Defendant’s car was impounded, and the officer searched the car to “leaf through notebooks located in the back seat [and this] was an unjustified unconstitutional search.” “Further, the plain view doctrine does not apply, because the incriminating character of the notebooks was not immediately apparent.” People v Perez, 2011 NY Slip Op 7659, 88 A.D.3d 1016, 931 N.Y.S.2d 411 (2d Dept. 2011).*

Defendant had a reasonable expectation of privacy in his backyard and back steps, even though the yard was not fenced or posted with a no trespassing sign, because the property was in a secluded area, there were no neighbors within several hundred yards, and the yard was not visible from the road, driveway, or other properties. The warrantless entry into the curtilage was not justified because officers did not have probable cause to believe the instrumentality of a crime or evidence of a crime would be discovered, and even if there was probable cause, there were not exigent circumstances such that obtaining a warrant was impracticable. Finally, defendant's consent to a search after the illegal entry into the curtilage was not valid because the taint was not sufficiently attenuated: the consent was given within minutes of the entry; the entry resulted in an officer observing marijuana; defendant did not volunteer his consent; and the officer did not tell defendant he could decline the request. Cooksey v. State, 350 S.W.3d 177 (Tex. App.—San Antonio 2011).

On a GVR in light of Davis, the court follows Davis and holds that a pre-Gant search is governed by good faith. Valesquez v. Commonwealth, 362 S.W.3d 346 (Ky. App. 2011).*

Defendant was stopped for a suspected DUI and he was given a portable breath test. Police kept the mouthpiece and tested his saliva for DNA. As far as the defendant was concerned, the DNA was abandoned. His DNA linked him to burglaries. People v. Thomas, 200 Cal. App. 4th 338, 132 Cal. Rptr. 3d 714 (2d Dist. 2011):

The question is whether a defendant may assert a privacy interest in a DNA sample that the police surreptitiously obtain from a publicly discarded item or material. In Gallego, supra, 190 Cal.App.4th 388, a cigarette butt tossed by a murder suspect onto a sidewalk was collected and tested for DNA. The court concluded that the test did not constitute a search because the defendant could claim no privacy interest in the cigarette butt he had abandoned in a public place. (Id. at p. 395.) The court relied on California v. Greenwood (1988) 486 U.S. 35, 40-41 (Greenwood), where the United States Supreme Court found no reasonable expectation of privacy in garbage bags containing evidence of drug trafficking because the bags had been left at the curb for garbage collection. (Gallego, at p. 395.) The Gallego court analogized the DNA testing of the discarded cigarette butt to the lifting of fingerprints from discarded juice containers in People v. Ayala (2000) 24 Cal.4th 243, 278-279. (Gallego, at p. 398.)

The trial court similarly found that defendant had abandoned the mouthpiece of the PAS device because he did not ask the officers to give it to him after the PAS test was over or to tell him what they planned to do with it. Defendant argues that he could not have abandoned a part of a testing device supplied by the police; nor could he have abandoned the DNA he deposited on it unconsciously. The court in Gallego agreed that abandonment requires a voluntary and conscious act, but tossing a cigarette butt on the sidewalk was deemed to be such an act. (Gallego, supra, 190 Cal.App.4th at p. 395.) The out-of-state cases on which Gallego relied went further, finding no expectation of privacy where a defendant could claim no possessory or ownership right in the object on which the DNA was deposited. (Id. at p. 396). For instance, the defendant in Commonwealth v. Cabral (2007) 69 Mass.App.Ct. 68 [866 N.E.2d 429, 433] could not claim to have a reasonable expectation of privacy in saliva he spat on a public sidewalk. Similarly, in Commonwealth v. Perkins (2008) 450 Mass. 834 [883 N.E.2d 230, 238-240], the defendant, who had refused to give blood for DNA testing, was found not to have a reasonable expectation of privacy in a soda can from which he drank during an interrogation. The can was provided by the police, and the defendant knew he could not take it out of the interrogation room. (Id. at p. 240, accord Piro v. State (2008) 146 Idaho 86 [190 P.3d 905, 909-910] [no expectation of privacy in water bottle provided by police in interrogation room].) Alternatively, the defendant abandoned any privacy interest when he failed to clean the can. (Commonwealth v. Perkins, at p. 240.)

Consent given when there was a team of officers on defendant’s property and a helicopter hovering overhead. State v. Davis, 2011 NMCA 102, 263 P.3d 953 (2011), Certiorari Granted, October 4, 2011, No. 33,203:

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

There was no showing that the stop’s lasting 15 minutes was not the normal incidents of a traffic stop. [Almost sounds like the burden has shifted here to the defendant to show it was not reasonable rather than the government proving it was reasonable.] United States v. McGee, 2011 U.S. Dist. LEXIS 124677 (S.D. W.Va. October 27, 2011).*

Defendant’s turning from the officer and hiding hands was reasonable suspicion. Also, the former statute that required legal aliens to register guns but citizens not denied equal protection. There can be no Second Amendment distinction. State v. Ibrahim, 164 Wn. App. 503, 269 P.3d 292 (2011).*

Plaintiff had her pharmacy searched for dispensing hydrocodone without prescription, and the officers were alleged to have seized more than the warrant permitted. Charges against her were dismissed. While that may be true, the facts of each case are dependent on the situation, and it cannot be said that this warrant was executed unreasonably as a matter of law, so qualified immunity was properly granted. Gordon v. Beary, 444 Fed. Appx. 427 (11th Cir. 2011) (unpublished).*

The warrant for firearms and ammunition and documents showing any relationship between the defendant and another person was not overbroad, adopting the R&R without much explanation. United States v. Mock, 2011 U.S. Dist. LEXIS 124354 (E.D. Mo. October 27, 2011).*

Davis creates a blanket rule that a pre-Gant search was governed by Belton. There is no Fourth Amendment basis or justification for weighing whether then defendant was “targeted” for a stop by the police just to conduct a search incident. United States v. Owens, 445 Fed. Appx. 248 (11th Cir. 2011):

In the instant case, the arresting officers stopped Owens with probable cause to believe that he was driving on a suspended license, and searched the passenger compartment of his vehicle based on a proper understanding of pre-Gant law. Contrary to Owens’s argument on appeal, the Davis decision established a blanket rule that the good-faith exception applies to searches performed in reasonable reliance on then-binding appellate precedent. Although the Davis Court discussed the need to weigh the costs and benefits of suppression, it did so only in the context of formulating this blanket rule. Accordingly, the Davis analysis does not require us to consider alleged misconduct that fell short of violating the Fourth Amendment—as understood at the time of the search—nor does it require consideration of unrelated constitutional violations.

Fifteen minutes was not too long for a stop. “Officer Moore approached the car and noticed marijuana on Marsh's shirt while Officer Nelson was still writing Johnson's traffic citation. From that point, Officer Moore had at least a reasonable suspicion that Marsh possessed marijuana and, thus, could search the passenger area where Marsh had been sitting and the handgun was found.” United States v. Marsh, 443 Fed. Appx. 941, 2011 FED App. 0733N (6th Cir. 2011) (unpublished).*

Video of the stop confirms that defendant consented to a dog sniff and believed he was free to go. [But, once the questioning begins, does anybody really free to leave?] United States v. Bowman, 660 F.3d 338 (8th Cir. 2011)*:

The DVD of the stop is the best evidence of what happened; it confirms that written record which supports the conclusion that the interaction between the Trooper and Bowman after the tickets were issued was cooperative and consensual. The Trooper asked Bowman if he would answer additional questions and Bowman replied “yeah” and then responded to those questions, all of which were drug interdiction questions. The Trooper then asked Bowman if he would consent to a search of his car, to which Bowman responded “no.” (This alone indicates that Bowman understood that he was not required to comply with the Trooper's requests.) Then Bowman told the Trooper that he was “cool” with a dog-sniff search. There are no facts that would indicate a Fourth Amendment seizure occurred. This appeal point is thus also without merit.

ICE raid on a restaurant led to appellant’s arrest for entering and remaining in the country illegally. While an egregious violation of the Fourth Amendment might lead to suppression, the government does not even rely on that here, and the exclusionary rule does not otherwise apply to removal proceedings. Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011).*

HuffPo: Google Refused Law Enforcement Request To Pull Police Brutality Video:

A U.S. law enforcement agency petitioned Google to take down a YouTube video showing police brutality, the web giant revealed in a new report.

Google said it refused the request, placed sometime between January and June of this year, though it did not specify why.

"We received a request from a local law enforcement agency to remove YouTube videos of police brutality, which we did not remove," Google wrote in its Transparency Report. "Separately, we received requests from a different local law enforcement agency for removal of videos allegedly defaming law enforcement officials. We did not comply with those requests, which we have categorized in this Report as defamation requests." (hyperlinks in original)

Baltimore Sun Op-Ed: Stop and frisk: The Fourth Amendment takes a hit | So what if it works? Is that worth sacrificing constitutional rights? by Leonard Pitts Jr.:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." — Fourth Amendment to the Constitution of the United States

Just in case you forgot.

There has been, after all, an appalling amount of forgetting where that amendment is concerned. And New York City has become the epicenter of the amnesia. Yes, the "stop and frisk" policy of questioning and searching people a cop finds suspicious is used elsewhere as well. But it is in the big, bruised apple that the issue now comes to a head.

Federal agents recently arrested a New York City cop on charges of violating the civil rights of an African-American man. Officer Michael Daragjati allegedly stopped the man in April and threw him against a parked van to search him. No drugs or weapons were found, but Mr. Daragjati reportedly became angry the man questioned his rough treatment and requested the officer's name and badge number. So Mr. Daragjati ran him in on a charge of resisting arrest. Later, talking on the phone to a friend, he bragged that he had "fried another n----r" and that it was "no big deal." This was overheard by the feds, who had him under surveillance in a separate investigation.

NYT Opinion: You Want to Track Me? Here You Go, F.B.I. by Hasan M. Elashi:

ON June 19, 2002, I ran into a bit of a problem that turned my life upside down. It happened at the Detroit airport as I was entering the country. I realized something wasn’t right when the immigration agent at United States Customs slid my passport through the reader, then froze. “Is there something wrong?” I asked. He was still frozen. After a few moments, he said, “Follow me, please,” and I ended up at the Immigration and Naturalization Service’s airport office.

Recorder.com: Search Case Highlights Courts' Trouble with Tech by Kate Moser:

When Gov. Jerry Brown earlier this month vetoed Senate Bill 914 — which would have overturned a California Supreme Court decision giving police the power to search arrestees' cellphones without a warrant — he said courts are "better suited" to draw such lines.

Not everybody's so sure.

"I think Gov. Brown has it exactly backwards," wrote George Washington University law professor Orin Kerr, a privacy rights expert, on The Volokh Conspiracy blog. "It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cellphones."

As emerging technologies upend societal expectations of privacy, some legal experts point to People v. Diaz as the latest example that courts are ill-equipped to adapt to that reality. (hyperlinks added)

The oral argument in Quon in SCOTUS proved that courts are not tech-savvy at all.

During execution of a search warrant that include the “person” of the defendant, he was told to remove his pants so the officers could check for hidden pockets. He told them he had no underwear on, and that made it a strip search. A strip search is so intrusive that a search warrant cannot include a strip search unless there is a showing of a need for one. People v. King, 292 P.3d 959 (Colo. App. 2011):

We find persuasive the holdings of the Virginia and New York courts, and of the First, Second, Fifth, Ninth, Tenth, and Eleventh Circuits and conclude as a matter of law that strip searches are outside the scope of a warrant for a search “upon person.” Strip searches are distinct from general searches in that they are more invasive and subject the person being searched to potential humiliation and degradation. For that reason, strip searches must be authorized by a warrant allowing strip searches that includes an articulable basis for the more invasive search, or by officers having particularized reasonable suspicion that the defendant has hidden contraband on his body.

Failure to advise the defendant that he had a right to refuse to consent to a search of his car was an important factor under the state constitution [not a per se rule], and here led to a finding the search was not voluntary under the totality. State v. Pals, 805 N.W.2d 767 (Iowa Sup. 2011):

Wubben then asked Pals, “Say you don't have anything, any weapons or drugs or anything like that in your vehicle, do you? Do you care if I take a look?” Wubben testified that Pals said, “[S]ure, go ahead.” Wubben and Pals exited the patrol car and approached Pals’ vehicle. Wubben began the search and, within two minutes, discovered a half gram of marijuana in the truck. At the conclusion of the search, Pals was handcuffed, advised of his Miranda rights, and placed under arrest.

. . .

The question of permissible scope of searches and seizures by law enforcement in the context of minor infractions is a major issue in criminal law today. The proper scope of police authority in the context of routine traffic stops has been the subject of countless commentaries, many cases, and a number of consent decrees. In particular, use of minor traffic infractions as a springboard to consent searches has generated charges of abuse and racial profiling. Alleged abuses by law enforcement authorities in the context of traffic stops have led to calls for major reform of police practices and even the abandonment of consent searches as a result of vehicle stops altogether.

A number of jurisdictions have entered into consent decrees that provide a framework to control the exercise of police authority during traffic stops. The consent decrees are variable. Some have prohibited law enforcement from seeking consent to search as a result of minor traffic infractions. Others have allowed consent searches if there is particularized suspicion. In some jurisdictions, reporting requirements have been imposed to inhibit the development of arbitrary police practices. In Iowa, one municipality has entered into a confidential settlement with the Iowa Civil Rights Commission related to alleged racial profiling in traffic stops. In addition to consent decrees, a number of jurisdictions have initiated limitations on consent searches pursuant to traffic stops as a matter of policy.

. . .

Several states, however, have rejected the Schneckloth approach and required that, in order for a search or seizure to be valid based on consent, the subject must provide a knowing and voluntary waiver under Zerbst. See, e.g., State v. Brown, 156 S.W.3d 722, 731-32 (Ark. 2004) (concluding that officers performing knock-and-talk procedure must inform the subject of his or her right to refuse consent to the search); Penick v. State, 440 So. 2d 547, 551 (Miss. 1983) (holding the voluntariness requirement requires a showing that the defendant knew of his or her right to refuse); State v. Johnson, 346 A.2d 66, 68 (N.J. 1975) (holding individual must have knowledge of right to refuse consent in order for consent to be deemed voluntary); State v. Ferrier, 960 P.2d 927, 932-33 (Wash. 1998) (stating that, under state constitution, knock-and-talk procedure to acquire consent requires officers to inform the subject of his or her right to refuse consent).

. . .

5. Determination of validity of consent searches under article I, section 8 in this case. In this case, we need not decide whether a knowing or intelligent waiver of search and seizure rights, such as that adopted in New Jersey, Washington, Mississippi, or Arkansas, is required to establish consent under article I, section 8 of the Iowa Constitution. An evaluation of such a per se requirement that police advise an individual of his or her right to decline to consent to a search, as is urged by LaFave and others, is reserved for another day.

Instead, we decide the case on a narrower ground. We hold, even if we apply an Iowa version of the Schneckloth-type “totality of the circumstances” test, the consent cannot be considered voluntary in this case under article I, section 8 of the Iowa Constitution. Our analysis in this case is similar to that of the Ohio Supreme Court when it addressed the consent issue on remand from the United States Supreme Court in Robinette III. (footnotes omitted)

Pro se prison inmate’s § 1983 case “alleged that he was subjected to strip and visual body cavity searches in the presence of female prison employees in violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments.” He stated no claim under the Eighth Amendment but he did under the Fourth: “Accepting Waddleton's allegations as true, which we must, ... there was no justification, penological or otherwise, for the searches conducted in this case.” Waddleton v. Jackson, 445 Fed. Appx. 808 (5th Cir. 2011).

An officer who saw an apparently hand-to-hand transaction between a group of three men and an SUV that pulled up and left had reasonable suspicion to stop them on the street. State v. Keller, 77 So. 3d 378 (La. App. 5th Cir. 2011).*

Running from the police with gun in hand is reasonable suspicion. State v. Cummings, 79 So. 3d 386 (La. App. 5th Cir. 2011).*

The affidavit for the search warrant showed probable cause based on information from the CI which was significantly corroborated and defendant’s criminal history and outstanding warrants. State v. Voltolina, 77 So. 3d 1027 (La. App. 5th Cir. 2011).*

Part of the reasonable suspicion for defendant’s stop was a “ping order” on his cell phone to keep tabs on him, conversations on a phone with snitch working for the police, and confirmation of where he was after they went to the locations provided from the pings. “Specifically, the officers had reasonable suspicion to believe that Ayers and Showes had driven to Detroit to pick up heroin and that, at the time of the Terry stop, they were in the process of transporting said heroin back to Cincinnati for further distribution.” United States v. Ayers, 2011 U.S. Dist. LEXIS 123532 (S.D. Ohio October 25, 2011).* (There is no discussion of the validity or scope or issuance of the ping order. Under Jones (see ScotusBlog) this is a huge lurking issue: Can the government follow people through their cell phones already GPS enabled and not have to install a GPS on a car?)

Defendant was stopped and his passenger fled. Defendant was compliant and removed his hands from his pocket when instructed. There was no reasonable suspicion he was armed to justify a pat down, and any suspicion as to the passenger did not relate to him. Hill v. State, 956 N.E.2d 174 (Ind. App. 2011).*

Defendant’s consent to search his car could only be understood to be for “drug activity,” and that implicitly permitted a search of his cell phone under that consent. United States v. Gilbert, 2011 U.S. Dist. LEXIS 124235 (W.D. Mo. September 30, 2011)* [Like the defendant would remotely understand that; another fiction].

