was at her home because he had given that address to the state court. When the officers got there, somebody looked out an upstairs window, but they couldn’t tell who it was. Considering the time of day, the entry was reasonable under Payton and Steagald, and the question of plaintiff’s consent was irrelevant. Williams v. City of Philadelphia, 2011 U.S. App. LEXIS 24092 (3d Cir. December 5, 2011) (unpublished)*:

The officers in this case were reasonable in their belief that Peno was present inside the house when they arrived. The record reveals that the officers obtained a valid residential address for Peno from the state court, an address Peno himself provided. This address was Williams' home. Further, the officers arrived to serve the warrant at eight o'clock in the evening on a week night. After knocking, the officers saw an unidentified person peering through an upstairs window. They could not determine whether this person was Peno. A subsequent delay in opening the door and Williams' hostility toward them reasonably raised the officers' suspicions that Peno could have been hiding within the home. Other behavior–such as Williams abruptly fleeing upstairs–could reasonably have been taken as consistent with an attempt to prevent Peno's apprehension.

Permalink 05:56:20 am, by fourth, 199 words, 3011 views   English (US)
Categories: General

CA2: Exclusionary rule doesn't apply to § 1983 claims

In plaintiff’s malicious prosecution claim based on an alleged illegal search, the discovery of a gun on plaintiff’s person was probable cause to arrest. This was on a motion to reconsider and there was no notice of appeal timely filed from the original order. Cyrus v. City of New York, 450 Fed. Appx. 24 (2d Cir. 2011)*:

The district court held on both the initial motion for summary judgment and on the motion for reconsideration that the discovery of the weapon on plaintiff's person gave rise to probable cause to prosecute the weapons charge. Even assuming that plaintiff's arrest was unlawful, the district court concluded that the exclusionary rule does not apply to § 1983 claims and therefore the gun would be admissible to determine probable cause in the civil action. See, e.g., Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999) (“No Fourth Amendment value would be served if [plaintiff], who illegally possessed firearms and narcotics, reaps the financial benefit he seeks. [Plaintiff] has already reaped an enormous benefit by reason of the illegal seizure and search to which he was subjected: his freedom, achieved by the suppression of evidence obtained in violation of the Fourth Amendment.” (footnote omitted)); ....

12/07/11

Permalink 10:44:40 am, by fourth, 192 words, 3123 views   English (US)
Categories: General

MO sheriff sentenced for criminal civil rights violations for coering women to expose themselves

infoZine: Missouri County Sheriff Sentenced for Violating Civil Rights of Eight Women:

Jefferson City, MO - infoZine - Neal Wayne “Bear” Groom, former sheriff in Worth County, Mo., was sentenced in Kansas City, Mo., for violating the civil rights of eight women while he was working as a law enforcement officer. On Aug. 17, 2011, Groom pleaded guilty to coercing the women to expose parts of their bodies to him, in violation of the Fourth Amendment prohibition against unreasonable searches. Magistrate Judge Sarah W. Hays sentenced Groom to 18 months in prison and one year of supervised release for the eight counts of conviction.

As part of the plea, Groom admitted that while he was sheriff of Worth County, he coerced the women into exposing unclothed parts of their bodies to him and that he photographed several of the women’s exposed or partially covered breasts. Groom mostly used the guise of checking the women for injuries related to domestic violence assaults or checking them for evidence of drug injections to coerce them into revealing different parts of their bodies to him. Groom admitted that he conducted the searches for no legitimate law enforcement purpose.

Permalink 10:25:22 am, by fourth, 292 words, 3017 views   English (US)
Categories: General

D.Neb.: General consent to search car for drugs included external hard drive found in bag on front seat

Defendant consented to a drug search of his car in Arizona, and the officer searched a portable hard drive in a bag on the front seat for drug records, which he says he expected to find because they often do. Instead, he found child pornography, and that led to a warrant for the hard drive. The search was valid as a consent. United States v. Suing, 2011 U.S. Dist. LEXIS 139855 (D. Neb. December 5, 2011):

The court agrees with the magistrate judge's implicit finding that the scope of Suing's consent included the external hard drive and its contents. The court finds that even if, arguendo, the scope of Suing's consent was limited to drugs, the search of the external hard drive still would have been legal because the Arizona deputies lawfully searched the external hard drive for evidence of illegal drug activity, and after they inadvertently discovered child pornography, they immediately ceased their search efforts and obtained a new warrant to search for evidence of child pornography.

. . .

Assuming, arguendo, Suing's consent was limited in scope to only drugs, drug paraphernalia, guns, or any location where those items might be found, the court is persuaded that the search of the hard drive would still have been legal under the rule promulgated in United States v. Walser, 275 F.3d 981 (10th Cir. 2001). In Walser, an agent discovered evidence of child pornography on the defendant's computer while the agent was executing a search warrant for evidence of drug activity. Id. at 983-85. In Walser, the Tenth Circuit determined the agent did not exceed the scope of the search warrant, because the agent discovered the child pornography inadvertently and the agent stopped his search immediately and obtained a new search warrant for evidence of child pornography. Id. at 986-87.

Permalink 10:12:12 am, by fourth, 138 words, 2940 views   English (US)
Categories: General

MN: DV complaint was RS for stop of car

The victim of a domestic assault reported to the police that defendant had a gun, and he would be a felon in possession. When his car was quickly seen thereafter, that was probable cause for a stop and search under the automobile exception. State v. Craig, 807 N.W.2d 453 (Minn. App. 2011).*

A search warrant for persons at a particular house particularly described them: the search was limited to black men of particularized heights and weights, with described skin color differentiations, facial hair, and hairstyles. Commonwealth v. Johnson, 2011 PA Super 256, 33 A.3d 122 (2011).*

Defendant’s stop was for following too close the vehicle in front. The fact the officer on the highway may have caused the car in front to slow down did not cause the traffic violation. United States v. Privratsky, 2011 U.S. Dist. LEXIS 139613 (S.D. Ohio December 5, 2011).*

Permalink 09:54:14 am, by fourth, 42 words, 2971 views   English (US)
Categories: General

InfoWars.com: "Gingrich Advocates Trashing Fourth Amendment and Bill of Rights"

I can't quote this. It's too strange all the way through. Draw your own conclusions about the war on terrorism as a war on the Bill of Rights: InfoWars.com: Gingrich Advocates Trashing Fourth Amendment and Bill of Rights by Kurt Nimmo.

Permalink 04:51:31 am, by fourth, 216 words, 2993 views   English (US)
Categories: General

CA4: Trash pull provided PC for SW and RS for stop of car

A trash pull at defendant’s house produced extensive evidence of marijuana trafficking for a search warrant, and that, in turn, provided reasonable suspicion for a stop of defendant’s car as he was leaving his house before execution of the search warrant. Then officers smell marijuana in the car. United States v. Montieth, 662 F.3d 660 (4th Cir. 2011):

... In United States v. Taylor, 857 F.2d 210 (4th Cir. 1988), we held that under the circumstances presented, a narcotics search warrant furnished the reasonable suspicion necessary to conduct an investigative stop of the appellants, whose suspected drug trafficking was the target of the warrant.

As in Taylor, the officers here “possessed a search warrant based upon probable cause to believe that appellant[ ] [was] engaged in narcotics trafficking” and the stop likewise took place as appellant left his home where he was believed to keep narcotics and drug paraphernalia. Id. at 213. Moreover, the warrant in this case specified the defendant’s person, in addition to his residence, as subject to search for evidence of drug trafficking. Once the officers pulled Montieth over, the odor of marijuana emanating from his car offered further reason to suspect he was presently engaged in criminal activity and to support his confinement to the police car. Under these circumstances, the detention was valid under Terry.

Permalink 12:01:40 am, by fourth, 245 words, 2963 views   English (US)
Categories: General

Hast.L.J.: Crime Mapping and the Fourth Amendment: Redrawing “High-Crime Areas”

Crime Mapping and the Fourth Amendment: Redrawing “High-Crime Areas” by Andrew Guthrie Ferguson, 63 Hast. L. J. 178 (2011):

Crime-mapping technology has the potential to reshape Fourth Amendment protections in designated “high-crime areas.” In Illinois v. Wardlow the Supreme Court held that presence in a high-crime area is one of only two factors necessary for creating reasonable suspicion to stop an individual. Since Wardlow, thousands of federal and state cases have used the term “high-crime area,” yet only a handful of courts have considered how to define it. New crime-mapping technologies can now address that definitional problem. Crime-mapping technologies can collect and analyze crime statistics so that police districts can produce almost perfect information about the level, rate, and geographic location of crimes in any given area. The result: police can define official “high-crime areas” for Fourth Amendment purposes.

Crime-mapping technology raises significant Fourth Amendment questions. Does crime-mapping technology alter the existing Fourth Amendment reasonable suspicion analysis? Will this technology create an implicit high-crime area exception to the Fourth Amendment? How will this technology effect police-citizen encounters and liberty interests in officially designated high-crime areas? This Article addresses these questions in an effort to reevaluate and rethink the concept of the high-crime area as understood by the courts. Tracing the history and practice of crime-mapping technology and its effect on Fourth Amendment doctrine, this Article proposes a new framework and redefinition of the term that is both informed by existing crimemapping technologies and consistent with Fourth Amendment principles.

12/06/11

Permalink 08:39:02 am, by fourth, 174 words, 3029 views   English (US)
Categories: General

W.D.Wash.: Bank robbery tracking devices are sufficiently reliable to alone establish probable cause

Bank robbery tracking devices are sufficiently reliable to alone establish probable cause, even of a person who does not exactly match the description of the robber. Here, the tracking device pointed to defendant walking alone ten minutes away from the robbery. That alone was probable cause for his stop. United States v. Revels, 2011 U.S. Dist. LEXIS 138844 (W.D. Wash. December 2, 2011).

Prior suits against officers for violations of the Fourth Amendment is not proof of a failure to train claim under § 1983. Courtney v. City of Chicago, 439 Fed. Appx. 557 (7th Cir. 2011).*

Plaintiff was arrested for disorderly conduct. While holding a repent as a sinner for Jesus sign during the Mobile Mardi Gras parade, plaintiff was arrested for unprovokedly telling a 13 year old girl she was a “whore” and a “slut” and would rot in hell. The parents’ report to the police led to the arrest which was with probable cause, and the officer has qualified immunity even from a free speech claim. Bethel v. City of Mobile, 2011 U.S. App. LEXIS 24042 (11th Cir. December 2, 2011) (unpublished).*

Permalink 08:23:56 am, by fourth, 188 words, 2977 views   English (US)
Categories: General

CA1: RS was still reasonable, albeit on a mistaken understanding of the facts

Defendant’s stop by the police was with reasonable suspicion, albeit mistaken, that defendant was involved in a homicide. The officers were warned at shift change of trouble brewing at the subject address, and then they got trouble calls from there. Defendant was seen on the street leaving and was stopped. United States v. Pontoo, 666 F.3d 20 (1st Cir. 2011)*:

Given this factual mosaic, we think that the district court supportably determined that Officer Maillet's stop of the appellant was accompanied by a reasonable suspicion that a crime (murder) may have been committed, that Austin may have committed it, and that the appellant was Austin. A reasonably prudent police officer standing in Maillet's shoes and knowing what Maillet knew would certainly have harbored such suspicions.

To be sure, this suspicion was predicated on two mistaken conclusions: that Officer Michaud had said "the suspect" rather than "a subject" and that the appellant was Austin. The district court found, at least implicitly, that these mistakes were objectively reasonable and made in good faith. This finding was not clearly erroneous. See, e.g., United States v. Lang, 81 F.3d 955, 965-66 (10th Cir. 1996).

Permalink 08:06:13 am, by fourth, 307 words, 3138 views   English (US)
Categories: General

NE: Unauthorized driver of rental car can show standing

An unauthorized driver of a rental car can still show standing if he can show permission from the renter. State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011):

Our precedent in Nebraska supports the approach used in the Eighth [U.S. v. Best, 135 F.3d 1223 (8th Cir. 1998)] and Ninth [U.S. v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006)] Circuits. We have stated that a defendant may demonstrate the infringement of his own legitimate expectation of privacy by showing that he owned the premises or that he occupied them and had dominion and control over them based on permission from the owner. State v. Stott, 243 Neb. 967, 503 N.W.2d 822 (1993), disapproved on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). Thus, we have recognized standing of a guest as to certain areas of the home, State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000); an "occupant" in a vehicle belonging to another, Stott, supra; and the driver of a vehicle of which he was not the owner where a nonowner passenger gave consent to search, State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). Our cases show the importance of dominion and control and that standing is not limited to property rights or ownership.

[7] In accordance with the Eighth and Ninth Circuits, we hold that a driver of a rental vehicle may have standing to challenge a detention or search if he or she has demonstrated that he or she has received permission to drive the vehicle from the individual authorized on the rental agreement.

In this case, Nelson was not the authorized driver of the rental vehicle. However, he presented undisputed evidence that he had received permission from his uncle to use the vehicle, and the uncle was the authorized driver under the rental agreement. Accordingly, Nelson had standing to challenge his detention and the search of the rental vehicle on Fourth Amendment grounds.

Permalink 12:21:38 am, by fourth, 222 words, 2974 views   English (US)
Categories: General

KS: Stop for obstruction did not support SI; also, defendant was handcuffed and in police car

Defendant arrested for obstruction did not mean there would be evidence in the car for search incident purposes. Moreover, she was handcuffed and in the back of a police car at the time. State v. Oram, 46 Kan. App. 2d 899, 266 P.3d 1227 (2011):

Our Supreme Court noted that under Gant, “[t]o have a valid search incident to arrest, when there is no purpose to protect law enforcement present, the search must seek evidence to support the crime of arrest, not some other crime, be it actual, suspected, or imagined.” Henning, 289 Kan. at 147. Our Supreme Court further stated that “[i]n the vehicle context, ‘in many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains ... evidence [relevant to the crime of arrest.].’” 289 Kan. at 147 (quoting Gant, 556 U.S. at ___ [129 S. Ct. at 1719]).

Although our Supreme Court has struck down K.S.A. 22-2501(c) as facially unconstitutional, we point out that under Gant, there was no reasonable basis for the deputy to believe that the car contained evidence of Oram’s crime of arrest (for obstruction). As a result, the search was an unreasonable search incident to arrest under Gant and Henning. Clearly, the trial court would have been correct, under these circumstances, to hold that the search violated Gant.

Permalink 12:01:53 am, by fourth, 109 words, 2965 views   English (US)
Categories: General

CA6: Consent after Miranda warning was reasonable

Defendant consented twice after Miranda warnings were given, and that supports the district court’s finding of consent. United States v. Dotson, 449 Fed. Appx. 450, 2011 FED App. 0803N (6th Cir. 2011) (unpublished).*

Arguments over what the video showed or didn’t show essentially were credibility questions already resolved by the trial court against him. State v. Collins, 2011 Ohio 6187, 2011 Ohio App. LEXIS 5061 (6th Dist. December 2, 2011).*

Employees of a recently robbed restaurant saw a man they described to the police as lurking near the back door at 3 am. The police stopped defendant matching that description, and that was with reasonable suspicion of a potential robbery. Johnson v. State, 313 Ga. App. 137, 720 S.E.2d 654 (2011).*

12/05/11

Permalink 12:36:14 am, by fourth, 281 words, 3022 views   English (US)
Categories: General

MA: Arrest not required under automobile exception

Arrest not required under automobile exception search. Here, stop was for OUI. Commonwealth v. Johnson, 461 Mass. 44, 958 N.E.2d 25 (2011):

Here, prior to the search of the defendant's SUV, Officer Rose had probable cause to believe that the defendant had been committing an OUI violation, and that he could find evidence pertaining to such crime in the motor vehicle. Officers Rose and Kelly had observed the defendant driving his SUV through a red light and then down several streets before finally parking the vehicle on Auckland Street. When the officers approached the defendant after he had left the SUV, they immediately noticed that the defendant “reeked” of alcohol, was slurring his words, was unsteady on his feet, and was agitated. He also provided the officers with false information as to his identity. See Commonwealth v. Riggins, 366 Mass. 81, 87-88 (1974) (providing implausible or false information to police, along with other facts, supports finding of probable cause to conduct warrantless search of automobile). As the officers were standing outside the SUV conversing with the defendant, they saw a half-empty bottle of cognac in plain view on the dashboard of the SUV. There was ample probable cause to permit a search of the defendant's motor vehicle under the automobile exception to the warrant requirement. The fact that the defendant was not arrested for OUI does not affect the legitimacy of the search. See Commonwealth v. Antobenedetto, supra at 54-55. “The police are not required to make an arrest every time they have probable cause to believe someone has committed a crime.” Commonwealth v. Celestino, 47 Mass. App. Ct. 916, 918 (1999). See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 695 (1984) (probable cause to search not always congruent with probable cause to arrest).

Permalink 12:29:00 am, by fourth, 234 words, 2962 views   English (US)
Categories: General

W.D.Pa.: Ten month long wiretap information could be used in SW application 2-3 months after end without being stale; operation was continuous

Information in a wiretap application 2-3 months before the search and used in this search warrant application was not stale where the wiretap ran continuously for ten months. United States v. Mastendri, 2011 U.S. Dist. LEXIS 138661 (W.D. Pa. December 1, 2011)*:

Finally, defendant argues that because some of the information relied on dated from 2009, and had already been included in affidavits supporting an application for wiretap warrants, the information did not provide a substantial basis from which to infer that a search would yield evidence of a crime. He cites United States v. Williams, 124 F.3d 411 (3d Cir. 1997) for the proposition that stale information included in an affidavit may have limited value in showing that contraband could still be found at the premises. In Williams, information a decade old was held to be not stale given the "long and continuous operation" of the activity. Id. at 420-21.

In the instant case, the wiretaps were conducted in October and November 2009, only two to three months prior to the execution of the search warrant. The information that formed the basis of the wiretap affidavits was collected continuously beginning in January 2009, and was not stale. Further, the information established using the wiretaps contained sufficient facts to support a conclusion that the drug activity in question was continuous, and that there was probable cause to infer that the state of affairs described by the confidential source had not changed.

Permalink 12:22:27 am, by fourth, 198 words, 2944 views   English (US)
Categories: General

D.Kan.: Citizen informant who left number was not “truly anonymous” and had first-hand information

Considering that reasonable suspicion is less than a preponderance of the evidence, a 911 caller who left her number but not name was sufficient where it related first hand information. United States v. Collier, 2011 U.S. Dist. LEXIS 138645 (D. Kan. December 2, 2011)*:

(1) the informant lacked “true anonymity” since she had provided her telephone number to the police; (2) the informant was reporting contemporaneous first-hand knowledge of the events as they were transpiring; (3) the informant's motivation was to prevent her neighbor's house from being burglarized; and (4) the police corroborated some of the informant's information, such as the reported information that the two men on the property were driving a white van that was pulling a trailer. The tip also provided sufficient information that criminal conduct was occurring or was about to occur. The court reaches this conclusion with the thought that the level of suspicion required for reasonable suspicion is considerably less than a preponderance of the evidence.

Defendant was stopped for following too close, and he easily consented to a search when his travel plans didn’t make sense. The search revealed a hidden compartment and 6 kg of cocaine. United States v. Jimenez, 446 Fed. Appx. 771, 2011 FED App. 0802N (6th Cir. 2011) (unpublished).*

Permalink 12:11:36 am, by fourth, 273 words, 2938 views   English (US)
Categories: General

IL: SI for child support arrest of known gang member was reasonable

Police got a tip that defendant had a civil arrest warrant for him for child support, and he was arrested and his bag was searched incident to arrest. Since he was a known gang member, a search of his bag for a weapon was permissible. People v. Cregan, 961 N.E.2d 926, 2011 IL App (4th) 100477 (2011)*:

[**P27] Defendant next contends officers were limited to a brief search for weapons as they could not expect to find any evidence of defendant's failure to pay child support in the luggage. We conclude the scope of the search was not limited in any way by the absence of evidence of failure to pay child support as a justification for the search. The court in Robinson, 414 U.S. at 234-35, made it clear a search for weapons is just as important and thorough as a search for evidence. The mere fact an officer cannot expect to uncover evidence of the crime charged during a search in no way limits the scope or intensity of the search. See Robinson, 414 U.S. at 234 (narrower Terry standards do not limit a search merely because officers do not expect to uncover evidence of the particular crime for which the defendant was arrested during the search).

[**P28] Officers admitted they were not searching for evidence of the crime of failure to pay child support. This did not limit the search to a more restrictive sweep for weapons. Defendant's argument the officers' search should have been confined to a quick weapons check fails. The situation afforded officers wide latitude to conduct a thorough search of defendant's luggage, including the container of hair gel located inside.

Permalink 12:01:00 am, by fourth, 160 words, 3044 views   English (US)
Categories: General

FL: Hearsay not admissible to prove Miranda waiver

Hearsay is usually admissible in suppression hearings on the question of consent or whether a search warrant was properly issued. Hearsay on a Miranda issue is not. Parker v. State, 89 So. 3d 844 (Fla. 2011).*

Defendant’s arrest for possession of an open container wasn’t legal as to the place of possession, so the search incident that produced crack was invalid. Smith v. State, 75 So. 3d 800 (Fla. 5th DCA 2011).*

“We find that the tip from the confidential informant in the instant case contained predictive information from which the officers could reasonably determine that the informant had ‘inside information’ or a ‘special familiarity’ with defendant’s affairs. We conclude that this corroborated information from the CI, in conjunction with Agent Morris’s observations on the scene, were sufficient to provide the officers with the requisite reasonable suspicion to justify the officers' approach of the parked vehicle.” A hand to hand drug deal was seen, too. State v. Molette, 79 So. 3d 484 (5th Cir. 2011).*

12/04/11

Permalink 12:41:59 am, by fourth, 168 words, 3013 views   English (US)
Categories: General

NYTimes.com: "When the Police Go Military"

NYTimes.com: When the Police Go Military by Al Baker:

RIOT police officers tear-gassing protesters at the Occupy movement in Oakland. The surprising nighttime invasion of Zuccotti Park in Lower Manhattan, carried out with D-Day-like secrecy by officers deploying klieg lights and a military-style sound machine. And campus police officers in helmets and face shields dousing demonstrators at the University of California, Davis with pepper spray.

Is this the militarization of the American police?

. . .

Radley Balko, a journalist who has studied the issue, told a House subcommittee on crime in 2007 that one criminologist found a 1,500 percent increase in the use of SWAT (special weapons and tactics) teams in the United States in roughly the last two decades.

. . .

The more the police fail to defuse confrontations but instead help create them — be it with their equipment, tactics or demeanor — the more ties with community members are burned, he said. The effect is a loss of civility, and an erosion of constitutional rights, rather than a building of good will.

Permalink 12:39:09 am, by fourth, 329 words, 3120 views   English (US)
Categories: General

NM explains its deferential standard of review is "substantial basis standard of review"

Review of a magistrate’s finding of probable cause is subject to a deferential standard of review, and “[a] reviewing court should not substitute its judgment for that of the issuing court.” State v. Trujillo, 150 N.M. 721, 2011 NMSC 40, 266 P.3d 1 (2011):

[*18] “[T]he substantial basis standard of review is more deferential than the de novo review applied to questions of law, but less deferential than the substantial evidence standard applied to questions of fact.” Williamson, 2009 NMSC 39, ¶ 30. The United States Supreme Court reasoned that “[a] deferential standard of review is appropriate to further the ... strong preference for searches conducted pursuant to a warrant.” Massachusetts v. Upton, 466 U.S. 727, 733 (1984). A deferential stance “to the warrant process encourages police officers to procure a search warrant.” Williamson, 2009 NMSC 39, ¶ 28. This in turn provides “a layer of protection from unreasonable searches and seizures” without a warrant. Id. (internal quotation marks and citation omitted). Accordingly, “‘the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’” Upton, 466 U.S. at 734 (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).

[*19] This standard “does not preclude the reviewing court from conducting a meaningful analysis of whether the search warrant was supported by probable cause.” Williamson, 2009 NMSC 39, ¶ 30. Rather, “[i]f, after reviewing the affidavit as a whole, the direct and circumstantial evidence alleged, as well as all reasonable inferences to be drawn from those allegations, does not support the issuing court’s determination of probable cause, then the search is invalid and unreasonable.” Id. (internal quotation marks and citation omitted). But, if the factual basis for issuing the warrant is sufficiently detailed in the affidavit, “and the issuing court ‘has found probable cause, the [reviewing] courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than commonsense, manner.’” Id. (quoting Ventresca, 380 U.S. at 109). As stated previously, under a deferential standard the reviewing judge does not substitute his or her judgment for that of the issuing judge.

Permalink 12:25:44 am, by fourth, 175 words, 2952 views   English (US)
Categories: General

HuffPo: 85 year old "Lenore Zimmerman: TSA 'Strip-Searched' Me"

HuffPo: 85 year old "Lenore Zimmerman: TSA 'Strip-Searched' Me" with wheelchair and walker:

An 85-year-old Long Island woman is threatening to sue the TSA after what she claims was a bloody strip-search by the agency.

Lenore Zimmerman, of Long Beach, was on her way from JFK airport to Fort Lauderdale on Tuesday when she claims the TSA took her into a private room and began removing her clothes, the Daily News reports.

The retired receptionist, who uses a walker and stands 4 foot 11, said her son dropped her off at the airport for a 1pm flight. When she got to security, she asked if she could not go through the scanners--fearing it could interfere with her defibrillator--and instead be patted down, which she claims she normally does. Instead, she was taken by two female agents to a private room.

"I walk with a walker -- I really look like a terrorist," she told the paper. "I'm tiny. I weigh 110 pounds, 107 without clothes, and I was strip-searched."

Being from the government means never having to say you're sorry.

Permalink 12:18:14 am, by fourth, 361 words, 3032 views   English (US)
Categories: General

N.D.Cal.: Motion to suppress denied without prejudice to renew by showing standing

Defendant did not allege foundational facts for standing to contest a seizure of his mother's van. He had the keys, but he needed to show permission. Still, the court denies the motion without prejudice to renew it and attempt to make a proper showing. United States v. Sinclair, 2011 U.S. Dist. LEXIS 138154 (N.D. Cal. December 1, 2011):

In the instant case, Defendant has failed to establish that he had a legitimate expectation of privacy in the van. Though it is clear that Defendant possessed the keys to van, Defendant does not state how he obtained the keys or that he, in fact, had his mother's permission to use the van. Nor does Defendant make any showing that he had the authority to exclude all others, except his mother, from using or accessing the van. Based on Defendant's failure to make this foundational showing, the Court finds that Defendant lacks standing to challenge the search of the van belonging to his mother and denies his motion to suppress. E.g., [United States v. Thomas, 447 F.3d 1191 (9th Cir. 2006)] (affirming denial of motion to suppress where defendant failed to establish that he had "permission" to use the rental car). However, since it conceivable that Defendant could cure the foregoing deficiencies and make the requisite showing to establish a legitimate expectation of privacy in the van, the denial of his motion is without prejudice to renewal.

