Archives for: May 2011

05/31/11

Permalink 12:05:32 am, by fourth, 145 words, 1840 views   English (US)
Categories: General

AR: Sign "pigs for sale" was invitation to enter curtilage where marijuana plant was found

The victim “informant” here believed that defendant had pigs stolen from him at defendant’s property. The informant and an officer got to defendant’s house and saw a sign “pigs for sale,” but defendant wasn’t there. They walked to where the pigs were to see if any of the informants were there, and saw marijuana growing there. The entry on to the curtilage was essentially by invitation of the sign. Percefull v. State, 2011 Ark. App. 378, 383 S.W.3d 905 (2011).

An anonymous CI called 911 to report a possible drunk driver. The officer saw the car and followed it and confirmed the report by the defendant’s driving. That justified the stop. State v. Bright, 2011 Tenn. Crim. App. LEXIS 377 (May 27, 2011).*

The detailed CI information here justified the stop of defendant as a heroin dealer. United States v. Hunt, 2011 U.S. Dist. LEXIS 56707 (W.D. Tenn. April 8, 2011).*

05/30/11

Permalink 06:24:59 am, by fourth, 113 words, 1725 views   English (US)
Categories: General

CA3: Defendant was a trespasser and had no standing

A person who was not invited, who was even not wanted there, came into the house searched. When the police searched the house, he had no standing under Olson. It isn’t even close. [Essentially he was a trespasser.] United States v. Pettiway, 429 Fed. Appx. 132 (3d Cir. 2011).*

In a police shooting case, there was a classic jury question on the reasonableness of the shooting, so qualified immunity is denied. Bletz v. Gribble, 2011 U.S. App. LEXIS 10683, 2011 FED App. 0148P (6th Cir. May 27, 2011).*

The district court’s findings of fact for the basis for the stop are not clearly erroneous, so the stop was justified. United States v. Figueroa, 647 F.3d 466 (2d Cir. 2011) (unpublished).*

Permalink 12:04:09 am, by fourth, 187 words, 1832 views   English (US)
Categories: General

FL5: Implied consent statute does not preclude use of a SW for blood

The Florida implied consent statute does not preclude the police from applying for a search warrant for blood in a DUI case. [Particularly since the law favors warrants, this argument was disingenuous at best.] There was probable cause, and the warrant was also valid under the good faith exception. State v. Geiss, 70 So. 3d 642 (Fla. 5th DCA 2011).*

Defendant’s car was searched and meth smoking materials were found and a cutting agent. A motel room key was also found. They went to the motel and found defendant was past his checkout time, so they got access to the room and searched it. He had no expectation of privacy past the check out time, reserving for another day the question of the police detaining somebody so they would be past their check out time to conduct the search. Blades v. Commonwealth, 339 S.W.3d 450 (Ky. 2011).*

Defendant’s failure to use a turn signal was not a traffic offense since it was apparent that no other vehicle could be “affected by” the signal. Therefore, the stop was invalid. People v. Carmona, 124 Cal. App. 3d 819, 195 Cal. App. 4th 1385 (4th Dist. 2011).*

05/29/11

Permalink 08:39:42 am, by fourth, 265 words, 1850 views   English (US)
Categories: General

MD: Public quasi-strip search of arrestee was reasonable because of exigency

Defendant’s quasi-public strip search in broad daylight in public was not unreasonable because it was supported by exigent circumstances. While other cases did find such a search unreasonable, this one wasn’t. “We must now weigh the scope, manner, and location of the search against the last Bell [v. Wolfish] factor—justification for the search. We hold that, in this case, the exigency of the search outweighed any intrusion on appellant’s privacy. In fact, the urgency of the search in this case was much greater than that in Paulino and Allen.” Turkes v. State, 199 Md. App. 96, 20 A.3d 173 (2011).

Motion to reconsider affirmance of denial of motion to suppress was denied because nothing was offered to show that the prior opinion was in error, so it was law of the case. State v. Caulfield, 2011 La. App. LEXIS 652 (La. App. 5th Cir. May 24, 2011).*

The search warrant’s identification of records of two persons “or others” did not make the warrant overbroad because “or others” could be severed from the warrant if necessary. United States v. Rios, 2011 U.S. App. LEXIS 10659 (9th Cir. May 24, 2011) (unpublished)* (Since this is a memorandum opinion, we can’t tell if this phrase is essentially irrelevant to the search anyway; if nothing outside the scope of the warrant was seized, where's the beef?)

Defense counsel was not ineffective for not using the DVD of the traffic stop to show the length of the stop was unreasonable. Going to the merits of the issue, it wasn’t unreasonable, so defense counsel couldn’t be ineffective. State v. Bush, 2011 Iowa App. LEXIS 334 (May 25, 2011).*

Permalink 12:18:26 am, by fourth, 233 words, 1774 views   English (US)
Categories: General

Techliberation.com: “Data in the 'Cloud' Needs Fourth Amendment Protection”

Data in the “Cloud” Needs Fourth Amendment Protection by Steven Titch, on The Technology Liberation Front:

“Cloud computing” is the term for applications that are handled by third-party software and storage on the Internet, like Google Docs and QuickBooks Online, as opposed to programs like Microsoft Word and Quicken, which you load and access from your PC.

Gmail and Hotmail were early examples of cloud computing. The cloud computing concept has since expanded to include popular applications like photo editing and sharing, money management and social networking. It also takes in the increasing number of cloud-based storage services, like Dropbox, which allows you to port documents from client to client, and Carbonite, which performs near real-time back-up of data and documents on your PC.

What most Americans don’t realize is that data stored in the cloud is not protected by the Fourth Amendment the way that same data is if stored on a PC, CD or detachable hard drive in the home. My op-ed in the Washington Times today outlines this problem, and points to a new bill in Congress, S.1011, introduced last week by Sen. Patrick Leahy (D-VT), as a big step toward closing this loophole. S.1011, also cited by Berin here, extends the due process provisions against illegal wiretapping in the existing Electronic Communications Privacy Act (ECPA) to personal data stored in data centers owned and operated by third parties.

Permalink 12:13:39 am, by fourth, 293 words, 1711 views   English (US)
Categories: General

D.Ore.: Use of fictitious name to get cell phone denies standing in subscriber information

Even if defendant could challenge a subpoena for information for subscriber information on a cell phone, he lacks standing because he used a fictitious name to get the phone. United States v. Davis, 787 F. Supp. 2d 1165 (D. Ore. 2011):

Following this reasoning, several district courts have held that a defendant lacks standing to challenge cell phone records in which the defendant was not a registered subscriber. See, e.g., United States v. Novas, 640 F. Supp. 2d 256, 264 (S.D.N. Y. 2009), reversed on other grounds by United States v. Novas, 597 F.3d 492 (2d Cir. 2010); United States v. Suarez-Blanca, No. 1:07-CR-0023-MHS/AJB, 2008 WL 4200156, at *6-7 (N.D. Ga. Apr. 21, 2008) ("The subscriber name indicates that [the defendant] either was trying to distance himself from the cell phone or had no interest in the cell phone. As such, the use of a fictitious name or names of third party indicates that [the defendant] does not have a privacy interest in the phones."); United States v. Skinner, No. 3:06-CR-100, 2007 WL 1556596, at * 15-17 (E.D. Tenn. May 24, 2007) (finding no reasonable expectation of privacy in cell phone records where the defendant was not the legitimate subscriber to the phone); United States v. Solomon, No. 02: 05cr385, 2007 WL 927960, at *3 (W.D. Pa. March 26,2007). This court agrees with the conclusion reached by these district courts.

When defendant was stopped she reached into her purse for her DL, and the officer could see heroin in plain view. United States v. Jones, 2011 U.S. Dist. LEXIS 56186 (W.D. Pa. May 25, 2011).*

Defendant didn’t want to consent, but he did, and a marijuana grow operation was found in the basement behind a hidden door, which the officers figured out. The consent was still voluntary. United States v. Butchko, 2011 U.S. Dist. LEXIS 56274 (N.D. Ill. May 25, 2011).*

05/28/11

Permalink 09:51:14 am, by fourth, 113 words, 3080 views   English (US)
Categories: General

ABAJ.com: "Taxi frisk" of an attorney leads to suit against NYPD

From ABAJ.com, Allegedly Frisked Attorney Sues Over NY Taxi-Search Policy:

An attorney allegedly frisked by the New York police under a policy that he says officers use to illegally search taxi passengers under the guise of checking on driver safety has filed a federal civil rights lawsuit against the city with the help of the American Civil Liberties Union.

Munir Pujara and another plaintiff, who works as a radio station manager, contend in their complaint that authorities are using the Taxi/Livery Inspection Program, in which vehicles volunteered for such searches bear a special sticker, to target minority passengers, reports the New York Post. It was filed in federal court in Manhattan.

Permalink 09:17:48 am, by fourth, 243 words, 3234 views   English (US)
Categories: General

CA6: In qualified immunity cases for false arrest, ignorance of the law by an officer is no excuse

Officers who raided a house where there was underage drinking with adults had no qualified immunity on the arrest where one young man was there with his father, and Ohio law clearly exempted that from the law. This was a mistake of law, not of fact, essentially “ignorance of the law is no excuse” [my words, not the court’s]. Pritchard v. Hamilton Twp. Bd. of Trs., 2011 U.S. App. LEXIS 10597, 2011 FED App. 0355N (6th Cir. May 25, 2011) (unpublished)*:

In a line of cases, our Court has addressed a somewhat analogous situation, whether an officer has probable cause to arrest an individual who may have an affirmative justification for a suspected criminal act. See Fridley, 291 F.3d at 872; Painter v. Robertson, 185 F.3d 557 (6th Cir. 1999); Estate of Dietrich v. Burrows, 167 F.3d 1007 (6th Cir. 1999). In both Dietrich and Painter, the arrestee was charged with carrying a concealed weapon despite the presence of a statute that provided that an individual engaged in a business activity that is particularly susceptible to criminal attack has an affirmative defense to the charge. Painter, 185 F.3d at 564-65; Dietrich, 167 F.3d at 1010-11. In both cases we denied qualified immunity, holding that the arresting police officers lacked probable cause because the officers were aware of sufficient facts and circumstances to establish that the arrestees had a statutorily legitimated affirmative justification for the suspected criminal act at the time of the arrest. Painter, 185 F.3d at 571; Dietrich, 167 F.3d at 1012.

Permalink 08:01:22 am, by fourth, 625 words, 3052 views   English (US)
Categories: General

CA7: Threat to get SW had PC; Applies GFE analysis to officer's PC without warrant

In a case after remand, the Seventh Circuit decides that an officer had probable cause when he made a threat to get a search warrant. In the process, the court applies the same standard that it would apply to the good faith exception saving a search warrant on the margins since that would have been the standard applied if a magistrate reviewed all that the officer had. Here, the officer was in the process of gathering information for the warrant, including visiting the house to get a description to put in the affidavit and warrant when they decided to proceed without one. The consent was valid, too. United States v. Hicks, 650 F.3d 1058 (7th Cir. 2011):

This successive appeal picks up where we left off in United States v. Hicks, 539 F.3d 566, 571-72 & n.1 (7th Cir. 2008) (Hicks I). Did Milwaukee Police Detective Donald Brown base his threat to obtain a search warrant on “a legitimate belief” that police could obtain a warrant, or was it a pretextual threat potentially rendering the subsequent consent involuntary? In Hicks I, we instructed the district court to determine the factual basis supporting Detective Brown’s statement to Samella Smith—who initially resisted consenting to her home’s search—that if she did not consent police would simply obtain a warrant. Id. at 572. Once the court answered that question, it was to reassess the totality of the circumstances to determine the voluntariness of Smith’s consent. Id. at 572 n.1.

. . .

Hicks next argues that nothing inherent about guns supports an inference of continuing possession because guns are by their nature easily transferrable. See United States v. Martin, 399 F.3d 879, 881 (7th Cir. 2005) (noting that the “[p]assage of time could affect reasonableness” for Fourth Amendment purposes, “especially for search warrants that authorize the police to hunt for items that are portable (or consumable)”). Hicks charges that presuming that the suspect’s alleged gun possession continued for months would amount to armchair empiricism, citing United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (“But it is an embarrassment to the law when judges base decisions of consequence on conjectures . . . .”), rev’d, 555 U.S. 122 (2009).

The conclusion that Hicks (or Stevens) kept the weapon is not mere conjecture or armchair empiricism. Multiple sources supported Detective Armon’s basis for believing either Hicks or Stevens kept the weapon as a sort of modus operandi. Although handguns are quite mobile, markets exist for their sale, and they could be disposed of, Detective Armon had a sufficient factual basis for believing that Hicks and Stevens were associated with this particular weapon, perhaps even infamously. And we have recognized that, depending on the circumstances, evidence of the sighting of a gun (or related items) does not automatically grow stale as time passes. See United States v. Harju, 466 F.3d 602, 608 (7th Cir. 2006) (holding that even though three weeks passed between the gun’s sighting by a CI and the warrant’s execution, reliance on the CI was not undermined because unlike a small amount of drugs or cash, “the gun was not likely to have been sold (or consumed) during that period”); [citations omitted]

. . .

We hold that the district court did not clearly err in finding that Detective Armon had a reasonable factual basis to conclude that he had probable cause for a search warrant. We do not address whether in fact there was probable cause but we are satisfied that Detective Armon had a reasonable factual basis for probable cause and took actions consistent with the mindset of someone who believed he could, if necessary, get a search warrant. Thus, consistent with Hicks I, 539 F.3d at 571, we also hold that the district court did not clearly err in finding that Smith “freely” consented to the search of her home.

05/27/11

Permalink 10:46:35 am, by fourth, 227 words, 3000 views   English (US)
Categories: General

Wired: "Bill Would Keep Big Brother’s Mitts Off Your GPS Data"

On Wired.com: Bill Would Keep Big Brother’s Mitts Off Your GPS Data by Spencer Ackerman:

The reauthorization of the Patriot Act looks like a forgone conclusion. But next month, a bipartisan band of legislators will try to mitigate a different kind of damage done to civil liberties: the government’s warrantless collection of location data beamed out by your car or mobile phone.

The courts aren’t sure whether so-called “geolocation” data taken from GPS devices or cellphones is covered by the Fourth Amendment, as Wired.com’s blog Threat Level has extensively reported. That ambiguity has largely enabled law enforcement to snatch it up without getting a warrant or showing probable cause.

Sen. Ron Wyden, a Democrat, and Rep. Jason Chaffetz, a Republican, want to make things crystal clear: no warrant, no geolocation info.

“GPS devices are everywhere and that’s a good thing,” Chaffetz tells Wired.com. “We just don’t want nefarious characters tracking people without someone knowing, nor do I want law enforcement to be able to just follow everyone all the time.”

A bill they’ve collaborated to draft prevents the government from getting tracking data sent by your smartphone, GPS unit or other device — including any “successor device,” a nod to as-yet-unimagined tech — without a court order. It exempts geolocation collection from the Patriot Act’s “business records” provision.

Permalink 08:28:27 am, by fourth, 105 words, 3016 views   English (US)
Categories: General

WaPo: "Congress approves extension of USA Patriot Act provisions"

In today's Washington Post: Congress approves extension of USA Patriot Act provisions:

Racing against the clock, Congress approved a four-year extension Thursday to key provisions of the USA Patriot Act that will allow federal investigators to continue to use aggressive surveillance tactics in connection with suspected terrorists.

Overcoming objections from a bipartisan clutch of libertarian-minded lawmakers, the legislation passed the Senate, 72 to 23, and the House, 250 to 153.

. . .

Under the provisions extended into 2015, investigators can obtain court orders to follow suspected terrorists with “roving wiretaps” that cover multiple phone numbers and carriers. They also will extend provisions that allow investigators to seize customer records for suspected terrorists.

Permalink 08:17:42 am, by fourth, 963 words, 3102 views   English (US)
Categories: General

SCOTUS: Camreta v. Greene moot; so why did they take it?

SCOTUS decides Camreta v. Greene is moot. The case “promised” to decide whether there was a privacy interest in a child at school being interrogated. The Court does reiterate that § 1983 cases could [not should] be decided on the merits before turning to qualified immunity so the constitutional claims will be decided for the future [not something many courts care to do; after all, it is a way of protecting government officials from lawsuits]. Here, however, the case was moot. From the Syllabus:

To begin with the nature of these suits: Under § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But if those officials are entitled to qualified immunity, a court can dismiss the damages claim without ever deciding its merits—and so the qualified immunity situation threatens to leave standards of official conduct permanently in limbo. To prevent that problem, this Court has permitted lower courts to determine whether a right exists before examining whether it was clearly established. See, e.g., Pearson v. Callahan, 555 U. S. 223, 237. Here, the Ninth Circuit followed exactly this two-step process so that it could settle a question of constitutional law and thereby guide the future conduct of officials.

Given its purpose and effect, such a decision is reviewable in this Court at an immunized official’s behest. If the Court’s usual prevailing party rule applied, the official would either have to acquiesce in a ruling he had no opportunity to contest in this Court, or defy the lower court’s view, adhere to what has been declared an illegal practice, and invite further law suits and possible punitive damages. Id., at 240–241. And applying this Court’s usual bar on review would undermine the purpose of the two-step process, “which is to clarify constitutional rights without undue delay.” Bunting v. Mellen, 541 U. S. 1019, 1024 (SCALIA, J., dissenting from denial of certiorari). Just as that purpose may justify an appellate court in reaching beyond an immunity defense to decide a constitutional issue, so too may it support this Court in reviewing the correctness of the lower court’s decision. This holding is limited in two respects. First, it addresses only this Court’s authority to review cases in this procedural posture. The Court need not decide if an appellate court can also entertain an appeal from a party who has prevailed on immunity grounds. Second, the holding concerns only what the Court may review, not what the Court actually will choose to review. Going forward, the Court will consider prevailing parties’ petitions one by one in accord with its usual standards for granting certiorari. Pp. 7–14.

2. A separate jurisdictional problem requires the Court to dismiss this case at the threshold: The case is moot. In a dispute of this kind,both the plaintiff and the defendant ordinarily retain a stake in the outcome. That is true of Camreta, who remains employed as a child protective services worker, and so has an interest in challenging the Ninth Circuit’s ruling requiring him to obtain a warrant before conducting an in-school interview. But S. G. can no longer claim the plaintiff’s usual stake in preserving the court’s holding because she no longer needs protection from the challenged practice. She has moved to Florida and is only months away from her 18th birthday and, presumably, from her high school graduation. When “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” there is no live controversy to review. United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203.

When a civil suit becomes moot pending appeal, this Court has authority to “direct the entry of such appropriate judgment, decree, or order, or require such further proceedings ... as may be just under the circumstances.” 28 U. S. C. § 2106. The Court’s “established” practice is to vacate the judgment below, see, e.g., United States v. Munsingwear, Inc., 340 U. S. 36, 39, to ensure that “those who have been prevented from obtaining the review to which they are entitled [are] not ... treated as if there had been a review,” ibid. The point of vacatur is to prevent an unreviewable decision “from spawning any legal consequences.” Id., at 40–41. A constitutional ruling in a qualified immunity case is a legally consequential decision. When happenstance prevents this Court’s review of that ruling, the normal rule should apply: Vacatur rightly “strips the decision below of its binding effect,” Deakins v. Monaghan, 484 U. S. 193, 200, and clears “the path for future relitigation,” Munsingwear, 340 U. S., at 40. Because mootness has frustrated Camreta’s ability to challenge the Ninth Circuit’s ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school, that part of the Ninth Circuit’s decision must be vacated. Pp. 14–18.

Why would four members of the Court decide to take a case that they should have seen was likely going to become moot? This is the second time this Term they have dodged a case: Remember Tolentino v. New York? Cert dismissed as improvidently granted.

Every cert grant in a Fourth Amendment case by the Roberts Court creates serious risk of damage to the Fourth Amendment and individual privacy in America. Herring v. United States's gutting of the exclusionary rule is Exhibit 1. It takes four votes for a cert grant, and the conservative bloc [the Death STAR*] seems willing to do anything to advance the power of government over the citizen.

It is just bad form to take a case and then dodge it. This tells me that their cert grants are slanted to aid the government. Maybe I'm just overly cynical, but that's what I feel in my heart of hearts.

__________

* Scalia, Thomas, Alito, Roberts.

05/26/11

Permalink 08:01:30 am, by fourth, 276 words, 3050 views   English (US)
Categories: General

WA: School resource officer was acting as a school official not an LEO at time of school search

School resource officer from the police department was acting as a school official at the time of the school search, not a law enforcement officer. State v. J.M., 162 Wn. App. 27, 255 P.3d 828 (2011):

We hold that, like the officers in [People v. Dilworth, 169 Ill.2d 195, 661 N.E.2d 310 (1996)], and S.A., Officer Fry was acting as a school official when he searched J.M.'s backpack. He was on duty as an SRO and acting under his authority as an SRO when he personally observed the activity that formed the basis for his search of J.M. Furthermore, though the McKinnon court did not address the issue of who can be considered a school official, its decision did suggest that the difference between a school official and law enforcement is that the latter is chiefly concerned with discovering and preventing crime. Because it is undisputed that Fry's primary duties as an SRO were to maintain a safe, secure, and orderly learning environment, it is reasonable to infer that his chief duty was not the discovery and prevention of crime. Under these facts, the reasonable grounds standard applies.

