In a P2P search of a computer left online and open, the officer found files with names and hash values the same as known child pornography. That is probable cause. In addition, there is no reasonable expectation of privacy in a computer left on for a P2P connection because the owner left it online to be viewed by others. United States v. Oliverius, 2011 U.S. Dist. LEXIS 110783 (D. Neb. August 5, 2011):

Based on his experience and training, Investigator Weinmaster’s affidavit explains that SHA1 values are 99.9999% reliable in identifying illegal pornographic images, and therefore the SHA1 assigned to an image is highly accurate and useful to law enforcement when investigating child pornography. See, e.g., U.S. v. Finley, 612 F.3d 998, 1000 n. 3 (8th Cir. 2010) (“The SHA is a mathematical algorithm that allows for unique identification of digital images and videos. SHA values are, in essence, unique digital fingerprints or signatures.”). The warrant application lists the names of four suspect images which were available for sharing from the computer at IP address 76.84.249.75, and this IP address was identified to a person located at defendant’s residence. The names of the four listed images were highly indicative of child pornography. See U.S. v. Stults, 575 F.3d 834, 838 (8th Cir. 2009) (“PTHC” stands for “preteen hard core,” a term associated with images of child pornography); U.S. v. Buesing, 615 F.3d 971, 973 (8th Cir. 2010) (search terms, such as “Lolita,” “pthc” (“preteen hardcore”), and “preteen,” were used by the officer to locate sources of pictures and movies available through P2P sharing and depicting pornographic images of girls under the age of 18). In addition, the warrant application states that after cross-referencing the SHA1 signatures available from IP address 76.84.249.75 with those in the SHA1 database, four files were identified as depicting child pornography. The warrant application listed, by SHA1 signature, these four specific files and for each of these files, provided a description of the sex acts involving children depicted in the file.

Based on the information in the warrant application, it is unclear whether Investigator Weinmaster looked at the actual content of files retrieved from the defendant’s computer to determine whether they depicted child pornography. However, contrary to the defendant’s argument, even absent looking at the files within the defendant’s computer and available for sharing from IP address 76.84.249.75, based on the totality of information presented in the warrant application, there was a fair probability that evidence of a child pornography crime would be found by searching the residence of the account holder for IP address 76.84.249.75. Specifically, law enforcement officers traced IP address 76.84.249.75 to an account holder at the defendant’s residence; from that IP address, officers located P2P shared files with titles highly indicative of child pornography; Investigator Weinmaster cross-referenced, by SHA1 signature, files available for sharing from IP address 76.84.249.75 with the SHA1 signatures of files known to depict child pornography; and the officer viewed four files with SHA1 signatures corresponding to those identified as containing child pornography by the SHA1 database; he confirmed the files contained graphic images of child pornography; and the application contains a graphic description of what the officer saw. Given the accuracy and reliability of SHA1 signatures and the development of a database listing of SHA1 signatures for files containing child pornography, a judge may find, in all likelihood, that a suspect’s computer contains images of child pornography even if the affiant officer has not opened and viewed the files on (and using) the defendant’s computer, and has not viewed files downloaded directly from that computer. U.S. v. Beatty, 2011 WL 2728298, 1 (3d Cir. July 14, 2011) (finding a sufficient showing of probable cause where officer did not open and view the suspect files, but explained the file retrieval process, provided the names of suspect files, and cross referenced and matched each file’s SHA1 to known child pornography files); U.S. v. Miknevich, 638 F.3d 178, 184 (3d Cir. 2011) (holding that although the investigating officer never viewed the alleged images of child pornography on the defendant’s computer, the warrant application provided sufficient probable cause where the highly descriptive names of the file contents indicated child pornography and the SHA1 values for these files matched SHA1 values of files known to contain child pornography).

What goes around, comes around: A police officer under investigation for stealing firearms from detained persons validly consented to a search of his house that produced such a gun. As far as voluntariness is concerned: “The Court notes that Defendant was well-educated and was a trained law enforcement officer.” United States v. Callahan, 2011 U.S. Dist. LEXIS 109580 (N.D. Ga. September 26, 2011), R&R 2011 U.S. Dist. LEXIS 114569 (N.D. Ga. July 25, 2011).

While the search warrant and application were not in the parties' submissions, they are in the court’s files and subject to judicial notice. The warrant here was with probable cause, and it was not unparticular: a street address of the place to be searched is enough. United States v. Gonzales, 2011 U.S. Dist. LEXIS 109953 (N.D. Ind. September 26, 2011):

An accurate street address is by itself sufficient to allow a reasonable person to “ascertain and identify the place intended.” Here, the warrant included a physical description of the dwelling in addition to an accurate street address. The Defendant has not offered any explanation why this was not sufficient, made a claim that this description does not accurately describe the house to be searched, or suggested that there was a risk that officers executing the warrant would search some other house.

After the stop, the officer engaged in 11 minutes of questioning of the defendant without any reasonable suspicion before he ran any computer checks on him. This made the stop an unreasonable detention. United States v. Macias, 658 F.3d 509 (5th Cir. 2011):

Macias argues that Trooper Barragan's actions subsequent to the stop of the truck exceeded the limits prescribed above. Specifically, Macias contends that before Trooper Barragan ran the computer checks, he engaged in detailed questioning about matters unrelated to Macias's driver's license, his proof of insurance, the vehicle registration, or the purpose and itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. We agree.

Nearly eleven minutes passed from the time that Trooper Barragan stopped Macias until he ran the computer checks. During this time, Trooper Barragan questioned Macias and Zillioux extensively about the purpose and itinerary of their trip. Such questions, as discussed, are permissible because they were related in scope to Trooper Barragan's investigation of the circumstances that caused the stop. ...

Merely having a key and a right of access to one’s sister’s house does not give her brother standing to challenge search of her house. Motion denied on the papers alone. United States v. Tumbling, 2011 U.S. Dist. LEXIS 108857 (M.D. Ga. September 23, 2011):

In this case, the statements of Defendant in his Motion to Suppress give the Court no reason to find that he had any reasonable expectation of privacy in the Alder Street residence. Defendant claims that he has a key to the residence on Alder Street and that “he enters the home when [the sister] is at work and as needed.” (Doc. 30, p. 5.) However, Defendant does not allege that he ever shared ownership of the home, spent any length of time in the home, or kept any personal belongings there. Further, there is no evidence of how many people have keys to the home. Possession of a key and permission to enter the home do not suffice to provide Defendant with a reasonable expectation of privacy.

Where there is reasonable suspicion, flight becomes probable cause and hot pursuit. “The Third Circuit’s holding in United States v. Laville makes clear that Anderson’s failure to accede to the officers’ commands and subsequent flight, after the officers had reasonable suspicion to conduct a Terry stop, gave them the probable cause required to satisfy the first prong of the exigent circumstances exception. See Laville, 480 F.3d at 194.” United States v. Anderson, 2011 U.S. Dist. LEXIS 108414 (D. Del. September 23, 2011).*

Demonstrably intoxicated defendant (.27% & .33%) could consent to a search. The parties litigated the level of intoxication with expert witnesses. United States v. Tellefsen, 2011 U.S. Dist. LEXIS 108495 (E.D. Wis. June 2, 2011):

As to Tellefsen’s intoxication, the parties do not dispute that Tellefsen, with a blood alcohol level between approximately .27 and .33 at the time he gave his consent at approximately 3:30 p.m., ... was legally intoxicated. However, as Dr. Pankiewicz explained, there is a distinction between intoxication and impairment. ... Intoxication refers to a specific measure of alcohol level, while impairment is “what that actually does to a person.” ... Dr. Pankiewicz further explained: “[L]evel of intoxication does not necessarily equate with level of impairment. There’s going to be a variety as far as that individual’s capabilities, depending on their own history and their own physiologic makeup.” ... Thus, for example, if an experienced and an inexperienced drinker both have a blood alcohol level of .1, the experienced drinker will perform better than the inexperienced drinker at the same level of intoxication. ... Dr. Pankiewicz testified that while the blood alcohol content number gives a guideline, the real measure of function is a person’s actual demonstrated capacity. ...

Here, while Tellefsen was intoxicated, exhibiting occasional slurred speech and smelled of alcohol, there was no indication of impairment or that Tellefsen did not know what he was doing. Both Sergeant Jaekl and Officer Herbst testified that they suspected Tellefsen was intoxicated; however, both testified that Tellefsen did not appear impaired. ... Both officers testified that throughout their interaction with Tellefsen, he was lucid. He gave responsive answers to questions and gave detailed explanations.

On YouTube from Cato: Judge Alex Kozinski on Digital Privacy and Fourth Amendment Rights in the 21st Century:

The Hon. Alex Kozinski gave the annual B. Kenneth Simon lecture at Cato's Constitution Day Conference on September 15, 2011. He spoke about changing cultural expectations of privacy regarding new technologies and how judicial applications of the Fourth Amendment have changed over time to reflect these expectations.

A must see.

A defendant handcuffed in the back of a police car yelling to his mother not to consent, which the officers could hear and ignored, was a sufficient objection under Randolph to bypassing him to ask his mother for consent. Consent suppressed. United States v. Mass, 2011 U.S. Dist. LEXIS 108122 (D. Neb. September 16, 2011):

In this case, Mass, while handcuffed in the back of a police vehicle, was yelling at Gibson not to let the officers inside the residence. The officers heard his objections and Gibson even made light of it to Officer Gassaway. The government argues that in order to have objected to the search, Mass had to have interacted with police directly, to come forward and say “no you cannot search,” which he did not do. The court rejects that argument. “[T]he standard for measuring the scope of a person’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” McMullin, 576 F.3d at 815. The court “examine[s] the totality of the circumstances, which includes the language of a person’s consent and his actions during the officers’ search.” Id. (alteration added). While in the present case Mass did not interact with the officers directly, an objectively reasonable person would understand Mass yelling at his mother not to let the officers inside to mean Mass is objecting to the search. Mass was physically present, expressly refusing consent. The court therefore finds the search to be a violation of the Fourth Amendment, and the contents of the search should be suppressed.

On remand from State v. Singer, 349 Ore. 663, 249 P.3d 1281 (2011), the court concludes the defendant would not know she was free to leave and was thus detained when the officer directed her out of the car rather than the driver. [A passenger also has to communicate to the driver that he or she wants to leave, but societal understandings require that they stand by while the officer does whatever he is going to do.] State v. Singer, 245 Ore. App. 568, 262 P.3d 1172 (2011)*:

We conclude that Kirkpatrick's conduct toward defendant would lead a reasonable person in defendant's position to believe that she was the subject of a criminal investigation and, hence, that Kirkpatrick had seized defendant for purposes of Article I, section 9, before he requested consent to search her and her purse. Although the record does not establish that defendant knew that Kirkpatrick had requested her name and date of birth in order to run a warrant check on her, Kirkpatrick's actions after completing the check would reasonably lead defendant to believe that she was the subject of an investigation. Rather than returning from the warrant check to speak with the driver, whose unlawful turn had led to the stop, Kirkpatrick went to the passenger side of the stopped car and asked defendant to get out of the car, which she did. Kirkpatrick then told her that he knew that she was on probation for a drug offense and asked her to remove her sunglasses, which she also did. Those actions by Kirkpatrick constituted a show of authority that would lead a reasonable person in defendant's position to believe that Kirkpatrick had significantly restricted her freedom of movement. Therefore, under the test articulated in Ashbaugh, Kirkpatrick had seized defendant for purposes of Article I, section 9, before he asked her for consent to search her and her purse.

Where only one person testified to consent, the officer, how can the appellate court question the district court’s finding of voluntariness? United States v. Lopez, 445 Fed. Appx. 190 (11th Cir. 2011).*

No special showing of reliability of information from another officer is required; just knowledge. United States v. Johnson, 2011 U.S. Dist. LEXIS 107617 (N.D. Ill. September 20, 2011).*

The video raised sufficient question of the lawfulness of defendant’s detention that he was entitled to a jury instruction on that under Texas law. Hamal v. State, 352 S.W.3d 835 (Tex. App.—Ft. Worth 2011).*

Defendant sold drugs over a mile from his home, and there was no evidence that there was a connection to his house, other than an officer’s expert opinion that drug dealers commonly keep their drugs in their house. Without more, there was no probable cause for issuance of the warrant. Nevertheless, the search warrant would not be suppressed under Leon’s good faith exception because of a split in authority that this was not enough. United States v. Kortright, 2011 U.S. Dist. LEXIS 107386 (S.D. N.Y. September 13, 2011):

The Court holds that (1) stale information (one year old) that Defendant dealt drugs on a handful of occasions, combined with (2) an expert opinion that drug dealers typically keep drugs in their homes, is not enough to establish probable cause to search the Apartment.

. . .

Although the court in Moran found the “good faith” exception unavailing, this Court recognizes that there is an “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” United States v. Guzman, 97 cr. 786, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3 (S.D.N.Y. Feb. 13, 1998) (Scheindlin, J.); 1998 U.S. Dist. LEXIS 1538, [WL] at *4 (“[T]here exists no clear rule in this circuit governing the exclusive reliance on law enforcement agents’ expert opinions in determining probable cause.”). Because of this disagreement, a reasonably well-trained officer may not necessarily have known that this search was illegal. Leon, 468 U.S. at 923 n.23.

. . .

In sum, these decisions reveal “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” Guzman, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3. The Court thus declines to suppress the seized evidence because, under the current state of the law, a reasonably well trained officer would not have known that the search was illegal. Leon, 468 U.S. at 922 n.23. Here, the magistrate judge, whose duty it was to interpret the law, issued the search warrant, and it was reasonable for the officers to rely on that determination. See Gomez, 652 F. Supp. at 464. Accordingly, Defendant's motion to suppress evidence seized from the Apartment is denied.

So, what about the next case? Does this mean that the next case in the Southern District of New York with similar facts will not be suppressed? This case should now be notice to the NYPD that the search lacked probable cause. Is this like the “one dog bite” rule? What about other police departments? At what point is the rule universally accepted?

Search incident of a vehicle for being under the influence is proper in California for evidence of what the defendant is under the influence of. That produced drug evidence, and that justified a search incident of defendant’s cell phone because drug users and dealers connect through cell phone text messages and calls. People v. Nottoli, 199 Cal. App. 4th 531, 130 Cal. Rptr. 3d 884 (6th Dist. September 26, 2011):

We reject respondents’ assertion that there must be specific, articulable facts “indicating that the cell phone held relevant evidence of the offenses for which Reid Nottoli was arrested.” Respondents cannot point to any language in Gant imposing such a requirement. Under Gant, a vehicular search incident to arrest is justified “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (Gant, supra, 129 S.Ct. at p. 1714, italics added.) It does not require any degree of probability that evidence bearing on that offense will be found in a particular container that is searched.

. . .

Moreover, even if Gant were construed to require a factual predicate for searching each object found in a vehicle searched incident to arrest, a proposition we reject, it was reasonable for Deputy Ryan to believe, based on the objective circumstances and his training and experience, that evidence relevant to Reid’s offense of arrest for being under the influence might be found on Reid’s cellular phone. The deputy testified that, in his experience, drug users and sellers use cell phones as their “main communication” and cell phones can contain text messages related to acquiring and offering drugs. Further, as suggested by the People, text messages saved in Reid’s cell phone might have identified the controlled substance or contained his admissions “as to what he had done that night.” This would be corroborative evidence.

Defendant was suspected by a Craigslist post of planning to shoot up a shopping mall, and the police came to his house after getting his location from Craigslist. Once inside the house by consent, manipulating a computer mouse to get past the screen saver was a search under Hicks. United States v. Musgrove, 845 F. Supp. 2d 932 (E.D. Wis. 2011), (adopted 2011 U.S. Dist. LEXIS 108932 (E.D. Wis. September 16, 2011)):

Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer's manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir. 2010)(citing Platteville Area Apt. Ass'n v. City of Platteville, 179 F.3d 574, 580 (7th Cir. 1999)). The Court therefore recommends that the defendant's Facebook wall be suppressed.

[Orin Kerr, Taking A Computer Out of Screensaver Mode to See Suspect’s Facebook Wall Is a Fourth Amendment Search on Volokh Conspiracy noting this post; then A New Fourth Amendment Concern: "Don't Touch That Mousepad!" by David Stout on Main Justice noting Kerr; then You Want to Click That Mouse? Bite Me, Get a Warrant! on Above the Law noting Kerr.]

Defendant was strip searched with reasonable suspicion at the St. Croix airport Customs point for flights to Puerto Rico. A quantity of cocaine was found in his underwear. After a brief investigation, there was also reasonable suspicion for search of his traveling companion who succeeded in getting past Customs into the sterile area at the airport. A dog search found cocaine hidden in the bathroom and the dog alerted on the companion’s pants. The border search was reasonable as to both. United States v. Barrett, 2011 U.S. Dist. LEXIS 107956 (D. V.I. September 22, 2011).*

Standing by watching a search and not objecting is an important factor in consent on the totality [which I don’t buy at all as contrary to human experience and common sense]. United States v. Khaleel, 2011 U.S. Dist. LEXIS 106955 (N.D. Iowa September 20, 2011).*

The totality of circumstances showed consent. “Defendants ‘can, and often do, consent to a search even when it must be clear to them that incriminating evidence will be disclosed.’ United States v. Price, 599 F.2d 494, 503 (2d Cir. 1979).” United States v. Bourne, 2011 U.S. Dist. LEXIS 107530 (E.D. N.Y. September 23, 2011).*

Because the Anchorage inventory policy only permitted inventory of things in plain view, looking under a bandana in the car and finding a gun was not valid as an inventory, so the gun was suppressed. However, his arrest still would have led to his search at the jail, so the bullets found on his person were not suppressed. United States v. Vickers, 2011 U.S. Dist. LEXIS 107692 (D. Alaska September 23, 2011).*

Officers were invited into the residence on their request, and they had probable cause to arrest defendant. A co-occupant granted them consent to search. United States v. Zack, 2011 U.S. Dist. LEXIS 107509 (E.D. Wis. September 21, 2011).*

Defendant questioned the timing of the search and his arrest. “The Court is unaware of any law that dictates that a search warrant must be executed at a time that is most convenient to the owner or occupant of a premises.” United States v. Cardenas, 2010 U.S. Dist. LEXIS 143750 (N.D. Ohio September 21, 2010), R&R 2011 U.S. Dist. LEXIS 77791 (N.D. Ohio May 5, 2011):

The defendant suggests that his seizure was unnecessary because the officers deliberately delayed in executing the search warrant until he had returned from his errands. Yet, he concedes that agents had only obtained the warrant shortly before the defendant had returned, and had no legal justification to enter his premises prior to obtaining the warrant. The Court is unaware of any law that dictates that a search warrant must be executed at a time that is most convenient to the owner or occupant of a premises.

