Police came to do a knock-and-talk, and defendant objected to a search of the bedroom he shared with his wife. When he objected, the police took the wife and her mother outside to talk about consent. The district court’s effort to find a hierarchy of privacy interests in the home has no foundation in Randolph, and this consent over objection violated Randolph. United States v. Johnson, 656 F.3d 375, 2011 FED App. 0244P (6th Cir. 2011):

The district court interpreted this court's decision in Ayoub, 498 F.3d 532, as “drawing a distinction [after Randolph] between superior possessory and privacy interest[s] and lesser possessory and privacy interests.” The district court stated that, “if one has a lesser privacy interest, then even the presence and active objection to a search by that person with a lesser possessory interest is not a problem if [the police] have received consent to search from an individual with a superior possessory and privacy interest.” However, we have drawn no such distinctions.

Also posted on Federal Criminal Appeals Blog. This case seems too much like the District Court strained to find a way to ignore Randolph--any way to support a conviction.

A nighttime search warrant could be unreasonable, but this one was not. It was issued by a state judge complying with state law showing a need for a nighttime search, and that complied with the Fourth Amendment. The court indicates that a nighttime search could, in some circumstances, be unreasonable. United States v. Kelley, 652 F.3d 915 (8th Cir. 2011):

The Fourth Amendment protects individuals from unreasonable searches and seizures. Police intrusion into the privacy of one’s home at night was a concern of the common law before the Fourth Amendment was adopted. Reflecting that concern, our first Congress by statute authorized only daytime searches in 1789. See United States ex rel. Boyance v. Myers, 398 F.2d 896, 898 (3d Cir. 1968). In Wilson v. Arkansas, 514 U.S. 927, 934 (1995), a unanimous Supreme Court held that “in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment,” expressing “little doubt that the Framers of the Fourth Amendment thought that the method of an officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure.” Although this constitutional issue has received surprisingly little attention in numerous night-time search decisions, we have little doubt that in some circumstances an officer's night-time entry into a home might be unreasonable under the Fourth Amendment. See Gooding v. United States, 416 U.S. 430, 462-63 (1974) (Marshall, J., dissenting); Jones v. United States, 357 U.S. 493, 498-99 (1958).

“With few exceptions,” the Supreme Court has required that police obtain a warrant before searching a person's home. Kyllo v. United States, 533 U.S. 27, 31 (2001). Given the long common law and statutory history of requiring that a night- time search of a home be authorized by warrant, when police intend at the time they apply for a warrant to execute the search at night, it is unreasonable under the Fourth Amendment not to disclose that intent to the issuing magistrate and to seek express authorization for the night-time search, as Arkansas Rule 13.2(c) and Federal Rule 41(e)(2)(A)(ii) require. Here, Sergeant Michaels did just that, presenting the state court judge with probable cause to issue a warrant and good cause to authorize an immediate, night-time search. And the warrant expressly authorized execution at any time. Thus, both the warrant and its execution were reasonable under the Fourth Amendment; indeed, they complied with Federal Rule 41. Compare United States v. Harris, 324 F.3d 602, 606 (8th Cir.), cert. denied, 540 U.S. 884 (2003). The motion to suppress was properly denied.

In the YFZ Texas raid, a defendant convicted of sex with a minor had no standing to contest the questioning of minors during the raid on the 1,691 acre property and the structure by structure search. Emack v. State, 354 S.W.3d 828 (Tex. App.—Austin August 26, 2011):

As the court of criminal appeals noted in Kothe, it is critical to identify the precise government conduct being objected to, because this often will be determinative of the standing issue. Id. at 60. In his points of error complaining of the DFPS interviews, appellant contends that the interviews, and the information they revealed, were the fruit of unlawful conduct by DFPS employees, to whom he argues the Fourth Amendment applies. See Roe v. Tex. Dep't of Protective & Regulatory Servs., 299 F.3d 395, 401 (5th Cir. 2002). He contends that DFPS agents violated the Fourth Amendment, and also article I, section 9 and article 38.23, by making a false statement of material fact and using unlawfully obtained evidence in their petition for order in aid of investigation, and by thereafter exceeding the scope of their authority under the order. These contentions are not based on any assertion that appellant was unlawfully detained on April 3, and they do require a determination as to whether or not appellant was unlawfully detained in order to be resolved.

The order in aid of investigation directed the “parent or person responsible” for the care of Sarah Jessop Barlow and her infant daughter to “immediately allow an authorized representative of the Department of Family and Protective Services to enter ... [the YFZ Ranch] to interview and examine the children ....” Appellant did not claim to be the parent or person responsible for the care of any of the children interviewed by the DFPS caseworkers. In his affidavit in support of standing, appellant affirmed that he was a resident of the YFZ Ranch and a member of the FLDS, that his personal residence was searched and his personal property was seized, and that FLDS premises were searched and church property was seized. Appellant's challenges to the manner in which the DFPS obtained the order in aid of investigation and to the scope of the interviews conducted by its caseworkers under the order are not based on any allegation that the conduct complained of violated appellant's asserted privacy interests or that the interviews were a fruit of a violation of those interests.

WaPo: Editorial Board Opinion: GPS tracking should require a court order:

GPS is a valuable tool, and the vast majority of law enforcement officers would probably use it appropriately. But there should be a check against what Judge Alex Kozinski of the California federal appeals court called the possibility of “creepy and un-American” government acts. Requiring a court order before launching a lengthy and intrusive tracking project is not too much to ask.

An officer came upon a group of 15+ men in an area known for drinking in public, and they dispersed quickly when the officer arrived, all except the defendant. He slowly walked to his car, and tried to drive away. The officer made him stop because he was the only one not to get away. He was found to be OUI. The stop was without reasonable suspicion of criminal activity. State v. Tominiko, 126 Haw. 68, 266 P.3d 1122 (2011)* (concurring and dissenting opinions).

Defendant’s stop was based on two 911 calls about a shooting incident that were not played at the suppression hearing. The officers testified, however, to their ability to corroborate the information, including actually talking to one of the callers at her house about the incident. Basis of knowledge of both callers was shown. Commonwealth v. Perez, 80 Mass. App. Ct. 271, 952 N.E.2d 441 (2011)*:

The basis of knowledge test was satisfied with respect to both the first caller and the second caller. The officers testified that according to the dispatches they received, the first caller heard shots and the second caller observed the vehicle leaving the scene just after the gunshots. Firsthand observations would satisfy the basis of knowledge test. See ibid. While a 911 recording would likely have provided more information about the gunshots, a dispatch of a 911 call that gunshots had been heard at 17 Wilmington Avenue supports the inference that the report was based on personal knowledge or perception. See Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 652 (2006); Commonwealth v. Campbell, 69 Mass. App. Ct. 212, 216 (2007). Indeed, as discussed below, when the police returned to 17 Wilmington Avenue and spoke with the initial caller, she stated that she had heard the gunshots. With respect to the second caller, her auditory perception was also buttressed by the specificity of information she relayed, reporting a license plate number that was later confirmed by the police. Thus, "it is reasonable to infer that the source of the information was a firsthand witness to the event and not a casual rumor." Commonwealth v. Ancrum, 65 Mass. App. Ct. at 652.

When officers were executing a search warrant at a gambling hall, defendant was avoiding the officers, and it was reasonable to handcuff him and put him on the ground for officer safety. A gun and drugs were found. United States v. Campbell, 2011 U.S. App. LEXIS 17958 (6th Cir. August 26, 2011) (unpublished).*

The officer’s testimony was ambiguous and not inconsistent, and defendant does not satisfy his burden of showing that the testimony was clearly erroneous. United States v. Rhodes, 2011 U.S. App. LEXIS 17957 (6th Cir. August 26, 2011) (unpublished).*

An adult theater stated a Fourth Amendment claim for city destruction of its marque, not a substantive due process claim. Cinema Art Theater v. City of Troy, 2011 U.S. Dist. LEXIS 95992 (N.D. N.Y. August 26, 2011).*

Defendant’s second motion to suppress was no different than the first, so it would not be reheard in the interest of judicial economy. United States v. Kemp, 2011 U.S. Dist. LEXIS 95930 (S.D. Fla. March 30, 2011).*

Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States by Orin S. Kerr forthcoming in Cato Supreme Court Review, from SSRN:

Abstract:

This essay considers how the Supreme Court's recent limits on remedies for Fourth Amendment violations threatens the future development of Fourth Amendment law. It focuses on two decisions from the October 2010 Supreme Court Term: Camreta v. Greene, 131 S. Ct. 2020 (2011), and Davis v. United States, 131 S.Ct. 2419 (2011). Both Camreta and Davis reflect an optimistic view that Fourth Amendment remedies can be limited without substantially inhibiting the proper development of the law. The essay suggest that development of Fourth Amendment law requires more robust remedies to create cases and controversies and provide incentives to litigate claims. It concludes by considering how the Supreme Court might best foster law-development in a regime of limited Fourth Amendment remedies.

The Bumpy Legal History of GPS Devices by Stephen Treglia, New York Law Journal, August 30, 2011:

When did people in this country develop a reasonable expectation of privacy over what they do in public? Until recently, at least, such a right did not exist.

. . .

Conclusion

Might all this paranoia over law enforcement GPS tracking be a bit misplaced? When millions of U.S. citizens readily and habitually reveal every minor detail of their daily existence on social networking sites, when probably at least as many citizens' daily movements are tracked via their smart phones, MP3 players and tablet computers, when super-cookies are able to record and catalogue massive amounts of website visiting information, does anyone really possess a subjective expectation of privacy in their public movements any more, much less a reasonable one?

Defendant’s stop and search of his vehicle were based on probable cause, so the vehicle search was valid under the automobile exception. Defendant conflated the state constitutional argument with the Fourth Amendment argument. If one wants the state constitutional issue decided, it needs to be separately addressed both in the trial court and the appellate briefs. State v. Butler, 2011 UT App 281, 2011 Utah App. LEXIS 294 (August 25, 2011):

Because Defendant does not make any separate arguments under the Utah Constitution, we consider his appeal only under the protections afforded by the United States Constitution. See State v. Worwood, 2007 UT 47, ¶¶ 14, 18, 164 P.3d 397 (determining that the greater protections provided by the Utah Constitution will only be addressed if the argument is properly preserved in the trial court and separately briefed on appeal); State v. Despain, 2007 UT App 367, ¶ 12, 173 P.3d 213 (“In the absence of separate and distinct argument under the Utah Constitution, we consider [the d]efendant's claims only under the Federal Constitution.”).

I've read about a dozen cases stating this proposition from around the country, but haven't mentioned many of them.

Officers had a search warrant for a vehicle and an occupant, and defendant was there too. They developed enough information to detain her as well, and she consented to a search of her person, but officers elected to have a female officer do that, and they waited a reasonable time for one to show up. In the meantime, she incriminated herself. United States v. Baptiste, 2011 U.S. Dist. LEXIS 95755 (D. Vt. August 25, 2011).*

Defendant was driving through a supermarket parking lot with his lights off and stopped for two minutes, and the driver and passenger switched. This was suspicious enough that criminal activity was afoot to make a stop. When the officer questioned the former passenger now driver, he found that her license was suspended, and that justified a longer detention. State v. Little, 2011 Ohio 4175, 2011 Ohio App. LEXIS 3482 (12th Dist. August 22, 2011).*

In a valid traffic stop, the officer smelled intoxicants, but rejected the driver as the source. He moved to the passenger who admitted to having an open container, and that gave probable cause to search for the open container. The defendant was told to “come clean,” and he admitted to marijuana possession as well, and that was further probable cause. Harper v. State, 349 S.W.3d 188 (Tex. App. — Amarillo 2011).*

Defendant’s motion to suppress raised a knock-and-announce issue that was not fully decided by the trial court. Remanded for findings. State v. Dillon, 163 Wn. App. 101, 257 P.3d 678 (2011).*

Finding this a “close question” on a Fourth Amendment violation for child protective services taking a child, the defendants are entitled to qualified immunity. The plaintiff in a § 1983 Fourth Amendment case bears the burden of showing that the right is clearly established. Hernandez v. Foster, 657 F.3d 463 (7th Cir. 2011):

The plaintiffs bear the burden of proving that the constitutional right was clearly established. Estate of Escobedo v. Bender, 600 F.3d 770, 779 (7th Cir.), cert. denied sub nom. Martin v. Hanic, 131 S. Ct. 463 (2010). A right is clearly established "when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" al-Kidd, 131 S. Ct. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The plaintiffs need not identify "a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id.; see also Estate of Escobedo, 600 F.3d at 780 (stating that a party can demonstrate a right was clearly established by identifying "a closely analogous case" or presenting evidence that the defendant's conduct was "patently violative of the constitutional right").

The USMJ who issues a search warrant is not obligated to recuse from deciding anything else. The target’s motion here only complains about the rest of the process, and the motion is essentially frivolous. In re Hoover’s Residence, 2010 U.S. Dist. LEXIS 143626 (N.D. W.Va. October 28, 2010).*

Even if defense counsel had filed a motion to suppress ammunition as a result of an illegal search, defendant would have still been convicted of being a felon in possession of a firearm, and it had no effect on the outcome. United States v. Rendon-Martinez, 437 Fed. Appx. 685 (10th Cir. 2011).*

Under the four corners of the affidavit, there was PC for issuance of the search warrant. State v. Long, 2011 Ohio 4293, 2011 Ohio App. LEXIS 3552 (2d Dist. August 26, 2011).*

Taxidermy qualifies for regulated industry inspections under New York v. Burger. United Taxidermists Ass’n v. Ill. Dep’t of Natural Res., 436 Fed. Appx. 692 (7th Cir. 2011):

On appeal the Association reasserts its narrow argument that inspections under the Code do not meet the first Burger prong because there is no substantial government interest in tagging animals. Although this circuit has not explored the Burger test extensively, our prior interpretations have construed the first step as asking whether a substantial interest drives the entire regulatory scheme, not a particular part of it. ... Thus, the relevant inquiry here is whether a substantial government interest informs the taxidermy industry as a whole. Although there is not much circuit court precedent addressing that requirement, we conclude that the state’s process is adequate and appropriate. Illinois owns and has title to all wild birds and mammals, and the state enacted the Code “to protect and regulate the hunting and capture of certain species.” 520 ILCS 5/2.1; see People v. Taylor, 561 N.E.2d 667, 672 (Ill. 1990). Section 3.21 in particular “ensure[s] that protected animals are taken in compliance with the other provisions of the Code.” Taylor, 561 N.E.2d at 672. Accordingly, the need to protect wildlife demonstrates that Illinois has a substantial interest in regulating the taxidermy industry. ...

The Association does not dispute that the Code satisfies the second prong of Burger, whether the warrantless nature of the search is necessary to further the regulatory scheme. And any challenge to that prong would be meritless because abundant case law extols the necessity of surprise in these searches. Burger, 482 U.S. at 710; ...

Regarding the third prong, the Association first asserts that the Code’s scope is too broad because it does not define the “taxidermy records” subject to inspection, and thus provides insufficient notice to taxidermists that the tags attached to animals are subject to search. The Association concedes that “taxidermy records” include the written records kept by taxidermists, but contends that the term cannot possibly include the tags attached to the animals. The Association notes the Code’s requirement that taxidermists keep “records” for at least two years or however long the taxidermist possesses the animal or its parts, 520 ILCS 5/3.21(d), and points out the absurdity of any obligation to keep a tagged specimen after a taxidermist no longer has the specimen in his shop.

An examination of section 3.21(d) in the context of the entire Code, however, refutes the Association’s narrow argument. ... Moreover, removing the tagging requirement from the breadth of inspections also would frustrate the purpose of the Code: regulating the capture and possession of wildlife. See United States v. McDonald, 453 F.3d 958, 960 (7th Cir. 2006); In re Hardin, 932 N.E.2d 1016, 1020 (Ill. 2010). Allowing inspectors to search the tags enables them to verify the accuracy of a taxidermist’s written records and ensure compliance with the Code.

The officer was coming up on defendant’s vehicle moving much slower, and she abruptly pulled off the road 200 yards in front of him. He turned on his emergency lights and stopped to see if she had a flat or engine trouble. When he talked to her, she said everything was fine, but she smelled of intoxicants. One thing led to another and she was arrested for DUI. The “stop” was a community caretaking inquiry, and reasonable suspicion developed from that. Even if there was a possible mixed motive, all the objective facts support the community caretaking stop. State v. Spaulding, 2011 MT 204, 361 Mont. 445, 259 P.3d 793 (2011)*:

It is true that the community caretaker doctrine cannot be used as a pretext for an illegal search and seizure. Lovegren, ¶ 23. For this reason, we require that a welfare check be based on objective, specific, and articulable facts from which an officer would suspect that a citizen is in need of help or is in peril, Lovegren, ¶ 25, and that the stop actually involve a welfare check, see e.g. Graham, ¶¶ 30-31 (the officer's admitted purpose was not to conduct a welfare check, but rather to “move [the defendant] along”); State v. Reiner, 2003 MT 243, ¶¶ 21-22, 317 Mont. 304, 77 P.3d 210 (the officer did not stop out of concern for the defendant being in peril or in need of assistance, but rather to commence an investigation based on a report of a possibly intoxicated driver); Seaman, ¶ 30 (the officer's initial questions reflected his concern for the defendant's well-being); cf. State v. Nelson, 2004 MT 13, ¶ 9, 319 Mont. 250, 84 P.3d 25 (even if the officer suspected that the defendant's license was suspended, the primary purpose of her stop was to determine whether any possible occupants of the vehicle needed assistance).

[*P25] In the present case, there were objective, specific, and articulable facts from which an officer would suspect that a citizen was in peril or in need of help. The vehicle pulled over abruptly, while Croft was still 200 yards away. In Croft's experience, this indicated that the driver might have a flat tire or car troubles. They were on a back road in a desolate area, out “in the middle of nowhere,” and the road was “not a very well-travelled road.”

Kentucky v. King was decided while defendant’s case was pending, but he only argued the Fourth Amendment, not the state constitution. He loses his issue of police created exigency, but he gets a remand for other reasons, so he can raise the state constitution on remand. Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 952 N.E.2d 426 (2011).*

The state’s testimony that defendant’s DNA was obtained by search warrant was not an inference that the defendant did not consent where two other suspects did consent. Even if it were potential error, it was harmless here. State v. Hill, 801 N.W.2d 646 (Minn. 2011).*

Defense counsel was not ineffective for not moving to suppress a recorded conversation in the back of a police cruiser since it would have been baseless. Jarnigan v. State, 2011 Tenn. Crim. App. LEXIS 662 (August 24, 2011).*

The mere fact a defendant had drugs on him alone is no nexus to search the defendant’s house under a search warrant. Thus, the warrant was facially invalid. United States v. Garcia, 2011 U.S. Dist. LEXIS 94838 (N.D. Cal. August 24, 2011):

In effect, the government is looking for a bright-line rule that the police have probable cause to search the house of any person found with any amount of illegal drugs anywhere. This would be a significant extension of the case law, taking it beyond the bounds of what is permitted by the Fourth Amendment. The Ninth Circuit has held that “probable cause that a resident of the location has committed a crime is in itself insufficient to satisfy” the requirement that evidence probably will be found at the locations to be searched. See United States v. Fernandez, 388 F.3d 1199, 1254 (9th Cir. 2004); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir. 1995). Drug dealing and drug using are categorically different crimes. To extend the exception in Fannin and Angulo-Lopez is to eviscerate the rule stated in Fernandez and Gil. See United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970) (explaining that if mere probable cause to arrest a suspect also established probable cause to search the suspect’s home, there would be no reason to distinguish search warrants from arrest warrants). The search warrant in this case was facially invalid.