Officers came to defendant’s apartment at night on a report he had a gun and asked about it under the public safety exception to Miranda. He said there was a gun inside and told them where it was. The officers were able to ascertain that there were no others in the apartment, so the entry into the apartment to seize the gun was an unreasonable warrantless entry into the home. United States v. Simmons, 661 F.3d 151 (2d Cir. 2011).*

Defendant’s reliance on Gant in his 2255 was without any basis. United States v. Hamilton, 2011 U.S. Dist. LEXIS 123346 (D. N.J. October 25, 2011).*

The inventory of defendant’s car was clearly within the local PD’s inventory policy. United States v. Crawford, 2011 U.S. Dist. LEXIS 123973 (S.D. Ohio October 26, 2011).*

Activation of blue lights when pulling up to a parked car was a stop under the Fourth Amendment, distinguishing other Ohio cases. State v. Lynch, 2011 Ohio 5502, 196 Ohio App. 3d 420, 963 N.E.2d 890 (8th Dist. 2011):

[*P28] We agree with the concurring opinion in Johnston and the reasoning set forth by the Second District in Little and Osborne. While there may be limited circumstances where the activation of police lights may not rise to the level of a stop (such as in Johnston, where the defendant pulled up behind the officer), we find that in most situations, as here, that is not the case. When a police officer pulls behind or beside a parked vehicle and activates his or her flashing lights, it is clearly a seizure within the meaning of the Fourth Amendment. The person inside the vehicle understands that he or she is not free to simply pull away. Detective Rasberry even admitted that if Lynch had pulled away, they would have arrested him for failure to comply with a police directive.

[*P29] Based upon the totality of the circumstances in this case, the detectives were not engaging in a consensual encounter when they activated their police lights, immediately exited their vehicles, and identified themselves as “police.” No reasonable person in Lynch’s position would have felt free to leave. ...

Defendant’s speeding was cause enough for a stop, and the driver was found to be under the influence. State v. Garber, 2011 Ohio 5459, 2011 Ohio App. LEXIS 4470 (5th Dist. October 21, 2011).*

A private search of a storage unit became a government search because the officer was standing by watching, and then, after drugs were found in one box, the officer entered and opened two boxes himself. The police may be present at a private search, but they cannot participate without making it a government search. State v. Archer, 2011 Ohio 5471, 197 Ohio App. 3d 570, 968 N.E.2d 495 (7th Dist. 2011):

[*P21] But when the police become involved in a private individual’s search, the probable cause and warrant requirements of the Fourth Amendment may apply; thus the courts must look to the level of police involvement to determine whether it was a private search or an unreasonable police search. Morris at 316. State v. Willis, 169 Ohio App.3d 364, 2005 Ohio 5754, 862 N.E.2d 906, at ¶28. “Official participation in the planning or implementation of a private person’s efforts to secure evidence may taint the operation sufficiently as to require suppression of the evidence. The test of government participation is whether under all the circumstances the private individual must be regarded as an agent or instrument of the state. Dillon, supra; Katz, Ohio Arrest, Search and Seizure (2005), Section 27:12 at p. 604.” Ellis, at ¶14. Although the state usually bears the burden of proving that an exception to the warrant requirement exists where a warrantless search has occurred, the defendant bears the burden of proving that there was ‘sufficient governmental involvement in seemingly private conduct’ to consider it a state search. State v. Jedd, (2001), 146 Ohio App.3d 167, at 171-2, 2001 Ohio 2479, 765 N.E.2d 880.

“It appears from the transcript of the hearing on Huey’s motion that [officer] Nicholson seemed to be at a completely different incident scene than [officer] Zinner,” and that justified the trial court disbelieving their testimony from leading questions from the DA that furtive movements justified the search. The stop was for a nonarrestable misdemeanor under Ohio law, and the search would not be justified without the convenient testimony that was rejected. State v. Huey, 2011 Ohio 5496, 2011 Ohio App. LEXIS 4501 (8th Dist. October 27, 2011).*

Left turn from center lane was not a violation of the law in this state, so the stop was without reasonable suspicion as a mistake of law. Gunn v. State, 956 N.E.2d 136 (Ind. App. 2011).*

Although there was no reasonable suspicion to believe that a probation violation had occurred, and consent to search defendant’s room was not given, his drug conviction was still upheld because defendant admitted to possession of paraphernalia that contained methamphetamine under oath at a probation revocation hearing. Nowling v. State, 955 N.E.2d 854 (Ind. App. 2011).*

Officers came to defendant’s house with a court order to seize guns. The trial court credited the consent to enter was given by one of his parents. State v. Feeney, 2011 Ohio 5474, 2011 Ohio App. LEXIS 4486 (9th Dist. October 26, 2011).*

The Linn College drug testing TRO granted back in September has been extended. See St. Louis Beacon: Order blocking drug tests at Linn State Tech echoes ruling by Florida judge by Dale Singer.

Defendant’s parole officer brought along two police officers for a home visit and search on suspicion he was communicating with minors on his phone and computer, and this was reasonable. “The court finds that the seizure of defendant's cell phone was valid under the special needs exception because Detectives Wright and Bostick were participating under the direction of Officer Radcliffe. The mere fact that defendant handed the phone to Detective Wright as opposed to Officer Radcliffe is a distinction without any Constitutional significance.” United States v. McClelland, 2011 U.S. Dist. LEXIS 123954 (D. Kan. October 26, 2011).*

Defendant did not object to the USMJ’s findings, so it is waived. On the merits, he would lose because there was reasonable suspicion anyway as to his car. United States v. Beasley, 447 Fed. Appx. 32 (11th Cir. 2011).*

There was reasonable suspicion to stop defendant’s car because it matched the description of a vehicle involved in a robbery and was near it. United States v. Hicks, 2011 U.S. Dist. LEXIS 124255 (E.D. Pa. October 27, 2011).*

Defendant attempted to walk away from the officer twice, and the officer stopped him twice without reasonable suspicion. A reasonable person would not feel free to leave after that, and the motion to suppress should have been granted. United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011):

A reasonable person in Beauchamp's position would not have felt free to leave when, after walking away from the police two times, an officer targeted Beauchamp by driving up to him, instructed him to stop, and then instructed him to turn around and walk toward the officer. Two features of the encounter compel this finding. First, a reasonable person in Beauchamp's position would perceive the separate interactions with Officer Dees and then Officer Fain as connected and an indication that the officers were targeting him. There certainly could be situations in which a reasonable person would not perceive police interactions as connected; perhaps if there was a longer period of time between interactions or if they occurred in different locations. In this case, however, Beauchamp encountered Officer Dees and walked away, and then two streets over and presumably only a few minutes later, given the short distance, Officer Fain drove up to Beauchamp. Even though Officer Dees did not say anything to Beauchamp, a reasonable person would not dismiss the initial encounter with Officer Dees as merely coincidental when a second officer, almost immediately thereafter, sped up his patrol car, parked by Beauchamp, and exited his car to initiate contact.

While some of the defendant’s actions appeared innocent, on the totality it added up to reasonable suspicion. United States v. Jackson, 2011 U.S. Dist. LEXIS 123069 (E.D. Mo. September 27, 2011), adopted 2011 U.S. Dist. LEXIS 122998 (E.D. Mo. October 25, 2011).*

Defendant was arrested on reasonable suspicion and taken to jail for a strip search. Because the arrest lacked probable cause, the motion to suppress is granted. Commonwealth v. Griffin, 79 Mass.App.Ct. 124, 2011 Mass. App. LEXIS 1334 (March 22, 2011).*

Law.com: Cell Phone Data and Expectations of Privacy by Peter A. Crusco New York Law Journal:

One can hear the din of cellular telephones everywhere: movie theaters, libraries, and restaurants, to name a few places. While cell phones keep us connected to those who are important in our lives, the technology also has the potential of exposing our movements to others. Cellular telephone transmissions record the general locations of the users through transmissions via cell towers. Over the last 50 years, Fourth Amendment doctrine has continued to evolve to keep pace with technology, endeavoring to protect the privacy and security of every individual against arbitrary intrusions by government agents. More recently, there have been significant though conflicting judicial interpretations concerning government access to cellular telephone records (cell site location information or CSLI), which data has been essential in many criminal investigations. This article will address these cases and the legal issues they present.

“Here, it is undisputed that the Defendant did not own the vehicle searched, was not near the vehicle while it was searched, and did not have keys to the vehicle. Therefore, the Defendant did not have a reasonable expectation of privacy in Daniel Rodriguez's vehicle allowing him to challenge the constitutionality of the search.” United States v. Rodriguez, 2011 U.S. Dist. LEXIS 122966 (D. Minn. October 6, 2011), adopted 2011 U.S. Dist. LEXIS 123027 (D. Minn. October 24, 2011).*

Defendant’s consent on the side of the road was voluntary. It was not withdrawn during the lengthy search. [Fiction alert: People generally do not know that they can withdraw consent to a search after it starts. This is a meaningless factor.] United States v. Beltran-Marino, 2011 U.S. Dist. LEXIS 123552 (D. Neb. October 5, 2011).*

A city ordinance on housing inspections that requires the renter to attempt to get consent from the tenant does not violate the Fourth Amendment. There is no penalty for failure to do so. Rental Housing Owners Assn. of So. Alameda County, Inc. v. City of Hayward, 200 Cal. App. 4th 81, 133 Cal. Rptr. 3d 155 (1st Dist. 2011), published October 25, 2011.*

Volokh Conspiracy: My View of the Second Question Presented in United States v. Jones, the Fourth Amendment GPS Case by Orin Kerr:

This is my second post on United States v. Jones, the case on GPS and the Fourth Amendment. In this post, I want to explore whether the act of installing the device should count a Fourth Amendment search or seizure. My bottom-line is that I find this a surprisingly difficult and open question: Justices wishing to apply the Fourth Amendment in a way that is consistent with Fourth Amendment text, history, principles, and precedents could plausibly go either way. One implication of this uncertainty is that if the Justices decide to regulate GPS under the Fourth Amendment, focusing on the installation of the device is a much better option than trying to jump into the thicket of issues discussed in my first post about use of the device once installed. At the same time, it’s worth noting two additional wrinkles. The first is the uncertain standard of reasonableness that would follow from a conclusion that installing the device is a search or seizure. The second is the important role of statutory regulation, which may deal with some of the concerns raised by those who want the Supreme Court to construe the Fourth Amendment to sharply limit GPS monitoring.

Also posted on ScotusBlog.

Defendant has no expectation of privacy in a cell phone call in public on the phone’s speaker which here happened to get recorded. United States v. Curtis, 2011 U.S. Dist. LEXIS 122858 (S.D. Fla. October 24, 2011).*

Pro se plaintiff did not state a claim that seizure of $2,900 from his wallet during booking inventory violated the Fourth Amendment or due process by not depositing it into his inmate account in the jail. Stork v. McKinley, 444 Fed. Appx. 920 (7th Cir. 2011).*

Multiple cell phones, extra gas cans, overwhelming odor of air fresheners, and no drivers license was reasonable suspicion. United States v. Banks, 2011 U.S. Dist. LEXIS 123082 (M.D. Pa. October 25, 2011).*

The search of defendant’s car that produced cash was admittedly by consent. United States v. Two Hundred & Eight Thousand Sixty Dollars, 2011 U.S. Dist. LEXIS 123127 (E.D. Mo. October 25, 2011).*

An inventory of a locked glove compartment of a car in impound was not justified on this record. However, the court decides that a search incident of a locked glove compartment was possible under Belton in Maryland, despite the fact no case dealt with it before. Therefore, Davis made that search valid. Briscoe v. State, 422 Md. 384, 30 A.3d 870 (2011):

The problem with the State’s argument is that the record before us is devoid of evidence demonstrating that the vehicle’s locked glove compartment would have been inventoried according to departmental policy, once it was towed to the impound lot. Without such evidence in the record, we are unable to conclude that the handgun would have been discovered inevitably, in a later inventory search of the locked glove compartment. See United States v. Mendez, 315 F.3d 132, 137-38 (2d Cir. 2002) (explaining that for the inevitable discovery doctrine to apply to inventory searches, the government must prove: “(1) that the police had legitimate custody of the vehicle ... so that an inventory search would have been justified; (2) that when the police in the police agency in question conducted the inventory searches, they did so pursuant to ‘established’ or ‘standardized’ procedures; and (3) that those inventory procedures would have ‘inevitably’ led to the ‘discovery’ of the challenged evidence” (citations omitted)).

In sum, the search of the locked glove compartment cannot be upheld either as a proper inventory search or as evidence that would have been “inevitably discovered” in a subsequent inventory search.

However, even though no case holds that a locked glove compartment was subject to a search incident, the court decides that the Davis good faith exception saves this search of the glove compartment:

The search of Petitioner’s vehicle was conducted on June 26, 2007. At that time, the search of the minivan incident to Petitioner’s arrest was governed by the then-prevailing Belton bright-line rule. See Gee, 291 Md. at 668, 435 A.2d at 1389-90; McCain, 194 Md. App. at 276, 4 A.3d at 66. Under Belton, a glove compartment is included in the Belton perimeter. See Belton, 453 U.S. at 461 n. 4. At the time of the search at issue, no reported decision of this Court or the Court of Special Appeals had addressed specifically whether a police officer conducting a Belton search could open a locked glove compartment.

Petitioner takes the position that, because, at the time of the search at issue, no reported decision in Maryland expressly authorized police to open a locked glove compartment as part of a Belton search, there did not exist at that time “binding appellate” Maryland authority upon which Officer Bormanshinov could have “reasonably relied” in searching the glove compartment. The State acknowledges that there was no then-existing reported Maryland decision specifically authorizing the search of a locked glove compartment. The State points out, though, that, “just prior to the suppression hearing in this case, the Court of Special Appeals [in Hamel, 179 Md. App. at 18, 943 A.2d at 696] made it clear that Belton permitted the search of a locked gloved compartment.” Petitioner replies that Hamel is of no benefit to the State, because it was filed two months after the search in question and thus could not serve as precedent upon which Officer Bormanshinov could objectively and in good faith rely. We are in general accord with the State that the Davis good-faith exception applies to the search at issue, although we take a slightly different tack in reaching that conclusion.

. . .

We therefore hold that, before Gant, binding appellate precedent in Maryland, namely Belton, dictated that searches incident to arrest of recent occupants of vehicles included searches of all containers, whether locked or unlocked, within the passenger areas of the vehicles. Officer Bormanshinov acted in objectively reasonable reliance on that authority when he searched the locked glove compartment. It follows then, that the good-faith rule of Davis applies, and the suppression court correctly denied the motion to suppress the handgun found there.

The government narrowed a child pornography website to a particular server in a server center in Los Angeles housing 2000 computer servers. Under the showing of probable cause of what was known to them at the time, the seizure of the entire server was justified by the warrant. Search of the entire server was also permitted because it was believed there was more than one child porn site on it. The court recognizes that virtually every folder can be checked for intentional mislabeling. United States v. Richards, 659 F.3d 527 (6th Cir. 2011):

Courts that have addressed the permissible breadth of computer-related searches have grappled with how to balance two interests that are in tension with each other:

On one hand, it is clear that because criminals can — and often do — hide, mislabel, or manipulate files to conceal criminal activity, a broad, expansive search of the hard drive may be required. ... On the other hand, ... granting the Government a carte blanche to search every file on the hard drive impermissibly transforms a limited search into a general one.

United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011) (citation and internal quotation marks omitted).

Our court has not yet had occasion to confront this issue in depth. Ultimately, however, given the unique problem encountered in computer searches, and the practical difficulties inherent in implementing universal search methodologies, the majority of federal courts have eschewed the use of a specific search protocol and, instead, have employed the Fourth Amendment's bedrock principle of reasonableness on a case-by-case basis: “While officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant, ... a computer search may be as extensive as reasonably required to locate the items described in the warrant based on probable cause.” United States v. Burgess, 576 F.3d 1078, 1092 (10th Cir.), cert. denied, 130 S. Ct. 1028, 175 L. Ed. 2d 629 (2009) (citations and internal quotation marks omitted). We agree with the Tenth Circuit's succinct assessment in Burgess that

it is folly for a search warrant to attempt to structure the mechanics of the search and a warrant imposing such limits would unduly restrict legitimate search objectives. One would not ordinarily expect a warrant to search filing cabinets for evidence of drug activity to prospectively restrict the search to “file cabinets in the basement” or to file folders labeled “Meth Lab” or “Customers.” And there is no reason to so limit computer searches. But that is not to say methodology is irrelevant.

A warrant may permit only the search of particularly described places and only particularly described things may be seized. As the description of such places and things becomes more general, the method by which the search is executed become[s] more important — the search method must be tailored to meet allowed ends. And those limits must be functional. For instance, unless specifically authorized by the warrant there would be little reason for officers searching for evidence of drug trafficking to look at tax returns (beyond verifying the folder labeled “2002 Tax Return” actually contains tax returns and not drug files or trophy pictures).

Respect for legitimate rights to privacy in papers and effects requires an officer executing a search warrant to first look in the most obvious places and as it becomes necessary to progressively move from the obvious to the obscure. That is the purpose of a search protocol which structures the search by requiring an analysis of the file structure, next looking for suspicious file folders, then looking for files and types of files most likely to contain the objects of the search by doing keyword searches.

But in the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image files.

Id. at 1094 (footnote omitted).

Colorlines: ICE Agent During Search: ‘The Warrant is Coming Out of My Balls’ by Jorge Rivas:

The ACLU of Tennessee filed a lawsuit this week in federal court on behalf of fifteen residents of an apartment complex in Nashville, TN who say they were targets of an unlawful immigration raid. The defendants allege that ICE agents and Metro Nashville police officers forced their way into their homes without warrants. When residents asked the officers to show a warrant, one agent reportedly said, “We don’t need a warrant, we’re ICE.” Then, gesturing to his genitals, the officer reportedly said “the warrant is coming out of my balls.”

