Based on the testimony of the officers, it was apparent defendant consented to a search of his car, and then he did nothing to withdraw consent. Then the officers could use a drug dog. United States v. Nothstein, 424 Fed. Appx. 645 (9th Cir. 2011) (unpublished).*

There was probable cause for the search of defendant’s car, so the automobile exception applied. United States v. Marcum, 2011 U.S. Dist. LEXIS 31802 (E.D. Ky. March 4, 2011).*

There was probable cause for issuance of the search warrant in this case based on two CIs. State v. Brown, 2011 Ohio 1461, 2011 Ohio App. LEXIS 1260 (3d Dist. March 28, 2011).*

On the totality of circumstances, it appears that the defendant was not “seized” when he and two others were talking to three officers. If it was a seizure, there was reasonable suspicion. United States v. Hines, 2011 U.S. Dist. LEXIS 32224 (S.D. Ga. March 24, 2011).*

A guy named Inmon rented a motel room for one night for one person and then left. Motel security noticed three people separately go to the room carrying bags. The police were called, and Inmon was arrested for no DL when he showed back up at the motel. Motel security then told the police the rest were trespassers and evict them. Nobody would answer the door, so motel security said to break in. Three people were inside with drugs. As trespassers, they had no reasonable expectation of privacy in the room. United States v. Bohmont, 2011 U.S. App. LEXIS 6287 (8th Cir. March 25, 2011) (unpublished):

We address Inmon’s and Bohmont’s Fourth Amendment challenges separately, as each can rely only on his own expectation of privacy. Inmon rented the room that the officers searched, giving him a reasonable expectation of privacy in the room. See Conner, 127 F.3d at 666. However, once he was arrested and the officers told the hotel security guard they were taking Inmon to jail, the security guard asked the officers to remove all other guests from Inmon’s room, as he considered them to be trespassers with no legitimate basis for being in the room. The officers took Inmon to the room with them when they went to evict the other occupants at Mr. Bastean’s request, and Inmon was present when the officers knocked on the door and told the occupants they had to leave because they were trespassing. Even though Mr. Bastean did not explicitly tell Inmon that he had been evicted from the hotel, we believe these facts are sufficient to establish that Inmon had in fact been evicted. Missouri law allows a hotel to eject a person if the hotel operator “reasonably believes that the individual is using the premises for an unlawful purpose.” Mo. Rev. Stat. § 315.075(3). Mr. Bastean called the police because of concerns that the room was being used to traffic drugs. The officers’ discovery of drug paraphernalia on Inmon’s person was sufficient to justify Mr. Bastean’s concern that there were illegal drugs in the room and allow him to eject Inmon when the officers arrested him and told Mr. Bastean they were taking Inmon to jail. Under our precedent, once an individual is lawfully ejected from a hotel, the rental period terminates and “control over the hotel room revert[s] to the management.” United States v. Rambo, 789 F.2d 1289, 1295-96 (8th Cir. 1986) (holding that a hotel occupant who was asked to leave by police officers acting on behalf of hotel management who complained of defendant’s disorderly behavior was justifiably ejected under state law and no longer had a reasonable expectation of privacy in the hotel room); see also Young v. Harrison, 284 F.3d 863, 869 (8th Cir. 2002) (holding that defendant “was justifiably evicted from the hotel because his friends created a disturbance” despite absence of any state statute addressing evictions from a hotel, such that “the control over the hotel room reverted to the management and [the defendant] ‘[could] not assert an expectation of being free from police intrusion upon his solitude and privacy in a place from which he has been justifiably expelled’” (quoting Rambo, 789 F.2d at 1296)). Thus, at the time the officers forcibly entered the hotel room at Mr. Bastean’s request, Inmon had no reasonable expectation of privacy in the hotel room, and the subsequent search of the room did not violate his Fourth Amendment rights.

Bohmont’s expectation of privacy in Inmon’s hotel room is even more attenuated. Bohmont did not rent the room, and the district court determined that he was not Inmon’s overnight guest but rather was nothing “more than [a] ‘mere visitor[] in the room.’” (R&R at 14.) ...

ABAJournal.com: Police in Fla. Town Use Email and Skype to Obtain Warrants While Still on the Scene, linking to Florida Today's Palm Bay police use Skype in DUI cases. From the latter:

Palm Bay detectives are using an Internet communications tool to create a high-tech way of getting official testimony to swear out warrants faster.

The method, using the popular online service Skype, helps officers in the field obtain blood search warrants in suspected DUI cases. Skype software allows video conferencing and phone calls over the Internet.

"When it comes to impairment, time is of the essence," Cpl. Morgan said in a statement.

"The goal is get the most accurate capture of evidence closest to the time of the incident and our experience using Skype helps us do that."

I've been advocating this over telephonic warrants for a long time. Most medium size cities and above have full computer links in police cars just for communication with dispatch, and they use digital radio or broadband. E-mail really helps eliminate errors in telephone recording and scope of warrants. Skype can record the transmission for litigation.

On Grits for Breakfast yesterday: More boondoggle than bonanza: Southbound checkpoints face Fourth Amendment challenges, about proposed Texas legislation for using checkpoints as revenue generators, hoping to cut into Mexican drug cartel profits:

Rob Kepple of the Texas District and County Attorneys Association told the Senate Transportation and Homeland Security Committee that, under existing Fourth Amendment jurisprudence in Texas, it's "not a viable policy" to use southbound checkpoints to "bootstrap our way" into expanded asset seizures or to check immigration status. Ouch!

The most problematic question, said Kepple is whether DPS can do its own checkpoints aimed at searching for money, guns, drugs, stolen cars, etc., as opposed to checking for drivers licenses and liability insurance? Courts look at the intent of the checkpoint, he said, and if the intent is to generate forfeiture revenue that probably won't cut it.

[Note: for some reason, my software isn't letting me imbed a link, so search for "grits for breakfast"]

At last, a DA who was willing to adhere to the Fourth Amendment. Over in Florida, the Governor wants to drug test everybody who works for or gets money from the state, obviously oblivious to the Fourth Amendment issues and the cost. The DAs are silent because it is not yet a criminal justice issue. Nobody else is silent, however, because there have been dozens of articles and blog posts about it, and I haven't bothered to link to any others. OK, here's Mother Jones's.

North Carolina’s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010 by Lauren Hobson, 89 N.C. L. Rev. ___ (forthcoming 2011) [sorry, the PDF link on this site does not work]. Abstract:

Most Americans can probably hum a few bars of the theme song to one of television’s most successful franchises: Law & Order. Watching the ever-cynical Detective Briscoe investigate crimes alongside the good-looking Detective Logan made viewers root for police to catch New York City’s criminals. Sometimes, the “bad guys” won when the judge excluded the smoking gun from trial, introducing Americans to some of the costs to the criminal justice system in preserving defendants’ rights. As much as society hates seeing a criminal go free, maintaining a defendant’s rights before and during trial is integral to the American justice system. In passing the DNA Database Act of 2010, the North Carolina General Assembly has reduced the costs on law enforcement and prosecutors to obtain a conviction but increased costs to the civil liberties of criminal defendants who have not yet been tried by a jury of their peers. At first blush, one might wonder, “What is wrong with using DNA samples to close cold cases and close fresh ones even faster?” The problem lies in trampling arrested individuals’ civil rights in the footrace to a conviction.

This Recent Development will argue that collecting an arrestee’s DNA under the DNA Database Act of 2010 without a search warrant violates the Fourth Amendment’s protection against unreasonable searches. In Part I, this Recent Development will discuss the passage of the DNA Database Act and the statute itself. Part II will establish that a cheek swab of an arrested individual is a search. Since “[s]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions,” Part III will demonstrate that none of the “well-delineated exceptions,”—including search incident to lawful arrest, inventory search, or plain view—justify the warrantless search. Furthermore, as discussed in Part IV, at least two state courts differ in their treatment of this issue, and the Minnesota Court of Appeals’ invalidation of a statute analogous to North Carolina’s is instructive on the Fourth Amendment unreasonableness of cheek swabs under such statutes. Finally, Part V will show that the policy reasons advanced by supporters of DNA database laws are not persuasive, and there is a less constitutionally questionable method to achieve many of the same goals.

A laptop seized at the border could be moved 170 miles away for a search under the Fourth Amendment. United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011), vacated on grant of rehearing en banc (March 20, 2012):

Today we examine a question of first impression in the Ninth Circuit: whether the search of a laptop computer that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away can still fall within the border search doctrine. The district court considered the issue to be a simple matter of time and space. It concluded that the search of property seized at an international border and moved 170 miles from that border for further search cannot be justified by the border search doctrine. We disagree.

We find no basis under the law to distinguish the border search power merely because logic and practicality may require some property presented for entry—and not yet admitted or released from the sovereign’s control—to be transported to a secondary site for adequate inspection. The border search doctrine is not so rigid as to require the United States to equip every entry point—no matter how desolate or infrequently traveled—with inspectors and sophisticated forensic equipment capable of searching whatever property an individual may wish to bring within our borders or be otherwise precluded from exercising its right to protect our nation absent some heightened suspicion.

Still, the line we draw stops far short of “anything goes” at the border. The Government cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim. Rather, we continue to scrutinize searches and seizures effectuated under the longstanding border search power on a case-by-case basis to determine whether the manner of the search and seizure was so egregious as to render it unreasonable.

An officer could not search a mislaid iPhone under the excuse that it was to find who the owner was since it was undisputed that the owner was coming back for it. People v. Schutter, 249 P.3d 1123 (Colo. 2011):

We need not here decide whether, and if so, to what extent, police officers may conduct a warrantless examination of property that has been lost or mislaid but not abandoned. Under the undisputed facts of this case, the defendant’s iPhone was neither abandoned, lost, nor mislaid such that the Aspen police would have had any cause to identify the owner to return it. Whether or not he knew the defendant’s name, Officer Burg was aware from the moment the iPhone came into his possession that the defendant inadvertently left it in the store’s locked restroom and knew precisely where it was; that his immediate demand for its return had been refused by the store clerk, who controlled access to the restroom; and that he left the area only when he was told by the clerk that he would have to come back later to retrieve his phone.

According to Officer Burg’s own undisputed testimony, the store clerk told him all of this when he handed over the phone. See People v. Rivas, 13 P.3d 315 (2000) (“When controlling facts are undisputed, even though they are not specifically included in the findings of the trial court, the effect of those facts will also be treated as a matter of law.”). Officer Burg also testified that it was 4:20 in the morning, and at that time, the defendant had been gone from the store for at most an hour. Under these circumstances, the officer had no grounds to believe the property’s safe return required the discovery of any further information. Assuming, without deciding, that the Fourth Amendment could tolerate, under some set of circumstances, some kind of warrantless examination of a cell phone to ascertain how it might be returned to its owner, this case cannot present that set of circumstances.

A roadblock looking for an abducted child was valid when the person the police were looking for was stopped. This was not a general crime control roadblock like Edmond--it was specific and targeted to a serious crime, a child abduction, albeit one that happened two days earlier. Underwood v. State, 2011 OK CR 12, 252 P.3d 221 (2011):

P16 The situation here is similar to the one in Lidster -- the obvious difference being that the person challenging the roadblock here was actually implicated in the crime that prompted the roadblock in the first place. That difference, however, is of no constitutional significance, since the legality of a search or seizure is not dependent on the kind of evidence it produces. At the suppression hearing, Agent Mabry sponsored the guidelines used in this case, known as the FBI's “Child Abduction Response Plan.” Mabry testified about the procedures he had been trained to use when deploying roadblocks to canvass for witnesses and generate leads in such cases. The district court found nothing unreasonable about the roadblock and, applying the factor analysis from Brown and Lidster, we reach the same conclusion. First, the public concerns justifying the roadblock were grave - considerably more so than in Lidster. All police knew was that a little girl had been reported missing two days before. Time was of the essence; the girl's life might be at stake. Second, the roadblock clearly advanced the public interest of informing people in the area about the girl's disappearance, and asking them about anything suspicious they may have seen. The police set up four roadblocks surrounding the immediate vicinity of the apartment where Jamie lived. They were deployed around the same time of day that Jamie had disappeared, on the belief that many local motorists tend to travel the same routes around the same time each day. Finally, the interference with individual liberty occasioned by the roadblocks was minimal. The plan contemplated no vehicle searches, and the record offers no evidence that any motorist was seriously inconvenienced.

Defendant was arrested on an arrest warrant and a search incident included lifting the nearby mattress which revealed evidence. That search incident was valid. United States v. McNish, 2011 U.S. Dist. LEXIS 31853 (E.D. Pa. March 25, 2011):

The question for this Court is thus whether lifting up the mattress while arresting McNish violated his Fourth Amendment rights. A number of courts have concluded that a search under a nearby mattress conducted pursuant to a valid arrest does not violate the Fourth Amendment. See, e.g., United States v. Bennett, 555 F.3d 962, 967-68 (11th Cir. 2009) (“If there is reason to search the edge of a mattress by touch, there is reason enough to lift it up.”); United States v. Hernandez, 941 F.2d 133, 137-38 (2d Cir. 1991); Watkins v. United States, 564 F.2d 201, 204-05 (6th Cir. 1977); United States v. Snard, Crim. A. No. 09-212, 2009 WL 3105271, at *8-9 (E.D. Pa. Sept. 27, 2009); United States v. Yanez, 490 F. Supp. 2d 765, 776 (S.D. Tex. 2007); United States v. Parker, Crim. A. No. 05-505, 2006 WL 163562, at *4-5 (D. Ariz. Jan. 20, 2006).

The officers had way more (“far in excess of the probable cause threshold”) than probable case for this stop. United States v. Tandy, 2011 U.S. Dist. LEXIS 32024 (S.D. Ga. March 28, 2011).*

Defendant was stopped for a window tint violation, and he had no ID. When a computer check was run, three arrest warrants were found for him. So, a search incident of the car was valid [without a word as to whether the search incident was otherwise justified under Gant]. State v. Wynn, 2011 Ohio 1441, 2011 Ohio App. LEXIS 1239 (2d Dist. March 25, 2011).* [Note: This is an example of pre-Gant thinking still carrying over from those who still don't get it. And, Gant is two years old April 21st. I have a case here where the Arkansas Court of Appeals held that the defendant was in "the vicinity" for the search incident doctrine when he was at least 75' away from the car, but the Arkansas Supreme Court has agreed to review it. Still waiting.]

Plaintiff’s claim that he was unnecessarily thrown around and slammed into a wall during an arrest for criminal contempt for FTA stated enough of a claim to overcome qualified immunity, so the case will have to go to trial. Ansell v. Ross Twp, 2011 U.S. App. LEXIS (3d Cir. March 25, 2011) (unpublished).*

Defendant and two others were pacing in a neighborhood in a suspicious manner. An officer approached to ask questions and for ID, which was not a seizure. When he decided to pat them down, defendant bolted as soon as he was touched. This was reasonable suspicion of wrongdoing when he was finally seized. United States v. Elmore, 2011 U.S. Dist. LEXIS 31461 (S.D. Ga. March 18, 2011).*

The record supports the trial court’s conclusion that the defendant consented to a complete search of the house including e-mails. Commonwealth v. Walorz, 79 Mass. App. Ct. 132, 944 N.E.2d 1061 (2011),* review denied 460 Mass. 1103, 949 N.E.2d 924 (2011).

Tolentino v. New York, posted here after cert granted November 15, 2010, and argued March 21st, was dismissed yesterday by SCOTUS as improvidently granted. SCOTUSBlog is here.

To me, this case was a ringer to just limit the exclusionary rule even more.

This was brought to my attention today: Christopher Soghoian, on slight paranoia from December 2009: 8 Million Reasons for Real Surveillance Oversight:

Executive Summary

Sprint Nextel provided law enforcement agencies with its customers' (GPS) location information over 8 million times between September 2008 and October 2009. This massive disclosure of sensitive customer information was made possible due to the roll-out by Sprint of a new, special web portal for law enforcement officers.

The evidence documenting this surveillance program comes in the form of an audio recording of Sprint's Manager of Electronic Surveillance, who described it during a panel discussion at a wiretapping and interception industry conference, held in Washington DC in October of 2009.

It is unclear if Federal law enforcement agencies' extensive collection of geolocation data should have been disclosed to Congress pursuant to a 1999 law that requires the publication of certain surveillance statistics -- since the Department of Justice simply ignores the law, and has not provided the legally mandated reports to Congress since 2004.

Defendant was pulled over and arrested on a warrant. He pulled into a high school parking lot when he was stopped. Taking the car for inventory was unnecessary under the regulations at issue. People v. Spencer, 408 Ill. App. 3d 1, 948 N.E.2d 196, 350 Ill. Dec. 127 (2011):

Defendant further maintains that the evidence presented at the suppression hearings establishes that the Fremd parking lot was private property and that the police did not have the authority to tow his vehicle because his car was legally parked therein. The police have the authority to seize and remove vehicles that are impeding traffic or threatening public safety and convenience. Clark, 394 Ill. App. 3d at 348. However, the mere fact that an arrestee’s car would be left unattended is insufficient to justify impoundment unless the vehicle would be illegally parked. People v. Ursini, 245 Ill. App. 3d 480, 483 (1993).

. . .

We determine that the evidence presented at the suppression hearings does not establish that the impoundment of defendant’s vehicle was lawful. Although Detective Pistorius testified that defendant’s car was not legally parked at the time he was arrested, he did not provide the reason it was not legally parked. The State did not present any evidence showing that defendant was prohibited from parking in the lot, and Detective Pistorius testified that he did not recall seeing any signs indicating that parking was forbidden or that unauthorized vehicles would be towed. Also, the State did not present any evidence showing that defendant’s vehicle was impeding traffic or threatening public safety (Clark, 394 Ill. App. 3d at 349), and Detective Pistorius testified that it was not impeding traffic when defendant was arrested. While the State asserts in its brief that Detective Pistorius would have potentially put schoolchildren at risk by leaving the vehicle in the parking lot, it does not explain, nor can we see, how the car’s presence in the lot would have endangered any of the school’s students. In addition, the State did not present any evidence showing that defendant consented to the impoundment of his vehicle or that an employee or representative of Fremd High School requested that it be towed. Schultz, 93 Ill. App. 3d at 1076. Furthermore, Detective Pistorius testified that the car was impounded pursuant to RMPD policy that an arrested person’s vehicle shall be towed, and not because it was illegally parked.

Thus, the record shows that defendant made a prima facie case that the evidence that was taken from the lock box in the trunk of his car was obtained during an illegal search by showing that the search was conducted without a warrant. Gipson, 203 Ill. 2d at 306-07. The State was then required to come forward with evidence rebutting that claim and showing that the evidence was collected during a legal inventory search. Id. at 307. The mere fact that defendant’s vehicle would have been left unattended is insufficient to justify its impoundment. Ursini, 245 Ill. App. 3d at 483. In this case, the State did not present sufficient evidence to show that the threshold requirement of a legal inventory search, that the impoundment of defendant’s vehicle was lawful, was met (Clark, 394 Ill. App. 3d at 348-49), and we therefore determine that the warrantless search of defendant’s vehicle cannot be justified as an inventory search.

Defendant voluntarily checked himself into a hospital, and a police officer came to talk to him. He was not restrained there by the police. In the course of the conversation, he “reluctantly” agreed to let the officer look at his cell phone for missed calls, and he handed the phone over and watched the officer try to navigate through the phone. Being unfamiliar with the phone, the officer accidentally stumbled upon a text message defendant did not want him to read. This was a plain view and did not illegally exceed the extent of consent given. United States v. Dobbs, 2011 U.S. Dist. LEXIS 31171 (N.D. Ga. February 3, 2011):

While it is clear that a warrantless search conducted pursuant to consent must remain within the scope of the consent given, United States v. Street, 472 F.3d 1298, 1308-09 (11th Cir. 2006), nothing in the facts of this case suggest that Agent McCleod exceeded the scope of Dobbs' consent. Agent McCleod testified that he navigated to the missed call display as directly as possible, that it was necessary for him to navigate through a display of text messages in order to get to the missed call display, and while navigating, he did not view the content of any of the text messages. Agent McCleod's actions are analogous to those of an officer walking through exterior areas of a home in order to access an interior room in a residence that he has been granted consent to search. Any information Agent McCleod saw incidentally while conducting the search within the scope of consent is admissible because it was in plain view on his path as he navigated to the display of missed calls directly from the screen which Dobbs had on display when he handed the phone to the agents.

Defense counsel filed a motion to suppress the search in his case, but defendant pled guilty on the advice of counsel and expressed no qualms about it. His claim of “bad advice” regarding the guilty plea just doesn’t cut it. United States v. Thomas, 772 F. Supp. 2d 164 (D. D.C. 2011).*

While the defendant was not obligated to tell the officer his name, he gave two names in short order, and succeeded in giving the officer reasonable suspicion. The false names itself was a crime. He was not detained until he was told to sit on the curb. The dashboard camera video shows it to be consensual. United States v. Gatamba, 419 Fed. Appx. 529 (5th Cir. 2011) (unpublished).*

In a CI arranged drug deal, officers had probable cause for defendant’s stop and search based on the fact the person arranging the deal made a call and she showed up, the person went to her car and retrieved cocaine. State v. Chesney, 2011 Tenn. Crim. App. LEXIS 215 (March 24, 2011).*

Cruise ship passenger’s cabin was subjected to a Customs search on arrival at Port Everglades, and apparently the crew of the cruise ship provided additional information to justify it. It is also apparent that CBP knew a lot about the defendant before the search. Reasonable suspicion was not required, but here they had it. United States v. Williams, 419 Fed. Appx. 902 (11th Cir. 2011) (unpublished)*:

Officer Bradley testified that Costa Rica is “a source country” for narcotics and child exploitation. Williams traveled to Costa Rica alone, using his middle name, and had previously taken flights and cruises to Costa Rica. Two of Williams’s prior flights to and from Costa Rica were shortly before he took cruises there, which Bradley had seen other cruise ship passengers do to arrange drug deals. Williams had a criminal history, and Bradley learned that when Williams traveled using his middle name, he was not stopped by Customs. Prior to searching Williams’s cabin, Bradley had also learned that Williams declined to have his room cleaned the day he came back onto the ship from Costa Rica. These circumstances demonstrate that Williams traveled to “a source country for narcotics and child exploitation” in a manner that drug traffickers had been known to use, he used the name which would allow him to pass Customs officers without being questioned about his criminal history, and he declined to have his room cleaned after returning from a drug source country. We find no error in the district court’s conclusion that these seemingly innocuous acts nevertheless constituted reasonable suspicion to an officer trained in investigating the travel patterns of cruise passengers.

In any event, 19 U.S.C. § 1581 permits Customs officers “at any time [to] go on board of any vessel or vehicle at any place in the United States or within the customs waters ... and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board.” 19 U.S.C. § 1581(a). Although reasonable suspicion may be required for “highly intrusive searches of a person’s body such as a strip search or an x-ray examination,” we have held that the suspicionless search of a crew member’s cabin on a foreign cargo ship while it was docked on the Miami River was not a violation of the Fourth Amendment. United States v. Alfaro-Moncada, 607 F.3d 720, 729, 732 (11th Cir. 2010).

On DrugWarRant.com by Pete Guither: Caballes v. Illinois continues to destroy the Fourth Amendment, logic, and reason.

Definitely Justice Stevens's low point on the court.