Whether property was lawfully or unlawfully seized is not the question in a Rule 41(g) proceeding for return. Defendant was entitled to return of property where he was acquitted of some counts and it wasn’t contraband. United States v. Crooker, 2011 U.S. Dist. LEXIS 138234 (D. Mass. November 30, 2011).*

Officers went to defendant’s house to do a knock-and-talk about inappropriate text messages to a young girl. His daughter answered the door and said he was in the backyard. Officers saw him and he invited them into the yard. He consented to a search of his computer and house but contended he only agreed to one doing it, not three. He didn’t object, so his claim fails. United States v. Coulter, 2011 U.S. Dist. LEXIS 138271 (E.D. Ark. November 30, 2011).*

Permalink 12:02:58 am, by fourth, 279 words, 2902 views   English (US)
Categories: General

CA4: Stop for car theft justifies a patdown

Stop for car theft justifies a patdown. United States v. Braxton, 456 Fed. Appx. 242 (4th Cir. 2011), certiorari denied, 132 S. Ct. 1815, 182 L. Ed. 2d 633, 2012 U.S. LEXIS 2468 (U.S., Mar. 26, 2012) (unpublished):

After all, as the District of Columbia Circuit has emphasized, “car theft is a crime that often involves the use of weapons and other instruments of assault that could jeopardize officer safety, and thus justifies a protective frisk under Terry.” United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007).

The cases to this effect are legion. See, e.g., United States v. Garcia-Rivera, 353 F.3d 788, 791 (9th Cir. 2003) (approving pat-down when “[i]nability to provide proof of registration gives rise to suspicion of a stolen vehicle”); United States v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003) (“[L]aw enforcement could infer the vehicle might be stolen, and as possible car thieves [defendants] might possess weapons.”); United States v. Shranklen, 315 F.3d 959, 963 (8th Cir. 2003) (holding that defendants “might have stolen the car and, therefore, might have weapons in the car that they used during the theft or had available in case they were discovered”); United States v. Tuggle, 284 Fed.Appx. 218, 227 (5th Cir. 2008) (“[W]hen [defendant]’s conduct reasonably suggested that he might be part of that auto-theft ring, the officers were justified in fearing for their safety.”); United States v. Williams, 7 Fed.Appx. 876, 885 (10th Cir. 2001) (Officer’s “frisk of [defendant] for weapons ... was permissible under Terry” in light of “the objectively reasonable suspicion that the van was stolen.”) United States v. Bradley, 1990 WL 124205 at *2 (6th Cir. 1990) (“It was reasonable for the officer to believe that appellant, who was suspected of having recently been involved in a car theft, might have been armed and dangerous.”)

12/03/11

Permalink 12:35:45 pm, by fourth, 180 words, 2978 views   English (US)
Categories: General

Ga. legislator proposes drug testing of welfare recipients and the legislature

Dumb legislators at it again, this time in Georgia. From the AJC.com blog: On the topic of drug-testing: We’ve been here before by jgalloway:

So we are back to talking about mandatory drug tests for those who receive government assistance. State Sen. John Albers, R-Roswell, is one of those backing the measure.

A federal judge has blocked a similar measure in Florida on constitutional grounds. Fourth Amendment protection against search and seizure is alleged. But we are entering an election year, so the odds favor passage here in Georgia.

In reaction, state Rep. Scott Holcomb, D-Atlanta, on Friday dropped a measure to require that all members of the Legislature submit urine or blood samples so that they, too, can be screened for mind-altering substances.

If all this sounds familiar, it’s because we’ve been here before. A well-informed reader reminded us of a particular April 15, 1997 decision by the U.S. Supreme Court. [link added]

No sense of history? Never read a Supreme Court case? Did Rep. Holcomb get Sen. Albers's attention? I doubt he understood the irony.

Permalink 10:45:13 am, by fourth, 185 words, 3034 views   English (US)
Categories: General

Wired.com: "Carrier IQ Admits Holding ‘Treasure Trove’ of Consumer Data, But No Keystrokes"

Wired.com: Carrier IQ Admits Holding ‘Treasure Trove’ of Consumer Data, But No Keystrokes by David Kravets:

An embattled phone-monitoring software maker said Friday that its wares, secretly installed on some 150 million phones, have the capacity to log web usage, and to chronicle where and when and to what numbers calls and text messages were sent and received.

The Carrier IQ executives, speaking at their nondescript headquarters in a residential neighborhood in the heart of Silicon Valley, told Wired that the data they vacuum to their servers from handsets is vast — as the software also monitors app deployment, battery life, phone CPU output and data and cell-site connectivity, among other things. But, they said, they are not logging every keystroke as a prominent critic suggested.

The data, which gets downloaded from consumers’ phones roughly once a day, is encrypted during transit and also provided to carriers to enhance the “user experience,” these executives said.

“We do recognize the power and value of this data,” Andrew Coward, the chief marketing officer, said. “We’re very aware that this information is sensitive. It’s a treasure trove.”

Permalink 08:39:46 am, by fourth, 351 words, 2961 views   English (US)
Categories: General

C.D.Cal.: FCPA conviction "throw[n] out" for prosecutorial misconduct, including false search warrant affidavit

Court dismisses a Foreign Corrupt Practices Act conviction for prosecutorial misconduct, including false information in a search warrant application. United States v. Noriega, 831 F. Supp. 2d 1180 (C.D. Cal. 2011):

In this case, the first Foreign Corrupt Practices Act criminal prosecution against a corporation to proceed to jury trial, the Court has been asked to vacate the convictions and dismiss the indictment because of alleged prosecutorial misconduct. On November 29, 2011, the Court conducted a hearing on this motion. Before the hearing began, the Court provided a draft of this order to all the lawyers and allowed them three hours to prepare for argument. The hearing lasted for more than two and a half hours.

When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith. In this case, for example, the Court denied several previous motions to dismiss and permitted the prosecution to proceed over the heated objections of defense counsel because it was willing to accept the prosecutors’ assurances that their conduct was inadvertent and would not be repeated. The Court even said it was “not anxious to attribute a deliberate, intentional, and devious motive” to the Government. April 5, 2011, R.T. at 448.

In this Court’s experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness. So it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.

Consequently, the Court throws out the convictions of Defendants Lindsey Manufacturing Company, Keith E. Lindsey and Steve K. Lee and dismisses the First Superseding Indictment.

Permalink 07:53:25 am, by fourth, 285 words, 2957 views   English (US)
Categories: General

CA4: Unhitched trailer was subject to automobile exception where there was activity around it

A parked trailer with illegal liquor was seen in an open field and an ABC officer tried to look through a gap in the back but could not see much. Eight days later he came back and saw that stuff had been moved, and he used a carpenter’s scope to look through a crack inside the trailer. The search was valid under the automobile exception even though the trailer was unhitched and parked. United States v. Smith, 456 Fed. Appx. 200 (4th Cir. 2011) (unpublished):

In [United States v.] Navas[, 597 F.3d 492 (2d Cir. 2010)] in a thorough opinion, the Second Circuit held that the automobile exception applied to a tractor trailer unhitched from its cab, even when the defendants were already placed under arrest at the time of the search. Id. at 501. The court reiterated that “a vehicle’s inherent mobility—not the probability that it might actually be set in motion—is the foundation of the [automobile exception’s] mobility rationale.” Id. at 498. Thus, “the mobility rationale ... does not turn on case-by-case determinations by agents in the field regarding either the probability that a vehicle could be mobilized or the speed with which movement could be achieved.” Id.

In this case, the automobile exception applies to the tractor trailer on the land in Pittsylvania County. The tractor trailer clearly was inherently mobile, and counsel for Smith conceded at oral argument that the tractor trailer could be moved by simply attaching a cab to the tractor trailer. Moreover, the recent unloading activity at the tractor trailer suggested that it might be moved when all of the liquor jugs were unloaded. In short, embracing Smith’s position here would contravene the sound reasoning of both Carney and Navas.

Permalink 07:08:52 am, by fourth, 166 words, 2915 views   English (US)
Categories: General

W.D.Tenn.: During eviction, fraudulent IDs were found, and police called who said bring them in; still a private search

During an eviction where a locksmith picked a lock to let movers in, fraudulent identification documents were found, and the finder called the police who said to bring them in. It was still a private search. United States v. Jones, 2011 U.S. Dist. LEXIS 137602 (W.D. Tenn. November 29, 2011).*

The stop of defendant’s car was with reasonable suspicion that it was involved in a bank robbery. After the stop, defendant’s three year old daugther was found in the car, and she was asked where they were coming from, and she pointed toward the bank. Asked if they were at the bank, she said yes. The registration of the car was expired, and its impoundment was valid. United States v. Brumfield, 2011 U.S. Dist. LEXIS 137834 (N.D. Ga. February 17, 2011).*

Defendant consented because he wanted to show the police there was nothing amiss. The fact the consent form was not timely executed is irrelevant. United States v. Garcia, 2011 U.S. Dist. LEXIS 137252 (E.D. N.Y. November 30, 2011).*

Permalink 06:48:10 am, by fourth, 308 words, 3032 views   English (US)
Categories: General

D.Minn.: TSA's finding cash was reasonable as administrative search, “[a]lthough it is a close question”

Search of envelope finding cash by TSA, “[a]lthough it is a close question,” is lawful because TSA was looking for potential for “sheet explosives,” and there was no sign this was an investigatory search, distinguishing other cases. United States v. Rosales, 2011 U.S. Dist. LEXIS 137405 (D. Minn. November 30, 2011):

Although it is a close question — particularly given the lack of detail about the discovery of the envelope and why the TSA agent looked inside of it — the Court concludes that the search of the envelope was lawful. “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness’ ....” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). The government did not offer direct evidence of the condition of the envelope, but it is reasonable to infer that a standard, business-size envelope containing thousands of dollars of cash — as well as vehicle titles and photographs — would be quite bulky. It was thus reasonable for the TSA to take at least a cursory look in the envelope to confirm that it did not contain sheet explosives. In addition, unlike several recent cases in which courts have held that a TSA agent’s search went beyond the permissible scope of an airport-screening search, see McCarty, 648 F.3d at 836; United States v. Fofana, 620 F. Supp. 2d 857, 863-65 (S.D. Ohio 2009), here there is absolutely no evidence that the TSA agent’s search was motivated by anything other than legitimate security concerns. The agent did not know that Rosales was under surveillance or even that Rosales was suspected of criminal activity; in fact, the agent permitted Rosales to leave with his cash after the screening procedure was complete. The Court therefore finds that, in light of changes in technology since Kroll [481 F.2d 884 (8th Cir. 1973)] was decided in 1973, the search of the envelope was within the proper scope of an airport-screening search.

Permalink 12:01:29 am, by fourth, 366 words, 3134 views   English (US)
Categories: General

M.D.Ga.: Warrantless entry permitted when surveillance team reasonably believed they'd been made

Defendant’s house was under surveillance, and police followed car away, which they stopped 8-10 miles from defendant’s house. After the stop, one person stopped was on a cell phone which an officer took away from him but did not look at the calls because he thought he needed a warrant. Officers then decided to secure the house while getting a search warrant. It was reasonable to believe that the occupants knew the police were around or even coming, so a warrantless entry into the property to secure it was reasonable under the circumstances. United States v. Lockett, 2011 U.S. Dist. LEXIS 137266 (M.D. Ga. November 30, 2011):

According to the officers, the decision to secure the residence was based on several factors: (1) they did not know who was in the residence; (2) concerns about preserving evidence; (3) preventing the destruction of evidence; (4) the amount of traffic coming in and out of the residence during the day; (5) the fact Wynn and Young were found with drugs; (6) suspicions that there were drugs at the residence; (7) the fact either Wynn or Young was on the cell phone while in the police vehicle, which led to a concern that Defendant was tipped off about the police activity; (8) the fact Defendant left the residence after the Nissan was stopped; and (9) the attention drawn by the Wynn and Young traffic stop.

. . .

The Court agrees with the Government that the officers had an objectively reasonable basis to believe that exigent circumstances existed which required their warrantless entry into Defendant's residence. Wynn and Young, who were stopped after leaving Defendant's residence, were found to be in possession of cocaine and marijuana. Wynn or Young spoke with someone on the telephone, and shortly thereafter Defendant and another male were seen talking on the telephone, going to the outbuilding, and leaving the premises. The officers could not see into the residence or the outbuilding, but knew there was at least one person still in the residence. The Court finds that based on the totality of the circumstances the officers could reasonably have determined that Defendant was aware of the surveillance and that evidence could have been destroyed during the time it took them to get a search warrant.

12/02/11

Permalink 12:33:57 pm, by fourth, 584 words, 3720 views   English (US)
Categories: General

CA9: A traffic citation is not an “arrest” for U.S.S.G. § 4A1.2(a)(2)

A traffic citation is not an “arrest” for U.S.S.G. § 4A1.2(a)(2). The majority does not cite the Fourth Amendment arrest cases, but the concurrence and dissent does. United States v. Leal-Felix, 09-50426 (9th Cir. November 30, 2011) (en banc):

In this appeal, we are asked to interpret the United States Sentencing Guidelines § 4A1.2(a)(2). The United States Sentencing Commission (the “Commission”) has authority to define the terms in the Sentencing Guidelines. See 28 U.S.C. § 994(p). However, until it does, we consider the context and purpose of the Sentencing Guidelines as a whole in interpreting them. Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term “arrest” to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient. Therefore, we vacate the sentence imposed by the district court and remand for re-sentencing.

. . .

[9] Nothing in the record suggests Leal-Felix was ever formally arrested for driving with a suspended license. He was not told he was “under arrest,” he was not transported to the police station, and he was not booked into jail. Absent one of these hallmarks of a formal arrest, the district court erred in finding that he had been “arrested” for purposes of the Sentencing Guidelines. Therefore, his sentence is vacated. The case is remanded for resentencing in accordance with this opinion.

Concurrence:

I join the majority’s opinion, but write separately to highlight the most compelling reason for concluding that a traffic citation is not an arrest for the purposes of the Sentencing Guidelines: the common understanding of the term arrest does not include being pulled over and ticketed for a traffic violation.

It is a bedrock principle of statutory construction that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). I am confident that an average citizen—with or without a law degree—would not believe he had been arrested if pulled over, briefly detained and issued a traffic ticket. Indeed, if a traffic citation constituted an arrest in ordinary parlance, then aspiring police officers and prison guards might have a lot more to disclose on their job applications. Young drivers would need to be more concerned about getting into college, and those filling out employment applications, background checks, visa applications, and adoption papers would need to employ an entirely different “truth-o-meter” than commonly understood. It seems unlikely, however, that police departments, prisons, colleges, government agencies and adoption organizations mean—or are even concerned about—speeding tickets when they ask if applicants have ever been arrested. In other words, treating an ordinary traffic ticket as an arrest defies our common experience and would be a paradigmatic shift.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion which, in my view, improperly imports Fourth Amendment analysis into calculation of a sentence under the Sentencing Guidelines, and unnecessarily creates a circuit split.

Law.com: 9th Circuit, in Reversal, Says Traffic Stops Aren't 'Arrests', Ginny LaRoe:

Is a traffic stop an "arrest" for sentencing purposes in federal court?

The Ninth Circuit U.S. Court of Appeals on Wednesday in an en banc ruling said no, reversing itself and creating a circuit split.

The court, by a 10-1 vote, said a traffic citation is not the same as a formal arrest, which would include informing the suspect he was under arrest and taking him to jail or a police station.

Permalink 06:31:56 am, by fourth, 143 words, 3055 views   English (US)
Categories: General

GOP finds drug testing "compassionate thing to do"

Care2.com: Drug Testing Welfare Recipients is “Compassionate” by Robin Marty:

Florida is already mired in courtroom proceedings over their new law mandating that all welfare recipients must submit to and pass a drug test in order to receive benefits. But despite the state’s court blocking the law as a violation of the fourth amendment, Ohio legislators are looking at implementing the same practice in their state.

Because, as one Republican law maker puts it, it’s the “compassionate thing to do.”

. . .

Florida quickly learned that regardless of the legality of their plan, the actual testing itself showed that despite the Republicans’ assumptions, very few welfare recipients actually were using drugs. In fact, the percentage of welfare recipients using drugs was actually lower than that of the regular population.

That kind of emasculates the "state need" for the intrusion then, doesn't it?

Permalink 12:19:07 am, by fourth, 487 words, 3032 views   English (US)
Categories: General

F.R.Crim.P. 41 changes effective 12/1--Adding "reliable electronic means"

Federal Rules changes are effective December 1 [except the U.S. Sentencing Guidelines which are November 1]. Rule 41 changes involve adding "reliable electronic means" and tracking warrants, almost in anticipation of Jones, considering it takes three years for rules changes to work their way up.

Rule 41. Search and Seizure
. . .
(d) Obtaining a Warrant.
. . .
(3) Requesting a Warrant by Telephonic or Other Reliable Electronic Means. In accordance with Rule 4.1, a magistrate judge may issue a warrant based on information communicated by telephone or other reliable electronic means.
(e) Issuing the Warrant.
. . .
(2) Contents of the Warrant.
. . .
(C) Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:
(i) complete any installation authorized by the warrant within a specified time no longer than 10 days;
(ii) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and
(iii) return the warrant to the judge designated in the warrant.
(f) Executing and Returning the Warrant.
(1) Warrant to Search for and Seize a Person or Property.
. . .
(D) Return. The officer executing the warrant must promptly return it — together with a copy of the inventory — to the magistrate judge designated on the warrant. The officer may do so by reliable electronic means. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.
(2) Warrant for a Tracking Device.
(A) Noting the Time. The officer executing a tracking-device warrant must enter on it the exact date and time the device was installed and the period during which it was used.
(B) Return. Within 10 days after the use of the tracking device has ended, the officer executing the warrant must return it to the judge designated in the warrant. The officer may do so by reliable electronic means.
(C) Service. Within 10 days after the use of the tracking device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person’s residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person’s last known address. Upon request of the government, the judge may delay notice as provided in Rule 41(f)(3).

Permalink 12:12:30 am, by fourth, 268 words, 3005 views   English (US)
Categories: General

TN: To try IAC claim for not filing motion to suppress, you have try the motion to suppress to make record

To succeed in a post-conviction petition, the defendant must show that the motion would be granted, essentially by trying the motion to suppress in the post-conviction proceeding. In this case, only defense counsel was called on this issue, not the officer. Scott v. State, 2011 Tenn. Crim. App. LEXIS 868 (November 22, 2011):

We need not address whether a motion to suppress should have been filed in this case because, after a careful review of the record, we conclude that the Petitioner has failed to establish that he was prejudiced by trial counsel's failure to file such a motion. To meet his burden of showing prejudice, the Petitioner must establish that there is a reasonable probability that, had trial counsel filed a motion to suppress, the motion would have been granted. Id. (citing Strickland, 466 U.S. at 694). Here, the Petitioner has failed to do so. Under the facts of this case, the Petitioner must have adduced sufficient facts to allow the post-conviction court to conclude that the second search was illegal, that is, not undertaken pursuant to one of the exceptions to the warrant requirement. To the contrary, the facts in the instant case do not lead to such a conclusion.

The trial court found the search was by consent; therefore, no Strickland prejudice. State v. Mohler, 2011 Ohio 6121, 2011 Ohio App. LEXIS 5006 (5th Dist. November 28, 2011).*

Defendant was stopped with reasonable suspicion of being involved in a robbery. He consented first to looking through maps on the front seat visible to the officer. Then he consented to a search of his van. United States v. Farnell, 2011 U.S. Dist. LEXIS 136890 (E.D. Mo. November 8, 2011).*

Permalink 12:01:17 am, by fourth, 430 words, 3216 views   English (US)
Categories: General

MS: Reaching into defendants underwear to seize drugs as a search incident was reasonable

Reaching into defendants underwear to seize drugs as a search incident was reasonable. It was not a strip search. Foxworth v. State, 94 So. 3d 1178 (Miss. App. 2011):

P6. While a search incident to arrest can exceed the scope of some other warrantless searches, the scope of the search is not limitless. “As intrusiveness increases, the amount of suspicion necessary to justify the search correspondingly increases.” United States v. Vega-Barvo, 729 F.2d 1341, 1344 (11th Cir. 1984). There are certain limitations regarding the use of strip searches. While a strip search has not specifically been defined by Mississippi common law, surrounding jurisdictions have addressed the term. A strip search has been defined as “any exposure or observation of a portion of a person’s body where that person has a ‘reasonable expectation of privacy.’” Doe v. Calumet City, Ill., 754 F. Supp. 1211, 1215 n.9 (N.D. Ill. 1990) (citation omitted). A strip search has also been defined as “the removal of the arrestee’s clothing for inspection of the under clothes and/or body.” State v. Nieves, 383 Md. 573, 861 A. 2d 62, 70 (Md. 2004) (citing William J. Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L. Rev. 665, 667 (2000)). Black’s Law Dictionary 1469 (9th Ed. 2009) defines a strip search as a “search of a person conducted after that person’s clothes have been removed, the purpose [usually] being to find any contraband the person might be hiding.”

P7. In this case, Officer Keckler reached inside Foxworth’s pants and undergarments to remove an item he believed to be a controlled substance. At no point was Foxworth forced to remove any clothing. There is also no indication that any part of his body was ever exposed to the public. He remained fully clothed during the entire search. The Mississippi Supreme Court has upheld cases where the officer pulled a bag out of the defendant’s belt line and also where officers retrieved evidence from the pocket of the defendant. See Ellis, 573 So. 2d at 725; Johnson v. State, 999 So. 2d 360, 365 (¶23) (Miss. 2008). While those cases do not directly address the issue of a strip search, the conduct of the police officers in those cases was found to be appropriate. The actions taken by Officer Keckler are similar to the conduct in those cases. He simply retrieved evidence from inside Foxworth’s clothing. Because no strip search occurred and the search incident to arrest was appropriate, we find no error.

Remember the first episode of FX's "The Shield"? In the opening scene, Vic Mackey yanks down a suspect's pants and removes drugs from his genitalia. That was in an alley.

12/01/11

Permalink 12:18:50 pm, by fourth, 154 words, 3075 views   English (US)
Categories: General

San Antonio Express-News: "Attorney: Trial was tainted by search" of counsel table during trial

San Antonio Express-News: Attorney: Trial was tainted by search; Lawyer says prosecutor rifling through defense table ‘unsettled' him by Craig Kapitan:

Defense attorney Tony Reyes was in the middle of calling witnesses for his client's embezzlement trial last January when, during a jury break, a district attorney's office employee served him with a search warrant signed by a judge in another courtroom.

State District Judge Ron Rangel told Reyes to stand back as a prosecutor then began sifting through documents on the defense table, the attorney recalled Wednesday as he testified at a hearing for his client's motion for a new trial.

The tactic — in which Reyes was named a criminal suspect alongside his client on the search warrant — was so unheard of and shocking that it obliterated his ability to zealously defend his client, he and a large team of attorneys have alleged during sporadic hearings over the past month.

Prior post here.

Permalink 09:49:58 am, by fourth, 252 words, 2989 views   English (US)
Categories: General

M.D.Fla.: If defendant had standing as an intermittent guest, he waived it by surrendering to police and staying in custody ten days before the search.

If defendant, an intermittent overnight guest at the house of another had any standing, something not conceded, he waived it when he turned himself in ten days before the search occurred by leaving stuff there. Also the owner consented. United States v. Burke, 2011 U.S. Dist. LEXIS 136877 (M.D. Fla. November 29, 2011):

The evidence establishes that Defendant Burke had a subjective expectation of privacy; the question is whether Defendant Burke's expectation of privacy is one which society recognizes as legitimate. If Defendant Burke occupied the second bedroom in HLS' apartment intermittently prior to 2/5/2011, after Defendant Burke turned himself in on 2/5/2011, Defendant Burke could not have expected to return to the apartment to continue Defendant's intermittent residence. If Defendant Burke had a long-standing familial type of relationship with HLS in the past, on 2/15/2011, Defendant Burke was not a guest, occupying the premises with the permission of HLS, and there was no realistic expectation that Defendant Burke would return to occupy the premises, since Defendant Burke remained in custody.

Trash at the edge of a gravel road for pick up was not on the curtilage. United States v. Lemons, 2011 U.S. Dist. LEXIS 136691 (W.D. Ky. November 28, 2011).*

Almost considering the merits of defendant’s Fourth Amendment claim in habeas deferential AEPDA review on the independent source doctrine: “Upon review of the district court order and the state court record, we agree that Cheeks had a full and fair opportunity to litigate his Fourth Amendment claim in state court.” Cheeks v. Smelser, 448 Fed. Appx. 848 (10th Cir. 2011).*

Permalink 09:07:17 am, by fourth, 458 words, 3044 views   English (US)
Categories: General

Wired.com: "The Pest Who Shames Companies Into Fixing Security Flaws"

Wired.com: The Pest Who Shames Companies Into Fixing Security Flaws by Mike Kessler:

Every Christopher Soghoian production follows a similar pattern, a series of orchestrated events that lead to the public shaming of a large entity—Google, Facebook, the federal government—over transgressions that the 30-year-old technologist sees as unacceptable violations of privacy. Sometimes he discovers these security flaws by accident, other times because someone has pissed him off, but mostly because he’s parked at his computer all day looking for security flaws.

When he finds one, Soghoian, a PhD candidate in computer science at Indiana University Bloomington, learns everything he can about it and devises what he sees as a viable solution. Then he alerts the offending party and gives them a chance to fix things, explaining that if they don’t, he’ll go public with his discovery. (OK, sometimes he skips the give-them-a-chance step.) When the inevitable wave of media coverage starts breaking, Soghoian is often the first expert that reporters turn to for sound bites—about stories he has effectively handed them. In the end, the security holes get patched, and Soghoian gets more notoriety and more work. He’s vertically integrated.

. . .

Soghoian managed to record a Sprint Nextel executive boasting that the company had provided user location data to law enforcement agencies some 8 million times. Naturally, Soghoian made the tape public. Stephen Colbert—among others—picked up the story, which was later cited by the Ninth Circuit Court of Appeals in a case concerning police surveillance tactics.

The case is United States v. Pineda-Moreno, 617 F.3d 1120, 1125 (9th Cir. 2010) (Kozinski, J., dissenting from denial of rehearing en banc):

If you have a cell phone in your pocket, then the government can watch you. Michael Isikoff, The Snitch in Your Pocket, Newsweek, Mar. 1, 2010, available at http:// www.newsweek.com/id/233916. At the government's request, the phone company will send out a signal to any cell phone connected to its network, and give the police its location. Last year, law enforcement agents pinged users of just one service provider--Sprint--over eight million times. See Christopher Soghoian, 8 Million Reasons for Real Surveillance Oversight, Slight Paranoia (Dec. 1, 2009) http://paranoia/dubfire.net/2009/12/8-million-reasons-for-real-surveillance.html. The volume of requests grew so large that the 110-member electronic surveillance team couldn't keep up, so Sprint automated the process by developing a web interface that gives agents direct access to users' location data. Id. Other cell phone service providers are not as forthcoming about this practice, so we can only guess how many millions of their customers get pinged by the police every year. See Justin Scheck, Stalkers Exploit Cellphone GPS, Wall St. J., Aug. 5, 2010, at A1, A14 (identifying AT&T and Verizon as providing "law-enforcement[ ] easy access to such data").

Permalink 07:32:06 am, by fourth, 137 words, 2985 views   English (US)
Categories: General

NPR: "Interpreting The Constitution In The Digital Era"

NPR: Fresh Air: Interpreting The Constitution In The Digital Era:

GPS monitors can track your every movement. Brain scans can now see lies forming in your brain. And advancements in genetic engineering may soon allow parents to engineer what their children will look and be like.

These new technologies are "challenging our Constitutional categories in really dramatic ways," says George Washington University law professor Jeffrey Rosen. "And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today."

On Wednesday's Fresh Air, Rosen, the co-editor of the new book Constitution 3.0: Freedom and Technological Change, details how technological changes that were unimaginable at the time of the Founding Fathers are challenging our notions of things like personal vs. private space, freedom of speech and our own individual autonomy.

