The use of a knife to remove a bag of drugs from a suspect’s penis in a public place at the time of arrest was a “sexually intrusive strip search” and was governed by Bell v. Wolfish. Here, it was unreasonable, and the search is suppressed. United States v. Edwards, 666 F.3d 877 (4th Cir. 2011):
Upon discovering the sandwich baggie tied around Edwards’ penis, another officer held Edwards’ pants and underwear open while Bailey put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife.4 [4 Nothing in the record suggests that Edwards suffered any physical injury as a result of this action.] After Bailey cut the baggie, he reached into Edwards’ underwear and removed the baggie and its contents. During this procedure, Edwards remained in handcuffs with his hands secured behind his back.
Bailey testified that there were several reasons he conducted this second search before placing Edwards into the police van. Bailey stated that “[a] complete search is always your best option,” because often “people hide things in those areas.” Bailey also stated that because Edwards was being arrested for a handgun violation, Bailey thought that a more extensive search was warranted to ensure the safety of the officers, including the driver of the transport van. Finally, Bailey testified that he was aware of Edwards’ criminal history, including that he previously had been arrested on drug charges. When asked whether it was customary for officers in Baltimore to search inside the underwear of arrestees, Bailey testified that “it’s about 50 percent of the time, because nobody likes to do that search. You know, it’s unpleasant for everybody involved. But if you have reason to believe that there might be something, then it’s a good idea to check, because often they do hide things down there.”
The officers conducted this search inside Edwards’ underwear in the middle of the street beside the police transport van. Although Edwards was searched at 11:30 p.m., a streetlight partially illuminated the area. All four officers, each of whom was male, saw the drugs being removed from inside Edwards’ underwear, but the district court found that only two officers, including Bailey, saw Edwards’ penis during the course of the search.
. . .
The manner in which contraband is removed from a suspect during a sexually intrusive search, no less than the manner in which the contraband initially is discovered, must be considered in determining under the Bell analysis whether the search was reasonable. Bell, 441 U.S. at 559-60; see United States v. Hambrick, 630 F.3d 742, 748 (8th Cir. 2011); United States v. Williams, 477 F.3d 974, 975-76 (8th Cir. 2007). Thus, the reasonableness of a sexually intrusive search depends in part on the manner in which the search was conducted and the consideration given to the privacy interests of the suspect. See Lafayette, 462 U.S. at 645; United States v. Ashley, 37 F.3d 678, 681-82 (D.C. Cir. 1994).
The safety of the suspect must be considered as well. A search that is theoretically permissible in one context may be impermissible in another if it is conducted in a cruel, painful, or dangerous manner. See United States v. Braks, 842 F.2d 509, 511-13 (1st Cir. 1988) (considering “whether the type of search exposes the suspect to pain or danger,” in court’s analysis of invasiveness of search, and upholding search in part because it did not result in “pain or danger” to defendant); United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir. 1981) (en banc) (considering whether search was painful or dangerous in analyzing invasiveness of search).
Noted in: WalshLaw: How likely is it that a police officer will mistakenly cut when using a knife to remove a drug-containing baggie tied around a particular male body part? and picked up by Volokh Conspiracy: Fourth Circuit Overturns Conviction Because Officer Used A Knife to Remove the Crack Tied Around An Arrestee’s Private Parts.
NH faces conflict of laws question in application of exclusionary rule, which it briefly discusses, but decides it doesn’t have to decide. State v. Ruggiero, 163 N.H. 129, 35 A.3d 616 (2011):
The question presented is whether telephonic evidence that is legally obtained in a sister state by a citizen thereof is admissible in a New Hampshire court proceeding where such evidence would not be admissible if it had been obtained in New Hampshire. This question is one of first impression in New Hampshire, which we review de novo. ...
Courts in other jurisdictions that have considered the issue have generally employed two approaches — the exclusionary rule approach and the conflicts-of-law approach. See State v. Schmidt, 712 N.W.2d 530, 535 (Minn. 2006) (discussing the conflicts-of-law approaches used by other states in deciding evidentiary issues); People v. Capolongo, 85 N.Y.2d 151, 647 N.E.2d 1286, 1293, 623 N.Y.S.2d 778 (N.Y. 1995) (discussing the split in jurisdictions between the exclusionary rule approach and the conflicts-of-law approach); see also 1 W. R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 1.5(c), at 183-86 (4th ed. 2004). Jurisdictions following the exclusionary rule approach “adhere to the Federal view that the overriding purpose of the exclusionary rule is to deter unlawful governmental conduct, and that one State’s laws have no deterrent effect on conduct of governmental agents of another jurisdiction.” Capolongo, 647 N.E.2d at 1293. Alternatively, jurisdictions that conduct a conflicts-of-law analysis typically weigh the interests of the forum state against those of the sister state and assess which state has the greater interest in the process by which the evidence was obtained. See State v. Lucas, 372 N.W.2d 731, 736-37 (Minn. 1985).
Where the trial court’s finding on a fact in granting a motion to suppress is not supported by any evidence, the appellate court can reverse it. State v. Battle, 2011 Ohio 6661, 2011 Ohio App. LEXIS 5488 (10th Dist. December 22, 2011).
The court credits the officer’s testimony that the drugs in this case were dropped from defendant’s blouse, and she was not made to lift it to cause them to fall out. United States v. Lighten, 2011 U.S. Dist. LEXIS 147801 (W.D. N.Y September 20, 2011).*
Defendant’s furtive movements and driving a stolen car in Pennsylvania reasonably justified his patdown that produced a weapon used to kill a police officer in D.C. Johnson v. United States, 33 A.3d 361 (D.C. App. 2011).*
In the Fort Dix jihadist case, the use of FISA-derived evidence in a domestic case was not a violation of the Fourth Amendment. The Patriot Act amendments did not make the statute unconstitutional. But, even if it did, use of the evidence was not barred by the exclusionary rule under Krull. United States v. Duka, 671 F.3d 329 (3d Cir. 2011):
Defendants maintain that we must reverse their convictions because the government used unlawful FISA-derived evidence throughout the trial; the FISA-derived evidence resulted in their convictions; and, without that evidence, the government cannot prove the charges against them.
Aligning with all of the other courts of appeals that have considered this issue, however, we reject defendants’ constitutional challenge. We conclude that FISA’s amended “significant purpose” requirement is reasonable under the Fourth Amendment, and, therefore, that the government’s use of FISA-derived evidence in its case against defendants was lawful. We also observe that, even if we were to hold the statute unconstitutional, defendants still would not be entitled to have their convictions reversed. Defendants’ argument for reversal depends on the assumption that, if FISA is declared unconstitutional, then the exclusionary rule would preclude the use of FISA-derived evidence in their case. Not so. Where, as here, the challenged search was conducted in objectively reasonable reliance on a duly authorized statute, the Supreme Court has held that the exclusionary rule does not preclude the admission of the fruits of the search.
. . .
e. The “Significant Purpose” Test Is Reasonable
We agree with our sister courts of appeals and the Foreign Intelligence Surveillance Court of Review that amended FISA’s “significant purpose” standard is reasonable under the Fourth Amendment, for three reasons.
First, the “significant purpose” standard reflects a balance struck by Congress between “the legitimate need of Government for intelligence information” and “the protected rights of our citizens.” United States, 407 U.S. at 323. The legislative history reveals that “Congress was keenly aware that [the Patriot Act’s amendment to what is now § 1804(a)(6)(B)] relaxed a requirement that the government show that its primary purpose was other than criminal prosecution.” Sealed Case, 310 F.3d at 732. By adopting the amendment, Congress signaled its determination that the new standard was needed to promote coordination between intelligence and law enforcement officials in combating terrorism, acknowledging that, as a practical matter, these functions inevitably overlap. While Congress’s conclusion in that regard of course is not dispositive, nonetheless, the Supreme Court in Keith suggested that “congressional judgment” has an important role to play in weighing government interests and determining reasonable “protective standards” related to intelligence. United States, 407 U.S. at 322-23. We therefore view Congress’s actions in this area with some additional measure of deference.
. . .
Finally, and importantly, FISA contains significant procedural safeguards against abuse. As amended, FISA requires a senior government official (typically the Director of the FBI, see Sealed Case, 310 F.3d at 736) to certify that “obtaining foreign intelligence information ... is a bona fide purpose of the surveillance” and the Attorney General (or a senior-level designee, see 50 U.S.C. § 1801(g)) to approve each FISA application. Abu-Jihaad, 630 F.3d at 127. That senior Justice Department officials must approve every FISA application gives us additional comfort that this process does not provide an end run around the more stringent Fourth Amendment standards that apply in ordinary criminal cases.
The statute also provides for appropriate, albeit limited, judicial review. An Article III judge sitting on the FISA court reviews every application, makes particularized findings concerning the application’s compliance with the statute’s requirements, and issues an order specifying the parameters of the government’s surveillance authority. See 50 U.S.C. § 1805(a), (c). The FISA judge may demand “further inquiry into the certifying officer’s purpose — or perhaps even the Attorney General’s or Deputy Attorney General’s reasons for approval” of the application, and should deny the application if he or she “conclude[s] that the government’s sole objective [is] merely to gain evidence of past criminal conduct — even foreign intelligence crimes — to punish the agent rather than halt ongoing espionage or terrorist activity.” Sealed Case, 310 F.3d at 735-36. These safeguards confirm that FISA’s “significant purpose” standard is reasonable under the Fourth Amendment.
. . .
Here, we have concluded that searches in the form of surveillance conducted pursuant to FISA’s “significant purpose” requirement are reasonable under the Fourth Amendment. Accordingly, we join other courts of appeals in holding that evidence derived from duly authorized FISA surveillance is admissible in a criminal case. See Wen, 477 F.3d at 898 (holding that if, in the course of conducting FISA-authorized surveillance, “agents discover evidence of a domestic crime, they may use it to prosecute for that offense,” even if the agents knew or “may have known” when they applied for the FISA order “that they were likely to hear evidence of domestic crime”); see also Duggan, 743 F.2d at 78 (noting that “otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by [50 U.S.C.] § 1806(b), as evidence in a criminal trial” and holding that “the fact that domestic law enforcement concerns may also have been implicated” in government’s decision to seek a FISA order “did not eliminate the government’s ability to obtain a valid FISA order”).
2. Defendants Are Not Entitled to Relief Because the FISA Searches Were Conducted in Reasonable Reliance on a Statute
We are confident that FISA’s “significant purpose” test satisfies the Fourth Amendment. But even if we were not, we still would not overturn defendant’ convictions based on the government’s use of FISA-derived evidence at trial. Supreme Court precedent makes abundantly clear that, even if we were to conclude that amended FISA is unconstitutional, evidence derived from it would nevertheless have been admissible in the government’s case.
Defendant’ argument for reversal depends in part on the theory that, if FISA violates the Fourth Amendment, FISA-derived evidence automatically must have been excluded. See, e.g., Appellant’ Joint Opening Br. 53 (“By holding FISA as amended by the Patriot Act unconstitutional the evidence used will be illegally obtained and prohibited to be used in trial against the Appellants.”). But that is not necessarily so. See United States v. Tracey, 597 F.3d 140, 151 (3d Cir. 2010) (“[A] determination that the Fourth Amendment has been violated does not necessarily require application of the exclusionary rule.”). The exclusionary rule precludes the admission of evidence tainted by a Fourth Amendment violation “only in those unusual cases in which exclusion will further the purposes of the ... rule.” United States v. Leon, 468 U.S. 897, 918, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Because the rule “is designed to deter police misconduct,” id. at 916, it applies only where it will “alter the behavior of individual law enforcement officers or the policies of their departments,” id. at 918.
The Supreme Court has ruled categorically that “suppress[ing] evidence obtained by an officer acting in objectively reasonable reliance on a statute” would not further the purposes of the exclusionary rule, even if that statute is later declared unconstitutional. Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). Therefore, even a defendant who can establish that evidence against him or her was procured under a statute that violates the Fourth Amendment is not entitled to have such evidence excluded from his or her criminal trial unless he or she can establish that the officer’s reliance on the statute was not objectively reasonable. Cf. Krull, 480 U.S. at 368 (O’Connor, J., dissenting) (observing that, “under [the Court’s] decision today, no effective remedy is to be provided in the very case in which the statute at issue was held unconstitutional”).
The FISA amendment defendants challenge was duly enacted by Congress through the Patriot Act, and defendants have not argued on appeal that government officials did not reasonably rely on amended FISA in seeking the surveillance orders at issue in this case. Thus, under Krull, the exclusionary rule plainly does not apply, and, even if we agreed with defendants that the “significant purpose” test is unconstitutional, we would be powerless to overturn their convictions on that ground.
NSA domestic surveillance case reversed by the Ninth Circuit and sent back to District Court. Jewel v. National Security Agency, 673 F.3d 902 (9th Cir. 2011):
This case is one of many arising from claims that the federal government, with the assistance of major telecommunications companies, engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks. At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.
In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Nor do prudential considerations bar this action. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political question nor are they inappropriate for judicial resolution. Finally, we do not impose, as suggested by the government, a heightened standing requirement simply because the case involves government officials in the national security context. We reverse the district court’s dismissal on standing grounds and remand for further proceedings. We leave for the district court to consider in the first instance the government’s alternative argument that Jewel’s claims are foreclosed by the state secrets privilege.
See Wired.com: Court Revives NSA Dragnet Surveillance Case by David Kravets:
A federal appeals court on Thursday reinstated a closely watched lawsuit accusing the federal government of working with the nation’s largest telecommunication companies to illegally funnel Americans’ electronic communications to the National Security Agency without court warrants.
While the 9th U.S. Circuit Court of Appeals revived the long-running case brought by the Electronic Frontier Foundation, the three-judge panel unanimously refused to rule on the merits of the case, or whether it was true the United States breached the public’s Fourth Amendment rights by undertaking an ongoing dragnet surveillance program the EFF said commenced under the Bush administration following 9/11.
A “no trespassing” sign on a farmstead is not enough to create a reasonable expectation of privacy from an entrance to the property as any member of the public would. State v. Mittleider, 2011 ND 242, 809 N.W.2d 303 (2011):
[*P17] We have recognized that a “no trespassing” sign posted on a structure, particularly a residence, indicates a reasonable expectation of privacy. See Kochel, 2008 ND 28, ¶ 9, 744 N.W.2d 771. In Kochel, the defendant had a “no hunting or trespassing” sign posted on the steps outside his mobile home addition. Id. We noted “[a]ny uncertainty that the addition is an integral part of the home where privacy is reasonably expected is removed by the presence of the sign.” Id. (emphasis added). The “no trespassing” sign in Kochel is distinguishable from the “no trespassing” signs at issue here. In Kochel, the defendant posted a “no trespassing” sign on the steps immediately outside of a fully enclosed addition to his mobile home. Id. Here, the Mittleiders posted “no trespassing” signs around their farmstead, and it is unclear from the record how closely the signs were posted to the entrance. The district court noted any member of the public would have entered the farmstead in the same manner the officers did, and there was no evidence “that there was a ‘no trespass’ sign mounted on a post or immediately to the edge of the road[.]” We decline to adopt the Mittleiders’ broad argument that, on rural property in North Dakota, an individual’s expectation of privacy “envelopes much of the land.” We hold the “no trespassing” signs posted around the Mittleiders’ farmstead did not create a reasonable expectation of privacy in the entrance of the farmstead. Because a reasonable expectation of privacy was not invaded, art. I,§ 8 of the North Dakota Constitution is not implicated and we need not determine if it provides broader protection than its federal counterpart. Rydberg, 519 N.W.2d at 310.
Remember my practice pointer about questioning the officer about what he would do if the person stopped walked away in determining whether the person was free to go? Imperfect, sure, but it often leads to the right answer. In a long fought case in the Western District of Arkansas, a USMJ awarded $1 in damages for excessive in unreasonably Tasering a person who walked away from a traffic stop. Man awarded $1 in Barling Taser case, Arkansas Democrat-Gazette (paywall):
The lawsuit alleged that Barbor fired a Taser at him when he tried to walk away from a traffic stop where his girlfriend had been arrested, and when he refused to let police search him for weapons.
That's a real deterrent to excessive force cases. The appeal was Kirby v. Roth, 10-3697 (8th Cir. May 2, 2011), where Kirby was pro se and the district court failed to award damages after the first trial. This was on remand for damages.
Sexual assault by an auxiliary officer during a traffic stop was a § 1983 violation and was under color of law. Also, he pled guilty to a criminal civil rights violation and that would be collateral estoppel. Johnson v. Phillips, 664 F.3d 232 (5th Cir. 2011):
Johnson's final constitutional claim is that Phillips violated her substantive due process right to bodily integrity. As of 2006, it was clearly established in this circuit that the commission of a sexual assault by a government official acting under color of law constitutes a violation of due process that shocks the conscience. Rogers v. City of Little Rock, Ark., 152 F.3d 790, 796 (8th Cir. 1998); Haberthur v. City of Raymore, Mo., 119 F.3d 720, 723 (8th Cir. 1997). Johnson alleges that Phillips pushed her up against the hood of her car, pulled her shorts and underwear to the side, took pictures of her genitals with his cellular phone, and penetrated her vagina with his finger. These allegations constitute "an egregious, nonconsensual entry into the body which was an exercise of power without any legitimate governmental objective." Rogers, 152 F.3d at 797. Any reasonable officer would have known that these actions violated clearly established law.