. . .

The Court has discovered no case in the country that has upheld a search warrant on facts like those in this case. In fact, a number of cases from both federal and state courts, all applying federal constitutional law, have concluded that such warrants are invalid, including cases from two state appellate courts in this circuit. ...

Defendant was seized without reasonable suspicion he was involved in a robbery and taken in for a lineup. After he was potentially IDed he was arrested and searched, and cocaine was found on his person. His detention was unlawful, and the cocaine should have been suppressed. Bennett v. United States, 26 A.3d 745 (D.C. App. 2011):

Here, the police detained appellant in the absence of exigent circumstances that would have satisfied the "narrowly circumscribed" witness exception. The seizure of appellant was not a brief stop conducted to freeze a fast-moving and dangerous situation so that a witness could be questioned before he fled the scene of the crime. Appellant was not fleeing, but instead — over seven minutes after the robbery — was standing on his street smoking a cigarette. When the police approached him, he may have been argumentative, but he ultimately answered their questions and gave them his identifying information. He also spoke to his mother via cell phone and paced up and down the street, where she joined him. This controlled, relatively calm scenario is the opposite of the quick sequence of events that occurred in Trice following a violent crime involving a weapon. Further, there was no danger that the police would lose the opportunity to question appellant about the crime, since they obtained his identifying information and would have been able to locate him for further questioning if necessary. Cf. Hawkins, 663 A.2d at 1226-27 (declining to apply Williamson exception where other methods of investigation were "readily available").

A search warrant to Microsoft for all records on a hotmail account was not overbroad or unreasonable. The government needed to sort through it. United States v. Bickle, 2011 U.S. Dist. LEXIS 94921 (D. Nev. June 21, 2011):

Particularity is not the problem with the warrant in this case. The warrant called for Microsoft to disclose all records and information in Microsoft’s possession associated with polarbickle@hotmail.com. It is not ambiguous concerning what was sought. Rather, the question is whether the warrant is overbroad in authorizing Microsoft to disclose all account information and content while temporally and subject matter limiting what the government was authorized to seize. The purpose of the Fourth Amendment’s particularity requirement is to make general searches impossible and prevent “exploratory rummaging in a person’s belongings.” See United States v. Rodriguez, 869 F.2d 479, 486 (9th Cir. 1989) (citing Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976)). The need to prevent general exploratory rummaging of a person’s belongings is particularly acute in document searches because, unlike requests for other tangibles, document searches tend to involve broad disclosures of the intimacies of private lives, thoughts, and transactions. United States v. Washington, 797 F.2d 1461, 1468 (9th Cir. 1986) (internal citations and quotations omitted). However, the Ninth Circuit has often recognized a legitimate law enforcement need to scoop up large quantities of data and sift through it carefully for concealed or disguised pieces of evidence. See, e.g., United States v. Hill, 459 F.3d 966 (9th Cir. 2006).

Defendants were in a boarded up house which, from all apparent circumstances, was unoccupied, but there as an open window with a car parked outside with a window open at 1:30 a.m. Officers could approach the house, and when defendant came out, a gun was on him in plain view. United States v. Sutherland, 2011 U.S. Dist. LEXIS 95266 (E.D. Mich. August 25, 2011).*

Defendant’s 2255 claiming that defense counsel was ineffective for not filing a motion to suppress was not supported. There was PC for a search warrant and no claim that defendant didn’t consent. United States v. Sanchez, 2011 U.S. Dist. LEXIS 95150 (N.D. Okla. August 24, 2011).*

The search warrants for defendant’s cell phones was quite particular and obviously the search was conducted in good faith. United States v. Ortiz-Aleman, 2011 U.S. Dist. LEXIS 94669 (N.D. Ga. July 20, 2011), adopted sub nom. United States v. Orellana, 2011 U.S. Dist. LEXIS 94773 (N.D. Ga. August 24, 2011).*

The four day search of defendant’s property was reasonable under the “one warrant one search” rule, even though it included a second entry into defendant’s house on the property. He had a junk yard with over 3,000 cars on it, and all had to be searched. State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 216 (2011):

P25 Based on our review of the circumstances existing at the time of the November 8 search, we are satisfied that it was a continuation of the ongoing search which commenced on Saturday, November 5. As in Squillacote, the number and type of items identified in the search warrant necessitated an extensive and exhaustive search. See Squillacote, 221 F.3d at 557. The lateness of the hour, the weather conditions, and the extensive and intensive nature of the search make it apparent that the search of Avery’s trailer could not have been completed on November 5. See id. Further, the continuous presence of law enforcement at the Avery salvage yard and their continuous control over Avery’s trailer from the time of the first search to the time of the sixth search belies any argument that the search of Avery’s trailer was fully executed at an earlier time.

P26 We therefore turn to the second inquiry—whether the decision to conduct another entry into Avery’s trailer to continue the search was reasonable under the circumstances. See Keszthelyi, 308 F.3d at 569. For the same reasons cited above, we are satisfied that the decision was not only reasonable but necessary, particularly given the evolving information and the accumulation of evidence during the ongoing search. Probable cause had not dissipated during the course of the earlier searches, but rather continued to mount as additional evidence was identified. See id. at 572 (continued probable cause is “critical to establishing the reasonableness of the second search”).

P27 We uphold the trial court’s ruling that “the multiple entries were part of a proper single execution of the November 5, 2005 warrant.” To require the government to obtain a new search warrant for the continued search under the circumstances of this case would be an unjustified burden. See Squillacote, 221 F.3d at 558. We turn next to the trial court’s alternative basis for denying Avery’s motion to suppress, namely that “the evidence would have been inevitably discovered.”

There was no testimony at the suppression hearing about the policy permitting an inventory search, and the government filed to show that there was a policy. The search was not by consent because the officer told the defendant he was going to do the inventory, and defendant had no choice. United States v. Milligan, 2011 U.S. Dist. LEXIS 94344 (D. Conn. May 4, 2011).*

Defendants landed a private plane at an unmanned airport, and police encountered them to talk. The officer called in their IDs to Homeland Security and they came back clean. The officer asked for consent and it was denied. The defendants seemed to act nervous, so they flew on to Nashville and registered the plane and spent the night. In Nashville, a drug dog alerted on the plane, and it was searched. Testimony about the first encounter and the refusal to consent was not barred by the exclusionary rule. [But, not a word about the constitutional right to refuse a consent search and not have it used at trial.] United States v. Clariot, 655 F.3d 550, 2011 FED App. 0238P (6th Cir. 2011).*

The district court’s credibility determination on consent is not clearly erroneous. United States v. Maldonado-Gonzalez, 444 Fed. Appx. 632 (4th Cir. 2011),* cert. denied 132 S. Ct. 466, 181 L. Ed. 2d 304 (U.S., Oct. 17, 2011).

Defendant on a wiretap who was outside the United States and was not a U.S. citizen had no Fourth Amendment claim under Verdugo-Urquidez. United States v. Coke, 2011 U.S. Dist. LEXIS 94012 (S.D. N.Y. August 22, 2011):

As an initial matter, Coke concedes that he is not protected by the Fourth Amendment and therefore, recognizes that he cannot seek to suppress the wire interceptions of his telephone calls on that basis. (Def. Court Ord. Mem. of Law at 2, Tr. at 18.) The Supreme Court held in United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), that where a defendant is not a United States citizen, and has no substantial, voluntary attachment to the United States, and the search at issue occurs abroad, "the Fourth Amendment has no application." In Verdugo-Urquidez, the Court concluded through a textual reading of the Fourth Amendment that the "purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; [and that] it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of U.S. territory." Id. at 266. Because there is no evidence that Coke had any "substantial, voluntary attachment" to the United States, both the Defense and Prosecution agree that the Fourth Amendment cannot be a basis for suppression of the seized wiretap evidence.

Plaintiff voluntarily gave his DNA to be checked against a possible crime under the promise that it would be returned if there was no match. There wasn’t, but the DA and crime lab refused to return it. He had limited his consent, and he had an invasion of privacy suit for retention of the DNA. Amato v. District Attorney for the Cape and Islands District, 80 Mass. App. Ct. 230, 952 N.E.2d 400 (2011):

DNA information is highly sensitive. Citizens have a reasonable expectation of privacy in such information. See Landry v. Attorney Gen., 429 Mass. 336, 354 n.20, 709 N.E.2d 1085 (1999), cert. denied, 528 U.S. 1073, 120 S. Ct. 785, 145 L. Ed. 2d 663 (2000) (upholding State convicted offender database created by G. L. c. 22E as constitutional; however, "the indefinite storage of the entire DNA sample ... creates some concern that the samples could be misused at some point in the future to search for and disclose private genetic information" [emphasis added]).20 See also Horsemen's Benevolent & Protective Assn. v. State Racing Commn., 403 Mass. at 700 (discussing sensitive information discoverable through urinalysis); Commonwealth v. Cabral, 69 Mass. App. Ct. at 72, and cases cited. Amato has pleaded that the defendants continue to hold this highly sensitive information beyond the scope of the limited consent he gave at the time he provided the sample. Contrast O'Connor v. Police Commr. of Boston, 408 Mass. 324, 329-331, 557 N.E.2d 1146 (1990). Amato has also pleaded that the defendants' retention of up to 200 DNA profiles constitutes a shadow DNA database, with its constituent records available for disclosure by comparison in other criminal investigations.

The allegations that the defendants have retained Amato's highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with Amato's privacy. These allegations therefore suffice to state a G. L. c. 214, § 1B, claim.

Arrest of a citizen for recording police in public on a cell phone violated clearly established First and Fourth Amendment rights, so no qualified immunity. Glik v. Cunniffee, 10-1764 (1st Cir. August 26, 2011):

Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts's wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.

In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik's constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm.

False representations by defendant’s wife, who was secretly working with the police, that if he did not consent, she was going to jail, which was false, vitiated defendant’s consent. United States v. Strange, 2011 U.S. Dist. LEXIS 94094 (W.D. Mo. August 23, 2011):

This Court further finds that the United States has not met its burden of proving beyond a preponderance of evidence that Paul Strange voluntarily consented to a search of his house. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The record demonstrates that Vikki Strange falsely informed Paul Strange, within hearing of police, that police would take Vikki Strange and her mother (also Paul Strange's mother) to jail if Paul Strange did not consent to the search. Where, as here, a suspect consents to a search in reliance upon promises or misrepresentations made by the police (or their agents), that weighs against a finding of voluntariness. See United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990). The United States has failed to produce convincing evidence that this misrepresentation did not lead to Paul Strange's consent, or that this consent was, in its totality, voluntary.

“Do what he wanted to do” was consent under the circumstances. United States v. Kale, 2011 U.S. Dist. LEXIS 94342 (S.D. Fla. February 26, 2011), adopted 2011 U.S. Dist. LEXIS 93966 (S.D. Fla. August 23, 2011).

The Fourth Amendment is not a basis for liability for false arrest civil claims; the due process clause is. His “two day jail stint” on arrest was with probable cause and reasonable under County of Riverside. Nelson v. Village of Lisle, 437 Fed. Appx. 490 (7th Cir. 2011).*

An alleged mistake of fact in the trial court’s findings of fact on the suppression issue would not have changed the outcome, so defense counsel was not ineffective for not trying to correct it. Anderson v. Trombley, 451 Fed. Appx. 469 (6th Cir. 2011).*

Co-defendant’s consent to search home for drugs and money was voluntary. While he was illiterate, it was explained to him in Spanish and he was told of his right to refuse consent. United States v. Hernandez, 443 Fed. Appx. 34 (6th Cir. 2011).*

Officers came to defendant’s motel room door and demanded entry. He opened the door to drawn weapons. There were no exigent circumstances, and his consent on the totality was involuntary. State v. Pederson, 2011 ND 155, 801 N.W.2d 723 (2011):

[*P12] However, there is insufficient evidence to support the district court's determination that Pederson voluntarily consented to the officers' entry. There was evidence there were four officers at the motel room door with their weapons drawn, they yelled and ordered the room occupants to come out with their hands up, Pederson came out of the bathroom with his hands up, and the officers asked if they could come into the room before ordering Pederson to the ground. Generally, courts have held consent is not voluntarily given when officers have their weapons drawn at the individual's door, unless there are other indications the consent was voluntary. ... Although the district court found there were legitimate safety concerns justifying the officers’ use of weapons, that fact is not relevant in deciding whether Pederson’s consent was voluntary. To determine whether consent is voluntary the court must consider the totality of the circumstances, including the condition of the accused at the time he gave consent. ... The officers; motivations for having their weapons drawn and pointed at Pederson were not known to Pederson when he gave consent to enter.

[*P13] Considering the totality of the circumstances, we conclude the district court's decision that Pederson voluntarily consented to the officers' entry into his motel room is contrary to the manifest weight of the evidence. The State did not argue the entry was justified by exigent circumstances or any other exception to the warrant requirement. ... We conclude the officers unlawfully entered the motel room and arrested Pederson.

The only real question here is why the trial court found the consent voluntary ....

“Reason to believe” a suspect named in a warrant is home is less than “probable cause.” People v. Downey, 198 Cal. App. 4th 652, 130 Cal. Rptr. 3d 402 (4th Dist. 2011):

An arrest warrant “founded on probable cause” that the suspect has committed a crime gives law enforcement officers “the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” (Payton v. New York (1980) 445 U.S. 573, 603 [63 L.Ed.2d 639, 100 S.Ct. 1371]; see also Steagald v. United States (1981) 451 U.S. 204, 213–214 [68 L.Ed.2d 38, 101 S.Ct. 1642, .) “As explicated by five other circuits, the ‘reason to believe’ standard is satisfied by something less than would be required for a finding of ‘probable cause.’” (U.S. v. Thomas (D.C. Cir. 2005) 368 U.S. App. D.C. 285 [429 F.3d 282, 286], citing Valdez v. McPheters (10th Cir. 1999) 172 F.3d 1220, 1225–1226; see U.S. v. Route (5th Cir. 1997) 104 F.3d 59, 62; U.S. v. Risse (8th Cir. 1996) 83 F.3d 212, 216; U.S. v. Lauter (2d Cir. 1995) 57 F.3d 212, 215; U.S. v. Magluta (11th Cir. 1995) 44 F.3d 1530, 1535; see also U.S. v. Bervaldi (11th Cir. 2000) 226 F.3d 1256, 1263; U.S. v. Lovelock (2d Cir. 1999) 170 F.3d 339, 343; U.S. v. Weems (1st Cir. 2003) 322 F.3d 18, 22 [in dictum].)

WSTP in St. Pete just figured out that Federal judges have ruled testing welfare recipients for drugs violates 4th Amendment rights, noting that 1500 Florida welfare recipients have been tested thus far under the new regime.

Wednesday, 10News looked in to questions of whether it's saving the state money or costing more. Tonight, after reviewing Federal Court cases, we've learned Florida's drug testing laws could be violating your constitutional rights!

Since July, nearly 1,500 Floridians have taken drug tests to continue receiving welfare.

Governor Rick Scott stands behind it, but federal judges have ruled laws like this violate the U.S. Constitution.

And they are just now figuring this out? Apparently the Fourth Amendment is a well kept secret to nonlawyers. And why is the testing still going on? Why hasn't it been declared unconstitutional?

Franks violation leading to search warrant for child pornography, finding none, leads to civil rights liability for the investigators. Chism v. Washington State, 10-35085 (9th Cir. August 25, 2011):

This civil rights action under 42 U.S.C. § 1983 arises from an internet child pornography investigation by Washington State Police (WSP) Officers Rachel Gardner and John Sager (“the officers”). As a result of information the officers acquired, Todd Chism became the focus of their investigation. Gardner prepared an affidavit in support of a search warrant application, which Sager reviewed. On the basis of that affidavit, a magistrate judge issued a broad search warrant to search Todd Chism’s home and business office. Relying on the same information contained in Gardner’s affidavit, Deputy Prosecuting Attorney Christian Peters obtained from the same magistrate judge a warrant to arrest Todd for violating Washington’s child pornography laws. A few days later, several WSP officers executed the search and arrest warrants. A WSP detective eventually conducted forensic examinations of the Chisms’ home computer and computers from the Spokane Fire Department, where Todd Chism worked as a firefighter. The investigation did not reveal any evidence of child pornography, and charges were never filed against Todd Chism.

Several months later, Todd and his wife, Nicole Chism, filed this § 1983 action against the State of Washington, the WSP, Detective Gardner, and Sergeant Sager, alleging—among other things not relevant to this appeal—that the officers violated their Fourth and Fourteenth Amendment rights by securing the search and arrest warrants with an affidavit that deliberately or recklessly contained material omissions and false statements.3 The Chisms and the officers filed cross motions for summary judgment on the issue of qualified immunity as to the constitutional claim. The district court granted the officers’ motion, concluding that the officers’ conduct did not violate a clearly established constitutional right of which a reasonable officer would have known. The Chisms timely appealed.

We reverse the district court’s judgment and remand this case for trial. Viewing the evidence in the light most favorable to the Chisms, we conclude that the Chisms have made a substantial showing of the officers’ deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred. We also conclude that the officers are not entitled to qualified immunity because the Chisms’ right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit.

WaPo opinions: Why are we subverting the Constitution in the name of security? by Thomas Drake, Thursday, August 25:

The Justice Department’s high-profile Espionage Act case against me collapsed on July 15, with all 10 felony charges dropped, when I was sentenced to community service after entering into a plea agreement for a minor misdemeanor. During the sentencing hearing, the judge clearly set the tone for holding the executive branch of our government accountable. He expounded on the judicial branch’s role as final arbiter of the law, while noting that the basis for the American Revolution was British tyranny in the colonial era.

Over more than a year, my case became a disturbing illustration of “off the books,” irresponsible government behavior that is increasingly alien to the Constitution. The government’s penchant since Sept. 11, 2001, for operating in secrecy and hiding behind an executive branch “state secrets” doctrine has damaged our long-term national security and national character. It has, by sacrificing Americans’ general welfare and civil liberties, given rise to a persistent military-industrial-intelligence­con­gressional surveillance complex.

Cellphones Searched Without a Warrant in Some States by Krystina Steffen in Good Practice writer, August 24, 2011:

States have laws that must be applied when police search a car or a home, including obtaining a warrant to legally search these places. But with new lawsuits emerging in cases where police are searching and confiscating cellphones, it brings up a new topic for debate. Do the police need to have a warrant before looking at the data on your cellphone should you be stopped for a traffic violation or when they visit your home?