Defendant made no proffer to the court that he had standing to contest the search. Even if he had, he’d fail on the merits of staleness. Even though the information went back two years, there was an ongoing drug operation there. United States v. Rodney, 2011 U.S. Dist. LEXIS 54940 (S.D. N.Y. May 18, 2011).*

There is no privacy interest in one’s driver’s license records, such that jailers could not run DL records when the defendant was visiting a jail. State v. Hathaway, 161 Wn. App. 634, 251 P.3d 253 (2011).*

Permalink 07:21:37 am, by fourth, 504 words, 3069 views   English (US)
Categories: General

CA4: Child sexual abuse allegations did not support CP affidavit, and GFE did not apply

Allegations of sexual abuse of a minor here did not support a search warrant for possession of child pornography. Also, the CI’s allegation was insufficient to show PC. The affidavit was, indeed, so devoid of evidence that the good faith exception should not apply. United States v. Doyle, 650 F.3d 460 (4th Cir. 2011):

There is, however, remarkably scant evidence in the affidavit (or Rouse’s investigation summary) to support a belief that Doyle in fact possessed child pornography. The bulk of the information supplied in the affidavit concerned allegations of sexual assault. But evidence of child molestation alone does not support probable cause to search for child pornography. See United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008) (“[I]t is beyond dispute that the warrant was defective for lack of probable cause-Detective Pickrell established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography). Consequently, the warrant did not authorize the search and, barring some other consideration, the evidence obtained during that search must be excluded from trial.”); see also United States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008) (“[A]lthough Falso’s crime allegedly involved the sexual abuse of a minor, it did not relate to child pornography. That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”) (citation omitted).

Here, the only mention in the warrant application regarding the presence of pornography was the statement that one of the alleged victims “disclosed to an Uncle that Doyle had shown the victim pictures of nude children.” Doyle argues that the warrant lacked sufficient indicia of the credibility of Jones, the only informant who mentioned the presence of nude photographs. “In order to establish probable cause for the issuance of a search warrant, it is necessary to show that ‘given all the circumstances set forth in the affidavit[,] ... including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” Legg, 18 F.3d at 243 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

. . .

However, the credibility of Jones, who merely reported the allegations of a child informant, does little, if anything, to indicate probable cause to search Doyle's home. Even if the step-uncle's credibility were entirely unassailable, this would merely establish that he was telling the truth that his step-nephew made the allegations that Jones reported to Rouse. That, in itself, says nothing about the truth of those allegations. Importantly, Rouse testified that none of the alleged child victims made allegations to law enforcement that they were shown pornographic material. Indeed, there is no indication in the record that the children were even asked during the interview process about the presence of child pornography.

This may be the first time the Fourth Circuit found that a search was not saved by the good faith exception. I haven't checked; I just don’t remember any.

Permalink 07:12:27 am, by fourth, 126 words, 2926 views   English (US)
Categories: General

N.D.Tex.: Defense counsel not ineffective for not raising Gant before it was decided

Defense counsel was not ineffective for not raising Gant 13 months before it was decided [although the court doesn’t mention that cert was granted a month before his guilty plea]. Tinoco v. United States, 2011 U.S. Dist. LEXIS 54741 (N.D. Tex. April 14, 2011).*

The search warrant did not have to limit the search to only the basement of the house. The probable cause defines scope, and the search was proper. His claim of invalid consent depended on the warrant being bad, but it wasn’t. United States v. Musto, 2011 U.S. Dist. LEXIS 55191 (M.D. Fla. May 24, 2011).*

The officers were credible, and the court finds that defendant consented to a search of his cell phone. United States v. Phillips, 2011 U.S. Dist. LEXIS 54326 (S.D. Fla. May 5, 2011).*

05/25/11

Permalink 08:46:19 am, by fourth, 130 words, 2955 views   English (US)
Categories: General

S.D.Fla.: Two month old information hardly stale in CP case

Execution of search warrant two months after child pornography was received did not make it stale, considering courts have sustained search warrants based on information nearly a year old in child porn cases. United States v. Richardson, 2011 U.S. Dist. LEXIS 54272 (S.D. Fla. May 16, 2011).*

Defense counsel was not ineffective for not challenging the search of defendant’s computer for child pornography because he would lose on the merits. The search was not timely, but not unconstitutionally stale, and the warrant was issued with probable cause. Wolf v. State, 152 Idaho 64, 266 P.3d 1169 (App. 2011).*

Defendant’s stop was [barely] supported by reasonable suspicion when he finally [albeit reluctantly] consented to a search of the car for a weapon which he admitted he had. State v. Taylor, 2011 Tenn. Crim. App. LEXIS 356 (May 20, 2011).*

Permalink 08:10:24 am, by fourth, 220 words, 3576 views   English (US)
Categories: General

D.Conn.: Officer had RS for a stop, but the frisk exceeded the scope of the RS

Officers had reasonable suspicion to believe that defendant was a trespasser on the apartment complex where he was stopped, but the CI’s information that he was a drug dealer was not corroborated or specific, and the pat down exceeded the purpose of the stop. United States v. Pressley, 2011 U.S. Dist. LEXIS 54096 (D. Conn. May 20, 2011).*

A truck stop employee found a quantity of heroin and cocaine in a baggie in the bathroom, and called the police. He had a description of a person who could have lost it and the car she came in. The police staked out the truck stop and, four hours later, a car arrived and a man got out and looked on the ground in the parking lot with a flashlight. He saw the police and left. The officer stopped the vehicle, and close up could see it matched the description given by the truck stop employee. The stop was with reasonable suspicion. It led to a valid search under the automobile exception. State v. Johnson, 152 Idaho 56, 266 P.3d 1161 (App. 2011).

Statutory county court judge that issued the search warrant lacked authority to issue a search warrant out of court under their enabling legislation. District court judges do have such jurisdiction under the constitution. Sanchez v. State, 2011 Tex. App. LEXIS 3824 (Tex. App.—Houston (1st Dist.) May 19, 2011).*

Permalink 06:33:17 am, by fourth, 112 words, 3183 views   English (US)
Categories: General

IN: Barnes fallout: Legislature to counter it?

More Barnes fallout (posted here and here): Ruling on illegal police entry sparks protest at statehouse, Hundreds of protestors are expected Wednesday:

INDIANAPOLIS, Ind. (AP) -- Hundreds of protesters are expected at the Indiana Statehouse Wednesday.

They're taking aim at a recent state supreme court ruling. Justices decided residents do not have the right to resist police officers who illegally enter their homes.

The ruling brought Indiana in line with most other states, but critics contend it violates the Constitution's Fourth Amendment, which guards against unreasonable searches and seizures.

State lawmakers have urged the court to hold a new hearing on the case.

They're also considering ways to strengthen Indiana's privacy laws.

Permalink 12:13:43 am, by fourth, 163 words, 2966 views   English (US)
Categories: General

M.D.Fla: Dog sniff of house valid, filed day after Jardines, in federal court

Dog alert outside a house for the presence of marijuana was reasonable basis to issue a search warrant. United States v. Cole, 2011 U.S. Dist. LEXIS 54220 (M.D. Fla. April 15, 2011). Note: Jardines v. State, 73 So. 3d 34 (Fla. 2011), posted here, the day before, held that it is not in Florida state court.

Gant came down while defendant’s appeal was pending, and it was not argued. Aside from procedural default, he would lose on the merits of the Fourth Amendment claim under the automobile exception. Ezell v. United States, 2010 U.S. Dist. LEXIS 143023 (W.D. Wash. September 17, 2010).*

The CI’s information was detailed and predictive, and defendant did what the CI predicted, officers finding him within 15 minutes of the call. That also gave information for a frisk because of information about a gun. Aside from that, defendant could have been detained for jaywalking. United States v. Watson, 2011 U.S. Dist. LEXIS 54011 (C.D. Ill. April 6, 2011),* adopted 2011 U.S. Dist. LEXIS 54016 (C.D. Ill. May 20, 2011).*

Permalink 12:01:07 am, by fourth, 250 words, 2909 views   English (US)
Categories: General

D.Mass.: CP SW for all computer related hardware in house was reasonable

Search warrant for all computer-related stuff in defendant’s house was valid in a search for child pornography where the police had information that the defendant used a webcam attached to his computer. The government is not required to anticipate every place child porn may be stored. United States v. Burdulis, 2011 U.S. Dist. LEXIS 53612 (D. Mass. May 19, 2011):

Because defendant used his home computer systems and accessories to commit the crimes and to store evidence of them, there was probable cause to seize and search all digital storage media. See United States v. Crespo-Rios, 623 F. Supp. 2d 198, 202 (D. Puerto Rico 2009) (“There can be no doubt that the allegations contained in the affidavit, which included Defendant's use of his computer system and accessories to engage in sexually explicit conversations with the alleged presumed minor and the sending via web cam of obscene material to the presumed minor, established probable cause to seize and search Defendant's digital media.”). Once the government established probable cause to search defendant's home computer systems, it was not required to anticipate where defendant stored which pieces of evidence. See id. at 202 (“[T]he prohibition of general searches cannot be confused with a demand for precise ex ante knowledge of the location and content of evidence related to the suspected violation.”). The clerk-magistrate's decision to authorize a seizure and search of all digital storage media had a substantial basis because the warrant application established a nexus between the evidence they expected to find and defendant's home computer systems.

05/24/11

Permalink 07:41:33 am, by fourth, 309 words, 3177 views   English (US)
Categories: General

CA5: Taint was purged for confession even after plainly illegal search of suitcase

After plainly illegal search of a suitcase, defendant was Mirandized at a different place and time and that purged the taint. United States v. Cantu, 426 Fed. Appx. 253 (5th Cir. 2011) (unpublished):

In this case, the full circumstances of the DEA interrogation served to attenuate any effect from the earlier misconduct. The Miranda warning made clear that Cantu was under no obligation to talk to the police, even if asked to confirm or deny information the police already knew. Further, the DEA interrogation was performed by federal officers, not the sheriff's deputies who conducted the traffic stop, and neither Deputy Rios nor any other sheriff's office personnel participated in the DEA interview. The DEA officers wore plain clothes rather than police uniforms, distinguishing them from the sheriff's deputies. Although the DEA interview took place at the sheriff's office, it was well removed in time and location from the traffic stop and the patrol car where the earlier misconduct took place.

In short, the DEA interrogation was conducted in a “different place[] ... with different people in a different atmosphere” than the illegal search. By distancing the DEA interview from the earlier misconduct, these circumstances created an “atmosphere ... more conducive to an act of free will.” That willful act—Cantu's knowing and voluntary decision to give a written confession—purged any remaining taint from the earlier illegality, weighing heavily in favor of admitting the confession.

County jail inmate survived a motion for summary judgment on a strip search claim where he was strip searched after being denied a contact visit and was under constant surveillance. Jordan v. Cicchi, 428 Fed. Appx. 195 (3d Cir. 2011) (unpublished).*

The district court’s injunction against defendant continually attempting to relitigate his 1999 search in 2255’s was affirmed. It was “carefully tailored” and did not prohibit any future litigation for other claims. Shivers v. United States, 427 Fed. Appx. 697 (11th Cir. 2011) (unpublished).*

Permalink 12:15:55 am, by fourth, 158 words, 2972 views   English (US)
Categories: General

LA2: Long protective weapons search exception to Gant

A Michigan v. Long protective weapons search is not barred by Arizona v. Gant. State v. Heard, 70 So. 3d 811 (La. App. 2d Cir. 2011).*

Unconditional plea waived all motions denied. United States v. Mendez-Santana, 645 F.3d 822, 2011 FED App. 0137P (6th Cir. 2011).*

Because defendant argued that his consent was the product of an illegal confession, reversal of the trial court’s suppression order on the confession also worked to reverse the suppression of evidence. State v. Powell, 242 Ore. App. 645, 256 P.3d 185 (2011).*

Defendant’s arrest for driving without a valid Massachusetts license was invalid because (1) he produced a valid New Brunswick driver’s license and the vehicle was licensed in NB, and (2) the officer had no probable cause under state law to support the conclusion defendant was a lawful “resident” of Massachusetts under the law even though he was regularly seen in the area. Commonwealth v. Chown, 459 Mass. 756, 948 N.E.2d 394 ( 2011), revg Commonwealth v. Chown, 76 Mass. App. Ct. 684, 925 N.E.2d 562 (2010).*

Permalink 12:01:46 am, by fourth, 214 words, 3026 views   English (US)
Categories: General

IL: Defendant's agreement to "intensive" supervision and searches was governed by contract law

Defendant agreed to “intensive” supervision which meant more intrusive searches, and he was bound by it. He moved to change it, but he cannot unilaterally change a contract. People v. Absher, 242 Ill. 2d 77, 950 N.E.2d 659 (2011):

We find this case to be analogous to [People v.] Evans[, 174 Ill.2d 320, 220 Ill.Dec. 332, 673 N.E.2d 244 (1996)] and, therefore, similarly governed by principles of contract law. Here, defendant and the State entered into a fully negotiated plea agreement in which defendant pled guilty to a charge in exchange for the State’s recommendation of a specific sentence: two years’ probation, with the first year being “intensive.” Faced with the possibility of imprisonment and a complete loss of freedom and privacy rights, defendant opted to avoid incarceration and agree to probation, including a year of the more restrictive “intensive” version and its greater invasion of privacy. This bargain was advantageous to defendant, as he avoided jail time and gave up nothing by agreeing to probation and its restrictions. The bargain was also advantageous to the State, in that it assured that defendant was required to comply with the more restrictive conditions of intensive probation for the first year. It is undisputed that the agreement was explained to defendant, he understood its provisions and he freely signed the form.

05/23/11

Permalink 07:55:40 pm, by fourth, 243 words, 3053 views   English (US)
Categories: General

Rand Paul on the PATRIOT Act, invoking James Otis

From the Rand Paul website, him speaking on the PATRIOT Act extension in the Senate, which has video and a transcript, even invoking James Otis who warned and vigorously litigated against the Writs of Assistance a quarter of millennium ago:

Well, the thing is that it will not always be angels that are in charge of government. You have rules because you want to prevent the day that may occur when you get someone who takes over your government through elected office or otherwise who really is intent on using the tools of government to pry into your affairs, to snoop on what you’re doing, to punish you for your political or religious beliefs.

That’s why we don’t ever want to let the law become so expansive. But the thing is you have to realize that you can still get terrorists. We get rapists and murderers every day by calling a judge. That’s what I’m asking for.

I’m asking that we go through and obey the Fourth Amendment.

. . .

We cannot give up our liberty. If we do, if we trade it for security, we’ll have neither.

So I rise in opposition to the vote on cloture.

I will be introducing amendments to the PATRIOT Act this week, and we will be having a real debate about how we can stop terrorism but also preserve freedom at the same time.

Thank you.

A TeaPartier that gets it!

Permalink 10:20:31 am, by fourth, 288 words, 3017 views   English (US)
Categories: General

NYT: Linda Greenhouse on Kentucky v. King: "Justice in Dreamland"

Linda Greenhouse in the NYT on Kentucky v. King: Justice in Dreamland, i.e., SCOTUS is out of touch with reality:

Do the police stake out the apartment and go for a warrant? No, they do not. Instead, they bang on the door, shouting, “Police, police, police.” No response — at least, no verbal response. From behind the door the officers hear the sound of “people inside moving” and objects “being moved.” Aha! Evidence may be about to be destroyed. Announcing that they are coming in, the officers kick in the door and find not the man they were looking for, but three other people, one of whom is smoking marijuana. More marijuana, along with cocaine, is in plain view.

...

Fourth Amendment law is enormously complex (although not as complex as it once was, now that the state wins almost all the cases) and I make no pretense here of unpacking it wholesale. Nor do I argue that this case was the most important on the court’s docket; even accepting Justice Ginsburg’s conclusion that the police could easily have obtained a warrant and that the majority had gratuitously used the case “to contract the Fourth Amendment’s dominion,” the criminal justice system has hardly been shaken to its core.

But in fact, its very ordinariness is what makes this decision worth pondering. It’s worth stopping to consider the assumptions about human nature that underlie not only this ruling but much of the court’s Fourth Amendment jurisprudence. It’s worth wondering what planet the justices — most of them, anyway, and not just the incumbents, but many of their predecessors — have been living on when it comes to encounters between the police and the rest of us.

Permalink 05:19:47 am, by fourth, 219 words, 3090 views   English (US)
Categories: General

Forbes: "Why You Should Think Very Seriously Before Expressing Political Views at Airport Security"

On Forbes.com, referring to a recent suit filed in Richmond: Why You Should Think Very Seriously Before Expressing Political Views at Airport Security about a man questioned by TSA and air marshals for stripping down to his running shorts so TSA could see part of the Fourth Amendment written on his chest. For this he was questioned about terrorist affiliations and then charged with disorderly conduct in Virginia state court.

I go through TSA checkpoints twice every two weeks, and some of them seem humorless. At least at my home airport they recognize me. But, to seek to charge a man with disorderly conduct for the passive act of writing part of the Fourth Amendment on his chest and then baring it so they could read it? Obviously TSA and the Virginia police doing its bidding never heard of Cohen v. California, decided 40 years ago this June 7th. If "Fuck the Draft" during the height of the Vietnam War was protected speech, it boggles the mind that a sign on one's body with a part of the constitution is a crime in Virgina. TSA will argue that the First Amendment does not apply at airport security. They told the plaintiff that the Fourth Amendment doesn't. [The Second Amendment sure can't.]

James Madison must be rolling in his grave.

Permalink 04:39:10 am, by fourth, 139 words, 3128 views   English (US)
Categories: General

SWAT shooting in Tucson of an innocent man

I normally wouldn't give the time of day to World Net Daily, what with its usual finding of an Obama conspiracy under every rock. However, there is this troubling story [that somehow links a SWAT shooting of an innocent man in Tucson to this "regime"]: Iraq vet killed by regime at home:

Jose Guerena, a former (2002-2006) U.S. Marine, survived two combat tours in Iraq to return to his native Tucson, Az., to start a family.

On May 5, Jose was shot 60 times and killed in his home in front of his wife and their 4-year-old son by five armed men who broke into his home and only later identified themselves as a sheriffs' SWAT unit serving a warrant for drugs. No drugs were found. The Guerenas had no criminal record.

Guerena's neighborhood was known for home invasion robberies.

Permalink 12:33:13 am, by fourth, 322 words, 2091 views   English (US)
Categories: General

CT: Automobile exception permitted search of operator's GPS device for recent trips

Defendant’s vehicle was suspected of being involved in town hall burglaries in Connecticut and New Hampshire. When the vehicle was found, it was perceived to be stolen, defendant was absent, and the female passenger wasn’t talking. The officer saw a GPS device in the front and scrolled through it, finding the addresses of other burglarized town halls. The GPS information was admissible under the automobile exception or inevitable discovery. State v. Heck, 128 Conn. App. 633, 18 A.3d 673 (2011):

... The whereabouts of the truck’s driver were unknown, the passenger of the truck refused to provide any information or explanation as to what he was doing, and Roarick had seen another individual, the defendant, wearing a hooded garment, run behind a house near where the truck was located. Upon further investigation, Roarick determined that the truck was registered to Carmac, Inc. Based on the foregoing information, Roarick reasonably believed that the truck had been stolen, and the defendant eventually was captured without the use of any information provided through Roarick's search of the truck.

Additionally, because Roarick believed that the truck was stolen, it would have been impounded and a subsequent inventory would have revealed the same GPS information at that time. The Hillsborough town hall custodian, who usually arrived for work at approximately 7 a.m., would have discovered that the building had been burglarized and notified the police. Inevitably, the police would have connected the proximity of the defendant and the impounded vehicle to the Hillsborough town hall burglary. Therefore, the defendant's connection to the New Hampshire town hall burglaries would have eventually been discovered and that discovery would have resulted in a lawful search of the defendant's truck and seizure of evidence found inside the truck. Accordingly, we conclude that the court properly denied the defendant's motion to suppress all evidence obtained in its search of the GPS device found in the defendant's truck.

Orin Kerr posted this on Volokh Conspiracy.

Permalink 12:22:42 am, by fourth, 318 words, 2907 views   English (US)
Categories: General

Three 2255's

Defendant’s plea of guilty waived his claiming IAC against defense counsel for not raising a motion to suppress. The plea colloquy also shows he was satisfied with his lawyer. United States v. Johnson, 2011 U.S. Dist. LEXIS 53561 (E.D. Ark. May 6, 2011)*:

Petitioner indicates that he made a conscious decision to plead guilty in the face of the evidence against him. If he had been dissatisfied with his attorney's representation, he should have made that known before entering his plea of guilty. At his change of plea hearing, I asked Mr. Johnson whether he was satisfied with his lawyer and informed him that if he were in any way dissatisfied, he should tell me at that time. He told me that he was satisfied with his lawyer. Additionally, at his sentencing hearing, I asked him whether there was any reason he should be allowed to withdraw his plea of guilty. He responded that there was not.