3.0

Permalink 07:27:50 am, by fourth, 323 words, 2961 views   English (US)
Categories: General

CA9: Error of law in arrest where no statute shown violated denied officer qualified immunity

Plaintiff was arrested for “scalping” a free ticket from a radio promotion, but it turned out there was no law against it in Nevada. The district court erred in finding officer had qualified immunity for the arrest because this was an error of law. Rosenbaum v. Washoe County, 663 F.3d 1071 (9th Cir. 2011)*:

This is not a case where courts disagree about the contours of a constitutional right or where officers may be confused about what is required of them under various circumstances. As our analysis establishes, the statute is unambiguous, and not susceptible to the reading that the county suggests. Therefore, no reasonable officer could believe that Rosenbaum's conduct violated this statute.

Considering the facts in the light most favorable to Rosenbaum, all reasonably competent officers would have agreed that he was not committing a crime. There is no scalping law in Nevada; it is simply not a crime to sell tickets to a fair—even when the tickets were received for free. His t-shirt did not suggest fraud, nor were the ticket buyers duped by the sale.

His right to family integrity merely from being handcuffed in front of his children was not violated:

We do not imply that verbal abuse—and even verbal abuse to children in the midst of an arrest—would never rise to the level of a constitutional violation. Rather, in this instance, the officers' conduct does not “shock the conscience.”

Because we conclude that the Rosenbaums' right to family integrity was not violated, we need not reach the question of whether Forbus is entitled to qualified immunity for the violation of the right to family integrity.

[Note: Criminal defense lawyers: indulge these civil cases. Like Jeff Foxworthy's joke about his family tree, qualified immunity and the good faith exception have the same origins, and the cases often read the same and apply each other. Also remember that some of the most important Fourth Amendment cases are § 1983 cases.]

Permalink 07:01:55 am, by fourth, 175 words, 3065 views   English (US)
Categories: General

HuffPo: Smartphone app records everything for phone carrier

Smartphone app records everything for phone carrier: Huffington Post: Carrier IQ: Researcher Trevor Eckhart Outs Creepy, Hidden App Installed On Smartphones (VIDEO):

A security researcher has posted a video detailing hidden software installed on smart phones that logs numerous details about users' activities.

In a 17-minute video posted Monday on YouTube, Trevor Eckhart shows how the software – known as Carrier IQ – logs every text message, Google search and phone number typed on a wide variety of smart phones - including HTC, Blackberry, Nokia* and others - and reports them to the mobile phone carrier.

The application, which is labeled on Eckhart’s HTC smartphone as "HTC IQ Agent," also logs the URL of websites searched on the phone, even if the user intends to encrypt that data using a URL that begins with "HTTPS," Eckhart said.

The software always runs when Android operating system is running and users are unable to stop it, Eckhart said in the video.

And, if the carrier has it, can the government get everything by search warrant from the carrier?

11/30/11

Permalink 09:27:59 pm, by fourth, 163 words, 3021 views   English (US)
Categories: General

Some Indiana legislators want to drug test welfare recipients, too; how dumb can they be?

From theRepublic.com: Ind. GOP lawmakers want welfare recipients tested for drugs, face constitutional hurdle by Tom LoBianco, Associated Press:

Two Indiana Republicans want welfare recipients to pass drug tests before they can receive benefits.

Sen. Jean Leising, R-Oldenburg, and Rep. Heath VanNatter, R-Kokomo, said they have asked statehouse staff to draft bills that they plan to submit when lawmakers return for their 2012 session on Jan. 4.

"I can tell you there are an awful lot of people out there that want this thing done," Leising said Wednesday.

Other states including Missouri and Florida have pushed for the testing, but measures have run up against Fourth Amendment protections against unreasonable search and seizure. At least one federal judge has placed a testing law on hold.

How obtuse can these guys be? They want drug testing but how about the Fourth Amendment? Doesn't that matter anymore to the party of "small government"? Apparently not to some Republicans in Indiana. And I have kin in Indiana.

Permalink 10:55:08 am, by fourth, 303 words, 2972 views   English (US)
Categories: General

IN: Neighbors' reports of high traffic, defendant's prior drug arrest in same house, and opening hood before driving off was cause for stop

Neighbors complained that defendant had unusual traffic to his house after 9 pm every night, and it was like it was before the last time the SWAT team raided his house finding drugs. One neighbor reported that defendant’s trash was removed by a particular pickup truck and not the regular pickup for the neighborhood [remember that Indiana recognizes a REP in trash]. Surveilling defendant, officers saw him come out of his house and open his hood before driving off. When they stopped him, he gave consent to search the car after having been advised of his right to refuse. Under the hood they found drugs. That provided probable cause and nexus to search his house by search warrant. Daugherty v. State, 957 N.E.2d 676 (Ind. App. 2011).

When the officer tried to pull over the defendant for suspicion of DUI, she didn’t stop until a driveway, even though there was a shoulder. When she stopped, another car stopped. She had alcohol on her breath and did not respond to commands as directed, and her detention was reasonable for officer safety because the officer felt at risk because of two people out of their cars at the same time. State v. Drury, 358 S.W.3d 158 (Mo. App. 2011).*

Having previously found that the defendant’s free will and the slight misconduct of the police who turned him over to the FBI attenuated his statement from the illegal arrest. He essentially knew the jig was up, and he was the target of a bigger investigation since the locals gave him to the FBI. His cell phone was seized by the local police on his arrest and it was given to the FBI with him. He freely consented to a search of the cell phone. United States v. Blount, 2011 U.S. Dist. LEXIS 136042 (E.D. Mich. November 28, 2011).*

Permalink 10:22:46 am, by fourth, 378 words, 3103 views   English (US)
Categories: General

D.Colo.: Overuse of restraint chair at school for child with seizures stated Fourth Amendment claim; without a case in point

Strapping plaintiff 5 year old developmentally disabled child into a restraint chair for most of the day at school [apparently just to not deal with the child] was a “trial-worthy issue” for which qualified immunity did not apply. Significantly, there was no exact case in point, but the law was clearly established that the Fourth Amendment applies, albeit relaxed, in schools under T.L.O. A.B. v. Adams-Arapahoe 28J Sch. Dist., 831 F. Supp. 2d 1226 (D. Colo. 2011):

Having reviewed the Fourth Amendment case law at the time of the disputed events, the Court finds that A.B.’s right to be free from unreasonable seizure was clearly established. Since at least 1985, it has been clear that students retain limited Fourth Amendment protections inside the school building. See T.L.O., 469 U.S. at 338. In 2005, the Tenth Circuit held that the seizure of a student is constitutionally permissible if it is “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” Jones, 410 F.3d at 1228. The Court finds that under this standard, a reasonable person in Michaels’s position would have understood that her actions violated A.B.’s constitutional rights.

Because Plaintiffs have shown a trial-worthy issue as to whether Michaels violated a clearly established constitutional right, Michaels is not entitled to qualified immunity against Plaintiffs’ Fourth Amendment claim. Michaels’s Motion for Summary Judgment is therefore denied in so far as it pertains to Plaintiffs’ Fourth Amendment claim.

This case is significant because the District Court did not even mention that there did not have to be a case in point to find a Fourth Amendment claim was stated. Defendants in § 1983 qualified immunity issues always assert that there is no case in point so qualified immunity should apply. The law doesn't remotely require that because, if it did, the Fourth Amendment would stop developing and gray areas would forever remain gray.

This will most certainly be appealed before the trial ever occurs. [Note: I normally don't write about civil cases at the trial court level because I don't have time, but I report all § 1983 Fourth Amendment appeals. I look for some by title or key words in the case to report on, but 95+% do not get reported here.]

Permalink 04:33:29 am, by fourth, 238 words, 3030 views   English (US)
Categories: General

Am.Crim.L.Rev. blog: “Predictive Policing” and the Fourth Amendment

“Predictive Policing” and the Fourth Amendment by Andrew Guthrie Ferguson on the blog of the American Criminal Law Review:

The future of policing just arrived on a computer screen in downtown Los Angeles. As reported by National Public Radio, this month the Los Angeles Police Department’s (LAPD) Real Time Analysis and Critical Response Division has embraced a new computer program offers the holy grail of smart policing: the ability to predict where crime will happen and direct police resources to that location.

Predictive policing is based on the theory that by analyzing past crime patterns and crime data, police analysts can identify future hot spots of crime. Using this predictive modeling, police officers are directed to patrol areas of expected crime for additional police attention. These small hot spots of heightened police presence—in Los Angeles, a 500 foot by 500 foot area (one square block)—are poised to become the centerpiece of a new smart policing strategy in which law enforcement resources are directed to targeted locations before the crime occurs. The initial results are strikingly successful. As reported by the LAPD to NPR, for example, the first week of “predictive policing” reduced crime in certain areas by 50%.

Predicting the impact on constitutional rights in those targeted hotspots may be a bit more complicated. One of the unintended consequences of predictive policing technology may be the erosion of Fourth Amendment protections for individuals in those high crime areas.

Permalink 12:11:56 am, by fourth, 452 words, 3670 views   English (US)
Categories: General

De novo standard of appellate review applies to voluntariness of consent and actual or apparent authority to consent

The standard of appellate review as to voluntariness reflects independent judicial review, often following Miller v. Fenton (review of voluntariness of confession) and Ornelas v. United States (review of probable cause and reasonable suspicion) is de novo. See, e.g.:

United States v. Stewart, 93 F.3d 189, 192 (5th Cir.1996)

United States v. Moon, 513 F.3d 527, 536 (6th Cir. 2008)

United States v. Starr, 533 F.3d 985, 995 (8th Cir. 2008)

United States v. Fiorillo, 186 F.3d 1136, 1143 (9th Cir. 1999); United States v. Garcia, 997 F.2d 1273, 1281 (9th Cir. 1993) (“if we are determining whether specific types of actions are sufficient to give rise to an inference of consent, the standard of review is de novo.”)

Phuagnong v. State, 714 So.2d 527, 529–30 (Fla. 1st DCA 1998) (relying on Miller and Ornelas to hold that “[t]he same reasoning supports independent appellate review where the validity of a search has been found to rest ... on consent”)

Luna–Martinez v. State, 984 So.2d 592, 597 (Fla. 2d DCA 2008), review denied, 11 So.3d 942 (Fla. 2009)

State v. Nadeau, 2010 ME 71, ¶ 18, 1 A.3d 445, 454-55 (2010) (holding that voluntariness of consent to search presents an “analogous” issue to voluntariness of a confession and thus, as in Miller, presents a “legal question that we will review de novo”)

Turner v. State, 133 Md.App. 192, 754 A.2d 1074, 1080 (2000) (relying on Ornelas to hold that consent to search implicates a “constitutionally protected right” requiring independent review (quotation omitted))

State v. Stevens, 311 Or. 119, 806 P.2d 92, 103 (1991) (a reviewing court has a “duty to interpret constitutional standards and require conformance thereto” and concluding that, as to voluntariness of consent to search, reviewing court must “assess anew whether the facts suffice to meet constitutional standards”)

State v. Shelton, 990 A.2d 191, 199 (R.I. 2010) (relying on Ornelas to hold that “the voluntariness of an individual’s consent to search is reviewed by this Court de novo”)

Hubert v. State, 312 S.W.3d 554, 559-60 & n. 14 (Tex. Crim. App. 2010)

State v. Weisler, 2011 VT 96, 190 Vt. 344, 35 A.3d 970, ¶ 20 (2011)

State v. Stokes, 332 Wis.2d 315, 797 N.W.2d 934 (table), 2011 WL 292144, 2011 WI App 44 (2011) (unpublished)

Actual or apparent authority to consent should also be subject to the same de novo standard of review. See, e.g.:

United States v. Gevedon, 214 F.3d 807, 810 (7th Cir. 2000); United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997)

Smith v. Heimer, 35 Fed.Appx. 293, 294 (8th Cir. 2002) (§ 1983 case)

United States v. Mullen, 329 Fed.Appx. 61, 64 (9th Cir. 2009); United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc); United States v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005); United States v. Fiorillo, 186 F.3d 1136, 1144 (9th Cir. 1999)

United States v. Trotter, 483 F.3d 694, 698 (10th Cir. 2007)

State v. Thompson, 578 N.W.2d 734, 740-41 (Minn. 1998)

Limon v. State, 340 S.W.3d 753, 757 (Tex. Crim. App. 2011); Hubert v. State, 312 S.W.3d 554, 559-60 (Tex. Crim. App. 2010)

This will be § 11.12 of the Fourth Edition, when I can finish it.

Permalink 12:01:19 am, by fourth, 275 words, 3032 views   English (US)
Categories: General

Center for Democracy and Technology: "Prominent Republicans Endorse ECPA Reform"

Center for Democracy and Technology: Prominent Republicans Endorse ECPA Reform by Mark Stanley:

The right to be protected against unreasonable government intrusions is enshrined in the Constitution’s Fourth Amendment, but Congress needs to act because the courts have lagged in extending privacy protections to new technology. And Congress can adopt reasonable and necessary limits on government power without hindering legitimate law enforcement investigations. Those were key messages of prominent Republicans at a Capitol Hill briefing hosted by The Constitution Project (see video below) last month.

The briefing was called to mark the 25th anniversary of the Electronic Communications Privacy Act (ECPA), the federal statute setting standards for government surveillance of our digital communications. Communications technology has changed dramatically since 1986, and ECPA no longer provides adequate privacy protection. For example, under the statute, the government claims it does not need a judicial warrant to read our stored email or track our movements using our mobile phones.

Given the importance of protecting communications and data stored in the cloud, leading conservative, libertarian and free market advocates have joined in a “strange bedfellows” coalition with liberal groups and major corporations to call on Congress to update the quarter-century-old ECPA. Senator Patrick Leahy (D-VT), Chairman of the Judiciary Committee and one of the original authors of ECPA, himself agrees that ECPA is outdated and has introduced a bill, the ECPA Amendments Act (S.1011), to require a warrant for intrusive surveillance.

Under the Leahy bill, the government would be required to obtain a warrant before accessing the content of our private digital communications. It would also be required to get a warrant before tracking someone’s location in real-time.

11/29/11

Permalink 08:15:27 am, by fourth, 381 words, 2985 views   English (US)
Categories: General

TX2: SW showed PC for different address than one searched, so search lacked PC and violated SW

The probable cause in the affidavit for search warrant was for 401 Baker St., so the search warrant showed no probable cause for 422 Cowan St., the place actually searched. Bonds v. State, 355 S.W.3d 902 (Tex. App.—Ft. Worth 2011):

Looking at the totality of the circumstances set forth in the supporting affidavit that was reviewed by the magistrate and recognizing that the magistrate may interpret the affidavit in a non-technical, common-sense manner and draw reasonable inferences from it, Officer Ashburn’s affidavit nonetheless does not provide a substantial basis to conclude that a fair probability exists that contraband or evidence of a crime would be found at the residence actually searched—the residence that now bears an address placard for 422 Cowan. The information in Officer Ashburn’s affidavit connects the items to be seized with 401 Barker Street via the informant’s nine-month-old tip that he had seen drugs in Bonds’s home--which Officer Ashburn identified as 401 Barker Street when he transported the informant to the location to point out Bonds’s home—and via garbage searches of refuse left for collection at 401 Barker Street (the object-place nexus). The affidavit articulates criminal activity by Bonds—the offenses of possession of methamphetamine and cocaine, possession of drug paraphernalia, and the sale of methamphetamine to the confidential informant—and connects Bonds, via his driver’s license address, a credit card application, and garbage searches, to 401 Barker Street (the criminal activity-place nexus). See Serrano, 123 S.W.3d at 61 (explaining that in determining whether a search warrant is supported by probable cause, the crucial element is not whether the person targeted by the search is suspected of a crime but whether it is reasonable to believe that the items to be seized will be found in the place to be searched). But virtually no facts exist in Officer Ashburn’s probable cause affidavit expressing any cause, much less probable cause, to search any residence other than 401 Barker Street. The probable cause facts stated in the affidavit (all linked to 401 Barker Street) do not “match up” with the location that was actually searched (the home next door now displaying an address placard for 422 Cowan). Accord Long, 132 S.W.3d at 447 (recognizing constitutional objective that probable cause must in fact be established for the place described in the warrant).

Permalink 08:09:14 am, by fourth, 137 words, 2981 views   English (US)
Categories: General

OH2: Search of probationer's house was without RS and invalid

The trial court erred in finding reasonable suspicion that defendant probationer was involved in criminal activity to justify the search of his room where he lived with his parents. The facts were as consistent with innocent activity as criminal activity, and it was no more than a hunch. State v. Karns, 2011 Ohio 6109, 196 Ohio App. 3d 731, 965 N.E.2d 352 (5th Dist. 2011).*

During a traffic stop, the “overwhelming odor of air freshener” and shaking hands was reasonable suspicion of drug trafficking. United States v. Gandy, 2011 U.S. Dist. LEXIS 135938 (E.D. Tex. October 27, 2011).*

Defendant was a passenger in a vehicle and lacked standing to challenge its search, but not its stop. The car matched the description of a car involved in a carjacking, and that was reasonable suspicion for a stop. State v. Davis, 2010 Tenn. Crim. App. LEXIS 1105 (April 19, 2010).*

Permalink 12:02:44 am, by fourth, 111 words, 2997 views   English (US)
Categories: General

OH3: Search of car not justified by “officer safety” where defendant was handcuffed and in the back of a police car

The search of defendant’s car for “officer safety” was unjustified where defendant was handcuffed and in the back of a police car at the time. State v. Sheridan, 2011 Ohio 6011, 2011 Ohio App. LEXIS 4922 (3d Dist. November 21, 2011).*

Observing defendant running his truck into a ditch was reasonable suspicion for a stop for driving under the influence. Bondegard v. State, 81 So. 3d 1181 (Miss. App. 2011).*

In defendant’s stop for running a red light, IDs with Hispanic surnames were found on his person. Considering the area was known for robberies of Hispanics, there was probable cause to search the car under the automobile exception. United States v. Woodruff, 830 F. Supp. 2d 390 (W.D. Tenn. 2010).*

11/28/11

Permalink 07:27:30 am, by fourth, 339 words, 3196 views   English (US)
Categories: General

ID: Tobacco on breath at school justifies car search for possession of tobacco on school grounds under T.L.O.

Assistant principal’s smelling tobacco on defendant’s breath justified a search of his car on school grounds for violation of school rules of any possession of tobacco on school grounds, including in cars. Reasonable suspicion of violation of a school rule is all that is required, not a violation of the criminal law; and, here, defendant was over 18 and legally able to otherwise possess. A marijuana pipe was found. State v. Voss, 152 Idaho 148, 267 P.3d 735 (App. 2011):

In examining the authority in [T.L.O. and Redding], we hold that the search of Voss’s vehicle was justified at its inception. Both T.L.O. and Redding indicate that the reason for the schoolyard search exception to the warrant and probable cause requirements is precisely for the swift enforcement of school policies that maintain the order and safety of the educational atmosphere. As such, the assistant principal could justify the search of Voss’s vehicle on school grounds based solely on reasonable suspicion that Voss was in possession of tobacco in violation of school policy—even if it would not otherwise constitute a crime.

In holding that a search may be justified at its inception because of reasonable suspicion the student is violating only a school rule that may or may not also constitute a crime, we find language in T.L.O. particularly persuasive. There, the Supreme Court stated that a search of a student by a school official “will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” T.L.O., 469 U.S. at 341-42 (emphasis added). Additionally, when the Supreme Court dispensed with the warrant requirement, it noted that having to obtain a warrant “before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.” Id. at 340. ...

Permalink 12:33:19 am, by fourth, 260 words, 2983 views   English (US)
Categories: General

KY: RS existed for stop of group where some were dealing drugs on street

Despite Ybarra, the police had reasonable suspicion for a stop and frisk of defendant who was with a group where some were openly dealing drugs in front of a house. Williams v. Commonwealth, 364 S.W.3d 65 (Ky. 2011):

Police had reasonable, articulable suspicion of criminal activity to justify the Terry stop of Williams. He was part of a distinct group of nine people loitering in front of a vacant house. Police observed two or more members of the group smoking marijuana, and one person adulated to police that he possessed a bag of marijuana. When police approached, they quickly discovered two handguns on two different people. So the officers had reasonable, articulable suspicion of drug use and the potentially dangerous presence of concealed deadly weapons justifying an investigatory stop of all the persons in this group. Once the officer made the constitutional investigatory stop, he had reason to believe that Williams was armed and dangerous because the officer saw the bulge created by the handgun concealed in Williams's clothing in the center of Williams's back. So we find that this seizure of Williams was a constitutional Terry stop.

While defendant originally refused to consent saying that the apartment he was staying in belonged to his friend, he still had a reasonable expectation of privacy in the apartment. He ultimately consented to an entry to look at a rifle that he said had been left there by another for hunting when it was not yet hunting season. He was then a felon in possession. United States v. Rogers, 661 F.3d 991 (8th Cir. 2011).*

Permalink 12:23:59 am, by fourth, 547 words, 3033 views   English (US)
Categories: General

CA8: Cars in driveway and no answer permitted knock-and-talk at back door

When nobody answered at the front door and there were two operable cars in the driveway, it was reasonable for the police to go to the back door for a knock-and-talk. In the backyard under a tarp, but partially visible, was a 30-ton hydraulic press used for pressing cocaine into bricks. The court mentioned that no fences had to be crossed to get to the back door. United States v. Gonzalez, 441 Fed. Appx. 404 (8th Cir. 2011) (unpublished):

This Circuit has found invasions into an area where a person holds a reasonable expectation of privacy to be lawful so long as the intrusion was justified by “some legitimate reason for being present unconnected with a search directed against the accused.” United States v. Anderson, 552 F.2d 1296, 1299-1300 (8th Cir. 1977) (internal quotation marks and citation omitted). Furthermore, an entry is considered justified when officers have a “legitimate law enforcement objective.” United States v. Weston, 443 F.3d 661, 667 (8th Cir. 2006). And, we have held that general investigatory procedures, such as when agents visit a residence with the intention of questioning a suspect, qualify as a legitimate law enforcement objective. Anderson, 552 F.2d at 1298, 1300. Finally, where officers acting on such a legitimate law enforcement objective have a reasonable belief someone is home, our Circuit and others have found proceeding to an alternative entrance a reasonable invasion of the occupant’s privacy. See United States v. Raines, 243 F.3d 419, 420-21 (8th Cir. 2001) (holding officer reasonably proceeded to the rear of a house to serve civil process after no one answered the front door, there were several cars parked in the driveway, and the officer suspected the residents did not hear him knock, and the officer was following County procedure); Anderson, 552 F.2d at 1298, 1300 (holding agents did not violate occupant’s Fourth Amendment rights when no one answered the front door knock-and-announce, agents suspected someone was home because a light was visible in the house, and agents heard a dog barking); see also Hardesty v. Hamburg Tp., 461 F.3d 646, 653-54 (6th Cir. 2006) (stating “[o]fficers’ decision to proceed around the house to seek out a back door was within the scope of the knock and talk investigative technique” where “circumstances indicate that someone is home”: those circumstances existed when multiple cars were in the driveway and an interior light had been extinguished as officers approached); Alverez v. Montgomery Cnty., 147 F.3d 354, 356 (4th Cir. 1998) (“The Fourth Amendment does not prohibit police, attempting to speak with a homeowner, from entering the backyard when circumstances indicate they might find him there[.]”); United States v. James, 40 F.3d 850, 862 (7th Cir. 1994) (rev’d in part on other grounds, 516 U.S. 1022 (1995)) (“[W]here the back door of a residence is readily accessible to the general public, the Fourth Amendment is not implicated when police officers approach [*7] that door in a reasonable belief that it is a principal means of access to the dwelling.”); United States v. Bradshaw, 490 F.2d 1097, 1100-1101 (4th Cir. 1974) (“[The agent was] clearly entitled to go onto defendant’s premises in order to question him concerning the abandoned vehicle near his property. Furthermore, we cannot say that [the agent] exceeded the scope of his legitimate purpose for being there by walking around to the back door when he was unable to get an answer at the front door.”).

Permalink 12:13:24 am, by fourth, 567 words, 2962 views   English (US)
Categories: General

D.Kan.: While stop was invalid, passenger did not show nexus to finding drugs and his stop

Defendant’s request to certify interpretation of the state following too close statute to the state supreme court is denied; the federal courts have already well interpreted it. Based on the officer’s testimony, following too close did not justify the stop here. However, defendant did not show standing to challenge the search of the car, as opposed to the stop, or a factual nexus to his stop and the finding of the drugs. United States v. Ibarra, 2011 U.S. Dist. LEXIS 135514 (D. Kan. November 23, 2011)*:

The only way defendant may challenge the search, therefore, is to use a derivative evidence theory—to argue that but for his unlawful detention, the officer would not have found the drugs. United States v. DeLuca, 269 F.3d 1128, 1135 (10th Cir. 2001). In the Tenth Circuit, there must be a “causal link between the violation and the contraband.” Id. at 1134-35. If the evidence ultimately found in the vehicle is the fruit of the defendant's illegal detention, then the defendant will have standing to seek suppression. United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000). To prevail under this theory, however, the defendant bears a two-pronged burden. He must not only show that his original detention violated the Fourth Amendment, but also that there was a “factual nexus between the illegality and the challenged evidence.” Id. at 1131. If the defendant can show that the evidence would not have been found but for his—and only his—detention, then the burden shifts to the government to show that the evidence is not the fruit of the poisonous tree. DeLuca, 269 F.3d at 1133. Although this framework has been criticized, see, e.g., United States v. Mosley, 454 F.3d 249 (3d Cir. 2006), the Tenth Circuit has recognized that courts are bound by precedent to follow it, see United States v. Ladeaux, 454 F.3d 1107, 1111 n.4 (10th Cir. 2006).

Under prevailing Tenth Circuit law, defendant has not met his burden and demonstrated the factual nexus required for suppressing the drugs found in the car. Defendant has provided no evidence of a factual nexus between the violation of his rights and the challenged evidence. As previously mentioned, defendant must show that the evidence would not have been found but for his own unlawful detention. This can be done by showing that had defendant departed the scene, he would have been allowed to leave in the vehicle. See Nava-Ramirez, 210 F.3d at 1131 (“At the suppression hearing, Nava-Ramirez put on no evidence to demonstrate that had he, at some point after the passenger compartment search was completed but before the trunk search began, requested permission or otherwise attempted to depart the scene, he would have been able to leave in Wald's car. In the absence of some supportive proof, this court cannot simply speculate that Wald would have given Nava—Ramirez permission to take his car.”). Defendant presented no such evidence. There is no evidence before the court that he had possessory control over the vehicle or that he would have otherwise been allowed to leave the scene in the vehicle. And there is no evidence that the drugs were found as a result of defendant's detention. The drugs were found because Ms. Rendon-DeMartinez—the person with the owner's permission to possess the vehicle—consented to a search of the vehicle. Defendant has not established a factual nexus between his detention and the discovery of the drugs, and the court denies his motion to suppress.

Permalink 12:01:30 am, by fourth, 309 words, 2952 views   English (US)
Categories: General

W.D.Ky.: SW for chat logs and transmitted pictures to police decoy properly led to child porn

In an internet traveler case without travel involving Perverted Justice, a search warrant was issued for defendant’s computer for chat logs and pictures sent to the decoy officer. In the picture folder, the forensic search found child pornography in “plain view” under an otherwise valid warrant. United States v. Wilmes, 2011 U.S. Dist. LEXIS 134757 (W.D. Ky. November 14, 2011)*:

In the instant case, the valid portion of the warrant authorized a search for “chat logs, emails, data files, and any other electronic information stored on the electronic media that may support the allegation of contact between Wilmes and the ‘child.’” Investigator Baker searched for images of Wilmes that may have been transferred to the decoy by navigating directly to the Yahoo! Photo Sharing folder, the folder in which any such images would have been stored. It was reasonable for Investigator Baker to open the Yahoo! Photo Sharing folder to determine if it contained evidence of child enticement. In that folder Investigator Baker encountered images that appeared to involve child pornography along with images of the Defendant. After verifying the nature of the illegal images, Investigator Baker then promptly secured a search warrant to conduct a search specifically looking for additional images of child pornography.