Tackling is a seizure. Here, it was with reasonable suspicion. United States v. Guardado, 2011 U.S. Dist. LEXIS 30973 (D. Utah March 22, 2011).*

The police did not violate the terms of an anticipatory warrant by waiting two hours to execute the warrant. The box had been delivered to the house and had not been opened (according to its signal), and defendant was seen leaving the house without it, so it was reasonable to conclude the package was still there. United States v. Lawson, 2011 U.S. Dist. LEXIS 30948 (D. Alaska March 22, 2011).*

Defendant's first motion to suppress argued that officers had her lift her shirt to reveal drugs, but she amended the motion to say that the drugs fell out when she got out of the car. The court finds probable cause for the stop of the car. United States v. Lighten, 2011 U.S. Dist. LEXIS 30796 (W.D. N.Y. January 26, 2011).*

While the President signed a 1982 Convention on the Law of the Seas treaty authorizing the U.S. to exercise jurisdiction out twenty-four miles rather than twelve, the President in 1999 signed an executive proclamation approving that distance as a “contiguous zone.” The appearance of defendant’s boat off Puerto Rico in rough seas with the crew claiming they were testing a boat that had been repaired just didn’t wash with the Coast Guard since they ignored radio contact, so they boarded it. It was a legal boarding and search, and defense counsel was not ineffective for not challenging it. Delgado-Negrón v. United States, 2011 U.S. Dist. LEXIS 30925 (D. P.R. March 24, 2011).*

Defendants were indicted for staging a traffic stop to steal drugs. The fact they had probable cause for their stop of the victims is no defense, and “quite simply, nonsense.” United States v. Torres-Sobrado, 733 F. Supp. 2d 325 (D. P.R. 2010)*:

The arguments made by the defendants, first, that no property was unlawfully seized because the property in question consisted only of illegal substances and, second, that the defendants had probable cause to conduct the fateful traffic stop and therefore, presumably, that the resulting search and seizure were lawfully conducted is, quite simply, nonsense. Even if the property taken from the victim is property that is not constitutionally protected, and even if the movants were accompanied during the traffic stop by a “real” member of the Puerto Rico Police Department acting on a tip from a reliable source, the defendants’ stop, detention, and search of Andrades were illegal according to the allegations in Count Six. Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit. For the defendants to argue that they had probable cause for the actions they are charged with, despite the fact that they are charged with staging that stop, despite the fact that neither is a real law enforcement official, despite the fact that they allegedly dressed up as law enforcement officials, is stunningly irrational and baseless. The Court rejects these arguments outright.

Orin Kerr on Volokh Conspiracy: Significant Test Case in Seattle on Lawfulness of Ex Ante Search Limitations in Computer Warrants about a February opinion unsealed in Seattle about protocol for computer searches: In The Matter Of The United States Of America’s Application For A Search Warrant To Seize And Search Electronic Devices From Edward Cunnius applying the Ninth Circuit's Comprehensive Drug Testing case:

It didn’t take long, it seems. Recently, Magistrate Judge James Donohue in Seattle unsealed an opinion he handed down on February 11 denying a warrant application to search the computers of a suspect, Edward Cunnius. I have posted the opinion here: In The Matter Of The United States Of America’s Application For A Search Warrant To Seize And Search Electronic Devices From Edward Cunnius. Judge Donohue agreed that the government had established probable cause to search Cunnius’s computers for evidence of his selling counterfeit Microsoft software on Craigslist. Although the opinion isn’t particularly clear on this, he doesn’t appear to argue that the warrant fails the particularity requirement. However, Judge Donohue denied the warrant application because the government refused to go along with two restrictions from Judge Kozinski’s concurrence in CDT. First, Judge Donohue wanted the government to promise it would not rely on the Fourth Amendment’s “plain view” exception to try to bring charges for evidence outside the scope of the warrant. Second, he wanted the government to agree to search the computer using a taint team. The government refused to go along with those requirements, and Judge Donohue indicated he would deny the application on that basis. Prosecutors then asked Judge Donohue to write an opinion explaining the reasons for his denial so the government could appeal the decision to the District Court. The opinion was sealed until Cunnius was indicted, at which time the opinion was made public.

In a case of first impression, directing the driver of a vehicle to “perform[ ] a set-up procedure” of rolling up the vehicle’s windows and turning the blower on high for a dog sniff was not any different than “prepping” a suitcase by squeezing the air out of it first. (Over a vigorous dissent.) People v. Bartelt, 241 Ill. 2d 217, 349 Ill. Dec. 949, 948 N.E.2d 52 (2011) (4-3):

After a lawful traffic stop, a police officer performed a set-up procedure, which entailed ordering the driver, defendant, Cheryl L. Bartelt, to roll up her truck’s windows and turn the ventilation system’s blowers on high before a second officer conducted a canine sniff of the exterior of her truck. The dog alerted on both doors of the truck, and a subsequent search of the truck resulted in discovery of drug evidence. Defendant was arrested and charged with unlawful possession of methamphetamine .... She filed a motion to suppress the evidence recovered during the traffic stop. The circuit court of Adams County granted the motion to suppress. The State filed an interlocutory appeal .... A majority of the appellate court reversed the circuit court's order suppressing the evidence. 384 Ill. App. 3d 1028. This appeal followed.

We are asked to determine whether the officers’ actions in ordering defendant to roll up her windows and turn the blowers on high before conducting a dog sniff of the truck's exterior constituted an unreasonable search under the fourth amendment. We hold that it did not. Accordingly, we affirm the judgment of the appellate court, reverse the judgment of the circuit court, and remand to the circuit court for further proceedings consistent with this opinion.

. . .

In addition, it is undisputed that the officers had the authority to conduct an exterior dog sniff of defendant's truck during the traffic stop and that the dog sniff itself was not a search subject to the fourth amendment. See Illinois v. Caballes, 543 U.S. at 408-10 (holding that a suspicionless dog sniff conducted during a lawful traffic stop that reveals no information other than the location of a substance no individual has any right to possess is not a search subject to the fourth amendment).

Finally, there is no dispute that Officer Tyler ordered defendant to comply with the set-up procedure. As noted, the State conceded in the circuit court that Officer Tyler ordered defendant to perform the procedure and did not give her the option of refusing to comply.

The only issue on appeal is whether the officers' actions in ordering defendant to roll up her windows and turn the blowers on high before conducting the dog sniff of the truck's exterior constituted an unreasonable search under the fourth amendment. This seems to be an issue of first impression nationwide because the parties have not cited, nor has our research revealed, any decisions that have addressed the issue.

. . .

The set-up procedure at issue in this case is analogous to the luggage “prepping” procedure approved by the Fifth Circuit in United States v. Viera, 644 F.2d 509 (5th Cir. 1981). In United States v. Viera, Drug Enforcement Administration agents “prepped” the defendants’ suitcases before a dog sniff by pressing them lightly with the hands and slowly circulating the air, the purpose of which was to procure a scent from the bags. Viera, 644 F.2d at 510. The Fifth Circuit rejected the defendants’ argument that the “prepping” procedure was a search in violation of the fourth amendment, holding that a dog sniff is not a search within the meaning of the fourth amendment and that a light press of the hands along the outside of the suitcases was not sufficiently intrusive to require a different result. Id.

Similarly, in the present case, a dog sniff is not a search within the meaning of the fourth amendment, and ordering defendant to roll up her windows and turn the blowers on high before conducting the dog sniff was not sufficiently intrusive to require a different result. See id.

JUSTICE FREEMAN, dissenting:

This appeal squarely presents the question of whether a police officer’s order to a driver, during a routine traffic stop, to perform a “set-up” procedure to facilitate a canine sniff for narcotics, is an unreasonable seizure which violates the fourth amendment. It is my view that it is. Despite the fact that this precise issue was litigated by the parties in the circuit court, and even though the majority’s own recitation of the factual background and procedural history of this cause repeatedly references seizure principles, my colleagues decline to analyze this appeal in the context of whether defendant was subjected to an unreasonable seizure. Instead, they review the propriety of the police action by inquiring whether the “ordering” of defendant to perform the set-up procedure is “an unreasonable search.” Slip op. at 8. Using this inappropriate analytical framework, the majority holds that there is no constitutional violation. As I agree with neither the majority’s analysis nor the result, I respectfully dissent.

[Note: I find United States v. Viera, 644 F.2d 509 (5th Cir. 1981), completely unavailing to the majority. The suitcase there was sitting in front of them. Is sitting on it a search? Not really, although if I were the judge, I say yes, but I’m not. Look at this case at its irreducible minimum: Could the officer have entered the car to do the “set up procedure”? If the answer is no, then how could the driver be ordered to do the “search” for the police? The driver couldn’t. And, just saying Cabelles says a dog sniff isn’t a search is no answer because they would have to enter the car to make it work, and that is where the majority completely fails in its duty here.]

Defendant was presented with an arrest warrant for guns and a state court order to produce all firearms in his possession as a condition of bond which he declined to answer. After three tries, without answering any of the questions about what was going on, defendant provided the guns and talked, and this could not be shown by the government to be voluntary by the preponderance of the evidence. Moreover, his statements at the same time were not voluntary either. United States v. Swanson, 635 F.3d 995 (7th Cir. 2011).*

Twenty-five people walking on a road near a beach in the Virgin Islands soaking wet and carrying bags was reasonable suspicion they entered the country illegally. The VIPD acted as expeditiously as possible in the detention and calling INS officers to the scene. United States v. Cherubin, 2010 U.S. Dist. LEXIS 21897, 53 V.I. 783 (D. V.I. March 8, 2010).*

Merely asking questions of a passenger in a car after detention of the driver does not imply wrongdoing or an additional detention of the passenger. The passenger validly consented. State v. Jones, 241 Ore. App. 597, 250 P.3d 452 (2011)*:

Defendant argues that, by virtue of asking him if he had drugs or weapons, Jensen was implicitly accusing defendant of criminal activity. However, without a “show of authority that restrict[ed] [defendant’s] freedom of movement,” “the content of [Jensen’s] question[ ] did not cause defendant to be seized.” Ashbaugh, 349 Or at 317 (internal quotation marks omitted; emphasis in original). There is no such “show of authority,” as the Supreme Court has implicitly construed that term in Ashbaugh, on this record. Jensen was the sole officer talking to defendant; Berne was still in his patrol car preparing the driver’s citation, and a third officer was standing some distance away with the driver. There were no weapons drawn, and Jensen testified that he spoke with defendant in the same tone he used when answering counsels’ questions at the motion hearing. We conclude that, under Ashbaugh, Jensen did not “intentionally and significantly” interfere with defendant’s liberty or freedom of movement and, also under that case, we must conclude that a reasonable person in defendant’s situation would not have believed Jensen had done so.

Defendant’s consent to a search of the car at the conclusion of a traffic stop was voluntary and not coerced. United States v. Morelos-Ayala, 2011 U.S. Dist. LEXIS 30365 (M.D. Ala. January 28, 2011).* Interesting is the fairly intense series of questions, none of which revealed any real reasonable suspicion, which would only be directed at somebody the officer suspected was hauling drugs:

The tape shows that when defendant Morelos, the driver of the Accord, stopped his vehicle, Autery approached the passenger side and obtained Morelos’ license and registration, explained why he had stopped the car, and told Morelos that he was going to write him a warning ticket. Autery instructed Morelos to come back with him to the patrol car so he could get some information, and Morelos complied. Both Autery and Morelos seated themselves in the patrol car. While Autery ran a check of the license and registration and prepared the warning ticket, he engaged Morelos in conversation, asking him a number of questions. These included, inter alia, the following:

Where you headed to?
Where you live at?
How long have you had that car?
Where’s your cousin live?
Where’s your wife staying in Montgomery?
How long has she been there?
Do you work?
What kind of work do you do?
You don’t have a car?
How long has your cousin lived in Houston?
What’s his name?
What kind of work does he do?
How many times have you been to Montgomery?
You don’t remember what part of town they stay at?
Does your wife work? Has she got family in Montgomery?
Is that who she’s staying with?
What’s his name?
What’s he do?
You ever gotten tickets before?
You ever been arrested?
Does [your brother] go to Mexico much?
When’s the last time you’ve been to Mexico?
How long of a trip is it from Houston up here?

Morelos responded to each of the questions. When the license and registration check concluded, Autery gave Morelos back his license and registration and handed him the warning ticket. He asked Morelos, “Have you got everything? You get your license and all?” When Morelos responded in the affirmative, Autery said, “Let me ask you this. While I’m out enforcing the traffic laws of Alabama I’m also out looking for any type of contraband. Do you know what I mean by contraband?” When Morelos did not immediately reply, Autery inquired more specifically whether there were any weapons or drugs in the car. He asked, “No marijuana? No cocaine? No clavos?1” Morelos answered in the negative.

1 Clavos, which is Spanish for nails, is also a slang term for secret compartment.

I'm in the Memphis airport, and going from Terminal B to A takes you past security. A pilot is sitting down, shoes off, getting the blue glove treatment: a search of his bag and an ion scan of his computer for explosives. Three TSA employees, at least two of which were apparently supervisors (TSA logos on their black shirts, but khaki pants, one with a radio in hand) watching intently, like this pilot was a danger to society.

It appears he apparently refused to go through the backscatter scanner, which MEM now has. If his bag and computer went through x-ray, what was the point of searching everything else? Retaliation for insisting on not being overradiated?

Is a request to not be overradiated these days a reasonable request when food from Japan arriving here has unacceptable levels of radiation in it, and airplanes landing from Japanese airports have increased levels of radiation?

The government showed probable cause for taking defendant’s DNA to connect him to clothing that was found related to a crime. United States v. Willis, 2011 U.S. Dist. LEXIS 30142 (D. Minn. March 14, 2011).*

Knights requires at least reasonable suspicion for a probation search, and they had it here. State v. Bennett, 2011 Tenn. Crim. App. LEXIS 211 (March 22, 2011).*

The issue: “In her appellate brief, Bryant asserts that the Superior Court erred in considering evidence obtained when government officials entered the property where she was staying because that evidence was obtained in violation of her Fourth Amendment right to be free from unreasonable searches and seizures. Bryant also asserts that the Superior Court violated her substantive and procedural due process rights in granting temporary custody to DHS because the evidence did not establish probable cause that her children were in imminent danger of serious injury.” However, the court lacked a final order. Bryant v. People of the Virgin Islands, 53 V.I. 395, 2010 V.I. Supreme LEXIS 1 (January 15, 2010).*

Omitting critical information about the informant undermined the claimed probable cause, and the only reasonable inference was that it was to mislead the USMJ issuing the search warrant. And, the good faith exception did not apply. United States v. Simmons, 771 F. Supp. 2d 908 (N.D. Ill. 2011):

In this case, while there is no direct evidence of Officer Murphy’s intent to mislead the issuing judge, the inferential evidence leads to the conclusion that the omissions were material because Officer Murphy had “obvious reasons” for omitting the information, and the information was “critical” to the probable cause determination. As an initial matter, Officer Murphy was clearly aware that the CI was recently arrested, had an extensive criminal history, and was untested as an informant. During the evidentiary hearing, he testified that he ran the CI’s criminal record and saw the CI’s criminal history, any gang affiliations, and that the CI had used aliases in the past. He also had never previously worked with the CI, and had no indications that the CI had provided reliable information in the past. However, the Court concludes that Officer Murphy omitted any reference to any of these facts because of their potentially adverse impact on the issuing judge’s probable cause determination. While the omission of these facts would not be “critical” in a case in which there was other evidence to support probable cause, in this case, given the weak police corroboration of the CI’s statement and the absence of any other indicia of reliability of the CI and his statement, the omission of these facts was material.

The Court easily concludes that Officer Murphy had “obvious reasons” to omit the adverse facts. The reliability and credibility of information in a warrant application are essential to a judge’s probable cause determination, and the omitted facts strongly detract from the reliability of the CI—the sole source of the inculpatory information in the complaint. It is well-established that a newly-arrested informant “merits a greater dose of skepticism when assessing his credibility.” United States v. Olson, 408 F.3d 366, 370 (7th Cir. 2005). ...

Importantly, the lack of other indicia of reliability in this case makes these facts particularly “critical” to the probable cause determination. ...

Here, with the inclusion of the omitted information, the totality of the circumstances establishes that there is not sufficient evidence to find that probable cause supported the warrant. First, the post-arrest context in which the CI provided his statement, his criminal history that raises significant doubts about his credibility, and the sparsely-detailed statement he provided to the officers indicate that the CI's statement was not “worthy of credence.” Second, the officers here took only minimal steps to corroborate the innocent details of the CI's statement. Finally, while the live testimony of a confidential informant before the issuing judge may sometimes cure these insufficient indicators of reliability, in this case, the issuing judge was not apprised of key facts pertaining to the CI, and thus was unable to adequately gauge his credibility. The Court discusses each of these factors in turn, beginning with the CI's statement.

Where there was no fact issue on defendant’s detention and search question, he is not entitled to a jury instruction on it. Cummings v. State, 2011 Tex. App. LEXIS 2133 (Tex. App.—Houston (14th Dist.) March 24, 2011) (dissenting opinion here):

Appellant complains that he received ineffective assistance of counsel based on his trial counsel's failure to request an article 38.23 instruction. As noted, because there was no fact issue material to the lawfulness of appellant's detention and arrest, appellant was not entitled to an instruction under article 38.23. See Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (rejecting claim for ineffective assistance when trial counsel failed to request article 38.23 instruction). Appellant's trial counsel's failure to request an instruction to which appellant was not entitled is not ineffective assistance. See id. We conclude that the trial court did not abuse its discretion by denying appellant's motion for new trial regarding alleged ineffective assistance based on counsel's failure to request an article 38.23 instruction.

[Note: This is unique to Texas. Everywhere else, a suppression issue is just a question for the court, and the jury gets not say.]

Warrantless arrests of suspected aliens for criminal prosecution require taking the suspected alien before a USMJ for an appearance, but an arrest for deportation doesn’t. United States v. Bernal, 2011 U.S. Dist. LEXIS 30484 (D. Neb. March 23, 2011):

The regulations implementing 8 U.S.C. § 1357(a) carefully distinguish between warrantless arrests for the purpose of commencing civil deportation proceedings, and warrantless arrests for criminal violations of the immigration laws. Quintana, 623 F.3d at 1240 & n.1 (noting that the regulations require that when a person is “arrested and charged with a criminal violation of the laws of the United States, the arresting officer shall advise the person of the appropriate rights as required by law,” and must take the defendant without unnecessary delay before a magistrate judge or other appropriate judicial officer, whereas “[b]ecause arrests under § 1357(a)(2) for the purpose of deporting an illegal alien result in ‘civil’ or ‘administrative’ removal proceedings, aliens held in that type of custody are not entitled to the protections of Rule 5(a) of the Federal Rules of Criminal Procedure [providing for appearance before a magistrate]”).

The student’s person and stuff were searched because he was apparently stoned at school. The search of the student’s locker search was also with reasonable suspicion. Also, there was no reasonable expectation of privacy in the locker. In re S.M.C., 2011 Tex. App. LEXIS 2069 (Tex. App.—El Paso March 23, 2011).*

The officer’s knowledge, based on credible CI information, was sufficient to show PC and nexus for search of defendant’s house. It was a fair inference he was keeping drugs in his house and leaving the house for delivery of the drugs. Branch v. State, 335 S.W.3d 893, 361 S.W.3d 699 (Tex. App.—Austin March 18, 2011), Petition for discretionary review refused by 2011 Tex. Crim. App. LEXIS 1156 (Tex. Crim. App., Sept. 14, 2011)cert. denied, 2012 U.S. LEXIS 1589 (U.S., Feb. 21, 2012)*:

Based on the information in the affidavit, the magistrate could have inferred that: (1) Branch carried the cocaine that was found in his pocket out of his home; (2) the confidential informants, especially First CI and Third CI, had some familiarity with Branch and his affairs; (3) Branch had recently begun delivering cocaine to buyers rather than allowing buyers to come to his home; and (4) Branch was attempting to deliver cocaine to a buyer when the traffic stop occurred.

Given the facts in the affidavit and the reasonable inferences that could be made from the facts, we conclude that the magistrate had a substantial basis for determining that probable cause existed to search Branch's home. Although it is possible that Branch took all the cocaine stored at his home with him when he left the home, it is at least as likely that the cocaine in his pocket was just one portion of a larger amount that he was storing in the home. See id. at 64. Accordingly, we conclude that the trial court did not err in declining to suppress the evidence discovered in Branch's home pursuant to the search warrant.

The law of misdemeanor strip searches not well settled in 2002, and so the jailers have qualified immunity from suit. But, there is a biting dissent. Bame v. Dillard, 09-5330 (D.C. Cir. March 25, 2011):

The named plaintiffs filed this class action suit for damages against Todd Walther Dillard, a former United States Marshal for the Superior Court of the District of Columbia, claiming that, after being arrested during a demonstration in September 2002, they were unconstitutionally strip searched by Deputy U.S. Marshals under Dillard’s direction. According to the plaintiffs, caselaw had by then clearly established that the Fourth Amendment to the Constitution of the United States prohibited strip searching a person arrested for a non-violent, non-drug related misdemeanor absent a particularized reason to suspect the arrestee was concealing contraband or weapons about his person. Dillard moved for summary judgment based upon qualified immunity, and when the district court denied that motion, brought this interlocutory appeal. We conclude it was not clearly established in 2002 that the strip search of a person being introduced into a detention facility violated the Fourth Amendment. Therefore, Dillard is entitled to qualified immunity and to summary judgment.

. . .

ROGERS, Circuit Judge, dissenting: Contrary to the principles underlying qualified immunity as a limitation on the occasions when liability for unconstitutional conduct by a public official will be excused, the majority holds the conduct is to be evaluated by recently articulated law and not, as the Supreme Court has instructed, by the clearly established law reflected in the consensus of persuasive authority at the time of the conduct. In so doing, this is the first time a circuit court of appeals has suggested that the protections of the Fourth Amendment to the Constitution against unreasonable searches do not extend to an individual arrested for a non-violent minor offense who is awaiting arraignment apart from the general population of detainees, and is subjected to a strip search in the absence of reasonable suspicion he is hiding contraband or weapons. This runs contrary to the consensus of ten circuit courts of appeals at the time of the challenged strip searches. To reach this result the majority tramples over Supreme Court precedent and gives short shrift to the protections of the Fourth Amendment. Accordingly, I respectfully dissent.

Irony alert: The majority opinion was written by the same judge who wrote the Maynard GPS case.

St. Louis police officers are suing in federal court concerning department efforts to get their cell phone records where some forwarded cell phone pictures of a police shooting victim who died when a U.S. Marshal was killed there. See St. Louis officers sue to block search of cell phones over body picture. A hearing is scheduled for Monday.

NM explains its requirements for preserving state constitutional arguments v. Fourth Amendment arguments (which he loses on the merits). State v. Leyva, 2011 NMSC 9, 149 N.M. 435, 250 P.3d 861 (2011)*:

2. Preservation requirements restated.

[*49] Rule 12-216 (A)’s preservation requirements are straightforward: “To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked ....” Where a state constitutional provision has previously been interpreted more expansively than its federal counterpart, trial counsel must develop the necessary factual base and raise the applicable constitutional provision in trial court. Where the provision has never before been addressed under our interstitial analysis, trial counsel additionally must argue that the state constitutional provision should provide greater protection, and suggest reasons as to why, for example, “a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.” Gomez, 1997 NMSC 06, ¶ 19.

