Archives for: February 2011

02/28/11

Permalink 08:24:55 am, by fourth, 163 words, 2964 views   English (US)
Categories: General

D.Minn.: PC shown for SW for cell phone in drug case

The affidavit for the search warrant for defendant’s cell phone showed more than a “fair probability” that evidence of drug dealing would be found there. United States v. Jauregui, 2011 U.S. Dist. LEXIS 18385 (D. Minn. February 9, 2011).*

Merely because the officer gets the driver out of the car and summons him back to the patrol car for a few questions and leaves the passenger does not make a stop unreasonable. United States v. Legge, 2011 U.S. App. LEXIS 3693 (10th Cir. February 23, 2011) (unpublished).*

Collectively, the information showed reasonable suspicion: inconsistent travel plans, third party rental car, nervousness (a minor factor), except this was excessive, and prior drug arrest (a minor factor). Consent was valid. United States v. Davis, 636 F.3d 1281 (10th Cir. 2011).*

The district court correctly denied defendant’s motion to suppress on an alternate ground, so defense counsel could not be ineffective for not further pressing the other ground which would not have mattered. United States v. Smith, 415 Fed. Appx. 826 (9th Cir. 2011) (unpublished).*

Permalink 07:47:23 am, by fourth, 160 words, 3020 views   English (US)
Categories: General

M.D.Ala.: Defendant's claim of joint control for standing devolves to driver consenting

Defendant had standing over his own detention on the side of the road as a passenger. While the question of standing in the car is more complicated, the driver consented and was a joint operator under defendant’s theory. The length of the detention on the side of the road was not unreasonable under circuit law. United States v. Herrera, 2011 U.S. Dist. LEXIS 18416 (M.D. Ala. January 5, 2011).* The driver’s case on reasonable suspicion is United States v. Herrera, 2011 U.S. Dist. LEXIS 18458 (M.D. Ala. February 24, 2011).*

Defendant’s § 2255 fails. On the search claim, because it depended on an assertion that the affidavit did not incorporate something, but it did. Haque v. United States, 2011 U.S. Dist. LEXIS 18235 (N.D. Ohio February 24, 2011).*

The knock and talk here was valid and not oppressive. It wasn’t at night and there wasn’t prolonged knocking or questioning. Defendant consented. United States v. Ramirez-Fuentez, 2011 U.S. Dist. LEXIS 18430 (N.D. Ind. February 23, 2011).*

02/27/11

Permalink 08:34:02 am, by fourth, 284 words, 3560 views   English (US)
Categories: General

PA: Without showing what, stuff hanging from a rearview mirror does not justify a stop

Defendant was stopped for some unexplained thing that was hanging from his rearview mirror which, in the testimony of the officer allegedly “materially” obstructed the driver’s view. The statute doesn’t prohibit anything hanging from the mirror, just things that materially obstruct view. Without testimony as to what it is, the stop was unjustified. Commonwealth v. Holmes, 609 Pa. 1, 14 A.3d 89 (Pa. 2011):

Finally, we note there are myriad objects which drivers commonly hang from their rearview mirrors. Air fresheners; parking placards; mortarboard tassels; crosses; rosary beads; medallions of St. Christopher, the patron saint of travel; and rabbits’ feet are but a few. It is not illegal for a driver to hang such items from his or her rearview mirror, so long as the items do not materially obstruct the driver’s view. The legislature could have written Section 4524(c) to prohibit a driver from hanging any object from the vehicle’s rearview mirror, or it could have prohibited hanging objects that obstruct a driver’s view to any degree, but it did not; rather, it prohibited only material obstructions. Were this Court to conclude that an officer’s bare testimony that he saw an object hanging from a rearview mirror which obstructed the driver’s view, without any additional testimony or other evidence supporting the officer’s conclusion that the object materially obstructed the driver’s view, was sufficient to demonstrate reasonable suspicion to constitutionally support the intrusion of a vehicle stop, we would obviate the suppression court’s role in ensuring there is an objectively reasonable basis for the vehicle stop, and expose every law-abiding motorist who hangs an object from his or her rearview mirror to a potentially unwarranted intrusion. See Terry.

Permalink 08:24:49 am, by fourth, 216 words, 2946 views   English (US)
Categories: General

D.Alaska: Defendant had guest standing, but not enough exclusivity to prevent third party consent over the room

Defendant had guest standing but did not have sufficient exclusive control over the room he was staying in such that the principal occupant of the premises couldn’t consent to a search of the room. The consenter came and went through the room during the day keeping his own stuff there. United States v. Noyola-Martinez, 2011 U.S. Dist. LEXIS 18075 (D. Alaska February 22, 2011).*

The undisputed evidence was that defendant consented to the search of his property, so his lawyer was not ineffective for not challenging it. Jones v. United States, 2011 U.S. Dist. LEXIS 17264 (W.D. Mo. February 22, 2011).*

The search warrant in this case was issued by a state judge on a state officer’s application. While the product of the search led to a federal indictment, it was a state search governed by state law so Rule 41 does not apply. But, even if it did, there are two types of Rule 41 violations: constitutional violations and all others. United States v. Simons, 206 F.3d 392 (4th Cir. 2000). This is not a constitutional violation. This was an investigation of a violation of a burglary that produced a sawed-off shotgun which is also a violation of federal law. The search warrant made this a lawful plain view. United States v. Bryan, 2010 U.S. Dist. LEXIS 141565 (N.D. W.Va. December 2, 2010).*

02/26/11

Permalink 09:58:00 am, by fourth, 712 words, 3623 views   English (US)
Categories: General

M.D.Fla.: Judge's failure to sign search warrant not fatal

A state judge’s inadvertent failure to sign the search warrant was not fatal to the search. It was apparent after the hearing that the officer appeared before the judge and the judge considered whether there was probable cause. United States v. Martin, 2011 U.S. Dist. LEXIS 17639 (M.D. Fla. February 4, 2011):

Here, the initial question presented by the Defendant is whether Judge Green “issued” the search warrant after she made a probable cause determination, but inadvertently failed to sign the search warrant. A number of lower courts have examined the issue of whether an unsigned search warrant is “issued” within the meaning of the Fourth Amendment with varying results, and this Circuit is silent as to the effect of an unsigned warrant. See e.g., United States v. Evans, 469 F.Supp.2d 893 (D. Mont. 2007) and U.S. v. Jackson, 617 F.Supp.2d 316 (M.D.Pa. 2008). A review of the text of the Fourth Amendment itself reveals that there is no requirement that the issuing authority sign the search warrant. U.S. Const. amend. IV. Further, Rule 41 of the Federal Rules of Criminal Procedure also does not require the issuing judicial authority to sign the search warrant when the search warrant is applied for in person. However, a judicial officer’s signature on a search warrant is the surest and likely best method for indicating that the search warrant was issued upon a finding of probable cause by a neutral and detached authority. But the issuance of a search warrant under the Fourth Amendment is not synonymous with a judicial officer’s signature. See United States v. Hondras, 296 F.3d 601, 602 (7th Cir.2002) (stating that issuance is “not synonymous with signing”). In the absence of a signature, courts have looked at other evidence to determine if a search warrant was issued, to include: “(1) an indication on the warrant of the date before which the search must be conducted, (2) the presence of a case number indicating that the warrant has been filed, (3) the presence of the issuing authority’s initials or other imprimaturs of judicial authority on the warrant, and (4) an in-person acknowledgment by the issuing authority to the affiant that probable cause has been found.” Jackson, 617 F.Supp.2d at 320-21 (citations omitted).

In this case, the Court is satisfied that there is more than sufficient evidence to establish that the search warrant was issued. First, although the Search Warrant was unsigned, the face of the warrant does reveal a number of other imprimaturs of judicial authority to be included: (1) the Search Warrant was required to be executed and returned “within ten (10) days of the date hereof,” (2) the Search Warrant reflects Judge Green’s handwritten date of May 27, 2010, as the date which started the ten day period for the warrant to be executed and returned, and (3) the Search Warrant indicates based upon Judge Green’s handwritten information that the Search Warrant was authorized by a “Judge of the County/Circuit Court In and for Polk County, Florida.” Gov. Ex. 1 at 23. 8 Additionally, the Application for Search Warrant also exhibits a strong indicia of issuance because it is signed and executed by both Deputy Hill and Judge Green, and it is also dated May 27, 2010. Id. at 22. More notably, the Application for Search Warrant also contains a stamp and the signature of Judge Green’s Judicial Assistant indicating that the warrant had been returned on June 2, 2010, and each page of the Application for Search Warrant packet is imprinted with “Filed Polk County Clerk of Court 2010-09-03 14:33,” indicating that the documents were filed in the ordinary course of the court’s business. Gov. Ex. No. 2. 9 Further, beyond the face of the documents contained in the application for search warrant packet, Judge Green, after reviewing the entire packet in the presence of Deputy Hill, verbally acknowledged to Deputy Hill that she found sufficient probable cause to authorize the requested search of the Defendant’s residence. This fact is magnified by Judge Green’s testimony during the January 19th hearing, and her December 6, 2010 Affidavit (Dkt. No. 38, Att. 2), both in which Judge Green stated in no uncertain terms that although she inadvertently failed to sign the Search Warrant, she did review the entire application for search warrant packet, and did authorize/issue the Search Warrant for the Defendant’s residence.

Permalink 09:09:37 am, by fourth, 207 words, 2889 views   English (US)
Categories: General

IL: RS justified some detention, but after consent refused, 25 minute delay for drug dog was unreasonable

The officer had reasonable suspicion to get defendant out of her car and talk to her because of an obstructed windshield. She fumbled for her DL and was nervous. The officer fished around for consent for 13 minutes and didn’t get it. Only then did she call for the drug dog, and it didn’t arrive for 25 minutes. That delay made the stop unreasonable. People v. McQuown, 407 Ill. App. 3d 1138, 348 Ill. Dec. 332, 943 N.E.2d 1242 (2011).*

Defendant was stopped in a high crime area after an apparent drug deal happened in the vehicle. The officer saw cocaine in the vehicle, so the car was validly searched under the automobile exception or a protective sweep. State v. Popp, 2011 Ohio 791, 2011 Ohio App. LEXIS 675 (12th Dist. February 22, 2011).*

Officers observed an apparent drug deal from a car, and approached, and the defendant tossed a baggy away, which was thus abandoned. State v. Soto, 2011 Ohio 785, 2011 Ohio App. LEXIS 670 (8th Dist. February 17, 2011).*

Defendant was stopped for a traffic offense and he was apparently under the influence. When he couldn’t find his DL, the officer noticed pills in his wallet as he fumbled with it. He admitted he had no prescription. The arrest was with probable cause. Wilson v. State, 2011 Ga. App. LEXIS 115 (February 22, 2011).*

02/25/11

Permalink 07:30:49 am, by fourth, 405 words, 3832 views   English (US)
Categories: General

OK: Tax assessor cannot enter home for purposes of valuing real property

Oklahoma tax assessor cannot enter home for purposes of valuing real property. Atkinson v. Gurich, 2011 OK 12, 248 P.3d 356 (2011):

[*P1] The issue presented is whether the trial court abused its discretion in ruling that the county assessor can enter the home of a taxpayer who challenged the assessor's fair market value assessment. The fourth amendment of the United States Constitution, and art. 2 § 30 of the Okla. Const., protect the right of the people to be secure in their houses and effects against unreasonable searches. These protections are incorporated into 68 O.S. 2001 §2818 (C)(1) and (D) which prohibit the county assessor from entering the home of a taxpayer, unless the taxpayer requests a visual inspection of household personal property because its value is disputed. Because Oklahoma County no longer taxes household personal property there is neither a reason nor a right allowing the assessor to enter residential property. Accordingly, we hold that: 1) in the absence of a dispute over the valuation of household personal property and a request by the taxpayer, 68 O.S. 2001 § 2818(C)(1) and (D) do not authorize the County Assessor to enter residential property; and 2) 12 O.S. Supp. 2008 § 3234(A)(2) of the Oklahoma Discovery Code does not provide an exception when entry to residential property is otherwise explicitly precluded by statute.

. . .

[*P9] This cause concerns a dispute over the valuation of fair market value, the taxable market value, and the gross assessed value, not a valuation of household personal property. No other statute, and neither the Oklahoma constitution nor the United States Constitution allow such governmental intrusion. Here, there is no dispute over household personal property and Oklahoma County does not collect taxes on household personal property.

[*P10] Instead, fair market valuation of residential property is conducted pursuant to 68 O.S. 2001 § 2829 which sets forth the mass appraisal methodology as a process which uses known information about the property's characteristics such as location, use, size, sales price and other information from similar properties. The county assessor is required to physically visit the property every four years and, by the assessor's own admission, private residences are not entered during the valuation process. There is no information to be gained by entering the taxpayer's home that is necessary for a fair market valuation. Even if the inside of the taxpayer's home is lavish it is likely that the home would just be over-built for the area and the taxpayer would have invested more into the home than its fair market value.

Permalink 07:17:16 am, by fourth, 206 words, 3066 views   English (US)
Categories: General

E.D.Tenn.: Protective sweep of outbuilding during execution of arrest warrant was reasonable

Officers present with an arrest warrant also did a protective sweep of an outbuilding on defendant’s property; it was justified by reasonable suspicion that another person could have been there. United States v. Carpenter, 2011 U.S. Dist. LEXIS 16862 (E.D. Tenn. January 11, 2011).*

Officers came upon a group of men standing in a parking lot, but it was non-confrontational and nobody was asked for their ID. Officers then developed reason to believe that one of them could have been armed, and that justified a frisk of that man. United States v. Tuggle, 2010 U.S. Dist. LEXIS 141528 (W.D. Tenn. December 30, 2010).*

Defendant’s Franks challenge fails because the omitted information had nothing to do with the probable cause that already existed. When the police entered with a search warrant for a counterfeiting operation, a shotgun found was then in plain view because they were authorized to be there by the search warrant. United States v. Bryan, 2011 U.S. Dist. LEXIS 17250 (N.D. Va. February 22, 2011).*

Defendant’s allegation that he was employed merely to clean the house that was searched was a showing that he did not have standing to challenge a search of the premises. United States v. Twiggs, 2011 U.S. Dist. LEXIS 17003 (E.D. Pa. February 17, 2011).*

Permalink 07:02:18 am, by fourth, 420 words, 3101 views   English (US)
Categories: General

E.D.Tenn.: Entry onto curtilage to ask questions about nearby crime was reasonable

Entry onto defendant’s rural property to both turn around and then investigate a crime that occurred nearby was an entry onto the curtilage, but it was reasonable. “No Trespassing” sign alone was not completely determinative. Once there, the officer saw a vehicle of interest. United States v. Conyers, 2011 U.S. Dist. LEXIS 16872 (E.D. Tenn. January 21, 2011):

As sacred as the home is, society is not willing to accept as reasonable an expectation that a police officer may not question a resident of a dwelling to ascertain if that resident has any information regarding the commission of a criminal act that occurred nearby, or evidence of a criminal act which was discovered nearby. Stated another way, it is not unreasonable for a police officer to come upon private property, even in the face of a no trespassing sign, to ask if the resident has any information that will aid in the investigation of a crime.

Further, the somewhat arcane issue of curtilage comes into play. Although the court does not recall if there was any testimony regarding the distance from the gate to the house, it clearly was a significant distance as shown by the aerial photographs filed as exhibits. In determining the extent of the curtilage, “the primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home.” United States v. Dunn, 480 U.S. 294, 301, fn. 4, 107 S. Ct. 1134, 94 L. Ed. 2d 326. (italics supplied). Defendant’s Keep Out-No Trespassing Sign does not, in and of itself, establish the extent of the curtilage; if it did, there are ranches in Texas containing thousands of acres that could be entirely encompassed within a home’s curtilage merely by the erection of a “keep out” sign at the perimeter. Id., 304. To state it succinctly, defendant’s curtilage did not start at his gate, and neither did it start until a point long after Detective Woods was able to see the Jeep which was in plain view.

So, when Detective Woods went upon defendant’s property on September 28, he was (1) looking for a place to turn his vehicle around, and (2) seeking anyone who might have knowledge of the evidence found in the woods alongside Nations Road. This was not entry upon defendant’s property that violated defendant’s reasonable expectation of privacy. Additionally, Detective Woods was well outside the curtilage when he was able to observe the Jeep. For either of these reasons, Detective Woods’ entry was not a violation of the Fourth Amendment.

02/24/11

Permalink 03:31:03 pm, by fourth, 174 words, 2901 views   English (US)
Categories: General

W.D.Tenn.: Giving DL back de-escalated stop, and consent thereafter was valid

Officers saw 8-10 men congregated on a closed grocery store parking lot, and it was reasonable to approach them to see what was going on. The officer asked for defendant’s ID and gave it back. That de-escalated the stop. Defendant finally consented to a search of his car, and it was not an involuntary consent. United States v. Tuggle, 2011 U.S. Dist. LEXIS 16874 (W.D. Tenn. February 18, 2011).*

While pretextual stops violate Washington law, speeding through a residential neighborhood was sufficient basis for a stop. State v. Weber, 159 Wn. App. 779, 247 P.3d 782 (2011).*

The stop and search of defendant’s car was based on the fact it was apparent that he was doing counter surveillance for a vehicle carrying drugs. He was watched as he paced the other car, stopping when it did. United States v. Slone, 636 F.3d 845 (7th Cir. 2011).*

Defendant was properly denied a hearing in his § 2255 on his IAC search claim because he had no standing to question the search. Edmonds v. United States, 2011 U.S. Dist. LEXIS 17054 (M.D. Ga. February 22, 2011).*

Permalink 03:20:51 pm, by fourth, 245 words, 2897 views   English (US)
Categories: General

OH4: Dog alert on car justified a patdown of the driver and passenger

Dog alert on car justified a patdown of the driver and passenger. State v. Williams, 2011 Ohio 763, 2011 Ohio App. LEXIS 657 (4th Dist. February 15, 2011).