In summary, Investigator Baker discovered what immediately appeared to be evidence of child pornography in plain view during his search and had lawful right of access to those photographs as they were accessed automatically during a search for evidence of child enticement. Accordingly, the child pornography evidence would have been inevitably discovered during the properly authorized forensic search of Wilmes’s computer for evidence of child enticement. As a result, the evidence is admissible and the motion to suppress is DENIED. Accord id.; United States v. Underwood, 2010 U.S. Dist. LEXIS 134092, 2010 WL 5313766 (W.D. Ky. Dec. 20, 2010); United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010).

11/27/11

Permalink 06:59:36 am, by fourth, 205 words, 3044 views   English (US)
Categories: General

M.D.N.C.: Wave to defendant to come over was not a seizure

A wave to defendant to come over to talk was not a seizure. Although there were three officers there, nobody ordered defendant to do it, and it was by consent and not a seizure. United States v. Robertson, 2011 U.S. Dist. LEXIS 135526 (M.D. N.C. November 22, 2011),* relying on United States v. Laboy, 979 F.2d 795, 799 (10th Cir. 1992), State v. Hall, 339 Ore. 7, 115 P.3d 908 (2005), State v. Nelson, 134 Idaho 675, 8 P.3d 670 (2000).

The officer acted with reasonable suspicion. The stop was for overtinted windows. Once the car was stopped, the officer recognized the defendant as having been involved in numerous past weapons offenses. Then there was a furtive movement in the car. United States v. Johnson, 452 Fed. Appx. 219 (3d Cir. 2011) (unpublished).*

There was probable cause to search defendant’s property for evidence of a bank robbery. The information the police gathered was from a CI that defendant was bragging about having committed the robbery, a “contributor of information” with information, and the defendant’s landlord. The landlord’s information was exculpatory on one hand but connected defendant and another and that aided probable cause on the totality. In any event, the good faith exception would apply. United States v. Lopez, 2011 U.S. Dist. LEXIS 134616 (W.D. Pa. November 22, 2011).*

Permalink 06:15:56 am, by fourth, 171 words, 3247 views   English (US)
Categories: General

Wired.com: "9 Reasons Wired Readers Should Wear Tinfoil Hats"

Wired.com: 9 Reasons Wired Readers Should Wear Tinfoil Hats by David Kravets on the assault on privacy:

There’s plenty of reason to be concerned Big Brother is watching.

We’re paranoid not because we have grandiose notions of our self-importance, but because the facts speak for themselves.

Here’s our short list of nine reasons that Wired readers ought to wear tinfoil hats, or at least, fight for their rights and consider ways to protect themselves with encryption and defensive digital technologies.

We know the list is incomplete, so if you have better reasons that we list here, put them in the comments and we’ll make a list based off them.

Until then, remember: Don’t suspect a friend; report him.

A thought provoking piece. They are:

• Warrantless Wiretapping
• Warrantless GPS Tracking
• Tracking Devices in Your Pocket
• Fake Cell Phone Towers
• The Border Exception
• The “6 Months and It’s the Government’s” Rule under ECPA
• The Patriot Act
• Government Malware
• Known Unknowns

How long the cell carriers keep stuff:


Permalink 12:13:14 am, by fourth, 292 words, 2995 views   English (US)
Categories: General

IA: Lesser intrusive measure not required to impoundment

Impoundment of defendant’s car was reasonable under the standardized procedures of the police department. They were not required to take the initiative to leave the car where it was, which might not have been practical anyway. State v. Cowan, 2011 Iowa App. LEXIS 1415 (November 23, 2011)*:

On appeal, Cowan makes much of the officers' failure to check with the property owner to see if Cowan had permission to park his car at that location. Significantly, Cowan did not tell the officers he had permission to park there and did not object to his car being towed. Moreover, the officers could reasonably infer Cowan did not have permission to leave his car there, given the remote venue and the late-night timing of his mission to steal anhydrous ammonia from the Fowler elevator. Finally, it is not a constitutional requirement that police pursue a less intrusive alternative to impoundment. Huisman, 544 N.W.2d at 439.

While the officer was talking to the defendant, he could see the corner of a baggy of marijuana sticking out. He asked about drugs, and the defendant denied possession of any drugs. That justified pulling out the bag. State v. Klimstra, 2011 Iowa App. LEXIS 1362 (November 23, 2011).*

Defendant was in a motel room and management called the police that they got complaints of him smoking marijuana in the room. The police did a knock-and-talk on the room, and defendant let them in to look around, and marijuana was found. The motion to suppress was denied without findings. While the officers’ trial testimony differed slightly from the suppression motion, defendant did not ask to revisit the suppression motion, so the trial testimony would not be relied upon on appeal. The record showed the defendant consented to the entry. State v. Klaich, 2011 Iowa App. LEXIS 1356 (November 23, 2011).

Permalink 12:02:33 am, by fourth, 316 words, 3072 views   English (US)
Categories: General

M.D.La.: Defendant was arrested, handcuffed, and questioned without being Mirandized; confession in car suppressed

Defendant’s stop was objectively reasonable for turning too wide. When the officer approached, there were furtive movements in the car. After defendant was handcuffed and arrested he was questioned without being Mirandized, and his confession is suppressed. United States v. Duheart, 2011 U.S. Dist. LEXIS 134082 (M.D. La. November 21, 2011)*:

The Court first concludes that Defendant’s detention was, indeed, custodial. Defendant was handcuffed, placed in the backseat of a patrol car, and had his shoes removed, and a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of a degree which the law associates with formal arrest. See Courtney, 463 F.3d at 337. As such, the officers were required to advise Defendant of his Miranda rights. Defendant began “confessing” a few minutes before 3:00 a.m., Defendant was not advised of his Miranda rights until approximately 3:06 a.m. ... Defendant also confessed subsequent to the advisement of his rights. As the Court finds that Defendant was in custody, his confession of being “convicted of cocaine” between 2:58:19 and 2:59:06, must be suppressed. ... Furthermore, pursuant to guidance provided by the Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643—where the Supreme Court held that Miranda warnings given mid-interrogation after the defendant gave an unwarned confession were ineffective, and thus a confession repeated after warnings were given was inadmissible at trial—the Court must also suppress any other confessions or statements Defendant made during his colloquy with officers Morse and Lea after he was advised of his rights.

Defendant doctor was convicted of tax evasion, and he claimed that defense counsel was ineffective for not appealing his motion to suppress which was denied. The motion was correctly denied, so defense counsel couldn’t be ineffective for not appealing what would be a meritless issue. United States v. Miller, 2011 U.S. Dist. LEXIS 134399 (W.D. La. November 21, 2011).*

11/26/11

Permalink 09:32:59 am, by fourth, 238 words, 3000 views   English (US)
Categories: General

E.D.Ky.: Man fleeing wrecked stolen car ran into house and police could enter in hot pursuit

Defendant was in a stolen car and ran on foot from the scene of an accident and was tailed to his home. The entry into the home was “hot pursuit” and justified by exigent circumstances. United States v. Franklin, 2011 U.S. Dist. LEXIS 135759 (E.D. Ky. August 31, 2011):

Pursuant to the preventing-escape exception to the warrant requirement, and considering the factors enumerated in Rohrig, 98 F.3d at 1518, the Court finds the officers did not violate Franklin's Fourth Amendment rights. The officers were pursuing a suspected felon who had stolen a car and run from the scene of an accident. It was reasonable immediately to set up a perimeter around the residence to which the suspect had apparently run to prevent further flight and potential escape. The Government's interest in preventing the suspected felon's escape was sufficient to justify the measured entry here, which was into the curtilage, as opposed to the interior, of Franklin's home. Balancing the officers' important interest against Franklin's privacy interest in his side/backyard, the Court finds by a preponderance of the evidence that the officers were lawfully present at the rear corner of Defendant's home.

Officers had plenty of reasonable suspicion when he was seen again on a remote road near the border after having crossed over four days earlier in a different truck. Older trucks with new Mexican license plates are common. United States v. Gomez, 2011 U.S. Dist. LEXIS 135637 (D. Ariz. October 11, 2011).*

Permalink 12:24:00 am, by fourth, 312 words, 3021 views   English (US)
Categories: General

CA10: If trial testimony affects the denied suppression motion, defendant must seek to reopen in trial

If trial testimony would potentially alter the outcome of a pretrial motion to suppress that was denied, the defendant has the burden to seek to reopen the suppression issue. Without it, the trial evidence cannot be considered. The issue in this case was apparent authority to consent, and the court did not have to decide actual authority if apparent authority exists. United States v. Bass, 661 F.3d 1299 (10th Cir. 2011):

Although Defendant raises some arguments based on evidence elicited at trial, we will consider only the evidence before the district court at the suppression hearing. Because “the district court should have the first opportunity to correct its mistake,” we ordinarily “will not consider trial evidence which undermines a district court decision rendered at a pretrial suppression hearing.” United States v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993). The district court may consider trial testimony if the defendant renews the suppression motion at trial, see id., but the court ordinarily need not do so if counsel fails to alert the court to how the evidence has been altered or supplemented at trial and why the change would affect the ruling. Absent exceptional circumstances that would justify relief for plain error, the court has no responsibility on its own to compare trial evidence with the evidence at the hearing and then analyze whether its prior ruling should stand. See id.; United States v. Humphrey, 208 F.3d 1190, 1204 (10th Cir. 2000) (if trial testimony would support a different legal justification for suppressing evidence, the defendant must inform the trial court of that new justification in renewing suppression motion at trial); cf. United States v. Burke, 633 F.3d 984, 987-88 (10th Cir. 2011) (failure to include a particular argument in a pretrial suppression motion waives the argument on appeal); Sorensen v. City of Aurora, 984 F.2d 349, 355 (10th Cir. 1993) (failure to raise specific objection to district court's exclusion of evidence precluded review on appeal).

Permalink 12:12:48 am, by fourth, 511 words, 3071 views   English (US)
Categories: General

Air Force: Military personnel lose any reasonable expectation of privacy in a urine sample given for testing

Military personnel have a lesser expectation of privacy when they give a urine sample for testing. Here, defendant consented but attempted to withdraw his consent before the testing actually occurred. Once in government control, a member of the military loses any reasonable expectation of privacy in it. United States v. Dease, 2011 CCA LEXIS 317 (A.F. Ct. Crim. App. September 29, 2011):

... Just as the lapse in exigent circumstances does not revive an expectation of privacy in a blood sample taken by the government, a revocation of consent to seize a urine specimen does not revive an expectation of privacy in a urine sample surrendered to the government.

In finding that a reasonable expectation of privacy in a urine sample continues after it has been provided to the government for testing, the military judge states that one who provides a urine specimen has “a reasonable expectation that the government will properly secure his sample and prevent unauthorized access, tampering, or testing of that sample.” In support of this conclusion the military judge analogizes the privacy interest in a bottle of urine to that in a computer. But we find the analogy incorrect. Unlike a computer hard drive in which one might reasonably retain some possessory and privacy interest after voluntarily providing it to the government for analysis, urine is by definition a waste product which will ultimately be destroyed and in which no continuing reasonable expectation of privacy exists. See Venner, 367 A.2d at 956 (The accused could “not have had an ‘expectation ... that society [would be] prepared to recognize as ‘reasonable’ a property right in human excreta for the simple reason that human experience is to abandon it immediately.”).

While society recognizes a reasonable expectation of privacy in the act of urination and the urine excreted under normal circumstances, we find that this reasonable expectation does not survive voluntary surrender of urine waste to government control for analysis. We agree with the military judge that at the time he provided the sample the appellee could reasonably expect his urine sample to be secured against unauthorized access. But this alone is insufficient to maintain a reasonable expectation of privacy subject to Fourth Amendment protection: the appellee should also have reasonably expected the sample to be tested at any time, to be incrementally destroyed during testing, and to be ultimately discarded.

Under the circumstances of this case, we find no continuing reasonable expectation of privacy in the sample and, therefore, no continuing Fourth Amendment protection which the appellee’s revocation of consent could reclaim. As stated above, a threshold requirement for Fourth Amendment protection against unreasonable searches is a subjective expectation of privacy in the item or area to be searched that society recognizes as objectively reasonable. In the case of waste urine provided to the government for testing, we find that this threshold requirement is not met. Like delivering garbage to the curb, the appellee voluntarily abandoned any reasonable expectation of privacy in his waste urine when he delivered it to the government for analysis. See Greenwood, 486 U.S. at 39-40; Venner, 367 A.2d at 956.

Permalink 12:02:19 am, by fourth, 162 words, 3032 views   English (US)
Categories: General

D.Ariz.: Driving less than the speed limit in the left lane was RS for stop

Defendant’s stop for driving less than the posted speed limit in a truck on I-10 trough Tucson was valid. As the officer approached, passengers were ducking which strongly suggested they were illegals in the U.S. hiding from the police. United States v. Morales, 2011 U.S. Dist. LEXIS 135125 (D. Ariz. October 4, 2011).*

“In this case, the detectives had reasonable suspicion that criminal activity was afoot after they stopped the car and smelled burnt marijuana. After Brooks denied having anything in the car, he voluntarily got out, raised his arms over his head and consented to a pat down. Then he fled and resisted arrest. At this point, and once the firearm was discovered, the detectives had ample authority to arrest.” United States v. Brooks, 448 Fed. Appx. 27 (11th Cir. 2011).*

Defendant’s stop was justified as a parole search because officers knew he was on parole at the time of the stop. United States v. Woodson, 2011 U.S. Dist. LEXIS 135271 (N.D. Cal. November 23, 2011).*

11/25/11

Permalink 12:10:13 pm, by fourth, 553 words, 3303 views   English (US)
Categories: General

CA1: Frisk was fruit of unlawful stop without RS

Defendant was stopped and detained near a street “rumble” involving the Latin Kings, but there was nothing that justified the inference that he was a member of the Latin Kings or even involved in the brawl. “Tapping” defendant’s waist with an open palm was a frisk, and it violated the Fourth Amendment because it was the fruit of the unlawful stop under Wong Sun. United States v. Camacho, 661 F.3d 718 (1st Cir. 2011):

Under these facts, we need not address the legality of the frisk itself. We conclude that regardless of the legality of the frisk, the discovery of the gun was so tainted by the illegal stop that it should have been suppressed as “fruit of the poisonous tree.” See Werra, 638 F.3d at 341 (noting that the reasonableness of a protective frisk does not determine the suppression issue generated by an earlier Fourth Amendment violation).

Evidence obtained during a search may be tainted by the illegality of an earlier Fourth Amendment violation, so as to render such evidence inadmissable as “fruit of the poisonous tree.” See United States v. D’Andrea, 648 F.3d 1, 6 (2011) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)) (internal quotation marks omitted); see also Werra, 638 F.3d at 341. “[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’” Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) (citation omitted) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939)). This rule equally extends to both the direct and the indirect products of unlawful searches and seizures. See Wong Sun, 371 U.S. at 484. “[T]he indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.” New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). Suppression is not appropriate, however, if “the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’” Segura, 468 U.S. at 805 (quoting Nardone, 308 U.S. at 341).

Determining the consequences of unlawful police conduct for seized evidence requires looking at both causation and attenuation. The Supreme Court has declined to adopt a simple “but for” test that would mandate suppression of any evidence that “came to light through a chain of causation that began with an illegal arrest” or another Fourth Amendment violation. United States v. Leon, 468 U.S. 897, 910-11, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); see also Hudson v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006) (“[B]ut-for causality is only a necessary, not a sufficient, condition for suppression.”). A strict but-for rule would prove nearly limitless. “Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Wong Sun, 371 U.S. at 488 (quoting J. Maguire, Evidence of Guilt 221 (1959). When determining attenuation, “temporal proximity [], the presence of intervening circumstances, and, particularly the purpose and flagrancy of the official misconduct are all relevant.” Brown, 422 U.S. at 603-604.

Permalink 11:59:15 am, by fourth, 258 words, 2920 views   English (US)
Categories: General

CA1: Driving car of other and having access to garage was enough to enter with a warrant under Steagald

In a Bivens action against the DEA in Puerto Rico for entering a house of another looking for a person named in a warrant, knowledge that the person named in the warrant drove the car of the other person and had access to his garage inferred access to the house, and that was enough to enter under Steagald. Solis-Alarcón v. United States, 662 F.3d 577 (1st Cir. 2011):

In a nutshell, the DEA agents had evidence that Díaz-Suazo was twice seen using a vehicle registered to Solis-Alarcón and parked at the latter's house; that Díaz-Suazo had access to the garage and presumably the house; and that Díaz-Suazo did not live at the address set out in his driver's license. Perhaps, too, they could place weight on the judgment of the local officers that Díaz-Suazo lived at #17 Alondra St. And, if he did live there, it would be reasonable to believe him in residence early in the morning.

The judgment that he did live there would perhaps be a close call if the issue before us were whether evidence seized in the search should be suppressed. In many like search cases, the police had more potent evidence of residence, such as statements of the subject himself, extensive records linking the person to the address, or a combination of a reliable tip, a recent police report, and a contemporaneous witness identification. See also Werra, 638 F.3d at 337 (“doubt[ing]” that an informant’s tip could support a reasonable belief that suspect lived in a rooming house).

Permalink 11:31:02 am, by fourth, 402 words, 3116 views   English (US)
Categories: General

M.D.Fla.: Defendant's damaged gate justified an entry into his house [!]

Defendant’s neighbor called the police to report that defendant’s property’s gate was damaged by what looked like a vehicle rammed it. Police responded, came on the property, and found a door to the house unlocked. The entry was justified by exigent circumstances. United States v. Garcia, 809 F. Supp. 2d 1165 (M.D. Fla. August 3, 2011)*:

Upon knocking at the front door, he received no answer. When he checked the windows and doors, he realized one door was unlocked. Though he found no signs of forced entry, his discovery that a door was unlocked objectively could have suggested someone was inside. Cf. Tibolt, 72 F.3d at 967, 970. Deputy Roe called for backup, and when the backup deputy arrived, the two decided to enter the residence. Before they did so, they shouted “Sheriff’s Office. Come out and make yourself known.” There was no response. Combined with the other factors, which viewed objectively suggested someone could have been inside, the lack of response to their command lends further support for the conclusion that it was reasonable to believe someone could be inside and unable to respond, thus in need of immediate aid. Cf. id. at 970. Just as in Tibolt, without going inside, the officers could not have known whether “an intruder had managed to get into the residence, and even injured or captured a resident, then fled; or had been caught off guard by the police and remained in the residence with a forcibly detained resident.” Id. at 970.

Viewing the totality of the circumstances, the undersigned concludes that it was objectively reasonable for officers to believe someone was in need of immediate aid, and therefore they were permitted to enter the home without a warrant for the purpose of looking for that individual. See McGough, 412 F.3d at 1237 (citation omitted). That Deputy Roe smelled marihuana when he opened the door, and that he admitted the smell was “another factor but not the deciding factor” contributing to his decision to enter the residence, are of no consequence because the subjective intent of law enforcement officers and the seriousness of any possible crime they are investigating are irrelevant. See Fisher, 130 S. Ct. at 548 (quotation and citation omitted).

I’m not buying it. The damage was to the gate, there were no cars on the property, there was absolutely no reason to believe that an entry into the house was justified under any stretch of the imagination.

Permalink 11:14:04 am, by fourth, 200 words, 2944 views   English (US)
Categories: General

CA1: Drug sale led to knock-and-talk and plain view of buy money

A drug sale occurred out of defendant’s house where a marked $20 bill was passed outside, the defendant went into the house and returned with drugs. Officers then did a knock-and-talk and saw the $20 bill in plain view. Its seizure was proper. United States v. Paneto, 661 F.3d 709 (1st Cir. 2011).*

Officers had reasonable suspicion for stopping defendant’s vehicle ½ mile from the Canadian border when it was driving in a “looping pattern” on a cold and rainy day (which is their smuggling prime time). Two other vehicles had been stopped that night for driving the same without anybody getting ticketed or further detained, although defendant was suspected of driving both vehicles (which he later admitted) which smelled of damp marijuana but had none inside. United States v. Mayhew, 2011 U.S. Dist. LEXIS 134395 (D. Vt. November 21, 2011).*

The testimony of the NYPD officer that he stopped the defendant’s car because of a partially obscured license plate is belied by a photograph. His fellow officer in the car was found not credible because he refused to answer questions appropriately about allegations of his ticket fixing going to his credibility. United States v. Williams, 2011 U.S. Dist. LEXIS 134352 (S.D. N.Y. November 21, 2011).*

11/24/11

Permalink 11:50:48 am, by fourth, 321 words, 2914 views   English (US)
Categories: General

S.D.Fla.: Even with PC, police can seek consent rather than a search warrant

Just because the police have probable cause to get a search warrant does not mean they have to—they can still attempt to get consent. United States v. Hall, 2011 U.S. Dist. LEXIS 133522 (S.D. Fla. November 16, 2011)*:

First, the Court agrees that the police’s failure to obtain a warrant in this case even though they could have done so does not violate the Fourth Amendment. As the Supreme Court stated in King, “[f]aulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution.” 131 S.Ct at 1861. The King Court also stated that requiring a search warrant whenever the police have probable cause “unjustifiably interferes with legitimate law enforcement strategies” because “ [t]here are many entirely proper reasons why police may not seek a warrant but instead knock on the door and seek either to speak with an occupant or to obtain consent to search.” Id. One of the reasons the court lists is that “the police may want to ask an occupant of the premises for consent to search because doing so is simpler, faster, and less burdensome than applying for a warrant.” Id. This is analogous to this situation where the police believed it was simpler, faster and less burdensome to go to Defendant’s home and ask him to come down to the station with them.

Pro se plaintiff’s cryptic complaint stated a claim for excessive force under § 1983 that the defendant officer entered his property and shot him without provocation. Hall v. Burney, 454 Fed. Appx. 149 (4th Cir. 2011) (unpublished).*

Defendant saw police officers and reached for his pocket. They asked him what was in his pocket, and he said “a gun,” and that justified his patdown. He was not stopped or detained when he gave himself up. United States v. Allen, 447 Fed. Appx. 118 (11th Cir. 2011) (unpublished).*

Permalink 11:29:33 am, by fourth, 628 words, 3122 views   English (US)
Categories: General

E.D.Pa.: Seizure of computer and detailed search required by the PC did not make warrant overbroad

Search warrant for seizure of defendant’s computer and search for child pornography images was not overbroad. The computer was an instrumentality of the crime. A list was attached showing what was subject to seizure. United States v. Winther, 2011 U.S. Dist. LEXIS 133799 (E.D. Pa. November 18, 2011)*:

To determine whether the warrant was overbroad, this Court “must compare the search and seizure authorized by the warrant with the ambit of probable cause established by the supporting affidavit.” In re Impounded Case, 840 F.2d 196, 200 (3d Cir. 1988) (citing Christine, 687 F.2d at 753). Under the Fourth Amendment, “’[a]n otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based.’” Christine, 687 F.2d at 753 (quoting 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.6, at 97 (1978)). “The fact that the warrant authorize[s] a search for a large amount of documents and records does not necessarily render the search invalid so long as there exists a sufficient nexus between the evidence to be seized and the alleged offenses.” United States v. Am. Inv. of Pittsburgh, 879 F.2d 1087, 1105-06 (3d Cir. 1989). An overly broad warrant can be cured by redaction, that is, by “striking from a warrant those severable phrases and clauses that are invalid for lack of probable cause or generality and preserving those severable phrases and clauses that satisfy the Fourth Amendment.” Christine, 687 F.2d at 754.

. . .

Defendant’s argument that separate warrants are required to search defendant’s house and his computer ignores the fact that defendant’s computer use is the essence of the crimes with which he is charged: using the computer to access the Internet to entice interstate travel for illegal sexual activity, to entice a minor to engage in illegal sexual activity, and to attempt to transfer obscenity to a minor. “[F]ederal courts have not required a second warrant to search a properly seized computer where the evidence obtained in the search did not exceed the probable cause articulated in the original warrant.” Richards, ___ F.3d ___, 2011 U.S. App. LEXIS 21465, [WL] at *15. The computer and its contents were the focal point of the search warrant, not afterthoughts. The affidavit of probable cause established a sufficient nexus between defendant’s alleged inappropriate Internet activities and the house in which the computer was located. See Voicenet Commc’ns, Inc. v. Corbett, No. 04-1318, 2010 U.S. Dist. LEXIS 95619, 2010 WL 3657840, at *12-13 (E.D. Pa. Sept. 13, 2010) (rejecting overbreadth challenge in child pornography case where “the affidavit of probable cause specifically establishe[d], in detail, how the plaintiffs’ computer system would be of evidentiary value in the search for evidence of child pornography”).

This case bears a strong resemblance to United States v. Christie, in which the defendant was charged with advertising child pornography on the Internet and “[t]he entirety of the FBI’s investigation of him focused on his use of a computer to receive, distribute, and advertise child pornography.” 570 F. Supp. 2d 657, 683-84 (D.N.J. 2008). The Christie court emphasized that Internet usage was at the core of defendant’s alleged crimes and rejected an overbreadth challenge to a warrant that authorized a search for a list of items very similar to the Item List in this case: ...

As in Christie, the scope of the search authorized in this case was no broader than was supported by the affidavit of probable cause. Contrary to defendant’s claim, the warrant did not authorize the search and seizure “of all the files within [defendant's] computer.” (Mot. Supp. Phys. Evid. 8.) The warrant instead repeatedly limited the search’s scope to the offenses charged. (See, e.g., Item List ¶ 11 (restricting search of computer-related items to “items listed above” and “items specifically noted”).).

Permalink 07:45:12 am, by fourth, 70 words, 3004 views   English (US)
Categories: General

Computerworld.com: "Surrounded by surveillance: Is everything spying on you?"

Computerworld.com: Surrounded by surveillance: Is everything spying on you? by Darlene Storm:

Depending upon who you listen to, GPS tracking shouldn't be your only concern when you are out and about on the streets. The ACLU hammered license plate scanners as 'logging our every move,' a different investigative report concluded your car is spying on you, and some even claim the street lights are out to get you.

Permalink 07:08:14 am, by fourth, 161 words, 2968 views   English (US)
Categories: General

ABAJ.com: "Big Brother May Not Be Watching You, But Some Shopping Malls Know Where You Are at All Times"

ABAJ.com: Big Brother May Not Be Watching You, But Some Shopping Malls Know Where You Are at All Times by Martha Neil:

In an example of how cutting-edge technology apparently may be far ahead of lawmakers, PC Magazine is reporting that at least two U.S. shopping malls, in California and Virginia, will be tracking customers through their cellphones this holiday season.

The Footpath system, which tracks shoppers anonymously, according to those who promote it, is intended to help merchants maximize their real estate by identifying which areas of their stores are drawing the most customers.

The situation isn't yet a real-life equivalent of the sci-fi scene in Minority Report, in which Tom Cruise enters a shopping center and is immediately identified and bombarded with advertisements. However, the article points out that shoppers may not be aware they are being tracked by the system.

. . .

You can see a brief video demonstration of how the technology works on the company's site.")

Permalink 07:00:02 am, by fourth, 123 words, 2987 views   English (US)
Categories: General

CNET.com: "Police procedures leaked for getting into Facebook, other accounts"

CNET.com: Police procedures leaked for getting into Facebook, other accounts by Declan McCullagh:

Confidential guidelines telling police how to access Facebook, Microsoft, Blizzard, and AOL user accounts have appeared online this week.