Defendant’s possession of pepper spray was unlawful because of his record, and, on his arrest, his fanny pack could be searched incident to his arrest. State v. Pearson, 2011 MT 55, 359 Mont. 427, 251 P.3d 152 (2011).*

Defendant was lawfully stopped for crossing the centerline and speeding. After he turned over his paperwork, he fled on foot. That was an abandonment. United States v. Parker, 2011 U.S. Dist. LEXIS 29611 (E.D. Tenn. February 14, 2011).*

The trial court credited that defendant had consented to a search of his house, even after an illegal entry. Park v. State, 308 Ga. App. 648, 708 S.E.2d 614 (2011)*; Wilson v. State, 312 Ga. App. 166, 718 S.E.2d 31 (2011).*

The CI’s information that she had done drugs in defendant’s house led to a controlled buy and that was probable cause. State v. Johnson, 2011 ND 48, 795 N.W.2d 367 (2011).*

A protective weapons search of clothing on the front seat of a car stopped for two failures to signal of a person that the police had good reason to know was a suspect in bank robberies, but lacked probable cause, was still reasonable. United States v. Rogers, 2011 U.S. Dist. LEXIS 29377 (D. Kan. March 22, 2011).*

“Moreover, the fact that Dawkins appeared to be attempting to flee gave the officers reasonable suspicion that he was armed and dangerous. The District Court found that the officers had a reasonable suspicion that Dawkins was armed and dangerous, particularly because he was in the company of a well known drug trafficker, who was known to carry weapons and to associate with individuals who carry weapons. In addition, B.L. had made threats against the police; specifically, against one of the arresting officers, Officer Sealock.” United States v. Dawkins, 419 Fed. Appx. 224 (3d Cir. 2011).* (unpublished)

Plaintiff’s civil case over the search of his property was filed just within the two year limitations. The search occurred more than a year earlier, but he did not learn about it until his arraignment in court on August 25, 2006. He sued just short of two years after that, and it was timely. The searches also involved alleged thefts of his property, and these claims were not barred by Heck v. Humphrey because they did not attack the conviction. Sanders v. Downs, 420 Fed. Appx. 175 (3d Cir. March 22, 2011).*

From an IT blog, itgrunts.com, almost certainly not from a lawyer, but still worth noting: Fourth Amendment Violation? Hard drive Search Warrants Legal?

The First Circuit held that the renter of a large building who allowed others to live somewhat communally had a reasonable expectation of privacy [as they all would] in what would otherwise be common area. Is it an apartment house or a rooming house? If the latter, there is a reasonable expectation of privacy in the common areas. This was the latter. United States v. Werra, 638 F.3d 326 (1st Cir. 2011):

Thus, we agree with the district court that, unlike the typical expectation-of-privacy inquiry, which focuses solely on the particular location in which the evidence the defendant seeks to suppress was found, see, e.g., United States v. Bucci, 582 F.3d 108, 116 (1st Cir. 2009) (front of home, as viewed by video camera); Rheault, 561 F.3d at 59 (third-floor landing of the front stairway); United States v. Meada, 408 F.3d 14, 22 (1st Cir. 2005) (gun case), we must conduct a broader examination of Werra’s and the other tenants’ living arrangements throughout 63 Menlo Street. If they lived separately — like apartment dwellers — they could not claim the common areas of the house, including the foyer, as their private space vis-a-vis outsiders. However, if they did not live in individualized “residences” within the house — and were thus more like the occupants of a single-family home — their right to privacy vis-a-vis outsiders would begin at 63 Menlo Street’s front door. Under the latter scenario, the officers would have violated Werra’s reasonable expectation of privacy by forcibly entering the house. We thus also agree with the district court that the relevant considerations for our inquiry include whether the building contains “recognizably separate living units,” the residents’ right to exclude others from parts of the building, the number of residents, and the “formal legal relationship” among them. Werra, 2008 U.S. Dist. LEXIS 68790, 2008 WL 4280035, at *4-5. Other facts that shed light on how the tenants viewed the dwelling, including the tenants’ customary use of various spaces within the premises, also are pertinent in evaluating their subjective expectation of privacy.

. . .

In sum, based on the facts of record, we conclude that Werra has met his burden to show that he possessed a subjective expectation of privacy in the foyer of 63 Menlo Street — or, more specifically, that he believed the entire house, and not just the third floor, served as his home and, hence, that he could prevent the entry of anyone whom he and his housemates wished to keep out. We further conclude that, on this record, Werra’s expectation of privacy was reasonable. A resident of a single-family structure who shares living arrangements as did the tenants of 63 Menlo Street could reasonably expect that his right to privacy begins at the front door. See Titus, 707 So. 2d at 708 (holding that, “just like private homeowners, rooming house residents have an actual expectation of privacy in the common areas of the rooming house” and that “given the sanctity of the home, society is prepared to recognize that expectation as reasonable”).

Officers entered defendant’s home with alleged arrest warrants, but none were produced at the suppression hearing. To survive the motion to suppress, the state had to put into evidence their legal authority for the entry, the arrest warrants, to show that they were complying with the Fourth Amendment, so the conviction and affirmance by the court of appeals is reversed. The motion to suppress his statements made when the officers were in the house is also reversed. State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).

Seizure of a gun in a car in NYC could not be justified by plain view where the officer had to lean in the car to make the view. The prosecution’s alternate basis of furtive movements in the backseat giving reasonable suspicion for a car frisk for the gun was not resolved by the trial court, so the case is remanded for a finding on that. People v Washington, 2011 NY Slip Op 2047, 2011 N.Y. App. Div. LEXIS 1995 (1st Dept. March 22, 2011).*

A Vietnamese naturalized citizen argued that culturally he was predisposed to consent. The court found consent valid. “While Tran’s cultural background may have made him less inclined to refuse consent, the court’s determination that he voluntarily consented was not clearly erroneous.” United States v. Tran, 412 Fed. Appx. 923 (8th Cir. 2011) (unpublished).*

An immediate report of child sex abuse where a CPS officer actually saw the injury and the crying child was sufficient exigency for entry into the mother’s home to take other children. There were other factors of the mother not cooperating in refusing to take the children to the hospital and the possible assailant still being nearby. Under Fisher, proof of exigency does not have to be "ironclad." City of Columbus v. Montgomery, 2011 Ohio 1332, 2011 Ohio App. LEXIS 1166 (10th Dist. March 22, 2011):

[*P41] The primary issue to be determined here is whether or not the circumstances at issue gave rise to exigent circumstances and/or the need for emergency aid, thus justifying the warrantless entry into appellant’s home. The trial court determined that such exigent circumstances existed and we find no error in that determination.

[*P42] We begin by noting that this determination could arguably be considered a close call. Some of the typical indicia of injury and violence, such as blood or an ongoing fight or ongoing violence, were not readily visible to police upon their approach. However, “[o]fficers do not need ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the emergency aid exception.” Michigan v. Fisher (2009), ___ U.S. ___, 130 S.Ct. 546, 549, 175 L. Ed. 2d 410.

[*P43] Here, Officer Brewer was advised by Ms. Williams, who had been with the two young children in the hours prior to the search, that the three-year old girl had gone to the restroom and was crying in pain. Upon checking the young girl’s genital area, Ms. Williams observed severe tears, swelling, and redness and believed someone had penetrated the little girl. The girl’s five-year old brother had alleged he also had been touched inappropriately on his genital area and both children were unable to control their bodily functions. Ms. Williams reported she had contacted the mother of the children, advising her that they needed to take the children to the hospital immediately, telling her that the little girl looked horrible and that the kids needed help and medical treatment. Instead of taking the children to the hospital as one might expect, the mother reportedly picked up the children and took them to the home of the two men who allegedly abused them. Then, when Officer Brewer contacted the mother and asked her to bring the children to the hospital, she again refused.

The officer’s observations of objective conduct at the time of the stop justify the stop. The defendant’s post hoc justifications for crossing the fog line twice do not show there was no reason for the stop. State v. Flynn, 2011 MT 48, 359 Mont. 376, 251 P.3d 143 (2011):

[*P11] A defendant’s subsequent, valid explanation for conduct that objectively appeared suspicious may affect his or her ultimate liability for a charged offense, but it cannot affect the validity of a stop properly based on particularized suspicion. Lincolnshire v. Dispirito, 552 N.E.2d 1238, 1241 (Ill. App. Ct. 2d Dist. 1990); State v. Kinkead, 570 N.W.2d 97, 101 (Iowa 1997). The particularized suspicion inquiry is a fact based assessment of the objective quantity, content and reliability of information “available to the officer.” State v. Clawson, 2009 MT 228, ¶ 11, 351 Mont. 354, 212 P.3d 1056 (emphasis added). An officer in the field need not consider every possible innocent explanation or legal exception before concluding that particularized suspicion exists. State v. Clark, 2009 MT 327, ¶ 13, 353 Mont. 1, 218 P.3d 483.

[*P12] When this Court first adopted the particularized suspicion standard for vehicular stops, it properly recognized that the inquiry turned on what the officer knew, observed, inferred and ultimately suspected. State v. Gopher, 193 Mont. 189, 193-94, 631 P.2d 293, 296 (1981). ...

Defendant was the passenger in a car stopped for probable possession of drugs. The driver was arrested and defendant was handcuffed, told he was not under arrest, and then transported to the police station for further search. All they had on defendant was that he was a known associate of the other defendant and they went to NYC the day before allegedly to buy drugs. Nothing was found associated with defendant in the car on this search. Taking him in violated the Fourth Amendment. Commonwealth v. Griffin, 79 Mass. App. Ct. 124, 944 N.E.2d 595 (2011):

Even if reasonable suspicion existed to question and conduct a pat-down of the defendant, once nothing more was learned or discovered, either on him or in the car, the defendant should not have been further detained. See, e.g., Commonwealth v. Torres, 424 Mass. 153, 159 (1997), quoting from Commonwealth v. Torres, 40 Mass. App. Ct. 6, 9-10 (1996) (“[O]nce any potential threat to the officer’s safety was dispelled and there was no reasonable suspicion that criminal activity [involving the defendant] was afoot, any basis for further detention evaporated”). Compare Commonwealth v. Wing Ng, 420 Mass. 236, 237-238 (1995) (no automatic right to pat frisk companion solely for being in company of one lawfully arrested).

Defendant was found to have consented to a search of his car. He was pulled over near an apartment complex, and he was left sitting on a bench with his dog, unrestrained. After paraphernalia was found in the front seat, the officer walked over to defendant and asked him, without Mirandizing him, whether there were any other drugs in the car, and defendant told him. The court concludes that defendant was not in custody for Miranda purposes when that question was asked. United States v. Hocking, 2011 U.S. Dist. LEXIS 29168 (W.D. Mo. February 17, 2011):

Although Hocking was not specifically told that he was not under arrest, Trooper Rudstrom did not insinuate that Hocking was under arrest either. Hocking was unrestrained, he was allowed to retrieve his dog from the vehicle, and was sitting on a bench out in the public. Neither officer at the scene was in particularly close proximity to Hocking for the majority of the time that he was on the public bench. Compare United States v. Martin, 369 F.3d 1046, 1057 (8th Cir. 2004) (suspect not in custody because “the atmosphere of the interview was not police-dominated [in that] two agents interviewed [the suspect] in a public place”). Moreover, when asked if there additional contraband in the vehicle, Hocking readily answered and Trooper Rudstrom employed no tricks or strong arm tactics. Finally, Hocking was not immediately arrested after the questioning and was only restrained (i.e., placed in handcuffs) after the weapon was found in the vehicle. Under these facts, the Court does not recommend suppression of Hocking's statement to Trooper Rudstrom.

Defense counsel was not ineffective for not preserving defendant’s suppression issue for appeal because it was completely unmeritorious for any possible standing in the place searched and where he was just a casual visitor and he denied ownership of anything seized. Drake v. United States, 2011 U.S. Dist. LEXIS 29008 (N.D. W.Va. March 21, 2011).*

AP: South Dakota man says police violated his rights by putting tracking device on his car.

Pennsylvania Considers Bill Requiring Pre-Trial DNA Testing by Stephen Clark on FoxNews.com:

Pennsylvania is considering a bill that would expand the authority of police to collect DNA from suspects arrested for serious crimes -- to be used to find links to other open cases unrelated to the arrest.

A similar federal law has already been struck down by a district court, which declared it unconstitutional.

My own state has such a law, and it provides for taking DNA on arrest for certain crimes without ever showing probable cause to a judicial officer first. I spoke against the bill, but, the Arkansas legislature being the way it is, they don't care whether it is constitutional if it is for crime control.

From OnPoint via PogoWasRight: Texas Teen Scores Legal First in ‘Sexting’ Privacy Case that a school official could not search her cell phone without reasonable suspicion.

Defendant was a passenger in a stolen car that was tracked by its GPS to a house where the car was stopped, still in the driveway. She and the driver were handcuffed and arrested. She was asked about her ID, and she said it was in her wallet in her purse in the passenger seat. The officer's search of a small black bag within the purse that was not the wallet was unreasonable and invaded her reasonable expectation of privacy. The black bag obviously was not in plain view. State v. Bond, 150 N.M. 451, 2011 NMCA 36, 261 P.3d 599 (2011).*

Defendant’s Ohio parole officer had reasonable suspicion for a search of defendant’s believed residence because the PO saw him come and go from there as a potential resident, and he was registered as living elsewhere. There was no legal requirement that his actual PO be the searcher; another could do it. United States v. Davis, 415 Fed. Appx. 709, 2011 FED App. 0164N (6th Cir. 2011) (unpublished).*

Removing the person who should be asked for consent violates Randolph. Asking a least plausible person violated the Fourth Amendment. United States v. Butler, 2011 U.S. Dist. LEXIS 28871 (S.D. Tex. March 21, 2011):

Despite the legal nuances that are used to justify eroding the Fourth Amendment, a stop is an arrest. The word itself comes from un arrêt — the French word for stop. Once an officer turns on his car’s blue lights behind your car, you are not free to leave. This is obvious. If you do not stop and submit to the officer’s direction, he chases you and charges you with evading arrest — not evading a conversation.

Once the officers arrived at his house, Hornbeak had come to a stop. With more than ten armed men in his house and helicopters above, he was not free to leave. He had been arrested and arrested on a warrant.

. . .

The absence of a potentially objecting co-tenant must be natural and not contrived. The police may not remove all the co-tenants except the one whom they believe to be the most malleable. If the police have removed someone because they suspect he may object, the search is unreasonable. Georgia v. Randolph, 547 U.S. 103, 121 (2006).

The agents wanted to search Hornbeak’s house. The agents had grounds to get an arrest warrant. The government has offered no explanation for its not having sought a search warrant. Instead of getting a search warrant, they arrested Hornbeak. They pulled him away from his house and asked a casual guest for permission. Instead of asking Hornbeak to consent to a search as he stood in his bedroom surrounded by a dozen officers, the agents removed him. Once he was gone, they asked for Redding's permission. She gave it. The conclusion is that the agents removed Hornbeak to avoid his objection. That is illegal.

[Note: This opinion is from USDJ Lynn N. Hughes, who I thank for his clarity and conciseness.]

By the time defendant’s stop was completed and the papers were being handed back to him, the officer likely had reasonable suspicion, but then the defendant volunteered why he took the exit he was stopped at, which made no sense. There was reasonable suspicion for additional questioning. United States v. Roberts, 2011 U.S. Dist. LEXIS 28591 (D. Mont. March 16, 2011).*

Defendant’s search warrant issue was litigated in the District Court before conviction, and counsel was not ineffective for not appealing it because it was clearly a losing issue. Brooks v. United States, 2011 U.S. Dist. LEXIS 28400 (S.D. W.Va. February 15, 2011).*

Florida Gov. Rick Scott orders random drug testing of state employees / Gov. Rick Scott's executive order requires quarterly drug tests; ACLU says courts have already found similar attempts unconstitutional by David Royse from the Orlando Sentinel:

Gov. Rick Scott signed an executive order Tuesday that will require random drug testing of many current state employees as well as pre-hire testing for applicants.

"Floridians deserve to know that those in public service, whose salaries are paid with taxpayer dollars, are part of a drug-free workplace," Scott said. "Just as it is appropriate to screen those seeking taxpayer assistance, it is also appropriate to screen government employees."

The reference to taxpayer assistance referred to a push by Scott and legislative Republicans to require those who apply for state benefits under the Temporary Assistance to Needy Families program to submit to a drug test before getting benefits. That proposal (SB 556) was approved unanimously Tuesday by the Senate Criminal Justice Committee. It has another stop before the Senate floor.

[Update: There is a bill in the Arkansas legislature this year to drug test all candidates for office, contrary to Chandler v. Miller. While some people complain about "big government," those same people want that government in our lives and have never read the Fourth Amendment or cases. The Arkansas bill failed in committee.]

Eugene Volokh, Four Justices on the Fourth Amendment, on Volokh Conspiracy:

An interesting statement respecting the denial of certiorari today in Huber v. N.J. Dep’t of Environmental Protection:

Statement of Justice Alito, with whom the Chief Justice, Justice Scalia, and Justice Thomas join, respecting the denial of certiorari.

Our cases recognize a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” See, e.g., New York v. Burger, 482 U. S. 691, 699–703 (1987) (internal quotation marks omitted). The thinking is that, other things being equal, the “expectation of privacy in commercial premises” is significantly less than the “expectation in an individual’s home.” Id., at 700. And where a business operates in an industry with a “long tradition of close government supervision” — liquor dealers and pawnbrokers are classic examples — the expectation of privacy becomes “particularly attenuated.” Ibid. (internal quotation marks omitted).

. . .

DWI is sufficiently serious a crime, noting Welsh, that exigent circumstances are possible, but there are no bright line rules. A warrantless entry might be reasonable under the circumstances. State v. Nance, 2011 N.M. App. LEXIS 14 (March 15, 2011):

P19 Perhaps because reasonableness is the touchstone of the Fourth Amendment inquiry, courts have resisted fashioning per se rules authorizing warrantless home entry based only upon the dissipation of alcohol. For example, while the United States Supreme Court in Welsh stated that “a warrantless home arrest cannot be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant,” it was careful to repeatedly qualify this statement as applying only in light of the fact that Wisconsin had chosen to classify a first offense DWI as a non-criminal civil forfeiture offense for which no imprisonment was possible. Welsh, 466 U.S. at 754. Similarly, while the United States Supreme Court in Schmerber approved of a warrantless blood test due to exigent circumstances, which included the dissipation of blood alcohol, 384 U.S. at 770-71, the Court explicitly limited the decision to the facts, noting that “[t]he integrity of an individual’s person is a cherished value of our society” and that the holding “that the Constitution does not forbid the State’s minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” Id. at 772; see also State v. Richerson, 87 N.M. 437, 441, 535 P.2d 644, 648 (Ct. App. 1975) (recognizing that, in addition to dissipation of alcohol, Schmerber also requires a valid arrest and probable cause before a warrant may be dispensed with).

P20 We have previously addressed the question of whether the metabolization of alcohol created an exigent circumstance. In Copeland, a drunk driver struck and killed a police officer in a hit and run accident. 105 N.M. at 29, 727 P.2d at 1344. Police developed a description of the vehicle from evidence found at the scene of the accident, and the vehicle was found at a nearby motel. Id. at 29-30, 727 P.2d at 1344-45. Officers traced the vehicle to a specific room, but nobody answered when the officers knocked on the door. Id. at 30, 727 P.2d at 1345. It had been about two-and-one-half hours since the accident, and officers were concerned that they might lose their opportunity to obtain evidence of whether the driver was intoxicated. Id. Police broke the chain lock on the door, entered the room, and arrested the defendant, who subsequently registered a blood alcohol level of approximately 0.20. Id.

Defendant was sentenced to prison followed by probation in the Philadelphia Gun Court, and he was given a condition of random searches of his residence by the court. Under Pennsylvania law, there at least had to be reasonable suspicion for the search. Commonwealth v. Alexander, 2011 PA Super 54, 16 A.3d 1152 (2011).*

Defendant’s Franks challenge to a seizure for forfeiture was unsuccessful because the affidavits as a whole show probable cause. United States v. Dupree, 781 F. Supp. 2d 115 (E.D. N.Y. 2011).*

Defendant’s original probation term did not include a prohibition on possession of a computer, and that condition was added by a general order of the court to all sex offender probationers. Aside from that condition, defendant’s admission of possession of pornography on his computer was cause for seizing the computer. United States v. Simard, 2011 U.S. Dist. LEXIS 27874 (D. Vt. March 17, 2011).*

Defendant’s guilty plea specifically waived all his potential challenges to the search and seizure, and his generalized complaint that defense counsel did not work for him was belied by filings in the case sheet alone. Fjerstad v. United States, 2011 U.S. Dist. LEXIS 27944 (W.D. Wash. February 2, 2011).*

SCOTUSBlog: Davis v. United States Argument recap: Selling complexity / The Court explores a professor’s complex argument to protect the integrity of the Court’s Fourth Amendment precedents:

It was a complex argument, all about the Court preserving the integrity of its constitutional decision-making, that professor Orin S. Kerr offered to the Justices in Davis v. U.S. (09-11328). And its complexity stood out in quite vivid contrast to the simple — even simplistic — argument that a Justice Department lawyer would make.

While Kerr was at the lectern, the skepticism about his theme ran back and forth across the bench. Still, he was making his points and, as the argument moved on, it became evident that Kerr had stirred some interest, perhaps even sympathetic interest — from several Justices, perhaps most notably Justice Anthony M. Kennedy, often the holder of a decisive vote. He also heard, from Justice Elena Kagan, a compromise way that he could win.

The Davis case is about the so-called “exclusionary rule,” a judge-made doctrine that bars evidence from criminal trials if police got it while violating the Fourth Amendment. Davis focuses specifically on whether the Court will benefit police by expanding one significant exception to that rule: the doctrine that the evidence can be used anyway, if police got it in “good faith,” believing at the time that what they did was legal.

An “anonymous” CI called the police that defendant had drugs in his car. When defendant pulled into his driveway, a police car stopped behind him with lights on and told the defendant to “come here.” That was a stop implicating the Fourth Amendment, and the officer had no reasonable suspicion for the stop because there was nothing at all to corroborate the CI’s information. State v. Wilson, 337 S.W.3d 289 (Tex. App.—Texarkana 2011).*

The officer had reasonable suspicion and likely probable cause where he pulled up next to defendant’s car on a freeway to see that was following too close. Defendant was then found under the influence. State v. Ward, 2011 Ohio 1261, 2011 Ohio App. LEXIS 1087 (4th Dist. March 14, 2011).*

Running a dog around defendant’s car before the purpose of the traffic stop was even complete was not unreasonable. State v. Latona, 2011 Ohio 1253, 2011 Ohio App. LEXIS 1065 (5th Dist. March 16, 2011):

[*P27] We also find that at the time Trooper Norman walked his dog around Appellant's vehicle, Trooper Norman had not fulfilled the purpose of the initial stop in that Trooper Norman was waiting for the information to return from the dispatch and he had not cited Appellant for the marked lanes violation. The United States Supreme Court has stated that a dog sniff does not constitute a search. United States v. Place (1982), 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110. Thus, because a dog sniff is not a search, “an officer need not have formed a reasonable suspicion that drug-related activity is occurring in order to request that a drug dog be brought to the scene or to conduct a dog sniff of the vehicle.” Guckert, supra [2000 WL 33226314] citing State v. Keller (Jan. 14, 2000), Montgomery App. No. 17896. Thus, when a motorist is lawfully detained pursuant to a traffic stop and when the purpose of the traffic stop has yet to be fulfilled, the Fourth Amendment is not violated when the officer employs a trained narcotics canine to sniff the vehicle for drugs. Guckert, supra.

[So, in Ohio, it apparently is permissible to use a dog during any traffic stop.]

