Archives for: January 2011

01/31/11

Permalink 08:08:06 am, by fourth, 272 words, 891 views   English (US)
Categories: General

Cal.6th: There is a federal constitutional right of privacy in medical and psychiatric records

There is a Griswold constitutional right of privacy in medical and psychiatric records which can only be disclosed when there is a compelling state interest, which the court finds here in a SVP case. People v. Gonzales, 192 Cal. App. 4th 152, 120 Cal. Rptr. 3d 911 (6th Dist. 2011):

Given Lifschutz and the weight of federal and state authority cited above, we too find that the notion of substantive due process in general, and the notion of constitutionally protected zones of privacy in particular encompass a right to privacy that independently protects information generated in confidence between a patient and psychotherapist from unwarranted and unjustified intrusions by the government. We further find, however, that the constitutional protection is not absolute but may yield where disclosure serves competing state interests that outweigh the degree of intrusion disclosure would cause. More particularly, Lifschutz teaches that compelling the disclosure of otherwise privileged psychotherapy records under an exception does not violate the right to privacy where the exception promotes an important state interest, limits disclosure to what is reasonably necessary to achieve the purpose of the exception, and contains, and/or is subject to, safeguards that protect against the unwarranted and unnecessary disclosure.

Here, the court compelled the disclosure of privileged information under the dangerous-person exception. (Evid. Code, § 1024.) In light of the analysis of patient-litigant exception in Lifschutz, our discussion of the dangerous-patient exception—i.e., its purpose, nature, and limited scope—supports a finding that the exception is narrowly focused and justified by a compelling state interest in safety. Therefore, on its face the exception, like the patient-litigant exception, does not appear to violate the right of informational privacy.

Permalink 07:47:15 am, by fourth, 371 words, 676 views   English (US)
Categories: General

TX: It is not required that a specific offense be identified for reasonable suspicion

It is not required that a specific offense be identified for reasonable suspicion to exist. Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011), cert. denied 2011 U.S. LEXIS 6188 (U.S. Oct. 3, 2011) (concurrence; dissent), revg Derichsweiler v. State, 301 S.W.3d 803 (Tex. App. – Fort Worth, 2009):

... We conclude that the majority below erred to the extent that its opinion may be read for the proposition that facts adduced to give rise to a reasonable suspicion must show that the detainee has committed, is committing, or is about to commit, a particular and distinctively identifiable penal offense.

Unlike the case with probable cause to justify an arrest, it is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction. The reason is simple but fundamental. A brief investigative detention constitutes a significantly lesser intrusion upon the privacy and integrity of the person than a full-blown custodial arrest. For this reason, a warrantless investigative detention may be deemed “reasonable” for Fourth Amendment purposes on the basis of a lesser quantum or quality of information—reasonable suspicion rather than probable cause. Likewise, because a detention is less intrusive than an arrest, the specificity with which the articulable information known to the police must demonstrate that a particular penal offense has occurred, is occurring, or soon will occur, is concomitantly less. It is, after all, only an “investigative” detention. So long as the intrusion does not exceed the legitimate scope of such a detention and evolve into the greater intrusiveness inherent in an arrest-sans-probable-cause, the Fourth Amendment will tolerate a certain degree of police proaction. Particularly with respect to information suggesting that a crime is about to occur, the requirement that there be “some indication that the unusual activity is related to crime” does not necessarily mean that the information must lead inexorably to the conclusion that a particular and identifiable penal code offense is imminent. It is enough to satisfy the lesser standard of reasonable suspicion that the information is sufficiently detailed and reliable—i.e., it supports more than an inarticulate hunch or intuition—to suggest that something of an apparently criminal nature is brewing.

[It isn't for PC, so why not for RS?]

Permalink 07:29:05 am, by fourth, 241 words, 641 views   English (US)
Categories: General

D.P.R.: Loaning a rented car to another is a waiver of any expectation of privacy

Defendant rented a car and then loaned it to co-conspirators. He had no reasonable expectation of privacy in the car when he loaned it. United States v. Guzman-Correa, 754 F. Supp. 2d 342 (D. P.R. 2011).*

Meth odor coming from car was probable cause for search of the car. United States v. Bowman, 2011 U.S. Dist. LEXIS 8043 (E.D. Tenn. January 27, 2011), adopting 2010 U.S. Dist. LEXIS 140613 (E.D. Tenn. November 22, 2010).*

Based on information from wiretaps, there was probable cause to believe that defendant’s car had cocaine in it. United States v. Solorio, 2011 U.S. Dist. LEXIS 7877 (M.D. Pa. January 27, 2011).*

Officers did a knock and talk in a child pornography investigation, and talked to defendant about the possibility that his credit card had been compromised and used to buy child porn on the internet. Defendant agreed to a search of three of his computer hard drives. The situation was not coercive. Defendant even offered to make the officers coffee while they were there. “While he may have been on prescription medications and may not be a morning person, there is no evidence that he was confused or unable to think clearly at the time he consented to the search. His own testimony about what transpired on that morning reflects that he was clear-headed when he voluntarily consented to the search of his computers.” United States v. Schmit, 2011 U.S. Dist. LEXIS 7742 (D. Ariz. January 25, 2011), adopting 2010 U.S. Dist. LEXIS 140531 (D. Ariz. November 19, 2010).*

Permalink 07:04:24 am, by fourth, 403 words, 945 views   English (US)
Categories: General

W.D.Ky.: Posse Comitatus Act not violated, but, even if it was, exclusionary rule would not apply

NCIS child exploitation investigator working the internet had defendant to send child pornography pictures to her. Once it was determined that the defendant was not in the military, the investigation was turned over to local police. This did not violate the Posse Comitatus Act, 18 U.S.C. § 1385. Even if it did, the exclusionary rule would not apply. United States v. Holloway, 2011 U.S. Dist. LEXIS 8160 (W.D. Ky. January 27, 2011):

The sexual exploitation of children is prohibited under the UCMJ. See United States v. Allen, 53 M.J. 402, 407 (C.A.A.F. 2000). Special Agent Lepovetsky’s under cover investigation was an attempt to stop the sexual exploitation of children as prohibited by the UCMJ. As such, her investigation falls under the independent military purpose exception. Once Special Agent Lepovetsky was able to confirm that “Consul_211” was not a member of the military, she immediately turned the investigation over to the appropriate civil law enforcement department, the Kentucky Internet Crimes Against Children Task Force. Special Agent Lepovetsky was not personally involved with obtaining the search warrant to search Defendant’s home, the search of the home itself, the seizure of any evidence, the analysis of any evidence seized, or the arrest of Defendant. Special Agent Lepovetsky’s assistance in Defendant’s case was only incidental. Defendant was not subjected to the regulatory, prescriptive, or compulsory use of military power. In situations such as this, the PCA is not violated by such assistance. See e.g. Hitchcock, 286 F.3d at 1070 (finding NCIS and CID agents' participation in the investigation, arrest, search, seizure, and interrogation of a civilian defendant was not a violation of the PCA where an independent military purpose existed); Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir. 1990) (finding no violation of the PCA where NIS agents shared information with local police about drug activity, aided in surveillance, and made the undercover buy).

Even had there been a violation of the PCA, the exclusion of the evidence would not be appropriate under the circumstances of this case. “As a general matter, the exclusionary rule is [*8] not a remedy for violations of the PCA.” United States v. Al-Talib, 55 F.3d 923 (4th Cir. 1995) (citing United States v. Griley, 814 F.2d 967, 976 (4th Cir. 1987)); United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979). Absent widespread and repeated violations of the PCA and its related regulations, a majority of courts have refused to apply the exclusionary rule. Hayes, 921 F.2d at 104 (collecting cases).

01/30/11

Permalink 11:43:24 am, by fourth, 166 words, 1148 views   English (US)
Categories: General

LA5: Controlled buy corroborated CI

While the CI was fully tested or corroborated, the search warrant was based on the CI’s controlled buy, and that was good enough. State v. Payne, 59 So. 3d 1287 (La. App. 5th Cir. 2011).*

The place where defendant was stopped was a high crime area, and, when talking to the defendant, the officer told him to remove his hands from his pockets (for officer safety). Instead, defendant shoved his hand deeper into his pocket, and the officer forcibly removed it and 10 bags of dope came out, too. This was reasonable. State v. Huntley, 60 So. 3d 644 (La. App. 5th Cir. 2011).*

The officer’s suspicions were reasonably aroused by defendant’s conduct to call for a drug dog. Whether the drug dog alerted is credited despite the defendant’s claim the dog never alerted. State v. Birgans, 57 So. 3d 478 (La. App. 2d Cir. 2011).*

Defendant was free to leave the police station when he gave his statement, so the Fourth Amendment was not violated. State v. Edwards, 299 Conn. 419, 11 A.3d 116 (2011).*

Permalink 10:28:49 am, by fourth, 215 words, 667 views   English (US)
Categories: General

OH10: Jaywalking detention was unreasonable; consent suppressed

Defendant was stopped and detained for jaywalking and was asked for consent. The consent was the product of an illegal detention when he would not have felt free to leave, and his search violated the Fourth Amendment. State v. Spain, 2011 Ohio 322, 2011 Ohio App. LEXIS 296 (10th Dist. January 27, 2011).*

Defendant’s admission that there was a marijuana pipe in the car justified a search under the automobile exception. The state’s reliance also on the search incident doctrine was misplaced because the search occurred before arrest. State v. Runyon, 2011 Ohio 263, 2011 Ohio App. LEXIS 218 (12th Dist. January 24, 2011).*

Defendant’s indecisive and erratic driving and smell of alcohol when stopped justified arrest for DUI. State v. Slates, 2011 Ohio 295, 2011 Ohio App. LEXIS 245 (9th Dist. January 26, 2011).*

The court punts a forfeiture case because the state turned money over to the federal government. Defense counsel’s argument is called “rambling” by the majority, and “anything but” by a concurring judge. The dissent says that the state cannot avoid suit for taking money by giving it to the feds. State v. Primm, 2011 Ohio 328, 2011 Ohio App. LEXIS 275 (8th Dist. January 27, 2011).*

The evidence of defendant’s traffic violation from the officer was clear and concise, credited by the trial court, and was binding on appeal. State v. Forkland, 2011 Ohio 337, 2011 Ohio App. LEXIS 284 (8th Dist. January 27, 2011).*

01/29/11

Permalink 04:33:26 pm, by fourth, 443 words, 1076 views   English (US)
Categories: General

CA2: Protective sweep during "knock and talk" was legally unjustified

The police did a “knock and talk” and then did a protective sweep without reason. The protective sweep was invalid. United States v. Hassock, 631 F.3d 79 (2d Cir. 2011):

In this case, it is not necessary to determine whether the protective sweep exception is limited to situations involving the execution of legal process (as was the case in Miller) or extends (as the government urges) to any situation where police are lawfully on the premises for a legitimate governmental reason antecedent to the sweep. Certainly the agents here had no legal process and, although they went to the Hassock apartment with a legitimate purpose — the questioning and possible arrest of Hassock — when Hassock did not answer the door, that purpose could not be pursued until Hassock was found. Under these circumstances, the sweep cannot be viewed as a reasonable security measure incident to Hassock’s interrogation or arrest. Instead, the “sweep” itself became the purpose for the agents’ continued presence on the premises insofar as they thereby searched the location for Hassock. As the district court found, it may have been objectively reasonable for agents to think that Hassock’s presence on the premises posed a danger to their safety. See United States v. Hassock, 676 F. Supp. 2d at 158-59. But a protective sweep is reasonable only to safeguard officers in the pursuit of an otherwise legitimate purpose. Where no other purpose is being pursued, a sweep is no different from any other search and, therefore, requires a warrant, exigency, or authorized consent, none of which were present here. Specifically, it was not apparent to the agents of the task force that the young woman who admitted them to the apartment was clothed with any authority that would allow her to consent to a search of the premises. Her discussion with the agents was very brief — she said she had just awakened, that she did not know who was present in the apartment, and answered in the affirmative in response to an agent’s request to “look around.” It was not until after the search was complete that the agents spent some time with the woman, learned her identity, her relationship with the co-tenant of the apartment, and other information. And so it was that, with the limited information available and without ascertaining the woman’s authority to consent, the officers pressed forward in a search for Hassock. (The government concedes that there was no authority of any kind to enter Hassock’s bedroom). The original purpose of the “knock and talk” thereupon became an illegitimate search for Hassock incident to no other lawful police conduct, which cannot be characterized as a protective sweep.

Permalink 04:28:27 pm, by fourth, 223 words, 617 views   English (US)
Categories: General

CA9: Positioning defendant so he could not see consent search did not nullify his consent

Defendant’s Fourth Amendment rights were not violated by positioning him so it was more difficult to observe the search they were going to conduct. He consented twice orally and twice in writing, and his hands were on the police car facing away for safety purposes. United States v. Gonzalez, 412 Fed. Appx. 967 (9th Cir. 2011) (unpublished):

Because Gonzalez's hands were on the patrol car, officers were able to monitor his movements during the search. Besides the fact that Gonzalez was asked to place his hands on the car, there was no relevant change in circumstances between his consent and the search. Finally, officers applied no pressure or force on Gonzalez to prevent him from observing the search. Gonzalez was merely asked to face the patrol car and place his hands on the car. There is no indication Gonzalez attempted to turn around to view the search, or that he was prevented from doing so.

Defendant was stopped at a DUI roadblock, and he was seen trying to hide a mirror and snorting device. When he was gotten out of the car, a gun was found at his ankle. The roadblock was reasonable under the Sitz factors, and the driver had the option of avoiding the roadblock [but if he did, would he be stopped for that?]. United States v. Brock, 632 F.3d 999 (7th Cir. 2011).

Permalink 12:02:22 am, by fourth, 185 words, 621 views   English (US)
Categories: General

M.D.Tenn.: Inviting CI in is waiver of reasonable expectation of privacy

Defendant’s letting the CI into his house was a waiver of any Fourth Amendment claim about the CI. United States v. Johnson, 2011 U.S. Dist. LEXIS 7156 (M.D. Tenn. January 25, 2011).*

The car defendant was in was stopped, and they were removed from the car and detained for a while. The driver’s consent to search the car was not relevant to the finding of the gun in defendant’s pocket since consent did not lead to it. Brendlin does not alter Rakas. United States v. McColley, 2011 U.S. Dist. LEXIS 7181 (M.D. Tenn. January 25, 2011).*

The search was valid and the defendant did not even challenge the consent of the third party. And that’s assuming that he had standing. United States v. Hancock, 2011 U.S. Dist. LEXIS 7591 (E.D. N.C. January 25, 2011).*

Defendant’s business was submitting monthly false statements to the FDIC and seemingly all a fraud, and that justified a broad search warrant, which the court does not find unconstitutionally overbroad. Still, the good faith exception would save the warrant anyway. United States v. Hergert, 2010 U.S. Dist. LEXIS 140470 (D. Neb. December 30, 2010).*

01/28/11

Permalink 08:49:48 am, by fourth, 243 words, 676 views   English (US)
Categories: General

NJ: Defendant's fleeing out a window into a public place cured his arrest on an invalid arrest warrant

The police had an invalid warrant for defendant’s arrest. When they knocked at the door, he fled out a window. Therefore, the arrest was in a public place. State v. Brown, 205 N.J. 133, 14 A.3d 26 (2011).*

Defendant did not abandon his truck by parking it and walking across the street. He had the keys in his pocket. He also had standing. The search was valid based on probable cause under the automobile exception. United States v. Ollervides-Sanchez, 2010 U.S. Dist. LEXIS 140440 (N.D. Ga. December 29, 2010).*

Defendant by statute was required to put the state on notice of the issues to be tried in the motion to suppress, and his motion did by stating that there was a lack of probable cause. The state did show probable cause. Glenn v. State, 2010 Ga. LEXIS 946 (January 24, 2010).*

Defendant’s stop on private property was justified for suspicion of DUI because the officer saw him first on a road and not in good control of his vehicle. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).*

Defendant’s vehicle was stopped for suspicion of being involved in an armed robbery. When the officers approached, they had guns drawn and opened the door because of the dark tinting of the windows, and they could not see inside. When the door was opened, they could see the handle of a gun. All this was reasonable under the Fourth Amendment. United States v. Jones, 2010 U.S. Dist. LEXIS 140419 (E.D. N.Y. October 21, 2010).*

Permalink 08:15:30 am, by fourth, 204 words, 675 views   English (US)
Categories: General

E.D.Va.: Victim could come on search to ID stolen property

Victim’s representatives were reasonably permitted to participate in the search so they could identify what belonged to them so it could be seized. United States v. Chinasa, 2011 U.S. Dist. LEXIS 6849 (E.D. Va. January 25, 2011).*

The court credits that defendant consented to a search of both his car and his person. While the report says just the car, it was both. United States v. Lecraft, 2010 U.S. Dist. LEXIS 140273 (E.D. N.C. October 7, 2010).*

There was probable cause to arrest plaintiff for disorderly conduct, so judgment for the defendants. Wheeler v. Newell, 407 Fed. Appx. 889, 2011 FED App. 0050N (6th Cir. 2011) (unpublished).*

Hearsay was admissible at the suppression hearing for the officer to testify to what he had heard from other officers to show that he had reason for defendant’s stop. United States v. Santos, 2011 U.S. Dist. LEXIS 6672 (D. Haw. January 21, 2011).*

Defendant was under investigation for possession of and acquiring child pornography. He arrived at SFO from Frankfurt, Germany, and his laptop was seized for search, and he admitted having child pornography on his computer. The seizure of his laptop and cell phone at Customs was valid as a border search. United States v. Kyle, 2011 U.S. Dist. LEXIS 6791 (N.D. Cal. January 19, 2011).*

01/27/11

Permalink 07:59:24 am, by fourth, 251 words, 681 views   English (US)
Categories: General

CA8: Statutory territorial jurisdiction of state judge to issue SW irrelevant under Fourth Amendment

The statutory territorial jurisdiction of a state judge to issue a search warrant is irrelevant for Fourth Amendment purposes. United States v. Neil, 407 Fed. Appx. 993 (8th Cir. 2011):

Neil argues that the Dallas County judge lacked statutory authority to issue a search warrant for his residence in Polk County. He contends that under Mo. Rev. Stat. § 542.266, the issuing judge was required to be a judicial officer in Polk County. Accordingly, he asserts, the warrant was invalid and the evidence discovered through the execution of the warrant must be suppressed and his conviction reversed.

But Neil’s contention “fails to recognize that ‘in determining whether evidence obtained solely by state officers is admissible in federal court in the first instance, it is usually irrelevant whether a state rule of criminal procedure was violated.’” United States v. Howard, 532 F.3d 755, 760 (8th Cir. 2008) (quoting United States v. Maholy, 1 F.3d 718, 721 (8th Cir. 1993)). The legality of the search and seizure is not determined by reference to a state statute, but by Fourth Amendment analysis. Id. Here, Neil does not argue that the warrant was unsupported by probable cause or not issued by a detached and neutral magistrate judge. And our review of the record indicates that the warrant complies with the Fourth Amendment. Accordingly, Neil’s argument fails.

Alternatively, Neil’s challenge fails even under state law. ...

The seizure of the gun seen from defendant’s waistband was clearly valid and harmless, considering the weight of the case. United States v. Blackman, 407 Fed. Appx. 591 (3d Cir. 2011).*

Permalink 07:41:55 am, by fourth, 377 words, 651 views   English (US)
Categories: General

E.D.N.Y.: SW for human remains under basement concrete floor did not justify searching a file cabinet, too

A search warrant was issued for the remains of Jane Doe #1 under the concrete basement floor of a Brooklyn house. The affidavit was 24 pages long and clearly showed probable cause. However, entry into a file cabinet and seizure of a pair of women’s panties off from the floor was outside the warrant. The officers testified they were looking for human remains in the file cabinet, too. United States v. Yakovlev, 2011 U.S. Dist. LEXIS 6537 (E.D. N.Y. January 21, 2011).*

“The CI here was new; thus, his past reliability was something that Agent Belcher could not assess. However, Agent Belcher took several precautions to insure that the CI was not simply sacrificing an innocent person to satisfy his obligations to the DTF.” The court then details what the officer did to corroborate the CI. United States v. Chitwood, 2010 U.S. Dist. LEXIS 140299 (N.D. Ga. December 22, 2010).*

The protective sweep of defendant’s house was justified under the circumstances. United States v. Rodriguez, 2010 U.S. Dist. LEXIS 140267 (D. Nev. October 22, 2010)*:

Here, HPD officers had specific and articulable facts supporting the belief that other persons posing a potential danger to them may be in the home. Both Rodriguez and McKenna made conflicting statements about whether anyone else was in the home, and McKenna's demeanor changed when she was questioned on the matter. Rodriguez initially stated to both Officer VanBeveren and Officer Sage that his twin brother had shot the BB/pellet gun before he confessed he did it. He also stated that his best friend might be in the house. McKenna initially denied knowing whether anyone else was in the house then stated that her boyfriend might be in the home. When VanBeveren asked whether anyone else was in the home, McKenna hesitated and looked over her shoulder to the stairway. Officers speaking to McKenna heard a "rustling noise" in the house which McKenna said were her dogs. McKenna said her son often had sleepovers, and she did not know if any of his friends were there. Sage testified McKenna's demeanor changed, and she became visibly nervous, sweating on her upper lip, when asked whether anyone else was in the house. Only after she was removed from the home did she claim no one else was in the home.