In a “concealed carry” state, it is still possible for an officer to have reasonable suspicion that a person is possessing a gun in violation of law. Factors may warrant an officer to conduct a stop and frisk on reasonable suspicion of possession of a weapon, even though it creates a risk of stopping innocent people. United States v. Rodriguez, 836 F. Supp. 2d 1258 (D. N.M. 2011):
Rodriguez may object that the practical end result of the Court's decision is that, in New Mexico, a police officer's observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances. The Court reiterates, however, that it is not deciding whether seeing a concealed handgun by itself might trigger a reasonable suspicion that a crime is being committed under all factual scenarios. The surrounding circumstances would likely affect that inquiry in ways the Court need not address today.
Consequently, the officers could permissibly conduct an investigatory stop and question Rodriguez based on their reasonable suspicion that he was carrying a concealed firearm, at least until the investigatory stop transformed into an arrest under the Fourth Amendment. "[A] police officer may in appropriate circumstances," possession of reasonable suspicion, "and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. at 23.
Also noted at Volokh Conspiracy.
“A stop at a permanent immigration checkpoint, like the San Clemente checkpoint, is constitutional as long as the detention is limited to a few brief questions about immigration and the production of immigration documents. United States v. Preciado-Robles, 964 F.2d 882, 884 (9th Cir. 1992) (citing United States v. Martinez-Fuerte, 428 U.S. 543, 558, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976)). Whether or not the Border Patrol agent in this case impermissibly extended the immigration stop, the search of Ortiz-Flores’s backpack and the search of his person must be justified by consent or probable cause. Martinez-Fuerte, 428 U.S. at 566-67.” Here there was neither, and the motion to suppress should have been granted. United States v. Ortiz-Flores, 462 Fed. Appx. 759 (9th Cir. 2011).*
Defendant’s claim in his § 2255 that the DVD of his traffic stop was edited to remove exculpatory evidence fails for lack of any factual support. Even so it fails on the merits. Thomas v. United States, 2011 U.S. Dist. LEXIS 147971 (M.D. Tenn. December 23, 2011).*
“Mr. Dutton, a military veteran, has been preparing for the economic collapse of the world.” He freely talked with his ex-wife’s boyfriend about manufacturing explosives and arming grenades when their daughter was exchanged for visitation. His information to the police was enough for probable cause for manufacturing a destructive device. United States v. Dutton, 2011 U.S. Dist. LEXIS 147928 (D. Kan. December 23, 2011).*
Officer’s credibility did not support the asserted basis for his stop and its continuation. A reasonable person would not have felt free to leave. United States v. Dixon, 2011 U.S. Dist. LEXIS 147865 (N.D. Tex. December 23, 2011) (on motion to reconsider; original order from September 2010)*:
Because Ralson's credibility, for the reasons herein stated, has been severely discredited, the court cannot accept his account of the events regarding the revolver and when he saw it. Harris did not see a revolver until it fell to the ground underneath the car. Because of the inconsistencies and irrational position taken by Ralson regarding the cylinder, the court does not believe that Ralson saw the gun while Dixon was seated in the car. The court is convinced that Ralson did not see it until sometime after he ordered Dixon to step out of the vehicle and a struggle ensued. Accordingly, there was no legal basis — reasonable suspicion, probable cause, or otherwise — for him to order Dixon to step out of the vehicle. Ordering Dixon out of the car was not justified by Terry. Nothing had been done by the officers to determine the reliability of the anonymous tip as to criminal activity on Dixon's part or as to officer safety. Considering all the circumstances surrounding the encounter between Dixon and the officers, the court concludes that a reasonable person would not have believed that Dixon was free to leave once Ralson told her to step out of the vehicle.
The trial court credited the officer’s testimony that the defendant consented to a search of his person after the officer passed by and smelled marijuana from a group. State v. Garrett, 2011 Tenn. Crim. App. LEXIS 936 (December 20, 2011).*
Volokh Conspiracy: If a Dog Sniff Around a Car is Not A Search, What About a Dog Sniff Around a Home? by Orin Kerr:
SCOTUSblog flags a pending cert petition on an interesting Fourth Amendment question: What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.
Defendant was arrested when he was searched. The officer approached him after a traffic stop at night with hand on gun, there were six officers there, and defendant was asked nothing but told to get out of the car and he was handcuffed. People v. Surles, 963 N.E.2d 957, 2011 IL App (1st) 100068 (2011)*:
[P26] The bulk of the evidence, however, weighs in favor of finding that defendant was under arrest before he was searched. Specifically, Officer McGrew testified that he approached defendant's side of the vehicle, either with his firearm drawn or with his hand on his firearm. He also stated that there were six officers, from three separate squad cars, present at the time. In addition, defendant was not asked any questions by Officer McGrew, but instead was given instructions to step out of the vehicle and immediately handcuffed behind his back. Defendant was not told that he could leave or refuse to cooperate, nor was he released after he was handcuffed. Instead, he was handed from Officer McGrew to Officer Solana, who then searched defendant's person. Thus, defendant's freedom of movement was restricted, both by physical restraints and the officers' show of authority.
[P27] We find that Officer McGrew approaching defendant with his weapon drawn or his hand on his weapon made the mood of the encounter more like an arrest. Further, the fact that defendant was ordered out of the vehicle while the officer had his hand on his firearm, and without any conversation, also would make a reasonable person feel restrained. Moreover, the fact that defendant was outnumbered by police officers, and the other occupants were already restrained, would decrease a reasonable person's feeling of freedom. After all of these things occurred, Officer McGrew placed defendant in handcuffs and kept hold of him until he was passed to Officer Solana. Thus, from the time defendant was placed in handcuffs, he was not free to move on his own. Given the show of force and authority by the officers and defendant's restraint, we conclude that defendant was arrested from the time he was handcuffed by Officer McGrew.
[Note: Perhaps what is more remarkable here was the state argument that this was not an arrest: six officers, ordered out of car with hand on gun or gun drawn, immediately handcuffed. What more does the state require?]
Where the facts of the case showed clear liability, maybe the plaintiff should have moved for a directed verdict for the plaintiff, but he didn’t. Nevertheless, the verdict is set aside as contrary to the evidence, and a new trial is granted Alvin v. Calabrese, Alvin v. Calabrese (3d Cir. 2011)*:
To be sure, the similarities between the undisputed facts of Brown [448 F.3d 239] and this case, even when viewed in the light most favorable to Calabrese and Karp, are striking. Other undisputed facts — for example, that other police officers, not just a victim, were coming to identify Alvin and that Calabrese held onto Alvin's identification while waiting for other officers — further the suggestion that Alvin was seized prior to his arrest. Given these undisputed facts, Alvin could have moved for judgment as a matter of law, citing our decision in Brown, as to this particular issue at the close of evidence. See Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 128 (3d Cir. 2003) (noting that whether a seizure has occurred may be determined by a district court, as a matter of law, without resort to the jury). But he did not.
Even if the jury's verdict was contrary to the great weight of evidence, the "stringent standard" necessary to obtain a new trial in these circumstances requires a showing that "the jury's verdict resulted in a miscarriage of justice" or that the verdict "cries out to be overturned or shocks our conscience." Sheridan, 100 F.3d at 1076; Williamson, 926 F.2d at 1353. In light of our decision in Brown and the undisputed facts suggestive of a seizure, we believe the verdict cries out to be overturned. We thus reverse the ruling on Alvin's motion for a new trial on his Fourth Amendment claim.
Five USMJs in Pennsylvania could issue search warrants for email accounts in other states. A search warrant for a specific email address was not a general warrant. The notice requirement on an email account goes to the email provider, not the person with that address. As to a search of property clearly named in a search warrant, defendant’s argument about curtilage actually undermined the reasonable expectation of privacy in the property. But all that was irrelevant: The property was clearly described and there was probable cause. The search of defendant’s car was valid as an inventory since he’d been indicted and was on the lam hoping to elude the police and skip the country at 1 am. United States v. Bansal, 06-1370 (3d Cir. December 14, 2011).
Fourth, Bansal contends that evidence obtained from his email accounts should have been suppressed on ground that the agents executing the warrants failed to adhere to the “notice requirements” imposed by Rule 41 because the executing agents did not provide him with a copy of the warrants. Rule 41 requires that searching officers put searched persons on notice of any property seized: ... The plain text of Rule 41 thus requires notice only “to the person from whom, or from whose premises, the property was taken.” Id. (emphasis added). Because Bansal does not deny that the warrant was provided to the internet service providers upon whom the search warrants were executed, we conclude that notice was properly made in this case. We will therefore affirm the District Court.
. . .
Bansal reargues on appeal that the garage was not within the curtilage and that the agents’ reliance upon an interested prosecutor’s telephone advice is not sufficient to establish a good faith defense. We will not reach the good faith inquiry because we conclude that the warrant authorized the search of the garage. First, the warrant was not limited only to a search of the home at 23 Garden Avenue. It authorized a search of the entire “premises,” which included the garage. Second, we are puzzled as to how Bansal’s case is advanced by his assertion that the garage was outside the curtilage of the home at 23 Garden Avenue. It is axiomatic that “[a] person’s curtilage is the area immediately adjacent to his home in which he has a legitimate expectation of privacy.” Estate of Smith v. Marasco, 430 F.3d 140, 156 n.14 (3d Cir. 2005) (citing United States v. Dunn, 480 U.S. 294, 300 (1987)). We are puzzled because Bansal’s contention that the garage was outside the curtilage actually decreases his legitimate expectation of privacy in the building, and presumably places it merely on the “premises” at 23 Garden Avenue, squarely within the terms of the search warrant. In sum, we conclude that if the garage was within the curtilage, as the District Court found, then for Fourth Amendment purposes it was part of the premises at 23 Garden Avenue (the search of which no party disputes was authorized); if it was instead beyond the curtilage, Bansal’s expectation of privacy was diminished to the point that no violation could have occurred.
And the court could not help but note the complexity of the briefs, and the government responding in kind:
We note at the outset that Bansal’s and Mullinix’s briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.
Giving defendant until count of three to open door or the police would break it down was not reasonable, and the motion to suppress should have been granted. The state did not claim Hudson made the search valid anyway. (Also, police audiotaped their announcement, but the tape disappeared before the suppression hearing, so they stipulated.) State v. Aguilar, 228 Ariz. 401, 624 Ariz. Adv. Rep 12, 267 P.3d 1193 (2011):
P21 Unlike the circumstances in King, in which the officers testified that, after they announced themselves, they could hear people moving things within the apartment, here, no testimony was presented that the officers heard any noise or made any other observations suggesting the imminent destruction of evidence. Instead, someone simply looked outside and observed police officers and defendant chose not to answer the door. As noted by the Supreme Court in King, “[w]hen law enforcement officers who are not armed with a warrant knock on a door ... the occupant has no obligation to open the door or to speak.” Id. at __, 131 S.Ct. at 1862. That none of the occupants opened the door when the police officers initially demanded that the door be opened, and one occupant peeked outside the motel window, did not give rise to an exigency justifying a warrantless entry. Therefore, the officers’ subsequent threat to forcibly enter the motel room was not reasonable conduct under the Fourth Amendment and was therefore unlawful. Accordingly, the evidence seized by the police following their entry must be suppressed.FN4
4. The State did not contend in the trial court, and has not asserted on appeal, that the evidence seized pursuant to the subsequently obtained search warrant would nonetheless be admissible. Cf. State v. Ault, 150 Ariz. 459, 465-66, 724 P.2d 545, 551-52 (1986) (concluding that evidence seized pursuant to a valid search warrant based on independent-source evidence was admissible, notwithstanding an invalid initial warrantless entry).
[Note: So, a Hudson claim is subject to waiver by the state, as it should be. Some states, like my own, wrongly find that the state can never raise standing in the trial court yet assert it on appeal without making a record. The same should be true of whether Hudson should save a search, but that is not even subject to proof. It seems quintessentially a question of law.]
“Clifford Ochser brought this civil rights action against two deputy sheriffs for arresting him on a warrant that had been quashed some thirteen months earlier. Although we hold that Ochser’s arrest was an unreasonable seizure prohibited by the Fourth Amendment, we conclude that the deputies are entitled to qualified immunity because then-existing law did not clearly establish the unconstitutionality of their actions.” Ochser v. Funk, 228 Ariz. 365, 624 Ariz. Adv. Rep. 35, 266 P.3d 1061 (2011).*
Pushing plaintiffs out of the way to keep them from interfering with a police drug investigation was reasonable under all the circumstances. Robles v. Cayton, 2011 U.S. App. LEXIS 25504 (5th Cir. December 21, 2011) (unpublished).*
Police received a 911 call of a break-in occurring at a house. They went to the house and found a man standing outside. His stop was on reasonable suspicion. United States v. McMullin, 2011 U.S. Dist. LEXIS 147528 (E.D. Mich. December 22, 2011).*
Defendant was found in North Carolina wanted for a murder in Arizona, and the SWAT team came to execute the arrest warrant. A protective sweep of the room included going under the mattress. “Searching under beds is within the ambit of a protective sweep.” There the police found the gun. State v. Manuel, 229 Ariz. 1, 624 Ariz. Adv. Rep. 4, 270 P.3d 828 (2011):
P19 The search of Manuel’s hotel room was justified under the first Buie exception. The police knew that Manuel had outstanding felony warrants and was possibly involved in a Phoenix murder. While they were completing the arrest in the hallway outside the room, D.J. came to the doorway, screaming hysterically. Officers placed her in handcuffs and removed her from the scene while other officers swept the room to determine if anyone else was inside who might pose a threat. The hotel room was immediately adjacent to the place where Manuel was arrested and D.J. was detained. Cf. United States v. Thomas, 429 F.3d 282, 287, 368 U.S. App. D.C. 285 (D.C. Cir. 2005) (upholding sweep of bedroom adjacent to living room where arrest occurred). Thus, the police could sweep the room even without reasonable suspicion that someone was inside. Cf. Fisher, 226 Ariz. at 567 ¶ 15, 250 P.3d at 1196 (invalidating sweep under second Buie exception because not supported by reasonable suspicion that others were in an apartment).
P20 Because the police were authorized under Buie to conduct a protective sweep of the room, the question becomes whether they lawfully discovered the pistol while conducting such a sweep. Buie permitted the officers to look under the hotel bed because a person could have been hiding there. See United States v. Green, 599 F.3d 360, 376 (4th Cir. 2010) (noting that “searching under beds is within the ambit of a protective sweep”). The police testified that, because of safety concerns, their usual practice is to look under a bed by lifting its mattress and box spring, and we conclude that their doing so here was within the permissible scope of a Buie sweep.
Defendant who arrived at the house before the search began and during surveillance was not a “transient visitor” under the state definition, which is arriving during the search. Because he was there when the search started, he was subject to being searched. State v. Dean, 2011 Tenn. Crim. App. LEXIS 930 (December 21, 2011).
Under the totality of circumstances, the government showed probable cause for the arrest of the defendant, so his search incident was valid. Because the district judge ignored authority on point, he is disqualified on remand. United States v. Steppello, 664 F.3d 359 (2d Cir. 2011)*:
The government brought our decision in Gagnon to the district judge’s attention in its motion for reconsideration, but the district judge denied the motion without comment. When circumstances “might reasonably cause an objective observer to question [the judge’s] impartiality,” we have the power to remand the case to a different judge. Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 21 (2d Cir. 1996) (alteration in original) (internal quotation marks omitted); see also United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc). We believe that is warranted here. Accordingly, we order that, upon remand to the district court, this case be transferred to a different judge.
Police did a knock and talk in a child pornography case based on the ICAC finding that child porn had gone to defendant’s IP address. During the interview, defendant refused to consent to a search of the computer. His statement “maybe I ought to just destroy my computer” was exigent circumstances to seize his computer under Kentucky v. King. State v. Maxwell, 2011 UT 81, 698 Utah Adv. Rep. 41, 275 P.3d 220 (2011):
[*P16] This mischaracterizes the State’s evidentiary burden and the nature of reasonable belief under the Fourth Amendment. To prove exigent circumstances, the State need demonstrate only that ICAC agents had a reasonable suspicion that evidence would be destroyed if the agents delayed long enough to obtain a warrant. And the facts necessary to support reasonable suspicion are “commonsense, nontechnical,” “practical considerations of everyday life on which reasonable and prudent men” must make decisions. Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (internal quotation marks omitted). The State’s burden, therefore, is to show that an officer confronted with Maxwell’s statement about destroying his computer might reasonably have believed—based on “practical considerations of everyday life”—that Maxwell could and would destroy the evidence on his computer.
. . .