The files, known colloquially as law enforcement guidelines, typically tell police what types of user data are stored, how long they're retained, and what procedures to use to gain access to them.

A few types of requests--for e-mail less than 180 days old, for instance--tend to require search warrants. In general, basic subscriber information can be disclosed with a subpoena, and a court order is required for more extensive information (whether that's sufficient is the subject of ongoing litigation in the Twitter-WikiLeaks case).

Here are some highlights from each company's policies: ...

11/23/11

Permalink 11:12:19 am, by fourth, 133 words, 2952 views   English (US)
Categories: General

The Hill: "Turkey Day provides TSA a chance to test new security procedures"

The Hill: Turkey Day provides TSA a chance to test new security procedures by Keith Laing:

The Transportation Security Administration says passengers will likely notice fewer pat-downs of children and other changes at airports over this long weekend, the busiest travel days of the year.

The changes are part of TSA’s move toward a “risk-based” security approach. Most of them have been in place since earlier in the fall, but they will be new to an estimated 3.4 million people who are expected to fly for the holidays.

“When traveling this holiday travel season, passengers may notice new procedures in place at airports, including modified screening for passengers 12 and under and additional privacy protections on more than half of our imaging technology units,” the agency said in a statement provided to The Hill.

Permalink 08:13:05 am, by fourth, 338 words, 3013 views   English (US)
Categories: General

CA3: Following blood trail upstairs in empty house was not with exigent circumstances

Officers responded to a call that defendant was shot in the hand. When officers arrived, he was the only person there, and he was taken to the hospital. One officer followed the blood trail upstairs and found drugs in plain view. The district court’s finding that this search was not justified by exigent circumstances was supported by the record. United States v. Wolfe, 452 Fed. Appx. 180 (3d Cir. 2011) (unpublished):

This last point bears strong emphasis. We should not be understood as holding that police officers cannot address ambiguous and evolving circumstances as their well-informed professional judgment dictates. In this case, however, Evans began his search after the two responding officers had already resolved the only exigency there was cause to believe existed. It is true that “[officers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception,” Fisher, 130 S. Ct. at 549 (internal quotation marks omitted), but here, after hearing the evidence, the District Court determined that Evans had no indication that additional victims or threats were inside the home after Wolfe’s departure. Though the government disagrees with that interpretation of the evidence, the finding is sufficiently supported to withstand review for clear error.

Defendant rear-ended an off-duty officer outside his jurisdiction. The officer’s actions in telling defendant to step out of the car, removing and retaining his keys from the ignition, and telling him to sit and wait in his car fell short of an “arrest” sufficient to trigger the citizen’s arrest rule. Instead, this was more akin to an investigatory stop, short of an arrest. Under the circumstances, where defendant rear ended the officer’s personal vehicle and appeared intoxicated, it was reasonable for the officer – as it would any private citizen – to prolong the stop until the local police arrived, in order to ensure the safety of the public and of defendant himself. Defendant was not under arrest until the local police officer arrived and placed him under arrest. Commonwealth v. Limone, 460 Mass. 834, 957 N.E.2d 225 (2011).*

Permalink 07:47:22 am, by fourth, 633 words, 3029 views   English (US)
Categories: General

NY4: Second search of computer before return to owner was valid under original warrant

Defendant’s computer was searched, and he pled guilty to possession of a single photograph of child pornography. After his plea, he requested his computer back, and it was searched again before return finding more child pornography overlooked before. He could be prosecuted separately for possession of the other photographs, and the subsequent second search of the computer was valid under the original warrant from seven months earlier. People v Deprospero, 2011 NY Slip Op 8421, 91 A.D.3d 39, 932 N.Y.S.2d 789 (4th Dept. 2011):

Turning to the novel issue on appeal, we conclude that the court properly refused to suppress evidence uncovered in the January 2010 search of property seized pursuant to the May 2009 warrant. While it is indeed the case that the examination at issue of defendant’s property occurred after sentencing on another charge and followed defendant’s request for the return of such property, we conclude that the police conduct in this case did not violate defendant’s Fourth Amendment rights for a number of reasons. First, defendant provides no support for his contention that the authority to search his property pursuant to the May 2009 warrant terminated at the conclusion of the 2009 prosecution, and we reject that contention. The search warrant directed the police to seize, inter alia, defendant’s computers, external drives, storage media, and cameras, and “authorize[d] the police agency to retain said property for the purpose of further analysis and examination.” There was no deadline in the warrant for completion of the forensic examination and analysis, “nor [does] the Fourth Amendment provide[] for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant” (United States v Hernandez, 183 F Supp 2d 468, 480; see United States v Syphers, 426 F3d 461, 469, cert denied 547 U.S. 1158, 126 S. Ct. 2312, 164 L. Ed. 2d 831; United States v Gorrell, 360 F Supp 2d 48, 55 n 5 [“The warrant did not limit the amount of time in which the government was required to complete its off-site forensic analysis of the seized items and the courts have not imposed such a prophylactic constraint on law enforcement”]; United States v Triumph Capital Group, Inc., 211 FRD 31, 66 [the Fourth Amendment does not “impose any time limitation on the government’s forensic examination of the evidence seized”]). Indeed, “[t]he Fourth Amendment itself contains no requirements about when the search or seizure is to occur or the duration’” (Syphers, 426 F3d at 469, quoting United States v Gerber, 994 F2d 1556, 1559-1560). Rather, “[t]he Fourth Amendment only requires that the subsequent search of the computer be made within a reasonable time” (United States v Mutschelknaus, 564 F Supp 2d 1072, 1076, affd 592 F3d 826).

Finally, we reject defendant’s further contention that the police were required to obtain a new search warrant before searching the property seized pursuant to the May 2009 warrant. “Once a person or his [or her] effects have been reduced to custodial control in the law enforcement system his [or her] privacy has been intruded upon” (People v Perel, 34 NY2d 462, 465, 315 N.E.2d 452, 358 N.Y.S.2d 383). The subsequent search of the property lawfully seized “is then but a lesser-related intrusion incident to the [seizure] already effected” (People v Greenwald, 90 AD2d 668, 668, 455 N.Y.S.2d 865; see Perel, 34 NY2d at 465; People v Payne, 233 AD2d 787, 787, 650 N.Y.S.2d 833 [“Once a person has been placed in custody, his [or her] privacy has been compromised and the subsequent examination and testing of items seized at the time of arrest is permissible as a lesser-related intrusion incident to the arrest already effected”]). Once defendant’s property had been lawfully seized pursuant to the May 2009 warrant, he lacked a legitimate expectation of privacy in that property, notwithstanding the passage of time (see People v Natal, 75 NY2d 379, 384, 553 N.E.2d 239, 553 N.Y.S.2d 650, ...).

11/22/11

Permalink 08:53:47 am, by fourth, 231 words, 2978 views   English (US)
Categories: General

N.D.Ind.: “[i]n the case of drug dealers evidence is likely to be found where the dealers live.”

There was probable cause to believe that defendant was a drug dealer, and it is reasonable for an issuing magistrate to conclude that evidence of drug dealing would be found where he lives. United States v. Sewell, 2011 U.S. Dist. LEXIS 133424 (N.D. Ind. November 17, 2011):

The Magistrate Judge, however, reasonably relied on evidence that Castaneda drove to the Residence soon after he had returned from a trip to California taken for the purpose of acquiring cocaine and on a day during which he had been on the phone discussing drug trafficking, to find probable cause. Additionally, “[i]n the case of drug dealers evidence is likely to be found where the dealers live.” United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996) (citing United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991)). While some information in the Affidavit, now corrected in the record, was not accurate, the Affidavit contained sufficient accurate information to permit the reasonable inference that the Defendant lived at or was associated with the Residence.

Defendant was stopped and arrested for driving on a suspended license. Because he was taken into custody, his vehicle was lawfully impounded and subjected to an inventory. United States v. Dill, 2011 U.S. Dist. LEXIS 133492 (S.D. Ind. November 18, 2011).*

The search of defendant’s car was supported by probable cause, so the automobile exception applied. United States v. Woodruff, 830 F. Supp. 2d 390 (W.D. Tenn. 2011).*

Permalink 08:32:36 am, by fourth, 395 words, 3062 views   English (US)
Categories: General

M.D.Pa.: Search warrant for computer intrusion justified seizure and search of all computer media for evidence

Defendant was fired from his job, and the company found by a stumbled-upon email he was still remotely accessing the company computer to take information from them. They traced his accesses to a particular IP address and reported it to the police. A search warrant was obtained for all his computer equipment for evidence of computer trespass, and that was the scope of search. In the course of the search, two potential pictures of child pornography were stumbled upon. The search stopped and another warrant was sought for child pornography. The warrant was valid for seizure of the computers for evidence of computer trespass at his house via the IP address in use by him at the time of the intrusion, and then the search. The warrant was not overbroad. United States v. Getgen, 2011 U.S. Dist. LEXIS 133239 (M.D. Pa. November 18, 2011):

Getgen argues that SW-61-09 should only have permitted the executing officers to search for evidence relating to Getgen’s use of his computer to access the internet, and, therefore, it was unnecessary to search any of his computer files on either his computer or other electronic media. (Doc. 28, at 13). As Getgen noted, however, remotely accessing another computer without authorization does not constitute computer trespass under § 7615. Instead, the key evidence of computer trespass related to the intercepted and forwarded email, which would likely leave evidence in the form of a file or other type of data in the computer of the intruder. Furthermore, the search could not be limited to certain dates or file extensions because computer files can be easily disguised. See, e.g., United States v. Highbarger, 380 Fed. App’x 127, 130 (3d Cir. 2010); United States v. Crespo-Rios, 645 F.3d 37, 43 (1st Cir. 2011) (citing cases); United States v. Hill, 322 F. Supp. 2d 1081, 1091 (C.D. Cal. 2004) aff’d, 459 F.3d 966 (“Criminals will do all they can to conceal contraband, including the simple expedient of changing the names and extensions of files to disguise their content from the casual observer .... There is no way to know what is in a file without examining its contents, just as there is no sure way of separating talcum from cocaine except by testing it.”). The risk of disguised files was especially cogent in the instant case when Getgen worked with computers professionally. (See Gov’t Ex. A). Accordingly, the court rejects Getgen’s argument that SW-61-09 was overbroad.

11/21/11

Permalink 06:46:42 am, by fourth, 141 words, 3136 views   English (US)
Categories: General

D.Neb.: Arrest of illegal alien at work did not permit search of her purse in work locker

Defendant was legally detained as an alleged illegal alien, but the search of her purse in her work locker was unreasonable. It was not abandoned and the employer could not consent. United States v. Chavez, 2011 U.S. Dist. LEXIS 132960 (D. Neb. October 3, 2011).

Informant’s reliability was sufficiently shown to justify the stop of the taxicab defendant was riding in. State v. Palmer, 2011 Tenn. Crim. App. LEXIS 834 (November 14, 2011).* (The court finds the driver consented to a search of the cab, but how can the cab driver consent to a search of the belongings of the defendant in the car?)

The district court erred in dismissing plaintiff’s complaint for false arrest under Heck because he had not yet been convicted, but that was harmless when he was later convicted and the Heck bar was triggered. Taylor v. Freeman, 447 Fed. Appx. 78 (11th Cir. 2011).*

Permalink 06:24:13 am, by fourth, 201 words, 2998 views   English (US)
Categories: General

CA8: Controlled buy on a wire inside a house justified entry on exigent circumstances

In three related cases, entry into defendant’s home after a controlled buy heard on a wire was with exigent circumstances. As to the latter case, a cell phone is so ubiquitous that it is not a “criminal tool.” State v. Freeman, 2011 Ohio 5651, 2011 Ohio App. LEXIS 4637 (8th Dist. November 3, 2011); State v. Atkinson, 2011 Ohio 5918, 2011 Ohio App. LEXIS 4848 (November 17, 2011); State v. Creighton, 2011 Ohio 5919, 2011 Ohio App. LEXIS 4842 (8th Dist. November 17, 2011).

Officers were at an apartment complex responding to a man with a gun call, and they were ultimately directed to a Buick in the parking lot which they looked in with a flashlight and saw drugs. The search of the car thereafter was valid. Even though the driver was not right there, it was still inherently mobile. State v. Miller, 2011 Ohio 5860, 2011 Ohio App. LEXIS 4798 (11th Dist. November 14, 2011).*

Police got a call about a suspicious man in a purple car. Defendant was seen in the car and observed going up to the side of a house then to the porch and back to the car. The officer had probable cause to believe that defendant was there to break into houses, and his stop was justified. State v. Williams, 2011 Ohio 5909, 2011 Ohio App. LEXIS 4825 (6th Dist. November 10, 2011).*

11/20/11

Permalink 01:00:33 pm, by fourth, 236 words, 3020 views   English (US)
Categories: General

S.D.Fla.: First SW with wrong address was cured by going back to issuing magistrate for reissue

The initial SW had an incorrect address, right number, wrong street. When the officer found out, he went back to the magistrate to get it reissued. The warrant was with probable cause, and the good faith exception applies. United States v. Woods, 2011 U.S. Dist. LEXIS 132437 (S.D. Fla. November 3, 2011), adopted 2011 U.S. Dist. LEXIS 132443 (S.D. Fla. November 16, 2011)* (If anything, the good faith exception should apply. What more can one ask for than to have the officer go back to the issuing judge and get it reissued for the correct address? What more could he do? To me, this isn't even a close case.)

Defendant’s patdown was with reasonable suspicion. He was in a high crime area, and it certainly appeared to the officer that a hand-to-hand transaction just occurred. Tolbert v. State, 2011 Ala. Crim. App. LEXIS 98 (August 26, 2011).*

Defendant’s detention in the backseat of a locked squad car—where arrested individuals were detained—and the presence of twice as many law-enforcement officers as detainees at the scene created a “police-dominated atmosphere” suggesting custody and reinforced to defendant that she was targeted by the investigation. By the time defendant confessed, her detention could no longer be fairly characterized as an ordinary traffic stop. Defendant was questioned while in custody without receiving Miranda warnings and waiving her right against self-incrimination and her right to counsel. People v. Jordan, 2011 Ill. App. LEXIS 1174, 2011 IL App (4th) 100629 (November 14, 2011).

Permalink 12:30:23 pm, by fourth, 90 words, 2987 views   English (US)
Categories: General

NC: Weaving in own lane not RS

Weaving within one’s own lane at 11 pm is not reasonable suspicion. State v. Otto, 2011 N.C. App. LEXIS 2353 (November 15, 2011).*

The affidavit for the search warrant of one defendant’s cell phone showed probable cause to believe that there was evidence on it. United States v. Barret, 824 F. Supp. 2d 419 (E.D. N.Y. 2011).*

The legality of defendant’s arrest bearing on the voluntariness of his statement was not argued to the trial court, so it cannot be argued on appeal. State v. Adams, 78 So. 3d 222 (La. App. 5th Cir. 2011).*

Permalink 12:01:54 pm, by fourth, 245 words, 3054 views   English (US)
Categories: General

Low-tech GPS: WaPo.com: "License plate readers: A useful tool for police comes with privacy concerns"

WaPo.com: License plate readers: A useful tool for police comes with privacy concerns by Allison Klein and Josh White:

An armed robber burst into a Northeast Washington market, scuffled with the cashier, and then shot him and the clerk’s father, who also owned the store. The killer sped off in a silver Pontiac, but a witness was able to write down the license plate number.

Police figured out the name of the suspect very quickly. But locating and arresting him took a little-known investigative tool: a vast system that tracks the comings and goings of anyone driving around the District.

Scores of cameras across the city capture 1,800 images a minute and download the information into a rapidly expanding archive that can pinpoint people’s movements all over town.

Police entered the suspect’s license plate number into that database and learned that the Pontiac was on a street in Southeast. Police soon arrested Christian Taylor, who had been staying at a friend’s home, and charged him with two counts of first-degree murder. His trial is set for January.

More than 250 cameras in the District and its suburbs scan license plates in real time, helping police pinpoint stolen cars and fleeing killers. But the program quietly has expanded beyond what anyone had imagined even a few years ago.

With virtually no public debate, police agencies have begun storing the information from the cameras, building databases that document the travels of millions of vehicles.

11/19/11

Permalink 10:21:43 am, by fourth, 223 words, 3123 views   English (US)
Categories: General

D.Neb.: Detaining motorist 20 minutes for drug dog after warning ticket handed over was not by consent

Defendant’s stop was over when the officer handed the warning ticket back. Making the driver wait 20 minutes for the drug dog to show up was not by consent, and it was unreasonable. United States v. Grant, 2011 U.S. Dist. LEXIS 132608 (D. Neb. November 15, 2011)*:

The statement by the Sergeant Wilcynski that he would release the defendant if nothing happened is bothersome to the court. Sergeant Wilcynski told the defendant that if the dog did not indicate, “then we’ll get you going.” Id. That language sounds more like a coerced consent and resulting detention than it does a consensual arrangement. It is hard to imagine that the defendant really felt free to leave after that statement. If a reasonable person does not believe he is free to leave, a seizure occurs. Garcia, 613 F.3d at 753, citing United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001).

The burden is on the government to show consent. Law enforcement officers must ask good questions. These questions must be clear and the responses must be clear and not the result of coercion or coercive language. Further, there is always the option of obtaining a written consent which was not done in this case. The question/statement by Sergeant Wilcynski telling the defendant that if the dog did not indicate, “then we’ll get you going” was clearly coercive. ...

Permalink 09:44:41 am, by fourth, 260 words, 2952 views   English (US)
Categories: General

LA5: Off-duty narc stopped car for weaving and was valid

Defendant was stopped for DUI by an off-duty narc. He conducted a search of the car finding MDMA. The stop and search were valid as a private search. In addition, if an on-duty LEO had stopped the car, that officer could have searched the passenger compartment incident to the arrest for the cause of the DUI. State v. Common, 78 So. 3d 237 (La. App. 5th Cir. 2011).*

An anonymous CI provided sufficient predictive detail to justify the stop of defendant’s car with reasonable suspicion when defendant showed up in the car described at the time given. State v. Leonard, 80 So. 3d 535 (La. App. 5th Cir. 2011)*:

Further, the source correctly predicted the specific place and time, within ten minutes, that the suspect would arrive with contraband. The source was able to describe the vehicle defendant would be driving – a black, four-door vehicle. As the detectives surveyed the situation, they corroborated the source's information when they observed a man, fitting the description of the suspect, drive up to the expected location in a vehicle that matched the description of the suspect's vehicle within the specified time frame. As such, we find that the trial judge did not err in implicitly finding that the detectives possessed reasonable suspicion to justify the investigatory stop.

Officers were in the house of another to conduct a parole arrest, and they encountered the defendant who was there. He was handcuffed for safety reasons and told that and that he was not under arrest. Then defendant admitted to possessing contraband. State v. Jones, 78 So. 3d 274 (La. App. 5th Cir. 2011).*

Permalink 09:23:53 am, by fourth, 164 words, 3003 views   English (US)
Categories: General

E.D.Cal.: Defendant ranch worker had no REP in the curtilage of the house

Defendant worked on a ranch, and he did not show that he had a reasonable expectation of privacy in the curtilage to the house on the property. As commercial property as to him, there was a lesser expectation of privacy in it. United States v. Quesada-Garcia, 2011 U.S. Dist. LEXIS 131544 (E.D. Cal. November 14, 2011).*

Officer responding to shots fired call found defendant matching the description. Considering the totality, the officer encountered defendant and defendant did not comply with commands to show his hands and put them up. That all added up to reasonable suspicion. United States v. McCullough, 2011 U.S. Dist. LEXIS 132108 (M.D. Pa. November 16, 2011).*

While a social guest in a motel room may have a reasonable expectation of privacy, vis-a-vis an overnight guest, the defendant still carries the burden on that, and he failed to establish it here. About all he showed here was that he was there for commercial purposes. United States v. Sherrill, 2011 U.S. Dist. LEXIS 132547 (D. Kan. November 16, 2011).*

Permalink 01:40:49 am, by fourth, 134 words, 2936 views   English (US)
Categories: General

HuffPo: "TSA: 10 Years Old & None The Wiser"

Huffington Post: TSA: 10 Years Old & None The Wiser:

In the 10 years that the TSA has existed, there have been countless public blunders by the agency that just can't seem to get it right.

From John "Don't Touch My Junk" Tyner to the TSA's "Get Your Freak On Girl" note the American public seems to simply not be able to get enough of the Transportation Security Administration, for better or worse.

The TSA is a "cumbersome organization", Kate Hanni, Executive Director of FlyersRights.org (a non-profit organization with 50,000 members dedicated to bettering the conversation between travelers, the airlines and the Government), and blogger for The Huffington Post, said in a phone conversation, "There are some 67,000 employees at the TSA. It's security theater," she added.

I referred to TSA as "security theater" here in July 2007.

Permalink 01:18:51 am, by fourth, 340 words, 2990 views   English (US)
Categories: General

NY2: Statute for child sex abuse victim to submit to photographing of doubtful utility violated her rights against unreasonable search and seizure

Ordering a child who gave birth to submit to intimate photographing years after the sexual abuse served no reasonable government interest and violated the Fourth Amendment and state constitutional rights of the child in her bodily integrity. In the Matter of Shernise C., 2011 NY Slip Op 08355, 91 A.D.3d 26, 934 N.Y.S.2d 171 (2d Dept. 2011):

“There is no more worthy object of the public’s concern” than the welfare of children (Wyman v James, 400 US 309, 318). However, in our societal zeal to protect them, our most vulnerable and most valuable asset, we must be careful not to trample upon their constitutional rights. An innocent child should certainly have as much right to be free from an unreasonable search and seizure as someone suspected of committing a crime. Thus, while harmonizing the state’s extraordinary interest in protecting a child’s welfare from the potential for the invasion of a child’s constitutional rights may be at times difficult, a proper balance must be struck since even the most heinous crime of child sexual abuse does not automatically provide cause to ignore the rights of the victim.

. . .

Where a bodily intrusion is concerned, the court must give careful consideration to “not only the probable worth of the evidence to the investigation, but the nature of alternative means, if any, for obtaining the evidence” (Matter of Abe A., 56 NY2d 288, 298; see Winston v Lee, 470 US 753). When making our Fourth Amendment inquiry, we must consider whether there is a “ clear indication’ that the intrusion will supply substantial probative evidence” (Matter of Abe A., 56 NY2d at 297, quoting Schmerber v California, 384 US 757, 770; see Cupp v Murphy, 412 US 291, 295).

In the instant matter, given the conclusive evidence of abuse provided by the DNA test results, the State’s need to subject Shernise to a highly intrusive physical examination is so diminished as to render the search unreasonable under the Fourth Amendment. Thus, the mandated application of Family Court Act § 1027(g) to Shernise under the particular facts of this case is unreasonable and violates her Fourth Amendment rights.

11/18/11

Permalink 02:42:52 pm, by fourth, 181 words, 3025 views   English (US)
Categories: General

CA8: 9 months not too stale in child abuse and child porn case

Officers had a search warrant for evidence of child sexual abuse and possible child pornography involving defendant’s father. During the search, officers saw things that revealed another possible child porn crime, and they got a second search warrant for digital media they found. In searching that, they found evidence of defendant’s making child pornography. The warrant was based on nine month old information, and it was not stale since it was likely that the items sought would still be there because of their enduring value to the possessor. Seizure of items in plain view was also justified since the warrant made them lawfully on the premises. United States v. Darr, 661 F.3d 375 (8th Cir. 2011).*

“Reasonable and prudent” is not unconstitutionally vague in the Kansas following too close statute. Viewing the video of the stop, it was apparent that the officer, too, was impatient with the length of time it was taking to get information back, so he did not lengthen the stop. The video also confirmed that the consent was voluntary. United States v. Hunter, 663 F.3d 1136 (10th Cir. 2011).*

Permalink 01:33:53 pm, by fourth, 116 words, 2968 views   English (US)
Categories: General

S.D.Tex.: Historical cell site location data requires warrant and probable cause

Historical cell site data requires probable cause and a search warrant. In re Application of the United States for Historic Cell Site Data, No. H-11-221 (S.D. Tex. November 11, 2011). Virtually the entire order:

When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause. U.S. Const., amend. 4. The records would show the date, time, called number, and location of the telephone when the call was made. These data are constitutionally protected from this intrusion. The standard under the Stored Communications Act, 18 U.S.C. § 2703(d), is below the standard required by the Constitution.

11/17/11

Permalink 09:29:12 am, by fourth, 236 words, 3132 views   English (US)
Categories: General

W.D.Ky.: Warrant for long existing chop shop/drug distribution point was not stale

The defendant ran a “chop shop” that also was a drug distribution point that apparently had been ongoing for eight years. Three week old information about a trailer load of marijuana having come in was not stale under the circumstances. United States v. Cruz-Lopez, 2011 U.S. Dist. LEXIS 131267 (W.D. Ky. July 28, 2011):

The task of determining whether information contained in a search warrant affidavit has become stale requires the Court to do more than merely conduct an “arbitrary accounting [of] days on a calendar....” Spikes, 158 F.3d at 923-24. Rather, the Court must take into account factors such as: (1) the character of the crime (chance encounter or regenerating conspiracy); (2) the nature of the criminal (nomadic or entrenched); (3) the items to be seized (perishable or readily transferrable or enduring); and (4) the place to be searched (a secure operational base or a mere forum of convenience). ...

A child abuse victim’s report that defendant had child pornography on his computer that he made the child look at was probable cause for a search warrant for the computer and the house. State v. Roggenbuck, 2011 Mo. App. LEXIS 1520 (November 15, 2011).*

Defendant’s claim that a jail monitoring telephone calls violated the state wiretapping statute was not raised until appeal and is waived, but defendant would lose on the merits anyway because he consented to speaking on the phone knowing that calls were recorded. State v. Smith, 2011 Tenn. Crim. App. LEXIS 830 (November 14, 2011).*

Permalink 08:55:25 am, by fourth, 417 words, 3012 views   English (US)
Categories: General

MO: While search was unreasonable, defendant's testimony at trial he possessed items to be suppressed was waiver

Pulling up one’s pants from behind is not indicative of pulling up the pants because a gun is weighing them down, and the officer failed to articulate reasonable suspicion for defendant’s stop. Also, Missouri is a concealed carry state which might make it legal anyway. But, testifying to possession was a waiver. State v. Norfolk, 2011 Mo. App. LEXIS 1526 (November 15, 2011):

While we believe the trial court clearly erred in denying Norfolk’s motion to suppress, we find this error was harmless beyond a reasonable doubt because the evidence sought to be suppressed would have been cumulative to Norfolk's trial testimony. Norfolk voluntarily stated under oath at trial that he possessed the gun and the drugs found after the search. This confession prevents us from providing Norfolk any claim of relief on his point of error. “It would be trifling with the administration of the criminal law to award [a defendant] a new trial because of a particular error committed by the trial court, when in effect he [or she] has stated under oath that he [or she] was guilty of the charge preferred against him [or her].” Pate, 859 S.W.2d at 870 (quoting Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L.Ed. 1150 (1900)). See also, State v. Nunn, 646 S.W.2d 55, 57 (Mo. banc 1983) (no reversible error even if motion to suppress statements should have been granted because defendant testified under oath at trial confirming the truth of the incriminating statements); State v. Patino, 12 S.W.3d 733, 741 (Mo. App. S.D. 1999) (even if drugs should have been suppressed because of an illegal traffic stop, admission into evidence was harmless error because defendant’s voluntary testimony amounted to a confession which made the admission of the drugs cumulative); State v. Davalos, 128 S.W.3d 143, 148 (Mo. App. S.D. 2004) (although troubled by defendant being forced to testify in the face of possibly illegally obtained evidence, defendant's voluntary incriminating statements rendered the admission of the evidence cumulative and harmless beyond a reasonable doubt).