Permalink 07:12:20 am, by fourth, 247 words, 646 views   English (US)
Categories: General

S.D.N.Y.: Not unhandcuffing defendant after frisk came up empty converted stop to de facto arrest

Defendant’s stop was converted from a stop to a de facto arrest. He was handcuffed before the frisk, the frisk came up empty, and he was not then unhandcuffed. United States v. Polanco, 2011 U.S. Dist. LEXIS 6341 (S.D. N.Y. January 18, 2011):

Once Officer Bakraqi checked Polanco for weapons, and found none, however, his stated safety concerns no longer justified the maximal intrusion of handcuffing. Polanco had complied with all of Officer Bakraqi's instructions by turning off his engine, surrendering his keys, and exiting his vehicle without objection, and when the Officer's search of Polanco yielded no weapon, the safety concerns which once justified Polanco's handcuffing, had, by this point, been allayed. At that moment, the moment in which Officer Bakraqi did not remove Polanco from handcuffs after finding no weapons on his body, the stop was converted into a de facto arrest because the maximal intrusion of handcuffing, a hallmark of formal arrest, was no long justified by "legitimate safety concerns."

The person who consented to the search of the car defendant was in had apparent authority to do so. It is highly unlikely that defendant even had standing in the first place, but that is not decided. United States v. Young, 2011 U.S. Dist. LEXIS 6389 (S.D. Ga. January 20, 2011).*

Off-duty officer seeing one person in a parking area giving the finger to another person did not form reasonable suspicion for a stop as a “possible road rage incident.” Jones v. State, 2011 Ark. App. 61 (January 26, 2011).*

Permalink 07:06:02 am, by fourth, 262 words, 1009 views   English (US)
Categories: General

New law review article: "An Equilibrium-Adjustment Theory of the Fourth Amendment"

Orin Kerr: An Equilibrium-Adjustment Theory of the Fourth Amendment, noted on Volokh Conspiracy.

Abstract:

Fourth Amendment law is often considered a theoretical embarrassment. The law consists of dozens of rules for very specific situations that seem to lack a coherent explanation. Constitutional protection varies dramatically based on seemingly arcane distinctions.

This Article introduces a new theory that explains and justifies both the structure and content of Fourth Amendment rules: The theory of equilibrium-adjustment. The theory of equilibrium-adjustment posits that the Supreme Court adjusts the scope of protection in response to new facts in order to restore the status quo level of protection. When changing technology or social practice expands government power, the Supreme Court tightens Fourth Amendment protection; when it threatens government power, the Supreme Court loosens constitutional protection. Existing Fourth Amendment law therefore reflects many decades of equilibrium-adjustment as facts change. This simple argument explains a wide range of puzzling Fourth Amendment doctrines including the automobile exception; rules on using sense-enhancing devices; the decline of the “mere evidence” rule; how the Fourth Amendment applies to the telephone network; undercover investigations; the law of aerial surveillance; rules for subpoenas; and the special Fourth Amendment protection for the home.

The Article then offers a normative defense of equilibrium-adjustment. Equilibrium-adjustment maintains interpretive fidelity while permitting Fourth Amendment law to respond to changing facts. Its wide appeal and focus on deviations from the status quo facilitates coherent decisionmaking amidst empirical uncertainty and yet also gives Fourth Amendment law significant stability. The Article concludes by arguing that judicial delay is an important precondition to successful equilibrium-adjustment.

01/26/11

Permalink 12:47:19 am, by fourth, 260 words, 716 views   English (US)
Categories: General

KS: Call for a backup officer conveyed to the defendant she was not free to leave

The call for a backup officer conveyed to the defendant she was not free to leave. State v. Thomas, 291 Kan. 676, 246 P.3d 678 (2011):

We conclude that Officer Brown’s call for back-up, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Brown’s questions or otherwise terminate the second stage of the encounter. See State v. McGinnis, 290 Kan. at 552. More specifically, both before and after making the call, Brown repeatedly asked Thomas questions about her drug use and possession. After the call, Thomas emptied her pockets for him, apparently in an attempt to prove her denials. He then asked to feel inside her pockets, and she threw her hands in the air. After Brown again told Thomas to “be honest with me,” she confessed to possessing two crack pipes. In contrast to the first stage, at no time during the second stage did Brown tell Thomas she was free to leave. See State v. Thompson, 284 Kan. 763, 811, 166 P.3d 1015 (2007) (a clear communication that the person is free to terminate the encounter or refuse to answer questions is a factor in determining the coercive effect of the encounter); State v. Reason, 263 Kan. 405, 414, 951 P.2d 538 (1997).

The exclusionary rule does not apply in driver’s license revocation proceedings. [This was never a given in the opinion; it is well considered and considers plenty of authority before coming to this conclusion.] Glynn v. State Taxation & Revenue Dep’t, 2011 NMCA 31, 149 N.M. 518, 252 P.3d 742 (2011), Certiorari Denied, 2011 N.M. LEXIS 115 (N.M., Mar. 8, 2011).

Permalink 12:38:23 am, by fourth, 329 words, 617 views   English (US)
Categories: General

LA4: Defendant's encounter at the NOLA train station was consensual

Defendant’s encounter with the police at the New Orleans Amtrak station was not a seizure under Bostick and Mendenhall. He admitted having marijuana on his person. State v. Spells, 56 So. 3d 1073 (La. App. 4th Cir. 2011)*:

Narcotics detective Harry Stovall of the New Orleans Police Department was working at that city's Union Passenger Terminal with Detective Raymond Delvalle of the Amtrak Police Department, checking passengers who were arriving in New Orleans by bus or train in order to determine whether they were in possession of illegal or dangerous substances. Det. Stovall explained that they approached individuals, explained what they were doing, and asked for their identification and ticket, as well as asking whether they would voluntarily consent to having their luggage searched.

Det. Stovall noticed Mr. Spells as he disembarked from a train, because he stopped his approach to the terminal and watched while they conducted a check of another individual; Mr. Spells appeared to be concerned over the officers' presence. Det. Stovall found the defendant's behavior suspicious because the majority of people exiting the train continued their approach to the terminal without stopping. Because he was in plainclothes, Det. Stovall identified himself to Mr. Spells as Mr. Spells approached, and the detective presented his badge, which was around his neck.

Det. Stovall asked Mr. Spells for his identification and his ticket stub because he wanted to ascertain whether the identification and the name on the ticket were in the same name. As Mr. Spells handed over his information, Det. Stovall saw that his hand was shaking. Det. Stovall explained to Mr. Spells that they were checking passengers as they entered the city to ensure that people were not bringing illegal or dangerous items with them. Det. Stovall explained that they were conducting “voluntary, consensual” searches, and that Mr. Spells had the right to refuse. Det. Stovall then asked him whether he was in possession of anything he should not have.

[Note: If he had only just walked off ....]

Permalink 12:27:05 am, by fourth, 493 words, 752 views   English (US)
Categories: General

TN: SI that occurred without arrest was invalid

The fact an arrest with probable cause could have occurred for a search incident is not determinative—it is whether it did occur. State v. Ingram, 331 S.W.3d 746 (Tenn. 2011):

It is not sufficient that an arrest could have been made; the arrest must have been made roughly contemporaneously to the search in order for it to justify the search as incident to an arrest. In Crutcher, we “decline[d] to hold that a search may be upheld as a search incident to arrest merely because a lawful custodial arrest ‘could have’ been made,” 989 S.W.2d at 301 n.8, and emphasized that “we are not prepared to hold that the police may conduct a warrantless search merely because they have probable cause to arrest the suspect.” Id. at 302; see also Knowles, 525 U.S. at 115-16 (rejecting Iowa Supreme Court’s “reasoning that so long as the arresting officer had probable cause to make a custodial arrest, there need not in fact have been a custodial arrest”); Belote v. State, 411 Md. 104, 981 A.2d 1247, 1257 n.7 (Md. 2009) (rejecting state’s position “that law enforcement, in order to effect a custodial arrest, only needs probable cause and detention of the suspect”); People v. Evans, 43 N.Y.2d 160, 371 N.E.2d 528, 531, 400 N.Y.S.2d 810 (N.Y. 1977) (concluding that “[t]o adopt the proposition that the search was valid because there was probable cause to arrest puts the cart before the horse. An arrest is an essential requisite to a search incident”).

. . .

In summary, we agree with the Court of Criminal Appeals’ conclusion that the officers did not take such action “that would indicate to a reasonable person that he or she is under arrest” as required by Crutcher. Id. at 302. Accordingly, we conclude that the trial court erred in denying the Defendant’s motion to suppress the fruits of the warrantless search of his person — the four $20 bills used by the CI to make the first controlled drug buy from Ms. Hampton. We also agree with the intermediate appellate court’s conclusion that although the State provided other evidence connecting the Defendant to the first controlled buy at Ms. Hampton’s house, the Defendant’s “possession of these twenty-dollar bills was particularly damning.” Ingram, 2009 Tenn. Crim. App. LEXIS 889, 2009 WL 3400694, at *9. Accordingly, we are not persuaded beyond a reasonable doubt that the admission of this evidence did not contribute to the jury’s decision-making in finding the Defendant guilty of the sale of .5 grams or more of cocaine and conspiracy to sell .5 grams or more of cocaine to the CI. See State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010); State v. Rodriguez, 254 S.W.3d 361, 371-72 (Tenn. 2008). Accordingly, the erroneous admission of this evidence was not harmless. See Tenn. R. App. P. 36(b). The Defendant’s convictions for the sale of .5 grams or more of cocaine and conspiracy to sell .5 grams or more of cocaine are reversed, and the case is remanded for a new trial on those charges.

Permalink 12:14:56 am, by fourth, 195 words, 600 views   English (US)
Categories: General

GA: A second patdown was valid even after the first turned up nothing; the RS was still there

Defendant was hanging around a convenience store at closing time, and it had been robbed multiple times before at closing. A patdown was performed by one officer producing nothing, but the second officer noticed that defendant turned slightly like he was adjusting something. A second patdown was done that produced a weapon, and it was valid under the Fourth Amendment. Lewis v. State, 307 Ga. App. 593, 705 S.E.2d 693 (2011).*

An identified citizen who called police to say a woman was acting bizarrely in his driveway talking about tar heroin was justification for a stop. When she was stopped, she was glassy eyed and under the influence of something. The stop was reasonable. Leatherman v. Commonwealth, 357 S.W.3d 518 (Ky. App. 2011).*

This case had three different CIs and two were long time CIs with a good history. On the totality of circumstances there was probable cause. State v. Williams, 209 N.C. App. 255, 703 S.E.2d 905 (2011).*

“[A]lthough the issue is close, there was probable cause to stop and search the vehicle based on the collective knowledge of law enforcement through the wiretap and visual surveillance.” United States v. Edenilson-Reyes, 2010 U.S. Dist. LEXIS 140187 (N.D. Ga. October 25, 2010).*

Permalink 12:02:56 am, by fourth, 362 words, 433 views   English (US)
Categories: General

E.D.N.Y. "Ransacking" allegation during service of valid SW did not show it was unreasonable

Mere allegations that the police ransacked defendant’s house during execution of a search warrant did not rise to the level of making the search unreasonable. They were looking for specific stuff identified in the warrant and there was no showing the warrant was exceeded. United States v. Fisher, 2011 U.S. Dist. LEXIS 5837 (E.D. N.Y. January 21, 2011):

Finally, Fisher argues that the Court should suppress all of the evidence seized from his Residence because the Agents ransacked the Residence and confiscated non-contraband items, which constituted an unreasonable search. However, Fisher fails to identify how any of the locations searched were outside the scope of the warrant, nor did Fisher identify any items that lacked evidentiary value that were taken and not subsequently returned. In addition, Fisher only asserts, without any challenges to the particularity of the warrant, that it authorized a “fishing expedition.” A warrant is sufficiently particular when it “enable[s] the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize.” United States v. George, 975 F.2d 72, 75 (2d Cir. 1992). Here, the warrant identified the Residence, included a specific list of items to be seized, and by its terms expressly permitted the search of closed or locked containers. The list provides enough detail to properly direct the officers executing the warrant and prevent “exploratory rummaging.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971)

Furthermore, the warrant read in conjunction with the supporting Biddiscombe Affidavit clearly identifies that the listed items are not general, but rather specifically identified as fruits and instrumentalities of a narcotics trafficking conspiracy. (See Gov. Br., Ex. 3, ¶¶26-31 (discussing what evidence is commonly found at the residences of drug traffickers and how that evidence relates to narcotics trafficking).) See United States v. Johnson, 108 F.3d 1370 (Table) [published in full-text format at 1997 U.S. App. LEXIS 5434], 1997 WL 136332, at *3 (2d Cir. 1997) (holding that the investigator’s affidavit was sufficient to establish that the items listed on the search warrant were related to the alleged fraud). Thus, the Court finds that the search of the Residence was not unreasonable and denies the motion to suppress on this ground.

01/25/11

Permalink 07:40:13 am, by fourth, 228 words, 671 views   English (US)
Categories: General

CA11: Officers showed sufficient knowledge arrestee was in plaintiff's house to enter on arrest warrant

The sued officers showed that there was sufficient belief the person sought in the arrest warrant was in the plaintiff's house. Therefore, the officers have qualified immunity. Payton v. City of Florence, 413 Fed. Appx. 126 (11th Cir. 2011) (unpublished)*:

As to police officers’ “on the spot determination” of whether the suspect is within the home at the time, “court must be sensitive to common sense factors indicating a resident’s presence.” Id. at 1263. For example, “officers may presume that a person is at home at certain times of the day — a presumption which can be rebutted by contrary evidence regarding the suspect’s known schedule.” Id. at 1267 (quotation marks omitted).

Here, we conclude that the officers’ search of Payton’s home did not violate the Fourth Amendment. Under the circumstances, the officers had a reasonable basis for believing Philip lived at Payton’s house. Three of the four documents in the information packet for Philip’s arrest warrant (the warrant itself, the printout of the “Phillip” entry in the FPD’s Spillman database, and the LETS database printout) listed Philip’s address as 1618 Northern Boulevard. Only the “Philip” Spillman database entry listed a different address. Notably, each document whose information came from Philip himself — including Philip’s driver’s license and the appearance bond he issued upon his arrest for the charge the warrant covered — listed the Northern Boulevard address.

Permalink 07:13:18 am, by fourth, 263 words, 623 views   English (US)
Categories: General

OH8: Innocuous movement in car was not "furtive"

The movement in the backseat was not necessarily a furtive movement, and the trial court granted the motion to suppress. “Without a firm statement from the testifying officer that a hand-to-hand exchange occurred, the legal standard found in Pettegrew is not met. As this court found in Pettegrew, ‘because the action of the men is consistent with innocent behavior, we resolve this case in favor of [defendant’s] Fourth Amendment rights.’” Affirmed. State v. Toles, 2011 Ohio 217, 2011 Ohio App. LEXIS 164 (8th Dist. January 20, 2011).*

An officer passed on information to a school principal that the defendant juvenile was dealing heroin. The principal’s search of the student was based on the school’s “zero tolerance policy” and not at the request of law enforcement and it was valid under T.L.O. In re K. K., 2011 Ohio 192, 192 Ohio App. 3d 650, 950 N.E.2d 198 (5th Dist. 2011), Discretionary appeal not allowed by In re K.K., 128 Ohio St. 3d 1501, 2011 Ohio 2420, 947 N.E.2d 683, 2011 Ohio LEXIS 1306 (Ohio, May 25, 2011).*

Defendant was stopped for a traffic offense, and he had tattoos that suggested membership in a violent gang involved with drugs. He consented to a search of his car, and nothing was found. Officers then went to his house and did a knock and talk with his live-in girlfriend consenting to a search for drugs and some were found. The search was valid. State v. Arnold, 2011 Ohio 238, 2011 Ohio App. LEXIS 204 (2d Dist. January 21, 2011).*

Defendant’s traffic stop led to the officer smelling marijuana, and then defendant waived her Miranda rights. State v. Hardy, 2011 Ohio 241, 2011 Ohio App. LEXIS 197 (2d Dist. January 21, 2011).*

Permalink 07:03:05 am, by fourth, 529 words, 620 views   English (US)
Categories: General

OH5: Trial court's denial of defendant's right of access to search warrant materials was error

The trial court erred in not ordering unsealing the search warrant materials in this case because the state did not show that the CI needed to be protected. The defendant was not seeking disclosure of the CI, just the basis for the search warrant, which he was entitled to know. State v. Lewis, 2011 Ohio 199, 2011 Ohio App. LEXIS 176 (5th Dist. January 18, 2011):

[*P21] “The Court believes that the Fourth Amendment right to be free of unreasonable searches and seizures includes the right to examine the affidavit that supports a warrant after the search has been conducted and a return has been filed with the Clerk of Court pursuant to Fed.R.Crim.P. 41. It is not, however, an unqualified right. As is true with other constitutional rights it may be overridden when it is shown that precluding access is ‘essential to preserve higher values and is narrowly tailored to serve that interest.’ Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984). Thus, the right of access may be denied only where the government shows (1) that a compelling governmental interest requires the materials be kept under seal and (2) there is no less restrictive means, such as redaction, available. Clearly, the fact that there is an on-going criminal investigation could provide a compelling governmental interest. Cf. Baltimore Sun, 886 F.2d at 64. Other examples of compelling governmental interests which might, in an appropriate case, justify the extraordinary act of sealing warrant materials after the underlying search has been conducted include the presence of information in a supporting affidavit gleaned from a court ordered wire-tap that has yet to be terminated, or information that could reveal the identity of confidential informants whose lives would be endangered. Sealing may be appropriate under such circumstances if redaction is not feasible.” In re Search Warrants Issued August 29, 1994 (S.D. Ohio 1995), 889 F. Supp. 296, 299. Accord, In re Search Warrants Issued on April, 26, 2004 (D. Maryland 2004), 353 F. Supp.2d 584; United States v. Oliver (4th Cir. 2000), 208 F.3d 211.

[*P22] In the instant case, the trial court did not consider whether the state had a compelling governmental interest in protecting the identity of the CI sufficient to override appellant’s right to the affidavit. Further, the trial court did not consider less restrictive means, such as redacting the name of the CI, despite the state’s representation at the hearing that redaction was a possibility: ...

[*P24] The trial court erred in denying the motion to unseal the affidavit on the basis that appellant had not demonstrated a need for the identity of the CI rather than determining whether the State had shown a compelling interest in protecting the identity of the CI. We cannot find as a matter of law that the State has shown a compelling interest in protecting the identity of the CI, as the record reflects merely a general statement that police are concerned about the safety of the CI without any specific details underlying that concern from which we can determine whether such concern rises to the level of a compelling state interest. Further, without the affidavit we cannot determine if redaction of information which could lead to disclosure of the identity of the CI is possible.