[*P19] The United States Supreme Court definitively resolved this conflict last term, holding that “warrantless [action] to prevent the destruction of evidence is reasonable and thus allowed” so long as “the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” King, 131 S. Ct. at 1858. The Court in King refused to examine officer motive for evidence of bad faith, noting that it has “'repeatedly rejected’ a subjective approach, asking only whether ‘the circumstances, viewed objectively, justify the action.’” Id. at 1859 (quoting Brigham City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006)). It refused to assess the foreseeability of exigency, “reject[ing] the notion that police may seize evidence without a warrant only when they come across the evidence by happenstance.” Id. It also refused to examine the existence of probable cause prior to police action, reiterating that “'officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause.’” Id. at 1860-61 (quoting Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966)). Finally, the Court refused to second-guess police investigative tactics, explaining that such an approach “fails to provide clear guidance for law enforcement officers and authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies.” Id. at 1861.
A knock and talk for child porn? How daring can the police be? Pretty daring since the courts will find a way to bail them out of their folly.
Plaintiff was not entitled to judgment as a matter of law on an excessive force claim for being shot during execution of a search warrant just because a gun was not found on him after the shooting. Officers knew that he had a propensity for violence, and an officer not involved in the shooting had yet “shots fired.” A gun was later found outside a window. Carvajal v. Mihalek, 453 Fed. Appx. 69 (2d Cir. 2011) (unpublished)*:
Finally, we are not persuaded by Carvajal’s argument that no reasonable jury could have concluded that a warning was not feasible before shots were fired. See Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (holding that, if officers have probable cause to believe suspect poses threat of serious physical harm, “deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given”); accord Hemphill v. Schott, 141 F.3d 412, 417 (2d Cir. 1998). First, Carvajal's contention rests on a false premise that no warning was given. In fact, when police entered the apartment, Mihalek, Rizza, and other armed officers repeatedly warned Robert and Joseph Carvajal to "get down," which they disobeyed. ... Assuming arguendo that a further warning was required, a reasonable jury could have found that such a warning was not feasible in light of the rapidly evolving scenario in which an armed Robert Carjaval and his reputedly violent brother refused to comply with the "get down" order and appeared to be positioning themselves to use deadly force to resist arrest.
In sum, Carvajal was not entitled to judgment as a matter of law. As the district court correctly observed, the Bivens claim depended on an assessment of the parties' credibility, which a reasonable jury could resolve in favor of defendants. On such a determination, a reasonable jury could conclude from the evidence that defendants' use of force was objectively reasonable and, therefore, consistent with the Fourth Amendment.
A detention on reasonable suspicion cannot be used as time to get a search warrant because there wasn’t any probable cause to get a search warrant. Commonwealth v. Joseph, 2011 PA Super 273, 34 A.3d 855 (2011):
In its reliance on Terry, however, [in Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008),] our Supreme Court emphasized that the nature of the stop in question was “to allow immediate investigation through temporarily maintaining the status quo.” Id. at 94, 960 A.2d at 115-16. The focus on the temporal nature of a Terry-type stop is important: “[O]ne must remember the reason why the Constitution tolerates the lesser standard articulated in Terry [i.e., reasonable suspicion] — the detention is allowed to maintain the status quo so the officer may conduct a brief and safe investigation to see if indeed there is criminal activity afoot.” Id. (emphasis added). Specifically, the Supreme Court described the limited scope of the police officer’s investigative authority: “In a Terry stop, the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Id. at 101-02, 960 A.2d at 120 (quoting Commonwealth v. Mistler, 590 Pa. 390, 411, 912 A.2d 1265, 1277 (2006) (Eakin, J., dissenting) (quoting Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).
The issue in the case sub judice, of course, is not the propriety of the initial stop of Joseph’s vehicle, as Trooper Yingst clearly had a reasonable suspicion that Joseph had violated traffic laws (including driving under the influence). Instead, the issue here is the constitutionality of Trooper Yingst’s seizure of Joseph’s vehicle during the course of the traffic stop. To this end, the record on appeal contains no evidence regarding the length of time that would have been required for the troopers to obtain a warrant (including the drafting of an affidavit, its presentation to a magistrate, and then a return to the scene for service). As such, we cannot agree that Trooper Yingst’s seizure of Joseph’s vehicle while attempting to obtain a warrant constituted a “brief” Terry-type investigation. See, e.g., United States v. Place, 462 U.S. 696, 708, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (“The length of detention of respondent’s luggage [90 minutes] alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.”). For these reasons, of this we conclude that seizure of a vehicle for an indeterminate amount of time while the police attempt to obtain a search warrant cannot be constitutionally justified as a “Terry stop” based upon mere reasonable suspicion.
[Note: What gets me is the state arguing with a straight face that they could detain on reasonable suspicion to get a search warrant which requires probable cause to be issued. And, obviously, a search warrant would never have been issued, if this had gone that far.]
Defendant was searched with reasonable suspicion, and a pill bottle was found. Search of the pill bottle was not justified as a search incident to arrest. Also, the altered label on the pill bottle did not lead to probable cause to search it. Corwin v. State, 962 N.E.2d 118 (Ind. App. 2011).*
Officer safety justified a patdown of a juvenile put into a police car after finding he was a truant from school. Where there was no reasonable suspicion he’d committed a crime, officer safety justified it. D.O. v. State, 77 So. 3d 787 (Fla. 3d DCA 2011).*
Defendant did not receive IAC from defense counsel not objecting to his strip search at the stationhouse, which was valid anyway on probable cause. Also, whether defendant had ineffective assistance of counsel from defense counsel not objecting to defendant’s statement that he had marijuana on him was harmless in light of what was found hidden in his buttocks. Bryant v. State, 959 N.E.2d 315 (Ind. App. 2011).*
Defendant’s wife had common authority to consent to a search of the house despite moving out because of defendant’s abuse. “‘There is a difference between voluntarily giving up your home and being forced to flee from it in fear for your life ...’ U.S. v. Backus, 349 F.3d 1298, 1304 (11th Cir. 2003) (affirming the lower court's denial of the defendant's motion to suppress because the defendant's wife, who fled as a result of the defendant's abuse, still had enough common authority over, or a sufficient relationship to, the marital home to consent to a search of it).” Barnes v. State, 75 So. 3d 1287 (Fla. 1st DCA 2011).
Defendant was stopped for a traffic offense, smelled of alcohol and admitted to being in a bar which just had happy hour. That was reasonable suspicion for a further detention. State v. Montelauro, 2011 Ohio 6568, 2011 Ohio App. LEXIS 5408 (10th Dist. December 20, 2011).*
The search and seizure issue raised on appeal was not the same one litigated in the trial court, so the issue is waived. State v. Williams, 2011 Tenn. Crim. App. LEXIS 929 (December 15, 2011).*
Erin Smith Dennis, A Mosaic Shield: Maynard, the Fourth Amendment, and Privacy Rights in the Digital Age, 33 Cardozo L. Rev 757 (2011). From the conclusion:
In Smith, the Court’s wholesale adoption of the third-party doctrine effectively stunted Fourth Amendment protections at the advent of the digital revolution. Maynard opens up a much-needed pathway for reinvigorating Fourth Amendment protections in an age of rapidly ad-vancing technology, where reliance on third-party intermediaries is no longer optional, but part and parcel of a normal productive existence. Effective balancing of the public’s “reasonable expectation of privacy” against law enforcement concerns cannot occur under a judicial doctrine which eviscerates that expectation by fiat. Instead, it necessitates a statutory scheme that allows room for judicial analysis and evolution of what a reasonable expectation of privacy is with regard to electronic communications.
The amount and tenor of information available to law enforcement via the Pen Register statute can easily be aggregated into a mosaic re-vealing intimate details about an individual, ad infinitum. If the Fourth Amendment is to continue to protect citizens against unreasonable searches and seizures, it must protect the information that we so value, be it physical or intangible.
The Maynard decision articulating a mosaic theory of privacy at the very least illustrates the mounting tension between Fourth Amendment privacy protections and rapidly advancing technology. More importantly, it signals a new chapter in the judiciary’s efforts to redraw and adapt the Fourth Amendment parameters for the digital age, thereby guaranteeing that its safeguards remain vital, responsive, and reliable in a rapidly changing technological landscape.
Defense counsel waived the motions to suppress on the record because he needed some exculpatory evidence from the search and statement, and that was reasonable strategy. In dicta, the court says that the search incident, including the cell phone, had “no colorable basis.” People v Nguyen, 2011 NY Slip Op 9216, 90 A.D.3d 1330, 935 N.Y.S.2d 195 (3d Dept. 2011). Practice pointer: In § 45.18 of the Treatise, it is observed that sometimes the police likely violated the client’s right to be free from unreasonable search and seizure, but the product of the search may even be more helpful to the case as a whole: “Accordingly, counsel must always ultimately determine whether the defendant’s trial strategy would be aided or harmed by the admission or exclusion of the allegedly illegally seized evidence.” I’ve had cases where the product of the search wasn’t critical to the prosecution’s case but was actually exculpatory to the defense. So, why file a motion to suppress if you need it?
When the computer check revealed an order of protection on the motorist being detained, the officer was justified in being more concerned for his own safety. Thus, it was not improper for the officer to inquire into that, and it didn’t extend the stop any. United States v. Green, 2011 U.S. Dist. LEXIS 146916 (W.D. Va. December 21, 2011).*
While Trooper Johnson also inquired about topics other than the traffic infractions, such as Green’s travel plans and Green’s reference to his lawyer, these brief questions did not run afoul of the scope or duration component of Terry’s second prong. See Johnson, 555 U.S. at 333 (holding that a law enforcement officer’s “inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure,” provided the questions “do not measurably extend the duration of the stop”).
At approximately 10:14 a.m., dispatch advised Trooper Johnson that Green had a protective order against him, which Green confirmed. Upon receiving this report, Trooper Johnson requested additional information regarding the protective order. As Trooper Johnson noted during the suppression hearing, the existence of a protective order raises officer safety concerns, since the order can be indicative of assaultive or threatening behavior. Because there is no indication that Trooper Johnson’s inquiry regarding the protective order measurably prolonged the stop, the court is persuaded that it did not alter the stop’s lawful character. See Soriano-Jarquin, 492 F.3d at 500 (emphasizing that “[i]t is well established that officers performing a lawful stop are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety’”) (quoting United States v. Hensley, 469 U.S. 221, 235 (1985)).
In a prosecution for overprescribing, the government showed that it was reasonable to seize voluminous medical records and a computer for later search off premises. United States v. Durante, 2011 U.S. Dist. LEXIS 147010 (D. N.J. December 19, 2011).* [Note: I don’t think any business would want the FBI or DEA on premises for weeks while they conduct a search of the records. It only makes sense to enable them to take the records and copy them as needed and return the originals when done. If the defendant has a problem with the government having the records or the computer, he has remedies under Rule 41 for unreasonableness and interference with the business, and the court can monitor it, or get a master or USMJ to.]
There was probable cause for issuance of the search warrant in this case, and the temporary seizure of the premises pending arrival of a search warrant was reasonable. People v Pinkney, 2011 NY Slip Op 9212, 2011 N.Y. App. Div. LEXIS 9034 (3d Dept. December 22, 2011).*
Arpaio case: Latinos allowed to join class-action suit by JJ Hensley:
A federal judge issued a ruling Friday that will curtail the Maricopa County Sheriff's Office's ability to target illegal immigrants and gives thousands of Hispanics standing in a civil lawsuit that seeks to fundamentally alter Sheriff Joe Arpaio's immigration-enforcement efforts.
Judge Murray Snow's ruling created a class action, giving every Latino stopped, questioned or detained by the Sheriff's Office since January 2007 standing in the 4-year-old civil-rights lawsuit.
The suit does not request monetary awards but seeks to change the way Arpaio's deputies enforce immigration laws.
The judge's ruling also bars all sheriff's officers from arresting any person "only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States."
Such knowledge or belief, Snow ruled, does not amount to cause for arrest.
ACLU press release here:
PHOENIX – A federal district court has put a halt to the systematic practice by the Maricopa County Sheriff’s Office of stopping and arresting Latinos based only on suspicion of unlawful presence in the United States and without any evidence of criminal activity, ruling that such detentions violate constitutional guarantees against unreasonable search and seizure.
U.S. District Court Judge Murray Snow also ruled on Dec. 23 that the lawsuit against the sheriff’s office, run by Sheriff Joe Arpaio, should proceed to trial on the separate claim of unconstitutional racial profiling and noted that the plaintiffs have already made a strong showing of intentional race discrimination.
The court also ordered that the case should proceed as a class action. As a result, all Latino drivers and passengers who may be stopped, searched or detained unconstitutionally will have a remedy under today’s order.
. . .
At issue are so-called crime saturation patrols and traffic stops done without evidence of criminal activity, which the plaintiffs charge are motivated by racial bias, and result in racially discriminatory treatment. The ruling comes in a 2008 lawsuit filed on behalf of five individuals and the Somos America immigrants’ rights coalition challenging racial profiling by the sheriff’s office.
Ortega-Melendres v. Arpaio, 2011 U.S. Dist. LEXIS 148223 (D. Ariz. December 23, 2011).
Where there was a shut security door to the common entrance to a duplex, the defendant had and manifested a reasonable expectation of privacy from entry. The reliance on the apparent authority of an identified woman to consent is a not consent. State v. Guard, 2012 WI App 8, 338 Wis. 2d 385, 808 N.W.2d 718 (2011):
P22 Under all the circumstances present here, considering particularly the relevant factors identified in Rewolinski, we conclude that Guard had a reasonable expectation of privacy not merely in his unit, but also in the only entrance to his unit, which was the back hallway. Consequently, in the absence of consent to the entry or exigent circumstances, the warrantless entry by the police into that back hallway was a violation of Guard’s rights under the Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution.
Defendant’s lane change was not a valid reason for a traffic stop because no other cars could be affected by it. Defendant was on parole but the officers didn’t know it, so that couldn’t be relied on for the stop and removal from the car. United States v. Hiley, 2011 U.S. Dist. LEXIS 147548 (C.D. Cal. December 22, 2011).*
PoliceOne.com: Patrolling the Waterways, Drug interdiction: The 'search authority' of maritime cops by Tom Burrell:
The other day I was surfing the web, looking for ideas for my next article when I came across a series of online chat groups which all dealt with the same topic — When can an officer stop and board my boat? Because I often find the opinions of online “legal authorities” amusing, I decided to take a moment to browse the comments.
At first I encountered the expected comments from those who had obviously been on the wrong end of a bad police contact — people complaining about their rights being trampled for no reason, often followed by claims that they would never let another officer check their equipment without a warrant. Next came the advice from well-meaning citizens who agreed that they did not like being “stopped for no reason” but felt that officers were just doing their job and suggested quiet compliance so the officers could finish quickly and be on their way. Finally, there were the “former law enforcement officers” who were quick to inform other readers that the boating officers had “more authority than street cops” and could board your boat whenever they wished.
Was I surprised? No, not really. Like I said earlier, I find these chat boards amusing and generally read them as a momentary escape — not because I expect to learn what a Supreme Court Justice has to say on the topic. But in this instance, I found myself thinking back to a recent case involving a stop made by one of my officers which led to an arrest for boating under the influence.
Officer’s mere hunch of wrongdoing was not reasonable suspicion. The claim of reasonable suspicion fails, and the motion to suppress is granted. United States v. Preciado, 2011 U.S. Dist. LEXIS 146366 (W.D. Tex. December 20, 2011):
The Fifth Circuit case law continues to develop in this area. Recently, the Court reversed a trial court’s denial of a motion to suppress a firearm uncovered during a warrantless automobile search. See U.S. v. Macias, 658 F.3d 509 (5th Cir. 2011). In Macias, that defendant argued that before the officer ran the computer checks, the officer engaged in detailed questioning about matters unrelated to the defendant’s driver’s license, his proof of insurance, the vehicle registration, or the purpose and itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. Id. at 518. The Macias Court determined that the unrelated questions impermissibly extended the duration of the stop. The Government argued that Trooper Barragan was permitted to ask these questions because, as soon as he stopped Macias, he had reasonable suspicion that Macias was involved in criminal activity. Distinguishing Brigham, the Macias Court stated that the Brigham officer’s “increasing suspicion was also fueled by Brigham’s extreme nervousness, his avoidance of eye contact, and his pattern of answering the officer’s questions with questions of his own.” Brigham, 382 F.3d at 508. Accordingly, the Macias Court found that the Brigham officer’s questioning represented “a graduated response to emerging facts” whereas Trooper Barragan “could only point to Macias’s extreme nervousness, which is not sufficient to support the extended detention.” Macias, 658 F. 3d. at 520. The Macias Court also stated that “potentially undercutting Trooper Barragan’s reasonable suspicion is the Government’s failure to present any evidence that sets out Trooper Barragan’s experience.” Id.
In this case, the Government established that Trooper Cipriani had four years of law enforcement experience, had conducted numerous vehicle stops and had attended “interdiction” schools, where he has received training in body language and vehicle indicators to detect contraband. The above notwithstanding, looking at the totality of the circumstances, Trooper Cipriani did not have a “particularized and objective basis for suspecting legal wrongdoing.” U.S. v. Vasquez, 253 Fed. Appx. 365, 370 (5th Cir. 2007). Reasonable suspicion may not be based on “inarticulate hunches of wrongdoing.” U.S. v. Thibodeaux, 276 Fed. Appx. 372, 377 (5th Cir. 2008). The Trooper had “mere uneasy feelings” about the believability of what he was being told. However, that does not constitute articulable facts that support a reasonable suspicion. U.S. v. Cavitt, 550 F. 3d 430, 437 (5th Cir. 2008).