Law enforcement agencies say that cellphone data is not a private matter. People are willing to show where they’ve checked in on their Facebook wall, post pictures on Twitter of their night out, and download apps to locate their nearest friend, event, or restaurant nearby. So if police find incriminating information on a cellphone when a driver is stopped for going over the speed limit, for example, the authorities say there is one less potential criminal on the loose and the data was worth going after. Federal investigators also use cell site location information (CSLI) and cellphone data to pinpoint who did a crime in a particular area.

The affidavit showed nexus to defendant’s house. “Such a routine of leaving from and returning to a residence demonstrated a pattern of drug dealing consistent with a drug delivery service, and it was reasonable to infer that the delivery service was based out of the residence. See Commonwealth v. Gallagher, 68 Mass. App. Ct. 56, 60 (2007), and cases cited.” Commonwealth v. Monteiro, 80 Mass. App. Ct. 171, 951 N.E.2d 989 (2011).*

Same as the previous case, but two controlled buys in March where defendant left the house to go to the sale, and then another right before the warrant was issued in May. Commonwealth v. Colon, 80 Mass. App. Ct. 162, 951 N.E.2d 1005 (2011).*

The video of defendant’s driving, narrated as made by the officer, does not conclusively show anything one way or the other, so the court credited the officer, and that is sufficient for appeal. State v. Patterson, 2011 Tenn. Crim. App. LEXIS 657 (August 22, 2011).*

911 call about an armed suspect at a motel was justification for defendant’s patdown. State v. Williamson, 2011 Tenn. Crim. App. LEXIS 656 (August 19, 2011),* revd State v. Williamson, 368 S.W.3d 468 (Tenn. 2012), posted here.

Defendant moved to suppress a decade old possession of bullets and cocaine in the penalty phase of his death penalty trial. In this case, it was harmless beyond a reasonable doubt; no reasonable juror would have even considered it material in light of the other evidence of his history of violence in multiple gang killings defendant was charged with where two people were executed with a gun to the head. Essentially, the challenged evidence pales in comparison to the rest of the case. People v. McKinnon, 52 Cal. 4th 610, 259 P.3d 1186, 130 Cal. Rptr. 3d 590 (2011)*:

Aside from the 1988 “bullets and cocaine” incident, the prosecution’s aggravating evidence demonstrated defendant’s well-established history of using force and violence. These examples included a violent battery and threats of further violence against his own sister, and a robbery and battery he committed in his school cafeteria. Importantly, the cold-blooded, cruel, and senseless murders of Coder and Martin sealed defendant’s fate. He walked up to Coder, placed a gun against his head, and brazenly shot him. He similarly murdered Martin by shooting him in the head, in an act of revenge for the unexplained death of a fellow gang member, remote in time. There is no reasonable possibility that any erroneous admission of evidence that defendant once possessed bullets while engaged in selling cocaine would have affected the jury’s penalty decision.

Defendant led officers into his bedroom for his passport and ID and officers then saw fake IDs in plain view which was valid. United States v. Moran-Martinez, 2011 U.S. Dist. LEXIS 93730 (W.D. N.Y. May 20, 2011).*

The affidavit for the search warrant was based on probable cause which included information from sales to CIs and the fact defendant had a huge amount of cash, just bought a big house, and had no apparent source of income. United States v. Shirley, 2011 U.S. Dist. LEXIS 93517 (N.D. Ga. July 7, 2011), adopted 2011 U.S. Dist. LEXIS 93505 (N.D. Ga. August 22, 2011)*:

Considering the totality of the circumstances in this case, the affidavit provided the issuing judge with sufficient probable cause to believe that contraband or evidence of Shirley’s narcotics trafficking would be found at Shirley’s recently purchased residence. First, the affidavit clearly established probable cause that Shirley was engaged in narcotics trafficking. He sold trafficking amounts of cocaine on three occasions to CS#2 over a short period time. In addition, during this same period of time, Shirley did not have verifiable lawful employment, and yet he purchased a residence valued at over a half a million dollars and drove expensive automobiles. See United States v. Butler, 102 F.3d 1191, 1198 (11th Cir. 1997) (concluding that totality of circumstances, including analysis of defendant’s finances showing a large amount of unexplained wealth, amounted to probable cause to issue search warrant); see also United States v. Edwards, 885 F.2d 377, 390 (7th Cir. 1989) (stating in a forfeiture case that “where a defendant’s verifiable income cannot possibly account for the level of wealth displayed and where there is strong evidence that the defendant is a drug trafficker, then there is probable cause to believe that the wealth is either a direct product of the illicit activity or that it is traceable to the activity as proceeds”).

Defendant was convicted of kidnaping and numerous sex offenses, and his victim who lived with him in the month before the occurrence and who paid the rent had apparent authority to consent to the entry and search. She had a key and her clothes there. People v Frankline, 2011 NY Slip Op 6316, 87 A.D.3d 831, 928 N.Y.S.2d 412 (4th Dept. 2011).*

Warrantless sweep was invalid for lack of exigency, but later issued warrant would have come anyway, so the search warrant was valid. State v. Watts, 801 N.W.2d 845 (Iowa Sup. 2011).*

Officer who shot and killed man thinking she’d pulled her taser denied qualified immunity where it had happened twice before. This stated a claim of excessive force in violation of the Fourth Amendment. Torres v. City of Madera, 09-16573 (9th Cir. August 22, 2011):

While handcuffed in the back seat of a patrol car, Everard Torres (“Everardo”) was mortally wounded when Madera City Police Officer Marcy Noriega (“Officer Noriega”) shot him in the chest with her Glock semiautomatic pistol, believing it at the time to be her Taser M26 stun gun. Everard’s family filed this survival action under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment, and now appeals from an adverse grant of summary judgment. Consistent with the Fourth Circuit’s decision in Henry v. Purnell, ___ F.3d ___, 2011 WL 2725816 (4th Cir. July 14, 2011) (en banc), we reverse and remand for trial.

Defendant consented to a search of his car and his computer at home after he was arrested for showing up after an internet chat with a fake 15 year old girl. He was told that he could consent or the officers would get a warrant [which would almost certainly be granted, except what would they need the computer to prove?]. He consented, saying “what’s done is done.” He also invoked his right to counsel, but a request for consent is not an “interrogation” barred by Miranda. United States v. Knope, 655 F.3d 647 (7th Cir. 2011):

Knope also asserts that his consent was invalid because he signed the consent form after he invoked his right to counsel. He cites Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), where the Supreme Court held that police cannot continue an interrogation after the accused invokes his right to counsel. Knope's argument is foreclosed, however, by this court's holding that "a consent to search is not an interrogation within the meaning of Miranda." United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996); United States v. LaGrone, 43 F.3d 332, 335 (7th Cir. 1994). Indeed, we rejected nearly identical arguments in Shlater and LaGrone. Knope's consent was not invalid on these grounds.

Defendant is a doctor accused of running a “pill mill.” She has two residences, and the government investigators concluded that she likely had large amounts of cash in her two residences. The search warrant for her house was validly issued. She’s proceeding pro se. In re Hoover’s Residence, 2011 U.S. Dist. LEXIS 92783 (N.D. W.Va. August 19, 2011).*

Ruling Raises the Bar to Access Long-Term Cell Phone Records by Joel Stashenko, New York Law Journal, August 23, 2011:

Authorities must establish probable cause and secure a warrant before obtaining information from cell phone providers that can indicate the round-the-clock whereabouts of customers, a federal judge in Brooklyn ruled yesterday.

Fourth Amendment protections against unreasonable searches apply to the so-called cell-site-location records as surely as judges of a previous generation found that they applied to people using pay phones, Eastern District Judge Nicholas G. Garaufis determined yesterday. In fact, he said, cell phones have all but rendered pay phones obsolete as a means of communication and are rarely out of the reach of users.

Opinion: In The Matter of An Application of The United States of America for an order authorizing the release of Historical Cell-Site Information, 809 F. Supp. 2d 113 (E.D. N.Y. 2011).

See Computerworld: Judge: Warrant required for cell phone location data, mentions Orwell's 1984.

From Fargo-Grand Forks: Drug Tests Before Getting Welfare gaining impetus:

While it is getting a cool reception in North Dakota and Minnesota, a growing number of states are taking action to mandate drug tests for welfare applicants.

From CNN: Saying it is "unfair for Florida taxpayers to subsidize drug addiction," Gov. Rick Scott in June signed legislation requiring adults applying for welfare assistance to undergo drug screening.

"It's the right thing for taxpayers," Scott said after signing the measure. "It's the right thing for citizens of this state that need public assistance. We don't want to waste tax dollars. And also, we want to give people an incentive to not use drugs."

Missouri also enacted a law this year mandating drug tests for welfare applicants. A federal court declared a similar law in Michigan unconstitutional in 2003. But the idea is catching on, as other states including Kansas, West Virginia, Kentucky and Illinois, consider their own versions of the policy.

Defendant’s Franks claim is denied [and utterly frivolous]. Just because he disclaimed the premises when he was booked in on his “Prisoner Pedigree Card” and the officer failed to mention it [if he knew it], that is essentially meaningless here because USPIS developed all kinds of information linking him to the place searched in the warrant that was more than probable cause. And, even purging the questioned information leaves a wealth of PC for the search warrant. United States v. Swain, 2011 U.S. Dist. LEXIS 92639 (S.D. N.Y. August 16, 2011).*

A Rule 41(g) motion for return of property after completion of the criminal case is treated as a civil case, and newly discovered evidence must be presented in one year. This was not timely. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 92313 (E.D. Pa. August 18, 2011).*

There is no right to be free from unreasonable search while a prison inmate. Crozier v. Endel, 447 Fed. Appx. 861 (9th Cir. 2011).*

During a traffic stop, the officer saw what could only be a marijuana blunt on the center console, and that justified reaching in for it. It was not just his subjective belief it was a blunt; it was objectively reasonable. United States v. Massenberg, 2011 U.S. Dist. LEXIS 92744 (E.D. N.C. August 17, 2011), R&R 2011 U.S. Dist. LEXIS 92667 (E.D. N.C. July 19, 2011).*

The right to compulsory production of the searching officer’s personnel file that was specific only for potential impeachment material would be enforced under United States v. Nixon, Rule 17(c), and Colorado’s privacy standards (People v. Spykstra, 234 P.3d 662, 670 (Colo. 2010)). United States v. Neal, 2011 U.S. Dist. LEXIS 92151 (D. Colo. August 18, 2011):

Though Defendant does not refer to specific documents from the Officers' personnel files, his request is limited to the topics of “work history and training, complaints against the individual officers, disciplinary actions, both pending and already adjudicated, notes, records and reports, commendations.” ... This shows that Defendant has attempted to limit the evidence sought to be produced to those subjects most likely to yield impeachment material. Without having seen the personnel files, the Court cannot imagine how Defendant could be more specific.

Defendant’s property was surveilled from overhead by a National Guard helicopter for a grow operation. When his plot was seen, armed officers swooped in from the ground and got his consent to enter, but the consent was tainted by their actions: armed officers seeking consent with a helicopter overhead. State v. Davis, 150 N.M. 611, 2011 NMCA 102, 263 P.3d 953 (2011), Writ of certiorari granted State v. Davis, 2011 N.M. LEXIS 496 (N.M., Oct. 4, 2011):

P16 Although Defendant gave specific and unequivocal consent, we conclude that the consent was given under duress and coercive circumstances. Defendant was surrounded by numerous uniformed, armed law enforcement officers and several law enforcement vehicles while a helicopter hovered overhead. Professor LaFave observes in his treatise that, although such circumstances are not per se coercive, “[t]he presence of a number of policemen is likely to suggest that the police are contemplating an undertaking which does not depend upon the cooperation of the individual from whom permission to search is being sought.” 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(b), at 62 (4th ed. 2004). Although only Officer Merrell approached Defendant to seek consent, it is undisputed that the remaining officers were spread throughout the property and were visible to Defendant during his exchange with Officer Merrell.

P17 In its discussion of the lawfulness of the helicopter surveillance, the district court commented that there was “merit to the claim that the police swooped in as if they were in a state of war, searching for weapons or terrorist activity,” which “can be terrifying and intimidating to most normal persons.” Although the district court found the helicopter search “just barely permissible” on these facts, it did not address these same facts in the context of whether the consent was coerced. In fact, the only circumstance the district court mentioned in its discussion of coercion was Officer Merrell’s statement that he would obtain a search warrant if Defendant did not consent to the search. The court dismissed this circumstance as simply an “explanation of the process that would be followed.”

Officers finally arrested defendant for violating the “no alcohol” provision of his parole because they could smell it on his breath. He got them to leave the car parked where it was–in the driveway of a friend. Nevertheless, the car was mobile enough for the automobile exception to apply because somebody else wanted access to it, ostensibly to drive off. State v. Wiggins, 245 Ore. App. 119, 260 P.3d 826 (2011), on rehearing State v. Wiggins, 2011 Ore. App. LEXIS 1798 (December 29, 2011) (reaching same result):

Here, there is no dispute that the police had probable cause that defendant’s car contained evidence of a crime—a gun—at the time of the search. The only remaining question, then, is whether defendant's vehicle was “mobile” at the time the officers first encountered it. Compare State v. Coleman, 167 Ore. App. 86, 94, 2 P3d 399 (2000) (“The inquiry is centered on the circumstances surrounding the moment when the police first notice or focus their attention on an automobile.” (Emphasis added.)), with Meharry, 342 Ore. at 178 (“[A] vehicle is mobile for the purposes of the automobile exception because it was moving when the officer stopped it and nothing demonstrated that the vehicle would not be mobile once the officer relinquished control over it.” (Emphasis added.)). We conclude that defendant’s car was mobile, whether we define the initial point of the encounter as the moment when Brewster first observed defendant’s car in the parking lot of the convenience store or the moment when Brewster subsequently stopped defendant's moving vehicle. In either case, the car was occupied and operable, and nothing subsequent to the stop rendered the car incapable of mobility.

We reject defendant's argument that the vehicle was stripped of its mobility because the officers broke contact with it. ...

The officers had cause for the stop when the CI gave the sign that a drug deal had gone down, and the vehicle involved was leaving the scene. State v. Williams, 2011 Ohio 4126, 2011 Ohio App. LEXIS 3438 (8th Dist. August 18, 2011).*

Defendant was stopped for a traffic violation, and he did not have his driver’s license on him. He was asked for consent which he refused. The officer said he was getting a drug dog but didn’t. Finally, he conducted a field sobriety test, and defendant passed. Then he arrested the defendant for no DL. A search incident after defendant was locked in the police car was invalid under Gant. Turner v. Commonwealth, 2011 Ky. App. LEXIS 138 (August 12, 2011). [Caution: If the vehicle would be towed, could the state argue inventory as an alternative?]

Just because defendant had one brake light out did not mean that his vehicle did not comply with the state vehicle code. The taillights otherwise worked, and the statute only referred to “stop lamp.” Therefore, the stop was invalid. State v. Heien, 2011 N.C. App. LEXIS 1750 (August 16, 2011).*

A university police officer was fired after making a complaint that other officers had violated the Fourth Amendment in conducting a search on campus. The ALJ upheld the firing. On appeal, the court held that the officer was a whistle blower, and his motive for complaining was pretty much irrelevant. Lawson v. Bowie State Univ., 26 A.3d 866, 32 I.E.R. Cas. (BNA) 1252, 161 Lab. Cas. (CCH) P61,177 (Md. 2011).* [Which only goes to show that police departments usually protect their cops; one complains about another and he’s gone as a troublemaker.]

This juvenile was subjected to a patdown for weapons and none were found. He refused to identify himself, so the officer searched for ID, finding instead a credit card that belonged to someone else. The frisk for the ID was unreasonable. In re D.B., 2011 N.C. App. LEXIS 1745 (August 16, 2011):

Although the State relies upon Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 159 L. Ed. 2d 292, 124 S. Ct. 2451 (2004), for the proposition that “the identity of a suspect can significantly impact the safety of an officer,” Hiibel does not address an officer's using a pat-down to uncover evidence of identification. At issue in Hiibel was whether a Nevada statute requiring a suspect to disclose his name in the course of a valid Terry stop was consistent with Fourth Amendment prohibitions against unreasonable searches and seizures. Id. at 187-88, 159 L. Ed. 2d at 303-04, 124 S. Ct. at 2459. The Court determined that because the defendant's obligation to identify himself arose from a state statute, and because the statute satisfied the Fourth Amendment constitutional standards, “[t]he principles of Terry permit[ted] a State to require a suspect to disclose his name in the course of a Terry stop.” Id. at 187, 159 L. Ed. 2d at 304, 124 S. Ct. at 2459 (emphasis added).

While many states have enacted “stop and identify” statutes such as the one in Hiibel, North Carolina has not. The State overlooks this crucial distinction. We further note that in Hiibel, the Supreme Court did not hold that an officer could, during the Terry frisk, search for proof of identification as well as weapons. Although the Court did note in passing that officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation and the threat to their own safety, the Court did not suggest that an officer can use a pat-down to locate an identification card. Id. at 186, 159 L. Ed. 2d at 303, 124 S. Ct. at 2458.

Officer’s testimony that he routinely pats down the passenger after getting the driver out of the car was not reasonable suspicion. Here, however, defendant later consented to a search of his wallet after the patdown, and that was independent. Rogue v. State, 311 Ga. App. 421, 715 S.E.2d 814 (2011).

Defendant was prosecuted for a Mann Act violation involving underage prostitution. He was kicked out of a hotel room with the police in tow. The officers questioned the girls in the rooms and looked at their cell phones. He had no standing to question the alleged violation of the rights of the girls. United States v. Collins, 437 Fed. Appx. 760 (11th Cir. 2011).*

SVPA prisoner strip searches were shown by defense affidavit to be for legitimate penological security interests, and plaintiff has not countered that proof. Jones v. Baca, 2010 U.S. Dist. LEXIS 143589 (C.D. Cal. March 31, 2010).*

Heartland Institute: California Warrantless Search Bill May Violate Fourth Amendment:

California lawmakers are attempting to stem the rise in counterfeit compact and digital video discs by proposing a law that would allow warrantless searches of disc manufacturing plants. SB 550, however, has provoked concerns it violates provisions in the Fourth Amendment of the U.S. Constitution, which prohibits warrantless search and seizures.

State Senator Alex Padilla (D-Pacoima) introduced SB 550, a bill that would grant authority for law enforcement officers who specialize in intellectual property to enter disc manufacturing plants without a warrant and conduct routine inspections to ensure plants are in compliance with state piracy laws. The bill would also allow enforcement officials to take a sample of four discs from each plant to create a data base for comparison of discs seized in the future.

Heavily regulated industry? Hardly. The bill is unconstitutional.