A package consigned to Fed Ex “reeked of marijuana.” They called police who seized it, took it to the police station and opened it without a warrant in violation of the Fourth Amendment. Robey v. Superior Court, 200 Cal. App. 4th 1, 132 Cal. Rptr. 3d 510 (2d Dist. 2011), petition for review granted Nov. 1, 2011:

Was the warrantless search justified based on smell alone? Not according to the California Supreme Court. (Guidi v. Superior Court (1973) 10 Cal.3d 1 [109 Cal. Rptr. 684, 513 P.2d 908]; People v. Marshall (1968) 69 Cal.2d 51 [69 Cal. Rptr. 585, 442 P.2d 665].) To smell it is not the same as to see it. [¶] The trial court erred in denying Robey's motion to suppress evidence of the marijuana.

The officer had a kind of anonymous tip, but face to face, and he could assess the credibility of the story about defendant having a gun. It was not a situation where a gun was being brandished. The court doesn’t have to decide whether the informant’s tale is enough because, once the officer encountered the defendant, his conduct added to what the informant said, and it completed the totality of circumstances. United States v. Washington, 2011 U.S. Dist. LEXIS 122446 (S.D. Ill. October 24, 2011).*

In analyzing consent, court factors handcuffs, number of officers, familiar surroundings, no warning of right to refuse, fact defendant had been arrested before, being intelligent and “very cooperative and nice,” and telling the officers where the stuff was to find it was all by consent. “As the Fifth Circuit remarked in Martinez, ‘it would be significantly more likely for a defendant to consent voluntarily to a search that he knew would produce evidence of a crime if he had already voluntarily admitted to committing the crime.’” United States v. Jenkins, 2011 U.S. Dist. LEXIS 122225 (W.D. La. September 12, 2011).*

Cato@Liberty: A Response to Orin Kerr on GPS Tracking by Julian Sanchez:

Orin Kerr—easily one of our most lucid thinkers when it comes to applying the Fourth Amendment to new technologies—argues at Volokh Conspiracy that, while it’s a hard call whether the installation of a GPS tracking device to a vehicle counts as a Fourth Amendment “search” or “seizure,” the Supreme Court should not treat the use of such devices as a search when it decides United States v. Antoine Jones later this term. Rather, he argues, the Court should hew to a bright line test that makes monitoring “inside” protected spaces a “search” requiring a warrant, while “outside” monitoring—as, for example, of a car traveling on public roads—is always permitted, regardless of the technological means by which that monitoring is carried out, or how extensive that monitoring is in scope or duration. This is in line with Kerr’s reasoning in a thoughtful and important article about the application of the Fourth Amendment to the Internet, which I’ve already written about in this space.

Infowars.com: TSA Agent Leaves Lewd Message In Flier’s Luggage After Finding Sex Toy by Paul Joseph Watson:

UPDATE: Filipovic has since told ABC News that she found the note “offensive” and has decided to file a complaint with the TSA.

“I hope they do see the complaint, they’ll look into it and remind their staff that going through people’s personal belongings is a responsibility that should be treated with some modicum of professionalism,” Filipovic said.

Not satisfied with fumbling through Americans’ private possessions, one TSA screener saw fit to make a humiliating joke about the contents, writing a personal message on a TSA inspection note after finding a sex toy in writer Jill Filipovic’s luggage.

After arriving at her hotel, Filipovic was unpacking when she discovered her bag had been individually searched by a TSA screener who, having seen the “personal item,” saw fit to comment, writing “GET YOUR FREAK ON GIRL” on the reverse side of an inspection notice.

“Total violation of privacy, wildly inappropriate and clearly not ok, but I also just died laughing in my hotel room,” wrote Filipovic.

TPMMuckraker: Judge Orders Injunction On Florida’s Welfare Drug Testing Law by David Taintor:

A U.S. district judge on Monday ordered an injunction on a Florida law requiring welfare applicants to pass a drug test before receiving state benefits.

An ACLU lawsuit filed in September claimed the Florida law violates the Fourth Amendment by requiring welfare applicants to submit to a “suspicionless” drug test. The suit was filed on behalf of Luis Lebron, a 35-year-old Orlando resident and Navy veteran who applied for welfare benefits but refused to take the drug test.

Miami Herald here.

Defendant’s rental car was to be towed, and it was to be inventoried, and defendant asked that his stuff be safeguarded. “The officers followed the Seattle Police Department's standard inventory policy, which requires officers to search for contraband, narcotics, explosives, hazardous materials, perishable items, money and weapons. This necessarily involves looking within closed containers, thus making the officers’ search of defendant's sealed envelopes reasonable under the Fourth Amendment.” United States v. Unakalu, 455 Fed. Appx. 730 (9th Cir. 2011).

Officers found a vehicle in a one car crash with blood, but no driver or passengers were around. The officers went to the house of the registered owner and found blood on the doorknob and a key in the lock with the door unlocked. They entered to check on the owner and found her in bed with blood on her. She was intoxicated. “‘The right of the police to enter and investigate in an emergency without accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers. ***.’ United States v. Barone (C.C.A.2), 330 F.2d 543, at 545.” “We find the factual circumstances surrounding the entry into Appellee's home justified the officer's entering without a search warrant to ensure Appellee was not in need of medical attention due to injuries sustained in the accident.” State v. Wilson, 2011 Ohio 5371, 2011 Ohio App. LEXIS 4408 (5th Dist. October 18, 2011).

While there was no traffic violation justifying the stop, the mere presence of a work van driving slow in this rural Vermont area where there was no attractions to a trained border patrol agent strongly supported reasonable suspicion that the van was looking for a place to drop persons or drugs. United States v. Funez-Pineda, 2011 U.S. Dist. LEXIS 121926 (D. Vt. October 20, 2011)*:

In this case, Agent Hartness did not observe the operator of the vehicle, nor did he see the operator commit any traffic violations. A record check on the license plate did not return any suspicious information. Additionally, Agent Hartness did not observe that the van was carrying excess weight.

On the other hand, the work van’s status as a vehicle associated with smuggling, its out-of-state plates, its presence in a sparsely populated area of Vermont with no local attractions and with no discernable purpose, the early time of day, the van’s prolonged slow speed, and the proximity of Route 114 in Norton to the border all contribute to a reasonable suspicion that the van’s operator may have been engaged in smuggling activity and was looking for a place to pick up or drop off a person or contraband.

In analyzing the relevant facts, the court regards them from the perspective of a trained Border Patrol agent. ...

The 22 page affidavit for the search warrant clearly showed probable cause, and it supported search and seizure of electronic devices, here a thumb drive, where nexus was shown. United States v. Mehilove, 2011 U.S. Dist. LEXIS 121247 (D. Minn. September 15, 2011).*

Where the trial court found the search of the house illegal from its inception, the court of appeals erred in finding attenuation on its own where the state didn’t raise it. State v. Ibarra-Cisneros, 172 Wn.2d 880, 263 P.3d 591 (2011) (rev'g State v. Ibarra-Raya, 145 Wn. App. 516, 187 P.3d 301 (2008)) with two dissents:

¶9 Here, the Court of Appeals affirmed Ibarra-Cisneros’s conviction by sua sponte applying the attenuation doctrine as an exception to the exclusionary rule. It did not consider the joint treatment of Ibarra-Raya’s and Ibarra-Cisneros’s suppression motions below or the lack of a record at the CrR 3.6 hearing on the factors it articulated as supporting an attenuation analysis. Accordingly, the Court of Appeals erred in relying on the attenuation doctrine as the basis to allow the cocaine evidence against Ibarra-Cisneros.

¶10 This case does not require us to consider whether Ibarra-Cisneros has a protectable privacy interest at stake, as the State did not raise this issue below, and there is some indication that the State affirmatively waived this issue when it agreed that the brothers’ suppression motions should be treated similarly. For the same reason, there is no question here that Ibarra-Cisneros has standing to challenge the search of his brother's home. In a different case, similar facts may raise issues of standing or the extent of the petitioner's protectable privacy interest, but these issues were not raised below by the State, and we will not consider them for the first time on appeal, particularly in the absence of adequate briefing.

¶11 In light of the way this case has developed, the only fair resolution of Ibarra-Cisneros’s appeal is to treat it as the Court of Appeals treated Ibarra-Raya’s appeal. The State has not met its burden of purging the taint resulting from the unlawful home search. Rather than reaching for issues not raised below, we return this case to where it started with the acknowledgement that, because the warrantless home search was unlawful, all evidence seized as a result must be suppressed. We reverse the Court of Appeals.

Defendant’s search claim could not be raised for the first time on appeal because there was no development of the record. State v. Fenwick, 164 Wn. App. 392 (October 18, 2011).

Defendant was on the premises as a visitor at the time the search warrant was executed. It was obvious that her purse and coat were hers, and a search of them was completely unauthorized. She did not have to object to the search at the time to preserve her claim. State v. Lohr, 164 Wn. App. 414, 263 P.3d 1287 (2011):

¶21 Under a premises search warrant, law enforcement officials may search the premises owner’s personal effects, provided those effects are plausible repositories for the objects named in the warrant. Hill, 123 Wn.2d at 643. A premises warrant “merely gives law enforcement officials permission to detain occupants while they conduct the search.” Worth, 37 Wn. App. at 892. But, a premises warrant does not authorize an officer to conduct a personal search of individuals found at the premises or a search of the personal effects that individuals are wearing or holding. Hill, 123 Wn.2d at 643-44; see also Worth, 37 Wn. App. at 892. Furthermore, “Fourth Amendment protections extend to ‘readily recognizable personal effects … which an individual has under his control and seeks to preserve as private.’” Hill, 123 Wn.2d at 647 (alteration in original) (quoting Worth, 37 Wn. App. at 893).

¶22 As we discuss above, Lohr’s purse was readily recognizable as her personal effect. The relevant question in premises searches is whether an item belongs to an individual not named in the warrant and, thus, whether the item is “not just another household item” subject to the warrant. Worth, 37 Wn. App. at 893. Accordingly, if an item is readily recognizable as belonging to an individual not named in the warrant, the item is not within the warrant’s scope.

¶23 Whether the defendant controlled the item and whether the defendant tried to maintain the item's privacy are factors that aid in determining if an item was readily recognizable as belonging to someone not named in a premises warrant; but these are not independently dispositive factors. Were we to hold otherwise—i.e., that an item was readily recognizable as belonging to someone not named in the warrant, but nonetheless the search was lawful because the unnamed person did not control the item or failed to take further steps to maintain the item’s privacy (including asking the officer to stop the search)—we would turn on its head the concept of requiring consent to a search otherwise unauthorized by law. Accordingly, we hold that because Lohr’s purse was readily recognizable as her personal effect, Clary unlawfully searched her purse.

The affidavit and search warrant authorized seizure of papers from defendant’s residence, and that included the mailbox. State v. Martinez, 71 So. 3d 945 (Fla. 3d DCA 2011).

The DVD of defendant’s stop did not contradict the officer’s testimony because the video started from such a distance that one could not tell whether the defendant was in his own lane or not because of oncoming headlights. The officer’s testimony was enough for the reason to stop. Tiernan v. State, 2011 WY 143, 262 P.3d 552 (2011).*

The search of defendant’s jacket was valid incident to his arrest for safety purposes. State v. Adams, 2011 Ohio 5361, 2011 Ohio App. LEXIS 4390 (7th Dist. October 14, 2011).*

The government asserted plain view as justifying the seizure, but it violated plain view in rifling through documents. That was not a plain view. The court earlier in the opinion credited the defendants on who the raid took place since the officers couldn’t get their stories together. United States v. Hu, 2011 U.S. Dist. LEXIS 120898 (W.D. N.Y. January 21, 2011):

The government argues that “to the extent that [agent Hurwitz] may have been mistaken in his assessment of some of the articles seized, the blanket suppression of all physical evidence obtained in the Hu/Ln apartment is simply too draconian a sanction”. Government’s memorandum [687], pp.16-17.

To characterize Agent Hurwitz’s assessment of the documents seized as “mistaken” is far too charitable. He admitted that he did not even look at all of the documents before seizing them ([481], p.30), and his explanations for seizing many of the documents which he did look at strain credulity. For example, he seized a composition notebook because “people that are engaged in illegal businesses keep their records in notebooks such as this” ([481], p.34), and seized a “bill ... from Citibank, which appeared to be financial records. And there’s also papers from a bank. Metlife is an insurance company that insures properties, which could have been properties purchased with the proceeds of counterfeit merchandise”. Id., pp.37-38. When confronted with documents such as an insurance receipt and a pain clinic card which he had seized, he had no idea how they were incriminating. [507], p.121. Finally, he admitted that several of the seized documents were written in Chinese. Id., p.40.

Nor did the manner in which he observed the documents comport with the requirements of a valid plain view search. He testified that there were numerous stacks of paper, and that “[t]he documents on top were viewed; they were then seized. When they were seized, more documents were revealed; they were reviewed and seized . ... [T]he stack of paper, if the paper on top appeared to be incriminating, that stack of papers was taken” ([481], p.104). He admitted that some of the papers “were in plain view ... only after [he] moved other documents”. Id., p.105.

A recurring issue I've had to explain to clients and family members repeatedly lately: A violation of Riverside’s 48 hour rule does not lead to dismissal of charges. And, a state’s violation of Riverside’s 48 hour rule is irrelevant to federal prosecution after feds took case over. A quick summary of the law in United States v. Salinas, 2011 U.S. Dist. LEXIS 121110 (D. Kan. October 19, 2011):

To safeguard an individual’s right to be free from unreasonable search and seizure, the Fourth Amendment requires judicial determination of probable cause within 48 hours of a warrantless arrest.8 If a suspect remains incarcerated after 48 hours, the government bears the burden of proving an emergency or other extenuating circumstances that justify the delay.9 The Supreme Court has declined to articulate the appropriate remedy in the event the government violates the Fourth Amendment by exceeding the 48-hour rule.10

8 Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991) (citing Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975)); see also U.S. Const. amend. IV.

9 McLaughlin, 500 U.S. at 57.

10 See Powell v. Nevada, 511 U.S. 79, 85, 114 S. Ct. 1280, 128 L. Ed. 2d 1 n.* (1994) (“Whether a suppression remedy applies in that setting remains an unresolved question.”).

. . .

Second, the government did not violate Salinas’s Fourth Amendment rights because he appeared before a federal magistrate less than 24 hours after Salina’s arrest by federal officials.23 It is inarguable that Salinas did not receive a judicial determination of probable cause on state charges within 48 hours of his arrest by state officials. But as Salinas acknowledges, no precedent authorizes the dismissal of a federal indictment as a remedy for constitutional violations by the state.24

23 McLaughlin, 500 U.S. at 56. The Supreme Court has noted that hearings held within the 48-hour period may nonetheless violate the Fourth Amendment if the detainee “can prove that his or her probable cause determination was delayed unreasonably.” Id. In this case, however, Salinas has not made any allegation that there was unreasonable delay between the time of his arrest by federal officers and his appearance before the magistrate judge.

24 See, e.g., United States v. Headdress, 953 F. Supp. 1272, 1294 (D. Utah, 1996) (noting that 48-hour rule announced in McLaughlin did not take effect with respect to federal charges until the defendant was arrested by federal officers).

Reason magazine: Michigan Sheriff: Random Narcotics Checkpoints Are Totally Constitutional by Lucy Steigerwald:

Genesee County, Michigan Sheriff Robert Pickell is not concerned about the constitutionality of his new method of keeping Flint free of illegal drugs. Fourth Amendment fans, medical marijuana patients, and jumpy motorists are less sure.

According to the Detroit Free Press:

At least seven times [in October] motorists have said they have seen a pickup towing a large sign on I-69 or U.S.-23 that depicts the sheriff's badge and warns: "Sheriff narcotics check point, 1 mile ahead -- drug dog in use."

The checkpoints are part of a broad sweep for drugs that [Pickell] and his self-titled Sheriff's Posse said are needed, calling Flint a crossroads of drug dealing because nearly a half-dozen major roads and expressways pass in and around the city. Pickell said he decided to try checkpoints when he learned that drug shipments might be passing through Flint in tractor-trailers with false compartments.

Apparently nobody read Edmond. This isn't even a close call. And there will be no qualified immunity for a damages action since Edmond dates from eleven years ago. See Malley v. Briggs: "As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Or Brandeis's dissent in Olmstead:

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

Plainly incompetent? Without understanding? Here is Exhibit 1.

Or Johnson:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Metropolitan News-Enterprise: California S.Ct. grants review in People v. Buza (2011) 197 Cal.App.4th 1424 re DNA testing on arrest.

The California Supreme Court has agreed to decide whether state law requiring the taking of DNA samples from felony suspects following arrest is constitutional.

The justices, at their weekly conference in San Francisco Wednesday, unanimously granted review in People v. Buza (2011) 197 Cal. App. 4th 1424.

The First District Court of Appeal, Div. Two, ruled Aug. 4 that Proposition 69, the DNA initiative approved by voters in November 2004, violates the Fourth Amendment to the extent it provides for the taking of DNA samples from felony arrestees in the absence of a judicial determination of probable cause.

NewsChannel5.com: Tennessee Becomes First State To Fight Terrorism Statewide By Adam Ghassemi:

PORTLAND, Tenn. -– You're probably used to seeing TSA's signature blue uniforms at the airport, but now agents are hitting the interstates to fight terrorism with Visible Intermodal Prevention and Response (VIPR).

"Where is a terrorist more apt to be found? Not these days on an airplane more likely on the interstate," said Tennessee Department of Safety & Homeland Security Commissioner Bill Gibbons.