Gant could not be used as a new rule of criminal procedure to reopen post-conviction proceeding nine years later. Besides, the search was with probable cause. People v. Tripp, 407 Ill. App. 3d 813, 348 Ill. Dec. 452, 944 N.E.2d 405 (2011).*

Law requiring putting stickers on a car to identify the driver as under 21 did not violate, inter alia, the Fourth Amendment because there is no reasonable expectation of privacy in the age of the operator. Trautmann v. Christie, 418 N.J. Super. 559, 15 A.3d 22 (2011), aff'd per curiam 211 N.J. 300, 48 A.3d 1005 (2012).

State just barely showed reasonable suspicion. Defendant was walking back and forth near a closed business in a high crime area late at night with his hand in his pocket.
State v. Francis, 60 So. 3d 703 (La. App. 4th Cir. 2011):

[W]e are unable to conclude that the trial court abused its discretion in finding under the totality of the circumstances that the officers had reasonable suspicion to warrant their belief that Mr. Francis was involved in (or was about to be involved in) some kind of criminal activity. These circumstances demonstrate at least a minimal level of reasonable suspicion to interfere with Mr. Francis’ freedom of movement and to support a valid stop. Thus, we do not find that the trial court abused its discretion in finding that the officers had reasonable suspicion for the stop.

Permalink 03:07:51 pm, by fourth, 254 words, 3079 views   English (US)
Categories: General

Cal: Objective belief that people might be in danger justified entry into locked bedroom

Officers had an objective belief that there were shooting victims in a locked room, so the police were justified in entering the room. They were already lawfully in the house on exigency. People v. Troyer, 51 Cal. 4th 599, 51 Cal. 4th 599, 246 P.3d 901 (2011):

Accordingly, some courts have held that any probable cause requirement is automatically satisfied whenever there is an objectively reasonable basis for believing that an occupant is in need of emergency aid. ... Other courts have reasoned that the concept of probable cause simply has no role in the analysis of a warrantless entry into a residence under the emergency aid exception. ... We decline to resolve here what appears to be a debate over semantics. Under either approach, and in light of the fact that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” our task is to determine whether there was an objectively reasonable basis for believing that an occupant was seriously injured or threatened with such injury. (Brigham City v. Stuart, supra, 547 U.S. at p. 403; ...

The record amply supported an objectively reasonable belief that one or more shooting victims could be inside the house. Police dispatch stated that shots had just been fired “at” 9253 Gem Crest Way, and, indeed, Sergeant Albright’s observations of the blood at the scene indicated that a shooting had occurred “mere feet [from] or within the doorway area.” Bloodstains on the door signaled that a bleeding victim had come into contact with the door, either by entering or by exiting the residence. ...

[Note: Numerous cases are omitted.]

Permalink 12:12:47 am, by fourth, 470 words, 4516 views   English (US)
Categories: General

250th anniversary of Otis's Writs of Assistance argument in Paxton's Case

Today is the 250th anniversary of James Otis’ argument at the Boston Old State House against the writs of assistance in Paxton’s Case, heard Tuesday, February 24, 1761. (See this prior post from 2006). According to John Adams (see prior link), the issues and presentation in this writs of assistance case led to the adoption of the Fourth Amendment in 1791. Otis apparently was the first to say it in an American courtroom. Also for further reading is the excellent M. H. Smith, The Writs of Assistance Case (University of California Press, 1978). This is the only full-length book on Paxton's case, and it reprints many original documents. It is, of course, out of print, but it can be obtained from used booksellers (see here). I got a copy years ago for $25.

The argument is here, and it is stirring reading when one considers the abuse of the writs of assistance at the time.

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and, when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath-day Acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, “Yes.” “Well then,” said Mr. Ware, “I will show you a little of my power. I command you to permit me to search your house for uncustomed goods” -- and went on to search the house from the garret to the cellar; and then served the constable in the same manner!

Other apparent transcripts of the argument are here and here.

Today is also the eighth anniversary of this blog; 5300 posts, at least 20,000 cases read, and over 3,500,000 visits. The start date of this blog and Otis’s argument may have been coincidental. Maybe it was subconscious on my part.

Permalink 12:01:20 am, by fourth, 445 words, 2906 views   English (US)
Categories: General

Letter from a reader showing why this blog exists

A letter from a reader, reprinted with permission, but redacted to remove identifiers:

I had an appeal in [my state], [citation omitted], concerning whether a seizure or a consensual encounter had occurred, and the law in [my state] on the subject was, well, not good. I found the XXXX decision on your site, and used it to cite several out of state decisions in support.

Surprisingly, we won, and the court even cited all of the out of state decisions. I may not have seen the decision without your blog, and your work has been essential in shifting the law in [my state]. The case is now cited both federally and around the state, and we are all thankful.

I look at your site on a daily basis, and keep up the good work.

In some areas of Fourth Amendment or state search and seizure law, you can find opposing cases on the same subject between states and sometimes in the same state. As a quote in the sidebar says:

"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).

It still doesn't. After studying the Fourth Amendment in earnest for the last 35 years, yet still practicing law, I see cases several times a week that I find unfathomable, motivated by result oriented jurisprudence or just by a judge's hatred for the right to privacy being granted to an accused criminal, thinking that the police should have near free rein over the citizenry.

I started spending the time on this blog, an average of 90 minutes a day, despite my day job, to educate lawyers and judges about this exceedingly arcane and complicated area of the law. I see pointless motions to suppress, but, hey, sometimes we have to file them. I also see overtly duplicitous decisions from courts involving creation of legal fictions, and, when I really disagree, I say so. Sometimes I just bite my tongue.

The website early became searchable. Not as good as Lexis or Westlaw, but something. I added a list of SCOTUS cases with citations over a year ago so lawyers could more readily find cases helping their cause, and over 250 SCOTUS cases cite the Fourth Amendment.

The original plan was to help me work on the Fourth Edition of Search and Seizure. For all the time I've spent here, I could have rewritten it four times. This blog is a job unto itself.

I average 50,000 visits a month. Letters like this prove that people actually benefit, and the law gets better, more uniform, somewhat. That makes it all worthwhile.

02/23/11

Permalink 06:40:50 pm, by fourth, 280 words, 3086 views   English (US)
Categories: General

New law review article: "The Political Fourth Amendment"

Thomas P. Crocker, The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010). Abstract:

The Political Fourth Amendment builds on Justice Ginsburg’s recent dissent in Herring v. United States to argue for a “more majestic conception” of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution’s protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment’s textual purpose is to secure a “right of the people,” which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect the “right[s] of the people.” Narratives focused on regulating police or protecting privacy each risk blinding us to the Fourth Amendment’s broader constitutional setting. By looking at the historical origins of the Fourth Amendment in relation to substantive First Amendment concerns, and examining the textual significance of protecting a “right of the people,” this Article argues that the two dominant narratives overlook a central political purpose of the Fourth Amendment. The political Fourth Amendment seeks to protect the political liberties of the sovereign “People.” Focused exclusively on protecting privacy by regulating police practice, current Fourth Amendment doctrine offers no protection to anything a person knowingly exposes to others, a hazard in an era of electronic social networking. Reading the Fourth Amendment back into the Constitution makes available new grounds for the Constitution’s relevance in an age of pervasive electronic surveillance.

Permalink 01:49:35 pm, by fourth, 90 words, 3069 views   English (US)
Categories: General

New law review articles

The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment 'Search and Seizure' Doctrine by Thomas Y. Davies, Journal of Criminal Law & Criminology, Vol. 100, No. 3, pp. 933-1041 (2010), Abstract on SSRN.

Package bombs, footlockers, and laptops: what the disappearing Container Doctrine can tell us about the Fourth Amendment in Journal of Criminal Law and Criminology, Fall, 2010 by Cynthia Lee.

Swinging for the fences: how Comprehensive Drug Testing, Inc. missed the ball on digital searches in Journal of Criminal Law and Criminology, Fall, 2010 by Vincent Angermeier

Permalink 07:19:18 am, by fourth, 246 words, 2984 views   English (US)
Categories: General

D.Minn.: Use of home IP address to buy CP was PC for SW

ICE was monitoring credit card purchases from a child pornography website. Defendant purchased using an e-mail address and a credit card. The IP address of the e-mail was traced to defendant’s house. That provided probable cause for a search warrant for the house and its computers. United States v. Skjonsby, 2011 U.S. Dist. LEXIS 16546 (D. Minn. January 14, 2011).*

Defense counsel was not ineffective for not calling witnesses at a Franks hearing since he could not even make a threshold showing to get a Franks hearing anyway. The falsities he was relying on were insufficient to undermine probable cause. Smith v. United States, 2011 U.S. Dist. LEXIS 16366 (E.D. Mo. February 18, 2011).*

Officers called out to the defendant to attempt to get him to stop as he approached a drug house late at night. There was no reasonable suspicion, but defendant ignored them and tossed a gun and drugs against the fence as he went into the house. That was an abandonment and created justification for his stop. United States v. Fowler, 2011 U.S. Dist. LEXIS 16526 (D. Neb. February 18, 2011).*

Crediting their testimony, officers had reasonable suspicion to stop defendant and probable cause to search his Escalade. United States v. Cummings, 764 F. Supp. 2d 480 (E.D. N.Y. 2011).*

Defendant was stopped because he was a suspect in a bank robbery with probable cause, so the search of the car was not limited by the search incident doctrine. United States v. Miller, 2011 U.S. Dist. LEXIS 16751 (S.D. Ind. February 19, 2011).*

Permalink 05:56:00 am, by fourth, 194 words, 2893 views   English (US)
Categories: General

Reason.com: "Police Cameras and Crime"

Police Cameras and Crime | Can a surveillance state make us safer? by Steve Chapman on Reason.com February 21, 2011:

If you want to be on TV, don't go to Los Angeles or New York. Come to Chicago, where your wish is certain to be fulfilled. In fact, you couldn't avoid it if you wanted to, thanks to the nation's most extensive network of police surveillance cameras. Anytime you walk out your door, you may find an audience.

This is one of Mayor Richard M. Daley's proudest achievements, but the estimated 10,000 devices now in operation are not enough for him. He once expressed his intention to keep adding cameras until there is one "on every street corner in Chicago."

His obvious error is to assume that if some cameras are good, more are better. Daley's policy also rests on a plausible but unproven assumption: that cameras reduce crime by deterring criminals and helping nab those who aren't deterred.

I remember a bus sign in NYC years ago: "Want to be on TV? The average American is on TV somewhere 17 times a day." They just haven't invented the telescreen yet, but the telescreen kept talking to Winston.

02/22/11

Permalink 10:05:37 am, by fourth, 419 words, 2956 views   English (US)
Categories: General

CA4: Entry into bathroom was based on exigent circumstances

Officers were in plaintiff’s house because of a domestic disturbance call. Entry into plaintiff’s bathroom to seize him and potentially disarm him was justified by exigent circumstances. Trull v. Smolka, 411 Fed. Appx. 651 (4th Cir. 2011) (unpublished)*:

The officers were at the residence responding to a domestic situation, Trull refused to exit the bathroom to talk with them, and they were under the impression that there may have been a gun somewhere in the residence. The officers were justified in concluding that a person involved in a marital spat, who was refusing to speak with officers, could be a threat to them while they were in the home discussing the dispute with his wife. Under these circumstances, the officers were also correct in concluding Trull could be a threat to himself. Therefore, the entry into the bathroom was justified by the exigent circumstances.

An officer’s statement to the defendant “don’t do it” when the defendant made a fist and took a fighting stance did not convert a stop into an arrest. Besides, he fled after that. United States v. Russ, 772 F. Supp. 2d 880 (N.D. Ohio 2011)*:

It is undisputed that, after their initial communications, DUSM Boldin told Russ “don’t do it.” Despite Russ’s contentions to the contrary, the Court finds that, under the circumstances, this statement did not qualify as language “indicating that compliance with the officer’s request might be compelled.” See Mendenhall, 446 U.S. at 554. At that point in the encounter, DUSM Boldin had observed that Russ appeared startled, was acting nervous, had clenched his fist, and “basically took a fighting stance.” (Doc. 29 at 42:1-5.) Boldin testified that, based on the circumstances, he believed that Russ might assault him, so he told Russ “don’t do it.” The Court finds that this statement, standing alone, did not transform the encounter into a seizure. A reasonable person could interpret Boldin’s comment to mean “don’t take a swing at me.” Unlike a command or order, the phrase “don’t do it” is not the type of language that would have elevated the encounter into a seizure. Even if the statement “don’t do it” could somehow be characterized as a show of authority, Russ was not seized because he fled and thus did not submit to that authority. See Brendlin v. California, 551 U.S. 249, 262 (2007) (“[W]hat may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered.”).

Permalink 09:10:30 am, by fourth, 167 words, 2880 views   English (US)
Categories: General

FL2: No standing in one's own fraudulent pharmacy records

In this fraudulent prescription case, defendant had no standing in his pharmacy records. The state did not raise this issue in the trial court, which the court said it could, and the defendant sought a remand which the court declined [maybe only because the issue was clear to the court]. Society will not recognize an expectation of privacy in a fraudulent prescription. Hendley v. State, 58 So. 3d 296 (Fla. 2d DCA 2011).*

The trial court’s conclusion that defendant consented to a blood draw is supported by the evidence. The nurse who made the draw testified that she would not have drawn blood without some consent; it was not in writing, but it didn’t have to be. Setzer v. State, 2011 Miss. LEXIS 102 (February 17, 2011).*

Defendant was stopped for a traffic offense, and an affidavit was sought for a search warrant for his BAC level. The affidavit as a whole showed probable cause, granting the deference search warrants are entitled to. Hughes v. State, 334 S.W.3d 379 (Tex. App. — Amarillo 2011).*

02/21/11

Permalink 06:27:34 am, by fourth, 219 words, 3174 views   English (US)
Categories: General

KY: Mid-trial suppression motion was here timely

Defendant’s suppression motion came at trial as soon as it was first revealed there was a search and seizure. The motion was timely, and the trial court erred in not conducting a mid-trial suppression hearing. Matlock v. Commonwealth, 344 S.W.3d 138 (Ky. App. 2011):

Shanks and Higdon rely on two different triggering events that indicate the timeliness of such an objection. In Shanks, the court focused on the evidence and the point during trial when it was proffered. In Higdon, the court looked to the witnesses and found that an objection is timely when made during the testimony of the first witness who testifies regarding the circumstances of the search and seizure. It is plausible that several witnesses might testify regarding the circumstances of the search and seizure before the actual items are offered into evidence. In such a case, Higdon would control and require the objection be made during the first such witness's testimony. Shanks adds an additional requirement, that the objection occur before or at the same time the seized items are first offered into evidence.

It is clear that this case complies both with Shanks and with Higdon. The objection was made prior to cross-examination of Chief Goforth, the Commonwealth's first witness, when the seized items were first offered into evidence. Therefore, the objection was timely.

Permalink 06:04:29 am, by fourth, 287 words, 721 views   English (US)
Categories: General

CA11: Officer did not exceed consent to search computer by looking in a different game program

The search of defendant’s computer did not exceed the consent. The mouse wasn’t working properly, and the officer had to scroll through programs and clicked on a game program and stumbled upon child pornography. The officer did not even click on programs that had more suggestive names. United States v. Whaley, 415 Fed. Appx. 129 (11th Cir. 2011) (unpublished)*:

In this case, Whaley permitted Schoenfeld to use his computer, but only for the limited purpose of viewing the flight simulator program. We discern no clear error in the magistrate’s finding that Schoenfeld was, in fact, searching for the flight simulator when he opened the “auto racing 13” icon. Because the laptop’s mouse pad was not working, Schoenfeld had to scroll through the icons one by one. Therefore, it is plausible that he did not notice the “Microsoft Flight Si” icon at the time. If Schoenfeld’s interest in the flight simulator was actually a pretext for conducting a search for contraband, he likely would not have clicked on the “auto racing 13” icon because the file name was not suggestive of child pornography or other illegal materials. And, in fact, there were other icons on the computer with more suggestive titles that Sgt. Schoenfeld did not click on. These included “beautiful kiss,” “girls gone wild9best o...,” etc.

The key question in this case is whether an officer exceeds the scope of an individual’s consent to search for a particular computer file when the officer opens another file in the reasonable, though mistaken belief, that it is the file that was the subject of the individual’s consent. Although we do not have any published opinions directly on point, other Circuits have decided cases involving similar facts. ...

Permalink 12:14:27 am, by fourth, 268 words, 640 views   English (US)
Categories: General

CA8: Private search led to search warrant for child pornography

Defendant’s computer was subjected to a private search, and child porn was delivered to the police, which they used to get a search warrant for the computer. United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011):

... Klaas then went to the Marshalltown Police Department and reported to Officer Curtis Hansel that Muhlenbruch possessed child pornography on his computer. When Officer Hansel told Klaas that more information was needed before the police could take action, Klaas gave Officer Hansel the CDs containing files from Muhlenbruch's computer. Officer Hansel reviewed the images on the CDs and believed, based on his training and experience, that the images constituted child pornography.

Soon after Officer Hansel reviewed the CDs, he began to prepare a search warrant for Muhlenbruch's apartment. Meanwhile, an officer was assigned to conduct surveillance on Muhlenbruch's apartment and to prevent entry while the search warrant was being processed.

Officers stopped defendant because of excessive window tint and no seatbelt, but he was also seen frequenting a drug house. The officer then recognized his name as coming from a CI as one who delivered drugs to the drug house in the past. Defendant was shaking uncontrollably. The officer had reasonable suspicion to prolong the stop. State v. Webb, 2011 Tenn. Crim. App. LEXIS 101 (February 11, 2011).*

City’s transfer of seized money to the federal government did not deprive the state court of jurisdiction to hear an action for return of the money. The federal government could return the money to the state court at the conclusion of federal proceedings. Green v. City of Montgomery, 55 So. 3d 256 (Ala. Civ. App. 2009), Released for Publication February 1, 2010.