Petitioner’s search claim was already litigated and he can’t raise it in a § 2255, which is denied. Taylor v. United States, 2011 U.S. Dist. LEXIS 53127 (C.D. Ill. May 18, 2011).*

Defendant’s girl friend signed a consent to search, and it was never challenged until his § 2255 that her consent was invalid. Her post-conviction affidavit she did not consent was insufficient to raise the lack of consent as an IAC claim. United States v. Walker, 2011 U.S. Dist. LEXIS 52862 (E.D. La. May 9, 2011)*:

Petitioner has not demonstrated the likelihood that any newly discovered evidence pertaining to the search would exonerate him of any of the crimes to which he pled. Indeed, Petitioner has not even enumerated for the Court what the expected evidence is. As the Government points out, Petitioner's girlfriend gave written consent to search her home at the time of the search, and she also signed a factual basis to this effect. The Court concludes that this argument has no merit.

Permalink 12:11:06 am, by fourth, 472 words, 3035 views   English (US)
Categories: General

D.N.M.: Even if defendant could show racial profiling, it would not lead to exclusion

Defendant’s stop for a traffic violation was valid, but defendant did not show that his stop was based on his race. Even so, the court would not find that exclusion is the remedy for an equal protection violation because no court has yet so found. United States v. Harmon, 785 F. Supp. 2d 1146 (D. N.M. May 6, 2011):

Even if Harmon’s race motivated Lucero’s decision to stop Harmon, the Court is not aware of a court that has applied the exclusionary rule for a violation of the Equal Protection Clause. As the Sixth Circuit stated in United States v. Nichols, 512 F.3d 789, 794 (6th Cir. 2008), overruled on other grounds by United States v. Buford, 632 F.3d 264 (6th Cir. 2011):

Since we know from Whren that the evidence against Nichols would not be suppressed under the Fourth Amendment (even if the officers were improperly motivated by race), we are reluctant to graft that Amendment’s traditional remedy into the equal protection context. Indeed, we are aware of no court that has ever applied the exclusionary rule for a violation of the Fourteenth Amendment’s Equal Protection Clause and we decline Nichols’s invitation to do so here. Rather, we believe the proper remedy for any alleged violation is a 42 U.S.C. § 1983 action against the offending officers.

512 F.3d at 794. See United States v. Torrellas, 197 F. App’x 318, 319 (5th Cir. 2006) (“Torrellas’s claim that the alleged racial profiling violated the Equal Protection Clause ... fails. Although whether suppression is an appropriate remedy for an Equal Protection Clause violation is an open question ... we need not answer that question ..., because Torrellas has [not] provide[d] evidence of any discriminatory motives by the officers.”); United States v. Chavez, 281 F.3d 479, 486 (5th Cir. 2002) (“Neither the Supreme Court nor our Court has ruled that there is a suppression remedy for violations of the Fourteenth Amendment’s Equal Protection Clause, ....”); United States v. Cousin, No. 1:09-CR-89, 2010 WL 338087, at *5 (E.D. Tenn. Jan. 19, 2010) (“[N]o court has suppressed evidence for a violation of the Fourteenth Amendment’s Equal Protection Clause. ... The Sixth Circuit [has] clearly determined civil actions under 42 U.S.C. § 1983 are the appropriate remedy for violations of the Equal Protection Clause and the exclusionary rule does not apply.”); United States v. Foster, No. 2:07-cr-254-WKW, 2008 WL 1927392, at *5 n.10 (Apr. 28, 2008) (“While a handful of “other jurists and commentators have proposed such a rule, there does not appear to be any case in which a court has ever actually applied suppression as a remedy, at least in the absence of a concomitant Fourth Amendment violation.” (internal quotation marks and citations omitted)). Even if there was evidence that Lucero purposefully discriminated against Harmon in stopping him, the Court does not believe that suppression would be an appropriate remedy; instead, the appropriate remedy for an alleged violation is a 42 U.S.C. § 1983 action.

Permalink 12:01:01 am, by fourth, 178 words, 2981 views   English (US)
Categories: General

D.Utah: Protective sweep does not permit looking inside a computer bag, but it does permit moving it

Officers validly conducted a protective sweep on information based on information from an informant. Moving a computer bag and finding a gun was proper, but looking inside the bag was not. United States v. Martinez, 2011 U.S. Dist. LEXIS 53483 (D. Utah May 17, 2011):

As for the evidence the Government contends was in plain view, the court finds the United States’ argument only partially persuasive. The methamphetamine and money inside the main compartment of the computer bag were not in plain sight. Sergeant Burnett had to open the bag to see what was inside. That evidence must be suppressed. But the baggie in the side pocket was spotted visually by Sergeant Burnett as he justifiedly picked up the black bag to uncover the handgun. That is sufficient to satisfy the plain view doctrine. See United States v. Jackson, 381 F.3d 984, 989 (10th Cir. 2004) (holding that warrantless search of container was justified under plain view exception to warrant requirement when officer sees, within plain view, contents of a container and “it is apparent or a ‘foregone conclusion’ that such contents are contraband.”).

05/22/11

Permalink 09:42:47 am, by fourth, 363 words, 3542 views   English (US)
Categories: General

OH8: Defendant bystander to a search was improperly searched; no RS he was a lookout

Officers approached a house with a search warrant, and they encountered defendant who lived next door in his own yard. Although he was compliant, he was put down and handcuffed and frisked. While it was theoretically possible he was a lookout, that alone was no reason to frisk him. State v. Williams, 2011 Ohio 2397, 194 Ohio App. 3d 431, 956 N.E.2d 887 (8th Dist. 2011), Discretionary appeal not allowed by State v. Williams, 2011 Ohio 5358, 129 Ohio St. 3d 1506, 955 N.E.2d 388 (2011):

[*P17] There was no prior basis to suggest that Williams posed any threat to the officers or was involved in any criminal activity other than the fact he was in close proximity to the officers closing in on the target address. Detective O’Connor’s past experiences, that Williams could have been a lookout for the target address and that executing warrants on drug houses is inherently risky, are insufficient collectively standing on their own to establish an individualized, reasonable, articulable suspicion of criminal activity to support the initial detention. See Bobo, 37 Ohio St.3d at 179.

[*P18] We are cognizant that this case is as much about officer safety as it is about the Fourth Amendment. Police officers are exposed to dangerous situations when conducting searches of homes. Events often happen in a matter of seconds, and there is little time for reflection. The margin of error is often close, and errors carry deadly consequences. Nevertheless, police know they will likely encounter uninvolved citizens on adjacent properties when approaching targeted locations and should be prepared to deal with them. Asking citizens on an adjacent property to go indoors, or to stay indoors, or to leave the immediate vicinity of the search area are all less intrusive options. If the individual then exhibits any behavior that warrants additional police intrusion, it can be justified without violating the tenants of the Fourth Amendment. Officer safety must be a determination of what is both reasonable and acceptable to afford police the necessary protections to ensure both their personal safety and the safety of the public. Officer safety cannot justify what amounts to a custodial arrest where the bystander is handcuffed and mandated to lie on the ground in all instances.

Permalink 09:31:02 am, by fourth, 196 words, 2970 views   English (US)
Categories: General

OH5: Written or specific oral findings not required on a motion to suppress; denial is enough

It is not required that the trial court make findings on a motion to suppress, and its general denial of the motion was supported by the record. Remand for findings was a vain act. State v. Pierce, 2011 Ohio 2361, 2011 Ohio App. LEXIS 2011 (5th Dist. May 17, 2011).

During investigation of a “botched home invasion,” officers concluded that a shot possibly had come from the house because of a bullet hole in a window, so the officer could conduct a protective sweep of the house, which here was limited. He didn’t talk to anybody before he did it, but, even if the resident said there was nobody inside, he would not have had to rely on that. State v. Martin, 2011 Ohio 2379, 2011 Ohio App. LEXIS 2027 (9th Dist. May 18, 2011).*

The defendant had no reasonable expectation of privacy in a package that did not show that it was sent from him or to him. Even if he did, there was probable cause for the warrant based on a dog sniff and the good faith exception would apply anyway. [The court just ignored the defendant’s argument that the reliability was not decided.] State v. Miller, 2011 Ohio 2388, 2011 Ohio App. LEXIS 2051 (8th Dist. May 19, 2011).*

Permalink 12:31:44 am, by fourth, 372 words, 3053 views   English (US)
Categories: General

D.Kan.: Kansas Highway Patrol “two-step” during traffic stop led to valid consent

The defendant was validly stopped because his vehicle license was not on file. The officer found from the defendant, however, that the vehicle was lawfully registered, and the officer handed the papers back, took two steps back and said he could go. Then he stepped forward to continue the conversation with the defendant. The ensuing consent was valid. United States v. Esquivel-Rios, 2011 U.S. Dist. LEXIS 53050 (D. Kan. May 17, 2011)*:

Here, Trooper Dean handed the documents back to defendant, and advised him to travel safely. Dean then stepped back from the van a few steps, then stepped forward and asked defendant if he could ask him some questions. Dean used a normal tone of voice, was not touching his gun or leaning on the van. Defendant responded yes, and Dean then explained that there were large amounts of illegal drugs being transported from the west coast and asked whether defendant had any drugs in the van. When defendant responded no, Dean then asked if he could search the van, and defendant assented three times as the search progressed.

Defendant argues that the consent was the fruit of the illegal stop. Citing Brown v. Illinois, defendant argues that the consent given was not voluntary because there was insufficient attenuation or break in the causal connection between the illegal detention and the consent. Brown is not applicable to this case, however, as defendant’s consent was not given after an illegal stop. Because the Court has ruled that the initial stop was justified, there is no “poisoned fruit.”

. . .

Considering the totality of the circumstances, the Court finds that defendant’s detention was transformed into a consensual encounter when Trooper Dean returned defendant’s paperwork and told him to have a safe trip. Neither Trooper Dean’s testimony, nor the video of the stop, supports the finding that he made any “coercive show of authority” such that a reasonable person would not have felt free to leave. There is no evidence that the trooper used any force throughout the encounter, brandished his weapon, made any threats or commands, or physically touched defendant. Therefore, the Court finds that defendant’s consent to the search was voluntarily given and was not obtained in violation of the Fourth Amendment.

Permalink 12:03:43 am, by fourth, 153 words, 3051 views   English (US)
Categories: General

WI: Wearing a ski mask and a hoody in a high crime area in late fall was reasonable suspicion

Wearing a ski mask and a hoody on November 30, 2009, in Milwaukee while standing on a corner in a high crime area justified officers accosting defendant and seeing what was up. He was frisked finding cocaine, marijuana, and pills. The trial court suppressed because nothing was “a foot.” State v. Matthews, 2011 WI App 92, 334 Wis. 2d 455, 799 N.W.2d 911 (2011), with a serious dissent. The dissent said a woman walking a dog walked by and nothing happened at all. The majority said the officers said she appeared nervous.

The stop was reasonable here where the victim of a robbery was riding with the police when the defendant’s car was seen. She ID’d the car and the defendant, and she was subject to prosecution for false information. The defendant ultimately had no standing in the car he was driving because he could show no legitimate relationship to it. Commonwealth v. Cruz, 2011 PA Super 106, 21 A.3d 1247 (2011).*

05/21/11

Permalink 03:18:05 pm, by fourth, 173 words, 2978 views   English (US)
Categories: General

Volokh: Gun Rights Groups on GPS case

Orin Kerr in Volokh Conspiracy: Gun Rights Groups File Amicus Brief in Fourth Amendment GPS Case Advocating Originalist Fourth Amendment of going back to property rights and not just privacy:

The amicus brief in support of DOJ’s cert petition in Jones is here. The brief doesn’t really have much to do with GPS surveillance, but it’s interesting that it advocates a rejection of privacy as a Fourth Amendment guide and a return to property as a guide — including back to the common law “mere evidence” rule, by which the government cannot get a warrant to obtain mere evidence. If I understand the brief, then, the amici are not arguing that a warrant should be required for GPS surveillance: Rather, they are arguing that GPS surveillance should never be allowed even if the police have probable cause and a warrant. (link in original)

Mr. Kerr does not mention that one of the lawyers for the amici is Joseph Miller, erstwhile Republican candidate for the U.S. Senate in Alaska last November.

Permalink 01:02:46 pm, by fourth, 166 words, 2983 views   English (US)
Categories: General

BLT: "In D.C. Circuit, DOJ Defends Secrecy Of Cell Phone Tracking"

On Blog of the Legal Times: In D.C. Circuit, DOJ Defends Secrecy Of Cell Phone Tracking:

Justice Department lawyers are fighting in a Washington federal appeals court to keep secret the case names and docket numbers of criminal prosecutions in which the authorities tracked defendants through cell phone data.

DOJ lawyers contend in the litigation in the U.S. Court of Appeals for the D.C. Circuit that the privacy interests of defendants outweighs any nominal public value of the information the American Civil Liberties Union wants to review. Judge James Robertson of Washington federal district court ordered the government to disclose the data in March 2010.

DOJ lawyers said, among other things, that disclosing information that a person has been tracked via a cell phone “can have a significant impact on an individual’s social relationships." ACLU attorneys contend a person who has been publicly indicted “have nothing left to lose by being further identified as targets of warrantless cell phone tracking.”[link in original]

Permalink 12:00:04 pm, by fourth, 155 words, 3078 views   English (US)
Categories: General

MA: Defendant's written proffer for motion to suppress defeated his standing

Déjà vu all over again:

Defendant’s proffer in an affidavit in support of the motion to suppress from his girlfriend, apparently to distance him from the contraband, completely undermined his standing, even though the trial court found standing. The appellate court finds no standing. Commonwealth v. Holley, 79 Mass. App. Ct. 542, 947 N.E.2d 606 (2011):

As noted, the girlfriend's affidavit does not establish any reasonable expectation of privacy in the basement area or in the box. The defendant's affidavit adds nothing to the privacy calculus. Indeed, the defendant's affidavit says nothing about the Flint Street apartment and the basement area, which would establish any connection to that place by the defendant. In any event, it is clear from the record -- specifically from the date of the defendant's arrest on April 21, 2005, and his being held in custody continuously thereafter -- that the defendant never was present at the Flint Street apartment, much less resided there.

Permalink 11:26:12 am, by fourth, 495 words, 3528 views   English (US)
Categories: General

FL4: Statement to defendant that she could not avoid encounter without consenting to search was hardly a true consent

Defendant was the subject of an anonymous tip that she was selling ecstacy from her car in a store parking lot. Two officers approached to talk to her and her husband, and told her that she wasn’t going to get to leave until she submitted to a search. Thus, the search was not by consent. Dillon-Watson v. State, 2011 Fla. App. LEXIS 7203 (Fla. App. 4th DCA May 18, 2011):

In this case, the totality of the circumstances show that the “consent” to search the vehicle was not voluntary, if there was consent at all. After receiving a specific tip, the officers located a vehicle matching the description in the tip in the parking lot of a mall. The officers were in their marked sheriff’s vehicle. They got out of their vehicle and approached Dillon-Watson’s vehicle. Both were in full uniform. Deputy Abrams asked both appellant and her passenger why they were there. When they explained to him that they were exchanging their child in a neutral place, the officer told them he was investigating the tip which described both them and their vehicle. He then asked for their identification. He said, “I’d like to see your ID’s and I’ll just take a quick look at your vehicles and if everything checks out okay, you guys will be good to go.” Once he ran the identifications, which did not reveal any outstanding warrants, he then approached them again and said, “Let me just take a quick look at your vehicles, and then if you guys are good, you’ll be on your way.” The deputy said that they in some manner indicated that it was “okay.” In searching he found the drugs which formed the basis for the possession charge.

Based upon the totality of the circumstances, we cannot conclude that Dillon-Watson would have felt free to leave during this encounter. From the beginning, she was informed by two uniformed officers that they were investigating a tip of drug activity in her vehicle. This was not some vague allegation but contained details describing her vehicle and both herself and her ex-husband. They were focused on Dillon-Watson as a suspect in a criminal investigation. The officer asked for their identifications, but told them if they checked out and he could look in their vehicle, they would be “good to go.” In other words, until he was allowed to search the vehicle, they would not be “good to go.” Any reasonable person would consider that the officer would not let her go until the officer had searched the vehicle. Dillon-Watson was seized. The consent, such as it was, was not voluntary but an acquiescence to a show of authority. (emphasis in original)

This case is so compelling on the facts, I just can’t believe (1) the trial judge found this consent, and (2) that the state just did not concede error on appeal. The fact the trial judge found consent makes this worth posting at length.

Permalink 10:55:29 am, by fourth, 354 words, 3038 views   English (US)
Categories: General

E.D.Tenn.: Protective sweep of house proper here even though defendant arrested outside

A protective sweep of a house where the defendant was arrested outside is not categorically prohibited in the Sixth Circuit, and it was proper here. United States v. Landolt, 2011 U.S. Dist. LEXIS 52983 (E.D. Tenn. May 17, 2011), R&R 2011 U.S. Dist. LEXIS 52871 (E.D. Tenn. March 15, 2011).* From the R&R:

Further, the Sixth Circuit has not limited protective sweeps to arrest situations only. In United States v. Taylor, 248 F.3d 506, 513-14 (6th Cir. 2001), the Sixth Circuit permitted a cursory search of the premises for people who threatened officers’ safety while the officers waited for a search warrant to be obtained. No arrest had been made at the time the protective sweep was conducted. However, the Taylor Court noted “the officers had acted properly to secure the premises and wait for a search warrant before conducting a search of Taylor’s apartment.” Id. at 514. Officers cannot create situations in which they may be placed in harm’s way in order to justify a protective sweep unless they have a valid reason to do so. United States v. Campbell, 261 F.3d 628, 633 (2001) (“It is well established that police officers are not free to create exigent circumstances to justify their warrantless searches.”) (citing United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir.1984)). Thus, the undersigned turns first to the question of whether Johnson had a constitutional basis to detain defendant at the time the protective sweep was conducted.

. . .

In the instant case, we are concerned with the second type of protective search. The agents had a reasonable basis to believe that firearms were in the house, and they knew that someone else was in the house because they saw a woman run into the house after she saw them outside the house. While the officers were relatively far away from the house, about 40 to 50 yards, a firearm can be discharged accurately from that distance. I conclude the agents had a reasonable basis to believe the house harbored an individual posing a danger to the agents on the scene. Accordingly, I will recommend defendant’s motion to suppress evidence discovered at his residence on August 21, 2009 be DENIED

Permalink 09:05:13 am, by fourth, 362 words, 3298 views   English (US)
Categories: General

ID: Case law on forced catheterization for a urine sample not clear, so officer gets qualified immunity

Plaintiff filed a sparse complaint that his forced catheterization violated the Fourth Amendment. No case like this holds that forced catheterization for a urine sample is unreasonable or reasonable. Thus, under the Supreme Court’s mandate that constitutional issues not be decided unless necessary, the court holds that the officer has qualified immunity in the suit. Miller v. Idaho State Patrol, 150 Idaho 856, 252 P.3d 1274 (2011):*

Even though courts nationwide have not had many opportunities to address forced catheterizations, there are some areas where cases appear to be coalescing into universal rules. For instance, it is objectively well-established that a suspicionless catheterization, like any suspicionless bodily search, would be unconstitutional. Ellis v. City of San Diego, 176 F.3d 1183, 1192 (9th Cir. 1999); Ohio v. Funk, 896 N.E.2d 203, 207-08 (Ohio Ct. App. 2008); see also Hammer v. Gross, 932 F.2d 842, 844 (9th Cir. 1991) (stating that a warrantless blood draw requires probable cause). If the police have probable cause to search for something that is not likely to dissipate from the body, then a warrantless search for bodily fluids would be unconstitutional. See Barlow v. Ground, 943 F.2d 1132, 1138 (9th Cir. 1991) (discussing blood draws); Graves v. Beto, 424 F.2d 524, 525 (5th Cir. 1970) (similar). On the other hand, a forced catheterization performed on arrestees solely for medical screening or treatment, and not for investigatory reasons, is constitutional. Sullivan v. Bornemann, 384 F.3d 372, 377 (2004) (addressing catheterizations done by hospital personnel for medical clearance before accepting a suspect into county jail); Meyer v. Woodward, 617 F. Supp. 2d 554, 565 (E.D. Mich. 2008); Tinius v. Carroll Cnty. Sheriff Dep't, 321 F. Supp. 2d 1064, 1075-76 (N.D. Iowa 2004) (upholding a catheterization performed by hospital personnel on a person detained under the police community-caretaking function); see also United States v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990) (stating that a blood draw performed by medical personnel for purely medical reasons was permissible).