Obvious practice pointer: As a part of the decision to testify, one has to consider the likelihood of an admission to possession of the contraband being a waiver of the search issue. The defense here argued that there was no waiver, but the court disagreed. Most states would likely follow this rationale. It depends on the case, of course, but is one better off not testifying at all to preserve the search issue, or is there some larger goal to be achieved that justifies testifying and waiver?

Permalink 12:01:00 am, by fourth, 224 words, 2998 views   English (US)
Categories: General

Ohio grants review in Friedman permitting random dog sniffs on the street

A previous post:

OH9: Campus police led drug dog down the street to sniff cars and validly searched car when dog alerted

Campus police leading a drug dog down the street saw the dog alert on a parked car. They tried to contact the owner, but couldn’t so they used a lockout device to enter the car and conduct a warrantless search. The entry was valid because the car was still “inherently mobile,” and the drug dog alert was valid. State v. Friedman, 2011 Ohio 2989, 194 Ohio App. 3d 677, 957 N.E.2d 815 (9th Dist. 2011):

Her whereabouts were unknown, despite the officers attempting to contact her at her residence, on her cell phone, and at the school’s activity center. Further, there was testimony that there were not enough officers on duty to post an officer with the vehicle. The fact that Friedman was not present when the officers developed probable cause does not detract from the inherent mobility of her vehicle or render inapposite the application of the automobile exception to the warrant requirement. See Carney, 471 U.S. at 390; Chambers, 399 U.S. at 48; Carroll, 267 U.S. at 153.

The Ohio Supreme Court granted discretionary review today.

h/t to a reader. This is a case to watch. Hopefully the grant of review is at least a sign four justices think the 9th Dist. decision is wrong.

11/16/11

Permalink 10:05:16 am, by fourth, 154 words, 3064 views   English (US)
Categories: General

Turley: "We don’t care, it seems, if Big Brother is watching"

The Cap Times: Turley: We don’t care, it seems, if Big Brother is watching:

In December 1967, the Supreme Court issued what many consider to be one of its greatest and most eloquent decisions, in Katz v. United States. That case, which is celebrated as saving privacy, articulated the principle that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

This past week, a different high court sat to hear a new privacy challenge in Jones v. United States. The issue this time is whether privacy protections are dying in the United States — and whether Katz may be to blame.

The Jones case involves a Global Positioning System device. Antoine Jones was convicted in the District of Columbia in 2008 on drug charges after police followed him for 28 days with a secretly installed GPS device that monitored his location.

Permalink 08:50:02 am, by fourth, 531 words, 3068 views   English (US)
Categories: General

AZ: DNA may not be taken from an arrestee without a judicial finding of probable cause

In a juvenile action over the taking of DNA on arrest, only those with a finding of probable cause by a judicial officer that an offense occurred may have DNA taken. Mario W. v. Kaipio, 265 P.3d 389 (Ariz. App. 2011):

P18 Using a buccal swab to procure a DNA sample, like blood drawn for the same purpose, constitutes a search under the Fourth Amendment. Maricopa County Juvenile Action Nos. JV-512600 and JV-512797, 187 Ariz. 419, 423, 930 P.2d 496, 500 (App. 1997) (recognizing that “a compelled intrusion[] into the body for blood” is deemed a Fourth Amendment search (quoting Schmerber v. State of California, 384 U.S. 757, 767-68, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)) ); see also State v. Garcia-Salgado, 170 Wn.2d 176, 240 P.3d 153, 157 (Wash. 2010) (finding that a cheek swab, taken for the purposes of collecting DNA, constitutes a search under the Fourth Amendment). In general, a search is considered unreasonable unless it is accompanied by a judicial warrant issued following a finding of probable cause. JV-512600 and JV-512797, 187 Ariz. at 423, 930 P.2d at 500.

P19 The totality of the circumstances test is used to balance the juveniles’s individual rights against the State’s interest in conducting the DNA search. See United States v. Mitchell, 652 F.3d 387, 390, 399, 403-04 (3d Cir. 2011) (applying the totality of the circumstances test to balance the government’s rights to conduct a DNA search of an arrestee and pretrial detainee under the federal DNA Act, 42 U.S.C. § 14135a(a) (2006)); United States v. Conley, 453 F.3d 674, 680 (6th Cir. 2006) (utilizing a totality of circumstances analysis and finding the taking of a DNA sample from a convicted felon to be constitutional due to the convicted felon’s “sharply reduced expectation of privacy, and the minimal intrusion required in taking a blood sample for DNA analysis for identification purposes only”); see also Samson v. California, 547 U.S. 843, 846, 848, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006) (applying the totality of circumstances test and finding a state law that required parolees to agree to be subject to a search or seizure by a parole officer at any time, with or without cause, to be constitutional); United States v. Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001) (finding a warrantless search of a probationer’s apartment to be constitutional under the Fourth Amendment after examining the totality of circumstances). My colleagues on this panel agree that the totality of the circumstances test is applicable.

P20 We analyze various factors to evaluate the balance of the juveniles’s rights against the governmental interest in this case. Such factors include: whether there was a judicial finding of probable cause that the juvenile committed the charged offense, the level of intrusion in relation to other pre-adjudicative procedures, the degree and nature of physical intrusion required by the test, statutes restricting use of test results, and any evidence in the record regarding improper uses of the results.

. . .

P22 A judicial finding of probable cause serves as a “watershed event” that distinguishes such a defendant from the general public and permits application of the totality of circumstances exception to the warrant requirement of the Fourth Amendment. In this regard, I agree with the reasoning of the United States Magistrate Judge in United States v. Pool, 645 F. Supp. 2d 903 (E.D. Cal. 2009): ...

Permalink 08:12:48 am, by fourth, 700 words, 3083 views   English (US)
Categories: General

CA10: REP shown in unfinished commercial building; but defendants get qualified immunity

Plaintiffs barely showed a “reasonable expectation of privacy in a building under construction, but the defendants get qualified immunity because the law was unsettled. Klen v. City of Loveland, 661 F.3d 498 (10th Cir. 2011). The entirety of the Fourth Amendment issue:

Plaintiffs complain that defendants George, Hawkinson and Duval violated the Fourth Amendment by ordering Hoskinson to conduct an unauthorized “special inspection” of the Anasazi Phase 2 premises to determine whether unauthorized construction was going on. The district court concluded that “[t]o the extent that the plaintiffs contend that Hoskinson’s entry onto the property was an illegal search in violation of the Fourth Amendment, the facts do not support the claimed violation even if it is shown that Hawkinson directed the inspection.” Aplt. App., Vol. 1D at 1477. The district court did not describe the facts on which it relied, however, or why they did not support the claimed Fourth Amendment violation.

Defendants argue that summary judgment should be affirmed because “a trespass to property, negligent or intentional, is a common law tort; it does not infringe the federal constitution.” Wise v. Bravo, 666 F.2d 1328, 1335 (10th Cir. 1981). In Wise, the plaintiff evoked only the common-law tort of trespass as the basis for his § 1983 suit and there is no indication he sought to advance a Fourth Amendment claim. Wise certainly should not be read to stand for the proposition that a trespass cannot give rise to a claim under the Fourth Amendment. See, e.g., Reeves v. Churchich, 484 F.3d 1244, 1258 (10th Cir. 2007) (“Of course, a police officer’s mere entry or trespass into a home without consent is enough to constitute a search, often referred to in the case law as an ‘unlawful entry.’”).

While not every common-law trespass (into an open field, for example) violates the Fourth Amendment, a Fourth Amendment violation may be shown if the alleged trespass violated the plaintiff’s “constitutionally protected reasonable expectation of privacy.” United States v. Hatfield, 333 F.3d 1189, 1195 (10th Cir. 2003) (quotation omitted). The threshold issue is thus whether plaintiffs had such a reasonable expectation of privacy in the premises of Anasazi Phase 2 searched by Hoskinson.

The defendants characterize the premises invaded as “the ‘core and shell’ of an unfinished commercial building,” Aplee. Br. at 28, implying that plaintiffs had no reasonable expectation of privacy in the premises searched. Plaintiffs, while not denying the unfinished nature of the structure, stress the fact that “the Klens used the premises to store their wallets, briefcases and other personal belongings, and had installed doors and windows in order to secure the premises,” Aplt. Opening Br. at 44-45. Plaintiffs do not argue that defendants knew they used Anasazi Phase 2 for storage purposes before dispatching Hoskinson to conduct the inspection.

Although plaintiffs correctly argue that “[t]he Fourth Amendment protects an individual’s reasonable expectation of privacy in commercial premises,” United States v. Bute, 43 F.3d 531, 536 (10th Cir. 1994), it is also true that “there is a lesser expectation of privacy in commercial as contrasted with residential buildings,” id. An unfinished commercial building, such as the premises in question here, arguably affords even less of a reasonable expectation of privacy than the typical commercial premises.

That said, plaintiffs appear to have shown enough evidence of a Fourth Amendment violation to survive summary judgment on the question of whether defendants violated the constitution. But the individual defendants also argue that they are entitled to qualified immunity as to this claim, and we agree. Plaintiffs have failed to show at the time defendants ordered Hoskinson to conduct an inspection of Anasazi Phase 2 that it was clearly established that this type of impromptu inspection of an unfinished commercial building, still under construction, violated their Fourth Amendment rights. The individual defendants are therefore entitled to qualified immunity and we thus affirm the entry of summary judgment in their favor on this claim.

Under the law of most states, an unwanted entry into an unfinished commercial building would still be a commercial burglary or a breaking and entering or a trespass because of the potential for theft of building materials. If it would be a crime for an unauthorized person to enter, then the plaintiffs certainly would have a reasonable expectation of privacy as to the government.

Permalink 07:59:12 am, by fourth, 217 words, 3007 views   English (US)
Categories: General

W.D.Mo.: One in possession of a car and its keys had apparent authority to consent

The person in possession of a car with the keys who was a regular user of the car had apparent authority to consent to search. United States v. Scott, 2011 U.S. Dist. LEXIS 131244 (W.D. Mo. October 3, 2011)*:

In this case, the record supports a finding that Ms. Starnes had actual authority to consent to a search of the Jaguar. Defendant let Ms. Starnes use the car when she needed it and it was not unusual for her to do so. Ms. Starnes sometimes even drove when she and Defendant were together. When Ms. Starnes used the car, she could use it as she wished without restriction. Ms. Starnes was using the Jaguar on September 2, 2008 and, accordingly, had possession of the sole set of keys.

The record supports the finding of consent to enter. Defendant first gave a false name to the police and then permitted them to enter to talk about it. United States v. Hynson, 451 Fed. Appx. 91 (3d Cir. 2011).*

The officer smelled marijuana when he stopped the defendant’s car. The record supports the conclusion that defendant consented to a search of the car. There was no claim of intimidation or coercion. United States v. Johnson, 2011 U.S. Dist. LEXIS 131483 (E.D. Mo. October 14, 2011);* United States v. Flymn, 2011 U.S. Dist. LEXIS 131494 (E.D. Mo. October 14, 2011).*

Permalink 07:23:46 am, by fourth, 563 words, 3321 views   English (US)
Categories: General

D.D.C. summarizes law of administrative subpoenas v. administrative warrants

A federal contractor consented to record of employees of alleged discrimination by responding to a subpoena without challenging it. United Space Alliance, LLC v. Solis, 2011 U.S. Dist. LEXIS 130938 (D. D.C. November 14, 2011):

United Space next argues that the OFCCP request for additional data violated the Fourth Amendment prohibition against unreasonable searches and seizures. This constitutional protection applies to administrative inspections as well as criminal investigations. Camara v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). It extends to places of business as well as private homes. See v. City of Seattle, 387 U.S. 541, 545, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). Administrative warrants and subpoenas must both comport with the Fourth Amendment, although different standards apply to each. For an administrative warrant to issue, the government must have either “specific evidence of an existing violation” or the ability to show that “reasonable legislative or administrative standards” such as “a general administrative plan ... derived from neutral sources” justify the warrant. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320, 321, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978) (internal quotation marks omitted). Such a showing satisfies the constitutional requirement that “no Warrants shall issue, but upon probable cause,” U.S. CONST. amend. IV, however “[p]robable cause in the criminal law sense is not required” to justify an administrative warrant. Barlow’s, 436 U.S. at 320. The standard set out in Barlow’s applies whenever “government inspectors [attempt] to make nonconsensual entries into areas not open to the public,” Donovan v. Lone Steer, Inc., 464 U.S. 408, 414, 104 S. Ct. 769, 78 L. Ed. 2d 567 (1984), and ensures that “the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field.” See, 387 U.S. at 545.

“[T]he enforceability of [an] administrative subpoena,” on the other hand, “is governed, not by [the Court’s] decision in Barlow’s ... but rather by [its] decision in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614 (1946).” Lone Steer, 464 U.S. at 414. Under Oklahoma Press and its progeny, “when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” Id. at 415 (quoting See, 387 U.S. at 544). This line of cases holds administrative subpoenas to a considerably lower standard than administrative warrants—a standard that notably focuses on the breadth of the subpoena rather than the motivation for its issuance. See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed. 401 (1950) (“Even if one were to regard the request for information ... as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.”). “The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.” Id. at 652-53 (1950) (quoting Oklahoma Press, 327 U.S. at 208); see also Lone Steer, 464 U.S. at 415. This line of cases “in no way leaves an employer defenseless against an unreasonably burdensome administrative subpoena requiring the production of documents.” Lone Steer, 464 U.S. at 415. Rather, it “provide[s] protection for a subpoenaed employer by allowing him to question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court.” Id.

11/15/11

Permalink 12:12:45 am, by fourth, 211 words, 3035 views   English (US)
Categories: General

NetworkWorld: "Do you give up a reasonable expectation of privacy by carrying a cell phone?"

NetworkWorld: Do you give up a reasonable expectation of privacy by carrying a cell phone? by Ms. Smith:

Tracking via mobile devices continues to be a popular, yet extremely invasive means of electronic location surveillance with law enforcement. We looked at secret sessions that teach government and law enforcement how to hack and conduct surveillance on the masses. At that same ISS World Americas conference, there were several teaching sessions devoted to mobile devices and vendors promoting surveillance tech and cell phone capturing equipment. TeleStrategies taught a session that included, "Transforming cell records and location data into actionable intelligence, Smart Phone intercept and wireless provider business model, Apple iPhone, Google Android and LTE Challenges."

Utimaco LIMS presented "SMS, the forgotten source of intelligence!" VASTech, whose tech was used by Gadhafi’s security agents to record "between 30 and 40 million minutes per month from both landline and mobile phone conversations," demonstrated "Satellite Signal Analyzer" Discover de Sky. And Berkeley Varitronics Systems, which puts out technology like the Squid as seen on the right, taught Handheld Tools for Cell Phone Direction Finding and Location. Septier, which offers solutions like in the video below, taught Mobile Location Tracking that is based on a Integration of an in network GMLC and Tactical Cellular Location Direction Finders.

Permalink 12:02:49 am, by fourth, 377 words, 3002 views   English (US)
Categories: General

Cato: "Internet Belatedly Notices How Much Spying Government Can Do Without a Warrant"

Cato: Internet Belatedly Notices How Much Spying Government Can Do Without a Warrant by Julian Sanchez:

I’m seeing a lot of technology news sites reporting, in tones of shock and horror, on a recent court ruling holding that people generally waive their Fourth Amendment “expectation of privacy” in data collected on them by Internet sites, at least when the sites give some kind of notice (however buried in legalese) that they do collect that data. That means, in this instance, that the government can obtain detailed connection records from Twitter about users associated with Wikileaks without a full-blown Fourth Amendment warrant based on probable cause: A subpoena or a court order based on a far weaker claim of “relevance” to an investigation will suffice.

But this isn’t some shocking new precedent. It’s been the status quo since 1986, when our increasingly outdated electronic privacy laws were written, and arguably for longer than that.

There are plenty of problems with this most recent decision, to be sure. For one, as security researcher Chris Soghoian notes, the court based its opinion on the current Twitter privacy policy, even though the policy in effect at the time the targets of the investigation signed up for the site was significantly more protective. In a way, though, this seems unnecessary: Under the misguided Supreme Court decisions that established our modern “third party doctrine,” contractual promises of privacy don’t matter.

In other words, users are held to “assume the risk” that any third party might turn their information over to the government, effectively waiving their Fourth Amendment rights over that data, even if the third party explicitly promises not to do this. The one reason the privacy policy might be relevant here is that the “third party doctrine” covers information knowingly conveyed to third parties, and while it’s obvious that you “convey” a dialed phone number to the phone company when you make a call (for instance), it might not be as obvious that Web sites you visit are logging your Internet Protocol address. (other hyperlinks in original; but second added)

If "Eternal vigilance is the price of liberty," said Thomas Jefferson in 1809 [and a bunch of others], who pays attention while you were sleeping? I do, for one.

11/14/11

Permalink 11:41:59 am, by fourth, 186 words, 2947 views   English (US)
Categories: General

Impact Labs: "How your car could be a star witness against you in court"

Impact Labs: How your car could be a star witness against you in court:

If you are in a serious car accident and are unfortunate enough to land in court afterwards, the star witness against you may not be an eyewitness or even a human being, it could be your car.

Today’s high-tech automobiles increasingly rely on computers to maximize performance and monitor operating systems. But while the under-the-hood computers are doing that, they may also be recording data about your driving.

. . .

Even now, however, such information could be cross-checked with information from devices like cellphones and GPS units to build what could be an air-tight court case.

“Now you’re in a situation where, if someone has the time and expertise, they can say you drove from here to there at this speed, you parked at Whole Foods, here’s what you bought, then you got back in your car and drove here and made a call to this number,” said Dean Gonsowski, eDiscovery counsel with Clearwell, which is part of the security firm Symantec. “… It’s staggering how much information can be collected.”

Permalink 08:24:49 am, by fourth, 83 words, 3025 views   English (US)
Categories: General

AK: Spinning tires not RS

Unnecessarily spinning one’s tires does not justify a stop. Here, the state did not rely on the community caretaking function for the stop, so there was no factual support for it in the trial court. Burnett v. State, 264 P.3d 607 (Alas. App. 2011)* (court explains in dicta that community caretaking function might have arguably applied if the facts were developed).

Driving with a dealer plate at night is not reasonable suspicion of wrongdoing. State v. Williams, 2011 Ohio 5807, 2011 Ohio App. LEXIS 4765 (2d Dist. November 10, 2011).*

Permalink 08:21:12 am, by fourth, 275 words, 2988 views   English (US)
Categories: General

OH10: Hearsay for basis for arrest admissible; confrontation clause inapplicable

Hearsay is admissible to show the basis for an arrest at a suppression hearing. The confrontation clause does not apply to suppression hearings. State v. McKenzie, 2011 Ohio 5851, 2011 Ohio App. LEXIS 4776 (10th Dist. November 10, 2011):

[*P8] Appellant also argues under this assignment of error that the trial court erred when it did not allow him to confront Worthington and Porter at the suppression hearing regarding what prompted their suspicion of illegal activity that promoted the stop of appellant, in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution, which states that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” We disagree with appellant’s contention. The United States Supreme Court has repeatedly distinguished between the scope of a defendant’s right to confrontation in trial and pretrial proceedings. See Pennsylvania v. Ritchie (1987), 480 U.S. 39, 54, 107 S.Ct. 989, 999, 94 L. Ed. 2d 40; State v. Williams (1994), 97 Ohio App.3d 289, 291, 646 N.E.2d 836. The right to confrontation, which includes the right to physically face and cross-examine witnesses, is not a constitutionally compelled rule of pretrial proceedings. See Ritchie at 52-53, 107 S.Ct. at 998-99; see also Raddatz at 679, 100 S.Ct. at 2414; Williams at 291; State v. Saunders, 2d Dist. No. 22621, 2009 Ohio 1273, ¶13 (no denial of right to confrontation at suppression hearing when police officer testified as to the statement of a witness). Thus, appellant’s right to confrontation was not violated when Worthington and Porter did not testify at the suppression hearing. For the foregoing reasons, the trial court did not err when it denied appellant’s motion to suppress, and appellant’s assignment of error is overruled.

Permalink 08:08:07 am, by fourth, 347 words, 2928 views   English (US)
Categories: General

D.Neb.: Blanket objection to USMJ R&R fails

A blanket objection to a USMJ R&R in a search claim is unavailing; the objecting party has to be specific as to the objections. United States v. Soderholm, 2011 U.S. Dist. LEXIS 130727 (D. Neb. November 9, 2011):

The Eighth Circuit has held that “even when a magistrate judge is hearing a matter pursuant to his or her limited authority to make a ‘recommended disposition,’ ‘a claimant must present all his claims squarely to the magistrate judge, that is, the first adversarial forum, to preserve them for review.’” ... See also Roberts, 222 F.3d at 470 (“[The] purpose of referring cases to a magistrate for recommended disposition would be contravened if parties were allowed to present only selected issues to the magistrate, reserving their full panoply of contentions for the trial court.” ... Other courts have found, however, that because 28 U.S.C. § 636(b)(1) allows the district court to “receive further evidence” after a party objects to the magistrate judge’s recommendation, district courts may consider new arguments raised for the first time in an objection. ... The Fourth Circuit has gone further, holding that “as part of its obligation to determine de novo any issue to which proper objection is made, a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate [judge].” United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). See also id. at 1118 n.6 (noting that the district court’s obligation to hear all arguments is reinforced when motions to suppress are concerned because such motions are “not one of the pretrial matters that may be reviewed by the district court merely for clear error or plain error”).

Given the law in this circuit, the government's argument that I should not consider the defendant's new arguments is well-taken–though it should be noted that the government cites no cases that apply the Eighth Circuit's rule to new arguments offered in support of a motion to suppress. I shall bypass this issue, however, because I find that I can readily dispose of the defendant's new arguments on their merits.

Permalink 08:02:32 am, by fourth, 456 words, 3214 views   English (US)
Categories: General

Redux: CA9: Franks violation in CP investigation where no CP found leads to civil liability; SW targets actually innocent

The Ninth Circuit denied rehearing en banc in Chism v. Washington State, 10-35085 (9th Cir. August 25, 2011), rehearing denied, op. amended November 7, 2011. The plaintiffs' credit card information had been stolen and used to acquire child porn. A Franks violation was alleged leading to search warrant for child pornography on their computers, and none was found. They sued under § 1983, and it leads to civil rights liability for the investigators:

This civil rights action under 42 U.S.C. § 1983 arises from an internet child pornography investigation by Washington State Police (WSP) Officers Rachel Gardner and John Sager (“the officers”). As a result of information the officers acquired, Todd Chism became the focus of their investigation. Gardner prepared an affidavit in support of a search warrant application, which Sager reviewed. On the basis of that affidavit, a magistrate judge issued a broad search warrant to search Todd Chism’s home and business office. Relying on the same information contained in Gardner’s affidavit, Deputy Prosecuting Attorney Christian Peters obtained from the same magistrate judge a warrant to arrest Todd for violating Washington’s child pornography laws. A few days later, several WSP officers executed the search and arrest warrants. A WSP detective eventually conducted forensic examinations of the Chisms’ home computer and computers from the Spokane Fire Department, where Todd Chism worked as a firefighter. The investigation did not reveal any evidence of child pornography, and charges were never filed against Todd Chism.

Several months later, Todd and his wife, Nicole Chism, filed this § 1983 action against the State of Washington, the WSP, Detective Gardner, and Sergeant Sager, alleging—among other things not relevant to this appeal—that the officers violated their Fourth and Fourteenth Amendment rights by securing the search and arrest warrants with an affidavit that deliberately or recklessly contained material omissions and false statements. The Chisms and the officers filed cross motions for summary judgment on the issue of qualified immunity as to the constitutional claim. The district court granted the officers’ motion, concluding that the officers’ conduct did not violate a clearly established constitutional right of which a reasonable officer would have known. The Chisms timely appealed.

We reverse the district court’s judgment and remand this case for trial. Viewing the evidence in the light most favorable to the Chisms, we conclude that the Chisms have made a substantial showing of the officers’ deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred. We also conclude that the officers are not entitled to qualified immunity because the Chisms’ right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit.

11/13/11

Permalink 12:45:15 am, by fourth, 763 words, 3200 views   English (US)
Categories: General

CA4 explains Terry's “must diligently pursue the investigation of the justification for the stop” when ICE was called

A stop led to ICE being called, and that slowed “investigation of the justification for the stop.” However, the officer's “calling ICE to inquire into the validity of the Gaitan ID is analogous in many ways to how an officer routinely runs a driver's license and registration to check their validity,” and here it was not unreasonable. United States v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2011):

Strictly speaking, the scope and duration inquiries under Terry’s second prong are distinct. They become intertwined, however, in cases where, as here, the actions a defendant argues exceeded the scope of the stop necessarily also extended its duration. This raises the following question: Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?

. . .

As we explained in Digiovanni, for a traffic stop to satisfy Terry’s second prong, the police officer “must diligently pursue the investigation of the justification for the stop.” Id. (citing Sharpe, 470 U.S. at 686). Although we have held that “where a delay can be characterized as de minimis under the totality of the circumstances, it will not be recognized as a Fourth Amendment violation,” id. (citing Mason, 628 F.3d at 132), the principal inquiry, as articulated by the Sixth Circuit, is “the officer’s diligence—i.e., his persevering or devoted application to accomplish the undertaking of ascertaining whether the suspected traffic violation occurred, and, if necessary, issuing a ticket.” United States v. Everett, 601 F.3d 484, 494 (6th Cir. 2010) (internal quotation marks and alterations omitted). If “the totality of the circumstances, viewed objectively, establishes that the officer, without reasonable suspicion, definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation, this would surely bespeak a lack of diligence.” Id. at 495.

This standard incorporates both the duration and scope components of Terry’s second prong. Some courts and commentators have questioned whether the scope component survives Johnson. See United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007) (“The correct Fourth Amendment inquiry (assuming the detention is legitimate) is whether an officer’s traffic stop questions ‘extended the time’ that a driver was detained, regardless of the questions’ content.”); Reid M. Bolton, Comment, The Legality of Prolonged Traffic Stops After Herring: Brief Delays as Isolated Negligence, 76 U. Chi. L. Rev. 1781, 1786-87 (2009). We disagree, because, as we have explained: “[T]he scope of a police officer’s actions during a traffic stop still is relevant to the reasonableness analysis under the Fourth Amendment ... because, during a stop, a police officer must act reasonably, that is, he must diligently pursue the investigation of the justification for the stop.” Digiovanni, 650 F.3d at 509. Johnson holds only that unrelated questioning that does not prolong a traffic stop does not render the stop unlawful. In cases where, as here, the questioning does extend the seizure, the scope of an officer’s unrelated investigation could be relevant to whether the officer “definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation.” Everett, 601 F.3d at 495.

We acknowledge that in Digiovanni the issue was whether police questioning caused the traffic stop to exceed its permissible scope and duration. Here, in contrast, the action Guijon-Ortiz argues prolonged the stop was the call to ICE, which Flowers made from the patrol car while the three men waited in the pickup truck. We believe the “diligently pursue” standard applies nonetheless, because either questioning a person directly or pursuing other means of investigation may, in the context of a particular traffic stop, be relevant to whether an officer diligently pursued the investigation of the justification for the stop.