Permalink 12:05:00 am, by fourth, 741 words, 1052 views   English (US)
Categories: General

WV: Cell phone seized under SW for car needs no separate SW to search it

Having searched a car and seizing evidence under a search warrant, a separate search warrant is not required to search a cell phone that was properly seized as evidence of a crime under the warrant. State v. White, 227 W. Va. 231, 707 S.E.2d 841 (2011):

... Instead, the question that must be answered to resolve this issue is whether a separate search warrant is required to examine the contents of items seized in the execution of a valid search warrant. The United States Supreme Court touched on this issue in the case of United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). In Ross, the Supreme Court explained that

[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.

456 U.S. at 820-21, 102 S. Ct. at 2170-71, 72 L. Ed.2d 572 (footnotes omitted). This Court previously has indicated its approval of Ross, which was quoted in State v. Lacy, 196 W. Va. 104, 116, 468 S.E.2d 719, 731 (1996). Furthermore, it has been observed generally that an additional warrant is not required to examine seized objects. See 2 Wayne R. LaFave, Search and Seizure, § 4.10(e) at 771 (4th ed. 2004) (observing that “[p]erhaps because it is generally understood that a lawful seizure of apparent evidence of crime pursuant to a search warrant carries with it a right to test or otherwise examine the seized materials to ascertain or enhance their evidentiary value, this issue is rarely litigated” (footnote omitted)). Cf. Commonwealth v. Copenhefer, 526 Pa. 555, 562, 587 A.2d 1353, 1356 (1991) (“A paper tablet, seized pursuant to a valid search warrant, may be subjected to scientific and physical manipulation and analysis without a second search warrant. ... The same would be true of a diary recorded in a private code. If we accepted appellant’s argument, after seizing the diary pursuant to a valid search warrant, the state would be obligated to obtain a second warrant before it could attempt to read the diary by deciphering the code. Yet the diarist’s obvious attempt to achieve secrecy does not create a legally protected expectation of privacy nor the need to obtain a warrant before subjecting legally seized physical evidence to scientific testing and analysis to make it divulge its secrets.”), abrogated in part on other grounds by Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069 (2001); State v. Gregory, 158 Wash. 2d 759, 826, 147 P.3d 1201, 1236 (2006) (observing that “once a suspect’s property is lawfully in the State’s control, the State may perform forensic tests and use the resulting information to further unrelated criminal investigations, without violating the owner’s Fourth Amendment rights (citing State v. Cheatam, 150 Wash. 2d 626, 638, 81 P.3d 830 (2003))).

Accordingly, we now expressly hold that, when searching a vehicle pursuant to a valid search warrant, no additional search warrant is required to examine the contents of items that are properly seized in the execution of the warrant, including, but not limited to, cellular telephones. Applying this holding to the case at hand, we find the contents of the Motorola cellular telephone seized from Mr. Mahrous’s yellow truck were properly examined by law enforcement officials. Therefore, the trial court did not err in denying Mr. White’s motion to suppress evidence that was obtained as a result of that examination.

[Note: Therefore, under this rationale, a computer would be subject to the search warrant if, and this is a big if, the probable cause extended to the computer. It might not. Here, the cell phone was clearly of evidentiary value. Without knowing more, a computer would not be.]

02/20/11

Permalink 10:41:47 am, by fourth, 229 words, 874 views   English (US)
Categories: General

NE: Search warrant for defendant’s house and person authorized the search of his person when he was stopped in his car away from the house

Search warrant for defendant’s house and person authorized the search of his person when he was stopped in his car away from the house. State v. Sharp, 281 Neb. 130, 795 N.W.2d 638 (2011):

Based upon this language, we conclude that the search warrant was not narrowly focused on Sharp's presence at the residence, but was more broadly applicable to the illicit drug activity which he was alleged to be conducting from that residence. The warrant identified three sources of concealed contraband: the residence, the person of Sharp, and the person of Hicks. The use of the phrase "and/or" connecting the place and persons to be searched authorized a search of the residence, both named persons, or any one of the three. And we agree with the district court that there is no language in the search warrant which required that the search of the named persons be conducted at the identified premises. The language of the warrant distinguishes this case from People v. Green and People v Kerrigan, on which Sharp relies. It is closer to the language of search warrants which were held to authorize an off-premises search of named persons in People v Carter, People v. Velez, and People v. Gonzalez. We conclude that the search warrant was personal to Sharp and authorized a search of his person on or off the premises identified in the warrant.

Permalink 08:55:48 am, by fourth, 459 words, 698 views   English (US)
Categories: General

D.Neb.: Hallucinating man on drugs could not voluntarily consent

The police responded to a 911 call about a “break-in” and a shooting. They found the defendant outside the house, confused and under the likely influence of drugs. They did a “protective sweep” on exigency and found drug stuff. They proceeded to search. The USMJ recommended suppression for lack of a warrant, and the USDJ agreed. The proper recourse was to get a search warrant and not rely on an alleged consent from a man they admit was hallucinating. Motion to suppress granted for lack of a warrant. United States v. Einerson, 2011 U.S. Dist. LEXIS 15633 (D. Neb. February 16, 2011):

The officers testified that the defendant appeared to be under the influence of a drug and was acting erratic, excited, nervous, paranoid and fidgety. Id. at 53-55. The defendant was pacing in the middle of the street and scratching his face. Id. He later made statements that led the officers to believe he was hallucinating. Id. at 55. At the time the second search was conducted, the defendant had been handcuffed and placed in the police cruiser. Id. at 38. He was later arrested on an outstanding warrant for driving under suspension and failure to appear and was transported to the police station and booked. Id. at 40.

. . .

The court agrees with the magistrate judge’s conclusion for the reasons stated in his opinion. The court finds the government’s reliance on Colorado v. Connelly, 479 U.S. 157, 164 (1986), for the proposition that “a Defendant’s mental condition, by itself and apart from its relation to official coercion, should never dispose of the inquiry into constitutional voluntariness” is misplaced. See Filing No. 47, Government Brief at 2. That case involves the voluntariness of a confession in the context of Fourteenth Amendment/Fifth Amendment [*5] Due Process rights and the Fifth Amendment’s protection against self-incrimination. Connelly, 479 U.S. at 167, 170. Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. Id. at 167 (emphasis added). The voluntariness of a waiver of the privilege against self-incrimination has always depended on the absence of police overreaching, not on “free choice” in any broader sense of the word. Id. at 170 (stating that “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that”). The case has no application to the voluntariness of a consent to search under the Fourth Amendment. See, e.g., United States v. Montgomery, 621 F.3d 568, 573 (6th Cir. 2010) (noting that Fifth Amendment waiver and Fourth Amendment consent-to-search inquiries are not the same and that one difference is that the involuntariness prong of a Miranda waiver requires coercive police activity as a necessary predicate, something generally not required in Fourth Amendment consent cases).

Permalink 08:47:11 am, by fourth, 178 words, 591 views   English (US)
Categories: General

S.D.Ohio: Raising a new suppression issue in a motion to reconsider denied; it was waived by not being raised in motion

Defendant filed a motion to reconsider denial of a motion to suppress because of (1) new documentary evidence, and (2) deciding to challenge consent. The first is granted, but the second denied. The issue of consent was expressly waived in the initial motion and can’t be asserted on a motion to reconsider. United States v. Bigi, 2011 U.S. Dist. LEXIS 15374 (S.D. Ohio February 16, 2011).*

Defendant was stopped for a broken taillight, and the officer directed him out of the car because he was excessively nervous. Cocaine fell out of his lap, and a dog alerted on the car. The search was legal. United States v. Riley, 410 Fed. Appx. 963, 2011 FED App. 0109N (6th Cir. 2011) (unpublished).*

The officer approached a car parked on a McDonald’s lot after hours that had become a drug trafficking place at night. In his encounter with the two occupants of the car slouched down and the one on the phone outside, he got a story that made no sense, and that became reasonable suspicion. United States v. Sanchez-Sosa, 2011 U.S. Dist. LEXIS 15275 (D. Kan. February 14, 2011).*

Permalink 08:14:40 am, by fourth, 193 words, 739 views   English (US)
Categories: General

Ledger.com: "Can You Frisk a Hard Drive?"

The Ledger.com and NYT: Can You Frisk a Hard Drive? by David K. Shipler:

The chosen few — 6.1 million of the 293 million who entered the United States in the year ending Sept. 30, 2010 — get a big letter written on their declaration forms: A for an agriculture check on foodstuffs, B for an immigration issue, and C for a luggage inspection. Into the computer the passport officers type the reasons for the selection, a heads-up to their colleagues in the back room, where more thorough databases are accessible.

And there is where concerns have developed about invasions of privacy, for the most complete records on the travelers may be the ones they are carrying: their laptop computers full of professional and personal e-mail messages, photographs, diaries, legal documents, tax returns, browsing histories and other windows into their lives far beyond anything that could be, or would be, stuffed into a suitcase for a trip abroad. Those revealing digital portraits can be immensely useful to inspectors, who now hunt for criminal activity and security threats by searching and copying people’s hard drives, cellphones and other electronic devices, which are sometimes held for weeks of analysis.

02/19/11

Permalink 10:44:31 am, by fourth, 51 words, 607 views   English (US)
Categories: General

BLT: "Suit Charges D.C. Police Executed Search Warrant at Wrong Apartment"

On the Blog of the Legal Times: Suit Charges D.C. Police Executed Search Warrant at Wrong Apartment:

A man and his wife are suing the Metropolitan Police Department for $1 million in damages for allegedly barging into and searching the wrong apartment during a drug investigation last year in Southeast Washington.

02/18/11

Permalink 12:38:39 pm, by fourth, 168 words, 694 views   English (US)
Categories: General

CA10: Stop produced arrest warrant, and that justified search of the car, no matter what

Defendant was stopped for a traffic offense, and he was found to have an arrest warrant outstanding. He was arrested. The officer said that defendant had a baggie of drugs hanging out of his waistband, but defendant said it was hidden under his genitals and the search was too intensive. It didn’t matter because he was validly arrested, and it would have been found anyway. United States v. Derrick, 412 Fed. Appx. 177 (10th Cir. 2011) (unpublished), cert. denied, 180 L. Ed. 2d 835, 2011 U.S. LEXIS 4439 (U.S., June 13, 2011).*

The officer had reasonable suspicion defendant’s truck had contraband, so the use of the dog was valid, and the search of the truck was valid at the least by inevitable discovery. United States v. Harrelson, 2010 U.S. Dist. LEXIS 141334 (M.D. Fla. December 27, 2010).*

Taking DNA samples from convicted felons did not violate the Fourth Amendment. State v. Emerson, 2011 Ohio 593, 192 Ohio App. 3d 446, 949 N.E.2d 538 (8th Dist. 2011), Discretionary appeal allowed, 128 Ohio St. 3d 1556, 2011 Ohio 2905, 949 N.E.2d 43, 2011 Ohio LEXIS 1562 (Ohio, June 22, 2011).*

Permalink 12:27:46 pm, by fourth, 358 words, 657 views   English (US)
Categories: General

CA8: Failure to do a complete inventory showed investigatory purpose

Officer’s utter failure to really do a complete inventory showed that the search was investigatory and not a valid inventory. The motion to suppress should have been granted. United States v. Taylor, 636 F.3d 461 (8th Cir. 2011):

Here, the police did not comply with KCPD standardized procedures. KCPD procedures not only require officers to create a detailed, itemized inventory when any vehicle is towed, they also specifically require officers to create the same inventory when a vehicle containing a large quantity of valuable items is towed. At the time of the inventory search, Taylor, a handyman, had two toolboxes that each contained over a hundred items, including pliers, wrenches, screwdrivers, and drill bits. He also had two additional toolboxes, several chains, a hydraulic jack, a crate, lug wrenches, a paint roller, a flashlight, a shingle remover, a band clamp, an electric chainsaw, and an electric circular saw, among other things. Given the hundreds of valuable tools in Taylor’s truck, Officer Gillespie’s description of “misc. tools” does not constitute a detailed, itemized inventory.

Although the Government contends that it would be “absurd” to expect Officer Gillespie to accurately identify and itemize the tools in Taylor’s truck, the constitutionality of an inventory search does not rise and fall on the abilities of a particular police officer—the inquiry is whether, under the totality of the circumstances, the inventory search was reasonable. Rowland, 341 F.3d at 779. In this case, Officer Gillespie did not write down even general descriptions of the commonplace tools and equipment in Taylor’s truck, such as toolbox, screwdriver, chainsaw, or flashlight. Nor did she take any other steps in an attempt to create a detailed inventory, such as seeking assistance in identifying the tools or photographing them in lieu of identifying them. See Garner, 181 F.3d at 991 (explaining that an officer used photographs to supplement the written list in recording the contents of the defendant’s vehicle). These circumstances, combined with the specificity of the applicable standardized procedure and the quantity of items in the vehicle, make the officer’s description of “misc. tools” insufficient to remove the inference that the search was investigatory.

Permalink 12:15:38 pm, by fourth, 263 words, 1013 views   English (US)
Categories: General

CA8: Police protocol justified towing and inventory of vehicle that would have been left on restaurant parking lot

Defendant was stopped in a restaurant parking lot and arrested. It was reasonable to tow his vehicle under protocol rather than just leave it, so the inventory was valid. Since the search was valid as an inventory, Gant was inapplicable. United States v. Frasher, 632 F.3d 450 (8th Cir. 2011):

The record supports the determination that the search of the vehicle was permissible as an inventory search. Frasher's vehicle was parked in a restaurant parking lot, and there was no responsible person able to take immediate custody of the vehicle. Standard protocol was to tow Frasher's vehicle. Fries arrived after Frasher's arrest and did not know that Tilley had discussed a tow waiver with him. Fries offered to help with the search and the tow waiver to comply with the standard police procedures; he did not decide to tow the vehicle solely to search the vehicle for incriminating evidence. Even after Frasher called his father, Frasher had no right to a tow waiver, and Tilley could not grant the waiver without a supervisor's approval. Tilley did not tell Fries about the tow waiver because he determined that he should have followed standard protocol. We conclude that the district court did not clearly err in adopting the magistrate judge's finding that the search was conducted pursuant to standard police procedure and not for the sole purpose of investigation.

The immigration phase of the stop was over and consent was granted in ten seconds, and it was valid, despite the fact the officers suspected defendant was carrying drugs. United States v. Garcia, 412 Fed. Appx. 693 (5th Cir. 2011) (unpublished).*

Permalink 12:02:10 pm, by fourth, 21 words, 641 views   English (US)
Categories: General

Reason.com: "The Man's Best Friend, Drug dogs sniff at the Fourth Amendment"

The Man’s Best Friend / Drug dogs sniff at the Fourth Amendment by Greg Beato from the March 2011 of Reason magazine.

Permalink 11:53:30 am, by fourth, 280 words, 493 views   English (US)
Categories: General

CA3: Denial of Rule 41(g) motion that was really a suppression motion is not appealable

Motion for return of property seized from offices and computers under Rule 41(g) was really a suppression motion, so denial of the motion was unappealable because it was not a final order. In re Grand Jury, 635 F.3d 101 (3d Cir. 2011):

Our decision in United States v. Furina, 707 F.2d 82 (3d Cir. 1983), is also instructive. There, during a grand jury investigation, federal agents obtained and executed warrants to search the appellants’ residences; the agents seized various documents for presentation to the grand jury. Claiming that the search and seizure were invalid, the appellants filed a motion for return of the documents. The District Court denied the motion, and an appeal followed.

We dismissed the appeal. In doing so, we found it “very clear” that the appellants’ motion sought the suppression of evidence, not simply the return of property. Id. at 84. Indeed, the motion had been filed pursuant to what is now Rule 41(g), and, at the time, granting such a motion automatically resulted in suppression. That the appellants’ motion had sought not just the return of property but also the suppression of evidence was “enough under Di Bella to require that ... the appeal be dismissed.” Furina, 707 F.2d at 84. We also stated that, “even though the appellants [we]re not under arrest or indictment,” a prosecution against them was nevertheless in esse for purposes of Di Bella, because they were subjects of an ongoing grand jury investigation. Id. (citing In re Grand Jury Proceedings, 604 F.2d at 806). We therefore held that the appellants did “not satisfy the [second] requirement of Di Bella that the motion [be] in no way tied to a criminal prosecution in esse against the[m].” Id. at 84.

02/17/11

Permalink 12:38:49 pm, by fourth, 54 words, 760 views   English (US)
Categories: General

Foreskin search: AOL News: "Cops: Man Hid Crack in Penis"

This may be the first time I've heard of a foreskin search, via AOL News: Cops: Man Hid Crack in Penis. And just how did this search go down?

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

Permalink 11:29:12 am, by fourth, 142 words, 736 views   English (US)
Categories: General

OH2: 911 hang up call and no answer at door was exigency

911 hang up call brought police to the defendant’s house. The officer knocked at the screen door, and no one answered. The officer could enter to check on the perceived emergency, and the motion to suppress drugs found all over the place was properly denied. State v. Hodge, 2011 Ohio 633, 2011 Ohio App. LEXIS 529 (2d Dist. February 11, 2011).*

A search warrant for footwear that had seven month old information was not stale because footwear, unlike drugs, are not commonly readily disposed of. Commonwealth v. Janda, 2011 PA Super 27, 14 A.3d 147 (2011).*

Defendant’s stop was justified by his license plate being partially obstructed by a trailer hitch ball. Consent after that was justified. Parks v. State, 2011 WY 19, 247 P.3d 857 (2011).*

The Kansas implied consent statute amended in 2006 does not require the defendant to knowingly or intelligently waive; it is statutorily implied. State v. Edgar, 246 P.3d 1013 (Kan. App. 2011).*

02/16/11

Permalink 03:56:00 pm, by fourth, 33 words, 574 views   English (US)
Categories: General

Some PATRIOT Act extension is coming

The Senate approved a three month extension of the PATRIOT Act while the House approved a nine month extension. The Senate version goes back for a vote in the House. See Politico.com.