The clarity ends, however, once the Court attempts to determine whether it is reasonable for police to catheterize someone to search for dissipating evidence of a crime without a warrant. This question is at its thorniest where, as here, the police presumably could just as easily have performed a relatively painless blood draw rather than use a catheter to extract urine.

Permalink 07:36:31 am, by fourth, 152 words, 3107 views   English (US)
Categories: General

IN AG to seek limited rehearing in Barnes

No case in the last three years has generated the number of internet and blog hits that came from Barnes v. State—posted here—the Indiana case holding that the common law rule that one could oppose an illegal entry into the home with force was essentially repealed by modern law.

I’ve read several (most could be discarded because of the tenor of the article, that the Fourth Amendment was repealed in Indiana or the end of America or something like that) and none were written about. They were from all over the country, but Indiana editorials were uniformly opposed to it. This article is more interesting: The Indiana AG has decided to ask for rehearing to scale back the decision, while still affirming Barnes’s conviction, in the interest of judicial restraint: Justices asked to review ruling, Attorney general opposes decision on police searches from the Ft. Wayne Journal Gazette.

05/20/11

Permalink 06:05:10 pm, by fourth, 357 words, 3054 views   English (US)
Categories: General

AZ: A protective sweep on conjecture there was a gun inside when the defendant was arrested outside was invalid

A protective sweep on conjecture there was a gun inside when the defendant was arrested outside was invalid under Buie. State v. Fisher, 250 P.3d 1192 (Ariz. 2011):

¶15 Similarly, the officers in this case could not articulate specific facts indicating that another person was inside Fisher’s apartment. The record does not reflect any attempt by the officers to find out how many people lived with Taz. Three people, including Fisher, exited the apartment. Fisher identified himself and matched the victim’s detailed description of the assailant. Although there was still an unaccounted-for weapon, as in Gandia [United States v. Gandia, 424 F.3d 255, 264 (2d Cir. 2005)], nothing indicated that anyone else was inside the apartment. Officers cannot conduct protective sweeps based on mere speculation or the general risk inherent in all police work. Because the officers here did not articulate specific facts to establish a reasonable belief that someone might be in the apartment, the protective sweep was invalid.

¶16 We are mindful that:

[P]olice officers have an incredibly difficult and dangerous task and are placed in life threatening situations on a regular basis. It would perhaps reduce the danger inherent in the job if we allowed the police to do whatever they felt necessary, whenever they needed to do it, in whatever manner required, in every situation in which they must act. However, there is a Fourth Amendment to the Constitution which necessarily forecloses this possibility.

United States v. Colbert, 76 F.3d 773, 778 (6th Cir. 1996). We likewise are aware of the high price of suppressing evidence. See State v. Bolt, 142 Ariz. 260, 266-67, 689 P.2d 519, 525-26 (1984); cf. Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 700-01 (2009) (“The principal cost of applying the [exclusionary] rule is, of course, letting guilty and possibly dangerous defendants go free – something that ‘offends basic concepts of the criminal justice system.’” (quoting United States v. Leon, 468 U.S. 897, 908 (1984))). But the right to privacy in one’s home is “‘basic to a free society.’” Mapp v. Ohio, 367 U.S. 643, 656 (1961) (quoting Wolf v. Colorado, 338 U.S. 25, 27 (1949)). Thus, specific facts, and not mere conjecture, are required to justify a protective sweep of a residence based on concerns for officer safety.

05/19/11

Permalink 08:53:07 am, by fourth, 235 words, 3040 views   English (US)
Categories: General

S.D.Ill.: Inventory valid even though vehicle not towed

Defendant was stopped for mere traffic offenses, so a search incident would be invalid under Gant. Nevertheless, the vehicle was properly subjected to an inventory even though it was not towed. The police started to tow it because defendant had a suspended DL, but he prevailed upon the officers not to tow it and, instead, move it to his grandmother’s house because he needed it for work. So, they helped move the car there. Still, it was subject to an inventory for weapons for safety purposes. United States v. Watson, 2011 U.S. Dist. LEXIS 52371 (S.D. Ill. May 17, 2011):

Thus, the officers established that it is their policy and routine to conduct inventory searches in circumstances such as those they faced in this case. In light of this policy, it is evident that a lawful inventory search hypothetically could have occurred at two different junctures of the arrest process, had the search not been performed directly after defendant's arrest. Police would have searched the vehicle before moving it off the busy street, and they would have searched the vehicle before driving it to defendant's grandmothers' home. Furthermore, the Court FINDS that this type of search, which could be conducted for legitimate officer safety reasons, would have been reasonable in this case. Thus, under the inevitable discovery doctrine, the evidence still would have been found, and the evidence found during the search will not be suppressed.

Permalink 07:53:00 am, by fourth, 396 words, 2969 views   English (US)
Categories: General

CA5: Police observing crime in defendant's garage could enter

Maybe the first citation of King: Fifth Circuit finds no police manufactured exigency where they arrested him in his garage after observing crime. [This case was submitted before King.] United States v. Montanya, 425 Fed. Appx. 392 (5th Cir. 2011) (unpublished):

Montanya concedes that police had probable cause to arrest him and Figueroa but asserts that the seizure from his garage was improper because any exigency for the arrest was manufactured by the officers. We see no manufactured exigencies under the circumstances in this case because “we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the [garage].” Kentucky v. King, No. 09-1272, ___ S. Ct. ___, 2011 WL 1832821, slip. op. at 17 (U.S. May 16, 2011); see also United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995) (holding that we examine the motivation of the police and the reasonableness and propriety of the investigative tactics that created the exigency). Police had probable cause to investigate Figueroa standing in plain view in the driveway, a place that is not constitutionally protected and in which there is no reasonable expectation of privacy. See, e.g., United States v. Brown, 510 F.3d 57, 65 (1st Cir. 2007) (holding that when a driveway is exposed to public view it is not part of the home’s curtilage protected by the Fourth Amendment). At that point, the officers knew that a substantial drug deal had likely just occurred and that the drugs had apparently been offloaded from a vehicle not registered to that location. When they saw Montanya throw an apparent weapon under the car they were justified in seizing him for officer safety and in conducting a protective sweep. See United States v. Jones, 239 F.3d 716, 721-22 (5th Cir. 2001) (holding that police could enter apartment when they viewed a gun through an open door after conducting a proper “knock and talk”); United States v. Maldonado, 472 F.3d 388, 394 (5th Cir. 2006) (holding that protective sweep may be reasonable to ensure officers’ safety, particularly during drug arrests where the presence of weapons is not uncommon). We conclude that the officers’ “actions that led up to the decision to discontinue covert surveillance, approach the ... residence, and seize [Montanya]” were reasonable. See Rico, 51 F.3d at 502. They neither engaged nor threatened to engage in conduct that violated the Fourth Amendment, and Montanya’s police-created exigency argument fails. See King, slip. op. at 8.

Permalink 07:43:15 am, by fourth, 106 words, 3045 views   English (US)
Categories: General

Prison Planet on increase in sneak and peak warrants

From Prison Planet: Fourth Amendment Busting Sneak and Peek Warrants On the Rise:

An Albuquerque television news report aired earlier this week reveals a steep increase by the federal government in the use of unconstitutional sneak and peek search warrants.

“The warrants have always been around, but their use has spiked since the War on Terror and revamped Patriot Act was signed in 2005,” reports KOAT. “The number of delayed-notice search warrants spiked nationally from nearly 700 in fiscal year 2007 to approaching close to 2,000 in 2009.

See a video report on the KOAT website.

The KOAT link: Warrants Let Agents Enter Homes Without Owner Knowing; Delayed-Notice Search Warrants Increasing.

Permalink 07:39:20 am, by fourth, 180 words, 2971 views   English (US)
Categories: General

CA1: Pointing when asked where a gun was is implied consent here

Officers responded to a call about an “unwelcome woman” in a house. Police entered and they were directed to a bedroom, and they were told she had a gun in the room. Officers knocked on the door and she said “come in.” They asked about a gun, and she said she had one and pointed toward the headboard. That was considered implied consent for a search of the headboard. The officers found out she had been involuntarily committed, so she was a prohibited person, and she was arrested. United States v. Reynolds, 646 F.3d 63 (1st Cir. 2011).

Giving the district court’s finding the credit it is due, there is evidence to support the finding of consent that is not clearly erroneous. United States v. Boyd, 429 Fed. Appx. 233 (4th Cir. 2011).*

Two trash pulls from defendant with the last the day before the search warrant was sought was hardly stale information. United States v. Kruse, 2011 U.S. Dist. LEXIS 52488 (N.D. Iowa May 16, 2011).*

There was probable cause for plaintiff’s arrest, so his § 1983 case fails. McLennan v. Burke, 425 Fed. Appx. 377 (5th Cir. 2011).*

05/18/11

Permalink 02:34:53 pm, by fourth, 123 words, 2993 views   English (US)
Categories: General

LAT: "State lawmakers weigh anti-piracy bill to allow warrantless searches of CD and DVD makers"

In the LATimes today: State lawmakers weigh anti-piracy bill to allow warrantless searches of CD and DVD makers:

The Recording Industry Assn. of America is pushing the legislation, which wants to give law enforcement officials the power to enter manufacturing plants without notice or court orders. But U.S. constitutional law scholars say the proposal may violate the 4th Amendment.

Forgetting Payton v. New York?

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Should RIAA have more power than the police? Who has better lobbyists? It sure isn't the people.

Permalink 09:05:07 am, by fourth, 376 words, 2992 views   English (US)
Categories: General

N.D.Ohio: Defendant's effort to show police lacked PC to arrest him after search of premises completely undermined his standing

Defendant’s efforts to disassociate himself from the house searched started with the premise that the government could not show that he lived there or was sufficiently associated with it to even be arrested. This argument undermines his standing to contest the search. United States v. Square, 790 F. Supp. 2d 626 (N.D. Ohio 2011):

The undersigned is of the opinion that adequate evidence exists to establish Defendant’s residence at 16320 Eldamere. Detective Moran retrieved mail indicating that 16320 Eldamere was Defendant’s mailing address, and Ohio BMV records also indicated that it was his mailing address. Nevertheless, the undersigned acknowledges that firearms and ammunition were found in a locked bedroom and in the ceiling above a sleeping area in the basement. Hr’g Ex. T, Tr. at 23-24, 61. Defendant contested the Government’s assertion that he had control over these areas, and that he was even a resident of 16320 Eldamere. See, e.g., Tr. at 155, 156, 158, discussed supra. Defendant challenges his connection to the residence and his admissions regarding ownership of the firearms in order to demonstrate that police lacked probable cause to arrest him. Id. at 158-59. In so doing, Defendant also necessarily undermines his standing to challenge the seizure of those firearms. The two analyses (lack of probable cause and standing) are conceptually linked in this case since a defendant’s alleged possession of contraband is insufficient to establish standing. U.S. v. Salvucci, 448 U.S. 83, 85 (1980).

Given the record of this case, the Government may not be able to establish that Defendant possessed the firearms and ammunition without also establishing facts that would demonstrate his residence at 16320 Eldamere. Nevertheless, the undersigned will not speculate as to the evidence to be introduced at trial.

Accordingly, the undersigned views this issue as a matter of Defendant’s failure to carry his burden of establishing a legitimate expectation of privacy in the particular areas searched. To the extent that Defendant could mount a successful challenge regarding his connection to the searched areas, he would simultaneously disprove standing to challenge those searches. Simply put, Defendant cannot deny residence at 16320 Eldamere, deny a connection to the southwest bedroom, deny a connection to the basement, and still seek protection from the Fourth Amendment.

Do I really need to put a Practice Pointer here?

Permalink 07:07:40 am, by fourth, 147 words, 3188 views   English (US)
Categories: General

Cal.2: No REP in ISP's records

There is no reasonable expectation of privacy under the Fourth Amendment to subscriber information provided to an internet service provider. People v. Stipo, 124 Cal. App. 3d 688, 195 Cal. App. 4th 664 (2d Dist. 2011).*

Traffic stop led to a valid plain view of marijuana and then cocaine. Commonwealth v. Liddie, 2011 PA Super 104, 21 A.3d 229 (Pa. Super. 2011).*

Defendant’s § 2255 is frivolous: The claim that the search was without probable cause is false and already litigated. United States v. Wilson, 2011 U.S. Dist. LEXIS 52077 (W.D. Pa. May 16, 2011).*

The officer had reasonable suspicion that the vehicle might have been stolen, but that was dispelled during the stop, and there was no reasonable suspicion that the vehicle had contraband. Nevertheless, the defendant lawfully consented to a search of the vehicle. United States v. Lopez-Urquiza, 2011 U.S. Dist. LEXIS 51810 (E.D. Tenn. May 13, 2011)*, R&R 2011 U.S. Dist. LEXIS 51786 (E.D. Tenn. March 14, 2011).*

05/17/11

Permalink 07:25:23 am, by fourth, 620 words, 2946 views   English (US)
Categories: General

MO: Deputy at back door to effect arrest in case defendant fled violated curtilage

Two bailbondsmen with a warrant for defendant’s arrest call Sheriff’s deputies per state law for assistance. The deputies look up the arrest warrant from a neighboring county, and they all go to the house where defendant would be found. One bondsman and one deputy to the front door, and one each to the back door. At the back door, they find a marijuana plant, clearly in an area not visible from the road. On the knock at the front door, the defendant comes out the back door, and he gets arrested. The back door was curtilage, and the marijuana plant was suppressed. On the mixed question of law and fact, the trial court’s finding of curtilage and reasonable expectation of privacy is affirmed. State v. Bates, 344 S.W.3d 783 (Mo. App. 2011):

. . . The rationale justifying an officer’s warrantless presence at a residence for a legitimate investigatory purpose is that “there is no reasonable expectation of privacy subject to Fourth Amendment protection where the public at large is welcome.” Kriley, 976 S.W.2d at 22.

We find that Kruse is basically indistinguishable from the present matter. In Kruse, officers went to Kruse’s mobile-home residence shortly after midnight to search for a third party, Jeremy Beel, who had an arrest warrant which had “caution indicators,” meaning the subject was considered dangerous. Kruse, 306 S.W.3d at 606. When the officers arrived at Kruse’s residence, the vehicle Beel was driving was parked on the driveway with a flat tire. Id. “No trespassing” signs were posted near the front door of Kruse’s trailer and on the front door of a shed at the end of the driveway on the property. Id. No obstructions blocked access to the backyard. Id. As the officers passed between the shed and the residence, without first knocking at the front door, the shed door flew open and Kruse came “bolting” out of the shed. Id. at 607. With the shed door open, an officer observed methamphetamine manufacturing equipment inside the shed. Id. A search warrant for the property was secured, pursuant to which the officers discovered various evidence of methamphetamine manufacturing. Id. The trial court found that the officers conducted a warrantless search of Kruse’s backyard and that the search was not justified by exigent circumstances. Id. at 607-08. The Western District of this Court affirmed the suppression of the evidence and found that Kruse had an expectation of privacy in his backyard and that the trial court did not err in finding that exigent circumstances that would allow the officers to search the home of Kruse for Beel did not exist. Id. at 612.

The State encourages us not to follow Kruse or, in the alternative, claims Kruse is distinguishable. We decline the first request and disagree with the second. In Kruse, unlike in this case, the vehicle that police were informed that Beel was driving was at Kruse’s residence. Id. at 606. Beel was considered violent. Id. In this case, Threlkeld had an outstanding warrant for driving while revoked. Despite the more compelling facts in Kruse, suppression of the evidence was affirmed because Kruse had an expectation of privacy in his backyard and the trial court did not err in finding that exigent circumstances did not justify the search. Id. at 612. Likewise, we find the trial court did not err in finding Defendant had a reasonable expectation of privacy in his backyard. In the light most favorable to the trial court’s ruling, the evidence was discovered on “property as to which there was a privacy interest protected by the Fourth Amendment.” Id. We believe Kruse is controlling precedent and not meaningfully distinguishable.

[Arkansas had a similar case and came out just the opposite.]

Permalink 12:25:43 am, by fourth, 242 words, 3386 views   English (US)
Categories: General

New law review article: "The Fourth Amendment at a Three-Way Stop"

Justin F. Marceau, The Fourth Amendment at a Three-Way Stop, 61 Ala. L. Rev. No. 4 (2011).

Abstract:

There are three general litigation forums for persons aggrieved by constitutional violations - exclusionary rule litigation in a criminal case, habeas corpus challenges to the legality of one’s confinement, and civil litigation seeking damages or equitable relief. Over the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in each of these three fields, and the scope of such limitations has begun to compound exponentially in recent years. The stagnating impact on the development of Fourth Amendment law as a result of the increasingly emaciated constitutional-remedial regime is cause for concern and the subject of this Article.

Commentary criticizing recent curtailments of constitutional remedies has focused primarily on the way that limited remedial access might result in the under-enforcement of the Fourth Amendment and a corresponding under deterrence, or skewing of police incentives. This Article, in contrast, addresses the potential for under-announcement of Fourth Amendment law based on a skewing of judicial incentives. Procedural limitations on the development of the Fourth Amendment threaten to create a substantive three-way stop, a virtual freezing of search and seizure doctrine. The threat of a procedurally induced constitutional stagnation is particularly notable in view of the fact that the modern hallmark of Fourth Amendment law is the Katzian imperative of doctrinal evolution and the need for an ever evolving set of legal protections.

Permalink 12:13:54 am, by fourth, 102 words, 2936 views   English (US)
Categories: General

FL1 again rejects Ohio's Smith on SI of a cell phone

FL1 again rejects Ohio’s Smith for the second time in two weeks and holds that a cell phone is a mere container subject to a search incident. It certifies the case to the Florida Supreme Court for further review. Fawdry v. State, 70 So. 3d 626 (Fla. App. 1st DCA 2011).*

A lawful traffic stop led to the officer smelling marijuana, and that justified a search of the car. State v. Whatley, 2011 Ohio 2297, 2011 Ohio App. LEXIS 1956 (5th Dist. May 9, 2011).*

The CI’s information was detailed and corroborated and provided probable cause. Moreover, the CI testified at the trial. People v. Allen, 409 Ill. App. 3d 1058 (2011).*

Permalink 12:02:44 am, by fourth, 215 words, 3095 views   English (US)
Categories: General

OH8: Landlord checking for water leak saw marijuana and invited police officer in; the officer's entry violated the Fourth Amendment

Defendant’s landlord suspected a water leak in his apartment, and he entered to look. Inside, he saw marijuana plants, and he called the police. A police officer arrived, and the landlord took him inside. With that information, the officer sought a search warrant. The entry tainted the search warrant, and there were no exceptions to the warrant justifying the entry. State v. Callan, 2011 Ohio 2279, 2011 Ohio App. LEXIS 1936 (8th Dist. May 12, 2011):

[*P18] In the present case, Officer Rebraca entered and searched appellant's apartment without a warrant at the invitation of the building's property manager. However, it is well-established that a landlord cannot consent to a search of a tenant's apartment for Fourth Amendment purposes. Chapman v. United States (1961), 365 U.S. 610, 616-618, 81 S.Ct. 776, 5 L.Ed.2d 828. Thus, Officer Rebraca's search of appellant's apartment was unlawful unless it fell within one of the above exceptions to the search warrant requirement.

Employees in a fast food restaurant saw a car parked outside with the motor running, and they were concerned, so they called the police. On arrival, the officer found the occupants extremely drunk and arrested the driver for disorderly conduct. A search incident of the car produced drug paraphernalia which was properly admitted at his trial. State v. Ramsier, 2011 Ohio 2295, 2011 Ohio App. LEXIS 1955 (5th Dist. May 10, 2011).*

05/16/11

Permalink 10:52:33 am, by fourth, 1047 words, 3444 views   English (US)
Categories: General

SCOTUS: Kentucky v. King decided today on police created exigency: a knock on the door alone is not a police created exigency

Kentucky v. King, 179 L. Ed. 2d 865, decided today: police created exigency might violate the Fourth Amendment, but knocking on the door during a lawful investigation is not a police created exigency. So, a knock and talk is not a police created exigency even if the police have nothing. Watch for states to reject this on state constitutional grounds.

SCOTUSBlog is here.

The syllabus:

Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search. The Circuit Court denied respondent’s motion to suppress the evidence, holding that exigent circumstances—the need to prevent destruction of evidence—justified the warrantless entry. Respondent entered a conditional guilty plea, reserving his right to appeal the suppression ruling, and the Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky reversed. The court assumed that exigent circumstances existed, but it nonetheless invalidated the search. The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.