Even so, Summers expressly recognized that the government's interest “in the orderly completion of the search” is often “facilitated” when “the occupants of premises are present.” 452 U.S. at 703. In light of the fact that the warrant allowed for execution “in the daytime 6:00 am to 10:00 pm [...] on or before September 21, 2010,” officers did nothing improper by executing the warrant after the defendant returned. See generally, United States v. Cochran, 939 F.2d 337 (6th Cir. 1991) (agents executing search warrant may require occupant who has departed the premises to be searched to re-enter residence and remain there while the search is conducted); United States v. Head, 216 Fed. Appx. 543 (6th Cir. 2007) (officers properly apprehended and detained the defendant during a search of her residence after she had left).

Defendants were suspected of serious credit card fraud by loss prevention at a Wal-Mart, and they were seen in the store again the next day. The store had even determined which car they came in from reviewing the video. The police were called, and they saw the same car in parking lot, and the officer approached. Defendant appeared not to understand English and the officer got him out of the car for a patdown. By plain feel, the officer found what he suspected was large pack of credit card in his pocket, which he could remove and seize. United States v. Chen, 811 F. Supp. 2d 1193 (M.D. N.C. 2011):

Under the “plain view” or “plain feel” doctrine, courts have found probable cause to seize seemingly innocuous items when determined to be contraband in the context of the crime being investigated. In United States v. Bruce, 109 F.3d 323 (7th Cir. 1997), for example, the United States Court of Appeals for the Seventh Circuit concluded that shotgun ammunition, while not contraband in and of itself, “assume[d] an incriminating nature in connection with the search for items such as assault rifles.” Id. at 328-29 (upholding denial of defendant's motion to suppress the ammunition under plain view doctrine). Similarly, in United States v. Cervantes, 19 F.3d 1151 (7th Cir. 1994), the Seventh Circuit held that “although a wad of cash is not in itself a suspicious object,” when the police have good reason to believe the cash on a defendant's person was just obtained in exchange for illegal drugs, it is “suspicious.” Id. at 1153 (finding that the police had probable cause to seize the wad of cash under the “plain view” doctrine). Accord State v. Washington, 134 Wis. 2d 108, 396 N.W.2d 156, 162 (Wis. 1986), abrogated on other grounds by State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (Wis. 1991) (finding that during a Terry stop police officers lawfully seized wristwatches from the occupant of a vehicle implicated in a jewelry store burglary where the wristwatches were known to have been stolen from the store); 4 Wayne R. LaFave, Search and Seizure § 9.6(d) n.251 (4th ed. 2004) (collecting cases).

In the present case, Sgt. Davis had probable cause to believe that the bundle of cards in Chen's pocket was contraband. Although Chen rightly points out that gift cards are not suspicious in themselves, the large bundle of cards in his pocket gave rise to probable cause to believe they were contraband in the context of the ongoing credit-card fraud inside the immediately adjacent Wal-Mart. ...

A protective sweep was justified by voices the officer heard from inside when the defendant was arrested at the door after finally opening it. State v. Young, 2011 Ohio 4875, 2011 Ohio App. LEXIS 3967 (2d Dist. September 23, 2011).*

Officers went to a motel and ran the LPN’s of vehicles and found an active misdemeanor warrant on defendant. They got his room number and went to the room and knocked. When the door was opened, they arrested him. They could see a woman sitting on the bed, and a protective sweep of the bathroom was valid. There they found the start of a meth lab, and the protective sweep was valid. State v. Milton, 2011 Ohio 4773, 2011 Ohio App. LEXIS 3960 (9th Dist. September 21, 2011).*

Nothing the officer posited showed that there was reasonable suspicion. Individually and collectively, there wasn’t enough, including nervousness, a prior arrest for drugs, high crime area, and what the officer thought was unusual travel plans to pick up her child from day care when the child was with her. State v. Ferrante, 2011 Ohio 4870, 196 Ohio App. 3d 113, 962 N.E.2d 383 (2d Dist. 2011).*

Defendant was arrested for a public intoxication, but she was so drunk she was a danger to herself. Therefore, the officer could make an arrest without just issuing a citation, and the search incident to arrest was valid. State v. Bowman, 2011 Ohio 4734, 2011 Ohio App. LEXIS 3944 (2d Dist. September 2, 2011).*

Officers had Buchanan’s house under surveillance for a long time, and recorded drug deals inside. On the day in question, however, they stopped McCoy leaving the house and they had nothing at all on him. Defendant’s stop failed under Ybarra: “In sum, the Government’s argument that probable cause existed on these facts rests on ‘mere propinquity’ to a known individual independently suspected of criminal activity. ‘Mere propinquity,’ of course, does not rise to the level of probable cause, and therefore the court rejects the argument that probable cause supported McCoy’s seizure.” United States v. McCoy, 2011 U.S. Dist. LEXIS 106779 (N.D. Ohio September 20, 2011).

Defendant’s consent was shown by the fact he was Mirandized before. United States v. Toler, 444 Fed. Appx. 561 (3d Cir. 2011).*

Defendants’ Franks challenge based on records that the government had not yet seen when the search warrant affidavit had been presented to the USMJ was unavailing because the government did with withhold the information. United States v. Hollnagel, 2011 U.S. Dist. LEXIS 106516 (N.D. Ill. September 20, 2011).*

The officer’s abrupt u-turn when he saw defendant turn away as he passed and pulling up next to the defendant and calling for backup was a seizure without reasonable suspicion. The officer admitted during questioning that the defendant was not free to leave. United States v. Whitson, 2011 U.S. Dist. LEXIS 106654 (M.D. Tenn. September 20, 2011)*:

The Court concludes that Terry, Brown and Williams control here. First, under Terry, the “manner” of Jayne’s approach to the Defendant is a significant element of Terry. 392 U.S. at 22. Here, the circumstances of the stop here are that when the Defendant turned away from him, Jayne made an abrupt u-turn and pulled his police vehicle “close to” the Defendant who was on a public sidewalk. The other key facts are, based upon Jayne’s testimony that his vehicle was readily identifiable as a police vehicle and Jayne called other officers, one of whom arrived within a minute. These facts establish a Terry stop at a point when Jayne lacked any reasonable suspicion.

Defendant consented to seizure and search of his computers for child pornography. [Since I’ve had two just like this where the defendant “acknowledged he had a problem,” I quote part of the court’s conclusion.] United States v. Emanuel, 440 Fed. Appx. 881 (11th Cir. 2011) (unpublished)*:

Accepting the magistrate’s findings that the officers, and not Emanuel, testified credibly, the interview occurred in Emanuel’s home, Emanuel was not prevented from leaving, and Emanuel did not ask to leave or ask the officers to leave. Emanuel invited the officers inside and cooperatively responded to their questions and requests. Emanuel was not threatened, coerced, restrained, handcuffed, patted down, required to answer questions, physically intimidated, or promised leniency. Although the officers were armed, they never removed their weapons from the holsters. The overall tone of the interview was “cordial,” “conversational,” and “very laid back.” Even though Emanuel exhibited signs of anxiety, he complied with the officers’ request for consent to release the computer by composing his own consent statement. Emanuel acknowledged that he had a problem, verbally asked for help, and reiterated in his consent statement that he was asking for help by releasing the computer.

Police received a telephone call from a citizen informant, with a higher indicia of reliability, that three people were sitting in a green car behind her residence smoking drugs. When officers arrived, they found the described car and could smell burning crack cocaine, although nothing was visible. The stop was reasonable, and the smell was probable cause for a search, but not arrest at that first moment. State v. Lloyd, 2011 UT App 323, 263 P.3d 557 (2011).*

Defendant lacked any standing in the house searched because he was a casual visitor at best; no key, no clothes there. He never pled or attempted to show standing. Besides, the owner’s teenage children consented. Ordway v. Commonwealth, 352 S.W.3d 584 (Ky. 2011).*

The stop of defendant’s rental car was reasonably extended because neither the driver nor passenger was listed on the rental agreement, and the car was not supposed to be outside of North Carolina. There was nothing in the passenger compartment associated with travel and it had an air freshener. Morgan v. State, 311 Ga. App. 740 (September 21, 2011).*

The search of defendant’s car after he was arrested for driving to meet a fictitious teenager for sex was justified as an inventory search. The court of appeals holding that it was justified as a search incident when he was arrested 75' away from it is vacated. Fuson v. State, 2011 Ark. 374, 383 S.W.3d 848 (2011).* [Disclaimer: This was on a petition for review from the Court of Appeals (noted here) which held that the search of the car was valid as a search incident, ignoring the fact defendant was handcuffed face down 75' from the car at the time of search. I wrote the petition for review for defense counsel to seek to extinguish that holding, which we were at least successful at. In any event, there was a fairly compelling harmless error argument that could have been made since the search only provided corroboration of something else. Inventory was a valid alternative ground, but search incident was laughable.]

Office of Foreign Asset Control’s blocking order of the Al Haramain Islamic Foundation’s assets issued without a warrant was a Fourth Amendment violation. Al Haramain Islamic Found. v. United States Dep't of the Treasury, 660 F.3d 1019 (9th Cir. 2011):

Here, the domestic entity’s interest in being free from blocking orders is great. A blocking order effectively shuts down the private entity. Indeed, blocking orders do so by design. Unlike in the Court’s other cases, such as a one-time drug test, a search of files at a person’s office, a search of a home while on probation, or a brief traffic stop, there is no limited scope or scale to the effect of the blocking order. The only limit is temporal, and that limitation is quite small. Once OFAC concludes its investigation (which took more than half a year here), then the party has a right to very limited judicial review and a right to request administrative reconsideration. Both of those actions take considerable time, as the facts of this case and other cases, such as KindHearts, demonstrate. In the meantime, the entity’s doors are closed.

Additionally, OFAC’s potential reach is extensive. Unlike the Court’s cases, which concerned well-defined classes of persons such as probationers, public school students, public employees at work, drivers on the road, and so on, OFAC can issue a blocking order against any person within the United States or elsewhere. And, of course, OFAC does so without warning. There certainly is no “long history of judicial and public acceptance.” Camara, 387 U.S. at 537. Relatedly, unlike in the school and probation cases, in which those persons who conduct the search or seizure also are entrusted with protecting the targeted person’s interests, OFAC is not at all tasked with protecting the interests of the blocked entities.

On the other side of the scale, the government’s interest in preventing terrorism and the funding of terrorism is extremely high. But the sensitive subject matter is no excuse for the dispensing altogether with domestic persons’ constitutional rights. Cf. Hamdi, 542 U.S. 507 (holding that due process required that a United States citizen being held as an “enemy combatant” be given a meaningful opportunity to contest his detention). Rather, the dispositive question here is whether it is impracticable for OFAC to achieve its undeniably important aims without securing a warrant.

On this point, OFAC asserts that it does not and cannot know the location of the assets it seeks to block and must rely on property holders other than the blocked entity to identify such assets. OFAC also asserts that it would be impractical to update its warrants whenever it discovered additional assets owned by the entity. Finally, OFAC asserts that the timing of its blocking orders is coordinated with other governments, which makes it impractical to obtain a warrant.

We are not persuaded. As an initial matter, we reiterate that the number of designated persons located within the United States appears to be very small. The warrant requirement therefore will be relevant in only a few cases. In any event, we are puzzled by OFAC’s concerns related to the allegedly unknown location of the entity’s assets. In order to block assets effectively, OFAC must know which assets it is blocking.

Report of a gunshot from inside a house that about four people then bailed out of through doors and windows justified a protective sweep for the shooter or any one injured by the gunfire. United States v. Goodrich, 2011 U.S. Dist. LEXIS 107044 (W.D. Mo. September 21, 2011), R&R 2011 U.S. Dist. LEXIS 107338 (W.D. Mo. August 31, 2011).*

On the video of the stop, defendant told the officer she had just bought the car from the person named on the title, and that was sufficient to give her standing. However, her lack of paperwork associated with the purchase was a factor in reasonable suspicion since they were stopped on a drug corridor and unusual travel plans. [One factor was that the car was bought with an income tax refund but the defendant was unemployed at the time, like that makes complete sense.] United States v. Hageman, 2011 U.S. Dist. LEXIS 107188 (D. Utah September 21, 2011).*

Extreme nervousness with shaking hands and unfamiliarity with how the glove compartment opened and registration and insurance in a different person’s name was reasonable suspicion. United States v. Lopez, 817 F. Supp. 2d 918 (E.D. Miss. 2011).*

TSA checked baggage screeners found firearms in defendant’s checked luggage which had not been declared as required by federal law. There is no reasonable expectation of privacy in luggage checked with an airline because it can be searched to prevent terrorist attacks. United States v. Esteban Alcapone Rosario, 2011 U.S. Dist. LEXIS 107576 (N.D. Ga. September 21, 2011):

The Magistrate Judge's second conclusion regarding the search of Defendant's suitcase in Puerto Rico is clearly correct. Given the widely-understood need to prevent terrorist attacks, airline travelers know that their checked bags are subject to routine searches such that Defendant cannot demonstrate that he had an expectation of privacy with respect to his checked suitcase. Moreover, pursuant to 49 C.F.R. § 1544.203, all checked baggage is subject to search, and all airline passengers must consent to a search of their luggage as a condition of the airline accepting it. Under Tariff Rule 190.B.1 of the Delta Domestic General Rules Tariff, available at http://www.delta.com/legal/contract_of_carriage/index.jsp, Defendant agreed that, as a condition of Delta's accepting his baggage for transport, his baggage was subject to inspection.

This holding could have been a lot more narrow and achieved the same result; i.e., the CTX machine revealing firearms and the lack of declaration of firearms, the search of the bags was reasonable. TSA does not have general law enforcement authority to search luggage for evidence of a crime. So, how does an undeclared gun in checked baggage out of one's hands potentially facilitate an airplane hijacking?

Note the defendant's unfortunate middle name to go with the unfortunately overbroad holding.

WNYC: Police Commissioner Calls on NYPD to Stop Improper Marijuana Arrests:

Police Commissioner Ray Kelly has issued an internal order to the New York City Police Department commanding officers to stop arresting people for small amounts of marijuana possession, if the marijuana was never in public view. The directive comes at a time when the NYPD is taking increasing heat about alleged improper marijuana arrests.

NYTimes.com: Borough President Seeks Limits on Stop-and-Frisk:

The Manhattan borough president, Scott M. Stringer, arguing that Police Department practices are creating a “wall of distrust” between officers and minorities, plans to call this weekend for a major re-examination of the department’s stop-and-frisk policy.

Mr. Stringer plans to argue at a symposium that the spiraling use of the practice — stopping and searching people who officers believe may be armed and dangerous — is disproportionately directed at blacks and Latinos, constituting harassment and making those demographic groups less likely to assist the police in investigations. There were about 600,000 stop-and-frisk encounters in New York City last year.

The Constitution Project: Warrantless Location Tracking Threatens Fourth Amendment Says Former Law Enforcement and Legal Experts in TCP Report:

Today, The Constitution Project's (TCP) bipartisan Liberty and Security Committee released a comprehensive policy statement condemning the warrantless use of powerful surveillance technologies, including Global Positioning System (GPS) tracking, by law enforcement officials. Committee members concluded that the prolonged use of electronic tracking technologies without a warrant violates the Fourth Amendment.

Defendant’s consent to search the entire car included a bookbag of a passenger that contained drugs. Varriano v. State, 312 Ga. App. 266, 718 S.E.2d 14 (2011).*

As defendant got out of this car during a traffic stop, the officer could smell marijuana on him, and that gave probable cause to search his car. State v. Delvalle, 73 So. 3d 1026 (La. App. 2d Cir. 2011).*

Because the New Mexico Constitution requires a warrant application be in writing, an unrecorded telephone call in support of a search warrant made that search void. State v. Boyse, 150 N.M. 712, 2011 NMCA 113, 265 P.3d 1285 (N.M. App. 2011),* certiorari Granted, November 4, 2011, No. 33,257, Writ of certiorari granted State v. Boyse, 2011 N.M. LEXIS 536 (N.M., Nov. 4, 2011), Writ of certiorari granted State v. Boyse, 2011 N.M. LEXIS 537 (N.M., Nov. 4, 2011).

There was probable cause to believe that evidence would be found on defendant’s sneakers which were the subject of the search warrant. “In determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion; inferences drawn from the affidavit need only be reasonable and possible, not necessary or inescapable.” Commonwealth v. Cavitt, 460 Mass. 617, 953 N.E.2d 216 (2011)*:

Although the defendant shed some items of clothing during his escape, he remained dressed, and there was a substantial basis for concluding that the clothes that he did not discard, including footwear, would be found at LaVoice’s apartment. In light of the altercation between the defendant and Ryan, it was reasonable to infer that trace evidence, including blood, tissue, or fragments of clothing, may have transferred between the men, including onto their shoes, and that such evidence would be relevant to the identification of the defendant as the perpetrator of the armed robbery. Similarly, it was also reasonable to infer that the defendant’s clothing, and any scrapes or tears thereto, could provide trace evidence linking the defendant to the purported carjacking of Thompson’s vehicle.

Based on our review of the four corners of Pioggia’s affidavit, we conclude that it set forth probable cause to search LaVoice’s apartment for items of the defendant's clothing, including his red and white sneakers. It follows, therefore, that the seizure of the sneakers did not exceed the scope of the search warrant. ...

