A protective sweep did not permit officers to look in a hole in the wall in a closet where buy-money was found stashed. The state’s argument defendant had no standing in the apartment was based solely on his own testimony that he had been staying there three weeks. That was enough for standing. State v. Sublet, 2011 NMCA 75, 150 N.M. 378, 258 P.3d 1170 (2011).*

The officer had reasonable suspicion that defendant was involved in attempted burglary of cars when the car he was a passenger in was stopped. Defendant had no standing in the car under Rakas, and Gant did not apply. State v. K.N., 66 So. 3d 380 (Fla. 5th DCA 2011).*

The record supports the conclusion that defendant consented to a search of his pockets during a stop. State v. Baxter, 2011 Iowa App. LEXIS 729 (July 27, 2011).*

Defendant’s public urination justified his stop. State v. Pack, 2011 Tenn. Crim. App. LEXIS 580 (July 26, 2011).*

Defendant’s stop was for a traffic violation and with reasonable suspicion he was involved in drug dealing. His frisk and vehicle frisk was justified by the drug dealing RS alone. United States v. Jones, 2011 U.S. Dist. LEXIS 82741 (M.D. Ala. June 29, 2011)*:

Here, when Stacey conducted the patdown, he believed that the driver of the vehicle was en route to purchase narcotics with a large quantity of cash. He also believed that Jones had taken an extended time to stop his vehicle and that he appeared to be nervous. Prior cases have recognized that “‘investigative detentions involving suspects in vehicles are especially fraught with danger to police officers,’” noting the “inordinate risk confronting an officer as he approaches a person seated in an automobile.” Michigan v. Long, 463 U.S. 1032, 1047-1048 (1983) (citation omitted). In addition, individuals involved in narcotics trafficking are often armed. United States v. Cruz, 909 F.2d 422, 424 (11 Cir. 1989); ...

The CI’s believable information dealt with past, recent, and likely current possession of drugs in defendant’s house, so the warrant was not stale. State v. Marsing, 244 Ore. App. 556, 260 P.3d 739 (2011).*

The findings of consent are supported by the record. United States v. Marin-Hipolito, 434 Fed. Appx. 346 (5th Cir. 2011).*

Defendant was visiting a friend, and he went upstairs to take a nap. Police officers watching the house saw a known prostitute and drug dealer come out, so they came to the door. The homeowner let them in to look around. Next to the sleeping defendant was a bag of drugs. Defendant’s casual nap did not amount to him being an overnight guest [I disagree that is the standard; read Olson] to give him standing. Nevertheless, the homeowner’s consent was enough [which it was]. Wilson v. State, 2010 Tex. App. LEXIS 3551 (Tex. App.—San Antonio May 12, 2010), Released for Publication January 20, 2011, Petition for discretionary review refused by In re Wilson, 2010 Tex. Crim. App. LEXIS 1669 (Tex. Crim. App. Dec. 8, 2010)* [Not on court's website.]

Defendant’s patdown was unjustified by the circumstances, and the recovery of a pill bottle with cocaine in it should have been suppressed. State v. Mejia, 2011 Tenn. Crim. App. LEXIS 583 (July 27, 2011)* [The officer’s name was Justus. How fitting.]

Wisconsin’s CA certifies to the state supreme court whether an extended probation condition from a trial court can permit any LEO to search without cause. State v. Rowan, 2011 Wisc. App. LEXIS 599 (July 28, 2011)* [not on court's website]:

The issue presented by this appeal is whether a sentencing court violated the Fourth Amendment or Wis. Const. art. I, § 11, by setting a condition of extended supervision that allows any law enforcement officer to search the defendant's person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion. While it is clear that a court may impose conditions of extended supervision that limit a defendant's Fourth Amendment rights, the issue presented here is whether it is permissible to impose a condition that, in essence, eliminates those rights. There are no cases in Wisconsin that address this issue. Because this is a novel issue of statewide importance that is certain to recur, we hereby certify this appeal to the Wisconsin Supreme Court for its review and determination, pursuant to Wis. Stat. Rule 809.61 (2009-10).

As a metaphor for the Fourth Amendment and the exclusionary rule consider “Monty Python and the Holy Grail” (1975), with Eric Idle’s “Dead Collector” as Chief Justice John Roberts, and the “Large Man with Dead Body” as Samuel Alito.

The script here. An excerpt:

I’m not dead.
’Ere, he says he's not dead.
Yes he is.
I’m not.
He isn’t.
Well, he will be soon, he’s very ill.
I’m getting better.
No you’re not, you’ll be stone dead in a moment.

(In Spamlot, the man says “I’m not dead yet.”)

Police investigating a missing persons case went to defendant’s house and walked up to the garage where they could smell raw marijuana. They retreated and obtained the electrical usage records with a county attorney subpoena. Then they got a thermal imaging warrant. Defendant’s claim of a state privacy interest in the power usage records was rejected under the Fourth Amendment. United States v. McIntyre, 646 F.3d 1107 (8th Cir. 2011) (aff'g United States v. McIntyre, 683 F. Supp. 2d 1020 (D. Neb. 2010)):

As the district court explained, McIntyre’s “argument that § 70-101 provides an expectation of privacy by restricting the dissemination to the county attorney of utility subscriber information is deficient because that statute relates only to identifying information and not to usage records.” United States v. McIntyre, 683 F. Supp. 2d 1020, 1026 (D. Neb. 2010) (emphasis added). Therefore, we conclude that McIntyre’s Fourth Amendment rights were not violated by law enforcement’s use of the subpoena, and a search warrant was unnecessary to obtain the usage records.

We also reject McIntyre’s argument that the subpoena was deficient because it was not served in compliance with § 25-1273 or Nebraska Rule of Civil Discovery 34A. As the district court explained, “[regardless of these issues, the county attorney has subpoena power, under the circumstances present here, pursuant to Neb. Rev. Stat. § 86-2,112.” Id. at 1033. Section 86-2,112 states that “any county attorney may ... require the production of records ... which constitute or contain evidence relevant or material to the investigation or enforcement of the laws of this state when it reasonably appears that such action is necessary and proper.”

And, even if state law was violated, “state law violations do not necessarily offend the Federal Constitution.” United States v. Burtton, 599 F.3d 823, 828 (8th Cir. 2010) (quotation and citation omitted). “Thus, when a federal court must decide whether to exclude evidence obtained through an arrest, search, or seizure by state officers, the appropriate inquiry is whether the arrest, search, or seizure violated the Federal Constitution, not whether the arrest, search, or seizure violated state law.” Id. (quotation and citation omitted). For the reasons set forth supra in Part A.1, we hold that no Fourth Amendment violation occurred.

A police went to defendant’s house on a claim that a missing teenager was there. When there was no answer at the front gate intercom, the officer stepped over it, and entered, and that was a warrantless search of the curtilage. The facts did not support this emergency entry. State v. Ryder, 301 Conn. 810, 23 A.3d 694 (2011). From the syllabus:

a. [Officer] K conducted a warrantless search of the defendant’s property when he stepped over the defendant’s gate and onto the defendant’s curtilage, the area between the defendant’s gate and front door, that was protected by the fourth amendment, the defendant having taken measures to bar the public from his interior driveway, front yard and front door and having had a reasonable expectation of privacy in that area.

b. The emergency exception to the warrant requirement did not justify the warrantless search of the defendant’s curtilage and the subsequent warrantless search of the defendant’s home because a reasonable police officer would not have believed that an emergency existed: it was not objectively reasonable for K to believe that A was in immediate need of help, despite the father’s telephone calls to the police about A, the presence of the car and the couch in the driveway and the lack of an answer at the intercom and the front door, those facts not having provided a sufficient basis for a reasonable belief that an emergency situation existed; furthermore, the father never suggested to the police that A was in danger or likely would be harmed in any way, the father’s telephone call to the police did not rise to the level of a reliable report of a missing person, and the presence of the car parked in the driveway and the couch was not suspect, but, rather, given the totality of the circumstances, should have led to the reasonable belief that no one was home at the time K was at the defendant’s house, rather than to the belief that an emergency existed.

Officers had probable cause to arrest defendant without a warrant. He was arrested in a car, and his handcuffing and detention was irrelevant and Gant did not apply because the automobile exception permitted the search of the car. United States v. Brown, 2011 U.S. Dist. LEXIS 81595 (E.D. N.Y. July 25, 2011).*

“The Government has established, by a preponderance of the credible evidence, that Mr. Harris consented to the search of his bedroom on December 22, 2010. As Defendant argues, Agent McCormick’s and Special Agent Zeppieri’s testimony at the hearing was inconsistent as to various significant details. Their testimony was wholly consistent, however, as to the pivotal fact; whether Mr. Harris consented to the search.” [Of course; doesn’t it always?”] United States v. Harris, 2011 U.S. Dist. LEXIS 82170 (S.D. N.Y. July 26, 2011).*

911 dispatch got an anonymous call that a man was screaming that he was going to shoot somebody, and he was one of four black males that got into a metallic color 90's Buick with a missing right rear hubcap. Shortly thereafter, an officer saw a metallic color 90's Oldsmobile with a missing right rear hubcap. The officer had reasonable suspicion for a Terry stop, although this was a “close case.” United States v. Daniels, 2011 U.S. Dist. LEXIS 81712 (D. S.C. July 26, 2011).*

Boilerplate suppression motion should be denied for that reason alone. United States v. Torres, 2011 U.S. Dist. LEXIS 81117 (D. Minn. July 7, 2011):

In the current motion, Defendant Torres does not present any additional evidence—aside from boilerplate allegations—in support of suppression. “It is well established that the burdens of production and persuasion generally rest upon the movant in a suppression hearing.” United States v. Starks, 193 F.R.D. 624, 629 (D. Minn. 2000) (quoting United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977), cert. denied, 431 U.S. 932, 97 S. Ct. 2640, 53 L. Ed. 2d 249 (1977)); see also United States v. Phillips, 540 F.2d 319, 325 (8th Cir. 1976) (stating that the ultimate burden of proof is on the defendant who seeks to suppress evidence). “At a minimum, it is defendant’s burden to come forth with some evidence and argument to support his position that evidence ... should be suppressed.” United States v. Rosetter, Crim. No. 10-83 (JNE/JSM), 2010 U.S. Dist. LEXIS 132393, 2010 WL 5184991, at *23 (D. Minn. Oct. 1, 2010) (citing Starks, 193 F.R.D. at 629) (“[E]ven in those circumstances where the Government has the ultimate burden of persuasion, Defendant has the initial burden of making a prima facie showing of illegality.”). And “[f]ailure to provide the Court with any support for the motion is a sufficient basis for denial of the motion.” Rosetter, 2010 U.S. Dist. LEXIS 132393, 2010 WL 5184991, at *23. Defendant Torres has not met his burden.

U.S. Marshals had an arrest warrant for Boyd who they found in a motel room. When they entered for a protective sweep, they also found defendant who had just stayed there with Boyd, an old friend he ran into in a bar the night before. Defendant was not compliant with their order to get down, and then he wouldn’t give his name or DOB. He consented to looking in his pocket for his ID, but there were drugs in the pocket, too. The scope of consent did not require the officers to ignore the obvious. United States v. Chaney, 647 F.3d 401 (1st Cir. 2011):

The tight confines of a pants pocket leave a searching hand little room for maneuvering and distinguishing between various objects that may be contained therein. Given consent to retrieve an object from such a cramped space, it is objectively reasonable to assume that the consent extends to the removal of items that either may constitute the object of the search and cannot be immediately identified or that obstruct further access to other items in the pocket. Nothing in Chaney's exchange with Detective Newcomb suggests that he intended to withhold consent for these sorts of practical measures that are reasonable incidents to the search of a pocket. Chaney's argument appears to be that, absent explicit permission to remove items other than evidence of identification, the detective was required to fish around in the pocket until he located an item that he could positively identify to be some form of identification and that could be removed without dislodging other items. The "typical reasonable person" would not so interpret Chaney's exchange with the officer.

Plaintiff was stopped on suspicion of impersonating a police officer because of the stuff on his Chevy Tahoe. Shortly into the stop, plaintiff became angry and said “this is bullshit,” and said he had a concealed carry permit and he was a security guard. Because of his demeanor, the officer handcuffed him. Other officers arrived. A warrant was found for what they thought was plaintiff, and he was taken in. On further review, it was determined that plaintiff was the wrong person, and within two hours he was taken back to his house and property returned. His suit for excessive force for the too tight handcuffing was barred by qualified immunity. O'Malley v. City of Flint, 652 F.3d 662, 2011 FED App. 0194P (6th Cir. 2011).*

Officer's comment on the defendant’s exercise of his right to refuse to consent is usually reversible error, but it is subject to harmless error review. Here, however, it cannot be said beyond doubt that the comment in the context of a self-defense claim was harmless. Reversed. Bravo v. State, 65 So. 3d 621 (Fla. 1st DCA 2011).*

“Does an officer have reasonable suspicion to effect a traffic stop when he conducts a computer check of a car's tag and learns that the tag is registered to the same make of car, but to one of a different color? We agree with courts in Indiana and Georgia and hold that under these circumstances an officer may lawfully make a traffic stop under the Fourth Amendment of the United States Constitution.” Aders v. State, 67 So. 3d 368 (Fla. 4th DCA 2011).

Defendant’s Gant argument for the first time at oral argument was waived. The trial was five months after Gant, and it was never mentioned. State v. Lee, 2011 Wash. App. LEXIS 1747 (July 26, 2011).*

Defendant was a Michigan licensed medical marijuana grower and caregiver. The court finds consent to an entry because the defendant knew that state officials were permitted to inspect a medical marijuana grow operation. However, he had too many plants, and he was charged federally with manufacturing. Motion to suppress denied. United States v. Hathaway, 2011 U.S. Dist. LEXIS 81298 (W.D. Mich. July 26, 2011).*

Defendant had no standing to suppress the searches of passengers finding drugs on their persons. United States v. Sherrills, 432 Fed. Appx. 476 (6th Cir. 2011).*

The manager of a tribal housing complex who had the ability to enter apartments on occasion under the lease terms hardly had apparent or common authority to consent to a search of the apartment. The Supreme Court held in Chapman in 1961 that landlords could not consent to a search. United States v. Smith, 2011 U.S. Dist. LEXIS 80529 (D. Neb. July 22, 2011).*

Previous finding of a zoning violation requiring an inspection thereafter did not violate the Fourth Amendment. Jensen v. County of Sonoma, 444 Fed. Appx. 156 (9th Cir. 2011) (unpublished)*:

Furthermore, given its finding that there was a zoning ordinance violation, the County's order requiring the Jensens to schedule inspection to confirm abatement is reasonable and does not present a Fourth Amendment violation. See Sanchez v. Cnty. of San Diego, 464 F.3d 916, 923-924 (9th Cir. 2006); G.H. Love, Inc. v. Fleming, 161 F.2d 726, 728 (9th Cir. 1947).

The deputies actions here were not sufficient to rise to a show of authority. There were no guns drawn and the tone was conversational. Defendant’s authority is distinguishable because there the defendant was ordered to have his hands on his head with his fingers interlaced for control. State v. Lantzsch, 244 Ore. App. 330 (2011), on remand from State v. Lantzsch, 349 Ore. 663, 249 P.3d 1281 (2011).

Officers had plenty of probable cause that defendant was in possession of drugs. When he was being followed, he went to a hotel room. It was reasonable to infer the drugs would have been there. United States v. Jones, 431 Fed. Appx. 714 (10th Cir. July 25, 2011).*

Granted, the defendant’s travel plans were a little unusual, but the district court was correct in holding that there simply was no reasonable suspicion for this fifteen minute detention and questioning which was overlong and never wavered from being a drug investigation, as shown by the video. The government's rationale sweeps in too many innocent motorists for the same routine. United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011):

On appeal, the government makes four arguments seeking to excuse Trooper Conner's lack of diligence. First, the government argues that any delay caused by the unrelated questioning was de minimis, and, therefore, Digiovanni's Fourth Amendment rights were not violated. According to the government, our case is much like the Mason case, where the delay caused by the unrelated questioning was one to one and one-half minutes.

We reject the government's reliance on Mason. The delay in this case was not de minimis. The unrelated questioning was extensive and time-consuming. It started with some unrelated questioning concerning Digiovanni's travel plans and morphed into unrelated questioning concerning the presence of drugs. The record, in particular the video, makes clear that at just about every turn Trooper Conner was conducting a drug investigation instead of a traffic infraction investigation. Indeed, the bulk of the encounter between Trooper Conner and Digiovanni involved a drug investigation, as the driver's license check did not even begin until approximately ten minutes into the stop, and, in fact, it never was completed.

Second, the government argues that, because the overall length of the traffic stop (approximately fifteen minutes) was reasonable, there was no Fourth Amendment violation. We reject this argument.

We have emphasized that "[t]he maximum acceptable length of a routine traffic stop cannot be stated with mathematical precision." Branch, 537 F.3d at 336; see also United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004) (noting that there is "no constitutional stopwatch on traffic stops"); ....

The Fourth Circuit, no less. Now my circuit, the Eighth, is the most conservative.

Defendant was the passenger in a car stopped for having stolen license plates. When she was ordered out of the car, her purse was placed on the ground next to the car. She was handcuffed and placed in a patrol car. The search of her purse after that violated the search incident doctrine and Chimel because she was incapable of accessing the purse at the time of the search to destroy evidence or get a weapon. State v. Byrd, 162 Wn. App. 612, 258 P.3d 686 (2011) (with dissent):

¶9 In short, the test announced in Smith and applied in Johnson is based on a rejected interpretation of Belton; an interpretation that Gant overruled. We are bound by Gant's interpretation of Belton. Valdez, 167 Wn.2d at 780 (Johnson, J., concurring). And, while the State argues that Gant should not apply because it involved the search of a vehicle incident to arrest, Gant and Belton simply applied the general rules of the search incident to arrest exception set out in Chimel to the automobile context. A search incident to an arrest is a search incident to an arrest whether the object searched is a car or a purse.

¶10 Chimel did not involve the search of a vehicle. And it “continues to define the boundaries of the [search incident to arrest] exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.” Gant, 129 S. Ct. at 1716.

¶11 Under Chimel, then, the search incident to arrest exception permits an officer to perform a warrantless search of an arrestee and the area within his or her immediate control when an arrest is made. Chimel, 395 U.S. at 762-63. This type of warrantless search is justified only by interests in officer safety and the preservation of evidence. Id. But such a search is unreasonable where the interests justifying it are absent. Id. at 768. That is, an officer may not, without a warrant, search an object that the arrestee cannot reach at the time of the search. Gant, 129 S. Ct. at 1719; Chimel, 395 U.S. at 763-64, 768.

On Wired.com today: Document: FBI Surveillance Geeks Fear, Love New Gadgets by Kim Zetter:

Can’t wait for 4G to become the ubiquitous standard for mobile communication? On the edge of your seat for the unveiling of Microsoft’s secret Menlo Project and Greenfield application?