Defendant’s arrest was for criminal trespass, so a search incident was invalid under Gant. Defendant’s car was legally parked, so impounding the car and inventorying it was unreasonable. A general claim the good faith exception should apply was also rejected. State v. Dent, 2011 Ohio 1235, 2011 Ohio App. LEXIS 1069 (8th Dist. March 17, 2011)*:

[*P16] In the instant case, Lasker testified that he arrested Dent for criminal trespass and inventoried the Pontiac prior to the tow. However, the Pontiac was legally parked at the time of Dent’s arrest and would have been legally parked until 3:00 a.m. “‘This court has held that police may not seize a defendant’s car and conduct an inventory search following a defendant's arrest where it was legally parked and no public concern existed which required the removal of the car from its legally parked place.’” State v. Clay, Cuyahoga App. No. 91942, 2009 Ohio 2725, ¶26, quoting State v. Ross (May 20, 1993), Cuyahoga App. No. 62215. See, also, State v. Thomas, Cuyahoga App. No. 91891, 2009 Ohio 3461. Furthermore, Dent was secured in the back of the police cruiser and no longer posed a risk to officer safety when Lasker searched the Pontiac, and there is no evidence in the record that Lasker reasonably believed that the vehicle contained evidence of criminal trespass (entering or remaining on the land of another).

[*P17] Based on these circumstances, we find the search of the vehicle was not permitted under Gant. Thus, the trial court properly granted Dent’s motion to suppress.

[*P18] In the alternative, the State argues that even if the inventory search was improper, the search is saved by the good-faith exception to the exclusionary rule. We disagree. ...

Police got an anonymous call about shots fired from a “dark” SUV, and they went to the area. They stopped the first “dark” SUV they saw, ordering the occupants to the ground at gunpoint. Nothing on the 911 call audio supported its reliability. The stop was without reasonable suspicion, and, under United States v. Mosley, 454 F.3d 249, 251 (3d Cir. 2006), everybody in the car had standing because the stop was invalid. People v. Isaac, 2011 V.I. LEXIS 13 (Super. Ct. March 8, 2011).*

The government had a search warrant for a business for visa fraud involving people from India. In executing the warrant, the officers found evidence of visa fraud of people from Mexico. The warrant was not overbroad because the records of multiple business shells were contemplated and found to launder the money. The evidence could thus be considered as 404(b) evidence. United States v. Pena, 418 Fed. Appx. 335 (5th Cir. 2011) (unpublished).*

Defendant succeeds in a Franks challenge to a search warrant for a grow operation. The officer said that defendant was recently moved to the property and the electric usage doubled. In fact, the defendant moved in after the doubling first occurred. Rewriting the affidavit to show the importance of the missing information, probable cause is completely undermined. United States v. Morgan, 2011 U.S. Dist. LEXIS 27694 (N.D. Okla. March 16, 2011):

This example demonstrates that, with the omitted information included, the statement regarding the doubled electrical usage is wholly irrelevant and incapable of serving as evidence of Defendant’s alleged illegal activity. The statement cannot corroborate Ray’s statement because Defendant could not have been the cause of the increased electrical usage since he moved in two months after the increase occurred. Without the corroboration provided by the invalidated statement, probable cause to search 1525 East 45th Place is vitiated. The omitted statement is therefore material to the finding of probable cause under Stewart and Franks.

. . .

Similarly, this Court holds that because of the highly relevant nature of when Defendant moved into the home, the omission in this case was at least made in reckless disregard of the truth. Deputy Ramsey testified that he was, and remains, unaware of when Defendant moved into 1525 East 45th Place, and that he assumed the July 2009-July 2010 time frame for the purported doubling of electrical usage provided by his informant was relevant to Defendant. ... Deputy Ramsey knew that the doubling of electrical usage was critical to the probable cause analysis, as he admitted that he would not have sought a search warrant without that information. ... Nevertheless, Deputy Ramsey testified that he remained ignorant of Defendant's actual relocation date, despite the fact that he knew from Gordan Ray’s testimony that Defendant had moved relatively recently. This Court finds that, under the circumstances described in the hearings, Deputy Ramsey proceeded with reckless disregard for the truth when he submitted a warrant affidavit omitting the date on which Defendant moved into the residence to be searched. The information was “clearly critical” under the standard set forth in Jacobs because a material element of the affidavit would have been undermined by its inclusion and probable cause would not have existed otherwise. Defendant has therefore proven by a preponderance of the evidence that the omission was made with reckless disregard to the truth. Furthermore, as previously discussed, such omission was material to the finding of probable cause. Therefore, Franks requires that the search warrant be voided and the fruits of the search excluded. See Franks v. Delaware, 438 U.S. 154, 156 (1978).

Officer’s violation of a state statute that police departments cannot spend money “for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws” was still not an egregious violation of the Fourth Amendment justifying applying the exclusionary rule. The Fourth Amendment issue was unclear, too. Martinez-Medina v. Holder, 2011 U.S. App. LEXIS 5341 (9th Cir. March 11, 2011):

Generally, the exclusionary rule does not apply in civil deportation proceedings to evidence obtained in violation of the Fourth Amendment. Id. at 1050. An exception to this rule exists where the Fourth Amendment violation is egregious. Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 (9th Cir. 1994). Therefore, we must deny the petition for review unless the deputy sheriff violated Petitioners’ Fourth Amendment rights and that violation was egregious.

. . .

Here, even if we assume there was a Fourth Amendment violation, there is no evidence the deputy sheriff deliberately violated the Fourth Amendment. Further, a reasonable officer would not have known he lacked probable cause to detain Petitioners because, as we explain below, the deputy sheriff, unlike the officers in Lopez-Rodriguez, was not acting against an unequivocal doctrinal backdrop. The law was unclear as to whether an alien’s admission to being illegally present in the United States created probable cause to seize the alien for violating federal immigration law. Because of this lack of clarity in the law, there was no egregious Fourth Amendment violation.

. . .

Petitioners also contend the deputy sheriff committed an egregious Fourth Amendment violation when he seized Petitioners because he should have known he lacked authority under Oregon law to detain Petitioners. Oregon prohibits state law enforcement agencies from “us[ing] agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws.” Or. Rev. Stat. § 181.850. But the deputy sheriff's violation of Oregon law does not constitute a violation of the Fourth Amendment and, thus, cannot be the basis for finding an egregious Fourth Amendment violation. See Virginia v. Moore, 553 U.S. 164, 173-74, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008).

At the suppression hearing, the CI’s handler has to testify to what the CI knew so the search does not become merely ratified by the officer’s conclusion that the CI was believable. Here, just the officer conducting the search based on another officer’s relaying of information from the CI was the only witness. Parsons v. United States, 15 A.3d 276 (D.C. App. 2011):

The problem in the present case is that, even applying the collective knowledge doctrine, there was no testimony from which the trial court could have judged the informant’s credibility. Detective Humberson was not the confidential informant’s handler; in fact he had never dealt with the informant prior to the day of Parsons’s arrest. Detective Freeman, who was the handler, presumably could have testified at Parsons’s trial as to the informant’s track record and the existence of other virtuous qualities, but he did not. It appears from the record that the trial court “simply rel[ied] on [Detective Humberson’s] conclusory assertions in deciding whether [his search of Parsons] was justified” and did not, as required by our case law, “evaluate the facts underlying those assertions.” Milline, 856 A.2d at 619; see also Sanders, 751 A.2d at 955 (reversing and remanding because the “tipster’s track record was thinly developed in the trial court”).

Defendant was stopped walking in an apartment complex after a caller told the police he was a “trespasser.” The officer had his DL and kept talking to him, and fairly quickly determined that he was not a trespasser. The officer kept his DL and kept talking to him, and another officer went to his car and looked inside, and then the officer questioned him about the contents of the car and three apparent pill bottles. The stop became unreasonable after the DL should have been given back and wasn’t. State v. Curtis, 2011 Ohio 1277, 193 Ohio App. 3d 121 (2d Dist. 2011).

Officers were called to an apartment building about a woman dressed as a man selling drugs in the basement. They went to the basement area, and it was empty, and then the defendant came down the stairs, saw the officers, and then acted startled and suspicious. While the case is “close,” reasonable suspicion justified the patdown, and a ball of cocaine was found by plain feel. State v. Love, 2011 Ohio 1287, 2011 Ohio App. LEXIS 1119 (2d Dist. March 18, 2011).*

Defendant was encountered in public without a show of force (other than a uniform and in a police car), and its continuation was consensual, including the patdown. State v. Thomas, 2011 Ohio 1292, 2011 Ohio App. LEXIS 1122 (2d Dist. March 18, 2011).*

Defendant’s stop for speeding was valid, and inconsistent statements about ownership of the car justified a six minute detention for a drug dog, which alerted and was probable cause for a search of the car. United States v. Guerrero, 2011 U.S. Dist. LEXIS 27668 (E.D. Cal. March 17, 2011).*

Police called defendant’s PO with information allegedly received from defendant’s daughter that he had an AK-47 in the house, but it was represented as anonymous information. The PO and his supervisor decided to wait to see if the police obtained more information. Finally, they went to conduct the search. The court finds that it was without reasonable suspicion. United States v. Dono, 2011 U.S. Dist. LEXIS 27446 (E.D. Pa. March 17, 2011).*

Detailed information from an identified caller that defendant was wearing a military uniform and carrying a gun and playing with the bullets when the caller knew that the defendant was not in the military was sufficient reasonable suspicion for a stop. United States v. Powell, 2011 U.S. Dist. LEXIS 27222 (N.D. W.Va. March 16, 2011), R&R Powell, 2011 U.S. Dist. LEXIS 27182 (N.D. W.Va. February 11, 2011).*

Two guys standing at a car talking to the occupants was not reasonable suspicion. “The fact that Mr. Dell and his companion were standing on either side of the parked car, looking into the windows in a back-and-forth manner is not enough to give Officer Tafisi reasonable suspicion that they were engaged in criminal activity.” United States v. Dell, 2011 U.S. Dist. LEXIS 27426 (D. Utah March 15, 2011).*

A knock-and-talk led to officers gaining access to a locked basement to the house where a grow operation was found. This was all by consent. United States v. Greene, 2011 U.S. Dist. LEXIS 27219 (E.D. Tenn. February 16, 2011).*

Defendant was validly in custody in the back of a police car, and the officer went back to talk to him. “The Court finds that the statement, ‘What you’re looking for is lying on the front seat of the vehicle,’ to be effective consent to search the vehicle. ‘The standard for measuring the scope of the suspect’s consent is objective reasonableness. Recitation of magic words is unnecessary; the key inquiry focuses on what the typical person would have understood by the exchange between the officer and the suspect.’ United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996) (citations omitted).” United States v. Olivarria, 781 F. Supp. 2d 387 (N.D. Miss. 2011).*

Officer finished his business during a traffic stop, handed back the paperwork and stepped back, telling defendant to drive carefully, indicating that defendant was free to leave, but then stepped forward to converse again. This second move toward the car was consensual. United States v. Gonzalez-Garcia, 781 F. Supp. 2d 1167 (D. Kan. 2011)*:

11. The court is persuaded that the encounter after the return of the documents was consensual. The court believes that Trooper Trinkle conveyed to Gonzalez-Garcia that he was free to leave after he returned the documents. The comment made by Trooper Trinkle to drive safely coupled with his movement away from the window of the car suggested that the traffic stop had ended. In returning to the window, Trooper Trinkle asked in a conversational tone if he could ask some additional questions. In doing so, he did not physically touch Gonzalez-Garcia or his vehicle, and did not display his weapon. Gonzalez-Garcia readily agreed to answer additional questions. He appeared to do so without reservation. Thus, the court finds no merit to Gonzales-Garcia's argument that he was detained beyond the permissible scope of the stop.

[Note: I still can't buy this, no matter how it is dressed up. The officer stopped the defendant. Saying "you're free to go" but essentially keeping him from it by talking is inherently coercive.]

Argument preview: Police and changing law on SCOTUSBlog about Monday's oral argument in Davis v. United States:

The Court hears oral argument Monday on prosecutors’ use of evidence that was legal for police to seize when they did, but later became illegal. The case is another sequel to the Court’s ruling in Arizona v. Gant (2009).

At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on Davis v. U.S. (09-11328), another test of the scope of the “good faith” exception to the exclusionary rule under the Fourth Amendment. Arguing for Willie Gene Davis of Greenville, Ala., will be Orin S. Kerr, a George Washington University law professor in Washington, D.C. Arguing for the federal government will be Deputy U.S. Solicitor General Michael R. Dreeben.

In Escape from New York, an op-ed piece on changing demographics in NYC, a reminder of stop and frisk in the City

According to a report in The Times last year, there were a record 580,000 stop-and-frisks in the city in 2009. Most of those stopped (55 percent) were black (a large portion were also Hispanic), most were young and almost all were male. For reference, according to the Census Bureau, there were about only 300,000 black men between the ages of 13 and 34 living in the city that year. A mere 6 percent of the stops resulted in arrests.

The Times article revealed that in one eight-block area of an overwhelmingly black neighborhood in Brooklyn, the police made 52,000 stops in just four years, an average of nearly one stop for each resident each year.

That article? A Few Blocks, 4 Years, 52,000 Police Stops.

Defendant was seen hanging out around a market known for dealing in stolen property before it opened for the day. When the officer approached the defendant to ask questions, he fled, and that created reasonable suspicion. State v. Thomas, 2011 Ohio 1191, 2011 Ohio App. LEXIS 1026 (10th Dist. March 15, 2011).*

[Note: Yesterday was this post: LA: Flight easily most important factor in totality. While SCOTUS said in Wardlow that unprovoked flight alone is not enough to be reasonable suspicion, as a practical matter, it doesn't take much more to make it so. There it was nervousness, but nervousness how, and in a "high crime area." So, the standard is "flight plus," but "flight plus" what?]

Police officers entered the house with an arrest warrant for the appellant. They were given permission to search by a co-tenant. From a hallway with a flashlight they could see a box of ammunition in defendant’s room. Appellant denied permission to search the room, so a search warrant was obtained. The view from the hallway was a valid plain view. State v. Jackson, 2011 Ohio 1225, 2011 Ohio App. LEXIS 1058 (5th Dist. March 14, 2011).*

Officers stopped a man coming out of defendant’s house, and he said that there was a working meth lab inside. That was exigency for a warrantless entry. The dangers of the chemical process in a meth lab have been held to be exigency in New Mexico. State v. Allen, 2011 NMCA 19, 149 N.M. 267, 247 P.3d 1152 (2010), Certiorari Denied, January 25, 2011, No. 32,785:

[*16] In Calloway, we concluded that the presence of the potentially hazardous nature of the chemicals used to manufacture meth constitutes exigency. 111 N.M. at 50, 801 P.2d at 120. Fourteen years later, in dealing with a purported violation of the knock and announce rule, State v. Johnson recognized that in at least two other jurisdictions, courts have held that “where officers know there is a [meth] lab in operation, that knowledge may create exigency” because of the risk of fire, explosion, or other potential harms. 2004 NMCA 64, ¶ 11, 135 N.M. 615, 92 P.3d 61, aff'd in part, rev’d in part on other grounds, 2006 NMSC 49, 140 N.M. 653, 146 P.3d 298. Despite having made this observation, our Court ultimately determined that the officers did not possess an objectively reasonable belief of exigency because they had only the vaguest suspicion that there was a meth lab inside the dwelling. Id. ¶¶ 11-12.

A probation search term is a judicial act, and the probation officer is not expected to question it. Moreover, the breadth of the search term is subject to the good faith exception. One person has no standing to challenge a search term of another’s probation. People v. Rios, 193 Cal. App. 4th 584, 122 Cal. Rptr. 3d 96 (5th Dist. 2011):

Furthermore, any illegality in the probation condition itself would be attributable to the court that imposed the condition, and not to the probation officers. (See People v. Miller (2004) 124 Cal.App.4th 216, 224 [21 Cal. Rptr. 3d 13].) “[W]hether a search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted.” (People v. Sanders (2003) 31 Cal.4th 318, 334 [2 Cal. Rptr. 3d 630, 73 P.3d 496].) As far as the officers in the present case knew, R.R. was subject to numerous terms and conditions, including search. Since R.R. was on an early release program and not some form of minimal supervision, we would not expect a probation officer to question the judgment of the court that imposed a search condition. (See Illinois v. Krull (1987) 480 U.S. 340, 349–350 [94 L. Ed. 2d 364, 107 S. Ct. 1160].) Under such circumstances, application of the exclusionary rule to suppress evidence would be unwarranted. (See ibid. [no application of exclusionary rule where officer acted in objectively reasonable reliance on statute later declared unconstitutional]; United States v. Leon (1984) 468 U.S. 897, 920–922 [82 L. Ed. 2d 677, 104 S. Ct. 3405] [no application of exclusionary rule where officer acted in objectively reasonable reliance on search warrant later found to be invalid]; People v. Miller, supra, 124 Cal.App.4th at pp. 222, 223–225 [evidence seized by law enforcement officers not to be suppressed if officers relied on objectively reasonable justification at time of seizure; facially-valid, court-imposed probation condition justifies search even if guilty plea resulting in probation grant vacated subsequent to search]; but see People v. Willis (2002) 28 Cal.4th 22, 35, 38–39 [120 Cal. Rptr. 2d 105, 46 P.3d 898] [exclusionary rule applies where source of error that led to unconstitutional search was part of law enforcement team].)

On Blog of the Legal Times: DOJ Weighs Supreme Court Challenge in GPS Surveillance Dispute in the Maynard case:

Justice Department lawyers continue weighing whether to ask the U.S. Supreme Court to pick up a controversial decision involving law enforcement’s warrantless use of GPS devices to track criminal suspects.

I assume they're going to file a cert. petition.

Failure to inquire into defendant’s medical history before a BAC blood draw did not make the blood draw unreasonable under Schmerber. State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011), revg State v. Johnston, 305 S.W.3d 746 (Tex. App.—Fort Worth 2009):

Implicit within Schmerber is that each suspect bears the burden of showing that a venipuncture blood draw is not a reasonable means to obtain a blood alcohol level assessment as to him or her, individually. And in the absence of any record evidence showing that a venipuncture blood draw would not be reasonable in a particular case due to a verifiable medical condition, we will presume that the choice to administer such a test is reasonable. A DWI suspect, naturally familiar with his or her own medical history, is in the best position to identify and disclose any peculiar medical condition that could result in risk, trauma, or more than de minimus pain if a blood draw were to be performed.

Defendant’s guilty plea colloquy that he was satisfied with counsel’s efforts did not mention that defense counsel failed to pursue that his confession was the product of an illegal arrest, and his post conviction petition is denied. Wright v. State, 57 So. 3d 683 (Miss. App. 2011).*

Deputy: Strip Search Finds Crack Between Buttocks / Traffic Stop Leads To Multiple Charges by Carla Field, WYFF4.com Managing Editor, listed on HuffPo as the funniest headline of the day.

Defendant was belligerent and approached the police on the street, and the officer could see the bulge of a gun under his shirt. Defendant was not detained when he approached the officers first. Then he fled, and he was not detained until they caught up with him. United States v. Jordan, 635 F.3d 1181 (11th Cir. 2011):

Officer Paige got out of his car to investigate further. As he approached Jordan, he noticed a gun-shaped bulge in the defendant's pocket. With that the officers moved to detain Jordan, but notably, before they could touch him, Jordan took off running. Officer Backmon pursued Jordan on foot, while Paige followed him in the patrol car. Paige, along with some other patrol units, caught up with the defendant, and Paige grabbed him. Paige wrestled with Jordan, who had the firearm in his hand. The officers ultimately wrestled the gun from the defendant, who was then arrested.

First, the officers knew going into the encounter that Jordan was present in an area known for crime. Second, and more significantly, Jordan became suspiciously defensive when confronted about walking in the middle of the street, belligerently yelling that he had not done anything wrong. Third, and most importantly, Officer Paige saw a gun-shaped bulge in Jordan's pocket. Once the officers became aware of these facts, they had the requisite reasonable suspicion to conduct a Terry stop concerning a potential firearms offense. See Hunter, 291 F.3d at 1306; Reeh, 780 F.2d at 1545.

The victim of an armed robbery called the police and gave chase. When defendant was located, he was arrested; not because he was in a place where a robber might be, but because he exactly matched the description of the robber, and that was probable cause. United States v. Moulton, 2010 U.S. Dist. LEXIS 142059 (N.D. Ga. November 22, 2010).*

Even if defense counsel was ineffective for not challenging defendant’s consent to search his cell phone, which he later withdrew and a search warrant was obtained for further search, the error would be harmless beyond a reasonable doubt for lack of prejudice to the accused. McRae v. United States, 2011 U.S. Dist. LEXIS 26743 (W.D. N.C. March 15, 2011).*

Defendant was 23 with a sixth grade education, and he was found to have consented to the search of his house. The atmosphere was not shown to be coercive. United States v. Rodriguez-Garabito, 2011 U.S. Dist. LEXIS 26644 (N.D. Ill. February 25, 2011).*

“[F]light from police officers is the most important factor in the totality of circumstances analysis.” State v. Morgan, 59 So. 3d 403 (La. 2011):

However, in several cases, we have expressly held or at least implied that the defendant’s flight from police officers is the most important factor in the totality of the circumstances analysis. In State v. Lewis, we specifically held that, “the totality of the circumstances known to the officer at the time, including the residents’ complaints of drug activity, the ‘hot spot’ nature of the area, respondent's nervousness, and, most importantly, his unprovoked headlong flight from the officer, gave rise to reasonable suspicion for an investigatory detention.” 00-3136 (La. 4/26/02); 815 So. 2d 818, 821 (emphasis added); cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002). Similarly, in State v. Belton, we held that the defendant's flight from the approaching officers, in addition to the other facts known by the officers at the time, was sufficiently suspicious to justify an investigatory stop. 441 So. 2d at 1199. We used identical language in State v. Johnson, when we held that the defendant's evasive behavior in quickening his pace to a “near run,” in the context of the other circumstances known to the officer, including the lateness of the hour, the high-crime character of the area, and the defendant repeatedly glancing over his shoulder, provided the minimal objective justification for an investigatory stop. 01-2081 (La. 4/26/02); 815 So. 2d 809, 811. We even found reasonable suspicion in State v. Benjamin, where the only factor in addition to the defendant's flight was the fact that he clutched his waistband as if he were supporting a weapon or contraband. 97-3065 (La. 12/1/98); 722 So. 2d 988, 989.

Driver of a car rented by another usually has no reasonable expectation of privacy in the car, unless there are extraordinary circumstances. United States v. Kennedy, 638 F.3d 159 (3d Cir. 2011):

Instead, recognizing that the inquiry must remain “fact-bound,” we concur with the majority of circuits that have considered this factual scenario and conclude that, as a general rule, the driver of a rental car who has been lent the car by the renter, but who is not listed on the rental agreement as an authorized driver, lacks a legitimate expectation of privacy in the car unless there exist extraordinary circumstances suggesting an expectation of privacy. See, e.g., United States v. Seeley, 331 F.3d 471, 472 n.1 (5th Cir. 2003) (per curiam) (finding that driver of rental car lacked standing where he was not the renter or authorized driver); United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994) (holding that unauthorized driver of rental car who had been given permission to drive by co-defendant, an authorized driver, lacked standing); United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990) (defendant lacked standing where car he was driving was rented by co-defendant’s common law wife and he was not listed as additional driver in rental contract); cf. United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001) (noting that “as a general rule, an unauthorized driver of a rental vehicle does not have a legitimate expectation of privacy in the vehicle” but nevertheless finding that the defendant had standing in light of the “truly unique” facts of that case).

The officers’ first entry into defendant’s premises was without exigent circumstances since they were not articulated. Therefore, the entry was in violation of the Fourth Amendment. A second entry was valid. United States v. Medina, 2011 U.S. Dist. LEXIS 25965 (E.D. Wis. March 11, 2011), adopting R&R 2011 U.S. Dist. LEXIS 25597 (E.D. Wis. January 13, 2011):

The government also asserts that exigent circumstances existed because Agent Hale was concerned about officer safety, but does not elaborate on the basis for that concern. This is especially relevant because at the time of Special Agent Hale’s entry, all of the agents on the scene were on the street and not in the residence. They had already detained all the individuals on the street. According to the testimony, they were waiting for the arrival of the defendant's vehicle and the defendant. Moreover, Agent Hale did not articulate a specific reason for his concern for officer safety when asked to expand upon this at the hearing. The exigent circumstances standard requires more than not knowing if an individual will cause harm or present a threat to officer safety. Rather, “an objective standard governs the reasonableness of law enforcement officials’ belief that exigent circumstances have arisen.” Patino, 830 F.2d at 1415. Given the facts in evidence, this court finds that the government has not established an objectively reasonable belief that exigent circumstances based on officer safety concerns warranted entering the defendant’s home.