Fact car rental agreement showed that the car was overdue did not alone provide police justification for detaining the defendant. The officer at least had to inquire of the rental company. [After all, a telephone call by the renter can extend the agreement, and the contract in the car would still show it overdue.] State v. Coleman, 257 P.3d 320 (Kan. 2011):

In addition, Coleman was driving a rental car with an expired rental agreement. Although Tatro should have attempted to verify Coleman's explanation that he had renewed the agreement by telephone, the expired agreement may have provided another legitimate basis for a temporary detention. Courts in other jurisdictions have examined this question; most have concluded that an expired rental agreement provides at least some grounds for further detention and search, while a few have reached the opposite conclusion. See, e.g., United States v. Masterson, No. 2:08-CR-138, 2009 U.S. Dist. LEXIS 65941, 2009 WL 2365334 (D. Vt. 2009) (unpublished opinion); Burks v. State, 362 Ark. 558, 561-62, 210 S.W.3d 62 (2005); Tanner v. State, 281 Ga. App. 101, 635 S.E.2d 388 (2006); Crenshaw v. State, 248 Ga. App. 505, 510, 546 S.E.2d 890 (2001) (fact that driver was driving a car with an expired rental agreement sufficient in itself to establish an objective reason for believing the driver may have engaged in criminal conduct, justifying detention for canine search); State v. Kruip, No. 07-1675, 2008 Iowa App. LEXIS 515, 2008 WL 2902149 (Iowa App. 2008) (unpublished opinion) (driver's peculiar travel itinerary combined with an expired car rental agreement created reasonable suspicion of criminal activity; expired agreement created reasonable suspicion that defendant was driving without consent of rental company and may have illegally converted car to her own use); State v. Lewis, 980 So. 2d 251, 260 (La. App. 2008); Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007); Sutton v. State, 2009 WY 148, 220 P.3d 784 (Wyo. 2009); Garvin v. State, 2007 WY 190, 172 P.3d 725 (Wyo. 2007). But see United States v. $93,120.00 in U.S. Currency, No. 8:09-CV-374, 2011 U.S. Dist. LEXIS 34664, 2011 WL 1002766 (D. Neb. 2011) (unpublished opinion) (expired rental car agreement, which driver said he had renewed over the phone, along with travel itinerary including travel from drug-source area to a drug-destination area, and a small amount of visible luggage combined with larger carrier on the top of vehicle and trash about the vehicle did not give police reasonable suspicion for detention and seizure); United States v. Billups, 442 F. Supp. 2d 697, 710-11 (D. Minn. 2006) (detention not justified despite expired rental agreement and request from rental agency that officer impound car; car not reported stolen and officer had already concluded expired agreement was not grounds for detaining driver); Enriquez v. State, 97 Ark. App. 62, 66-67, 244 S.W.3d 696 (2006) (arresting officer gave little weight to expired agreement at time of stop and there were no reports the car was stolen).

We have no difficulty in agreeing with the district court and the Court of Appeals that the expired rental agreement, in combination with Coleman's parolee status and the reports that it was likely that Coleman was engaged in drug transportation, provided Tatro with a reasonable suspicion of criminal activity, justifying a temporary detention and allowing further investigation.

Police lacked reason to believe the defendant was in his house for entry without a warrant, surveying all the cases, and finding that even the lowest standard from other circuits was not met. United States v. Hill, 649 F.3d 258 (4th Cir. 2011):

This case is about the “centuries-old principle of respect for the privacy of the home.” Wilson v. Layne, 526 U.S. 603, 610 (1999). Defendant, Torrance G. Hill, filed a motion to suppress evidence obtained in his residence without a warrant. The district court denied the motion, and determined that the police acted legally when they entered Hill’s home. Hill subsequently entered a conditional guilty plea while reserving his right to appeal the denial of his motion to suppress. We now hold that the district court erred in finding that the police’s initial entry into the house was valid, but that it properly found Ms. Alvarez’s consent for the second search was valid. We remand to the district court for a determination as to whether the taint from the initial illegal entry into the house was dissipated by Ms. Alvarez’s consent.

. . .

The police did not have sufficient reasons upon which to base their belief that Hill was present in the home to execute their arrest warrant. In Payton v. New York, the Supreme Court concluded that police may enter into a home without a search warrant in order to execute an arrest warrant only if “there is reason to believe [that the subject of the warrant] is within.” 445 U.S. 573, 602 (1980). Generally, circuits have broken the analysis of whether the entry was lawful into two conjunctive parts: (1) whether there is reason to believe that the location is the defendant’s residence, and (2) whether or not there was a “reasonable belief” that he would be home. See, e.g., United States v. Graham, 553 F.3d 6, 13 (1st Cir. 2009); United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995), cert. denied, 116 S. Ct. 189 (1995).

Circuits have employed a variety of approaches in defining reasonable belief and its relationship to probable cause. Some circuits have found that reasonable belief is the same as probable cause. See United States v. Hardin, 539 F.3d 404, 416 (6th Cir. 2008) (probable cause is the correct standard to use in determining an officer’s reasonable belief that the subject of a warrant is present in the home); United States v. Gorman, 314 F.3d 1105, 1114 (9th Cir. 2002) (same); see also United States v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009) (noting an inclination to believe “that ‘reasonable belief’ is synonymous with probable cause.”).

Other circuits have simply found that the distinction between reasonable belief and probable cause is indefinite or negligible. See United States v. Barrera, 464 F.3d 496, 501 n.5 (5th Cir. 2006) (noting that the distinction between probable cause and reasonable belief is “more about semantics than substance”), cert. denied, 550 U.S. 937 (2007); Magluta, 44 F.3d at 1535 (noting that it is “difficult to define the Payton ‘reason to believe’ standard, or to compare the quantum of proof the standard requires with the proof that probable cause requires.”).

While still other circuits have found that the requirements of reasonable belief are something less than probable cause. See United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (“reasonable belief” requires less than probable cause), cert. denied, 549 U.S. 1055 (2006); Valdez v. Machetes, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999) (same); United States v. Later, 57 F.3d 212, 215 (2d Cir. 1995) (same). A final set of circuits has taken no position as to the relationship between “reasonable belief” and probable cause. United States v. Weems, 322 F.3d 18, 22 (1st Cir. 2003); United States v. Rise, 83 F.3d 212, 216 (8th Cir. 1996); United States v. Edmonds, 52 F.3d 1236, 1248 (3d Cir. 1995), vacated in part on other grounds, 52 F.3d 1251.

In light of the diverse views taken by our sister circuits, we decline to reach a conclusion as to whether ‘reason to believe’ is as stringent as ‘probable cause’ because we conclude below that the police entry was not justified even under the less stringent interpretation of the standard.

A knock-and-talk that included three armed SWAT officers was inherently coercive. Defendant opened the door, saw them, and stepped back. The officers came in. If that was implied consent, it was coerced by the nature of the knock-and-talk. United States v. Serabia-Ferrel, 2011 U.S. Dist. LEXIS 92040 (D. Minn. July 8, 2011), adopted 2011 U.S. Dist. LEXIS 92123 (D. Minn. August 17, 2011).

Officers making a controlled delivery in Florida from a stop in Texas had exigent circumstances for an entry because of the possibility of destruction of evidence. There was also a question of consent found by the district court as an alternative ground that defendant failed to appeal. United States v. Gutierrez, 2011 U.S. App. LEXIS 17088 (11th Cir. August 16, 2011) (unpublished):

... Given the agents' fear of counter-surveillance and their inability to view the truck or the goings-on in the house, their concern that Garcia Gutierrez or his co-conspirators inside the house could be in the process of destroying the narcotics evidence was an objectively reasonable one. Because the agents had both probable cause and exigent circumstances, the district court did not err in denying the motion to suppress either the physical evidence discovered in the house or the statements that Garcia Gutierrez made to law enforcement.

Whether a TSA screening search was a part of an independent police investigation or TSA acting on its own apparently surprised the parties trying to narrow the issues, and further record development is necessary. United States v. Rosales, 2011 U.S. Dist. LEXIS 91635 (D. Minn. August 16, 2011).*

When a dog alerts on a car, and the defendant is in the car, the defendant’s pockets are not “containers” subject to search under the automobile exception because of the heightened privacy interest in one’s person. State v. Gefroh, 2011 ND 153, 801 N.W.2d 429 (2011):

[*P13] We hold the automobile exception did not justify the warrantless search of Gefroh’s person. The dog-sniff of the vehicle established probable cause the vehicle contained a controlled substance, but the pockets of the clothes Gefroh was wearing were not “containers.” The State also argued that Gefroh, as the driver of the vehicle, was part of the contents of the vehicle. The State offers no support for its arguments that would render Gefroh a container or contents of the vehicle, rather than a person entitled to “heightened protection” against searches of his person. The district court correctly decided the automobile exception justified the search of the vehicle, but not Gefroh’s person. The district court correctly ordered the cocaine evidence suppressed.

Defendant has no standing on the face of his motion: He was a passenger and his consent was not required. United States v. Lopez, 2011 U.S. Dist. LEXIS 91349 (S.D. N.Y. August 16, 2011).*

Officers are not required to schedule a search at a time when defendant is not home or excuse him while they search. United States v. Fautz, 812 F. Supp. 2d 570 (D. N.J. 2011).*

While Eighth Circuit case law suggests that one driving a rental car with the permission of the renter might have standing, in this case he wouldn’t. The car was overdue, and the rental car company was trying to get it back and told the renter she was no longer authorized to have it. United States v. Lumpkins, 2011 U.S. Dist. LEXIS 91357 (W.D. Mo. July 6, 2011).*

The search warrant for plaintiff’s computer for child pornography based solely on allegations of child molestation was without probable cause where there was not even a suggestion a computer was used by plaintiff. However, because of a circuit split of authority, qualified immunity applies. Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011).*

Defendant was stopped and struggled with officers dropping packages of heroin. He was able to lunge for the heroin and swallow it. The search of his car was valid under the automobile exception. State v. Winfrey, 302 Conn. 195, 24 A.3d 1218 (2011).*

Claimant’s action for return of property filed ten years after seizure was barred is an equitable action under (now) Rule 41(g) when the government said it didn’t have the property. Van Jackson v. United States, 427 Fed. Appx. 524 (7th Cir. 2011) (unpublished).*

Just raising a Franks issue gets you no hearing; a substantial preliminary showing is required, and here there wasn’t one. United States v. Clark, 2011 U.S. Dist. LEXIS 90776 (D. S.D. August 15, 2011).*

While the Fourth Amendment applies to an arrestee’s medical needs at the time of arrest, here the officers had qualified immunity for denying baby aspirin to a suspect who had a heart attack when they battered in his door. They also had no notice at the time of the raid that the plaintiff was a potential heart attack victim. Florek v. Mundelein, 649 F.3d 594 (7th Cir. 2011):

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....” U.S. Const. amend. IV. We have held that an officer violates the prohibition on unreasonable seizures when, in the course of making an otherwise lawful arrest, he does not respond reasonably to an arrestee’s medical needs. Sides v. City of Champaign, 496 F.3d 820, 828 (7th Cir. 2007) (citing Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), and holding that the Fourth Amendment’s ban on unreasonable seizures applies to claims of unreasonable inattention to medical needs at the time of arrest). Not every constitutional violation will furnish a plaintiff with a basis for recovery, however. Qualified immunity will shield an officer from money damages unless a plaintiff establishes that the officer violated a right that was clearly established. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). And because “[l]evel of generality is destiny” in law, see Thomas More Law Center v. Obama, __ F.3d ___, 2011 U.S. App. LEXIS 13265, 2011 WL 2556039, at *27 (6th Cir. June 29, 2011) (Sutton, J., concurring), it bears emphasizing that courts should not decide that a right is clearly established at a high level of abstraction: we look to “whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084, 179 L. Ed. 2d 1149 (2011) (emphasis added).

[Sounds a bit like the taser cases where the police taser an older person who has a heart attack. Aren't they on notice that the age of the target might be a health problem when the batter down a door in a surprise “dynamic” entry?]

OzarksFirst.com: Former Missouri Sheriff Admits to Exploiting Women:

The now-former sheriff of Worth County, Missouri could find himself spending time behind bars after pleading guilty to federal charges he used his position to exploit women.

The Justice Department said today Neal Wayne "Bear" Groom has admitted to having violated the Fourth Amendment rule against unreasonable seizures when he coerced eight women to expose parts of their bodies to him.

[I couldn't find the press release on the DoJ website.]

The operator of a shopping mall was charged along with others with unlawful discharge of industrial waste after a pressure wash cleaning of a parking garage. An environmental crimes investigator took samples after a whistleblower called them. The trial court granted the suppression motion, but the appellate court held that standing could be raised by the state for the first time on appeal, and the mall operator had no standing in the public garage. State v. Simon Property Group, 357 S.W.3d 687 (Tex. App.—Houston (14th Dist.) 2011);* State v. Bell, 2011 Tex. App. LEXIS 6458 (Tex. App.—Houston (14th Dist.) August 16, 2011);* State v. Sepeda, 349 S.W.3d 713 (Tex. App.—Houston (14th Dist.) 2011).*

Turning on emergency lights to effect a stop of a man on the street was a seizure, here without reasonable suspicion. State v. Gantt, 163 Wn. App. 133, 257 P.3d 682 (2011).*

Defendant’s pat down was unjustified by reasonable suspicion. An officer was cruising an area of a “vague report” of shots fired a couple of blocks away and asked to talk to some young men who came up to him to talk. Two were more gregarious than defendant, who did not lean in to talk to the officer. Defendant declined to submit to a patdown after the other two did. “On the facts of this case, there is precious little to sustain the district court's holding that Officer Gaines had reasonable, particularized suspicion of Massenburg such that a nonconsensual frisk was lawful under the Fourth Amendment.” United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011).* Update: Noted in Federal Criminal Appeals Blog: The Fourth Circuit and the Fourth Amendment: If You Search Like a Redcoat You Can't Use What You Find In Court.

Officers asked for consent of defendant’s hotel room which defendant initially refused. They said that they’d attempt to get a search warrant. “At that point, Bond exclaimed, ‘F-ck it!,’ grabbed the key card, and unlocked the door.” That was consent. United States v. Bond, 433 Fed. Appx. 441 (6th Cir. 2011)*.

Omissions from the affidavit were so minor that it did not undermine probable cause; nor did it suggest that the officer was trying to mislead the magistrate. Franks hearing denied. United States v. Robertson, 2011 U.S. Dist. LEXIS 90598 (E.D. Va. August 15, 2011).*

In an IRS and mail fraud case, the warrants were necessarily broad, but they were not constitutionally overbroad. United States v. Cooper, 654 F.3d 1104 (10th Cir. 2011):

However, despite the generality of the warrants themselves, the supporting affidavits fill in many of the necessary details. In particular, the affidavits flesh out how the conduct being investigated is related to the statutes listed on the warrants. For example, the affidavits indicate that “[t]he use of the United States mail and commercial interstate carriers to transport Renaissance promotional materials or other matters in furtherance of this scheme or artifice to defraud United States consumers is in violation of 18 U.S.C. § 1341, which is mail fraud.” ... Furthermore, they describe various “mailings [that] contained Renaissance promotional material such as videotapes, brochures, tax forms, and other material containing some false and misleading information,” ... and various bank and brokerage accounts held by Mr. Cooper, Renaissance, or associated entities, .... Importantly, the affidavits also include a list of “[i]tems to be seized,” ..., which—when read in conjunction with the warrant and the remainder of each affidavit—would “enable[] the [executing officers] to reasonably ascertain and identify the things authorized to be seized,” Riccardi, 405 F.3d at 862 (quoting Leary, 846 F.2d at 600). Contrary to Mr. Cooper’s assertions, the warrants and affidavits do much more than “merely recit[e] the mail fraud and money laundering statutes.” ....

Furthermore, as noted above, “[e]ven a warrant that describes the items to be seized in broad or generic terms may be valid when the description is as specific as the circumstances and the nature of the activity under investigation permit.” Riccardi, 405 F.3d at 862 (quoting Leary, 846 F.2d at 600). In other words, whether a search warrant is sufficiently particular depends in part on the nature of the crimes being investigated. Warrants relating to more complex and far-reaching criminal schemes may be deemed legally sufficient even though they are less particular than warrants pertaining to more straightforward criminal matters. See United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997) (“[W]e are satisfied that [the warrant] is sufficiently limited and specific, in view of the nature of this extended conspiracy and other crimes for which he was being investigated ....”); ... Indeed, the complex and comprehensive nature of the broad scheme of financial criminal activity implicated in this case “makes it difficult to list with great particularity the precise items desired to be seized which evidence such activity.” Janus Indus., 48 F.3d at 1554. In the face of this difficulty, the affiants provided a meaningful and sufficient amount of detail.

Every complex white collar case with a search warrant seems to include a claim that the warrant was overbroad, yet they seldom succeed. The more complicated and paper heavy the crime under investigation, the more is allowed in the breadth of the warrant. Few of these challenges seem to succeed because the government is allowed significant leeway in expressing what needs to be searched for just as a matter of practicality.

It was reasonable to put defendant in the back of a police car for the time being while the officer investigated further. Defendant and his car matched the description from a bank robbery that happened within the hour. United States v. Rush, 651 F.3d 871 (8th Cir. 2011).*

Defendant was stopped for following too close, and he had two rifles in the back seat. He invited the officer to “run” them, which prolonged the stop. Then he consented to a search. The officer noticed the console didn’t fit right and removed part of it, and that was not a “dismantling” of the car. United States v. McCall, 433 Fed. Appx. 432 (6th Cir. 2011).*

Driver and passenger were unable to provide basic information about their trip and that provided reasonable suspicion. United States v. Olvera, 437 Fed. Appx. 305 (5th Cir. 2011) (unpublished).*

The officer had reasonable suspicion to stop the defendant walking away from the area of a recent car break-in when he was the only person around, and he matched the description of one of the two involved. State v. Kessler, 151 Idaho 653, 262 P.3d 682 (2011).*

NPR: Air Force Eyes Artificial Birds, Bugs That Can Spy by Noah Adams:

"These little tiny [unmanned aerial vehicles] are great for surveillance, or looking around, or collecting data that way, but they're very short on battery power."

--Steve Ross, Ph.D. candidate at the Air Force Institute of Technology, at Wright-Patterson.

A polygraph is not a search under the Fourth Amendment. United States v. Woodenlegs, 2011 U.S. Dist. LEXIS 89888 (D. Mont. August 12, 2011):

The only federal court to publish an opinion addressing the issue of whether a polygraph examination is a Fourth Amendment search has rejected Defendant's argument. In Stehney v. Perry, 907 F. Supp. 806, 822 (D.N.J.1995), aff'd 101 F.3d 925 (3d Cir. 1996), the court ruled that a polygraph does not constitute a search within the meaning of the Fourth Amendment. Additionally, although this Court does not typically cite to unpublished opinions, the Ninth Circuit has rejected this argument in their unpublished opinion in United States v. Jordan P.W., 168 Fed.Appx. 150 (9th Cir. 2006) when they stated: “We reject W.'s argument that a polygraph examination constitutes a search or seizure subject to the Fourth Amendment and know of no authority supporting it.”