Permalink 12:02:36 am, by fourth, 336 words, 909 views   English (US)
Categories: General

CA8: District court's finding of fact was clearly erroneous because it contradicted the videotape, the only real evidence

The Eighth Circuit finds the District Court's finding of reasonable suspicion for a traffic violation to be clearly erroneous and contradicted by the videotape of the stop. The defendants' car exited a Nebraska freeway to avoid a ruse checkpoint. United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011):

The district court’s factual finding that “Prokupek failed to signal his turn before turning from the exit ramp on to the county road” is supported only by the court’s determination that Trooper Estwick’s testimony at the suppression hearing to that effect was credible. Because Trooper Estwick’s testimony at the hearing is so clearly and affirmatively contradicted by his own statement at the time of the events, in the absence of any explanation for this contradiction that is supported by the record, we conclude that Trooper Estwick’s after-the-fact testimony at the suppression hearing is “implausible on its face,” Anderson, 470 U.S. at 575, and we are left with the “firm and definite conviction that a mistake has been made,” United States v. Pickar, 616 F.3d 821, 827 (8th Cir. 2010) (quoting United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004)). We therefore hold that the district court’s finding that Prokupek failed to signal the turn on to the county road is clearly erroneous. Cf. United States v. Streater, 70 F.3d 1314, 1321 (D.C. Cir. 1995) (“We conclude that the district court clearly erred in crediting [the witness’s] testimony ... when [the witness’s] documented contemporaneous statements show the contrary.”).

The Government proffers no alternative justification for the traffic stop. Therefore, the stop violated the Fourth Amendment, see Prouse, 440 U.S. at 653, and the drugs and drug paraphernalia that eventually were seized are tainted fruit of this violation and must be suppressed, see Wong Sun v. United States, 371 U.S. 471, 488 (1963). Accordingly, we reverse the district court’s denial of the motions to suppress ....

[Note: The most telling part of this case is the obvious perversion of the facts by the District Court to achieve the result it wanted; keeping the convictions intact.]

01/24/11

Permalink 12:54:38 am, by fourth, 288 words, 735 views   English (US)
Categories: General

S.D.Tex.: Arrest and handcuffing for not signalling did not justify SI under Gant

Defendant was stopped for not signaling. Five officers showed up. He was arrested and handcuffed and then one officer searched the vehicle console without any justification. The search incident was invalid under Gant, and it could not be justified by the government’s strained theory of his being involved in a conspiracy, too. United States v. Holland, 2011 U.S. Dist. LEXIS 5261 (S.D. Tex. January 20, 2011)*:

The government’s primary argument, however, is not that the defendants could have accessed the vehicle but that it was reasonable for Oppermann to believe the vehicle contained evidence of the offense of arrest. Oppermann testified, however, that the only offense for which he had probable cause for the traffic stop was the traffic violation — changing lanes without signaling — and that Oppermann did not expect to find any evidence of the traffic violation when he searched the console. Relying on Devenpeck v. Alford, 125 S. Ct. 588 (2004), the government argues that the relevant “offense of arrest” for this inquiry is conspiracy to possess with intent to distribute a controlled substance, the crime for which the defendants were later indicted, instead of the traffic violation, and that the search is justified because Oppermann was searching for evidence of the drug-conspiracy offense.

Officers had an arrest warrant for a third person who they knew was not at his own home and was reasonably believed to have been at defendant’s for a week. Thus, the entry on that arrest warrant was valid. United States v. Zavala, 408 Fed. Appx. 319 (11th Cir. 2011) (unpublished).*

Defendant’s claims that appellate counsel did not chose better arguments for appeal of his search issue would not have succeeded, so no IAC. United States v. Murphy, 2011 U.S. Dist. LEXIS 5293 (W.D. Va. January 20, 2011).*

Permalink 12:21:26 am, by fourth, 209 words, 611 views   English (US)
Categories: General

W.D.Ark.: Collective knowledge doctrine applies to traffic stops

Collective knowledge of police doctrine applied to traffic stop for speeding where officer radioed ahead to another. United States v. Allen, 2011 U.S. Dist. LEXIS 5565 (W.D. Ark. January 4, 2011)* [Note: Obviously. If not, how could a spotter in an airplane or an officer running fixed radar with somebody else doing the stopping ever work?]

Search warrant application for drug dealing to minors sought also search of defendant’s computer and cell phone. It is logical to find evidence of drug dealing on the cell phone from calls made to arrange transactions. After the warrant was issued but before it was served, the police developed information that there might be child pornography on the computer transferred from the cell phone. The computer was searched under the warrant and child pornography was found. Since defense counsel did not challenge the search on the ground that they expected to find child pornography, the search is valid. United States v. Chappell, 2010 U.S. Dist. LEXIS 140051 (W.D. N.Y. October 15, 2010).*

Defendant was stopped because the officer knew that his license was suspended. Also, the officer had probable cause based on a CI’s information about drug dealing, so Gant does not apply to this search. United States v. Hambrick, 630 F.3d 742 (8th Cir. 2011).*

Permalink 12:01:34 am, by fourth, 354 words, 970 views   English (US)
Categories: General

D.Neb.: IRS audit not shown in bad faith or violative of Fourth Amendment

Defendant’s claim that the IRS acted in bad faith to acquire information via a tax audit when it was planning to prosecute him did not rise to a Fourth [or Fifth] Amendment violation. United States v. Baisden, 2010 U.S. Dist. LEXIS 140012 (D. Neb. December 17, 2010):

There is no showing Baisden was detained, mandated or forced to attend any meetings with the IRS or to produce documents. Although "a consent search is unreasonable under the Fourth Amendment if the consent was induced by deceit, trickery or misrepresentation of the Internal Revenue agent," (U.S. v. Powell, 835 F.2d 1095, 1098 (5th Cir. 1988)), the defendant has made no showing of IRS misconduct. Baisden consented to cooperate with the IRS by producing the documents requested by that agency. His Fourth Amendment rights were not violated. See, United States v. Irvine, 699 F.2d 43, 46 (1st Cir.1983) (records obtained during an IRS interview were not suppressed under the Fourth Amendment where the agent made no affirmative misrepresentations); United States v. Sclafani, 265 F.2d 408, 414-415 (2d Cir.1959) (holding that to obtain valid consent under the Fourth Amendment to review records for a civil audit, the taxpayer need not be told the government may commence criminal rather than civil proceedings with the records disclosed); U.S. v. Kaatz, 705 F.2d 1237, 1243 (10th Cir. 1983) (holding suppression of evidence obtained during a civil audit was not warranted where nothing in the record showed the defendants were misled by anything the IRS agent did or said. "Failure to warn that a criminal investigation may ensue is not fraud, deceit, or trickery.").

Defendant was legally stopped, so his flight from the car was an abandonment [wouldn’t it be even if he was illegally stopped?]. The gun was seen in plain view anyway. United States v. Gaines, 2011 U.S. Dist. LEXIS 5133 (S.D. Ga. January 19, 2011).*

Consent is a question of fact, and the only evidence is the government’s and it prevails. The argument to the USDJ that the witnesses just should not have been believed is unavailing. United States v. Perry, 2010 U.S. Dist. LEXIS 140000 (W.D. Tenn. November 23, 2010),* adopted 2011 U.S. Dist. LEXIS 5408 (W.D. Tenn. January 19, 2011).*

01/23/11

Permalink 12:33:47 pm, by fourth, 169 words, 844 views   English (US)
Categories: General

WaPo: "Privacy issues hover over police drone use"

Privacy issues hover over police drone use by Peter Finn in today's Washington Post:

The suspect's house, just west of this city, sat on a hilltop at the end of a steep, exposed driveway. Agents with the Texas Department of Public Safety believed the man inside had a large stash of drugs and a cache of weapons, including high-caliber rifles.

As dawn broke, a SWAT team waiting to execute a search warrant wanted a last-minute aerial sweep of the property, in part to check for unseen dangers. But there was a problem: The department's aircraft section feared that if it put up a helicopter, the suspect might try to shoot it down.

So the Texas agents did what no state or local law enforcement agency had done before in a high-risk operation: They launched a drone. A bird-size device called a Wasp floated hundreds of feet into the sky and instantly beamed live video to agents on the ground. The SWAT team stormed the house and arrested the suspect.

Permalink 11:20:05 am, by fourth, 432 words, 882 views   English (US)
Categories: General

CA3: Made-up conclusion in affidavit for search warrant was material and not in good faith

A made-up conclusion in a search warrant affidavit was material, and false under Franks, and obviously not in good faith, and Herring required exclusion. United States v. Brown, 631 F.3d 638 (3d Cir. 2011):

As we see it, the major flaw identified by the District Court is not negligence in reviewing the evidence but rather Smith’s conclusion “that non-existent evidence actually existed, and, more importantly, [his decision to take] the affirmative step of purposely incorporating the non-existent evidence into the affidavit.” 647 F. Supp 2d at 513. The existence of contradictory evidence highlighted the problem with Smith’s affidavit, but (according to the District Court) Smith’s reckless disregard for the truth occurred when he made up Paragraph 7(c) out of whole cloth. Such a fabrication, in the District Court’s view, would justify invocation of the exclusionary rule regardless of whether or not police are in possession of evidence giving it the lie.

We agree with the District Court’s opinion, so understood. The underlying theory is that, ordinarily, a person does not believe something to be true (let alone swear in an affidavit that it is “true and correct to the best of my knowledge, information, and belief”) without an affirmative justification. That justification might come in the form of first-hand observation, or from information provided by a third party, or from some textual source, but we do not take seriously someone who claims that X is true but cannot provide any reason for thinking it so. In other words, a reasonable person’s default position is to doubt that a proposition is true until there are grounds to believe it. The absence of sufficient grounding to support an averment therefore constitutes an “obvious reason[] for doubt” under Wilson, 212 F.3d at 788, allowing the court to infer that an affiant acted with reckless disregard for the truth. Cf., e.g., Beard v. City of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994) (observing that a “factfinder may infer reckless disregard from circumstances evincing ‘obvious reasons to doubt the veracity’ of the allegations”) (quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984) (quoting St. Amant, 390 U.S. at 731)). ...

The fact that a statement is a fabrication or a figment of a speaker’s imagination is sufficient reason for finding that it was not made in good faith—i.e., that it was made with (at least) reckless disregard for the truth—even if the speaker testifies that he believed the statement to be true. Although the District Court did not clearly articulate this epistemological conception of recklessness, such a theory lies at the heart of its ruling.

Permalink 11:04:09 am, by fourth, 306 words, 739 views   English (US)
Categories: General

CA9: Area around a dispersed campsite was not curtilage

Defendant consented to a search of his campsite for a shotgun by a nod of the head. The court declined to find the area around his campsite was curtilage and not open fields, notwithstanding that there is an expectation of privacy in a camp tent. United States v. Basher, 629 F.3d 1161 (9th Cir. 2011):

Classifying the area outside of a tent in a National Park or National Forest lands campsite as curtilage would be very problematic. A tent is comparable to a house, apartment, or hotel room because it is a private area where people sleep and change clothing. See Gooch, 6 F.3d at 677. However, campsites, such as the dispersed, ill-defined site here, are open to the public and exposed.

In United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), the Supreme Court found that curtilage is defined by reference to four factors: proximity of the area to the home, the nature of the uses to which the area is put, whether the area is included in an enclosure around the home, and the steps taken by the resident to protect the area from observation. Id. at 301. While these factors can be employed with reasonable certainty in the urban residential environment, the analysis does not necessarily carry over to most camping contexts. Parkland campsites often have layouts that are vague or dispersed, and individuals often camp in areas that are not predetermined campsites.

In the case at bar, Basher was staying in a dispersed, or undeveloped camping area. It appears that Basher's camp was visible from the developed camping area where the officers had stayed the previous night. Therefore, we hold that there was no expectation of privacy in the campsite, and that the area outside of the tent in these circumstances is not curtilage. Accordingly, Struckman does not control the outcome of this case.

Permalink 10:42:32 am, by fourth, 255 words, 845 views   English (US)
Categories: General

CA3: Drug testing of a mere "weed-wacker" in a highly regulated industry was still valid

Even though plaintiff was a landscaper, he worked for a highly regulated sewage treatment facility, and the state could require drug testing. Mollo v. Passaic Valley Sewerage Comm'rs, 406 Fed. Appx. 664 (3d Cir. 2011):

Here, PVSC demonstrated that Mollo was aware of the safety concerns inherent in work at its treatment plant and, as an entity, PVSC clearly satisfies PBA Local 304's alternative criterion of a "long tradition of close government supervision." 151 N.J. at 545 (internal quotation marks and citation omitted). Taking these facts together, Mollo had a diminished expectation of privacy. His duties, though those of a self-described "weed-whacker," were safety-sensitive: they either required, or could have required, that he engage in tasks—such as the operation of machinery in dangerous places and the use of tools meant to detect whether he and other workers safely could enter certain, possibly dangerous, airspaces—the discharge of which were fraught with risks of serious injury.

[Note: If Von Raab could differentiate gun carrying employees from others, why must a sewage facility insist on drug testing a guy handling a "weed wacker"?]

Defendant’s stop was justified by hitting the centerline twice and weaving in his lane for four miles. State v. Brown, 332 S.W.3d 282 (Mo. App. 2011).*

The trial court erred in granting a suppression motion for defendant’s breath test in a second degree murder shooting case, done just to see how drunk he was. It was lawful under Schmerber despite the fact it was not a DUI case. State v. Dowdy, 332 S.W.3d 868 (Mo. App. 2011).

Permalink 10:10:14 am, by fourth, 272 words, 692 views   English (US)
Categories: General

MA: Frisk during traffic stop was unjustified

The stop of defendant’s vehicle was justified by reasonable suspicion but the search of defendant’s bookbag, purse, and cooler bag was not justified by any reasonable suspicion that a weapon was present. Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 941 N.E.2d 667 (2011)*:

Officer Blicker's hearing testimony established that, throughout the course of the investigative stop, the defendant acted in a cooperative manner. He made no furtive gestures, was not hostile towards the officers and did not attempt to flee. When coupled with the officers' uncertainty regarding the precise nature of the criminal activity afoot, these facts do not give rise to an articulable risk to officer safety. [¶] Officer Blicker admittedly opened the purse in the conscientious exercise of his duties to ascertain the veracity of the defendant's responses to his questioning. At no point was it his intention to search the purse for weapons. Nor would such an intrusion have been justified in light of our conclusion that the officers lacked any reasonable belief that the defendant was armed and dangerous.

Denial of summary judgment is affirmed on the basis for the defendant’s traffic stop. The facts were sufficiently in dispute that the officer could not get qualified immunity for the stop. The officer’s alleged mistake of fact was not reasonable. Liberal v. Estrada, 632 F.3d 1064 (9th Cir. 2011).*

On the credibility of the witnesses, the court finds that the consent was valid. United States v. Vidales, 2010 U.S. Dist. LEXIS 139932 (D. Kan. December 27, 2010).*

There was both reasonable suspicion and consent for defendant’s detention during the traffic stop. United States v. Hernandez-Lizardi, 2011 U.S. Dist. LEXIS 4784 (D. Kan. January 19, 2011).*

01/22/11

Permalink 11:52:25 pm, by fourth, 235 words, 423 views   English (US)
Categories: General

D.Kan.: Bus encounter was not consensual

Defendant’s bus encounter was not consensual because the officer was big and standing over him. United States v. Aquino, 2010 U.S. Dist. LEXIS 139934 (D. Kan. November 30, 2010)*:

Although the questioning did not require Miranda warnings, no reasonable person would feel free to disregard the officer and go about his business. Aquino was seated in a bus with Investigator Lutter, who stands 6'6" and weighs more than 250 pounds, standing over him asking him questions while another officer, Investigator Scott, kneeled on an empty seat between Aquino and the front door of the bus (TR. 42-43). Aquino answered Investigator Lutter's questions, produced his bus ticket and identification, and "complied" with Investigator Lutter's request to step off the bus and identify his luggage. In the presence of at least two officers, Aquino "complied" with Investigator Lutter's request to search his luggage. In response to Investigator Lutter's request to conduct a pat search of Aquino's person, Aquino told Investigator Lutter that he did not want Investigator to touch him. Investigator Lutter continued to question Aquino and requested that Aquino open his coat and hold his clothing close to his body to determine if anything was hidden under his clothing. No reasonable person would have believed that he was free to leave without the officer's permission, or to end the conversation and refuse to answer the officer's questions and ignore the officer's requests. The encounter was neither voluntary nor consensual.

01/21/11

Permalink 11:52:20 am, by fourth, 316 words, 829 views   English (US)
Categories: General

New law review article: "Automation and the Fourth Amendment"

Automation and the Fourth Amendment by Matthew Tokson in 96 U.Iowa L. Rev. 581 (2010). Abstract:

The Supreme Court has held that an individual relinquishes any Fourth Amendment interest in information that he or she voluntarily discloses to a third party. Known as the “Third Party Doctrine,” this controversial rule is increasingly problematic in an age where a large proportion of personal communications and transactions are carried out over the Internet. Internet users expose virtually all of the information they generate online—e-mails, web-surfing histories, search terms, and more—to online service providers. As such, many scholars have assumed that Internet information will be unprotected by the Fourth Amendment.

Yet the information disclosed to these online third parties is generally not exposed to human beings at all; rather, it is processed entirely by automated equipment. Neither courts nor scholars have squarely addressed whether disclosure to these automated third parties is sufficient to eliminate Fourth Amendment protection. However, courts have, without discussing the issue, already begun to treat automated Internet systems as the equivalent of human beings.

This Article examines how this emerging body of law threatens to deprive personal information on the Internet of effective legal protection. It offers a novel theoretical and legal analysis of information disclosure to automated Internet systems and concludes that individuals whose information is exposed only to automated systems incur no cognizable loss of privacy. It then examines available data about the behavior and privacy expectations of Internet users that reveals that they sharply distinguish between disclosure to humans and disclosure to automated systems, even if courts thus far have not. These relatively intuitive concepts have been widely overlooked, and they have potentially enormous implications in several areas of law and theory. This Article explores these implications, challenging existing privacy market theories and conceptions of user behavior, and proposing a new model of Fourth Amendment privacy on the Internet.

Hat tip to PogoWasRight.

Permalink 09:13:42 am, by fourth, 16 words, 728 views   English (US)
Categories: General

DC jail to fingerprint visitors for warrants

The DC jail will soon start fingerprinting every visitor for warrants, according to the Washington Examiner.

Permalink 07:39:59 am, by fourth, 201 words, 803 views   English (US)
Categories: General

D.S.D.: Minor error in tribal search warrant did not violate Rule 41 or Fourth Amendment

Defendant was the subject of a tribal telephonic search warrant that had some errors. The fact the FBI took the case over did not make the warrant subject to Rule 41. Overall, the search warrant complied with the Fourth Amendment. United States v. Medearis, 775 F. Supp. 2d 1110 (D. S.D. 2011), R&R United States v. Medearis, 2010 U.S. Dist. LEXIS 139933 (D. S.D. October 20, 2010).*

Search warrant was clearly supported by probable cause, and a mere scrivener’s error on a date was not fatal to the search. United States v. Villa verde-Leyva, 2010 U.S. Dist. LEXIS 139775 (N.D. Ga. December 8, 2010).*

The consenter’s claim that her consent was coerced was not credible in light of her conflicting testimony. United States v. Schmitz, 2010 U.S. Dist. LEXIS 139785 (M.D. Fla. October 18, 2010).*

Consent to search one room for a gun permitted a fairly intense search of the room. The gun led to PC for a search warrant. United States v. Myers, 2010 U.S. Dist. LEXIS 139782 (M.D. Fla. October 12, 2010).*

The CI was known to the officer, and, while he was a first time informant, his information was “enhanced” by its great detail. United States v. Martin, 2010 U.S. Dist. LEXIS 139838 (D. Nev. October 5, 2010).*

Permalink 07:11:35 am, by fourth, 281 words, 929 views   English (US)
Categories: General

CA10: Collective knowledge doctrine applies to misdemeanors, too

The collective knowledge doctrine under the Fourth Amendment and Virginia v. Moore is not limited to felonies; it applies to misdemeanors and traffic offenses, too. United States v. Wilkinson, 633 F.3d 938 (10th Cir. 2011). The last paragraph of that dicussion:

It is therefore unremarkable that courts have applied the collective-knowledge doctrine to stops for misdemeanors without any discussion about whether the doctrine applies in that context. See Pasiewicz v. Lake Cnty. Forest Pres. Dist., 270 F.3d 520, 521, 524 n.2 (7th Cir. 2001) (knowledge of officers who ordered arrest was imputed to arresting officers in public-indecency case); City of Maumee v. Weisner, 87 Ohio St. 3d 295, 1999 Ohio 68, 720 N.E.2d 507, 509-11 (Ohio 1999) (DUI in violation of municipal ordinance); State v. Pratt, 286 Mont. 156, 951 P.2d 37, 43-44 (Mont. 1997) (DUI); State v. Myers, 490 So. 2d 700, 701-03 (La. Ct. App. 1986) (hitting a traffic sign). And the two opinions that we have found that do consider whether the collective-knowledge doctrine applies to misdemeanors both hold that it does. See United States v. Watkins, 243 F. App’x 356, 358 (10th Cir. 2007) (unpublished); State v. Boatman, 901 So. 2d 222, 223-24 (Fla. Dist. Ct. App. 2005). We hold that the collective-knowledge doctrine is not limited to felonies and applies in this case. Poff’s stop of Defendant’s pickup was permissible because Palmer, who requested the stop, had reasonable suspicion of an equipment violation.