There was probable cause for a removal of a child from the home because of an alleged imminent danger. The caseworker’s own deposition did not help her on that point, but the court found the risk of danger sufficient. Siliven v. Ind. Dep't of Child Servs., 2011 U.S. App. LEXIS 5140 (7th Cir. March 16, 2011).*

Defendant’s broad challenge to his search warrant after his guilty plea failed. State officers don’t have to comply with Rule 41, the failure to knock-and-announce was excusable here, and wouldn’t lead to suppression anyway. Usually, the failure to file a suppression motion is tactical. Here, it would have failed anyway. Hegmon v. United States, 2011 U.S. Dist. LEXIS 25873 (S.D. W.Va. February 18, 2011).*

In an immigration “sweep” at Omaha Steaks in Omaha, of all places, an undocumented worker who volunteered her documentation was in her car and walked with the police to the car showed voluntariness of consent. United States v. Gomez-De La Cruz, 2011 U.S. Dist. LEXIS 25603 (D. Neb. January 21, 2011).*

Immigration officers have broad powers to detain to interrogate suspected aliens, but Terry still applies. United States v. De La Cruz, 2011 U.S. Dist. LEXIS 25608 (D. Neb. March 11, 2011):

Immigration officers are authorized, without a warrant, “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States ...” and “to arrest any alien in the United States, if [they have] reason to believe that the alien so arrested is in the United States in violation of any [law or regulation involving the admission, exclusion, expulsion or removal of aliens] and is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357(a)(1) & (2) (emphasis added); United States v. Quintana, 623 F.3d 1237, 1240 (8th Cir. 2010). Immigration officers also have the power, without a warrant, to make arrests

for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony, if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest.

8 U.S.C. § 1357(a)(5)(B); see 8 C.F.R. 287.5(c)(4). The authority granted to immigration officers is not unbounded, but is subject to the principles of the Fourth Amendment as it relates to searches and seizure. United States v. Rodriguez-Franco, 749 F.2d 1555, 1559 (11th Cir. 1985); Rajah v. Mukasey, 544 F.3d 427, 441 (2d Cir. 2008) (noting that the Fourth Amendment provides protection against random or gratuitous questioning related to an individual’s immigration status).

Under the interrogation component of the statute, immigration officers “may make forcible detentions of a temporary nature for the purposes of interrogation under circumstances creating a reasonable suspicion, not arising to the level of probable cause to arrest, that the individual so detained is illegally in this country.” Au Yi Lau v. INS, 445 F.2d 217, 223 (D.C. Cir. 1971) (applying Terry standards). Immigration authorities may not detain persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975) (rejecting the argument that a person’s apparent Mexican ancestry alone justifies belief that he or she is an alien and satisfies the requirement of the statute allowing interrogation and arrests of aliens). A plain reading of 8 U.S.C. § 1357(a)(1) requires the government to show that immigration officials believe that a person is an alien before questioning him. Flores-Sandoval I, 422 F.3d 711, 714 (8th Cir. 2005); see also 8 C.F.R. § 287.8(b)(2) (an immigration official may briefly detain a person for questioning if he “has a reasonable suspicion, based on specific articulable facts, that the person being questioned is engaged in an offense against the United States or is an alien illegally in the United States”).

A patdown was a reasonable response to a man holding a woman at gunpoint. A sharp object was found, and that permitted the officer to go into the pocket. State v. Cunningham, 2011 Ohio 1172, 2011 Ohio App. LEXIS 1020 (7th Dist. March 8, 2011).*

Plaintiff was handcuffed and arrested by police after a pawnshop operator called them to say that plaintiff was selling bogus high-end watches. The watches were real, and the officer arrested without any investigation, just on the pawnshop operator’s word. Plaintiff stated a claim and the officer had no qualified immunity. El-Ghazzawy v. Berthiaume, 636 F.3d 452 (8th Cir. 2011).*

In a pro se post conviction matter, state habeas is not the method of challenging a search warrant after a guilty plea. Deakins v. State, 2011 Tenn. Crim. App. LEXIS 188 (March 11, 2011).*

Defendant had no reasonable expectation of privacy in a police interview room where he was left alone with his wife and the police recorded it. He knew he was the focus of an investigation at that point. The room also had mirrors, so he had to expect people would be watching, too. The court also relies on conversations surreptitiously recorded in police cars. State v. Clemons, 2011 Ohio 1177, 2011 Ohio App. LEXIS 1015 (7th Dist. March 9, 2011).*

[*P68] As appellant recognizes, there are many out-of-state cases where courts have found that there was no reasonable expectation of privacy in a police interrogation room. See, e.g., Mai v. Horel (N.D. Cal. 2009), 2009 U.S. Dist. Lexis 19322, *7; Pestano v. State (Fla. 2008), 980 So.2d 1200, 1202; Dickerson v. State (2008), 292 Ga. App. 775, 779, 666 S.E.2d 43; Belmer v. Commonwealth (2001), 36 Va. App. 448, 461, 553 S.E.2d 123; State v. Strohl (1999), 255 Neb. 918, 925-926, 587 N.W.2d 675; Larzelere v. State (Fla. 1996), 676 So.2d 394, 405; Ahmad v. Superior Ct. (1989), 215 Cal.App.3d 528, 536, 263 Cal. Rptr. 747; In re Joseph A. (1973), 30 Cal.App. 3d 880, 886, 106 Cal. Rptr. 729. See, also, State v. Owens (S.D. 2002), 2002 SD 42, 643 N.W.2d 735, 754 (finding no reasonable expectation of privacy of detainee in telephone conversation with mother from police interrogation room due to court's general security concerns).

Defendant argued that there was no probable cause to believe that the place of the probation search was his, despite the fact that he faxed in a change of address notice to probation that was where he moved and the fact his argument would defeat his standing. United States v. Combs, 2010 U.S. Dist. LEXIS 141966 (D. Nev. December 23, 2010).*

Officers had reasonable suspicion to stop defendant’s van in a parking lot for a suspected drug deal based on informant’s information and the actions of the van driver. State v. Ruiz-Arias, 2011 Ohio 1198, 2011 Ohio App. LEXIS 1022 (5th Dist. March 10, 2011)*; State v. Frias-Carvajal, 2011 Ohio 1197, 2011 Ohio App. LEXIS 1033 (5th Dist. March 8, 2011).

Defendant’s cell phone was validly searched incident to his arrest under Fifth Circuit authority. United States v. Curtis, 635 F.3d 704 (5th Cir. 2011)*:

In United States v. Finley, we held that the police can search the contents of an arrestee’s cell phone incident to a valid arrest. In Finley, the police arrested the defendant after a reverse-sting drug sale. They searched his person following the arrest and seized a cell phone they found in his pocket. The police then transported the defendant to a different location for questioning. During the questioning, the arresting officer scrolled through the text messages on the defendant's phone. The officer discovered some incriminating text messages that were admitted against the defendant at trial.12 We concluded that the search of the cell phone’s contents was incident to the defendant's arrest and affirmed the decision not to suppress the text messages.13 The Fourth,14 Seventh,15 and Tenth16 Circuits have reached the same conclusion on similar facts.

12 Finley, 477 F.3d at 254.
13 Id. at 259—60.
14 United States v. Murphy, 552 F.3d 405, 410 (4th Cir.), cert. denied, 129 S. Ct. 2016, 173 L. Ed. 2d 1109 (2009); United States v. Young, 278 F. App'x 242, 245 (4th Cir. 2008) (per curiam) (unpublished).
15 United States v. Pineda-Areola, 372 F. App'x 661, 663 (7th Cir. 2010) (unpublished); see also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996).
16 Silvan W. v. Briggs, 309 F. App'x 216, 225 (10th Cir. 2009) (unpublished).

Finley forecloses Curtis’s argument that the district court should have suppressed the text messages that were recovered from his phone. Curtis concedes that he was arrested pursuant to a valid Texas arrest warrant and that Edwards recovered the phone from an area that was within Curtis’s reaching distance at the time he was arrested. It is also undisputed that Curtis was still being processed when Edwards scrolled through the text messages.

Officers had reason to believe that defendant probationer lived where he had a key and was seen entering. His slamming the door on the officer’s arm also was probable cause that he was resisting. United States v. Asprilla, 2011 U.S. Dist. LEXIS 24861 (N.D. Cal. March 8, 2011).*

“In the present case, Detective Hunter’s affidavit in support of the search warrant reports that Agent Andrews had received information regarding a marijuana grow operation at the property, smelled raw flowering marijuana coming from an outbuilding on the property, observed black pots and pipes at the property, which appeared to be an inactive plant nursery, and therefore believed that the outbuilding and residence were being used to cultivate marijuana.” United States v. Williams, 2011 U.S. Dist. LEXIS 25503 (S.D. Ga. January 12, 2011).*

Defendant’s ineffective assistance claim about defense counsel’s handling of the search issue was unavailing. There was clearly probable cause for issuance of the warrant, the use of CI information was not deficient, and the officer’s failure to knock-and-announce, even if true, would not result in suppression. The IAC claim was essentially conclusory. Byrd v. United States, 2011 U.S. Dist. LEXIS 24938 (W.D. N.C. March 10, 2011).*

Twitter account information was not subject to a reasonable expectation of privacy in an order for information under 18 U.S.C. § 2703, and the motion to reconsider the government getting access to it was denied. A First Amendment free association claim was also denied. In re § 2703 Order, 787 F. Supp. 2d 430 (E.D. Va. 2011), objection overruled 2011 U.S. Dist. LEXIS 130171 (E.D. Va., Nov. 10, 2011):

The Twitter Order does not demand the contents of any communication, and thus constitutes only a request for records under § 2703(c). Even though the Twitter Order seeks information additional to the specific records listed in § 2703(c)— data transfer volume, source and destination Internet Protocol addresses, and [Twitter’s] correspondence and notes of records related to the accounts — these, too, are non-content “records” under § 2703(c)(1). Therefore, as the targets of mere records disclosure, petitioners may not bring a customer challenge under § 2704.

Petitioners, unable to overcome the language of § 2704, assert in reply that they have standing based on general due process, but cite no authority on point. Moreover, § 2704 seems to recognize that only targets of content disclosures would have a viable constitutional challenge to the compelled disclosure of private communications. Customers who voluntarily provide non-content records to an internet service provider would not enjoy the same level of protection.

. . .

With these principles in mind, the Fourth Circuit has held that no legitimate expectation of privacy exists in subscriber information voluntarily conveyed to phone and internet companies. United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010) (citing Smith v. Maryland, 442 U.S. at 744). ...

Here, petitioners have no Fourth Amendment privacy interest in their IP addresses. The Court rejects petitioners’ characterization that IP addresses and location information, paired with inferences, are “intensely revealing” about the interior of their homes. The Court is aware of no authority finding that an IP address shows location with precision, let alone provides insight into a home’s interior or a user’s movements. Thus the Kyllo and Karo doctrines are inapposite. Rather, like a phone number, an IP address is a unique identifier, assigned through a service provider. Christie, 624 F.3d at 563; Smith v. Maryland, 442 U.S. at 744. Each IP address corresponds to an internet user’s individual computer. Christie, 624 F.3d at 563. When a user visits a website, the site administrator can view the IP address. Id. Similarly, petitioners in this case voluntarily conveyed their IP addresses to the Twitter website, thus exposing the information to a third party administrator, and thereby relinquishing any reasonable expectation of privacy.

In an attempt to distinguish the reasoning of Smith v. Maryland and Bynum, petitioners contend that Twitter users do not directly, visibly, or knowingly convey their IP addresses to the website, and thus maintain a legitimate privacy interest. This is inaccurate. Before creating a Twitter account, readers are notified that IP addresses are among the kinds of “Log Data” that Twitter collects, transfers, and manipulates. See Warshak, 631 F.3d 266, 2010 WL 5071766 at *13 (recognizing that internet service provider’s notice of intent to monitor subscribers’ emails diminishes expectation of privacy). Thus, because petitioners voluntarily conveyed their IP addresses to Twitter as a condition of use, they have no legitimate Fourth Amendment privacy interest. Smith, 442 U.S. at 744; Bynum, 604 F.3d at 164.

Secret service agents had probable cause for the arrest of the plaintiff for lying to them about touching Vice President Cheney when he wanted to ask Cheney “How many kids have you killed today?” referring to the War in Iraq which offended a Secret Service agent protecting Cheney. Plaintiff, however, wins on his First Amendment retaliatory arrest claim. Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011)*:

In light of the care the Supreme Court took to distinguish between complex and ordinary retaliation claims, we are not persuaded Hartman applies to the circumstances here. See John Koerner, Note, Between Healthy and Hartman: Probable Cause in Retaliatory Arrest Cases, 109 Colum. L. Rev. 755, 771 (2009) (“[T]he Court did not signal that it was rejecting [the Mt. Healthy] standard in general. Instead, the Court stressed three factors that supported a heightened pleading standard in retaliatory prosecution cases: complex causation, evidentiary concerns, and the presumption of prosecutorial regularity.”). The alternative approach, extending the “no-probable-cause” requirement to this ordinary retaliatory arrest case and dismissing Mr. Howards’ suit, would result in the Court’s limited exception devouring the rule. Because we hold Hartman did not disturb our earlier precedent on ordinary retaliation cases, when Mr. Howards was arrested it was clearly established that an arrest made in retaliation of an individual’s First Amendment rights is unlawful, even if the arrest is supported by probable cause. Accordingly, our prior precedent permits Mr. Howards to proceed with his First Amendment retaliation claim notwithstanding probable cause existed for his arrest. See DeLoach, 922 F.2d at 620.

The stop of this car was based on the fact that the officer suspected that the registered owner’s license was suspended, but he had no reason to believe that the registered owner was driving, so the stop was unreasonable. State v. Leveck, 2011 Ohio 1135, 196 Ohio App. 3d 26, 962 N.E.2d 316 (2d Dist. 2011)*:

[*P16] On these facts, Gustwiller’s suspicion was not constitutionally sufficient —not because it was irrational, but because the record does not support a sufficient basis in the facts and the reasonable inferences drawn from those facts. Because the stop was not based on a reasonable and articulable suspicion of criminal activity, it was unlawful. Therefore any evidence obtained as a result of the stop must be excluded.

The record supports the conclusion that defendant’s blood was drawn within minutes of the close of the three hour window, so the motion to suppress is denied. State v. Hollowell, 2011 Ohio 1130, 2011 Ohio App. LEXIS 969 (2d Dist. March 11, 2011).*

Officers entered defendant’s home and storage building while waiting for search warrants, but the search warrants had nothing to do with those entries, which could be described as protecting the status quo under Segura. State v. Parker, 2011 Ohio 1059, 2011 Ohio App. LEXIS 973 (8th Dist. March 10, 2011).*

Defendant was suspected of robbing a store. His mother appeared at the store and was questioned by the police, and she consented to a search of the house that produced clothing hidden in a crawl space similar to what was worn in the robbery. Her consent was valid. Jupiter v. State, 308 Ga. App. 386, 707 S.E.2d 592 (2011).*

Defendant’s motion to reconsider is denied. Factually, the USMJ was correct on the merits of this alternative ground to sustain the search, and it is, after all, an alternative ground. United States v. Baldenegro-Valdez, 2011 U.S. Dist. LEXIS 24446 (W.D. Mo. March 10, 2011).*

Additional questions adding two minutes to the stop did not make it unreasonable. Defendant conceded that he was stopped validly and that he consented; he argued that the stop was unreasonably extended. United States v. McBride, 635 F.3d 879 (7th Cir. 2011).*

Roger Roots, The Originalist Case for the Fourth Amendment Exclusionary Rule, 45 Gonzaga Law Review 1 (2010).

Abstract:

The Fourth Amendment exclusionary rule has been the law of the land in all federal jurisdictions since 1914 and in all state jurisdictions since 1961. Yet critics continue to question the rule’s constitutional pedigree. Generations of conservative jurists and scholars have called for the rule’s abolition on “originalist” grounds. These scholars argue that the rule is of recent vintage, unsupported in the Fourth Amendment’s text, and disloyal to the Amendment’s original intent. In this paper, the author argues that exclusion is actually an ancient remedy, widely applied by courts in various contexts since the dawn of American history. Contrary to the writings of anti-exclusion scholars, the basic framework for the exclusionary rule was well established in the regular practices of Founding-era judges and lawyers. Indeed, the idea that exclusion or exclusion-like remedies were required by the search and seizure protections of the Founding period almost certainly predates by many years the earliest American holdings opposing exclusion.

For the "originalists" on SCOTUS, this could be important, if they will pay attention.

Hat tip to Volokh Conspiracy.

Defendant ditched his car and ran, so it was abandoned. United States v. Vasquez, 635 F.3d 889 (7th Cir. 2011)*:

The search issue is a dead-bang loser. For one thing, the Bonneville was abandoned, and it's hard to see, under the circumstances here, how Vasquez could argue with a straight face that he maintained an expectation of privacy in it after he ditched it and bolted off on the run. On top of that, it's clear that the pursuing police had abundant probable cause to believe that drug money was in the car. What was the probable cause? Well, (1) Cruz told Diaz that Vasquez and Perez had the money with them; (2) no money was found during the searches of Vasquez and Perez; and (3) two drug-detection dogs indicated that there were narcotics in the passenger-side dashboard of the car. The motion to suppress was properly denied.

The police said defendant was in a high crime area, but it was an area with bars and restaurants, and a lot of people walked around there. “Moreover, police did not provide any link between the location and time of night with any alleged criminal activity by defendant. On the whole, the location and timing of where police observed Defendant are not particularly strong facts in support of reasonable suspicion.” United States v. Fox, 2011 U.S. Dist. LEXIS 23949 (D. V.I. March 8, 2011).*

The trial court found a Franks violation and purged the information from the affidavit. The remainder failed to show nexus and probable cause for the premises, and the good faith exception did not save the warrant. Commonwealth v. McClain, 2011 Ky. App. LEXIS 44 (March 11, 2011):

We agree with the circuit court and the Defendant that the affidavit, purged of McClain Jr.’s statement, failed to establish a nexus between the Defendant’s residence and the evidence of drugs and drug trafficking Sheriff Boggs was seeking. “To justify a search, the circumstances must indicate why evidence of illegal activity will be found ‘in a particular place.’ There must, in other words, be a ‘nexus between the place to be searched and the evidence sought.’” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (citing United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)). Sheriff Boggs found only a small amount of drugs on McClain Jr.’s ATV and did not find any indication of drug trafficking, despite the reports he had received. Furthermore, the Defendant’s residence on Water Tower Road was some distance away from where McClain Jr. was stopped. Finally, the address McClain Jr. provided to Sheriff Boggs was not the Water Tower Road address, but an address on East Main Street in Maysville. Accordingly, we agree with the circuit court’s holding that the search warrant, when purged of the false statement, failed to establish the requisite probable cause to search the Defendant’s residence based upon the totality of the circumstances.

. . .

We agree with the Defendant and the circuit court that Sheriff Boggs did not act in good faith when he included misleading information in the search warrant affidavit. His reliance on that information cannot be deemed objectively reasonable, despite the Commonwealth’s argument that it was reasonable because it was based on his interpretation of the conversation he had with McClain. The fact remains that Sheriff Boggs chose to include misleading information in his affidavit, and he cannot now rely upon his interpretation of McClain Jr.’s words to form a good faith basis for his reliance on the statement in the affidavit he knew was misleading. Accordingly, the circuit court correctly declined to apply the Leon good faith exception in this case and did not abuse its discretion in granting the Defendant’s motions to quash the search warrant and to suppress evidence.

Defendant police officer had no reasonable expectation in a thumb drive that he left attached to a computer at the police station that had no identifying marks on it and was not encypted. He stored police reports on it. When the thumb drive was found in the computer, it was opened by another to figure out who owned it, and child pornography was found on it. Miller v. State, 2011 Tex. App. LEXIS 1752 (Tex. App.—Austin March 9, 2011):

The first factor supports Miller's position. Miller testified that the thumb drive was his "private possession," and the State did not dispute this fact. Thus, Miller had a possessory interest in the thumb drive. However, the other relevant factors weigh against a finding of objective reasonableness. Although Miller testified that he did not share his thumb drive with others, he also testified that he had given Lieutenant Corbett permission to return the thumb drive to his box if it was ever found. Miller had left the drive at work on multiple occasions, and the drive was returned to him on those occasions. The district court could have reasonably inferred that in order to return the drive to Miller, others must have taken temporary possession of the drive and possibly accessed it to ascertain whether it belonged to Miller. Thus, Miller did not exercise complete dominion or control over the drive, at least during the times he had misplaced it. The record also supports a finding that Miller did not take precautions to maintain his expectation of privacy. Again, Miller did not mark the drive with his name, badge number, address, or telephone number. And, despite his knowledge of computers, Miller did not protect his drive with a password or secure the drive in a locked case. Instead, on the occasion in question, Miller left the drive connected to the patrol-room computer where it was easily accessible to others. Furthermore, Miller also testified that he used the thumb drive for storing police activity reports, which the district court could have reasonably inferred was not a private use. Finally, Miller's claim of privacy in a computer device that stores work-related data is not consistent with historical notions of privacy. See, e.g., Voyles v. State, 133 S.W.3d 303, 306 (Tex. App.—Fort Worth 2004, no pet.) (concluding that appellant "did not have a reasonable expectation of privacy with regard to his work computer and the materials stored in it" because, among other reasons, computer was used for work-related purposes).

In the third appeal of this case, the affidavit did not show a substantial basis for showing probable cause to believe that weapons would be found in defendant’s house. The affidavit was bottomed on mere conclusions of the officers, and the motion to suppress should be granted. Kennedy v. State, 338 S.W.3d 84 (Tex. App.—Austin 2011), on remand from Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009) (appellate issues were preserved) which reversed Kennedy v. State, 262 S.W.3d 454 (Tex. App.—Austin 2008):

For the reasons that follow, we believe that the affidavit did not provide a substantial basis for determining whether there was probable cause to believe that there were illegal weapons on Kennedy’s property. See Tex. Code Crim. Proc. Ann. art. 18.02(4) (West 2005) (listing “weapons prohibited by the Penal Code” as one type of property that search warrant may be issued for). First, although the affidavit described the weapons and ammunition that were recovered from Kennedy’s car on the night of the shooting, nothing in the affidavit indicated that any of the weapons were legally prohibited. In other words, nothing in the affidavit suggested that Kennedy’s possession of the recovered items was, on its own, illegal. Similarly, although the affidavit mentioned that Kennedy had asked the New Braunfels police department to return a handgun that had been taken from him, the affidavit did not explain why the handgun was taken or allege that it was seized because it was a legally prohibited weapon. Consequently, these portions of the affidavit provided no basis to conclude that there was a fair probability that prohibited weapons would be found on Kennedy’s property.

. . .

These statements were too conclusory to properly serve as support for a probable cause-determination. ... They did not provide enough information to allow the reviewing magistrate to make an independent evaluation and provided no basis for the officers’ beliefs. On the contrary, the statements provided nothing more than a summary of Goll’s and others’ bare and unsubstantiated beliefs and suspicions that people who “possess and utilize” some legal weapons were more likely to possess and use illegal weapons. ...