Permalink 08:52:14 am, by fourth, 167 words, 790 views   English (US)
Categories: General

S.D.N.Y.: Odor of raw marijuana was PC for automobile exception search

The court credits that the officers smelled raw marijuana in defendant’s car, and that was probable cause for a search under the automobile exception. United States v. Colon, 2011 U.S. Dist. LEXIS 14106 (S.D. N.Y. February 8, 2011).*

The stop of defendant’s semi-truck was justified and based on the regulation of the trucking industry. After the truck was stopped, the DOT number on it was wrong, and reasonable suspicion developed from there. The stop was not overlong. United States v. Luna, 2011 U.S. Dist. LEXIS 14348 (N.D. Ill. February 14, 2011).*

The probation officer’s search of defendant’s computer that revealed child porn was not unreasonable as a probation search either by cause or intensity. Trobee v. United States, 2011 U.S. Dist. LEXIS 14003 (D. S.D. February 11, 2011).*

The court credits the officer’s testimony that the defendant consented to a search. There was a minor error in his testimony that did nothing to discredit him. United States v. Coachy, 2011 U.S. Dist. LEXIS 13888 (E.D. Tenn. January 20, 2011).*

Permalink 08:42:10 am, by fourth, 234 words, 567 views   English (US)
Categories: General

W.D.Ky.: Cutting lock off trailer was reasonable as "cargo securement inspection"

Cutting the lock off a tractor trailer at a weigh station was a reasonable part of a cargo securement inspection under Kentucky law. United States v. Allen, 771 F. Supp. 2d 752 (W.D. Ky. 2011):

Random safety and cargo securement inspections conducted at a weigh station also set forth a very clear scope of inspection. First, “[t]he inspections can be made only of [commercial trucking vehicles.]” Burger, 482 U.S. 711. Second, “the permissible scope of these searches is narrowly defined:” the inspector may only enter into a vehicle to ensure compliance with Kentucky commercial trucking regulations. Id. Limiting the type of vehicle that can be inspected and the scope of the inspection narrowly defines the permissible scope of the inspections. Finally, while there is no limitation on time, “[t]rucks operate twenty-four hours a day and the officers must, necessarily, have the authority to conduct these administrative inspections at any time.” Dominguez-Prieto, 923 F.2d at 470. With appropriate limits on time, place and scope, the third requirement of Burger is met when random inspections are performed at a weigh station.

Since the three Burger requirements are met under the facts of the current case, Officer Duvall was lawfully allowed to perform a warrantless inspection to verify compliance with Kentucky commercial trucking regulations while the truck was at a weigh station. Accord United States v. Ruiz, 569 F.3d 355 (8th Cir. 2009); United States v. Burch, 153 F.3d 1140 (10th Cir. 1998).

02/15/11

Permalink 08:33:33 am, by fourth, 206 words, 829 views   English (US)
Categories: General

N.D.Tex.: Defendant's apparent abandonment of rental property did not require eviction for landlord to consent

In a § 2255 case, the court concludes that defendant had abandoned his rented office by not having paid rent for 16 days, returning no calls to the landlord about his intentions, and the landlord changed the locks after 10 days. The fact the landlord had taken no steps to legally evict him wasn’t even relevant because the landlord didn’t have to. The officer’s reliance on the landlord’s consent was clearly in good faith. Therefore, defense counsel was not ineffective. Mugweni v. United States, 2011 U.S. Dist. LEXIS 13671 (N.D. Tex. February 10, 2011).

Defendant’s stop would have been invalid because, while his license plate was dirty, it was not unreadable. However, defendant fled and that made the stop valid. The consent obtained after that was after intervening events. United States v. Mathews, 764 F. Supp. 2d 926 (S.D. Ohio 2010).*

Under the Washington Constitution, defendant was handcuffed and placed in a police car after the officer smelled marijuana on his breath and clothing. A baggie of marijuana was in plain view in the car. This was not a proper search incident; since defendant was alone there was no issue of tampering with the car, and a warrant should have been obtained. State v. Swetz, 160 Wn. App. 122, 247 P.3d 802 (2011).*

Permalink 08:00:13 am, by fourth, 309 words, 737 views   English (US)
Categories: General

D.Mass.: Possibility of domestic shooting justified entry

The entry into the house here was with exigent circumstances. The information collected at the scene created a reasonable possibility that there had been a shooting during a domestic dispute, and the police went in to check on it. Inside, they found marijuana plants which led to this forfeiture action. United States v. 5 Anchor Drive, Sandwich, Massachusetts, 2011 U.S. Dist. LEXIS 13610 (D. Mass. February 1, 2011)*:

In this case, the circumstances demanded immediate action that rendered reasonable the warrantless search of the house at 5 Anchor Drive. The police had received two reports of gunshots and they learned that the owner of the house, Tracy Harsh, held a firearm license. Despite diligent efforts, they were unable to contact her. Then Baker, who claimed to be the owner and sole occupant, arrived with two friends and told a suspect story about an earlier appearance of two women in need of a telephone and a man waving a gun. He also gave an unlikely explanation as to Harsh's whereabouts which raised the possibility of a serious domestic dispute. Finally, one of the friends admitted to having two guns in his truck. Given this scenario, Sergeant Dwyer was fully justified in entering the house to ascertain that no one had been shot and lay injured inside the home. The officers acted promptly, after appropriate deliberation, when they entered the home minutes after their alarming interaction with Baker and his two friends. Their search of all areas of the home in which a person might be located, including the two plywood rooms, was appropriate in scope.

The court finds the officer credible that defendant consented although he might have been in handcuffs at the time of consent. The court finds incredible the claim that he was beaten on the side of the road before the consent. United States v. Martinez, 771 F. Supp. 2d 378 (E.D. Pa. 2011).*

Permalink 07:38:48 am, by fourth, 415 words, 1082 views   English (US)
Categories: General

W.D.Mich.: GPS monitoring of vehicle valid, declining to follow Maynard

Live monitoring of GPS on defendant’s car four separate times did not violate the Fourth Amendment, straining to find a way to distinguish Maynard, and following the majority view. United States v. Walker, 771 F. Supp. 2d 803 (W.D. Mich. 2011):

As Defendant notes in her objections, the Supreme Court has not yet considered whether GPS monitoring of a vehicle’s location constitutes a Fourth Amendment search, but several circuit courts have and are split on the issue. (Objections ¶ 11.) Defendant relies on a recent decision by the Court of Appeals for the District of Columbia Circuit holding that prolonged GPS monitoring — 24 hours a day for four weeks — was a Fourth Amendment search and was unreasonable without a warrant. United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). It appears, however, that the great weight of the law from other federal circuits rejects this view. See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) (holding that GPS tracking is not a search); United States v. Pineda-Moreno, 591 F.3d 1212, 1217 (9th Cir. 2010) (“We conclude that the police did not conduct an impermissible search of [defendant’s] car by monitoring its location with mobile tracking devices.”), reh’g en banc denied 617 F.3d 1120 (9th Cir. 2010); see also United States v. Sparks, No. 10-10067, 750 F. Supp. 2d 384, 2010 U.S. Dist. LEXIS 120257 at *34 (D. Mass. 2010) (“[N]o warrant or other court order is necessary to install or monitor the GPS.”); Morton v. Nassau County Police Dep’t, No. 05-CV-4000, 2007 U.S. Dist. LEXIS 87558, at *10 (E.D.N.Y. Nov. 27, 2007) (“[T]he use of the GPS Device was not an unreasonable search or seizure in violation of the Fourth Amendment.”); United States v. Jesus-Nunez, No. 1:10-CR-00017, 2010 U.S. Dist. LEXIS 76107, at *12 (M.D. Pa. July 27, 2010) (“[T]here was no Fourth Amendment search or seizure by the Government’s use of the GPS device.”); United States v. Williams, 650 F. Supp. 2d 633, 668 (W.D. Ky. 2009) (“[T]he Court is comfortable in concluding that no search warrant or other court order was required to permit the officers to lawfully attach the electronic tracking devices to the exterior of [defendants’] automobiles.”); United States v. Burton, 698 F. Supp. 2d 1303, 1307 (N.D. Fla. 2010) (“There is no Fourth Amendment violation for using a tracking device ... where the substitute is for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment.” (internal quotation marks omitted)).

Same outcome: United States v. Fisher, 2011 U.S. Dist. LEXIS 13749 (W.D. Mich. January 11, 2011).

Permalink 07:17:26 am, by fourth, 131 words, 617 views   English (US)
Categories: General

CA10: Defendant was not obligated to answer questions during stop, but he did, and answers can become RS

Reasonable suspicion developed from defendant’s unusual travel plans and odd route of travel, the fact he came from Mexico three days earlier, possession of two cell phones, and finding a “bondo” container. Defendant was not obligated to answer the questions put to him [HA!], but he did, and the officer can develop reasonable suspicion in his experience from what he learns. United States v. Guerrero-Sanchez, 412 Fed. Appx. 133 (10th Cir. 2011) (unpublished).*

Defendant police officer had probable cause that plaintiff committed forgery and could arrest him. Sow v. Fortville Police Dep't, 636 F.3d 293 (7th Cir. 2011).*

A prison inmate has no reasonable expectation of privacy in his cell, and the plaintiff’s case was “‘patently meritless and beyond all hope of redemption.’” Pope v. Bernard, 2011 U.S. App. LEXIS 2764 (1st Cir. February 10, 2011) (unpublished).*

Permalink 07:05:08 am, by fourth, 107 words, 451 views   English (US)
Categories: General

USA Today: "Critics knock no-knock police raids"

USA Today: Critics knock no-knock police raids by Ron Barnett and Paul Alongi:

In the instant he appeared, the video shows, three shots rang out and the man, Todd Blair, 45, fell to the floor, dead.

The Ogden incident was among a growing number of no-knock police raids last year, a tactic that has grown in use from 2,000 to 3,000 raids a year in the mid-1980s, to 70,000 to 80,000 annually, says Peter Kraska, a professor of criminal justice at Eastern Kentucky University who tracks the issue.

That increase has raised questions about the tactic, including whether the surprise element poses an unnecessary threat to people whose residences are invaded.

02/14/11

Permalink 05:00:26 pm, by fourth, 39 words, 595 views   English (US)
Categories: General

Canadian citizen strip searched for possession of raspberries

On Jonathan Turley's website today: Canadian Woman Found With Undeclared Raspberries and Strip Searched and Barred From Country. She has a vacation home in Savannah that she now can't get to.

Such is the strip search power at Customs.

Permalink 08:41:10 am, by fourth, 177 words, 786 views   English (US)
Categories: General

CA10: Defense counsel not ineffective for not predicting Fourth Amendment developments

Defendant’s request for a COA of the denial of his § 2255 is denied. Reasonable jurists would not agree he had any chance of success on appeal for not citing cases not yet decided at the time of the suppression hearing or in failing to predict future developments in Fourth Amendment law. United States v. Jacquez, 10-2165 (10th Cir. February 11, 2011).

Defendant’s driving left of center was reasonable suspicion for his stop. Once stopped, his admission he had four or five beers just before driving was probable cause. State v. Hatfield, 2011 Ohio 597, 2011 Ohio App. LEXIS 506 (5th Dist. February 2, 2011).*

Defendant consented to the officer’s viewing of his call log on his cell phone. United States v. Yazzie, 2011 U.S. Dist. LEXIS 13360 (D. S.D. February 10, 2011), R&R 2011 U.S. Dist. LEXIS 13420 (D. S.D. January 25, 2011).*

Defendant’s stop was with reasonable suspicion, so the immediate use of drug dog did not prolong the stop, and that provided probable cause of the search of the car. United States v. Patton, 2010 U.S. Dist. LEXIS 141236 (E.D. Tenn. December 28, 2010).*

Permalink 08:08:03 am, by fourth, 299 words, 589 views   English (US)
Categories: General

GA: Officers on premises with a SW could photograph what they see in plain view

Officers on the premises with a search warrant could photograph what was then in plain view, despite the argument that it was outside the search warrant. In the Interest of R. C. H., 307 Ga. App. 774 (February 9, 2011).

A drug transaction outside the house, and then the defendant returning to the house is nexus to the house for drugs. United States v. Ellison, 632 F.3d 347, 2011 FED App. 0050P (6th Cir. 2011).*

Plaintiff’s car was subjected to a drug dog sniff by a tribal police officer working on a casino parking lot, and drugs were found. He was convicted. His suit against the tribal police department was framed in such a way it was barred by Heck. Johnson v. Pottawotomie Tribal Police Dep't, 411 Fed. Appx. 19 (10th Cir. 2011) (unpublished):

After careful consideration, we find all of Johnson's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), because each necessarily implies the invalidity of Johnson's sentence.

. . .

Underlying all of Johnson's claims is the allegation that he was subject to an illegal arrest and search without probable cause because Hurla was not qualified to be a law enforcement officer under Kansas state law. Johnson argues that, since Hurla's law enforcement certificate was retroactively revoked, “any actions he undertook [as a K-9 officer] were not only illegal, but were also unconstitutional.” Aplt's Br. at 4. Johnson's argument, assuming it were true, would necessarily imply the invalidity of his sentence because it would have been based upon evidence gathered during an illegal arrest and thus would have to be suppressed. See United States v. Jarvi, 537 F.3d 1256, 1260 (10th Cir. 2008). Johnson’s claim is precisely the type that Heck mandates should be pursued through a petition for habeas corpus and not a § 1983 complaint.

[Note: Habeas search claims, of course, are barred by Stone v. Powell. Is this a Catch-22?]

Permalink 07:45:19 am, by fourth, 290 words, 606 views   English (US)
Categories: General

WA: Granting deference to the warrant, the affidavit was sufficient as to showing time

The affidavit used the phrase “within the last 48 hours,” and it wasn’t clear whether that meant when the CI reported it or saw it. The trial court read it narrowly, but that was not faithful to the “canons of construction” that affidavits for search warrants get a common sense reading with a purpose of deferring to search warrants to encourage officers to get search warrants. State v. Lyons, 160 Wn. App. 100, 247 P.3d 797 (2011):

¶13 This analysis would be appropriate and helpful if the court were analyzing a contract, where the language was the product of negotiation by business people and their lawyers. ... But this is not a contract between business people and their lawyers. Mr. Lyons and the police did not sit down with lawyers and draft the language of this affidavit. Indeed, the affidavits are prepared by police officers, not lawyers, on short notice, and sometimes without any input by lawyers at all. State v. Patterson, 83 Wn.2d 49, 57-58, 515 P.2d 496 (1973). So both the superior court and this court, sitting in an appellate capacity, must give great weight to a magistrate's determination that probable cause exists, and doubts are to be resolved in favor of the warrant. O’Connor, 39 Wn. App. at 123.

¶14 This affidavit certainly could be read as Mr. Lyons and, ultimately, the superior court judge read it. But the standard of review (abuse of discretion) and canons of construction (nontechnical reading, commonsense reading, with great deference to the magistrate, with doubts resolved in favor of the warrant) would require a reading in favor of the warrant. When so viewed, we conclude the language can be read to support both the observation and the reporting of that observation within 48 hours and therefore we conclude this warrant passes constitutional muster.

02/13/11

Permalink 12:04:20 am, by fourth, 438 words, 1576 views   English (US)
Categories: General

ND: Strong ammonia smell in apartment building was emergency; fire department on hand

Residents in an apartment complex complained of a strong ammonia smell, and the landlord tried to find the smell and couldn’t. He called the fire department for assistance, and they narrowed it down to defendant’s apartment. They considered it an emergency The landlord used his key to open the door, and defendant was standing there, and the smell of ammonia “poured out.” The firemen entered and found a meth lab. The entry was valid under exigent circumstances, and the police were called when it was determined to be a meth lab. State v. Huber, 2011 ND 23, 793 N.W.2d 781 (2011):

[*P21] Firefighter Bitz’s testimony reflects two key facts about the search of Huber’s apartment. First, it reflects the firefighters were concerned with locating the odor’s source. It was only during the course of this search that the methamphetamine lab and drug paraphernalia were discovered. Second, Bitz’s testimony reflects the fact that law enforcement did not enter the apartment until they were asked to remove an occupant for safety purposes. The officers also did not stop to independently look for evidence of a crime, and they remained separated from the firefighters as they continued their search.

[*P22] When it became apparent the responders were dealing with a methamphetamine lab, the dangers were exacerbated and law enforcement was justified in continuing to assist inside the apartment. See United States v. Lloyd, 396 F.3d 948, 955 (8th Cir.), cert denied, 545 U.S. 1110, 125 S. Ct. 2558, 162 L. Ed. 2d 285 (2005) (“Our cases have recognized that dangers [from methamphetamine labs] may continue for some hours.”) The dangers created by methamphetamine labs justify an immediate and ongoing search because of exigent circumstances due to these labs’ volatile nature. Id. at 954-55. In Michigan v. Tyler, 98 S. Ct. 1942, 436 U.S. 499, 56 L. Ed. 2d 486 (1978), the United States Supreme Court upheld law enforcement’s reentry of a fire scene hours after their first entrance. Law enforcement left the scene to allow visibility to improve and smoke and steam to dissipate. Id. at 502. Holding the reentry was a continuation of the first entrance, the United States Supreme Court held it was a meaningless distinction that law enforcement had departed and returned rather than remain in the building the entire time: “Little purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning.” Id. at 511. The continued presence of a methamphetamine lab is no less a danger than that posed by a smoldering fire. Law enforcement’s presence in Huber’s apartment was at all times justified by the continuing emergency.