The inventory search here was not shown to be valid as an inventory and fails on that score, but it was alternatively valid as a search incident. State v. Fortune, 72 So. 3d 1000 (La. App. 2d Cir. 2011)*:

To do so we must consider the facts of the case in light of the factors as set forth in La Rue, supra, that are significant in determining that a so-called inventory search was merely subterfuge. These factors include whether (1) formal impoundment procedures were not followed; (2) the search was conducted “in the field”; (3) a tow truck was not called before commencing the search; (4) the car owner was not asked for his consent to the search, if his car contained valuables, if he would waive an inventory search, or if he could make arrangements to have someone pick up the vehicle. It is unclear whether or not formal impoundment procedures were followed here. Chief Clark mentioned impoundment in his testimony when describing the procedure for inventory searches, but was not further pressed about the procedures employed on the night in question. The search was conducted “in the field.” It is unclear whether a tow truck was called before commencing the search. It is unclear whether the car owner was asked for his consent to the search, if his car contained valuables, if he would waive an inventory search, or if he could make arrangements to have someone pick up the vehicle. Chief Clark stated that upon viewing the vehicle’s registration, he was uncertain about who actually owned the vehicle. This could have accounted for the lack of questioning on the topic. What is clear here is that according to Chief Clark, only items he deemed as contraband were logged. ...

. . .

This goes against the nature of an inventory search, which is done for the purpose of preserving a car owner’s property and protecting the police against claims of lost or stolen property. An inventory search may not be used as a subterfuge for rummaging through an arrestee’s vehicle without a warrant for the primary purpose of seizing evidence. From the limited testimony adduced at the suppression hearing, we cannot conclude that this was a valid inventory search.

However, while the search was not a valid inventory search, it was a valid search incident to arrest. ...

CNN.com: California bill would ban warrantless cell phone searches by Amy Gahran:

If you get arrested in California, the photos, e-mails and other personal data on your cell phone soon could be a bit safer from prying police eyes soon. A bill passed by the state legislature would require law-enforcement officers to obtain a warrant before searching the cell phone of a person placed under arrest.

If signed by the governor, the bill would override a January ruling by the California Supreme Court. According to California Sen. Mark Leno, who sponsored the legislation, this ruling had "legalized the warrantless search of cell phones during an arrest, regardless of whether the information on the phone is relevant to the arrest or if criminal charges are ever filed."

The new California law unanimously passed in the state Assembly. Gov. Jerry Brown has until October 9 to sign it into law, according to a spokesman from the governor's office.

The "fellow officer rule" permits officers to rely on email attachments from other officers in showing probable cause. United States v. Mikelic, 2011 U.S. Dist. LEXIS 106112 (D. Conn. September 19, 2011).*

When officers asked to enter, defendant stood aside, and that was implied consent to enter. No coercion or weapons were shown. United States v. Broadnax, 2011 U.S. Dist. LEXIS 105799 (E.D. Cal. September 15, 2011).*

The officer’s reasonable suspicion was based in part on knowing that there was a federal wiretap on defendant for a drug investigation, defendant’s intoxication, and unusual travel plans. United States v. Bussell, 2011 U.S. Dist. LEXIS 106207 (E.D. Tenn. August 10, 2011),* adopted 2011 U.S. Dist. LEXIS 108164 (E.D. Tenn. September 16, 2011).*

The government did not commit a Franks violation by not disclosing that ICE conducted an on-site computer examination that revealed no child pornography. The FBI obtained a valid separate search warrant for the computers for a complete forensic investigation not knowing of the ICE examination. United States v. McKerlie, 2011 U.S. Dist. LEXIS 106091 (D. Ariz. July 7, 2011):

The Defendant alleges that Judge Pyle would not have issued the search warrant knowing that ICE's on-site examination of the computer in April 2009 yielded no evidence of children pornography. The FBI affidavit, however, provided a sufficient explanation as to why an on-site examination such as the one conducted by ICE, could fail to locate child pornography present on a computer and the affidavit provided probable cause for a more in-depth search of the same computer. The warrant described numerous ways that child pornography is hidden on computers and the highly technical process and expertise required to detect the pornography. The affidavit explained why a detailed off-site search was often necessary to detect pornography. In one portion of the affidavit, the affiant stated: "Since computer evidence is extremely vulnerable to tampering or destruction (both from external sources or from destructive code embedded in the system as a 'booby trap'), the controlled environment of a laboratory is essential to its complete and accurate analysis." (Affidavit, p. 7.) In another section, the affiant described how computer experts can recover during a complete off-site forensic evaluation, deleted images, including images deleted years earlier: ...

Defendant can appeal his probation search condition even though he has not yet been subjected to a search. But, the condition is valid. On misdemeanor probation, he is not subject to a DNA collection condition. United States v. Baker, 658 F.3d 1050 (9th Cir. 2011).*

A 20 hour delay after an illegal arrest was sufficient here to attenuate the illegal arrest from the statement. Cox v. State, 421 Md. 630, 28 A.3d 687 (2011)*:

In this case, Petitioner and Mr. Johnson’s statements were made approximately 20 hours after Petitioner’s illegal arrest. Although certainly not dispositive, we agree with the State and the Court of Special Appeals that this amount of time provides sufficient separation between the illegal activity and the challenged statements to weigh in favor of a finding of attenuation. We stress, however, that, “[b]ecause a lengthy detention can be used to exploit an illegal arrest at least as easily as a brief detention, the temporal proximity factor has been labeled ‘ambiguous,’ and ‘relatively unimportant,’” and therefore our attenuation analysis does not end here. Ferguson v. State, 301 Md. at 550, 483 A.2d at 1259 (citations omitted).

Multiple traffic violations justified the stop, and the smell of fresh marijuana and PCP gave probable cause to search. United States v. Sheffield, 799 F. Supp. 2d 22 (D. D.C. 2011), Motion granted by, 2011 U.S. Dist. LEXIS 127178 (D.D.C., Nov. 3, 2011).*

Ordering the defendant out of the car after the stop was effectively completed was unreasonable. There is no carte blanche to order a driver out of the car at any time without reason. Here, the officer did not consider the driver a safety threat. State v. Donaldson, 2011 Tenn. Crim. App. LEXIS 717 (September 15, 2011).*

The search warrant was for a tan building at 506 Christie Street. When the police arrived, they searched a blue building at that address. It turned out that the blue building was on the street and the tan building was behind it with the same address. The warrant failed the particularity requirement. State v. Spivey, 2011 Tenn. Crim. App. LEXIS 720 (September 19, 2011)*:

Based on the above authority and analysis, we agree with the trial court, and conclude that the search warrant was unconstitutional because it failed to adequately specify the property to be searched. The search warrant described the residence as a single story, single family dwelling with tan siding located at 506 Christie Street on the northeast corner of Christie Street and Brigance Avenue. It failed, however, to distinguish the subject building from a second building on the property, the only one that was actually tan. This is fatal to the search warrant because it authorized law enforcement to search the tan building, which was occupied by a resident unrelated to the investigation.

The exclusionary rule does not apply to probation revocation searches unless they were conducted in bad faith. Jones v. State, 2011 Ark. App. 543 (September 21, 2011).*

The exclusionary rule does not apply to probation searches, and this one was valid. Miller v. State, 2011 Ark. App. 554, 386 S.W.3d 65 (2011).*

Salon.com: Dennis G. Jacobs: Case study in judicial pathology by Glenn Greenwald:

The last decade has spawned a massive expansion of the domestic Surveillance State. Worse, the U.S. Government has vested itself with the virtually unchallenged ability to operate this surveillance regime in full secrecy and even beyond the reach of judicial review, which is another way of saying: above and beyond the rule of law.

Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying: (1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the "state secrets" privilege); and/or (2) because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government -- and, for that matter, everyone else in the country -- lacks "standing" to challenge the legality of the spying (because nobody knows on whom we're spying, nobody has the right to sue us for breaking the law).

In this interesting article, albeit not about the Fourth Amendment, USA Today writes about server centers: Buildings house secret servers that keep Net humming by Judy Keen. There's this tidbit near the end:

As more data centers are built, he says there will be more debate about legal issues: What happens if law enforcement has a warrant for a server that also contains data owned by other companies?

As storage goes off-site (the "cloud"), one can imagine search warrants for entire servers where only a tiny part contains the information used by the search warrant's true target. What then? The Comprehensive Drug Testing search protocol debate will be revived. What ham-handed law enforcement officer isn't going to seek seizure of the entire server because it's easier than segregating information really needed in the search warrant papers?

Update: See F.B.I. Seizes Web Servers, Knocking Sites Offline and FBI Seizes Servers at Dallas Data Center.

WSJ: 'Stingray' Phone Tracker Fuels Constitutional Clash by Jennifer Valentino-Devries:

For more than a year, federal authorities pursued a man they called simply "the Hacker." Only after using a little known cellphone-tracking device—a stingray—were they able to zero in on a California home and make the arrest.

Stingrays are designed to locate a mobile phone even when it's not being used to make a call. The Federal Bureau of Investigation considers the devices to be so critical that it has a policy of deleting the data gathered in their use, mainly to keep suspects in the dark about their capabilities, an FBI official told The Wall Street Journal in response to inquiries.

A stingray's role in nabbing the alleged "Hacker"—Daniel David Rigmaiden—is shaping up as a possible test of the legal standards for using these devices in investigations. The FBI says it obtains appropriate court approval to use the device.

Stingrays are one of several new technologies used by law enforcement to track people's locations, often without a search warrant. ...

Also: How ‘Stingray’ Devices Work by the same author:

Law enforcement and the military are using devices called “stingrays” to track cellphones, as described in a story in today’s Wall Street Journal. The government considers the devices sensitive information, and not much is known publicly about how they are used. But it’s possible to get a good idea of how they work based on public documents and interviews with technology experts.

The systems involve an antenna, a computer with mapping software, and a special device. The device mimics a cellphone tower and gets the phone to connect to it. It can then collect hardware numbers associated with the phone and can ping the cellphone even if the owner isn’t making a call. This can be done through walls — something that is useful in finding suspects as well as victims of crimes or accidents.

WSJ Blog: How Technology Is Testing the Fourth Amendment by Jennifer Valentino-DeVries:

The Fourth Amendment of the U.S. Constitution protects against “unreasonable searches and seizures” – but what does that mean when it comes to techniques that use technology rather than a physical search that is easy to see?

In many ways, it remains unclear. But there a few key issues that courts have been considering lately when it comes to this question.

First up: whether the activity being observed by the technology is outside or inside a person’s house. Courts have consistently ruled, for example, that the use of a GPS device to track people outside their home is not a “search” under the Fourth Amendment. The idea here is that if people are doing things in public, they don’t have much expectation of privacy. A similar argument could extend to the use of cellular signals to track people via their phones outside their home.

Inside a home, though, things are different. The first part of the Fourth Amendment gives people the right “to be secure in their persons, houses, papers and effects.”

From Landline Magazine: Court enjoins Minnesota State Patrol from violating truckers’ rights by Jami Jones and Sandi Soendker:

Truckers’ Constitutional rights came out the big winner in the judge’s final order in the OOIDA lawsuit against the Minnesota State Patrol and its so-called fatigue enforcement program.

U.S. District Court Judge Donovan W. Frank issued his final order for declaratory relief, injunction and entry of judgment in favor of the Owner-Operator Independent Drivers Association and its member plaintiff Stephen K. House on Wednesday, Sept. 21.

OOIDA and its member plaintiff Stephen K. House filed the lawsuit against the Minnesota State Patrol and individual officers on May 13, 2009, on behalf of truck drivers placed out of service after members of the patrol consulted a checklist and arrived at the conclusion the drivers were “fatigued.”

Judge Frank ruled on Jan. 28 in favor of truckers’ Fourth Amendment Rights and ruled that the OOIDA and House were entitled to declaratory and injunctive relief.

That meant the plaintiffs were entitled to an order of the court instructing the defendants how they must change their practices in the future in order to not repeat their violations of the U.S. Constitution. But instead of immediately issuing such an injunction, the court ordered the parties to enter mediation to try to agree upon the appropriate injunction.

Owner-Operator Indep. Driver Ass'n v. Dunaski, 812 F. Supp. 2d 994 (D. Minn. 2011).

Officers investigated a bad car wreck, and the driver was not there. There was blood in the car. Officers went to his house and saw blood on the doorknob and a key in the lock. Their entry to check on the defendant whom they found in bed bleeding was reasonable to see if the accident victim needed medical care. State v. Wilson, 2011 Ohio 4651, 2011 Ohio App. LEXIS 3833 (5th Dist. September 13, 2011).

CI’s tip here was adequately corroborated to show probable cause. State v. McClain, 2011 Ohio 4690, 2011 Ohio App. LEXIS 3883 (6th Dist. September 16, 2011).*

The officer stopped the car for no headlights, and there were five people in the car. One had a warrant. The officer was justified in asking for a patdown, and defendant consented to it in any event. State v. Covert, 2011 Ohio 4713, 2011 Ohio App. LEXIS 3905 (3d Dist. September 19, 2011).*

The officer was working overtime at an apartment complex and he encountered defendant, and defendant consented to a patdown which revealed drugs. State v. Springer, 2011 Ohio 4724, 2011 Ohio App. LEXIS 3913 (2d Dist. September 16, 2011).*

6,000 posts since this website went to this format in Feb. 2006, so probably 9,000 posts total.

EFF: EFF To Appeals Court: Border Is Not An “Anything Goes” Zone:

EFF has long been committed to helping international travelers protect their electronic devices and digital data at the U.S. border. We're continuing to push for some legal limits on the government’s sweeping authority to search electronic devices at the border with an amicus brief we recently filed along with the National Association of Criminal Defense Lawyers (NACDL), urging the Ninth Circuit Court of Appeals to rehear and reverse its disturbing decision in United States v. Cotterman (pdf).

Cotterman is where two computers seized at a border crossing were moved 170 miles for analysis, and Cotterman was detained for 8 hours.

Wired.com: Appeals Court OKs Challenge to Warrantless Electronic Spying by David Kravets:

A legal challenge questioning the constitutionality of a federal law authorizing warrantless electronic surveillance of Americans inched a step closer Wednesday toward resolution.

The 2nd U.S. Circuit Court of Appeals for the second time rejected the Obama administration’s contention that it should toss a lawsuit challenging the 2008 Foreign Intelligence Surveillance Amendments Act. Among other things, the government said the plaintiffs — Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and others — don’t have standing to bring a constitutional challenge because they cannot demonstrate that they were subject to the eavesdropping or suffered hardships because of it.

The opinion: Amnesty Int'l v. Clapper, 09-4112-cv (2d Cir. September 21, 2011), opinion on denial of rehearing en banc.

Wired.com: OnStar Tracks Your Car Even When You Cancel Service by David Kravets:

Navigation-and-emergency-services company OnStar is notifying its six million account holders that it will keep a complete accounting of the speed and location of OnStar-equipped vehicles, even for drivers who discontinue monthly service.

OnStar began e-mailing customers Monday about its update to the privacy policy, which grants OnStar the right to sell that GPS-derived data in an anonymized format.

Adam Denison, a spokesman for the General Motors subsidiary, said OnStar does not currently sell customer data, but it reserves that right. He said both the new and old privacy policies allow OnStar to chronicle a vehicle’s every movement and its speed, though it’s not clear where that’s stated in the old policy.

“What’s changed [is that if] you want to cancel your OnStar service, we are going to maintain a two-way connection to your vehicle unless the customer says otherwise,” Denison said in a telephone interview.

So, the government can subpoena it.

Washington Examiner on the Constitution Project: Report says warrants needed for police GPS tracking by Emily Babay:

A bipartisan group of legal experts and former law enforcement officials says limits are necessary on how police can use GPS technology to track suspects.

The Constitution Project, a D.C. think tank, on Wednesday issued a report on location-based tracking, writing that a warrant should be required for any GPS tracking that lasts longer than 24 hours. Law enforcement should also be required to obtain a warrant before placing a GPS device on a suspect's property, such as a vehicle, the report says.

The report comes as the Supreme Court is slated this fall to take up the case of D.C. nightclub owner convicted of operating a cocaine ring. The club owner, Antoine Jones, contends that police infringed on his Fourth Amendment rights by placing a GPS device on his Jeep and monitoring his movements for a month. A federal appeals court agreed and overturned his conviction.

While the law is in flux, defense counsel was ineffective for not filing a motion to suppress GPS evidence because there is a reasonable likelihood of prevailing on that motion because of Maynard from the D.C. Circuit. State v. Jefferson, 2011 Ohio 4637, 2011 Ohio App. LEXIS 3849 (8th Dist. September 15, 2011):

[*P21] The Fourth Amendment issues surrounding GPS surveillance are not new. Both Ohio and federal courts have addressed this issue. In light of the numerous cases on this issue, especially Maynard, we conclude that not only should Jefferson's trial counsel have filed a motion to suppress evidence obtained from the warrantless installation and use of a GPS device on his car, but there is a strong likelihood such motion would have been granted. If granted, the State would have had no evidence to link Jefferson to the crime and he would have been acquitted.

In a conspiracy to commit murder, defendant had no reasonable expectation of privacy in her telephone call with a co-conspirator that an officer was listening to. State v. Wetter, 2011 VT 111, 190 Vt. 476, 35 A.3d 962 (2011).*

Defendant’s consent to search a car includes her purse in the car. Her argument that the state constitution should be interpreted more broadly was not preserved in the trial court by any kind of cogent argument. State v. Lamonda, 2011 VT 101, 190 Vt. 618, 30 A.3d 687 (2011).*

When defendant was stopped for a traffic offense, there was a strong odor of alcohol, but the officer excluded that it was coming from defendant, the sole occupant of the car. Thus, there was probable cause to believe there was an open container in the car, and that justified a search. State v. Stevenson, 46 Kan. App. 2d 474, 262 P.3d 689 (2011).*

Nervousness, evasive answers to travel plans, few clothes, and an energy drink were reasonable suspicion. State v. Deviley, 2011 ND 182, 803 N.W.2d 561 (2011).*

While defendant claimed to be “a very private man,” his use of his property was sufficiently joint with his son that the son could consent to a search, and the consent was voluntary. United States v. Ervin, 2011 U.S. Dist. LEXIS 105123 (M.D. Ala. August 17, 2011), adopted 2011 U.S. Dist. LEXIS 101362 (M.D. Ala., Sept. 8, 2011).*

The disputed facts for summary judgment were whether the officers had a search warrant or a valid exception for search without one, and summary judgment for the officers was inappropriate at this time. Brown v. Passmore, 445 Fed. Appx. 187 (11th Cir. 2011).*

The affidavit for the issuance of a search warrant for immigration fraud clearly provided probable cause, and during the execution of the search warrant officers found evidence of providing material support to terrorists. Defendant was pro se on the motion to suppress, and he made fantastic and disjointed arguments that the officer applying for the search warrants didn’t know what he clearly knew. United States v. Subasic, 2011 U.S. Dist. LEXIS 105547 (E.D. N.C. August 11, 2011).*

On CrimProf Blog: Call for papers: "Smartphones and the Fourth Amendment:"

The conference, at the University of the District of Columbia, David A. Clarke School of Law, will be held in spring 2012. Further info after the jump.