Even if a polygraph examination was a search subject to the Fourth Amendment, Defendant gave his consent to the polygraph before it was administered and even suggested that he be allowed to take a polygraph when originally questioned by law enforcement.

Defendant was in possession of child pornography “approximately five months ago” before the search warrant, showing pictures to others. It was a fair inference that he still had it for the search warrant to issue. Steele v. State, 355 S.W.3d 746 (Tex. App.—Houston (1st Dist.) 2011)* (dissent; dissent).

“[*P12] The dispositive question concerning application of the automobile exception is whether probable cause supported the search. ... Sommer concedes probable cause supported the search of his vehicle.” A vehicle is inherently mobile, even when the defendant is in jail. State v. Sommer, 2011 ND 151, 800 N.W.2d 853 (2011).*

The affidavit for the search warrant here gave absolutely no indication that defendant, who sexually assaulted a child, was in possession of child pornography. The search warrant thus lacked any indicia of probable cause for Leon purposes, and thus failed Herring, too. Not suppressing this search would enable police to engage in fishing expeditions by speculation, and this satisfies Herring's culpability requirement. People of the Virgin Islands v. John, 654 F.3d 412, 55 V.I. 1324 (3d Cir. 2011):

Requiring that a warrant applicant state explicitly her belief in the existence of a correlation like the one on which Joseph apparently relied, as well as reasons justifying such a belief, is not inconsistent with the fact that these affidavits are typically drawn by laypersons rather than attorneys. Even police officers who lack legal training are expected to know of the requirement that the factual basis for a probable cause determination must be stated in the affidavit. We demand nothing more than that an officer seeking a warrant explain why she is justified in entering a person's home and searching through his belongings. This insistence that law enforcement comply with a bedrock principle of the Fourth Amendment cannot be dismissed as the imposition of an unnecessary or hypertechnical obligation.

Policing this requirement easily passes the cost-benefit analysis set forth in Herring. Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit's four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a preeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and Leon and its progeny establish that an officer's conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one. See Herring, 129 S. Ct. at 702; Tracey, 597 F.3d at 151. Joseph's reliance on the warrant was “entirely unreasonable,” Tracey, 597 F.3d at 151; her behavior was, at a minimum, grossly negligent. Moreover, applying Leon in cases like the one at bar would risk encouraging police to seek permission to search for evidence of crimes unrelated to any known facts, based upon nothing more than unstated and unsupported hunches. It would reward law enforcement for grounding warrant applications in unexamined biases and stereotypes rather than in conscientious assessment of the facts and circumstances uncovered by the investigation. Leon and its progeny were never intended to ratify such unjustified intrusions into the privacy safeguarded by the Fourth Amendment. The “good faith” exception does not shield Joseph's actions here. The evidence obtained pursuant to the invalid portion of the warrant (i.e., the portion authorizing a search for child pornography) must be suppressed.

Officers had a warrant for the defendant, and they got permission to enter the dwelling of another to look for him. They found defendant standing in a bedroom closet, and took him downstairs to secure him. The officer who found him went back to the bedroom and searched a duffle bag that was in the closet. The search was invalid under the search incident doctrine because defendant was nowhere around it at the time. State v. Justice, 2011 Ohio 4004, 2011 Ohio App. LEXIS 3366 (5th Dist. August 10, 2011).

Defendant was walking in a high crime area with a shopping bag and he was observed near the officers reaching into a truck. The officer grabbed for defendant and saw a baggie of drugs. The defendant did not make a furtive movement and there was no reason to believe he was armed, so the search was invalid. State v. Abner, 2011 Ohio 4007, 194 Ohio App. 3d 523, 957 N.E.2d 72 (2d Dist. 2011).*

Defendant’s frisk was justified under Terry, so defense counsel was not ineffective for not raising it. State v. Parra, 2011 Ohio 3977, 2011 Ohio App. LEXIS 3348 (8th Dist. August 11, 2011).*

Officers had a search warrant for a mobile home. When they arrived they found the defendant outside and two men coming out of a rock building behind the trailer. The search warrant was for the premises, and the protective sweep of the rock building was justified under Buie. State v. Rojas-Tapia, 151 Idaho 479, 259 P.3d 625 (2011).*

Defendant rented a hotel room for a couple that had no means to rent the room themselves. As occupants, they had apparent authority to consent to a search of the room. State v. Bell, 2011 Iowa App. LEXIS 813 (August 10, 2011).*

Two officers approached a group in a high crime area and they scattered. One officer followed defendant who furtively reached for his waist as the officer approached. Handcuffing him was reasonable during the patdown for officer safety. The pill bottle in defendant’s pocket was discovered by plain feel. State v. Marshall, 70 So. 3d 1106 (La. App. 2d Cir. 2011).*

Court rejects pretextual search warrant argument that probable cause for crime A does not permit seizure of evidence of crime B found during execution of the warrant that police hope or suspect they will also find. United States v. Fautz, 2011 U.S. Dist. LEXIS 89133 (D. N.J. August 11, 2011).

In an investigative stop after an apparent car switch, the defendants were patted down and their cell phones removed from their possession. That was not unreasonable. United States v. Lopez, 441 Fed. Appx. 910 (3d Cir. 2011) (unpublished).*

The officer had to know that one defendant did not have apparent authority to consent to the search of another defendant’s wallet that was pulled out and laid on the console while showing his DL to the officer. A gym bag in the back seat, however, was a different matter. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 89043 (S.D. Ala. August 10, 2011).*

The search warrant in an export violation case was not overbroad considering what was under investigation. The defendant was accused of unlawfully shipping telecommunications equipment to Iraq in violation of an embargo through intermediaries in different countries. At the time of the search, the government did not know the breadth of the conspiracy. Limiting the search to email subject lines might have caused the investigators to miss important evidence. The warrant was not an “all records” search, and it was tailored to look for evidence of the crime at hand. Some emails in evidence had blank subject lines, and the government was entitled to try to figure out who else was involved by the senders and recipients. United States v. Hanna, 661 F.3d 271 (6th Cir. 2011).*

Mail was addressed to the defendants from the Pinellas County jail disguised as legal mail, and the defendants were under investigation in a white collar fraud case. Search warrants were obtained for the mail after an FBI agent acting as a “taint team” determined that they were not legal mail. Mary Morgan had no standing to contest a search of mail addressed to John Morgan. United States v. Morgan, 2011 U.S. Dist. LEXIS 88876 (M.D. Fla. August 10, 2011).*

In his 2255, defendant argued that his counsel did not “properly” argue the suppression motion that was filed and litigated and appealed. He doesn’t say how, so no claim is presented. United States v. Perez-Jacome, 2011 U.S. Dist. LEXIS 89617 (D. Kan. August 11, 2011).*

The officer showed the defendant a printed phrase book of Spanish in Law Enforcement which was a request for consent, and the court finds that sufficient for consent. Once granted, consent extends the stop. United States v. Lamela-Cardenas, 2011 U.S. Dist. LEXIS 89003 (S.D. Ala. August 10, 2011).*

Warrant to install GPS device was not violated where the officers were able to monitor it in real time rather than having to retrieve it and download information periodically. State v. Brereton, 2011 WI App 127, 337 Wis. 2d 145, 804 N.W.2d 243 (2011):

P15 We hold that the police were operating reasonably and within their discretion when they attached a GPS device to Brereton's car. They took the time to obtain a warrant. The warrant authorized them to put a GPS device on the car to monitor the car's whereabouts. Unlike the device used in Sveum I and II, the GPS device in this case was only in use for four days (until the police obtained information they could use). And the fact that there was a warrant and that the device was in play for only four days is what distinguishes the facts of this case from United States v. Maynard, 615 F.3d 544, 392 U.S. App. D.C. 291 (D.C. Cir. 2010), cert granted, United States v. Jones, No. 10-1259, 2011 U.S. LEXIS 4956, 2011 WL 1456728 (June 27, 2011), a case heavily relied on by Brereton. In that case, the court emphasized the level of intrusion involved when the police, without a warrant, attached a GPS device to the defendant's car and monitored his whereabouts " 24 hours a day for four weeks." Id. at 562-64. Under the facts of this case, however, we see no reason to find that the police overstepped their bounds simply because they were able to monitor the movements in real time rather than needing to continually return to the car, remove the device, and download its information to a computer. Though we can envision scenarios where prolonged use of this device might be unreasonable under the Fourth Amendment, we do not believe this case crosses the line.

Key word: Warrant.

Defendant invoked her right to remain silent. Asking for consent after that did not violate the Fifth Amendment and Miranda. United States v. Ignacio-Lorenzo, 2011 U.S. Dist. LEXIS 89780 (D. Neb. July 14, 2011):

While Ignacio-Lorenzo invoked her right to remain silent, Agent Farris and Officer Burns did not violate that right when they asked her to consent to a locker search. "The [Fifth Amendment] privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." Schmerber v. California, 384 U.S. 757, 761 (1966). "A consent to search is not a self-incriminating statement; it is not itself evidence of a testimonial and communicative nature." United States v. Hidalgo, 7 F.3d 1566, 1568 (11th Cir. 1993) (quoting Smith v. Wainwright, 581 F.2d 1149, 1152 (5th Cir. 1976)). Therefore, requesting to search is not interrogation within meaning of Miranda. Cody v. Solem, 755 F.2d 1323 (8th Cir. 1985;) see United States v. Shlater, 85 F.3d 1251 (7th Cir. 1996;) United States v. Rodriguez-Garcia, 983 F.2d 1563 (10th Cir. 1993). Agent Farris and Officer Burns did not violate Ignacio-Lorenzo's right to remain silent by asking her to consent to a locker search. See Hidalgo, 7 F.3d at 1568 (noting while consent led to introduction of incriminating physical evidence, there was no incriminating statement obtained after invoking the right to silence).

Dumping property in flight from the police, at least without an attempt to conceal it, is an abandonment. United States v. Herrera, 2011 U.S. Dist. LEXIS 89783 (D. Neb. June 10, 2011).*

Executing a valid search warrant, officer forcibly entered into the plaintiff’s apartment with guns drawn, 8-10 seconds after knocking and announcing their presence, and detained five occupants. It was not unreasonable for the officers to believe that any further delay in entering would be dangerous, futile, or ineffective, especially since the occupants were on notice that the police were outside and about to enter prior to the knock on the door. The force used by the officers to secure the premises was not unreasonable. Pointing guns at the plaintiff during the initial protective sweep was not unreasonable because the execution of a warrant to search for narcotics was the kind of transaction that could give rise to sudden violence or frantic efforts to conceal or destroy evidence. Moving the plaintiff to the living room and forcing her to the floor was also not unreasonable, as well as using handcuffs to detain the occupants while the residence was being secured. The detainment only took 15-20 minutes, and there was no evidence that the detainment was longer than necessary to permit the officers to conduct a protective sweep and secure the premises. Jama v. City of Seattle, 446 Fed. Appx. 865 (9th Cir. 2011).*

The fourth CI’s information alone was enough to issue the search warrant, and it involved a controlled buy. United States v. Johnson, 655 F.3d 594 (7th Cir. 2011).*

The search of defendant’s car was based on the automobile exception and seeing stolen property in plain view inside it. Gant did not apply. United States v. Southerland, 442 Fed. Appx. 767 (4th Cir. 2011).*

In a curious case from Ohio, the defendant hid a gun in the bushes in anticipation of what he thought was an illegal stop of his person. The court held he still had standing in the gun because it was hidden, not abandoned. The court cites an Art. III standing case, not a Fourth Amendment standing case. Nevertheless, the seizure of the gun was valid because the officer saw where it was left. United States v. Keys, 2011 U.S. Dist. LEXIS 87954 (S.D. Ohio August 9, 2011)*:

The government's attempt to expand the principle applicable to disclaimed baggage into the proposition that a defendant has no standing to request suppression of abandoned property is not well-taken. The facts of this case simply are not on point or in line with the disclaimed bag cases. There is no search of luggage or a container in this case. Defendant here claims no expectation of privacy with regard to the gun, he simply claims he does not own it and that due to an improper detention he was mistakenly linked to the gun. A party has standing when they have a sufficient stake in a controversy, an injury-in-fact caused by conduct complained of, that can be redressed by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Defendant here meets such requirements and has standing.

The government, citing United States v. Martin, 399 F.3d 750 (6th Cir. 2005), similarly argues that Defendant has no fourth amendment interest in the gun because he abandoned it. However, the facts from the government's view do not support such theory. In California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), the Supreme Court established the rule that the fourth amendment does not apply to anything one may abandon while fleeing the police in order to avoid seizure. Here however, taking the facts from the government's view, Defendant put the gun in the bush before any show of police authority and before any attempts by Defendant to avoid the police. Although his actions were furtive and raised suspicion, he arguably never fled the officers and he quickly submitted to their authority moments after Officer Wloszek observed his behavior. There was no chase. Had Defendant been refusing to submit and in the course of fleeing when he put the gun in the bush, this case would be on all fours with Hodari and Martin. But the fact pattern here is different. Defendant has a fourth amendment interest in avoiding unreasonable seizures, and he is entitled to invoke such interest in challenging the conduct of the officers who seized him and then linked him to the gun.

Defendant was a sex offender under a community control sentence, and he violated the terms of release. The search of his portable memory cards by his PO did not violate his state constitutional privacy rights because statute reasonably permitted a search of his home, car, and other “personal property.” State v. Parris, 163 Wn. App. 110 (2011).*

The officer called the judge for a telephonic search warrant, and the officer testified that he was not sworn in before giving information from the CI that made the PC for the warrant. After the search, he returned the warrant to the judge who signed it. The judge had no recollection of the call or the warrant approval. The trial court held that the warrant was invalid, but nevertheless executed in good faith under Leon, and the appellate court affirmed on the good faith exception. Bailey v. State, 67 So. 3d 145 (Ala. Crim. App. 2009), Released for Publication July 27, 2011.*

The issuing magistrate was a trial commissioner who held over his term of office, and he was still a de facto officer under state law. [If he was not, the good faith exception would not apply.] Gourley v. Commonwealth, 335 S.W.3d 468 (Ky. App. 2010).*

The trial court started the suppression hearing without defense counsel present because he was in another court in another county. He arrived shortly after it started where the officer had only gotten into background information. Nevertheless, the court finds this was a denial of counsel. People v Strothers, 2011 NY Slip Op 06200 (App. Div. 1st Dept. August 11, 2011):

The right to counsel for an accused person is constitutionally guaranteed at trial and at other critical proceedings such as a pretrial suppression hearing (see People v Carracedo, 214 AD2d 404 [1995]). The deprivation of counsel has been described as absolute and harmful per se (see People v Margan, 157 AD2d 64, 65-66 [1990]). Because of the sanctity of the right to counsel, we need not engage in an analysis as to what transpired in the case during counsel's absence and whether the evidence received, or matters discussed with the court, were material to the defense. " The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial'" (id. at 66, quoting Glasser v United States, 315 US 60, 76 [1942]). Thus, we reject the People's argument that the deprivation here can be overlooked because defendant was unrepresented for only a small portion of the cumulative testimony and that the portion counsel missed covered only background and general information.

The fact that the right to counsel is absolute also renders baseless several of the other arguments advanced by the People. For instance, it is of no moment that counsel, once he did arrive for the hearing, did not preserve the objection that it began without him. Where counsel is not present when the deprivation occurs and so cannot lodge an objection, the issue can be raised for the first time on appeal (Margan at 70). The People offer no support for their position that the presence of codefendants' counsel, whose clients' interests they allege were aligned with defendant's, was an adequate substitute. Evidence that defendant expressly agreed to the representation and waived any conflict, as would be required, is completely absent from this record (cf. People v Torres, 224 AD2d 269, 270 [1996], lv denied 88 NY2d 943 [1996]).

We also reject the People's contention that the deprivation of counsel here was harmless. The Court of Appeals has held that, where a defendant is deprived of counsel at a suppression hearing, the error cannot be deemed harmless even if one can conclude that the outcome of the hearing would have been the same had counsel been present (see People v Wardlaw, 6 NY3d 556, 559 [2006]). ...

On LegalMatch blog: Legislatures Grapple With New Police Technologies by Sonya Ziajaon:

My colleague wrote last month about the need for clear guidelines for using “new police technologies,” including GPS tracking darts and x-ray vans. He is not alone. Federal and state legislatures have been taking up this issue, even while courts are in the process of defining the limits of citizens’ Fourth Amendment right to privacy.

As Mr. Rivera noted, tracking devices have been very useful tools for law enforcement. At the same time the tools are invasive and used surreptitiously, raising significant privacy concerns. Still, no one is seriously considering banning any of these devices. The question legislatures are grappling with is whether or not law enforcement should be required to seek a warrant before employing invasive tracking technologies.

Defendant came to the ER with a GSW to the lower calf and ankle, claiming that he’d been shot by an unknown assailant from some distance. Detectives were called as required by state law for all GSWs, and he noticed soot around the entrance wound hole in the clothing. The hospital personnel cut off the pant leg to treat the defendant and bagged it and turned it over to the officer. The seizure was a result of a plain view. Defendant conceded he had no reasonable expectation of privacy in his clothing on showing up at an ER with a GSW. Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 951 N.E.2d 687 (2011), Review denied 460 Mass. 1114, 954 N.E.2d 539 (2011).

Defendant was cited by the city for overgrown vegetation and trash in the yard, and he appealed. He had no Fourth Amendment expectation of privacy in what the city inspector could see from the street. City of Independence v. Cady, 349 S.W.3d 419 (Mo. App. 2011).*

Two serial informants, both independently corroborated, was probable cause. United States v. Holmes, 2011 U.S. Dist. LEXIS 87527 (W.D. La. Aug. 3, 2011), R&R 2011 U.S. Dist. LEXIS 87512 (W.D. La. July 14, 2011).*

The recording of a telephonic search warrant request clearly showed that the issuing magistrate did not act as a rubber stamp. In fact, the officer sought a warrant for urine as well, and the judge denied it. “Having considered the recording of the warrant application process and other related evidence, this Court is unable to find that Judge Emery abandoned his judicial role in any way, such as by failing to act in a neutral and detached manner, acting as a mere rubber stamp, engaging in the ‘competitive enterprise of ferreting out crime,’ see Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948), or blindly approving the telephonic warrant.” United States v. Valandra, 2011 U.S. Dist. LEXIS 87004 (D. S.D. August 5, 2011), R&R 2011 U.S. Dist. LEXIS 87242 (D. S.D. June 9, 2011).