Defendant invited his girlfriend to spend the weekend at a relative’s house while the relative was gone for the weekend. He told her she could use his computer. While on the computer, she found child pornography, and she called the police. Because she had been given full access to the computer, she had apparent authority to consent to a look at the computer by the police who later obtained a search warrant. State v. Sobczak, 2012 WI App 6, 338 Wis. 2d 410, 808 N.W.2d 730 (2011), affd State v. Sobczak, 2013 WI 52, 2013 Wisc. LEXIS 264 (June 20, 2013), posted here.
There was probable cause for arrest of the plaintiff university professor for disorderly conduct and stalking, so his false arrest claims fail. Collins v. Univ. of N.H., 664 F.3d 8 (1st Cir. 2011).*
The court credits the officers’ version that they got defendant out of the car during a traffic stop and his gun fell during a scuffle with the officers. Defendant says that it came from an unreasonable search of the car, which the court finds did not happen. United States v. Jones, 2011 U.S. Dist. LEXIS 146519 (E.D. Pa. December 20, 2011).*
Officers smelled marijuana during a traffic stop, and that gave probable cause as to the entire car, including a passenger’s purse. “[O]nce probable cause exists to search the vehicle, the entire vehicle may be searched. [¶] A police officer with probable cause to search a vehicle may inspect a passenger’s belongings found in the car which are capable of concealing an object of the search. Wyoming v. Houghton (1999), 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408.” State v. Abbuhl, 2011 Ohio 6550, 2011 Ohio App. LEXIS 5401 (5th Dist. December 14, 2011).*
There was probable cause for plaintiff’s arrest for shooting down a police helicopter, even though the charges were dropped and he wasn’t convicted. Kerns v. Bader, 663 F.3d 1173 (10th Cir. 2011).*
When computer checks came back clean, the officer was required to have new reasonable suspicion to continue the stop. Here it was a rental agreement that didn’t make sense, and defendant was a serial driver of rented cars. Then came a dog alert, and that was probable cause for a full search. United States v. Reid, 2011 U.S. Dist. LEXIS 146170 (W.D. La. November 14, 2011), adopted 2011 U.S. Dist. LEXIS 146184 (W.D. La., Dec. 20, 2011).*
Defendant was neither recipient nor sender of a Fed Ex package with oxycodone, so he lacked standing to challenge its search. There was also probable cause for search of the package under the search warrant. United States v. LeClair, 2011 U.S. Dist. LEXIS 145498 (D. Maine December 19, 2011).*
In an IRS civil enforcement proceeding, the IRS agent’s affidavit is sufficient to satisfy the Powell requirements of subpoenas. Then, the burden shifts to the taxpayer to prove otherwise. United States v. Lund, 2011 U.S. Dist. LEXIS 145921 (D. Ore. December 14, 2011).*
Defendant’s 2255 alluded to a defective search warrant but never elaborated on it, and it is treated as waived. United States v. Dodd, 828 F. Supp. 2d 39 (D. D.C. 2011).*
Defendant was being cited for urinating in public, and he tried to walk off, and then arrested for not complying. He was put in a police car, and his backpack was searched. Gant was distinguished as involving a car. The search of the backpack was valid. State v. Ellis, 355 S.W.3d 522 (Mo. App. 2011):
Although Gant was decided prior to defendant's arrest, it applied to vehicle searches and the seizure of items in vehicles that are not immediately associated with the person of an arrestee. Defendant has not provided a citation to any published appellate opinion, much less one having precedential value in Missouri and decided prior to October 31, 2009, that extends Gant to a search of the personal effects on the person of an arrestee during a search of a person. The search conducted in this case strictly complied with binding precedent that had not been overruled or abrogated and that allowed, as part of the search of a person incident to arrest, the search of the personal effects on the person of an arrestee. The controlled substance recovered was therefore not subject to the exclusionary rule.
Defendant failed to show he had standing to contest placement of a GPS on a stolen vehicle that was allegedly used in a bank robbery. United States v. Davis, 2011 U.S. Dist. LEXIS 145444 (D. Md. December 19, 2011):
Defendant asserted in his motion papers that “[a]t a hearing on this motion, the evidence will show that the defendant was not involved with the alleged theft of the automobile, and in fact he purchased the automobile from a third party months after the vehicle is alleged to have been reported stolen.” (ECF No. 57, at 10). No such evidence was presented at the hearing, however. The court raised the possibility that although Defendant had no standing to contest the placement of the GPS device, he might nevertheless have standing with respect to the monitoring of the movement of the Charger. The United States Court of Appeals for the Fifth Circuit made this distinction in United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011). In that case, the court held that the defendant lacked standing to challenge the placement of a GPS device on the undercarriage of his brother's truck, but did have standing to challenge “the use of the GPS device to follow the truck's path.” Hernandez, 647 F.3d at 220. That distinction was based, however, on the fact that the defendant was driving the truck with his brother's permission. See id. (quoting United States v. Lee, 898 F.2d 1034, 1038 (5th Cir. 1990) (“where a person has borrowed an automobile from another, with the other’s consent, the borrower becomes a lawful possessor of the vehicle and thus has standing to challenge its search.”)). Here, Defendant has not established that he had a reasonable expectation of privacy in the Dodge Charger or the monitoring of its movement on the highways. Thus, he lacks standing to bring his Fourth Amendment challenge, and the court does not reach the question of whether the Government's search was reasonable.
Defendant made three challenges to the search warrant and affidavit for a grow operation. First, the CI provided probable cause by his detail, which was corroborated by recorded telephone calls. While some of the calls seemed innocent, they take on a different color compared to the CI’s information. Second, the warrant was not stale, despite the two month lapse from the last PC to the issuances of the warrant because it was for an ongoing grow operation that would likely be there. Third, the warrant was not general. “Courts have recognized that ‘officers executing a search warrant are 'required to interpret it,’ and they are ‘not obliged to interpret it narrowly.’” Here, they knew they were looking for a grow operation. United States v. Tiem Trinh, 665 F.3d 1 (1st Cir. 2011):
Furthermore, authorities independently corroborated many of the CS’s details through intercepted phone conversations and general monitoring of the Trinhs. See United States v. Soule, 908 F.2d 1032, 1039 (1st Cir. 1990) (noting that police officers’ contemporaneous corroboration of the “material elements” of the CS’s information “lent substantial intrinsic verification to the informant’s veracity and basis of knowledge”). Thus, the fact that surveillance observed seemingly innocent van travels between Boston and Buffalo takes on a greater significance and supports the CS’s credibility when viewed in light of other corroborative evidence indicating incriminating activity. See Greenburg, 410 F.3d at 69 (providing that a surveillance agent’s “observation of seemingly innocent truck movement, which matched the informant’s prediction about such activity, helped establish a substantial reason to believe that the informant’s description of the entire scheme was accurate”).
Defendant would lose on the merits of the search argument not appealed, so defense counsel could not be ineffective for not appealing. The issue was consent to search a vehicle for drugs, and that included any containers in which drugs might be found. Parker v. United States, 2011 U.S. Dist. LEXIS 145970 (W.D. Mo. December 20, 2011).*
Officers in the NYC Anti-Crime Unit stopped the livery car defendant was a passenger in for speeding, yet the proof showed that they had maybe one second to judge the speed by eye without a radar gun. All things considered, without a showing of training in speed detection, the testimony was not credible, and the stop was suppressed. United States v. Moore, 2011 U.S. Dist. LEXIS 145729 (S.D. N.Y. December 19, 2011).* [Note: The court never got into the question of the propriety of a search of the passenger area of a livery car for speeding.]
Defendant’s stop was with reasonable suspicion of an illegal U-turn. When the officer approached, he could smell marijuana from the vehicle. The defendant unambiguously consented [and did not even really defend against that]. When the officer got in the car, he could smell marijuana, and that was probable cause for an automobile exception search. United States v. James, 2011 U.S. Dist. LEXIS 145234 (S.D. N.Y. December 16, 2011).*
A decade of billions in spending in the name of homeland security has armed local police departments with military-style equipment and a new commando mentality. But has it gone too far? Andrew Becker and G.W. Schulz of the Center for Investigative Reporting report.
Nestled amid plains so flat the locals joke you can watch your dog run away for miles, Fargo treasures its placid lifestyle, seldom pierced by the mayhem and violence common in other urban communities. North Dakota’s largest city has averaged fewer than two homicides a year since 2005, and there’s not been a single international terrorism prosecution in the last decade.
But that hasn’t stopped authorities in Fargo and its surrounding county from going on an $8 million buying spree to arm police officers with the sort of gear once reserved only for soldiers fighting foreign wars.
Worth a read, and the Table of Contents:
I. THE THEORY OF EQUILIBRIUM-ADJUSTMENT IN FOURTH AMENDMENT LAW, 482
A. The Fourth Amendment in Year Zero, 482
B. How New Facts Threaten the Balance of Power, 485
C. The Theory of Equilibrium-Adjustment and Six Scenarios, 487
1. The Government Uses a New Tool to Find Evidence, 489
2. Criminals Use a New Tool to Evade Detection, 489
3. New Crimes and New Practices, 489
4. Both Criminals and the Police Use a New Tool, 489
5. The Status Quo, 489
6. Defeating Countermeasures, 489
D. Equilibrium-Adjustment and Fourth Amendment Doctrine, at Both the Principles Layer and the Application Layer, 490
E. Equilibrium-Adjustment and Common Law Reasoning, 492
II. EXAMPLES OF EQUILIBRIUM-ADJUSTMENT IN FOURTH AMENDMENT LAW, 494
A. New Government Tools: Thermal Imagers, Beepers, and GPS Devices, 496
1. Thermal Imaging Devices, 496
2. Beepers and GPS Devices, 499
3. Sense-Enhancing Devices and Equilibrium-Adjustment, 501
B. New Tools to Commit Crime: The Automobile Exception, 502
1. How Automobiles Challenged the Privacy Balance of Year Zero, 503
2. Equilibrium-Adjustment and the Automobile Exception, 507
C. New Practices and New Crimes: The Subpoena Power and the End of the Mere Evidence Rule, 508
1. Rejecting the Equivalence Between Orders to Compel and Direct Physical Entry, 509
2. The End of the Mere Evidence Rule, 510
D. Both Sides Use a New Tool: Telephone Network Surveillance, 512
1. Contents of Telephone Calls: From Olmstead to Katz, 513
2. Surveillance of Numbers Dialed, 516
E. The Status Quo: Physical Entry into the Home, the Use of Undercover Agents, and
the Law of Arrests, 517
1. The Special Protections of the Home, 517
2. Undercover Agents, 518
3. The Law of Arrests, 521
F. Defeating Countermeasures: Open Fields and Aerial Surveillance, 522
1. Crossing over Fences, 523
A government contractor doing cyber security noticed that there was high traffic to potential child pornography websites from a government office in a university. After further investigation, it was determined that a particular IP address was involved, and then it was narrowed down to one computer issued to defendant by the university under a policy that said that the computer belonged to the university and was subject to monitoring. The computer was seized by university police, and then a search warrant was issued for its contents on a wealth of probable cause, including a prior offense for sexually molesting a child. There was no reasonable expectation of privacy in this computer. United States v. Busby, 2011 U.S. Dist. LEXIS 145217 (N.D. Cal. December 14, 2011):
As a general matter, courts have found that an employee’s expectation of privacy in files stored on a work-issued computer is not objectively reasonable where the employer notifies employees that their computer files are subject to monitoring. See United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (holding that government employee’s belief that his computer files were private was not objectively reasonable where the employer’s policy reserved its right to “audit, inspect, and monitor” his computer files); United States v. Angevine, 281 F.3d 1130, 1134 (10th Cir. 2002) (upholding denial of defendant professor’s motion to suppress child pornography located on the erased files on his office computer which was part of a university network where the university’s computer use policy notified users that internet activity was subject to monitoring); Sporer v. UAL Corp., No. C 08-02835 JSW, 2009 U.S. Dist. LEXIS 76852, 2009 WL 2761329, at *5 (N.D. Cal. Aug. 27, 2009) (finding that employee lacked a reasonable expectation of privacy in his work email where the employer had a policy of monitoring its employee’s computer use and warned employees that they had no expectation of privacy on e-mail transmitted on the company system); Wasson v. Sonoma County Junior Coll., 4 F. Supp. 2d 893, 905-906 (N.D. Cal. 1997) (employer’s computer policy giving it “the right to access all information stored on [the employer’s] computers” defeated employee’s reasonable expectation of privacy in files stored on employer’s computers); but see United States v. Heckenkamp, 482 F.3d 1142, 1147 (9th Cir. 2007) (university student had a reasonable expectation of privacy in files on his personal computer connected to the university network where the university had “no announced monitoring policy on the network”).
The driver’s consent to search the car likely does not apply to the other occupant's stuff, and the case is remanded for further fact finding. State v. Harding, 2011 UT 78, 697 Utah Adv. Rep. 54, 282 P.3d 31 (2011), on cert. from State v. Harding, 2010 UT App 8, 223 P.3d 1148 (2010):
¶1 The sole question before us is whether a police officer may search two backpacks belonging to a passenger in an automobile after receiving only the driver’s consent to search the vehicle. The district court’s factual findings are not sufficiently particularized for us to conclusively make this determination. We therefore remand with instructions for the district court to make additional factual findings.
¶16 Courts applying Rodriguez's apparent authority doctrine are generally in agreement that an officer's search of a passenger's belongings based only on a driver's consent is unreasonable where the facts clearly indicate the driver has no authority over the items to be searched. For example, courts are unanimous in holding that it is unreasonable for an officer to search a female passenger's purse after obtaining only the consent of a male driver because it is unreasonable to believe that the man has authority over the woman's purse. See United States v. Welch, 4 F.3d 761, 765 (9th Cir. 1993); State v. Friedel, 714 N.E.2d 1231, 1240-41 (Ind. Ct. App. 1999); State v. Caniglia, 1 Neb. Ct. App. 730, 510 N.W.2d 372, 374 (Neb. Ct. App. 1993); State v. Zachodni, 466 N.W.2d 624, 628 (S.D. 1991), abrogated on other grounds by State v. Akuba, 2004 SD 94, 686 N.W. 2d 406 (S.D. 2004). And a Florida court held that it was unreasonable for an officer to search a passenger's fanny pack based only on the driver's consent where the officer had observed the passenger sitting in the car with the fanny pack on her lap. Brown v. State, 789 So. 2d 1021, 1021-22 (Fla. Dist. Ct. App. 2001). Similarly, a federal court held that it was unreasonable for an officer to search a passenger's briefcase in the trunk of a car without obtaining the passenger’s consent after the driver informed the officer the briefcase belonged to the passenger. United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st Cir. 1994).
. . .
¶33 In this case, similar to James, Frank, and Norris, there were four passengers and several bags in the vehicle. In such a situation, the probability that one or more of the bags belonged to one of the passengers is extremely high. Thus, as in James, Frank, and Norris, it likely would have been unreasonable for Officer Westerman to believe that all of the bags in the car belonged to the driver.
¶34 The State makes much of the fact that the backpacks did not contain labels identifying Ms. Harding as the owner. It is true that some courts have emphasized such evidence, see, e.g., Hammons, 152 F.3d 1025, 1027-28 (8th Cir. 1998), and we agree that it is a fact that should be considered. But we also believe the value of such information is limited in gauging the reasonableness of an officer's actions because it is hardly commonplace for people to place labels on the exterior of their belongings.
Search warrant for evidence of ownership and control of the premises where a murder occurred was properly issued. Incriminating evidence was seen when it was executed. Also, exculpatory evidence omitted from the affidavit was not material. People v. Eubanks, 53 Cal. 4th 110, 134 Cal. Rptr. 3d 795 (2011):
Here, in light of the information available to the affiant sheriff’s detective at the time he sought the first warrant, he could not have realistically described the personal property sought to establish dominion and control with any more particularity. (See, e.g., U.S. v. Spilotro (9th Cir. 1986) 800 F.2d 959, 964; U.S. v. Cardwell (9th Cir. 1982) 680 F.2d 75, 78.) Officers knew that multiple murders recently had occurred inside the house, but they had little information as to how they were carried out or why. While it appeared that defendant had committed the crimes, her responsibility had to be ascertained with more certainty, and any others who had access to the property or dominion and control of it needed to be considered or eliminated as suspects.