You’re not the only one watching the growth of these and other new technologies with rapt attention. According to an internal FBI document (.pdf), the law enforcement agency has a keen interest in evaluating each new technology for its surveillance possibilities and challenges.

The FBI fears, for example, that 4G will require agencies to “deal with significantly higher data rates than in current wireless network intercepts,” according to the document. “Managing this ‘fire hose’ of data is complicated by the lack of buffering or reliable delivery requirements. … These higher data rates could place a greater emphasis on the filtering of data to identify specific content.”

An airline passenger had a computer stolen from her bags in transit from Houston to Orlando. The computer has LoJack software on it, and she had the computer traced. The software company notified the police where the computer was, and the police used that to get a search warrant for defendant’s property. Defendant’s claim that obtaining the location information somehow violated Florida Security of Communications Act, chapter 934, specifically § 934.23, was unavailing since it was done at the request of the victim. Defendant was a baggage handler at the Orlando airport. State v. Oliveras, 65 So. 3d 1162, 36 Fla. L. Weekly D 1573 (Fla. 5th DCA 2011) [And, it seems incredibly unlikely that he would have "standing" to contest gathering that information at all since it was about a stolen computer he had in his possession.]

Defendant had a parole condition limiting his access to computers. The PO received information that defendant was viewing adult porn on his computer. The PO had an objectively reasonable basis for a search and seizure of the computers. State v. Plastow, 2011 Ohio 3557, 2011 Ohio App. LEXIS 3004 (5th Dist. July 18, 2011).*

Defendant was stopped for not having his child in child’s carseat. His grabbing the officer’s arm during the stop was a separate crime that led to his valid search incident. O’Neal v. State, 311 Ga. App. 102, 714 S.E.2d 744 (2011).*

A bankruptcy court would not enforce a German court order for e-mails in the U.S. as against our public policy. While the German debtor does not have the protection of the Fourth Amendment when he’s not even in the U.S., he does have protection of ECPA. In re Toft, 453 B.R. 186 (Bankr. S.D. N.Y. July 22, 2011):

Electronic communications privacy is subject to comprehensive statutory protection in the United States under (i) the Wiretap Act, 18 U.S.C. § 2511, et. seq., and (ii) the Privacy Act, 18 U.S.C. § 2701, et. seq. Under the Wiretap Act, civil and criminal penalties can be imposed on any person who "intentionally intercepts . . . any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). A warrant issued in the course of a criminal investigation upon a heightened showing of necessity is required in order to conduct a wiretap lawfully without the consent of one of the parties to the communication. 18 U.S.C. § 2518. Courts that have applied the provisions of the Wiretap Act to e-mails have held that the clandestine interception of e-mails of an individual, occurring contemporaneously with delivery, constitutes an illegal wiretap. See United States v. Councilman, 418 F.3d 67, 80 (1st Cir. 2005) (holding that for purposes of the Wiretap Act, e-mails can be considered "electronic communications," and the secret redirection of e-mails interception); see also Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (S.D.N.Y. 2008). The Foreign Representative argues that the inspection of e-mails is not a wiretap because the e-mails are inspected after their delivery and not while in transit, but no authority has been provided to support this narrow construction of the Wiretap Act.

In any event, once an e-mail has been delivered, unauthorized access to the contents of the communication is governed by the Stored Communications Act, 18 U.S.C. § 2701, et seq.,which is part of the Electronic Communications Privacy Act ("Privacy Act"). See Pure Power Boot Camp, 587 F.Supp.2d at 555. The Privacy Act, which is intended to prevent third parties from "obtaining, altering, or destroying certain stored electronic communications," imposes criminal and civil penalties when a person "accesses an electronic communication service, or obtains an electronic communication while it is still in storage, without authorization." Id. at 555. The contents of e-mail communications may be released by an ISP only under the specifically enumerated exceptions found in §§ 2702 and 2703 of the Privacy Act. Those exceptions require a search warrant issued under the Federal Rules of Criminal Procedure or a subpoena issued in the course of a criminal investigation. In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611 (E.D. Va. 2008), citing F.T.C. v. Netscape Communs Corp., 196 F.R.D. 559 (N.D. Cal. 2000) (discovery of e-mails from ISP not available under Fed. R. Civ. P. 45). Indeed, one court has held that the disclosure procedures under the Privacy Act are unconstitutional to the extent they permit warrantless searches of e-mails, because a reasonable expectation of privacy exists and e-mails are subject to the Fourth Amendment's protection from warrantless searches and seizures. See United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010). In this case, the Court does not reach any Fourth Amendment issue — among other things, it is unclear whether the Debtor, a foreign national not located in the United States, would be entitled to claim the protections of the Fourth Amendment. See United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990). Nevertheless, without regard to the Debtor's constitutional rights under the Fourth Amendment, the Privacy Act has been held to apply irrespective of the foreign nationality of the account holder. See In re § 2703(d) Order, 787 F. Supp. 2d 430 (E.D. Va. 2011) (application of 18 U.S.C. § 2703(d) to foreign users involved in WikiLeaks investigation not an extraterritorial application of U.S. law because statute governs disclosure by the American service provider).

Just because a drug dog alerted on a backpack too, where no drugs were found, is not an indication that the dog was unreliable. Parts of a meth lab were found in the backpack. Then a search warrant was obtained for defendant's house. People v. Stillwell, 197 Cal. App. 4th 996, 129 Cal. Rptr. 3d 233 (3d Dist. 2011):

More importantly, even if it were shown no cocaine, methamphetamine, marijuana, or heroin was found in the backpack in this case, substantial evidence would still exist to find Tommy reliable. Defendants offer no California authority for the proposition that evidence of a single error by an otherwise well-trained detection dog makes that dog unreliable. Instead, defendants rely on a single Florida case to support the notion that the People must present evidence of a dog's success rate to prove reliability. In that case, the court held that the state could not make a prima facie showing of probable cause based solely on testimony as to the training and certification of a narcotics detection dog. (Matheson v. State (Fla. Dist. Ct. App. 2003) 870 So.2d 8, 14–15.) California cases, however, have not required evidence of a dog's success rate to establish probable cause. (See Estes v. Rowland (1993) 14 Cal.App.4th 508, 529 [17 Cal. Rptr. 2d 901]; People v. Salih (1985) 173 Cal.App.3d 1009, 1015 [219 Cal. Rptr. 603]; People v. Bautista (2004) 115 Cal.App.4th 229, 236–237 [8 Cal. Rptr. 3d 862].) The appellate court's discussion in People v. Bautista, supra, 115 Cal.App.4th at page 229 is illustrative. In that case, the court found an agent's knowledge of a pair of detection dogs' training and experience and observation of the dogs' trained behavior gave probable cause for the issuance of a warrant. (Id. at pp. 236–237.)

Double hearsay from a CI was sufficient where the officers corroborated only innocent details. State v. Ralston, 2011 Ohio 3552, 2011 Ohio App. LEXIS 3000 (4th Dist. July 7, 2011)*:

[*P17] As Appellant correctly notes, there are no facts in the affidavit upon which the magistrate could have found a substantial basis for believing that there was a factual basis for the information the third party furnished to the informant. Nothing in the affidavit reveals how the third party came to know that Appellant was trafficking in or cultivating marijuana. The affidavit did not contain an “explicit and detailed description of the alleged wrongdoing” so the magistrate could distinguish the third party’s claim from idle rumor. It was not stated that the third party had personally obtained from the stash house the marijuana he displayed to the informant. It was not stated that the third party had ever been inside of the stash house and observed any wrongdoing, giving him firsthand knowledge.

. . .

[*P19] Though law enforcement only corroborated innocent facts, this does not negate their cumulative effect and contribution to the determination of probable cause, especially in light of the third party's allegations. Specifically, knowledge of a prior arrest and conviction relating to drug trafficking is a “‘practical consideration of everyday life’ upon which an officer or magistrate may properly rely in assessing the reliability of an informant's tip.” State v. Underwood, 4th Dist. No. 03CA2930, 2005 Ohio 2309, at ¶43.

I’m stunned. This is bizarre. Nothing protects against an idle street rumor or revenge becoming probable cause.

A game warden was investigating a trespassing hunter, and the hunter claimed, showing a permission slip, that he was on defendant’s land with permission. The game warden went to defendant’s house to check it out. The house was 300' from the road [no mention of curtilage] and he went to the front door, observing a marijuana plant 12-15" high growing in the front flower bed. Nobody answered the door, but the officer got a search warrant for defendant’s house. One paragraph of completely unverified hearsay was in the affidavit, which should not have been there, but there was probable cause otherwise. And the GFE was enough, too. State v. Burks, 2011 Ohio 3529, 2011 Ohio App. LEXIS 2987 (3d Dist. July 18, 2011).*

Defendant’s car was stopped for a traffic offense, and the officer received sufficient information from other officers to give “collective knowledge” reasonable suspicion that drugs might be found to detain him long enough to get a drug dog there. The dog’s alert gave probable cause. State v. Kelley, 2011 Ohio 3545, 2011 Ohio App. LEXIS 2995 (4th Dist. July 14, 2011).*

The search warrant for defendant’s house was based on information from pharmacy employees who were CIs that defendant was over-purchasing pseudoephedrine, and the employees did not have to be identified to show they were believable. The showing of nexus to the house created a fair inference that evidence of methamphetamine manufacture would be found there. State v. Harper, 152 Idaho 93, 266 P.3d 1198 (App. 2011).*

Wyden Continues Push To Prevent Government Phone Tracking by Josh Smith:

Sen. Ron Wyden, D-Ore., grilled a lawyer for the National Security Agency on Tuesday as he continued his quest to make sure government agencies aren’t illegally tracking Americans with their own cell phones.

NSA chief counsel Matthew Olsen, who has been nominated to lead the National Counterterrorism Center, told Wyden and the Senate Intelligence Committee that there may be “certain circumstances” where the spy agency has the authority to track Americans.

Update: Cato has an interesting post on this.

The car was stopped for a traffic violation. When the officer ran the name of the driver and passenger, the passenger came back with a warrant and a missing and endangered persons report. The passenger was acting furtively and admitted use and possession of a pipe, which had obviously been recently used. That gave probable cause to search the interior of the car. United States v. Evans, 445 Fed. Appx. 29 (9th Cir. 2011).*

Defendant was stopped and arrested based on a flyer the police had showing defendant and his vehicle involved in thefts. Thus, the search of the vehicle was based on that probable cause and not on the search incident doctrine. United States v. Mitchell, 2011 U.S. Dist. LEXIS 80018 (E.D. Tex. July 18, 2011).*

Defendant’s handcuffing on reasonable suspicion was reasonable in this case because the officer was trying to maintain the status quo. The defendant was not alone, and they had been passing what the officer thought was drugs. State v. Carrouthers, 2011 N.C. App. LEXIS 1483 (July 19, 2011).*

A “bra lift” search at school without any individualized suspicion was unreasonable. The entire school was going through a shakedown for drugs. [The court also cites numerous cases disapproving of strip searches at school without individualized suspicion.] In re T.A.S., 713 S.E.2d 211 (N.C. App. 2011):

Where the blanket search of the entire school lacked any individualized suspicion as to which students were responsible for the alleged infraction or any particularized reason to believe the contraband sought presented an imminent threat to school safety, the search of T.A.S.'s bra was constitutionally unreasonable and we reverse the trial court's order denying her suppression motion.

. . .

While certain aspects of the search here may have been reasonable based on the general suspicion that pills were coming into the school—possibly by concealment in some students' undergarments—the search of T.A.S.'s bra, without individualized grounds for suspecting that she had the pills on her person, was excessively intrusive. Once the search extended to such intimate places, the generalized suspicion upon which the trial court relied was no longer sufficient to justify the heightened intrusion. Thus, in light of T.L.O. and Redding, the search was not reasonable under the circumstances.

A Fourth Amendment warrant to arrest an alleged parole violator is not required. The warrant can be issued by a designated official of the parole board as an administrative warrant, and the statute required reasonable suspicion. State v. Barker, 256 P.3d 463 (Wash. App. 2011):

Moreover, unlike the Vargas-Amaya court, the Sherman court was required to address the constitutionality of its holding that an administrative warrant need not comply with the warrant clause of the Fourth Amendment. Sherman, 502 F.3d at 883. The court concluded that because searches and seizures of parolees generally are not subject to the requirements of the warrant clause, the Fourth Amendment does not require an administrative parole violator warrant to be supported by oath or affirmation. Sherman, 502 F.3d at 884.

Former RCW 9.94A.740 (2009) justified the issuance of the warrant here and implicates an administrative rather than judicial warrant. The statute’s plain language authorizes the secretary to issue a warrant to any offender who violates a community custody placement condition. See Sherman, 502 F.3d at 876 (“[s]ection 4213 expressly authorizes only ‘the Commission’ to issue a parole violator ‘warrant’ and thereby provides for an administrative warrant”) (emphasis in original). In addition, the statute omits any reference to Fourth Amendment requirements, stating only that community custody officers must have reasonable cause to believe a violation has occurred. See Sherman, 502 F.3d at 876-77 (distinguishing several other statutes and rules that express a “probable cause” requirement). Given the obvious limitations of Vargas-Amaya, we conclude that the trial court erred in ruling that the Fourth Amendment requires an arrest warrant for probationers to be issued by a detached and neutral magistrate based on facts set out by oath or affirmation. Under Sherman, an administrative warrant issued by a designated administrator without an oath or affirmation is constitutionally permissible. Sherman, 502 F.3d at 884.

The Third Circuit holds en banc (8-6-1) that post arrest, pre-conviction DNA testing is reasonable under the Fourth Amendment, just like fingerprinting to identify the defendant. United States v. Mitchell, 652 F.3d 387 (3d Cir. 2011) (en banc):

Ruben Mitchell was indicted on one count of attempted possession with intent to distribute cocaine. Following Mitchell‘s indictment, arrest, and detention, the Government sought to collect a DNA sample. The Government relied on 42 U.S.C. § 14135a(a)(1)(A), which permits the collection of DNA samples from individuals who are arrested, facing charges, or convicted. Mitchell objected, arguing that the statute violated the Fourth Amendment. Agreeing with Mitchell, the District Court concluded that the statute was unconstitutional and prohibited the Government from taking a DNA sample from Mitchell prior to conviction.

As a threshold matter, we address whether we possess appellate jurisdiction over this interlocutory appeal by the Government. We conclude that this appeal falls within the narrow class of orders immediately appealable under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). Turning to the merits, we apply a totality of the circumstances test, balancing the intrusion on Mitchell‘s privacy against the Government‘s interest in the collection and testing of his DNA. United States v. Knights, 534 U.S. 112, 118–19 (2001). As arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment. Accordingly, we will reverse.

. . .

This logic [of collecting fingerprints] extends to the collection and analysis of DNA samples from arrestees and pretrial detainees. See Anderson v. Virginia, 650 S.E.2d 702, 705 (Va. 2007) (“A DNA sample of the accused taken upon arrest, while more revealing, is no different in character than acquiring fingerprints upon arrest.”). DNA collection occurs only after it has been determined that there is probable cause to believe that the arrestee committed a crime. In light of this probable cause finding, arrestees possess a diminished expectation of privacy in their own identity, which has traditionally justified taking their fingerprints and photographs.Likewise, because DNA profiles developed pursuant to the DNA Act function as genetic fingerprints. used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample.

. . .

In light of the restrictions built into the DNA profiling process, Mitchell‘s arguments that it constitutes a significant invasion of privacy are unavailing. Relying on the District Court‘s opinion, Mitchell argues that collection of DNA from arrestees and pretrial detainees cannot be justified on the basis of probable cause as they have not yet been convicted of any offense and thus have the benefit of the presumption of innocence. See Mitchell, 681 F. Supp. 2d at 607. The District Court properly declined to elevate a finding of probable cause to the level of a proper determination of guilt beyond a reasonable doubt. Id. at 606. Nonetheless, it acknowledged that an arrestee or pretrial detainee, who is brought into the criminal justice system on the basis of probable cause has a diminished expectation of privacy in his identity. Id. at 608. The District Court nevertheless concluded that the presumption of innocence outweighed this diminished expectation of privacy because of the complex, comprehensive, inherently private information contained in a DNA sample. Id. As we discussed above, however, this conclusion is based on a flawed premise—that because DNA samples may reveal private information regarding familial lineage and predisposition to over four thousand types of genetic conditions and diseases [as well as] genetic markers for traits, the DNA profiles entered into CODIS also contain this information. Id. (emphasis added). DNA profiles, as opposed to DNA samples, reveal only identity, in which arrestees have a diminished expectation of privacy.

In sum, at present DNA profiling is simply a more precise method of ascertaining identity and is thus akin to fingerprinting, which has long been accepted as part of routine booking procedures. The traditional fingerprinting cases emphasize that arrestees and pretrial detainees have a diminished expectation of privacy in their identity. ...

Dissent:

I respectfully dissent because I find both of the majority’s conclusions here – that we have jurisdiction over this appeal and that the Government's program of collecting, analyzing, and maintaining the DNA of arrestees and pretrial detainees comports with the Fourth Amendment – to be seriously flawed.

The defendant was stopped for not having a license plate, but, after the stop, the officer saw a valid temporary tag. The officer was entitled to approach the motorist to explain the mistake. On discovering the smell of alcohol, further inquiry was justified. State v. Morris, 2011 UT 40, 687 Utah Adv. Rep. 43, 259 P.3d 116 (2011):

[*P1] This appeal concerns the constitutionality of a police officer's actions during a traffic stop. Specifically, we consider what an officer must do when he stops a driver based on an objectively reasonable belief that a traffic violation has occurred, but before approaching the driver the officer learns he was mistaken about the grounds for the stop. We hold that when an officer acting in good faith is reasonably mistaken about the grounds for a traffic stop, he may initiate contact with the driver to explain his mistake and to end the stop, but may not detain the driver any further. If during this brief encounter new reasonable suspicion of criminal activity arises, the officer may respond accordingly.

The officer saw multiple hand-to-hand transactions, and that justified the stop of the defendant for drug dealing. State v. Hankerson, 65 So. 3d 502, 36 Fla. L. Weekly S 182 (2011), Released for Publication June 30, 2011.