In addition, we note our strong concern regarding the use of these types of statements as support in a search-warrant affidavit. The statements postulated that individuals who possess and utilize legal weapons were likely to possess and utilize illegal weapons, and this type of rationalization is akin to the idea that individuals who legally use and possess over-the-counter or legally prescribed medications are more likely to use and possess illegal controlled substances. Regardless of whatever statistical significance statements of this sort might in fact possess, these types of overly generalized and unsubstantiated statements that seek to imply illegal conduct based on legal conduct cannot serve as a legitimate basis for a probable-cause determination.

[Remember, Texas has no good faith exception to the exclusionary rule.]

After defendant’s arrest in another’s car at 4:30 am in a high crime area, it was reasonable under the circumstances to impound the car. There were risks in leaving it and there was nobody to drive it off. Also, it was reasonable not to call the owner at that hour to come and take possession of it. Commonwealth v. Eddington, 459 Mass. 102, 944 N.E.2d 153 (2011):

... Although we need not examine the reason of the police officers for not attempting to contact Rodriguez, the reason for not doing so — the early morning hour — provided a sound basis for their decision. We also find significant the facts that Eddington was unable to operate the automobile because he had been placed under arrest (for operating a motor vehicle with a suspended license) and Cappas had been drinking and was not known to be authorized to drive the automobile. See Coleman v. State, 1983 OK CR 101, 668 P.2d 1126, 1130 (Okla. Crim. App. 1983), cert. denied, 464 U.S. 1073, 104 S. Ct. 986, 79 L. Ed. 2d 222 (1984) (impoundment justified where driver placed in custody and passenger had been observed drinking beer). Cf. Commonwealth v. Ellerbe, supra at 775-776 (impoundment justified in part based on fact that driver was arrested and passenger had no license with her); Commonwealth v. Daley, supra at 750 n.4 (impoundment justified in part because vehicle could not be turned over to third person). Nor was the vehicle’s registration produced. See G. L. c. 90, § 11 (“Every person operating a motor vehicle shall have the certificate of registration for the vehicle ... and his license to operate, upon his person or in the vehicle, in some easily accessible place ...”). Cf. Commonwealth v. Daley, supra at 750 (impoundment justified in part because vehicle was unregistered, uninsured, and had attached plates belonging to another vehicle). All these reasons, together with the interests protected by conducting an inventory search as well as the “the proposition that an officer’s judgment in the matter is to be tested by what reasonably appeared to him at the time, rather than to us in long afterthought,” Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 415, 664 N.E.2d 868 (1996), support impoundment. We thus conclude that the police acted reasonably in deciding to impound the automobile in the circumstances.

The use of a jackhammer to conduct a search for a body under concrete was reasonable. There is no “least possible destructive means” standard for conducting the search. Johnson v. Manitowoc County, 635 F.3d 331 (7th Cir. 2011) (unpublished):

We begin with Johnson’s claim that his Fourth Amendment rights were violated when the officers used a jackhammer in their effort to collect evidence in accordance with the search warrant. The Fourth Amendment guarantees that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” “The touchstone of Fourth Amendment inquiry is reasonableness, a standard measured in light of the totality of the circumstances and determined by balancing the degree to which a challenged action intrudes on an individual’s privacy and the degree to which the action promotes a legitimate government interest.” Green, 420 F.3d at 694 (internal citations omitted). The reasonableness requirement extends to the manner in which the search is conducted. Id. at 694-95. It is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant.” Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979). The test is whether “the officers executing the warrant employ[ed] a methodology that is, in light of the values protected by the Fourth Amendment and the exigencies of the situation, a reasonable one.” United States v. Jones, 54 F.3d 1285, 1292 (7th Cir. 1995).

Johnson argues that the officers’ use of the jack-hammer violates the reasonableness standard of the Fourth Amendment. He contends that the officers should have used a diamond or carbide-bladed saw, which would have resulted in less damage to the garage floor. Perhaps Johnson is correct, but the use of the jackhammer looks to be reasonable under the circumstances. Reasonableness, of course, is judged from the perspective of the officer at the time of the search, not with the benefit of 20/20 hindsight. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Although another device, here a diamond or carbide saw, might well have done the job a little cleaner, use of the jackhammer under the circumstances was not unreasonable. Johnson cites, and we find, no cases requiring that officers use the least possible destructive means to execute a search warrant. Rather, “so long as the officer’s conduct remains within the boundaries of reasonableness, an officer has discretion over the details of how best to proceed with a search warrant’s execution.” Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997).

. . .

Johnson also tries, rather unconvincingly, to distinguish United States v. Becker, 929 F.2d 442 (9th Cir. 1991), a case where the Ninth Circuit held that the use of a jackhammer to remove portions of a concrete slab during a search was reasonable. ...

Police were called to a domestic dispute, and one partner revealed that their fight was about the other viewing child pornography. Defendant was asked about the child porn, and he asked what was considered child porn. The police were justified in seizing the computer pending getting a search warrant for it because defendant knew they were looking for child porn. Hesrick v. State, 308 Ga. App. 363, 707 S.E.2d 574 (2011):

Viewing the evidence presented from the perspective of the officers at the time they were confronted with this rapidly developing situation, we find no error with the trial court’s conclusion that the warrantless seizure of the computers was authorized by exigent circumstances, specifically, the objectively reasonable concern that the seizure was necessary to prevent Hesrick’s imminent destruction of the computer images of child pornography, images that were vulnerable to quick destruction, irreplaceable, and essential to proving that a crime had been committed. Accordingly, the trial court did not err in denying Hesrick’s motion to suppress.

Police stopped defendant who matched the description of a suspected robber. The officer could see a gun in the hoody’s pocket, and that justified retrieving the gun because that was a violation of the law itself. After that defendant gave up drugs. “Under our construction of the statute, the elements of the offense are satisfied when the State proves at trial that a person possessed a pistol in a public place.” State v. Williams, 794 N.W.2d 867 (Minn. 2011).*

Defendant’s furtive movements justified a protective frisk of his person. The officer felt cylindrical objects in his shirt pocket which he knew were drugs containers. This was a valid search [and the court never says “plain feel”]. Commonwealth v. Simmons, 2011 PA Super 43, 17 A.3d 399 (2011).

While it is “troubling” that this defendant was denied an opportunity to participate in the suppression hearing, there was no error in denying his motion to suppress on Franks grounds because there was an alternative ground to support the search. United States v. Gamory, 635 F.3d 480 (11th Cir. 2011).*

Defendant was illegally detained, but the search warrant issued later was not the product of the detention. It was base416 Fed. Appx. 467416 Fed. Appx. 467d on an independent source. United States v. Fitzgerald, 416 Fed. Appx. 238(4th Cir. 2011) (unpublished):

In plaintiff’s civil case against the search of his property, he made no showing that the magistrate issuing the warrant was not neutral and detached such that the warrant could not be relied on by the executing officers. Grimes v. Thomason, 416 Fed. Appx. 465 (5th Cir. 2011) (unpublished).*

While the district court did not use the phrase “collective knowledge,” the record supports that there was probable cause under the collective knowledge doctrine. This was reach under plain error. United States v. Hooker, 416 Fed. Appx. 467 (5th Cir. 2011) (unpublished).*

Protective weapons search of a locked glove compartment that produced two guns was valid under Michigan v. Long (affirmance by an equally divided court). Commonwealth v. Micking, 2011 PA Super 45, 2011 Pa. Super. LEXIS 59 (March 10, 2011)*:

For affirmance:

The issue before us is properly defined as whether the protective search of the glove box was fueled by reasonable suspicion that Appellant may have been armed and dangerous. We find as a matter of law that the following facts supported Officer Tamulis’s articulated concern for his and his partner’s safety and sufficiently established reasonable suspicion to support a weapons search. First, Appellant was extremely nervous, shaking and trembling, and his voice was quivering. There was no apparent reason for Appellant’s extreme level of concern given the minor nature of the traffic infraction. As we noted supra, this type of conduct displays consciousness of guilt. Additionally, our case law provides that a defendant’s display of excessive nervousness is a factor supporting the existence of reasonable suspicion. See, e.g., Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004) (fact that defendant’s hands were shaking and he evidenced extreme nervousness, together with other factors, provided police with reasonable suspicion that he was committing a crime). Second, roadside traffic stops are fraught with danger for police officers. As noted by the Supreme Court: “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” Long, supra at 1048 n.13. Third, it was approximately 8:00 p.m. on a November night, and the police officers faced a greater risk that Appellant could reach a weapon inside the car without being easily detected. See In re O.J., 958 A.2d 561 (Pa.Super. 2008) (en banc).

We further observe that both Morris and Long support the opening of the locked glove compartment because it could have contained a weapon. Consider the following scenario: police limited their search to the passenger compartment and did not examine the glove compartment. Due to Appellant’s suspended license, the vehicle was to be towed, and the police awaited the arrival of the tow truck, which, in this case, took thirty minutes. Appellant, who would not have been under arrest since the weapons were not discovered, could have possessed another key or some other means to access the locked compartment and the loaded weapons contained therein. Since it was nighttime, and since he was free to roam the area as he was not in custody, Appellant could have retrieved a gun in a surreptitious manner and used it on Officers Tamulis and McDonald.

We do not expect, nor do we believe Pennsylvania jurisprudence requires, police officers, whose trained professional judgment has been placed on alert by circumstances, to expose themselves to this danger. The stakes are too high; the infringement is too narrow; the risk is too great. Indeed, the protective search undertaken in this case may well have saved their lives that night.

Opinion for reversal:

While we fully agree with the discussion in the Opinion in support of affirmance addressing the need for police officers to be protected in the line-of-duty, our review of the record regretfully compels us to register our dissent from the portion of the decision affirming the suppression court’s conclusion that Officer Tamulis was permitted to conduct a protective weapons search of the locked glove box. Thus, for the reasons that follow, we would reverse.

. . .

However, our review of the record reflects that the facts presented at the suppression hearing do not support the trial court’s conclusion. As the Opinion in support of affirmance indicates, “[t]he issue before us is properly defined as whether the protective search of the glove box was fueled by reasonable suspicion that Appellant may have been armed and dangerous.” Slip Op. at 14. Upon review of the transcripts, there is no doubt that Officer Tamulis failed to ask Appellant to exit the vehicle prior to the search of the passenger compartment and the glove box. Likewise, our review further indicates that, contrary to the statement of the trial court, Officer Tamulis failed to conduct a patdown search of Appellant for weapons. Rather, Officer Tamulis stated simply that he conducted a “protective pat down of the area” for his and his partner’s “safety.” N.T., 2/10/08, at 7. Thus, the officer failed to establish that he had a reasonable belief based on specific articulable facts, which would have entitled him to conduct a search of the portions of the passenger compartment of the vehicle in which a weapon could be placed pursuant to Morris.

Getting no answer at defendant’s door, believing someone inside, the officer went down the driveway to the side door and saw a shell casing in plain view. This was not an illegal entry onto the curtilage. There was no privacy fence blocking anyone’s view. “Absent a warrant, police have no greater rights on another’s property than any other visitor has. Thus, it has been held that the only areas of the curtilage where officers may go are those impliedly open to the public.” State v. Tallent, 2011 Ohio 1142, 2011 Ohio App. LEXIS 947 (6th Dist. March 11, 2011).*

The trial court’s findings that there was no evidence of defendant’s bad driving was not supported by the record, so the suppression order is reversed. State v. Liscoe, 2011 Ohio 1054, 2011 Ohio App. LEXIS 904 (9th Dist. March 9, 2011).*

Defense counsel was not ineffective for not challenging the search of his vehicle that was clearly with probable cause after his admissions of meth use. State v. England, 2011 Ohio 1144, 2011 Ohio App. LEXIS 949 (6th Dist. March 11, 2011).*

Cracked windshield did not justify a stop where the state could not show with photographs that the crack impaired the driver’s ability to see to drive. Suppression affirmed. State v. McWhorter, 2011 Ohio 1074, 2011 Ohio App. LEXIS 933 (8th Dist. March 10, 2011).*

The officer had reasonable suspicion to stop defendant’s car. Defendant saw the officer and then pulled off the interstate and parked on the off ramp, so the officer pulled up behind him. Defendant was excessively and progressively more nervous, and he said he’d been to Atlanta (a source city) but didn’t know how long he’d been there. Meanwhile, a BMW slowed and stopped about 75 yards behind them for about two minutes. It left and then the cell phone in the car started ringing. The officer asked for consent, and defendant said that he could not give consent because it was not his car, but he would have if it was his. “While none of these items independently amounts to a reasonable suspicion of criminal activity, blending each of these ‘tiles’ into the ‘entire mosaic’ of the totality of the circumstances, we believe Crompton had reasonable suspicion to detain Wallace while he walked the drug dog around the car.” State v. Wallace, 392 S.C. 47, 707 S.E.2d 451 (2011), quoting United States v. Whitehead, 849 F.2d 849, 858 (4th Cir. 1988).

Smell of burnt marijuana discovered during a traffic stop was probable cause for a search of the car. United States v. Brown, 634 F.3d 435 (8th Cir. 2011).*

Police had probable cause for a search warrant for defendant’s computer and cell phone for child pornography. Defendant’s girlfriend got a call from defendant’s ex and the mother of his child that he’d emailed her explicit pictures of her 14 year old sister. The girlfriend accessed defendant’s email account and saw that he emailed himself pictures from his cell phone. She told police, and this was PC for a search warrant. United States v. Blauvelt, 638 F.3d 281 (4th Cir. 2011).*

Consent as a whole was found to be valid. Defendant was handcuffed without display of weapons, and he reinforced his oral consent with written consent. Gonzalez v. State, 59 So. 3d 182 (Fla. 4th DCA 2011).*

Defendant invoked his right to remain silent, but, down at the PD, he “sua sponte” started talking and consented to a search of his vehicle. State v. Ashby, 2011 Mo. App. LEXIS 291 (March 8, 2011).*

Officers had a report a specifically described man was on a particular city block with a quantity of drugs. Officers waited, and, as defendant approached, one with POLICE on a vest stepped from behind a parked van, and defendant immediately dropped the drugs he had in hand when he saw the officer. Defendant was not yet seized when he dropped the drugs. Curtis v. State, 15 A.3d 216 (Del. 2011):

In this case, Silvers testified that once Curtis looked in Silvers' direction, Curtis dropped the drugs “within a fraction of a second.” Silvers did not even have the chance to ask to speak to Curtis before Curtis dropped the drugs. In that respect, this case is more straightforward than Ross. If Silvers, in his police vest with his hand on his Taser, had continued to walk towards Curtis and had restricted Curtis's movement or had ordered Curtis to stop, a reasonable person in Curtis's position arguably would have believed he was not free to ignore the police presence. Those, however, are not the facts of this case. In this case, the mere presence of Silvers for a fraction of a second—or even a few seconds—would not cause a reasonable person in Curtis's position to believe he could not ignore the police presence. This conclusion is consistent with our holding in Woody.

Probation officers had justification for a probation search from defendant’s not reporting a police “contact.” His admission he had marijuana also justified the search. Jacklin v. State, 16 A.3d 938 (Del. 2011).

Roadblock near house being searched was reasonable where the police during the raid overheard a call about somebody coming to buy drugs. Defendant was a passenger in the car, and it was stopped with reasonable suspicion. Spurlock v. State, 67 So. 3d 811 (Miss. App. 2011), Rehearing en banc denied, 2011 Miss. App. LEXIS 467 (Miss. Ct. App.,
Aug. 9, 2011):

¶12. In this case, the police received a phone call from an unidentified male while executing a search warrant at Jefferson’s home. When police answered, the caller asked, “Are you ready to re-up?” Before receiving the call, the police had uncovered marijuana, ecstacy, and handguns in Jefferson’s home. While the police did not have any identifying information for the caller other than his gender, they reasonably suspected that someone was approaching Jefferson’s home with contraband. Therefore, the police utilized a roadblock to confirm their reasonable suspicion. Because the police had reasonable suspicion, their investigatory stop of the vehicle in which Spurlock was a passenger was not unconstitutional. As such, the circuit court did not err in denying Spurlock’s motion to suppress.

[And the Mississippi courts website still sucks.]

Owner of premises had apparent authority to consent to a search of all rooms. Defendant was present and did not object to the search of his room to show that he had separate control. United States v. Radillo, 2011 U.S. Dist. LEXIS 22751 (W.D. Mo. January 19, 2011)*:

The Court finds that Anjanette Lewis had apparent, if not actual, authority over the entire residence. The officers had been told by Anjanette Lewis that she was the owner of the residence. ... Anjanette Lewis signed a Consent to Search the “residence.” ... “The typical reasonable person would have understood this to mean every room, the sum of which is the house [i.e. the residence].” United States v. Fleck, 413 F.3d 883, 892 (8th Cir. 2005). The only other person who claimed to live at the residence, Monica Lewis, gave the officers verbal consent to search. ... The officers had not threatened Anjanette Lewis or Monica Lewis in any way nor had they done anything to coerce their consent. ... Defendant Radillo made no objections while the officers were searching the premises. There was no constitutional violation.

Officers had probable cause to stop defendant for “traveling at 82 miles per hour in excess of the posted speed limit, which is a violation of the California Vehicle Code.” And, defendant consented to the search of his vehicle. His actions showed an intent to consent, even if he did not understand English, which he never communicated to the officers. United States v. Sanchez-Palomino, 2011 U.S. Dist. LEXIS 23562 (E.D. Cal. February 18, 2011).*

Defendant was “arrested” in his home by officers at his window with guns drawn who ordered him to the door to come out. United States v. Burch, 838 F. Supp. 2d 1369 (S.D. Ga. 2011), aff'd, 466 Fed. Appx. 773 (11th Cir. 2012):

That the officers, at least according to their testimony, never physically entered the trailer to conduct the arrest does not change the fact that an arrest took place inside the home. Although it does not appear that the Eleventh Circuit has directly addressed this issue, “every court that has considered the issue … has concluded that if the police force a person out of his house to arrest him, the arrest is deemed to have taken place inside his home, and the Payton warrant requirement applies.” Fisher v. City of San Jose, 509 F.3d 952, 959 (9th Cir. 2007). In analyzing whether the warrant requirement applies, “it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home.” Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir. 1997), rev’d on other grounds, 499 F.3d 199 (3d Cir. 2007) (holding that arrest took place inside home even though officers did not physically enter residence to place suspect in custody); ...

Defendant’s claim that defense counsel was ineffective for not challenging racial profiling in his stop falls short because it is based on speculation and conjecture. Brooks v. United States, 2011 U.S. Dist. LEXIS 23488 (W.D. N.C. February 22, 2011).*

During a protective sweep on specific facts, a gun was seen in plain view. It was not seized, but a consent was obtained for the gun and it was retrieved. The consent was valid, too. “The facts in this case mirror, virtually precisely, the facts in [United States v. Gandia, 276 Fed.Appx. 10 (2d Cir. 2008)], and even more so.” United States v. Aguilar, 2011 U.S. Dist. LEXIS 23120 (E.D. N.Y. March 8, 2011).*

The officer developed reasonable suspicion after a valid traffic stop, and he called in a drug dog which alerted. This was not a search incident, but a search under the automobile exception. United States v. Riley, 2011 U.S. Dist. LEXIS 23394 (W.D. Mo. February 4, 2011), adopted 2011 U.S. Dist. LEXIS 23400 (W.D. Mo. March 8, 2011).*

Defense counsel was not ineffective for counseling defendant to plead guilty to get the three points for acceptance of responsibility when the defense was pretty much that the police were in a conspiracy to convict him and no viable motion to suppress existed. Herring v. United States, 2011 U.S. Dist. LEXIS 23657 (S.D. Ga. March 1, 2011).*

Congressional Research Services: Law Enforcement Use of Global Positioning (GPS) Devices to Monitor Motor Vehicles: Fourth Amendment Considerations by Alison M. Smith, Legislative Attorney (Feb. 28, 2011).

Benjamin Holley, Digitizing the Fourth Amendment: Limiting the Private Search Exception in Computer Investigations, 96 Va. L. Rev. 677 (2010)

Abstract SSRN:

The “Private Search” exception to the Fourth Amendment allows law enforcement officers to re-create, without a warrant, a search conducted by a private individual, provided two conditions are met. First, the individual may not act at the behest of the government (the agency prong) and second, officers may not search beyond what was already discovered by the private searcher (the scope prong). The exception is premised on the theory that the private searcher destroyed whatever expectation of privacy the suspect had in his information, thereby eliminating any Fourth Amendment protection. In applying this otherwise well-understood exception to searches of computers, however, courts have adopted widely varying approaches based on divergent assumptions and leading to dramatically different results. This Note argues that, because of the nature of computer storage, courts should narrow the application of the private search exception by broadly interpreting the “agency” prong and narrowly interpreting the “scope” prong. Such an approach maintains the purpose of the exception without unduly sacrificing informational privacy or law enforcement efficacy.

Procedural default applies to the state in failing to raise standing in the trial court such that it cannot raise standing for the first time on appeal. State v. Rhinehart, 333 S.W.3d 154 (Tex. Crim. App. 2011):

To summarize, in this case, we apply ordinary rules of procedural default to decide that the State, as the losing party in the criminal district court, could not raise for the first time on appeal a claim that there was no valid basis for the criminal district court to have quashed the indictment. We decline to apply, in this case, the Fourth Amendment standing rule of Rakas which, in any event, does not clearly support the proposition that the State should be permitted to raise this claim for the first time on appeal, particularly since the State chose to litigate only the due-diligence issue in the criminal district court thus, in effect, conceding that this might be a valid basis for quashing the indictment. See Steagald, 451 U.S. at 209-11. Appellee’s first ground for review is sustained.

The search warrant was not issued on “a paucity of fact”; there were two controlled buys from the premises, and that was probable cause. United States v. Young, 2011 U.S. Dist. LEXIS 22606 (M.D. Fla. February 18, 2011).*

Exigent circumstances for a warrantless entry when, during a knock-and-talk, a man ran from the residence and they could smell marijuana. United States v. Rodriguez-Gonazalez, 2011 U.S. Dist. LEXIS 22750 (W.D. Mo. February 15, 2011).*

The search warrant for all of a multiple residence building failed because the officers relied on an untested informant that defendant was “in control” of the entire building and then the officers failed to tell the magistrate that there were multiple residences within it. As to “in control,” the affidavit and informant were wholly conclusory under Gates. United States v. Clark, 638 F.3d 89 (2d Cir. 2011):

Here, such information was totally lacking on the issue of control. First, the issuing judge was not advised as to the size of the building or the number of residential units it contained, which would have provided an important, if not essential, context for evaluating the probability of the “full control” allegation. Second, nothing in the warrant affidavit advised the issuing judge what the informant meant by “full control.” Indeed, the affidavit did not even disclose whether the informant's allegation was based on personal observation, a hearsay account, or mere rumor. Third, the affidavit did not provide any descriptive facts consistent with the full control allegation. We do not suggest that any one of these facts was necessary to establish probable cause, see [Gates] at 230, but the Supreme Court has recognized such facts as relevant to a consideration of the totality of circumstances, see id. at 233. We thus conclude that the absence of any such information left the issuing judge with a record from which he could not himself make a determination of control sufficient to support probable cause to search the entire multi-family dwelling. See id. at 239 (reiterating that wholly conclusory statement is inadequate to allow independent determination of probable cause (citing Nathanson v. United States, 290 U.S. 41 (1933))).

. . .

... Where law and experience thus effectively give rise to a presumption that one person's home is not in the control of a third party, a conclusory assertion of control by an informant who has been corroborated only in some other respect does not provide a substantial basis for a judicial officer to find it probable that evidence of the third party's criminality will be found in residences other than his own.