Defendant essentially consented to officers following him into his home to get clothes after he was arrested, but it was permissible under Washington v. Chrisman. United States v. Crisosto-Vera, 2011 U.S. Dist. LEXIS 87610 (D. Ariz. August 5, 2011), R&R 2011 U.S. Dist. LEXIS 87815 (D. Ariz., June 10, 2011).*

Defendants were stopped for a lane change without a turn signal, and the resulting stop took 21 minutes, nine of which was spent waiting for a criminal history check. In the meantime, the driver and the passenger had wildly inconsistent stories about their travel plans. That plus their extreme nervousness and driving a rental car was reasonable suspicion. United States v. Kitchell, 653 F.3d 1206 (10th Cir. 2011), cert. denied 2011 U.S. LEXIS 7234 (U.S., Oct. 11, 2011).*

It is not a violation of any law, and appellant cites nothing in support, to not state in the search warrant what the police intend to do with blood taken in a DWI blood draw. State v. Webre, 347 S.W.3d 381 (Tex. App.—Austin 2011).*

Defendant has not shown that trial counsel’s failure to file a motion to suppress would have altered the outcome, so no prejudice shown. State v. Layne, 2011 Ohio 3763, 2011 Ohio App. LEXIS 3193 (12th Dist. August 1, 2011).*

Defendant committed two traffic violations and was pulled over. The officer believed he made a furtive gesture by leaning when stopped, so he ordered defendant out of the car at gunpoint. After handcuffing defendant, he searched the car, and it was without reasonable suspicion for a weapon or probable cause for evidence. The officer could not even articulate the basis for handcuffing. State v. Hamilton, 2011 Ohio 3835; 2011 Ohio App. LEXIS 3226 (8th Dist. August 4, 2011).*

Defendant’s apparent hand-to-hand drug transaction was justification for his stop. State v. Harris, 2011 Tenn. Crim. App. LEXIS 599 (August 2, 2011).*

NPR: New Police Scanner Raises 'Facial Profiling' Concerns by Tovia Smith:

Beginning this fall, police officers across the nation will have a new weapon holstered onto their belts: A small attachment that weighs about 12 ounces turns an ordinary iPhone into a state-of-the-art biometric scanner.

The paperwork on an affidavit and search warrant submitted through court staff was incomplete and did not comply with statute. Nevertheless, the search warrant was executed in good faith and the court would not suppress for this error. Johnson v. State, 952
N.E.2d 305 (Ind. App. 2011).

After officers were admitted into his home he consented first to a limited search. After finding a roach in an ashtray, he was asked if there was more and further consent was sought, and defendant responded “No, there's nothing else. Feel free to search.” His consent was not coerced. Liles v. State, 311 Ga. App. 355 (August 3, 2011).*

The defendant was found to have consented to a search of his car, and the evidence supported the trial court conclusion. State v. Carter, 2011 Tenn. Crim. App. LEXIS 596 (August 2, 2011).*

The district court’s decision suppressing a nighttime knock-and-talk of a hotel room was bolstered by the officers’ falsely identifying themselves as hotel security and the occupants being scared by what the officers were saying. A nighttime knock-and-talk is inherently more coercive. Defendants were asleep when rousted. United States v. Quintero, 648 F.3d 660 (8th Cir. 2011).

Just because defendant was a person of interest in a narcotics investigation, officers did not have reasonable suspicion to stop him. He was seized and not free to leave when the officer took his ID back to the patrol car to call it in, because he certainly was not free to take it back and leave. The officer asked him whether he had anything, and defendant admitted he had drugs. The admission led to a search which was suppressed because the stop was invalid. United States v. Blount, 2011 U.S. Dist. LEXIS 86580 (E.D. Tenn. August 5, 2011).*

Defendant was found to have knowingly consented to a search of his vehicle eight minutes into his traffic stop. “You don’t mind if I take a look, do you?” was not a command. Tucker v. State, 2010 Tex. App. LEXIS 5922 (Tex. App.—San Antonio July 28, 2010), Released for Publication February 23, 2011.Petition for discretionary review granted by In re Tucker, 2011 Tex. Crim. App. LEXIS 172 (Tex. Crim. App., Feb. 2, 2011).*

Volokh.com: The Government’s Brief in United States v. Jones and the Four Models of Fourth Amendment Protection by Orin Kerr:

Thanks to Lyle Denniston, I learned today that the Justice Department has just filed its brief in United States v. Jones, the pending Supreme Court case on whether installing and using a GPS device to detect the location of a suspect’s car without a warrant violates the Fourth Amendment. The DOJ brief is an interesting example of how Fourth Amendment arguments are constructed, so I wanted to blog a bit about it. I’ll start with a bit of context from a recent law review article, and then break down the government’s arguments accordingly. I’ll then make some quick predictions about arguments the Respondent’s brief might make.

Defendant’s search warrant and arrest away from the premises were based on a CI’s observations that he was in possession of a gun within the previous seven days. Since he was a felon, his stop and search away from the premises was based on probable cause from the reliable CI. It could not be justified by the warrant since he was not on the premises at that time. United States v. Griffin, 2011 U.S. Dist. LEXIS 85414 (E.D. Wis. August 2, 2011)* R&R 2011 U.S. Dist. LEXIS 87800 (E.D. Wis. June 22, 2011)* [The CI may give PC to arrest, but what about conviction? Here, the police had the SW being executed at the house, and that likely would provide evidence for prosecution. A search incident under Gant might be problematic. Without the SW being executed at the time, the police might not have a prosecutable case.]

Defendants’ consent after a late morning knock and talk was valid and virtually spontaneous after being advised of the right to refuse consent. The officers entered through a gate by following another vehicle in, violating curtilage, but that did not void the consent. United States v. Victores, 2011 U.S. Dist. LEXIS 86742 (S.D. Fla. August 5, 2011), R&R 2011 U.S. Dist. LEXIS 86538 (S.D. Fla. February 10, 2011).*

Defendant’s stop was valid for two traffic offenses, and the officer also had reasonable suspicion from earlier seeing him carry a gun to the car arguably in violation of state law. United States v. Gonzales, 2011 U.S. Dist. LEXIS 85178 (W.D. Okla. August 2, 2011).*

A warrant for “premises” includes vehicles located on it even though they aren’t specified. United States v. Perez, 2011 U.S. Dist. LEXIS 86820 (E.D. Pa. August 5, 2011):

The Third Circuit has not discussed the lawfulness of vehicle searches pursuant to “premises warrants” which do not specifically mention automobiles. Cf. United States v. Menke, 468 F.2d 20, 22 (3d Cir. 1972) (analyzing search of car as warrantless seizure where “area for search set forth” in agents’ warrant “was limited to the house and did not include the automobile”). A number of other courts, however, have concluded that a valid warrant for a “premises” generally permits the search of any vehicles owned by the resident that are located on the property. See, e.g., United States v. Reivich, 793 F.2d 957, 963 (8th Cir. 1986) (citing United States v. Percival, 756 F.2d 600, 612 (7th Cir. 1985)) (additional citations omitted) (noting that vehicles except for “the vehicle of a guest or other caller” are included within scope of a warrant authorizing a premises search); United States v. Silva, 593 F. Supp. 2d 316, 318 (D. Mass. 2009) (citing United States v. Patterson, 278 F.3d 315, 318 (4th Cir. 2002)) (additional citations omitted). In this vein, the Fifth Circuit has “consistently held that a warrant authorizing a search of ‘the premises’ includes vehicles parked on the premises.” United States v. Fields, 380 F. App’x 400, 404 n.22 (5th Cir. 2010) (quoting United States v. Singer, 970 F.2d 1414, 1418 (5th Cir. 1992)). The parties do not dispute that the 4Runner belonged to Perez. The search of the 4Runner was thus within the scope of the warrant if the vehicle was on the premises at the time.

The government’s application for a search warrant to search all electronic devices in the target’s possession without a filter team and permitting a plain view is denied as constituting a general warrant. In re United States’s Application for a Search Warrant to Seize and Search Electronic Devices from Cunnius, 770 F. Supp. 2d 1138 (W.D. Wash. 2011) (apparently just unsealed):

This matter comes before the Court on the government’s application for a warrant to search the residence of Edward Cunnius, to seize any computers or digital devices (collectively “digital devices”) that may be located at the premises, and to search all electronically stored information (“ESI”) contained in any digital devices seized from Mr. Cunnius’ residence for evidence relating to the crimes of copyright infringement or trafficking in counterfeit goods. Specifically, in addition to the search of the residence and the seizure of digital devices, the application requests the authority for investigative officers to: (1) search all ESI contained in Mr. Cunnius’ digital devices and related to the use of the devices; (2) conduct the search without segregation by a filter team; (3) conduct the search without foreswearing the plain view doctrine; and (4) permit investigative agents to obtain a second warrant if, during the search of the ESI, the investigating and searching agents find evidence of crime outside the scope of the instant warrant. On February 7, 2011, the Court advised the Assistant United States Attorney (“AUSA”) that the warrant, as presented, would not be granted. The United States has refused to accede to the Court’s view that a filter team and forswearing reliance on the plain view doctrine are appropriate, and indeed, required in this specific case. Accordingly, the AUSA requested the Court to file a memorandum opinion, so that the government can appeal. A copy of the requested warrant and affidavit in support is attached as Exhibit 1. That request has led to this opinion.

Because the government, in this application, refuses to conduct its search of the digital devices utilizing a filter team and foreswearing reliance on the plain view doctrine, the Court DENIES the application as seeking an overbroad or general warrant in violation of the Fourth Amendment and the law of this Circuit.

In executing a state search warrant, the warrant was not shown to the defendant before the search began. This does not violate Rule 41 or the Fourth Amendment. United States v. Mitchell, 2011 U.S. Dist. LEXIS 85741 (D. S.C. August 3, 2011)*:

In reference to federal search warrants, the Supreme Court has held that “neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure requires the executing officer to serve the warrant on the owner before commencing the search.” Groh v. Ramirez, 540 U.S. 551, 562 n.5, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004) (emphasis added). Federal Rule of Criminal Procedure 41(f)(1)(C) simply states that “[t]he officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.” The officers executing the search warrant had no legal obligation to show defendant a copy of the search warrant when they entered his residence. Defendant admitted that he was unable to produce any state or federal case law stating otherwise.

In a credibility contest over whether consent was given for a search of the car, where the conversation was not recorded, the defendant’s credibility was shot by his statements in the patrol car that were recorded that contradicted his suppression hearing testimony. United States v. Khaleel, 2011 U.S. Dist. LEXIS 85077 (N.D. Iowa August 2, 2011)*:

Most persuasive on the issue of credibility, however, is Defendant’s testimony at the hearing that he did not know there were drugs in the bag. This testimony is inconsistent with statements made by Defendant while in the squad car prior to the search. Before the drugs were found, Defendant told the driver that “I told him the bag is mine,” “take care of my baby,” “visit me in jail,” and “he will find it.” Defendant told the driver that “you don't know nothing, it's my bag.” These statements are consistent with Defendant knowing that drugs would be found in the bag. If Defendant is willing to lie under oath at the hearing regarding his knowledge of drugs in the bag, then it is likely that he is also lying regarding the issue of consent to search.

An IP address for shared child pornography is sufficient nexus for probable cause. The possibility somebody else could have used his wireless router to access child pornography does not negate probable cause. United States v. Gillman, 2011 U.S. App. LEXIS 15932, 2011 FED App. 0531N (6th Cir. August 2, 2011) (unpublished).*

Defendant’s permitting a peer-to-peer download of child pornography was probable cause for a search warrant for his computer. “Assuming that Defendant had a subjective expectation in privacy in the information, that subjective expectation is one that society and the law is not prepared to recognize. A person has no legitimate expectation in privacy in information he voluntarily turns over to third parties. [¶] Further, once an investigator locates prohibited data using a peer-to-peer program, the internet subscriber information which is available to the investigator is not protected by the Fourth Amendment. ... There is no legitimate expectation of privacy in noncontent customer information provided to an internet service provider by one of its customers.” United States v. Conner, 2011 U.S. Dist. LEXIS 85452 (S.D. Ohio August 3, 2011).*

Defense counsel was not ineffective for not finding that defendant’s prior conviction did not involve a gun or that he was permitted to travel to an adjoining county. He was on parole and subject to a parole search condition, and the search would have occurred anyway, so there is no prejudice. United States v. Henry, 2011 U.S. Dist. LEXIS 85524 (E.D. Pa. August 3, 2011).*

The private search doctrine of Jacobsen that an opened parcel by a private person is subject to police search will not be extended to residences—here a hotel room. United States v. Spicer, 432 Fed. Appx. 522 (6th Cir. 2011):

The problem is this: we have already explained, unequivocally, that we are “unwilling to extend the holding in Jacobsen to cases involving private searches of residences.” United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997). Recognizing the difference between one's privacy interest in a residence and one’s privacy expectation in an opened parcel, we decline to stretch the private-search doctrine to residential searches, including police searches of hotel rooms premised on private employees’ discoveries. Id. at 698-99; see also United States v. Williams, 354 F.3d 497, 510 (6th Cir. 2003). Spicer is thus right, but for the wrong reason—it is not that the district court failed to properly apply Jacobsen; it is that Jacobsen does not apply at all.

[The district court relied on a case of mine, United States v. Richards, 301 Fed. Appx. 480 (6th Cir. 2008), involving a rented storage unit. The Sixth Circuit brushed that analogy aside.]

Jail calls were subject to monitoring and recording, and the defendants knew it, so they will not be suppressed. United States v. Colbert, 2011 U.S. Dist. LEXIS 85288 (W.D. Pa. August 3, 2011).*

Harvard Civil Rights-Civil Liberties Law Review editorial piece: In Their Own Words–-FL Governor Rick Scott & Economic Profiling:

Last month, Governor Rick Scott of Florida signed a bill requiring Temporary Assistance for Needy Families recipients to undergo drug testing. If a recipient tests positive for drugs, she or he becomes ineligible for benefits. Scott reasoned that this law prevents taxpayer money from subsidizing drug addiction.

The passage of this legislation sparked a debate in the legal community regarding whether Governor Scott’s drug testing requirement violates the Fourth Amendment rights of welfare recipients. This Constitutional discussion is certainly important – indeed, critics’ Fourth Amendment arguments against the legislation may ultimately lead to its invalidation – however from a civil rights perspective, the discriminatory nature of the legislation is even more important.

Scott’s legislation sanctions a form of mass profiling – “economic profiling.” It forces lower-income individuals to undergo intrusive tests in order to receive government benefits, but does not render benefits received by other groups contingent on undergoing such tests. Supporters of the bill assert that there is nothing discriminatory about it; they claim that it simply addresses the reality that a disproportionate amount of welfare recipients are drug users. Even if this claim were true (and it is questionable), it cannot justify government action that targets a broad population based on purported characteristics of some of its members. Such action constitutes a paradigmatic example of discrimination.

BBC: Rioters' mobile phones could help police investigation:

Police may be able to use rioters' mobile phone information to help convict them, say legal experts.

Investigators can apply to see the contents of text and instant messages, as well as their location.

However, authorities may not be able to access the full wealth of data available to telecoms companies because of legal restrictions.

Guidelines require police to find out individuals' identities first before obtaining records from trouble spots.

Defendant’s car was stopped on a radio report of a vehicle matching its description involved in an armed robbery. Because of the nature of the crime under investigation, greater safety measures could be employed against those in the car without turning an investigative detention into an arrest. United States v. Smith, 648 F.3d 654 (8th Cir. 2011):

Applying these principles to this appeal, we agree with the district court that under the totality of the circumstances, the officers’ reasonable suspicion of a connection between Smith and his Cadillac and the bank robbery warranted an investigatory detention. The reasonable safety measures officers took in effecting an inherently dangerous investigative stop in connection with an armed robbery did not transform the encounter with Smith into an arrest. Detective Vogel's investigation indicated Smith was the owner and primary user of the white Cadillac seen on the surveillance video picking up a man matching the description of the bank robber and driving toward the bank moments before the robbery. A witness placed Smith behind the wheel of the Cadillac a few blocks away from the bank shortly before the robbery occurred.

Plaintiff Pennsylvania State Trooper who was ordered back to work ten months after an injury had a call to his barracks recorded, allegedly without his knowledge, over the return to work order. He had no claim under the Fourth Amendment or Title III, and the district court should have just dismissed the case. Diana v. Oliphant, 441 Fed. Appx. 76 (3d Cir. 2011).*

During a traffic stop, the question “is there anything illegal in your car?” is not subject to Miranda. United States v. Pittman, 2011 U.S. Dist. LEXIS 86457 (M.D. Tenn. August 4, 2011).*

Defendant ordered out of his car was not seized when he was “asked” to get out of his car and provide ID. He was still free to leave. [Oh, really?] United States v. Hernandez-Sanchez, 2011 U.S. Dist. LEXIS 86498 (W.D. N.C. August 4, 2011),* R&R 2011 U.S. Dist. LEXIS 89301 (E.D. N.C. July 7, 2011)*:

In the circumstances presented here, the court cannot conclude that defendant was “seized” when Agent Padian parked behind him or when he was asked to exit his vehicle and provide his identification. At that time, there was only one unmarked police vehicle and two plainclothes officers present on the large lot. Neither officer had his service weapon visible, and Agent Padian did not activate his blue lights when pulling into the lot. There is no indication that Agent Padian's interaction with defendant was unpleasant, or that Agent Padian used a brusque or demanding tone of voice, or that he touched or physically detained defendant in any way. Indeed, Agent Padian's interaction with defendant was quite brief. Finally, there was nothing improper about Agent Padian's request that defendant step out his parked car and provide identification. See Florida v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (noting that it is “no doubt permissible” to ask to see and examine an individual's driver's license); cf. Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (noting the “inordinate risk confronting an officer as he approaches a person seated in an automobile”). These facts suggest that a reasonable person in defendant's situation would have felt free to terminate the encounter with Agent Padian at that time.

Orin Kerr on Volokh.com: Court Rules That Police Cannot Use Warrants to Obtain Cell Phone Location of Person Who is Subject of Arrest Warrant:

Imagine the police have an arrest warrant for a crime suspect, and they want to find the suspect to arrest him. They happen to know the suspect’s cell phone number, so they want to go to the phone company and have the phone company tell the police the location of the suspect’s phone. The phone company refuses to let the police get that information without a warrant, so the police go to a judge and apply for a search warrant based on the probable cause to believe that the location of the phone will help them execute the arrest warrant. Here’s the interesting question: Should the judge sign the warrant application and issue the warrant? Or should the judge deny the warrant application?

On August 3, Magistrate Judge Susan K. Gauvey issued a fascinating opinion on this novel question: IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE, 849 F. Supp. 2d 526 (D. Md. 2011). Her answer: The Judge must deny the warrant application, as location information is broadly protected by the Fourth Amendment and government cannot use warrants to find out the location of people who have warrants out for their arrest. The timing of the case is extremely unusual, as it seems the case is moot and this is only an advisory opinion. If I understand the timing, Magistrate Judge Gauvey denied the application over a year ago, and the government was able to arrest the suspect some other way in the meantime. Judge Gauvey decided to hand down an opinion on the legal issue anyway, appointed defense counsel to argue for defense interests, and now, a year later, has handed down the opinion on why she denied that application back in 2010.