Defendant’s traffic stop was justified, and the officer saw a “tool-knife” (Swiss Army type) in his lap, and he was told to keep his hands visible, but he would not comply. This justified getting him out of the car for a patdown, which validly produced drugs. Cortes v. State,260 P.3d 184, 127 Nev. Adv. Rep. 44 (2011).*

In a 100+ page death penalty IAC opinion, the court concludes as to the 1990 search issue, it was not appealed, but, had it been, it would have been affirmed anyway because the parties agree that there was probable cause to search defendant’s car. The only issue was exigency, which isn’t really much of an issue anyway because: car on street = exigency. Bane v. State, 2011 Tenn. Crim. App. LEXIS 574 (July 21, 2011).*

Defendant’s Jeep was searched in 2006 after a fresh complaint of rape with a gun and handcuffs led to his stop. Defendant was handcuffed and placed in a police car and the Jeep was searched for the gun; it wasn’t found, but handcuffs were. The defendant argued that his handcuffing and being placed in the police car made the search incident invalid. The court decides that the search incident was valid because the car was linked to the crime. Alternatively, a warrant was issued for the car, and inevitable discovery would have applied. Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 950 N.E.2d 461 (2011)*:

In this case, the defendant's arrest was precisely for the crime that was the predicate for the search. ... The defendant was arrested for having committed a felony sexual assault offense, which the arresting officers, acting with probable cause, could reasonably believe occurred that same evening. Based on the radio dispatches, the officers could reasonably believe that the suspect might be armed, and that the Jeep where the rape took place and the truck -- to which the defendant appeared to be moving things -- probably would harbor evidence relevant to the crime.

[So, doesn’t this precisely state the factors that make the automobile exception apply? The police had information from the victim of the rape in the Jeep, so it could be seized and searched under that exception. Why didn't the court go there? Am I missing something? The search incident doctrine is limited to the suspect's reaching ability, and the automobile exception is not. Massachusetts practitioners can just ignore this case as "right result, wrong reason."]

Defendant was in a low-speed chase from the police, and he tossed 82g of crack from the car as he was driving before he stopped. He was not seized when he tossed the crack. United States v. Griffin, 652 F.3d 793 (7th Cir. 2011).*

It was not clearly established that using a portable ion scanning machine was a possible Fourth Amendment violation, particularly of employees and contractors entering a prison, so qualified immunity applied. Braun v. Maynard, 652 F.3d 557 (4th Cir. 2011):

On August 12, 2008, officials at the Maryland Correctional Training Center conducted a drug interdiction operation using a portable ion scanning machine capable of detecting minute amounts of controlled substances. Upon entering the building, several employees and independent contractors of the Maryland Department of Public Safety and Correctional Services alerted for the presence of drugs and were then searched. Nothing turned up. The aggrieved employees filed suit, alleging principally that the searches violated their Fourth Amendment rights. The district court held that the defendants were entitled to qualified immunity and dismissed the suit.

We affirm. The prison officials in this case faced difficult questions lying at the intersection of the Fourth Amendment's broad commands, the prison's compelling needs, and technology's innovations. Although it was clearly established that intrusive prison employee searches require reasonable suspicion, it was far from clear that the devices at issue here could not meet that standard. Because no clearly established federal law placed the officers on notice that fighting contraband in the prison environment in this manner was unlawful, we agree with the district court that the immunity attached.

. . .

With this context in mind, it was not clearly established that the searches here could not meet Leverette's standard. As the complaint asserts, an Ionscan can detect the presence of drugs on a person's clothing or possessions. It defies belief, then, to think that a positive Ionscan test gives no indication that someone is "hiding contraband on his or her person," as prison employees are unlikely to waltz into prison with contraband "hidden" only on their shirts. Indeed, given the nature of prison security, it is likely that an employee smuggler would place the contraband in a fairly concealed location on his person. We need not and do not hold that positive Ionscan results will always justify a strip search; nonetheless, it was not clearly established that the Ionscan results obtained here could not.

So what of the merits of an Ion scan when an employee gets busted? Apparently it is valid, based on the far lower expectation of privacy prison employees have when they enter the secure area. Strip search? Not yet decided.

The search warrant referred to Attachment 1, and it was clear from the evidentiary hearing that Attachment 1 was present at the scene of the search for particularity purposes. The fact that the defendant’s copy was missing Attachment 1 is not material. United States v. Riesselman, 646 F.3d 1072 (8th Cir. 2011):

The district court determined a clear incorporation of Attachment 1, including a full list of items subject to seizure, and the presence of Attachment 1 with the search warrant at the search scene satisfied the Fourth Amendment's particularity requirement. That the copy of Attachment 1 was not provided to Riesselman after the search concluded was of no consequence because a complete copy of the search warrant was present at the time of the search, limiting the items the officers could seize. Based on the facts, we agree the search warrant was sufficiently particular for several reasons.

Defendant’s stop for a traffic offense was valid. When the officer saw defendant’s DL, he recognized the defendant as somebody known to carry weapons. Coupled with some of defendant’s unusual activity, the officer had reason for a patdown. The vehicle was uninsured, and that was cause for impoundment on the city code. United States v. Preston, 2011 U.S. Dist. LEXIS 79824 (D. Minn. June 8, 2011).*

Under Payton, it was reasonable to believe that defendant would be home outside of normal working hours, so they could enter to arrest. Also, defendant was known to not be working anyway, so she could be home anytime. United States v. Blevins, 2011 U.S. Dist. LEXIS 78995 (W.D. La. May 31, 2011).*

Officers had a reasonable belief that defendant was on the premises for Payton purposes. They didn’t have to have actually seen defendant go in; they had information from reliable CIs that defendant was inside. United States v. Chisholm, 2011 U.S. Dist. LEXIS 78673 (D. Utah July 19, 2011).*

Defendant was found to have consented on the totality of circumstances. While some factors favor him, the defendant was clearly in custody and guns were drawn. There had been a shooting, however, and defendant was not the suspect so the guns were not pointed at him. Therefore, on the totality, it was still voluntary. United States v. Franco-Lombera, 2011 U.S. Dist. LEXIS 79181 (D. Idaho July 20, 2011).*

The traffic stop here produced reasonable suspicion, and the delay for the drug dog was reasonable. United States v. Randle, 2011 U.S. Dist. LEXIS 79259 (D. Minn. June 22, 2011).*

The failure of a state trial judge to sign a search warrant was mere ministerial or clerical act. While it may have violated Massachusetts law, it did not violate the Fourth Amendment and the warrant clearly issued as the issuing judge intended. United States v. Lyons, 2011 U.S. Dist. LEXIS 78931 (D. Mass. July 19, 2011):

Signs point to the warrant being valid. “[T]he text of the Fourth Amendment demands that a warrant be ‘issue[d].’ Issuance serves to demonstrate that a neutral and detached magistrate has reviewed the warrant application and affidavit and made an independent and objective determination that probable cause exists to justify the search.” United States v. Evans, 469 F. Supp. 2d 893, 897 (D. Mont. 2007) (internal citations omitted). “Issuing a warrant is not synonymous with signing a warrant.” United States v. Hondras, 296 F.3d 601, 602 (7th Cir. 2002). Indeed, where a warrant is unsigned, it is still validly “issued” as long as there exists “some indication that the search is officially authorized.” Evans, 469 F. Supp. 2d at 897; see also United States v. Jackson, 617 F. Supp. 2d 316, 320 (M.D. Pa. 2008) (“[S]igning a search warrant is just one of a number of methods that an issuing authority may use to signal that the warrant complies with the Fourth Amendment’s probable cause requirement.”); Fed. R. Crim. P. 41(d) (requiring magistrate’s signature only for telephonic warrants).

Other United States District Courts have suggested that the following can constitute indicia of issuance: (1) an indication on the warrant of the date before which the search must be conducted, (2) the presence of a case number indicating that the warrant has been filed, (3) the presence of the issuing authority’s initials or other imprimaturs of judicial authority on the warrant, and (4) an in-person acknowledgment by the issuing authority to the affiant that probable cause has been found.

Jackson, 617 F. Supp. 2d at 321. The Second Circuit has viewed signatures on warrants as “purely ministerial” and not required by the Fourth Amendment. Turner, 558 F.2d at 50 (holding that magistrate’s delegating task of signing warrant to subordinate did not violate Fourth Amendment, and “[a]s long as the magistrate in fact performs the substantive tasks of determining probable cause and authorizing the issuance of the warrant, the amendment is satisfied”).

Here, the primary indicator of the state court judge’s intent to issue the warrant is the fact that he signed the warrant application and affidavit, as well as his post-hoc explanation in the re-execution order that the failure to sign the warrant was an administrative oversight. ...

Defendant had a reasonable expectation of privacy in the house he was moving into. He was there rent-free while getting his stuff all there, and he’d spent the night a few times and had some things already there. Since the search occurred without a warrant and no exception applies, the search is suppressed. United States v. Rock, 798 F. Supp. 2d 992 (E.D. Wis. 2011):

Second, defendant manifested an intent to make this house his home by bringing belongings, including a bed, and his girlfriend to live with him. He set up the bed and slept for at least a short period of time before the officers arrived. While it is true that defendant left his other property in Milwaukee, the record shows that he planned to buy — and, in fact, did buy — necessary items, including an inflatable bed and clothing, in Illinois.

Third, defendant had the permission of Perez and Perez's mother, the owners, to live in the house rent-free. The fact that defendant stayed at the grace of the Perez family and lacked a key does not defeat his expectation. See Olson, 495 U.S. at 98-100. As the Olson Court explained, society recognizes the value of permitting another, "in between jobs or homes," to stay free of charge in a host's home. Id. at 98. Nor can the poor condition of the house defeat defendant's expectation. Many citizens live in dilapidated houses; they enjoy the same Fourth Amendment protection as the occupants of mansions. Importantly, the house had not been condemned by the City of Rockford prior to defendant's arrest, despite the fact that police were apparently aware of it (and deemed it a gang house). And as the magistrate judge noted, only vague hearsay supports the notion that the back door was "off the hinges."

The R&R: United States v. Rock, 2011 U.S. Dist. LEXIS 83229 (E.D. Wis. May 26, 2011):

The house was obviously in a state of disrepair; there was no running water, there was graffiti on the walls, the grass probably needed cutting, and the home lacked appliances and was later condemned. But there is no evidence that the house had been declared uninhabitable prior to the officers' entry, and the protection of the Fourth Amendment is not limited to homes where all utilities function and are neatly maintained. The evidence demonstrates that Rock was present with the permission of the property owner, and rather than being present only for a limited purpose such as a business transaction or even a social gathering, see Carter, 525 U.S. at 90, at the time the officers searched the home, this was Rock's residence. Although Rock arrived only a few hours before his arrest and the house was condemned shortly after his arrest, at the time of the officers' entry, this was Rock's home. In light of the fact that courts have repeatedly held that an individual possesses a reasonable expectation of privacy in the more transient dwelling of a hotel, the court finds no basis to require the satisfaction of an arbitrary temporal element so as to “vest” a person's reasonable expectation of privacy in his residence.

As has been said in a variety of contexts, the Fourth Amendment draws a bright line at the threshold of a person's home, see, e.g., Payton v. New York, 445 U.S. 573 (1980), and “[e]veryone has a legitimate expectation of privacy in his residence.” United States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995). The evidence demonstrates that this was Rock's home and thus he had a reasonable expectation of privacy in it.

Stop the Drug War.org: National Poll Finds Support [53%] for Welfare Drug Testing by Phillip Smith:

A Rasmussen poll released this week found majority support for automatic drug testing of new welfare applicants and lesser, but still high, levels of support for drug testing people already receiving welfare benefits.

The poll comes as a new Florida law mandating the suspicionless drug testing of welfare applicants and recipients is about to be implemented. Missouri has also passed a law requiring the drug testing of welfare recipients if there is "reasonable suspicion" to suspect drug use.

53% of Americans easily don't recognize the Fourth Amendment if it were read to them. Back in 1991, 1/3 of Americans didn't recognize the Bill of Rights. I don't think that figure has changed.

Officers saw defendant’s Lincoln Town Car parked against a red curb, a fire lane, in violation of the Vehicle Code. They parked and approached, and defendant started to drive off, and they told him to stop, and he did. The fact that the fire lane violation was a civil infraction rather than a criminal violation was not significant under Whren. When they approached him, he made furtive movements, and drugs were validly found at his feet. People v. Bennett, 197 Cal. App. 4th 907, 128 Cal. Rptr. 3d 595 (2d Dist. 2011).

Illinois’s constitutional privacy provision is written into the constitution, so it does not depend upon penumbras like the federal constitution and it is not in lockstep with the federal courts. Hope Clinic for Women Ltd. v. Adams, 353 Ill. Dec. 44, 955 N.E.2d 511 (2011).*

CI’s information who was involved in buying drugs from the defendant was probable cause for issuance of this search warrant. State v. Nigro, 2011 ME 81, 24 A.3d 1283 (2011).*

Defendant’s failure to file a motion to suppress was a waiver of the issue. People v Fulwood, 2011 NY Slip Op 5995, 86 A.D.3d 809, 927 N.Y.S.2d 246 (3d Dept. 2011).*

The trial court concluded that the defendant’s girlfriend was in control of the car and had paid for the insurance on it, so she had the authority to consent. People v Young, 2011 NY Slip Op 5991, 86 A.D.3d 796, 927 N.Y.S.2d 221 (3d Dept. 2011).*

Snow covered license plate justified a stop on reasonable suspicion to see if the vehicle was lawfully registered. United States v. Head, 2011 U.S. Dist. LEXIS 77963 (D. Minn. May 9, 2011).*

Defendant acknowledged that he was smoking marijuana, and that gave probable cause for a search incident of the person. [This happened in San Francisco.] But, that led to finding a gun. United States v. Johnsonmarin, 2011 U.S. Dist. LEXIS 78570 (N.D. Cal. July 20, 2011).*

Defendant consented to a search after a knock-and-talk. United States v. Ponce-Duarte, 2011 U.S. Dist. LEXIS 77191 (W.D. N.C. July 14, 2011).*

The appellate court concludes that the evidence supports the conclusion that defendant’s bus ticket was handed back to him before consent was given. United States v. Chavez, 429 Fed. Appx. 807 (10th Cir. 2011).*

Defendant’s probation search condition was complete, and that permitted the search of his premises. United States v. Graham, 2011 U.S. Dist. LEXIS 78145 (S.D. Ga. May 11, 2011).*

Defendant sought federal habeas to challenge a state search warrant pretrial. His petition for writ of mandamus to grant the petition is obviously outside the jurisdiction of the federal court. In re Wallace, 438 Fed. Appx. 132 (3d Cir. 2011).*

Defendant’s claim that defense counsel was ineffective for not objecting to a CI recording a conversation with him was hardly an IAC claim. United States v. Reynolds, 2011 U.S. Dist. LEXIS 79030 (N.D. Ind. July 20, 2011).*

Defendant was neither the owner of the vehicle nor the target of the investigation, and he had no standing to challenge placing a GPS device on the truck. United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011):

Moreover, the government did not place the GPS device with the intent of tracking Hernandez. (Angel, on the other hand, was under court-approved surveillance by wiretaps.) There is no suggestion that the government knew Hernandez would drive the truck to California on a drug run. Hernandez “has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas, 439 U.S. at 130 n.1. He has not demonstrated that he had “a legitimate expectation of privacy in the invaded place.” Rakas, 439 U.S. at 143. Any expectation of privacy he might have is not based in “concepts of real or personal property law” or “understandings that are recognized and permitted by society.” Carter, 525 U.S. at 88. Thus, Hernandez lacks standing to challenge the placement of the GPS device.

Warrant for a particular place with the plaintiff’s logo on the door within a multiple occupancy building satisfied the particularity requirement of the Fourth Amendment. The officer had been investigating the target for two years. Signature Pharmacy, Inc. v. Wright, 438 Fed. Appx. 741 (11th Cir. 2011) (unpublished).*

Geek.com reports that TSA's backscatter machine provider has finally come up with software that does not provide such a clear image of the person under their clothes. Instead, suspect areas show as a box on the screen. See No more naked scanner pictures before you fly by Jennifer Bergen. [Actual article link not working here.] I saw the image of my scan at DCA a couple of months ago, and an air pocket in my shirt back showed as a box on the screen. All the TSA guy did was touch the spot, feel there was nothing there, and that was it, except for the extra radiation. The body image showed on the screen similar to the one on this blog post.

The main question that remains unanswered is why the TSA didn’t do this from the start? It seems like it would have been much more complex to get a full-body scan with detailed imaging that’s so in depth than it is to get a cookie-cutter-like shape that doesn’t reveal everything about the person except the necessary information. Even so, the change is being billed as a software upgrade so some development must have been necessary to create the generic images.

Although it took two years, we’re at least glad the software is available now.

The traffic stop was without reasonable suspicion. As a back up argument, the government argued reasonable suspicion that the defendant was involved in drug activity. “In drawing objective and reasonable inferences from these observations, it can be concluded, at best, that a man drove to the same hotel and took the elevator to the same hotel floor where a suspected drug dealer was known to be staying, and left driving a car that might have previously been seized in a DEA drug investigation.” That's not reasonable suspicion. United States v. Tootoo, 802 F. Supp. 2d 1141 (D. Haw. 2011).*

Defendant’s interaction with the officer here was consensual on the totality of circumstances. ‘The Tenth Circuit has also made clear that ‘no single factor can dictate whether a seizure occurred.’ Hill, 199 F.3d at 1148. Considering the facts of this case in light of these legal principles, the court concludes that the interaction between the defendant and Officer Kaufman amounted to a consensual encounter that did not implicate the Fourth Amendment.” United States v. Flores, 2011 U.S. Dist. LEXIS 77291 (D. Utah July 14, 2011).*

The evidence supports the conclusion that defendant consented to the search of his bags at a train station. United States v. Brown, 438 Fed. Appx. 203 (4th Cir. 2011).*

The stop was based on reasonable suspicion, and, when stopped, the defendant matched the description of the person wanted for a recent shooting. At this point, the officer had probable cause to search the car for a weapon. United States v. Payton, 2011 U.S. Dist. LEXIS 77298 (W.D. Tenn. June 8, 2011).*

Defense counsel’s failure to make a motion to suppress the search of his house was not IAC because it would have failed anyway on third party consent of the victim. Davis v. State, 311 Ga. App. 699, 716 S.E.2d 710 (2011).*

Defendant consented to a search of his vehicle. In his papers he said that he refused consent four times, but there was no proof of that. People v. Lewis, 2011 V.I. LEXIS 38 (July 5, 2011).*

Independent Mail.com: Franklin [SC] sheriff, probation officers team up to tackle crime telling us that police and probation officers are shaking down probationers via their search terms:

A new relationship between the Franklin County Sheriff’s Office and the Northern Judicial Probation Office is helping to get probation violators off the streets.

Franklin County Sheriff’s deputy Major Ken Eavenson said the new working relationship recently netted a number of arrests.

“The sheriff’s office and officers with the Northern Judicial Probation Office conducted a probation check on probationers residing in Franklin County. The officers conducted about 20 interviews July 15 and seven ended up being arrested for probation violations,” Eavenson said.

Eavenson said the officers went door-to-door to the residences where probationers were known to live. At a number of the residences, he said they also found grounds for additional charges.

“Most of them have a Fourth Amendment waiver, meaning their home and vehicle can be searched at any time and they have to submit to a drug screen,” Eavenson said. “In some of these cases, as they did the interview, they went a little bit further and did a search of the residence and found drugs and weapons. Some of these individuals were already wanted for probation violations and they located them on that night as well,” Eavenson said.