The University of the District of Columbia, David A. Clarke School of Law seeks submissions for its 2012 Annual Law Review Symposium. This year’s theme is “Smartphones and the Fourth Amendment: The Future of Privacy in Our Hands” The conference date is to be determined, but will be in the Spring of 2012. For more information about the conference, please visit http://www.udclawreview.com

This Symposium seeks to explore the constitutional implications of smartphone technology, focused on the Fourth Amendment to the United States Constitution. ...

The Nation: When Cops Lie: A Report From Los Angeles by Jon Wiener:

Cops lie. Under oath, on the witness stand. “I saw him reach for a gun.” “I found the drugs in his pocket.” But what happens when juries refuse to believe their testimony? Do cops ever get in trouble for fabricating evidence or lying under oath? Do they ever get charged with perjury?

The Los Angeles Times in a page-one story today named three LA sheriff’s deputies who jurors in a case in Compton, California, said had told “one lie after another” under oath. They said authorities should investigate the three.

The LAT linked story: Jurors question deputies' testimony:

When Compton jurors recently deliberated the fate of a man charged with possessing a concealed firearm, they thought the evidence was overwhelming — not that the man was guilty but that the Los Angeles County sheriff's deputies who testified against him had lied.

Jurors said a video of the arrest and inconsistent testimony from deputies left them no choice earlier this month but to vote for acquittal. The five jurors who spoke to The Times said authorities should investigate the deputies from the sheriff's anti-gang-unit who were involved in the case.

"These were not minor inconsistencies…. These were outright fabrications," said juror Ted Rhodes, 28, a construction project manager. "It'll be an injustice … if someone isn't held accountable."

Defendant was stopped for a loud music complaint, and that led to his being stopped, and then his DL was found to be suspended. That led to a search of the car and that produced cocaine. The loud music statute was unconstitutional as an abridgement of free speech. However, that did not lead to the search being invalid because the officer was not on notice that the statute was unconstitutional. Montgomery v. State, 69 So. 3d 1023 (Fla. 5th DCA 2011).

A woman knocked on a door in an apartment complex in a bathroom saying she had been raped, and her clothing was ripped off in defendant’s apartment. The police were called and went to defendant’s apartment, and a woman answered the door who consented to entry and the officer found the dress ripped as the robed woman described. The entry was legal. Kohn v. State, 69 So. 3d 388, 36 Fla. L. Weekly D 2057 (Fla. 1st DCA 2011).*

The state failed to prove constructive possession, yet defendant did not argue that the search condition that the police used was not valid. Ford v. State, 69 So. 3d 391 n.3 (Fla. 2d DCA 2011)*:

The record shows that warrantless searches were not a condition of Mr. Ford's community control. Submission to warrantless search is a special condition that must be specified on the order. § 948.03, Fla. Stat. (2009). On Mr. Ford's community control order, there is no check mark in special conditions box 20, “You shall submit your person, property, place of residence, vehicle or personal effects to a warrantless search at any time, by any probation or community control officer or any law enforcement officer.” Mr. Ford argued at the hearing that Ms. Davis’s consent was not voluntary, and thus the search was illegal, because the officers told her that they had legal authority to search without consent. See Bumper v. N.C., 391 U.S. 543, 548-50, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); Luna-Martinez v. State, 984 So. 2d 592, 598 (Fla. 2d DCA 2008). Mr. Ford did not raise the legality of the search on appeal.

Fla. state legislator introduces repeal of mandatory drug tests for welfare recipients by Ashley Lopez in the Florida Independent:

State Sen. Arthenia Joyner, D-Tampa, has filed legislation repealing a new law requiring all welfare applicants to first pass a drug test.

Joyner filed Senate Bill 284 shortly after a lawsuit was filed by a Navy veteran who refused to waive his Fourth Amendment rights and submit to a drug test before receiving temporary assistance benefits he was otherwise qualified for. The American Civil Liberties is representing 35-year-old Orlando resident Luis Lebron — who is also a full-time student and single father.

Gov. Rick Scott, a proponent of the law, has said that the law was passed for “for the benefit of children.”

VT adopts independent appellate review of consent following Ornelas. State v. Weisler, 2011 VT 96, 190 Vt. 344, 35 A.3d 970 (2011):

[*P26] At the same time, as the Supreme Court stressed in Ornelas, the “multi-faceted” nature of the voluntariness inquiry underscores the need for a body of binding case-law applying the consent-standard in a variety of individual cases, thereby providing “content ... through application” and guidance to the police and the trial courts. 517 U.S. at 697; see also Miller, 474 U.S. at 114 (citing the imperative for independent review where “the relevant legal principle can be given meaning only through its application to the particular circumstances of a case”). Finally, we recognize that the voluntariness-of-consent issue implicates a “complex of values,” Miller, 474 U.S. at 116 (quotation omitted); it requires a balancing of the need for effective law enforcement against the imperative to restrain unfair police tactics and maintain individual dignity—a declaration of constitutional norms and values that demands statewide force and application. These are functions that only a reviewing court with broad jurisdiction and authority can perform. Accordingly, we hold that a trial court's decision on the question of the voluntariness of a consent to search, and thus the ultimate constitutional validity of the search, must be reviewed independently by this Court on appeal.

. . .

[*P34] Ultimately, it is not the purported distinctions from Ornelas, Thompson, and Miller that appear to drive the dissent but rather a fundamental disagreement with their holdings, a disagreement grounded on a suspicion that de novo review somehow represents a “negative assessment of the quality of fact-finding by trial courts with respect to federal constitutional questions.” Post, ¶ 76. This inference is unfounded and can not be reached by anything stated or implied in the majority opinion. Like the U.S. Supreme Court, we continue to accord substantial deference to the trial court's findings of historical fact. Nothing in our opinion can or should be construed to undermine this fundamental principle of appellate review.

Defendant consented to an entry for ICE officers to look for her illegal alien husband. They saw ammunition and asked about guns, and she showed them the guns in a gun cabinet owned by her husband she had access to. She was arrested for admitting to buying guns for him and aiding his possession which she said she did not know was against the law[; thereby implying voluntariness because she didn’t think she did anything wrong]. United States v. Valencia, 2011 U.S. Dist. LEXIS 104766 (W.D. Ark. August 22, 2011).*

Defendant’s stop was justified by following too close, which the officer suspected was a tandem drug run. Once the car was stopped, reasonable suspicion developed from extreme nervousness, a rented car, the appearance of stuff in the car indicating “hard travel” that they were driving long distances without stopping, inconsistent stories, and signs of tampering with the cowl as a place to hide drugs. Then there came consent. Motion to suppress denied. United States v. Bryant, 2011 U.S. Dist. LEXIS 104507 (N.D. Tex. September 9, 2011).*

Defense counsel was not ineffective for not forecasting Gant which came later, but that is moot anyway because of Davis v. United States finding pre-Gant searches valid. Jeter v. United States, 2011 U.S. Dist. LEXIS 104943 (D. S.C. September 15, 2011).*

Defendant got off a Greyhound bus and was somehow noticed by drug interdiction police who started to walk up to him and show a badge to talk to him. He fled and was taken down after an “extended chase.” This was just a Terry stop. United States v. Wallace, 811 F. Supp. 2d 1265 (S.D. W.Va. 2011):

Following the extended chase, Det. Carper and Lt. Napier forced defendant to the ground. At this precise point, defendant was unquestionably seized within the contemplation of the Fourth Amendment. Compare United States v. Drayton, 536 U.S. 194, 201 (2002) (“If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.”); Brown, 401 F.3d at 594 (noting “[A] seizure 'requires either physical force ... or, where that is absent, submission to the assertion of authority.'”) (citation omitted).

The court does not deem the stop, at least at this point, to have constituted an arrest. It is best treated as a Terry stop. The question thus arises whether a Terry stop was justified under the circumstances. The Supreme Court has articulated factors to be weighed in considering the totality of the circumstances that might support the reasonable suspicion necessary to justify a Terry stop. These factors include: (1) whether a high crime area is involved, Adams v. Williams, 407 U.S. 143, 147 (1972), (2) whether an individual exhibits evasive behavior, United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975), and (3) whether there is unprovoked flight, Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (“Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”).

The judge signing the search warrant was in New Jersey at the time. State law requires that all reasonable efforts to contact a nearby judge be exhausted before turning to telephone or fax warrants. On remand, the state will have to show that all reasonable efforts were exhausted. If so, defendant will not have suffered prejudice. Commonwealth v. Nelson, 460 Mass. 564, 953 N.E.2d 164 (2011).*

Defendant’s Alford plea got him sentencing considerations in a child pornography case, and that included him waiving his motion to suppress. He knew what he was doing, and the denial of the motion to withdraw the plea is affirmed, and his client. State v. Stocking, 131 Conn. App. 81, 26 A.3d 117 (2011).*

Officer’s mistake of law as to where temporary paper tag should be located in the back window did not justify extending the stop. Once it could be read, the driver should have been allowed to go on his way. United States v. Estrada-Ayala, 2011 U.S. Dist. LEXIS 104411 (D. Kan. September 14, 2011).*

[Univ.] Central Florida Future: Senior at UCF sues the DCF, Gov. Scott / ACLU helps student fight state drug testing by Laura Newberry:

A UCF student is the first to challenge legislation passed by the Rick Scott administration that requires welfare beneficiaries to be drug tested before they can qualify for monetary aid.

The American Civil Liberties Union is suing the Department of Children and Families on behalf of UCF senior accounting major Luis Lebron. The ACLU hopes the case will stop the law from being enforced on the grounds that it violates the Fourth Amendment.

Lebron, a Navy veteran who has sole custody of his 4-year-old son and cares for his disabled mother, was seeking welfare benefits when the legislation was passed.

ACLU gets TRO against Linn College all-student drug testing program on The Weed Blog: ACLU Blocks Missouri College From Drug Testing Students:

A Missouri technical college’s plan to force incoming students to undergo suspicionless drug testing is on hold after the ACLU of Eastern Missouri successfully sought a temporary injunction in federal court in St. Louis Wednesday. With assistance from Students for Sensible Drug Policy, the group has filed a lawsuit on behalf of six Linn State Technical College students to challenge the constitutionality of the drug tests.

A pharmacy had a contract with an Indian tribe and operated on tribal lands. An investigation was opened for selling some drugs without a proper prescription, and its dumpster was searched. A search warrant for patient records was obtained, and the court found that the pharmacy lacked an expectation of privacy in the records. With no standing, the Franks claim was moot and did not have to be decided, citing United States v. Mastromatteo, 538 F.3d 535, 544 (6th Cir. 2008). United States v. Williams, 2011 U.S. Dist. LEXIS 104295 (W.D. Okla. September 14, 2011).*

Defendant could be arrested for no driver’s license under Missouri law. His admission that there was a meth pipe in the car was probable cause to search it under the automobile exception. United States v. Brown, 2011 U.S. Dist. LEXIS 104187 (W.D. Mo. August 24, 2011).*

“[P]etitioner has not demonstrated that [defense counsel] failed to file a meritorious claim. Any motion to suppress evidence based upon a lack of probable cause would have been frivolous.” Mitchell v. United States, 2011 U.S. Dist. LEXIS 104027 (W.D. Wash. August 3, 2011).*

Officers entered defendant’s house on exigency, and then reentered allegedly by consent. However, “[t]he inconsistencies in the record and evidence presented support a finding, based on the totality of the circumstances, that the government has failed to meet its burden to show that it obtained valid consent to re-enter and search the house in which the firearm was seized, and the Defendant's Motion to Suppress is granted with respect to the firearm.” United States v. Drake, 2011 U.S. Dist. LEXIS 103640 (D. S.C. September 13, 2011).*

Whether the search warrant was valid in this case was moot because it was valid as a parole search in any event. United States v. Crutchfield, 444 Fed. Appx. 526 (3d Cir. 2011).*

The officer here testified that defendant refused consent, but it was not found to be error. It was offered by the government to show why they got a search warrant and wasn’t error [what BS], but it was harmless considering the overwhelming evidence in the case. United States v. Williams, 444 Fed. Appx. 535 (3d Cir. 2011).*

WyomingNews.com: Police take first forced blood draw by Lindsey Erin Kroskob:

Five Cheyenne officers held down a 24-year-old man to obtain a sample after he was spotted driving erratically and refused to comply with a search warrant.

This litigation will be interesting: Holding a man down to draw blood against his will. Reasonable or not?

Defendant was arrested at a casino in Tunica Mississippi by U.S. Marshals on a warrant out of Arizona. They asked the casino about removing his car from the parking lot, and they concurred, so the inventory of the car was valid. The inventory produced a computer, and defendant was known by police to be involved in child pornography so a warrant was obtained for his computer which was [tenuously at best] found to be issued on probable cause. United States v. Vernon, 2011 U.S. Dist. LEXIS 103712 (N.D. Miss. September 14, 2011).*

Defendant’s running a stop sign in a national park was cause for a stop, and it led to probable cause to believe defendant was impaired. United States v. Hamblin, 2011 U.S. Dist. LEXIS 103367 (E.D. Cal. September 12, 2011).*

Defendant’s claim in his 2255 that defense counsel was ineffective for not calling him as a witness at this suppression hearing to rebut the officer was rejected. Defense counsel challenged the witnesses’s credibility, and defendant’s testimony was only cumulative. Liberal v. United States, 2011 U.S. Dist. LEXIS 103526 (S.D. Fla. June 7, 2011).*

Defendant rode a bicycle into the path of a car forcing the car to stop, and the officer stopped him to see if he was impaired. When defendant was stopped, he threw the bicycle at the officer and ran away, dropping an amber pill bottle in flight. The stop was valid. State v. Abraham, 395 S.C. 645, 720 S.E.2d 491 (2011).*

Defendant’s consent to search her house was found voluntary. She was Mirandized and the consent form was explained to her. United States v. Thompson, 2011 U.S. Dist. LEXIS 103471 (S.D. Fla. September 13, 2011), R&R 2011 U.S. Dist. LEXIS 103484 (S.D. Fla. February 26, 2011).*

Defendant’s mother had common authority over the room searched, and both of them consented. United States v. Marsden, 2011 U.S. Dist. LEXIS 103249 (D. Vt. September 12, 2011).*

Protective sweep of a locked room was permissible. United States v. Hoskins, 2011 U.S. Dist. LEXIS 103445 (E.D. Mich. September 13, 2011):

The government responds that despite the remote possibility that someone may have been inside Defendant's room, it was not impossible. Locking a person into a room is a repeated phenomena in the annals of criminal law. E.g. United States v. Sanford, 2009 WL 2197373, *1 (M.D. Ala. 2009) (Informant observed that drug dealer kept a woman locked in a room in the house where the dealer lived and sold drugs); United States v. Juarado-Lopez, 338 F. Supp. 2d 246, 253 (D. Mass. 2004) (Drug “mule” was locked in a room and forced to insert packages into her body cavities); McWhorter v. United States, 281 F. 119, 120 (6th Cir. 1922) (Two people locked in a room and regularly given narcotics). It was therefore appropriate for the officers to open the lock on the door and enter Defendant’s room to ensure that the room was “clear” of any person who might threaten the safety of others present or otherwise be engaged in criminal conduct. That conduct could well include destroying evidence by a variety of means, including by consuming it. There is nothing to suggest that the items subsequently seized from Defendant's room were observed during the protective sweep, and these items were not used to demonstrate probable cause in the affidavit for the search warrant. ... Defendant's motion to suppress the evidence that was seized from his room will be denied.

Officers came in three cars to conduct a knock and talk about stolen firearms. Outside defendant’s house, they conducted a patdown and had consent to search his vehicle. The search of his garage was permissible as a protective sweep because of recently fired shell casings outside the garage and defendant’s ambiguous comment that somebody else might be inside. United States v. Cunnagin, 2011 U.S. Dist. LEXIS 103504 (E.D. Ky. September 13, 2011).*

Officers who entered plaintiffs’ house and took custody of children were not violating clearly established law when they did so, so they get qualified immunity. Loudermilk v. Danner, 449 Fed. Appx. 693 (9th Cir. 2011) (unpublished)*:

... Under this court's clearly established law, a reasonable police officer would not have known that it was coercive to explain that taking temporary custody of the Loudermilks' children under Arizona law was a "viable option," given that (1) the MCSO Officers had reason to believe probable cause existed to take custody of the children under Ariz. Rev. Stat. § 8-821, and (2) the condition of the home was consistent with the anonymous tip which alleged the home construction was incomplete and had exposed wiring dangerous to children. ...