In People v. Nicolaus (1991) 54 Cal.3d 551 (Nicolaus), police obtained a search warrant to search the defendant’s apartment for “letters, papers and bills tending to show who occupied the apartment” (id. at p. 575), after they learned defendant’s address from a dying woman who said defendant had shot her. During the search of the apartment, an officer opened a folder on the defendant’s desk and found documents in the defendant’s handwriting that described his plans to harm the victim and revealed his motives and state of mind before the murder. In finding the search into the folder for indicia of occupancy constitutional, we rejected defendant’s contention that the search authorized by the above quoted phrase was not “sufficiently particularized.” (Ibid.) We additionally noted that, “[i]n any event, the officers acted entirely properly in seeking independent evidence to establish defendant’s occupancy of the apartment, and defendant’s control over any evidence seized therefrom, for presentation in court.” (Ibid.)
. . .
4. Seizure of Dominion and Control Evidence.
Defendant next faults the investigating officers for reading and seizing the letters lying about her bed. She claims those letters were not relevant to dominion and control, that they were “merely [her] personal writings,” and the officers had “no authorization to seize them under the guise of ‘dominion and control.’” However, as officers searching defendant’s residence for items tending to show dominion and control were entitled to search through trash cans and to look at any paper items inside the home, they were also entitled to seize defendant’s letters, though not listed in the warrant, because they were in plain view and their incriminating character was immediately apparent. (Horton v. California (1990) 496 U.S. 128, 136-137; Kraft, supra, 23 Cal.4th at p. 1043; Nicolaus, supra, 54 Cal.3d at p. 575.) Defendant’s reliance on Arizona v. Hicks (1987) 480 U.S. 321, is misplaced. In that case, investigating officers engaged in conduct unrelated to the objectives of the authorized intrusion to search for a shooter and for weapons when they moved stereo equipment and obtained its serial numbers. (Id. at pp. 324-326.) Here, by contrast, the officers were engaged in an authorized search when they came upon the immediately apparent incriminating letters.
The arrest of plaintiff for public intoxication was not shown to be objectively reasonable, so qualified immunity was properly denied. Haley v. Elsmere Police Dep't, 452 Fed. Appx. 623, 2011 FED App. 0849N (6th Cir. 2011) (unpublished)*:
Under Haley's version of the facts as they were known to Officer Markesbery, it was objectively unreasonable for an officer to believe he had probable cause to arrest Haley for alcohol intoxication. Though Haley stated that he had consumed two beers, and the officers saw him crouching down (perhaps appearing to be trying to vomit—though no one testified that he ever did vomit), nothing else about his conduct would have made a reasonable officer conclude he was "manifestly" intoxicated. Nor, under Haley's version of the facts, was there any indication that he was unreasonably annoying anyone. A reasonable officer might have concluded that, had Haley been manifestly under the influence, he could have posed a danger to himself or others because he was in the parking lot, perhaps intending to get in his car. But since a reasonable officer could not have concluded he was manifestly intoxicated in the first place, that is irrelevant. And at any rate, Haley's offer to submit to a breathalyzer undercuts any potential danger he might have posed by driving under the influence. Accepting Haley's version of the facts, a reasonable officer could not have found the elements of the statutory offense of alcohol intoxication. The district court did not commit a purely legal error in denying summary judgment to Markesbery on the basis of qualified immunity.
Defendant was validly stopped for suspicion of counterfeiting. He said the $20 bill came from another store, and he agreed to a patdown for more currency, but he finally revoked. “The State admits that Defendant's consent was likely revoked once he lowered his arms and protested whether ‘we really have to do this,’ demonstrating by his conduct that he did not consent to the patdown search extending to his jacket pocket. We agree.” That led to finding a baggie of cocaine, which was unreasonable. State v. Jacko, 2011 Ohio 6494, 2011 Ohio App. LEXIS 5353 (2d Dist. December 16, 2011).*
Defendant failed to show any connection to the premises for standing as a resident or guest. Even if he did, the search was valid by third-party consent. State v. Smith, 2011 Ohio 6466, 2011 Ohio App. LEXIS 5307 (8th Dist. December 15, 2011).*
An alleged failure of a law enforcement officer to follow protocol established by the Kansas Department of Health and Environment for administering a breath test to determine the blood-alcohol level of a suspected drunk driver is not itself a violation of a constitutional right and is not legally sufficient to support a motion to suppress. But because the alleged failure goes to the evidentiary foundation for admission of the test results, such evidence might be challenged before trial by a motion in limine. State v. Smith, 46 Kan. App. 2d 939, 268 P.3d 1206 (2011).*
Think Progress: Eighth Circuit Embraces Dangerous Legal Claim Endangering Undocumented Immigrants’ Fourth Amendment Rights by Ian Millhiser:
Last June, the U.S. Court of Appeals for the Fifth Circuit held, wrongly, that the Second Amendment does not apply to undocumented immigrants. Last week, in a single paragraph order, the Eighth Circuit agreed. As ThinkProgress explained when the Fifth Circuit opinion was handed down, this decision isn’t just wrong, it is disastrously so. Indeed, if allowed to stand, it could strip all undocumented immigrants of their constitutional right to be free from unlawful searches and seizures.
Several constitutional provisions refer to rights that belong to “the people.” The Second Amendment refers to “the right of the people to keep and bear Arms.” And the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” According to the Fifth Circuit’s reasoning, which was embraced last week by the Eighth Circuit, undocumented immigrants enjoy neither right because they are not part of “the people”: ....
Court rejects consent was invalid because officer was too nice. As a threshold issue, none of the three had standing since they weren't on the paperwork for the rented car and didn't show they had permission to drive it. Alternatively, the consent shown on video was voluntary. United States v. Goode, 2011 U.S. Dist. LEXIS 144899 (E.D. Pa. December 16, 2011):
The defense argues that Trooper Lora’s friendly and respectful demeanor was so much so as to be actually and literally disarming and, hence, violative of Mr. Goode’s exercise of his free will. The Court declines to entertain an argument (or cynicism, generally) that would lead to a finding that politeness and good humor on the part of law enforcement officers can be subject to such alchemy as to unconstitutionally eviscerate the will power and intelligence of a fully functional adult. It is difficult to imagine the precise admonition that would have to be given to police officers to explain that they should beware of being “too nice” lest the exclusionary rule be invoked. Such a situation would set on its head the truism that more flies are caught with honey than with vinegar.
We agree with the majority of jurisdictions surveyed that a warrantless search of a defendant's cellular telephone following his arrest does not violate Fourth Amendment principles; we are not persuaded by the rationale in Smith that a cellular telephone may not be searched incident to a lawful arrest without first obtaining a warrant because the cellular telephone is not a container. In the instant case, the record indicates that Detective Soronen saw Gracie using a cellular telephone after the robbery. After placing Gracie under arrest, Detective Soronen searched the call log and text messages contained in Gracie's cellular telephone to determine if Gracie had an accomplice. The cellular telephone was immediately associated with Gracie's person, and pursuant to the decision of the United States Supreme Court in Robinson, Detective Soronen was permitted to inspect the cellular telephone. 414 U.S. at 236. Accordingly, the warrantless search of Gracie's cellular telephone following Gracie's arrest did not violate Fourth Amendment principles, and the circuit court did not err in denying Gracie's motion to suppress the text message seized pursuant to Detective Soronen's search of Gracie's cellular telephone.
A search warrant issued for defendant’s Belize residence was not governed by the Fourth Amendment because it was conducted under and enforcing Belize law and was otherwise reasonably executed. There was no showing of a “joint venture” of the U.S. and Belize even though U.S. officers were present. United States v. Flath, 2011 U.S. Dist. LEXIS 144931 (E.D. Wis. November 18, 2011):
In arguing that he is subject to the protection of the Fourth Amendment, Flath contends that the “joint venture” doctrine is applicable to his case. I disagree. To be clear, the record shows cooperation between the U.S. officers and Belizean officers. And a Belizean officer believed the search to be a “joint operation.” But, whether the search is a joint venture depends on the level of U.S. participation. See Marzano, 537 F.2d at 271 (finding that Grand Cayman officer’s intent to help the United States was not a sufficient reason to treat his actions as those of United States agents); United States v. Baboolal, No. 05-CR-215, 2006 WL 1942357, *3 (E.D. Wis. July 11, 2006) (“[T]he mere fact that the Canadians and Americans were cooperating as part of the Toronto Strategic Partnership does not transform any subsequent search into a joint venture.”). That the U.S. also expressed interest in prosecuting Flath for violation of U.S. laws does not alter the analysis. See Marzano, 537 F.2d at 271; Baboolal, 2006 WL 1942357, at *3 (stating that “if the fact that the case ultimately ends up in a United States court was significant, the [joint venture] doctrine would apply in virtually all cases involving foreign searches”).
At the outset, I see a distinction between the U.S. officers’ involvement in the search at issue and in the interrogation of Flath which is not at issue. The U.S. was substantially involved in Flath’s interrogation. A U.S. officer read Flath his Miranda rights, questioned him, and showed him incriminating evidence.
By contrast, the U.S. officers’ level of involvement in the search, on which I must focus, was more peripheral. Marzano, 537 F.2d at 270 (whether the Government participated as to render the search a Government action must be determined by examining the facts surrounding the search). Here, the U.S. officers’ involvement in the search was as follows. The U.S. officers passed the incriminating video to the local Belizean police which launched the investigation. The U.S. officers accompanied Belizean police to get the search warrant. The U.S. officers accompanied Belizean police to the residence. The U.S. officers waited at the back door with Belizean police upon arrival at the residence. The U.S. officers stopped and secured Flath at the back door when he tried to leave. The U.S. officers were present but did not participate in the search.
These facts do not support a finding that the U.S. officers’ actions in the search were so substantial as to be considered participants in the search. Passing of information and presence during the search are not sufficient. Marzano, 537 F.2d at 270 (“[T]he law is clear that providing information to a foreign functionary is not sufficient involvement for the Government to be considered a participant in acts the foreign functionary takes based on that information .... Mere presence of federal officers is not sufficient to make the officers participants.”).
Defendant could be ordered from his car during a traffic stop without it being a “seizure.” Engstrom v. N.D. DOT, 2011 ND 235, 807 N.W.2d 602 (2011).*
The smell of alcohol is reasonable suspicion for a further detention. State v. Smith, 2011 Tenn. Crim. App. LEXIS 913 (December 12, 2011).*
Court reaffirms (State v. Machuca, 231 Ore. App. 232, 218 P.3d 145 (2009) (Machuca I),rev'd on other grounds, 347 Ore. 644, 227 P.3d 729 (2010) (Machuca II)), that consent obtained after explanation of the economic penalties involved in refusal of consent is involuntary. State v. Moore, 247 Ore. App. 39, 269 P.3d 72 (2011).*
Asking for consent while waiting for return of information from dispatch was during an “unavoidable lull” in a stop and did not extend it. State v. Hampton, 247 Ore. App. 147, 268 P.3d 711 (2011)*:
Asking for consent to search the car did not extend the stop because it occurred during an unavoidable lull in the traffic stop while defendant was looking for his registration. See State v. Jones, 239 Or App 201, 208, 245 P3d 148 (2010), rev den, 350 Or 230 (2011) (holding that, because the defendant's consent to search occurred during an unavoidable lull in an ongoing traffic stop, the request for consent to search did not delay the stop).
The evidence supports the trial court’s conclusion and findings that the air freshener hanging from defendant’s mirror was a “material obstruction” to the driver’s view. “‘In making its decision on the motion, the trial court's focus is not on “whether an offense was actually committed but whether an arresting officer reasonably suspected at the time of the stop that criminal activity was taking place or about to take place.”’” People v. Price, 2011 IL App (4th) 110272, 962 N.E.2d 1035 (December 12, 2011).*
The record does not show that defendant was seized, and defendant did not show that he wasn’t free to leave, so he did not show a Fourth Amendment violation. State v. Aguilar, 2011 ND 236, 809 N.W.2d 285 (2011)*:
[*P14] The State argues Sanchez was not illegally seized because he was not being detained until he was arrested for possessing the methamphetamine and the pipe. Sanchez relied on Aguilar’s arguments at the suppression hearing and did not present any evidence that Sanchez was seized while Officer Sommer was waiting for additional officers to arrive.
[*P15] A Fourth Amendment seizure occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Fields, 2003 ND 81, 662 N.W.2d 242, ¶ 11 (quoting State v. Koskela, 329 N.W.2d 587, 589 (N.D. 1983)). At the district court suppression hearing, Sanchez presented no evidence that he was not free to leave before he was arrested, and nothing in the record suggests otherwise. The sniff did not violate Sanchez's right to be free from unreasonable seizures because Sanchez was not seized until after the sniff occurred.
[Note: Since the burden in a warrantless search is on the government, why is this court holding that defendant had the burden to show that he was “seized.” The burden is on the state to show that he was not seized. Here, at least, the court says that nothing in the record shows that he was seized. Unfortunate language.]
Officers’ extraterritorial stop was without reasonable suspicion, and his throwdown was properly suppressed. People v. Contreras, 2011 IL App (2d) 100930, 357 Ill. Dec. 239, 962 N.E.2d 1140 (2011).*
The officer was investigating a burglary report and was at defendant’s threshold where defendant was observed with his pants down bleeding from the leg, and he volunteered that he was injured running from the police because he had drugs. That was reasonable suspicion to detain, and defendant’s throwdown was a valid seizure. State v. Wilford, 81 So. 3d 868 (La. App. 5th Cir. 2011).*
Defendant was stopped without legal justification, and one thing led to another and he assaulted the officer. Acquittal was not an appropriate remedy for what was a separate crime despite the Fourth Amendment violation. Crossland v. United States, 32 A.3d 1005 (D.C. 2011):
In his post-trial Motion for Judgment of Acquittal, appellant argued that “because Officer Baldwin’s behavior violated his [Fourth Amendment] rights,” the trial court “should consider sanctioning the Government” by entering a judgment of acquittal. Relying on Mapp v. Ohio, appellant argues that the trial court erred in denying his motion, contending that “the only way to deter the MPD police policy of ‘aggressive high visibility patrol,’ ... is to remove the incentive” for police officers to disregard constitutional rights. We discern no reason to doubt (and the government does not dispute) that Officer Baldwin’s conduct — forcibly searching appellant when, as the officer acknowledged, appellant was doing nothing unlawful — violated appellant’s Fourth Amendment right to be free from unreasonable searches and seizures. However, application of the sanction established by Mapp (the so-called “exclusionary rule”) has “been limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct.” Artis v. United States, 802 A.2d 959, 967 (D.C. 2002) (quoting United States v. Leon, 468 U.S. 897, 910, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). This case did not involve the seizure of evidence, and the authority that appellant cited did not require or authorize the trial court to grant appellant’s request for a judgment of acquittal. Moreover, as the trial court recognized, the APO statute “prohibits forceful resistance even if the officer’s conduct is unlawful.” Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008) (explaining that the rationale for this rule is to “deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty”) (citations and internal quotation marks omitted). The trial court did not err in denying appellant’s motion.
The knowledge of the executing officer of the place to be searched may be considered, even if not reflected in affidavit for the search warrant. United States v. Harbison, 2011 U.S. Dist. LEXIS 143957 (M.D. Ala. November 18, 2011):
The court may consider “the knowledge of the officer executing the warrant, even where such knowledge was not reflected in the warrant or in the affidavit supporting the warrant.” Burke, 784 F.2d at 1093. Based on the officers’ knowledge and prior experience at the residence, the search warrants described the residence to be search with sufficient particularity to ensure that the correct residence was searched. “The Fourth Amendment requires only that the search warrant describe the premises in such a way that the searching officer may “‘with reasonable effort ascertain and identify the place intended.’” (internal citations omitted).
Leaving one hotel to go to another is an abandonment of what’s in the first. United States v. Thornton, 2011 U.S. Dist. LEXIS 143843 (N.D. Ga. July 28, 2011).*
The search of defendant’s car was valid either as a search incident to arrest with probable cause or consent. State v. Roberson, 81 So. 3d 911 (La. App. 2d Cir. 2011).*
In order to obtain a search warrant for a DNA sample, the government does not need to conclusively demonstrate the existence of an unknown DNA sample: “it suffices that the state has established that its evidence, removed from defendant’s residence, contains recoverable biological samples that may, but not necessarily will, provide a DNA profile useful for forensic purposes” (a blood stain and a hair with follicular matter). Also, the taking of DNA by buccal swab is no longer considered intrusive. State v. Franklin, 11-1909 (La. December 16, 2011).
The search warrant was issued with probable cause and the place to be searched was described with sufficient particularity to reasonably find it to search it. State v. Turner, 82 So. 3d 449 (La. App. 2d Cir. 2011).*
The officer had reasonable suspicion for detention of defendant after his stop for driving a couple of miles 10-15 mph below the speed limit in the left lane of a highway. State v. Lee, 2011 La. App. LEXIS 1555 (La. App. 2d Cir. December 14, 2011)*:
The factors which Sgt. Parker identified, for his suspicion of possible drug courier activity were: the nervousness of Morris; the varying and incomplete accounts of the defendants' trip to and from Texas; the varying accounts of Morris's length of time in driving the vehicle; the multiple air fresheners in the vehicle; the ownership of the vehicle by a party who was not traveling with the defendants in the cross-country trip; and the prior criminal records of Morris and Smith involving illegal drugs. These facts allowed a permissible shift in the trooper's focus and were adequate to create a reasonable suspicion of separate illegal drug activity.