NPR: Liberty, Security, and Biometrics: "Liberty, security, and biometrics. Eye scans, facial recognition systems. Police and more are using them. We’ll look at the stakes."

“Standing is a component of subject matter jurisdiction, which may be raised for the first time on appeal. ... Whether standing exists is a question of law subject to unlimited review. ...” Brendlin is limited to standing to challenge a stop, not the search of the car, and the court of appeals erred in so holding. Rakas is still good law. State v. Gilbert, 292 Kan. 428, 254 P.3d 1271 (2011).* [Note: Standing cannot be raised for the first time on appeal if the prosecution acquiesced in findings that support standing. Steagald v. United States, 451 U.S. 204, 209-10 (1981). The way Gilbert is written, the Steagald bar is avoided, but it raises another question: If the prosecution fails to argue standing, they sandbag the defendant into not putting on proof that might show standing. Therefore, at best, the case should be reversed and remanded for a hearing on standing, not just declaring defendant loses from his failure to show standing when the state did not put the defense on notice that standing was an issue so the defense could put it on if it had any proof of standing.]

Defendant was an occasional overnight guest at the place searched, but there was no evidence that he was there on the day of the search enough to give him standing in the place to be searched. Nevertheless, there was third party consent to a search. State v. Corbin, 2011 Ohio 3491, 194 Ohio App. 3d 720, 957 N.E.2d 849 (6th Dist. 2011).*

“[*P22] Based upon the totality of these facts and circumstances, including that police were investigating possible drug trafficking activities, the recognized nexus between guns and drug trafficking, and Defendant's failure to keep his hands in plain sight and his reluctance to move away from the driver's area of his vehicle, police had a reasonable suspicion that Defendant might be armed and dangerous and might gain immediate control of a weapon inside his vehicle upon returning to it. Accordingly, the limited protective search of the driver’s area of Defendant's vehicle for weapons was reasonable and did not violate Defendant’s Fourth Amendment rights. Terry v. Ohio, supra; Michigan v. Long, supra; Wilcox, supra.” State v. Pattson, 2011 Ohio 3507, 957 N.E.2d 849 (Ohio App. 2d Dist. July 15, 2011).*

The fair probability of destruction of evidence justified entry without a search warrant, assuming defendants had a reasonable expectation of privacy. United States v. Domenech, 430 Fed. Appx. 392 (6th Cir. 2011), reversing United States v. Domenech, 623 F.3d 325 (6th Cir. 2010) (posted here) on rehearing:

Even if we were to assume that defendants had a legitimate expectation of privacy in the motel room, the contested search was lawful because the totality of the circumstances known to the officers when they initiated the search of Room 22 gave them probable cause to believe that there was a “fair probability” that “evidence of a crime” would be found in the room. We recognize, of course, that having searched Room 22 without a valid warrant, the government bears the burden of establishing the legality of the search by a preponderance of the evidence. United States v. Haynes, 301 F.3d 669, 677 (6th Cir. 2002). Officers must show both that there was probable cause to believe a crime was being committed or evidence of a crime would be found, and that exigent circumstances justified warrantless entry. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam) (citing Payton v. New York, 445 U.S. 573, 590 (1980)). Where probable cause exists, officers may enter without a warrant “when evidence of drug crimes is in danger of destruction.” United States v. Elkins, 300 F.3d 638, 655 (6th Cir. 2002). The officers must reasonably believe that the occupants of the structure are likely to destroy evidence. Id. at 656. Probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). That determination is a “commonsense, practical question” based upon the totality of the circumstances Id. at 230-31. Those circumstances, in turn, consist of “objective facts known to the officers at the time of the search.” Smith v. Thornburg, 136 F.3d 1070, 1075 (6th Cir. 1998).

What, precisely, did the officers know when they entered Room 22? First, Officer Crawford testified that the Green Acres motel was known for “a lot of drug activity.” Second, the driver of the Ford Explorer parked in front of Room 22 had behaved evasively earlier that evening. Third, a check of the license plates of the Explorer revealed that its owner had an outstanding arrest warrant. Fourth, the registration associated with Room 22 was filled out incompletely by “Rogelio,” who listed an automobile other than the Ford Explorer parked in front of Room 22. Fifth, Officer Burchell was familiar with the construction of the motel and knew where the toilet for Room 22 would be situated. Sixth, shortly after he heard his colleagues make contact with the occupants, he observed a figure enter the bathroom and bend over the toilet. Based upon his prior experience, he concluded that “this person might be attempting to destroy something or flush something down the toilet.” While none of these considerations, when taken individually, would be sufficient to create a “fair probability” that evidence of a crime would be found in Room 22, they strike us as more than sufficient to establish probable cause and exigent circumstances when viewed through the “totality of the circumstances” prism. Officer Burchell observed a figure rush to the bathroom and appear to bend over the toilet in response to the officers’ appearance at the doorway of Room 22. This gave Officer Burchell probable cause to open the bathroom window to prevent what he concluded was an attempt to destroy evidence. For their part, the officers at the door of the motel room had probable cause to enter as soon as they heard the shouts of their colleague from the back of the room.

In reaching this holding today, we do not intend to downplay the importance of requiring a warrant. ...

Government investigators searched for files on defendant's computer when it was open for P2P sharing, and, finding child pornography, they got a search warrant for his computer. The USMJ did not have to see the alleged child porn to find probable cause. United States v. Beatty, 437 Fed. Appx. 185 (3d Cir. 2011).*

Defense counsel was not ineffective for not challenging his wife’s consent on appeal because she consent without coercion. It was alleged that she was threatened with her kids, but that was not the case. United States v. Henderson, 437 Fed. Appx. 96 (3d Cir. 2011).*

The evidence supported the district court’s conclusion that the defendant consented. “Delaney fails to show that the district court’s credibility finding with regard to the police officers’ testimony that he gave consent was based on ‘“exceedingly improbable testimony”’ and thus clearly erroneous, United States v. Mapp, 476 F.3d 1012, 1017 (D.C. Cir. 2007) (quoting United States v. Adamson, 441 F.3d 513, 519 (7th Cir. 2006)).” United States v. Delaney, 397 U.S. App. D.C. 133, 651 F.3d 15 (2011).*

Defendant was charged with destruction of evidence for destroying the hard drive of his computer when he learned federal investigators wanted to look at it in a child pornography investigation. His prosecution was not a Fourth Amendment violation for interference with his property rights since he had no property rights in child pornography as contraband. United States v. Hicks, 438 Fed. Appx. 216 (4th Cir. 2011)*:

The Fourth Amendment protects individuals from unreasonable searches and seizures of their persons, houses, papers and effects. Soldal v. Cook County, 506 U.S. 56, 62 (1992). The seizure of personal property occurs when “there is some meaningful interference with an individual's possessory interests in that property.” Altman v. City of High Point, 330 F.3d 194, 204 (4th Cir. 2003) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). We hold that there was no meaningful interference with Hicks's possessory interests because he did not have a property right in the images of child pornography. See Helton v. Hunt, 330 F.3d 242, 247 (4th Cir. 2003). Therefore, the district court did not err in convicting Hicks under § 1519.

Retaliatory prosecution alleged to be in violation of First Amendment is not governed by the arguable probable cause standard of the Fourth Amendment: “Accordingly, we address this argument on its merits and conclude that arguable probable cause does not apply to a First Amendment retaliatory inducement to prosecution case because probable cause is not an element of the First Amendment right allegedly violated.” Moore v. Hartman, 396 U.S. App. D.C. 28, 644 F.3d 415 (2011).*

Defendant was fumbling at his waist in his car and finally got out with his shirttail sticking out his fly. The officers had reasonable suspicion for a search as to why because he could have been hiding a gun or drugs. State v. Williams, 2011 NMSC 26, 149 N.M. 729, 255 P.3d 307 (2011), rev’g State v. Williams, 2010 NMCA 30, 148 N.M. 160, 231 P.3d 616 (App. 2010):

[*21] We hold that the under-clothing search of Defendant passes constitutional muster because the officer had particularized reasonable suspicion that Defendant was concealing a weapon or evidence, and the location, manner, and scope of the search were reasonable under the circumstances. Invasive, under-clothing searches remain the exception, and this Opinion is not to be read as an approval of the incorporation of an under-clothing search into the typical search incident to arrest. We reject any suggestion that our holding would permit invasive searches for all felony drug offenses, as such would be inconsistent with our preference for case-by-case reasonableness analyses based on the totality of the circumstances. See, e.g., Leyva, 2011 NMSC 9, ¶ 54.

Plaintiff was walking partially on an interstate highway drug and under the influence of that and probably ecstacy. In what as visible on the police car video of the encounter, it was apparent that plaintiff was a danger to himself and others in walking toward traffic, and he fought with officers trying to handcuff him. He was tasered in the process. The officers’ conduct was not objectively unreasonable, and summary judgment should have been granted. Williams v. Sandel, 433 Fed. Appx. 353 (6th Cir. 2011).*

Odor of raw marijuana coming from defendant’s car justified search of both the car and his person. Meek v. State, 950 N.E.2d 816 (Ind. App. 2011).*

Odor of burnt marijuana coming from defendant’s car and his breath justified search of the car. Edmond v. State, 951 N.E.2d 585 (Ind. App. 2011).*

Defendant alleged false statements of the police in getting a search warrant for his house after they smelled the strong odor of raw marijuana coming from the house when they tried to enter but were denied entry. Some marijuana was found. Defendant admitted that he entered the house from the rear while the police were waiting for the warrant. The statement was not necessarily false, and a ready explanation would be that the defendant flushed marijuana after he sneaked into the house. United States v. Kittrell, 2011 U.S. Dist. LEXIS 76513 (D. Ariz. May 20, 2011).*

"I love the smell of [marijuana] in the morning. ... Smelled like ... [sniffing, pondering] victory. Someday this war's gonna end..."

Plaintiff was fleeing from an arrest from failure to pay child support. Intending to reach for his 19.2 oz taser, the officer accidentally pulled his 38 oz Glock and shot the fleeing plaintiff. He was admittedly not trained on the taser and had both the gun and taser on the same side. Despite his claimed honest mistake, shooting an unarmed misdemeanant was objectively unreasonable. Henry v. Purnell, 652 F.3d 524 (4th Cir. 2011)*:

The parties have stipulated, however, that the shooting here was based on a mistake of fact insofar as Purnell believed he was firing his Taser rather than his Glock. Based on this stipulation, Purnell attempts to defend the constitutionality of his actions by maintaining that he simply made an "honest mistake." Appellee's Br. 22 (internal quotation marks omitted). But it is not the honesty of Purnell's intentions that determines the constitutionality of his conduct; rather it is the objective reasonableness of his actions. It is certainly true that mistaken, but reasonable, decisions do not transgress constitutional bounds. See, e.g., McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994). All actions, however, mistaken or otherwise, are subject to an objective test.

There were several facts that Purnell knew or should have known that would have alerted any reasonable officer to the fact that he was holding his Glock. First, and most basically, Purnell knew he carried his Taser in the holster on his right thigh, which was about a foot lower than the holster on his hip that held his Glock. See Sevigny v. Dicksey, 846 F.2d 953, 957 n.5 (4th Cir. 1988) ("Objective inquiry into the reasonableness of an officer's perception of the critical facts leading to an arrest ... must charge him with possession of all the information reasonably discoverable by an officer acting reasonably under the circumstances. Indeed his subjective beliefs about the matter, however induced, are actually irrelevant to the inquiry.") (internal quotation marks omitted). Second, Purnell could feel the weight of the weapon he held in his hand, which, at about 38 ounces, was nearly twice the weight of his Taser. Third, Purnell knew the Taser had a thumb safety that had to be flipped to arm the weapon. The Glock he was holding had no thumb safety.10 This was not a situation in which the facts known to the officer led to multiple reasonable inferences.

A city trash container next to defendant’s house in the city, not yet put at the curb for collection, was on the curtilage. There has to be curtilage in an urban area. Ousley v. Commonwealth, 2011 Ky. App. LEXIS 110 (June 24, 2011):

In answering this question, we are mindful of the unique circumstances attendant to modern urban living. In many modern urban communities, the outside property directly appended to a single family residence is frequently diminutive and readily open to public observation. In this modern urban reality, absolute privacy in the outside area surrounding a home is often illusory in its strictest sense. However, urban residents still expect certain areas of outside property surrounding their home to be regarded as private, and the public recognizes such expectation of privacy as reasonable.

In this case, appellant's trash toter was located in an area only a few feet from his residence and was situated directly next to his storage shed. Both the trash toter and shed were located at the far end of appellant's private driveway. This driveway extended back beyond the front of appellant's residence and into an area appellant utilized for private storage needs. Considering the configuration of the homes in appellant's neighborhood, the utilization of this area for private storage by appellant was reasonable. Appellant's residence only had a small front yard and no adjacent side yard as the residence next door was built nearly upon the common boundary line and was only separated by each home's respective private driveway.

Juxtaposing the factors set forth in Quintana to the facts herein, we conclude that appellant's trash toter was located within the curtilage of his home. See Quintana, 276 S.W.3d 753. ...

The emergency aid exception applies to automobiles. This one involved the officer seeing the defendant sitting in his car asleep at 5:40 am in a high crime area with the engine off and lights out. The officer did not attempt to wake up the defendant, instead opening the door to the car seeing crack cocaine on the floor. This was an unreasonable entry into the car. Mundy v. Commonwealth, 342 S.W.3d 878 (Ky. App. 2011):

Accordingly, we hold that the proper test for determining whether a police officer conducted a lawful warrantless search of a motor vehicle pursuant to the emergency aid exception is whether the police officer's entry into the vehicle was based on an objectively reasonable belief, given the information available at the time of entry, that a person within the vehicle was in need of immediate aid.

. . .

Objectively viewing the circumstances of the instant case, we are unable to conclude that it was reasonable for Officer Bastian to believe that Mundy was in need of immediate aid. Although Officer Bastian specifically testified that he was concerned about Mundy's well-being, a mere subjective concern is not enough to justify a warrantless entry into Mundy's vehicle. In contrast to Collins, Officer Bastian did not receive a report of a potentially dangerous or life-threatening situation in the vicinity, nor did he receive a 911 call regarding Mundy's well-being or safety. Additionally, in Collins, the police officers not only had a reasonable belief that someone might be injured because of the report of shots fired, the police officers also tried to arouse the car's occupants by yelling repeatedly, and only entered the car after the occupants were unresponsive to the police officers' shouts. Collins, 321 F.3d at 695.

In the case before us, Officer Bastian failed to take any additional steps to determine if Mundy was actually unresponsive or in need of immediate help prior to opening Mundy's car door. Officer Bastian did not attempt to wake up Mundy by knocking on the car's door or any portion of the car, shining his flashlight near Mundy's face, or yelling or shouting at Mundy. A person sleeping in his vehicle on a summer night, by itself, does not justify a reasonable belief that he is in medical peril necessitating aid. Further, Mundy's car was not running, its headlights were off and it was legally parked, indicating that Mundy intentionally parked his car at its present location, as opposed to a person becoming ill or experiencing a medical emergency who abruptly pulls over or passes out with the engine running and the headlights activated.

ICE came to defendant’s house in a child pornography investigation after finding that an email from his address had sent child porn to another computer. They came in blue jeans with no visible weapons and conducted a knock-and-talk. They told defendant what they knew and asked for consent to search his computers. He agreed to a search and signed a consent form. The consent was valid. United States v. Olson, 2011 U.S. Dist. LEXIS 75866 (D. Minn. June 8, 2011).* [Since it is possible for others to hack into one's wifi network, that is at least a defense, except when the defendant consents and the CP is found on his computer.]

Police came to defendant’s house about a gun having been fired. He invited them in to see the gun, and they saw guns in plain view while looking for the gun. The entry was voluntary, and the plain view was reasonable. State v. Austin, 310 Ga. App. 814, 714 S.E.2d 671 (2011).*

This Franks challenge fails because the officer was found credible on the omission, and, in any event, it is immaterial to the probable cause determination. United States v. Waters, 2011 U.S. Dist. LEXIS 75908 (E.D. Pa. July 14, 2011).*

A 911 call about a dead body at one’s house is consent to enter the house. Mayes v. State, 2011 Mo. App. LEXIS 937 (Mo.App. July 13, 2011):

When Movant called 911 and requested emergency assistance, he consented to the entry of his home which, upon discovery of a dead body, became a crime scene warranting further investigation. [State v. Johnston, 957 S.W.2d 734, 742 (Mo banc. 1997).] The motion court cited a Texas case which made the same point:

[W]hen a homeowner makes a 911 call and requests immediate assistance because of an emergency, he is indicating his consent to (1) the arrival and entry of the responding officers to resolve that emergency and, (2) absent any evidence of the revocation of that consent, an objectively reasonable limited investigation by the responding officers into the emergency that the homeowner reported.

Johnson v. State, 226 S.W.3d 439, 444 (Tex.Crim.App. 2007). By making such a call, "surely the objectively reasonable homeowner envisions that the responding police will enter his home, view the scene, take pictures of that scene, and make a cursory search for relevant evidence directly relating to the homeowner's emergency call." Id. at 447.

The officer preparing the search warrant was using a computer template for their “Attachment 2”s to their search warrants that include a description of the place to be searched. Here, the officer used the template, but accidentally picked up the wrong one and attached it to the search warrant. The officer preparing the search warrant was the one who investigated, and he went to the defendant’s house, not the one named in the search warrant. Nevertheless, the search was valid because there was no reckless or knowing mistake, and the good faith exception would have saved it anyway. Also, the affidavit for the search warrant did not support a search warrant for the place in Attachment 2, but it did for defendant’s house. There was no particularity failure. United States v. Peoples, 2011 U.S. Dist. LEXIS 75295 (W.D. N.C. June 9, 2011):

Secondly, there was no reasonable probability of a mistake being made in locating the actual premises that were to be searched. The officer requesting the search warrant and the officer executing the search warrant were the same person: Det. Trantham. Trantham had been involved in the surveillance of the dwelling house located at 61 East Marshall Street and knew that was the premises he wanted to search. Courts recognize this is a factor in supporting the validity of the search warrant. May, 2009 U.S. Dist. LEXIS 28588, 2009 WL 928386, at *10. Trantham testified he never intended to search any dwelling house except the dwelling house located at 61 East Marshall Street. The mistake in the description on Attachment 2 had no affect upon the search of the correct dwelling house. Trantham went unerringly to 61 East Marshall Street. There was no probability of a search taking place at either of the addresses described in Attachment 2. In short, the officer in possession of the Search Warrant could reasonably ascertain and identify the intended place to be searched in spite of the facial defect in Attachment 2. See Owens, 848 F.2d at 463 (holding that facially deficient search warrant assigning the wrong apartment number to be searched did not invalidate the warrant and violate the Fourth Amendment's particularity requirement); Brooks, 294 F. Appx at 73 (“Even if the description of the place to be searched is mistaken, there is not [sic] Fourth Amendment violation when the officers executing the search reasonable [sic] believe that the warrant is sufficiently particular and that they are searching the correct location.”); Watts, 352 F. Appx at 785 (“Moreover, even where a warrant contains a technical inaccuracy, a sufficient description of the premises, especially where the executing officer had knowledge of the particular place to be searched, will meet the Fourth Amendment's particularity requirement.”).