If defendant were a passive mere passenger in a car, they officers would not have had reasonable suspicion for him. Here, however, they had furtive movements and that was sufficient. United States v. Rollins, 2011 U.S. Dist. LEXIS 103331 (M.D. Fla. September 13, 2011).*

Two controlled buys 33 and 25 days before the issuance of the search warrant showed that it was not stale. There was an ongoing drug operation. United States v. Johnson, 2011 U.S. Dist. LEXIS 102396 (N.D. Iowa September 12, 2011).*

The officer had reasonable suspicion to prolong a stop of a rental car where the paperwork did not match the vehicle, and it also appeared bogus, having been printed off the internet. United States v. Carrasco-Sanchez, 816 F. Supp. 2d 335 (S.D. Miss. 2011).*

In a tax dispute where the government served interrogatories, the taxpayer’s Fourth Amendment defense to answering interrogatories was frivolous. United States v. Panarelli, 2011 U.S. Dist. LEXIS 102503, 108 A.F.T.R.2d (RIA) 5691 (N.D. Ga. June 14, 2011).*

Plaintiff raised a genuine issue of fact on qualified immunity on whether a city code enforcement officer violated curtilage in inspection of plaintiff’s property. Jacob v. Killian, 437 Fed. Appx. 460 (6th Cir. 2011).*

Running wants or warrants for a Terry stop for walking in the middle of the street at night was not unreasonable. A warrant led to an arrest and a gun. Grant of motion to suppress reversed. United States v. Burleson, 657 F.3d 1040 (10th Cir. 2011).*

A multitude of factors made reasonable suspicion to believe that an express mail package shipped from a potentially fictitious address in California shipped to a person at a hotel, intending to be transient, likely contained drugs. United States v. Huerta, 655 F.3d 806 (8th Cir. 2011).*

Wal-Mart called to tell police of men attempting to use counterfeit credit cards. When the officer arrived he found the men outside, and he stopped to question them. Only one had any ID, and it was a DL that belonged to somebody else. They pointed out the vehicle they were in, and the officer walked up to the vehicle and looked in the window. The two inside wouldn’t look at him, and inside the officer saw and “unusual number” of laptop computer boxes. Reasonable suspicion ripened into probable cause for arrest. United States v. Barry, 2011 U.S. Dist. LEXIS 102354 (M.D. Pa. September 12, 2011).*

A couple who were two professional poker players were searched in San Juan finding their “traveling bank” and winnings and records of travel and winnings for tax purposes. They were completely up-front about what they were doing. When they got to Atlanta to change planes flying to Las Vegas, where they obviously spent a lot of time, their $97,000 was seized by the DEA on an ostensibly false affidavit that they were involved in drugs even though there was no factual basis for such a claim whatsoever. Seven months after the money was seized it was finally returned after they refused to sign a release of liability for the government agents involved in the seizure. The DEA officer in ATL could be sued in Las Vegas, considering that most of his career there has been interdicting people he knows were passing through. This case was purely a jurisdiction issue since there clearly was a question for the jury on the officer's false statement in the affidavit for seizure of the cash. Fiore v. Walden, 657 F.3d 838 (9th Cir. 2011)*:

Walden seized all of the large amount of money Fiore and Gipson were carrying with them as they travelled from San Juan to Las Vegas via Atlanta. Although Fiore and Gipson sent Walden, from Nevada, documentation establishing the legitimate sources of their funds, he persisted in seeking forfeiture of their money. Walden’s intentional acts with regard to the false probable cause affidavit and the consequent delay in returning their money were expressly aimed at Nevada and so satisfy the requirements for personal jurisdiction. As to the search and seizure claim, we are remanding it to the district court for the exercise of discretion with regard to pendent personal jurisdiction. We also hold that venue is proper in the District of Nevada.

[I had a case like this once in pre-TSA times where the DEA officer lied in a search warrant affidavit for the traveler’s briefcase that it was drug money pointing out that he was sweating unusually (omitting that he weighed 350 lbs, it was 98º outside that day, and he told the officer he had congestive heart disease and literally carried a towel because he always sweat in the summer) and that he paid cash for his plane ticket (back then, the credit card was imprinted on the ticket and this was) to show probable cause. The guy showed the officer a withdrawal ticket showing that he took $160,000 out of a bank two hours before he was stopped. The client was a professional bookie from Las Vegas with a bank account here. We got the money back the next day after I sued in federal court. When the judge started asking questions at the hearing, the government offered it back, starting at 50-50. The client laughed in the AUSA's face. That was twenty years ago. The point being: What lengths will DEA agents go to seize cash? Apparently some are willing to lie under oath.]

While the police did, in fact, violate defendant’s Fourth Amendment rights by looking through a crack in the blinds through a window, the police would have obtained a search warrant anyway under inevitable discovery. United States v. Christy, 810 F. Supp. 2d 1219 (D. N.M. 2011), Motion granted by, 2011 U.S. Dist. LEXIS 127233 (D.N.M., Sept. 8, 2011):

Although the deputies’ presence in the area from which Littlefield looked into Christy’s residence window did not violate the Fourth Amendment, Littlefield’s act of peering into a small crack in the blinds constituted a search. The crack in the blinds was a little longer than half the length of the blinds, and the height of the crack was approximately an inch or less. “The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’” California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967)(Harlan, J., concurring)). Courts generally “determine whether a person has a constitutionally protected expectation of privacy by making two inquiries: first has the person exhibited a subjective expectation of privacy in the place or thing searched? Second, is the person’s expectation of privacy one that society is prepared to recognize as reasonable?” United States v. Hatfield, 333 F.3d at 1195. The “prototypical ... area of protected privacy” is the interior of a residence. Kyllo v. United States, 533 U.S. 57, 35 (2001).

Probation officers with sheriff’s deputies searched defendant’s workplace and his adjoining apartment in excess of his probation condition. The government’s motion to reconsider is denied. United States v. Garcia, 2011 U.S. Dist. LEXIS 100499 (W.D. Wash. September 6, 2011).*

The officer told defendant to remove his hands from his pockets, and bags of drugs fell out. The directive was without reasonable suspicion, and the drugs are suppressed. People v Pinckney, 2011 NY Slip Op 51649, 2011 N.Y. Misc. LEXIS 4294 (Bronx Co. September 9, 2011).*

Defendant was subjected to a patdown because of his furtive movements and being known to always carry a gun, and the officer felt what clearly was a meth pipe. The search of the car was valid as a search incident or under the automobile exception. United States v. Chavez, 2011 U.S. Dist. LEXIS 100855 (W.D. Mo. August 25, 2011).*

Just because defendant used fictitious names to set up cell phone accounts did not ipso facto deprive him of standing to contest a seizure and search of the phones. They were seized at the time of arrest, and they were lawfully searched. United States v. Moncur, 2011 U.S. Dist. LEXIS 101475 (S.D. Fla. July 28, 2011)*; United States v. Martin, 2011 U.S. Dist. LEXIS 101536 (S.D. Fla. July 28, 2011).*

Answering a telephone call during execution of a search warrant is permissible if the use of a telephone is related to the crime. Here, the affidavit for the search warrant related to use of telephones, so it was not improper to answer the phone. Here, the call was from the codefendant in jail. United States v. Greene, 2011 U.S. Dist. LEXIS 101235 (D. Alaska September 7, 2011):

Greene argues that Dectective Adair was not authorized to answer the phone during the execution of the search warrant. Indeed, the Search Warrant does not explicitly allow the officers to answer any incoming phone calls. Explicit authority to answer phone calls is not necessarily required, however, as long as the calls are reasonably related to the purpose of the search. In United States v. Gallo, 659 F.2d 110 (9th Cir. 1981), the Ninth Circuit held that it was proper when the searching agents answered telephone calls while executing a search warrant related to a suspected illegal gambling business. In that case, the warrant did not specifically authorize the agents to intercept incoming phone calls, but the Ninth Circuit concluded that the interceptions were nonetheless valid because the telephone was a highly necessary accessory to the suspected illegal business and thus any incoming phone call would have been reasonably related to the purposes of the search and would have constituted evidence of such a crime. Id. at 114. In United States v. Ordonez, 722 F.2d 530 (9th Cir. 1983), amended on other grounds by 737 F.2d 793 (9th Cir. 1984), the Ninth Circuit again held that the officers' interception of incoming phone calls during the execution of a search warrant, while not specifically authorized by the search warrant, was nonetheless reasonable and within the scope of a warrant when the warrant made clear that the telephone was highly necessary to an unlawful drug organization operating out of a private residence. Id. at 541-42. Based on these two cases, agents can intercept telephone calls when legitimately searching pursuant to a warrant if the calls are within the apparent scope of the warrant.

In this case, phone calls are discussed and contemplated as part of the business in the search warrant application. The affidavit supporting the search warrant details phone numbers that were used as part of the suspected prostitution business. It describes various internet advertisements and how Greene's phone numbers were the listed numbers on those advertisements. The Search Warrant also describes the various recorded phone conversations that took place between Greene and Mujahid while Mujahid was in jail where the two men allegedly discuss prostitutes and the prostitution business. Based on this information in the warrant, incoming phone calls are reasonably within the scope of the warrant. The items authorized for seizure on Attachment B were not exclusive lists, as the various paragraphs in Attachement B include the language "including but not limited to" before detailing the specific items authorized for seizure. The agents were authorized to seize evidence related to the suspected prostitution business and based on the affidavit, phone calls were a necessary part of running such a business. Phone calls were also being used by the men, according to the affidavit, to continue to manage the business while Mujahid was in jail. Thus, this Court finds that Detective Adair was not outside the scope of the warrant when he intercepted the phone call from Evercom on March 26, 2009 and heard that Mujahid was calling Greene's phone.

Defendant passenger in a car was not in custody or subjected to a show of force when she consented to a search of her purse. The driver had been arrested, and the passenger was going to be let go. The officer suggested she call for a ride, but she couldn’t raise friends. He asked if she could walk and she said she could. Then the officer asked for consent and got it finding drugs in her purse. She was free to go, but consented. State v. Dudley, 245 Ore. App. 301, 263 P.3d 1054 (2011), on remand from State v. Dudley, 349 Ore. 663, 249 P.3d 1281 (2011).

Defendant’s stop was valid, and a drug dog was a minute away. The delay in getting the dog there was not unreasonable. Defendant was an unauthorized driver of the rental car, and he lacked standing to challenge the search. United States v. Jefferson, 2011 U.S. Dist. LEXIS 100742 (S.D. Fla. September 8, 2011), R&R 2010 U.S. Dist. LEXIS 143674 (S.D. Fla. December 19, 2010).

Pretrial detainee’s excessive force claim is governed by the Fourth Amendment. Bryson v. Okla. County ex rel. Okla. County Det. Ctr., 2011 OK CIV APP 98, 261 P.3d 627 (2011).*

Defendant stored a closed black bag at the house of another, and he showed a reasonable expectation of privacy in it. The investigation was for racketeering, and the warrant [somehow] limited officers to searching for evidence of that: “Thus, in this case, the search warrants on their face limit the agents to seizing evidence of racketeering related to commercial sex acts and prostitution. It so happens that evidence of this type of crime is broad-reaching but that does not mean the warrant lacks particularity. The specific items of evidence authorized for seizure are not vague, especially given the nature of the investigation and the type of evidence that would be involved.” Electronic devices were sought, too, and they were shown to be instrumentalities of the crime. United States v. Mujahid, 2011 U.S. Dist. LEXIS 101239 (D. Alaska September 7, 2011)*:

Nothing in the record demonstrates that the agents in fact observed and seized evidence from the computers and storage devices that was outside the scope of the warrant upon their initial search. Even if they had, that does not require the Court to suppress all evidence obtained from the search of Greene's home or his computers, just those items outside the scope. Tamura, 694 F.2d at 597. And, in this case, the Court does not have anything on the record to delineate what specific evidence was taken from the computers outside of the scope of the warrant. A general assertion that all tax documents should be suppressed is not specific enough, given the record shows some tax documents were seized in paper form and given that nothing on the record demonstrates what documents were alleged to have been seized from the computers. Thus, even if the Court thought the search was too broad and resulted in seizure of items outside of the scope of the warrant, which it does not, it could not issue a blanket ruling that all tax evidence needs to be suppressed. The Court would need more specific information.

WaPo: Supreme Court is asked about jails’ blanket strip-search policies by Robert Barnes on the Florence case:

NEWARK — Almost everyone can agree that what happened to Albert Florence in 2005 sounds shocking.

A New Jersey state trooper pulled over their car as Florence and his family were on their way to his mother-in-law’s to celebrate their new home. He was handcuffed and arrested in front of his distraught, pregnant wife and young son.

He spent seven days in jail because of a warrant that said, mistakenly, he was wanted for failure to pay a court fine. In fact, he carried proof that the fine had been paid years earlier.

And he was strip-searched twice, the humiliation that he says most remains with him six years later.

HuffPo: A Decade After 9/11, Police Departments Are Increasingly Militarized by Radley Balko:

New York magazine reported some telling figures last month on how delayed-notice search warrants -- also known as "sneak-and-peek" warrants -- have been used in recent years. Though passed with the PATRIOT Act and justified as a much-needed weapon in the war on terrorism, the sneak-and-peek was used in a terror investigation just 15 times between 2006 and 2009. In drug investigations, however, it was used more than 1,600 times during the same period.

It's a familiar storyline. In the 10 years since the terror attacks of September 11, 2001, the government has claimed a number of new policing powers in the name of protecting the country from terrorism, often at the expense of civil liberties. But once claimed, those powers are overwhelmingly used in the war on drugs. Nowhere is this more clear than in the continuing militarization of America's police departments.

Even though the issue is pending in the Ohio Supreme Court and the U.S. Supreme Court, the Ohio Court of Appeals for the Fifth District holds that a warrant is required for GPS installation on a vehicle. State v. White, 2011 Ohio 4526, 2011 Ohio App. LEXIS 3742 (5th Dist. September 1, 2011).

Officers were conducting knock-and-talks about grow houses, and at defendant’s girlfriend’s place he and the girlfriend consented to an entry and a search, but he expressly disclaimed any control over the garage or knowledge of who was coming and going from it. His disclaimer was a waiver of any reasonable expectation of privacy in the garage. After a grow operation was found there, a key to the garage was found on defendant. Peraza v. State, 69 So. 3d 338, 36 Fla. L. Weekly D 1988 (Fla. 4th DCA 2011).*

The evidence showed that defendant’s conversation with the officer was consensual, but he was stopped coming out from behind a house that was not his and he had no connection to. When defendant admitted that he had a knife on him, it was permissible for the officer to conduct a patdown. Oglesby v. State, 311 Ga. App. 615, 716 S.E.2d 742 (2011).*

School officials get qualified immunity for a strip search for drugs that occurred before Safford was decided. V.W. v. DaVinci Academy of Science, 2011 U.S. Dist. LEXIS 101529 (D. Utah September 8, 2011).*

The officer stopped defendant on suspicion of DUI for seriously weaving and almost going into the ditch. However, the two minute video of defendant’s driving in evidence did not show defendant crossing any lines or almost going into the ditch, and that’s all the evidence the court had, so the stop was without reasonable suspicion. State v. Dexter, 2011 Iowa App. LEXIS 915 (September 8, 2011)*:

In our case we have nothing more than the videotape of Dexter's driving to supply reasonable suspicion. Without the officer's testimony to provide context, we are unable to draw inferences from the early morning hour or the other conditions present at the time of the stop. Based solely on the videotape, we find the intra-lane weaving, without more, insufficient to raise reasonable suspicion.

Defendant was a high school senior accused of sex with a minor. The school issued a planner to all students which they all were to keep. He left his in the library visible to all when he went to the bathroom. On the cover was a marker drawing of a penis and testicles which the librarian found objectionable in public. It was confiscated. Inside was a list of girls and apparently the name of the girl he was accused of having sex with was on the list. The planner was not illegally seized and searched under T.L.O. State v. Benjegerdes, 2011 Iowa App. LEXIS 883 (September 8, 2011).*

Defendant’s stop was justified for failing to signal, and that led to a DUI arrest. State v. Whitson, 2011 Iowa App. LEXIS 895 (September 8, 2011).*

Defendant was a house guest of another and he validly consented to a search of the premises, which was used against him at trial. His defense that he could not consent as to himself was rejected. State v. Bennett, 2011 Iowa App. LEXIS 887 (September 8, 2011).*

Request for an order for a DNA swab from the defendant to attempt to connect him to two guns found in a house that he exited just before the police were directed to the guns was denied. There was enough genetic material on the guns to attempt to connect them to somebody, but there was no “clear indication” it would connect defendant to them under Matter of Abe A. Defendant dropped marijuana when he came out as it was. People v Washington, 2011 NY Slip Op 21311, 33 Misc. 3d 640, 929 N.Y.S.2d 432 (Crim.Ct. Kings Co. 2011):

In delineating the Fourth Amendment safeguards afforded the defendant in the case before it, this court adheres to the principle that a formal charge for commission of a crime is not a prerequisite to making the defendant available for DNA oral swabbing. As the Court stated in Matter of Abe A., “[w]e can find no case in which a court of general jurisdiction has been held to be without power to authorize a seizure or a search until a suspect is arrested and actually charged with a crime (cf. Zurcher v. Standford Daily, 436 U.S. 547 ...).: Id. at 296.

Charged with a crime or not, probable cause is one pivotal factor that spearheads a court's determination to acquiesce defendant's constitutional right to be free of bodily intrusion when delicately balanced against circumstances the People insist call for intrusion of the defendant's body to provide DNA samples.

The court order for historical cell site location information (CSLI) as opposed to real time CSLI was not valid for lack of a proper showing, but it was still admissible because there is no exclusionary rule in Florida for violation of the statute. Tracey v. State, 69 So. 3d 992 (Fla. 4th DCA 2011), reh'g denied 2011 Fla. App. LEXIS 16332 (Fla. Dist. Ct. App. 4th Dist., Oct. 14, 2011):

We need not decide in this case whether prospective CSLI is subject to a probable cause requirement, because the state failed to meet even the less stringent standard required by section 934.23(5)—the application failed to offer “specific and articulable facts” to show that CSLI was “relevant and material to an ongoing criminal investigation.” In fact, the application did not even seek a court order for CSLI, only a pen register and a trap and trace. The application merely stated that a “Confidential Source (CS) indicated that [Tracey] obtains multiple kilograms of cocaine from Broward County for distribution on the West Coast of Florida” and that the “CS contacts” Tracey at a certain phone number. As Tracey notes in his brief, this vague language “does not explain the origin of the informant’s information; whether it was based on first-hand knowledge or was merely hearsay obtained from some other source; when [Tracey] was supposed to have last engaged in the alleged criminal conduct; when he was supposed to again engage in the alleged criminal conduct; or how the cell phone was involved in the transactions.” The statement in no way demonstrated how the confidential source was reliable. See generally State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001); Dozier v. State, 766 So. 2d 1105 (Fla. 2d DCA 2000).

To say that the state violated section 934.23 in obtaining real time CSLI does not mean that an exclusionary rule applies to prevent the state from using any “evidence derived” from the violation. § 934.06, Fla. Stat. (2009). Under federal law, suppression of evidence is not a remedy for violations of the ECPA. See United States v. Forest, 355 F.3d at 949; United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998); United States v. Navas, 640 F. Supp. 2d 256, 262-63 (S.D.N.Y. 2009), reversed on other grounds, 597 F.3d 492 (2d Cir. 2010). “[T]he Stored Communications Act expressly rules out exclusion as a remedy; § 2708, entitled ‘Exclusivity of Remedies,’ states specifically that § 2707's civil cause of action and § 2701(b)’s criminal penalties ‘are the only judicial remedies and sanctions for violations of’ the Stored Communications Act. 18 U.S.C. § 2708.” Smith, 155 F.3d at 1056 (emphasis in original).