[Note: A stop for a traffic offense that did not happen in the officer's presence may not support the traffic offense under state law if it is separately prosecuted, but, if probable cause for a felony develops, the Fourth Amendment would permit the actual arrest or a search under the search incident or automobile exception, and that would still be valid under Virginia v. Moore.]

Permalink 07:04:47 am, by fourth, 120 words, 441 views   English (US)
Categories: General

CA10: By time search occurred, it could not be justified as a SI, but the automobile exception applied

By the time the search of defendant’s vehicle occurred, he was too far away from it to make it a valid search incident. The search, however, was valid under the automobile exception. United States v. Polly, 630 F.3d 991 (10th Cir. 2011).*

The defendant did not fail in his burden of proof of showing a basis for pursuing his suppression motion when the government admitted that a warrantless search occurred, so it would have the burden of production. Therefore, a hearing is scheduled. United States v. Bourassa, 2010 U.S. Dist. LEXIS 139780 (N.D. N.Y. December 14, 2010).*

Defendant passenger asserted no possessory interest in the car or its contents, so he lacked standing. State v. Mackey, 209 N.C. App. 116, 708 S.E.2d 719 (2011).*

Permalink 12:05:41 am, by fourth, 32 words, 611 views   English (US)
Categories: General

Orin Kerr on "informational privacy" in NASA v. Nelson

01/20/11

Permalink 07:13:55 am, by fourth, 221 words, 701 views   English (US)
Categories: General

NC: Gant does not permit a search incident to rebut hypothetical potential defenses

Gant does not permit a search incident to rebut potential defenses to whatever the basis of the stop was. State v. Mbacke, 2011 N.C. App. LEXIS 65 (January 4, 2011):

We disagree with the State's reasoning because we perceive two problems arising from the highly fact-driven nature of the analysis required under Gant. First, the defenses of a good faith mistake, duress, or inadvertence could have also applied to traffic offenses such as that involved in Gant, where, for example, the defendant could have argued that he was driving without a license while under circumstances of duress. See e.g., State v. Brown, 182 N.C. App. 115, 646 S.E.2d 775 (2007) (discussing the applicability of the defense of duress to motor vehicle charges). We interpret the Supreme Court's holding in Gant to require an officer to suspect the presence of more direct evidence of the crime of arrest than the highly indirect circumstantial evidence the State contends may be necessary to rebut possible defenses.

The court credits the officer’s testimony that there was a basis for the stop and the seizure of $4,000 in cash off the defendant, despite the fact that the court also included information that the officer was fired by the department for mishandling evidence in another case after this one. United States v. Williams, 2010 U.S. Dist. LEXIS 139834 (M.D. Ala. December 6, 2010).*

Permalink 06:54:21 am, by fourth, 256 words, 719 views   English (US)
Categories: General

N.D.Cal.: SI of iPhone was reasonable

Contemporaneous search incident of an iPhone was justified under all the cases that deal with pre-technology search incidents of closed containers. United States v. Hill, 2011 U.S. Dist. LEXIS 4104 (N.D. Cal. January 10, 2011):

This Court recognizes that many modern cell phones, like computers, are capable of storing large amounts of personal information. However, absent guidance from the Supreme Court or the Ninth Circuit, the Court is unwilling to conclude that a cell-phone that is found in a defendant's clothing and on his person, as is the case here, should not be considered an element of the person's clothing. Accordingly, the Court concludes that, on the facts of this case, Hill's iPhone should not be treated any differently than, for example, a wallet taken from a defendant's person. See, e.g., United States v. Passaro, 624 F.2d 938, 943-44 (9th Cir. 1980); United States v. Ziller, 623 F.2d 562, 562-63 (9th Cir. 1980).

[One might get the impression that the judge was holding his nose when saying this.]

The affidavit for the search warrant was not based on a fair probability that the defendant had a gun there but that a codefendant likely left one there in the course of the crime. The affidavit was sufficient. United States v. Myers, 2011 U.S. Dist. LEXIS 4047 (M.D. Fla. January 14, 2011).*

Defendant’s objections to the USMJ’s R&R is overruled. The USMJ makes the credibility determinations, and the district judge applies the law. This finding could not be overruled. United States v. Schmitz, 2011 U.S. Dist. LEXIS 4050 (M.D. Fla. January 14, 2011).*

01/19/11

Permalink 11:35:04 pm, by fourth, 149 words, 791 views   English (US)
Categories: General

CA6: Abandoning jacket in bar in flight was waiver of REP

Defendant abandoned his jacket in flight from the police into a bar. The jacket was found away from him. In the jacket was a gun, and the jacket was treated as abandoned. United States v. Jones, 406 Fed. Appx. 953, 2011 FED App. 0040N (6th Cir. 2011).*

The application for a search warrant based on a dog alert does not have to detail the dog’s training to show probable cause. Nevertheless, the officers smelled marijuana before that anyway. United States v. McDowell, 2011 U.S. Dist. LEXIS 3866 (D. Kan. January 14, 2011).*

Defendant argued that he consented only to a search of his vehicle and not his person. The officer testified that he usually asked for consent to both but did not specifically remember. Here, the question is moot because the officer also had reason to frisk defendant and found the gun. United States v. Lecraft, 2011 U.S. Dist. LEXIS 3753 (E.D. N.C. January 14, 2011).*

01/18/11

Permalink 02:16:46 pm, by fourth, 107 words, 813 views   English (US)
Categories: General

WaPo: SWAT raid killing unarmed man for betting on football games results in $2M settlement

SWAT raid gone bad: Culosi family to receive $2 million from Fairfax by Tom Jackman in the Washington Post:

Nearly five years after a Fairfax County police officer shot and killed an unarmed man outside his townhouse, the county has agreed to pay the man's parents $2 million to settle their lawsuit against the officer.

The death of Salvatore J. Culosi, a 37-year-old optometrist who lived in the Fair Oaks area, sparked outrage over the use of a SWAT team to arrest a man suspected of the nonviolent crime of taking bets on football games. Fairfax police were aware that Culosi had no criminal history or connection to weapons.

Permalink 08:40:11 am, by fourth, 25 words, 645 views   English (US)
Categories: General

For the busy researcher

100 Google Search Tricks for the Savviest of Students.

I admit it; I use Google or Bing many times a day, and I'm an old guy.

Permalink 12:12:22 am, by fourth, 252 words, 801 views   English (US)
Categories: General

OH8: Frisk for driving scooter without license unjustified

Defendant was stopped for driving a scooter without eye gear and a helmet. He was found to not have a license on him. A frisk was not justified. State v. Williams, 2011 Ohio 108, 2011 Ohio App. LEXIS 73 (8th Dist. January 13, 2011).*

Read as a whole, the affidavit for the search warrant showed when the CI said she smoked dope with the defendant, so search warrant was not stale. Moss v. State, 2011 Ark. App. 14, 380 S.W.3d 479 (2011).*

Defendant was stopped for a “pedestrian violation” [jaywalking?], the validity of which was not at issue, and the officer at 5' from him could smell the overwhelming smell of marijuana. There was no reasonable expectation of privacy in the odor coming from his body. The stop was valid. State v. Hill, 54 So. 3d 530 (5th DCA January 14, 2011).*

The officer pulled the patrol car behind the defendant’s car who pulled into a parking space. The trial court failed to determine whether there was reasonable suspicion for a stop, so the case is remanded. State v. Thompson, 2011 ND 11, 793 N.W.2d 185 (2011).*

Defendant’s stop for parking in front of a driveway was cause. The fact he drove off before the stop did not void the stop. He was found to be DUI, and the stop was valid. Rickards v. State, 2011 Del. LEXIS 23 (January 12, 2011).*

Defendant was under arrest when he was handcuffed, and a search incident to the arrest produced keys to the apartment that the officers were getting a search warrant for. State v. Bazley, 60 So. 3d 7 (La. App. 5th Cir. 2011).*

Permalink 12:02:36 am, by fourth, 415 words, 928 views   English (US)
Categories: General

WA: Potential for domestic violence here was just not enough for warrantless entry

Because of the jealous protection of the home, the evidence of the officers’ need to enter the home in a “potential ... domestic violence” situation was just not sufficient. As far as officers knew, the situation had not reached the point of near violence. State v. Schultz, 170 Wn. 2d 746, 248 P.3d 484 (2011) (dissent here) (revg State v. Schultz, 146 Wn. App. 1057, 2008 Wash. App. LEXIS 2342 (2008)):

¶24 We recognize a few jealously guarded exceptions to the warrant requirement. State agents need no warrant to provide emergency aid. Courts may consider that an entry is made into a home in the context of a domestic violence threat in considering the reasonableness of officers' actions under the emergency aid exception. However, the State still has the burden of establishing facts to justify a warrantless search. The evidence that domestic violence was likely to occur in this case may be summarized as follows: (1) a report of a couple yelling, (2) the officers heard “raised voices” and a man say he wanted to be left alone and needed his space, (3) when Schultz answered the door she appeared agitated, and (4) she reported that no one was there before a man appeared from the bathroom. That is not enough. We reject the trial court's and the Court of Appeals’ conclusion that Schultz consented by acquiescence because she failed to object when the police walked into her apartment. The State has failed to establish an exception to the warrant requirement applies. The evidence that Schultz possessed illegal drugs was obtained without authority of law. Schultz was entitled to have her motion to suppress the evidence granted. We reverse the courts below and remand for any further proceedings consistent with this opinion.

Silent acquiescence was not consent here:

¶17 Thus the police, the trial court, and the Court of Appeals seem to be of the view that the protections of article I, section 7 against warrantless intrusions into private affairs and homes are easily waived by silent acquiescence. We disagree. Individuals do not waive this constitutional right by failing to object when the police storm into their homes. Nor do they waive their rights when the police enter their homes without their consent just because they are too afraid or too dumbfounded by the brazenness of the action to speak up. The right not to be disturbed in one's home by the police without authority of law is the bedrock principle upon which our search and seizure jurisprudence is grounded. Wash. Const. art. I, § 7; Ferrier, 136 Wn.2d at 112 (citing Young, 123 Wn.2d 185).

01/17/11

Permalink 08:38:58 am, by fourth, 187 words, 4048 views   English (US)
Categories: General

NC: The exclusionary rule does not apply to driver’s license revocation proceedings

The exclusionary rule does not apply to driver’s license revocation proceedings. Hartman v. Robertson, 208 N.C. App. 692, 703 S.E.2d 811 (2010).

Where defendant consented to a search of his truck and a concealed weapon was found, Gant did not prohibit a further search of the truck. State v. Foy, 208 N.C. App. 562, 703 S.E.2d 741 (2010).*

Officers had reason to stop defendant’s car because the taillight was not lit, so the pretext (Whren) argument became moot. State v. Ford, 208 N.C. App. 699, 703 S.E.2d 768 (2010).*

Defendant was asked outside his apartment for his ID, and he told the officers it was in his apartment and the officers should come with him. He motioned for them to come inside. Once inside, they validly saw cocaine in plain view. Ruiz v. State, 50 So. 3d 1229 (Fla. App. 4th DCA 2011).* See Orin Kerr's take on Volokh Conspiracy: Police Officers Committing Perjury in Testimony About Consent Searches?

The record supports the conclusion that defendant’s friend consented to a search of her shed where officers found an assault rifle defendant stored there. Mathis v. State, 53 So. 3d 1089 (Fla. App. 1st DCA January 6, 2011).*

Permalink 08:06:48 am, by fourth, 21 words, 894 views   English (US)
Categories: General

Orin Kerr: "Update on United States v. Cotterman, Ninth Circuit Case Applying the Border Search Exception to Computers"

Permalink 07:57:02 am, by fourth, 127 words, 868 views   English (US)
Categories: General

DEA raids wrong house, threatening 13 year old girl with automatic weapon

On CBS2 New York: Feds Regret Invading ‘Innocent’ Family’s NY Home:

The Drug Enforcement Administration is apologizing to a suburban family that claims agents terrorized them during a mistaken drug raid.

David McKay of Spring Valley told The Journal News that he was forced into the snow in his underwear early Thursday. He says officers pointed guns at his daughter and threatened to shoot the family dogs.

DEA Special Agent John Gilbride issued a statement Friday regretting that “the innocent McKay family” was mistakenly rousted when agents went to the wrong house to serve a warrant.

See Spring Valley man: Cops targeted wrong address, rousted my family; DEA Targets Wrong House, Threatens 13 Year Old Girl; Family Held At Gunpoint After Home is Mistakenly Raided By Police.

Permalink 07:46:49 am, by fourth, 265 words, 764 views   English (US)
Categories: General

NC: Conflict of laws: NJ search governed by NC law where trial occurred

Defendant was searched in New Jersey and prosecuted in North Carolina. The search result might have been different in New Jersey, but the North Carolina court holds that state law requires that the search be governed by its state law. State v. Hernandez, 208 N.C. App. 591, 704 S.E.2d 55 (2010):

Next, Defendant argues that Trooper Ramcheran’s decision to ask for consent to search the truck violated the principle of New Jersey state constitutional law enunciated in State v. Elder, 192 N.J. 224, 927 A.2d 1250 (2007). N.C. Gen. Stat. § 15A-974 only authorizes the suppression of evidence in the event that “[i]ts exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina” or the evidence was “obtained as a result of a substantial violation of the provisions of” Chapter 15A of the North Carolina General Statutes. As should be obvious, any violation of the principle of New Jersey state constitutional law enunciated in Elder would not involve a violation of Chapter 15A of the North Carolina General Statutes. Assuming, without in any way deciding, that Trooper Ramcheran’s actions violated the New Jersey Constitution, any such “illegality under ... state [law] can neither add to nor subtract from its validity” under the federal or North Carolina Constitutions since a “[m]ere violation of a state statute [or constitutional provision] does not infringe the federal Constitution.” Snowden v. Hughes, 321 U.S. 1, 11, 88 L. Ed. 497, 504, 64 S. Ct. 397, 402 (1944). Thus, this argument provides no basis for the suppression of evidence in a North Carolina court.

[Now, Virginia v. Moore would reach the same result.]

01/16/11

Permalink 05:33:18 pm, by fourth, 212 words, 635 views   English (US)
Categories: General

CA5: Defendant's abandonment of iPhone in truck when he fled from them was waiver of REP

Defendant’s abandoning his truck and iPhone in flight from the police was a waiver of his expectation of privacy in both. United States v. Self, 414 Fed. Appx. 611 (5th Cir. 2011) (unpublished).*

In an argument over whether the third attachment to a search warrant was there when it was executed, the court finds that it was, although not to the copy in the return. Moreover, the search warrant adequately addresses the attachment. United States v. Glinberg, 2010 U.S. Dist. LEXIS 139697 (E.D. Wis. November 22, 2010).*

Defendant succeeds in showing that he was not violating the statute on unsafe backing when he was stopped by the police, so the stop would be invalid on that ground. Instead, the officer knew his license was suspended, and that forms an independent basis for the stop. United States v. Guice, 2010 U.S. Dist. LEXIS 139711 (M.D. Ala. November 3, 2010)*

The protective sweep of defendant’s house was justified because “the officers had reason to believe that Portis had firearms in his house and had just shot at someone. They were also aware that Portis was both a person of interest in a homicide investigation and an army-trained ‘expert marksman.’” And, there was reason to believe another was in the house. United States v. Portis, 407 Fed. Appx. 669 (4th Cir. 2011) (unpublished)

Permalink 05:13:35 pm, by fourth, 208 words, 590 views   English (US)
Categories: General

S.D.Ohio: PC existed for search of car for evidence of failure to register as sex offender where defendant allegedly lived in car

The court credits that there was probable cause to search defendant’s car for evidence of his failure to register as a sex offender because he was living in his car. Evidence could have proved how long he was in the jurisdiction and should have registered. Also, the warrantless seizure of the vehicle was proper rather than leaving it on a parking lot. United States v. Miller, 2011 U.S. Dist. LEXIS 3459 (S.D. Ohio January 6, 2011).*

Defendant’s second motion to suppress after a three day hearing on the first one is dismissed because of issue preclusion. United States v. Fernandez-Santos, 2011 U.S. Dist. LEXIS 2763 (D. P.R. January 10, 2011).*

There was probable cause for the traffic stop that quickly escalated first to reasonable suspicion then to probable cause. United States v. Freeman, 2010 U.S. Dist. LEXIS 139568 (C.D. Ill. October 6, 2010).*

Defendant’s suppression motion was decided without a hearing on the representations of the government and admissions from the defendant that there was probable cause for the stop and search of his car in a methamphetamine conspiracy, and, while the record is not clear where he was standing when the car was searched, Gant was thus inapplicable. United States v. Ball, 2010 U.S. Dist. LEXIS 139685 (W.D. Mo. December 9, 2010).*

Permalink 05:05:30 pm, by fourth, 191 words, 651 views   English (US)
Categories: General

CFC: No cognizable claim in that court for seizure of laptop at border

Plaintiff’s suit against the government in the Court of Federal Claims is dismissed. It could not be based on a contract or takings clause theory, and Fourth Amendment claims cannot be based in that court. Also, no Fourth Amendment claims has succeeded yet in any court. Kam-Almaz v. United States, 96 Fed. Cl. 84 (2011):

According to an editorial in The New York Times of November 15, 2010, during an 18-month period between 2008 and 2010, some 3,000 returning Americans had their laptop computers seized and their contents examined by U.S. Customs. Moreover, as was the case with Mr. Kam Almaz, U.S. Customs agents may freely share the data from those computers — personal and business records, web-site visits, email —again without a warrant or even reasonable suspicion. Challenges in District Court to these Fourth Amendment exceptions have not been successful. The New York Times calls for legislative limits on the Government's right to access and share computer data. Such legislation would presumably not help Mr. Kam Almaz, who has a more prosaic complaint — he seeks compensation for losses he suffered from damage to the computer and its data while in the possession of U.S. Customs.

Permalink 10:15:58 am, by fourth, 13 words, 563 views   English (US)
Categories: General

Salon.com: "Homeland Security's laptop seizures: Interview with Rep. Sanchez"

01/15/11

Permalink 11:42:05 pm, by fourth, 24 words, 991 views   English (US)
Categories: General

"C-SPAN Washington Journal on Kentucky v. King and Fourth Amendment Rights"

Orin Kerr writes on Volokh Conspiracy: C-SPAN Washington Journal on Kentucky v. King and Fourth Amendment Rights. Kerr was on C-SPAN talking about King.

01/14/11

Permalink 08:02:33 am, by fourth, 299 words, 602 views   English (US)
Categories: General

OH10: Defendant's own actions corroborated CI

The officer got a CI’s tip that defendant was seen by him in possession of cocaine. Defendant was sitting in his truck and was acting like he was hiding something. The officer talked to defendant sitting in his truck, and the defendant became nervous and then upset when asked about drugs. This corroborated the CI. State v. Coger, 2011 Ohio 54, 2011 Ohio App. LEXIS 36 (10th Dist. January 11, 2011).*

Defendant had not been Mirandized when he was arrested, and the officer asked him whether there was anything in his room that the officer should know about, and he consented to a search without being asked. The search was valid by consent. Cadoree v. State, 331 S.W.3d 514 (Tex. App. – Houston (14th Dist.) 2011).*

Under a Franks claim, an officer is not required to conduct a complete investigation of the alleged crime under investigation before seeking a search warrant. The statement that the property in question did not appear to have a business justifying the high electrical usage was not recklessly made. United States v. Thoms, 2011 U.S. Dist. LEXIS 2853 (D. Alaska January 11, 2011)*:

Alternatively, Thoms argues that, assuming the truth of Investigator Young’s statement that there was nothing visible at the residence that would suggest it being used for business purposes to justify the higher electrical rate, nevertheless, Young’s statement was misleading. “Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the [issuing judge].” Colkley, 899 F.2d at 301 (italics in original).