02/12/11

Permalink 10:33:11 am, by fourth, 318 words, 830 views   English (US)
Categories: General

IA: Consent search of house was invalid, but consent search of car was valid

The search of defendant’s car was by consent, but after that, the search of defendant’s residence was not. He was trying to make a plane to his mother’s funeral and wasn’t going unless he consented, and he was transported to his house 19 minutes in handcuffs. That was inherently coercive, and the facts found by the trial court are supported by the record. State v. Dougherty, 2011 Iowa App. LEXIS 87 (February 9, 2011):

The district court credited that testimony in finding, “It was well known that going to his mother’s service was very important to the Defendant and that he had only a limited time within which he could make his flight.” Giving due deference to this implied credibility finding, we agree with the court that Dougherty’s consent was not voluntary because of the subtle coercion employed by the officers in this case. See Reinier, 628 N.W.2d at 469. But see United States v. Kolodziej, 706 F.2d 590, 593 (“Raised expectations and hopes for leniency do not amount to coercion or improper inducement.”).

We reach this conclusion though there is other evidence that tends to support finding Dougherty’s consent was voluntary, such as his signing of the written consent form and an officer’s statement to him that he could possibly go to jail that night. See Reinier, 628 N.W.2d at 469 (reaching similar conclusion). However, that statement and the execution of the written consent form followed the coercive tactics detailed above, which also included a nineteen-minute car ride in the back of a squad car to the house in Tiffin during which Dougherty remained handcuffed. Upon examining the totality of the circumstances, we agree with the district court that Dougherty did not voluntarily consent to the search of his residence. 5 Our inquiry does not end here, however, as the State asserts Dougherty’s probation agreement provided an alternative ground for the officers’ search of the residence.

Permalink 10:03:27 am, by fourth, 251 words, 757 views   English (US)
Categories: General

CA4: Search incident of cell phone was valid, without analysis

Defendant was arrested for identity fraud, and officers looked in his cell phone, and that information ended up in the search warrant. The cell phone search was not unreasonable [, without much explanation, and the court conceivably could have just said it was struck from the affidavit and the SW's still good]. United States v. Arellano, 410 Fed. Appx. 603 (4th Cir. 2011) (unpublished):

Given the presence of business cards related to producing photographs for false identification cards and containing a printed phone number, in close proximity to the cell phone which appeared to be Appellant’s, and 14 suspected false identification cards, law enforcement agents reasonably looked to the cell phone for evidence of Arellano’s unlawful activity. See United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (noting that “the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence.”).

In this wiretapping case, the defendant had no reasonable expectation of privacy under the Fourth Amendment as to one conversation because he knew there were third parties listening to it. United States v. Brown, 2011 U.S. Dist. LEXIS 12932 (M.D. La. February 8, 2011).*

Officers had reasonable suspicion defendant was involved in street sales of drugs and approached him, and he fled. They chased him to his house, and he finally came out. The conduct of the officers was not unreasonable. United States v. Lewis, 2011 U.S. Dist. LEXIS 13028 (S.D. Ohio February 1, 2011).*

Permalink 09:35:56 am, by fourth, 249 words, 562 views   English (US)
Categories: General

CA1: Passenger's statement there was a compartment with drugs and a gun was PC for search

A Mirandized coconspirator whispered to the officers that there was a “trap” (hidden compartment) in defendant’s car with drugs and a gun inside, and that made the search of the car valid under the automobile exception, even if it was searched elsewhere. United States v. Polanco, 634 F.3d 39 (1st Cir. 2011).*

The government presented three different traffic offenses justifying defendant’s stop, and none of them was sufficient, and the court would not remand for further factfinding. Motion to suppress should have been granted. United States v. Raney, 633 F.3d 385 (5th Cir. 2011)*:

At the suppression hearing, the government presented evidence to establish that Raney committed three traffic violations: (1) driving in the wrong lane of traffic, (2) disobeying an officer directing traffic, and (3) reckless driving. The government bears the burden of proving that the stop was constitutional when, as here, the stop and search were conducted without a warrant. See United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). Thus, the suppression hearing provided the government the opportunity and obligation to present evidence establishing the validity of the traffic stop. Although the district court did not make specific findings on failure to obey and reckless driving, the record has nonetheless been developed as to these arguments. We will not afford the government a second opportunity to present evidence to the district court in an attempt to meet their burden of proof. Because the government failed to establish the necessary objective basis justifying the traffic stop, we need not remand on these grounds.

02/11/11

Permalink 09:35:25 am, by fourth, 524 words, 747 views   English (US)
Categories: General

CA6: Exclusionary rule not applied to pre-Gant search--question is not whether Gant applies, but what is the remedy

The search incident in this case occurred before Gant but the suppression hearing was after Gant, and the search was lawful when it happened but violated Gant. The Sixth Circuit, in a long opinion, concludes that the exclusionary rule would not be applied because the officers acted in good faith. United States v. Buford, 632 F.3d 264, 2011 FED App. 0043P (6th Cir. 2011):

The Supreme Court’s jurisprudence is clear: “Whether the exclusionary sanction is appropriately imposed in a particular case ... is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’” Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)); see also Masters, 614 F.3d at 242 (“[T]he Supreme Court has ... emphasized that the decision to exclude evidence is divorced from whether a Fourth Amendment violation occurred.”). The latter was decided by Gant; the former was not. Thus, “[t]he issue before us ... is not whether the Court’s ruling in Gant applies to this case, it is instead a question of the proper remedy upon application of Gant to this case.’” McCane, 573 F.3d at 1044 n.5. That remedy is governed by the Supreme Court’s decisions in Leon, Evans, Krull, and Herring.

When this case is properly viewed in that context, it is apparent that suppression is not warranted. Although the Supreme Court has not yet directly addressed the question presently before this court, its review of comparable issues is instructive. In Leon, the Court declined to require suppression when an officer reasonably relied on an invalid warrant to conduct the search because “[p]enalizing the officer for the [court’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” 468 U.S. at 920-21. The same holding applies when an officer relies on a statute later declared invalid, Krull, 480 U.S. 340, 359-60; on judicial records that erroneously reflect an outstanding warrant, Evans, 514 U.S. at 14-16; or on the police’s own warrant database that, through police negligence, erroneously contains a withdrawn warrant. Herring, 129 S. Ct. at 704.

Applying the governing legal principles of these decisions to the facts of the case before us, we join the Fifth, Tenth, and Eleventh Circuits in holding that exclusion is not the appropriate remedy when an officer reasonably relies on a United States Court of Appeals’ well-settled precedent prior to a change of that law. See Peltier, 422 U.S. at 542 (“[U]nless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm.”). The fact that appellate precedent is later overturned is not enough to justify suppression, since the “exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges[,]” Leon, 468 U.S. at 916, and there is “no meaningful distinction” between relying on an invalid search warrant issued by a court and relying on settled precedent that, at the time of the search, held such warrantless searches to be lawful. Davis, 598 F.3d at 1266.

Permalink 09:25:37 am, by fourth, 312 words, 756 views   English (US)
Categories: General

D.Neb.: Defendant's cooperation with IRS civil audit was not by deception in not telling defendant he could be charged

While the government cannot use an IRS civil audit to investigate an IRS criminal case, that does not make a later criminal case automatically a violation of the Fourth or Fifth Amendment. Defendant’s cooperation was not induced by trickery just by not telling him that a criminal case could result. United States v. Koning, 2010 U.S. Dist. LEXIS 141148 (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.”).

There was a substantial basis for concluding that defendant was involved in drug transactions and that drugs would be found. The good faith exception would also apply. United States v. Estrada, 2010 U.S. Dist. LEXIS 141143 (D. Minn. December 17, 2010).*

Permalink 09:09:43 am, by fourth, 477 words, 680 views   English (US)
Categories: General

D.Me.: Use of a "filter agent" to screen e-mail obtained by SW was not unreasonable

Defendant was arrested on a federal charge of failing to pay child support, and a search warrant was issued for his e-mail account. The use of a “filter agent” to screen for potential privileged information was not inherently unreasonable. United States v. Taylor, 764 F. Supp. 2d 230 (D. Me. 2011)* (footnotes citing cases have been omitted):

The parties have not referred me to any First Circuit decision dealing with the use of a filter agent. Case law from the rest of the country does not yield clear answers, but some themes emerge. A number of cases have permitted its use. At the same time, there is a healthy skepticism about the reliability of a filter agent or Chinese or ethical wall within a prosecutor's office, a skepticism perhaps prompted by the famous failures of such a procedure in United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991). Courts exhibit particular concern over use of filter agents or taint teams in searches of lawyers' offices, where privileged materials of many clients could be compromised. There, judges have sometimes required alternatives such as appointment of a special master, a wholly independent third party. Courts seem to recognize a distinction between circumstances where the government has not yet obtained the records on the one hand (allowing defense counsel's preliminary review), and, on the other hand, what the government should do when it has already seized the records, then realizes that it may have privileged materials (allowing use of filter agent there). Finally, some of the cases and some of the commentators suggest a role for judicial review.

In the circumstances of this search and this e-mail account, I have no reason to find that it was inherently negligent for the government to fail to foresee that its seizure of the defendant's e-mails would produce privileged documents simply because he had a lawyer, and I do not conclude that every warrant for an e-mail search must have at the outset a built-in privilege protection procedure, any more than there is such a requirement for every paper document search. Instead, I conclude that the government behaved reasonably here by immediately seeking judicial instructions once its agent noticed that e-mail headers reflected communications between lawyer and client. It is true that some cases could be read to suggest that at that point the defendant and his lawyer should have been allowed a first look at the e-mails, so as to create a privilege log and then let the government challenge it in court, rather than vice versa as here. But the defendant did not propose that procedure to the magistrate judge, and instead simply opposed the government's proposal in toto. The government sought judicial instructions, the magistrate judge modified its proposal, and then issued an order on how to proceed. I reject the argument that somehow that was per se an inappropriate way of proceeding.

Permalink 12:02:26 am, by fourth, 232 words, 3190 views   English (US)
Categories: General

CA9: AF base Col. had substantial basis under Gates for issuing military search warrant

Defendant lived on Edwards Air Force Base, and military police officers went to his house to check on his kids when they didn’t show up on a train for their mom to pick up. They found he was in the Phillippines, and left a note that a friend was taking care of the kids. They noticed 12 computers in the house, and it was in general disarray. They asked for consent to seize and search the computers, which the friend gave. Defendant found out about it and revoked consent before the search could occur. The Colonel in charge of the base authorized a military search warrant, and a civilian judge did too. While the issue was not super clear, granting Gates-deference to the Colonel, the military search warrant issuing authority, the search warrant was issued on probable cause. [The court also suggests in dicta that there was implied consent from being on a military base, but this paragraph is meaningless and wrong because case law is absolutely clear that a service member has a reasonable expectation of privacy in living quarters, especially a house.] United States v. Krupa, 633 F.3d 1148 (9th Cir. 2011).*

Officers who did not immediately release plaintiff who tested .034 on a BAC test were entitled to qualified immunity. It is not clearly established that the police had to immediately release him. Festa v. Santa Rosa County, 413 Fed. Appx. 182 (11th Cir. 2011).*

02/10/11

Permalink 10:17:39 am, by fourth, 324 words, 624 views   English (US)
Categories: General

E.D.Pa.: NCIC report of fugitive associated with car valid basis for stop

NCIC report that car was associated with a fugitive was sufficient basis for stop. "The NCIC report indicated that the Cadillac was associated with a wanted fugitive, providing probable cause to believe that the car contained either evidence related to the alleged rape-robbery or evidence of the fugitive's whereabouts in the event that Pace turned out not to be the wanted man." Court does not reach standing and suggests that he might still have had standing because he was a short term borrower of the car. United States v. Pace, 2010 U.S. Dist. LEXIS 141131 (E.D. Pa. February 8, 2010).*

The officers here lacked reasonable suspicion for defendant’s stop in a high crime area because he was carrying a beer can and was walking, maybe a little faster, toward his house and ignored the police when they called to him as he tried to enter his house. A request for ID without RS is not obstruction rising to the level of probable cause. United States v. Millner, 2011 U.S. Dist. LEXIS 12111 (N.D. Ohio February 7, 2011).*

CI was credible because, before the search warrant was sought, a large quantity of marijuana was seized where he said it would be. United States v. Griesbeck, 2011 U.S. Dist. LEXIS 12046 (E.D. Mich. February 8, 2011).*

Trucks [even though this was merely a box truck] are a heavy regulated industry, so it was proper to stop the defendant’s truck and check his papers. It turned out he was a previously deported person here illegally. The stop was valid. “In conclusion, KRS § 281.755, taken as a whole, places adequate limits on the discretion of inspecting officers. It thus passes each of Burger’s three prongs. Accordingly, the Court finds that KRS § 281.755 is a constitutional statute permitting the warrantless administrative inspection of commercial vehicles.” United States v. Galvan, 2011 U.S. Dist. LEXIS 11841 (E.D. Ky. February 7, 2011)* [Note: Since when is a mere box truck heavily regulated? This is not an interstate commerce carrier.]

Permalink 12:14:20 am, by fourth, 215 words, 600 views   English (US)
Categories: General

OH6: A search protocol is not required in a warrant

Victim of defendant’s crime was a proper CI providing first hand information for the search warrant. Just because her name was omitted does not make her anonymous. “The overwhelming weight of authority is to the effect that warrants need not contain any sort of search protocol, methodology, or other strategy restricting a computer search to specific programs or terms in order to satisfy the particularity requirement.” [citing cases] State v. McCrory, 2011 Ohio 546, 2011 Ohio App. LEXIS 475 (6th Dist. February 8, 2011).*

An electric company investigator investigating electrical theft at defendant’s house noticed no theft, but an unusual alteration of the roof, and he told the police. That person’s entry was not state action governed by the Fourth Amendment. State v. Delrio, 56 So. 3d 848 (Fla. App. 2d DCA 2011).*

Sitting over railroad tracks when the warning lights are flashing is reasonable suspicion for a stop. Here, DUI was found. State v. Appelhans, 2011 Ohio 487, 2011 Ohio App. LEXIS 427 (6th Dist. February 4, 2011).*

Defendant’s ex in an acrimonious divorce called the police as an anonymous informant to say that she was driving erratically. The officer saw nothing but stopped her anyway, and the stop was found to be valid anyway, and the trial court erred in granting the motion to suppress. State v. Baughman, 2011 Ohio 162, 192 Ohio App. 3d 45 (12th Dist. 2011).*

Permalink 12:02:25 am, by fourth, 208 words, 754 views   English (US)
Categories: General

E.D.N.C.: Detaining suspected illegal alien until ICE could arrive not unreasonable

Detention of suspected illegal alien until ICE officer could arrive was not unreasonable. United States v. Nunez-Betancourt, 2010 U.S. Dist. LEXIS 141037 (E.D. N.C. November 15, 2010), R&R adopted, 766 F. Supp. 2d 651 (E.D. N.C. 2011):

Defendant contends, however, the officers had no authority to detain him on suspicion of being an illegal alien because the officers were not federal actors and could not enforce federal immigration law. Assuming without deciding the officers had no authority to arrest Defendant on immigration charges, there is nothing in the statutes or case law cited by Defendant to suggest state officers have no authority to temporarily detain persons reasonably suspected of federal law violations. Federal and state law enforcement officials often work together on investigations; indeed, the Columbus County Sheriff's Department first learned of the possible drug trafficking at 519 Old Baggett Road through information passed along by SA Swivel, a federal agent. Defendant directly informed Detective Worley of his illegal status. Lieutenant Worthington in turn informed SA Swivel of Defendant's potential immigration violation. SA Swivel requested that Defendant be detained until he could personally interview him. Under the circumstances, it was entirely reasonable for the officers to temporarily detain Defendant until SA Swivel could arrive to confirm his illegal status.

02/09/11

Permalink 05:18:19 pm, by fourth, 212 words, 582 views   English (US)
Categories: General

OH3: Emptying pocket during patdown not justified by plain feel

Defendant was stopped for lacking a rear license plate. When he got out of his car, he reached for a pocket, and the officer conducted a patdown, emptying the pocket. The emptying the pocket was unjustified by plain feel because it was obviously not a weapon. State v. Olding, 2010 Ohio 4171, 2010 Ohio App. LEXIS 3557 (3d Dist. September 7, 2010).

Defendant was not only cooperative, he was eager to cooperate, and he volunteered when stopped, “out of the blue” ... “What you're looking for is behind the seat.” He was asked “if he cared if his vehicle was searched, and Defendant responded, ‘No, go ahead.’” This was consent. He then consented to a search of his house for more marijuana. State v. Wright, 2010 Tenn. Crim. App. LEXIS 736 (September 3, 2010).*

Officers had a homicide suspect in custody on the street after a stop, and the defendant rolled by and was acting furtively in the car. An officer approached, and he was scrambling to hide something. One thing led to another, and the defendant assaulted the officer trying to flee. When the first contact occurred, defendant voluntarily had stopped and was approached to see why he was talking to the suspect when the incident occurred. It was not a stop. State v. Williams, 2010 Ohio 4277, 2010 Ohio App. LEXIS 3619 (2d Dist. September 10, 2010).*

Permalink 03:19:07 pm, by fourth, 538 words, 784 views   English (US)
Categories: General

CA1: Controlled access to neighborhoods under PR law does not violate Fourth Amendment

Controlled access to neighborhoods, permitted under Puerto Rican law, that had the effect of excluding Jehovah’s Witnesses from entering neighborhoods did not violate the Fourth Amendment. Denial of access was not the same as a seizure. Watchtower Bible & Tract Soc’y of N.Y. v. De Jesús, 634 F.3d 3 (1st Cir. 2011):

To abate crime, Puerto Rico adopted a Controlled Access Law, P.R. Laws Ann. tit. 23, §§ 64-64h (2008), allowing local entities (called “urbanizations”), organized by the community but approved by the municipality, to control street access to areas within towns that have voted in favor of such plans. Appellants are two corporations operated by the Governing Body of Jehovah’s Witnesses 1 that challenged in federal district court both the statute and its application.