Similarly, under Florida law, the exclusionary rule is not a remedy for violations of section 934.23. Section 934.28, Florida Statutes (2009) provides:

The remedies and sanctions described in ss. 934.21-934.27 are the only judicial remedies and sanctions for violation of those sections.

The criminal penalties of section 934.21 and the civil remedy provided in section 934.27 are the only remedies authorized for a violation of section 934.23. Application of the exclusionary rule is not an option authorized by the statute.

A small quantity of marijuana in the passenger compartment is not reason to search the trunk. More is required. Here, defendant’s actions provided it. State v. Griffith, 2011 Ohio 4476, 2011 Ohio App. LEXIS 3708 (2d Dist. September 2, 2011):

[*P20] The Fourth Amendment limits searches to places where evidence of criminal activity is likely to be found. Farris stands for the proposition that the odor of burnt marijuana in a vehicle's passenger compartment, standing alone, doesn’t present a likelihood that the vehicle's trunk contains marijuana. The point of distinction is whether the character or nature of drugs found “in plain view” (or smell) in the passenger compartment presents a likelihood that the vehicle’s trunk contains drugs or other contraband, such that a search of the trunk is justified by the automobile exception to the warrant requirement.

[*P21] In Farris, “[n]o other factors justifying a search beyond the passenger compartment were present.” Farris identified one of those other potential factors to include “contraband within the passenger compartment.” That precise factor was present here. In addition, the officer first saw Defendant in a parking lot which, in the officer’s experience, has seen “an increase in drug activity." (T. 9). Coupled with that, Defendant's pattern of driving after he saw the officer was evasive, possibly suggesting that he had reason to avoid contact with the officer. California v. Hodari D. (1991) ....

HuffPo: A Decade After 9/11: Time to Choose to be America Again? by Robin Koerner:

Since 9-11, it seems that the American Left and the American Right have agreed on something of profound importance: we're scared.

The politics of the last decade have been the politics of fear.

...

A few years ago, a friend of mine returned from a tour in Iraq as a proud American soldier to be required at Seattle airport to remove his shoes and equipment and be screened in the full fashion. The treatment shocked him as it was his first encounter with it and gave the lie to what he believed was his purpose a day earlier on the streets of Baghdad. Simply, how could he have been fighting over there to protect American liberties and values if they were being compromised away with so little fight at home?

The rest of us might ask how we so easily take away the fourth amendment right of that soldier, who a day earlier had put his life on the line for our fourth amendment (and other) right(s). ...

Las Vegas ATF received information from The Gun Store [the one that advertizes it has a machine gun range on taxicabs] that defendant had bought a bunch of assault rifles with cash on a Sunday, and that the store tried to call ATF about the purchase as a “suspicious transaction” on Sunday but couldn’t raise anybody. They gave their surveillance video and paperwork on defendant. A couple of days later, they had a call that defendant was inquiring at another store about buying a 50 caliber Special Forces-type sniper rifle for $10,000 in cash. The purchase didn’t happen, but defendant was on the phone with somebody while looking at the gun, a fact indicative of a straw purchase. Then he showed at another store which called ATF about a suspicious transaction in the offing, and they stalled him until ATF arrived, and defendant was stopped in the parking lot. Defendant was detained on suspicion of being a straw purchaser to ship guns to Mexican drug cartels. He consented to a search of his car. That a reasonable explanation might exist does not negate reasonable suspicion. United States v. Carranza, 2011 U.S. Dist. LEXIS 100951 (D. Nev. August 5, 2011),* motion granted on remand from district judge United States v. Carranza, 2011 U.S. Dist. LEXIS 151259 (D. Nev. October 28, 2011) (no reasonable suspicion for a stop under Nevada law and presence in a high crime area alone not reasonable suspicion).

The government argued lack of standing because defendant did not live, pay rent, or seemingly ever spend the night at the residence searched; however, his car was in the garage and his driver’s license was found in a shoe in the residence. This would indicate standing. Nevertheless, the searches were valid so standing does not have to be decided. The officers had a warrant for defendant, and they were told he was inside. United States v. Griffin, 2011 U.S. Dist. LEXIS 101180 (E.D. Tex. August 5, 2011).*

Consent to enter after a knock-and-talk in Spanish was granted, but the search was found not by consent. It was not disputed that backup was called to the house via dispatch 17 minutes before the consent to search was signed. United States v. Cruz-Mejia, 2011 U.S. Dist. LEXIS 100947 (D. Ariz. July 5, 2011)*:

The transcript then reflects several time entries related to each communication with dispatch. On page 5, the transcript reflects a time entry of “13:43,” or 1:43 p.m., followed by a request for “a third unit” at Cruz-Mejia’s address. (Id. at 5.) Thus, based on the testimony of Sergeant Esquivel and Officer Pina, when that call for back-up was made, the search was about to begin, was ongoing, or had been completed. However, the communication occurred 17 minutes prior to 2:00 p.m., the time when Mexley Martinez signed the consent form. This timeline was not rebutted in any way by the Government and is entirely consistent with Martinez's claim that she signed the consent form only because the officers had already conducted the search and found all the weapons and she thought, “why not sign it.” (TR2 92-93.) Thus, the search was performed without consent.

Officers were on the lookout for a Crown Victoria with a particularly LPN suspected of selling drugs at an apartment complex. When the vehicle showed up again a citizen informant called the police to tell them that it was back, and that was reasonable suspicion for defendant’s stop within five minutes of the call in the apartment complex. The citizen informant’s tip was entitled to more credibility. United States v. Cornielius, 2011 U.S. Dist. LEXIS 100884 (E.D. Tenn. July 26, 2011).*

The child pornography search warrant in this case was not stale just because the information was about six months old since child pornography is likely to be kept. There is no bright-line rule with child pornography. United States v. Muñoz, 2011 U.S. Dist. LEXIS 100836 (D. Minn. July 5, 2011).*

NYT: Civil Liberties Today by Adam Liptik:

Criminal law changed surprisingly little after the attacks. How law was enforced is another matter

------

There is a place for alarmism when threats to civil liberties are concerned. Too much worry about our freedoms is better than too little, particularly in the face of a government shrouded in wartime secrecy after the Sept. 11 attacks.

But there is also a place, a decade later, for sober reflection. By historic standards, the domestic legal response to 9/11 gave rise to civil liberties tremors, not earthquakes. And even those changes were largely a result of reordered law enforcement priorities rather than fundamental shifts in the law.

Consider the USA Patriot Act, which was short for this Orwellian mouthful: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The law, more than 300 pages long, sailed through Congress seven weeks after the attacks with scant dissent. It quickly became a sort of shorthand for government abuse and overreaching.

The Patriot Act undeniably expanded the government’s surveillance powers and the scope of some criminal laws. But this was, in truth, tinkering at the margins and nothing compared with the responses of other developed democracies, where preventive detention and limitations on subversive speech became commonplace.

Defendant’s tractor trailer was first subjected to a dog sniff a border crossing. When the dog alerted, they x-rayed the cab of the truck with a backscatter device, revealing probable packages of drugs, which were found. When the defendants were arrested, they were relieved of their property, and a cell phone was taken from one. The phone was searched while he was locked up, and pictures of the marijuana were found on the phone. The search incident of the cell phone was valid under Fifth Circuit precedent. [The cell phone was not discussed as being searched under the border exception.] United States v. Rodriguez, 2011 U.S. Dist. LEXIS 100433 (S.D. Tex. September 6, 2011).*

Defendant’s car made a u-turn just before a border checkpoint in Texas. The car didn’t belong to any of the locals. When stopped by the Border Patrol the passengers and their backpack looked like they’d been walking in the brush. The stop was with reasonable suspicion and ripened as the facts became known. United States v. Gamez, 2011 U.S. Dist. LEXIS 100307 (S.D. Tex. September 6, 2011).*

Defendant’s sister clearly was trying to aid law enforcement in arresting defendant, but she did it all on her own without any direction from law enforcement, so she was not an agent of the police. United States v. Strange, 2011 U.S. Dist. LEXIS 100247 (W.D. Mo. April 26, 2011).*

Presence in a high crime area is not itself reasonable suspicion. Defendant’s flight on seeing officers was not reasonable suspicion in itself, and defendant’s stop was properly suppressed. People v. Harris, 2011 IL App (1st) 103382, 354 Ill. Dec. 336, 957 N.E.2d 930 (2011).*

Defendant’s wife was on probation, and he left a safe open and unlocked in their bedroom. The probation officer came for a probation search, and the search of the safe was valid because it was unlocked, meaning that his wife would have had access to it if she were home. State v. Finley, 2011 MT 218, 362 Mont. 35, 260 P.3d 175 (2011).*

A person at a rapid transit station told police her phone was stolen, and she identified three men as possibly being the one. The officer approached defendant to ask him, and he was agitated, but emptying his pockets. In the process, his shirt came up and the officer could see a gun which he had to struggle with the defendant to remove. The encounter with the defendant was consensual up to that point when reasonable suspicion developed upon seeing the gun. United States v. Ali, 437 Fed. Appx. 439 (6th Cir. 2011).*

Defendant was stopped on suspicion of having an underage prostitute in the car. When she could not produce an ID, the officer searched the car for her ID, and that was an invalid search. United States v. Rodgers, 656 F.3d 1023 (9th Cir. 2011):

Passenger and vehicle searches have played a prominent role in Fourth Amendment jurisprudence. The Supreme Court has consistently held that probable cause is necessary to conduct a warrantless search of a vehicle. See Carroll v. United States, 267 U.S. 132, 160-62, 45 S. Ct. 280, 69 L. Ed. 543, T.D. 3686 (1925); California v. Carney, 471 U.S. 386, 390, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985). In recent years, the Court has clarified that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” the search may extend to any area where evidence might be found. See Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 1721, 173 L. Ed. 2d 485 (2009) (citing United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)). In addition, when an arrest is made, a warrantless search is permitted “if the arrestee is within reaching distance of the passenger compartment ... or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723. But the Court has never sanctioned a vehicle search simply because there was probable cause to arrest a passenger or because a passenger could not provide identification. The Fourth Amendment requires more.

“The fact that an informant who admitted dealing drugs had pled guilty to drug charges in federal court was not critical to a finding of probable cause.” Therefore, no Franks violation. United States v. Amaya, 2011 U.S. Dist. LEXIS 99617 (N.D. Iowa September 6, 2011), R&R 2011 U.S. Dist. LEXIS 99702 (N.D. Iowa August 8, 2011).*

NTYimes: Court Case Asks if ‘Big Brother’ Is Spelled GPS by Adam Liptik:

The precedent is novel. More precisely, the precedent is a novel.

In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell’s “1984” to sound an alarm. They say the Fourth Amendment’s promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

I did a Westlaw search, and “Orwellian” appears in 531 cases.

Defendant lived in an apartment in a public housing complex, and the police came allegedly to investigate the possession of a dog without having paid a pet deposit. The police came in, saw the dog, and allegedly noticed ammunition in the kitchen in plain view. Suspecting that the ammunition might be related to a recent homicide, they called in but found that ammunition was not the same caliber. The finding of ammunition led them to asking about a gun, which defendant at first denied, then they found one in a mattress box springs. Defendant was charged with being a felon in possession. The dog complaint was found to be a pretext for the entry to investigate defendant’s alleged connection to a murder, and the consent was not valid because defendant would not have been free to leave. The officers did nothing to investigate the dog complaint. United States v. Joshua, 2011 U.S. Dist. LEXIS 99676 (M.D. La. September 6, 2011):

The Court also received conflicting testimony from the officers and Ms. Davis as to the length of the time that the officers remained in Ms. Davis' apartment. Officer Taylor estimated that the total length of encounter was 20 to 25 minutes. Similarly, Corporal Freeman estimated the time period as ranging from 15 to 20 minutes. Ms. Davis, however, testified that the officers remained at the apartment for 45 minutes to an hour. Regardless of the actual length of the time that the police remained in the apartment, on cross-examination, Lieutenant Lee testified that the length of time that the officers spent in speaking to Ms. Davis about the dog was much shorter than the period of time that they questioned the defendant about the ammunition and the possible presence of a gun. The incommensurate amount of time which the police spent addressing the matter for which they were allegedly dispatched leads the Court to conclude that the pet deposit investigation was merely a pretext for the more serious search for evidence of a homicide.

Video surveillance of defendant’s yard from a camera placed on a utility pole where the recordings were watched for hours a day did not violate defendant’s Fourth Amendment rights or any reasonable expectation of privacy because the fence could be seen through. United States v. Anderson-Bagshaw, 2011 U.S. Dist. LEXIS 100000 (N.D. Ohio September 6, 2011):

The video evidence obtained here did not violate Defendant Bagshaw’s Fourth Amendment rights. First, the Defendant did not manifest any subjective expectation of privacy. Where defendants have taken steps to create a private zone within the curtilage of a residence, courts are willing to deem utility-pole surveillance a search within the meaning of the Fourth Amendment. United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) (defendants manifested a subjective expectation of privacy by erecting a ten-foot-high metal fence). Here, however, the backyard of the Bagshaw residence was entirely open to observation from adjacent properties, and the wire-mesh alpaca fence neither hampered these views nor manifests any subjective expectation of privacy.

Moreover, any subjective expectation of privacy Defendant Bagshaw may have had in her open backyard would have been unreasonable. The Supreme Court has expressly rejected an invitation to create “a rule of constitutional dimensions” that backyard conduct “will not be observed by a passing aircraft-or by a power company repair mechanic on a pole overlooking the yard.” California v. Ciraolo, 476 U.S. 207, 214, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). Those are precisely the circumstances presented here, where the view afforded by the United States’ surveillance camera is identical to the view available to the power company’s employee responsible for installing it.

Defendant was arrested by an FBI task force where he looked like the person they wanted. That person was not at the house they went to, but a black man with facial hair was seen on the street, so he was stopped at gun point. Drugs were found on defendant’s person. The stop was unreasonable because: (1) his location was not related to criminal activity; (2) a task force member admitted that the identifying information was sometimes unreliable; and (3) the description of a “black man with facial hair” was too general. State v. Johnson, 293 Kan. 1, 259 P.3d 719 (2011).*

A stop for a civil traffic offense permits running wants or warrants and conducting a dog sniff within a reasonable time. Ward v. Commonwealth, 345 S.W.3d 249 (Ky. App. 2011)*:

In fact, Officer Mahan could ask the driver for his license and registration; request that the driver and passenger exit the vehicle; request that the occupants sit in the police cruiser; ask the driver about the purpose and destination of his travel; and run a computer check to determine whether there were any outstanding warrants for the vehicle’s occupants or whether the vehicle had been reported stolen. ... The officer could even conduct a dog sniff of the exterior of the vehicle during the traffic stop, as “dog sniffs are not considered searches that would implicate an Appellant’s Fourth Amendment rights,” provided “the detention itself was otherwise [] reasonable.” ...

ACLU: Pass a Drug Test Before You Can Pass a Class:

This week, a college in Missouri broke the law and violated the Fourth Amendment rights of its students. Linn State Technical College became the first public institution of higher learning to implement mandatory drug testing of all new students, as well as those returning from extended leaves of absence.

What a way to welcome back the student body.

Keep in mind that we are talking about college students who have done nothing to arouse suspicion of drug use. In fact, the only thing they are guilty of is enrolling at Linn State. The ironic part is that the school has stated that they don’t believe they have a higher rate of drug use than students at any other college.

I installed a new server at work two months ago, and settings on all computers were erased and had to be reset. The computer with the template program for this website wasn't there, and it didn't get reset until last night because I've just been too busy with my day job. It is fixed today, as are the broken links in the state courts page.

I can edit the content, even from a cell phone, but the template requires a specific program, and I don't keep it on my main laptop because it has a solid state hard drive which is small to make the computer light.

Thus, even the cert grant in Jones wasn't put there until today. Sorry about that.

Defendant was ordered outside of a house to talk to the police, and that was a seizure under the totality of the circumstances. He dropped drugs and was arrested for that. His discarding the drugs was a product of the illegal detention. Jones v. State, 28 A.3d 1046 (Del. 2011):

Case law from other jurisdictions also is instructive. Given the “necessarily imprecise” standard for determining whether an individual has been seized,11 other courts have developed factors to consider when evaluating whether a police encounter amounts to a seizure. For example, in United States v. Mendenhall, the United States Supreme Court explained that four circumstances might indicate a seizure: (1) “the threatening presence of several officers,” (2) “the display of a weapon by an officer,” (3) “some physical touching of the person of the citizen,” or (4) “the use of language or tone of voice indicating that compliance with the officer's request might be compelled.”12

11 See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988).
12 United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (citing Terry, 392 U.S. at 19 n.16).

In United States v. Scheets, the Seventh Circuit considered the following six factors in its totality-of-the-circumstances analysis: (1) “whether the encounter occurred in a public or private place,” (2) “whether the suspect was informed that he was not under arrest and free to leave,” (3) “whether the suspect consented or refused to talk to the investigating officers,” (4) “whether the investigating officers removed the suspect to another area,” (5) “whether there was physical touching, display of weapons, or other threatening conduct,” and (6) “whether the suspect eventually departed the area without hindrance.”13

13 United States v. Scheets, 188 F.3d 829, 836-37 (7th Cir. 1999) (citing United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir. 1993)). See also United States v. Withers, 972 F.2d 837, 842 (7th Cir. 1992) (“The factors we consider in determining whether, in the totality of the circumstances, a reasonable person would believe she were free to leave include: whether the encounter occurred in a public or private place; whether the suspect consented or refused to talk to the police; whether the police informed the suspect that she was not under arrest and was free to leave; whether the police removed the suspect to another area; whether the suspect felt capable of refusing to consent to the search; and whether the suspect eventually departs the area without hindrance.”); State v. McGinnis, 290 Kan. 547, 233 P.3d 246, 252 (Kan. 2010) (considering a similar set of factors).