The statement on its face is not misleading. The fact that a subsequent administrative subpoena(s) to MEA disclosed that there were four electrical accounts associated with the property and that three of those accounts were in the names of businesses does not render Young's statement incorrect or misleading.

Permalink 07:45:50 am, by fourth, 380 words, 737 views   English (US)
Categories: General

S.D.Ga.: Firearms laying in plain view = exigent circumstances for community caretaking seizure

An officer patrolling a low-rent housing project saw a man asleep on the porch in the early morning hours, and that was highly unusual. She approached just to see what was going on, and there was a handgun on the floor between his feet. She called for backup, and then retrieved the gun. After handcuffing him, she asked for ID and he said go get it, indicating his pocket. In the pocket was the ID and drugs. The search was legal. United States v. Williams, 2011 U.S. Dist. LEXIS 2977 (S.D. Ga. January 12, 2011)*:

Firearms lying unattended in plain view on the porch of a public housing unit and in close proximity to a public sidewalk present a clear threat not only to the approaching officer but also to the community generally, for any passerby -- including a small child -- could easily retrieve the loaded weapon. The opportunity for great mischief was readily apparent to Officer Stephens, who knew that many small children lived in Yamacraw Village. The Supreme Court has recognized that law enforcement officers are not only permitted, but expected, to exercise “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973); Terry v. Ohio, 392 U.S. 1, 13 (1968) (“Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime.”). Here, the obvious danger to community welfare posed by a pistol lying unattended and exposed to public view in a public housing complex justified the exercise of just such a caretaking function. Thus, Officer Stephens did not offend the Fourth Amendment by stepping onto the porch to secure the weapon.

A pawn shop operator was contacted about having stolen property in pawn, and the police arrived to talk about it. The officers were shown the property in a back room, and they did not violate the Fourth Amendment by seizing the property in plain view. PPS, Inc. v. Faulkner County, 630 F.3d 1098 (8th Cir. 2011).*

Defendant’s stop was with probable cause of a lane change, and reasonable suspicion quickly developed and only five minutes elapsed before defendant’s cocaine was found. United States v. Corley, 408 Fed. Appx. 245 (11th Cir. 2011) (unpublished).*

01/13/11

Permalink 09:39:12 am, by fourth, 448 words, 865 views   English (US)
Categories: General

D.Mass.: SI of cell phone only for its IMSI number printed under battery was reasonable

Search incident of a cell phone just to recover its IMSI number from the battery compartment was valid. This is far distinguishable from getting data off the phone. United States v. Green, 2010 U.S. Dist. LEXIS 139437 (D. Mass. January 11, 2010):

Green next argues that even if the seizure of the cell phones were justified, the opening of the phones and the removal of the batteries to acquire the IMSI numbers weeks later amounted to a “search” for which a warrant was required.

Here, the intrusion caused by the inspection was minimal. It is important to note that the agent did not turn the phones on, nor did he access the data stored in the phones, such as address books, text message histories, photographs, or emails. Compare, e.g., United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (stating that a defendant has a reasonable expectation of privacy in the “wealth of private information” within a cell phone, including emails, text messages, call histories, address books, and subscriber numbers); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. 2009) (cell phone owner has reasonable expectation of privacy in electronic data stored on phone). The only information gleaned from the searches was the IMSI numbers for each phone. They are akin to serial numbers. See United States v. Jadlowe, __ F.3d ___, 2010 WL 4962855, at *8 n.23 (1st Cir. Dec. 3, 2010). They are unique to a particular phone and serve to identify it.

There is nothing wrong with an agent’s examining an item lawfully seized to determine its particular identifying number. It is accepted that the police may ask a person his name. See Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 185 (2004) (“Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.”); Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (“We have stated that even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual [and] ask to examine the individual’s identification ....”) (internal citations omitted); Young, 105 F.3d at 6 (“Police may approach citizens in public spaces and ask them questions without triggering the protections of the Fourth Amendment”). Similarly, they may make a cognate inquiry of an inanimate object. It is not significant that some manipulation of the device was necessary to get to the identifying number, just as a wallet or purse lawfully in police possession might legitimately be opened to see if there is identifying information within. These circumstances are different from those in Arizona v. Hicks, 480 U.S. 321 (1987), where the items examined for their serial numbers were not lawfully seized prior to the inspection.

Permalink 09:30:01 am, by fourth, 169 words, 607 views   English (US)
Categories: General

CA8: Denial defendant was in car just stopped was abandonment of REP in car

Defendant was seen driving a distinctive yellow Monte Carlo known to belong to a PCP dealer. He stopped at a residence known for sale of PCP. Then he drove to another house and stopped for a half hour and drank a beer in the front yard. He drove off to a third location, and he pulled to the curb but failed to signal. The officer pulled up next to him as he got out of the car, and he denied getting out of the car he was driving, saying that he got out the car the yellow car was parked behind. The officer stopped him for drinking in public. [Great idea for a stop.] A gun was seen in plain view in the car, and his denial of being in the car was abandonment. United States v. Randolph, 628 F.3d 1022 (8th Cir. 2011).*

No clear error in the finding of consent. United States v. Lopez-Casas, 407 Fed. Appx. 72 (8th Cir. 2011) (unpublished)* (literally one sentence on this issue in an Anders brief).

Permalink 09:02:57 am, by fourth, 301 words, 588 views   English (US)
Categories: General

E.D.Cal.: SW for records was not stale because they were likely to be kept

A two year lapse between two search warrants for documents being issued did not make it stale. There was reason to believe the records would still be around. United States v. Quy Le, 2011 U.S. Dist. LEXIS 2243 (E.D. Cal. January 4, 2011):

While the year-long period between the search of the 1640 High Street residence and the search at issue here is significant, it does not destroy probable cause. There is no reason to think that the kind of documentary evidence sought here would have been destroyed in that time period. See United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991) (“One may properly infer that equipment acquired to accomplish the crime and records of the criminal activity will be kept for some period of time. When the evidence sought is of an ongoing criminal business of a necessarily long-term nature, such as marijuana growing, rather than that of a completed act, greater lapses of time are permitted if the evidence in the affidavit shows the probable existence of the activity at an earlier time.”) (internal citations omitted). Based on the information in the affidavit, this court concludes there was probable cause for the issuance of the warrant.

Virginia v. Moore does not apply to mistakes of law. In Moore, there was no dispute that a violation occurred. Here, the officers stopped suspected MS-13 gang members for a MPC 25 violation (loitering in violation of city code on private property). MPC 25 violations can’t occur on public property, so the stop was invalid. Moreover, there was no justification given for a Terry frisk other than the fact that MS-13 gang members have been known to be violent in the past and the officer did not want to be the first injured by them. United States v. Hernandez, 2011 U.S. Dist. LEXIS 2449 (N.D. Ill. January 6, 2011).

Permalink 08:50:05 am, by fourth, 296 words, 597 views   English (US)
Categories: General

D.Mass.: While PC was doubtful, it was not completely lacking, and the good faith exception applied

It seems doubtful that there was sufficient probable cause at the time the warrant was issued based on transactions a while ago and the inference of defendant’s involvement was weak, the good faith exception was enough to save this search. United States v. Catalano, 2011 U.S. Dist. LEXIS 2504 (D. Mass. January 11, 2011):

... It is not implausible, of course, that Catalano’s business premises would serve as a place where he would “stash” drugs and/or drug-related cash and records. Nevertheless, on the information presented in the affidavit, concluding that is more of a speculation than an inference.

Unfortunately for the defendant, however, the “good faith exception” announced in United States v. Leon, 468 U.S. 897 (1984), applies and forecloses suppression of the evidence seized from 1451 South Main Street, even if the affidavit was inadequate to establish the necessary nexus. “Under Leon, the good faith exception applies when government agents rely on a warrant in objective good faith and in the interest of justice suppression is generally inappropriate.” United States v. Woodbury, 511 F.3d 93, 99 (1st Cir. 2007). The recognized exceptions to the good faith exception are here inapplicable. ...

There was a “fair probability” (Gates) that evidence of an elder fraud case would be found in defendant’s property, including computers, to justify the search. “‘Few places are more convenient than one’s residence for use in planning criminal activity and concealing fruits of a crime.’ United States v. Hailed, 22 F.3d 779, 780 (8th Cir. 1994), cert. denied, 513 U.S. 882 (1994) (citing United States v. Green, 634 F.2d 222, 226 (5th Cir. 1981)). For all of these reasons, the Court concludes that the Queen Avenue warrant was valid.” And, the good faith exception would save the warrant, too. United States v. Scott-Kelley, 2010 U.S. Dist. LEXIS 139343 (D. Minn. November 9, 2010), adopted 2011 U.S. Dist. LEXIS 2218 (D. Minn. January 10, 2011).*

Permalink 08:23:11 am, by fourth, 237 words, 720 views   English (US)
Categories: General

New law review article: "Is the Fourth Amendment Relevant in a Technological Age?"

Is the Fourth Amendment Relevant in a Technological Age? by Christopher Slobogin of Vanderbilt Law School on SSRN. Abstract:

This work will be a chapter in a forthcoming book in The Future of the Constitution series, edited by Jeffrey Rosen and Benjamin Wittes and published by the Brookings Institute. Over the past 200 years, the Fourth Amendment’s guarantees have been construed largely in the context of what might be called "physical searches" - entry into a house or car; a stop and frisk of a person on the street; or rifling through a person’s private papers. But today, with the introduction of devices that can see through walls and clothes, monitor public thoroughfares twenty-four hours a day, and access millions of records in seconds, police are relying much more heavily on what might be called "virtual searches," investigative techniques that do not require physical access to premises, people, papers or effects and that can often be carried out covertly from far away. The Supreme Court’s current Fourth Amendment jurisprudence - specifically, its "knowing exposure," "general public use," "contraband-specific," "assumption of risk" and "special needs" doctrines - has both failed to anticipate this development and continued to ignore it. This article describes this jurisprudence and how it can foster law enforcement abuse, mission creep, mistaken seizures and physical searches, and an oppressive atmosphere even for the innocent. It then outlines a more technologically-sensitive Fourth Amendment framework.

Permalink 08:11:04 am, by fourth, 8 words, 783 views   English (US)
Categories: General

SCOTUS oral argument in Kentucky v. King

01/12/11

Permalink 12:02:43 pm, by fourth, 287 words, 813 views   English (US)
Categories: General

WikiLeaks Twitter account court order released by Salon.com

On CNET.com: WikiLeaks volunteer hires lawyers in Twitter fight over subpoenas for the Twitter account.

An ex-WikiLeaks volunteer has hired American lawyers to oppose the U.S. government's efforts to obtain the contents of her Twitter account, CNET has learned.

Birgitta Jónsdóttir, a member of the Icelandic parliament who helped with WikiLeaks' release of a classified U.S. military video, is being represented by the San Francisco-based Electronic Frontier Foundation.

"We're looking at options and various things we can do to help our client," EFF legal director Cindy Cohn said yesterday. "She's disturbed that her information is being sought."

On Friday, Twitter notified Jónsdóttir and a handful of other subscribers that the U.S. Justice Department had obtained a court order for their "subscriber account information." The order covers possible accounts linked to WikiLeaks, including those of Bradley Manning, the U.S. Army private accused of leaking classified documents; Seattle-based WikiLeaks volunteer Jacob Appelbaum; Dutch hacker and XS4ALL Internet provider co-founder Rop Gonggrijp; and WikiLeaks editor Julian Assange.

Cohn said the EFF was representing only Jónsdóttir and not any of the other targets of the order (PDF), which was signed by U.S. Magistrate Judge Theresa Buchanan in Alexandria, Va. "They all have separate stories," she said.

Read more here. The order, linked in the quote, is here and out of the Eastern District of Virginia dated December 14, 2010. It has a Grand Jury case number so the supporting documentation is not yet public. The person subpoenaed apparently released it.

The important information is the case number: A U.S. grand jury in the Eastern District of Virginia is investigating WikiLeaks.

Order to unseal his here.

Hat tip to PogoWasRight.

Permalink 11:39:43 am, by fourth, 125 words, 730 views   English (US)
Categories: General

PA: GPS tracking now moving forward for sex offenders

CBS Pittsburg: Pilot Program Uses GPS Technology To Track Sex Offenders:

More than 1,100 registered sex offenders live and work in Allegheny County and 43 of them are now wearing monitoring devices as a condition of their parole.

District Attorney Stephen Zappala blames the nature of the crime for the need to better track these offenders.

“Because the psychology of the crime of the criminal actually is, they will re-offend and so we’re looking at persons who are recidivists,” Zappala said.

The offenders are monitored by places like Guardian Protection Service. The system uses GPS technology.

As long as the offenders stay in the inclusion area, they’re OK, but if they travel into an exclusion area, police are notified immediately.

Hat tip to PogoWasRight.org.

Permalink 07:35:34 am, by fourth, 267 words, 794 views   English (US)
Categories: General

CA9: DUI justifies SI under Gant

DUI arrest justifies a search incident of the passenger compartment under Gant because there is reason to believe that evidence of the crime may be found there, and such a search is not limited to a paper bag found in there. United States v. Grote, 408 Fed. Appx. 90 (9th Cir. 2011), cert. denied 2011 U.S. LEXIS 3373 (U.S., May 2, 2011).

While Samson v. California permits suspicionless searches of parolees, the Ninth Circuit has not determined whether it applies to probationers, and it probably won’t. Because there was reasonable suspicion anyway, the issue does not have to be decided. United States v. King, 2011 U.S. Dist. LEXIS 1725 (N.D. Cal. January 3, 2011).*

There was probable cause for issuance of the search warrants in this case, and, even if not, the good faith exception made the search good. United States v. Van Bui, 2010 U.S. Dist. LEXIS 139208 (D. Minn. December 27, 2010).*

Defendant’s consent after being Mirandized was valid. The seizure of his cell phone in plain view was valid [the court does not indicate whether the phone was searched, too; presumably it was or it wouldn't be talking about it]. United States v. Molina, 2010 U.S. Dist. LEXIS 139298 (S.D. Fla. December 20, 2010).*

The search warrant in this case was based solely on information from the complainant to the state securities department, and the product of the administrative subpoena did not make it into the search warrant application. The case is remanded to the trial court, however, because the trial court did not make a finding on the motivation prong of Murray, the case is remanded. State v. Miles, 159 Wn. App. 282, 244 P.3d 1030 (2011).*

Permalink 12:03:20 am, by fourth, 559 words, 679 views   English (US)
Categories: General

CA9: Entry of police to investigate rumor to "shoot up" school was without exigency or PC

Four officers received a call from a school that a student threatened to “shoot up” the school. They got the report and went to the student’s home. All four entered the house after entrance was refused by the student’s parents. After 10-15 minutes inside where they did not search, the officers concluded the rumor at school was unfounded, and they left and went to the school and reported it. When they were sued, all were found to have qualified immunity. The Ninth Circuit reversed as to the first two and affirmed as to the second two following the first because they believed the first two had consent. As to the first two officers, there were neither exigent circumstances nor probable cause for the entry. Huff v. City of Burbank, 632 F. 3d 539 (9th Cir. January 11, 2011) (reversed in part per curium, Ryburn v. Huff, 11-208 (U.S. January 23, 2012) posted here):

These facts relied upon by the district court in its legal conclusions amount to mere speculation. They do not satisfy the heavy burden required for a finding of exigent circumstances. That the Huffs did not answer their door or telephone may be “unusual,” but it did not create exigent circumstances. Hopkins v. Bonvicino, 573 F.3d 752, 765 (9th Cir. 2009) (“[N]othing requires an individual to answer the door in response to a police officer’s knocking.”). The district court was incorrect in finding that Maria Huff’s failure to inquire about the reason for the officers’ visit, or her reluctance to speak with the officers and answer questions, were exigent circumstances. “[T]o the extent that the officers reasonably perceived [Maria] to be antagonistic, they were still not at liberty to enter [her home] under these circumstances.” LaLonde, 204 F.3d at 957 n.16. Nothing in the district court’s findings of fact states that Maria did not inquire about the reason for the officers’ visit or express concern that they were investigating her son. Nothing in the district court’s findings of fact indicates that Maria was not free to leave and return to her home, or that any of the officers had indicated that she was either required to answer their questions or restricted from returning to the inside of her house. Additionally, Maria did answer her cell phone when Ryburn called, spoke to him on the telephone, and went outside with her son Vincent upon learning they were present at her residence. She was under no obligation to invite the officers into her home. Indeed, our Constitution protects her decision to refuse the police entry into her home when they did not possess a warrant. See Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”).

Further, “the officers’ assertion of a potential threat to their safety must be viewed in the context of the underlying offense.” LaLonde, 204 F.3d at 957 n.16. Here, there was no underlying offense; the officers were investigating rumors of threats. ...

The concurring judge would have found exigent circumstances for the first two officers based on a mere fear of a gun.

One would wonder how Saturday's events in Tucson would have borne on this decision. But, opinions waiting release go through processing, so it would have undoubtedly been completed days earlier.

01/11/11

Permalink 05:21:35 pm, by fourth, 138 words, 1116 views   English (US)
Categories: General

NJ school district plans to random drug test 6th-8th graders

CBS New York: N.J. Town To Vote On Middle School Drug Tests / 6th, 7th & 8th Graders May Soon Be Treated Like High Schoolers:

A proposal to conduct random drug tests of young students in one New Jersey town is raising some eyebrows.

Students at Belvidere Elementary School could be adding drug testing to their list of lessons when they move into middle school.

The Board of Education will vote Wednesday on a plan to randomly test sixth, seventh and eighth graders to see if they are under the influence of drugs. School administrators said they were confident the proposal would pass.

Elementary School Principal Sandra Szabocsik said school officials want to use the testing “as a deterrent.”

Another clueless school district about to make a civil rights lawyer some money for a blatant Fourth Amendment violation.

Permalink 09:52:04 am, by fourth, 369 words, 2957 views   English (US)
Categories: General

IL: Bullet in plain view in car not PC to believe a gun is illegally possessed

The Terry stop of defendant’s car was lawful, but seeing a bullet in plain view did not create probable cause to believe that there was a gun in the car [there was] without a carry permit or in possession of a felon. People v. Colyar, 407 Ill. App. 3d 294, 346 Ill. Dec. 921, 941 N.E.2d 479 (2010):

Here, we agree with the circuit court that more was required to justify the search of the defendant’s vehicle after the officers observed a bullet in plain-view, which precipitated the officers’ action. Upon observing the bullet, the officers immediately removed the occupants from the vehicle, secured each in front of the Honda by handcuffing them, and placed each in custody without determining whether the bullet observed by the officers was in fact evidence of a crime. While the circuit court focused on the absence of any inquiry concerning whether the defendant or any of the passengers possessed a FOID card, it could just as well have stated that had the officers inquired whether any of the occupants was a convicted felon, probable cause would have existed for an arrest. As the State correctly points out, the absence of a valid FOID card makes possession of ammunition “a Class A misdemeanor” and a convicted felon cannot “be in possession of a valid FOID card.” It is also telling that the State does not identify the crime believed to have been committed or about to be committed by the defendant before the search ensued. Rather, the State appears to assert that the search was justified based on a crime the officers had no information had been committed: “the police officers would have inevitably discovered the gun as a search incident to defendant’s arrest for possession of ammunition without a valid FOID card.”

We agree with the circuit court. Probable cause to believe that a weapon was present in the defendant’s car did not exist based on the information the officers had at the time of the search of the defendant’s car. Under the facts and circumstances of this case, the record fails to support that an exception to the fourth amendment warrant requirement applies to justify the search of the defendant’s car.