. . .

The statute, as currently amended, authorizes municipalities to grant permits to neighborhood homeowners’ associations called urbanizations to control vehicular and pedestrian access to the public residential streets within the urbanization (the term referring either to the association or to the controlled area). In such cases, the area is enclosed with fencing or other barriers and with one or more entry and exit gates for pedestrians and vehicles. P.R. Laws Ann. tit. 23, § 64. Some of the gates are manned by security guards paid by the association; others are unmanned and opened by a key or by an electric signal operated by a buzzer linked to the residences within the urbanization.

In some respects, the controlled access regime is a counterpart to the private “gated” residential communities that have developed elsewhere; but in Puerto Rico the streets within the area were and remain public property, and the municipality is closely involved in authorizing the urbanization. To obtain a permit, the residential community must create a residents’ association; propose a plan describing the permanent barriers and access arrangements; file a petition supported by at least three-quarters of the residential homeowners; and assume the costs of installing and operating the plan. P.R. Laws Ann. tit. 23, § 64a.

. . .

Turning now to the Jehovah’s Witnesses’ Fourth Amendment challenge, they say that they are subject to an unlawful “seizure” when they are brought to a halt at access points set up around the enclosures. The Fourth Amendment applies to Puerto Rico through the Fourteenth Amendment. Maldonado v. Fontanes, 568 F.3d 263, 270 n.2 (1st Cir. 2009). As already explained, the use of nominally private guards does not avoid the issue because the urbanizations and their guards qualify as state actors under the public function test. See also Romanski v. Detroit Entm’t, LLC, 428 F.3d 629, 636-38 (6th Cir. 2005), cert. denied, 549 U.S. 946, 127 S. Ct. 209, 166 L. Ed. 2d 257 (2006) (applying the public function test to private guards).

In ordinary usage, no seizure occurs at the barrier; one denied access to a government building, for example, can hardly claim to be “seized.” See Sheppard v. Beerman, 18 F.3d 147, 153 (2d Cir.), cert. denied, 513 U.S. 816, 115 S. Ct. 73, 130 L. Ed. 2d 28 (1994) (excluded visitor not “seized” where “‘free to go anywhere else that he desired,’ with the exception of [the judge’s] chambers and the court house”). The Jehovah’s Witnesses, in response, rely mainly on cases involving police roadblocks of vehicles, but these cases say or assume that detention--at least temporary detention--is the design or effect.

Permalink 03:06:53 pm, by fourth, 166 words, 554 views   English (US)
Categories: General

N.D.Okla.: Misinformation, inconsistencies, and lack of memory about travel plans was essentially RS

Misinformation, inconsistencies, and lack of memory about travel plans is a strong factor in reasonable suspicion. Slight weight may be given to lack of luggage and nervous behavior. Consent following the stop was valid. United States v. Pulido, 2011 U.S. Dist. LEXIS 10877 (N.D. Okla. February 3, 2011).*

While dispatch told the officer that the driver of a car was possibly DUI and had expired tags, the expired tags alone were enough for the stop. United States v. Frashure, 2011 U.S. Dist. LEXIS 10851 (N.D. W.Va. January 20, 2011).*

During the course of a traffic stop, marijuana was found where defendant was seated, and then the officers searched further and found a gun. That was a legal search under the automobile exception. United States v. Dillard, 2010 U.S. Dist. LEXIS 141038 (D. Nev. December 16, 2010).*

Defense counsel was not ineffective for not challenging the search warrant on the grounds he did not consent under Randolph, since consent was irrelevant. United States v. Roche-Moreno, 2011 U.S. Dist. LEXIS 11519 (M.D. Pa. February 7, 2011).*

Permalink 01:20:42 pm, by fourth, 906 words, 1020 views   English (US)
Categories: General

Cal.6: Reasonable expectation of privacy in a vehicle's "black box"

Search of a vehicle’s “black box” for data a year after an accident was without a warrant and without probable cause. The motorist retained a reasonable expectation of privacy in the data in the recorder even after a year. People v. Xinos, 192 Cal. App. 4th 637 (6th Dist. February 8, 2011):

In California v. Acevedo (1991) 500 U.S. 565 [111 S.Ct. 1982], the U.S. Supreme Court eliminated the warrant requirement for searching a closed container located in a vehicle where probable cause supports a search of the container but not a search of the entire vehicle. (Id. at pp. 573, 576, 579.) But the court emphasized that its holding did not expand the scope of searches permissible under the automobile exception. (Id. at p. 580.) Thus, in Acevedo, “the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana,” which justified a warrantless search of the paper bag. (Ibid.) But “the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.” (Ibid.) Thus, a warrantless search of a vehicle, or the containers within it, under the automobile exception continues to be circumscribed by probable cause. (Ibid.) Its holding indirectly confirms that vehicles continue to be protected by the Fourth Amendment.

We do not accept the Attorney General’s argument that defendant had no reasonable expectation of privacy in the data contained in his vehicle’s SDM. The precision data recorded by the SDM was generated by his own vehicle for its systems operations. While a person’s driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else. But we do not agree with defendant that a manufacturer-installed SDM is a “closed container” separate from the vehicle itself. It is clearly an internal component of the vehicle itself, which is protected by the Fourth Amendment. We conclude that a motorist’s subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle’s SDM.

. . .

The evidence at the suppression hearing established that the vehicle was still being held as evidence of a crime on May 11, 2007 but there had already been a disposition of the case based on “all of the [accident] reconstruction and eyewitness testimony.” The investigating officers had not accessed the data recorder prior to May 11, 2007 because they did not believe it held any relevant data since the airbags had not deployed during the collision. Officer Checke explained, “Prior to going in [on May 11, 2007], we did not believe there would be anything based on the fact that there were no air bags deployed.” Nevertheless, on May 11, 2007, more than a year after the fatal collision, they downloaded the data from the SDM at the request of the District Attorney’s Office. It was only some months later that Officer Checke learned that “a non-deployment event” may register even if air bags do not deploy.

As stated, the scope of a legitimate warrantless search of a vehicle under the automobile exception “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (U.S. v. Ross, supra, 456 U.S. at p. 824; cf. Michigan v. Clifford (1984) 464 U.S. 287, 294 [104 S.Ct. 641] [“If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched”]; Steagald v. U.S. (1981) 451 U.S. 204, 213 [101 S.Ct. 1642] [“A search warrant ... is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place”].) The scope of a warrantless search authorized by the automobile exception is “no broader and no narrower than a magistrate could legitimately authorize by warrant.” (U.S. v. Ross, supra, 456 U.S. at p. 825.) Moreover, probable cause to conduct a warrantless search must exist at the time the warrantless search is executed. (See Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216, 221 [88 S.Ct. 1472] [officers conducting warrantless search of automobile must have “‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search”]; cf. Sgro v. U.S. (1932) 287 U.S. 206, 210 [53 S.Ct. 138] [Proof of probable cause to support issuance of a warrant “must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time”].)

In cases of fatal collisions between a vehicle and a pedestrian, the particular facts and circumstances may give rise to probable cause to believe the SDM contains evidence of a crime. But in this case, the prosecution failed to show that the objective facts known to the police officers at the time of the download constituted probable cause to search the SDM for evidence of crime. The download occurred long after the collision and criminal investigation. The officers who conducted the download were merely complying with an unexplained request of the D.A.’s Office and believed no relevant data would be found. The download of the data was not supported by probable cause.

Permalink 11:46:05 am, by fourth, 125 words, 652 views   English (US)
Categories: General

WSN: "Study finds blacks, Hispanics more likely to be stopped on drug suspicion"

From the NYU student newspaper, Washington Square News: Study finds blacks, Hispanics more likely to be stopped on drug suspicion by Ashley Steves:

A possible arrest for drug possession might have just as much to do with one's race as it does with potential illegal activity.

According to a report by the New York Civil Liberties Union and Harry Levine, a sociology professor at Queens College, black and Hispanic citizens are more likely to be pulled over for suspicion of illegal drugs by the New York Police Department than white or Asian citizens.

An ongoing federal lawsuit was filed in 2008 by the Center for Constitutional Rights after it analyzed six years of the NYPD's data and found that almost 150,000 stops were made without reported justification.

02/08/11

Permalink 08:29:18 pm, by fourth, 151 words, 635 views   English (US)
Categories: General

House rejects PATRIOT Act provisions expiring Feb. 28

On MainJustice.com tonight: House Rejects Patriot Act Provisions, by Fahima Haque:

The House of Representatives on Tuesday rejected a measure to extend through December three expiring provisions of the Patriot Act, the national security legislation passed in the wake of the Sept. 11, 2001 attacks.

A coalition of liberal Democrats and conservative Republicans – both concerned about civil liberties – came together to defeat the proposed extension on a 277-to-148 vote. Twenty-six Republicans voted with 122 Democrats against the measure, while 67 Democrats and 210 Republicans supported it. Ten members did not vote.

Without congressional action, the three controversial provisions will expire on Feb. 28. The provisions are “roving wiretaps” that follow a terrorism suspect’s changing use of phone and Internet records, a “lone wolf” provision allowing law enforcement to track a target that doesn’t have an affiliation with a specific group, and so-called Section 215 orders allowing investigators to freely gather a suspect’s business records.

Permalink 04:09:17 pm, by fourth, 629 words, 4132 views   English (US)
Categories: General

CA8: Cell phone is "computer" for 18 U.S.C. § 1030 purposes

The Eighth Circuit holds that a cell phone is a “computer” for identity fraud and U.S. Sentencing Guidelines enhancement purposes, adopting the district court's findings and the government's argument. United States v. Kramer, 631 F.3d 900 (8th Cir. 2011):

We acknowledge that a “basic” cellular phone might not easily fit within the colloquial definition of “computer.” We are bound, however, not by the common understanding of that word, but by the specific — if broad — definition set forth in § 1030(e)(1). Now it may be that neither the Sentencing Commission nor Congress anticipated that a cellular phone would be included in that definition. As technology continues to develop, § 1030(e)(1) may come to capture still additional devices that few industry experts, much less the Commission or Congress, could foresee. But to the extent that such a sweeping definition was unintended or is now inappropriate, it is a matter for the Commission or Congress to correct. We cannot provide relief from plain statutory text. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (“As more devices come to have built-in intelligence, the effective scope of [§ 1030(e)(1)] grows. This might prompt Congress to amend the statute but does not authorize the judiciary to give the existing version less coverage than its language portends.”).

The government introduced the phone’s user’s manual and a printout from Motorola’s website describing the phone’s features. See JA 1-120. The government did not, however, offer any expert testimony regarding the phone’s capabilities. Although doing so might have aided our review, the materials presented to the district court were sufficient to show by a preponderance of the evidence that Kramer’s phone was an “electronic ... or other high speed data processing device” that “perform[ed] logical, arithmetic, or storage functions” when Kramer used it to call and text message the victim.

Furthermore, that processor performs arithmetic, logical, and storage functions when the phone is used to place a call. The user’s manual notes that the phone “keeps lists of incoming and outgoing calls, even for calls that did not connect,” JA 61, and “displays the phone number for incoming calls in [the] phone’s external and internal displays.” JA 66. Additionally, the phone keeps track of the “Network connection time,” which is “the elapsed time from the moment [the user] connect[s] to [the] service provider’s network to the moment [the user] end[s] the call by pressing [the end key].” JA 84. This counting function alone is sufficient to support a finding that the phone is performing logical and arithmetic operations when used to place calls.

The same is true when the phone is used to send text messages. Most fundamentally, the phone stores sets of characters that are available to a user when typing a message. See JA 42, 44. As the user types, the phone keeps track of the user’s past inputs and displays the “entered text,” see JA 44, i.e., the message being composed. The user may also delete characters previously entered, either “one letter at a time” or all at once. Id. In addition, the phone allows the users to “set different primary and secondary text entry modes, and easily switch between modes as needed when [they] enter data or compose a message,” including “iTAP” mode which uses “software” to “predict[] each word” as it is entered. JA 35. These capabilities all support the district court’s finding that the phone performed arithmetic, logical, and storage functions when Kramer used it to send text messages to the victim.

[Note: So, how can the government now argue that a cell phone seized in a search incident is not a computer, too? When is a cell phone a mere storage device and not a computer? Only when the government wants it to be not a computer, apparently.]

Permalink 07:44:36 am, by fourth, 305 words, 799 views   English (US)
Categories: General

E.D.Tenn.: SI of text messages on cell phone was valid, relying on 1969 case

Looking at defendant’s cell phone text messages was permitted by the search incident doctrine. United States v. Grooms, 2011 U.S. Dist. LEXIS 10824 (E.D. Tenn. January 3, 2011):

The United States acknowledged that a search incident to an arrest must be "substantially contemporaneous" with the arrest and confined to the immediate vicinity of the arrest, citing Shipley v. California, 395 U.S. 818, 819, 89 S. Ct. 2053, 23 L. Ed. 2d 732 (1969). But the United States also argues that "contemporaneous" is not synonymous with "simultaneous." At least under the circumstances described in this case, the court agrees. No less than the United States Supreme Court has held that a search and seizure that could have been made on the spot at the time of the defendant's arrest may legally be conducted later when the defendant arrives at the detention facility, United States v. Edwards, 415 U.S. 800, 803, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). Deputy Laudwick easily could have viewed the text messages on defendant's cell phone while he and defendant were at defendant's house at the time of his arrest. That being so, the later retrieval of the text messages at the sheriff's office was proper under the authority of Edwards, supra.

[Note: This case follows, without saying so, the rationale of the California Supreme Court in Diaz that pre-technology cases control. Look, if a court has to cite a search incident case from 1969 to justify a search incident of a 2010 cell phone, then that case is meaningless. Maybe the court knows it, but a USMJ without a creative spark to see the law developing should constrain his or her work to detention hearings and stay away from Fourth Amendment v. technology because it is moving so damn fast. I compare this case to the multitude of USMJs' limiting the government for cell phone tracking information, and I wonder what this guy is thinking.]

Permalink 07:09:51 am, by fourth, 280 words, 666 views   English (US)
Categories: General

E.D.Wis.: Use of a drug dog during a search warrant of a house did not expand it

Surveying the case law [well worth reading], the court concludes that Caballes did not bar the use of a dog inside the home during the execution of a search warrant did not expand the warrant. Also, the occupants were present and the dog did not menace anyone. United States v. Jones, 2011 U.S. Dist. LEXIS 10820 (E.D. Wis. January 26, 2011):

Ultimately, as Caballes and the other cases cited above confirm, the touchstone is reasonableness, and I find that the officers acted reasonably in the present case. The dog was present inside the home for just fifteen minutes and thus did not extend the duration of the search; he "searched" only those areas in which the items listed on the warrant could be found and thus did not exceed the authorized scope of the search; and he remained leashed and did not bark at or otherwise menace Haley and her child or damage property inside the home. In sum, the presence of the dog did not in any way elevate the level of the intrusion. Further, the evidence shows that use of the dog was not pre-planned. Officer Smith and Emo traveled to the residence and offered to assist on their own initiative, not based on a request by Osowski. And, Osowski decided to employ the dog only after he observed a scale and drug residue in plain view during his initial sweep of the residence.

Even if the officer’s questions to the passengers were about why statements were erroneous and not just to clarify, an open issue in the Tenth Circuit, it was all based on reasonable suspicion. United States v. Pulido, 2011 U.S. Dist. LEXIS 10877 (N.D. Okla. February 3, 2011).*

Permalink 07:07:30 am, by fourth, 225 words, 661 views   English (US)
Categories: General

CA7: General consent to search of a car includes prying up the rocker panels

General consent includes prying up the rocker panel to look underneath. Moreover, standing by while it is happening, assuming he was, and not objecting was consent itself. United States v. Calvo-Saucedo, 409 Fed. Appx. 21 (7th Cir. 2011) (unpublished):

Moreover, even if Calvo could not see Officer Thebeau's search, lifting the molding was within the scope of Calvo's initial consent. When a person is informed that an officer is looking for drugs in his car and he gives consent without explicit limitation, the consent permits law enforcement to search inside compartments and containers within the car, so long as the compartment or container can be opened without causing damage. See Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991); United States v. Siwek, 453 F.3d 1079, 1085 (8th Cir. 2006); United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004); United States v. Torres, 32 F.3d 225, 232 (7th Cir. 1994).

Defendant had no standing to challenge the product of a search of another person’s property he wasn’t even connected to or that person’s incriminating statements about him allegedly obtained by coercion. United States v. Brodtmann, 2011 U.S. Dist. LEXIS 10857 (S.D. Fla. February 3, 2011).*

A handcuffing does not turn a stop into an arrest. Also, a handcuffing does not neutralize any risk from the suspected weapon, so the frisk can still proceed. State v. Welch, 59 So. 3d 441 (La. App. 4th Cir. 2011).