We adopt the Scheets factors here to channel the unavoidable discretion that is part and parcel of our totality of the circumstances inquiry. ...

The state material witness statute is different from the federal one, and the purpose is to get the subpoena served, not keep detaining the witness. Also, a witness should not be detained longer than a suspect who is subject to bail. In re Marshall, 2011 Iowa Sup. LEXIS 67 (September 2, 2011):

The State zealously argues that, as a matter of sound policy, it should have the authority to detain a material witness until the underlying trial is held. Iowa Code section 804.11, however, makes no mention of using detention to secure attendance at trial. It references unavailability for service of a subpoena. While the State offers policy reasons for an expansive interpretation of the statute, we have repeatedly said that “‘we are bound by what the legislature said, not by what it should or might have said.’”

Possession of a lighter by a student with a history of tobacco disciplinary issues at school justified a search, and the drugs found were admissible in a criminal prosecution. In re B. A. H., 245 Ore. App. 203 (2011).*

Because the search was justified on the facts and law, defense counsel could not be ineffective for not challenging it. State v. Grimes, 2011 Ohio 4406, 2011 Ohio App. LEXIS 3665 (8th Dist. September 1, 2011).*

NBC Miami: ACLU Files Suit Over Welfare Drug Tests / Group challenges Florida law that requires testing for welfare applicants by Brian Hamacher:

The American Civil Liberties Union of Florida has filed a lawsuit challenging a new state law that requires welfare recipients to undergo drug testing.

The lawsuit was filed Tuesday in federal court on behalf of 35-year-old Orlando resident Luis Lebron, a Navy veteran and single father who applied for assistance in July to support his 4-year-old son, the ACLU said in a statement issued Wednesday.

"He meets all the criteria for assistance but has refused to waive his Fourth Amendment rights against unreasonable search and seizure and submit to the newly required drug test," the statement said.

In an FOIA case, the ACLU sued for disclosure of cases involving cell phone tracking data because it was practically impossible to gather the information without it. The D.C. Circuit held the information was subject to disclosure because the privacy interest in the information was low. ACLU v. DOJ, 10-5159 (D.C. Cir. September 6, 2011):

On the other side of the balance, we find a significant public interest in disclosure, something altogether absent in Reporters Committee. Because the disclosure of private citizens’ criminal histories “reveals little or nothing about [the] agency’s own conduct,” and because that was all that was at issue in Reporters Committee, the “public interest in disclosure [was] at its nadir” in that case. Reporters Comm., 489 U.S. at 773, 780. By contrast, as we discuss below, the disclosure of prosecutions in which the defendants were subject to warrantless cell phone tracking, and then were convicted or pled guilty, would shed light on government conduct. Accordingly, it falls within FOIA’s scope because it advances “the citizens’ right to be informed about what their government is up to.” Reporters Comm., 489 U.S. at 773 (internal quotation marks omitted).

1. The use of and justification for warrantless cell phone tracking is a topic of considerable public interest: it has received widespread media attention18 and has been a focus of inquiry in several congressional hearings considering, among other things, whether the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986), should be revised either to limit or to facilitate the practice. Courts are divided as to whether the government must show probable cause before it can obtain cell phone location data, as well as on related questions regarding warrantless GPS surveillance.

The Supreme Court has recently granted certiorari to address the GPS issue. See United States v. Jones, 2011 WL 1456728 (June 27, 2011), granting cert. to Maynard, 615 F.3d 544. The disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool. It would, for example, provide information about the kinds of crimes the government uses cell phone tracking data to investigate. As the plaintiffs note, with respect to wiretapping Congress has balanced privacy interests with law enforcement needs by permitting the government to use that technique for only the more serious offenses, see 18 U.S.C. § 2516, and the plaintiffs (and others) may decide to argue for similar legislation to govern cell phone tracking. Disclosure would also provide information regarding how often prosecutions against people who have been tracked are successful, thus shedding some light on the efficacy of the technique and whether pursuing it is worthwhile in light of the privacy implications. Information from suppression hearings in these cases could provide further insight regarding the efficacy of the technique by revealing whether courts suppress its fruits, and would disclose the standard or standards the government uses to justify warrantless tracking. Information from suppression hearings would also provide facts regarding the duration of tracking and the quality of tracking data, facts that would inform the public discussion concerning the intrusiveness of this investigative tool.

. . .

Nor are we persuaded by the government’s contention that the interest in informing the public discussion is deficient because the plaintiffs have insufficient evidence that disclosure will show government wrongdoing. Whether the government’s tracking policy is legal or illegal, proper or improper, is irrelevant to this case. It is true that, where “the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure.” Favish, 541 U.S. at 174. But the plaintiffs are not (or at least not only) seeking to show that the government’s tracking policy is legally improper,22 but rather to show what that policy is and how effective or intrusive it is. “[M]atters of substantive law enforcement policy ... are properly the subject of public concern,” whether or not the policy in question is lawful. Reporters Comm., 489 U.S. at 766 n.18.

Blog of the Legal Times here.

PBS's Frontline last night: Top Secret America: The Hidden Legacy of 9/11 on where our rights went. DVD here.

NYPD stopped a gold Crown Victoria with NJ license plates with two passengers in back and none in the front literally on a “hunch” of being an unlicensed livery vehicle. When defendant got out, his chest bumped against the officer’s arm, and the officer told him he wanted to check him for weapons. Defendant refused to stop and was tackled. He had a 9mm and he was a convicted felon. The stop was without reasonable suspicion. United States v. Bristol, 819 F. Supp. 2d 135 (E.D. N.Y. 2011).*

The defendants had no reasonable expectation of privacy in the foyer to the house where it is expected that people would enter to be able to knock on the door. Once in the foyer, the officer could smell burning marijuana. (He came there after a controlled buy and a vehicle search turned up methamphetamine.) United States v. Renteria-Lopez, 2011 U.S. Dist. LEXIS 99106 (D.Kan. September 2, 2011)*:

The fact that Bannister was lawfully in the foyer is significant. Before entering that area, Bannister likely lacked probable cause to search the residence, as he did not have any idea what Renteria's relationship was to the property, and he had no basis, other than Renteria's mere presence, to believe that the house, which had not had surveillance on it, contained contraband. However, once he was in the foyer, Bannister, an eighteen-year veteran of the force and a member of the WPD's narcotic unit, was able to smell the burning of marijuana and hear a lot of commotion and the sound of an aerosol can being sprayed inside the residence. These observations, which Bannister could legally make, coupled with the fact that officers had observed Renteria meet with Garcia immediately before narcotics were discovered in Gutierrez's vehicle, provided Bannister with probable cause to believe that evidence of illegal activity was present in the home. Additionally, these facts, in conjunction with the fact that no one responded to his knock, reasonably led Bannister to believe that exigent circumstances existed, i.e., that there were individuals harbored inside the home that were capable of injuring him and his officers and/or destroying incriminating evidence if action was not taken.

Defendant was stopped for no seatbelt and a cracked windshield, and the officer ran his DL finding two child support warrants. The impoundment was valid because the vehicle would have to have been left on the street, constituting a road hazard. Also, the claim it wasn’t stated properly in the police reports was raised on appeal but not raised before the District Judge in review of the USMJ’s R&R, so it is waived. United States v. Lilly, 438 Fed. Appx. 439 (6th Cir. 2011).*

Defendant’s clothing was properly seized incident to his arrest. He was found unconscious in the same apartment where there was a body in the bathtub, and he was covered with blood. A presumptively reliable citizen informant said that defendant said that he’d killed the victim. That was probable cause. State v. Minton, 2011 Tenn. Crim. App. LEXIS 688 (September 1, 2011).*

Plaintiffs were anti-abortion advocates who were arrested for trespass, but the charges were dismissed. The officers were entitled to qualified immunity from suit; they thought the plaintiffs were trespassing at the time of arrest, but it proved to be legally wrong. Skovgard v. Pedro, 448 Fed. Appx. 538 (6th Cir. 2011) (unpublished).*

The officer entered the plaintiffs’ house with exigent circumstances; after seeing methamphetamine paraphernalia, he said he was detaining everybody while a search warrant was obtained. A minor entered a separate residence in the premises, and he went there, too. There was a factual dispute denying qualified immunity as to the later entry. Modrell v. Hayden, 2011 U.S. App. LEXIS 18355 (6th Cir. August 30, 2011) (unpublished).*

A patdown finding a hard object permits removal to insure that it is not a weapon where a feel could not tell. United States v. Richardson, 2011 U.S. App. LEXIS 18323 (7th Cir. September 2, 2011):

Richardson does not dispute that Deputy Smythe lawfully initiated a stop and pat-down of Richardson’s person. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Rather, he claims Deputy Smythe’s pat-down became an impermissible exploratory search when Deputy Smythe removed the cocaine base from Richardson’s right pants pocket and inspected it. Richardson’s argument misapplies Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). Richardson focuses on Dickerson’s pronouncement that an officer cannot go beyond a protective pat-down to manipulate an object concealed in a pocket unless “the incriminating character of the object [is] immediately apparent.” 508 U.S. at 379. But that restriction does not apply until the officer concludes that the object at issue is not a weapon. Dickerson, 508 U.S. at 378; see United States v. Muhammad, 604 F.3d 1022, 1026-27 (8th Cir. 2010) (seizure and inspection of object not unlawful under Dickerson because officer was uncertain whether object was a weapon). Deputy Smythe testified that, after the protective patdown, he “wasn’t sure what [the object] was. It was just an unfamiliar lump, [a] hard lump.” Based on this testimony, the district court found Deputy Smythe was unsure whether the hard object in Richardson’s pocket was a weapon. That finding was not clearly erroneous. See United States v. Swann, 149 F.3d 271, 275 (4th Cir. 1998) (deferring to district court’s finding that the officer had not determined whether the object was a weapon when testimony was “entirely ambiguous” as to whether the officer “suspected or did not suspect a weapon”).

An employee of a marina called the police to tell them that a boat had docked several times in the past week and people were coming and going like they were buying drugs from the boat. An officer went to the marina to conduct a knock-and-talk of the boat, and the officer obtained consent. When defendant opened the door of the boat, the officer could smell methamphetamine. State v. Linenberger, 151 Idaho 680, 263 P.3d 145 (2011)* [the case does not even mention that, comparing the cases of the smell of marijuana from a car, and the mobility of a boat, the automobile exception would have justified the search].

Defendant was involved in an accident, and the trial was over whether he was the driver and was intoxicated. When he was in the ER, blood was drawn for diagnosis, and the blood was admitted in evidence at the trial. The taking of the blood by the hospital was a private search, and the Fourth Amendment was not implicated. Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 952 N.E.2d 969 (2011).*

The officer testified he stopped the defendant’s car because he couldn’t read the license plate because of snow and driving in the center of a road with snow on it and high snow banks and no marked centerline. Neither was a justification for the stop. City of Lakewood v. Shelton, 2011 Ohio 4408, 2011 Ohio App. LEXIS 3677 (8th Cir. September 1, 2011).*

Although the defendant was not renting a motel room, he was staying there, and had his clothes and stuff there; therefore, he had standing. He was unlawfully detained when he consented, and that vitiated consent. State v. Woods, 311 Ga. App. 577, 716 S.E.2d 622 (2011)* [Ga.Ct.App. cases are only on LexisOne, but this case doesn't show].

Consent to “look in” or “inspect” the interior of a car is consent to search under the case law. United States v. Guerrero, 806 F. Supp. 2d 992 (S.D. Tex. 2011).*

The written inventory policy of the North Las Vegas PD was not introduced, but it was testified to orally, and there was no serious cross-examination about it. Therefore, the court finds that the policy was established. Moreover, when the defendant got out of the vehicle that was being impounded, he asked to take two computers, which he was permitted to do, but the officer also saw a credit card encoding device and far too many gift cards for a normal person to have, and that was probable cause to believe that credit card theft was in the offing. United States v. Berhe, 2011 U.S. Dist. LEXIS 98360 (D. Nev. June 10, 2011).*

Defendant’s failure to show that anything was seized from his personal office separates this business search from Mancusi v. DeForte and SDI Future Health, so his motion to reconsider is denied. United States v. Salyer, 814 F. Supp. 2d 984 (E.D. Cal. 2011).*

After defendant asked for three appointed attorneys to be excused from his case because of inability to get along with the lawyers, he was warned that he wasn’t getting a fourth lawyer, and he’d have to go pro se or retain counsel if it happened again. Just before the suppression hearing, the third lawyer made a motion to be relieved because he had irreconcilable differences with defendant. The court granted the motion but ordered the lawyer to remain as standby counsel for the suppression motion. Defendant was not unconstitutionally denied his right to counsel at the suppression hearing. Long v. United States, 2011 U.S. Dist. LEXIS 98348 (E.D. Tenn. August 31, 2011).

The Pennsylvania State Trooper was described here as a narcotics intelligence officer who stopped a speeding rented SUV because he felt there was something up. While the factors the officer relied on for his suspicions were normal activity, other factors learned during the valid stop supported reasonable suspicion: Five car rentals in the previous four months, four border crossings from Mexico that year (per EPIC), he wasn’t an authorized driver on the car. United States v. Anderson, 2011 U.S. Dist. LEXIS 98233 (E.D. Pa. August 30, 2011).*

The government did not carry its burden of proof of consent where the officers who gained entry by a knock-and-talk could not agree over when consent was given and what its scope was. United States v. Payton, 2011 U.S. Dist. LEXIS 98058 (W.D. Tex. June 8, 2011).*

The officers lacked any reasonable suspicion to detain the defendant, and the motion to suppress is granted. The defendant made the motion to suppress after the jury was empaneled, and the trial judge considered and granted it. Then a mistrial had to be declared, which the court finds manifest necessity for because of its late timing. United States v. Kirkley, 2011 U.S. Dist. LEXIS 98668 (D. Kan. September 1, 2011).*

Defendant was arrested fleeing from a building based on a radio call from another officer that a man fitting his description was heading for the door. Based on the collective knowledge doctrine, the arresting officers had probable cause, not just reasonable suspicion, and the search incident was valid. United States v. Fletcher, 2011 U.S. Dist. LEXIS 98163 (D. Minn. August 15, 2011).*

The government concedes defendant has a reasonable expectation of privacy in the text messages on his cell phone. However, when the phone rang during a co-defendant’s arrest, the name appearing on the screen was in plain view. Finally, a search incident of the call log was permissible, even though the court doesn’t like it. United States v. Gomez, 807 F. Supp. 2d 1134 (S.D. Fla. 2011):

Courts have also recognized that an individual has a reasonable expectation of privacy in a cell phone’s text messages. See City of Ontario v. Quon, __ U.S. __, __, 130 S. Ct. 2619, 2626, 177 L. Ed. 2d 216 (2010) (finding expectation of privacy in text messages on cell phone); Finley, 477 F.3d at 259 (reasonable expectation of privacy in text message on cell phone); United States v. Wall, 08-60016-CR, 2008 U.S. Dist. LEXIS 103058, 2008 WL 5381412, at *3 (S.D. Fla. Dec. 22, 2008) (noting that government did not contest that viewing of text messages on defendant’s cell phone constituted a search).

. . .

Applying these current principles here, the Government is correct that, even under the post-Gant scope of a search incident to arrest, Agent Mcphee’s post-seizure decision to review and record Defendant’s call log history was permissible. Plainly, the agents arrested the Defendant and, incident to that arrest, they seized a cell phone that was found close to the Defendant (i.e. within his “reaching distance”). While this alone is enough, the agents also had probable cause to suspect Defendant’s cell phone contained evidence relevant to his arrest. Indeed, the salient facts make this clear: the agents intercepted a package carrying cocaine; Defendant placed this package in his vehicle; and, before agents effected a vehicle stop they observed Defendant on his cell phone.

Altogether, the agents had “reason[ ] to believe the vehicle contain[ed] evidence of the offense or arrest” and the Defendant was “within reaching distance of the passenger compartment at the time of the search.” On these facts, the agents were clearly permitted to seize the cell phone (indeed, Defendant concedes as much) and, like a wallet, purse, bag, or cigarette case, look through the item at the scene to see if any evidence or other contraband could be found. Moreover, because Agent Mcphee promptly reviewed the call log history at the scene, the search was temporally and spatially connected with the arrest. It was, in short, a classic search incident to arrest.

Defendant’s primary argument against applying the exception here is that there was no necessity for the search to be conducted at that point. In other words, the search was not necessary to preserve officer safety by looking for weapons; the cell phone’s contents obviously posed no threat of harm to the agents or threat of escape to Defendant once the cell phone was seized. Also, during the hearing, Defendant argued that the search was not necessary to prevent destruction of evidence because the agents already seized the cell phone. Indeed, it is true that Defendant was already in handcuffs, under arrest and placed in an agents’ vehicle when the search took place. He was not a serious threat to destroy the potential evidence, say by grabbing the cell phone and smashing it to the ground, or by remotely accessing the cell phone and deleting its contents.13

13 The agents testified that they searched through the cell phone because they were concerned that the cell phone might be remotely “wiped,” thus deleting the call log history. Objectively speaking, we find this concern unconvincing especially in light of their admission that the cell phone lacked internet capabilities (consider: how do you remotely access and thus delete a cell phone that is incapable of making a remote connection?) Regardless, as we discuss herein, the point is really moot because necessity of exigent circumstances are not relevant to a search incident to arrest analysis under current Supreme Court authority.

Even a top cop concedes a right to video arrests--but the street tells a different story bY Jan Ransom in the Philadelphia Daily News

TAMERA MEDLEY begged the police officer to stop slamming her head - over and over - into the hood of a police cruiser.

Thinking they were helping, passers-by Shakir Riley and Melissa Hurling both turned their cellphone video cameras toward the melee that had erupted on Jefferson Street in Wynnefield, they said.

But then the cops turned on them.

Riley had started to walk away when at least five baton-wielding cops followed him, he said, and they beat him, poured a soda on his face and stomped on his phone, destroying the video he had just taken.

Meanwhile, two officers approached Hurling, urged her to leave and, after exchanging a few words, slammed her against a police cruiser, Hurling said. They pulled her by her hair before tossing her into the back of a cop car, she said.

Although it's legal to record Philadelphia police performing official duties in public, all three were charged with disorderly conduct and related offenses, and officers destroyed Hurling and Riley's cellphones, erasing any record of Medley's violent arrest, the pair said.