Officers conducted a protective sweep which might or might not have been a violation of the Fourth Amendment, but the inevitable discovery rule justified the search warrant from what officers smelled at the door. “None of the evidence in this case was obtained in violation of the Defendant’s Fourth Amendment rights and, to the extent there was a violation, exclusion is not an appropriate remedy.” United States v. Sabo, 2011 U.S. Dist. LEXIS 75327 (N.D. Ind. July 11, 2011).*

Officers had reasonable suspicion to detain defendant during a domestic dispute to look for a gun, and a drug dog was sent for. It was reasonable although it took 20 minutes to arrive. United States v. Smith, 645 F.3d 998 (8th Cir. 2011).*

Claim that a witness’s Fourth Amendment rights were violated by the trial court’s order to show the file he was testifying from [which is not error anyway] cannot be raised by a party because it is not his rights at issue. Gottschalk v. Gottschalk, 311 Ga. App. 304, 715 S.E.2d 715 (2011).*

Doing what Kyllo requires, “[t]he officer requested a warrant to use such a device to search the residence for ‘[anomalous] heat loss occurring at the described premises as a result of an indoor marijuana growing operation, which is being possessed in violation of The Georgia Controlled Substances Act[.]’ A judge granted the application and issued the warrant.” A thermographer was used to measure the heat loss. A copy of the warrant was left after the search. A second search warrant was used to search the house based on the product of the first warrant. Under state statute, a warrant was for “tangible evidence,” and defendant argued that “tangible evidence” did not include heat loss. Based on dictionary definitions, the court concludes that heat loss is “tangible evidence” in the concept of something definite and perceptible. Brundige v. State, 310 Ga. App. 900, 714 S.E.2d 681 (2011):

With these principles in mind, we have reviewed legal and general dictionaries to discern the common and ordinary meaning of the phrase “tangible evidence.” We note that logic dictates that use of the modifier “tangible” distinguishes such evidence from its opposite type, that is, intangible evidence. The phrase “intangible evidence” has been used to describe testimony or verbal statements. Because heat radiating from a building is not simply testimony or verbal evidence and because it is definable and measurable; it is real and substantial, rather than imaginary; it is capable of being clearly grasped by the mind; and it can, at least in some cases, be perceived through the sense of touch, we conclude that heat loss that is measured and recorded by a thermal scanner fits within the scope of “tangible evidence” as that term is used in OCGA § 17-5-21 (a) (5). Accordingly, the trial court did not err in concluding that that Code section authorized the first search warrant issued in this case, for the seizure of “anomalous heat loss” occurring at Brundige’s home.

We note that, when the Supreme Court of the United States decided Kyllo v. United States, electronic thermal scanning, a sense-enhancing technology that can be used to discern a person’s activities that are being conducted in a private, constitutionally protected area,7 was not “in general public use.” (Citation and punctuation omitted.) Kyllo v. United States, 533 U. S. at 34 (III).

7 See Kyllo v. United States, 533 U. S. at 29-30 (I); People v. Deutsch, 44 Cal. App. 4th 1224, 1229-1230 (I) (52 Cal. Rptr. 2d 366) (1996); John Wesley Hall, 1-9 Search and Seizure § 9.15 (3d ed. 2010) (Electronic thermal scanning does not merely measure wasted heat. Rather, “a trained thermal imaging operator can likely determine that a room is occupied and likely what the occupant of the room is doing (such as watching television, eating a meal, exercising, going to the bathroom, or even having sex).”) (footnotes omitted).

Volokh Conspiracy: DC Circuit Holds That New Airport Screening Security Measures Comply with the Fourth Amendment by Orin Kerr:

The new airport screening measures involving millimeter wave technology and backscatter technology — together with the opt-out of a pat-down — have received a great deal of public attention. Back when the new measures were first widely introduced, I blogged about why a Fourth Amendment challenge to the new practices was an uphill battle. Today, the DC Circuit handed down an opinion in EPIC v. Department of Homeland Security holding that the new practices comply with the Fourth Amendment. I believe this is the first clear court ruling on the question, and it’s certainly the first from a federal court of appeals. The opinion is by Judge Douglas Ginsburg, and it was joined by Judges Henderson and Tatel.

...

That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47–48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

Contrary to the EPIC’s argument, it is not determinative that AIT is not the last step in a potentially escalating series of search techniques. In Hartwell, from which the petitioners tease out this argument, the Third Circuit upheld an airport search that started with a walk-through magnetometer, thence to scanning with a hand-held magnetometer and, when the TSA officer encountered a bulge in the passenger’s pocket, progressed (according to the passenger) to the officer’s removing a package of crack cocaine from that pocket. 436 F.3d at 175–76. The court noted, however, that its opinion, while describing the search at issue there as “minimally intrusive,” did “not purport to set the outer limits of intrusiveness in the airport context.” Id. at 180 & n.10. Nothing in Hartwell, that is, suggests the AIT scanners must be minimally intrusive to be consistent with the Fourth Amendment.

It’s a bit surprising, given the public controversy, that the analysis here was so sparse. It seems that Judge Ginsburg didn’t even think it required any heavy lifting — just a quick paragraph or two. And notably, no one wrote separately. That’s particularly interesting given that this opinion is from a pretty Fourth-Amendment-rights-friendly panel: Note that Judge Ginsburg authored the recent Maynard decision holding that GPS surveillance requires a warrant, which also was joined by Judge Tatel.

On another note, Marian Paterson, 94-Year-Old Woman, Gets TSA Patdown, and I'm flying this evening.

NYT re SF: Big Brother Rears Head In New Push For Cameras by Hadley Robinson:

When San Francisco installed surveillance cameras in high-crime neighborhoods in 2005, the city faced fierce opposition from residents and civil liberties groups.

Fast-forward six years: cameras that could provide crucial evidence in criminal investigations are everywhere. Seventy-one are owned by the city. The rest, an unknown number, are on people’s cell phones and installed in hotels, restaurants and businesses.

The San Francisco Police Department now wants even more.

Boston.com: Travelers checks: Automatic License Plate Readers track your every move by Kade Crockford, On Liberty Blog:

Remember the furor this spring, when we learned that iPhones and other mobile devices were logging every move their users made? Automatic License Plate Readers (ALPRs) would do something similar to your car.

Late last year, the Commonwealth of Massachusetts advertised a $300,000 grant from the federal Department of Transportation for the purchase of ALPRs. Over 90 agencies in the state applied; 27 were given the grant money.

Many of these towns (see a full list here) have already implemented the technology. At least one, Brookline, is currently struggling with whether or not to accept the funds and implement an ALPR.

Wired.com Danger Room: Senators Ask Spy Chief: Are You Tracking Us Through Our iPhones? by Spencer Ackerman:

Two key senators want to know if the leader of the vast U.S. intelligence apparatus believes it’s legal for spooks to track where you go through your iPhone.

In a letter that Sens. Mark Udall (D-Colorado) and Ron Wyden (D-Oregon) will send later on Thursday, obtained by Danger Room, the senators ask Director of National Intelligence James Clapper, “Do government agencies have the authority to collect the geolocation information of American citizens for intelligence purposes?”

Both senators are members of the panel overseeing the 16 intelligence agencies. In May, they sounded warnings that the Obama administration was secretly reinterpreting the Patriot Act to allow a broader amount of domestic surveillance than it had publicly disclosed.

Technorati: Facebook’s Privacy Settings Loosening Up With U.S. Law Enforcement by iLo Ivy:

According to Reuters, the FBI, DEA and ICE have found hope in federal judges, who are authorizing warrants to search individuals’ Facebook accounts, following up on investigations from rape to terrorism. Law enforcement agencies already have manuals on how to request data from Facebook, and the number of warrants - none of which have been challenged, in spite of violating a person's Fourth Amendment protection against unlawful search and seizure - has almost doubled in 2011.

Although this isn’t entirely surprising - and could even seem irrelevant for the average Facebook user - anyone’s messages, status updates, links to videos and photographs, calendars, events, wall posts and even rejected friend requests could end up ‘entertaining’ “Big Brother”. Especially these days, in the (likely) event of identity theft by rogue crackers, who have made a sport out of hacking the websites of some of our favorite brands, local banks, top government agencies and even the network of some police departments.

While the law is not clear, it appears that “an articulable suspicion or ‘a minimal showing of suspicion’... of criminal activity” is required to send a motorist at a border crossing for a secondary inspection. The officers had it here. United States v. Lewis, 2011 U.S. Dist. LEXIS 75689 (D. Ariz. July 12, 2011):

Although the law is not completely developed on this point, it appears that if a referral to a second inspection area is solely for drug-related concerns, the government must show “an articulable suspicion or ‘a minimal showing of suspicion’... of criminal activity.” United States v. Taylor, 934 F.2d 218, 221 (9th Cir. 1991) (quoting United States v. Couch, 688 F.2d 599, 604 (9th Cir. 1982)). An articulable suspicion is not equivalent to the reasonable suspicion standard. See Taylor, 934 F.2d at 221. It is a considerably lower standard. Whereas nervousness may create an articulable suspicion and be sufficient to justify referral to a secondary inspection area, nervousness alone would be insufficient to create reasonable suspicion. Id.

The search here could be justified by agreement to a probation search as a condition of release or probable cause for the search warrant in this case. The court goes with the latter. State v. Hansen, 151 Idaho 342, 256 P.3d 750 (2011).*

Defendant was having a party in his house, and a bunch of people were in there. The police showed up because of a noise complaint [think of the scenes in “Social Network” or “Super Troopers”] and walked through the premises looking for the responsible persons. In a bedroom upstairs, they saw pills. While the entry into the house was lawful, a broad search of the house was not. “[T]here is no broad ‘nuisance abatement’ exception to the general rule that warrantless entries into private homes are presumptively unreasonable.” State v. Kaltner, 420 N.J. Super. 524, 22 A.3d 77 (2011):

Unlike those cases, here there was no open invitation to the public to enter the premises. Although crowded and noisy, there is no evidence that the party was an “open house.” Merely because some in attendance were mutual friends of invited guests did not mean that total strangers would be freely admitted or welcomed. Under those circumstances and contrary to the State’s contention, we do not view as any lessened or diminished the legitimate expectation of privacy that defendant, who was not even present at the party, continued to enjoy in his residence, and even more so, in his third-floor bedroom. Nor, for obvious reasons, did defendant abandon his privacy interest by having the home indirectly exposed to the public by loud noise emanating therein.

Given this reasonable expectation of privacy, federal and state constitutional provisions “express[] a preference” that, before conducting a search, government officials should first obtain a warrant founded on probable cause issued by a neutral and detached judge “‘particularly describing the place to be searched, and the persons or things to be seized.’” ... Thus, warrantless searches have been permitted when, among other circumstances, incident to lawful arrest, consent is obtained, government officials act in a community-caretaking function, or exigent circumstances compel action. Johnson, supra, 193 N.J. at 552, 940 A.2d 1185. Of course, the State carries the burden of proving by a preponderance of evidence that a search falls within one of these or other carefully crafted exceptions and that it was premised on probable cause. Ibid.; State v. Pineiro, 181 N.J. 13, 19-20, 853 A.2d 887 (2004).

. . .

Rather, the question in this case is whether, once legitimately inside, the police acted lawfully in fanning out in search of those in control of the premises in an attempt to abate the noise nuisance. In this regard, the State relies exclusively on the community caretaker exception to the warrant requirement. On this score, the court found credible the testimony of Officer Camacho “that he and the other officers embark[ed] upon a search of the house to locate the owner or the ... person in charge of the ... residence[,]” but nevertheless concluded it was unreasonable for the police to extend their search beyond the first floor main living area because “[t]here [were] no exigent circumstances.”

As to the community care taking exception:

As is evident here, the community caretaking doctrine does not fit neatly within the “exigent circumstances” or “emergency aid” constructs and therefore their analytical framework is inapposite to a consideration of whether such police action is constitutionally tolerable. Indeed, no exigency existed here at least in the traditional law enforcement sense of hot pursuit of a fleeing felon, removal or destruction of evidence, or imminent danger to life or property. Yet the constitutional allowance of such intrusions simply recognizes that “some situations addressed by officers within their community caretaking functions, though not within the scope of traditional law enforcement, can still present important government interests that may rise to the level of traditionally recognized ‘exigent circumstances.’” Ray, supra, 626 F.3d at 176 (quoting United States v. Rohrig, 98 F.3d 1506, 1521-22 (6th Cir. 1996)).

Thus, the relevant question in community caretaking situations focuses not on the compelling need for immediate action or the time needed to secure a warrant, but instead on the objective reasonableness of the police action in executing their service function. Bogan, supra, 200 N.J. at 80, 975 A.2d 377.

. . .

We agree with Rohrig to the extent that there is no broad “nuisance abatement” exception to the general rule that warrantless entries into private homes are presumptively unreasonable. We adhere, as did the Bogan Court, to the “objectively reasonable” test, Bogan, supra, 200 N.J. at 81, 975 A.2d 377, and to the case-specific nature of the inquiry.

Governed thusly by the reasonableness standard, and weighing all of its component competing interests, we conclude that the police action in this instance was not constitutionally permitted. Although police entry into the dwelling was initially justified, their subsequent action in fanning out and conducting, in essence, a full-blown search of the home was neither reasonably related in scope to the circumstances that justified the entry in the first place nor carried out in a manner consistent with the factors supporting the entry’s initial legitimacy. Indeed, unlike Rohrig, the objective of noise abatement could have been achieved well short of the full-scale search engaged in by the officers in this matter.

Defendant’s motion to withdraw her guilty plea was before Gant was denied, and she appealed. Her guilty plea waived all constitutional issues, and didn’t change anything. State v. Wilson, 162 Wn. App. 409, 253 P.3d 1143 (2011).*

Stop for patronizing a prostitute here was without reasonable suspicion. State v. Diluzio, 254 P.3d 218 (Wash. App. 2011)*:

¶20 The facts in Mr. Diluzio's case are similar to those in Doughty and provide even less justification for a stop. Here, as in Doughty, the investigatory stop was based on the officer's observation. The officer saw Mr. Diluzio having a conversation with a woman who got into the passenger side of his vehicle. There was no police informant and the police officer did not see any money change hands and did not overhear any conversations between the two individuals. Neither individual was known to have been involved in prostitution or solicitation activities. These incomplete observations do not provide the basis for a Terry stop.

A nonflagrant violation of the state constitution did not require suppression of a confession that was attenuated from the violation. “¶33 In sum, we hold that the Harris exception is incompatible with the exclusionary rule under article I, section 7 of the Washington Constitution but that Eserjose's confession was not attributable to the illegal arrest. Thus, the trial court did not err in determining that Eserjose's confession was admissible under article I, section 7 of our state constitution as well as the Fourth Amendment to the United States Constitution. Eserjose’s conviction is accordingly affirmed.” State v. Eserjose, 171 Wn. 2d 907 (2011).*

Telling the defendant to essentially stay put while his DL was checked for wants or warrants did not turn a consensual encounter into a Fourth Amendment seizure. United States v. Lowe, 2011 U.S. Dist. LEXIS 74637 (S.D. Ga. June 16, 2011).*

Defense counsel’s failure to move to suppress the search of defendant’s house would not have changed the outcome because the bulk of the evidence came from his car, which he did not challenge. United States v. Perez, 2011 U.S. Dist. LEXIS 74506 (E.D. Pa. July 11, 2011).*

Officers had reasonable suspicion for a stop for defendant being in possession of drugs, but he also crossed the fog line three times while being followed. He was stopped and given a field sobriety test. In the meantime, a drug dog arrived and alerted, and that gave probable cause to search the car. The four minutes between the stop and the arrest was not unreasonably long. United States v. Sicairos-Sicairos, 2011 U.S. Dist. LEXIS 74557 (N.D. Ga. July 11, 2011), R&R 2011 U.S. Dist. LEXIS 74556 (N.D. Ga. June 20, 2011).*

Defendant previously litigated the search warrant in his case as an outrageous governmental conduct claim, not a Fourth Amendment claim. Thus, it is defaulted as a Fourth Amendment claim in his 2255. United States v. Holler, 2011 U.S. Dist. LEXIS 74139 (C.D. Cal. July 6, 2011).*

ABAJ: Cops to Get Facial Recognition Devices; Will They Need Warrants to Use Them? by Debra Cassens Weiss:

Police departments in several states are getting new high-tech devices that can scan irises, recognize faces and collect fingerprints.

The devices, made by BI2 Technologies, are attached to an iPhone for immediate searches of criminal databases, the Wall Street Journal (sub. req.) reports. The development is “raising significant questions about privacy and civil liberties,” the story says.

Currently the technology, called “Moris” for Mobile Offender Recognition and Information System, is used by the military to identify insurgents. But B12 has contracts to sell about 1,000 of the Moris devices to 40 police agencies, the story says.

The Wall Street Journal interviewed George Washington University law professor Orin Kerr about the legal implications. Generally, police can take pictures of anyone in a public space. But after an officer stops or detains someone, police need “reasonable suspicion” to take fingerprints.

Whether a warrant will be needed to use facial recognition or an iris scan is “a gray area of the law,” Kerr said. “A warrant might be required to force someone to open their eyes.”

We're taking away your Fourth Amendment rights, and we have an App for that.

A “static 911” call, once officers got to the scene, was not exigency for an entry. One door of the house was unlocked, but it was in a rural area. It was also disheveled, but there was no indication there was anybody at home at all, let alone the bare possibility that somebody inside might be in need of aid. The burglar alarm cases from sister circuits are inapposite. United States v. Martinez, 643 F.3d 1292 (10th Cir. 2011):

The sanctity of the home is too important to be violated by the mere possibility that someone inside is in need of aid — such a “possibility” is ever-present. It is for this reason that exceptions to the Fourth Amendment’s warrant requirement are “subject only to a few specifically established and well-delineated exceptions.” Mincey, 437 U.S. at 390 (quoting Katz v. United States, 389 U.S. 347, 357 (1967)) (internal quotation marks omitted). The district court understood the law and properly applied it in this case.

Finally, the government claims the district court erred by relying “on its own experience rather than deferring to the officers’ experience.” Aplt. Br. at 37. The government’s argument is unpersuasive. The district court need not jettison all common sense when reviewing the evidence. It need only consider the evidence from the viewpoint of a “prudent, cautious, and trained officer[].” Najar, 451 F.3d at 719. We are satisfied the district court did so.