Still, the opinion is obviously intended to be important: It goes on for 172 pages in the slip opinion, or 60 pages single-spaced, and it reaches out to weigh in on a lot of big issues. I also note that her opinion includes excerpts from my recent House Judiciary Committee testimony (see pages 94–96 and 106 of the slip op). So I thought I would blog some thoughts on the opinion. I’ll start with Judge Gauvey’s opinion, then explain why I think it’s wrong, and then turn to a few broader thoughts on the role of magistrate judges in surveillance law.

Police violated curtilage without a warrant or consent when they went down defendant’s unpaved driveway to the back of his house. “Because we treat curtilage as part of the home, Oliver, 466 U.S. at 180, those same rules apply here.” United States v. Wells, 648 F.3d 671 (8th Cir. 2011). Applying the Dunn factors:

A reasonable expectation of privacy will not always be an expectation of absolute privacy. See, e.g., Katz v. United States, 389 U.S. 347, 349-52 (1967) (“[Katz] was as visible after he entered [the telephone booth] as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen.”). Certainly Wells would have no cause to complain had the officers, standing in the public street, observed him openly cooking methamphetamine on the unpaved driveway, just as he would have no cause to complain had the officers observed the same through an open window in his home. “The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” Ciraolo, 476 U.S. at 213.

But an officer’s ability to observe through open windows what happens inside a home does not altogether extinguish the homeowner’s otherwise reasonable expectation of privacy in the home itself. Not even probable cause, absent an exigent circumstance, would permit an officer to enter that home without a warrant to make an arrest or seize contraband. See Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971) (“[P]lain view alone is never enough to justify the warrantless seizure of evidence. ... [It] may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”). That a homeowner exposes some portion of his dwelling to public view is not a license for officers to treat it as public space.

Similarly, we think that a homeowner may expose portions of the curtilage of his home to public view while still maintaining some expectation of privacy in those areas. In this case, for example, Wells certainly exposed his unpaved driveway to public view, and therefore could not reasonably expect that members of the public would not observe whatever he might do there. But he could reasonably expect that members of the public would not traipse down the drive to the back corner of his home, from where they could freely observe his entire backyard. Accord Garrott, 745 F. Supp. 2d at 1213 (“Though the yard was visible from beyond the fence, it is important to distinguish the physical invasion into defendants’ backyard that took place in this case from visual inspection from a lawful vantage point.” (internal quotation marks omitted)). We therefore will not accord this fourth factor the controlling weight the government’s position requires.

Salon.com: Big Brother is tracking you: GPS and the 4th Amendment by Jordan Smith:

When is a search not a search?

Or, more pointedly: When are electronic or other forms of surveillance of an individual considered a search under the Fourth Amendment -- thus requiring a valid warrant to conduct such surveillance in a manner that protects the individual from "unlawful search and seizure"?

How the U.S. Supreme Court answers that question, in a case on its docket for the term starting in October, will have far-reaching implications for the power of government and for the privacy of individuals, according to lawyers and privacy rights advocates.

If the Court holds that warrants are not required for this type of surveillance, it could mean "the technological death of the Fourth Amendment,” warns Arkansas-based attorney John Wesley Hall, a leading Fourth Amendment expert who also writes a blog and runs a website.

The government’s motion for cell phone location data to locate a person it has an arrest warrant for where there has been no showing of any attempt to flee or that the data would reveal a crime is denied. In Re an Application of The United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, 2011 U.S. Dist. LEXIS 85638 (D. Md. August 3, 2011):

The issue before the Court is the government's authority to prospectively acquire precise location information derived from cellular and Global Positioning System (“GPS”) technology (collectively “location data”) to aid in the apprehension of the subject of an arrest warrant. The government has reported no attempts of the subject to flee and the requested location data does not otherwise constitute evidence of any crime. The government argues its entitlement to prospective location data under these circumstances pursuant to the Fourth Amendment, Rule 41 of the Federal Rules of Criminal Procedure, the Stored Communications Act, the All Writs Act, and the inherent authority of the court. In so doing, the government asks to use location data in a new way — not to collect evidence of a crime, but solely to locate a charged defendant. To some, this use would appear reasonable, even commendable and efficient. To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants. In any event, there is no precedent for use of location data solely to apprehend a defendant in the absence of evidence of flight to avoid prosecution. The government did not submit, and the court did not find, any sufficient authority for this use of location technology. In light of legitimate privacy concerns and the absence of any emergency or extraordinary considerations here, the Court concludes that approval of use of location data for this purpose is best considered deliberately in the legislature, or in the appellate courts. Accordingly, the Court DENIES the underlying warrant applications, but sets forth its guidance on the showing necessary for law enforcement access to prospective location data to aid in the execution of an arrest warrant.

[I can't find a free link to this case yet, not even on EFF.org, and I don't have the capability to internally store and link it here. If somebody gets a link, please forward it.]

The prosecution conceded that the search of defendant’s house violated the Fourth Amendment. Nevertheless, his confession 30 days later was valid because time “purged the taint.” Stevens v. People, 55 V.I. 1083 (V.I. App. St. Croix 2011) (three judge panel):

Here, Stevens’ confession was neither in close physical nor temporal proximity to the illegal search. The illegal search occurred at Stevens’ residence. Stevens confessed at a police station. The confession occurred over thirty days after the illegal search. Hence, considerable time and distance attenuated the illegal search and Stevens’ confession. See Maroney, 348 F.2d at 22, 30 (confession obtained five days after Fourth Amendment violation did not have the taint of the poisonous tree); compare Rivera-Padilla, 2010 U.S. App. LEXIS 3125 (confession obtained five hours after the illegal search and without Miranda warning was tainted by Fourth Amendment violation).

The second inquiry calls into question whether intervening circumstances sufficiently purged the primary taint. See, e.g., Brown, 422 U.S. at 602 (emphasis added); Murray v. United States, 487 U.S. 533, 537 (1988). The test is holistic. Brown, 422 U.S. at 602. No single fact is dispositive. Id. The “’workings of the human mind are too complex, and the possibilities of misconduct too diverse’ to allow for an overly technical rule premised on one overriding factor.” Id. at 604. Thus, the question whether a confession is the product of free will must be answered on the facts of each case. Id. at 603.

Defendant was walking down the street, and two officers in a parked car saw him coming. The passenger got out, and he had a vest with “POLICE” on the front. Defendant turned and ran, dropping a bag of drugs as he fled. Officers retrieved the bag and ultimately caught the defendant. The stop was valid. United States v. Rivera, 441 Fed. Appx. 87 (3d Cir. 2011).*

Officers had reason to attempt to stop the defendant based on corroborated information from a CI. When they activated their patrol car lights, the defendant put his car in reverse and backed into the patrol car. He was not seized at that time because he had not yet stopped. United States v. Oakley, 441 Fed. Appx. 989 (4th Cir. 2011).*

Defendant claimed he did not understand English well enough to consent, but he had a job at one place for 17 years until the business closed, he conversed in English with the officers for a while, and his actions showed consent. His stating that he had to leave to go pick up his uncle was insufficient to show a withdrawal of consent. United States v. Lopez-Sanchez, 2011 U.S. Dist. LEXIS 86376 (N.D. Ind. August 4, 2011).*

The officer was well aware of the defendant and that he had been driving on a suspended license since 2003. When he saw the defendant driving, the stop was justified. State v. Patrick, 2011 Tenn. Crim. App. LEXIS 590 (July 28, 2011).*

Defendant’s DNA was taken by search warrant and it linked him to a murder. He never challenged the search warrant for the DNA and the search warrant is not in the record. Therefore, the argument is moot. State v. Ogbeiwi, 2011 Tenn. Crim. App. LEXIS 586 (July 29, 2011).*

On the totality, the government showed that the consent was valid. Defendant was de facto arrested and moved from the place of the traffic stop to the residence where the search would occur, and he was told that he could consent or a search warrant could be obtained. Defendant also believed that nothing would be found because he told a confederate to get rid of the counterfeit money they were making. United States v. Carney, 2011 U.S. Dist. LEXIS 85985 (M.D. La. August 4, 2011).*

Entry into a home to serve a summons violated the Fourth Amendment. Guerrero v. Moore, 442 Fed. Appx. 57 (4th Cir. 2011) (unpublished):

Moore contends that he did not violate the Fourth Amendment rights of Esperanza Guerrero when he entered her home in an effort to serve a judicially-issued misdemeanor summons on Antonia Munguia. He fails to persuade us, however, that the summons was the functional equivalent of an arrest warrant for Fourth Amendment purposes. Summonses confer more limited authority than arrest warrants; notably, Moore lacked the authority to take Munguia into custody upon service of the summons. Moore fails to cite any persuasive Fourth Amendment precedent that permits a government official to enter a dwelling to serve a non-custodial misdemeanor summons. Indeed, the latest relevant opinion of the Virginia Attorney General concludes that an officer lacks such authority. 2003 Va. Op. Att’y Gen. 64, 2003 WL 23208766 (Sept. 16, 2003) ("[A]bsent consent of a dwelling owner, a law-enforcement officer must obtain a warrant before entering a dwelling for the purpose of serving a summons for a misdemeanor.").

Strip search of a parolee arrested or detained without any cause violated the Fourth Amendment. The parolee still had some Fourth Amendment rights. Smith v. City of Oakland, 2011 U.S. Dist. LEXIS 85989 (N.D. Cal. August 4, 2011):

Even if defendants could vault over the unlawful stop and bring themselves within the ambit of suspicionless searches of parolees, they still cannot justify conducting a strip search of a parolee or arrestee in public. They failed to take the precautions of conducting searches in a professional manner by conducting them in public. They failed to conduct them in a place that afforded privacy. The searches were not merely visual searches; they were not within the State's statutory definition of strip searches, which contemplates the person, not the officer, rearranging or removing items of clothing for visual inspection by the officer. Nor have the officers justified the searches as being for a proper purpose. Searches of this nature, conducted in public, in view of passersby and others, are arbitrary, capricious and harassing. They do not pass constitutional muster.

Qualified immunity was rejected noting that Terry held that there had to be a basis for a stop as long ago as 1931.

Officers drove by a parked car in front of a vacant house in an area known for drug activity, and they could smell marijuana coming from the car, and that supported the stop. State in Interest of C.R., 2011 La. App. LEXIS 931 (La. App. 4th Cir. August 3, 2011).*

Defendant’s hope that cross-examination of the government’s computer forensic expert would cause that expert to cave was not enough to generate a need for a hearing that he couldn’t otherwise show a need for. United States v. Farlow, 800 F. Supp. 2d 341 (D. Me. 2011).*

Defendant’s stop near the border was justified because of excessive smoke emissions from her diesel truck. United States v. Sandoval, 2011 U.S. Dist. LEXIS 85791 (D. Ariz. August 3, 2011), R&R 2011 U.S. Dist. LEXIS 86300 (D. Ariz. May 19, 2011).*

“Where officers advised defendant that if he did not consent to giving oral swabs and surrendering certain items of clothing that they would detain him until they obtained a search warrant, this did not negate defendant’s voluntary consent to the seizure of those items.” State v. McMillan, 2011 N.C. App. LEXIS 1625 (August 2, 2011).*

Defendant preserved her argument that her purse could not be searched under the search warrant in the trial court, and the court of appeals erred on that score, but she loses on the merits of the argument because the warrant covered her purse found inside the house. State v. Walker, 350 Ore. 540, 258 P.3d 1228 (2011), affg 234 Ore. App. 596, 229 P.3d 606 (2010).*

Arrest for being a person in suspicious place was valid and with probable cause because defendant was a suspect in a shooting incident. Cardella v. State, 2010 Tex. App. LEXIS 7218 (Tex.App.—San Antonio September 1, 2010), Delivered, Released for Publication May 27, 2011, petition for discretionary review dismd Cardella v. State, 2011 Tex. Crim. App. Unpub. LEXIS 453 (Tex. Crim. App., Jan. 12, 2011), Petition for discretionary review refused by In re Cardella, 2011 Tex. Crim. App. LEXIS 364 (Tex. Crim. App., Mar. 9, 2011).*

Prosecutor’s comment in closing argument on defendant’s exercise of his right to refuse consent was prosecutorial misconduct and required reversal of the conviction. It is a fundamental error. State v. Betancourt, 151 Idaho 635, 262 P.3d 278 (2011):

The state asserts that Betancourt has failed to demonstrate the second prong of the fundamental error test because the error is not clear from a review of the record. Specifically, the state argues that the prosecutor’s comments are ambiguous, at best, and could not be considered to be plain error. However, the prosecutor’s statement that Betancourt “did not want those troopers to search that vehicle” is clearly a comment on Betancourt’s statements in the video refusing to consent to a search. Similarly, the prosecutor’s statements during rebuttal also refer to Betancourt’s concern about keeping the officers out of the vehicle. While the prosecutor focused on Betancourt’s overall demeanor during the stop, it is plain from a review of the record that the prosecutor also requested that the jury pay particular attention to Betancourt’s refusal to allow the search as evidence of his knowledge of methamphetamine in the car. Therefore, the second prong of Perry has also been established.

Under the third prong of Perry, in order to conclude that the prosecutor’s comments constituted fundamental error, the defendant must demonstrate that there is a reasonable possibility that the impermissible comments affected the outcome of the trial. Perry, 150 Idaho at 226, 245 P.3d at 978. As mentioned above, in order to prove possession of a controlled substance, the state must prove that the defendant has such dominion and control over the substance to establish constructive possession. Segovia, 93 Idaho at 598, 468 P.2d at 664. A sufficient showing of a nexus between the accused and the controlled substance is central to this requirement. Fairchild, 121 Idaho at 969, 829 P.2d at 559. Further, knowledge of the existence of controlled substances may be inferred through circumstances. Clayton, 101 Idaho at 16, 607 P.2d at 1070.

Taking DNA from an arrestee still entitled to the presumption of innocence without judicial authorization violated the Fourth Amendment. People v. Buza, 197 Cal. App. 4th 1424, 129 Cal. Rptr. 3d 753 (1st Dist. 2011), Modified by, 2011 Cal. App. LEXIS 1149 (Cal. App. 1st Dist., Aug. 31, 2011):

The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, as amended (Pen. Code, § 295 et seq.) (the DNA Act), which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense ―immediately following arrest, or during the booking ... process or as soon as administratively practicable after arrest ... (§§ 296.1, subd. (a)(1)(A), 296, subd. (a)(2)(C).) Appellant claims that the seizure of his DNA at a time when he was entitled to the presumption of innocence, and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his Fourth Amendment right to be free from unreasonable searches and seizures. We agree, and therefore reverse the judgment.

This is a detailed and scholarly opinion. I highly recommend it because it rejects the DNA as mere fingerprint analogy which was adopted by the Third Circuit just two weeks ago.

Refusal to identify the person driving the car plaintiff was in was sufficient PC to arrest for obstruction of a law enforcement officer for qualified immunity. Kaufman v. Higgs, 2011 U.S. Dist. LEXIS 83609 (D. Colo. July 29, 2011):

More importantly, in determining whether Defendants violated Plaintiff's Fourth Amendment rights by his arrest, the question is not whether Plaintiff committed the crime of obstructing a peace officer but whether Defendants had probable cause to believe that he did. Cortez, supra. See also Illinois v. Gates, 462 U.S. 213, 245 n.13, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (“[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”). Here, based on the plain language of the obstruction statute itself, I conclude that Defendants could reasonably believe that Plaintiff's assertion of “privilege” and refusal to identify the driver of his vehicle constituted an “obstacle” that obstructed, hindered, or impaired their investigation of the hit and run accident involving Plaintiff's vehicle. Plaintiff has therefore failed to meet his burden of establishing that Defendants violated his Fourth Amendment rights by arresting him without probable cause.

Defendant who was told to put his hands on the patrol car so he could be searched, denied him the ability to talk to a friend, and prolonged the detention for a frisk on reasonable suspicion make stop into a de facto arrest. United States v. Lara-Pantoja, 2011 U.S. Dist. LEXIS 85030 (N.D. Iowa August 2, 2011):

The defendant maintains that the stop became a de facto arrest when Officer Dennler (1) requested the defendant to place his hands on the patrol car so he could search the defendant; (2) denied the defendant’s request to speak with his friend at the nearby grocery store; and (3) prolonged the detention on the basis of a subjective motive to investigate other matters. The defendant contends that Officer Dennler continued to question him without probable cause, without a warrant, and without advising him of his Miranda rights. The court disagrees. These minor restraints on the defendant’s activities did not constitute an arrest. See Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6, 98 S. Ct. 330, 333 n.6, 54 L. Ed. 2d 331 (1977) (“[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures.”). “[T]he officer does not need to be certain that the suspect was armed. ...

Search of defendant’s person before he was placed in an ambulance at best could be for weapons. Removing a smoking pipe from his pocket was an unreasonable search. People v. Kowalski, 2011 IL App (2nd) 100237, 352 Ill. Dec. 582, 954 N.E.2d 442 (2011):

[P14] The State argues, as the trial court found, that this warrant exception should be extended to a situation where a citizen is to be transported in an ambulance. Even assuming that this exception may be properly extended in such a manner, we believe that the search conducted by Gaw exceeded the scope permitted under this exception. As the United States Supreme Court stated in Terry, a search for weapons without probable cause must, like any other search, be “strictly circumscribed by the exigencies which justify its initiation.” Terry, 392 U.S. at 25-26. Accordingly, if the purpose of searching a citizen prior to providing him with a courtesy transport in a squad car or transporting him in an ambulance is to ensure the safety of the transporting officers or paramedics, then such a search, like the protective pat-down search permitted by Terry, should be limited to “an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer” or paramedic. See Terry, 392 U.S. at 29. As previously discussed, the State did not present any evidence that indicated that Gaw initially limited his search of defendant to a pat-down search for weapons or that the pipe felt like a weapon or other contraband. Accordingly, the State failed to counter defendant's prima facie case that the search conducted by Gaw was illegal.

A 911 call was an invitation to the police to come and enter: “At 4:15 p.m. on the day of the murders, Movant called 911. He reported that someone was hurt and not breathing, and said ‘[y]ou just need to send somebody over here.’ When police arrived, Movant was in the front drive. Officers briefly spoke with Movant, then entered the home. Movant never subsequently objected to police being in or about his home. Within two hours, officers had discovered the bodies, secured the crime scene, arrested Movant, and taken him to the police station.” Mayes v. State, 349 S.W.3d 413 (Mo. App. 2011).

Defendant was stopped without probable cause he was impaired, and he was told that blood would be taken from him if he didn’t consent, and he did not. The forced blood draw was unconstitutional under the Fourth Amendment and Texas Constitution. State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin July 28, 2011).