Charges against Hurling and Riley were dismissed, but Medley was found guilty last month of disorderly conduct, resisting arrest, harassment and related offenses. She was fined $500 but has filed an appeal.

American Prospect: Extreme Measures: Since September 11, the Fourth Amendment has been eroded in ways we do not even know. The scary part is that it's going to take years to undo the damage:

The abuse of the Constitution that followed September 11, 2001, was neither surprising nor inevitable. It was not a surprise, because it wasn’t the first time in American history—but the sixth, by my count—that fundamental rights had been violated during spasms of fear over national security. It was not inevitable, because prominent voices might have called the country back to its principles. There is no telling whether such appeals would have stood against the tide, but one man’s words did make a difference in the emergency command center at FBI headquarters on Pennsylvania Avenue several hours after the attacks.

The voice belonged to James Ziglar, then commissioner of the Immigration and Naturalization Service, who thinks of himself as a Goldwater Republican. “I’m quite a Bill of Rights kind of guy,” he says. At the FBI that day, he gathered with other senior officials for what he describes as a discussion about doing “some big sweeps” in “any community where there was a large concentration of Arabs, to basically do a door-to-door.”

Ziglar objected: “I was the only guy in the room who raised his hand and said, ‘Wait a minute. We’ve got something called the Fourth Amendment here. We don’t do sweeps in this country. We had a revolution over warrantless searches.’”

NYTimes Editorial: The Truth Behind Stop-and-Frisk:

Judge Shira Scheindlin of Federal District Court in New York made the right call when she refused to dismiss a lawsuit against the New York City Police Department, which alleged that officers use race as a basis for stopping and frisking citizens, rather than reasonable suspicion. The trial will provide an important opportunity to evaluate this increasingly troubling program, which resulted in 600,000 people being stopped on the streets last year alone.

Pursuit of a minor into a home for an alleged traffic offense was not justified by hot pursuit because there was no exigency, and any reasonable officer could have understood the constitutional implications. Mascorro v. Billings, 656 F.3d 1198 (10th Cir. 2011).

The plain view and automobile exception applied to the search of defendant’s car. United States v. Brown, 653 F.3d 656 (8th Cir. 2011).*

Defendant’s car was searched four times, and the automobile exception applied to all of them because it was always potentially “mobile.” United States v. Medina-Gonzalez, 437 Fed. Appx. 714 (10th Cir. 2011).*

Defendant and two others were sitting on a bank “engaged in the act of fishing.” Two conservation officers approached, and defendant put something in a bag he had with him. The officers asked for their fishing licenses, which they had. Then the officer asked to search the bag while still holding the fishing license, but it was not by consent. Under the circumstances, defendant would not have felt free to have not complied. State v. Alter, 953 N.E.2d 1182 (Ind. App. 2011)*:

Based upon our review of the record, the circumstances presented lead us to agree with the trial court that a reasonable person in Alter’s position would not feel free to leave or resist Officer Neargardner’s directives. See Calmes, 894 N.E.2d at 205 (concluding that a reasonable person in the defendant’s position would not feel free simply to terminate the encounter and walk away); see also Finger v. State, 799 N.E.2d 528, 533 (Ind. 2003) (noting that “a reasonable person in [the defendant’s] position would not feel free to leave after [the officer] retained his identification” and holding that the defendant was “detained for purposes of the Fourth Amendment” where a police officer asked for and received the driver’s license of the defendant and did not return the license or say that he was free to leave while the officer continued to converse with the defendant). Alter was detained for purposes of the Fourth Amendment.

[Note: This is the same rule that applies to driver's licenses.]

The District Court erred in concluding there was no probable cause, but the search warrant for blood was saved by the good faith exception. Instead, there was probable cause for the search warrant. State v. Walker, 2011 UT 53, 690 Utah Adv. Rep. 27, 267 P.3d 210 (2011).*

Officers received an “anonymous” tip by e-mail of drugs being sold out of defendant’s house, so officers went there for a knock-and-talk. His wife consented. No level of suspicion is required for a knock-and-talk. United States v. Johnson, 2011 U.S. Dist. LEXIS 97577 (W.D. Tenn. August 30, 2011), R&R 2011 U.S. Dist. LEXIS 97576 (W.D. Tenn. July 21, 2011):

[I]t is well-established that “[a]n officer may initiate a knock and talk without any objective level of suspicion.” Pritchard v. Hamilton Twp. Bd. of Trs., No. 09-4594, 424 Fed. Appx. 492 (6th Cir. May 25, 2011) (citing United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005)). Any resulting discussion with a suspect does not implicate the Fourth Amendment. Thomas, 430 F.3d at 277 (citing cases).

Petitioner’s overbreadth of search warrant claim in a § 2255 would not have been reversed on appeal even if it had been raised. Baker v. United States, 2011 U.S. Dist. LEXIS 97493 (E.D. Va. August 29, 2011).*

Defendant’s wife found child pornography on their computer and she signed a consent to search the house for the computer. That included consent to seize it. Consent was not limited after she talked to defendant before the police came in the house. United States v. Powers, 432 Fed. Appx. 16 (2d Cir. 2011) (unpublished).*

Defendant in his § 2255 failed to show that defense counsel was ineffective for not arguing that he had a reasonable expectation of privacy in a hospital room. He cited no controlling case law. The law is unsettled on that at best, and no case from the Eighth Circuit is in point. Defense counsel is [essentially] not charged with being ineffective for not arguing that the law should be changed. New v. United States, 652 F.3d 949 (8th Cir. 2011):

This court has held that an attorney's failure to anticipate changes in the law does not constitute constitutionally ineffective assistance. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999). Then in Fields v. United States, 201 F.3d 1025 (8th Cir. 2000), this court reached the same conclusion about unsettled issues. We denied relief to a § 2255 movant who argued that his attorney's failure to object to the district court's jury instructions deprived him of effective assistance of counsel. See id. at 1026. We noted that neither the Eighth Circuit nor the Supreme Court had decided whether the jury instructions at issue were adequate, and that two other courts of appeals had addressed the issue and come to contrary conclusions. We then said the following:

Given this split of authority at the time Fields was tried, and the complete lack of Eighth Circuit or Supreme Court authority on the subject, it must be said that counsel's performance fell within the wide range of professionally competent assistance. ... If counsel's failure to anticipate a change in the law will not establish that counsel performed below professional standards, then counsel's failure to anticipate a rule of law that has yet to be articulated by the governing courts surely cannot render counsel's performance professionally unreasonable. Moreover, Fields has not directed our attention to Supreme Court or Eighth Circuit precedent (and our research has located none) that can be said to clearly portend the law ... as Fields would have us state it.

Police responded to a 911 call and found a body outside. A cursory sweep of the interior was permissible, but a second entry was invalid. Also, defendant’s mobile home, hooked up to utilities, was not readily mobile, so the automobile exception did not apply. The trial court’s failure to suppress, however, was harmless considering that the product of the search was barely referenced at trial and the other evidence was overwhelming. Tollefson v. State, 352 S.W.3d 816 (Tex. App.—San Antonio 2011):

Tollefson argues because Barbara's body was found outside his trailer, rather than inside as in Johnson, officers did not have consent to enter his trailer. Tollefson's argument is persuasive. After the initial protective sweep of the trailer, it was unnecessary for law enforcement officials to re-enter the trailer to investigate the shooting or remove Barbara's body. In comparison, the defendant in Johnson was still at the scene as officers continued to investigate and was, therefore, "in a position to revoke her consent had she wished to do so." Johnson, 226 S.W.3d at 445. Officers took Tollefson to the Wilson County jail before Chief Deputy Deagen searched the trailer, so Tollefson was not in a position to deny consent.

We hold the emergency exception to the warrant requirement does not apply because after the initial protective sweep of Tollefson's trailer, wherein the officers did not seize the evidence in question, officers did not have Tollefson's implied consent to search his trailer. At the time of the second search, Tollefson had been removed from the scene and Barbara's body was outside the trailer.

A premises warrant permits a search of the mailbox. State v. Martinez, 2011 Fla. App. LEXIS 13757 (Fla. 3d DCA August 31, 2011).

The license number of defendant’s car was randomly checked, and it came back with a financial responsibility suspension that required that the car be impounded. The inventory of the car finding cocaine was valid. State v. Kemp, 2011 Ohio 4235, 2011 Ohio App. LEXIS 3574 (8th Dist. August 25, 2011).*

Defendant’s second post-conviction motion three years after the first was denied added a different Fourth Amendment claim, which is found to be procedurally defaulted and time barred. Bunting v. State, 27 A.3d 550 (Del. 2011).*

“I find that Mercado’s statement ‘You can check it if you want,’ constituted an express invitation to police to search the entire vehicle, including its trunk. However, Mercado argues that his consent to the search was involuntary because he was not informed that he had a right to refuse consent, and he provided consent only when surrounded by ‘significant police presence including [a] police dog.’” There is no right to know one can refuse, and the dog apparently wasn’t there at the time. Nevertheless, under First Circuit authority, consent in the face of a police dog isn’t coerced per se. United States v. Mercado, 2011 U.S. Dist. LEXIS 97262 (D. Mass. August 30, 2011).*

A motion to reconsider can be entertained in criminal cases, but this one was just a rehash of the first argument and was denied. United States v. Murry, 2011 U.S. Dist. LEXIS 96934 (E.D. Wash. August 29, 2011).*

The officer stopped defendant’s vehicle for lack of license plates and no working lights. After running defendant’s DL, he told him he was free to go but the car was being impounded. “Regardless of defendant’s concern regarding leaving his vehicle unattended, there appears to be no dispute that he was told he was free to leave, and chose not to do so. The evidence at this point was that Officer Hilburn was suspicious about the condition of the vehicle, given that it was full of debris and did not look as though it had just been purchased. It was also his testimony that he had observed the vehicle leaving a residence where drug transactions were known to occur.” Then the officer noticed that the passenger seemed to be under the influence of drugs. The call for the drug dog was reasonable. United States v. Stringer, 2011 U.S. Dist. LEXIS 97195 (W.D. Mo. July 20, 2011), adopted 2011 U.S. Dist. LEXIS 97162 (W.D. Mo. August 30, 2011).*

Defendant’s post-conviction claim that defense counsel essentially should have predicted Gant and argued that was unavailing. The court follows Davis v. United States where SCOTUS held there was a good faith exception for pre-Gant searches relying on Belton because the Indiana Supreme Court similarly applied the exclusionary rule to a change in search and seizure law well before Davis. Henderson v. State, 953 N.E.2d 639 (Ind. App. 2011).

The CI here was believable and entitled to credit where he told the police that he and the defendant had stolen an anhydrous ammonia tank and told them where they secreted it. It was an admission against penal interest. Smith v. State, 953 N.E.2d 651 (Ind. App. 2011).*

The suppression hearing testimony about the reason for defendant’s stop was much more complete than the evidence at trial, and it showed reasonable suspicion. State v. Ostdiek, 351 S.W.3d 758 n. 10 (Mo. App. 2011)* [That is not abnormal; once the stop is determined valid, the complete story usually doesn’t matter to the trial. Here it did, but the trial court remembered the suppression hearing and held it all sufficient.]

Defendant was stopped for not having a seat belt, and the officer saw in plain view pill bottles with oxycodone and Percocet. He got defendant out and searched his person and found cocaine. Then he searched the car finding oxycodone and methadone. Defendant was hooked up and locked in a car when the search of his car occurred, and that search is suppressed for lack of exigency (¶20). State v. Jones, 163 Wn. App. 354, 266 P.3d 886 (2011).*

Defendant was on a 4-wheeler that officers followed suspecting it was stolen. He fled into the woods and finally came out. In the path where he passed was a digital camera, which he denied was his as soon as an officer noticed it and before it was asked about. All three officers testified to defendant’s volunteered statement, and this was his clear abandonment of the camera on which there was child pornography. When he was searched incident to his arrest, a memory card for a camera was found, and he had an expectation of privacy in the memory card which could not be viewed without a warrant. United States v. Jenkins, 2011 U.S. Dist. LEXIS 96296 (N.D. W.Va. August 26, 2011), adopting 2011 U.S. Dist. LEXIS 96335 (N.D. W.Va. June 28, 2011).*

Officers pulled guns on defendant and told him to raise his hands, but he did not comply, so he was not seized. He finally complied. His movements toward his waist corroborated that he had a gun. Plummer v. United States, 2009 D.C. App. LEXIS 753 (November 12, 2009)* [yes, almost two years old and just on Lexis].

A well-known CI provided corroborated information and that justified defendants' stop. United States v. Chandler, 437 Fed. Appx. 420 (6th Cir. 2011)*:

In the present case, we agree with the district court that the initial stop of Profitt's vehicle fell well within the acceptable parameters of a lawful Terry stop based upon a reasonable suspicion of criminal activity. Indeed, the officers received detailed information from Hamilton, a known informant who had direct knowledge of Chandler's drug-related activities. Hamilton was able to predict when Chandler would leave his residence, the manner of travel, the location of the alleged narcotics transaction, and the general appearance of the supplier's vehicle. All of these predictions were thereafter confirmed by law-enforcement surveillance. In addition, the observed behavior of Chandler in quickly entering and exiting the black sedan, and the discovery of a large amount of currency in Ciers's pocket, provided further support for the brief stop of Profitt's vehicle.

Following other circuits, just because an administrative search has a mixed motive that the plaintiff tow company owner may have stolen property did not make the administrative search invalid. Rodriguez v. City of Cleveland, 439 Fed. Appx. 433 (6th Cir. 2011):

The individual defendants' pre-search suspicion that Rodriguez possessed a stolen dump truck did not render their warrantless administrative search of M & M invalid. This conclusion finds support in United States v. Villamonte-Marquez, 462 U.S. 579, 103 S. Ct. 2573, 77 L. Ed. 2d 22 (1983), where the Supreme Court concluded that customs officers had not offended the Fourth Amendment when, pursuant to a federal statute, those officers boarded a sailboat in a shipping channel and asked to see the sailboat's documentation. Id. at 580-83, 592-93. ...

In cases more factually analogous to this one, other federal circuits have concluded that an officer’s suspicion as to the presence of a stolen vehicle did not render unconstitutional the initiation of a warrantless administrative inspection of an automotive repair- or salvage-related business. For example, in Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007), an Auto Theft Unit officer had received a complaint from an individual who had allegedly purchased a vehicle with a suspicious VIN from a particular auto body repair shop and salvage yard. Id. at 1235-36. After receiving this complaint, the officer and his supervisor set out to search the repair shop/salvage yard pursuant to a Florida statute that “permits a warrantless physical inspection of” such businesses “during normal business hours ‘for the purpose of locating stolen vehicles.’” Id. at 1236 (quoting Fla. Stat. § 812.055). In a subsequent civil rights action, the owner of the repair shop/salvage yard asserted that, “from the inception, the search of the [business] was not a routine administrative inspection, but rather an ordinary criminal raid, undertaken with suspicion of a particular crime and implemented to discover and seize evidence of that crime.” Id. at 1240. Although the Eleventh Circuit recognized “that the administrative search exception [should] not be allowed to swallow whole the Fourth Amendment,” id. at 1241, that court concluded that the inception of the warrantless administrative inspection at issue nonetheless passed constitutional muster, id. at 1242. Noting that “[t]he Supreme Court has made quite clear that an administrative search is not rendered invalid because it is accompanied by some suspicion of wrongdoing,” the Eleventh Circuit determined that the complaint the officers had received did not generate the probable cause necessary to support an application for a search warrant. Id. Lacking “direct criminal suspicion of wrongdoing,” the officers had “validly invoked their statutory authority to” search the repair shop/salvage yard. Id.

The government lacked objective evidence of a need to enter defendant’s apartment to allegedly aid potentially injured persons. There was only one injured person to anybody’s knowledge, and that person was accounted for. United States v. Delgado, 814 F. Supp. 2d 874 (E.D. Wis. 2011), rejecting in part 2011 U.S. Dist. LEXIS 96521 (E.D. Wis. June 23, 2011)*:

However, in this case, the record is devoid of any evidence that anyone within Mr. Delgado’s apartment was hurt or otherwise in need of police assistance at the time the police entered the defendant's apartment. By the time the police opted to enter the apartment in question, the only victim of a shooting that the police had any evidence existed was no longer in Mr. Delgado’s apartment, but rather had exited that apartment. The government even concedes that the police “did not know whether one or more persons ... was in the apartment in need of immediate medical help.” (Docket #13 at 5). The government has no right to enter a private residence on a mere whim that a person in need of assistance may be inside; instead, the government needs an objectively reasonable basis for entering the apartment. Fisher, 130 S. Ct. at 549. In this case, the evidence here does not show that the government had an objectively reasonable basis for entering the apartment for the purpose of rendering emergency aid.

Defendant was leaning against a car talking to officers, and one noticed packages of crack cocaine on the floorboard. That was reasonable suspicion for defendant’s patdown. United States v. Blackley, 439 Fed. Appx. 803 (11th Cir. 2011).*

Defendant was stopped by VAMC police. “Scott’s behavior, which included returning to the vehicle that was illegally parked, tossing something inside, locking the door after observing Officer Freeman approach, failing to comply with Officer Freeman’s first directive to stop, turning away from Officer Freeman, fidgeting throughout the encounter, and moving his hands around, provided ample justification for the protective frisk.” United States v. Scott, 2011 U.S. Dist. LEXIS 96756 (E.D. Va. August 29, 2011).*

Orin Kerr on Volokh Conspiracy: Fourth Amendment Rights in Stolen Computers:

A few readers have flagged a new district court decision, Clements-Jeffrey v. City of Springfield, that raises an interesting Fourth Amendment question: When does a person have Fourth Amendment rights in the contents of a stolen computer? A few decisions have held that a person doesn’t have Fourth Amendment rights in the contents of a stolen computer when they know the computer was stolen: That seems correct to me, as the Fourth Amendment requires some legitimate relationship between the person and the space searched before allowing the person to have Fourth Amendment rights there. See, e.g., Minnesota v. Carter. The trickier question raised in Clements-Jeffrey is what result if the person didn’t know the laptop was stolen. Put another way, what is the mental state required to retain Fourth Amendment rights in stolen property?