Because the officers lacked a reasonable basis for believing an individual inside Mr. Martinez’s home was in need of immediate aid or assistance, we agree with the district court’s determination that the warrantless search of Mr. Martinez’s home was a violation of the Fourth Amendment.

Consent found from pointing to where defendant was hiding. United States v. Livingston, 429 Fed. Appx. 751 (10th Cir. 2011):

Of course, this raises the question whether Ms. Adams actually gave consent. But the answer here is clear. Before entering the bedroom, the officers asked Ms. Adams where Mr. Livingston was located. She responded “in the closet,” pointed in that direction, and stepped out of the bedroom to let the officers in. From this exchange, “reasonable law enforcement officer[s] would have understood” that Ms. Adams consented to the search of the bedroom and closet. United States v. Flores, 48 F.3d 467, 468-69 (10th Cir. 1995); see also United States v. Mains, 33 F.3d 1222, 1227 (10th Cir. 1994). While she did not expressly tell the officers to come in, Ms. Adams’s “non-verbal conduct” in pointing to the closet and stepping out of the bedroom constituted a voluntary consent to search. See, e.g., United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999).

The renter of the apartment defendant was staying in had common and apparent authority to consent. [If anything, he had greater authority compared to defendant who was an occasional visitor.] United States v. Bone, 433 Fed. Appx. 831 (11th Cir. 2011).*

Getting GPS location data from cell phone provider so defendant could be located to be arrested did not violate the Fourth Amendment or the N.J. Constitution. State v. Earls, 420 N.J. Super. 583, 22 A.3d 114 (2011):

Similarly, in Devega, the police ascertained a murder suspect’s general location on a public highway by having his cell phone provider “ping” his phone. 689 S.E.2d at 299. In rejecting the defendant’s argument that his trial counsel had been ineffective in failing to move for suppression of evidence on the theory that such electronic monitoring violated the Fourth Amendment, the court stated:

“The GPS tracking device [and ‘ping’ information] in the case at bar is simply the next generation of tracking science and technology from the radio transmitter ‘beeper’ in Knotts, to which the Knotts Fourth Amendment analysis directly applies.” ... Because the warrantless monitoring of his cell phone location revealed the same information as visual surveillance, there was no Fourth Amendment violation.

[Id. at 300 (quoting Stone, supra, 941 A.2d at 1250).]

We conclude, as did the courts in Forest and Devega, that the use by the police of information obtained from T-Mobile concerning defendant’s general location, derived from signals emitted by his cell phone, which together with visual surveillance resulted in discovery of his car in a motel parking lot, did not violate any legitimate expectation of privacy defendant may have had regarding the location of his car. As in Knotts, “[w]hen [defendant] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction ... and the fact of his final destination” at the motel, 460 U.S. at 281-82, 103 S. Ct. at 1085, 75 L. Ed. 2d at 62, and “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them,” id. at 282, 103 S. Ct. at 1086, 75 L. Ed. 2d at 63.

We reach the same conclusion under Article I, paragraph 7, of the New Jersey Constitution. ...

I can't decide whether this case is correct as far as it goes. Five years ago, I wouldn't have thought about it like I do now, and I am troubled by the future. Everybody should be. While we wring our hands over the planted GPS case, what of using the fact that all cell phones sold in the U.S. since 2008 have GPS in them? Can the government uniformly follow anybody by the GPS in their telephones without a warrant? It's a Brave New World, and it scares the hell out of me.

Defendant’s standard conditions of supervised release for his child pornography conviction require that any computer he have access to have software that permits monitoring by U.S. Probation. The condition is reasonable, and he is already subject to a search and seizure condition anyway. He is free to seek modification of the conditions in the future as technology changes. United States v. Quinzon, 634 F.3d 1266 (9th Cir. 2011).

Defendant did not show that his counsel was ineffective for not filing a motion to suppress that would have failed on the merits anyway. United States v. Williams, 2011 U.S. Dist. LEXIS 73799 (E.D. La. July 8, 2011).*

The “apparent authority” doctrine of consent does not offend the Connecticut Constitution. State v. Buie, 129 Conn. App. 777, 21 A.3d 550 (2011).*

Thomson-Reuters: A new law-enforcement tool: Facebook searches:

U.S. law-enforcement agencies are increasingly obtaining warrants to search Facebook, often gaining detailed access to users' accounts without their knowledge.

A Reuters review of the Westlaw legal database shows that since 2008, federal judges have authorized at least two dozen warrants to search individuals' Facebook accounts. Many of the warrants requested a laundry list of personal data such as messages, status updates, links to videos and photographs, calendars of future and past events, "Wall postings" and "rejected Friend requests."

Federal agencies seeking the warrants include the FBI, DEA and ICE, and the investigations range from arson to rape to terrorism.

The Facebook search warrants typically demand a user's "Neoprint" and "Photoprint" -- terms that Facebook has used to describe a detailed package of profile and photo information that is not even available to users themselves.

These terms appear in manuals for law enforcement agencies on how to request data from Facebook. The manuals, posted on various public-advocacy websites, appear to have been prepared by Facebook, although a spokesman for the company declined to confirm their authenticity.

The review of Westlaw data indicates that federal agencies were granted at least 11 warrants to search Facebook since the beginning of 2011, nearly double the number for all of 2010. The precise number of warrants served on Facebook is hard to determine, in part because some records are sealed, and warrant applications often involve unusual case names. (One example: "USA v. Facebook USER ID Associated with email address jimmie_white_trash@yahoo.com," a sealed case involving a drug sale.)

On CNET news: DOJ: We can force you to decrypt that laptop By Declan McCullagh. The issue is a Fifth Amendment issue issue of privacy:

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent.

The tribal officer governed by the Fourth Amendment approaching the front door instead went to a window to peek inside to see if the defendant was inside. Looking in a window not associated with the point of entry was an unreasonable search of the interior. United States v. Fuentes, 800 F. Supp. 2d 1144 (D. Ore. 2011):

Under the government’s interpretation of [United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001)], whenever an officer knocks on the door of a home and the occupant declines to respond, the officer is free to roam the property and peer into any window of the home simply by asserting that they were attempting to contact the occupants. Such a rule would eviscerate the occupant’s right to decline to answer the door. See King, 131 S. Ct, at 1862 (“the occupant has no obligation to open the door or to speak”). Further, if an officer is permitted to breach the curtilage of a home, press his face to the glass of any window, and peer into the home whenever he asserts he is attempting to contact the occupant, what would prevent him from opening the front door or a window? After all, the officer would have a better chance of contacting the occupant that way. I decline to extend Hammett and Garcia to circumstances in which law enforcement officers enter the curtilage of a home, stand within inches of a window not associated with any point of entry, and peer inside without a warrant or any other justification.

Finally, the government suggests that Kentucky v. King, 131 S. Ct. 1849 (2010), supports the detectives’ warrantless search of Fuentes’ living room. I disagree. Unlike the exigent circumstances in King, where officers detected the strong smell of marijuana, knocked on the door, and then heard the sound of evidence being destroyed, there were no exigent circumstances preceding Detective Webb’s search of Fuentes’ living room. At the time Detective Webb looked into Fuentes’ living room, he had no specific, particularized basis for believing that a crime had been committed, that his safety was threatened, or that evidence was being destroyed. That the detectives heard movement after Fuentes refused to answer the door does not give rise to a reasonable belief that a warrantless search was necessary to ensure officer safety or prevent the imminent destruction of evidence. King does not support the conclusion that Detective Webb’s warrantless search of Fuentes’ living room was justified.

Under the specific circumstances of this case, I find it was unreasonable for Detective Webb to enter the curtilage of Fuentes’ home, stand within inches of a window that is not associated with any point of entry, and peer into the home without any particularized basis for believing exigent circumstances existed. Accordingly, the detectives’ observations of the marijuana pipe were unlawful.

Where a drug search warrant includes “electronic documents” for drug information, it authorizes seizure of a computer found in the house. United States v. Sutton, 2011 U.S. Dist. LEXIS 73582 (C.D. Ill. July 8, 2011)*:

The government argues that the face of the warrant, commanding officers to search for electronic documents relating to illicit drug trafficking, covered a search of the computer. The court agrees. “The Fourth Amendment requires that a warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging through one’s belongings. The description of the items to be seized limits the scope of the search to the area where those items are likely to be discovered.” United States v. Mann, 592 F.3d 779, 782 (7th Cir. 2010). The question then, is whether in light of the limitations in the warrant, the execution of the search warrant was reasonable. Mann, 592 F.3d at 782.

It is reasonable to suspect that a computer could contain electronic documents relating to the purchase or delivery of drugs, as covered in the warrant. Further, a computer could contain electronic records of residency. The warrant expressly authorizes a search for “documents tending to show identification and residency” and it is reasonable for a police officer to suspect that a computer would contain just such a document or record, even though the warrant itself did not explicitly list computers. Further, in an abundance of caution, the police sought an additional warrant to fully search the computer after it was seized and removed from the apartment. The court would also note Defendant did not point to any case law supporting his argument that the computer search exceeded the scope of the warrant. Therefore, Defendant's Motion to Exclude Video Evidence (#38) is DENIED.

So, law enforcement officers can put in a search warrant application that they want “electronic documents” for drug information, and that means that any drug warrant can turn into a computer search? That's essentially what this case holds.

During a stop, a “request” for identification is really a demand, and the officer’s keeping the ID while running it is a seizure of the person. Nevertheless, on the totality of circumstances, the officers had reasonable suspicion to detain the defendant. United States v. Zuniga-Valencia, 2011 U.S. Dist. LEXIS 73538 (D. Neb. June 3, 2011).*

The affidavit for the search warrant for defendant’s property showed nexus, which is a part of the probable cause analysis. In addition, the affidavit was not so bare bones that the good faith exception should not apply. United States v. Beetz, 2011 U.S. Dist. LEXIS 73557 (S.D. Ohio July 8, 2011).*

Plaintiff’s cell phone was confiscated at school for using it to make a call. The principal told the student he looked through the pictures on the phone while it was in his possession. Defendants’ motion for judgment on the pleadings denied. N.N. v. Tunkhannock Area Sch. Dist., 2011 U.S. Dist. LEXIS 73637 (M.D. Pa. July 8, 2011),* commented on at Are Student Cell Phone Records Discoverable? on Law.com.

The DUI roadblock in this case satisfied the state supreme court’s standards, and the fact only 1.6% of the persons stopped resulted in arrest is a reasonable effective rate like in Sitz. City of Overland Park v. Rhodes, 46 Kan. App. 2d 57, 257 P.3d 864 (2011)*:

“Numerous conditions and factors must be considered in determining whether a DUI roadblock meets the balancing test in favor of the [State]. Among the factors which should be considered are: (1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test. Not all of the factors need to be favorable to the State but all which are applicable to a given roadblock should be considered.”

Defendant’s wheel touching the yellow line three times was justification for a stop. Defendant was arrested and convicted for DUI. State v. Brewer, 2011 Tenn. Crim. App. LEXIS 511 (July 7, 2011).*

Grits For Breakfast today: Is Fourth Amendment dead or just in a coma? Debating when to pull the plug:

These days, being a fan of the Fourth Amendment is a bit like being an aficionado of horse racing or boxing ... a bit anachronistic and out of sync with the times, doomed to tilting at mostly irrelevant windmills that nobody else around you cares about. Until recently, I might have said Americans care less about the Fourth Amendment than, say, the heavyweight boxing championship. But after a recent, lackadaisical heavyweight title bout coupled with renewed Fourth Amendment interest from grass-roots conservative quarters, perhaps Grits would revise that to say Americans care more about the Fourth Amendment than boxing, though probably still less than soccer.

. . .

The Fourth Amendment may indeed be dead. Certainly its corpus appears lifeless and inert in the hands of the current US Supreme Court. But if so, the question becomes, will it become a martyr for the cause of renewing personal privacy in the digital era, or just another nameless, faceless battlefield casualty? One wonders: Will anyone mourn the Fourth Amendment's death, or will everyone just move to their new .secure domain listing and go on their merry way?

[Note: I can open Grits for Breakfast, but pasting in the URL isn't working. Sorry.]

Joshua Gruenspecht, "Reasonable" Grand Jury Subpoenas: Asking for Information in the Age of Big Data, 24 Harv. J. L. & Tech. 543 (2011):

Grand juries use the subpoena duces tecum to request and collect evidence held by a party or witness. In so doing, they serve as an investigative arm of the prosecution. Though subpoenas, unlike warrants, can be issued with less than probable cause, they receive less attention from commentators because subpoenas do not result in the state’s exercise of its powers to search a suspect’s property without his consent. Instead, they are used to request documents and information that the prosecution suspects will be material in the case. The advent of mass digital storage, however, has significantly increased the chances that records of any given document exist and is increasingly unifying the locations in which those records can be found. Both in the case of digital data stores held by users themselves and in the case of data stored by users with third parties, the extent of the subpoena power increasingly rests on the question of how specific a prosecutorial request for documents must be.

Faced with increasing amounts of stored digital information, courts and commentators have attempted to apply old rules in a new context. The knotty Fourth Amendment questions that arise from the production of electronically stored information through warrants have received particular scrutiny. Civil liberties groups have argued that the Constitution demands a probable cause standard for various kinds of digital searches by law enforcement, while public interest and industry coalitions have pushed for legislation to address the issue. While standards for the use of warrants for the collection of evidence have been the subject of judicial conflict, scholarly debate, and public outcry, standards for the use of the grand jury subpoena have slipped by relatively unnoticed. Given the potential scope of digital subpoenas, this is surprising. As one commentator has noted, “[w]hereas the subpoena power is fairly narrow in traditional cases, in computer crime cases it is incredibly broad.”

Defendant’s daughter used the family computer to search for music files, and she found a picture of her naked torso. She looked further and found child pornography. She printed it out and gave it to a friend for safekeeping. A search warrant was properly issued for the computer, and defendant’s Franks challenge fails because it didn’t matter on the probable cause question. The search was proper in scope for digital information. United States v. Jones, 2011 U.S. Dist. LEXIS 73369 (D. Nev. April 13, 2011)*:

Furthermore, the nature of digital information is different from other searchable items. The warrant affidavit explains:

As is the case with most digital technology, communications by way of computer can be saved or stored on the computer used for these purposes. Storing this information can be intentional, i.e., by saving an email as a file on the computer or saving the location of ones' favorite website(s) in, for example, "bookmarks" files. Digital information can also be retained unintentionally, e.g., traces of the path on an electronic communication may be automatically stored in many places.

Computer hard drives and other removable storage media ... are convenient items in which digital information can be stored for later retrieval.

Affidavit to Warrant at 7 ¶¶ 4, 5, Attached as Exhibit A to Defendant's Motion (#24). In this context, the warrant was as precise as it could be in relation to searching for evidence of child pornography and child pornography related chats.

Defendant was properly strip searched under Bell v. Wolfish after being booked on a DWI arrest when she said nobody would come and get her. A condom was seen protruding from her vagina, and she wouldn’t produce it on request, so they took it finding cocaine. State v. Burks, 2011 Ohio 3365, 2011 Ohio App. LEXIS 2852 (4th Dist. May 13, 2011).*

In this case, there was a hearing over whether the defendant had standing in the business premises as the “manager” or other responsible person. Since the court found that a person with apparent authority consented, the standing question is pretty much moot. The USMJ also found that Minnesota v. Carter also would deny standing since the business was used for illegal purposes, but that is not decided by the USDJ. United States v. Akins, 2011 U.S. Dist. LEXIS 73495 (W.D. Tenn. July 6, 2011).*

Search of defendant’s car was with probable cause, so inventory question is moot. United States v. Frazier, 429 Fed. Appx. 730 (10th Cir. 2011).*

Defendant got shot in his house and went to the hospital. He called a friend to take care of the house while he was hospitalized. When the friend got there, he saw a bloody sheet in the house, and he called the police to come and look for intruders, knowing that defendant's assailants had not been apprehended. As a house-sitter, he had apparent authority to consent to that entry for a protective sweep, and bomb-making materials were found. State v. Telshaw, 2011 Ohio 3373, 195 Ohio App. 3d 596, 961 N.E.2d 223 (7th Dist. 2011):

[*20] Using Huntington as a guide in our analysis, it appears that in the instant case, Mr. Utsinger's function is directly analogous to a house-sitter. As such, he had authority to allow police into Appellant's house. In the matter before us, Mr. Utsinger had authority over the entire premises and its contents, and was specifically asked to safeguard both. There is no evidence of any limitation on Mr. Utsinger's authority over the property, and no evidence that Appellant instructed Utsinger not to allow police to help him secure the property if needed. Appellant actually told Utsinger to safeguard the property in the house as well as the house, thus giving him free reign over the entire premises. Furthermore, Utsinger did not ask the police to enter the property to look for evidence that Appellant had committed a crime, but rather, to help Utsinger secure the property as he had been directed. Although Appellant did not specifically give Utsinger instructions to reside in the property, it is clear from the record that Utsinger had plenary control over the property to inspect it, examine it, protect it, secure it, and perform whatever function was necessary to safeguard the premises and its contents. Thus, any reasonable police officer would conclude that Utsinger had at least the authority to ask for police assistance in checking the premises for intruders when he found the front door open and a bloody sheet in the doorway, knowing that a crime recently had been committed on the property and that the perpetrators had not yet been apprehended.

NECN.com, Ind. first to require drug tests for job training:

SOUTH BEND, Ind. (AP) — A new Indiana rule requiring drug tests for unemployed people participating in state-funded job training programs reflects a hard stance many states are taking regarding public assistance as they struggle with limited financial resources.

The U.S. Department of Labor says Indiana is the first state to require drug testing of people seeking job training. But at least 30 states have considered requiring drug tests for those receiving government assistance, including Florida, which began requiring drug tests of welfare applicants on July 1.

Workforce Development Commissioner Mark Everson says Indiana's change reflects the state's economic realities and also some frustration from business owners, who've questioned why drug users should be participating in the job training program when they won't pass workplace drug screening.

These guys just don't get it. I wish I could show you Chapter 31 of the Fourth Edition on this, but it won't be out until December.

Orin S. Kerr, Good Faith, New Law, and the Scope of the Exclusionary Rule, 99 Geo. L. J. 1077 (April 2011):

Lower courts recently have divided on whether the good faith exception to the Fourth Amendment exclusionary rule applies to reliance on overturned case law. This Article argues that the Supreme Court should reject the good faith exception in this setting. A suppression remedy for new law creates necessary incentives for criminal defendants to challenge existing precedents. The exclusionary rule deters constitutional violations by creating an environment for appellate decision making in which constitutional errors can be corrected. The costs of the exclusionary rule for overturned law are comparatively minor, as other doctrines already limit the scope of the exclusionary rule. The benefits of the exclusionary rule for reliance on overturned case law exceed its costs, and the rule therefore should be retained.

Kerr argued for the losing citizen-accused and Fourth Amendment in Davis v. United States.