Tuesday Tennessee was first to deploy VIPR simultaneously at five weigh stations and two bus stations across the state.

See 'Nazi-style' TSA roadside checkpoint rights abuses in effect by Deborah Dupre.

Defendant was accused of buying child pornography from a Russian company called CP Company and sending money through Western Union. The government identified numerous people, but targeted nine by the dollar amounts of purchases which came from one of the company’s websites. While the IP address was linked to defendant, it was not to an address. When this was added to the Western Union money orders and an address, that was probable cause and nexus to defendant’s house. United States v. Roach, 2011 U.S. Dist. LEXIS 120446 (D. Kan. October 18, 2011).*

The court credits the officers’ testimony that the stop was justified, and the evidence is uncontroverted that defendant consented to the search. United States v. Traylor, 2011 U.S. Dist. LEXIS 120129 (D. Nev. August 30, 2011).*

The stop of defendant lacked reasonable suspicion or probable cause, so the seizure of evidence from the car was invalid. The officer’s testimony was that he stopped the defendant for ignoring a traffic signal at the intersection in his report when it was undisputed that there was no traffic signal there. United States v. Nelson, 2011 U.S. Dist. LEXIS 120765 (D. Nev. September 27, 2011),* affd 2011 U.S. Dist. LEXIS 120684 (D. Nev. October 17, 2011) (government did not even object).

A protective sweep of defendant’s motel room was valid even though he was stopped 20-75' away from the room. They had reasonable suspicion that others could have been in the room where the door to the room was left ajar. Also, defendant’s citing the state constitution in his federal motion to suppress is pointless. United States v. Loman, 2011 U.S. Dist. LEXIS 120398 (E.D. Ky. August 16, 2011):

The Court draws guidance from United States v. Biggs, 70 F.3d 913 (6th Cir. 1995). The defendant in Biggs was arrested 20-75 feet outside his motel room when he came out into the parking lot, leaving the door ajar. Id. at 915-16. Officers then entered the room to perform a protective sweep, at which time they discovered a gun in plain view. Id. at 915. Although police did not see anyone else enter the room during the two-hour surveillance period that preceded the arrest, the officers had previously received information that someone was going to meet the defendant there, and on two prior arrests, the defendant had been accompanied by someone with a firearm. Id. at 915-916. Those facts were held sufficient to warrant a Buie sweep. Id. at 916; see also United States v. Stover, 474 F.3d 904, 911-12 (6th Cir. 2007) (protective sweep justified where police identified car at residence registered to local criminal); Perkins v. United States, 127 F. App'x 830, 835 (6th Cir. 2005) (protective sweep justified where, although two men who officers had observed enter a residence had been arrested, a woman who had answered a phone call had not yet been located); United States v. Taylor, 248 F.3d 506, 512-14 (6th Cir. 2001) (considering apartment occupant's “overtly nervous behavior” in approving protective sweep).

The “articulable facts” on which the United States bases its initial search of Loman’s bedroom are that (1) Defendant initially refused to show his hands and step out of the bedroom, Tr. at 11, and he repeatedly looked back into the room; (2) the officers who conducted the sweep of the bedroom had not yet found two of the three men Mrs. Loman said were inside the house; and (3) the Deputy Marshals were aware of Defendant's criminal history -- including convictions, charges, and suspicions. The Court finds that these facts and the rational inferences that arise from them would warrant a reasonably prudent officer in believing the bedroom may harbor an individual posing a danger. Under these circumstances, like in Biggs, the fact that Basic had already been arrested and removed from the home by the time the protective sweep occurred did not eliminate the safety considerations justifying the search.

At the suggestion of the ICE, the RCMP searched defendant’s property and a helicopter in Yale, BC for alleged authorized flights across the border into the US. Defendant alleged that the search violated the Canadian Charter of Rights and Freedoms [§ 8]. The RCMP’s search did not shock the judicial conscience. United States v. Rosenau, 2011 U.S. Dist. LEXIS 120371 (W.D. Wash. October 18, 2011):

Generally, neither the Fourth Amendment nor the judicially created exclusionary rule applies to searches conducted by foreign authorities in their own countries. See United States v. Rose, 570 F.2d 1358, 1361 (9th Cir. 1978). The Ninth Circuit, however, has recognized two very limited exceptions to the general rule that Fourth Amendment protections are inapplicable to actions of foreign agents conducted in foreign countries. The first is “if the circumstances of the foreign search and seizure are so extreme that they shock the judicial conscience.” United States v. LaChapelle, 869 F.2d 488, 489 (9th Cir. 1989). The second applies when “United States agents' participation in the investigation is so substantial that the action is a joint venture between United States and foreign officials.” United States v. Peterson, 812 F.2d 486, 490 (1987).

First, Defendant's assertion that the RCMP conducted a warrantless search of his property and his helicopter (Dkt. No. 32), even if true, cannot be said to shock the judicial conscience. This is an exacting standard, where exclusion is not based on Fourth Amendment jurisprudence, but rather on the recognition the Court may employ supervisory powers when “absolutely necessary to preserve the integrity of the criminal justice system.” United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995). Defendant offers no facts indicating that his treatment by Canadian officials rises to the level requiring judicial intervention to protect the integrity of the criminal justice system.

Second, the Court need not reach the issue of whether a joint venture existed, because the exclusionary rule applies only if it was objectively unreasonable for U.S. officers to rely on the assurances of their foreign counterparts. Peterson, 812 F.2d at 492. In Peterson, the Ninth Circuit directed courts to consider whether American law enforcement officers were in an advantageous position to judge whether the foreign search was lawful, and whether it serves the purpose of deterring unlawful behavior to hold U.S. agents strictly liable for the failings of their foreign associates. Id. Here, Defendant offers no facts indicating that it was objectively unreasonable for U.S. authorities to rely on the assurances of Canadian officers. Therefore, there is no basis for the Court to suppress evidence obtained by the Canadian authorities.

Whether the consent was to “check” the room or “search” his hotel room, defendant understood it was for drugs and that permitted the officers to look where drugs might be found. A small safe was represented to contain only papers, but it rattled when shaken. When officers got a search warrant for the room, it did not mention the safe, but it still could be searched under a warrant for the room for drugs and paraphernalia. United States v. Rios, 434 Fed. Appx. 648 (11th Cir. 2011):

Additionally, the search warrant itself described the location of the hotel and specific directions to the room to be searched, including the room number. It authorized officers to search that room and to seize, among other things, “controlled substances[;] controlled substance residue”; equipment “used or reasonably believed to have been used to cut, weigh[,] package, store[,] and transport controlled substances”; and “firearms, firearms accessories, ammunition[,] or firearms storage devices.” Therefore, the warrant itself sufficiently described the place to be searched, and sufficiently described the things to be seized. See U.S. Const. amend. IV. And, because this was a “lawful search of fixed premises” for controlled substances and firearms, the officers had the authority to open the locked safe. Ross, 456 U.S. at 820-21; see also Jackson, 120 F.3d at 1228-29. Accordingly, the district court did not err in denying Rios’s motion to suppress.

. . .

We have no case law that squarely answers the question before us -- whether it is a violation of the Fourth or Fifth Amendments for the government to comment at trial on a defendant’s refusal to consent to a warrantless search. But even if we were to assume, arguendo, that it was improper for the government to comment at trial on Rios's refusal to consent to the search of the safe, we need not reach the question, because the government has shown that the error, if any, was harmless beyond a reasonable doubt. Gari, 572 F.3d at 1362.

Politico.com: Digital data privacy rules turn 25 by Tony Romm:

Congress first penned the rules for how law enforcement may obtain digital data for investigations in 1986, long before most Americans — save academics and the military — had even used the Internet.

And as the Electronic Communications Privacy Act turns 25 this week, members of Congress are hearing it is time to revisit a law that never anticipated the day consumers would use Gmail, Facebook, Twitter, the iPhone and other tech staples of the digital age.

Lawmakers have updated the statute over the years, but disagreements linger in 2011 over how best to revise it again. In addition, the Department of Justice has actively avoided changes to the ECPA that might curtail its broad powers — maligned by privacy hawks and civil libertarians alike — to investigate crimes involving digital evidence.

A search warrant for a body cavity search for heroin and cocaine allegedly secreted in the body permitted an x-ray when a digital search was unavailing. On a balancing of interests, this search was reasonable under Schmerber. Spencer v. Roche, 11-1146 (1st Cir. October 18, 2011):

It is a piece of constitutional bedrock that individuals have a reasonable expectation of privacy regarding their bodies. Thus, a physical intrusion below the skin constitutes a search within the purview of the Fourth Amendment. See Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 616-17 (1989). Because individuals possess a strong interest in their bodily integrity, a nonconsensual intrusion into the body requires a particularly robust justification. See Schmerber v. California, 384 U.S. 757, 767-68, 772 (1966).

Withal, not every intrusion into an individual's bodily integrity offends the Fourth Amendment. An inquiring court must weigh the nature of the particular intrusion against the totality of the circumstances surrounding it to determine the reasonableness of the search. See Winston v. Lee, 470 U.S. 753, 760 (1985).

. . .

In general, compelled x-rays have been viewed favorably by courts, given an appropriately supported level of suspicion. For example, courts have approved x-ray searches performed at border crossings when customs officials had reasonable suspicion that drugs were being smuggled internally. ...

Similarly, the Second Circuit has upheld an x-ray search of a criminal defendant who had set off a metal detector on his way to hear the jury’s verdict. ... And this court has described an x-ray as a “much simpler, less invasive procedure” than surgery. ...

We hold today that the x-ray search of the appellant's anal cavity passed muster under the Fourth Amendment. ...

The fact an officer does not give a citation is not determinative of whether there was reasonable suspicion for the stop in the first place. Mosley v. State, 89 So. 3d 41 (Miss. App. 2011).*

The stop was for a seat belt violation, but the officer encountered the strong smell of burnt marijuana as he approached. From the video, it is apparent that defendant consented, but the officer had probable cause from the smell of marijuana. Austin v. State, 72 So. 3d 565 (Miss. App. 2011).*

Officers had reasonable suspicion to believe that the defendants were involved in a carjacking because they fit the description in the BOLO and near the scene and they were evasive as officers approached. This was more than a here hunch. State v. Davis, 354 S.W.3d 718 (Tenn. 2011).*

Defendant’s mother, a visitor to the house, could consent to an entry. As far as the officers were concerned, she had apparent authority. Here, her daughter was taking a nap and did not hear the officers at the door. State v. Barkhausen, 2011 Iowa App. LEXIS 1139 (April 27, 2011).*

Defendant’s stop in a Wal-Mart parking lot on suspicion of DWI was initiated by a 911 call from a Wal-Mart employee who met the officer in the parking lot. Defendant was apparently under the influence. A drug dog was present and alerted. The finding of consent did not have to be reached. United States v. Chavez, 660 F.3d 1215 (10th Cir. 2011).*

Defendant was Mirandized and then told the officers where his Dilaudid was hidden. That was consent. Cox v. State, 75 So. 3d 325 (Fla. 1st DCA 2011).*

A woman wearing baggy clothes but keeping her legs close together was a factor in reasonable suspicion[!]. United States v. Gilmore, 2011 U.S. Dist. LEXIS 119609 (S.D. Fla. October 4, 2011)*:

Based on the totality of the circumstances, we conclude that the officers had reasonable suspicion to detain and search the Defendant. Also, the officers had probable cause to arrest and conduct a pat-down search incident to that arrest. The salient objective facts supporting our conclusion are: 1) Officer Cardeso observed an individual pass a marijuana cigar, he smelled the odor of burnt marijuana and observed smoke (reasonable suspicion to investigate); 2) Officer Sosa observed Defendant drop a small bag that looked to contain marijuana (probable cause to arrest); and, 3) because Defendant wore baggy clothes, acted nervously, was fidgety, and kept her legs close together, Officer Gamez was justified to search Defendant for concealed narcotics or a weapon (reasonable suspicion to conduct pat-down search).

Police received a report of a man in a car in a parking lot with a large amount of drugs and they went to investigate. When they got there they found a car matching the description, and defendant was in the car. He wouldn’t respond to police commands to keep his hands where they could see them, and that led to a valid pat down for safety purposes. State v. Carroll, 2011 Ohio 5255, 2011 Ohio App. LEXIS 4331 (8th Dist. October 13, 2011).*

A mere technical error in an arrest warrant does not void the warrant. United States v. Cox, 2011 U.S. Dist. LEXIS 119737 (D. N.J. October 17, 2011):

Under Third Circuit law, a “mere technical error does not automatically invalidate the warrant.” United States v. Carter, 756 F.2d 310 (3d Cir. 1985)(holding that inaccuracy in the date of the offense in a criminal complaint is not a material or critical variance). The key inquiry is “whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Id. at 313, quoting Cromer v. United States, 142 F.2d 697, 78 U.S. App. D.C. 400 (D.C. Cir. 1944). Such affects would occur if: 1) the accused is not informed as to the charges against him so as to enable him to present his defense and not be taken by surprise by the evidence offered at trial; and 2) the accused is not protected against another prosecution for the same offense. Cromer, 142 F.2d at 698. When a defendant alleges warrant invalidity, he must prove that “the misstatement was made intentionally or with reckless disregard for the truth.” Carter, 756 F.2d at 313; see Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

The “the unrelated questioning” process which led to consent to search the defendant’s vehicle during a legal traffic stop was valid. United States v. Sandreth, 2011 U.S. Dist. LEXIS 119510 (D. W.Va. October 17, 2011), R&R 2011 U.S. Dist. LEXIS 119505 (N.D. W. Va. September 21, 2011).*

Nostalgia moment: Today is the 38th Anniversary of the "Saturday Night Massacre," which happened a mere six weeks after I got my law license.

What a night, and it was before the 24/7 news cycle, and the networks covered it all. Richard Nixon then lost nearly all support even from his friends.

Daily Kos: TSA Arrests Me for Using the Fourth Amendment as a Weapon (Tales from the Edge of a Revolution #2):

Oct. 17, 2011
Albuquerque International Sunport Security Checkpoint:

I pass a camera crew filming the ticket counter. I stop and consider telling them what I am about to do, but decide against it. They probably won't care. Instead, I wheel my baggage to the security area.

I can feel my heart beat in my chest. I've never done anything like this. I've always said “Yes sir,” even when I didn't agree. Even this simple act fills me with conflicting emotions.

New Mexico is far warmer than my native Pacific Northwest. I'm sweating by the time I reach the first inspection of my ID. I'm sure I already look like a terrorist. The TSA agent, perched on his stool, takes no notice. I look enough like my driver's license and I have a valid airline ticket. He black lights my ID and lets me pass with hardly a glance.

Defendant challenged defense counsel’s performance at this suppression hearing for not adequately challenging the search. Based on what defense counsel did not present and the government’s argument in its appeal brief, the court determines that defendant had standing to challenge the search after all, but he would fail on his Franks challenge. [“Further support for the assertion that Defendant would be entitled to claim some degree of standing is found in the Government’s appellate brief, in which it argues that the search was conducted at a location where Defendant ‘routinely resided’ (doc. 213, att. 1 at 6 (page 7 of the brief, page 6 of the exhibit)).”] United States v. Smith, 2011 U.S. Dist. LEXIS 119199 (N.D. Fla. September 23, 2011).*

The search of defendant’s safe is found to be by voluntary consent. United States v. Matayoshi, 2011 U.S. Dist. LEXIS 119048 (M.D. Fla. September 22, 2011).*

Defense counsel was not ineffective for not challenging the search warrant for defendant’s computer because defendant had no expectation of privacy from leaving his computer connected to the internet for P2P searches of his hard drive. United States v. Samples, 2011 U.S. Dist. LEXIS 119040 (N.D. Tex. September 15, 2011).*

Forbes.com: IRS Chides Collector For Going After Tax Cheat's E-mail Without A Warrant by Kashmir Hill:

A branch of the IRS in Newark wants to collect $250,000 from a scamster who turned tax day into a pay day by improperly claiming loads of tax credits. (His home office must be the size of New Jersey.) The revenue officer on the case figured out that the shady taxpayer (or taxunpayer, rather) had an e-mail alter ego, so the officer contacted that Internet Service Provider (ISP) for the account and asked for all e-mails from the last two years, hoping to figure out where the money had been sent so that it could be retrieved. The officer may be intimately familiar with the tax code, but seems to be uninformed about electronic privacy laws.

After the ISP, which is not identified in an IRS document describing the case, refused to comply with the request, citing a law marking its 25th birthday this week that requires the gov to have a warrant for e-mails from the last 6 months (though not for e-mails older than that), the officer turned to the IRS general counsel for help. As noted by Forbes contributor Peter Reilly, IRS lawyer William Spatz informed the revenue officer that the ISP knew the law, and that the IRS would be limited in what it could get its hands on due to the “the current controversy concerning the constitutionality under the Fourth Amendment of the SCA [Stored Communications Act].”

Two women were tased in separate occurrences, one who wouldn’t get out of a car (tased twice) and the other in a domestic dispute who stood between the officer and her husband trying to defuse the situation. Excessive force cases, however, are fact dependent, and the Supreme Court hasn’t spoken, so the officers’ conduct was subject to qualified immunity. Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc, 6-4):

Finally, Graham’s general excessive force standard cannot always, alone, provide fair notice to every reasonable law enforcement officer that his or her conduct is unconstitutional. See Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (per curiam) (explaining that Graham and Tennessee v. Garner, 471 U.S. 1 (1985), “are cast at a high level of generality” and cannot, in every case, “offer a basis for decision”). The Supreme Court has stated, however, that “in an obvious case, these standards can ‘clearly establish’ the answer, even without a body of relevant case law.” Id. at 199 (citing Hope, 536 U.S. at 738). Although this “obvious case” exception remains good law, the Supreme Court recently clarified that the bar for finding such obviousness is quite high. In al-Kidd, the Court emphasized that it has “repeatedly told courts not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” 131 S. Ct. at 2084 (citations omitted).