Held:

1. The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. Pp. 5–16.
(a) The Fourth Amendment expressly imposes two requirements: All searches and seizures must be reasonable; and a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. Although “‘searches and seizures inside a home without a warrant are presumptively unreasonable,’” Brigham City v. Stuart, 547 U. S. 398, 403, this presumption may be overcome when “ ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment,” Mincey v. Arizona, 437 U. S. 385, 394. One such exigency is the need “to prevent the imminent destruction of evidence.” Brigham City, supra, at 403. Pp. 5–6.
(b) Under the “police-created exigency” doctrine, which lower courts have developed as an exception to the exigent circumstances rule, exigent circumstances do not justify a warrantless search when the exigency was “created” or “manufactured” by the conduct of the police. The lower courts have not agreed, however, on the test for determining when police impermissibly create an exigency. Pp. 7–8.
(c) The proper test follows from the principle that permits warrantless searches: warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Thus, a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. A similar approach has been taken in other cases involving warrantless searches. For example, officers may seize evidence in plain view if they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made, see Horton v. California, 496 U. S. 128, 136–140; and they may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs, see INS v. Delgado, 466 U. S. 210, 217, n. 5. Pp. 8–10.
(d) Some courts, including the Kentucky Supreme Court, have imposed additional requirements—asking whether officers “‘deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement,’” 302 S.W.3d 649, 656 (case below); reasoning that police may not rely on an exigency if “‘it was reasonably foreseeable that [their] investigative tactics ... would create the exigent circumstances,’” ibid.; faulting officers for knocking on a door when they had sufficient evidence to seek a warrant but did not do so; and finding that officers created or manufactured an exigency when their investigation was contrary to standard or good law enforcement practices. Such requirements are unsound and are thus rejected. Pp. 10–14.
(e) Respondent contends that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable, but that approach is also flawed. The ability of officers to respond to an exigency cannot turn on such subtleties as the officers’ tone of voice in announcing their presence and the forcefulness of their knocks. A forceful knock may be necessary to alert the occupants that someone is at the door, and unless officers identify themselves loudly enough, occupants may not know who is at their doorstep. Respondent’s test would make it extremely difficult for officers to know how loudly they may announce their presence or how forcefully they may knock with-out running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that threshold had been passed. Pp. 14–15.

2. Assuming that an exigency existed here, there is no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Pp. 16–19.
(a) Any question about whether an exigency existed here is better addressed by the Kentucky Supreme Court on remand. P. 17.
(b) Assuming an exigency did exist, the officers’ conduct—banging on the door and announcing their presence—was entirely consistent with the Fourth Amendment. Respondent has pointed to no evidence supporting his argument that the officers made any sort of “demand” to enter the apartment, much less a demand that amounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to this Court’s attention, the state court may elect to address that matter on remand. Finally, the record makes clear that the officers’ announcement that they were going to enter the apartment was made after the exigency arose. Pp. 17–19.
302 S. W. 3d 649, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. GINSBURG, J., filed a dissenting opinion.

Permalink 06:20:06 am, by fourth, 178 words, 2972 views   English (US)
Categories: General

NM: Passenger in a stolen car had a REP in her purse; disclaimer of ownership of bag within purse was not an abandonment

Defendant was a passenger in a stolen car located by its GPS system. The officer seized her purse and searched a black bag inside. The search of the black bag was unreasonable. Her disclaimer of ownership of the bag within a bag was not an abandonment. State v. Bond, 2011 NMCA 36, 261 P.3d 599 (2011):

[*P13] Officer Karst did not testify that Defendant told him he could search her purse. The State argues that Defendant's disclaimer of the ownership of the bag within her purse can be interpreted as providing consent to enter her purse to remove the item. However, Defendant's statement was not a clear statement of consent. It could also reasonably be interpreted to have been only a statement intending to preclude ownership in the event that Officer Karst instituted a search. Given the presumption against the waiver of the constitutional right to be free from unreasonable searches and seizures, State v. Munoz, 2008 NMCA 90, ¶ 19, 144 N.M. 350, 187 P.3d 696, the State did not meet its burden below of demonstrating that Defendant provided the officer with consent to enter her purse.

Permalink 12:19:30 am, by fourth, 608 words, 3168 views   English (US)
Categories: General

IN: Whether knock-and-announce is required can be determined at the scene; preapproval not mandatory

Whether knock-and-announce is required at the time of the search can be determined by the officers at the scene based on the circumstances, and it does not require preapproval by the issuing magistrate. Lacey v. State, 2011 Ind. LEXIS 351 (May 10, 2011), rev’g Lacey v. State, 931 N.E.2d 378 (Ind. App. 2010):

The major thrust of the defendant's argument is that the Search and Seizure Clause in Article 1, Section 11 should be interpreted to require law enforcement to obtain prior express authorization from the judicial officer issuing the warrant if the grounds for bypassing the knock and announce procedure are based solely upon facts known when the warrant is sought. The use of no-knock warrants has been previously approved. Id. at 47. But Indiana jurisprudence has not confronted whether police must obtain no-knock warrants when justified solely by information known at the time of warrant application.

Other jurisdictions have addressed the use of no-knock warrants. They are permitted in the federal courts.

The practice of allowing magistrates to issue no-knock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated ahead of time. But ... a magistrate’s decision not to authorize a no-knock entry should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.

Richards v. Wisconsin, 520 U.S. 385, 396 n.7, 117 S. Ct. 1416, 1422 n.7, 137 L. Ed. 2d 615, 625 n.7 (1997). Judicial opinions in Florida, Oregon, and Virginia have declared that a magistrate lacks the authority to issue a no-knock warrant and that the determination to bypass the knock and announce procedure is to be made only by the executing officers at the time of execution. Ten states, including Indiana, have recognized judicially the validity of the practice of magistrates issuing no-knock warrants. But we find only one jurisdiction whose opinions require police to inform the issuing magistrate of the circumstances believed to justify an unannounced entry and to obtain specific advance authorization for such entry. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000). Statutory provisions in twelve states authorize the issuance of no-knock warrants. Several of these statutes appear to authorize the execution of a warrant by forceful entry into a residence only in the event of either of two conditions: (a) refusal of admittance after announcement of police purpose, or (b) exigent circumstances if a no-knock entry is specifically authorized by the judicial officer. See, e.g., Neb. Rev. Stat. § 29-411; N.Y. Crim. Proc. Law § 690.50; N.D. Cent. Code § 29-29-08; Okla. Stat. tit. 22, § 1228; Utah Code Ann. § 77-23-210. We do not find case authority from these jurisdictions addressing whether such statutes prohibit police in the absence of such advance judicial authorization from executing a warrant in a no-knock fashion due to exigent circumstances. (footnotes omitted)

There are numerous cases cited in the omitted footnotes. The co-defendant's case:

The police provided the following reasons to justify their forced entry without first knocking and announcing their presence: (a) co-defendant had a warrant stating he might be armed; (b) co-defendant was a felon convicted for dealing in cocaine; (c) police believed defendant and co-defendant were in the house; (d) there would probably be weapons inside; and (e) defendant had a propensity for violence. The trial court correctly denied defendant's motion to suppress, because safety concerns permitted the police to serve the warrant without knocking and announcing their presence. The no-knock execution of the warrant did not violate Ind. Code § 35-33-5-7. The police were not required to present known exigent circumstances and obtain specific judicial authorization before executing a no-knock entry. Suppression was not appropriate under federal law. Wilkins v. State, 946 N.E.2d 1144 (Ind. 2011).

Permalink 12:10:17 am, by fourth, 191 words, 2922 views   English (US)
Categories: General

D.Minn.: Likely presence of gun in car make search valid under SI or automobile exception

The search of defendant’s vehicle was justified by the search incident doctrine and the automobile exception because the recording of defendant and the CI showed that there was likely a gun in the car. United States v. Bugh, 2011 U.S. Dist. LEXIS 50198 (D. Minn. April 25, 2011).*

Officers conducted a knock and talk and then procured a search warrant while there. Defendant contended outbuildings were searched before the warrant arrived. If that happened, there was probable cause without any taint. United States v. Johnson, 2011 U.S. Dist. LEXIS 50625 (M.D. Fla. May 3, 2011).*

Defendant was not told that if he didn’t consent, a drug dog would be used; the officer said he would then ask about using a drug dog. His consent was voluntary on the totality. United States v. $107,840.00 in United States Currency, 784 F. Supp. 2d 1109 (S.D. Iowa 2011).*

The trial court properly denied the motion to suppress without a hearing because it was apparent from the proof at the bench trial that the gun was seen in plain view in a car double parked that the police approached. People v Howard, 32 Misc. 3d 31, 928 N.Y.S.2d 156 (2d Dept. May 9, 2011).*

Permalink 12:03:34 am, by fourth, 184 words, 3551 views   English (US)
Categories: General

DC: Show of force made defendant's stop a seizure

Defendant’s encounter on the street became a seizure essentially by a police show of force. In re J.F., 19 A.3d 304 (D.C. App. 2011)*:

Nevertheless, “an initially consensual encounter can be transformed into a seizure and detention within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” Hawkins v. United States, 663 A.2d 1221, 1225 (D.C. 1995) (citation omitted). Indeed, there is much more here than mere questioning or a pre-seizure, consensual encounter. J.F. was confronted with the authority of the police on a deserted street, as evidenced not only by the visibility of the officers' weapons, police vests and badges, but also by multiple questions by Officer Starliper as well as a direct order to remove his hands from his pockets, and he could see that the police continued to hold Mr. Hughes (for a warrant check) after they found no contraband on his person. Our case law identifies circumstances similar or identical to those in this case which can result in a seizure. ...

05/15/11

Permalink 10:05:11 am, by fourth, 330 words, 3019 views   English (US)
Categories: General

S.D.Tex.: 21 day delay in seeking SW for seized cell phone was not unreasonable

Defendant was arrested and his cell phone was seized. The police waited 21 days to get a search warrant for the cell phone, but the delay was not unreasonable under the circumstances, the court distinguishing the cell phone and computers, including the fact defendant did not ask for return of the phone in the meantime. United States v. Lowe, 2011 U.S. Dist. LEXIS 50792 (S.D. Tex. May 12, 2011):

... In Mitchell, a twenty-one day delay in obtaining a search warrant for the defendant's computer was held unreasonable, but the only reason the agent gave for the delay in applying for the warrant was that he “didn’t see any urgency of the fact that there needed to be a search warrant during the two weeks that [he] was gone” and that he “felt there was no need to get a search warrant for the content of the hard drive until [he] returned back from training.” Mitchell, 565 F.3d at 1351.

In this case, Agent Oliver gave a detailed account of his actions in the days between Lowe's arrest and the signing of the search warrant. In addition to drafting the warrant for the phone company and the phones themselves, agents were investigating bank account information found in Iba Lowe and his codefendant and brother Netfa Lowe’s possession in order to prevent further losses to potential victims. Finally, prior to the search warrant being obtained, Lowe never asked for the return of his cell phone. There is therefore no reason to believe that the defendant’s possessory interests in the cell phone were substantially interfered with. Unlike the extensive information that can be stored on a personal computer, the information stored on a cell phone is far more limited. The Court finds that the Government’s interests in preventing further theft and obtaining evidence to prosecute the case outweigh the temporary interference with stored phone numbers that could have been obtained by other means, text messages that had already been read, and digital photos.

Permalink 09:28:49 am, by fourth, 142 words, 3131 views   English (US)
Categories: General

N.D.W.Va.: Rule 41(g) motion for return of property must be filed in six years

Motion for return of property under Rule 41(g) filed six years after the search was outside the limitations period. “‘Motions raised under Fed. R. Crim. P. 41(g) after criminal proceedings ... have concluded are subject to a six-year statute of limitations.’ United States v. Sims, 376 F.3d 705, 708-709 (7th Cir. 2004).” United States v. Lorello, 2011 U.S. Dist. LEXIS 50660 (N.D. W.Va. May 11, 2011).

Officers had reasonable suspicion for defendant’s stop, and they developed reason to conduct a Long frisk of the interior, which produced drugs and paraphernalia. United States v. Jones, 2011 U.S. Dist. LEXIS 51233 (D. Minn. May 12, 2011), R&R 2011 U.S. Dist. LEXIS 51175 (D. Minn. February 10, 2011).

The CI here was identified and made apparent admissions against penal interest, and there was probable cause on the totality of circumstances. United States v. Ford, 2011 U.S. Dist. LEXIS 51247 (N.D. Iowa May 12, 2011).*

Permalink 08:44:08 am, by fourth, 171 words, 3115 views   English (US)
Categories: General

MO: Unduly prolonged stop's questioning and "fishing expedition" makes void use of drug dog

The detention here was without reasonable suspicion and was unduly extended with a prolonged “fishing expedition” of asking questions about the purpose of the trip in an effort to get inconsistencies. Only then was the drug dog brought out. The prolonging the stop was unreasonable. State v. Stover, 2010 Mo. App. LEXIS 1813 (December 14, 2010), modified May 3, 2011:

Here, there was an unnecessarily and unreasonably protracted detention before the officer tried to resolve his suspicions by direct confrontation about the suspicion, and summoning the drug dog. Our record suggests that this detention involved at least fifteen minutes of unnecessary compelled discussion that amounted to a “cat and mouse game,” conducted as though the travelers had “all the time in the world” to talk to the officer. In Maginnis, the officer lacked reasonable suspicion but engaged in the same kind of prolonged discussion detention, hoping to develop reasonable suspicion.

The Iowa constitution’s exclusionary rule does not apply to probation revocation proceedings, to further the remedial purposes of probation. State v. Shoemaker, 2011 Iowa App. LEXIS 305 (May 11, 2011).*

05/14/11

Permalink 12:55:21 pm, by fourth, 210 words, 3738 views   English (US)
Categories: General

E.D.Pa.: Affidavit for SW just saying defendant possessed firearms illegally without how or why did not show PC

The affidavit for the search warrant here for evidence of a “violation of the [Pennsylvania] UFA” (Uniform Firearms Act) was not based on probable cause to believe that the UFA was violated. Nothing in the affidavit indicated that defendant was a felon who was incapable of possession of a firearm. “The affidavit in this case reveals a complete absence of indicia of probable cause that Defendant violated § 6105. We conclude that the complete omission from the affidavit of any fact upon which a police officer could base a belief that Defendant had violated § 6105 was not a reasonable mistake that would support application of the good faith exception.” United States v. Jones, 818 F. Supp. 2d 845 (E.D. Pa. 2011).*

After the trooper stopped defendant’s car, it was apparent that the vehicle with California plates was lawfully registered, so that justification for the stop was complete, and the defendant should have been allowed to go. Questioning him exceeded the justification for the stop. United States v. Trestyn, 646 F.3d 732 (10th Cir. 2011).*

Person who did not rent car and was not an authorized driver of the rental car on the rental agreement did not show a reasonable expectation of privacy in the car. United States v. Mikelic, 2011 U.S. Dist. LEXIS 50300 (D. Conn. May 11, 2011).*

Permalink 10:07:13 am, by fourth, 188 words, 2951 views   English (US)
Categories: General

CA1: District Court erred in denying hearing on motion to suppress whether private search was exceeded

The Massachusetts Department of Social Services received information with details about access with passwords to defendant’s Sprint PCS account about how the CI accidently received child pornography from the defendant to the CI’s phone. The district court erred in denying the motion to suppress without having a hearing to determine whether the government exceeded the private search. United States v. D’Andrea, 648 F.3d 1 (1st Cir. 2011):

There can be no serious debate, and the government does not dispute, that defendants had a subjective expectation of privacy in their password-protected online account and that this expectation of privacy was, at least initially, reasonable. Nor is there any question that the DSS agent’s unauthorized accessing of the website constituted a warrantless search. The question presented is whether the warrantless search was nonetheless valid because an exception to the warrant requirement applied or there were circumstances defeating the reasonableness of defendants’ expectation of privacy. The government presses three theories: (1) the private search doctrine; (2) emergency intervention; and (3) inevitable discovery.

Still, the district court abused its discretion in denying a hearing on the government’s theories to support the search.

Permalink 09:52:45 am, by fourth, 240 words, 3063 views   English (US)
Categories: General

CA10: Ruse of bomb in house to conduct a search made consent coerced

The knock and talk here was a ruse to get the defendant to open his house for the police to look for an alleged bomb, and they found a gun inside. The district court suppressed the search because it was rife with coercion. The government appealed contending that the defendant did not feel coerced because he didn’t leave the apartment while officers, not the bomb squad, looked for the alleged bomb. The district court’s finding was not clearly erroneous, and the government failed in its burden of showing voluntariness. United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011):

Notwithstanding the legality of searches conducted by undercover agents, the “Fourth Amendment can certainly be violated by guileful as well as by forcible intrusions into a constitutionally protected area.” Hoffa v. United States, 385 U.S. 293, 301, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966). We have repeatedly held that deception and trickery are among the factors that can render consent involuntary. See, e.g., Sawyer, 441 F.3d at 895; United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir. 1994). When government agents seek an individual's cooperation with a government investigation by misrepresenting the nature of that investigation, this deception is appropriately considered as part of the totality of circumstances in determining whether consent was gained by coercion or duress. We should be especially cautious when this deception creates the impression that the defendant will be in physical danger if he or she refuses to consent to the search.

05/13/11

Permalink 11:09:22 am, by fourth, 296 words, 3593 views   English (US)
Categories: General

S.D.Ga.: Under a totality analysis, the borrower of an overdue rental car still had standing

The USMJ held that deceiving a rental car agency as to who would be driving the car means that the driver has no reasonable expectation of privacy in the rental car. The USDJ, however, declines to follow it and adopts a totality test as more reasonable, finding that the driver had a reasonable expectation of privacy in the car he borrowed (but he loses on the merits of the search). United States v. Murray, 2011 U.S. Dist. LEXIS 50390 (S.D. Ga. May 11, 2011), R&R 2011 U.S. Dist. LEXIS 50391 (S.D. Ga. March 16, 2011):

Therefore, the Court will apply the only remaining framework of analysis, the totality of the circumstances test, because it best conforms with both the policy announced by the Supreme Court and principles of prior Eleventh Circuit decisions. Under this analysis, the Court will consider whether (1) Defendant could legally operate the vehicle and the status of his license; (2) Defendant was able to present the rental agreement and provide sufficient information about the vehicle; (3) Defendant was related to the renter or otherwise had an “intimate relationship;” (4) Defendant had permission of the authorized driver to use the rental car, and, finally; (5) Defendant had a business relationship with the rental car company and the nature thereof. Smith, 236 F.3d at 586-87.

After a review of the facts of this case, the Court finds that Defendant both had a subjective expectation of privacy in the vehicle and that the expectation was one that society was prepared to recognize. ...

An unfair labor practices subpoena duces tecum to a union did not exceed the NLRB’s authority nor did it violate the Fourth Amendment. It is reasonable under the circumstances of the investigation. NLRB v. Sheet Metal Workers Int’l Ass’n, Local 293, 2011 U.S. Dist. LEXIS 50186 (D. Haw. May 10, 2011).

Permalink 10:42:04 am, by fourth, 219 words, 2895 views   English (US)
Categories: General

W.D.Tenn.: Evicted tenant had no REP in premises

Defendant had been judicially evicted from the premises, and the owner had a writ of possession. Therefore, he lacked any reasonable expectation of privacy in the premises and the landlord could seize what he wanted and turn it over to the police. The issue of the police exceeding the private search is irrelevant. United States v. Jones, 2011 U.S. Dist. LEXIS 49609 (W.D. Tenn. May 9, 2011), R&R 2011 U.S. Dist. LEXIS 49899 (W.D. Tenn. March 12, 2011).

The record supports the district court’s conclusion that, during a knock and talk, defendant consented to a search of his laptop computer for narcotics related evidence. The court notes that consent in one’s own home is less coercive than the case he relies on which involved a suspect in an airport claiming he was trying to avoid a “scene.” (United States v. Worley, 193 F.3d 380 (6th Cir. 1999)). United States v. Lucas, 640 F.3d 168, 2011 FED App. 0119P (6th Cir. 2011).*

Defendant fails to show that there were any false statements underlying a search warrant from defendant’s camp counselor’s room or that there was a warrantless search. Securing the premises while the warrant was sought was not unreasonable. United States v. O’Dell, 2011 U.S. Dist. LEXIS 49977 (W.D. Mo. May 10, 2011), R&R 2011 U.S. Dist. LEXIS 49956 (W.D. Mo. April 12, 2011).*

Permalink 08:39:25 am, by fourth, 788 words, 3889 views   English (US)
Categories: General

IN: Common law right to resist believed unlawful police entry into home abrogated by modern law

Common law right to resist what the homeowner reasonably believes to be an unlawful police entry into the home, dating from the Magna Carta, has been abrogated by modern law. Barnes v. State, 82S05-1007-CR-343 (Ind. May 12, 2011) (3-2):

Barnes contests that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because that defense was not covered by the other instructions. We acknowledge that the Court of Appeals followed its own precedents in its analysis. Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right. Accordingly, the trial court’s refusal to give Barnes’s tendered instruction was not error.

The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215. Craig Hemmens & Daniel Levin, Not a Law at All.: A Call for the Return to the Common Law Right to Resist Unlawful Arrest, 29 Sw. U. L. Rev. 1, 9 (1999). The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): “If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.” The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581, 594 (1948) (“One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.”).

In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. Hemmens & Levin, supra, at 18. One scholar noted that the common-law right came from a time where “resistance to an arrest by a peace officer did not involve the serious dangers it does today.” Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). The Model Penal Code eliminated the right on two grounds: “(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest.” Hemmens & Levin, supra, at 23. In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s. Id. at 24–25.

Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in "hot pursuit" of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant’s house could not thwart an otherwise proper arrest made in the course of a hot pursuit.); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (“Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.”). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance. ...

In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law. Accordingly, the trial court’s failure to give Barnes’s proffered jury instruction on this right was not error.

Dissent:

But the common law rule supporting a citizen’s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

05/12/11

Permalink 07:25:32 am, by fourth, 177 words, 2227 views   English (US)
Categories: General

WI: Defendant has to refuse consent or object to invoke Randolph

Defendant did not object to his wife’s consent, so he finds no refuge in Randolph. State v. Pirtle, 2011 WI App 89, 334 Wis. 2d 211, 799 N.W.2d 492 (2011).*

The record clearly supports that defendant consented to the taking of a buccal swab for DNA. State v. Vargas, 66 So. 3d 29 (La. App. 5th Cir. 2011).*

The record supports that the defendant consented to a police entry to talk about child pornography and his statements. People v. Roberts, 292 Mich. App. 492, 808 N.W.2d 290 (2011).*

The deputy court clerk issued the arrest warrant on probable cause, and, after all, mistakes by clerks are not subject to exclusion under Evans. United States v. Newsome, 2011 U.S. Dist. LEXIS 49979 (N.D. Ohio May 10, 2011).* [So, why is the issue not the fact that this arrest warrant was not issued by a neutral and detached judicial officer instead of a deputy clerk with a rubberstamp? I won this issue in Arkansas back in the 1980s that clerks had no constitutional authority to issue arrest warrants based on an affidavit from a cop. That is a nondelegable judicial function.]

Permalink 06:38:58 am, by fourth, 191 words, 2163 views   English (US)
Categories: General

M.D.La.: While seatbelt statute does not permit search incident, there was additional reasonable suspicion here

While the Louisiana seatbelt statute does not permit a search of a car based on a stop for that, there were other justifications for the officer having reasonable suspicion defendant might be armed and justifying a frisk of the car. United States v. Wiley, 2011 U.S. Dist. LEXIS 49135 (M.D. La. May 6, 2011).*

Chicago PD officers got a call from an unknown informant that there was an armed security guard at a store who was not permitted to carry a gun. They went to the store and talked to the defendant security guard and asked for ID. He said it was in the back and he’d go get it. He “bladed” which is copspeak for turned his body like he was concealing a weapon, which they are trained to respond to. That was reasonable suspicion for a patdown. United States v. Dorsey, 2011 U.S. Dist. LEXIS 48989 (N.D. Ill. May 5, 2011).*

A vehicle that looked “overburdened,” like it had a full trunk, likely of undocumented aliens, which refused to stop when the officer turned on his lights was properly stopped. United States v. Diaz-Hernandez, 2011 U.S. Dist. LEXIS 49401 (S.D. Fla. April 15, 2011).*

Permalink 06:18:29 am, by fourth, 122 words, 2237 views   English (US)
Categories: General

KY: No REP of privacy in pharmacy records

There is no expectation of privacy in a patient’s pharmacy records in the Kentucky All-Schedule Prescription Electronic Reporting System (KASPER) under Williams v. Commonwealth, 213 S.W.3d 671 (Ky. 2006), which this court must follow. Carter v. Commonwealth, 358 S.W.3d 4 (Ky. App. 2011).*

Officers came to defendant’s house with an arrest warrant, and they arrested him on the front porch. They could smell marijuana and heard footsteps inside the house. This justified a protective sweep. United States v. Mackey, 431 Fed. Appx. 594 (9th Cir. 2011).*

Defendant’s § 2255 that defense counsel did not challenge the lack of a search warrant was not IAC because defendant clearly consented to the search, and then pled. Martindale v. United States, 2011 U.S. Dist. LEXIS 48965 (N.D. Tex. May 6, 2011).*

Permalink 04:56:54 am, by fourth, 73 words, 2226 views   English (US)
Categories: General

SF Bay Citizen: "SF Public Defender: Surveillance Video Shows Police Officers Lied"

From The Bay Citizen: SF Public Defender: Surveillance Video Shows Police Officers Lied, Thousands of criminal cases could be affected, by Shoshana Walter:

San Francisco Public Defender Jeff Adachi released another series of surveillance videos Wednesday that he claims proves police officers are systematically violating suspects' fourth amendment rights.

The video, which Adachi's office obtained in March, shows plain clothes narcotics officers arresting Fernando Santana, 48, for cocaine possession at the Jefferson Hotel Dec. 30, 2010.

05/11/11

Permalink 03:39:50 pm, by fourth, 636 words, 2261 views   English (US)
Categories: General

TX4: Secluded mobile home owner whose property was not visible from road or other property had a REP in back yard from police

Appellant’s property was way off the road and his yard was not visible from the road or any neighboring properties. Based on a CI of unknown reliability, officers decided to do a knock and talk, admitting that they did not get a warrant because of the unknown CI. Officers approached and defendant saw them from the window, but he did not come out. When defendant disappeared from the window, one officer went around to the back for “officer safety,” but there was no indication that defendant was armed or dangerous–he was in his mid-sixties. The defendant had a reasonable expectation in his back yard from the police entering on the property. Denial of motion to suppress reversed. Cooksey v. State, 2011 Tex. App. LEXIS 3487 (Tex. App.—San Antonio May 11, 2011):

Here, although appellant’s backyard is not enclosed by a fence, and we accept as true the sheriff’s officers’ testimony that there was not a “no trespassing” sign posted anywhere on the property, several factors support appellant’s reasonable expectation of privacy in his backyard and back steps. First, as in Pool, appellant’s home is located in a secluded, wooded area, and there are no neighbors within several hundred yards. Also, the mobile home is not visible from the main road, and appellant’s backyard and back steps are not visible from the private driveway, from the front of the home, or from any neighboring properties. Because appellant’s backyard and back steps would not be visible to anyone on the main road, on the driveway, or on the usual pedestrian pathway to the mobile home’s front door, we believe appellant had a reasonable expectation of privacy in both. In addition, the back steps on which Deputy Isley observed the potted marijuana plants are physically attached to the mobile home. Therefore, we conclude appellant’s backyard and back steps are curtilage of his home and constitutionally protected against unreasonable search.

. . .

As stated previously, the State argues the entry into appellant’s backyard was justified to ensure “officer safety,” but it is unclear whether the State argues “officer safety” rose to the level of exigent circumstances or warranted a protective sweep. Turning to the State’s first possible argument, the existence of exigent circumstances, we must first determine whether probable cause existed for entry into appellant’s backyard. See McNairy, 835 S.W.2d at 106 (absent probable cause, exigent circumstances alone cannot justify a warrantless entry). At the time Deputy Isley entered appellant’s backyard, the sheriff’s officers had no information that appellant was engaged in any illegal activity, other than a confidential informant’s tip, which was related through an officer from another jurisdiction. Lieutenant Hill testified he did not feel comfortable seeking a search warrant for appellant’s home based exclusively on the word of the informant, whom he did not know and never spoke to. Also, it was not until appellant was about to reenter his home through the back door that Deputy Isley entered the backyard, and it was only after Deputy Isley entered appellant’s backyard without appellant’s consent that he observed the potted marijuana plants on the mobile home’s back steps. According to Deputy Isley: “I noticed [the plants] after [appellant] actually pointed [them] out to me[;] again, I was more focused on [appellant] than I was the contraband.” Based on these facts, we conclude the sheriff’s officers did not have probable cause to believe the instrumentality of a crime or evidence of a crime would be discovered in appellant’s home or its curtilage. Therefore, the officers did not have probable cause to enter appellant’s backyard.

Even assuming probable cause existed, there also were not exigent circumstances such that obtaining a warrant was impracticable. ...

Hat tip to a reader who sent this in.

Permalink 01:03:28 am, by fourth, 152 words, 2285 views   English (US)
Categories: General

OH6: Under Fisher, clear and convincing evidence required when state relies on emergency aid exception

Police responded to a call about a child not breathing. After the child was taken to the hospital, the police reentered the house and searched, finding weapons and drugs. The reentry violated the Fourth Amendment because the exigency dissipated. State v. Laprairie, 2011 Ohio 2184, 2011 Ohio App. LEXIS 1863 (2d Dist. May 6, 2011):

[*P60] We glean from [Michigan v.] Fisher and the authorities it cites that, when relying on the emergency aid exception to the warrant requirement, the state assumes the burden to prove by clear and convincing evidence that officers were presented with a compelling need to enter a home or other private premises in order to provide immediate aid to persons inside who were either seriously injured or threatened with such injury. Furthermore, the officers must have had an objectively reasonable basis for believing that such a need to enter presently exists. A mere nexus to a need that formerly did exist is insufficient.

Permalink 12:52:49 am, by fourth, 328 words, 2281 views   English (US)
Categories: General

Two cases on protective sweep

It was not unreasonable for officers to look between a mattress and box springs of a bed during a protective sweep because fugitives often hide there. United States v. Jollivette, 2011 U.S. Dist. LEXIS 48642 (W.D. La. April 13, 2011):

Jollivette argues, however, that the officers could not have reasonably believed that he would be found under the mattress because a cursory inspection of the bed did not indicate that a person could be hiding between the mattress and box spring. The deputies' testimony, which the Court finds credible, refutes this claim. Each of the deputies testified that they have, on numerous occasions, found fugitives hiding under a bed or between the mattress and box springs of a bed. Accordingly, based on their experience in executing arrest warrants, it was reasonable for them to look for Jollivette between the mattress and box springs.

Furthermore, Deputy Gary testified that he always looks for fugitives in these places, and, in this case, looked under the bed and mattress in the bedroom which he searched. Likewise, Lieutenant Thomas testified that he generally pulls up the mattress, and then the box spring, in order to look under the bed. He does this because it is safer than stooping down to look under the bed first.

Unnamed untested informants' hearsay could not provide a legal basis for a protective sweep, which could be on reasonable suspicion. State v. Guggenmos, 350 Ore. 243, 253 P.3d 1042 (2011):

In sum, the record does not demonstrate that the reports of the unnamed informants to Mogle and Deese were credible or reliable. Bates requires that an officer’s suspicion of an immediate threat of serious injury be based on “specific and articulable facts.” 304 Ore. at 524. Those reports of the unnamed informants to Mogle and Deese do not satisfy that standard. Those reports are insufficient to support a reasonable suspicion that any of the occupants of the Third Street house posed an imminent threat of serious physical injury to the officers during Mogle's visit.

Permalink 12:40:59 am, by fourth, 299 words, 2917 views   English (US)
Categories: General

CA6: When it is apparent driver of a stopped car is not the person the police want, they have to let him go

While the officer had reasonable suspicion to pursue and stop defendant’s car, once they saw he was not the person identified in the radio report, he had to be let go. His subsequent crime, however, revived the reasonable suspicion, and a gun found in plain view was admissible. United States v. Galaviz, 645 F.3d 347, 2011 FED App. 0115P (6th Cir. 2011):

Although we agree that Webber had reasonable suspicion to pursue Galaviz’s car and to stop it to investigate whether it was the car involved in the robbery, once Webber observed Galaviz’s physical features and saw that he was a Hispanic male, and thus did not match the description of the robbery suspect as a black male or black female, the reasonableness of the suspicion was undermined. Indeed, Webber testified at the suppression hearing that Galaviz “looked like a Hispanic male,” and that he was able to clearly identify him as such in the available light. Webber further conceded that, because the robbery suspect identified in the radio transmissions was a black male or black female, identifying Galaviz as a Hispanic male constituted conclusive information that he was not a suspect in the robbery. See United States v. Jackson, 188 F. App’x 403, 410 (6th Cir. 2006) (unpublished) (holding that, even if police had probable cause to stop defendant's car based on purported similarity to the suspect’s vehicle, they should have immediately released him once they saw that his “physical appearance differed significantly from that of the suspect”).

Officers had reasonable suspicion that a particular Nissan would be carrying drugs. While the car was described as black and this one was dark green, the court does not find that material enough a mistake to undermine the reasonable suspicion. United States v. Benavides-Garcia, 2011 U.S. Dist. LEXIS 48644 (N.D. Ga. March 28, 2011).*

05/10/11

Permalink 01:59:25 pm, by fourth, 69 words, 2924 views   English (US)
Categories: General

Apple denies it tracks users of iPhone and iPad

On Politico: Apple tells [Rep.] Markey it doesn't track users:

Apple made it clear to Congress: We don’t track users’ locations.

That’s the message Apple had for Rep. Ed Markey (D-Mass.) in a letter responding to the lawmaker’s concern about information the company collects about consumers.

The popular tech company asserts that it has never tracked users’ locations and “has no plans to ever do so.”

Permalink 09:58:46 am, by fourth, 194 words, 2930 views   English (US)
Categories: General

S.D.Tex.: Defense counsel not ineffective for not filing a pro forma motion to suppress without saying what it would show

It is not ineffective assistance to not file a motion to suppress just because “it is ‘elementary to make motions to suppress.’” It is not. United States v. Gomez, 2011 U.S. Dist. LEXIS 48790 (S.D. Tex. May 1, 2011):

Gomez does not allege any basis for his claim that a motion to suppress should have been filed, other than it is “elementary to make motions to suppress.” His conclusory statements do not establish that the factual basis for the wiretap warrant was insufficient or that the federal agents relied on false or misleading statements to obtain the warrants. Counsel was not required to file a motion to suppress that had no legal basis. See Clark, 19 F.3d at 964 (counsel is not ineffective to failing to make frivolous objection).

Defendant was in front of a known drug house watching two others play cards on a trash can. Officers stopped to inquire and directed everybody to stop and not move. Defendant volunteered that he had a gun. The stop was reasonable and with reasonable suspicion considering the likely illegal card game and reputation of the house. United States v. Johnson, 2011 U.S. Dist. LEXIS 48662 (S.D. Ga. April 19, 2011).*

Permalink 04:09:59 am, by fourth, 153 words, 2933 views   English (US)
Categories: General

CA8: In wiretaps, Fourth Amendment particularity satisfied by identifying phone number and nature of conversations

“‘[I]n the wiretap context, [the Fourth Amendment’s particularity] requirements are satisfied by identification of the telephone line to be tapped and the particular conversations to be seized.’ United States v. Donovan, 429 U.S. 413, 427 n.15, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977). [¶] Title III’s particularity requirements must be distinguished from the Fourth Amendment’s particularity requirements. Id. Dubose’s case brings this distinction into sharp relief. Dubose does not allege that law enforcement’s wiretap application violated Title III’s particularity mandates, but, rather, the Fourth Amendment’s.” Identification of one telephone and drug trafficking conversations satisfied the Fourth Amendment. United States v. Gaines, 639 F.3d 423 (8th Cir. 2011).*

Once defendant conceded that a third party with authority to consent permitted entry into the hotel room, the smell of narcotics was apparent to the officers, and, thus, a plain view. That supported a later search warrant. United States v. Bullard, 645 F.3d 237 (4th Cir. 2011).*

Permalink 03:50:18 am, by fourth, 151 words, 2952 views   English (US)
Categories: General

Forbes: "Here’s What The GPS Devices Used By The FBI To Track Your Car Look Like"

On Forbes.com: Here’s What The GPS Devices Used By The FBI To Track Your Car Look Like:

With GPS tracking all over the news after it was reported that iPhones, smartphones, and other mobile devices were tracking user’s movements, fix-it-yourself website ifixit added their grain of salt by performing one of their now-famous teardowns on an FBI tracking device mounted on animal rights and environmental activist’s car by federal agents calling her a “left-wing anarchist.”

The interesting teardown of the FBI’s tracking device comes amid a heightened debate on privacy laws and organizations’ capacity to track users and citizens’ movements. Beyond the GPS tracking scandal that hit Apple and the continued debate over Google’s location information, the issue has gone onto federal forums with the Obama administration pushing to get law enforcers cleared of the need for a warrant to track citizens, according to Wired.

Permalink 03:41:12 am, by fourth, 135 words, 2908 views   English (US)
Categories: General

AR: Nighttime search justified by CI's information defendant was cleaning up meth operation and burning remains

A nighttime search was justified under state law because the CI told the officer that the defendant was “cleaning up” the crime scene by “tending to” a burn barrel to get rid of evidence of a meth lab. Fowler v. State, 2011 Ark. App. 321, 2011 Ark. App. LEXIS 350 (May 4, 2011).*

Police had information of a marijuana grow, and they approached the defendant’s property, but they were deterred by dogs. Instead, they procured a National Guard helicopter for a flyover seeing marijuana plants. [Without discussion,] Defendant’s wife consented to a search of the property. Populis v. State, 2011 Ark. App. 334, 2011 Ark. App. LEXIS 358 (May 4, 2011).*

Defendant’s traffic stop was justified for swerving, as shown by the video. He unequivocally consented to a search after the stop. United States v. Sierra, 2011 U.S. Dist. LEXIS 48440 (M.D. Ala. April 19, 2011).*

05/09/11

Permalink 11:36:27 am, by fourth, 388 words, 3072 views   English (US)
Categories: General

LAT: "State to double crime searches using family DNA"

LATimes today: State to double crime searches using family DNA: California's success in using 'familial searching' spurs Atty. Gen. Kamala Harris to increase funding for the controversial genetic sleuthing technique in rape, murder and cold cases By Maura Dolan.

A young man followed a woman into a coffee shop as she prepared to open for business at 6 a.m. He put a knife to her throat, sexually assaulted her, barricaded her in a walk-in refrigerator and grabbed cash from the register before vanishing.

The March 2008 attack near the Santa Cruz Harbor in a low-crime neighborhood unnerved the community and spawned an intense police hunt.

"It is the kind of attack that communities most fear — a stranger attacking somebody who truly is just an innocent victim going about their lives," said Santa Cruz Deputy Police Chief Steve Clark.

Police dogs, fliers containing a composite sketch of the suspect and a search of the DNA offender database failed to net a suspect — until the state earlier this year traced the suspect through the DNA of his father, a felon whose genetic profile was stored in the database.

On a related note, on Friday, May 13th is a CLE at the Cyril H. Wecht Institute of Forensic Science and the Law at Duquesne University:

The Changing Face of DNA: The Science, Law and Ethics of Familial Searches

In the wake of California's Grim Sleeper case and amidst the deepening debate over the use of "familial DNA" searches, in which investigators look for close-but-not-exact matches between DNA evidence collected at crime scenes and data banks of DNA collected from convicted felons, the Institute and the Bayer School will convene legal, scientific and investigative experts to weigh the pros and cons of this controversial issue.

Confirmed speakers include Mark Perlin, M.D., Ph.D., CEO and chief scientific officer of DNA testing firm Cybergenetics; Rock Harmon, DNA evidence authority and former district attorney of Alameda County, CA; Lisa B. Freeland, Federal Public Defender, Western District of PA; Ronald Freeman, former commander of investigations for the Pittsburgh Bureau of Police; Pete Marone, M.S., director of the Virginia Department of Forensic Sciece; and Jay Aronson, Ph.D., professor of history at Carnegie Mellon University and author of Genetic Witness: Science, Law, and Controversy in the Making of DNA Profiling.

Additional speakers to be announced.

Permalink 11:11:00 am, by fourth, 101 words, 2948 views   English (US)
Categories: General

WaPo: "Lawmakers look at phone tracking"

In the Senate today: Lawmakers look at phone tracking:

Tech companies such as Apple and Google are hoping the tracks of millions of mobile device users will lead to billions of dollars in revenue.

But where they see dollar signs, lawmakers see red flags.

The revelation last month that Apple’s iPhones collected location data and stored it for up to a year — even when location software was supposedly turned off — has prompted renewed scrutiny of the nexus between location and privacy.

If information exists, and law enforcement knows about it, they will seek. "If you build it, he will come."

Permalink 05:49:31 am, by fourth, 187 words, 2990 views   English (US)
Categories: General

WY: IP address was PC for a CP search warrant off Limewire monitoring

The officer was monitoring Limewire computer traffic for child pornography, and he discovered downloads from an IP address. There was a “put and paste” error in the search warrant application that created a date error, but it was found to be a simple mistake, not subject to exclusion. The investigation revealed defendant’s IP address was used to download child pornography, and the four corners of the affidavit objectively showed probable cause to a reasonable careful person for a search warrant of defendant’s house for his computers. Defendant also raised a Brady issue at the suppression hearing, but he got no ruling on it before the conditional plea, and it was not preserved in the conditional plea for appeal. Lefferdink v. State, 2011 WY 75, 250 P.3d 173 (2011).*

A police officer seeing a knife does not have reasonable suspicion to believe that a knife is a “gravity knife” [one where the blade opens by gravity or flipping the wrist or a switchblade]. A plain knife is legal, but a gravity knife is not. People v Brannon, 2011 NY Slip Op 3676, 16 N.Y.3d 596, 925 N.Y.S.2d 393, 949 N.E.2d 484 (2011).*

05/08/11

Permalink 07:24:39 am, by fourth, 160 words, 3043 views   English (US)
Categories: General

CA6: Use of a flash bang device during a search was not unreasonable in 2004, and it still isn't because court doesn't decide

Factual disputes precluded summary judgment on an unreasonable search and excessive force claim where officers entered with a battering ram without knocking and used flash bang devices. As to the latter, the officers get qualified immunity because no case at the time of the search held flash bang devices unreasonable. [And, this court isn’t going to even decide that question (so there never will be a case in point).] Marmelshtein v. City of Southfield, 421 Fed. Appx. 596, 2011 FED App. 0283N (6th Cir. 2011) (unpublished).*

Defendant was arrested as an “internet traveler” who showed up for sex with a minor. Because the chat sessions talked about his bringing condoms and candy, the officers could search the vehicle under the automobile exception. United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011).*

The court of appeals failed to grant deference to the trial judge’s findings of fact, where the facts were in dispute. Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011) (with dissent).