Permalink 09:36:30 am, by fourth, 207 words, 2890 views   English (US)
Categories: General

VI: Tardy response to vague shots fired call had no RS for stopping defendant

Responding to a shots fired call 25-30 minutes after where officers had no real description of the shooter or the street where shots came from did not give officers reasonable suspicion to stop the defendant. People v. Fredericks, 54 V.I. 161 (Super. Ct. 2011):

The facts known to the police in this case were: 1) there was an anonymous report of shots fired on Garden Street; 2) they responded 25 to 30 minutes after the shots were fired; and 3) upon their response the officers encountered a group of men on a street which intersected with Garden Street who were, by the officers' own testimony, not engaged in any criminal, or even suspicious, behavior. Conspicuously absent from the facts known to the officers was any description of any person or persons who fired the reported shots. To establish reasonable suspicion to support a warrantless stop, the government must not only demonstrate that there was criminal activity afoot, but also present evidence that the particular person in question was involved in some criminal activity. No facts were produced which sustain any reasonable belief or suspicion that Mr. Fredericks was involved in any criminal activity. In fact, both officers testified that none of the individuals they stopped were engaged in any illegal activity or acting suspiciously.

Permalink 09:33:31 am, by fourth, 608 words, 3011 views   English (US)
Categories: General

IL: Occasionally spending the night in the place searched was sufficient for standing

Defendant occasionally stayed at the place searched, and officers found mail addressed to him there. He did not have to be an exclusive resident anywhere to have standing in one or more places. However, he loses on the merits because there was probable cause for issuance of the search warrant, and the GFE would save it anyway. United States v. Henry, 2010 U.S. Dist. LEXIS 139164 (N.D. Ga. December 7, 2010):

The Government correctly contends that Defendant cannot show standing simply through the contentions of Government agents or the theory of the Government’s case. See United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995). However, hearsay is admissible at suppression hearings, and I am aware of no case law or rationale that would preclude Defendant’s use as evidence of statements that were procured by Government agents. Cf. United States v. Free, No. CR606-001, 2006 WL 2366430, *3 (S.D. Ga. Aug. 14, 2006) (unpublished) (finding expectation of privacy shown in part by statements given to law enforcement officer).

A person may have an expectation of privacy in a home even though it is not his exclusive residence. In Minnesota v. Olson, 495 U.S. 91, 98 (1990), the Supreme Court held that an overnight guest in someone else’s home had a legitimate expectation of privacy, and could therefore challenge a warrantless entry into the host’s home to execute an arrest warrant. Here, Defendant established that he had even more of an expectation of privacy in the 168 Rocky Ford Road residence than an occasional overnight guest. Two other residents of the house told agents that Defendant lived there, and Defendant’s belongings and recent mail addressed to him were found in a room in the house. Cf. United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988) (finding that individual who had key to apartment, was afforded unrestricted access, kept clothes in the apartment and stayed there at least eight times in a one-month period had an expectation of privacy). Therefore, Defendant has met his burden of proof on standing. However, Defendant’s motions fail for other reasons.

Note: Zermeno does not quite hold that the government’s theory can create standing. The mere fact somebody had a possessory interest in drugs in a drug house hardly confers standing, anyway. And, the law never said that mere possession creates standing. From Zermeno:

The district court concluded that Zermeno had met his burden of establishing standing. As to Silva-Sosa, the district court stated “[h]e has been charged with possession in these matters, and he's entitled to standing.”

Silva-Sosa concedes that a mere possessory interest in the item seized does not by itself confer standing to challenge the search of the place in which the item was found. Legal “possession of a seized good [is not] a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched.” United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980). Thus, Silva-Sosa did not have standing simply because he was charged with a possessory crime.

Silva-Sosa contends, however, that he is entitled to standing based on a theory of estoppel. He contends the government's theory of the case was that he frequented the Adrienne Street house and stored contraband there. He argues the government should not now be permitted to take the contradictory position that he lacks standing to challenge the search of the premises. We reject this argument. There is no contradiction in the government's positions. The mere fact that Silva-Sosa stored contraband at the Adrienne Street residence is insufficient to establish that he had a legitimate expectation of privacy there. See Rakas, 439 U.S. at 143, 99 S.Ct. at 430.

01/10/11

Permalink 09:37:57 am, by fourth, 235 words, 2871 views   English (US)
Categories: General

PA: Mere fact of being near a guy being arrested for drugs did not justify patdown

A Terry frisk of the defendant was not justified by any facts. It cannot be assumed that just because somebody is around somebody accused of a drug offense that the totality of circumstances should be replaced by that single fact. Commonwealth v. Grahame, 607 Pa. 389, 7 A.3d 810 (2010), revg Commonwealth v. Grahame, 2008 PA Super 73, 947 A.2d 762 (2008):

By her own admission, Officer Russell conducted a protective search of Appellant's purse based on a generalization that firearms are commonly found in close proximity to illegal drugs. No one from the task force knew if Appellant had a criminal record, and there was no indication that D.W. and Appellant were involved in a common enterprise. Indeed, the police witnessed a single drug transaction, and it occurred outside of Appellant's presence. Furthermore, upon entering the house, Officer Russell did not detect any unusual behavior or furtive movements on Appellant's part nor did she observe a suspicious bulge in Appellant's purse. Since the Commonwealth failed to elicit any facts that supported an objectively reasonable belief that Appellant was armed and dangerous, the Superior Court's decision cannot be sustained. See Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463, 466 (Pa. 1970) (police officer lacked reasonable suspicion to search defendant for weapons because officer did not possess any background information on defendant, and defendant's conduct did not convey threat of danger to officer).

[This case slipped by when it was decided. It was found in updating citations.]

Permalink 12:32:11 am, by fourth, 314 words, 3037 views   English (US)
Categories: General

OH2: Arrest without warrant where PC developed two months earlier led to suppression of search incident and subsequent search warrant for house

The controlled buy from the defendant two months earlier was probable cause and there was no excuse for not having obtained an arrest warrant for his arrest. Therefore, the search incident to his arrest was void, and the exclusionary rule applied. The product of the search incident was used to get a search warrant, and that too was void as derivative evidence. State v. Anderson, 2011 Ohio 22, 2011 Ohio App. LEXIS 14 (2d Dist. January 7, 2011):

[*P22] The State bears the burden of proving that it was impracticable to obtain an arrest warrant prior to the defendant’s arrest. VanNoy, at P25, citing Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218. In this case, the State offered no explanation for the lapse of two months from the time of the second controlled buy until Anderson’s arrest. Nor did the State prove that it was impracticable to have obtained an arrest warrant during that time. Therefore, Anderson’s warrantless arrest was not lawful. Anderson’s warrantless arrest not having been lawful, any evidence obtained as a result of that unlawful arrest was tainted and should have been suppressed as “fruit of the poisonous tree.” Wong Sun v. United States (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441.

. . .

[*P24] The narcotics found in Anderson’s pocket should have been suppressed because they were found as a direct result of his unlawful arrest. Similarly, the incriminating statements regarding the presence of additional narcotics in his home were made as a direct result of the unlawful arrest and should have been suppressed. See, e.g., State v. Cooper, Montgomery App. No. 20845, 2005 Ohio 5781, P28, citing New York v. Harris (1990), 495 U.S. 14, 19, 110 S.Ct. 1640, 109 L.Ed.2d 13. Finally, the search warrant for Anderson’s home having been issued primarily based upon the illegally seized narcotics from Anderson’s pocket and his incriminating statements resulting therefrom, the narcotics found in his home also should have been suppressed.

Permalink 12:13:41 am, by fourth, 600 words, 3052 views   English (US)
Categories: General

W.D.N.C.: Defendant's disclaimer of ownership helped show he did not refuse consent; Randolph likely does not apply to cars, but that issue doesn't have to be decided

Defendant disclaimed ownership of the car he was in saying that it was his mother’s, and that’s why he did not consent to search of her car he was in. By his own admission, his mother as owner of the car could consent to its search. He did not really refuse consent. He did have standing to contest the search of the car. United States v. Ingram, 2010 U.S. Dist. LEXIS 139041 (W.D. N.C. December 28, 2010). He argued Georgia v. Randolph prevented them from asking her after he refused, but he did not refuse. The court also notes, without having to decide, that Randolph may only apply to the home. Note 3:

Even if Defendant had refused consent, it is not clear that Randolph would extend beyond the home.

A careful reading of the Supreme Court’s decision in Randolph reveals that it was limited to “the circumstances here at issue”–-a search of a home undertaken as a result of consent given by one co-tenant in the face of a present co-tenant’s objection. See id. at 106-08. The majority’s opinion turned primarily on the understanding that Fourth Amendment reasonableness is based upon “the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules." Id. at 110 (citations omitted). The Court reasoned that because “there is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another,” it followed that no co-tenant had the right to admit a guest over another tenant’s objection. Id. at 114-15. Ultimately, the Court’s focus was on the traditional import given to the house:

Since we hold to the centuries-old principle of respect for the privacy of the home, it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people. We have, after all, lived our whole national history with an understanding of the ancient adage that a man’s house is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.

Id. at 115 (internal quotations omitted).

Because it is well-established that vehicles do not enjoy the same privileges as the home, see, e.g., South Dakota v. Opperman, 428 U.S. 364, 367 (1976); Rakas, 439 U.S. at 148, it is not evident from its face that Randolph applies in the context of vehicles. Instead, the “widely shared social expectations” surrounding vehicles and shared chattel would, if anything, counsel against applying Randolph to that context, particularly in light of the Court’s focus on the relationship that exists between co-tenants of real property. See United States v. King, 604 F.3d 125, 136 (3d Cir. 2010) (“our reading of Justice Souter’s opinion for the Court, Justice Breyer’s concurrence, and Chief Justice Roberts’s dissent, leads us to conclude that the rule of law established in Randolph does not extend beyond the home”); see also Randolph, 547 U.S. at 131-32 (Roberts, C.J., dissenting) (recognizing that the “social expectation” that accompanies “shared information, papers, [or] containers ... is that privacy has been shared with another,” and therefore one assumes the risk that the confidante will share access with a third-party, such as the police); but see United States v. Murphy, 516 F.3d 1117, 1124 (9th Cir. 2008) (“there is no reason that the rule in Randolph should be limited to residences”).

Ultimately, the Court need not decide this question, however, because it has already held that Randolph does not apply to the facts of this case.

Permalink 12:02:35 am, by fourth, 229 words, 2936 views   English (US)
Categories: General

D.S.C.: Destruction of inventory sheet after car picked up was not police bad faith

The inventory of defendant’s car was reasonable and under standardized procedure to take the car into custody, too. The fact the inventory sheet was destroyed after the car was picked up was not bad faith by the police department and did not make the inventory unreasonable. United States v. Arline, 2011 U.S. Dist. LEXIS 1428 (D. S.C. January 6, 2011).*

The defendant officer threw a flashlight into a moving car in an effort to stop it. This was a seizure and unreasonable under cases decided up to the time it happened, particularly Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999) involving shooting into a moving car. Therefore, no qualified immunity. Couden v. Duffey, 412 Fed. Appx. 476 (3d Cir. 2011) (unpublished)*:

Our decision in Abraham, which was issued prior to the conduct in question, is sufficiently similar to the facts of this case so as to make it clear to a reasonable officer that his conduct, as described by the plaintiff-appellants, was unlawful. As discussed, Abraham held that it was unreasonable for an officer to fire a bullet into the side of the car even when the car had already hit another car and the driver was reasonably believed to be intoxicated. Accordingly, a reasonable officer would have known that throwing a flashlight into a moving car, which was not headed directly towards the officer, was equally if not more unreasonable under the law.

01/09/11

Permalink 12:11:06 am, by fourth, 367 words, 3331 views   English (US)
Categories: General

CA5: Silence when your son is consenting for you is implicit consent

Silence during defendant’s son’s disclosure of where guns were when he was asked was implicit consent, and it was voluntary. United States v. Martinez, 410 Fed. Appx. 759 (5th Cir. 2011) (unpublished):

Consent to a search can be implied from silence or failure to object if it follows a police officer’s explicit or implicit request for consent. See United States v. Jaras, 86 F.3d 383, 390 (5th Cir. 1996). Here, an officer implicitly requested consent to search the safe. When an officer asks an individual where a gun is located, while at the same time repeatedly stating that his goal is to seize the weapon as evidence, that is logically considered an implicit request for consent to search for and recover the weapon. Given that Martinez was implicitly asked to consent to a search, it was not clearly erroneous for the court to conclude that Martinez’s decision to remain silent following his specific identification of the location of the firearms, as well as his son’s offer to retrieve the firearms, constituted implicit consent to the subsequent search.

Officers were watching a car suspected for being involved in drug sales. Officers moved in toward the car, and they saw furtive movements in the car like hiding weapons. When the officers got to the car, they ordered the occupants out, and the butt of a gun was in plain view. It was validly seized. Aliu v. State, 2011 Tex. App. LEXIS 32 (Tex. App. – Dallas January 4, 2011).*

Getting hung up on whether the government search exceeded the private search, the Fifth Circuit finally concludes that the defendant had a severely reduced expectation of privacy in a box that was left with another that he told her to get rid of. She instead delivered it to the police. The search of the box was reasonable. United States v. Oliver, 630 F.3d 397 (5th Cir. 2011).* See Orin Kerr on Volokh Conspiracy for a dissection of the private search issue.

Defendant’s admission during a parole visit that the pills on the table were prescription drugs that were not his did not limit the parole officers from searching further. People v Walker, 2011 NY Slip Op 47, 80 A.D.3d 793, 914 N.Y.S.2d 364, 980 N.E.2d 937 (3d Dept. 2011).*

Permalink 12:01:22 am, by fourth, 271 words, 546 views   English (US)
Categories: General

S.D.Ga.: Address in error was cured by detailed description and fact officer executing the warrant had been there before

Erroneous address of apartment complex which did not lead to another apartment complex because there was no other on the street. Across the street from the erroneous address was the apartment complex. Even more definitive was the fact the officer had been there before and knew the right place. United States v. Murdock, 2010 U.S. Dist. LEXIS 138943 (S.D. Ga. December 17, 2010).*

This court and other district courts in the Eighth Circuit have said that pre-Gant search incidents are not governed by Gant, so this one won’t be either. Alternatively, the vehicle could have been lawfully towed and inventoried, and the gun would have been inevitably found. United States v. Golden, 2010 U.S. Dist. LEXIS 138827 (W.D. Mo. November 3, 2010).*

The fact the owner of the vehicle had a suspended license was reasonable suspicion to stop the car. This was an issue of first impression in New Mexico. One thing led to another, and reasonable suspicion compounded. State v. Candelaria, 2011 NMCA 1, 149 N.M. 125, 245 P.3d 69 (2010), certiorari Denied, November 15, 2010, No. 32,655.*

Defendant was being watched based on a CI’s statement he was armed, and officers saw him hand a gun to another who fled into a house. Then there was consent to search the house. State v. Turner, 2010 Ohio 6475, 2010 Ohio App. LEXIS 5465 (8th Dist. December 30, 2010).*

Passengers in a stopped vehicle can be ordered out of it for a search incident. Defendant was stopped for a drug offense, so a search incident of his vehicle was likely to find drug evidence, and having people in the car was more likely to have that evidence destroyed. Commonwealth v. Young, 78 Mass. App. Ct. 548, 940 N.E.2d 885 (2011).*

01/08/11

Permalink 04:07:11 pm, by fourth, 633 words, 642 views   English (US)
Categories: General

D.Me.: Fire scene search does not depend just on threat to people

Clifford and Tyler on fire scene searches do not distinguish between protection of people and property. Here, a blood trail was also seen. United States v. Infante, 2011 U.S. Dist. LEXIS 1131 (D. Me. January 3, 2011):

Defense counsel distinguished Finnigin on grounds that, in that case, there had been a visible fire and, therefore, evidence of an ongoing process, whereas, in this case, there was none. He reasoned that whereas, in Finnigin, the existence of an ongoing process justified firefighters in entering the suspect’s house to ensure that the process (the fire) had been extinguished, in this case, firefighters only speculated, in the face of a lack of objective evidence, that any such process had transpired or was continuing to transpire in the defendant’s house.

The defendant construes First Circuit caselaw too narrowly in arguing that the emergency doctrine in no circumstance encompasses threats to property. The First Circuit itself has clarified that its list of examples of exigent circumstances “is not an exclusive compendium[.]” United States v. Martins, 413 F.3d 139, 146-47 (1st Cir. 2005). It has recognized that, pursuant to the emergency doctrine, “the police, in an emergency situation, may enter a residence without a warrant if they reasonably believe that swift action is required to safeguard life or prevent serious harm.” Id. (emphasis added). Other United States circuit courts of appeals have expressly recognized that, pursuant to the emergency doctrine, the prevention of destruction to property can justify warrantless entry of a residence. See, e.g., Hunsberger v. Wood, 570 F.3d 546, 555 (4th Cir. 2009) (emergency-doctrine inquiry is whether circumstances known to officer “would create an objectively reasonable belief that an emergency existed that required immediate entry to render assistance or prevent harm to persons or property within”) (citations and internal quotation marks omitted); Sheik-Abdi v. McClellan, 37 F.3d 1240, 1244 (7th Cir. 1994) (same). See also, e.g., United States v. Lawlor, 324 F. Supp.2d 81, 86 (D. Me. 2004) (“[W]hen policemen, firemen or other public officers are confronted with evidence which would lead a prudent and reasonable official to see a need to protect life or property, they are authorized to act on that information, even if ultimately found erroneous.”) (citation and internal punctuation omitted).

More importantly, the Supreme Court has recognized that, with respect to the firefighting function in particular, the need to enter a burning building and to remain for a reasonable period of time thereafter to determine the cause of the blaze on its face presents an exigency of sufficient proportions to justify warrantless entry. See, e.g., Michigan v. Clifford, 464 U.S. 287, 293 (1984) (“A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze. Moreover, in Tyler we held that once in the building, officials need no warrant to remain for a reasonable time to investigate the cause of the blaze after it has been extinguished. ... The aftermath of a fire often presents exigencies that will not tolerate the delay necessary to obtain a warrant or to secure the owner’s consent to inspect fire-damaged premises. Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases.”) (citation, footnotes, and internal quotation marks omitted). In so holding, the Court did not deem it necessary to parse whether the danger posed was to persons, property, or both.

Of course, in this case, as defense counsel repeatedly emphasized, the defendant’s house was not ablaze. Indeed, firefighters found no indicia whatsoever of an explosion or fire. Nonetheless, I conclude that the government has met its burden of demonstrating that there was “a reasonable basis, ... approximating probable cause, both to believe in the existence of [an] emergency and to associate that emergency with the area or place to be searched.” Beaudoin, 362 F.3d at 66 (footnote omitted).

Permalink 03:51:26 pm, by fourth, 245 words, 902 views   English (US)
Categories: General

S.D.Ala.: Probation search of computer was reasonable after visit revealed gun then potential CP magazine

Probation search of defendant’s computer was reasonable after finding first a gun and then “Family Lust” magazine indicating child pornography. United States v. Howard, 2011 U.S. Dist. LEXIS 975 (S.D. Ala. January 5, 2011):

Applying this balancing test results in a finding that the probation officers' search of Howard’s computer was reasonable. After entering Howard's home and seeing a gun in plain view, the officers were justified in continuing their search of the house for other illegal weapons. The continuation of the search resulted in finding the magazines. Upon discovering the magazines, it was not unreasonable for the probation officers to suspect that Howard might perpetuate this interest, i.e. Family Lust (Fathers and their Teenage Daughters), through the use of the internet. It was also reasonable to assume that this interest might have resulted in illegal activity on the computer. Thus, a search of his computer was reasonable under the circumstances.

The affidavit for the search warrant said that the CI’s drug transaction with the defendant was “at” his residence rather than “in,” but that does not show that there was no nexus to defendant’s house for the search warrant. United States v. Murrell, 2011 U.S. Dist. LEXIS 594 (M.D. Tenn. January 3, 2011).*

When defendant was lawfully ordered to the ground, he raised his hands, and the butt of a gun was visible in his waistband. That justified seizing the gun. United States v. Smith, 2010 U.S. Dist. LEXIS 138622 (W.D. Tenn. November 19, 2010).*

Permalink 03:37:48 pm, by fourth, 502 words, 416 views   English (US)
Categories: General

NE: Warrant for grass clippings was mooted by open fields and plain view

A warrant for grass clippings was essentially a moot point since it was possible to seize the grass and data about it under open fields or the plain view doctrine. State v. Meduna, 18 Neb. App. 792, 2011 Neb. App. LEXIS 2 (January 4, 2011) (opinion first withdrawn then reposted):

Initially, Meduna alleges that the trial court erred in denying his motion to suppress evidence illegally seized by Cook, the State’s rangeland management specialist. He argues that although Cook’s duty was to seize grass clippings as specified in the warrant, Cook decided to change course and attempted to determine the amount of cover on the land and the amount of utilization of the grasses. Meduna claims that this “data gathering” by Cook “far exceeded the scope of the warrant” and that, consequently, Meduna’s right to be free from unreasonable searches and seizures was violated. Brief for appellant at 8. We disagree for a number of reasons.