In tasering cases:

we proceed to determine whether Jones’s use of the taser against Brooks in this case was reasonable, keeping in mind the magnitude of the electric shock at issue and the extreme pain that Brooks experienced. See Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009) (noting that a woman who was tased in drive-stun mode experienced “extreme pain” and “felt a sharp pain where the Taser met her arm, with the pain radiating from her upper arm and causing her muscles to clench”).

In evaluating the reasonableness of Jones’s action, we consider the governmental interests at stake and begin with (1) how severe the crime at issue was, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Deorle, 272 F.3d at 1279-80.

Plaintiffs pled a Fourth Amendment violation, but the court concludes that the officers were entitled to qualified immunity because the law was unsettled.

Judge Kozinski dissented in part:

The Fourth Amendment proscribes only unreasonable searches and seizures. Police need not use the least necessary force, see Luchtel v. Hagemann, 623 F.3d 975, 982 (9th Cir. 2010), but the officers here did just that. Nevertheless, the majority finds their actions unconstitutional, and thereby deters officers from employing a safe, effective technique for subduing uncooperative subjects. This will cause police to resort to more dangerous methods in the future. Count me out.

. . .

Faced with these utterly positive results, despite Brooks’s stubborn effort to put herself and her unborn daughter in harm’s way, the majority is reduced to counting the seconds between Tasings, finding that the “rapid succession provided no time for Brooks to recover ... and reconsider her refusal to comply.” Majority op. at 19023. Bull pucky! Although Brooks claims she was “scared” and “in shock” after the initial Tasing, she also admits that she began yelling for help and honking her car’s horn. Stepping into the shoes of a reasonable officer at the scene, as we must, see Graham, 490 U.S. at 396-97; Luchtel, 623 F.3d at 980, Brooks’s actions weren’t those of someone dazed and befuddled, unable to think about what to do next. They bespoke a deliberate decision to continue her defiance. A single drive-stun application having already proved insufficient inducement to Brooks’s compliance, the double dose was an objectively reasonable next step and was therefore entirely constitutional. See Scott v. Harris, 550 U.S. 372, 381-82 & n.8 (2007).

. . .

The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.

Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety. One can only hope the Supreme Court will take a more enlightened view.

See Orin Kerr on Volokh Conspiracy.

Defendant agreed at the trial court that there was no suppression issue, and the trial court found the search legal. Just because the trial court sustained the search, the defendant waived any challenge to the search by agreeing in the trial court. People v. Cordova, 293 P.3d 114 (Colo. App. 2011):

At trial, defendant did not contend that the search violated the Constitution. Nor did he direct the court to the applicable constitutional considerations or explain how those principles should be applied to the evidence the prosecution presented. To the contrary, defense counsel told the court there was “no reason to suppress” the knives based on an improper search. Thus, although the court ruled that the vehicle search and the seizure of the knives were proper, it did so without the benefit of a complete record and argument addressing the specific issues defendant now raises.

Therefore, we reject defendant's contentions that the court’s ruling preserved the issue and that we should review that ruling for constitutional harmless error. Instead, we conclude that defendant waived the legality of the search and that the court's ruling did not negate that waiver. Accordingly, we decline to address the legality of the search.

[posted 10/23]

The officer here lacked probable cause to believe that defendant had driven his car drunk to the private property where he was found intoxicated. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).*

While the entry onto the defendant’s property was probably illegal, the defendant consented after conferring with his wife by telephone and said he wanted to cooperate. Considering attenuation analysis, the consent was truly attenuated from the first illegal entry. Stevens v. Commonwealth, 354 S.W.3d 586 (Ky. App. 2011).*

Defendant was stopped for a headlight being out, and he was going to get a warning. Defendant, however, was excessively nervous, and immediately after telling the defendant he was going to get a warning the officer asked for consent, and the consent was not invalid for delay. Nix v. State, 312 Ga. App. 43, 717 S.E.2d 550 (2011).*

The address on the search warrant was wrong, but the right one was searched. [Not the question.] The officer getting the search warrant knew the correct place to be searched because he’d been there before, and it was unlikely the wrong place would be searched. In addition, that it was the right place was confirmed by an occupant who told the officer where to find what they were looking for. Ritter v. State, 2011 Ark. 427, 385 S.W.3d 740 (2011)*:

In the present case, the warrant contained an incorrect address, thus increasing the likelihood of searching the wrong residence. But this likelihood was mitigated by the fact that the officers executing the warrant personally knew which premises were to be searched and the fact that the intended location was under surveillance while Lt. Vanravensway secured the warrant. In addition, the affidavit included facts indicating that it was the Ritter residence, not the Rideout residence, that was intended to be searched. After listing numerous facts about Ritter and referring to the Ritter residence, Lt. Vanravensway noted that Special Agent Mendenhal had learned from Ms. Ritter that Ritter had left their residence with a gun and returned approximately thirty minutes later, still carrying the gun. The affidavit also stated that Ms. Ritter told Special Agent Mendenhal that she had placed the gun under a mattress in the Ritter residence. Moreover, Chief Deputy Staggs testified that, while waiting to begin the search, he walked past Ms. Ritter and asked her how she was doing, and Ms. Ritter told him, “The gun you’re looking for is under the mattress. There’s [a] pillow case with some shotgun shells under there as well.” Ms. Ritter’s statement, made shortly before the warrant was executed at the Ritter residence, further mitigated the likelihood that the officers were at the wrong residence. Finally, the premises that were intended to be searched were, in fact, searched. We hold that the circuit court did not err in denying Ritter’s motion to suppress.

The record supports the trial court’s conclusion that defendant consented to search of his person. Webb v. State, 2011 Ark. 430, 385 S.W.3d 152 (2011).*

While the dog sniff of claimant’s bag was ninety minutes later, and seemed to be unreasonable under United States v. Place, the police were as expeditious as possible, and the delay was reasonable under the totality, and Place is distinguishable. United States v. $60,020.00 United States Currency, 2011 U.S. Dist. LEXIS 117947 (W.D. N.Y. September 12, 2011):

When viewed in the context of overall reasonableness and not simply the duration of the detention alone, I conclude that the delay of ninety minutes or so to await the arrival of Odie [the dog] was reasonable under the Fourth Amendment. Unlike the facts of Place where the actions of the DEA demonstrated a lack of diligence, the actions of law enforcement here reflected an immediate effort to conduct their investigation of the seized property and determine whether they had a basis to retain it. Within minutes after being summoned to the secondary screening area at the airport, Monroe County Sheriff Deputy Kenneth Carpenter met Luke, assessed the situation regarding the discovery of the two bundled bricks of currency and notified his supervisor Sergeant Mark Jenis. Carpenter briefed Jenis who immediately made the decision to call in additional resources relevant to narcotics investigations-one of whom, Sergeant Vadas, was the handler of Odie. Because of the early hour, Jenis paged Vadas and also left a message on his cell phone. Vadas recalls receiving Jenis’s call at home at approximately 6:00 a.m. After receiving the call, Vadas drove to the airport with Odie. Vadas and Odie arrived at the airport and their search was completed by 6:53 a.m. Thus, less than an hour after being called at home by Jenis, Vadas had driven to the airport and had Odie complete the narcotic detection search.

Unlike Place, the time line here supports a finding that given the particular circumstances they were presented with, “the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” Sharpe, 470 U.S. at 686. Luke has not argued that a trained canine like Odie could have or should have arrived at the airport earlier. ...

The officer testified that the defendant completely crossed over into the other lane, and that justified the stop. The video showed the wheels just barely crossing, and that was not sufficient for a stop under state law. State v. Sanders, 2011 Tex. App. LEXIS 8115 (Tex. App. — San Antonio October 12, 2011).*

Defendant’s host of issues are rejected: “(1) the application for the search warrant contains material misstatements of fact; (2) the Affiant omitted material information from the Affidavit; (3) there was a lack of corroboration on information received; (4) the Affidavit contained excessively stale information; (5) there was no nexus between the items sought and criminal activity associated to those items; (6) the officer used the search for business-related records as a pretext to search for other evidence; and (7) the officers searched beyond the scope of the Search Warrant.” United States v. Murphy, 2011 U.S. Dist. LEXIS 117943 (S.D. Ohio October 12, 2011).*

There was cause to stop the defendant’s vehicle for a traffic offense, and he consented to a search of the vehicle. United States v. Valdez, 2011 U.S. Dist. LEXIS 118328 (D. Neb. September 12, 2011).*

HuffPo: Airport Security Checkpoint Of The Future Unveiled:

A mock-up "checkpoint of the future" could spare air travelers the hassle of TSA liquid checks, shoe removal and pat-downs, while speeding up security for almost all fliers.

Those wishing to see the system, first introduced in June, can now catch a glimpse at an aviation security conference in Amsterdam. The hi-tech set up retains the familiar lane set-up -- but the similarities end there reports the Daily Mail.

The new system has passengers walking through one of three 20-foot tunnels, marked "enhanced," "normal" or "known traveler," a reference to programs in which fliers submit personal data before flying in exchange for lighter scrutiny at checkpoints. Equipment in each tunnel would scan passengers as they walk through -- meaning no more x-ray machines, emptying of pockets or removing of shoes and jackets.

Search of pharmacy records to show that defendant was obtaining the same controlled substance from two doctors at the same time was not a violation of HIPAA or state law. State v. Thompson, 72 So. 3d 246 (Fla. 2d DCA 2011), following State v. Tamulonis, 39 So. 3d 524, 527 (Fla. 2d DCA 2010).

A police pursuit into an adjoining town would not lead to suppression under inevitable discovery because an officer from that town arrived at the scene as the pursuing officer was making the arrest. Commonwealth v. Lahey, 80 Mass. App. Ct. 606, 954 N.E.2d 1131 (2011).*

An officer responded to a shots fired call and found only one vehicle which he attempted to stop and the driver took thirty seconds to stop without apparent justification. The officer could reasonably believe there was a gun in the car, and, once stopped, he smell marijuana coming from the car. Then there was probable cause. United States v. King, 2011 U.S. Dist. LEXIS 117609 (D. Utah October 11, 2011).*

Defendant had no standing to contest the installation of a GPS device on the CI’s car that he got in, even if the court followed Maynard. United States v. Okafor, 2011 U.S. Dist. LEXIS 117030 (D. Minn. August 18, 2011), adopted 2011 U.S. Dist. LEXIS 114563 (D. Minn. October 4, 2011):

Here, there is no indication that Defendant treated his business lot as private. The entire lot can be viewed and used by the public. And the GPS tracking of the CI’s vehicle into the fenced lot adjacent to Defendant’s business did not invade Defendant’s reasonable expectation of privacy either. Entrance to both the business parking lot and the adjacent lot across the street is gained from a public street and both lots were visible by officers with their naked eyes from public areas. Although the adjacent lot was surrounded by a chain-linked fence with a locked gate, Defendant himself unlocked the gate to allow the CI access and there was no other indication that the adjacent lot was “private.” In fact, Defendant testified that he used the adjacent property to store customer vehicles for his automotive business because there was not enough room to store them on his business lot. In other words, if there would have been room across the street, presumably he would have stored the vehicles there in the open business lot. Therefore, this Court concludes—similar to the court in Reed—that the adjacent lot was a “semi-private area” but was not an area in which Defendant had a reasonable expectation of privacy. Reed, 733 F.2d at 501.

Officers executed a no-knock warrant to search defendant’s residence. The entry was accomplished with an armored vehicle, a large complement of officers, noise-flash accompaniment, and a formidable show of force. Even this “shock-and-awe” entry would not lead to exclusion of the evidence under Hudson and Herring. United States v. Garcia-Hernandez, 659 F.3d 108 (1st Cir. 2011):

For one thing, the circumstances to which the defendant adverts do nothing to satisfy the requirement of but-for causation. Even if the officers had knocked, announced, and politely entered the defendant’s dwelling, the incriminating evidence would have been found when they conducted the search. The exclusionary remedy is unavailable when, as in this case, there is no causal link between the constitutional violation alleged and the evidence discovered during the ensuing search. See Hudson, 547 U.S. at 592.

For another thing, we do not accept the defendant’s claim that an aggressive manner of entry materially alters the decisional calculus employed in Hudson. The defendant insists that there are compelling reasons to discourage officers executing search warrants from engaging in "military assault" tactics and that those reasons outweigh the social costs incident to employing the exclusionary rule. But this is nothing more than an ipse dixit, and we fail to see how the level of force used tips the Hudson balance. After all, the Court recognized that the chief benefit of applying the exclusionary rule to knock-and-announce violations would be its deterrent effect on police misconduct. See id. at 596. The Court nevertheless concluded that the social costs of imposing exclusion outweighed that benefit. Id. In cases alleging a failure to knock and announce, the Court reasoned, police misconduct could be effectively deterred through civil suits, thus negating the need to invoke the extreme remedy of exclusion. Id. at 596-99. That the officers in this case used shock-and-awe tactics does not undermine this reasoning.

In an effort to change the trajectory of the debate, the defendant notes the Hudson Court’s discussion of the important interests safeguarded by the knock-and-announce rule: “protection of human life and limb,” “protection of property,” and “protect[ion] ... of privacy and dignity.” Id. at 594. He speculates that the threat to those interests is greater in this case than in the mine-run of cases due to the overly aggressive manner of the officers’ entry.

Whether or not this is so, it is beside the point. The knock-and-announce rule does not implicate the interest in “shielding ... evidence from the government’s eyes.” Id. at 593. That interest is suspended (in limited scope) once a valid warrant has issued. Id. A defendant claiming harm to that interest (say, harm from a warrantless search) may be entitled to exclusion as a remedy. But where, as here, a defendant asserts injury from a no-knock entry antecedent to an otherwise valid search, the remedies afforded in civil suits can adequately redress the harm to the interests that are affected. See id. at 596-99.

A civil case? Really? Like a convicted drug dealer would get any sympathy from a jury? The innocent will have an excellent civil case; the guilty are virtually screwed and the court has to know it.

The Atlantic: Do Police Need a Warrant to Search Your Phone?

As the Occupy demonstrations have grown, videos and photographs taken by protesters have begun to circulate on Twitter, YouTube, Facebook, and elsewhere online. Many, like the one below or those highlighted by James Fallows and Alexis Madrigal, show police using physical force or pepper spray against the assembled protesters.

If you're at Occupy Wall Street or one of its spin-off incarnations, you may find yourself in a situation in which a member of the police asks for you to hand over your cell phone or your camera. In particular, if you're there as a citizen-journalist, hoping to document and publish the action, you may find your work -- sources, interviews, video footage -- at risk. Can you refuse to turn over your devices? Do the police have a right to search your photos and video footage? Do they need a warrant to do so?

There's no simple answer -- the laws are varied state to state and, to make matters more complicated, constantly in flux. The basic principle is that police need a warrant to both seize and search your cell phone, but that principle is not absolute. There are two major reasons that police may not need a warrant to either search or seize your phone: if you are arrested, or, if they believe that you have footage of a crime taking place and that you plan to destroy the footage.

BLT: Judge: No Warrant Needed For Cell Phone Location Data:

Prosecutors do not need a warrant to compel a cellular phone service provider to turn over data about call location, a federal judge in Washington said in a ruling unsealed Wednesday.

The ruling (PDF) examines the government’s attempt to get data from the undisclosed service provider amid a U.S. Attorney’s Office investigation of an armed robbery of an armored truck.

In the Matter of Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Phone Location Date, 11-449 (D.D.C. October 3, 2011).

In a motion to suppress, without proof, there is a presumption that the judge acted within his authority. The warrant here was also sufficiently particular and with probable cause for evidence of sexual assault. Proctor v. State, 356 S.W.3d 681 (Tex. App. — Eastland 2011).*

The search warrant was sufficiently particular for evidence of clothing worn during a bank robbery. United States v. Anderson, 2011 U.S. Dist. LEXIS 117159 (E.D. Tenn. October 11, 2011)*; R&R 2011 U.S. Dist. LEXIS 120094 (E.D. Tenn. June 23, 2011).*

During a consent and probation search, the officer did not act unreasonably in reopening a bedroom door closed in front of him for officer safety. State v. Enriquez, 2011 Iowa App. LEXIS 1030 (April 27, 2011).*

In a fascinating case, plaintiff female police officer who, with another, was contaminated with fleas on the job who was sent to the county’s emergency services decontamination area and had a voyeur male officer videotaped her nudity stated a claim for relief against the county for a violation of privacy under the due process clause of the Fourteenth Amendment. She did not, however, state a Fourth Amendment claim because the offending male officer was acting on his own, not for state purposes, despite the county’s spurious claim that the video was for training purposes of how to decontaminate [which was completely undermined by how it was shared]. The court also finds that ease of electronic sharing of the video factored into the invasion of privacy. Doe v. Luzerne County, 660 F.3d 169 (3d Cir. 2011):

Although the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other circuits — including the Second, Sixth and Ninth Circuits — have held that such a right exists. See, e.g., Poe v. Leonard, 282 F.3d 123, 136-39 (2d Cir. 2002) (finding that plaintiff, a female civilian who was participating in a police training video, alleged sufficient facts to raise a triable issue of whether her constitutional right to privacy was violated where the male police officer surreptitiously filmed her in the dressing room while topless and without a bra); York v. Story, 324 F.2d 450, 454-56 (9th Cir. 1963) (finding that the plaintiff properly stated a claim for a violation of her constitutional right to privacy where she alleged that, while reporting a sexual assault, a male police officer deceived her into permitting him to photograph her genitals and exposed breasts under the pretext of an investigation), cert. denied, 376 U.S. 939 (1964); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 497-98 (6th Cir. 2008) (finding a privacy violation where a middle school's surveillance cameras recorded the plaintiff students in their undergarments while in the school locker room).