A third party consented to the search both verbally and non-verbally by gesturing the police to enter. United States v. Lee, 835 F. Supp. 2d 657 (N.D. Ind. 2011):
What's more, Saffa also gave non-verbal consent for the agents to come into the house. Consent to enter can be non-verbal. U.S. v. Villegas, 388 F.3d 317, 324-25 (7th Cir. 2004); U.S. v. Cotnam, 88 F.3d 487, 495 (7th Cir. 1996). In other words, a person’s actions alone can manifest his or her consent to a search. U.S. v. Walls, 225 F.3d 858, 863-64 (7th Cir. 2000); U.S. v. Rosario, 962 F.2d 733, 735, 737 (7th Cir. 1992). Recall that after Saffa opened the door, the agents asked if Krystal Lee was there, and independent of her words, Saffa non-verbally communicated to the agents that Krystal was in the house, and that they could enter it. She did this by opening the door wider, stepping back, and gesturing into the house. Opening a door, stepping back to permit agents to enter the home, and gesturing to come in convey consent to enter. Lewis, 608 F.3d at 999; Walls, 225 F.3d at 862-63; Rosario, 962 F.2d at 737. In this case, it is clear from the testimony of the officers — and from Saffa herself — that her actions constituted non-verbal consent to enter the house to find Krystal.
Defendant was a passenger of a vehicle stopped because the driver was allegedly under the influence. When the vehicle was being towed and the passenger was going into the police car, he was patted down, and drugs were found. Defendant filed a motion to suppress the stop, and the state was thus on notice that the stop was invalid. The state did not support the stop in defendant’s case, and the motion to suppress should have been granted. State v. Burnette, 2011 Ohio 6400, 2011 Ohio App. LEXIS 5257 (7th Dist. December 5, 2011).
The search of defendant’s cell phone was waived by the defendant. Then, the government had an independent source of subpoenaed records. On plain error, it isn’t. United States v. Moody, 664 F.3d 164 (7th Cir. 2011).*
The evidence supports the USMJ’s finding of consent. United States v. Dearing, 2011 U.S. Dist. LEXIS 144007 (N.D. Ohio December 14, 2011), R&R 2011 U.S. Dist. LEXIS 144005 (N.D. Ohio September 21, 2011).
ACLU.org: Justice Department Avoids Decision On Warrantless Cell Phone Tracking by Catherine Crump:
Federal law enforcement has used people’s cell phones to track their movements for at least a decade, but even today there is no clear answer to whether the government needs a warrant to do so. Why? In part because the U.S. Justice Department appears to be pursuing a conscious strategy of trying to avoid a ruling on this question by a court of appeals.
Here’s how that happens: Federal agents track people without a warrant, and in some instances, are slapped down by some district courts for this (in our view and in the view of these district courts) unlawful behavior. But they refrain from taking those losses to the Courts of Appeals, perhaps because a ruling that they need a warrant would then become the law of the land in the territory of that appeals court, and they want to be able to continue to engage in warrantless cell phone tracking whenever they can.
One unsupported informant is not probable cause, but three unsupported informants is the good faith exception because past cases suggested that it might be OK. People v. French, 201 Cal. App. 4th 1307, 134 Cal. Rptr. 3d 383 (1st Dist. 2011):
A search warrant affidavit contains information from three informants, none of whom are reliable. Each informant states two named individuals are selling drugs from a particular residence and drive a particular vehicle. The affiant officer corroborates those facts and determines that one of the alleged drug dealers has a history of narcotics offenses, but fails to include in the affidavit the dates and any details of those offenses. We conclude that the affidavit was insufficient to establish probable cause to issue the warrant, in part because the police corroboration of the informants’ statements and the “interlocking” details of those statements related to “pedestrian” facts. However, we find the good faith exception to the exclusionary rule applicable and affirm.
. . .
The minimal police investigation and lack of detail in the affidavit are factors weighing against application of the good faith exception. Where “neither the veracity nor basis of knowledge of the informant is directly established, the information is not so detailed as to be self-verifying and there is no logistical or other reason why verification from other sources cannot be achieved, … the failure to corroborate may be indicative that it was objectively unreasonable for the officer to believe in the existence of probable cause.” (Maestas, supra, 204 Cal.App.3d at pp. 1220–1221.) Nevertheless, the question under Leon, supra, 468 U.S. 879, “is not whether further investigation would have been reasonable, but whether a reasonable officer in [the affiant's] position would have known that the affidavit, as it existed at the time it was to be presented to the magistrate, was legally insufficient without additional and more recent corroboration.” (Camarella, supra, 54 Cal.3d at p. 606, fn. omitted.)
We apply the good faith exception in the present case because broad language in several prior court decisions may have led a reasonable officer to conclude the affidavit presented a debatable question as to the existence of probable cause. In particular, several decisions contain language flatly suggesting that multiple unreliable informants can corroborate each other. Thus, in Sheridan, supra, 2 Cal.App.3d at page 489, the court stated, “[I]t may not be said as a matter of law, that two or more independent reports of previously untested informers each corroborating the other, of the same criminal activity, do not constitute probable cause for an arrest or search. … [S]imilar information from separate unrelated sources substantially increases the probability of its credibility.” In Balassy, supra, 30 Cal.App.3d at page 621, the court stated, “one ‘unreliable’ informer's statements may be corroborated by those of another, if they were interviewed independently, at a different time and place. [Citations.]” (Accord, Green, supra, 117 Cal.App.3d at p. 205.) And in Laws, supra, 808 F.2d at page 103, the court stated, “The fact that two apparently unassociated persons make the same assertion increases the probability that it is true.” (See also Hyde, supra, 574 F.2d at p. 863, fn. omitted.)
. . .
As explained previously, all of those cases are distinguishable from the present case. However, because the broad language in the decisions in the previous paragraph was “arguably supportive legal authority” in favor of issuance of the warrant, we conclude the existence of probable cause was debatable and, therefore, the trial court properly denied the motion to suppress the evidence seized under the search warrant. (Garcia, supra, 111 Cal.App.4th at p. 723; see also People v. Pressey (2002) 102 Cal.App.4th 1178, 1191 [126 Cal. Rptr. 2d 162] [“Given the dearth of authority directly on point and the existence of potentially supportive precedent, the issue of probable cause was ‘debatable’ when the warrant herein was sought, even though the issue, upon examination, is not a particularly close one.”].)
[Note: So, California: what about the next time? Does this case mean that the good faith exception will not be applied, or is it still “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation” that warrants can, in fact, still be issued without probable cause? In this case, probable cause was “debatable” so there is no change in the law.]
Defendant was not stopped and was free to go when the officer parked near and in front of him but not blocking him, shone the police car spotlight in his face, and demanded to know what he was doing there. Johnson v. State, 359 S.W.3d 725 (Tex. App.—Houston (14th Dist.) 2011) (concurring judge found reasonable suspicion)*:
In summary, viewed in the light most favorable to the trial court’s ruling, the evidence supports implicit findings that during the initial interaction between Johnson and Hendrie (1) Hendrie approached Johnson's vehicle, which was backed into a parking spot outside the gate of an apartment complex at night with its lights on and engine running; (2) Hendrie parked his police vehicle at an angle that partially blocked Johnson's egress but did not prevent him from maneuvering around him and driving away; (3) Hendrie shined his police vehicle's spotlight inside Johnson's car; (4) Hendrie did not activate his siren or emergency lights, or use a bullhorn or loudspeaker to communicate with Johnson; (5) Hendrie approached Johnson's car and asked, “What’s going on, what are you doing out here?” and requested Johnson's identification; and (6) Hendrie did not carry a flashlight, draw a weapon, order Johnson to put his hands up, or otherwise inform him that he was being detained. On these facts, the trial court could have concluded that a reasonable person in Johnson’s position would have believed that he was free to ignore Hendrie’s requests or terminate the interaction, and therefore the initial interaction between Hendrie and Johnson was a voluntary encounter rather than a Fourth Amendment seizure.
[Note: This is utter fiction and shows that appellate judges haven't a clue as to what happens in criminal court or on the streets. The purpose of shining the light in the driver's face is to control the situation and disorient him. It shows to me that he was stopped. With these facts the officer did not have a flashlight becomes meaningless and not supportive of anything. When the officer approaches on foot, it certainly is to block egress. Thus, what person in his right mind would think that he could drive off? If you try to leave and the officer has to move, at least around here, they'd charge you with aggravated assault on a police officer. If you, heaven forbid, touch the police officer jumping in front of you, they'd charge you with attempted capital murder. Practice Pointer: Develop the facts that the officer was positioned such that defendant could not really leave and no person in his right mind would seriously think he was not detained. Again, develop the cross in such a way that when you ask the officer what he'd do if the defendant ignored him and drove off; 9 times out of 10 he'd say defendant would be stopped for ignoring a police officer's commands. Then, by the officer's own admission he was not free to leave.]
The USMJ found that defendant lacked standing to contest the search of a motel room he vacated and the co-occupant consented. Defendant’s attack before the USDJ did not address both arguments, so the findings of the USMJ are sustained because either was sufficient. United States v. Stephens, 2011 U.S. Dist. LEXIS 143551 (N.D. Ga. December 13, 2011):
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review as to those portions of the R&R to which Defendant timely and specifically objected. The Court may accept, reject or modify, in whole or in part, the findings and recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1). Portions of the R&R to which Plaintiff has not specifically objected are reviewed for clear error only. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373 (N.D. Ga. 2006) (Story, J.) ("[I]ssues upon which no specific objections are raised do not so require de novo review; the district court may therefore 'accept, reject, or modify, in whole or in parts the findings or recommendations made by the magistrate judge[,]' applying a clearly erroneous standard.") (quoting 28 U.S.C. § 636(b)(1)).
The co-occupant of a hotel room consented to an entry by the police, and they saw a sweater matching the description of a sweater worn in a bank robbery laying on an open suitcase. It was in plain view to the officer. State v. Sullivan, 2011 Ohio 6384, 2011 Ohio App. LEXIS 5243 (10th Dist. December 13, 2011).*
On remand from United States v. McCarty, 648 F.3d 820 (9th Cir. 2011), the district court finds the accidental viewing of child pornography photographs that fell from an envelope when a computer was removed from a bag was a valid administrative search. United States v. McCarty, 835 F. Supp. 2d 938 (D. Haw. 2011).*
Brookings Institution: The Constitution and Technology: How Far is Too Far? by Jeffrey Rosen, Nonresident Senior Fellow, Governance Studies:
Although we are early in the twenty-first century, breathtaking changes in technology are posing stark challenges to our constitutional values. From free speech to privacy, from liberty and personal autonomy to the right against self-incrimination, basic constitutional principles are under stress from technological advances unimaginable even a few decades ago, let alone during the founding era. In Constitution 3.0, we asked a group of provocative thinkers to imagine the ways in which technological change will challenge our constitutional and legal values in the year 2030.
Will privacy become obsolete, for example, in a world where ubiquitous surveillance is becoming the norm? Imagine that Facebook and Google post live feeds to public and private surveillance cameras, allowing 24/7 tracking of any citizen in the world. How can we protect free speech now that Facebook, Google, and other private intermediaries have more power than any king, president, or Supreme Court justice to decide who can speak and who can be heard? How will advanced brain-scan technology affect the constitutional right against self-incrimination? And on a more elemental level, should people have the right to manipulate their genes and design their own babies? Should we be allowed to patent new forms of life that seem virtually human? And we then asked our contributors to propose ways of translating and preserving constitutional values in the year 2030, in the face of dizzying technological change.
TSA having seen cash, it was still legally in “plain view” even though it had been returned to defendant in the airport and was zipped up in his bag. United States v. Rosales, 2011 U.S. Dist. LEXIS 143264 (D. Minn. December 13, 2011):
As noted, the Court has already held that the TSA agent’s search of Rosales’s bag was lawful. Thus, the TSA agent was lawfully in a position to see the cash. As Rosales points out, though, the TSA agent did not seize the cash. Instead, the TSA agent returned Rosales’s property to him and let him go on his way. Rosales’s cash was later seized by airport police (not the TSA) only after Rosales voluntarily agreed to return to the screening area and speak with airport police officers (who had been told by the TSA that Rosales was carrying a large amount of cash, see Docket No. 329 at 4-5, 65-66, 68).
Nevertheless, the Court finds that the seizure was proper under the plain-view doctrine. The Supreme Court has upheld a search under analogous circumstances, explaining that “absent a substantial likelihood that the contents have been changed, there is no legitimate expectation of privacy in the contents of a container previously opened under lawful authority.” Illinois v. Andreas, 463 U.S. 765, 773, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983); see also United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 87-88 (2d Cir. 2002) (Sotomayor, J.) (holding that a police officer’s opening of a briefcase that had just been searched by airport security did not constitute an additional “search” within the meaning of the Fourth Amendment); United States v. $145,850 U.S. Currency, No. 10-71, 2010 U.S. Dist. LEXIS 77686, 2010 WL 3063814, at *6 n.2 (E.D. Va. July 30, 2010) (“That Arrington zipped up his suitcase and began to exit the airport is immaterial to whether the plain view justification for seizure continued to apply.”). In other words, after a container has been lawfully searched and its contents lawfully viewed in the course of that search, those contents are deemed to remain in plain view (even if they are put back in the container and carried off) up until the point that it becomes substantially likely that the contents of the container have changed. Cf. Andreas, 463 U.S. at 771-72 (“once a container has been found to a certainty to contain illicit drugs, the contraband becomes like objects physically within the plain view of the police, and the claim to privacy is lost” (footnote omitted)).
In this case, there is no substantial likelihood that the contents of Rosales’s bag changed between the time that the TSA agent allowed Rosales to leave the screening area and the time that airport police seized the cash. Although the record does not definitively establish the amount of time that passed between Rosales leaving and returning to the screening area, it appears to have been a matter of minutes; moreover, Rosales was nearby and apparently visible to TSA agents the entire time. See Docket No. 329 at 42, 48-49, 53-55; cf. Andreas, 463 U.S. at 767-68, 772-73 (holding that there was no substantial likelihood that the contents of a shipping container changed during the 30 to 45 minutes that it was in an apartment and out of the officers’ sight). In addition, given that Rosales was at the airport the entire time, it is reasonable to believe that he maintained his possessions in the bag in which he had packed them. Without any substantial likelihood that the contents of Rosales’s bag changed, therefore, the cash is treated as though it remained in plain view — as though Rosales had held it in an outstretched hand at all times, including while talking with airport police.
An IRS agent is not required to tell a taxpayer when asking for consent that a criminal investigation may ensue. United States v. Dilworth, 2011 U.S. Dist. LEXIS 142941 (D. N.J. December 12, 2011):
“A consent search is unreasonable under the Fourth Amendment if the consent was induced by the deceit, trickery or misrepresentation of the Internal Revenue Agent.” United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977). However, “the mere failure of a revenue agent (be he regular or special) to warn the taxpayer that the investigation may result in criminal charges, absent any acts by the agent which materially misrepresent the nature of the inquiry, do not constitute fraud, deceit and trickery.” Id. Importantly, “the record must disclose some affirmative misrepresentation to establish the existence of fraud, and the showing must be clear and convincing.” Id.
“Shuffling, scuffling sound inside the trailer” when police knocked was exigent circumstance for entry to prevent desctruction of evidence. United States v. Aguirre, 664 F.3d 606 (5th Cir. 2011).
Defendant was stopped in the area of a recent burglary because he matched the description given by the victims and was near the place. His stop and patdown were with reasonable suspicion. State v. McCormack, 132 Conn. App. 490, 33 A.3d 264 (2011).*
While the police had probable cause to believe that a person was involved in a New Jersey homicide, they did not have probable cause for an entry into the bedroom of the house they entered. There was information that people were there, but not specifically the defendants. A cell phone ping put a particular phone at that address at the time, too, but unless it was shown to be “real time,” it wasn’t timely information. State v. Kendrick, 132 Conn. App. 473, 31 A.3d 1189 (2011):
After reviewing the record, we conclude that, under the totality of the circumstances existing at the time of entry into the bedroom, a reasonable, well-trained police officer would not have had reasonable grounds to believe that Singer was in the bedroom, or that the occupants of the bedroom would flee, destroy evidence, or, in the time necessary to procure a warrant, endanger the safety of others.
. . .
Here, in contrast, the police were not relying on either their own or an eyewitness’ affirmative identification of Singer. The lights in the bedroom were off, the door to the bedroom was slightly ajar and there is no indication in the record that the police could see the occupants of the bedroom. Rather, the trial court's limited findings, the testimony at the suppression hearing and the state’s position at oral argument reveal the following factors in support of the belief by the police that Singer was present in the bedroom at the time of the warrantless entry: (1) the cellular telephone ping information, (2) the general description given by the landlord and (3) Blanca Valvo’s statement that two African-American males were present in the apartment. Under the totality of the circumstances known to the police at the time of their entry into the bedroom, including but not limited to the absence of any specific identification by the landlord or Blanca Valvo of a light-skinned African-American male with tear drop tattoos on his face as one of the persons present in the apartment or the bedroom, we conclude that it was unreasonable for the police to assume that Singer was present in the apartment or the bedroom and posing an imminent threat of harm to its occupants. Accordingly, it was improper for the court to conclude that an exigency justified the warrantless entry.