Our approach is in accord with not only that of the Sixth Circuit in Everett but also that of at least the Eighth and Ninth Circuits. See United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008) (holding that “whether questioning unrelated to the purpose of the traffic stop and separate from the ticket-writing process that prolongs the duration of the stop may nonetheless be reasonable” is determined by “examin[ing] the ‘totality of the circumstances’ surrounding the stop”); United States v. Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007) (“Whether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops. When there are complications in carrying out the traffic-related purposes of the stop, for example, police may reasonably detain a driver for a longer duration than when a stop is strictly routine.”) (citing Sharpe, 470 U.S. at 685-87).

Permalink 12:20:13 am, by fourth, 335 words, 2981 views   English (US)
Categories: General

TN: Impoundment of car on arrest of driver was reasonable rather than leave it at gas pumps

Defendant was arrested for driving without a license, and it was not unreasonable to impound the car. The alternative was to leave it blocking gas pumps at a gas station, which cannot be expected. The officer was not obliged to see if there was somebody who could come and get the car. State v. Hubbard, 2011 Tenn. Crim. App. LEXIS 828 (November 9, 2011):

While the officer acknowledged that he did not ask Appellant if there was anyone else who could come and get the vehicle, this Court has held that it is appropriate to impound a vehicle despite the failure of an officer to ask Appellant about an alternative solution when there is no reasonable or plausible alternative such as a passenger at the scene to take possession of the car immediately.

Since the defendant did not send up the video of the stop with the appellate record, the court has to presume that it supported the testimony about it. State v. Carrasco, 2011 Tenn. Crim. App. LEXIS 829 (November 10, 2011)*:

As we have noted, the trial court reviewed the video recording of the stop. The agents testified about the recording, although it has not been transmitted as part of the appellate record. As the appellants, the Defendants were required to prepare a record that conveys a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). “In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); see also State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). In the present case, we must presume that the video recording supported the trial court’s ruling, and the Defendants are not entitled to relief. In this regard, nothing in the record refutes the trial court’s findings that the weaving justified Agent Long’s stopping the truck.

Permalink 12:07:47 am, by fourth, 196 words, 2865 views   English (US)
Categories: General

CA3: Flight of apparent shooter into house with gun exigency

Flight of apparent shooter into a house with a shotgun was reasonable, particularly in light of the apparent lie about who was in the house. United States v. Parrott, 450 Fed. Appx. 228 (3d Cir. 2011):

Here, the officers had probable cause and an objectively reasonable basis for believing that exigent circumstances existed at the time that they searched the house. The officers' belief was based on a number of facts, including: the missing shotgun that had been taken into the house; the report of shots being fired and the reasonable inference that the person who ran into the house with a gun was the shooter; Mrs. Parrott's false statements regarding the number of people in the house; and the officers' reasonable belief that if somebody remained inside the house, that person might attempt to hide, destroy or remove the shotgun, or use it against the officers.

Officers listening to a wire on the CI realized that the CI’s target did not have the sought-after drugs on him, but when a vehicle showed up, and the target went to the car, that was probable cause to search the car. Jones v. State, 2011 Ark. App. 683, 2011 Ark. App. LEXIS 724 (November 9, 2011).*

11/12/11

Permalink 01:06:50 pm, by fourth, 122 words, 3094 views   English (US)
Categories: General

Turley: " Supreme Court’s GPS case asks: How much privacy do we expect?"

WaPo Op-Ed: Supreme Court’s GPS case asks: How much privacy do we expect? by Jonathan Turley:

In December 1967, the Supreme Court issued what many consider to be one of its greatest and most eloquent decisions, in Katz v. United States. That case, which is celebrated as saving privacy in the United States, articulated the principle that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

This past week, a different high court sat to hear a new privacy challenge in Jones v. United States. The issue this time is whether privacy protections are dying in the United States — and whether Katz may be to blame.

Permalink 11:22:15 am, by fourth, 248 words, 2976 views   English (US)
Categories: General

NY4: Common authority does not extend to personal duffle bag

Defendant’s girlfriend’s mother lacked apparent authority to consent to the search of the defendant’s duffle bag in her house when he was staying there. People v Holmes, 2011 NY Slip Op 8075, 89 A.D.3d 1491, 932 N.Y.S.2d 270 (4th Dept. 2011):

Upon remittitur, we agree with defendant that the weapon and his statements to the police must be suppressed. The mother of defendant's girlfriend did not have actual or apparent authority to consent to the search of the duffel bag (see generally People v Gonzalez, 88 NY2d 289, 293). The People presented no evidence that the mother "shared common authority' over defendant's duffel bag, based upon mutual use or joint access and control" (id. at 294). The warrantless seizure of the weapon therefore was improper (see People v Coston, 271 AD2d 694, lv denied 95 NY2d 833, 962; cf. People v Kelly, 58 AD3d 868, lv denied 12 NY3d 818). We further agree with defendant that his statements to the police must be suppressed as fruit of the poisonous tree (see People v Christianson, 57 AD3d 1385, 1388; People v James, 27 AD3d 1089, 1090-1091, lv denied 6 NY3d 895).

Officers had information from a CI that defendant was in the bathroom doing drugs. When she came out, she seemed under the influence. She left her backpack on the trunk of a car when talking to the officer and then was arrested. There was probable cause to believe evidence was in the backpack, so it was more than just a search incident. Agee v. Commonwealth, 2011 Ky. App. LEXIS 224 (November 10, 2011).*

Permalink 09:06:08 am, by fourth, 95 words, 2951 views   English (US)
Categories: General

OH9: Cell phone search by consent distinguished Ohio's Smith

Defendant was shown to have consented to a search of the data on his cell phone, so State v. Smith did not apply. State v. Underwood, 2011 Ohio 5703, 2011 Ohio App. LEXIS 4676 (9th Dist. November 7, 2011).*

The officer had probable cause to search the passenger compartment from the smell of burnt marijuana and defendant’s nervousness. State v. Harris, 79 So. 3d 1037 (La. App. 1st Cir. 2011).*

Defendant consented to a school official’s direction to empty her pockets. In her testimony she admitted that she felt like she could refuse. In re M. W. H., 2011 Ore. App. LEXIS 1504 (November 9, 2011).*

Permalink 08:43:20 am, by fourth, 528 words, 3027 views   English (US)
Categories: General

LA: The “inherent social pressure to cooperate with police” does not make questioning inherently under a seizure

The “inherent social pressure to cooperate with police” does not make questioning inherently under a seizure. Here, the officer had the defendant’s ID, but the record did not show that he was not free to leave [which makes no sense; possession of the ID is not free to leave]. State v. Martin, 79 So. 3d 951 (La. 2011), revg State v. Martin, 54 So. 3d 111 (La.App. 3d Cir. 2010):

We note “police-citizen encounters do not become ‘seizures’ simply because citizens may feel an inherent social pressure to cooperate with police.” Daniel, 12 S.W.3d at 425, citing People v. Paynter, 955 P.2d 68, 72 (Colo. 1998). Yet, “[w]hile most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” Delgado, 466 U.S. at 216, 104 S.Ct. at 1762. Courts must pay attention to the facts of each encounter, while keeping in mind the realities of every day life and the importance of an individual’s identification. As noted by the Florida Supreme Court,

[c]ertainly, the dangers posed by crimes such as identity theft and the ever-present threats to our national security makes the act of identifying oneself through presentation of valid, government-issued identification a necessary part of a panoply of human endeavors, from cashing a check to boarding an airplane.

Golphin v. State, 945 So.2d 1174, 1189-1190 (Fla. 2006), cert. denied, 552 U.S. 810, 128 S.Ct. 40, 169 L.Ed.2d 11 (2007). In examining the totality of the circumstances, a court must look to “numerous factors, including the time, place and purpose of the encounter, the words used by the officer, the officer’s tone of voice and general demeanor, the officer’s statements to others present during the encounter, the threatening presence of several officers, the potential display of a weapon by an officer, and the physical touching by the police of the citizen.” United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002), cert. denied, 537 U.S. 847, 123 S.Ct. 186, [Pg 11] 154 L.Ed.2d 75 (2002).

. . .

Here, there was no abuse of the district court's discretion in its denial of the defendant's motion to suppress. The record fails to support a finding that there was an unmistakable show of official authority in the police/citizen encounter at issue which would have indicated to a reasonable person that he was not free to leave. We find, as did the dissenting appellate judge, that Martin voluntarily complied with the officer’s request for identification and voluntarily offered a response to the officer's potentially incriminating question. Under the totality of the circumstances, we find the officer’s brief retention of Martin’s identification under these facts did not change the nature of this essentially consensual encounter and the officer lawfully retrieved the Soma pills from the defendant's pocket.

[If any can find this on the Louisiana Supreme Court’s website, good luck. It is the worst court website I’ve seen: Everything but the cases.]

Update: A reader, an ADA in another state, no less, was able to find the opinion link for me. Thank you so much. I spent about 10 minutes looking for the link and gave up. I don't have all day....

11/11/11

Permalink 01:16:03 pm, by fourth, 824 words, 3193 views   English (US)
Categories: General

E.D.Va.: No REP in IP information held by Twitter; the Wikileaks case

There is no Fourth Amendment privacy interest in IP information created by Twitter. Smith and Miller govern. In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114 (E.D. Va. 2011):

Petitioners and amici argue that the possibility of using IP address information to “pinpoint” a person’s physical location extends to “locations in, and movements between, particular private spaces over a period of time.” Doc. 45 at 20. As the government points out, however, investigators have long been able to use other forms of information to place a caller in a particular place, such as a private home, at a particular time. The Fourth Circuit has explicitly approved the collection of non-IP subscriber information for this very purpose. See Bynum, 604 F.3d at 164 n.2. The granularity of the “pinpoint” accuracy of IP address location finding, as described in Petitioners’ brief, is hardly a function of examining IP addresses by themselves. Rather, as in the case of the commercial enterprises described by the Bellovin Brief, the granularity of the “pinpoint” information results from aggregation and correlation of IP address information with other records. Bellovin Br. at 7-8. “Pinpointing” a person’s location is even more difficult if the government must distinguish between users of “static” or “dynamic” IP addresses because “dynamic” IP addresses are not consistently used by the same computer. The Court finds nothing in Karo or other cases indicating that combining records of IP address information with other information would infringe a locational privacy interest protected by the Fourth Amendment.

. . .

Even if Petitioners had a reasonable expectation of privacy in IP address information collected by Twitter, Petitioners voluntarily relinquished any reasonable expectation of privacy under the third-party doctrine. To access Twitter, Petitioners had to disclose their IP addresses to third parties. This voluntary disclosure—built directly into the architecture of the Internet—has significant Fourth Amendment consequences under the third-party doctrine, as articulated in United States v. Miller and Smith v. Maryland.

. . .

Two consequences follow from the Court’s conclusion that Petitioners voluntarily relinquished any expectation of privacy in their IP addressing information when they chose to use the Internet to communicate with the Twitter service. First, because the Twitter Order did not invade Petitioners’ reasonable expectations of privacy, it cannot constitute a search in violation of the Fourth Amendment. See Florida v. Riley, 488 U.S. 445, 449-50 (1989); California v. Ciraolo, 476 U.S. 207, 211 (1986) (“The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’”) (quoting Katz, 389 U.S. at 360 (Harlan, J., concurring)). Therefore their Fourth Amendment challenge to the Twitter Order fails.

Second, Petitioners do not have Fourth Amendment standing to object to the Twitter Order. They have not alleged a personal injury cognizable by the Fourth Amendment, nor have they been charged with any substantive offense based on information obtained as a result of the Twitter Order. No personal injury fairly traceable to the allegedly unlawful conduct has therefore been shown. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991); cf. Karo, 468 U.S. at 721 (“Because locating the ether in the warehouse was not an illegal search—and because the ether was seen being loaded into Horton’s truck, which then traveled the public highways—it is evident that under Knotts there was no violation of the Fourth Amendment as to anyone with or without standing to complain about monitoring the beeper while it was located in Horton’s truck.”); Rawlings v. Kentucky, 448 U.S. 98, 104-05 (1980); Rakas v. Illinois, 439 U.S. 128, 148-50 (1978). Without a reasonable expectation of privacy in the subject information, therefore, Petitioners are not entitled to challenge the Twitter Order on Fourth Amendment grounds. Cf. Rakas, 439 U.S. at 149-50; Rawlings, 448 U.S. at 105-06.

. . .

The peculiar nature of electronic data is a further consideration. Electronic evidence poses an even greater danger of destruction or concealment than does traditional physical evidence. As the courts are discovering, electronic evidence can be overwritten, transferred, or expunged with little to no human effort, and if performed by a competent expert, may leave little trace that it ever existed. See, e.g., Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 214, 214 n.2 (S.D.N.Y. 2003). Surprise in the execution of a § 2703 order may therefore be even more important than speed. What the Supreme Court has said about search warrants is especially true of § 2703 orders: “The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice.” Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 n.14 (1974) (affirming post-seizure notice and hearing in civil forfeiture action). In this respect, § 2703 orders are more like search warrants than grand jury subpoenas. Cf. In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000) (discussing practical distinctions between search warrant and grand jury subpoena).

H/T to eff.org for the link to the opinion. See Privacy Loses in Twitter/Wikileaks Records Battle.

Permalink 12:58:54 pm, by fourth, 372 words, 3067 views   English (US)
Categories: General

TN: Blue lighting a car was a stop, here without RS

Blue lights to stop a car is a seizure, here on a mere hunch and not with reasonable suspicion, and the stop is suppressed. State v. Moats, 2011 Tenn. Crim. App. LEXIS 817 (November 8, 2011):

Under the authority of [State v. Williams, 185 S.W.3d 311 (Tenn. 2006)], it is clear that Sergeant Bige seized the defendant the moment she activated her emergency lights because the use of the lights was a show of authority and a reasonable citizen would not have felt free to leave. See id. at 317. She was not performing a community caretaking function because, as she testified, there was no indication that the defendant needed assistance nor was there any other evidence that she needed to activate the lights for safety reasons. Additionally, Sergeant Bige had no reasonable suspicion of illegal activity. She testified that she thought it was strange that a truck was parked in the grocery store parking lot near 2:00 a.m. with its lights on. Essentially, she had an “inchoate and unparticularized suspicion or hunch,” which does not rise to the level of reasonable suspicion. Terry, 392 U.S. at 27. Without reasonable suspicion, her seizure of the defendant violated the constitutional prohibition against unreasonable seizures. Therefore, we conclude that the evidence does not support the trial court's findings and reverse the trial court's determination that the officer did not seize the defendant without reasonable suspicion when she activated her emergency lights.

Defendant’s car was stopped for a traffic offense, and, because of excessive tinting, the officer could not see into the back seat. A gun was in plain view sticking out from under the seat, and defendant admitted there was another gun in the car. The entry into the car was valid for officer safety. “The Court believes this course of action to be reasonable under the totality of the circumstances. Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, at 118-19, 122 S. Ct. 587, 151 L. Ed. 2d 497 (internal quotation marks omitted).” United States v. Vicente-Lucas, 826 F. Supp. 2d 422 (D. P.R. 2011).*

Permalink 12:34:41 pm, by fourth, 219 words, 2876 views   English (US)
Categories: General

D.Del.: RS based in part on another man's flight

Officers had reasonable suspicion from defendant being in a high crime area and not complying with officers’ directions and another man fled. United States v. Smullen, 2011 U.S. Dist. LEXIS 130143 (D. Del. November 9, 2011)*:

Considering this authority against the totality of the circumstances of record, the court finds that Smith's stop of defendant was supported by reasonable suspicion. In so doing, the court credits Smith's testimony and concludes it was reasonable to infer that defendant was engaged in criminal activity and posed a danger to officer safety based on: (1) defendant's evasive actions after learning that O[peration] S[afe] S[treets] officers requested entry to the residence; (2) defendant's noncompliance with OSS' request; (3) defendant's immediate exit from the back of the residence via the fire escape staircase instead of the front door; (4) defendant's stuttering and shaking when confronted on the fire escape staircase by Smith; (5) Smith was alone in the dimly lit backyard in an area fraught with crime; (6) Smith did not recognize defendant; and (7) defendant (an unidentified male to Smith) was fleeing the residence and descending steps leading to Smith.

The testimony supports the USMJ’s conclusion that the officer was credible on defendant consenting. United States v. Starling, 2011 U.S. Dist. LEXIS 130121 (N.D. W.Va. November 9, 2011), R&R 2011 U.S. Dist. LEXIS 130119 (N.D. W.Va. October 14, 2011).*

Permalink 12:22:14 pm, by fourth, 668 words, 3000 views   English (US)
Categories: General

W.D.Wash.: SW based on German report from activity 20 months earlier was a general warrant

A search warrant of defendant’s computer 20 months after a single instance of alleged downloading of child pornography based on a report from German authorities resulted in a general search in violation of the Fourth Amendment. ICE elected to use a state search warrant here to avoid Comprehensive Drug Testing. United States v. Schesso, 842 F. Supp. 2d 1292 (W.D. Wash. 2011):

Review of this search warrant is further guided by United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) and U.S. v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th 2010)(CDT III). In CDT III the Court stated that “[t]he point of the Tamura procedures is to maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and computer databases. If the government can’t be sure whether data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file—and we have no cavil with this general proposition—then everything the government chooses to seize will, under this theory, automatically come into plain view.” CDT III, at 1170-71. “This would make a mockery of Tamura and render the carefully crafted safeguards in the Central District warrant a nullity.”Id., at 1171. In concluding remarks the Court in CDT III stated: ...

With these principles in mind, a review of the application for the search warrant demonstrates that it did not support probable cause for the issuance of a general warrant for the search and seizure of any electronic storage devices for evidence of child pornography crimes. The generalized statements regarding cybercrime and pornography collector profiles do not demonstrate that Schesso had some proclivity or likelihood of committing crimes other than the particular crime(s) described in the single incident of file sharing that occurred on October 20, 2008, particularly when the warrant was not sought for some 20 months after the date of the alleged crimes. The application for the search warrant does not support a warrant for the search and seizure of any and all electronic storage devices found at Schesso’s residence in order to comb through these devices to determine what other crimes may have been committed. The application did not justify a generalized search in this case. The affidavit simply does not support the warrant. The warrant is facially deficient. To rule to the contrary would be to say that if any person ever had a child pornography file or made such a file available to download on a peer-to-peer network, that person is subject to a general search of all of that person’s computer-related equipment without reference to the particular crime or crimes that are known to law enforcement. That is not a reasonable search under the Fourth Amendment, as that amendment has been interpreted and applied by the courts, and in particular interpreted and applied most recently by the Ninth Circuit in CDT III. See also Dkt. 88 pp. 54-59.

The constitution forecloses unlimited computer searches based on this type of seize-it-all-and-sort-it-out-later warrant that was obtained in this case. This was a general warrant, not justified or supported by the affidavit, and was facially deficient.

The good faith exception did not apply:

The good faith exception is inapplicable in the context of this action where the overbroad warrant is so facially deficient that reliance on it is not reasonable. See United States v. Kow, 58 F.3d 423, 428-29 (9th Cir. 1995); U.S. v. Spilotro, 800 F.2d 959, 968 (9th Cir. 1986); United States v. Washington, 782 F.2d 807, 819 (9th Cir. 1986); U.S. v. Crozier, 777 F.2d 1376, 1381-82 (9th Cir. 1985). This is particularly true where the agents knowingly opted to seek a forum that might accept a less particular and specific warrant than a federal magistrate would require (see Dkt. 74 at 5).

The warrant in this case is so broad and deviates so far from well-established Fourth Amendment standards that the searches based on that warrant cannot be defended on the basis of good faith. Exclusion of the evidence is appropriate.

Permalink 12:02:12 pm, by fourth, 198 words, 2981 views   English (US)
Categories: General

CA2: Entry into house here for child protection was based on necessity and exigency

The warrantless entry here did not violate plaintiff’s Fourth Amendment rights because the objective circumstances at the time could cause a reasonable officer to believe that there were exigent circumstances requiring prompt entry. Prior to entering the house, officers were told that plaintiff was armed and dangerous and a convicted felon wanted for weapons and drug violations, there was a documented history of substantiated DCF involvement with plaintiff’s seven-year-old step-daughter, that an earlier search resulted in the seizure of guns and drugs accessible to children, and that DCF wanted to remove the child due to concerns about her health, welfare, and safety. Thus, it was objectively reasonable to believe that plaintiff may have been at the residence and that he posed a threat to the child as well as the DCF worker conducting the welfare check, so entry was justified by exigent circumstances and the officers were entitled to qualified immunity. Montanez v. Sharoh, 444 Fed. Appx. 484 (2d Cir. 2011).*

Officer entered plaintiff’s property on a “civil standby” where he didn’t read the order and the order did not permit an entry. The entry thus violated the Fourth Amendment. Osborne v. Seymour, 164 Wn. App. 820, 265 P.3d 917 (2011).*

Permalink 11:46:12 am, by fourth, 372 words, 3092 views   English (US)
Categories: General

CA4: Entry onto property from side to look in window on a domestic disturbance call was not unreasonable

An officer did not violate the Fourth Amendment by coming up to property the subject of a 911 domestic disturbance call from the side and looking in a broken window seeing a gun. United States v. Moore, 453 Fed. Appx. 401 (4th Cir. 2011) (unpublished):

Here, Ayers was responding to a 911 call indicating that there was a domestic disturbance ongoing at Moore’s residence. Although another police officer had already responded to and resolved the incident, the officer had not alerted police dispatchers, and Ayers arrived on the scene, believing himself to be the first officer to respond. At the suppression hearing, Ayers testified that he approached the residence from the side, rather than proceeding to the front door, for his own safety, and decided to investigate further after seeing a broken window and hearing voices from inside. We conclude that Ayers’s action in proceeding to the side of the home and looking inside was not “so incompatible with the scope of [his] original purpose that any evidence inadvertently seen by [him] must be excluded as the fruit of an illegal search.” United States v. Anderson, 552 F.2d 1296, 1300 (8th Cir. 1977) (citing United States v. Bradshaw, 490 F.2d 1097, 1100 (4th Cir. 1974)).

“It is a hallmark of Fourth Amendment jurisprudence that the possibility of a threat to the safety of law enforcement officers may constitute exigent circumstances justifying a warrantless search or seizure.” United States v. Legg, 18 F.3d 240, 244 (4th Cir. 1994); see also Bellotte v. Edwards, 629 F.3d 415, 422-23 (4th Cir. 2011) (listing cases addressing the justification for no-knock entries that speak primarily in terms of threats or danger to officer safety). “For police officers successfully to assert the exigent circumstances doctrine, they need only possess a reasonable suspicion that such circumstances exist at the time of the search or seizure in question.” Figg v. Schroeder, 312 F.3d 625, 639 (4th Cir. 2002) (internal quotation marks omitted). Courts should not “engage in unreasonable second-guessing of the officers’ assessment of the circumstances that they faced.” Id. (internal quotation marks omitted). We have reviewed the record and conclude that the officers were justified in entering the home when Ayers observed one of Moore’s companions pointing a firearm at the front door where other deputies stood. Indeed, they acted entirely reasonably under the circumstances.

Permalink 08:37:42 am, by fourth, 145 words, 2942 views   English (US)
Categories: General

ChiTrib: "Lawmakers define protections from police entry"

Chicago Tribune: Lawmakers define protections from police entry by Tom LoBianco:

INDIANAPOLIS — Richard Barnes may have started a constitutional furor in 2007 when he shoved a police officer against the wall of his apartment. But he would not have benefitted from a new set of rules Indiana lawmakers are drafting in response to the incident.

A legislative study committee voted Thursday to advance new guidelines on police entry to the full General Assembly when it reconvenes in January. Indiana residents would be able to use force to prevent police from entering their homes in a handful of instances if the Legislature approves the recommendations.

The Indiana Supreme Court sparked an uproar when it ruled in May that homeowners cannot violently resist police officer's entry into their homes. The justices later clarified their ruling does not abridge Fourth Amendment rights.

See prior posts on Barnes starting here.

Permalink 03:58:10 am, by fourth, 73 words, 3155 views   English (US)
Categories: General

DOJ Computer Search Manual updated

I've updated the link to Searching & Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations on the DOJ website.

This "new" publication has been out for two years, but I haven't been to it for a while. The prior edition was from 2002, and it was quite helpful. The case law really exploded between 2002 and 2009, so the update should be quite useful. This is an excellent resource for both sides of the table.

11/10/11

Permalink 09:38:42 am, by fourth, 134 words, 3053 views   English (US)
Categories: General

Politico.com: "Claire McCaskill: TSA pat-downs 'get ugly'"

Politico.com: Claire McCaskill: TSA pat-downs 'get ugly':

Now that she’s sold her private jet, Sen. Claire McCaskill is airing her grievances about flying commercial.

The Missouri Democrat told Transportation Security Administration chief John Pistole on Wednesday that she is an “expert” on commercial air travel, and that with her artificial knee, she tries her hardest to avoid what she calls “unbelievably invasive” pat-downs in favor of the Advanced Imaging Technology scanning machines.

McCaskill keeps an eye out for one TSA agent in particular. “When I see her, I tense up. Because I know it’s going to get ugly,” the senator said at a Commerce Committee hearing, noting she often arrives at checkpoints to see the machines unstaffed. Rather than wait, she submits to pat-downs, of which she’s not a fan.

Permalink 09:22:06 am, by fourth, 231 words, 3152 views   English (US)
Categories: General

A “taser” is an improper use of “Taser”; to “Tase” probably is now a word

Taser is a proper noun. www.Taser.com. To “tase” or to use a “taser” requires that Taser be capitalized. I’ll give that Tase is now a word, as in “don't Tase me, bro.”

Three uses of little-T taser as a noun in the last nine days:

“After removing the other occupants from the home, the officers used a taser in an attempt to subdue Sandberg, which proved tragically ineffective.” Sandberg v. City of Torrance, 456 Fed. Appx. 711 (9th Cir. 2011) (unpublished)

“Evans was tased and removed from the car.” People v. Evans, 200 Cal. App. 4th 735, 133 Cal. Rptr. 3d 323 (2d Dist. 2011)

“Deputy Chavarria also testified he removed and displayed his taser gun while entering the apartment ‘because at that point, I wanted compliance.’” Turrubiate v. State, 2011 Tex. App. LEXIS 8895 (Tex. App. — San Antonio November 9, 2011)

No case this month has used Taser properly.

It’s like “Kleenex”; a proper noun. I heard in law school that “aspirin” was once, and “Xerox” fought to protect its trademarked name. Taser may not care, and would it prefer become generic so everybody will buy theirs?

On a side note, in the local legal newspaper, our version of “big law” does a weekly article on an Eighth Circuit case which is probably longer than the original opinion. They mentioned “taser” but their spell checker made it “taster,” probably because “taser” isn’t in “big law’s” vocabulary.

Permalink 08:43:52 am, by fourth, 290 words, 2916 views   English (US)
Categories: General

TX4: Taser pointed at face and officer pushing way in was not consent

The state failed to show consent for entry where the officer pointed a Taser in her face and pushed his way in. Turrubiate v. State, 2011 Tex. App. LEXIS 8895 (Tex. App. — San Antonio November 9, 2011) (dissent)*:

In this case, the record as it existed at the time of the suppression hearing is particularly scant. In fact, the record before this court indicates that all the trial court had before it at the time of the hearing was appellant’s motion to suppress, appellant’s testimony, and the arresting officer’s police report. Appellant testified that on February 11, 2010, Christopher Lopez, an investigator for Child Protective Services, knocked on appellant’s front door while Deputy Santos Chavarria, a sheriff’s officer with the Bexar County Sheriff’s Office, “hid[] from out of sight ... of the peephole.” Appellant testified that when he “barely cracked open the door[],” Deputy Chavarria “pushed his way in with his hand, pointing his taser gun in my face, saying to turn around and put my hands behind my back. ... And he put me in handcuffs and sat me down.” At that point, appellant testified he gave Deputy Chavarria consent to search in a blue backpack nearby. Deputy Chavarria found a bag of marijuana inside the backpack and placed appellant under arrest.