Privacy claims under the Fourteenth Amendment necessarily require fact-intensive and context-specific analyses, and unfortunately, bright lines generally cannot be drawn. The difficulty in drawing a bright line is evident as we are not aware of any court of appeals that has adopted either a requirement that certain anatomical areas of one's body, such as genitalia, must have been exposed for that person to maintain a privacy claim under the Fourteenth Amendment or a rule that a nonconsensual exposure of certain anatomical areas constitutes a per se violation. See, e.g., Poe, 282 F.3d at 136-39 (conducting a context-specific analysis); York, 324 F.2d at 454-56 (same); Brannum, 516 F.3d at 493-500 (same but in the Fourth Amendment context). We likewise refuse to draw bright lines based on anatomical parts or regions. Accordingly, we must analyze the specific circumstances under which the alleged violation occurred.

We conclude that Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex. ...

The lost affidavit and warrant here was sufficiently supported by testimony to establish the search was lawful. C.B.D. v. State, 2011 Ala. Crim. App. LEXIS 81 (September 30, 2011):

Although Sgt. Rafferty could not remember verbatim the contents of the affidavit and warrant, such word-for-word recitation of the contents of a lost document is generally not required. See, e.g., Laster v. Blackwell, 128 Ala. 143, 30 So. 663, 664 (1901) (“Though a witness may be unable to recall the [exact] language of a lost paper, he may be allowed to state its substance, if remembered.”); Barranco v. Kostens, 189 Md. 94, 97-98, 54 A.2d 326, 328 (1947) (“It is not necessary that the testimony of a witness who has read a lost instrument should be able to give its exact language, but it is sufficient if it proves its substance as far as it relates to the matter in controversy.”); Walker v. Drogmund, 101 Colo. 521, 525, 74 P.2d 1235, 1236 (1937) (“Ordinarily, it is not necessary that witnesses should be able to tell the contents of the [lost] instrument with absolute verbal accuracy, it being sufficient if they are able to state it in substance.”); and Posten v. Rassette, 5 Cal. 467, 469 (1855) (“In the case of lost instruments, where no copy has been preserved, it is not to be expected that witnesses can recite its contents, word for word; -- it is sufficient if intelligent witnesses, who have read the paper, understood its object and can state it with precision.”).

Rather, evidence substantially establishing the contents of the document is all that is necessary. See, e.g., Commonwealth v. Ocasio, 434 Mass. 1, 5, 746 N.E.2d 469, 473 (2001) (“If all the terms of the warrant can be reliably established through secondary means ... then the defendant will not be deprived of any opportunity to mount a challenge against the warrant.”); and Boyd v. State, 164 Miss. 610, 145 So. 618, 619 (1933) (when an affidavit and search warrant are lost, the State must only prove “substantially their contents”).

Opinion withdrawn and same result researched on rehearing. C.B.D. v. State, 2011 Ala. Crim. App. LEXIS 116 (December 16, 2011). Defendant did not preserve the issue, and, even if he did, his argument is meritless:

Although Sgt. Rafferty could not remember verbatim the contents of the affidavit and warrant, such word-for-word recitation of the contents of a lost document is generally not required. See, e.g., Laster v. Blackwell, 128 Ala. 143, 30 So. 663, 664 (1901) (“Though a witness may be unable to recall the [exact] language of a lost paper, he may be allowed to state its substance, if remembered.”); ...

Rather, evidence substantially establishing the contents of the document is all that is necessary. See, e.g., Commonwealth v. Ocasio, 434 Mass. 1, 5, 746 N.E.2d 469, 473 (2001) (“If all the terms of the warrant can be reliably established through secondary means ... then the defendant will not be deprived of any opportunity to mount a challenge against the warrant.”); and Boyd v. State, 164 Miss. 610, 145 So. 618, 619 (1933) (when an affidavit and search warrant are lost, the State must only prove “substantially their contents”).

Law.com: Justices struggle over strip-search case by Marcia Coyle:

The Supreme Court on Wednesday struggled with whether jail officials may conduct intrusive strip searches of all arrestees, even of those detained for minor offenses, or whether the Constitution demands something more.

Thomas Goldstein of Washington, D.C.'s Goldstein & Russell, urged the justices to hold that the Fourth Amendment requires reasonable suspicion for strip searches of all arrestees in order to protect individual integrity and dignity. "What is not subject to a reasonable suspicion standard is anything other than close inspection of a person at arm's length," he added.

Grits for Breakfast: Whether SCOTUS says GPS tracking is constitutional, markets may decide if it's viable [link not working now]:

Fourth Amendment fans and foes alike are awaiting oral arguments this fall in United States v. Jones, which will determine whether police require a warrant to surreptitiously put a GPS tracking device on your car.

Obviously, Grits thinks a warrant should be required, but frankly a warrant requirement isn't that great a barrier and the case made me wonder about technology to identify such devices. It turns out for $500 bucks you can purchase a device that will locate GPS trackers as well as wiretaps, wireless taps, and even hidden cameras. Ironically, with SCOTUS focused on the use of GPS trackers by the government, the manufacturer is promoting the device to protect against thieves:

Don't Give Thieves Access To Your Personal Information Or Possessions

Being spied on can be more than just embarrassing. Oftentimes, thieves use eavesdropping equipment or "bugs" such as sound amplifying devices for audio surveillance or hidden cameras for video surveillance to find out valuable information about your personal finances and possessions. Your private conversations can give thieves all the information they need to steal your identity, break into your home, or even abduct your children. Protect yourself with the Frequency Finder Bug Detector Pro.

Defendant’s stop was justified, but merely possessing a gun was not probable cause to believe that those in the car were committing a crime. The arrest for the gun before determining whether it was lawfully or unlawfully possessed was unreasonable. People v. Matthew, 55 V.I. 380 (2011)*:

In conclusion, this Court holds, consistent with the Third Circuit's decision in U.S. v. Ubiles, and Title 23 Section 488 of the Virgin Islands Code, that the warrantless arrest of defendants—without probable cause that the weapons were unlawfully possessed or without any other evidence to support probable cause that other criminal activity was afoot—was unreasonable under the totality of the circumstances and that the weapons and ammunition and all other evidence uncovered subsequent to the unlawful arrest are hereby suppressed.

Defendant’s son called the police to tell them that defendant was a convicted felon with firearms, was off his medication, and had be acting erratically and assaulted someone. He said he lived at the house with his father. He consented to a search, and the consent was with objective reliance on apparent authority. Defendant credibly argued, the court’s view, that he had kicked his son out of the house before that, and he had obtained an order of protection to keep his son away. He argued that the order of protection was served on the Sheriff’s Office and that was “collective knowledge” imputed to all the Sheriff’s Department that the son had no actual authority. While the argument had some limited force, the USMJ cannot find as a matter of fact that the document was actually served on Sheriff’s Department before the consent to search to give it any strength. United States v. Cribbs, 2011 U.S. Dist. LEXIS 116742 (W.D. Tenn. February 11, 2011)*, adopted in part 2011 U.S. Dist. LEXIS 112559 (W.D. Tenn. September 29, 2011).*

Defendant refused to consent to a search of his car, but, on the video, he did consent to a dog sniff when separately asked about that. He argued that his consent was just going along with the officer, but the court finds from the video that defendant’s voice inflection was true consent. The first question was less than “ideal” but the officer followed up with further questions that were unequivocal. United States v. Grant, 2011 U.S. Dist. LEXIS 116699 (D. Neb. October 5, 2011)*:

... Upon review of the traffic stop video, the court can hear the inflection in Grant's voice when he responded with an unequivocal "sure," affirming his consent to allow Sergeant Wilcynski to call a canine officer. In addition to this verbal consent, Grant was an adult who understood English, was not under the influence of drugs, and had prior arrest experience. The encounter had lasted only a few minutes up to that point. Sergeant Wilcynski made no threats, promises, or misrepresentations, and Grant was not under arrest. Grant later engaged Sergeant Wilcynski in cordial conversation while they waited for the canine officer and even expressed his ease with waiting while a storm passed over his intended route. Under these circumstances, the court finds Grant voluntarily consented to the twenty-two minute post-stop encounter. For this reason, the court finds the detention and search were constitutionally reasonable.

Defendants were indicted for seditious conspiracy in a militia group known as the Hutaree planning action against the government that would include setting up an ambush of police officers. The government infiltrated the group by informant and passed a wealth of information that formed the basis of seven search warrants which were found to have issued with probable cause. United States v. Stone, 2011 U.S. Dist. LEXIS 116800 (E.D. Mich. August 3, 2011).*

My SCOTUSBlog commentary on Florence v. Board of Chosen Freeholders of the County of Burlington strip search case argued today, October 12th:

At issue in Florence is “reasonableness” of a jail strip search of a man brought in because of a computer error on whether he had paid a past traffic fine. In Bell v. Wolfish the Court held that pretrial detainees in the Manhattan MCC could be strip searched during their confinement because it was reasonable on a balancing of interests.

Those detainees, however, were either held on a criminal complaint or indicted. How does that relate to an accidental arrestee, a person brought to jail because of an erroneous traffic warrant that arose after the person was stopped on the street by chance, and a warrant comes up when his driver’s license number is run?

Reasonableness has always been stated by the Court to be the “fundamental inquiry” (see, e.g., United States v. Chadwick) or “touchstone” in Fourth Amendment cases. (see, e.g., Robinette v. Ohio; Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls). Was it reasonable to strip search Mr. Florence when there was virtually no chance he would be introducing a weapon or contraband into the jail? Does the Fourth Amendment “reasonableness” and balancing inquiry permit the Court to find this strip search invalid in light of what some members of the Court will undoubtedly see as the weighty interest in jail security automatically tipping the balance for the government?

And what about “lesser-intrusive means”? An accidental detainee like Mr. Florence should not be subjected to the indignity of his strip search. Even so, how does one apply such a rule (a “bright-line rule”?) so jailers will understand it? That didn’t stop the Court in holding that a detainee couldn’t be detained more than 48 hours without seeing a judicial officer for a probable cause finding in County of Riverside v. McLaughlin, but that case did not involve jail security. But, Earls refused to even going in the “lesser-intrusive measures” for drug testing students. Indeed, such a standard has always been scrupulously avoided by the Court. (See, e.g., United States v. Martinez-Fuerte and Colorado v. Bertine).

An irony lost on the parties [only one respondent mentions it in passing for something else] is Herring v. United States holding that the exclusionary rule would not be applied to persons arrested and then searched on accidental warrants because there was only mere negligence in not purging the warrant. Now, that mere negligence leads to the gross indignity of a strip search of a man with papers in his car showing that the warrant for him is bogus.

If Mr. Florence loses, then we have a fait accompli. “Reasonableness” has been forever subordinated to “jail security,” and mere incantation of the words makes the Fourth Amendment evaporate in any jail setting. No exclusionary rule under Herring; no civil action under Florence; the government can’t lose; perfect. Is that where we are headed? Gail Atwater’s driving without a seat belt would then have caused her to risk being strip searched because her arrest was valid under the Fourth Amendment even though the offense was “fine only.” And what about retaliatory arrests for “contempt of cop”? Can officers then arrest people to purposely add to their indignity knowing that a strip search will occur, too? That already happens with automobile searches, so why not for any arrest?

Ft. Myers News-Press: Police retraining: Cape Coral police receive more Fourth Amendment issues training after incorrect home entry:

Cape police officers were given additional training in Fourth Amendment issues earlier this year after it was determined two officers entered a home without justification.

The officers had been asked to assist a code enforcement officer who was issuing a citation regarding a boat to the occupant of a home on Northeast 36th Street.

When they arrived, the officers knocked on the front door but received no answer.

After walking around back to see if anyone was home, the officers noticed the screen door to the lanai was partially open, as was the rear glass slider.

After verbally announcing themselves, the officers entered the home with guns drawn.

I'm impressed--a police department that believes in the Fourth Amendment.

NYTimes.com: States Adding Drug Test as Hurdle for Welfare A. G. Sulzberger:

As more Americans turn to government programs for refuge from a merciless economy, a growing number are encountering a new price of admission to the social safety net: a urine sample.

Policy makers in three dozen states this year proposed drug testing for people receiving benefits like welfare, unemployment assistance, job training, food stamps and public housing. Such laws, which proponents say ensure that tax dollars are not being misused and critics say reinforce stereotypes about the poor, have passed in states including Arizona, Indiana and Missouri.

Wired.com: Calif. Governor Veto Allows Warrantless Cellphone Searches by David Kravets:

California Gov. Jerry Brown is vetoing legislation requiring police to obtain a court warrant to search the mobile phones of suspects at the time of any arrest.

The Sunday veto means that when police arrest anybody in the Golden State, they may search that person’s mobile phone — which in the digital age likely means the contents of persons’ e-mail, call records, text messages, photos, banking activity, cloud-storage services, and even where the phone has traveled.

Op ed in Merced Sun Star: Our View: Cell phone bill veto erodes rights.

Defendant was arrested for driving on a suspended license, and the officer suspected he was in possession of drugs. In a patdown, the officer went over his crotch area and felt something that probably was drugs. The officer unzipped defendant’s pants and found a baggie of drugs sticking through a hole in his underwear. The search incident was valid on the patdown revealing probable drugs. People v. Carter, 2011 IL App (3d) 90238, 354 Ill. Dec. 260, 957 N.E.2d 576 (2011).

Defendant was put on probation for a sex offense in Texas and transferred probation to Ohio, and his probation included a search provision. His probation officer went by the house twice and found the mail box full of mail and no sign of the probationer. So, the PO searched the house finding bullets and that defendant had absconded. The search was legal. State v. Gaona, 2011 Ohio 5214, 2011 Ohio App. LEXIS 4290 (5th Dist. October 7, 2011).*

Result of a P2P search of defendant’s computer could be used in a search warrant, and the search warrant was not stale because there was indication that the child pornography was on the computer for quite sometime. United States v. Suing, 2011 U.S. Dist. LEXIS 116349 (D. Neb. September 30, 2011).*

Despite the broader protection of the state constitution, a parole violation arrest warrant does not have to be issued only by a “neutral and detached magistrate” under the state constitution, and the trial court erred in holding that even the Fourth Amendment required it. As in every other state, the parole system itself can issue the warrant, if on reasonable suspicion of a violation. State v. Olson, 164 Wn. App. 187, 262 P.3d 828 (2011), surveying the law nationwide:

¶8 A great number of states have statutes equivalent to Washington's that permit a parole board or parole officer to issue an arrest warrant due to an offender's parole violation. And courts throughout the country have routinely upheld the constitutionality of statutes that do not require an arrest warrant to be issued under oath or affirmation and by a neutral magistrate. (footnotes omitted)

The money in this case was seized under a search warrant for drugs, and the defendant ultimately prevailed on appeal and reversed his conviction. Yet, he loses the forfeiture because he can’t prove the money was his. City of Walla Walla v. $401,333.44, 164 Wn. App. 236, 262 P.3d 1239 (2011).*

Defendant’s stop was on reasonable suspicion, and the fact he was determined on booking to be an alien unlawfully in the U.S. would not be suppressed. United States v. Rosas-Herrera, 816 F. Supp. 2d 273 (M.D. N.C. 2011).*

“The instant motion to suppress raises the question of whether Defendant Clement Franklin Fuller, III, had a reasonable expectation of privacy in the enclosed porch of his leased residence. A police officer passed through the porch to knock on the primary door to the residence. While on the porch, the officer noticed evidence that led to Defendant’s arrest. For the reasons that follow, Defendant’s motion to suppress will be denied because the door to the primary residence was the place that the gentleman’s reasonable expectation of privacy began.” United States v. Fuller, 2011 U.S. Dist. LEXIS 115913 (E.D. Mich. October 7, 2011).

Defendant’s 2255 claim that defense counsel was ineffective for not challenging his consent to search on the ground his consent form was forged was legally frivolous. Defense counsel entertained that contention and hired a handwriting expert to compare and the expert determined it was defendant’s signature. United States v. Gallipeau, 2011 U.S. Dist. LEXIS 116047 (D. S.C. October 5, 2011).*

“Viewing the evidence and drawing all reasonable inferences in the light most favorable to Johnson, we cannot say that the officers’ use of force was objectively reasonable as a matter of law.” While the situation was tense and rapidly evolving, it did not appear that plaintiff was any real threat to the officer's safety. Johnson v. Carroll, 658 F.3d 819 (8th Cir. 2011).*

Defendant’s computer was searched over a P2P file sharing program, and child pornography was found. To show probable cause, it was not required that the functionality of the software be explained to the magistrate. State v. Mahan, 2011 Ohio 5154, 2011 Ohio App. LEXIS 4259 (8th Dist. October 6, 2011).*

Ohio recognizes that a full custodial arrest for a minor offense violates the state constitution because it rejected Atwater in State v. Brown, 99 Ohio St. 3d 323, 2003 Ohio 3931, 792 N.E.2d 175 (2003). Defendant’s search on arrest for a minor offense was invalid. State v. Hall, 2011 Ohio 5155, 2011 Ohio App. LEXIS 4255 (8th Dist. October 6, 2011).*

Habeas denied. “The petition also contains an argument that the illegal search and seizure somehow lead his plea to be involuntary. Any argument regarding the voluntariness of his plea does not warrant the issuance of the writ.” Willis v. Miller, 2011 Ohio 5166, 2011 Ohio App. LEXIS 4256 (7th Dist. September 26, 2011).* [Would have to be an IAC claim.]