02/07/11

Permalink 12:12:59 am, by fourth, 210 words, 596 views   English (US)
Categories: General

TN: In a counterfeiting investigation with consent, computer, scanner, and color printer are obviously instrumentalities of the crime

Defendant was arrested at home for passing three counterfeit $10 bills at McDonald’s restaurants. His roommate consented to a search of the common area, and the original $10 bill was found with computer equipment. Since computers, scanners, and color printers are now used to counterfeit money, the evidentiary value of the computers was immediately apparent justifying their seizure. A later valid search of the computers turned up child pornography. State v. Wendland, 2011 Tenn. Crim. App. LEXIS 82 (January 31, 2011).*

Probable cause was shown for the search warrants in this case by controlled buys where the CI was told to come to the buildings searched. As to a Franks challenge, the omitted information was not at all material to the finding of probable cause. United States v. Manzanares, 2011 U.S. Dist. LEXIS 10742 (D. Minn. January 5, 2011).*

Defendant was arrested in his doorway, and the entry was justified by outstanding warrants for his arrest. He got into an altercation with the officers, and that led to a protective sweep of the premises where two others were found. The officers did not have to have the arrest warrants in hand; they heard about them from dispatch. The protective sweep led to a further consent search. United States v. Perez, 2011 U.S. Dist. LEXIS 10721 (C.D. Cal. January 20, 2011).*

Permalink 12:02:09 am, by fourth, 831 words, 616 views   English (US)
Categories: General

TX1: Failure of specific time in affidavit for SW was not fatal under Gates where recency could be determined from ongoing drug operation

The failure to state time of the CI’s observations in the affidavit here were not fatal to the finding of probable cause. In its totality, it was possible to find that the probable cause was recent and it was sufficient for a finding under Illinois v. Gates. Jones v. State, 2011 Tex. App. LEXIS 820 (Tex. App.–Houston (1st Dist.) January 31, 2011):

We begin our analysis by noting that the failure to include specific dates and times of relevant events described in the affidavit in this case is not a model to be followed, something the State conceded during oral argument. The question before us, however, is whether the lack of a specific date or time is fatal in this case, or whether the totality of the affidavit nonetheless justified the magistrate’s finding of probable cause.

. . .

“The amount of delay which will make information stale depends upon the particular facts of the case, including the nature of the criminal activity and the type of evidence sought.” United States v. Allen, 625 F.3d 830, 842 (5th Cir. 2010). Facts indicating ongoing criminal activity have long been recognized as diminishing the importance of establishing a specific and immediate time period in the affidavit: “Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.” United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972), quoted in 2 Lafave, supra, § 3.7(a), at 374; see also Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973); Bernard v. State, 807 S.W.2d 359, 365 (Tex. App.—Houston [14th Dist.] 1991, no pet.). Since Gates was decided, three state supreme courts have held that probable cause existed for issuance of a search warrant in situations in which there was a continuing drug operation and the search-warrant affidavit referred to a recent event. See State v. Walston, 236 Mont. 218, 768 P.2d 1387, 1390 (Mont. 1989) (holding that continuing criminal activity such as drug dealing coupled with confidential informant’s statement that he had “recently” heard defendant state he was growing and selling marijuana was not so stale as to negate probable cause); Commonwealth v. Jones, 542 Pa. 418, 668 A.2d 114, 118 (Pa. 1995) (affidavit’s evidence of continuing drug operation coupled with confidential informant’s statement that the informant “has just” observed contraband was not insufficient merely because affidavit did not contain a specific date); Huff v. Commonwealth, 213 Va. 710, 716, 194 S.E.2d 690 (Va. 1993) (quoting Reynolds v. State, 46 Ala. App. 77, 238 So. 2d 557, 558 (Ala. Crim. App. 1970)) (affidavit’s reference to repeated drug distribution coupled with statement that events occurred “in recent weeks” and “on a recent date” was not insufficient; “A statement in an affidavit for a search warrant that an informant had ‘recently’ seen or purchased narcotic drugs, when connected with other language that would lead to the conclusion that the unlawful condition continued to exist on those premises at the time of the application for the warrant, has been held sufficient to show the time when the alleged violation took place.”). Professor LaFave has observed that reliance upon the word “recently” can be problematic in some cases, particularly in circumstances in which “the relevant facts are nothing more than a one-time purchase or viewing of drugs, as to which only a brief period of time could pass before the information could be stale.” 2 LaFave, supra, § 3.7(b), at 396 (footnotes omitted). However, his treatise also acknowledges that when confronted with an affidavit asserting that critical events occurred “recently” or using other words to that effect, most courts have been inclined to hold that this language will suffice for a showing of probable cause. Id. at 395 & n.76. In this regard, we also note that the Court of Criminal Appeals in a pre-Gates case has held that an affidavit stating that “affiants have recently received information from a confidential informant” was a sufficient reference to time when considering the totality of the affidavit. See Sutton v. State, 419 S.W.2d 857, 861 (Tex. Crim. App. 1967).

Because the affidavit adequately suggested a continuing criminal operation, including “recently” obtained information from the first confidential informant, from the affiant’s own investigation, and from the second confidential informant who made the controlled buy—all of which supported the affiant’s belief that a violation was “currently” taking place—we hold that the temporal references within the affidavit allowed the magistrate to determine there was a substantial basis for concluding that a search would uncover evidence of wrongdoing. In so holding, we hasten to add that including specific dates and times is the preferred practice for preparing an affidavit supporting a request for a search warrant, and our opinion should not be misunderstood to countenance the use of vague terms such as “recently.” However, we are mindful that a grudging, negative attitude towards warrants would be inconsistent with the Fourth Amendment’s preference for searches conducted pursuant to warrants. See Gates, 462 U.S. at 236, 103 S. Ct. at 2331.

02/06/11

Permalink 01:34:02 pm, by fourth, 126 words, 773 views   English (US)
Categories: General

Video: City inspector demands entry to property despite homeowner's demand for a warrant

This is fairly typical: An Indiana deputy sheriff is on hand to force a homeowner to submit to a health inspection despite the homeowner's demand for a warrant. See US Constitution 4th Amendment is Dead in America (video, yesterday), where the homeowner videotapes the encounter. "If you've got nothing to hide..."

One of the great ironies of the Fourth Amendment to non-lawyers is that the Fourth Amendment does not apply to noncriminal matters or misdemeanors. Why would a criminal suspect have more Fourth Amendment rights than a civilian doing nothing? Here, the deputy sheriff apparently calls for back up for a peaceful insistence on a search warrant to enter the property. The video ends before we actually see the second deputy, but his car is there.

Permalink 10:46:12 am, by fourth, 143 words, 579 views   English (US)
Categories: General

CA9: While officer may have lacked RS for stop, defendant's flight created RS

Defendant was not seized by his attempted seizure, and his Fourth Amendment rights were not violated by the attempted seizure. He fled, and that gave reasonable suspicion if there was none in the first place. United States v. Smith, 633 F.3d 889 (9th Cir. 2011).

There was no clear error in the district court’s finding that the consent was general and not just for a protective sweep. United States v. Beltran, 409 Fed. Appx. 441 (2d Cir. 2011) (unpublished).*

The officers in this case had a reasonable belief that a runaway child was in plaintiff’s house, and that was the exigent circumstance for the entry into the house. Smith v. Ray, 409 Fed. Appx. 641 (4th Cir. 2011) (unpublished).*

“[D]efendant’s unusual furtive movements before and during the stop” was reasonable suspicion for continuing defendant’s stop. United States v. Crawford, 2011 U.S. Dist. LEXIS 10669 (D. Kan. February 3, 2011).*

Permalink 10:21:29 am, by fourth, 324 words, 1243 views   English (US)
Categories: General

CA4: Violation of the Electronic Communications Privacy Act is not subject to the exclusionary rule

A violation of the Electronic Communications Privacy Act (ECPA) is not subject to the exclusionary rule. United States v. Clenney, 631 F.3d 658 (4th Cir. 2011):

Furthermore, even if Clenney had shown that Fernald violated the ECPA and Virginia law, the exclusionary rule would not be the appropriate remedy for these violations. As noted, “there is no exclusionary rule generally applicable to statutory violations.” United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006); see United States v. Oriakhi, 57 F.3d 1290, 1295 n.1 (4th Cir. 1995). In the statutory context, suppression is a creature of the statute, and its availability depends on the statutory text: “The availability of the suppression remedy for ... statutory, as opposed to constitutional, violations ... turns on the provisions of [the statute] rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights.” United States v. Donovan, 429 U.S. 413, 432 n.22, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977).

Turning to the statutes at issue, neither provides suppression of the evidence in federal court as a remedy. The ECPA empowers a victim of a § 2703(c) violation to bring a civil action for appropriate relief against violators other than the United States and provides procedures for administrative discipline of federal officials involved. 18 U.S.C. § 2707. There is no mention of a suppression remedy for such a violation, and § 2708 makes clear that “[t]he remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.”

Moreover, Congress has shown that it knows how to create a statutory suppression remedy. It did so in 18 U.S.C. § 2515, which provides for suppression of evidence obtained in violation of the statutes governing wiretaps. Yet it chose not to do so in the context of § 2703(c) violations. Therefore, Congress has made clear [*20] that it did not intend to suppress evidence gathered as a result of § 2703(c) violations. See United States v. Perrine, 518 F.3d 1196, 1202 (10th Cir. 2008); United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003).

Permalink 09:52:12 am, by fourth, 364 words, 835 views   English (US)
Categories: General

MI: 911 caller's information about possible DUI was sufficient to stop

After considering federal and state law in detail, the court concludes that the officer had reasonable suspicion for a stop based on a 911 caller’s information about a potential DUI. People v. Barbarich, 291 Mich. App. 468, 807 N.W.2d 56 (2011) (2-1):

Certainly more facts could have strengthened the officer's suspicion, but in cases involving tips of erratic driving of a motor vehicle, fewer facts are necessary to justify the investigatory stop. Wheat, 278 F3d at 730-737; Whalen, 390 Mich at 682. "[T]he Fourth Amendment does not require a policeman to simply shrug his shoulders and allow a crime to occur or a criminal escape." Whalen, 390 Mich at 682. Had the officer waited to personally observe defendant engage in dangerous and erratic driving, his suspicion would have surpassed a reasonable articulable suspicion and become a probable cause to seize defendant and issue an appropriate citation. "Thus, police would lose the intermediate step of investigatory stops based on reasonable suspicion." Wheat, 278 F 3d at 733. Here, sufficient indicia of reliability supported the citizen's tip and Bommarito was justified in conducting the investigatory stop. The tip provided sufficient information to accurately identify the vehicle and to create an inference that a crime or civil infraction had occurred; and, the tip was also sufficiently reliable, based on the woman's contemporaneous observations. Under the totality of the circumstances, Bammarito had a reasonable articulable suspicion that justified an investigatory stop of defendant's vehicle. The circuit court erred by concluding otherwise.

The district court correctly ruled that the protective frisk for weapons was done when the officer asked defendant what was in his pocket that he felt, and the defendant replied “it’s a bullet.” Thus, the motion to suppress was properly granted. United States v. Perez, 408 Fed. Appx. 198 (10th Cir. 2011) (unpublished).*

The search warrant was for women’s “gold watches” from burglaries. When the police were in defendant’s home, they found a gold watch that turned out to be unique and from a home invasion murder. The unique nature of the watch was not apparent when it was seized, and it was still described by the warrant. Another piece of “jewelry” was validly seized under plain view. Garcia-Perlera v. State, 197 Md. App. 534, 14 A.3d 1164 (2011).*

02/05/11

Permalink 11:44:50 am, by fourth, 302 words, 1029 views   English (US)
Categories: General

UC Davis: "Explosive- and drug-sniffing dogs’ performance is affected by their handlers’ beliefs"

Explosive- and drug-sniffing dogs’ performance is affected by their handlers’ beliefs / UC Davis study finds detection dogs may exhibit the “Clever Hans” effect from the UC Davis Health System (Feb. 1, 2011):

The performance of drug- and explosives-sniffing dog/handler teams is affected by human handlers’ beliefs, possibly in response to subtle, unintentional handler cues, a study by researchers at UC Davis has found.

The study, published in the January issue of the journal Animal Cognition, found that detection-dog/handler teams erroneously “alerted,” or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present.

“It isn’t just about how sensitive a dog’s nose is or how well-trained a dog is. There are cognitive factors affecting the interaction between a dog and a handler that can impact the dog’s performance,” said Lisa Lit, a postdoctoral fellow in the Department of Neurology and the study’s lead author.

“These might be as important — or even more important — than the sensitivity of a dog’s nose.

So, is Illinois v. Caballes based on a wrong premises such that it should be overruled?

See Drug WarRant, which gets a hat tip for this post. Update: Caballes talks of the “well trained dog,” but cases have largely ignored that concept with a “close enough for government work” mantra. I don’t think this study even gives “legs” to that concept since it means nothing in the case. Can the defense bar give it meaning?

Another update: This is an article cited inside the Davis article brought to my attention by a reader in Wisconsin: Handler beliefs affect scent detection dog outcomes by Lisa Lit, Julie B. Schweitzer, Anita M. Oberbauer in Animal Cognition published January 12, 2011. I didn't check on it; he did. Good catch.

Permalink 08:19:29 am, by fourth, 278 words, 836 views   English (US)
Categories: General

CA10: Waiver of probable cause for issuance of warrant in the district court not subject to plain error appellate review

Defendant’s waiver of probable cause for issuance of warrant issue in the district court not subject to plain error appellate review. United States v. Burke, 633 F.3d 984 (10th Cir. 2011):

Burke filed a timely pretrial motion to suppress evidence, and the district court held an evidentiary hearing before denying the motion. The briefs and the oral arguments at the hearing focused exclusively on whether the warrant lacked sufficient particularity to guide the police in their search of Burke’s property. At no time did Burke argue the affidavit was insufficient to provide the magistrate with probable cause. That contention appears for the first time on appeal, and we thus consider it waived.

. . .

When read alone, both Rule 52(b) and Rule 12 appear applicable to pretrial suppression motions. When considered together, however, Rule 12's waiver provision must prevail:

The latter is much more specific than is Rule 52(b); while Rule 52(b) states generally that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” Rule 12(e) singles out motions to suppress, stating that a “party waives any [suppression] defense, objection, or request not raised by the [pretrial] deadline the court sets.” (Emphasis added.) In this context, “we apply the well-settled maxim that specific statutory provisions prevail over more general provisions.” Chavarria v. Gonzalez, 446 F.3d 508, 517 (3d Cir. 2006) (internal quotation marks omitted). Thus we avoid “applying a general provision when doing so would undermine limitations created by a more specific provision.” Varity Corp. v. Howe, 516 U.S. 489, 511, 116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996).

Rose, 538 F.3d at 182-83. Thus, under the plain text of the rules, Rule 12's absolute waiver controls.

Permalink 07:47:57 am, by fourth, 167 words, 678 views   English (US)
Categories: General

E.D.N.C.: Defense standing argument contradicted claim officers had no PC to believe he was present at time of entry to find him

Defendant’s argument that he “frequently stayed” in the apartment searched contradicted his argument that officers lacked probable cause to believe he was there. Besides, officers also got consent to enter. United States v. Hancock, 2010 U.S. Dist. LEXIS 140958 (E.D. N.C. December 9, 2010):

Assuming arguendo that he has standing to challenge the search, Defendant’s contention that the officers lacked probable cause to believe he was inside the apartment directly contradicts his assertion that he “frequently stayed at [Ms. Ware’s] apartment.” [DE-25, p.2 n.1]. Defendant’s position is untenable. In order to have standing to challenge the search, Defendant must show he had an expectation of privacy in Ms. Ware’s apartment. Minnesota, 525 U.S. at 88; Bonner, 81 F.3d at 475. If indeed he “frequently stayed” at Ms. Ware’s apartment, as he maintains, the officers attempting to effect the arrest warrant would have had exceedingly reasonable grounds to believe Defendant was at Ms. Ware’s apartment. Defendant cannot have his cake and eat it, too.

Permalink 07:39:07 am, by fourth, 244 words, 603 views   English (US)
Categories: General

S.D.Ill.: Seizure of cell phone for CP images was with PC and exigent circumstances

A CI told the police defendant had sexually explicit pictures of children on his cell phone, which defendant had shown the CI. Officers talked to two girls who were in the pictures who confirmed their identity. Officers had probable cause and exigent circumstances to seize the cell phone to secure it to get a search warrant to search it. The officers were concerned that the CI might have a change of heart and tipoff the defendant who could then have the opportunity to erase the pictures. A six day delay (including a weekend) in obtaining a search warrant for the cell phone was not unreasonable under the circumstances. United States v. Burgard, 2011 U.S. Dist. LEXIS 9893 (S.D. Ill. February 2, 2011).

Defendant’s refusal to talk to the police in jail after being Mirandized did not amount to a refusal to consent to a search. So, his roommate's later consent was not over his denial of consent under Randolph. United States v. Trainor, 2011 U.S. Dist. LEXIS 10315 (D. N.D. January 26, 2011).*

Defendant was on parole, and he was at a friend’s house to stay for a while. “While Mr. Lowe has argued that he was merely an overnight guest at the house and thus the prospective consent didn’t apply, the Court finds that Mr. Lowe had made the house his home by the time of the search.” Alternatively, there was consent. United States v. Lowe, 2011 U.S. Dist. LEXIS 10342 (S.D. Ind. February 2, 2011).*

Permalink 07:01:15 am, by fourth, 110 words, 530 views   English (US)
Categories: General

WSJ: "Tea Party Unlikely to Derail Patriot Act Renewal"

Tea Party Unlikely to Derail Patriot Act Renewal, by Evan Perez in the Wall Street Journal. Three provisions expire February 28:

The Patriot Act, one of the most prominent expansions of federal authority in the past decade, received overwhelming Republican backing in 2006 when it was first up for renewal. This year, even as the surge of the tea party brought to Washington a new legion of lawmakers suspicious of government power, the law again has a good chance of being reauthorized.

The first test comes this month, when three provisions of the act giving the government greater ability to monitor suspected terrorists expire and Congress must decide whether to extend them.