This conclusion is consistent with the view of the New York Court of Appeals in People v. Tambe, 71 N.Y.2d at 503, 527 N.Y.S.2d at 377, which, in upholding probable cause to search multiple premises controlled by a number of confederates for criminal evidence likely to be in the possession of one of them, emphasized that a different rule might apply “where the fruits of the criminal enterprise are probably located in one of a few locations but the nature of the information is such that a search of each of these locations would intrude upon the rights of individuals in no way involved in the criminal activity under investigation.” Id. That is this case. Because the warrant affidavit contained no information as to either the number of residential units within 1015 Fairfield Avenue or where within the building Clark dealt drugs, there was a real possibility that a search of the entire building and all persons in it would intrude upon the rights of persons in no way linked to the suspected criminal activity. In these circumstances, the law demanded more than a conclusory allegation of control by a partially corroborated informant to permit the issuing judge to find probable cause to support the challenged warrant.

At ATL customs, defendant was sent for a secondary search, and his luggage was x-rayed and searched, and officers found meth in a picture frame. Defendant had a prior arrest for drugs, and he was strip searched and it was reasonable on this record. United States v. Laureano-Castellon, 2011 U.S. Dist. LEXIS 22861 (N.D. Ga. March 7, 2011), R&R 2010 U.S. Dist. LEXIS 141849 (N.D.Ga. December 23, 2010):

CBP Chief Pugh also testified that in his experience working for CBP, when narcotics were found in luggage, it was not unusual to find drugs on the body of the person who possessed the luggage in which the narcotics had been found. Therefore, Magistrate Judge Hagy did not clearly err in concluding that the CBP officers had the requisite reasonable suspicion and particularized evidence to justify a limited strip search of that part of Defendant's body that could not adequately be searched by a pat down; the partial strip search of Defendant did not violate his Fourth Amendment rights.

Defendant’s post-verdict judgment of acquittal for possession of marijuana was denied because there was evidence from which a jury could have convicted, including him sitting in the police car caught on the audio of video recording saying “So, what happened to the weed? So, what happened to the weed?” United States v. Williamson, 2011 U.S. Dist. LEXIS 22770 (E.D. N.C. March 4, 2011).*

By the time a drug dog was brought out to sniff defendant’s car, the officer developed reasonable suspicion from her extreme nervousness and shaking hands and inability to answer elementary questions about her travels. United States v. Fajardo-Guevara, 2011 U.S. Dist. LEXIS 22070 (M.D. La. March 4, 2011).*

On CBS4 Miami: Dade Cops Waiting To Get Crime Fighting Drone Airborne:

Miami-Dade’s newest crime fighting tool is a literal ‘eye in the sky’.

The Micro Air Vehicle, or MAV for short, is a small radio controlled drone aircraft equipped with a portable camera system. Miami-Dade Sgt. Andrew Cohen said drone will be used to gather real time information in situations which may be too dangerous for officers.

“If an SRT (Special Response Team) has to go into an area they don’t know what’s there, we don’t know what is in the backyard,” said Cohen, “They want to know if there are dogs in the backyard, if there is a shed, things that could be a threat to us.”

The MAV is used by the military to scan dangerous areas before troops are sent in. Miami-Dade police used a $50,000 grant to buy one, but not everyone is happy with the purchase.

“What happens when they fly over backyards and they see something without a warrant that they want to take against,” said ACLU Executive Director Howard Simon.

On Danger Room: Drones Set to Invade National, State Parks, by Richard Wheeler posted February 28, 2011.

Two years ago, a PD in my county acquired a drone.

See generally Police Aviation News.

DHS Conducts ‘Drive-by’ Surveillance. What’s Next? The government flouts the Fourth Amendment in the name of security, by Annie Jacobsen, describing Homeland Security's contracts for mobile backscatter machines already used at airports and by Customs in ports and border crossings to inspect vehicles parked on the street.

Now, the Electronic Privacy Information Center, or EPIC, has made public a series of government contracts that reveal that the Department of Homeland Security has been paying millions of dollars to develop and implement several radical programs that allow for an even broader, even spookier form of covert surveillance, namely “drive-by” surveillance from innocuous looking vans. In its own words this allows the Department of Homeland Security to conduct “covert inspection of moving subjects,” which includes people, places, and things.

According to a former Homeland Security officer who spoke on the condition of anonymity, DHS has been conducting this “drive-by” surveillance of American citizens since at least 2007, using a technologically advanced vehicle called a Z Backscatter Van, or ZBV for short. The corporation that makes the surveillance van, American Science and Engineering Inc. (AS&E), received a $17.5 million service contract from the U.S. government for the ZBVs in the winter of 2007.

“The system’s unique ‘drive-by’ capability allows one or two operators to conduct X-ray imaging of suspect vehicles and objects while the ZBV drives past,” says AS&E on its website. “The ZBV can also be operated in stationary mode by parking the system and producing X-ray images of vehicles as they pass by,” it adds. Screening can also be performed remotely while the system is parked. “The system is unobtrusive, as it maintains the outward appearance of an ordinary van,” says AS&E.

This is not new. See my post from August 25, 2010 about a piece on Prison Planet.

The inventory search of defendant’s car was without any justification, and it was apparent that the officers were seeking to search the car rather than inventory it. “Defendant claims that after they called their own tow, the officers said words to the effect of ‘once he gets here, we'll be able to search the car.’” At the minimum, the police had a dual motive to tow and search. United States v. Cline, 2011 U.S. Dist. LEXIS 22469 (E.D. Cal. February 18, 2011):

The Government admits that the police officers could not point to any specific criminal activity by the Defendant which gave the officers probable cause to conduct a warrantless search of the car. Nor does the Court find persuasive the Government's argument that dual motives for the inventory search existed. Specifically, the Government argues that “searching the vehicle for investigative purposes was NOT [the police officers'] primary purpose in inventorying the car. If anything, it was a secondary motive.” ... The facts of this case do not support this argument. As noted above, the officers did not search Defendant’s car in accordance with state law and department procedures. The impounding and inventory of Defendant’s car cannot be explained as a “common practice” given that state law and police policies authorize the seizure and inventory of a man’s car in limited circumstances. The Government bears the burden of proving that the police officers lawfully inventoried the Defendant’s car. Its arguments and evidence fail to carry that burden. Accordingly, the evidence found in Defendant’s car must be suppressed.

The officer was parked at the jail with an OUI arrestee in his car, and defendant came to the jail, parked, and walked up and talked to him about the arrestee and being there to pick her up. The officer could smell intoxicants, and asked for his DL. It turned out the DL was suspended, and that led to defendant’s arrest. This was a voluntary encounter. State v. Trevarthen, 2011 Ohio 1013, 2011 Ohio App. LEXIS 848 (11th Dist. March 4, 2011).*

CI provided PC for the search of defendant’s car: (1) CI had a strong track record of 18 tips leading to 12 search warrants, and (2) he provided significant predictive details of what defendant would be doing that night that proved correct. Byrd v. Commonwealth, 57 Va. App. 589, 2011 Va. App. LEXIS 78 (February 1, 2011).*

Entry into defendant’s backyard by the consent of the landlord was ineffective because a landlord cannot consent to a search of the renter’s property, including the curtilage. Here, however, we also have a consent to search inside the house for child pornography seven hours later which purged the taint of the illegal search of the backyard. United States v. Howe, 414 Fed. Appx. 579 (4th Cir. 2011) (unpublished):

First, a considerable period of time — more than seven hours — elapsed between Healy’s entry onto the curtilage and the seizure of evidence related to child pornography. There was also a significant period of time between Healy’s entry and his request for consent to search. Further, Howe’s voluntary consent to the search of his home was an intervening act of free will. See [Brown v. Illinois,] at 549 & n.10 (holding, albeit in dicta, that consent to further police interaction is sufficient to “sever the connection between an unlawful act and the acquisition of additional evidence”). Finally, Healy’s warrantless entrance onto the curtilage of Howe’s property, while unlawful, was neither flagrant nor offensive. Id. at 550. Accordingly, we affirm the district court’s denial of the motion to suppress, although on modified grounds.

Officers responding to a noise complaint at defendant’s trailer ended up inside. They knew that defendant was a convicted felon, so seeing a gun in the premises made it “immediately apparent” that the gun was evidence of a crime for plain view purposes. United States v. Burch, 2010 U.S. Dist. LEXIS 141795 (S.D. Ga. July 6, 2010).*

Officers came to defendant’s property with a search warrant, and they found him asleep in the car. One officer tapped on the window with a gun to wake him up. Defendant was removed from the car and handcuffed face down on the ground. He refused to consent to a search of the car, and a drug dog was brought in and alerted on the car. It was searched finding 250g of methamphetamine. Defendant’s seizure and detention was valid under Summers as an occupant of the house, albeit outside at the time. United States v. Johnson, 2011 U.S. App. LEXIS 4330 (10th Cir. March 3, 2011) (unpublished):

In light of Summers and Muehler, Mr. Johnson's first argument is unavailing. As long as a person is an occupant of the premises identified in a search warrant, officers have “categorical” authority to detain him or her for the duration of the search. Id. at 98. Whether the detention in fact facilitates one of the governmental interests acknowledged in Summers—-preventing flight, minimizing risk, or completing the search in an orderly manner—-is irrelevant.

That one officer intended to detain Mr. Johnson for investigative purposes is of no consequence. See Aplt. Br. at 14. The relevant question is whether the officers have the authority to detain a citizen—not their subjective intent in doing so. United States v. Lara-Garcia, 478 F.3d 1231, 1234 (10th Cir. 2007).

A fire code inspector had an administrative warrant to inspect airplane hangers and found three vehicles parked inside. The inspector felt that something was awry, so he wrote down two of the VIN numbers which were visible from outside. As to the third, the VIN was obstructed, so the license plate number was written down. Later, it was determined that two of the vehicles were stolen. Defendant had an expectation of privacy in the hanger as the renter. Recording the VIN during an otherwise lawful search was not an unreasonable seizure under Hicks and Class. State v. McCammon, 250 P.3d 838 (Kan. App. 2011):

First, we must determine whether the officer's observation of the VINs through the windshields of two vehicles was a search implicating the Fourth Amendment. We hold that it was not. The mere observation of anything that comes into view during an otherwise lawful search is not an independent search implicating the Fourth Amendment because it produces no additional invasion of privacy interests beyond those already jeopardized. See Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987); Illinois v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983). As noted by the Court in Hicks, if the officer had taken any action beyond mere observation—even a trivial movement of an item by only a few inches—we would be compelled to conclude that an independent search occurred implicating the Fourth Amendment. 480 U.S. at 325.

Next, we must determine whether the officer's recordation of the VINs was a seizure within the meaning of the Fourth Amendment. Again, we hold it was not. The recordation of the VINs did not meaningfully interfere with any possessory interest in the vehicles and therefore did not amount to a seizure implicating the Fourth Amendment. See Hicks, 480 U.S. at 324; Maryland v. Macon, 472 U.S. 463, 469, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985). The officer was able to record these numbers without any intrusion whatsoever; in fact, she was unable to record a VIN from a third vehicle because it was obstructed, so she opted against further action to observe and record that VIN. We cannot conclude that the recordation of the VINs was a seizure implicating the Fourth Amendment. ...

Finally, we note as an alternative analysis that the United States Supreme Court has made clear that there is no reasonable expectation of privacy in a VIN. [quoting New York v. Class.]

Idaho’s probation condition that a probationer submit to a search “at the request of” a probation officer means that the probation officer must tell the probationer that the search is going to occur. A search in the probationer’s absence was thus void. State v. Turek, 250 P.3d 796 (Ida. App. 2011):

Finding the reasoning of these authorities persuasive, we conclude that a probation condition that requires a probationer to submit to a search “at the request of” an officer requires that the probationer be informed of an officer’s intent to conduct an impending search. Like the Joubert Court, we recognize that the purposes of probation may be better advanced if we were to allow probation officers to conduct unrestricted, unannounced searches of a probationer’s residence. However, we must keep in mind that probationers’ expectation of privacy is merely diminished, not obliterated. In addition, to adopt the state’s interpretation of the term would be to essentially ignore the plain language of the probation condition–a proposition for which the state has cited no authority and which does not constitute an “objectively reasonable,” nor logical, interpretation.

The officer obtained a telephonic search warrant for defendant’s blood, but the magistrate failed to properly record it. Suppression will not be ordered for the mistake of the magistrate; the officer did his part correctly. State v. Dominguez, 2011 UT 11, 677 Utah Adv. Rep. 29, 248 P.3d 473 (2011), rev’g State v. Dominguez, 2009 UT App 73, 206 P.3d 640 (2009).

While the suppression hearing testimony about NHTSA testing standards was insufficient, it was harmless because there was plenty of testimony that the defendant was under the influence when he was stopped after three lane violations and apparently being under the influence. State v. Frase, 2011 Ohio 966, 2011 Ohio App. LEXIS 821 (6th Dist. March 4, 2011).*

The police were called over a domestic dispute where a woman complained that defendant threatened her with a gun. Defendant was handcuffed and removed from the basement. The gun wasn’t found, and the officer returned to the basement to look for it. He searched and didn’t find it, and reported back to the other officer. He went back to the basement, and he noticed that a ceiling tile was ajar. He looked up there and found a gun. The woman’s consent to go look for him implicitly included looking for the gun, too, and her suppression hearing testimony to the contrary was rejected. United States v. Toyer, 414 Fed. Appx. 584 (4th Cir. 2011) (unpublished):

We found, in Hylton, implicit consent to search the apartment in which the defendant and his girlfriend lived based on the circumstances and the girlfriend’s words. 349 F.3d at 786. This court found that the girlfriend gave the police consent to search the apartment to enable her to return to the apartment safely, and that the officers reasonably inferred that she authorized them to retrieve the gun that had put her at risk. Id. We were also persuaded by the fact that the girlfriend had advised the officers of the specific circumstances inside the apartment, concluding that “when a tenant calls police for assistance ... expressing fear about the presence of a gun, and describing precisely where the gun is located, it can be inferred that she is authorizing the police to enter the apartment and retrieve the gun.” Id. at 786-87.

The situation here — one of a domestic dispute involving threats of violence with a gun — is similar to the situation in Hylton, and even if Ballard and Elliot did not give express consent to search the house for weapons, the officers reasonably inferred that such implicit consent had been given. The government’s burden is heavier where consent is not explicit, since consent is not lightly to be inferred. Neely, 564 F.3d at 350 (citing United States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984)). But the government meets the burden in this case. In their testimony, both officers stated that Ballard and Elliot seemed concerned and scared that Toyer had threatened Elliot with a gun, and told the officers that Toyer was in the basement of the house with the weapon. Additionally, Elliot told Officer Adams that the gun was on a shelf, but then later told another officer that the gun may have been in the drop ceiling. Though she did not explicitly state “I consent for you to search the basement area for the gun,” it is reasonable to believe that a rational officer would find her statements about the whereabouts of the gun to be consent to search for the gun. Furthermore, it is reasonable for the officers responding to the frantic 911 call to believe that both Ballard and Elliot were giving consent for the officers to enter the house, search for Toyer and his weapon, and diffuse the potentially dangerous situation.

A passenger riding without a seat belt is in violation of state law, and, when the vehicle is stopped, the officer has reason to ask the passenger for identification to issue the citation. Commonwealth v. Washington, 459 Mass. 32, 944 N.E.2d 98 (2011).*

The court finds that the officer did not testify falsely about how some information was gathered about defendant’s AmTrak ticket. So, a Franks hearing is rejected. And, even if it he did testify falsely, it would not change the outcome of the suppression hearing because there was probable cause without it. United States v. McKenzie, 2011 U.S. Dist. LEXIS 21202 (D. N.M. February 10, 2011).*

While the N.C. following too close statute is subject to subjective interpretation by an officer, the “one car length per 10 miles per hour” is a reasonable evaluation and makes it less subjective. United States v. Flores-Duran, 2011 U.S. Dist. LEXIS 20898 (E.D. N.C. February 3, 2011), adopted by, motion denied by United States v. Flores-Duran, 2011 U.S. Dist. LEXIS 19487 (E.D.N.C., Feb. 25, 2011).*

The size and breadth of a document seizure does not mean that the warrant was general. United States v. Simpson, 2011 U.S. Dist. LEXIS 20752 (N.D. Tex. March 2, 2011):

Simpson primarily argues that the unprecedented volume of seized evidence supports his argument that the warrants are general warrants. But the unprecedented volume of seized evidence may instead reflect the scope of the alleged conspiracy and the criminal activities, which are factors the court can consider in determining whether the warrant meets the particularity requirement. See, e.g., United States v. Triumph Capital Grp., Inc., 211 F.R.D. 31, 57 (D. Conn. 2002); Andresen, 427 U.S. at 480-82 n.10 (considering complexity of alleged real estate scheme in holding that list of specific items was not general warrant). In short, the broadness or scope of a warrant does not of itself dictate that the warrant is an unconstitutional general warrant.

This warrant was broad, to be sure, but it was not “general.” The warrant was rather specific about what could be searched and seized. Although the description encompassed virtually all of the business records of the corporation, that does not mean that the warrant lacked particularity; it simply means that it was extremely broad.

United States v. Logan, 250 F.3d 350, 363 (6th Cir. 2001) (citation omitted); see also United States v. Smith, 424 F.3d 992, 1006 (9th Cir. 2005) (“The warrant’s Attachment B describes with sufficient specificity the types of documents and property sought. Potentially problematic is its breadth[.]”). Simpson’s argument is therefore misplaced. Particularity does not turn on the volume of what was authorized to be seized or what was seized pursuant to the warrant.

Instead, to determine whether a warrant meets the particularity requirement, the court decides “whether an executing officer reading the description in the warrant would reasonably know what items are to be seized.” Kimbrough, 69 F.3d at 727. (citation omitted). In some situations, the Fourth Amendment is not violated by the use of generic language. “In circumstances where detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized.” Id. “There is no requirement that the government agents know in advance the specific items of evidence to be seized or that the items seized do in fact evince a crime, so long as they are within the scope of a properly authorized warrant.” United States v. Cantu, 774 F.2d 1305, 1308 (5th Cir. 1985) (per curiam). A warrant does not need to specifically identify each document to be seized. See Triumph Capital, 211 F.R.D. at 57. The only relevant inquiry is whether, “in light of the nature of the activity under investigation, and the manner of storing the information, [the warrant was] as particular as it could be.” Logan, 250 F.3d at 363; see also Triumph Capital, 211 F.R.D. at 57 (“In determining whether the particularity requirement is satisfied, the court is entitled to place a great deal of weight on whether the warrant is as particular as reasonably could be expected under the circumstances.”). And “[t]he complexity of the crimes under investigation is a factor the court may consider in making this determination.” Triumph Capital, 211 F.R.D. at 57.

[Note: F.R.D. cases are not in Google Scholar.]

National Center for Justice and the Rule of Law has its tenth Fourth Amendment Symposium March 9-11 at the University of Mississippi, this year on digital evidence: The Fourth Amendment: Current Analysis, Views of the Future, And Digital Searches and Seizures. Agenda here.

Andrew Vahid Moshirnia, Separating Hard Fact from Hard Drive: a Solution For Plain View Doctrine in the Digital Domain, 23 Harv. J. L. & Tech. 609 (2010)

R. Bruce Wells, The Fog of Cloud Computing: Fourth Amendment Issues Raised by the Blurring of Online and Offline Content, 12 J. Const. L. 223 (2009)

Lily R. Robinton, Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence, 12 Yale J.L. & Tech. 311 (2010)

A third-party has Rule 41 standing to at least get a hearing on seizure of his property when he is not a target of a criminal investigation. United States v. Begolly, 2011 U.S. Dist. LEXIS 20755 (W.D. Pa. March 2, 2011):

We disagree that such a jurisdictional prerequisite exists before we can consider the merits of Mr. Begolly’s Motion. Rather, we find that where, as here, we have a pre-indictment seizure of property of a third party not under investigation, we must weigh the interests of the government in holding the property against the owner’s rights to use the property,” i.e. is the retention of Mr. Begolly’s property reasonable considering all circumstances. See United States v. Premises Known as 608 Taylor Avenue, Apartment 302, Pittsburgh, Pa., 584 F.2d 1297, 1302 and 1304 (3d Cir. 1978). See also Chaim v. United States, 692 F.Supp.2d 461, 467 (D.N.J. 2010) (when Rule 41(g) motion is filed and there is no pending criminal proceedings against either the movant or the property, then the standard is that set forth in 608 Taylor Ave: whether the government’s continued retention of the property is reasonable under all the circumstances.); Committee Note to 1989 Amendment to Rule 41 (“No standard is set forth in the rule to govern the determination of whether property should be returned to a person aggrieved either by an unlawful seizure or by deprivation of the property. The fourth amendment protects people from unreasonable seizures as well as unreasonable searches, United States v. Place, 462 U.S. 696, 701 (1983), and reasonableness under all of the circumstances must be the test when a person seeks to obtain the return of property. If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable. But, if the United States’ legitimate interests can be satisfied even if the property is returned, continued retention of the property would become unreasonable.”).

Case note on People v. Weaver, posted here: Renée McDonald Hutchins, The Anatomy of a Search: Intrusiveness and The Fourth Amendment, 44 U. Richmond L. Rev. 1185 (2010)

A FedEx package with drugs was shipped from Oakland to Anchorage, and FedEx discovered that the package contained drugs, and the police were called in. A controlled delivery was conducted, and the package was delivered and then moved from one place to another. The police followed and secured the premises where the package moved. This was reasonable under McArthur. However, during the protective sweep, officers moved the mouse on the house computer to activate the screen and saw they were looking at the FedEx website and the tracking number of the package. That exceeded the protective sweep. United States v. Lawson, 2011 U.S. Dist. LEXIS 21596 (D. Alaska March 3, 2011):

The government does not explain by evidence how the computer screen could reveal the web page for FedEx tracking without the “mouse” being moved particularly with a screen saver that placed the screen in rest mode while not in use. The computer screen in the recreation room would have been observed by the officer long after the package had been delivered. There was no longer a need for anyone to be tracking the delivery of the package. Moving the mouse was beyond the scope of a lawful protective sweep. The search of the screen exceeded a protective sweep.

The affidavit was detailed and provided probable cause for the search. Even if it did not, the good faith exception would apply because the affidavit is not so lacking in detail that a magistrate could not find probable cause. Seizure of silencers under the warrant, even if not a “firearm,” is justified by plain view. United States v. Marshall, 2011 U.S. Dist. LEXIS 21415 (S.D. Fla. March 3, 2011).*

The court denies defendant’s motion to reconsider the motion to suppress on the ground that the late disclosed video of the stop had the officer seemingly admitting that he did not see the gun in plain view. It does not matter because there was sufficient justification here for a towing and inventory of the vehicle, and the gun would inevitably be discovered. United States v. Richardson, 2011 U.S. Dist. LEXIS 21176 (N.D. Tex. March 1, 2011).*

Reliance on one witness hearsay to prove exigency for hot pursuit of an armed robber was insufficient. In re K.H., 14 A.3d 1087 (D.C. 2011):

... Thus, although the District claims the police did not need a warrant to enter apartment three because they were in hot pursuit of an armed robber, it still bore the burden of proving the police had probable cause to believe the robber had entered that apartment minutes earlier.