Tomorrow Florence v. Board of Chosen Freeholders of the County of Burlington, 10-945.

Issue: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses.

So, how far does "reasonableness" go? Does "jail security" always trump "reasonableness"?

WSJ.com: Secret Orders Target Email / WikiLeaks Backer's Information Sought by Julia Angwin:

The U.S. government has obtained a controversial type of secret court order to force Google Inc. and small Internet provider Sonic.net Inc. to turn over information from the email accounts of WikiLeaks volunteer Jacob Appelbaum, according to documents reviewed by The Wall Street Journal.

Sonic said it fought the government's order and lost, and was forced to turn over information. Challenging the order was "rather expensive, but we felt it was the right thing to do," said Sonic's chief executive, Dane Jasper. The government's request included the email addresses of people Mr. Appelbaum corresponded with the past two years, but ...

“Defendant consented to the search at his residence by calling 911, reporting the crime, and seeking assistance.” State v. Arvie, 73 So. 3d 516 (La. App. 3d Cir. 2011).*

“In this case, we adhere to prior decisions of this court and decide that the ‘automobile exception’ to the warrant requirement of Article I, section 9, of the Oregon Constitution, does not permit a warrantless search of a defendant’s vehicle when the vehicle is parked, immobile, and unoccupied at the time that the police encounter it in connection with a crime.” State v. Kurokawa-Lasciak, 351 Ore. 179, 263 P.3d 336 (2011).*

The defendant shopping center operator had no reasonable expectation of privacy in its parking garages where there was a dumping of industrial waste. State v. Millard Mall Servs., 352 S.W.3d 251 (Tex. App.—Houston (14th Dist.) 2011).*

Opening defendant’s car door to talk to him constituted a seizure because the defendant objectively would not feel free to terminate the encounter and leave. The motion to suppress was properly granted. State v. Liechty, 152 Idaho 163, 267 P.3d 1278 (App. 2011):

We first note that the instant case is unlike other cases where a driver rolls down his or her car window in response to an officer's approach. In such cases, the encounter is consensual in nature because the level of coercion between the officer and the citizen is minimal. See Zubizareta, 122 Idaho at 827-28, 839 P.2d at 1241-42; Osborne, 121 Idaho at 524, 826 P.2d at 485. At that time, the driver has the option to decline to open the window to speak to the officer. However, when an officer approaches a vehicle and initiates questioning of a driver by opening the vehicle's door without consent, instead of asking to speak to the person through the vehicle's window, the level of coercion between the officer and the citizen is enhanced.

We also note that, in determining whether a seizure occurred, the district court found, similar to Fry, the officer here placed himself in a position relative to the car that prevented Liechty from driving away. As explained above, this finding was supported by substantial evidence, and whether the officer took action to block a vehicle's exit route is an appropriate circumstance to take into account when determining whether a seizure occurred. ...

The officer had reasonable suspicion for a stop, but his opening defendant’s car door and seeing heroin was an illegal search. There was no safety justification offered for opening the door. State v. Cure, 84 So. 3d 592 (4th Cir. 2011).

A constable came to defendant’s house with a writ of execution to remove him from the premises, and he smelled marijuana. He observed defendant packing in a hurry and saw a lot of cash in the house. He called the local police, and they saw some expensive stuff in his SUV allegedly illegally parked in front of the house. The police decision to impound his car was clearly pretextual, because impoundment was done to search, not to protect the property inside. A gun found in the car was suppressed. United States v. Scott, 2011 U.S. Dist. LEXIS 115356 (D. Nev. August 23, 2011)*:

Because of these discrepancies regarding what exactly constitutes NLVPD policy, the Court's task of determining whether the officers involved complied with that policy when conducting the inventory search becomes somewhat perplexing. In any case, the Court need not attempt to divine the exact nature of NLVPD's impound and inventory search policies because the Court finds that the inventory search was a ruse for general rummaging in order to discover incriminating evidence, rather than a search conducted to protect Scott's property or to protect NLVPD from liability.

An Arby’s store clerk called 911 to report that a man who matched the description of somebody who robbed the place once before was in the store pacing around the counter, and there was a person in a car waiting outside. This was reasonable suspicion when the police arrived. United States v. Ussery, 2011 U.S. Dist. LEXIS 115184 (W.D. N.C. September 9, 2011)* [Indeed, it sounds a lot like Terry.]

Defendant participated in the decision to waive a particular Fourth Amendment argument, and his defense counsel was not ineffective. United States v. Young, 2011 U.S. Dist. LEXIS 115336 (D. Alaska September 4, 2011).*

The Federal Defender was not ineffective for not appealing defendant suppression hearing. “Simply put, the suppression argument was a clear loser.” United States v. Forrest, 2011 U.S. Dist. LEXIS 115227 (D. Neb. October 5, 2011):

Moreover, defense counsel like Vanderslice do not have a constitutional duty to raise on appeal every nonfrivolous issue requested by the defendant. See, e.g., Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) (“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible ....”) Because the suppression argument was weaker than the critically important sentencing issue, Vanderslice cannot be faulted for failing to raise it even though Vanderslice prudently preserved the search issue in the plea agreement. Vanderslice did what all good appellate advocates do; that is, he focused on what was most likely to attract careful appellate attention.

Defense counsel was not ineffective in handling defendant’s suppression motion. It was appealed on the merits, and arguing it a different way would not have helped him. United States v. Chester, 2011 U.S. Dist. LEXIS 114740 (D. Nev. October 4, 2011).*

Defendant was not just a mere bystander like in Ybarra; there was specific information about others involved in the crime, and the defendant matched the description. United States v. McCauley, 659 F.3d 645 (7th Cir. 2011).*

NYTimes.com: Secret U.S. Memo Made Legal Case to Kill a Citizen by Charlie Savage:

The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

. . .

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

Defendant’s car was suspected of being involved in an assault where a gun was fired. When he was arrested with the car, a dog sniffed his car and alerted. The car was impounded in the police lot, and it was searched the next day, and that was still valid under the automobile exception. It was not valid as an inventory because policies were not followed, and the dog sniff was invalid under state law. State v. Gardner, 72 So. 3d 218 (Fla. 2d DCA 2011):

The trial court mistakenly believed that even when probable cause exists, exigent circumstances are required before police can search a vehicle. The trial court held that when the vehicle was impounded, “all exigency disappeared as the only people with access to the vehicle was law enforcement.” In Michigan v. Thomas, 458 U.S. 259, 261, 102 S. Ct. 3079, 73 L. Ed. 2d 750 (1982), the Supreme Court noted that ”when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody.”

In State v. Green, 943 So. 2d 1004, 1006 n.1 (Fla. 2d DCA 2006), this court noted that exigent circumstances are no longer “required in order to apply the automobile exception to the warrant requirement.” Therefore, the issue is whether police had probable cause to search Gardner's car, irrespective of the fact that the search was conducted at the police station.

Defendant changed his argument on appeal to a failure to get a Miranda warning before asking him where he hid a camera with child pornography on it. This was a waiver of the issue. State v. Stoffer, 2011 Ohio 5133, 2011 Ohio App. LEXIS 4234 (7th Dist. September 30, 2011).*

Defendant was being followed because of a report of impaired driving, but there were no signs of impaired driving. So, the officer stopped defendant because of his muffler as a pretext, and that made the stop invalid. State v. Arreola, 163 Wn. App. 787, 260 P.3d 985 (2011).*

Summary judgment on consent to search issue against pro se plaintiff was affirmed. Feaster v. Las Vegas Metro. Police Dep't, 451 Fed. Appx. 663 (9th Cir. 2011).*

The USMJ’s credibility determinations are upheld. Because the officer did not have a crystal clear memory about what happened with another person at the scene did not undermine his testimony about the defendant. United States v. Ragland, 2011 U.S. Dist. LEXIS 114148 (D. Md. October 3, 2011).*

A grand jury subpoena was used years ago for DNA which was arguably unreasonable, but the defendant provided it anyway. In the confusing legal landscape of this case, however, the court cut to the chase: the exclusionary rule, and found that it would not be excluded because the police did nothing wrong. United States v. Thomas, 815 F. Supp. 2d 384 (D. Me. 2011)*:

Amid all this legal uncertainty, I conclude that it is best to focus on the ultimate question on the motion—whether the exclusionary rule even applies to circumstances like these. The Supreme Court adopted the exclusionary rule “to discourage the police from violating the Fourth Amendment by prohibiting them from leveraging illegal encounters into criminal convictions.” United States v. Clariot, 2011 U.S. App. LEXIS 17719, 2011 WL 3715235, *3 (6th Cir. August 25, 2011) (citing Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960)). If there was a Fourth Amendment violation in 2005, I assume that the exclusionary rule would have applied to a prosecution for the 2004 mailings. But the Supreme Court has also said that suppression is not automatic for every Fourth Amendment violation. Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). “[T]he question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Id. at 137. I must examine the flagrancy of police misconduct, “appreciable deterrence” is the standard, id. at 141, and the benefits of deterrence must outweigh costs. “[P]olice conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144.

Police went to a house on a shots fired call, and dispatch got a call from a man who said his son called him saying he was held against his will inside with guns. Police went to the door, which was opened and shut on seeing the police. Exigent circumstances justified the entry. State v. Cooper, 2011 Ohio 5017, 2011 Ohio App. LEXIS 4164 (2d Dist. September 30, 2011).

Defendant was stopped at a sobriety checkpoint and detained. He claimed his detention was extended by racial profiling, but it was not found to be proved. What was found was not excludable in his immigration hearing before the BIA under INS v. Lopez-Mendoza. Luevano v. Holder, 660 F.3d 1207 (10th Cir. 2011).

Defendant was lawfully arrested inside his home, and marijuana was seen in plain view. That supported a protective sweep. United States v. Derrick, 2011 U.S. Dist. LEXIS 113202 (S.D. Fla. September 26, 2011).*

ABAJ.com: Arrested in Seattle, Computer Security Expert Creates Searchable Website of Police Dashcam Video Log by Martha Neil:

Arrested three years ago in Seattle, when a police officer apparently didn't appreciate his "brainiac" attitude after he was questioned about swatting giant sponge golfballs from bar to bar during a pub crawl, a computer security expert has fought back bigtime.

After the obstruction case against him was dismissed, Eric Rachner pursued a public-disclosure claim against the city's police department over its failure to provide all video camera footage of his arrest, winning a $60,000 judgment. And today he filed suit against the department again, asserting claims in his King County Superior Court complaint (PDF) for false arrest, obstruction of justice, malicious prosecution and "spoliation of video evidence," reports the Seattle Times.

But that's not all. Tomorrow the 35-year-old Rachner plans to activate a website that, he says, will allow arrested citizens and their attorneys to see whether there is any video from the dashboard cameras that police are supposed to activate during arrests.

Defendant’s stop for swerving was valid, and she consented to a search of the car producing over 1.9 kg of heroin. Her motion to suppress is denied without a hearing for failure to provide a factual dispute. United States v. Santiago, 826 F. Supp. 2d 337 (D. Mass. 2011)*:

In this case, an evidentiary hearing is unnecessary. Ortiz's motion to suppress contains a plethora of search and seizure law, but only a scintilla applicable to the instant case. Moreover, her affidavit in support of her motion to suppress is full of high-sounding legal conclusions, such as “the stop of my motor vehicle was made without reasonable suspicion or probable cause” and “I was questioned in a custodial setting,” but is devoid of any detailed factual basis to support those conclusions. Ortiz does allege that she “did not voluntarily consent to [a] search of my vehicle,” but, consistent with the rest of her affidavit, she fails to submit a credible alternative narrative of events and makes no offer of proof that might support her allegation.

The vehicle was stopped for not being registered, and the inventory thereafter was valid because it couldn’t be driven away. United States v. Glover, 441 Fed. Appx. 748 (11th Cir. 2011).*

The victim of a crime is a presumptively reliable “informant.” Here, her car was pipe bombed, and she reported that defendant threatened to do it. With other factors, there was probable cause for a search of defendant’s property, including a prior for arson and the victim seeing propane cylinders like the ones used in the bombing in defendant’s possession. United States v. Garcia, 2011 U.S. Dist. LEXIS 113748 (E.D. Cal. October 3, 2011).*

The evolving nature of the situation allowed this detention to last three hours. “Defendant was first detained during a protective sweep for officer safety, he was then detained for questioning with respect to the stolen property in the apartment, and finally he was detained specifically to be questioned about his alleged ownership of a gun found during the search.” United States v. Temple, 2010 U.S. Dist. LEXIS 143831 (D. Utah September 30, 2010).*

In defendant’s 2255, he argued the after decided case of Gant which did not apply anyway because of his consent. Rosario v. United States, 2011 U.S. Dist. LEXIS 113608 (W.D. Mo. October 3, 2011).*

Police responded to a call of a man with a gun in an apartment threatening to kill somebody. They were admitted into the apartment by the caller, and they found the man in the back room with a pillow over his hand. Removal of the pillow revealing a gun was reasonable under the circumstances. There was plenty of reason to believe there was a gun under the pillow. Commonwealth v. Samuel, 80 Mass. App. Ct. 560, 954 N.E.2d 557 (2011).*

The officer approached defendant he already knew from prior encounters to talk to him about a bank robbery. He had no reasonable suspicion, and, if the defendant “blew him off” and walked away, he would have done nothing about it, but if he ran he’d chase. Defendant consented to a search of his pockets for officer safety. State v. Hall, 2011 Ohio 5096, 2011 Ohio App. LEXIS 4211 (5th Dist. September 26, 2011).*

In an intrusion on seclusion invasion of privacy civil case, procuring admission to plaintiffs’ house under false pretenses was not a cognizable tort. Looking to Fourth Amendment cases where a police officer feigns another purpose to get entry where the consent to enter was not exceeded, this was not a tort. Burnette v. Porter, 2011 Tenn. App. LEXIS 533 (September 30, 2011).*

Defendant was semi-accosted by the police and told to come over to them. He put down his backpack where he was standing and walked over to them. That became a stop without reasonable suspicion. Defendant did not, by any means, abandon his bag by putting it down and walking over to the officer, but he left it open enough that the contents were visible, and that afforded a plain view untainted by the detention away from the bag. State v. Belcher, 2011 Ohio 5015, 2011 Ohio App. LEXIS 4163 (2d Dist. September 30, 2011).*

There was no showing that the third party consenter to this search was too drunk or mentally ill to consent, so the trial court’s finding stands. State v. McElveen, 73 So. 3d 1033 (La. App. 4th Cir. 2011).*

Officers received an anonymous tip that defendant was dealing drugs and they set up surveillance, which told them nothing other than defendant lived where the informant said he did, and there was no correct predictive behavior indicating criminality. When they figured they’d been made, they moved in and detained him. The detention was without reasonable suspicion. State v. Marino, 74 So. 3d 742 (La. App. 4th Cir. 2011).*

Defendant was sitting in a chair in a police barracks, and the police were able to find residual DNA from the chair that matched him. To be sure they had the right DNA, they used that to get a search warrant for a DNA swab which matched defendant to a rape. He had no reasonable expectation of privacy in the cast-off DNA left on a chair he was once sitting in. Raynor v. State, 201 Md. App. 209, 29 A.3d 617 (2011). (Noted by Orin Kerr on Volokh Conspiracy.)

Defendant was stopped for a tinted windows violation and the smell of marijuana was coming from the car. A drug dog was called for, and the defendant fled on foot. A search of the car revealed two pounds under the hood. Since Pennsylvania has not adopted the full federal automobile exception, the search of the car was invalid because true exigency did not exist. Commonwealth v. Gary, 2011 PA Super 206, 29 A.3d 804 (2011)*:

Appellant was in police custody prior to the search. At that point, Appellant had admitted to possessing marijuana and had once escaped from custody. Unlike in Copeland, the circumstances in this case did not evidence an imperative need for prompt police action; neither the lack of advance warning of criminal activity nor any other factor of record resulted in a threat of danger or dissipation of evidence. Thus, where no exigent circumstances were present, the warrantless search was unlawful and the evidence obtained from that search should have been suppressed. Accordingly, we reverse the order denying Appellant's petition for writ of certiorari and remand for a trial at which the evidence obtained as a result of the search may not be admitted.

On an excessive force claim, the videotape of the occurrence was pretty much conclusive as to what happened, and it supported summary judgment for the officer. Mere use of a racial epithet didn’t change the outcome. Brims v. Barlow, 441 Fed. Appx. 674 (11th Cir. 2011) (unpublished).*

The probable cause showing in the search warrant affidavit was deficient, but not so deficient that the officer could not rely on it for the good faith exception. United States v. Burrell, 445 Fed. Appx. 195 (11th Cir. 2011).*

The police came to execute an arrest warrant with a battering ram, and then broke in. Defendant lived with his mother. Inside, they got consent from her to search defendant’s room and found crack and a gun. The consent was valid. United States v. Richardson, 447 Fed. Appx. 329 (3d Cir. 2011).*

On AOL TV: Detroit Cop Charged in Child's Death During Raid Filmed for 'The First 48', by Catherine Lawson:

A Detroit police officer is facing charges stemming from the shooting death of a child during a raid being filmed for A&E reality show 'The First 48.'

The AP reports that Joseph Weekley, a member of the city's Special Response Team, was indicted Tuesday on involuntary manslaughter and careless and reckless discharge of a firearm causing the death of seven year-old Aiyana Stanley-Jones.

The TV show's principal photographer, Allison Howard, was also indicted on perjury and obstruction of justice charges. She and Weekley have both pleaded not guilty.

Cato@Liberty: Will GPS Tracking Render the Fourth Amendment Quaint? posted by Jim Harper:

If the government put a GPS monitor on your car and used it to track every vehicular movement of yours for four weeks, do you think that would violate your Fourth Amendment rights? The government would like to be able to do that kind of thing without getting a warrant, and the Supreme Court will soon decide whether it can.