. . .

As Cook explained in his report on the range condition inventory at 3-Strikes Ranch, the original intention was to “clip standing plant material to estimate forage production for each site.” However, Cook was unable to do so because the grasses on the range were extremely sparse. Forced to improvise under the circumstances, Cook employed a different methodology. Instead of clipping grass, Cook tossed a hoop onto the ground at six different locations throughout Meduna’s ranch. He visually estimated the plant levels within the hoop at each site, took a “GPS reading” of his precise location, and photographed each observation point.

Meduna asserts that Cook’s visual estimation “far exceeded the scope of the warrant.” However, the affidavit in support of that warrant recites, as stated above, that “stocking rates for the pastures can be determined by the grass species and condition.” Thus, not only did Cook engage in less invasive activity than the warrant authorized because he did not seize any items from the ranch, his assessment as to the stocking rate for the range was contemplated by the affidavit upon which, Meduna does not dispute, probable cause for the search was established.

Moreover, under the open fields doctrine, Meduna had no reasonable expectation of privacy on the range. Pursuant to that well-settled legal principle, open fields do not provide the setting for those intimate activities that the Fourth Amendment is intended to shelter from government interference or surveillance. See State v. Ramaekers, 257 Neb. 391, 597 N.W.2d 608 (1999). Here, aside from the curtilage—that area so intimately tied to the home that an individual reasonably may expect that the area in question will be treated as the home itself—the range at 3-Strikes Ranch is an open field and is thus not protected from government inspection. See id. There is uncontroverted testimony from Edens at the November 10, 2009, suppression hearing that none of the six sites observed by Cook during his inventory of 3-Strikes Ranch are within the curtilage of Meduna’s home.

We additionally agree with the State that Cook’s observations were clearly admissible under the plain view doctrine.

01/07/11

Permalink 05:35:21 pm, by fourth, 218 words, 653 views   English (US)
Categories: General

CA1: "Do what you have to do" was consent

Defendant consented to the search of his car, and the district court credited the testimony of the officers and not him about consent. His statement “do what you have to do” was construed as consent [that’s kind of dangerous, isn’t it?]. In any event, there was probable cause and the automobile exception applied. United States v. Franklin, 630 F.3d 53 (1st Cir. 2011)*:

Franklin’s other primary argument on this point that the officers’ testimony is suspect because it is not corroborated by a consent form — likewise holds no water. A consent form certainly would have made the prosecution's task easier, but it was not necessary, and its absence does not undercut the officers' consistent testimony. Indeed, our case law is clear that “[w]ritten consent is not essential to the establishment of a valid consensual search.” United States v. Barnett, 989 F.2d 546, 555 (1st Cir. 1993).

A consent form was particularly unnecessary here given other evidence sufficient to establish consent: specifically, uncontested testimony that Franklin told the officers to “do what you got to do.”

Statement from the previously reliable known CI was sufficient on the totality of circumstances to show PC for the search warrant, and it was not “bare bones.” United States v. Patterson, 406 Fed. Appx. 773 (4th Cir. 2011) (unpublished),* cert. denied 2011 U.S. LEXIS 3525 (U.S., May 2, 2011).

Permalink 04:52:53 pm, by fourth, 107 words, 626 views   English (US)
Categories: General

"Dogs are like the Supreme Court. Often wrong."

On DrugWarRant.com by Pete Guither: Dogs are like the Supreme Court. Often wrong:

One of the worst Supreme Court decisions of recent years was Caballes v. Illinois, where Justice Stevens wrote for the majority that merely having a dog accuse you was enough to justify a 4th Amendment search with no other suspicion needed. He wrote:

A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

… and with that, he put the Supreme Court seal of approval on police fishing expeditions.

01/06/11

Permalink 04:50:28 pm, by fourth, 261 words, 666 views   English (US)
Categories: General

PCWorld: "Search Ruling Makes Smartphone Security More Crucial"

In regard to the California cell phone search incident case (posted here) see PCWorld's Search Ruling Makes Smartphone Security More Crucial by Keir Thomas:

From a civil liberties view, the issue whether a warrantless search of a personal electronic device is justified bearing in mind the Fourth Amendment.

However, from the standpoint of an IT professional it's merely a reminder that businesses need to both create and enforce policies regarding data storage on personal electronic devices. With the ability to work highly effectively from modern smartphones and tablets--something users of primitive handsets couldn't do just a few years ago--mobile data security has become a critical issue that can no longer be ignored.

Employees need to be aware that just because data is contained in electronic form on their phone, it is no less confidential and should be treated no less carefully than that on paper. Ideally, this should be written into employment contracts.

From a user's point of view, there's an easy solution to the problem if confidential data appears in text messages: Delete them after reading (and empty the trash folder, if necessary). Alas, we're not used to doing this and mobile phones don't encourage us to do so, making the procedure clumsy.

From a business perspective, to protect against data leaking out via SMS, it might be simpler to deactivate text messaging if the company is paying for the phone service. This is possible with many carriers. Additionally, some cell phone product lines such as BlackBerry allow the text messaging functionality to be deactivated (look under the Firewall settings).

Permalink 01:37:50 pm, by fourth, 569 words, 1242 views   English (US)
Categories: General

CA9: Cross-gender jail strip search during shakedown was unreasonable (6-5 en banc)

Cross-gender jail strip search during a cellblock shakedown that involved manipulation of genitals through underwear was unreasonable under the Fourth Amendment. Byrd v. Maricopa County Sheriff’s Department, 2011 U.S. App. LEXIS 86 (9th Cir. January 5, 2011) (6-5 en banc):

We approach this issue by reiterating our longstanding recognition that “[t]he desire to shield one’s unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir. 1963); see also Michenfelder, 860 F.2d at 333 (same); Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (distinguishing cross-gender searches that “are done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates’ bodies”) (emphasis added). It is not surprising that a connection has been made between cross-gender searches and the level of sexual impropriety between inmates and corrections personnel. See, e.g., Nicholas D. Kristof, Op-Ed., Kids in Crisis (Behind Bars), N.Y. Times, Jan. 28, 2010, at A33 (discussing a “stunning new Justice Department special report” finding that cross-gender assignments in prisons foster abuse of inmates by male and female officers); Connie Rice and Pat Nolan, Op-Ed, Policing Prisons, L.A. Times, Apr. 5, 2010, at A13 (citing to the June, 2009, National Prison Rape Elimination Commission Report (Commission Report)).

Applying the Bell factors in the context of our precedent recognizing the privacy interest of inmates in their personal dignity, giving credence to the compelling findings made by the Commission, and acknowledging the applicable accrediting standards, we conclude that the cross-gender strip search of Byrd was unreasonable as a matter of law. O’Connell touched Byrd’s inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts. She moved his penis and scrotum in the process of conducting the search. The scope of this intrusion totally thwarted any desire on Byrd’s part to “shield [his] unclothed figure from [the] view of strangers ... of the opposite sex ...” York, 324 F.2d at 455. The scope of the intrusion in this case far exceeds searches we have previously sanctioned and weighs in favor of a finding of unreasonableness.

. . .

The manner in which the search was conducted weighs in favor of a determination of unreasonableness. Byrd was searched by a female cadet who was dressed in jeans and a white t-shirt. Other than the name printed on the back of the t-shirt, the officer who conducted Byrd’s search was unidentified. Ten to fifteen non-participating officers watched the strip search, and at least one person videotaped the search. Although the dissent relies on the fact that the search was conducted “professionally,” see Dissenting Opinion, p. 396, we have consistently recognized the “‘frightening and humiliating’ invasion” occasioned by a strip search, “even when conducted ‘with all due courtesy.’” Way, 445 F.3d at 1160, quoting Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984) (per curiam). Furthermore, the dissent’s reliance on the jury’s finding that the manner of O’Connell’s search was appropriate because O’Connell “did not intentionally squeeze or knead Byrd’s penis or scrotum or improperly touch his anus through his boxer shorts,” Dissenting Opinion, p. 397, ignores the district court’s ruling that the cross-gender aspect of the search was constitutional as a matter of law. Thus, the jury was not deciding whether the manner of the search was appropriate despite being performed by a member of the opposite sex.

Permalink 07:19:51 am, by fourth, 600 words, 3511 views   English (US)
Categories: General

N.D.Ga.: Search incident of cell phone permitted because it could be remotely locked, but defendant consented [some] too

Because a cell phone can be remotely locked [we all know that an iPhone4 can be remotely wiped clean], a search incident of this cell phone was proper. Even so, the defendant consented to the officer looking at the phone to retrieve a number for him, and the officer kept looking. [Really a good plain view?] United States v. Rodriguez-Gomez, 2010 U.S. Dist. LEXIS 138369 (N.D. Ga. November 15, 2010):

There is no Eleventh Circuit authority directly on point. The holding in Park is the minority position among cases that have considered whether cell phones may be searched incident to a lawful arrest but without a search warrant. The majority of cases, however, “trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones.” United States v. Wurie, 612 F. Supp. 2d 104, 109-10 & n.9 (D. Mass. 2009)(collecting cases); see also United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (agreeing with the Fifth Circuit that “if a cell phone is lawfully seized, officers may also search any data electronically stored in the device.”). I will follow the majority of cases (and, in my opinion, the more persuasive authority) which hold that a warrantless search of a cellular telephone is properly executed as a search incident to arrest. See United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007)(noting that “[t]he permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person,” and declining to suppress text messages and call records obtained during a warrantless search of a cell phone incident to a lawful arrest); United States v. Young, 278 F. App’x 242, 245 (4th Cir. 2008)(upholding the accessing and copying of text messages from a phone during a search incident to an arrest “based upon ... the manifest need of the officers to preserve evidence....”); United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390, at *4 (N.D. Ga. Feb. 21, 2006) (concluding that the “legitimate concerns” of losing the data from the cell phones created “exigent circumstances [which] authorized the seizure of the cell phones and the search of their electronic contents.”).

Here, Officer Manning’s testimony provided a sufficient basis for this court to conclude that there was a risk that the phone could be remotely locked, or that the data on the phone could be remotely deleted, thus implicating the need to preserve evidence. Cf. United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008)(suppressing cell phone evidence in part because government failed to establish that text messages at issue would have been destroyed absent agent’s intervention). Also, the search of Defendant’s cell phone was sufficiently contemporaneous to Defendant’s arrest to be considered incident to his arrest. See Finley, 477 F.3d at 260 n.7 (finding that although police had moved the defendant, the search was “still substantially contemporaneous with his arrest and ... therefore permissible”). Officer Manning searched the cell phone at his earliest reasonable opportunity after arresting Defendant and taking him to the jail.

If remote locking of a cell phone is the issue, shouldn't the government have to prove that it is possible? Just because an iPhone4 can doesn't mean others can. The government bears the burden of proof on warrantless searches, so it should bear the burden here. If one accepts the premise that there was real exigency, then the search incident theory is a little stronger. But, it is still a computer, not just a phone. The cop here was looking at pictures when he was asked to look for a phone number.

Permalink 07:12:11 am, by fourth, 202 words, 3077 views   English (US)
Categories: General

W.D.Mo.: DNA found on abandoned styrofoam cup was not a search issue

Defendant discarded a styrofoam cup on which his DNA was found. This was an abandonment. United States v. Green, 2010 U.S. Dist. LEXIS 138284 (W.D. Mo. December 14, 2010).*

The consent search here was granted by a third party with apparent authority. United States v. Parker, 2010 U.S. Dist. LEXIS 138190 (D. Minn. December 10, 2010).*

Defendant consented to the search of his apartment. “Defendant signed a consent to search form that expressly informed him that he had a right to refuse consent. Moreover, the facts leading up to the giving of consent clearly establish that Defendant's will to resist a search was not overborne by the police.” United States v. Wallace, 2010 U.S. Dist. LEXIS 138443 (D. Minn. December 1, 2010).*

Officers were arresting defendant standing next to his wife’s car (in which he had standing) in the yard when a gun was seen in plain view. It was lawfully seized. United States v. Barrow, 2010 U.S. Dist. LEXIS 138373 (S.D. Fla. November 16, 2010).*

2255 petitioner’s contention that the original affidavit for search warrant did not exist was belied by the evidence in the case, and his attorney was not ineffective for not challenging it. Quang Van Nguyen v. United States, 2010 U.S. Dist. LEXIS 138470 (S.D. Ala. October 22, 2010).*

Permalink 07:05:37 am, by fourth, 314 words, 3139 views   English (US)
Categories: General

CA6: Defendant's jail strip search would have been valid, so dropping drugs was an abandonment

Defendant dropped drugs in the jail before his strip search. The court considered the validity of the strip search first to see whether the abandonment was caused by an illegal act, and it concluded that the strip search would have been valid. United States v. Warfield, 404 Fed. Appx. 994, 2011 FED App. 0002N (6th Cir. 2011)*:

Here, three facts justified the jail officers' reasonable suspicion that Warfield possessed drugs: (1) his prior drug conviction; (2) his refusal to submit to a search; and, most importantly, (3) the relayed information regarding Warfield's suspected possession of contraband, specifically through the alerting of the drug-detection dog. These considerations created reasonable suspicion that Warfield possessed drugs, and thus provided an adequate reason under Bell for the jail officers' strip-search of Warfield. Therefore, even assuming Warfield did not abandon the baggie of crack cocaine, the threatened strip-search of Warfield was reasonable under the totality of the circumstances and did not violate Warfield's right to be free of unreasonable searches and seizures under the Fourth Amendment.

Plaintiff inmate’s claim about illegal search was partly barred by Heck, but the two year statute of limitations barred it anyway. Chambers v. Hathaway, 406 Fed. Appx. 571 (3d Cir. 2011),* cert. denied 2011 U.S. LEXIS 3499 (U.S., May 2, 2011).

Forced DNA extraction from a California prison inmate required by statute for identifying information was not a violation of the Fourth or Eighth Amendments. Hamilton v. Brown, 630 F.3d 889 (9th Cir. 2011):

Here, DNA testing under the California DNA Act, like the federal law, is limited to the collection of identifying information. Cal. Pen. Code § 299.5 (limiting use of samples to criminal identification, exclusion of suspects, and identification of missing persons and imposing penalties for misuse). Having been convicted and incarcerated, Hamilton has no legitimate expectation of privacy in the identifying information derived from his DNA. Accordingly, the DNA identification at issue here is no more intrusive than that considered by the court in Kincade.

01/05/11

Permalink 10:41:27 am, by fourth, 392 words, 2876 views   English (US)
Categories: General

OH5: [Mere] possibiity a confederate saw defendant's arrest in car after leaving apartment justified warrantless entry

Officers were told by a CI of a sale of drug store pseudophedrine in exchange for meth and then destruction of the packaging. Officers following defendant saw him dispose of trash. They detained him, frisked him with probable cause and found a small quantity of meth. They took him back to his place and searched, then got a search warrant. The possibility that others involved could have seen defendant’s arrest and could destroy evidence justified the entry. State v. Channell, 2010 Ohio 6566, 2010 Ohio App. LEXIS 5428 (5th Dist. December 30, 2010)*:

[*P25] The informant told the detectives that appellant was getting ready to leave his apartment. Id. at 20. The detectives observed appellant leave and drive away. A traffic stop was initiated and appellant was returned to his apartment. The detectives believed if someone had observed the stop of appellant, they might have tipped off the remaining persons in the apartment. Id. at 22, 24. Upon this belief, detectives entered the apartment to secure it pending the issuance of a warrant.

[*P26] Detective Doug Bline testified upon entry to appellant's apartment, he observed a white bag with pseudoephedrine boxes and some drug paraphernalia (foil). A small amount of methamphetamine was found on an occupant in the apartment.

[*P27] The items seized were of little use in the prosecution of appellant's case. The exigent circumstances articulated by the police were sufficient to justify their entry for the protection of possible evidence. There were sufficient facts to establish that the items sold by the informant would be taken from the premises and it was likely the evidence from the sale would be destroyed. Also, given the stop of appellant in a high drug crime area, there was a reasonable belief that a tip could be made back to the apartment thereby causing further destruction of evidence.

The court to hear a motion to suppress is the one with jurisdiction in the criminal case and not the court that issued the search warrant where the counties are different. Flinn v. State, 354 S.W.3d 332 (Tenn. Crim. App. 2010).*

Police came to arrest defendant, and, when the door was opened, the officers could smell burning marijuana and see the defendant, and that was sufficient exigent circumstances for an immediate entry to protect the evidence from destruction since defendant knew their presence. United States v. McMillion, 2011 U.S. Dist. LEXIS 7 (M.D. Pa. January 3, 2011).*

01/04/11

Permalink 07:23:42 am, by fourth, 204 words, 2891 views   English (US)
Categories: General

OH2: Report of burglary in progress was exigency for entry

A report of neighbors that there was a burglary in progress in a house that was previously unoccupied for two weeks and seeing defendants running away from the house was exigency for an entry into the house to investigate additional suspects or victims. Drying marijuana was found. State v. Goodwin, 2010 Ohio 6480, 2010 Ohio App. LEXIS 5387 (2d Dist. December 29, 2010).*

Leaving stuff in an abandoned house was a waiver of any expectation of privacy. State v. Wilson, 56 So. 3d 375 (La. App. 5th Cir. 2010).*

Defendant validly consented to a BAC test. He was on probation, and he would have been revoked for refusing consent. State v. Hiner, 240 Ore. App. 175, 246 P.3d 35 (2010).*

Detailed report from identified CI was sufficient in itself to provide probable cause once corroborated. State v. Mitchele, 240 Ore. App. 86, 251 P.3d 760 (2010).*

Defendant’s girlfriend’s mother who was a co-lessee and paid the rent had sufficient common authority to consent to a search of their bedroom. People v Holmes, 2010 NY Slip Op 9683, 79 A.D.3d 1681, 913 N.Y.S.2d 480 (4th Dept. 2010).*

The 18 minute stop here for a window tinting citation was not unreasonably prolonged so the drug dog could get there 15 minutes after being called. [Right!] State v. Dewitt, 2010 Ohio 6476, 2010 Ohio App. LEXIS 5388 (2d Dist. December 29, 2010).*

Permalink 05:42:48 am, by fourth, 374 words, 3169 views   English (US)
Categories: General

OR: Entry onto the curtilage is presumptively a trespass, and the state could not justify it

Entry onto the curtilage is presumptively a trespass, and the state could not justify it. State v. Olinger, 240 Ore. App. 215, 246 P.3d 20 (2010):

Entry onto the property for purposes other than to contact persons at the front door, however, is a different matter. Such intrusions onto a home's curtilage are presumptively trespasses, unless the circumstances so strongly evince an invitation to the public that it can be said that the homeowner has implicitly invited entry. State v. Pierce, 226 Ore. App. 336, 343-45, 203 P.3d 343 (2009); Somfleth, 168 Ore. App. at 425; State v. Glines, 134 Ore. App. 21, 25, 894 P.2d 516, rev den, 321 Ore. 512, 900 P.2d 509 (1995).

In this case, the state argues that it is no less common or acceptable for the public (and thus the police) to be in an offshoot of a driveway with a parked car in it than it is for the public to be in the driveway itself, at least absent any evidence of the resident's intent to exclude the public from that area. Thus, in the state's view, we must presume that defendant implicitly consented to public entry into that area unless there is evidence that defendant intended to exclude the public, which, the state contends, there is not.

We disagree that that is the appropriate analysis. The presumption of implied consent to enter does not necessarily extend to all portions of a driveway. See Pierce, 226 Ore. App. at 345-46 (police did not have implied consent to walk up a driveway that extended along the side of the defendant's house and look in the backyard). The mere fact that the "offshoot" on which the car was parked may have been connected to, or part of, the driveway, is not dispositive. Rather, it is the location of the offshoot that matters. The uncontroverted evidence in the record here shows that the portion of the offshoot where the car was parked was on the side of the house—beyond the area in which implied consent is presumed.