Permalink 07:10:49 am, by fourth, 334 words, 3732 views   English (US)
Categories: General

N.D.Iowa: Stop was without reasonable suspicion, so consent was tainted

Officers saw a vehicle parked on the side of the four lane road. It was not illegally parked, and the officers claimed information that maybe they were stopped to dump trash, but there was no trash. There was no reasonable suspicion for a stop. Defendant’s consent was tainted by this illegal stop. United States v. Corona-Torres, 2011 U.S. Dist. LEXIS 47998 (N.D. Iowa April 20, 2011).*

Defendants were stopped and not free to go, but there was reasonable suspicion. Defendants refused consent, so the use of a drug dog was not unreasonable, and that developed probable cause. United States v. Benedict, 2011 U.S. Dist. LEXIS 47970 (D. Neb. February 18, 2011)*:

An unusual nervousness on the part of Benedict, a failure of memory as to his wife's name, the divergence of travel plans expressed by Benedict and Robyn, and the divergence of family history expressed by Benedict and Robyn, all contributed to Trooper Hayes' suspicion of criminal activity. The court finds such suspicions to be reasonable as would justify a further detention. At first, Benedict's detention was voluntary as Benedict agreed to talk with Trooper Hayes about contraband matters. While initially indicating he might permit a search, Benedict was clear when asked to sign a consent to search that he did not consent to the Cadillac being searched. When Benedict refused consent to search, Trooper Hayes detained Benedict and the Cadillac for a canine sniff. It is clear that Benedict and Robyn were both detained on the side of the Interstate along with the Cadillac. It would be absurd to say that Benedict and Robyn were “free to go” when there was no practical way to leave the scene of the stop.

The search warrant in this case was issued with probable cause, and defendant did not show that Leon’s exceptions would make the search invalid. Because the search was with a warrant, the question of whether defendant was on the curtilage at the time of arrest was moot. United States v. Norris, 640 F.3d 295 (7th Cir. 2011).*

Permalink 06:47:36 am, by fourth, 310 words, 2937 views   English (US)
Categories: General

S.D.Ohio: Error in date of warrant was correctable at suppression hearing

The government succeeded in showing that the mistake on the date on the warrant was an accidental misdating by the issuing judge, and the warrant was actually served after it was issued, not before. Typographical or scrivener’s errors in dates are correctable at the suppression hearing. United States v. Bigi, 2011 U.S. Dist. LEXIS 47757 (S.D. Ohio April 29, 2011):

The Government characterizes the dating confusion as a “comedy of errors.” The Court sees no comedy. Nevertheless, while the numerous dating issues comprising the “comedy of errors” are unprofessional, the evidence presented at the reopened hearing, including the documentary evidence corroborating the time-line of events, credibly demonstrates that all the affidavits and warrants were all executed on July 24, 2009, and those affidavits and warrant which are dated July 29, 2009, were actually executed on July 24, 2009, and the mis-dating is the result of clerical error by Judge Moore. As set forth in the Court’s previous Order, mere clerical errors do not render unconstitutional the search conducted pursuant to the mis-dated warrants. See Knott v. Sullivan, 418 F.3d 561, 569 (6th Cir. 2005) (citing United States v. Durk, 149 F.3d 464, 465 (6th Cir. 1998)). Moreover, upon the testimony at the re-opened hearing, Detective Brown’s July 29, 2009 narrative entry does not negate the truth underlying the Court’s fundamental conclusion that all the affidavits and warrants were executed on July 24, 2009.

Search warrant for premises in a child pornography case was particular enough and not subject to suppression under the good faith exception. While there was an “in-law suite” inside, that was unknown to the officers from their investigation that the house was in a neighborhood of single family dwellings, the mailbox did not indicate multiple occupants, and a public records search did not reveal multiple occupants. Even once inside, it was not apparent because of unlocked doors to the suite. United States v. Axelrod, 2011 U.S. Dist. LEXIS 47586 (D. Md. April 29, 2011).*

05/07/11

Permalink 02:54:54 pm, by fourth, 56 words, 3000 views   English (US)
Categories: General

NPR: "Are Your Gadgets Spying On You?"

From NPR's Science Friday: Are Your Gadgets Spying On You?

Your smart phone and your car's GPS may know where you are and where you've been--what happens to that data once it's collected? Ira Flatow and guests discuss consumer privacy and electronic devices. What data can companies legally collect and with whom can they share it?

Permalink 09:18:06 am, by fourth, 226 words, 2948 views   English (US)
Categories: General

KY: Defendant who got out of car and locked it with remote was “recent occupant” for SI

Defendant was approached in his car because of outstanding warrants. He got out of the car as police approached him and tossed a bindle of drugs. He was a “recent occupant” of the car for search incident purposes, and he demonstrated control of the car by locking the door with the remote as he got out. Robbins v. Commonwealth, 336 S.W.3d 60 (Ky. 2011).

Nervousness alone not enough for reasonable suspicion, but here there was more. Worthy v. State, 91 So. 3d 762 (Ala. Crim. App. 2011), later proceeding at, 2011 Ala. Crim. App. LEXIS 159 (Ala. Crim. App., July 15, 2011)*:

The nervousness Allen and Smitherman detected from Worthy and his passenger is by itself insufficient to create a reasonable suspicion justifying further detention. Nonetheless, this nervous behavior combined with Worthy’s evasiveness regarding the identity of his passenger, the conflicting stories by Worthy and his passenger regarding the starting point of their trip, Worthy’s failure to disclose his prior marijuana arrest, and the fact that the rental car Worthy was driving was three days overdue combine to create a reasonable suspicion of concealment of criminal activity.

Defendant was essentially a squatter selling drugs in one of the places searched, so he had no standing. The owner told the police it was vacant at the time of the search. United States v. Solomon, 2011 U.S. Dist. LEXIS 48010 (M.D. N.C. May 4, 2011).*

Permalink 08:52:55 am, by fourth, 396 words, 3336 views   English (US)
Categories: General

N.D.Ohio: No contact order deprived defendant of standing

A person under a no contact order has no standing when he’s found where he was ordered not to be there. United States v. Dye, 2011 U.S. Dist. LEXIS 47287 (N.D. Ohio April 27, 2011):

While not binding, the Court finds the decision in Morrison [Commonwealth v. Morrison, 429 Mass. 511, 710 N.E.2d 584 (1999)] to be instructive. It seems incredible that the defendant could maintain that he had a reasonable expectation of privacy in the home of a person with whom he had been ordered by the court to have no contact. At the motion hearing, defense counsel attempted to distinguish this persuasive authority on the ground that the protective order in this case did not prohibit the defendant from being present at the Fairlawn property, rather it merely prohibited contact with Ms. Butler. Counsel further noted that, even if this prohibition effectively meant that the defendant must not enter the Fairlawn property, “[t]he inability to be present at that point in time, [... did not] change the fact that that’s still his residence.” (TR at 45.) The fact remains, however, that the protection order prohibited contact with the owner of the Fairlawn residence, who resided at the Fairlawn residence with her son. Because the defendant’s presence in the Fairlawn residence was likely to bring him in contact with the subject of the no contact order, he was prohibited from being at the residence; this is particularly so because Butler was at the residence at all times relevant to the search. The Court therefore finds that, at the time of the search, the defendant did not have a reasonable expectation of privacy that society is prepared to recognize. As such, the defendant lacks standing to challenge the search.

The court also said:

The Court begins by noting that, in reviewing the defendant’s motion [to suppress], the facts must be viewed in a light most favorable to the government. United States v. Wellman, 185 F.3d 651, 654-55 (6th Cir. 1999); United States v. Williams, 962 F.2d 1218, 1221 (6th Cir. 1992); United States v. Oliver, 126 F. Supp. 2d 495, 500 (S.D. Ohio 2000).

This should be true only to the extent of which side carries the burden of proof. If there was a search warrant, the presumption of regularity applies. If there wasn’t, the government carries the burden of proof, so the facts should not be viewed most favorably to it in the motion.

Permalink 08:41:45 am, by fourth, 588 words, 3321 views   English (US)
Categories: General

D.P.R.: SW for trace evidence of homicide could not, and need not, be more particular

A search warrant for trace evidence of a homicide in a car was sufficient under the particularity requirement. How much more precise could it be? United States v. Burgos-Montes, 2011 U.S. Dist. LEXIS 47046 (D. P.R. February 28, 2011):

It is known that insofar as trace evidence of a homicide, no matter how much someone tries to clean up a crime scene, something is generally left behind, even if not always easily detected. Geared to find this evidence, forensics examines a particular crime scene for the so called trace evidence of a crime. Such evidence can be a number of things, from hair follicles, DNA samples, glass, dirt, plant, foreign objects to the particular site under examination or absence of certain objects that are expected to be found at the site, with consideration of any possible cross transfers that could have occurred from a person to person contact or a site to person contact. Although must forensic of a homicide would center on fingerprints, fibers, hair specimens or DNA samples of any bodily secretions, it could easily assist to find other items, as well, depending on the time frame and the nature of the offense.6

6 Trace evidence of a crime may be related to glass, paint, dirt or dust, pollen, leaves or roots, seeds, as well as a general category of trace evidence which in relation to other evidence may assist in identifying the commission of an offense, including tool marks and ballistics, surface indentations and particles subject to gas chromatography.

The particularity requested by defendant in regards to the trace evidence requested in the search warrant of the black Chrysler Sedan vehicle at issue may encompass residues of different kinds, marks, fabric, prints, grime or minute traces of elements which may subsequently be subject of forensic analysis. Still, it is not a generalized search, but one limited to a particular item, the Chrysler black sedan with license plates GIG-001, which examination may have required sampling of minute traces of evidence requiring further scientific analysis.

The warrant at issue cannot be invalidated as a general warrant for it does not vest the executing officers with unbridled discretion to conduct an exploratory rummaging through defendant’s property in search of criminal evidence. Rather, the warrant’s clauses describe in both specific and inclusive generic terms what is to be seized: “evidence or traces of evidence relevant to the homicide of Madeline Semidey Morales” in relation to a particular crime. By directing the searching officers to seize all of these items, the Magistrate Judge, rather than the officers, determined what was to be seized. Christine, 687 F.2d at 753.

As argued by the government relying on Atwell, it is “perfectly logical for the officers to search for items such as ... blood, hair, fibers, fingerprints, items of identification, personal possessions, receipts or the like, since those items might well link [defendant] to [Morales-Semidey], at or near the time of [her] disappearance. Atwell, 289 F.Supp 2d at 636. The circumstances of this case and the nature of the crime being investigated limited the parameters of the relevant evidence.

Furthermore, Christine “made clear that search warrants and their supporting affidavits are to be judged ‘in a commonsense and realistic fashion.’” Atwell, 289 F.Supp.2d 629, 635. “The use of generic classifications in a warrant is therefore sufficient to delineate the categories of items to be seized when, due to the circumstances of the investigation, a more precise description is not feasible.” Christine, 687 F.2d at 753.

Related case: United States v. Montes, 2011 U.S. Dist. LEXIS 47141 (D. P.R. May 2, 2011).

Permalink 07:46:15 am, by fourth, 189 words, 2915 views   English (US)
Categories: General

CA6: In SI, it is how defendant could have got to part of car searched, not how officer actually did

In a search incident case, the question is not how the officer accessed the area of the car where the gun was found, it was how the defendant could have. Here, the officer opened the back of a hatchback, but it was accessible from inside, too. [This is also a Gant non-retroactivity case.] United States v. Sain, 421 Fed. Appx. 591, 2011 FED App. 0287N (6th Cir. 2011) (unpublished):
http://www.ca6.uscourts.gov/opinions.pdf/11a0287n-06.pdf

But the question is not how [officer] Beaver chose to access the area, but rather how an occupant of the vehicle could have accessed it. See Pino, 855 F.2d at 364. Here, Beaver testified that he could have accessed the hatchback area from inside the vehicle, but as a matter of convenience, he chose to open the hatch from outside.

In a “fighting words” case where the plaintiff was arrested for calling the officer a “bitch,” the officer arresting him for disorderly conduct had probable cause under the Fourth Amendment and could rely on the presumptive constitutionality of the statute under the First Amendment in making the arrest. Harrison v. Deane, 426 Fed. Appx. 175 (4th Cir. 2011).*

05/06/11

Permalink 05:18:57 am, by fourth, 156 words, 2857 views   English (US)
Categories: General

OH6: Where defendant consented to a search of his car and nothing was found, RS dissipated, and he should have been released

An officer observed the defendant sitting in a car at 2 am behind a bar for five minutes, so the officer approached him and saw him put his hand under his leg. The officer asked for consent to search the car, got it, and found nothing. Then he asked for consent to search the defendant. Any reasonable suspicion was gone when the first consent search turned up nothing, and the defendant should have been released. The evidence should have been suppressed. State v. Cajka, 2011 Ohio 2080, 2011 Ohio App. LEXIS 1759 (6th Dist. April 29, 2011).*

Probable cause to stop came from defendant’s invalid vehicle tag and weaving. After the stop, the officer observed he was DWI. Murrell v. State, 2011 Ark. App. 311, 2011 Ark. App. LEXIS 344 (April 27, 2011).*

The evidentiary value of a gun was immediately apparent to the officers where defendant was a known felon. Therefore, its seizure was valid. United States v. Russell, 2011 U.S. Dist. LEXIS 46018 (E.D. Pa. April 27, 2011).*

Permalink 05:03:15 am, by fourth, 192 words, 2892 views   English (US)
Categories: General

MA: While it may be legal to carry a weapon, it is still likely RS

While people can lawfully carry weapons with a carry permit in Massachusetts, that does not mean that there is no reasonable suspicion when officers see a person apparently grasping a gun. Here, the officers said “drop it” and defendant fled. Commonwealth v. Powell, 459 Mass. 572, 946 N.E.2d 114 (2011):

While “the mere fact of carrying a weapon does not give rise to reasonable suspicion that the person is carrying it unlawfully (because many people register their weapons and carry them lawfully) ... the fact of concealment of the weapon ... gives rise to such reasonable suspicion.” Commonwealth v. Franklin, supra at 823 n.3, and cases cited. Thus, at the time Officer Blas commanded the defendant to drop his weapon, Officer Blas, as the police in Commonwealth v. Franklin, supra at 823, had reasonable suspicion (and also probable cause) that the crime of illegally carrying a firearm had been committed. See Commonwealth v. Sykes, 449 Mass. 308, 314-315, 867 N.E.2d 733 (2007) (stop of defendant based on reasonable suspicion when, in high crime area where large group had congregated, defendant attempted to avoid contact with police and clenched waistband while he ran). There was no error in denying the motion to suppress.

Permalink 04:54:13 am, by fourth, 397 words, 3174 views   English (US)
Categories: General

ID: Dog's failure to fully alert does not dissipate probable cause already there

Where officers have probable cause already, the failure of a drug dog to alert does not per se dissipate the probable cause. State v. Anderson, 2011 Ida. App. LEXIS 29 (April 28, 2011):

We have located no decisions with the precise facts presented here; however, numerous cases discuss the impact on a probable cause determination of a drug dog’s failure to alert. These courts generally hold that a drug dog’s failure to alert is but one factor to be considered. Illustrative of the cases is then--Judge Breyer’s opinion in United States v. Jodoin, 672 F.2d 232 (1st Cir. 1982), which holds that a “dog’s failure to react does not ... destroy the ‘probable cause’ that would otherwise exist. It is just another element to be considered.” Id. at 234-236 (holding that officers’ actions did not violate the Fourth Amendment when, supported by probable cause, they held defendant’s suitcase for several days, even though “a detector dog sniffed the suitcase but the dog did not signal the presence of narcotics”). See also United States v. Ramirez, 342 F.3d 1210, 1213 (10th Cir. 2003) (“We will not require investigators to cease an otherwise reasonable investigation solely because a dog fails to alert, particularly when we have refused to require that a dog sniff test be conducted at all.”); United States v. Gill, 280 F.3d 923, 926 n.3 (9th Cir. 2002) (denying defendant’s suppression motion although a drug “dog did not alert” and noting that drug dogs “are not trained to detect PCP or methamphetamine due to the risk these substances pose to the dogs”); United States v. Glover, 104 F.3d 1570, 1577 (10th Cir. 1997) (“[Defendant] relies on a line of cases holding that probable cause is established once a drug dog alerts on a package for the mistaken proposition that absent such an alert, officers are not entitled to detain the package any further. Contrary to [defendant’s] assertion, drug-detecting dogs have not supplanted the neutral and detached magistrate as the arbiter of probable cause.”); United States v. Frost, 999 F.2d 737, 744 (3rd Cir. 1993) (“When one includes both the fact that the drug sniffing dog did not alert to the suitcase and the fact that drug couriers often mask the scent of drugs in suitcases so that a drug sniffing dog will not alert, the failure to alert to the suitcase is not inconsistent with the substantial probative thrust of information which [the officer] did include [in the warrant].”).

Permalink 04:47:46 am, by fourth, 107 words, 2946 views   English (US)
Categories: General

CA9: Officers who targeted lawyer for drug smuggling into prison at least had qualified immunity in their snitch based case

Officers using a snitch set up a sting operation to deliver meth to a lawyer. The snitch said the lawyer was smuggling drugs into prison on client visits. The lawyer’s office was raided and he was arrested but not prosecuted. The officers had qualified immunity because the officers at least had probable cause based on the totality. Garcia v. County of Merced, 09-17188 (9th Cir. May 5, 2011).*

Seeing a pistol grip sticking from defendant’s waistband was reasonable suspicion for a stop at gunpoint. His name was run, and two fugitive warrants came up. The stop was valid. State v. Dickerson, 65 So. 3d 172 (La. App. 5th Cir. 2011).*

05/05/11

Permalink 03:53:29 pm, by fourth, 184 words, 2211 views   English (US)
Categories: General

CBS NY: "Consumer Alert: TomTom Reportedly Sold GPS User Data To Police To Target Motorists"

CBS New York Radio: Consumer Alert: TomTom Reportedly Sold GPS User Data To Police To Target Motorists:

NEW YORK (WCBS 880) - You know what your GPS device is telling you, but do you know how the company is using that information?

TomTom had admitted that it provided data to police in the Netherlands.

Jeff Bartlett of Consumer Reports says, “The police are using the information not only to determine traffic flows, but reportedly, they’re also using it to set up speed traps.”

After being caught, the company apologized and said individual privacy was never jeopardized. They also say this was not done in the United States.

Right.

And, unless you’ve been sleeping for the last three years, you know that GPS devices can be seized by the police and download one’s trips when it has been on.

It boggles the mind how the police can screw the public with technology. It boggles the mind more when the oddsmakers have a cert grant in Jones/Maynard at 3-2. I’m trying to be optimistic here.

Update: I made the oddsmakers stuff up.

Permalink 05:43:36 am, by fourth, 411 words, 2952 views   English (US)
Categories: General

D.Md.: Officers could ask about travel plans even for a burned out license plate bulb

A burned out license plate bulb justified the stop of defendants’ vehicle, and the stop was not so minor that the officers could not ask about travel plans. The situation ripened to reasonable suspicion. The dog sniff was a de minimus extension of the stop by one minute. United States v. Batista, 2011 U.S. Dist. LEXIS 46480 (D. Md. April 26, 2011)*:

While the stop was brief, the Defendants contend that the officers unnecessarily extended it by questioning the men. Their argument centers on the minor nature of the driving infraction. A burned out license plate light does not warrant questioning motorists about their travel plans, they posit. The Court disagrees. The “traditional incidents” test is designed in part to create a bright-line rule that avoids a minute inquiry into every question asked and every action taken. Moreover, there is no rule that requires the police to limit their inquiry in light of the infraction. A motor vehicle stop is a Terry stop entitling the police to ask routine questions such as who owns the car, where the men are going, and whether the driver has a license. See, e.g., United States v. Dunbar, 553 F.3d 48, 56 (1st Cir. 2009).