Defendant’s argument in the trial court for suppression of evidence was not the same one he made on appeal, so the argument on appeal would not be considered. Brown v. State, 2010 Tex. App. LEXIS 5432 (Tex. App.—San Antonio July 14, 2010), Released for Publication January 27, 2011.*

Defective taillight led to stop to “I’ve only had two beers,” and a finding of RS to detain him. Urdiales v. State, 2010 Tex. App. LEXIS 4349 (Tex. App.—San Antonio June 9, 2010), Released for Publication January 24, 2011.*

Police came to defendant’s house at 1 a.m. and beat on the door. When he answered, guns were drawn and he was patted down. On the totality, the court finds a nighttime consent less likely to be consensual and more like coercive. United States v. Morrow, 2011 U.S. Dist. LEXIS 84522 (N.D. Ohio August 2, 2011):

Having carefully considered the totality of the circumstances under which Defendant allegedly consented to the entry of the police, the Court finds that the consent, if given, was not voluntary. The Government has failed to successfully carry its burden that Defendant's alleged consent was “unequivocal, specific and intelligently given, uncontaminated by any duress or coercion.” United States v. Ivy, 165 F.3d at 402. Defendant was alerted to the presence of the police by banging at the front and then the back doors of his home at shortly after 1:00 a.m. Whether he opened the door or just unlocked it is not dispositive. Officer Donohue's testimony, however, that several officers entered with their guns drawn and he proceeded to pat down Defendant is quite compelling. Such a nighttime or early morning entry coupled with the show of force evident from the record and testimony that Defendant was not free to go nor, realistically, free to make the police leave his residence are factors more likely to lead to a coerced rather than voluntary consent. Considered together, the evidence presented does not provide the Court confidence that Defendant voluntarily consented to the initial entry of the police.

Daily Tech.com: ACLU Fights for Answers on Police Phone Location Data Tracking:

Back in the 1990s, in order to track a cell phone you would have to triangulate the signal to its source -- an imprecise science that would merely put you "in the ballpark" of the caller. That all changed when GPS chips were added to today's smartphones.

Locked exterior door to a common area in a multi-unit apartment building does not create a separate or better expectation of privacy. Defendant arrested there had no objectively reasonable expectation of privacy. United States v. Correa, 653 F.3d 187 (3d Cir. 2011):

A Task Force searching for an escaped fugitive entered the common areas of a multi-unit apartment building. The building had a locked exterior door, and an inspector entered through a partially opened side window. Once inside, the Task Force apprehended Defendant-Appellant Frank Correa in a common-use stairwell, and, after a struggle, Correa informed the inspector he had a firearm. The inspector retrieved the firearm from Correa's pocket. Correa moved to suppress the firearm and the statement he made to the inspector as fruit of an illegal seizure. The District Court denied the motion. We previously held in United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir. 1992), that a resident of an unlocked multi-unit apartment building lacks an objectively reasonable expectation of privacy in the building's common areas. We determine today that the presence of a locked exterior door does not alter that expectation. Accordingly, Correa's suppression motion was properly denied. We will affirm.

A CTX luggage scanner at Honolulu Airport indicated a dark spot in a luggage scan that suggested to the TSA screener that it could be a “sheet explosive,” designed to elude screeners. When the suitcase was opened, a laptop was where the CTX machine indicated to search further. When the laptop was pulled out, an envelope came out and photographs spilled out that had some child pornography in them. This administrative search was valid, and the district court erred in suppressing the search. The court credits that the officer was still looking for "sheet explosives" in the photographs. United States v. McCarty, 648 F.3d 820 (9th Cir. 2011), rev’g United States v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009):

So, as long as (1) the search was undertaken pursuant to a legitimate administrative search scheme; (2) the searcher’s actions are cabined to the scope of the permissible administrative search; and (3) there was no impermissible programmatic secondary motive for the search, the development of a second, subjective motive to verify the presence of contraband is irrelevant to the Fourth Amendment analysis. See id.; Edmond, 531 U.S. at 45-46; Aukai, 497 F.3d at 962; Bulacan, 156 F.3d at 967-68; Bowhay, 992 F.2d at 231. Thus, the presence here of a secondary desire to confirm that the items searched might be contraband could not, in and of itself, invalidate the initially constitutional administrative search Andrade conducted, at least as long as she actually engaged in a search for explosives and her actions were no more intrusive than necessary to clear the bag of any safety concerns. See Bowhay, 992 F.2d at 231 (“When the police conduct would have been the same regardless of the officer’s subjective state of mind, no purpose is served by attempting to tease out the officer’s ‘true motivation.” (citing Horton v. California, 496 U.S. 128 (1990))). The subjective intent of the individual officer in such a search thus becomes as relevant as objective conduct only at the point at which the search ceases legitimately to be for the valid administrative purpose, as that is the point after which the administrative exception can no longer justify continuation of the warrantless search.

2. Defining Search Scope

The crux of the issue, then, involves two related questions: (1) when did Andrade’s administrative search for explosives truly end, and become a wholly independent search for evidence of child pornography?; and (2) which of Andrade’s actions exceeded the scope of the administrative search by becoming “more extensive [or] intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives”? Davis, 482 F.2d at 913.

. . .

However unclear Andrade’s testimony was on other points—exactly which images she saw, how many photographs spilled onto the table, and whether she touched or did not touch the photographs on the table before calling the lead officer—she was consistently clear and emphatic that when she looked through the photographs in the envelope, she was still acting to ensure that there were no sheet explosives hidden inside. No testimony in the record contradicted hers on this point. Further, this search intent was consistent with the TSA protocol requiring Andrade to thumb through the photographs in order to clear the bag. The district court’s factual conclusion on this point is without support in the record, and must be vacated.

Defendant went to prison and left his computer with his girlfriend. When they lived together, his child pornography folders were password protected. Before he left, he removed the password protection. The computer crashed and she got a friend to work on it. He was on federal probation for a drug crime, and he asked the girlfriend whether he could give it to his probation officer as his own CYA. She agreed. She had apparent authority to consent to a search of the computer. He gave her control over the computer while he was imprisoned. The District Court also credited defendant's early admission that she was a co-owner. United States v. Stanley, 653 F.3d 946 (9th Cir. 2011).

In an investigation of a murder case with a shot suspect, the affidavit for the search warrant showed a fair probability that evidence would be found in defendant’s house because of the connection of the vehicle fleeing the scene being found at the house. United States v. Holloway, 2011 U.S. Dist. LEXIS 84397 (D. Kan. August 1, 2011).*

The CI’s tip defendant was manufacturing meth was corroborated by records of his purchases of ingredients, his prior convictions, and corroboration of other somewhat minor details. United States v. Wyatt, 2011 U.S. Dist. LEXIS 84204 (W.D. Ky. July 29, 2011).*

The vehicle stop was with probable cause of a traffic infraction, so reasonable suspicion of drug activity does not have to be decided. United States v. Belcher, 2011 U.S. Dist. LEXIS 83769 (E.D. Ky. June 13, 2011).*

Prosecutorial immunity does not protect a prosecutor who ordered the arrest of a material witness and then failed to tell the court ordering detention of material changes in circumstances affecting the need for detention. Schneyder v. Smith, 653 F.3d 313 (3d Cir. 2011)*:

The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures. This case is about a seizure and presents questions of whether and how the Constitution’s guarantee applies in the case of a material witness who was jailed for weeks on end, even though the date of the trial in which she was to testify had been pushed back several months. We hold that the Fourth Amendment applies to such a detention, and that it requires a prosecutor responsible for such a detention to inform the judge who ordered the witness’s incarceration of any substantial change in the underlying circumstances. We also conclude that the prosecutor in this case had “fair warning” of the constitutional right she is accused of violating, and that she is therefore not shielded from liability by the doctrine of qualified immunity. Finally, we reaffirm our earlier holding that absolute prosecutorial immunity does not apply. We will therefore affirm the District Court’s order denying summary judgment to the defendant.

In executing a search warrant on a house, the officer encountered four females with their purses. Since they were not the targets of the search, the officer was obliged to inquire into who owned which rather than just search them. State v. Jackson, 46 Kan. App. 2d 199 (2011):

In applying the notice test under the facts of this appeal, we reject the notion that Officer Phillips did not have notice that the purses belonged to the guests and not Davenport. Phillips admitted that he knew the purses could have belonged to the female guests; thus, he had constructive notice of “containers” not subject to the reach of the search warrant. His expressed reasoning for the search was that one or all of the purses could have belonged to the target of the warrant, Davenport, and that in order to determine ownership, he was forced to open the purses.

But Officer Phillips made no inquiry about the purses’ ownership. He did not ask any of the women present in the house if they had brought a purse or which one it was. Phillips could have simply gone into the living room and asked three questions of each guest: Did you bring a purse with you today? Is that the only purse you brought? Can you describe your purse? The true owner of the purse is most likely to have enough knowledge of the purse to describe it, while the others will probably not recall enough about the purse to describe it. Further, if Jackson had been questioned and had denied the purple purse with an orange handle was hers, she would no longer have had a subjective expectation of privacy in the purse. Moreover, if there was doubt of ownership after questioning Jackson, the officers could have applied for a supplemental search warrant or requested that a drug dog be brought to the premises. In short, the notion that the police would have been stymied and without appropriate avenues of investigation is not accurate.

. . .

In the final analysis, we are required to balance the privacy rights of an individual under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights against the legitimate need of law enforcement to conduct a proper search under the mandate of a search warrant. We hold the State did not meet its burden to demonstrate the search of Jackson’s purse was lawful and, to paraphrase Tonroy, the State offered nothing to rebut the reasonable assumption that three or four purses lying on a kitchen floor during a social gathering attended by three or four women were owned by the guests rather than by the female occupant of the residence. See 32 Kan. App. 2d at 925.

Stopping a motorist for information about a third party speeding was an unconstitutional seizure because the purpose of the stop was not sufficiently serious to justify the infringement of the motorist's rights. State v. LaPlante, 2011 ME 85, 26 A.3d 337 (2011):

[¶1] In this appeal, we consider the constitutionality of a state trooper’s stop of a vehicle for the sole purpose of seeking information from the operator concerning another vehicle that the trooper observed speeding. ... We conclude that a law enforcement officer’s investigation of a third party’s civil speeding offense cannot, standing alone, justify the stop and seizure of a motorist, and we vacate the judgment.

. . .

[¶11] As noted above, the investigation of serious crimes has been deemed sufficiently important to outweigh certain interferences with the liberty interests of stopped motorists. ...

[¶12] In contrast, the investigation of noncriminal offenses is generally not a sufficiently grave public concern to outweigh the interference with a motorist’s liberty interest that occurs when the motorist is stopped without any reasonable articulable suspicion.

. . .

[¶16] The Fourth Amendment protects the individual’s reasonable desire for privacy, which arises from “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Every traffic stop involves some degree of interference with that liberty interest because the motorist, whether law-abiding or not, loses the freedom to travel without interruption. The resulting intrusion on a person’s individual autonomy is not insubstantial. In his testimony, the trooper agreed that once he initiated his stop of LaPlante’s motorcycle by activating the blue lights of his cruiser, LaPlante was “obligated to pull over,” was “not free to leave,” and was “seized for [all] effective purposes.” See Brewer, 1999 ME 58, ¶ 12, 727 A.2d at 355 (discussing when an officer’s interaction with a citizen constitutes a seizure). Furthermore, if law enforcement officers routinely stopped motorists to inquire about third-party speeding offenses, the aggregate damage to individual liberty would be great.

[¶17] In addition, none of the elements that have been found to lessen the severity of the interference with the liberty interest when a motorist is stopped in the absence of reasonable articulable suspicion are present here. ...

NPR today: Home Visits And Other 'Secrets Of The FBI':

Steve Inskeep talks with author Ronald Kessler about his new book, "The Secrets of the FBI." [Link added; out today]

Mobile biometrics to hit US streets / Despite fuzzy legality, US law enforcement will soon be able to perform mobile iris scans and fingerprinting by D. Parvaz on Al-Jazeera (WTF? Why them and not some US source):

We're fast approaching a time when law enforcement will no longer need to ask you for your identification - your physical self, and the biometric data therein, are all that will be required to identify you.

A gadget attached to a mobile phone can photograph and plot key points and features on your face (breaking the numbers down into biometric data), scan your iris and take your fingerprints on the spot.

This gizmo doesn't exist in a futuristic world--it's already been prototyped and tested. By autumn, the Mobile Offender Recognition and Information System (MORIS), which will allow 40 law enforcement agencies across the US to carry out such biometric diagnostics, will be rolled out. So far, the 1,000 units on order--at $3,000 and 12.5 oz per device - will be going to sheriff and police departments.

Proponents of the technology figure the deployment is a plus - having biometric data available almost instantly might prevent an officer from mistakenly identifying someone (via, say, a driver's license, which could be forged) and unnecessarily hauling them in for processing.

Scans taken on the road are checked against a database of stored scans from those who have in the past been or are currently incarcerated. Essentially, the idea is to see if a suspect has a prior record.

It's accurate. It'll keep us safe. It'll help law enforcement do its job.

Defendant contended that he did not waive his Fourth Amendment rights when he was pleading guilty and getting probation. The record showed, however, that the condition was explained to him at the time of the plea. Morrow v. State, 311 Ga. App. 323, 715 S.E.2d 744 (2011).* (Really, all that is required is that it be in the conditions of probation that he signs or has explained to him, and neither the Fourth Amendment nor due process require it be “on the record” of the plea.)

A school official received a report that defendant juvenile smelled of alcohol. When he found her, she had a backpack which she tried to hide. The school official asked about the backpack and then searched it, finding alcohol. The search of the backpack was justified under the school search doctrine. State v. E.K.P., 255 P.3d 870 (Wash. App. 2011).*

Police had a search warrant for defendant’s blood, and his arguments on appeal were that reasonable means were not employed for drawing the blood by a certified medical technologist because she failed to ask his medical history first and because the paperwork could have been more complete. This was not enough to suppress the blood results. Pacheco v. State, 347 S.W.3d 849 (Tex. App.—Ft. Worth 2011).*

The officer did not continue the stop too long. He approached the passenger and asked “if he had anything on his person that the officer should know about. In response to that single question, Simons immediately revealed that he had a pipe in his underwear.” It went downhill from there. State v. Simons, 2011 UT App 251, 687 Utah Adv. Rep. 69, 262 P.3d 53 (2011).*

Defendant consented to the officers coming into his office where they saw marijuana on his desk. He volunteered he had more in the drawer and a cooler under the desk and consented to that too. United States v. Bowser, 2011 U.S. Dist. LEXIS 83699 (W.D. Mich. July 29, 2011), R&R 2011 U.S. Dist. LEXIS 83703 (W.D. Mich. June 22, 2011).*

Congress out to spy on your 'puter by Julian Sanchez in the NY Post:

If Congress had to name laws honestly, it would be called the "Forcing Your Internet Provider to Spy On You Just In Case You're a Criminal Act of 2011" -- a costly, invasive mandate that even the co-author of the Patriot Act, Rep. James Sensenbrenner (R-Wisc.), says "runs roughshod over the rights of people who use the Internet."

But because it's disguised as the "Protecting Children from Internet Pornographers Act," the House Judiciary Committee approved it last week by a wide margin -- even though it's got little to do with child porn and won't do much to protect kids.

The centerpiece of this ill-conceived law is a sweeping requirement that commercial Internet providers retain a one-year log of all the temporary Internet Protocol addresses they assign to their users, along with customer-identification information. The Justice Department says this will help track down child-porn peddlers by linking online activity and real-world identities. But the government would be able to access that sensitive data for all kinds of investigations, most of which would have nothing to do with child porn.

Stem to stern customs inspection of a ship at the Alabama docks revealed DVDs of bestiality in one of the crew rooms. The crew member was asked about it, and he admitted having child pornography. The seizure of the computer was valid. This case is a virtual replica of the Eleventh Circuit’s Alfaro-Moncada which was an agriculture customs search that produced child porn from a computer. United States v. Manta-Carillo, 2011 U.S. Dist. LEXIS 83039 (S.D. Ala. July 28, 2011).*

Successor counsel did file motions to suppress which were ruled on. The fact former counsel didn’t is pretty much meaningless for IAC purposes. United States v. Johnson, 2011 U.S. Dist. LEXIS 83255 (S.D. Miss. July 28, 2011).*

Defendants were arrested in Sri Lanka for fraud, and their belongings and computers were searched. A U.S. crime was potentially involved, and the FBI viewed the evidence seized in Sri Lanka. A criminal complaint was lodged in the U.S. and defendants were returned at government expense with their luggage, computers, and cell phones, being put in airport jail in Frankfurt between flights. When they entered the U.S. at Dulles near D.C., all that stuff was seized as a criminal investigatory seizure, but apparently not searched. The computers and other evidence were transported to Tampa for the prosecution, but one defendant with apparent authority consented to a search at her detention hearing in Tampa. The seizure at Dulles customs was valid as a border search despite is investigatory nature. United States v. Morgan, 2011 U.S. Dist. LEXIS 83081 (M.D. Fla. June 20, 2011):

Against this legal backdrop, there can be no dispute that Customs performed a valid border search at the Dulles airport upon the Morgans' arrival into the United States. As in Gurr, the fact that the FBI was present and advised Customs agents of the nature of the charges against the Morgans and requested they be on the lookout for particular matters of evidentiary value does not alter that conclusion. As for the Customs official's segregation of such evidentiary items found within the Defendants' property into plastic bags, Gurr suggests such seizure was justifiable as within the scope of the routine border search and thus raises no Fourth Amendment concerns. In sum, I agree with the parties that there was no violation of the Fourth Amendment in the Customs search of the Defendants' property. Insofar as the Customs officials seized certain items believed to be of evidentiary value from the luggage, such too was justified under the border search exception to the warrant requirement. Thus, to the extent of the items seized and segregated into separate plastic bags – the so-called 1B11 items – the seizure too was consistent with Fourth Amendment considerations. Given that the items in 1B11 were properly seized, I find no Fourth Amendment issue arising from the agents' subsequent warrantless review of these same matters upon their arrival in Tampa, Florida. Cf. United States v. Jacobson, 466 U.S. 109, 117 (1984) ("The Fourth Amendment is implicated only if authorities use information with respect to which the expectation of privacy has not already been frustrated.").

Update: On review, the District Court adopts the part denying suppressing the search, but orders and additional hearing on some additional items seized. United States v. Morgan, 2011 U.S. Dist. LEXIS 86729 (M.D. Fla. August 5, 2011).*

The government was investigating the defendant for white collar crime operated out of his home office, and Brackinreed was a trusted employee with access to everything. The government debriefed Brackinreed, and he produced papers he smuggled from defendant. He later gave consent to enter a storage building with records that he had full access to and the key. His days were numbered with defendant, but defendant had done nothing to cut him off from the files, storage unit, or computers. Brackinreed had the ability to consent even though defendant had an expectation of privacy. United States v. Leiske, 2011 U.S. Dist. LEXIS 82535 (D. Ore. July 27, 2011).*

The officer’s stop of defendant for a temporary tag was a mistake of fact not of law. While a real temporary tag from Texas was valid in Alabama, it looked fabricated to the officer. United States v. DeJesus, 435 Fed. Appx. 895 (11th Cir. 2011)* [Now police can claim that the temporary tag looked fake.]

Reading the transcript of the suppression hearing, the court is amply sure that defendant consented to a search of his car. That general consent to search the car permitted looking inside bags. United States v. Cunningham, 441 Fed. Appx. 209 (4th Cir. 2011).*