Thus, Brown's entry into the area on the side of the house is presumptively a trespass unless there is evidence in the record of circumstances that evince implied invitation to the public to enter that area. The state points to no such evidence, and our review of the record reveals none.

Permalink 05:18:06 am, by fourth, 1762 words, 4414 views   English (US)
Categories: General

Cal: Cell phone may be searched incident to arrest; disagreeing with Ohio

California holds that a cell phone text message folder can be seized incident to arrest, 90 minutes into the arrest finding “binding Supreme Court authority,” albeit cases from the '70's before cell phones were even imagined. The police arrested the defendant after listening to an ecstacy sale on a wire. The cell phone was removed from his person. At the police station, the officer manipulated the phone to find the text message folder which had incriminating messages. People v. Diaz, 51 Cal. 4th 84, 244 P.3d 501, 119 Cal. Rptr. 3d 105 (2011):

Resolution of this issue depends principally on the high court’s decisions in Robinson, Edwards, and Chadwick. In Robinson, a police officer arrested the defendant for driving with a revoked operator’s permit. (Robinson, supra, 414 U.S. at p. 220.) The officer conducted a patdown search and felt an object he could not identify in the breast pocket of the defendant’s coat. He removed the object, which turned out to be a crumpled up cigarette package. He felt the package and determined it contained objects that were not cigarettes. He then opened the package and found 14 heroin capsules. (Id. at pp. 222-223.) The high court held that the warrantless search of the package was valid under the Fourth Amendment. (Robinson, supra, at p. 224.) It explained that, incident to a lawful custodial arrest, police have authority to conduct “a full search of the [arrestee’s] person.” (Id. at p. 235.) This authority, the court continued, exists whether or not the police have reason to believe the arrestee has on his or her person either evidence or weapons. “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search [of the person] incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and ... in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” (Ibid.) Applying these principles, the court held: “The search of [the defendant‟s] person ... and the seizure from him of the heroin, were permissible under established Fourth Amendment law. ... Having in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct. [Citations.]” (Id. at p. 236, fns. omitted.)

In Edwards, after lawfully arresting the defendant late one night for attempting to break into a post office, police took him to jail and placed him in a cell. (Edwards, supra, 415 U.S. at p. 801.) Ten hours later, suspecting that his clothes might contain paint chips from the window through which he had tried to enter, police made the defendant change into new clothes and held his old ones as evidence. (Id. at p. 802; see also id. at p. 810 (dis. opn. of Stewart, J.).) Subsequent examination of the old clothes revealed paint chips matching samples taken from the window. (Id. at p. 802.) The high court held that both the warrantless seizure of the clothes and the warrantless search of them for paint chips were valid as a search incident to lawful arrest. (Id. at pp. 802-809.) It expressly rejected the argument that, because the search occurred “after the administrative mechanics of arrest ha[d] been completed and the prisoner [was] incarcerated,” the search of the clothes was too remote in time to qualify as a search incident to arrest. (Id. at p. 804.) The court explained: “[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.” (Id. at pp. 807-808, fns. omitted, italics added.)

. . .

Under these decisions, the key question in this case is whether defendant’s cell phone was “personal property ... immediately associated with [his] person” (Chadwick, supra, 433 U.S. at p. 15) like the cigarette package in Robinson and the clothes in Edwards. ...

. . .

Moreover, in analogous contexts, the high court has expressly rejected the view that the validity of a warrantless search depends on the character of the searched item. ...

. . .

Regarding the particular focus of defendant and the dissent on the alleged storage capacity of cell phones, for several reasons, the argument is unpersuasive. First, the record contains no evidence regarding the storage capacity of cell phones in general or of defendant’s cell phone in particular. Second, neither defendant nor the dissent persuasively explains why the sheer quantity of personal information should be determinative. Even “small spatial container[s]” (dis. opn. of Werdegar, J., post, at p. 3) that hold less information than cell phones may contain highly personal, intimate and private information, such as photographs, letters, or diaries.

Also note 6:

Given our conclusion, we need not address the People‟s argument that an exigency existed because a cell phone‟s contents “are dynamic in nature and subject to change without warning — by the replacement of old data with new incoming calls or messages; by a mistaken push of a button; by the loss of power; by a person contacting the cellular phone provider; or by a person pre-selecting the “cleanup‟ function on the cellular phone, which limits the length of time messages are stored before they are automatically deleted.” We note, however, that the People have offered no evidence to support this claim. Nor have they offered evidence as to whether text messages deleted from a cell phone may be obtained from the cell phone‟s provider. (See Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence (2010) 50 Santa Clara L.Rev. 183, 199 [“text messages are feasibly accessible for about two weeks from the cellular provider”].)

Also mentioned in note 12 was the use of disposable cell phones by drug dealers. In note 17, the court compares other decisions:

Only a few published decisions exist regarding the validity of a warrantless search of a cell phone incident to a lawful custodial arrest. Most are in accord with our conclusion. (See, e.g., United States v. Murphy, supra, 552 F.3d at p. 412 [citing Edwards in holding that “once [the defendant’s] cell phone was held for evidence, other officers and investigators were entitled to conduct a further review of its contents ... without seeking a warrant”]; United States v. Finley (5th Cir. 2007) 477 F.3d 250, 260, fn. 7 [arrestee's cell phone “does not fit into [Chadwick’s] category of „property not immediately associated with [his] person? because it was on his person at the time of his arrest”]; United States v. Wurie (D. Mass. 2009) 612 F.Supp.2d 104, 110 [upholding delayed search of cell phone, finding “no principled basis for distinguishing a warrantless search of a cell phone from the search of other types of personal containers found on a defendant's person that” have been upheld under Edwards].)

In a closely divided (four to three) opinion, the Supreme Court of Ohio held otherwise, reasoning that “because a person has a high expectation of privacy in a cell phone’s contents,” police, after seizing a cell phone from an arrestee?s person, “must ... obtain a warrant before intruding into the phone's contents.” (State v. Smith (Ohio 2009) 920 N.E.2d 949, 955.) The Ohio court's focus on the extent of the arrestee’s expectation of privacy is, as previously explained, inconsistent with the high court’s decisions.

The court seems handcuffed by its constitutional limitations on following SCOTUS cases. It is hard to believe this is the court that came up with the gay marriage case a few years ago.

I go with the dissent on this one because the Supreme Court's cases all predate technology, and a cell phone is more like a computer than a mere “small spatial container”:

The potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects. A contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user’s telephone calls and Web browsing. Never before has it been possible to carry so much personal or business information in one’s pocket or purse. The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.

Although the record does not disclose the type of mobile phone defendant possessed, I discuss smartphones as well as other mobile phones for two reasons. First, the rule adopted by the majority — that an electronic device carried on the person is for Fourth Amendment purposes indistinguishable from an individual's clothing or a small spatial container — is broad enough to encompass all types of handheld electronic data devices, including smartphones such as iPhones and BlackBerry devices, as well as other types of handheld computers. While I disagree with the majority’s holding on the validity of the search here, I agree that the permissibility of a search incident to arrest should not depend on the features or technical specifications of the mobile device, which could be difficult to determine at the time of arrest. Second, smartphones make up a growing share of the United States mobile phone market and are likely to be pervasive in the near future. (See Gershowitz, The iPhone Meets the Fourth Amendment, supra, 56 UCLA L.Rev. at p. 29 [“It does not take a crystal ball to predict that such devices will be ubiquitous in the United States within a few years.”].) The question of when and how they may be searched is therefore an important one.

Hat tip to PogoWasRight. See Forbes Blog Why Your Cell Phone Is More Private in Ohio than in California.

01/03/11

Permalink 12:04:08 am, by fourth, 24 words, 2961 views   English (US)
Categories: General

Orin Kerr on Volokh Conspiracy on the Exclusionary Rule

01/02/11

Permalink 10:21:30 am, by fourth, 342 words, 3264 views   English (US)
Categories: General

Reason.com: "Abolish Drunk Driving Laws / If lawmakers are serious about saving lives, they should focus on impairment, not alcohol"

Abolish Drunk Driving Laws / If lawmakers are serious about saving lives, they should focus on impairment, not alcohol by Radley Balko in Reason Magazine:

Austin Police Chief Art Acevedo wants to create a new criminal offense: “driving while ability impaired.” The problem with the current Texas law prohibiting “driving while intoxicated” (DWI), Acevedo explained to the Austin-American Statesman in October, is that it doesn’t allow him to arrest a driver whose blood-alcohol content (BAC) is below 0.08 percent unless there’s additional evidence of impairment.

. . .

These constitutionally dubious checkpoints have become little more than revenue generators for local governments. When local newspapers inquire about specific roadblocks after the fact, they inevitably find lots of fines for minor infractions but few drunk drivers. In 2009, according to a story at the investigative journalism site California Watch and data from the University of California at Berkeley, 1,600 sobriety checkpoints in California generated $40 million in fines, $30 million in overtime pay for cops, 24,000 vehicle confiscations, and just 3,200 arrests for drunk driving. A typical nightly checkpoint would divert 20 or more cops from other tasks while yielding a dozen or more vehicle confiscations but only about three drunk driving arrests.

In addition to the Fourth Amendment issues raised by roadblocks, the Fifth Amendment right against self-incrimination has been turned upside down by state laws that instantly suspend the licenses of drivers who refuse to take roadside breath tests. Most manufacturers of breath test machines have refused to turn over their source code, meaning DWI defendants can’t assess the machines’ margin of error—a significant factor in a case where the difference between 0.80 and 0.79 for a first offense can mean $1,000 or more in fines, mandatory alcohol awareness classes, and loss of driving privileges for up to a year.

Blood tests are far more accurate, but by the time a driver is pulled over, questioned, taken to the nearest hospital, and had his blood drawn, his BAC may be significantly different from what it was when he was driving. Perversely, the time lapse can have the effect of protecting guiltier motorists.
...

Permalink 08:57:57 am, by fourth, 353 words, 2969 views   English (US)
Categories: General

NYT: "Computers That See You and Keep Watch Over You"

Yesterday's NYT: Computers That See You and Keep Watch Over You by Steve Lohr. The story is about "computer-vision" where computers analyze facial and body patterns, looking for helpful information. The story starts in with a prison training exercise where the computer is analyzing inmates' actions for signs of trouble.

A computer-vision system can watch a hospital room and remind doctors and nurses to wash their hands, or warn of restless patients who are in danger of falling out of bed. It can, through a computer-equipped mirror, read a man’s face to detect his heart rate and other vital signs. It can analyze a woman’s expressions as she watches a movie trailer or shops online, and help marketers tailor their offerings accordingly. Computer vision can also be used at shopping malls, schoolyards, subway platforms, office complexes and stadiums.

All of which could be helpful — or alarming.

“Machines will definitely be able to observe us and understand us better,” said Hartmut Neven, a computer scientist and vision expert at Google. “Where that leads is uncertain.”

. . .

Despite such qualms, computer vision is moving into the mainstream. With this technological evolution, scientists predict, people will increasingly be surrounded by machines that can not only see but also reason about what they are seeing, in their own limited way.

The uses, noted Frances Scott, an expert in surveillance technologies at the National Institute of Justice, the Justice Department’s research agency, could allow the authorities to spot a terrorist, identify a lost child or locate an Alzheimer’s patient who has wandered off.

The future of law enforcement, national security and military operations will most likely rely on observant machines. A few months ago, the Defense Advanced Research Projects Agency, the Pentagon’s research arm, awarded the first round of grants in a five-year research program called the Mind’s Eye. Its goal is to develop machines that can recognize, analyze and communicate what they see. Mounted on small robots or drones, these smart machines could replace human scouts. “These things, in a sense, could be team members,” said James Donlon, the program’s manager.

Permalink 08:13:36 am, by fourth, 315 words, 3056 views   English (US)
Categories: General

IL: When a probationer lives with a non-probationer, there must be RS a container is controlled by the probationer to search it

Living with a probationer reduces one’s expectation of privacy. There must be reasonable suspicion to believe that the object at issue was under the control of the probationer for a search to occur. People v. Seiler, 406 Ill. App. 3d 352, 943 N.E.2d 708 (2010):

The question then becomes whether Kelly violated defendant's fourth-amendment rights by removing the container from defendant's possession and opening it after defendant grabbed the container on a table in a common area of the house. Both parties agree this appears to be a question of first impression in Illinois. Both parties also agree on the proposition that, in order to search a particular item during a warrantless probation search, the probation officer must have reasonable suspicion the item in question is owned, controlled, or possessed by the probationer. See United States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991); People v. Boyd, 224 Cal. App. 3d 736, 744-45, 274 Cal. Rptr. 100, 105-06 (1990) (parole search); Milton v. State, 879 P.2d 1031, 1034-35 (Alaska App. 1994). We agree with this standard.

In this case, an objectively reasonable probation officer could have reasonably suspected this container was owned, controlled, or possessed by Owen. Defendant lunged toward a table in the common area of the residence and made a grabbing motion. The only item in defendant's hand was the bullet-shaped container. Defendant and Owen were both in the same area of the residence. The police had information both defendant and Owen had been using methamphetamine at the residence. Defendant either could not or would not identify the object in his hand. As a result, we cannot say defendant's fourth-amendment rights were violated by the search of the container.

Thus use of handcuffs on defendant was not justified by Terry but there was probable cause, so it was justified by his arrest. People v. Johnson, 408 Ill. App. 3d 107, 945 N.E.2d 2 (2010)* [This case has an excellent discussion of handcuffing and Terry under Illinois law.]

Permalink 12:01:04 am, by fourth, 132 words, 571 views   English (US)
Categories: General

WI: Consent form language “any letters, writings, paper, materials, or other property” included the home computer.

Consent form language “any letters, writings, paper, materials, or other property” included the home computer. “[C]lairvoyance cannot be expected of police officers to know in what form a defendant may maintain his records.” Commonwealth v. McDermott, 448 Mass. 750, 864 N.E.2d 471, 488-89 (Mass. 2007). State v. Jensen, 2011 WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482 (2010).

Defendant’s stop near the border was without reasonable suspicion, and his motion to suppress is granted. All of the factors of reasonable suspicion were innocuous, including driving carefully. United States v. Hernandez-Lopez, 761 F. Supp. 2d 1172 (D. N.M. 2010).*

The trial court erroneously granted the motion to suppress here because the officer going up the driveway was not required to have reasonable suspicion nor close his eyes to what he saw. State v. Seidl, 939 N.E.2d 679 (Ind. App. 2010).

01/01/11

Permalink 08:16:18 am, by fourth, 244 words, 717 views   English (US)
Categories: General

D.Me.: Weapons drawn during stop was not unreasonable under Terry

Guns and handcuffs on a defendant are not necessarily unreasonable. The officers have to show that they reasonably feared violence. United States v. Pontoo, 2010 U.S. Dist. LEXIS 136962 (D. Me. June 14, 2010)*:

While, in this case, there was no report that Austin was armed, the record bears out that Maillet and Michaud did actually fear for their safety, and that their fear was objectively reasonable. That Maillet and Michaud subjectively feared for their safety is evident from their actions: both Maillet and Michaud drew their weapons, Maillet parked his cruiser in such a manner as to afford himself cover, and Maillet immediately ordered the defendant into a felony-prone position, handcuffed, and pat-frisked him. That fear, in turn, was objectively reasonable in the circumstances: the individual whom they sought had harassed his ex-girlfriend throughout the night, previously appeared agitated, and now reported at 3:30 in the morning that he had committed murder at the location of her address. Officers were permitted to draw a reasonable inference that he might be carrying a deadly weapon and to take the precautions actually taken. See, e.g., United States v. Bullock, 510 F.3d 342, 346, 379 U.S. App. D.C. 114 (D.C. Cir. 2007) ...; United States v. Stewart, 388 F.3d 1079, 1085 (7th Cir. 2004) ...; United States v. Tilmon, 19 F.3d 1221, 1228 (7th Cir. 1994) ....

Defendant’s casting off drugs while he’s running away from the police was a lack of standing to challenge their seizure. United States v. Pearce, 2010 U.S. Dist. LEXIS 136961 (D. Me. June 15, 2010).*

Permalink 07:32:45 am, by fourth, 120 words, 593 views   English (US)
Categories: General

CA3: Pointing gun at officers during knock-and-talk was exigency

Defendant’s opening door during a knock and talk pointing a gun out the door was exigent circumstances for an immediate entry to disarm him. United States v. Butler, 405 Fed. Appx. 652 (3d Cir. 2010) (unpublished) [This case was pending 43 months.]

The off-site search of defendant’s computer for child pornography was not unreasonable because it would take too long. United States v. Botta, 405 Fed. Appx. 196 (9th Cir. 2010) (unpublished).*

Defendants were stopped for following too close and there was reasonable suspicion from the totality of the circumstances. The officer’s admittedly “friendly tone” was not constitutionally suspect. Consent to search led to a hidden compartment, and the consent was valid. United States v. Ramirez, 2010 U.S. Dist. LEXIS 137052 (W.D. Ark. December 15, 2010).*

Permalink 07:18:04 am, by fourth, 326 words, 713 views   English (US)
Categories: General

CA7: Failure to make a detailed inventory not a Fourth Amendment violation

The impoundment of the car in this case was reasonable because the passenger/owner of the car was unlicensed and unable to drive or readily find an alternative. Failure to make a complete record of everything in the car is not a Fourth Amendment violation. United States v. Cartwright, 630 F.3d 610 (7th Cir. 2010):

Finally, Cartwright argues that Barleston did not conduct the inventory search properly, failing to make a complete list of the property he found in Golliday's car. While Cartwright correctly points out that IMPD policy required Barleston to make such a list, Barleston's failure to do so does not undermine the proposition that the police would inevitably have found the gun through a lawful inventory search. In determining whether the inevitable discovery doctrine applies, the court considers a hypothetical situation. Of course, by the time Barleston conducted the actual inventory search here, the gun had already been seized, and Cartwright was already under arrest. But the district court found, based on the evidence and the IMPD policy, that an inventory search would have been conducted and that the gun would have been found pursuant to such a search. The evidence supports that conclusion. In any event, we have held that minor deviations from department policy do not render an inventory search unreasonable. See United States v. Lomeli, 76 F.3d 146, 148-49 (7th Cir. 1996).

Defendant was not asked for consent but a third party consenter was. Without an express refusal by defendant, Randolph does not apply. United States v. Smith, 2010 U.S. Dist. LEXIS 136669 (E.D. Tenn. November 23, 2010), adopted 2010 U.S. Dist. LEXIS 136709 (E.D. Tenn. December 27, 2010).*

The officer's assertion at the time of arrest that defendant was being arrested for having a Mexican driver’s license, which was a mistake of law, does not defeat the arrest because the officer also had PC to believe that the defendant was involved in drug trafficking. United States v. Baldenegro-Valdez, 2010 U.S. Dist. LEXIS 136881 (W.D. Mo. November 10, 2010).*

Permalink 07:01:14 am, by fourth, 186 words, 614 views   English (US)
Categories: General

TX2: Telephone call from jail was PC for SW for forfeitable money

Defendant was arrested on drug charges and made a telephone call from jail telling an unknown person where “the money” was. Police got a search warrant for that place to seize the money as forfeitable property. Officers could execute the search warrant outside the city limits under Texas law. $27,877.00 v. State, 331 S.W.3d 110 (Tex. App.–Ft. Worth 2010).*

Defendant would not have won the suppression motion that defense counsel did not file on his behalf; therefore, he was not prejudiced by the alleged ineffectiveness. State v. Milby, 2010 Ohio 6344; 2010 Ohio App. LEXIS 5305 (2d Dist. December 23, 2010).*

Anonymous report that defendant was suicidal and had a gun in his vehicle was an insufficient basis for a stop. Only the officer involved in the stop testified at the suppression hearing, and he had no factual basis for the radio call. State v. Dunn, 2010 Ohio 6340, 2010 Ohio App. LEXIS 5310 (2d Dist. December 23, 2010).*

Defendant had not been detained long before he consented to the search of his car. This was not a question of refusal of consent with repeated requests extending the stop. State v. Riddlebaugh, 2010 Ohio 6345, 2010 Ohio App. LEXIS 5308 (2d Dist. December 23, 2010).*

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by John Wesley Hall
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    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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