Since a person has the right to walk, even run, away from a “consensual encounter,” he cannot be arrested for not complying with what would have been a “consensual encounter.” State v. Joe, 2011 N.C. App. LEXIS 1396 (July 5, 2011).*

Leaving a known drug house that police had targeted, then going back in, coupled with nervousness and shielding one side of his body with a sagging coat that suggested a weapon in the pocket was reasonable suspicion. This started as a consensual encounter. United States v. Johnson, 2011 U.S. App. LEXIS 13852, 2011 FED App. 0451N (6th Cir. July 6, 2011)*:

However, in this case we have much more than mere presence in an area known by the officers to be prone to drug trafficking. First, the officers were directed to a particular address based upon information from a confidential informant. Second, shortly after their arrival, the officers saw defendant approaching that address and called out to speak with him. Rather than stop, which he had no legal obligation to do, defendant entered the building for fewer than five seconds before re-emerging. Third, even though defendant agreed when asked to produce identification, he “fumbled” when doing so and the officers observed that he appeared to shield one side of his body. And, fourth, Officer Morton noticed that defendant’s coat was sagging, which he believed might indicate a weapon. All of these factors support the district court’s conclusion that the officers had a reasonable, particularized suspicion to conduct a Terry stop followed by a pat-down. In our view, the critical factor is defendant’s hurried entrance into the very building that the officers planned to target followed by a remarkably quick exit. Because we must give “due weight” to the officers’ factual inferences in deference to their specialized training, Luqman, 522 F.3d at 616, it is hardly a stretch to conclude that they reasonably thought that defendant’s five-second visit was an attempt to warn drug traffickers of the police presence. At the very least, it is enough to justify the initial Terry stop. Thereafter, the manner in which defendant positioned his body while talking to the officers, coupled by his fumbling in an inside pocket, justified the pat-down that uncovered the weapon. See United States v. Ellis, 501 F.3d 958, 961 (8th Cir. 2007) (a protective frisk is justified if officer had reasonable suspicion that criminal activity is afoot).

Defendant’s general consent to search his house for cash and drugs included a safe and his wallet. United States v. Baldwin, 2011 U.S. Dist. LEXIS 73010 (N.D. Ga. June 17, 2011), adopted 2011 U.S. Dist. LEXIS 73034 (N.D. Ga. July 7, 2011):

Defendant contends that the “search of the safe and the wallet went beyond the scope of any consent [he] could be construed as having given.” (Def.’s Br. 10.) “A consensual search is manifestly reasonable so long as it remains within the scope of the consent.” United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992) (citing Florida v. Jimeno, 500 U.S. 248, 249 (1991)). “When a defendant gives a general statement of consent, the scope of the permissible search ‘is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass.’” United States v. Telcy, 362 F. App’x 83, 87 (11th Cir. 2010) (per curiam) (quoting United States v. Street, 472 F.3d 1298, 1308 (11th Cir. 2006)).

As summarized above, defendant verbally consented to a search of the house in response to SA Mueller’s query whether there were weapons, cash, or narcotics in the house. In addition, defendant signed a form granting consent to search his property and vehicles. (Govt. Ex. 2.) Permission to search an area for narcotics “may be construed as permission to search any compartment or container within the specified area where narcotics may be found.” Martinez, 949 F.2d at 1119.

Five Atlanta police officers were fired for lying during an investigation into a raid on a gay bar where patrons' Fourth Amendment rights were violated. Nine more were reprimanded, and over $1M paid out in settlements. See WSB2 Atlanta: 6 APD Officers Fired Over Eagle Raid:

“The reports conclude that most of the officers involved in the operation did not conform to the APD's standard operating procedures,” the mayor’s office said.

Officers said they raided the bar on Ponce de Leon on Sept. 10, 2009, after they got a tip that drugs were being sold and that sex acts were taking place there. Police searched about five dozen patrons and arrested eight employees in the raid. Witnesses said officers used anti-gay slurs and roughed up customers.

The report said patrons were unnecessarily forced on the ground while background checks were run. When asked why, one officer said, “There’s a risk factor involved when you’re dealing with people you don’t know anything about. S&M, that has a stigma of some sort of violence,” according to the report.

Another officer is quoted as saying, “Seeing another man have sex with another man -- I would classify that as very violent.”

The city paid 28 people $1,025,000 to settle the federal lawsuit.

The handling of the customers was clearly a violation of Ybarra, decided in 1979. How much notice do they need?

SCOTUSBlog: Review of the Court’s Fourth Amendment cases, Orin Kerr reviews the Fourth Amendment cases of OT10.

Warrantless Computer Searches and Fourth Amendment Rights by Sharon M. Porcellio, New York Law Journal, July 8, 2011 (sub. req.).

The officer’s pulling defendant’s underwear out to retrieve drugs he felt at the waist was not an unreasonable invasion of privacy. Defendant wore his pants belted below his buttocks, and his underwear was already exposed. Partlow v. State, 199 Md. App. 624, 24 A.3d 122 (2011)*:

Turning to the scope, manner, and location of the search, appellant contends it was unreasonable because it occurred on a public street and exposed a portion of his buttocks to passers by. Appellant's clothing was not removed from his body, however, and, indeed, his underwear was already exposed to the public by the manner in which he chose to wear his pants.

Schultz testified, and the suppression court credited his testimony, that he pulled appellant's underwear up after feeling a hard object under his buttocks, but he was unable to remove the object. He therefore cut away a small piece—less than the size of a baseball—of appellant's underwear so as to remove the object. Schultz further testified that the search was undertaken on the passenger side of the police cruiser, away from the view of traffic, and that he generally stands behind the person he is searching to conduct the search. It thus appears that the officer made some effort to protect appellant's privacy.

Plaintiff, a 63 year old arthritic woman visiting her son who was pushed to the ground and threatened to be shot in the front yard during a drug raid on the house, had her claim barred by qualified immunity. “[B]ased on the facts alleged, ‘would [it have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted’? [Saucier] at 202. [¶] The district court answered the first question in the negative, concluding that the facts alleged by Croom, even if proven to be true, did not establish a Fourth Amendment violation. Though we are sympathetic to Croom’s plight and frustration, after careful consideration, we must agree.” Croom v. Balkwill, 645 F.3d 1240 (11th Cir. 2011).* [During a drug raid, apparently it’s appropriate to threaten non-threatening grandmothers wearing only a bathing suit watering the plants (and obviously unarmed) with a handgun to the head.]

Officers had a search warrant based on probable cause, and they came to defendant’s house, finding him in the front yard, holding his child and standing next to his wife. He pulled out a gun and attempted to hand it to his wife, but it fell to the ground. The observation was valid because the warrant was issued with probable cause. [Not to mention this happened in the front yard and officers saw it as they approached.] United States v. Williams, 2011 U.S. Dist. LEXIS 72434 (M.D. La. July 5, 2011).*

Defendant was arrested at the threshold and need clothes. A protective sweep was appropriate before he was permitted to get any. United States v. Cooper, 2011 U.S. Dist. LEXIS 72585 (N.D. Ohio March 24, 2011).*

Defendant was not on the rental agreement as an authorized driver of the rental car, so he lacked standing (declining to follow an unpublished decision from the same circuit). United States v. Sutmiller, 2011 U.S. Dist. LEXIS 72657 (W.D. Okla. July 6, 2011).*

Defendant’s wife consented, and he was present and never objected. United States v. Mooney, 2011 U.S. Dist. LEXIS 72388 (N.D. Fla. July 6, 2011).*

Face-to-face encounter with a woman who reported defendant with a gun was reliable enough information for a patdown. D.P. v. State, 65 So. 3d 123 (Fla. App. 3d DCA 2011), Rehearing denied, 2011 Fla. App. LEXIS 11795 (Fla. Dist. Ct. App. 3d Dist., July 21, 2011).*

Defendant was validly stopped for a violation of curfew. Given that, the request for consent was valid. People v. Leach, 355 Ill. Dec. 266, 959 N.E.2d 680 (2011), Appeal denied by People v. Leach, 2011 Ill. LEXIS 1877 (Ill., Nov. 30, 2011).*

The search of the apartment here was by consent from someone with apparent authority. Also, defendant repeatedly denied living there on the record, so he likely lacked standing, but the district court did not rule on standing, so the appellate court won’t either. United States v. Marrero, 651 F.3d 453, 2011 FED App. 0175P (6th Cir. 2011).*

At trial, the defendant officers came forward with evidence of exigent circumstances justifying their actions. The jury was properly instructed on the plaintiff’s burden of proof. Bogan v. City of Chicago, 644 F.3d 563 (7th Cir. 2011).*

Defendant’s request for a Franks hearing was properly denied. “Because Erickson failed to offer any proof in support of his claims, the district court’s denial of his request for a Franks hearing was not error.” United States v. Cha, 2011 U.S. App. LEXIS 13722 (11th Cir. June 20, 2011) (unpublished).*

The protective sweep of defendant’s house was invalid, and the government’s raising that issue three times without a motion to reconsider borders on being impertinent. Nevertheless, there was a search warrant independently issued, and that cured the view of the protective sweep. United States v. Gillespie, 2011 U.S. Dist. LEXIS 71473 (E.D. Mich. July 1, 2011).*

Defendant was stopped for talking on a cell phone. Once stopped, the police were free to look at the interior of his car. He also consented to a search of the car. United States v. Pichardo, 2011 U.S. Dist. LEXIS 72045 (D. V.I. July 5, 2011).*

Defendant’s detention was lawful under Michigan v. Summers, so defense counsel was not ineffective for not raising it. United States v. Bailey, 652 F.3d 197 (2d Cir. 2011).*

Defendant consented to a search of his computers for evidence of bank fraud. In the process, officers stumbled upon child pornography and obtained a search warrant. Thus, the scope of consent was not exceeded. United States v. Babb, 2011 U.S. Dist. LEXIS 71630 (W.D. Ky. July 1, 2011):

Defendant consented to having his computers searched for evidence of bank fraud. Part of a forensic examination for bank fraud involves browsing through images on the computer looking for fraudulent check images. Transcript of March 3, 2011 hearing, DN 48, pg. 168. In the process of viewing these images searching for checks, the forensic examiner encountered an image he suspected was child pornography. Id. The examiner immediately stopped his search. Id. at 169. A search warrant was obtained to search specifically for child pornography based on the image seen in plain view. Id.; see e.g., United States v. Lucas, 640 F.3d 168, 2011 WL 1775685 (6th Cir. 2011); United States v. Underwood, 2010 WL 5313766 (W.D.Ky. Dec. 20, 2010); United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010). Accordingly, the scope of the consent was never exceeded.

On the Cato Institute's website: I Guess the ‘You Are All Criminals Act’ Didn’t Have the Same Ring, by Julian Sanchez:

If you thought it was the height of cynicism when legislators dubbed a massive expansion of government surveillance power the “USA Patriot Act” (recently extended—really!—under the heading of small business legislation), feast your eyes upon the Protecting Children from Internet Pornographers Act of 2011, on which the House Judiciary Committee is slated to hold a hearing next Tuesday. What kind of monster would dare be on the record opposing that bill?

As you may have already guessed, the handful of provisions in the bill that really deal specifically with child porn are a fig leaf for its true purpose: A sweeping data retention requirement meant to turn Internet Service Providers and online companies into surrogate snoops for the government’s convenience. Any provider of an “electronic communication” or “remote computing” service—meaning broadband providers like Comcast, but also companies like Google—would have to retain records of the “temporarily assigned network address” (such as an IP address) associated with each account for 18 months. Some of the other provisions in the act seem perfectly reasonable (though I don’t know enough to say whether they’re necessary), but as a hearing earlier this year made crystal clear, it’s the data retention requirement that the government really cares about.

Thanks to an unwise Supreme Court decision dating from the 70s, information about your private activites loses its Fourth Amendment protection when it's held by a “third party” corporation, like a phone company or Internet provider. As many legal scholars have noted, however, this allows constitutional privacy safeguards to be circumvented via a clever two-step process. Step one: The government forces private businesses (ideally the kind a citizen in the modern world can’t easily avoid dealing with) to collect and store certain kinds of information about everyone—anyone might turn out to be a criminal, after all. No Fourth Amendment issue there, because it’s not the government gathering it! Step two: The government gets a subpoena or court order to obtain that information, quite possibly without your knowledge. No Fourth Amendment problem here either, according to the Supreme Court, because now they’re just getting a corporation’s business records, not your private records. It makes no difference that they’re only keeping those records because the government said they had to.

A woman heard water running in an adjoining apartment from an apparent leak that was coming down her basement wall into an electrical box. She couldn’t find the neighbor and called 911 fearing an electrical fire. When firemen arrived, they entered defendant’s apartment and went to the basement to turn off the water. There they found a grow operation. The entry was justified by the community caretaking function. People v. Slaughter, 489 Mich. 302, 803 N.W.2d 171 (2011).

Defendant was arrested, and there was probable cause for a search of his vehicle. The vehicle was impounded and towed to the police station for a search warrant. The impoundment of the vehicle and removal was valid under the state constitution even though defendant was in custody. Commonwealth v. Griffin, 2011 PA Super 138, 24 A.3d 1037 (2011).*

Defendant was suspected of planning home invasion robberies, and Miami-Dade officers surveilled his apartment for three days, with nothing happening. Then they decided to do a knock-and-talk, and one officer went to the roof to get a better view. The knock-and-talk was valid, and entry was consented to by someone with authority. However, the view from the roof was excessive for a knock-and-talk because it is not a part of the premises that people are invited to, such as the front door. From the roof, defendant was observed through a window handling several firearms. United States v. Pupo-Reynaldo, 2011 U.S. Dist. LEXIS 71171 (S.D. Fla. June 6, 2011):

Although the undersigned finds that Ms. Baguet invited law enforcement officers inside the defendant's residence and voluntarily consented to the search of residence, observations made by Detectives Gonzalez and Adderly while on the rooftop of the defendant's terrance must be suppressed. The detectives' access to the rooftop of the defendant's residence was not permissible. United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) (officers are permitted to approach a residence in the same manner as any private citizen would approach a residence). Detectives Gonzalez and Adderly observed the defendant attempting to dispose of firearms from the second story window at the back of the residence. At the time, Ms. Baguet had not yet provided consent to search the residence. Accordingly, the undersigned recommends that these observations be suppressed.

[In the overall scheme of things, the prosecution goes forward, and one witness doesn't get to testify.]

Entry into a parked car at 2:44 am with engine running and driver unresponsive was justified by emergency exception. United States v. Coleman, 2011 U.S. Dist. LEXIS 71272 (D. N.J. July 1, 2011).

A person who entered the United States illegally is not a part of “the people” entitled to claim Second [or Fourth] Amendment protection. United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011), revised June 29, 2011.*

Armed officers came with a vest with “POLICE” on it for a knock-and-talk. Defendant invited them in. The court finds there was no threat to get a search warrant if defendant did not consent. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 70605 (S.D. Fla. June 29, 2011).*

Officers were denied qualified immunity on plaintiff’s claim that, during a drug raid, they dragged her from the shower nude, and placed her face down on the floor of the house for 30-45 minutes with inappropriate and crude comments about her nudity, including one touching her buttocks. Rettele involving two minutes of nudity during a raid is distinguished. She sued for Fourth Amendment unreasonableness, invasion of privacy, and tort of outrage. Hutchinson v. Lemmon, 436 Fed. Appx. 210 (4th Cir. 2011):

Here, the unlawfulness of the individual officers’ conduct was obvious, even before the Supreme Court’s decision in Rettele. Accepting Ms. Hutchinson’s version of the events, she was kept naked for a period substantially longer than necessary to secure the home and protect the officers’ safety. There was no valid justification for the prolonged detention of Ms. Hutchinson while naked, especially given the police testimony that a home of that size ordinarily could be secured within four or five minutes. In engaging in this manifestly unlawful behavior, the individual officers could not have “reasonably misapprehend[ed] the law,” cf. Brosseau, 543 U.S. at 198, nor can it be said that they made a “bad guess[] in [a] gray area[],” cf. Iko, 535 F.3d at 238.

Our conclusion is supported further by two cases, each of which was decided before the individual officers’ prolonged detention of Ms. Hutchinson. These cases would have put a reasonable officer on notice that the individual officers’ alleged treatment of Ms. Hutchinson violated a clearly-established constitutional right.

[Even cops that are jerks can get qualified immunity. At least not here.]

Strobe lights on a police car are a command to stop. Here, the officer claimed he stopped defendant for speeding, but he was playing solitaire in the car and just glimpsed defendant going by. He didn’t even testify to what the speed limit was or how fast defendant was going. State v. Petzoldt, 2011 Iowa App. LEXIS 480 (June 29, 2011).*

The defendant told officers that co-defendant put cocaine down her pants, and he voluntarily removed it. That was not an unlawful strip search. When the cocaine fell out, it was then in plain view. State v. Young, 2011 Tenn. Crim. App. LEXIS 497 (June 30, 2011).*

The officer lacked reasonable suspicion to detain defendant for a drug dog. He questioned the driver and passenger about their travel plans, which were not all that unusual, they had four cell phones between them, they had luggage in the back seat, not trunk, and they were nervous. Still, no reasonable suspicion on the totality. State v. Duhaime, 2011 UT App 209, 258 P.3d 649, 685 Utah Adv. Rep. 12 (2011).*

Taking a buccal swab for evidence in a rape case was a search. The court had held in 1980 that a penile swab was a search. Garcia-Torres v. State, 949 N.E.2d 1229 (Ind. 2011).*

Defense counsel was not ineffective for not raising defendant’s consent in a suppression motion because he clearly consented. State v. Burt, 2011 Iowa App. LEXIS 478 (June 29, 2011).*

The warrant for defendant’s car was not an anticipatory warrant, and probable cause existed. State v. Shaw, 2011 Ohio 3331, 2011 Ohio App. LEXIS 2804 (2d Dist. July 1, 2011).*

Typographical error that left warrant in system was just like Herring and not suppressible. United States v. Godfrey, 427 Fed. Appx. 409, 2011 FED App. 0423N (6th Cir. 2011) (unpublished):

The district court applied Herring’s approach here and found no justification to exclude the evidence. We agree. Nash’s initial data-entry error was a mistake and at most constituted typical negligence of the sort present in Herring. See Herring, 129 S. Ct. at 698, 704. And Godfrey does not argue, nor is there evidence in the record independently establishing, that Hamilton County officers make these sorts of typographical errors recurrently or systemically. See id. at 703 (“If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified ....”). Accidental typographical mistakes are not the sort of police behavior that suppression would deter, so the exclusionary rule does not require suppression for this error.