The Defendants also argue that the scan itself unreasonably extended the duration of the stop. The Court rejects this argument for several reasons. First, the short duration of the stop also dooms this theory. Second, the scan only extended the stop for one minute. Thus, any intrusion on the Defendants’ Fourth Amendment rights was de minimis. Third, by the time Cpl Arminger decided to scan the car, the officers suspected a serious drug violation and not merely a burned out bulb. Among other things, the officers had taken note of the unusual spraying of cologne, the lack of luggage, the contradictory answers of the men, and Batista’s criminal history. Taken together, these facts justified extending the stop so that the officers could investigate their suspicions. See United States v. Mason, 628 F.3d 123 (4th Cir. 2010).

Defendant’s RV crossed the fog line three times, and that justified his stop. During the stop, a few questions were asked about bicycles attached to the back, and they were consensual. Since the defendant was a man in his 70's and traveling alone, the officer’s suspicions were aroused by the way the defendant answered. The defendant then consented to a search of the interior of the RV. United States v. Osborne, 2011 U.S. Dist. LEXIS 46777 (D. Kan. May 2, 2011).*

Permalink 04:55:23 am, by fourth, 216 words, 2973 views   English (US)
Categories: General

D.Ariz.: There is no absolute right for defense to see complete unredacted drug dog certification file

There is no absolute defense right to see the full unredacted records of the drug dog’s certification records. United States v. Thomas, 2011 U.S. Dist. LEXIS 45989 (D. Ariz. February 18, 2011):

Defense counsel objected to the admission of redacted canine certification records on the grounds that the redacted records are insufficient to establish the reliability of the canine team that conducted the search in this case. Counsel cites United States v. Cedano-Arellano, 332 F.3d 568, (9th Cir. 2003), in support of his position. However, in Cedano-Arrellano the trial court had denied the defense motion for any discovery of the canine certification records. The government correctly argues there is precedent in this district for denying a defense request to view unredacted canine certification records and precedent for a court’s reliance on redacted canine certification records.

This court recommends that the District Court rule that the redacted canine certification reports (Exhibit 2) are admissible and deny the defense motion to discover those unredacted reports. The redacted reports establish the reliability of the canine team.

Probable cause and the automobile exception permitted a search under the hood and behind the gas filler door where guns and drugs were found. The defendant had been seen dealing drugs out of the car in the recent past. United States v. Goncalves, 642 F.3d 245 (1st Cir. 2011).*

Permalink 04:31:13 am, by fourth, 196 words, 2925 views   English (US)
Categories: General

AL: Private person conducted first search looking for abandoned animals, and later police assist was not to search

The cutting off a padlock with a bolt cutter was done by a private person for a private purpose of looking for abandoned animals. The police arrived shortly thereafter and entered to assist in the private search in case there was trouble. Stanley v. State, 2011 Ala. Crim. App. LEXIS 24 (April 29, 2011).*

Defendant was stopped for a traffic offense, after a few strange moves of the vehicle compared to his explanation about looking for gas. He consented to the officer looking at his gas gauge, and, in the front seat, the officer saw a package which he believed would have contained drugs. He did not need to conclusively know, just have probable cause, and the officer’s having seen similar packages with drugs five times before was enough likelihood for probable cause. People v. Sinegal, 2011 Ill. App. LEXIS 400 (March 30, 2011), published April 28, 2011. Another copy at People v. Sinegal, 409 Ill. App. 3d 1130, 350 Ill. Dec. 628, 948 N.E.2d 1135 (2011).

Because the property that the police approached was being used for illegal purposes and not being used as a home, none of the people there had a reasonable expectation of privacy. United States v. Rivas, 2010 U.S. Dist. LEXIS 142827 (W.D. Tenn. November 15, 2010).*

05/04/11

Permalink 04:33:45 pm, by fourth, 15 words, 3000 views   English (US)
Categories: General

CNN.com: Former Miss USA says she feels "violated" by a TSA patdown

Former Miss USA says she feels "violated" by a TSA patdown. Video on CNN.com.

05/03/11

Permalink 08:07:41 am, by fourth, 198 words, 2307 views   English (US)
Categories: General

OH2: Frisk is automatic when drug trafficker is encountered because of likelihood of weapons

“The right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed.” State v. Evans, 67 Ohio St.3d 405, 413, 1993 Ohio 186, 618 N.E.2d 162 (1993). State v. Alcorn, 2011 Ohio 2058, 2011 Ohio App. LEXIS 1762 (2d Dist. April 29, 2011).

Defense counsel was ineffective for not objecting to a parole search where the parole condition was not properly imposed against the defendant. State v. Blackshear, 2011 Ohio 2059, 2011 Ohio App. LEXIS 1766 (2d Dist. April 29, 2011).*

An officer responding to a drive-by shooting report involving a silver car saw a silver car within three minutes of the report. The officer had defendant out of the car and wanted to “frisk” the car for a possible weapon, and, if no weapon was found, the defendant would have been free to go. No other silver cars were seen. The stop and “frisk” of the car was valid. State v. Carr, 2011 Ohio 2061, 2011 Ohio App. LEXIS 1776 (2d Dist. April 29, 2011).*

Defendant was stopped for a traffic offense, and his DL was suspended. Under Ohio law, his license plate was confiscated, and that led to impoundment of the vehicle and its inventory. State v. Grigsby, 2011 Ohio 2062, 2011 Ohio App. LEXIS 1777 (2d Dist. April 29, 2011).*

Permalink 07:48:04 am, by fourth, 211 words, 2009 views   English (US)
Categories: General

CA9: Description of CP in SW did not have to be better than it was

The FBI’s description of the child pornography to be seized could not be better described than it was, and the government did not unreasonably delay in searching defendant’s computer. United States v. Ivers, 430 Fed. Appx. 573 (9th Cir. 2011):

The FBI could not have provided a more specific description of the items sought because, as in prior cases, the government knew that Ivers had received pornographic images “but had no way of knowing where the images were stored.” United States v. Hay, 231 F.3d 630, 637 (9th Cir. 2000). The warrant was limited to items related to the crime, and the supporting affidavit explained the necessity of seizing electronic storage devices for later examination. See Hill, 459 F.3d at 976 (noting that officials must explain “why a wholesale seizure is necessary”).

A dog alert was enough to refer a vehicle for secondary inspection at the border. United States v. Thomas, 2011 U.S. Dist. LEXIS 45928 (D. Ariz. April 27, 2011).*

On the totality of the circumstances, the Border Patrol officer had reasonable suspicion to stop defendant’s vehicle on a rural road near the border that was an area of low population and the vehicle didn’t look like it belonged to any of the local residents. United States v. Castro-Rios, 2011 U.S. Dist. LEXIS 45921 (D. Ariz. March 31, 2011).*

05/02/11

Permalink 08:40:02 pm, by fourth, 256 words, 1978 views   English (US)
Categories: General

CA10: While Fourth Amendment was violated by stops of customers coming from a bar, qualified immunity applied

While the officer who stopped customers coming from a bar violated the Fourth Amendment just for sobriety roving checkpoints, he was entitled to qualified immunity because the law was not clearly established. Kozel v. Duncan, 421 Fed. Appx. 843 (10th Cir. 2011) (unpublished)*:

We conclude that the district court erred in applying the closely-regulated industries exception to the warrant requirement. The entries into Wranglers were not “administrative inspections designed to enforce regulatory statutes.” New York v. Burger, 482 U.S. 691, 700 (1987). Rather, given the reports of underage drinking in Wranglers, officers entered in a traditional investigatory capacity for “gathering ... criminal evidence” and enforcing the penal laws. Id.; see also id. at 712-13 (stating that “[a]dministrative statutes and penal laws may have the same ultimate purpose of remedying the social problem, but they have different subsidiary purposes and prescribe different methods of addressing the problem”). Consequently, because this case does not involve administrative inspections, “the well-established exception to the warrant requirement for administrative inspections of ‘closely regulated’ businesses,” id. at 712, does not apply. Cf. Ferguson v. City of Charleston, 532 U.S. 67, 83 n.21, 86 (2001) (holding that hospital’s administration of urine tests to detect cocaine use by pregnant women implicated the Fourth Amendment, and noting that the tests were not analogous to administrative inspections because they were “specifically designed to gather evidence of violations of penal laws”).

. . .

Thus, even though there was a Fourth Amendment violation in detaining Wranglers’ patrons for sobriety checks, because Fourth Amendment law did not clearly establish the illegality of that conduct, Sheriff Duncan is entitled to qualified immunity.

Permalink 08:26:15 pm, by fourth, 129 words, 2015 views   English (US)
Categories: General

CT: Report of a person on fire in a house is an exigent circumstance for a police entry

Report of a person on fire in a house is an exigent circumstance for a police entry. State v. Langley, 128 Conn. App. 213, 16 A.3d 799 (2011).

Probable cause was evidence from a named CI as a source of information that defendant was involved in child pornography on his computer. She saw a notebook near the computer with URL’s suggestive of child porn websites. When he was confronted about the websites, he just threw the notebook away, but she saw an extra hard drive hidden in the house. State v. DiMeco, 2011 Conn. App. 198, 15 A.3d 1204 (2011).*

The police entered through an unlocked gate of a six foot high chain link fence to conduct a knock and talk. This did not violate the Fourth Amendment. Nieminski v. State, 60 So. 3d 521 (Fla. 2d DCA 2011).*

Permalink 08:12:18 pm, by fourth, 199 words, 2276 views   English (US)
Categories: General

FL1 declines to follow Ohio's Smith and finds that cell phone is subject to search incident as a "container"

FL1 declines to follow Ohio’s Smith case and holds that a cell phone can be the subject of a search incident. The case surveys many cases on both sides of the issue. Smallwood v. State, Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011):

While Chimel, Robinson and Belton permitted the search and inspection of items within the arrestee’s reach, including containers, none of these cases required an item to be a “container,” as opposed to some other type of item, in order to be searched upon arrest. Thus, whether or not a cell phone is properly characterized as a traditional “container” is irrelevant to whether or not it is searchable upon arrest. The Supreme Court has clearly and repeatedly found that anything found on an arrestee or within an arrestee’s immediate control may be searched and inspected upon arrest. There is nothing in the language of any of these cases that would permit this court to find an exception for cell phones. Therefore, we reject the reasoning of the Ohio supreme court which found cell phones were not searchable incident to arrest because they were not traditional “containers.” Smith, 124 Ohio St. 3d 163, 2009 Ohio 6426, 920 N.E.2d 949.

Permalink 07:29:09 pm, by fourth, 421 words, 2073 views   English (US)
Categories: General

D.S.C.: Maynard's reasoning is "attractive," but this court isn't going there yet

While “[m]uch of the reasoning in Maynard is attractive,” the court declines to require a search warrant to install a GPS on defendant’s vehicle, copping out to let a higher court [the Fourth Circuit? Ha! SCOTUS will get it first.] United States v. Narrl, 2011 U.S. Dist. LEXIS 45595 (D. S.C. April 27, 2011):

Much of the reasoning in Maynard is attractive. For example, in distinguishing Knotts, the court explained that protracted GPS monitoring of a vehicle’s movements from a computer provides law enforcement with vast amounts of information about a person’s life, by showing law enforcement all of that person’s movements over a long period of time. In contrast, the tracking device in Knotts was less intrusive as it was only useful as an aid to visual surveillance, because law enforcement needed to remain close by in order to receive the signal from the device. In other words, the idea of police attaching a tracking device to a person’s car, without a warrant, and monitoring that person’s movements for an extended period of time is more unsettling than the situation in Knotts where a tracking device is used as an aid to short term visual surveillance.

In addition to the concerns expressed by the Maynard court, law enforcement in this case could have gotten a warrant pursuant to S.C. Code Ann. section 17-30-140. That statute provides that “[t]he Attorney General or any solicitor may make application to a judge of competent jurisdiction for an order authorizing or approving the installation and use of a mobile tracking device ....” If the application includes certain information about why the tracking device is necessary, and probable cause exists, then the judge “must enter an ex parte order authorizing the installation and use of a mobile tracking device.” Id. While that statute did not require law enforcement to obtain a warrant before employing the GPS tracking device, it did provide a mechanism for them to obtain a warrant. The better practice in this case would have been to obtain a warrant.

However, even though this case presents a difficult decision, Knotts is clear that the use of a tracking device to track a person’s movements on public roads is not a violation of that person’s Fourth Amendment rights. Knotts was not limited to any particular technology and the tracking device in this case was only used to observe the vehicle’s movement on public roads. Therefore, no search in violation of the Fourth Amendment occurred.

05/01/11

Permalink 11:19:02 am, by fourth, 245 words, 2120 views   English (US)
Categories: General

CA7: IAC claim belied by everything defendant said in court before the 2255 was filed

Defendant failed to show that his lawyer was ineffective for not challenging his search as being by consent. Throughout the proceedings, the defendant agreed that the search was by consent and that he cooperated throughout. The first anybody heard of the claim of no consent was after he was in prison. Koons v. United States, 639 F.3d 348 (7th Cir. 2011):

Despite numerous opportunities, Koons not once informed the court that the officer who approached Koons at work on April 19 falsely claimed to have a warrant, brandished a weapon, and required Koons to accompany him to Koons’s home and let him in. Rather, Koons repeatedly acknowledged that he voluntarily consented. We treat sworn statements made in open court most seriously and demand that parties tell the truth.

While a suspicionless search of a motel register is a “private affair” under the Washington Constitution, here the officers had reasonable suspicion, so the state constitution was not violated. In re Pers. Restraint of Nichols, 171 Wn. 2d 370, 256 P.3d 1131 (2011).*

The search warrant was issued on the statement of a CI who said that he recently saw child pornography on defendant’s computer. That showed his basis of knowledge. When the search warrant was issued, there were some false statements by the affiant, but there still was probable cause. The police failure to leave a copy of the warrant at the time was not a sufficient failure to justify suppression of the search. State v. Ollivier, 161 Wn. App. 307, 254 P.3d 883 (2011).*

Permalink 10:46:39 am, by fourth, 261 words, 2881 views   English (US)
Categories: General

OH5: Stop of car not matching description was without reasonable suspicion

A “shots fired” report brought officers to the scene, and they got a report of shots fired from a newer four door car. Defendant’s car was stopped, but it was not “newer” and had two doors. The stop was without reasonable suspicion. State v. Hill, 194 Ohio App. 3d 93, 2011 Ohio 2019, 954 N.E.2d 1252 (5th Dist. 2011).*

After a traffic stop, the defendant made a furtive movement under the seat. He later said that he was looking for this DL; however, he retrieved it from a different place, and that heightened the officer’s suspicion. Hardaway v. State, 309 Ga. App. 432, 710 S.E.2d 634 (2011).*

The officer was dispatched to a neighborhood dispute call and he encountered the defendant walking away. He called the defendant over to talk to him, and defendant had his hands in his pockets. The officer asked for permission to patdown and then to search, and the court credited the officer that it was consensual. Ware v. State, 309 Ga. App. 426, 710 S.E.2d 627 (2011).*

An officer was dispatched on a report of three men in a green Honda smoking dope. He drove up on them without lights and walked up to the window, seeing nobody smoking. One man got out of the car, and the officer could see a gun in plain view, and he then had reasonable suspicion. State v. Banks, 64 So. 3d 386 (La. App. 5th Cir. 2011).*

The video of defendant’s driving showed her weaving so much she was driving on the wrong side of the road, so the stop was valid. State v. Schoenthal, 2011 Tenn. Crim. App. LEXIS 294 (April 27, 2011).*

Permalink 09:39:25 am, by fourth, 846 words, 3400 views   English (US)
Categories: General

W.D.N.Y.: Federal pre-conviction DNA testing regulation does not violate the Fourth Amendment

Federal pre-conviction DNA testing regulation does not violate the Fourth Amendment. [Seems like the USMJ doesn't really like the outcome. Quoting another case: “This is a vexing case. The DNA profiling system at issue promises enormous potential as an investigatory tool, but its expansion or misuse poses a very real threat to our privacy. ... [B]ut we must draw lines as best we can ... [and are sometimes compelled to] leav[e] for another day difficult questions.”] United States v. Thomas, 2011 U.S. Dist. LEXIS 45333 (W.D. N.Y. February 14, 2011):

B.Application of the Special Needs Test

1. The Act Serves a Special Need: The first requirement of the special needs test is that the search and seizure be justified by a special need beyond the ordinary needs of normal law enforcement. Amerson, 483 F.3d at 80 (citing Griffin, 483 U.S. at 873). A “general interest in crime control” does not qualify as a special need. City of Indianapolis v. Edmond, 531 U.S. at 41-42. If crime control is one purpose of a programmatic search, however, “the program may nevertheless be reasonable under the special needs doctrine so long as crime control is not the program’s primary purpose.” Lynch v. City of New York, 589 F.3d 94, 102 (2d Cir. 2009), cert. denied, 131 S. Ct. 415, 178 L. Ed. 2d 344 (2010) (emphasis in original). “[T]he appropriate inquiry ... [is] whether the search ‘serves as its immediate purpose an objective distinct from the ordinary evidence gathering associated with crime investigation.’” Amerson, 483 F.3d at 81 (quoting Nicholas v. Goord, 430 F.3d at 663).

. . .

2. Nature of Privacy Interest and Degree of Governmental Intrusion:

Although the particular issue presented by this case appears to be one of first impression in this Circuit, the Second Circuit already has addressed the nature of the privacy interest involved in and the degree of government intrusion implicated by the collection of DNA samples by persons under probation supervision. Amerson, 483 F.3d at 83-87. While any analysis of privacy interests is “highly context specific,” id. at 87, much of the court’s reasoning and conclusions in Amerson nonetheless apply in the context presented by this case — the collection of DNA samples by indicted, rather than convicted persons. Indeed, for the reasons explained more fully below, I believe that Amerson’s holding and its underpinnings logically dictate the result in this case.

. . .

The second and “potentially much more serious invasion of privacy” is the “analysis and maintenance of [DNA] information” in CODIS. Id. at 85. According to the Second Circuit, this intrusion is “significant” considering the “vast amount of sensitive information that can be mined from a person’s DNA and the very strong privacy interests that all individuals have in this information.” Id. (emphasis added) (citing United States v. Kincade, 379 F.3d at 843 (Reinhardt, J., dissenting) (discussing concerns about the “profound social effects” of “allowing the government to collect and maintain private information about the intimate details of our lives”)). Despite concerns over the value of DNA information, the court determined that the statutes’s safeguards adequately “minimized” the privacy invasion occasioned by the DNA indexing. First, the court observed that the CODIS database stores only “junk DNA” sequences that are not “currently associated with any known physical or medical characteristics,” but rather “establish[] only a record of the [person’s] identity.” Id. Second, the court noted that the Act “severely limits” the purposes for which the samples can be used and imposes penalties for any misuse. Id. Finally, the court emphasized that the record contained no evidence of “misuse of the DNA samples” by the government or “scientific advances concerning the information that can be mined from the DNA footprint stored on the CODIS database.” Id. at 87. If it did, the court cautioned, “our analysis and ultimate conclusions might very well be different.” Id.

. . .

While the determination in Amerson that the privacy intrusion was “quite small” explicitly rested on the appellants’ “status as probationers,” 483 F.3d at 87, Thomas’s status as an indicted person should not alter that conclusion, in my estimation. After all, “when a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it.” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992). Accord Boling v. Romer, 101 F.3d 1336, 1339-40 (10th Cir. 1996). See also Pool, 621 F.3d at 1220 (“it is doubtful that ... any ... individual having been indicted by a grand jury or having been subjected to a judicial determination of probable cause, has any right to withhold his or her true identification from the government”). Accordingly, I must conclude that the intrusion occasioned by DNA sample collection for indicted persons is also “quite small.”

3. The Government’s Interest: The Second Circuit has determined that “the government has a compelling interest in rapidly and accurately solving crimes and ... having DNA-based records of the identity of as many people as possible ... effectuates this interest.” Amerson, 483 F.3d at 87. Thus, the court in Amerson held that the “very broad societal interest” in having the “capacity to identify or exclude individuals, quickly, accurately, and at reasonable expense” outweighed the “relatively small” invasion of a probationer’s privacy. ...

Permalink 09:14:34 am, by fourth, 144 words, 2977 views   English (US)
Categories: General

CA11: Arrest of defendant standing outside his car for selling drugs from car justified search incident

Officers had an arrest warrant for defendant for selling drugs out of his vehicle. When they found him, he was standing next to the vehicle with the door open. The search was valid as a search incident. [Looks to me that it would have been sustained under the automobile exception, too; it is reasonable to believe that drugs would be in the car since drugs were recently sold from it.] United States v. Johnson, 424 Fed. Appx. 922 (11th Cir. 2011) (unpublished).*

Traffic stop on I-70 was without justification, so the stop is suppressed, as are the defendants’ statements. United States v. Murphy, 778 F. Supp. 2d 237 (N.D. N.Y. 2011).*

Seizure of defendant’s computer was proper because of his admissions that there was child pornography on it. His consent thereafter was not the fruit of the poisonous tree. United States v. Blood, 429 Fed. Appx. 670 (9th Cir. 2011).*

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by John Wesley Hall
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Little Rock, Arkansas
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State courts (and some USDC opinions)

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Most recent SCOTUS cases:
2009 to date:

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

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

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

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

2009-10 Term:

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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