In our view, the District did not carry that burden. Instead of offering the testimony of one of the officers who entered apartment three in pursuit of the fleeing robber, it relied exclusively on the hearsay testimony of Detective Thompson, a witness who possessed no personal knowledge of the entry. Trustworthy hearsay is admissible in a suppression hearing and may justify a finding of probable cause. However, Detective Thompson's testimony was, on the essential point, too unreliable and uncertain to support such a finding. The detective could say only that it was his “understanding” the officers entered apartment three because they overheard “some talk [inside the apartment] about the police being outside” and some “mention of someone going to run or something like that.” The deficiencies in this testimony are glaring. Detective Thompson never identified the source (or sources) of his “understanding”; it is impossible to know whether the detective spoke to anyone with personal knowledge of what the police overheard or whether his account involved multiple levels of hearsay. Without such knowledge, one cannot reasonably conclude that the detective’s “understanding” of what the police heard was reliable. Moreover, and critically, Detective Thompson admittedly could not provide even a reasonably accurate account of what the police professed to have heard. What he reported was vague and unenlightening. By itself, the information that someone in apartment three said police were outside and “something about running” does not demonstrate that an officer of “reasonable caution” would have been warranted in believing the robber had gone into the apartment.

Defendant had no reasonable expectation of privacy in his ex-lover’s apartment after she kicked him out. When he came back, he was a trespasser. United States v. Battle, 637 F.3d 44 (1st Cir. 2011):

Here, although Battle may have exhibited a subjective expectation of privacy in Fonseca's apartment, that expectation was objectively unreasonable because Battle did not have permission to be present. The district court found that on August 21, 2004, after the armed encounter with Rosa, Fonseca told Battle to leave her apartment and not come back. On September 2, 2004, when Battle called Fonseca and told her that the police were in her apartment, she asked Battle what he was doing at her house since he did not have permission to be there. On the day of the search, Battle was no longer a welcomed guest in Fonseca’s apartment, but instead was a trespasser who stayed beyond his permitted visit. As such, he no longer had a legally sufficient interest in the apartment to mount a Fourth Amendment challenge.

911 report of a man carrying a handgun in Texas was not sufficient for reasonable suspicion without more. Here, the officer encountered the man and saw nothing that corroborated the informant because the man was carrying only a white water bottle. When the officer saw the defendant, he ordered the defendant to the ground. United States v. Wali, 811 F. Supp. 2d 1276 (N.D. Tex. 2011)*:

Before delving into its analysis, the court believes that it must first draw a distinction between reported activity that is per se illegal and reported activity that is potentially illegal. Reported activity that is per se illegal contemplates reported conduct that is, by itself, absolutely against the law, such as the possession of narcotics. See United States v. Roch, 5 F.3d 894, 899 (5th Cir. 1993). Reported activity that is potentially illegal contemplates reported conduct that is against the law only if one or more additional elements are also present. See id. In the latter instance, when there is no indication that those other necessary elements are present, there cannot be reasonable suspicion of criminal activity arising out of the potentially illegal conduct. See id. Accordingly, the 911-caller’s complaint described activity that was potentially illegal instead of per se illegal. The court therefore determines that the 911-caller’s complaint, without more than just the bare bones assertion that the person was carrying a handgun, did not constitute a report of criminal activity. See id. Unless the tip was accompanied by sufficient indicia of reliability, further investigation was required before a forcible stop of the suspect could be authorized. Adams, 407 U.S. at 147.

FL2 reaffirms (State v. Tamulonis, 39 So. 3d 524, 527 (Fla. 2d DCA 2010), cert. denied, No. SC10-1539, 2011 Fla. LEXIS 80 (Fla. Jan. 3, 2011)) that there is no right to a search warrant to obtain defendant’s pharmacy records in a drug investigation. State v. Albritton, 58 So. 3d 894 (Fla. App. 2d DCA 2011).*

A drug dog alerted on defendant’s car, but the drug search proved futile. “Here, the Court concludes that the troopers had probable cause to search the entire truck, including the toolbox. Thus, the cash and documentary evidence contained inside Defendant’s vehicle was properly seized and should be upheld.” United States v. Vaughan, 2011 U.S. Dist. LEXIS 20277 (M.D. Tenn. February 28, 2011).*

Officer’s mistake of law that a license plate frame could not cover words at the bottom of the license plate justified suppression of the evidence from the arrest. Also, in Massachusetts, when a stop is based on a statute or regulation that is alleged to be void, a motion to dismiss should be filed, not a motion to suppress, but this one can proceed. Commonwealth v. Miller, 78 Mass. App. Ct. 860, 944 N.E.2d 179 (2011).*

Defendant’s actions when seen in a stopped car did not amount to suspicious circumstances. The officer’s learning that defendant was under investigation for drug trafficking did not lessen his Fourth Amendment rights, and it added nothing to the reasonable suspicion calculus. United States v. Foster, 634 F.3d 243 (4th Cir. 2011):

The Government then points to Detective Ragland’s conversation with Sergeant Darnell, which seemed to confirm that Foster was under investigation for drug trafficking, to show that a reasonable officer would have had some grounds to believe that Foster was engaged in drug activity. However, a person’s Fourth Amendment rights cannot be lessened simply because he or she is “under investigation” by the police. Just as an officer’s knowledge of a suspect’s past arrests or convictions is inadequate to furnish reasonable suspicion; so too is knowledge that a suspect is merely under investigation, which is an even more tentative, potentially innocuous step towards determining criminal activity. Cf. Sandoval, 29 F.3d at 542 (“[E]ven knowledge of a person’s prior criminal involvement (to say nothing of a mere arrest) is alone insufficient to give rise to the requisite reasonable suspicion.”).

“Driving in Montana constitutes a privilege, not a right.” Taking one’s driver’s license for refusing a breath test was a reasonable seizure, and there is nothing to suppress. Nichols v. Dept. Of Justice, Drivers’ License Bureau, 2011 MT 33, 359 Mont. 251, 248 P.3d 813 (2011).

Defendant was driving slowly through a Polaris dealer’s parking lot at night with his headlights off. Considering the expensive inventory, the officer thought that really suspicious and stopped him, and he was found to be under the influence. The stop was valid. State v. Rodriguez, 2011 MT 36, 359 Mont. 281, 248 P.3d 850 (2011).*

Like in Hodari D., defendant was approached by the police and he turned to walk away, discarding a bag of dope in the process, and that was an abandonment. State v. Eaton, 2011 N.C. App. LEXIS 319 (March 1, 2011).*

UNCG University police had a mutual aid agreement with the local police, and a stop by the University police outside of its jurisdiction was not a substantial violation of state law to justify suppressing the arrest. State v. Scruggs, 209 N.C. App. 725, 706 S.E.2d 836 (2011).*

The witness to an accident was taken to defendant’s premises to take a look at him, and the witness ID’d him. While the entry onto the curtilage to make the view violated the Fourth Amendment, it was harmless. In addition, the court would not suppress the identification because the witness’s identification in court was shown to be from independent recollection. Tijerina v. State, 334 S.W.3d 825 (Tex. App. — Amarillo 2011).

“All persons” search warrant for a suspected meth lab in an automobile repair garage was reasonable and with probable cause. State v. Hash, 2011 Ohio 859, 2011 Ohio App. LEXIS 765 (9th Dist. February 28, 2011).*

When defendant spotted the officers as their patrol car passed, defendant’s eyes widened, and his jaw dropped. He immediately thereafter reached to the vehicle's floorboards. The officers testified that, based upon their previous experience, defendant's actions were unusual and raised safety concerns because actions of that type suggested that defendant could be trying to retrieve a weapon or hide a weapon or other contraband. Defendant’s actions were sufficiently suspicious to justify an investigative stop, and the controlled substances found during that stop were properly admitted into evidence. (Lexis overview) State v. Waldrup, 331 S.W.3d 668 (Mo. 2011).*

In a Medicaid fraud investigation, the affidavit showed probable cause for search of defendant’s house for evidence of the crime. The search for records could be intensive to look for the incriminating nature of the documents which would be readily apparent to a trained Medicaid fraud investigator. United States v. Gil, 2011 U.S. Dist. LEXIS 20638 (S.D. Fla. January 12, 2011)*:

Here, the federal agents inside defendant’s residence satisfied all three requirements for seizure of the subject documents under the “plain view” exception. First, they were lawfully inside defendant’s residence with a properly obtained search warrant as explained above. Second, the subject documents, including insulin logs, weekly visits/time records, and patient evaluation forms, were discovered inadvertently in files and in other locations where a passport might be found. Third, and most critically here, the “incriminatory character” of the subject documents was immediately apparent to Special Agent Shimpeno based on her extensive experience with identical documents in other Medicare investigations. Special Agent Shimpeno testified that she came across these documents while looking for defendant’s passport in files located in the residence and immediately recognized their relevance as evidence merely by “glancing” at the documents and noting that they were incompletely filled out and lacked required information. In the agent’s experience, such documents with missing information are frequently used to submit false Medicare claims. Special Agent Shimpeno did not need to read or closely examine the documents to determine their incriminatory character. Rather, she knew “from a glance” that the items were evidence relevant to this particular Medicare investigation.

Defendant’s Fourth Amendment claim as to his arrest was barred in § 2255 because of his guilty plea and Stone v. Powell. Castillo-Perez v. United States, 2011 U.S. Dist. LEXIS 20492 (M.D. Fla. February 17, 2011).*

Defendant’s motion to suppress consent to recordings was denied without prejudice. The government claims that the motion should be denied because the CI was hidden by it and this was a mere fishing expedition, but the defense has to file a motion to suppress before trial. Crediting that there is some fear for the witness, the issue can be brought up at trial. United States v. Speciale, 2011 U.S. Dist. LEXIS 20187 (N.D. W.Va. February 14, 2011).*

A search warrant authorizing “the search of said location and any persons found therein and or involved in this investigation ... and if the property above described is found there, to seize it and arrest all persons in the unlawful possession thereof, ...” violated the Fourth Amendment. United States v. Thomas, 2011 U.S. Dist. LEXIS 20119 (M.D. Fla. February 28, 2011):

Even if the Search Warrant incorporated the affidavit and the affidavit accompanied the warrant, as required by Groh v. Ramirez, 540 U.S. 551, 557-58 (2004), it would still constitute an unconstitutional general warrant. The Search Warrant purported to authorize law enforcement officers to seize and search persons who were involved in this investigation without defining in any fashion the investigation or the persons or how they were “involved,” and without even limiting the authority to “involved” persons at or near the Residence. The Search Warrant clearly constituted a general warrant as to “persons ... involved in this investigation” which violated the Fourth Amendment.

Defendant’s driving gave reasonable suspicion to believe he was under the influence. United States v. Graves, 2011 U.S. Dist. LEXIS 20397 (E.D. Va. March 1, 2011).*

Defendant’s § 2255 issue on failure to interview a witness that would have showed her consent to be coerced. The court does not even credit the defendant’s affidavit on this which was eight years after the fact; the affidavit looks suspicious and the signature does not look valid. United States v. Nichols, 2011 U.S. Dist. LEXIS 20432 (D. Kan. March 1, 2011).*

Defendant attached an unsigned copy of a search warrant to his § 2255. Even assuming that the search warrant used in the case was unsigned, that is not a per se constitutional error because it does not prove that the judge did not consider and issue the warrant. Beard v. United States, 2011 U.S. Dist. LEXIS 20161 (W.D. Mich. February 28, 2011).*

Defendant’s § 2255 argument that his defense counsel failed to renew his Fourth Amendment challenges is moot because the Fourth Amendment challenges were appealed. Pitcher v. United States, 2011 U.S. Dist. LEXIS 19716 (E.D. N.Y. February 28, 2011).*

“[E]ven if the agent’s statements had been knowingly and intentionally false, that circumstance would not negate probable cause”; therefore, Franks hearing denied. United States v. Tomkins, 2011 U.S. Dist. LEXIS 19793 (N.D. Ill. February 28, 2011).*

The CI’s statement provided timely information and was corroborated, so there was probable cause under Gates. United States v. Shearer, 2011 U.S. Dist. LEXIS 19499 (E.D. N.C. January 21, 2011).*

Georgia v. Randolph does not require that the defendant be asked for consent. Third party consent was still valid without him being asked. United States v. Hatten, 2010 U.S. Dist. LEXIS 141660 (E.D. Tenn. July 12, 2010).*

Defendant had no standing in the stolen car he was driving. United States v. Clemons, 2011 U.S. Dist. LEXIS 18960 (D. Idaho February 25, 2011).*

Defendant’s § 2255 Fourth Amendment claim was a rehash of the issues litigated on the merits, so it is denied. United States v. Osorio, 2011 U.S. Dist. LEXIS 19107 (S.D. Tex. February 24, 2011).*

Defendant was stopped for a traffic offense, and [for some reason] he was asked if the backpack in the vehicle was his, and he said no, and that was an abandonment. United States v. Hinsey, 414 Fed. Appx. 983 (9th Cir. 2011) (unpublished).*

It is better to attach pictures or something to the affidavit for child pornography to show that the officer actually saw it to support the request for a search warrant. The affidavit for this search warrant did not clearly indicate that the officer saw the child pornography images, but the affidavit as a whole indicates that there was child pornography in defendant’s computer, and that was barely enough. United States v. Miknevich, 638 F.3d 178 (3d Cir. 2011):

Thus, our review of the affidavit leaves a clear impression: the state magistrate was presented with an affidavit that provided no factual details regarding the substance of the images in question. Although either the actual production of the images, or a sufficiently detailed description of them, satisfies the Fourth Amendment’s probable cause requirement, an insufficiently detailed or conclusory description cannot. See New York v. P.J. Video, 475 U.S. 868, 874, 106 S. Ct. 1610, 89 L. Ed. 2d 871 (1986). We believe, however, that even given the infirmities we highlighted, the affidavit still contained information sufficient to permit a finding of probable cause by the magistrate.

A.

It is clear that a magistrate can determine probable cause without seeing the images and/or viewing the contents of an illicit computer file. The Supreme Court has stated that:

[W]e have never held that a magistrate must personally view allegedly obscene films prior to issuing a warrant authorizing their seizure. On the contrary, we think that a reasonably specific affidavit detailing the content of a film generally provides an adequate basis for the magistrate to determine whether there is probable cause to believe that the film is obscene, and whether a warrant authorizing the seizure of the film should issue.

P.J. Video, 475 U.S. at 874. We therefore reject any suggestion that a magistrate must review the contents of the actual files in question, or that a search warrant must include copies of the images giving rise to the request for a warrant. Although magistrates do not have to view these files, the question more pertinent here is whether the investigating officers must do so.

It can be problematic, to say the least, when a warrant application leaves one questioning whether anyone viewed the contents of the file in question. Nothing in the opinion we announce today should be taken as a rejection or relaxation of what we believe continues to be the best procedure for law enforcement officials to follow. It remains the better practice for an applicant seeking a warrant based on images of alleged child pornography to append the images or to provide a description of the images sufficient to enable the magistrate to determine independently whether probable cause exists. See, e.g., United States v. LaFortune, 520 F.3d 50, 56 (1st Cir. 2008). Here, however, the magistrate could have drawn a reasonable inference of the file’s contents based on its highly descriptive name and SHA1 value.

Can You Handle the Truth? The Framers Preserved Common-Law Arrest and Search Rules in 'Due Process of Law'--'Fourth Amendment Reasonableness' is Only a Modern, Destructive, Judicial Myth by Thomas Y. Davies, 43 Texas Tech L. Rev. 51 (2010).

Abstract:

The conventional academic account of Fourth Amendment (or search and seizure) history has been shaped by uncritical acceptance of claims in Supreme Court opinions that the reference to "unreasonable searches and seizures" in that text was intended to created a broad "reasonableness" standard for assessing all government arrests and searches, whether made with or without warrant. This article marshals salient evidence from the author’s more detailed prior articles to demonstrate that this claim is merely a prochronistic myth that grossly understates the criminal procedure standards the American Framers thought they had preserved.

The article first describes the actual common-law standards for criminal arrests and related searches to show that mere "reasonableness" was never recognized as a standard in framing-era sources. It also documents that the accusatory common-law criminal arrest standards were actually understood to be salient features of the "law of the land" and "due process of law" protections set out in other constitutional provisions, and that criminal search authority was essentially an appendage of arrest authority. Thus there was neither room nor reason for the Fourth Amendment to address warrantless arrests or searches, or even criminal arrest warrants. Rather, the only unsettled search issue at the time of the framing was the scope of legislative authority regarding revenue search warrants, so the Fourth Amendment was framed simply to ban Congress from authorizing use of too-loose warrants for revenue searches of houses, while the Fifth Amendment due process of law clause preserved criminal procedure standards. (Along the way, the article identifies deficiencies in recent historical claims by Professors Fabio Arcila (notes 122, 204) and Thomas Clancy (note 225).)

The article then describes how nineteenth century judges destroyed the original understanding of due process of law and thus left federal Supreme Court justices free to reinvent modern "search and seizure" doctrine under the Fourth Amendment, to invent the concept of Fourth Amendment reasonableness in the 1925 Carroll decision to justify warrantless searches where lawful arrests could not be made, and more recently to exploit the flexible character of reasonableness to effectively create discretionary police arrest and search authority comparable to that conferred by the general warrant which the original Fourth Amendment was meant to abolish.

From the Texas Tech Law Review website (sub. req.):

02/23/2011 | The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule
Written by Scott E. Sundby & Lucy B. Ricca
The Supreme Court’s decision in Herring v. United States resurrected the debate over the future of the exclusionary rule in American criminal procedur...

02/23/2011 | Reasonable Remedies and (or?) the Exclusionary Rule
Written by Kenneth W. Starr & Audrey L. Maness
This Symposium on the Fourth Amendment posed a variety of questions to a number of contributors: How important is history to resolving Fourth Amendment ...

02/23/2011 | Picture This: Body-Worn Video Devices (Head Cams) as Tools for Ensuring Fourth Amendment Compliance by Police
Written by David A. Harris
Picture this: a police officer shoots a civilian in the back in a public place. The police officer says that the man assaulted him, resisted arrest, ...

02/23/2011 | Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio
Written by Lawrence Rosenthal
Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure,” has received ...

02/23/2011 | The Fourth Amendment as a Collective Right
Written by Thomas K. Clancey
The Fourth Amendment speaks of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and...

02/23/2011 | The White Fourth Amendment
Written by Paul Butler
There is a scene near the end of the Academy Award winning film The Blind Side in which the character played by Sandra Bullock has gone to a low-income ...

02/23/2011 | Suspicion and the Protection of Fourth Amendment Values
Written by Fabio Arcila, Jr.
Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law cou...

02/23/2011 | Stumbling Toward History: The Framers' Search and Seizure World
Written by George C. Thomas
Most of what you think you know about the Fourth Amendment is wrong—at least as a matter of what the Framers intended. The problem begins with the te...

02/23/2011 | The Happy Fourth Amendment: History and the People's Quest for Constitutional Meaning
Written by Andrew E. Taslitz
I will argue here that history should play an expansive, though by no means decisive, role in giving the Fourth Amendment meaning. By expansive, I me...

02/23/2011 | Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest and Search Rules in "Due Process of Law"--"Fourth Amendment Reasonableness" is Only a Modern, Destructive, Judicial Myth

02/23/2011 | Written by Thomas Y. Davies
Should Fourth Amendment decisions be based on history? And, how well does the Supreme Court do in setting out Fourth Amendment history? These questi...

02/23/2011 | A Conclusion in Search of a History to Support It
Written by Morgan Cloud
Originalism is not a theory of constitutional interpretation. It is not a historical method. It is a rhetorical device deployed to win arguments. O...

02/23/2011 | The Roberts Court and Criminal Procedure at Age Five
Written by Erwin Chemerinsky
On Tuesday, June 29, 2010, the Supreme Court officially concluded its fifth year with John Roberts as Chief Justice, its first year with Justice Sonia...

02/23/2011 | The Fourth Amendment: History, Purpose, and Remedies
Written by Arnold H. Loewy
In this symposium issue, the papers are addressed primarily to three topics: (1) How important is (should) history (be) to the resolution of Fourth Am...

Defendant’s arrest by an officer other than the one who saw the misdemeanor violation was valid because the first officer who saw it was still present. Thus, the search incident to the arrest was valid. State v. Ortega, 159 Wn. App. 889, 248 P.3d 1062 (2011).*

The officer encountered defendant while looking for a wandering black bear, and saw marijuana in plain view. After arresting him, a further search of the car was not justified without a warrant under the Washington Constitution. State v. Swetz, 160 Wn. App. 122 (2011).*

Defendant’s vehicle completely crossed the centerline coming down a hill to a stop sign, and then two wheels later crossed the centerline. The stop was valid, and the motion to suppress was erroneously granted. People v. Geier, 407 Ill. App. 3d 553, 348 Ill. Dec. 552, 944 N.E.2d 793 (2011).*

[posted 3/2]

Defendant rented the car, so he had standing. The warrant for his house did not describe vehicles, and the rental car was parked three doors down, so it was not within the warrant. The motion to suppress should have been granted. United States v. Spencer, 2011 U.S. Dist. LEXIS 18639 (W.D. N.Y. January 26, 2011), adopted and motion to reconsider denied United States v. Spencer, 2011 U.S. Dist. LEXIS 18641 (W.D. N.Y. February 25, 2011):

Defendant's rental car, however, was parked down the street from that address, approximately three doors down. That vehicle's location is beyond the scope of the warrant, which does not describe any particular vehicle to be searched. The police thus needed either a warrant expressly identifying that vehicle, the present warrant expressly including such vehicles as are in defendant's possession (regardless of whether they were on 509 North Fifth Street) or consent by defendant or other exception from the warrant requirement to search it. A warrantless search of an automobile has been found to be reasonable, e.g., United States v. Ross, 456 U.S. 798 (1982), provided that this search is supported by probable cause. As discussed above, there is not a sufficient record to determine if there was probable cause to issue the warrant, much less to search a vehicle doors away from defendant's property without an assertion that defendant concealed contraband in that vehicle. It is not clear from this record that defendant (or anyone else) consented to the search of the vehicle. On this basis, defendant's motion to suppress should be granted.

Defendant failed to show that this FPD was ineffective for not pursuing a motion to suppress. The court finds that the defendant got half the sentence from his plea he risked by trial, and the FPD talked to him about the motion to suppress and it was a considered decision to waive the motion to suppress. United States v. Louie, 2011 U.S. Dist. LEXIS 18647 (E.D. February 25, 2011).*

Trial court’s ruling denying motion to suppress was erroneously denied. While the trial court has the credibility call and great deference in making findings of fact at a suppression hearing, the surveillance video of the area of defendant’s detention at the suppression hearing clearly contradicted the officer’s testimony about where and how things happened, and it showed that the motion to suppress should have been granted. State v. Thompson, 58 So. 3d 994 (La. App. 2d Cir. 2011):

At this point in the investigation, the routine investigatory stop transitioned into an illegal detention. Based on the evidence, the trial court should have determined that the "reasonable and articulable suspicion," which would have otherwise justified an investigatory stop, was based on Agent Parker's testimony that clearly contradicted the surveillance tape. Pairing this determination with the fact that Agent Parker further investigated the defendant when he should have released him from the detention, the trial court should have ruled that the initial detention was illegal.

Because of the defendant's illegal detention, we cannot agree with the trial court's erroneous conclusion that the subsequent consent was freely and voluntarily obtained. As noted above, consent obtained after an illegal detention is only valid if it was the product of free will and not the result of exploitation of the previous illegality. Agent Parker's testimony that the defendant was not free to leave at the time he provided all the incriminating information and was not given his driver's license until the consent to search forms were signed supports a finding that the consent was not sufficiently attenuated from the arguably illegal detention so as to be a product of a free will. The record is absent of any indication that Agent Parker expressed to the defendant that he had the option of not giving consent to search the vehicle.

Questioning of passenger for 60-90 seconds did not unreasonably extend the stop of defendant’s vehicle. State v. Whitlow, 250 P.3d 24 (Ore. App. 2011).*

The officer had PC to believe that defendant was DUI when he hit a car stopped at a light and caused injury, justifying a blood draw. The record supports the conclusion defendant consented to the blood draw. Setzer v. State, 54 So. 3d 226 (Miss. 2011).*