Conditioning a teacher’s continued employment on taking a drug test after a misdemeanor drug arrest was reasonable. Palmer v. Cacioppo, 429 Fed. Appx. 491 (6th Cir. 2011).*

Democracy Now: FBI to Expand Domestic Surveillance Powers as Details Emerge of Its Spy Campaign Targeting Activists:

Civil liberties advocates are raising alarm over news the FBI is giving agents more leeway to conduct domestic surveillance. According to the New York Times, new guidelines will allow FBI agents to investigate people and organizations "proactively" without firm evidence for suspecting criminal activity. We speak to former FBI agent Mike German, who now works at the American Civil Liberties Union, and Texas activist Scott Crow, who has been the focus of intense FBI surveillance from 2001 until at least 2008. Using the Freedom of Information Act, Crow received 440 pages of heavily redacted documents revealing the FBI had set up a video camera outside his house, traced the license plates of cars parked in front of his home, recorded the arrival and departure of his guests, and observed gatherings that Crow attended at bookstores and cafes. The agency also tracked Crow’s emails and phone conversations and picked through his trash to identify his bank and mortgage companies. “It’s been definitely traumatizing at different points,” says Crow. “But if we don’t come out and be open about this, then they’ve already won, and the surveillance and the ‘war on terror’ wins against us.” [includes rush transcript]

Officers did a protective sweep and walk through of defendant’s premises, and the exigencies ended. The officers made a second entry to photograph the interior, and this was merely documenting what they saw in the walk through. Carmen v. State, 358 S.W.3d 285 (Tex. App.—Houston (1st Dist.) 2011).*

During the stop , the officer learned from another officer that defendant used false identification. Based on the real name, there was reasonable suspicion defendant was armed. United States v. Stoltz, 2011 U.S. Dist. LEXIS 69828 (D. Minn. June 3, 2011).*

“If we assume, without deciding but for purposes of our analysis here, that a PBT is a ‘search’ pursuant to the Fourth Amendment, and we also assume for the purposes of this argument that appellant’s voluntary consent is required in order for the search to be a valid warrantless search, we believe the evidence in the record supports a finding that appellant voluntarily consented to the PBT. [*P24]” City of Columbus v. Shepherd, 2011 Ohio 3302, 2011 Ohio App. LEXIS 2768 (10th Dist. June 30, 2011).*

The attenuation doctrine of unlawful arrest and a confession is not inconsistent with the Washington Constitution. Here, there was a break and the confession was admissible. State v. Eserjose, 171 Wn. 2d 907 (2011) (dissent).*

Defendant refused three requests for consent, so they detained him 15 minutes for the drug dog, and that required reasonable suspicion. All they had was a vague anonymous tip, and nothing corroborating it. Defendant’s nervousness alone was not enough. The motion to suppress should have been granted. Dominguez v. State, 310 Ga. App. 370 (2011).*

Defendant lived in the office building of a used car lot as an on-site security guard, and a fire inspector checking the premises ultimately was “invited” in after requesting to inspect. What he saw was disturbing and led him to conclude that child pornography was produced there. Ultimately, a search warrant was obtained. Defendant had a reasonable expectation of privacy in the area because he lived there, and the officers following the inspector entering had no exigent circumstances or consent. However, there was probable cause for issuance of the state search warrant even redacting what was seen from the unlawful entry, so the independent source doctrine and the good faith exception supported the warrant. United States v. Cannon, 2011 U.S. Dist. LEXIS 70318 (W.D. Ark. June 30, 2011),* R&R 2011 U.S. Dist. LEXIS 70882 (W.D. Ark. May 19, 2011).*

The officer had reasonable suspicion to detain defendant, and it was more than just guilt by association like Ybarra with the other man he was talking to between cars. United States v. Zuniga-Valencia, 2011 U.S. Dist. LEXIS 70362 (D. Neb. June 30, 2011).*

Defendant’s consent was not “coerced” by any alleged agreement not to disclose his infidelity to his girlfriend. Defendant’s consent was underscored by his putting limits on the search. United States v. Ng, 2011 U.S. Dist. LEXIS 70501 (E.D. N.Y. June 30, 2011):

While Defendant asserts that the agents agreed not to disclose his infidelity “on the condition that [Defendant] consent to the searches,” Defendant’s Memo at 10, this assertion is unsupported by the evidence. It was Defendant who set the conditions for his consent, telling the agents that he would agree to the search of the cell phones in exchange for the promise not to return them to the girlfriend. Similarly, it was Defendant who set the conditions for the search of the apartment, telling the agents that he would consent only if they agreed to let him alert the girlfriend in advance and accompany the agents during the search. There is no evidence whatsoever that the agents either explicitly or implicitly threatened to expose Defendant’s infidelity.

In this § 2255, the argument that defense counsel failed to attack the search warrant as a general warrant was frivolous. It hardly was. United States v. McClellan, 2011 U.S. Dist. LEXIS 70031 (W.D. Pa. June 29, 2011).*

Defendants consented to a search of their airplane in Bowling Green, revealing 30 bricks of cocaine. Under 14 C.F.R. § 61.3(l), operators of airplanes are required to produce papers on demand. United States v. Garcia-Guillen, 2011 U.S. Dist. LEXIS 70330 (W.D. Ky. June 30, 2011):

The Officers did not use coercive measures, language, or tone, nor did they conduct a show of force by drawing their weapons, physically touching the Defendants or ordering them to move away from their plane. The two and a half minutes that the Officers retained the Defendants’ documents was a reasonable period of time that allowed the Officers to examine the documents. Under these circumstances, the Court finds that a reasonable person would have felt free to terminate the encounter and that the Defendants were not seized at the time consent to search the plane was granted.

However, assuming arguendo that the initial consensual encounter transformed into a seizure of Defendants prior to the granting of consent to search the plane, the Court finds that the evidence would still be admissible as a permissible stop under 14 C.F.R. § 61.3(l). This regulation states that “[n]o person may serve as a required pilot flight crewmember of a civil aircraft of the United States, unless that person ... [h]as a pilot certificate or special purpose pilot authorization ... and ... a photo identification that is in that person’s physical possession or readily accessible in the aircraft when exercising the privileges of that pilot certificate or authorization.” Requirement for Certificates, Ratings, and Authorizations, 14 C.F.R. §§ 61.3(a)(1), (2) (2009). The regulation also states that “[e]ach person who holds an airmen certificate ... or license required by this part must present it and their photo identification ... for inspection upon a request from ... [a]ny federal, state, or local law enforcement officer[.]” 14 C.F.R. § 61.3(l)(3).

HuffPo: The Damaging Three Words of the Declaration of Independence by Alison Owings, author, "Indian Voices: Listening to Native Americans":

Eventually, however, we get to "domestic Insurrections amongst us," and here it comes, the phrase that distresses me so much after spending close to a decade meeting, and listening to, Native Americans, that I can barely stand to read it, nor type it.

"... the merciless Indian Savages."

Say what? From the elegantly-quotable Jefferson? Yes. "... the merciless Indian Savages, whose known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions."

While Native Americans celebrate this 4th of July weekend, probably with hotdogs and fireworks, and possibly a powwow (as far as I know, the day has not attained the level of dislike or dismissal in Indian country that there is towards Columbus Day), I wonder whether we might all read the Declaration of Independence out loud, consider what that three word phrase wrought, not to mention the words about "undistinguished Destruction." Destruction of who by whom? Native people, among others, may ask.

Defendant, a suspect in a robbery, was stopped for a seat belt violation. Once out of the vehicle, he ignored several requests to remove his hands from his pockets. When he finally did, he tossed a gun magazine over to a fence. The command to remove his hands from his pockets was lawful. United States v. Bell, 2011 U.S. Dist. LEXIS 70307 (D. V.I. June 30, 2011):

Here, the variation on that theme is that Defendant was already outside of the car when he was instructed to remove his hands from his pocket and show them to police. Nonetheless, the logic of Moorefield [United States v. Moorefield, 111 F.3d 10, 12 (3d Cir. 1997)] and Wilson [Maryland. v. Wilson, 519 U.S. 408, 414 (1997) (“We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”)] applies. The Court reads those cases as standing for the proposition that a traffic stop presents a uniquely dangerous situation to police which justifies minor incursions into the personal liberty of the occupants of stopped vehicles that might not otherwise be appropriate outside the traffic stop context. Just like the vehicles in Wilson and Moorefield could have contained weapons that their passenger's unseen hands could access, Defendant's pockets could also have contained accessible weapons. In other words, an officer executing a traffic stop is entitled to not only remove the vehicle’s occupants, but also make sure that they do not have anything dangerous in their hands. The minimal intrusion on Defendant’s liberty of having to remove his hands from his pocket after stepping out of the car is substantially outweighed by officer protection. Accordingly, the command to Defendant to remove his hands from his pocket was lawful.

Merely touching defendant to direct him back into a bar where he already agreed to go was not a separate seizure. It was as much communicative as anything. United States v. Jackson, 2011 U.S. Dist. LEXIS 69811 (E.D. Pa. June 27, 2011):

At the suppression hearing, Agents Cole and Logan testified they briefly placed their hands on defendant to guide him to the back of the bar. Defendant had already voluntarily consented to accompany the agents to that location. At no point during the walk to the rear did defendant attempt to flee or change course so that the agents attempted to restrain him. The agents’ touching defendant’s person reasonably can be seen as an attempt to communicate with him in a noisy environment where verbal communication was difficult. Their touching did not amount to “a laying on of hands or application of physical force to restrain movement.” California v. Hodari D., 499 U.S. 621, 626 (1991). Since defendant had consented to accompany the agents to the back of the bar, there was no need for them to restrict his movement. The agents’ touching defendant briefly to guide him to a specific area of the bar where he had already agreed to converse with them could not reasonably suggest to defendant that his consensual interaction with the agents was suddenly compulsory. See INS v. Delgado, 466 U.S. 210, 216 (1984) (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”).

Because defendant was not seized at the time he stated he had a firearm on his person, evidence of that statement, the firearm and the drugs recovered from his person pursuant to his arrest are admissible. See Chimel v. California, 395 U.S. 752, 763 (1969) (the permissible scope of a search incident to arrest includes “the arrestee’s person and the area ‘within his immediate control’ - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”).

The “protective frisk” of defendant’s car was justified. When he was stopped, he was nervous and the officer observed furtive movements. A computer check revealed defendant’s arrest record, which included a recent drug delivery arrest and arrests for armed robbery, false imprisonment and murder. State v. Buchanan, 2011 WI 49, 334 Wis. 2d 379, 799 N.W.2d 775 (2011).*

The officer had probable cause to arrest defendant for interference with an officer, and that led to discovery of DWI. Vasco v. State, 2011 WY 100, 253 P.3d 515 (2011).*

The search of defendant’s car for heroin was based on probable cause. United States v. Feliciano-Melendez, 2011 U.S. Dist. LEXIS 69511 (D. Del. June 29, 2011).*

After a controlled delivery by USPS Postal Inspectors of cocaine from Panama, a search warrant was executed on the premises and a vehicle associated with it. The search of papers in the car did not exceed the officer’s authority under the warrant. United States v. Ashley, 2011 U.S. Dist. LEXIS 69441 (E.D. Va. June 27, 2011).*

The trial court suppressed the stop for lack of probable cause. The state argued on appeal that the standard should have been reasonable suspicion. Even applying that standard, the stop was unjustified and the trial court’s order is affirmed. State v. Ward, 2011 Ohio 3183, 2011 Ohio App. LEXIS 2721 (7th Dist. June 16, 2011).*

In an arson case, defendant did not have standing to challenge the search of the vehicle in which he was a passenger. Regardless, the police had a valid search warrant for the vehicle for evidence of the crime. State v. Collins, 2011 Ohio 3241, 2011 Ohio App. LEXIS 2738 (8th Dist. June 30, 2011).*

Defendant stopped by a lone police officer who was outside the car standing on the street was asked for consent to search, and the trial court’s findings of voluntariness of consent are supported by the evidence. State v. Fowler, 2011 Ohio 3156, 2011 Ohio App. LEXIS 2665 (10th Dist. June 28, 2011).*

L. Rush Atkinson, The Bilateral Fourth Amendment and the Duties of Law-Abiding Persons, Georgetown Law Journal (forthcoming). The author is a Sixth Circuit Law Clerk shortly going to work for DOJ.

SSRN Abstract:

The Fourth Amendment protects the innocent only from “unreasonable” searches. In lieu of the limited nature of this constitutional safeguard, law abiders consistently take precautions to avoid government searches. This Article considers why constitutional jurisprudence limits the protection of the innocent to “unreasonable” searches, thereby forcing them to alter their behavior. The most satisfying answer derives from an often overlooked fact: Searches of innocent persons are often “bilateral accidents,” meaning that both the innocent suspect and the police can affect the likelihood of an erroneous search occurring. In bilateral conditions, a reasonableness rule induces both the searcher and searched to take optimal care to avoid mistaken searches, while other rules embodied in constitutional protections — like that within the Takings Clause — cannot.

By assigning costs for erroneous-but-reasonable searches to the innocent, the Fourth Amendment functions as an important regulatory device, channeling law abiders away from activity that unintentionally masks others’ criminal enterprises. Thus, the Amendment regulates the very people that it protects from governmental intrusions. This Article refers to this duality as the “bilateral Fourth Amendment,” and argues the Amendment’s incentives for the innocent are best understood as a duty for law-abiding people to act reasonably.

At the same time, identifying the “bilateral” nature of searches should influence the legal rules dictating what evidence police may use as grounds to search a suspect. Because the innocent alter their behavior based on which activities the government deems “suspicious,” rules about cause and suspicion cannot singly turn on evidence’s probative value; they must also account for the socially beneficial activity that is reduced by labeling behavior “suspicious.”

A jury view of property during a trial did not violate the Fourth Amendment. It was judicially authorized, and it saw what the public could see. Monus v. Day, 2011 Ohio 3170, 2011 Ohio App. LEXIS 2675 (7th Dist. June 13, 2011).

Defendant was not in custody during the execution of the search warrant on his property, and his statements made during the execution of the warrant were admissible. State v. Mangual, 129 Conn. App. 638, 21 A.3d 510 (2011).*

In an administrative prosecution for violating the Smoke-Free Workplace Act, the Health Department’s investigator entered a public area and then a private area observing smoking. The offense was observed in plain view in the public area, so whether the Burger test applies to this administrative search doesn’t have to be decided. Trish’s Café & Catering v. Ohio Dep’t of Health, 2011 Ohio 3304, 2011 Ohio App. LEXIS 2763 (10th Dist. June 30, 2011).*

Tip that defendant had a gun at school required school and police to act. Removing him from the school cafeteria to talk about it, and search if necessary, was reasonable. M.D. v. State, 65 So. 3d 563 (Fla. App. 1st DCA 2011), Rehearing denied, 2011 Fla. App. LEXIS 13552 (Fla. Dist.
Ct. App. 1st Dist., July 27, 2011).*

Because the body’s natural processes cause the alcohol concentration of urine to change rapidly over time, exigent circumstances justify the warrantless collection of a urine sample from a person arrested for driving while impaired. Ellingson v. Comm’r of Pub. Safety, 800 N.W.2d 805 (Minn. App. 2011).*

Voluntariness of defendant’s consent to search his computer for child pornography was fully supported by the record. Another Marine saw it on his computer when the plane to Iraq stopped in Bangor, Maine for mechanical issues, and it was reported. A month later in Iraq, NCIS talked to defendant and he confessed to possession of the child porn. United States v. Malone, 2011 CCA LEXIS 115 (N.-M. Ct. App. June 28, 2011) (unpublished).*

Defendant was found in a condemned building. He had no reasonable expectation of privacy from the police coming in to roust the people unlawfully there. People v. Antwine, 293 Mich. App. 192, 809 N.W.2d 439 (2011) (citing Cross v Mokwa, 547 F.3d 890 (8th Cir. 2008)).

Reasonable suspicion on the totality from: (1) physical domestic disturbance call (2) from a high crime neighborhood; (3) defendant’s evasive behavior as officers approached; (4) his reaching for his waistband like for a gun or drugs as they approached. United States v. Smith, 427 Fed. Appx. 413, 2011 FED App. 0428N (6th Cir. 2011) (unpublished).*

Physical force used on plaintiff, as shown by the video of the stop, was reasonable. The officer had qualified immunity. Neal v. Melton, 453 Fed. Appx. 572, 2011 FED App. 0430N (6th Cir. 2011) (unpublished).*

The government’s three year delay in searching all 103 computers seized in a Medicaid fraud investigation was not unreasonable. Also, a pre-search protocol was not required. United States v. Bradley, 644 F.3d 1213 n. 95 (11th Cir. 2011):

The Bradleys and Bio-Med claim that resulting searches of Bio-Med servers for data were unconstitutional because they occurred almost three years after the servers were originally seized. We find nothing in the record that would lead us to believe that the search procedure was unreasonably delayed, for any reason. See, e.g., United States v. Gerber, 994 F.2d 1556, 1558-59 (11th Cir. 1993) (approving a delayed search, even after expiration of the search warrant, because officers acted reasonably). We find no error in the district court’s rejection of this claim.

Furthermore, we reject outright the Bradleys’ and Bio-Med’s claim that the searches were unconstitutional because the agents failed to obtain pre-approval from the district court of a search protocol before conducting the searches. Cf. United States v. Khanani, 502 F.3d 1281, 1290-91 (11th Cir. 2007) (finding a wide-sweeping, keyword-based computer search reasonable where the defendants failed to “cite any binding case law that would lead us to conclude the procedures used in this case infringed defendants' Fourth Amendment rights”).

Defendant’s landlord gave notice of a quarterly inspection of the premises. Inside, a box on the stairway to the basement was accidently kicked and it fell down the stairs. Inside was apparent marijuana and a packaged brick of a white substance. The police were called. While landlords cannot consent to a search, the police inspection of the box did not exceed the private search, and a warrant was obtained for the brick. Motion to suppress denied. United States v. Johnson, 2011 U.S. Dist. LEXIS 68942 (W.D. Mo. May 10, 2011).*

While the affidavit for the search warrant did not discuss the informant’s reliability, it did show that the officers corroborated the informant’s information by observation, and that was sufficient to show probable cause. United States v. Adkins, 429 Fed. Appx. 471 (6th Cir. 2011).*

Defendant’s traffic offense justified his stop, and the police were watching based on a CI’s tip. When defendant was arrested, the search incident of his cell phone was justified. [The court also justified the seizure of the cell phone as a part of inventory, but it does not explain searching the cell phone under inventory.] United States v. Arciga-Saucedo, 2011 U.S. Dist. LEXIS 68857 (N.D. Ga. May 12, 2011).*

Blog of the Legal Times: State, Federal Wiretap Applications Up 34%:

Law enforcement officers are listening. More than ever.

State and local authorities received more than 3,100 wiretap approvals from judges last year, an increase of 34% above the number of authorizations the previous year, according to a report released today.

Federal judges, the Administrative Office of the U.S. Courts report said, approved 1,207 wiretaps, and 1,987 were authorized by state judges. Historical data reveal applications are rarely turned down. Only one application was denied in 2010.