Thus, although it may be clear that the police had probable cause to believe that Singer had committed the New Jersey homicide, that he was armed and that he posed a continuing threat to others, there is no evidence in the record that persuades us that the police had a reasonable basis to believe that an immediate warrantless entry of the bedroom was necessary. Rather, at the time the New Jersey police entered the bedroom, their belief that Singer was armed, present, and posing an immediate danger to their safety and the safety of those in the residence was premised on a string of attenuated speculation without any positive identification of Singer.
When the government says a suppression motion is moot because it will not offer evidence, it is still precluded from using it, but the motion is denied as moot. United States v. Armstead, 2011 U.S. Dist. LEXIS 143200 (N.D. Iowa December 13, 2011):
As a practical matter, it is unclear whether there is a significant difference between granting the motion to suppress or denying the motion as moot (based on the Government's promise not to offer the evidence during its case in chief). Under either alternative, the Government is precluded from offering into evidence during its case in chief the items seized during the warrantless search. When the Government agrees not to offer evidence which is the subject of the motion to suppress, however, it would appear that the common practice is to deny the motion as moot. Accordingly, the Court recommends that outcome here.
[Note: When the government says the motion is moot, it is agreeing not to offer the evidence. If the government later wants to use the evidence, a suppression motion would still be required.]
The district court found two alternative grounds to sustain the search and seizure, but defendant appealed only one, and that was a waiver of the other, so that is affirmed. United States v. Sosa-Almontes, 451 Fed. Appx. 441 (5th Cir. 2011).
It is reasonable to assume that the subject of an arrest warrant was home at 7 a.m., absent evidence to the contrary. United States v. Felder, 457 Fed. Appx. 316 (4th Cir. 2011) (unpublished):
Courts routinely rely on the time of day as a key factor in determining whether officers could reasonably believe the subject of an arrest warrant was home. E.g., United States v. Edmonds, 52 F.3d 1236, 1248 (3d Cir. 1995), vacated on other grounds, 80 F.3d 810 (3d Cir. 1996) (reasoning that 6:45 a.m. was “early enough that it was unlikely someone living in the apartment would have already departed for the day”). The Eleventh Circuit has noted that “officers may presume that a person is home at certain times of the day—a presumption which can be rebutted by contrary evidence regarding the suspect’s known schedule.” United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995); see also United States v. Bervaldi, 226 F.3d 1256, 1267 (11th Cir. 2000) (“It was reasonable to believe, in the absence of contrary evidence, that [the suspect] would be at his residence at 6:00 in the morning.”). Similarly, the D.C. Circuit has concluded, without citing any other factors, that “the early morning hour was reason enough” for officers to believe a defendant was home when they attempted to execute an arrest warrant between 6:00 and 6:30 a.m. Thomas, 429 F.3d at 284, 286.
An inventory policy does not have to be detailed if it otherwise complies with Bertine. United States v. Davis, 2011 U.S. Dist. LEXIS 142923 (N.D. W.Va. December 12, 2011)*:
While it is true that there is not a written precise step-by-step process as to how to perform an inventory of a seized vehicle outlined in the Department’s policy, it does require the following:
1. the officer must have “lawful custody” of the vehicle; and
2. “[t]he scope of the inventory shall be limited to those parts of a vehicle likely to conceal important, hazardous, or valuable items including, but not limited to, the passenger compartment, the trunk, and glove compartment.”
The undersigned concludes the above quoted limitations in totality constitute the type of “standardized criteria” referred to in Bertine, Id., and certainly acts to “‘curtail the discretion of the searching officer so as to prevent searches from becoming a “ruse for a general rummaging in order to discover incriminating evidence.’” Banks, supra at 738, 739.
Defendant was accused of domestic battery while on a diplomatic mission in Africa. Defendant’s wife consented to a search of the house, and the seizure of a doll house that was used as a weapon was by her consent. United States v. Makalou, 2011 U.S. Dist. LEXIS 142538 (E.D. Va. December 12, 2011).*
Defendant’s traffic stop was based on PC an offense occurred, and the defendant consented to a search of the vehicle thereafter. United States v. Crump, 2011 U.S. Dist. LEXIS 142363 (N.D. Ga. December 12, 2011), R&R 2011 U.S. Dist. LEXIS 142778 (N.D. Ga. November 21, 2011).*
While the state trooper was going to issue a warning ticket, he still went though the criminal history checks, and that was not unreasonable. In the course of that, the occupant's travel plans became inconsistent, and that led to a valid request for consent. United States v. Buenrostro, 454 Fed. Appx. 523 (8th Cir. 2011) (unpublished).*
Defendant had no paperwork on him after a stop of his car, and he assented to a patdown. The officer felt two long hard objects in the pockets but couldn’t determine what they were. After defendant refused to explain, the officer removed them finding glass pipes with drug residue. Removal of the pipes was valid. United States v. Rochin, 662 F.3d 1272 (10th Cir. 2011):
And we don’t hesitate to hold that test satisfied here. A reasonable officer could have concluded that the long and hard objects detected in Mr. Rochin’s pockets might be used as instruments of assault, particularly given that an effort to ask Mr. Rochin about the identity of the objects had proved fruitless. To be sure, the pipes Mr. Rochin turned out to have aren’t conventionally considered weapons. But a reasonable officer isn’t credited with x-ray vision and can’t be faulted for having failed to divine the true identity of the objects. And neither is “the scope of a Terry frisk ... limited to [traditional] weapons.” Holmes, 385 F.3d at 791. During a lawful pat down an officer may remove not just objects that seem to be guns, knives and the like, but also any other objects that he reasonably thinks “might be used as instruments of assault” against him or others who may be in the area. Sibron, 392 U.S. at 65. And two hard and long objects filling a suspect’s trouser pockets “fit that description well,” better than the “hard, square object” at issue in Holmes, 385 F.3d at 791, and better than many other objects courts have held officers may lawfully remove during Terry stops, see, e.g., United States v. Rahman, 189 F.3d 88, 120 (2d Cir. 1999) (envelope); United States ex rel. McNeil v. Rundle, 325 F. Supp. 672, 677 (E.D. Pa. 1971) (watch). None of this is to say we necessarily endorse (or reject) the conclusions reached about the objects at issue in these other cases. It is instead only to emphasize by comparison how much more (objectively reasonable) reason there was for an officer to worry about the objects in the case at hand.
The 220th anniversary of the ratification of the Bill of Rights. Bill of Rights Day was designated in 1941, seven days after the declaration of war in WWII. They weren't adopted overnight--they were referred to the thirteen states 27 months earlier. [Update: see Cato.org, too.]
Still, too few people even recognize the Bill of Rights (1991 here and 1998 here). This is remarkable, except when one considers the United States is interested in spreading democracy abroad while most of its own citizens do not understand its fundamental documents.
Look at the members of state legislatures and Congress so willing to give up Fourth Amendment rights of all in the name of some expediency, be it fighting terrorism or drug testing recipients of government funds. This is the misguided belief that others losing Fourth Amendment rights doesn't mean anything as to the country as a whole. As to the recipients of government funds, there is no indication of a problem, but that doesn't stop legislators (see posts here, here, here). I remember one state legislator saying that his constituents "really wanted" this. Why don't we just get over it and drug test every recipient of government funds, starting with the Governor of Florida down to all state legislators, all government workers, welfare recipients, government contractors, CJA lawyers, judges, etc?
Because we can't under Skinner and Von Raab, that's why; and none of these clowns knows it because, while legislators are presumed to know what the courts have said on an issue, that only means that they are actively defying the Fourth Amendment, or just don't care about the Constitution when it is the rights of somebody else, notwithstanding that destroying the rights of one can quickly lead to destroying the rights of all.
Happy Bill of Rights Day. Enjoy it while you still can.
[On a related note: On FoxNews's "Fox and Friends" this morning, "Today in History" is the release of Michael Jackson's "Black or White" video. Sigh.]
Law.com: Government agrees to place conviction in FCPA case on hold by Amanda Bronstad:
Prosecutors in a disastrous Foreign Corrupt Practices Act case agreed to toss the conviction of a third individual defendant in light of a federal judge's dismissal of related charges against two co-defendants for prosecutorial misconduct.
. . .
Then, on Dec. 1, U.S. District Judge Howard Matz in Los Angeles threw out the convictions of the company and the two executives. He cited false statements that an FBI agent made to the grand jury and false information in affidavits submitted by the government for search-and-seizure warrants, among other wrongdoing.
The finding of one pill and a small bindle of drugs for personal use on defendant’s person during a traffic stop did not justify a search of his car under search incident or the automobile exception. There was no probable cause as to the car under Gant and Thornton because what was possessed here suggests nothing about the car. People v. Coates, 266 P.3d 397 (Colo. 2011):
The People offer no specific evidential hypothesis from which a fair probability of more contraband could be inferred, and we can discern none. While being wrapped in a piece of paper might suggest that the driver’s lone pill was not lawfully prescribed for him by a practitioner, see § 18-18-302(3)(c), C.R.S. (2011), the pill itself was clearly a prescription medication rather than contraband by its very nature. And whether lawful or not, possession of the single prescription pill in this case implied that the driver was the ultimate user and nothing more. Cf. Wimberly v. Superior Court, 16 Cal. 3d 557, 128 Cal. Rptr. 641, 547 P.2d 417, 427 (Cal. 1976) (small quantity of marijuana found in car indicative of personal use rather than distribution). As the People seem to acknowledge, nothing in the driver's possession of a single prescription pill of Xanax, standing alone, created a fair probability that he had more of the same, and even if so, that he would be transporting it in the vehicle he was illegally driving rather than carrying any other pills he might have in his pocket, along with the sole pill discovered by the police.
Even assuming some degree of articulable suspicion, however, it is difficult to explain how the nervousness of an underage driver, stopped while unlawfully possessing a prescription drug, and his claim to have had a prescription for that drug, could in any way strengthen the inference, much less elevate suspicion to a “fair probability,” that more contraband would be found in the defendant's vehicle. The reactions of the driver in this case would have been just as naturally explained simply by his having been stopped while driving illegally, in unlawful possession. See People v. Goessl, 526 P.2d 664, 665, 186 Colo. 208, 211 (1974). Nothing suggested the passengers were aware that the driver was carrying contraband, much less that they themselves were also in possession or acting as his suppliers. In fact, the testifying officer conceded that he had no other reason to believe more drugs would be found in the vehicle.
In a Medi-Cal investigation of a doctor for false billing for cheaper IUDs, investigators went to his waiting room and requested that he provide documentation within ten days as required by state law. The doctor mailed the invoices. The visit to the waiting room was not an illegal search. People v. Guzman, 201 Cal. App. 4th 1090, 134 Cal. Rptr. 3d 66 (2d Dist. 2011):
At the preliminary hearing, appellant made a section 1538.5 motion to suppress the invoices as the fruit of an unlawful search and seizure. Appellant's counsel conceded that the investigators’ entry into the waiting room did not violate the Fourth Amendment “because … the waiting room area … is open to the public.” Counsel was correct. (See People v. Pham (1987) 189 Cal.App.3d 1531, 1533 [235 Cal. Rptr. 99].) Counsel argued that the Fourth Amendment violation occurred when, without advance notice, the investigators requested the invoices: “I think any of us can go into a doctor[']s waiting room cause it's almost like a public area. But when you go in unannounced and then you say give me documents, that exceeds the 4th amendment.”
. . .
Even were we to assume that the unannounced visit to appellant's office was unlawful, the invoices would not be subject to suppression as the fruit of an unreasonable search and seizure. The remedy of suppression is permissible only when compelled by the Fourth Amendment. (In re Lance W. (1985) 37 Cal.3d 873, 888–889 [210 Cal. Rptr. 631, 694 P.2d 744].) There is no authority supporting the proposition that an otherwise lawful request for records at a doctor's office violates the Fourth Amendment merely because of noncompliance with a statutory notice requirement. Even if such an authority existed, we agree with the magistrate's analysis. Suppression of evidence is not required because the investigators did not demand the immediate production of the records. Instead, they gave appellant seven days to produce the invoices. By so deferring the production of the documents, the investigators substantially complied with the notice requirement. They did not disrupt the operation of appellant's medical practice.
Defendant did not stop as soon as the officer put on his lights, and when he did, he approached the officer which made the officer suspicious that there was something in the car he didn’t want the officer to see or smell. He was nervous, and his hands were shaking. The detention was not too long, and the drug dog arrived within six minutes. State v. Simmons, 2011 Ohio 6339, 2011 Ohio App. LEXIS 5219 (11th Dist. December 12, 2011)*:
Mr. Simmons' expression of nervousness, coupled with his unusual behavior of not pulling over immediately when the lights were activated, and then turning left to parking in an area not designated for parking and exiting his car to approach the police officer, provided Officer Burrington with an articulable reasonable suspicion to extend the detention and perform a K-9 sniff. See State v. Sherrod, 11th Dist. No. 2009-L-086, 2010 Ohio 1273 (holding that a totality of circumstances similar to the case sub judice justified continued detention of the appellant for the purposes of conducting a K-9 sniff). The facts changed, and so did the officer's ability to continue detaining Mr. Simmons.
As the officer approached defendant’s car, he saw a “furtive movement” of handling a pipe and hiding it and putting his hand under the dash more than once. Since the officer could see the pipe, that was probable cause. State v. Aaron, 2011 Ohio 6309, 2011 Ohio App. LEXIS 5176 (6th Dist. December 9, 2011).*
The stop of defendant’s airplane in Louisiana was without probable cause, and the search was suppressed. A local police officer told an operator at a small airport to be on the look out for suspicious airplanes and conduct. An anonymous tip to some other officer from the operate led to innocuous conduct being parlayed into suspicion of crime, and it wasn't. Officers "met Morgan's plane with weapons drawn threatening to shoot. They ordered the occupants out, placed them face down on the tarmac and handcuffed them. After they were handcuffed they were allowed to sit on the tarmac separated from each other, immediately adjacent to an armed law enforcement officer until the air interdiction agents arrived." Understatement of the month: "This show of force would make any reasonable person believe that he was not free to leave." United States v. Morgan, 2011 U.S. Dist. LEXIS 142065 (W.D. La. December 8, 2011)*:
The totality of the circumstances reveals that the officers of the St. Landry Parish Sheriff’s Department did not have probable cause to arrest Morgan and the passengers on his plane. Agent Evans testified that all she informed the Air and Marine Operations Center was that she needed a K-9 and personnel assistance to detain the occupants in Opelousas until they arrived. She also advised them that a source contacted her and said individuals at the Victoria airport were acting strangely, smelled like marijuana, that there were “possibly two illegal aliens” (which she surmised from the report of the two Hispanic males) and they needed to make sure everything was “on the up and up.” Although nobody from the Sheriff's Department who participated in the actual arrest testified, according to Agent Evans this was the only information that would have been in the possession of the Sheriff's Department at the time of the arrest. However, even if all of the information in the possession of Agent Evans is imputed to the Sheriff’s Department, it still does not rise to the level of probable cause as she candidly admitted.
The evidence presented was that Agent Evans received an anonymous tip from someone at the Victoria, Texas airport whose reliability she could not verify other than to verify the itinerary. This source reported that the passengers on Morgan's airplane were “acting strangely,” but neither Agent Evans nor the source clarified what actions constituted “acting strangely,” what that description meant or to whom this observation applied. The source said the plane occupants smelled of marijuana, however, Agent Evans did not know on which day the occupants allegedly smelled of marijuana, the day they arrived, the day they left or both. The source said the pilot purchased gasoline with cash which Agent Evans testified was a “red flag” that the pilot was trying to avoid a paper trail. However, the amount of gasoline purchased with cash was a relatively small amount — $155.20 — and there is no evidence that any effort was made by Morgan to destroy the paper trail for the purchase. On the contrary, the receipt introduced into evidence identified the tail number of the plane, the amount of the purchase, and the date and time it was purchased. From this information, the owner of the plane could be readily identified. Yet Agent Evans did not identify the owner until she got to the airport in Opelousas. The source said Morgan dropped off the two women passengers in Victoria, flew to McAllen, then returned with two additional men who appeared to be Hispanic. Agent Catalan confirmed that there is an Hispanic population in McAllen that is legally in this country.
WaPo: FBI turns down request for info. on Carrier IQ by Hayley Tsukayama:
The Federal Bureau of Investigation has denied a request regarding Carrier IQ, a piece of software found on smartphones and designed to send information on handsets to carriers. The request, filed by reporter Michael Morisy of Muckrock News under the Freedom of Information Act, asked for “manuals, documents of other written guidance used to access or analyze data” gathered by any Carrier IQ program.
In denying the request, the FBI said it had information but could not disclose it because it is considered “law enforcement records.” In other words, they’re vital to some kind of ongoing investigation.