02/04/11

Permalink 10:09:09 am, by fourth, 316 words, 700 views   English (US)
Categories: General

NJ: No showing of exigency for automobile search, so suppressed

Defendant was not arrested until after the search, so the search incident doctrine cannot apply. Instead, the automobile exception had to be considered, and there was no showing of exigency or that a telephonic warrant could not have been sought, so the search is suppressed. State v. Shannon, 419 N.J. Super. 235, 16 A.3d 1071 (2011):

Here, there was no indication that the Asbury Park police officers did not have sufficient time to obtain a telephonic warrant pursuant to Rule 3:5-3(b). It was not late at night, the stop was in a residential area, and four police officers were initially present at the scene with defendant, who was alone. Raisin indicated that no one had approached the vehicle during the stop. Furthermore, there was no testimony elicited at the suppression hearing that suggested that the police officers or potential evidence in the car were in danger. Defendant was cooperative and had stepped away from the passenger compartment of the vehicle. In the companion case to Pena-Flores, State v. Fuller, 198 N.J. 6, 14 (2009), the Court found that because the stop took place in broad daylight, and sufficient police officers were at the scene and not in danger, "[t]here was simply no urgent, immediate need for the officers to conduct a full search of the automobile." Id. at 32. Here, the circumstances were similar as the police were in no danger, and a telephonic warrant could have been sought expeditiously. [¶] Accordingly, we reverse the order denying defendant's motion to suppress the evidence. In light of our decision regarding the motion to suppress the evidence, it is not necessary to consider defendant's remaining arguments.

Warrant for the premises permitted a search inside a garbage bin that produced a bloody fannypack with the victim’s blood on it. The evidentiary value was immediately apparent. Commonwealth of the N. Mariana Islands v. Pua, 2009 MP 21, 2009 N. Mar. I. LEXIS 21 (December 31, 2009)* (decided under the Commonwealth Constitution).

Permalink 09:38:31 am, by fourth, 273 words, 726 views   English (US)
Categories: General

CA3: Defendant's live-in girlfriend validly consented, and Randolph doesn't apply to an absent "objector"

Defendant’s girlfriend with whom he lived mistakenly believed she was his wife, but he wasn’t yet divorced from his first wife. Nevertheless, she had common authority to consent to a seizure and search of his computers. He was not present so Randolph-type revocation did not apply. Defendant’s claim that the government acted unreasonably in waiting three months to search the computer was undercut by the fact he didn’t ask for return of the hard drives for 18 months. United States v. Stabile, 633 F.3d 219 (3d Cir. 2011)*:

Here, Deetz had authority to consent and voluntarily consented. Deetz had common authority to consent to a search of the house because, as a cohabitant, she mutually used the property along with Stabile and exercised joint access and control over the house. See Matlock, 415 U.S. at 172 n.7. Deetz's mistaken belief that she was married to Stabile does not alter the analysis because an unmarried cohabitant has authority to consent to a search of shared premises. See id. at 176. Finally, we note that at the time Deetz granted consent, Stabile was not present. Stabile's absence distinguishes this case from Georgia v. Randolph, which applies only when a "physically present resident" refuses consent. 547 U.S. at 120. Therefore, because Deetz exercised her access and control over the premises absent any contemporaneous refusal by a co-resident, she had authority to consent at the time of the search. [¶] We also conclude that Deetz's consent was voluntary. ...

[Note: Of course an absent defendant is going to object after evidence of a crime is found. Randolph would be a nullity with the exception that the defendant sought to impose here.]

Permalink 09:28:06 am, by fourth, 167 words, 591 views   English (US)
Categories: General

E.D.Pa.: Stop in high crime area and refusal to show hands is RS

Defendant who was stopped in a high crime area who wouldn’t look at the officer and wouldn’t move his hands from his groin area created reasonable suspicion. United States v. Greenwood, 2011 U.S. Dist. LEXIS 10123 (E.D. Pa. February 1, 2011).*

Defendant was in violation of most of the conditions of his probation for failure to report and not being found where he was supposed to be. The probation search of his house and car when he finally appeared was reasonable. United States v. Brown, 2011 U.S. Dist. LEXIS 9719 (S.D. Ga. January 3, 2011).*

Defendant was on parole for drug offenses, and he got arrested for another. That was reasonable suspicion for a parole search of his house. United States v. Wilcher, 2010 U.S. Dist. LEXIS 140856 (N.D. Ga. December 16, 2010).*

Defendant’s consent was found voluntary. He admitted that he consented but felt that he had no right to refuse consent and that wasn’t enough. United States v. Smith, 2010 U.S. Dist. LEXIS 140832 (S.D. Ga. December 22, 2010).*

Permalink 09:19:09 am, by fourth, 413 words, 594 views   English (US)
Categories: General

D.Neb.: Stop of men sleeping in a car was without RS

The officer in this case approached a car with two sleeping occupants and ordered them out of the car for a frisk and search. This was without reasonable suspicion or consent. The USMJ’s R&R is rejected. United States v. Mayfield, 2011 U.S. Dist. LEXIS 10078 (D. Neb. February 1, 2011)*:

However, the court is very troubled by the next step taken by the officers. In this case the officers asked the driver and passenger to get out of the car so they could pat down the occupants and search the car. There is nothing consensual about that request, particularly given the fact that the car was surrounded and blocked off by other police vehicles and a number of police officers. See Florida v. Bostick, 501 U.S. 429, 434 (1983) (if reasonable person feels as though he need not answer question put to him and may go his own way then no Fourth Amendment violation; Fourth Amendment invoked when it loses its consensual nature); see also United States v. $231,930.00 in U.S. Currency, 614 F.3d 837, 843 (8th Cir. 2010) (same). The defendant clearly was not free to leave. See United States v. Mendenhall, 446 U.S. 544, 553 (1980) (person is seized by show of authority and when freedom of movement is restrained). The officers agreed that they positioned themselves to limit the movement of the defendant. That combined with the number of officers and the directives of the officers is sufficient to constitute a seizure in this case. See United States v. Villa-Gonzalez, 623 F.3d 526, 532 (8th Cir. 2010) (number of officers, limiting movement of suspect, use of language indicating necessity of compliance, and physical touching all factors that might indicate the encounter is not consensual).

There was no gun in plain view when the officers first observed the sleeping suspects or when they initiated conversation with the occupants. It was not until after the police required that the occupants exit the vehicle that the officers saw the gun. The gun was only visible because of the open door which allowed the officers to peer in and see the bottom of the seat. There is no testimony of any kind that these occupants otherwise acted suspiciously. There is no testimony that these occupants attempted to put their hands or body in a position that would have created a fear of harm on the part of the officers. There is no evidence the occupants tried to escape. On the contrary, the two occupants appear to have been quite compliant with the directives given to them.

02/03/11

Permalink 08:35:02 am, by fourth, 286 words, 607 views   English (US)
Categories: General

CA7: Reasonable suspicion stops can be based on a completed felony, not just on ongoing one

Reasonable suspicion stops can be based on a completed felony, not just on ongoing one. United States v. Bullock, 632 F.3d 1004 (7th Cir. 2011):

Bullock contends that for officers to detain him pursuant to Terry there must be “a basis for believing that the person is engaging (present tense) in criminal activity or is about to be engaged (future tense) in criminal activity.” Reply Br. 3. However, officers can stop and detain a suspect for reasonable suspicion that the suspect has engaged in a completed felony. United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985) (“[I]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in ... a completed felony, then a Terry stop may be made to investigate that suspicion.”); Booker, 579 F.3d at 838-39 (reasonable suspicion existed to stop and detain defendant who was suspected of having committed battery).

Defendant’s conduct and statements not in harmony with what the officer observed when defendant’s SUV was in the parking lot at a convenience store that was a “hot spot of criminal activity” created reasonable suspicion to believe that defendant was armed. Thus, his car should be subjected to a protective search. Defendant was stopped after he left the convenience store parking lot. When stopped, he was nervous, fidgety, and wouldn’t look the officer in the eye, and his story didn’t match the officer’s observations in the parking lot. United States v. Stewart, 631 F.3d 453 (8th Cir. 2011).*

Plaintiff’s feeling he was compelled to take a polygraph examination to clear his name did not mean that he was unlawfully seized under the Fourth Amendment. Natal-Rosario v. Erickson, 410 Fed. Appx. 351 (1st Cir. 2011) (unpublished).*

Permalink 08:06:11 am, by fourth, 214 words, 738 views   English (US)
Categories: General

D.Minn.: Detention of truck driver for "Level III Inspection" for fatigue was without RS

Continued detention of a tractor trailer driver for a “Level III Inspection” of his potential fatigue level violated the Fourth Amendment because there was no reasonable suspicion he was fatigued or impaired. Owner-Operator Indep. Driver Ass'n v. Dunaski, 2011 U.S. Dist. LEXIS 9289 (D. Minn. January 28, 2011):

1. Warrantless searches in a closely regulated industry are constitutional as long as (1) a substantial government interest is met; (2) the inspection is necessary to further the regulatory scheme; and (3) the regulatory program advises the owner of the commercial vehicle that the search is pursuant to law, defines the scope of the inspection, and adequately limits the inspecting officers' discretion. New York v. Burger, 482 U.S. 691, 702-03 (1987).

2. Although Defendants were authorized to temporarily detain House on May 10, 2008, for a routine Level III Inspection, Defendants were not entitled to conduct the scope of investigation and questioning that they did. In doing so, Defendants continued the detention of House beyond what was reasonably related to the circumstances that justified House's detention at the beginning of the weigh station stop. Defendants did not have a reasonable articulable suspicion that House was impaired, and the continued duration of the detention as well as the broad scope of questions by the Defendants constituted a seizure in violation of House's Fourth Amendment right against an unreasonable seizure.

Permalink 07:54:23 am, by fourth, 148 words, 702 views   English (US)
Categories: General

OH8: Wife's general consent to seize and search the family computer

Defendant’s wife’s consent to seize and search his computer was general and unlimited, and not coerced. The trial court’s suppression order is reversed. State v. Trotter, 2011 Ohio 418, 2011 Ohio App. LEXIS 351 (8th Dist. January 27, 2011).*

Defendant counsel filed a motion to suppress which he withdrew before it was ruled on. This was not IAC because there clearly was consent for the search. State v. Cranford, 2011 Ohio 384, 2011 Ohio App. LEXIS 324 (2d Dist. January 28, 2011).*

A mere social guest on the premises had no standing. He had no clothing there, and he was just there for a little while when the police arrived. State v. Nevins, 2011 Ohio 389, 2011 Ohio App. LEXIS 329 (2d Dist. January 28, 2011).*

An officer’s training in spotting DUI drivers after they are lawfully stopped can be credited when determining reasonable suspicion for continuing the stop to investigate DUI. State v. Wiesenbach, 2011 Ohio 402, 2011 Ohio App. LEXIS 356 (11th Dist. January 31, 2011).*

02/02/11

Permalink 09:35:40 am, by fourth, 141 words, 876 views   English (US)
Categories: General

N.D.Ga.: Motion to reopen suppression hearing denied; no showing of necessity or that outcome would be different

The court has the discretion to reopen a suppression hearing, and here it rules against the defendant. There was a claim that two additional witnesses would help, but there was no affidavits from them and it isn’t clear they would change the outcome. There was also no showing of why the witnesses weren’t called in the first place. United States v. Diaz, 2010 U.S. Dist. LEXIS 140776 (N.D. Ga. December 30, 2010).

Defendant’s motion to suppress showed a sufficient contention for a hearing on the scope of the search under his consent, but not on whether consent was valid in the first place. He signed a consent form that permitted a search for a gun, and he does not seem to dispute that it was by consent. United States v. Jimenez, 2011 U.S. Dist. LEXIS 8888 (S.D. N.Y. January 26, 2011).*

Permalink 09:21:42 am, by fourth, 342 words, 776 views   English (US)
Categories: General

CT: Chasing fleeing felon into a house at 3 a.m. was with exigent circumstances

Entry into a house at 3 a.m. was with probable cause and exigent circumstances chasing a fleeing probable felon. State v. Owen, 126 Conn. App. 358, 10 A.3d 1100 (2011):

Here, the evidence readily would persuade a reasonable person to believe that criminal activity had occurred in that three police officers, at 3 a.m., heard the sound of multiple gunshots close to their location in a residential area. The evidence also would lead a reasonable person to believe that there was a fair probability that contraband or evidence of a crime would be found in 1050 Stratford Avenue. Within moments of hearing the sound of gunshots, the officers arrived at the location of the gunshots. They observed four men fleeing the scene, which was an otherwise deserted city street. A reasonable person would infer that their presence in the area of the gunshots, the early hour and their flight was consistent with their involvement in criminal activity related to the gunshots. The three men who did not flee into the residence were apprehended, searched and found to be unarmed. On these facts, a reasonable person would suspect that the fourth man, who was observed fleeing into the residence, was in possession of evidence of a crime, to wit: the gun used in the incident. Upon knocking at the door of the residence, the police did not learn any facts that would dispel their suspicions, but spoke with Smith, who provided them with facts concerning who was present in the residence. These representations, however, contradicted what the police officers themselves had witnessed moments earlier, thus heightening in the mind of a reasonable person a suspicion that criminal activity was afoot in the residence.

A student and his parents sued their school district because of a suspicionless drug dog sniff of school property that led to another student getting arrested. By the time the case reached the Connecticut Supreme Court, the student had graduated, and, because there wasn’t another similar search in the meantime, the case was moot. Burbank v. Bd. of Educ. of Canton, 299 Conn. 833, 11 A.3d 658 (2011).*

Permalink 08:29:48 am, by fourth, 310 words, 572 views   English (US)
Categories: General

W.D.Okla.: Encounter on a bus in OKC led to valid consent

Defendant was on a cross-country Greyhound trip and several officers boarded the bus in OKC just before it was to depart, and one stood in front of the bus. They talked to passengers and got to defendant in the rear, asked for his ticket and saw he was going from a “source city” (Phoenix). They asked for consent to search his bag, and defendant gave it. Nothing was found. Defendant was nervous and looking at his feet. The officer asked to search his shoes, and defendant handed them over. Drugs were found in the shoes. The search was with valid consent under Bostick. United States v. Corral, 2011 U.S. Dist. LEXIS 8679 (W.D. Okla. January 28, 2011) [Note: I find these cases utterly unbelievable and creation of a complete legal and factual fiction. The bus can’t leave because multiple police got on. They are walking down the aisle talking to everybody. This is inherently coercive of consent, and nothing in the 20 years since Bostick was decided has changed this for me. Instead, cases like this just confirm it.]

Defendant did not show that routine destruction of the video of his stop would effect his case in a § 2255. United States v. Rumley, 2011 U.S. Dist. LEXIS 8850 (W.D. Va. January 31, 2011).*

The USMJ properly concluded that the defendant did not have to be Mirandized prior to consent to a search. United States v. Smith, 2011 U.S. Dist. LEXIS 9004 (S.D. Ga. January 31, 2011).*

A USDJ has an independent duty to review the record and recordings of the testimony before the USMJ when credibility of witnesses is challenged. LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988). After that review, the USDJ reaches the same conclusion that consent was valid. United States v. Robinson, 2011 U.S. Dist. LEXIS 8582 (N.D. Ga. January 27, 2011),* R&R United States v. Robinson, 2010 U.S. Dist. LEXIS 140679 (N.D. Ga. November 29, 2010).*

02/01/11

Permalink 07:30:18 am, by fourth, 191 words, 600 views   English (US)
Categories: General

AK: Officer's misrepresentation as to duty to provide blood or urine sample was purged by defendant talking to counsel before consenting

Defendant was involved in an accident where a pedestrian was hit by his car. While the officer misrepresented his basis for taking a blood or urine sample, defendant’s talking with a lawyer dissipated the taint. Anderson v. State, 246 P.3d 930 (Alaska App. 2011).*

Habeas appellant’s uncertified (non-COAed) Fourth Amendment claim was not reached. Stanley v. Cullen, 633 F.3d 852 (9th Cir. 2011)*:

We decline to certify Stanley’s uncertified claim that he was denied a “full and fair” opportunity to litigate his Fourth Amendment search and seizure claims during the pretrial phase of his trial. See Stone v. Powell, 428 U.S. 465 (1976). Stanley has not made a substantial showing of the denial of a constitutional right in that claim. 28 U.S.C. § 2253(c)(2).

Not raising a Franks challenge until the post-suppression hearing brief was a waiver of the issue. United States v. Vazquez, 406 Fed. Appx. 430 (11th Cir. 2010) (unpublished).*

While executing an animal welfare warrant, officers saw a list or URLs indicating possible child pornography, so another search warrant was sought for that. [The legality of the warrant was not an issue in this opinion.] United States v. Clark, 762 F. Supp. 2d 203 (D.Me. 2011).*

Permalink 07:04:44 am, by fourth, 172 words, 670 views   English (US)
Categories: General

E.D.Mich.: Radio traffic showed no reasonable suspicion for stop

The radio traffic between the on-the-scene officer and his supervisor showed that defendant was committing no crime and there was no reasonable belief that defendant was in possession of a gun. United States v. Martin, 2011 U.S. Dist. LEXIS 8281 (E.D. Mich. January 28, 2011).*

The officer had cause for stopping defendant. 911 received a shooting call describing an African-American male with braids and a blue or black hoodie. Arriving five minutes later, the officer saw one man matching that description. United States v. Varner, 2010 U.S. Dist. LEXIS 140542 (D. Minn. December 21, 2010).*

Defendant was stopped for a traffic offense and was nervous and had engaged in furtive movements in the car. He had a drug record, too. This justified the officer asking for consent to search for drugs, which defendant gave. Kelly v. State, 331 S.W.3d 541 (Tex. App. – Houston (14th Dist.) 2011).*

The CI predicted certain behavior from the defendant and another, and officers watched and saw that behavior. That was reasonable suspicion for the stop. United States v. Juarez, 408 Fed. Appx. 183 (10th Cir. 2011) (unpublished).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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Most recent SCOTUS cases:
2009 to date:

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

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

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

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

2009-10 Term:

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

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


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

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"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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