On November 8th, the Court will hear oral argument in U.S. v. Jones. Yours truly was the lead author of Cato’s amicus brief in the case, which may have a significant effect on how Fourth Amendment law intersects with new information technologies for decades to come.

Wired.com: GPS Inventor Urges Supreme Court to Reject ‘Automated,’ Warrantless Surveillance by David Kravets:

The principal inventor of the Global Positioning System is asking the U.S. Supreme Court to renounce the Obama administration’s position that it may affix GPS devices to vehicles and track their every move without a court warrant.

Roger L. Easton, awarded the National Medal of Technology in 2006, joined the Center for Democracy & Technology, the Electronic Frontier Foundation and other academics in a friend-of-the-court brief lodged Monday in one of the biggest Fourth Amendment cases in a decade — one weighing the collision of privacy, technology and the Constitution. The justices are scheduled to argue the case Nov. 9.

Easton, now 90 and the principal inventor and developer of the Timation Satellite Navigation System at the Naval Research Laboratory more than five decades ago, and the others are telling the high court that its precedent on the topic is outdated, and the government’s reliance on it should be rejected.

A Municipal Judge’s denial of a search warrant is not res judicata barring the police for asking for consent. Res judicata is a final judgment on the merits. The basis for denial of the warrant is not revealed by the record. “Moreover, Appellant presents no law that indicates that the denial of a search warrant is a final appealable order which would lead to the invocation of the doctrine of res judicata in subsequent proceedings. [¶] There is simply no indication as to why the search warrant was denied or what parties were involved in the request for the warrant or indication that an actual hearing took place.” Moreover, his consent was an independent act. State v. Mackenzie, 2011 Ohio 4966, 2011 Ohio App. LEXIS 4091 (5th Dist. September 28, 2011).

Defendant was driving a car with permission of the owner, and he succeeded in showing that the stop lacked reasonable suspicion or probable cause, so the search is suppressed. The sole basis for the stop was that the color of the car did not match the DMV registration. United States v. Uribe, 2011 U.S. Dist. LEXIS 112001 (S.D. Ind. September 28, 2011).*

Defendant’s contention that the officer stalled the stop to get more time for the drug dog to arrive was rejected because of the overall time limit involved from beginning to end: 13½ minutes. Dickey v. State, 2011 WY 136, 261 P.3d 739 (Wyo. 2011).*

Defendant gave consent for the police to enter his welding shop to look for a wanted man. While inside, they called for a drug dog to sniff his van parked inside, and the dog alerted. The consent did not include bringing in a drug dog and the trial court was correct in suppressing and the court of appeals in affirming. State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011) (with dissent here and here):

The scope of a search is usually defined by its expressed object. A person is free to limit the scope of the consent that he gives. If police rely on consent as the basis for a warrantless search, “they have no more authority than they have apparently been given by the consent.” It is therefore “important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.” On the other hand, a person's silence in the face of an officer's further actions may imply consent to that further action. The “standard for measuring the scope of a suspect'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?” Therefore, a court reviewing the totality of the circumstances of a particular police-citizen interaction does so without regard for the subjective thoughts or intents of either the officer or the citizen. Still, in Texas, the “clear and convincing” burden “requires the prosecution to show the consent given was positive and unequivocal and there must not be duress or coercion, actual or implied.”

Warrantless GPS tracking violates the Fourth Amendment, deciding the case despite the fact the state and U.S. Supreme Court have the issue before them. State v. Sullivan, 2011 Ohio 4967, 2011 Ohio App. LEXIS 4096 (5th Dist. September 23, 2011):

We note that these issues are presently before the Ohio Supreme Court in the case of State v. Johnson, 190 Ohio App.3d 750, 944 N.E.2d 270, 2010 Ohio 5808, appeal allowed 128 Ohio St.3d 1425, 943 N.E.2d 572, 2011 Ohio 1049 (Table). We further note that the United States Supreme Court has granted certiorari to review the Fourth Amendment implications in the attachment and monitoring of a GPS tracking device. See, U.S. v. Maynard (D.C.Cir.2010), 615 F.3d 544, 392 U.S. App. D.C. 291, cert granted U.S. v. Jones, 131 S. Ct. 3064, 2011 WL 1456728, 79 USLW 3610, 79 USLW 3718, 79 USLW 3727 (U.S. Jun 27, 2011) (10A760).

Maybe, just maybe, this court wants SCOTUS to know what it thinks on this issue.

Today was the day the amicus briefs for the Respondent Jones in United States v. Jones (you remember, the GPS case?) set for argument November 8th. A couple are online. Look for the rest later today or tomorrow on ScotusBlog.

Via NACDL, I received six today, but I can't post them.

The Ninth Circuit joins virtually every other jurisdiction and holds that there is a common law right of access to search warrant materials, thus declining to reach the constitutional issues of whether the Fourth Amendment requires it. United States v. The Business of the Custer Battlefield Museum and Store Located at Interstate 90, Exit 514, South of Billings, Montana, 658 F.3d 1188 (9th Cir. 2011):

We also agree with these courts that post-investigation warrant materials fall outside the “narrow range of documents [that are] not subject to the right of public access at all because the[y] have ‘traditionally been kept secret for important policy reasons.’” Kamakana, 447 F.3d at 1178 (quoting Times Mirror, 873 F.2d at 1219). As we acknowledged in Times Mirror, 873 F.2d at 1213-14, 1218, warrant materials have not historically been accessible to the public during the early stages of criminal proceedings. “Warrant application proceedings are highly secret in nature and have historically been closed to the press and public.” Wells Fargo, 643 F. Supp. 2d at 583; see also Baltimore Sun, 886 F.2d at 64 (“[P]roceedings for search warrants are not open to the public.”); Gunn, 855 F.2d at 573 (“[H]istorically the process of issuing search warrants involves an ex parte application by the government and in camera consideration by the judge or magistrate. Moreover, the very objective of the search warrant process, the seizure of evidence of crime, would be frustrated if conducted openly.”).

[5] Post-investigation, however, warrant materials “have historically been available to the public.” In re N.Y. Times Co., 585 F. Supp. 2d at 88. “Search warrant applications ... generally are unsealed at later stages of criminal proceedings, such as upon the return of the execution of the warrant or in connection with post-indictment discovery.” Wells Fargo, 643 F. Supp. 2d at 581. “[A]lthough the process of issuing search warrants has traditionally not been conducted in an open fashion, search warrant applications and receipts are routinely filed with the clerk of court without seal.” Gunn, 855 F.2d at 573 (emphasis added). In the post-investigation context, warrant materials have generally been open to the public.

[6] This tradition of openness “serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police.” In re N.Y. Times Co., 585 F. Supp. 2d at 90. Warrant materials are also “often used to adjudicate important constitutional rights such as the Fourth Amendment protection against unreasonable searches and seizures.” Id. As the Eighth Circuit has observed, “public access to documents filed in support of search warrants is important to the public’s understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on prosecutorial or judicial misconduct.” Gunn, 855 F.3d at 573; see also Wells Fargo, 643 F. Supp. 2d at 583 (stating that access to warrant materials “promotes the legitimate interests of the public and the press in ‘keep[ing] a watchful eye on the workings of public agencies’” (alteration in original) (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995))).

[7] For these reasons, we hold that the public has a qualified common law right of access to warrant materials after an investigation has been terminated. In doing so, we decline to extend Times Mirror to post-investigation access. ...

United States v. Krupa, 633 F.3d 1148 (9th Cir. 2011) (posted here), is vacated on rehearing and a new opinion issued: While there arguably was no probable cause based on a later case, at the time of the search (2002) there appeared to be, so the good faith exception would be applied. United States v. Krupa, 658 F.3d 1174 (9th Cir. 2011):

The agent’s affidavit presented to Colonel LaFave first set forth the agent’s qualifications to conduct investigations of computers and recover digital evidence, as well as his experience in investigations related to computer crimes and child pornography. The affidavit then stated that base police, responding to a report of child neglect, determined that “there were several computers at the location and that there was no custodial parents at the house only an individual KRUPA who was not affiliated with the military.” The affidavit stated that Krupa “had care and custody of the residence,” which included the 13 computer towers and two laptops. Reynolds’ affidavit stated that during his initial investigation of the computers, before consent was withdrawn, he located “an image of suspected contraband,” specifically a “photograph [that] appeared to be of a nude 15 to 17 year old female with a web site label of www.nude-teens.com.”

Although a close case, we conclude that Colonel LaFave reasonably concluded that there was probable cause to issue a search warrant. Reynolds’ affidavit set forth his qualifications as a trained investigator of computers for computer crimes and child pornography. Accordingly, the Colonel was entitled to give some deference to the agent’s statement that the photograph constituted an “image of suspected contraband,” even though the affidavit’s description of the photograph did not necessarily support the conclusion that the photograph constituted child pornography. Furthermore, the affidavit indicated that [*9] the police had responded to “a report of child neglect,” that no custodial parents were at the residence, that Krupa, who was not affiliated with the military, had care and custody of the residence, and that the residence contained 15 computers. In sum, the investigator’s assertion that he had found an “image of suspected contraband” — implicitly referring to child pornography — in computers seized from a home for which there had been a report of child neglect, and where there was no custodial parent present, created a “fair probability” that contraband or evidence would be found in the computers. See Gates, 462 U.S. at 238.

Defendant’s Franks challenge was based on the fact that the officer did not include in a later search warrant application that the lady that consented to the search with full authority to do so had a criminal history. The officer included that she’d been indicted. Even if it were all included, the search warrant would have issued. United States v. Livingston, 445 Fed. Appx. 550 (3d Cir. 2011).*

Defendant’s motion to suppress was based on an entrapment defense, a defense on the merits, and it was acceded to that it was more an issue for trial, so the judgment is affirmed. State v. Lewis, 75 So. 3d 495 (La. App. 5th Cir. 2011).*

An FOIA production did not provide enough information of alleged falsity to overcome a 1962 order denying a suppression motion that was affirmed on appeal. United States v. Stonehill, 660 F.3d 415 (9th Cir. 2011).*

Defendant was arrested for taking a picture in the jail lobby which had a sign saying no cameras in the jail property. A search incident to that arrest produced two jail locker keys, and the lockers were searched finding methamphetamine in personal belongings. The searches of the lockers were valid as a jail administrative entry-type search, and there is no reasonable expectation of privacy in the jail’s visitation room lockers. People v. Boulter, 199 Cal. App. 4th 761, 131 Cal. Rptr. 3d 185 (2d Dist. 2011):

Because of the nature of a jail or prison, a visitor to those institutions should have a reduced expectancy of privacy. As noted by one court, “the searches with which we are here concerned are not taking place in airports or on public streets, but on the premises of a maximum security prison. As the United States Supreme Court has recognized, ‘central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.’ [Citation.]” (Estes v. Rowland, supra, 14 Cal.App.4th at p. 537.) “Because of the character of prisoners and the nature of imprisonment, corrections facilities are volatile places, brimming with peril, places where security is not just an operational nicety but a matter of life or death importance. [Citation.] That is why the Supreme Court has decided that even when a prison restriction or practice ‘infringes a specific constitutional guarantee, … the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security.’ [Citation.] [¶] … ‘That which would be unreasonable in the outside world may be indispensable within a prison.’ [Citation.] … ‘Prison authorities have both the right and the duty by all reasonable means to see to it that visitors are not smuggling weapons or other objects which could be used in an effort to escape or to harm other prisoners.’ [Citation.]” (United States v. Prevo (11th Cir. 2006) 435 F.3d 1343, 1346.) As a result of the obvious need for a jail to maintain security defendant was presumed to know that upon entering jail property he and his belongings were subject to search, and therefore he implicitly consented to the search or had a reduced expectation of privacy.

Defendant did not have a reasonable expectation of privacy with respect to possessions he placed in a locker on the jail property. Although law enforcement employees and jail employees are differently situated than jail visitors, cases holding that searches of the employees' lockers were proper suggest that others who store goods in lockers on jail property should have no expectation of privacy with respect to those lockers.

The collective knowledge doctrine does not apply to information not communicated. Here, there was information in a computer of other investigating officers who had not communicated with the searching officers, and defendant’s argument takes the collective knowledge doctrine too far. Here, that doctrine is used against the defendant arguing it. United States v. Cribbs, 2011 U.S. Dist. LEXIS 112559 (W.D. Tenn. September 29, 2011):

In the present case, the Dyer County Sheriff's Office had knowledge of Defendant's order of protection as evidenced by the entry of the order into the office's information systems. Defendant contends that the office's knowledge of the order should be imputed to the Dyer County Sheriff investigators who conducted the search of 473 Cribbs Road. Defendant seeks to extend the imputed knowledge theory too far. Unlike the cases above in which the collective knowledge of the investigating officers was imputed to individual officers, Defendant asks the Court to impute knowledge of information contained in a law enforcement database to officers conducting an investigation in the field. Defendant has not provided any case law that supports such an application of the imputed knowledge doctrine, nor has the Court found any.

On de novo review, the appellate court read the transcript of the suppression hearing and finds probable cause for his arrest. United States v. Trappier, 447 Fed. Appx. 463 (4th Cir. 2011) (unpublished).*

The officer received a tip that defendant wanted in an arrest warrant was living in a particular place. The officer surveilled the apartment and saw him coming and going at least twice. This was sufficient under Payton. United States v. Weeks, 442 Fed. Appx. 447 (11th Cir. 2011) (unpublished).

The officer confirmed with dispatch that defendant did not have a valid DL, and that justified the stop. Defendant’s passing reference to the legality of the search of the car was a mere passing reference without authority, and it is deemed abandoned. United States v. Gardner, 444 Fed. Appx. 361 (11th Cir. 2011) (unpublished).*

The officer testified that the dog alerted on a free-air search around the vehicle. The defendant argued that the dog stuck his nose in an open window. Defendant did not satisfy his appellate burden of showing that the search was invalid. United States v. Ayala, 446 Fed. Appx. 78 (10th Cir. 2011).*

Technology and the Fourth Amendment: A Look at Recent and Upcoming Cases by Ben Thompson, J.D. Candidate in American Criminal Law Review:

It is no secret that technological development and innovation has been accelerating in recent decades at a dizzying pace. As a result, courts increasingly have applied the Fourth Amendment to circumstances involving new technologies that were barely anticipated ten years ago and completely unknown in 1791. This post briefly summarizes some upcoming cases and recent decisions involving the Fourth Amendment and technological change. These cases force the courts to strike a difficult balance between promoting the public good of efficient and effective law enforcement and protecting individuals from unreasonable infringements on their privacy.

If you're a criminal defense lawyer and you don't know about Jones, you're living in a cave.

The testimony of a witness is not subject to exclusion in Washington. Also, inevitable discovery applied to ammunition tied to defendant though an ongoing investigation that really had nothing to do with the product of the search warrant of defendant’s house. State v. Hilton, 164 Wn. App. 81, 261 P.3d 683 (2011).

Defendant driver’s shaking hands and odd travel plans made for reasonable suspicion. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011); State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).

A parolee had no state or federal constitutional right to be free from warrantless urinalysis. State v. Mahone, 164 Wn. App. 146, 262 P.3d 165 (2011).*

A revocation warrant of supervised release is not required to be on “sworn facts” under the Fourth Amendment, noting a split in the circuits. United States v. Collazo-Castro, 660 F.3d 516 (1st Cir. 2011):

We conclude that the Fourth Amendment does not require a warrant based on an oath or affirmation to revoke an individual on supervised release. “An oath or affirmation ‘is designed to ensure that the truth will be told by insuring that the witness or affiant will be impressed with the solemnity and importance of his words.’” United States v. Brooks, 285 F.3d 1102, 1105 (8th Cir. 2002) (quoting United States v. Turner, 558 F.2d 46, 50 (2d Cir. 1977)). Probation officers, who notify district courts of alleged violations, are supervised by the courts. See United States v. York, 357 F.3d 14, 22 n.6 (1st Cir. 2004). Because probation officers “function as an ‘arm of the court’” they possess a unique role that does not require the same safeguards imposed on ordinary affiants by the Fourth Amendment. Id. (quoting United States v. Saxena, 229 F.3d 1, 5 n.1 (1st Cir. 2000)). Because a probation officer’s credibility is typically known by the district court, and because she is an officer of the court, an oath or affirmation is not required either to ensure credibility or to impress the officer with the consequences of failing to tell the truth. While it is now considered a best practice to seek a revocation warrant based on sworn facts, an oath or affirmation request is not constitutionally mandated. Because the warrant was valid, the district court had jurisdiction to revoke the appellant.

While the advance notice of the checkpoint did not comply with Tennessee Department of Safety General Order 410-1, that single shortcoming did not necessarily render the checkpoint an unconstitutional seizure under Tenn. Const. art. I, § 7. The trial court erred by not considering all relevant factors in determining the overall reasonableness of the checkpoint and whether the checkpoint was conducted in accordance with the mandatory requirements of state case law. State v. Vires, 2011 Tenn. Crim. App. LEXIS 738 (September 26, 2011).*

During an administrative liquor control search, no justification was needed to search the open areas. However, reasonable suspicion was required to enter a safe under the administrative search exception. Gina, Inc. v. Ohio Liquor Control Comm’n, 2011 Ohio 4927, 2011 Ohio App. LEXIS 4045 (10th Dist. September 27, 2011).

A report from mall security about a probable theft from a store identifying the car involved was reasonable suspicion for a stop when the car was seen. State v. Moore, 2011 Ohio 4908, 2011 Ohio App. LEXIS 4040 (12th Dist. September 26, 2011).*