The State, which had the burden of proving a lawful entry and search, did not call Deputy Chavarria to testify during the hearing, but rather produced only his report, which contained the following handwritten statement: ....

A car was stop after a suspected hand-to-hand buy, and they gave up defendant. That was probable cause for a warrant. Even if their stop was unconstitutional, defendant cannot claim an injury from that. State v. Dingess, 2011 Ohio 5659, 2011 Ohio App. LEXIS 4648 (10th Dist. November 3, 2011).*

Permalink 08:06:02 am, by fourth, 157 words, 2946 views   English (US)
Categories: General

CA6: Qualified immunity for overseizure of stolen property under SW

Defendant officer had qualified immunity for probable cause for a search warrant that described stuff from two burglaries, but actually described nineteen. “The fact that officers can seize items not listed in a warrant also makes Wirth’s reliance on the allegedly defective warrant in this case reasonable. We have held that ‘even evidence “not described in a search warrant may be seized if it is reasonably related to the offense which formed the basis for the search warrant.”’” Wheeler v. City of Lansing, 660 F.3d 931 (6th Cir. 2011).

The driver of the car with the keys who asserted control over the car had common authority to consent to a search of the car. United States v. Scott, 2011 U.S. Dist. LEXIS 128664 (W.D. Mo. November 7, 2011).*

An officer investigating hunting with a firearm during archery season had reasonable suspicion when he encountered defendant with a gun. United States v. Weatherford, 2011 U.S. Dist. LEXIS 129349 (N.D. Ind. November 8, 2011).*

Permalink 07:48:18 am, by fourth, 310 words, 2954 views   English (US)
Categories: General

CA6: “Consent once removed” applies only to entries, not reentries; animal control entries stated a claim

“Consent once removed” applies only to entries, not reentries. Plaintiff also stated a due process claim for animal control officers entering the property to take animals, plant microchips in them, and then require plaintiff to pay $1,000 to get the dogs back. A Fourth Amendment claim for the reentry. O’Neill v. Louisville/Jefferson County Metro Gov’t, 662 F.3d 723 (6th Cir. 2011):

Akinsanya and Diaz, however, do not stand for the general proposition that achieving “one consensual entry” permits “law enforcement agents [to] thereafter enter and exit a home at will.” Diaz, 814 F.2d at 459. Both were drug cases in which the purpose of the undercover agent’s or informant’s exit was to immediately summon officers to help effectuate an arrest. See Akinsanya, 53 F.3d at 855-56; Diaz, 814 F.2d at 459. Those circumstances distinguish Akinsanya and Diaz from this case, where the backup LMAS officers did not—after the undercover officers exited—rush in to help effectuate an arrest. They instead knocked on the O’Neills’ door to request proof of a “breeder’s license,” carried on a discussion with the O’Neills about the need for such a license, and entered only after the O’Neills specifically objected to their coming into the residence.

. . .

Applying the consent-once-removed doctrine to the LMAS officers’ second entry, where no arrest was intended, would go well beyond the confines of this limited doctrine, which has yet to be adopted by the Supreme Court. See Pearson v. Callahan, 555 U.S. 223, 243-44, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (declining to rule on whether the consent-once-removed doctrine is constitutional by instead resolving the issue of qualified immunity on the basis that no clearly established law was violated). We therefore conclude that the O’Neills have sufficiently pleaded a Fourth Amendment violation based on the second warrantless entry.

Law.com: Dog owners have their day at 6th Circuit.

11/09/11

Permalink 01:32:49 pm, by fourth, 144 words, 3277 views   English (US)
Categories: General

Good lawyering exposes police perjury in a pot search case

Philly.com: Video of pot bust spotlights lapses by police by Nathan Gorenstein:

It looked like an open-and-shut case. A cop pulls over a car, walks up to the driver's door, and sees a plastic baggy of marijuana. He brings in a drug-sniffing dog to prove probable cause for a search, gets a warrant, and finds a kilo of weed in the trunk.

That's what Officer Steven Lupo put in his report and testified to in Philadelphia Municipal Court.

Then defense attorney Michael Diamondstein produced the video.

Turned out reality was different.

The video taken from nearby surveillance cameras contradicted key facts in Lupo's report and sworn testimony. Most crucially, Lupo and an unidentified supervisor are seen rummaging through the trunk hours before a warrant was issued. On the witness stand just moments before the video was played, Lupo emphatically denied that had occurred.

Permalink 12:12:28 pm, by fourth, 210 words, 2984 views   English (US)
Categories: General

ABAJ.com: "Prosecutor Served Search Warrant on Defense Lawyer During Trial to Get His Documents"

ABAJ.com: Prosecutor Served Search Warrant on Defense Lawyer During Trial to Get His Documents by Martha Neil:

In a San Antonio courtroom packed with lawyers attending as spectators, a Texas prosecutor testified today that she had a search warrant served on opposing counsel and his client during a trial in an embezzlement case early this year. The reason why was because she feared he was withholding stolen documents from the government.

Defense lawyer Tony Reyes was representing Kathleen Kavooras Pierce, a hair salon worker who was accused of embezzling from her former employers. Pierce was convicted and is now, represented by another attorney, seeking a new trial due to the mid-trial execution of the search warrant, reports the San Antonio Express-News.

I testified in that case two weeks ago as an expert on legal ethics and the law of search and seizure that everybody screwed this up: the trial judge, the defense lawyer, and the District Attorney. The warrant could have waited because they knew defense counsel had been coming and going with the records, they could have executed it at the end of the day, if not the end of the trial, the trial judge should have monitored this better, defense counsel finished the trial without even objecting.

Permalink 11:56:13 am, by fourth, 157 words, 2930 views   English (US)
Categories: General

Networld: "4th Amendment vs Virtual Force by Feds, Trojan Horse Warrants for Remote Searches?"

4th Amendment vs Virtual Force by Feds, Trojan Horse Warrants for Remote Searches? by Ms. Smith

If you missed part one, Fourth Amendment's Future if Gov't Uses Virtual Force and Trojan Horse Warrants, then please go catch up with the rest of us. This time we'll look at Remote Access Trojans (RAT) which are nothing new, yet assume that this government-injected malware/spyware was not detected by antivirus. Also in this case, we are not assuming the target is a SE (social engineering) victim who opens an email or clicks on a link that installs the backdoor into their digital life. This isn't about if I agree or if I think that sort of privacy invasion is right (if you are wondering, then you've never read this blog huh?); this is about an interesting paper that discussed if the government/law enforcement can legally get around your Fourth Amendment rights and secretly install software for remote searches.

Permalink 08:46:34 am, by fourth, 132 words, 2916 views   English (US)
Categories: General

Volokh: Kerr on Jones

Volokh Conspiracy: Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case by Orin Kerr:

I was at the Supreme Court this morning for the oral argument in United States v. Jones, the GPS case. In this post, I want to blog my reactions to the argument: I’m going to update the post as I go, so general readers can get the important stuff first at the top and then general readers can get the rest down the page.

1) My basic reaction was that the outcome was too close to call. The Justices gave both sides a very hard time, and few Justices tipped their hand. ...

Most commentators say the argument favored the citizen not the government. Go with this one because he's been there before.

11/08/11

Permalink 10:55:23 am, by fourth, 114 words, 2944 views   English (US)
Categories: General

WSJ: "Conservatives, Liberals Share Kumbaya Moment in GPS Case"

WSJ: Conservatives, Liberals Share Kumbaya Moment in GPS Case by Jess Bravin:

Today the case of whether the government can put a GPS tracker on someone’s car without a warrant comes before the Supreme Court. (Click here for our preview of the case.) One interesting aspect of the case is the way it scrambles the usual ideological lines, and lawyers battling the government have a two-track argument designed to appeal to different sides of the bench.

The lawyers for accused drug trafficker Antoine Jones, who had a GPS device put on his Jeep, say that the device violates Jones’s Fourth Amendment right against unreasonable searches and that his property rights were violated.

Permalink 07:43:50 am, by fourth, 164 words, 3023 views   English (US)
Categories: General

Doom and gloom of Jones; "Fear and Loathing" in SCOTUS

I woke up this morning with the ominous feeling: today is oral argument in the Jones case. If this case comes out for the government, it could be the technological death of the Fourth Amendment. If the government can track our cars by GPS and no warrant, then the next step logically would be to track any of us through our cell phones, with the limited exception maybe of inside the house.

Justice Scalia always looks to what the founding fathers would think, and I can’t help but think that they are rolling over in their graves at the possibility that the government can track us in real time as easily as planting device that transmits our whereabouts to a satellite then to a computer through the Internet.

Scalia “hop[es] the living Constitution will die,” and, with technology destroying so much of our privacy, that scares the hell out of me. I have no confidence in this Court where corporations > government > individuals.

Permalink 07:36:37 am, by fourth, 176 words, 2891 views   English (US)
Categories: General

TX2: State failed to show objective reasonable suspicion for detention

Based on the officer’s testimony alone, the court finds that the stop was without objective reasonable suspicion, and the motion to suppress as a result of his detention should have been granted. State v. Kerwick, 353 S.W.3d 911 (Tex. App.–Ft. Worth 2011).*

Defense counsel fully litigated the motion to suppress and appealed it, so there was no IAC. United States v. Clay, 2011 U.S. Dist. LEXIS 128305 (E.D. Ark. November 4, 2011).*

Testimony was submitted to a state trial judge for issuance of a search warrant, and the transcript of that application was submitted to the federal court in opposition to the motion to suppress. The court agrees that there was ample probable cause. United States v. Scott, 2011 U.S. Dist. LEXIS 128328 (D. N.D. November 4, 2011).*

Officer’s observations of a juvenile during a DWI arrest were not suppressible as “testimonial.” State v. Randy J., 150 N.M. 683, 2011 NMCA 105, 265 P.3d 734 (2011), Certiorari Denied, 269 P.3d 903 (N.M. 2011).*

Officer's smell of marijuana during a stop with other factors was reasonable suspicion. State v. Morris, 2011 S.C. App. LEXIS 320 (August 17, 2011).*

Permalink 07:23:46 am, by fourth, 356 words, 2978 views   English (US)
Categories: General

GA: Briefcase left in another house was not a waiver of the owner's expectation of privacy

Defendant’s briefcase was left at somebody else’s house, and defendant did not abandon it and he still had a reasonable expectation of privacy in it. The search of the briefcase was not based on an independent source. Wilder v. State, 290 Ga. 13, 717 S.E.2d 457 (2011):

1. Before examining the merits of the Fourth Amendment issue, we first address the argument that Wilder lacks standing to challenge the seizure of his briefcase because it was obtained from the home of a third party. Stated simply, “the assertion that [Wilder] is without standing to object to the seizure of his personal belongings is plainly wrong. [Cit.]” Mooney v. State, 243 Ga. 373, 374-375 (1) (254 SE2d 337) (1979) (appellant had standing to challenge seizure of his luggage from third party’s automobile), abrogated on other grounds by Horton v. California, 496 U.S. 128 (110 SC 2301, 110 LE2d 112) (1990). Though lacking standing to challenge a search of Malin’s premises, see, e.g., Brown v. State, 240 Ga. App. 321, 322, n.2 (1) (523 SE2d 333) (1999) (search of premises owned by third party does not implicate defendant’s Fourth Amendment rights), appellant does have standing to contest the seizure of his own personal property from the premises of another. Mooney v. State, supra at 374-375. Compare English v. State, 288 Ga. App. 436 (3) (654 SE2d 150) (2007) (no standing to challenge search of third party’s premises and seizure of stolen vehicle stored there by defendant).

. . .

This case presents a different scenario, in that it involves a single search, preceded only by an unlawful seizure, which yielded custody of the item ultimately searched rather than information giving rise to the eventual lawful search. Here, while the information on which the search warrant was based derived from a source wholly independent of the initial unlawful seizure, the search itself cannot be said to have been conducted independent of the seizure, as it was the seizure that in fact made possible the search that actually occurred. Accordingly, we simply cannot find that the evidence here was “discovered by means wholly independent of any constitutional violation.” Teal, supra, 282 Ga. at 323 (2). The Court of Appeals thus erred in affirming the trial court in its application of the independent source doctrine.

Permalink 07:10:27 am, by fourth, 316 words, 3032 views   English (US)
Categories: General

N.D.Ga.: Consent to search does not necessarily include consent to seize

Consent to search does not necessarily include consent to seize. United States v. Chappell, 2011 U.S. Dist. LEXIS 128113 (N.D. Ga. May 24, 2011):

Upon consideration, the undersigned finds [United States v. Tatman, 615 F.Supp.2d 644, 690 (S.D.Ohio. 2008)] persuasive and holds that the waiver of privacy rights under the Fourth Amendment through a consent to search does not act as a separate waiver of possessory rights under the Fourth Amendment. Therefore, a mere consent to search, without more, does not amount to a consent to seize. Horton, 496 U.S. at 133.

. . .

The government contends that the consent authorized the agents to seize all of the items because they were "of potential evidentiary value as to the charges against the Defendant, i.e., the sex trafficking of a child." [Doc. 36, at 8]. However, to preserve the distinction between possessory and privacy rights, the consent to seize inferred from a consent to search must be no more than what is "inherently necessary to effect that search." Andracek, 2007 WL 1575355 at *6 (emphasis added) (consent to seize a computer inferred from consent to search the computer does not extend to the removal of the computer from the Defendant's premises, finding that the off-premises search was not necessary to the search of the hard drive). Applying the Andracek limitation to the Strickland inquiry, the undersigned concludes that the scope of a consent to seize which reasonably may be inferred from a general consent to search is the minimum level of seizure which an objective person would have believed to be necessary to effectuate such a search. Andracek, 2007 WL 1575355 at *6; see Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801 (1991) (scope of consent determined by "objective reasonableness" under the circumstances). Otherwise, to hold that a consent to search would authorize the seizure of property beyond what is reasonably necessary to effectuate the search would obliterate the distinction between the privacy and possessory interests protected under the Fourth Amendment.

Permalink 06:19:22 am, by fourth, 571 words, 2950 views   English (US)
Categories: General

OH2: Unlawful stop means search incident to warrant found has to be suppressed

An unlawful stop makes unconstitutional an arrest on a warrant found during the stop. If the law were otherwise, police would have motive to unconstitutionally stop people just to run warrants on them. State v. Gardner, 2011 Ohio 5692, 2011 Ohio App. LEXIS 4668 (2d Dist. November 4, 2011):

[*P27] “To hold otherwise would result in a rule that creates a new form of police investigation, whereby an officer patrolling a high crime area may, without consequence, illegally stop a group of residents where he has a ‘police hunch’ that the residents may: 1) have outstanding warrants; or 2) be engaged in some activity that does not rise to a level of reasonable suspicion. Despite a lack of reasonable suspicion, a well-established constitutional requirement, the officer may then seize those individuals, ask for their identifying information (which the individuals will feel coerced into giving as they will have been seized and will not feel free to leave or end the encounter), run their names through a warrant database, and then proceed to arrest and search those individuals for whom a warrant appears. Under this scenario, an officer need no longer have reasonable suspicion on probable cause, the very crux of our Fourth Amendment jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); [United States v.] Williams [2010], 615 F.3d [657] at 670, n. 6 (‘[Allowing information obtained from a suspect about an outstanding warrant to purge the taint of an unconstitutional search or seizure would have deleterious effects. It would encourage officers to seize individuals without reasonable suspicion-not merely engage them in consensual encounters-and ask them about outstanding warrants.’); see, also, Kimberly, Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 Yale L.J. 177 (2008) (commenting that a rule where the discovery of an outstanding warrant constitutes an intervening circumstance has the perverse effect of encouraging law enforcement officials to engage in illegal stops where they have an inarticulable hunch regarding a person on the street or in a car).” Gross, [United States v. Gross, 624 F.3d 309 (6th Cir. 2010)] supra, at 321-22.

. . .

[*P37] Whether viewed as lack of proximate cause or as attenuation, there is a point, albeit perhaps ultimately subjective, at which the discovery of a warrant, and a search incident to arrest under the warrant, is so removed, unrelated, unforseen, and independent from the unlawful stop and seizure that the exclusionary rule is not applicable. In the case before us, the warrant was discovered as a direct, proximate and non-attenuated result of Gardner’s seizure.

[*P38] In summary, Gardner had a reasonable expectation of privacy at the time of the stop despite there being a warrant for his arrest. Once the warrant was discovered, the law enforcement officers had the right to infringe upon that expectation, arrest him, and conduct a search incident to that arrest. However, if the warrant was discovered as a result of an unlawful stop or seizure (unless its discovery was unconnected to and attenuated from the illegality), then any evidence seized in the search incident to the arrest must be suppressed.

[*P39] We cannot tell from the record exactly when and how the officers discovered Gardner’s name or that there was a warrant; whether the court found facts justifying — or not justifying — a Terry patdown; or whether, if such a patdown were justified, whether the seizure of the drugs was within the plain feel exception. We will reverse the judgment and remand the case to the trial court for further proceedings consistent with this opinion.

11/07/11

Permalink 08:51:52 am, by fourth, 152 words, 3047 views   English (US)
Categories: General

OH2: State failed to prove exigency to dispense with BAC level in DUI case

The trial court’s finding that state failed to show exigent circumstances to dispense with a warrant for blood is supported by the record. The officer was at the scene within a minute of the occurrence and had three hours to get the blood by statute. State v. Rawnsley, 2011 Ohio 5696, 2011 Ohio App. LEXIS 4662 (2d Dist. November 4, 2011).*

Defendant contended that the person granting consent was deaf and mentally retarded, but the trial court as finder of fact disagreed finding that she could hear without hearing aids and she was not retarded at all because she “demonstrated ample mental sophistication on the witness stand. Therefore, this [c]ourt determined that Ms. Cape was mentally and physically capable of giving legal consent to search.” Commonwealth v. Reese, 2011 PA Super 235, 31 A.3d 708 (2011).*

Because the officer had reasonable suspicion for the PBT it was reasonable and separate consent was not required. State v. Therrien, 2011 VT 120, 38 A.3d 1129 (2011).*

Permalink 08:37:30 am, by fourth, 181 words, 2966 views   English (US)
Categories: General

KY clarifies “inadvertent discovery” requirement of the plain view doctrine is not a requirement

The Kentucky constitution is not applied differently than the Fourth Amendment, so the “inadvertent discovery” requirement of the plain view doctrine is not a requirement. When a computer was the object of the search, a computer bag was plain view. Chavies v. Commonwealth, 354 S.W.3d 103 (Ky. 2011):

The laptop and lights were in plain view. Chavies argues the computer and lights themselves were not visible because the computer was in a laptop bag, and the lights were in a box. We disagree. Hurley said Chavies took lights packaged in a box and a computer. Police saw in Chavies’s car the original packaging for the lights, as Hurley described, and a laptop bag. It is sufficient that the police saw a laptop bag in the car. Police did not have to see the laptop itself as long as they had probable cause to believe the laptop bag was stolen or contained a stolen computer.

The incriminating nature of the evidence was immediately apparent. Where the nature of the evidence is not inherently criminal, probable cause of its incriminating nature is necessary. ...

Permalink 08:35:19 am, by fourth, 197 words, 2916 views   English (US)
Categories: General

IN: Search warrant for “any and all vehicles involved with the property” was general as applied to a vehicle leaving

Search warrant authorized a search for “any and all vehicles involved with the property.” Defendant got into a car parked outside and left and was stopped by officers. The warrant was a general warrant as to vehicles for not requiring nexus to the property. Lee v. State, 956 N.E.2d 758 (Ind. App. 2011):

In this case, neither the warrant nor the affidavit in support thereof described the vehicles to be searched; detailed the vehicles’ connection to any criminal activity; or indicated the specific locations of the vehicles with any specificity to be searched. Given the vague language of the warrant, which clearly gave officers discretion in determining which vehicles to search, we find the portion of the warrant allowing for the search of vehicles to be invalid. Accordingly, all evidence seized pursuant to the invalid language, but only pursuant to the invalid language, must be suppressed. See Warren v. State, 760 N.E.2d 608, 610 (Ind. 2002) (holding that “catchall language does not doom the entire warrant, ... but rather only requires the suppression of the evidence seized pursuant to that part of the warrant but not the suppression of the evidence obtained pursuant to the valid specific portions of the warrant”).

Permalink 08:16:00 am, by fourth, 261 words, 3032 views   English (US)
Categories: General

M.D.Tenn.: Gant not retroactive to forfeiture action either

Gant was not retroactive for a forfeiture action, either. United States v. $164,705.00 United States Currency, 2011 U.S. Dist. LEXIS 127687 (M.D. Tenn. November 3, 2011).*

Under Washington law, however, a defendant who did not challenge his search incident under Gant because the hearing was before Gant was decided could still raise it on appeal. Remanded. State v. Johnson, 164 Wn. App. 486, 273 P.3d 446 (2011).*

Summary judgment was properly granted the police officers for the Terry search of defendant’s person for a gun. They had articulable reasonable suspicion defendant was armed. Spears v. Leporace, 449 Fed. Appx. 187 (3d Cir. 2011) (unpublished).*

The defendant relied on the police reports to show that the officers did not believe that they had probable cause at the time of the stop, but the court finds probable cause despite the fact one officer said “detained” and another said “arrested.” United States v. Vazquez-Silva, 2011 U.S. Dist. LEXIS 127939 (D. Idaho November 4, 2011)*:

The defense also argues that the distinction between the officers' reports as to whether Mr. Vazquez was detained or arrested is critical. The defense contends the officers' behaviors at the time of the traffic stop suggest they had not yet determined whether or not he had any involvement in the drug transaction yet and were trying to figure out if there was any evidence they could use, even from the house, to link him to the case. The point being that at the time of his arrest there wasn't sufficient probable cause for him to have been arrested, asked incriminating questions, and his property, including the Jetta, searched. The Court finds otherwise.

Permalink 07:44:24 am, by fourth, 352 words, 3218 views   English (US)
Categories: General

CA4: Welsh does not prohibit warrantless entries to arrest for DUI; it is based on penalty for offense

Welsh did not categorically hold that a warrantless entry for DUI was unreasonable, and the circuits have split on the issue, so the officer gets qualified immunity. Cilman v. Reeves, 452 Fed. Appx. 263 (4th Cir. 2011) (unpublished):

Contrary to the district court’s contention, Welsh does not establish a categorical rule that police may never make a warrantless entry into a home to effect an arrest for driving under the influence. The Welsh Court held only that, because Wisconsin treated a DUI as a civil non-jailable offense for which the maximum penalty was a fine of $200, no exigent circumstances justified the warrantless entry at issue there. Welsh, 466 U.S. at 753-54. The Court emphasized that “the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” Welsh, 466 U.S. at 754 n.14; see also id. at 754 (“[The penalty] is the best indication of the State’s interest in precipitating an arrest.”).

Although the Supreme Court later observed that “Welsh drew a distinction between jailable and nonjailable offenses, not between felony and misdemeanor offenses,” Illinois v. McArthur, 531 U.S. 326, 335-36 (2001), in Welsh itself, the Court left open the possibility that the Fourth Amendment could impose a wholesale ban on warrantless home arrests for minor offenses. Welsh, 466 U.S. at 749 n.11 (“Because we conclude that, in the circumstances presented by this case, there were no exigent circumstances sufficient to justify a warrantless home entry, we have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.”). We need not here determine the exact parameters of the rule set forth in Welsh because even if Officer Reeves did violate Cilman’s Fourth Amendment rights, those rights were not “clearly established.”

No controlling Supreme Court or Fourth Circuit precedent speaks to a person’s right to be free from a warrantless entry into his home in circumstances like those in the case at hand. Numerous out-of-circuit cases do address this issue, but courts have divided on this question. ...

Permalink 06:54:01 am, by fourth, 97 words, 3010 views   English (US)
Categories: General

Volokh: "Panel on United States v. Jones, the Fourth Amendment GPS Case"

Volokh Conspiracy: Panel on United States v. Jones, the Fourth Amendment GPS Case by Orin Kerr:

A few weeks ago, I participated on a panel about United States v. Jones, the GPS case, at William & Mary Law School. The panel featured Steve Leckar, who will be arguing the case for Jones; Melanie Wilson, a criminal procedure professor at the University of Kansas (visiting at W&M); and Paul Marcus of W&M. The video has just been posted, and it’s here for those interested. The oral argument in Jones will be on Tuesday.

11/06/11

Permalink 08:50:36 am, by fourth, 206 words, 2964 views   English (US)
Categories: General

KY: No constitutional tort against hospital for stripping and removal of body fluids at request of police

Kentucky refuses to recognize a new constitutional tort against a hospital and its employees conducting a strip search and removal of bodily fluids at the request of the police. St. Luke Hosp. v. Straub, 354 S.W.3d 529 (Ky. 2011)*:

We granted discretionary review to consider whether an individual may bring a civil action for money damages under Kentucky Revised Statutes (KRS) 446.070 on the basis of an alleged violation of a provision of the Kentucky Constitution. In addition to traditional common law tort claims, Shannon Straub made a claim for money damages based upon the alleged violation of her substantive due process interests under the Kentucky Constitution. Straub alleges that St. Luke Hospital, some of its nurses and security guards, and the emergency room physician acted under the direction of a city police officer to violate her due process interests by forcibly restraining her, stripping and gowning her, and extracting blood and urine samples from her without her consent, the consent of a parent, or a court order.

We hold that an action for money damages under KRS 446.070 is not available for alleged constitutional violations, and we decline Straub's invitation to create judicially a new constitutional tort in Kentucky because adequate remedial alternatives exist in the common law.

Permalink 08:37:40 am, by fourth, 162 words, 2892 views   English (US)
Categories: General

D.N.M.: Gov't showed enough to get a deposition of child victim because of risk of nonappearance; suppression hearing reopened

While the court has granted the government’s motion to reopen the suppression hearing, the government has moved for a deposition of the alleged child victim in this case who is residing in a “secure educational institution” who has a substantial risk of nonappearance at the trial. Granting depositions are not done lightly in the federal system, and defendant will be able to participate and cross-examine and it will be taken in the courthouse. The testimony is for trial. United States v. Christy, 2011 U.S. Dist. LEXIS 127235 (D. N.M. September 21, 2011).*

The officer had reasonable suspicion but didn’t need it during a traffic stop to ask for consent to search. Defendant also did not have a right to Miranda warnings before being asked for consent. State v. Lara, 78 So. 3d 159 (La. App. 2d Cir. 2011).*

Defendant was stopped for a traffic offense, and the smell of marijuana was sufficient to continue the detention. Williams v. State, 356 S.W.3d 508 (Tex. App.—Texarkana 2011).*

Permalink 08:06:57 am, by fourth, 123 words, 2882 views   English (US)
Categories: General

AR: Challenging only one of two grounds for search relied on by trial court won't get reversal

Challenging a search on appeal on only one ground where two were relied on by the trial court can’t result in reversal because the other ground was waived and becomes sufficient. Thomas v. State, 2011 Ark. App. 637, 386 S.W.3d 536 (2011).*

Officers had a search warrant for defendant’s car and discovery of photographs useful in a health care fraud case were found in the car, and their evidentiary value was immediately apparent to one officer. United States v. Tadevosyan, 2011 U.S. Dist. LEXIS 126934 (S.D. W.Va. November 2, 2011).*

There were eight search warrants in this case, and defendant only showed standing as to the two search warrants for his house and business. United States v. Hopkins, 2011 U.S. Dist. LEXIS 127071 (D. Minn. October 5, 2011).*