Defendant was convicted of murdering his wife. The search warrant for defendant’s home surveillance system was based on probable cause and was not based on stale information. While it was a close case, doubts are resolved in favor of the search warrant, and it did not violate the Fourth Amendment. As to the stale information, it was excised from the affidavit and the remainder still provided probable cause. Pattison v. State, 958 N.E.2d 11 (Ind. App. 2011):
In summary, setting aside stale information and uncorroborated hearsay, the probable cause affidavit indicates that an autopsy produced evidence that conflicted with Pattison's explanation for Lisa's death, that Pattison and Lisa were having marital problems to the point that Pattison had filed for divorce, and that a camera surveillance system may have recorded footage outside of the Pattisons' home on the day that Lisa died. We acknowledge that this is a close case. However, in determining whether an affidavit provided probable cause for the issuance of a search warrant, doubtful cases are to be resolved in favor of upholding the warrant. Mehring v. State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008), trans. denied. Thus, reasonable inferences drawn from the totality of the evidence indicate that there was a fair probability that evidence of murder would be found in the surveillance system, and the trial court had a reasonable basis to issue the search warrant. The admission of the surveillance system equipment and video into evidence did not violate the Fourth Amendment.
[Note: Probable cause is probable cause that evidence will be found, and proving a crime isn’t required. So, I don’t think that this is that close. The autopsy did not match defendant’s explanation. That alone should be enough to get the search warrant for the surveillance system to see if there is something that might contradict the defendant’s version. I’m not one to frivolously issue search warrants, but the law has always encouraged resort to search warrants, not discourage them. The moral to the story is that surveillance systems never seem to help somebody suspected of a crime. Cameras often lead to no-knock search warrants in drug and weapons cases, and cameras strongly suggest evidence can be found in the recorder. In a drug sale case, the recorder would have evidence of who is coming and going. It’s sort of like a burglar alarm: If you have a burglar alarm on your house, you’ve invited the police any time the alarm goes off. So, if you’re going to have a burglar alarm, don’t have a grow operation or contraband left out in plain view.]
While the entry was valid on exigent circumstances for a mistaken but reasonable belief of a person in need of aid, searching between the mattress and box springs for that person was not reasonable on this record. State v. Hunter, 2011 Ohio 6321, 2011 Ohio App. LEXIS 5186 (2d Dist. December 9, 2011):
[*P3] We conclude that the police officers lawfully entered the residence without a warrant, based upon anonymous 9-1-1 reports that a person was being held captive in the residence, corroborated by the occupants of the residence ignoring the responding police officers' repeated attempts to gain their attention and, after finally answering the door, immediately attempting to close the door.
. . .
[*P40] We conclude that the evidence in the record of the suppression hearing, even when viewed in a light most favorable to the State, is too sparse to support the trial court's finding that the firearms were found under a bed. Detective Reed did testify that firearms were found in an area where a person could be hidden, but it appears that this was by report, not within his personal knowledge, and the conclusion that the firearms were found in an area where a person could be hidden does not affirmatively establish where the firearms were found. The only reasonable conclusion that we can draw from the sparse evidence at the suppression hearing was that the firearms were found between the mattress and the box springs.
[Note: If officers are looking for a hiding suspect, searches have often been permitted where the officer lifts the mattress off the box springs because it is a recognized hiding place. Here, however, it was for a person in need of aid, and it was argued that the facts of the search did not support this search. Seriously: Would a person in need of aid be hiding under the mattress? A fleeing felon, sure. I expect this one will go up to the Ohio Supreme Court. Here, weapons were found under the mattress.]
Drones: They’re not just for hunting foreigners anymore.
The Los Angeles Times reports that police in North Dakota this past summer made what are believed to be the first arrests of U.S. citizens with the help of a Predator spy drone.
Nelson County Sheriff Kelly Janke called in the unmanned, unarmed aircraft after he was chased off of a family farm by three men with rifles, the Times explains. It circled the 3,000-acre plot, tracked down the suspects and showed they were unarmed, allowing police to converge and arrest them.
Defendant consented to a search of a case for stolen items and drugs. That did not include a search of a memory card found. United States v. Brooks, 2011 U.S. Dist. LEXIS 141869 (N.D. Ind. December 9, 2011):
The court finds that Mr. Brooks consented to the search of the Sentry case while he was in custody in May 2010. The scope of that consent was limited to the objects of the search: stolen items and items related to drugs. The December 2011 search of the contents of the memory card exceeded the scope of the consent search, and wasn't done pursuant to a warrant or another exception to the warrant requirement. The contents of the memory card are not admissible at Mr. Brooks's trial.
The record [without saying what it says] supports the finding of consent. United States v. Escue, 457 Fed. Appx. 295 (4th Cir. 2011) (unpublished).*
Plaintiff’s arrest was with arguable probable cause that plaintiff created an illegal state lottery, and summary judgment was properly granted. Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011).*
The officer observed defendant make a wide turn and almost hit a curb, and that justified a stop for suspicion of DUI. The officer acted within his discretion of getting a DUI suspect out of the car. United States v. Smith, 448 Fed. Appx. 936 (11th Cir. 2011) (unpublished).*
Cert granted today in Arizona v. United States, 11-182. It is not directly a Fourth Amendment case, but it probably will implicate probable cause and reasonable suspicion and suspected illegal aliens.
Arizona’s governor, Janice Brewer, in taking the fate of S.B. 1070 on to the Supreme Court, is portraying the case as a major test of the sovereignty of the states to make their own social policies under traditional “police power” principles. The federal government, which tried unsuccessfully to persuade the Court not to get involved in the case at this point, is treating the case as a test of whether states may adopt their own immigration policies that frustrate specific goals of federal policy.
With Justice Kagan not taking part, presumably because she had something to do with the issue in her former role in the Obama Administration Justice Department, there is the possibility that the eight participating Justices will wind up split 4-4 in the case. That would have the effect of simply upholding a Ninth Circuit Court decision, but without opinion and without setting a nationwide precedent. The practical effect of that would be that Arizona could not enforce four key provisions of S.B. 1070, blocked by both the Ninth Circuit and, earlier, by a federal District judge in Arizona.
The four provisions at issue are:
** A requirement that police in making any stop or arrest to try to determine the individual’s legal right to be in the U.S., if the officer has a “reasonable suspicion” of illegality. If arrested, the individual cannot be released until his legal status is verified by the federal government. That is the law’s Section 2(B).
** A provision making it a crime under state law for an individual to intentionally fail to obtain and carry legal immigrant papers with him while in Arizona (Section 3).
** A provision making it a misdemeanor for an undocumented immigrant to apply for a job, publicly solicit a job, or actually work in Arizona (Section 5[C]).
** And, a provision that allows police to arrest without a warrant any person for whom the officer has “probable cause to believe” that the individual has committed any crime, anywhere, that would make that individual subject to being deported (Section 6).
Defendant was stopped for a traffic offense and the officer claimed that a gun was in plain view, justifying its seizure. The court finds that incredible. United States v. Zamichieli, 2011 U.S. Dist. LEXIS 141610 (E.D. Pa. December 9, 2011)*:
Nonetheless, Zamichieli argues that the search and seizure of the gun during the traffic stop violated his Fourth Amendment rights. Weighing the evidence presented, the Court finds the officers' version of the story implausible. There was no reason for Zamichieli to turn on the dome light when he had already opened the driver-side window to speak with Officer Victor and was not asked to provide his paperwork—nor is it likely that Zamichieli would do so with a gun sitting in plain view on the front passenger seat. Without the dome light on, it would be nearly impossible for Officer Andrews to see a gun on the front seat through a closed, tinted window in the dark of night. The Court therefore credits Zamichieli's testimony that the gun was under the front passenger seat. Because the gun was not in plain view, the only way for the officers to find it was to search the vehicle. Absent an applicable exception, the officers were not permitted to conduct a warrantless search of the Impala without probable cause to believe it contained evidence of criminal activity. See United States v. Burton, 288 F.3d 91, 100 (3d Cir. 2002). The Government has not met its burden of showing that the search was reasonable.
Officers staked out convenience store that was particularly vulnerable to being robbed, and they observed defendant acting suspiciously late in the night inside the store. It was factually similar to Terry where the suspects were casing a jewelry store like they were going to rob it. United States v. Glover, 662 F.3d 694 (4th Cir. 2011).*
Fellow officer rule applies to traffic stops. The fellow officer’s information was from an established CI. The trial court found that defendant consented to a search of his car. State v. Allen, 79 So. 3d 1220 (La. App. 3d Cir. 2011).*
Plaintiff abandoned property before the search occurred. The claim that the affidavit was misleading or failed to include exculpatory evidence was denied, and summary judgment was properly granted. The reasonable construction of the lease was that plaintiff took stuff that didn’t belong to her. Blanchard v. Lonero, 452 Fed. Appx. 577 (5th Cir. 2011) (unpublished).*
Search of outgoing prisoner mail was valid as ongoing concern about defendant's secreting stolen evidence. United States v. Cook, 457 Fed. Appx. 285 (4th Cir. 2011) (unpublished):
[W]e find that the district court did not err in denying Cook’s motion to suppress because the search of his outgoing mail by jail officials did not violate the Fourth Amendment. We have held that a prison official may constitutionally conduct a warrantless search of an inmate’s outgoing mail so long as the search is “reasonably related to legitimate penological interests.” Altizer v. Deeds, 191 F.3d 540, 547 (4th Cir. 1999) (internal quotation marks omitted). As the U.S. Supreme Court has often observed, the investigation and prevention of ongoing illegal inmate activity furthers the legitimate penological objectives of prison security and inmate rehabilitation. See Thornburgh v. Abbott, 490 U.S. 401, 411-12, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989); Procunier v. Martinez, 416 U.S. 396, 412-13, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974); see also United States v. Workman, 80 F.3d 688, 698-99 (2d Cir. 1996).
Here, jail officials’ search of Cook’s mail was part of an effort to prevent him from further secreting or trafficking in stolen goods. Because their actions were based on a reasonable belief that the correspondence in question contained information regarding such criminal activity, the search of Cook’s mail was reasonably related to a legitimate penological interest and did not offend his Fourth Amendment rights.
The officer had reasonable suspicion to grab defendant’s arm to talk to him. When defendant fled the officer had probable cause to arrest. United States v. Flint, 2011 U.S. Dist. LEXIS 141224 (D. Utah December 8, 2011).*
A private entrance to a business was an area where the defendant had a reasonable expectation of privacy. The fact it was a screen door was still a door and did not invite an entry. State v. Dierks, 2011 Iowa App. LEXIS 1422 (December 7, 2011):
Under the record presented, we conclude the door was a private, not a public, entrance to the business. It makes no difference that the security door was open; the screen door to the private entrance was closed. There was no “open gate” inviting entry. See Tolar, 268 F.3d at 532; see also Sandoval-Vasquez, 435 F.3d at 742-44. Based on these specific facts and circumstances, we conclude Dierks had a legitimate expectation of privacy in the area of his business premises where he was confronted by Quandt.
Defendant gave consent to search his car on the street and nothing incriminating was found. He was transported to the police station, and his car was driven there so he’d have access to it. At the police station, another officer searched the car again, and this was within the original consent. The court surveyed cases from several states reaching the same result. People v. Valencia, 201 Cal. App. 4th 922, 136 Cal. Rptr. 3d 25 (2d Dist. 2011).
OFAC blocking order was a seizure but was not challenged, and a balancing of interests support the government’s actions so the evidence was not suppressed. United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011):
We agree with the Ninth Circuit’s assessment of the debilitating effect of a blocking order, but because the defendants have not challenged the order in this case, our analysis begins at a different point than Al Haramain [posted here], and the applicable balancing of interests yields a different result. Here, the unchallenged blocking order gave the Government complete control over both HLF’s assets and the premises and reduced the defendants’ interests to a minimum. As the Ninth Circuit recognized in Al Haramain, the significant effects of a blocking order are “by design.” 660 F.3d 1019, Id. at * 22 (“[T]here is no limited scope or scale to the effect of the blocking order.”). Indeed, a “designation [as a SDT] is not a mere inconvenience or burden on certain property interests; designation indefinitely renders a domestic organization financially defunct.” 660 F.3d 1019, Id. at *10. Further, “[a] blocking order effectively shuts down the private entity.” 660 F.3d 1019, Id. at *22.
The text of the blocking order in this case demonstrates the Government’s control and the virtual elimination of any possessory and privacy interests held by the defendants in the assets and premises of HLF. The blocking order expressly directed all persons to leave the offices. It prohibited the defendants from engaging in any activity involving HLF’s property, and it even prohibited the defendants from occupying the premises without OFAC’s prior authorization. The warrantless imposition of these conditions has not been contested here. Unlike in Al Haramain, we are therefore faced with a presumptively valid order that stripped the defendants of any possessory interests in the HLF offices and assets. Any remaining privacy interest that the defendants had was minimal, and, as we discuss below, was protected by the subsequent warrant obtained prior to the Government’s search.
Balanced against the defendants’ significantly diminished privacy interests is the Government’s “extremely high” interest in preventing actions that could facilitate terrorism. Al Haramain, 660 F.3d 1019, 2011 WL 4424934, at *23. An important purpose of a blocking order is to prevent asset flight, which was a genuine concern in this case. The evidence here showed that the defendants had been funneling millions of dollars to organizations associated with Hamas. They were capable of quickly transferring large sums of money by wire transfer to overseas bank accounts controlled by HLF and others. These accounts were in locations such as the West Bank and Gaza, where they were likely to be beyond the reach of a judicial warrant. The Government therefore had a strong interest in moving quickly to prevent the flight of assets that could be used to further terrorist activity. See 660 F.3d 1019, id. at *23 (recognizing that “'asset flight’ is a legitimate concern”).
In addition to considering the competing interests of the defendants and the Government, we also consider the nature of the Government’s intrusion into the defendants’ interests. We address here an uncontested blocking order that has comprehensively restricted the defendants’ privacy and possessory interests. Viewed objectively, therefore, we believe that the Government’s mere transfer of HLF’s property from the offices to a storage facility pursuant to the blocking order, without invading the contents of the material, did not intrude into the defendant’s privacy or possessory rights any more than was reasonable under the initial blocking order. See Jacobsen, 466 U.S. at 115 (“The reasonableness of an official invasion of the citizen’s privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred.”).
We stress the importance of the fact that the Government took custody of the property without searching it and secured it to prevent unauthorized use, loss, or destruction. As we have said, the Government was already permitted by IEEPA and the blocking order to control the property and the premises, and its transfer of the assets to storage did not further circumscribe the defendants’ interests. Had the Government actually examined the property before obtaining a warrant, this might be a different case.
Police violated defendant’s constitutional privacy rights by looking at a hotel registry, but the witnesses' testimony was attenuated from it. State v. Smith, 165 Wn. App. 296, 266 P.3d 250 (2011):
Relevant factors we consider in determining whether the witness's testimony is sufficiently attenuated from the police misconduct are: (1) the length of the “road” between the unlawful police conduct and the witness's testimony; (2) the degree of free will the witness exercised; and (3) whether exclusion would permanently disable the witness from testifying about relevant and material facts, even though her testimony might be unrelated to the original illegal search’s purpose or the evidence discovered during it. State v. Childress, 35 Wn. App. 314, 316, 666 P.2d 941, review denied, 100 Wn.2d 1031 (1983). Additional factors we consider to determine attenuation between police misconduct and witness testimony are: (1) the witnesses’ stated willingness to testify; (2) the role the illegally-seized evidence played in gaining the witnesses’ cooperation; (3) the proximity between the illegal behavior, the witnesses’ decisions to cooperate, and the actual trial testimony; and (4) the police motivation in conducting the search. State v. Stone, 56 Wn. App. 153, 162, 782 P.2d 1093 (1989) ...
Defendant consented to search after negotiating with officers to sit without handcuffs, smoke, put away his dogs, and not have the officers ransack his house. He invoked his right to counsel, too, but that did not make the consent invalid. State v. Hatfield, 246 Ore. App. 736, 268 P.3d 654 (2011):
After defendant requested an attorney, McCarley again explained to him that, if he did not consent to a search of his residence, the officers would apply for a search warrant. Defendant “thought for a moment” and asked McCarley whether, if he gave consent, he would be permitted to sit on his couch with his handcuffs removed, put away his dogs, and smoke a cigarette; he also asked whether the officers would “tear apart his house.” McCarley agreed to defendant’s requests and told him that the officers would not ransack the house. Defendant consented to a search of his residence under those conditions.
The officer had probable cause to search the car and the containers inside it, including defendant’s backpack, after seeing in plain view a marijuana pipe in the car and noting defendant’s nervous behavior with his backpack when the officer began searching the car. State v. Smith, 152 Idaho 115, 266 P.3d 1220 (App. 2011).*
Officers had probable cause to stop and search defendant, including his cell phone which was being used to communicate with co-conspirators. United States v. Johnson, 2011 U.S. Dist. LEXIS 141358 (D. Md. December 7, 2011).*
A FedEx employee opened a package on his own in California destined for Hawai’i and found a kilo of meth. This was purely a private search. A warrant was then used to install a tracking device for a delivery in Hawai’i. United States v. Faaita, 2011 U.S. Dist. LEXIS 141549 (D. Haw. December 8, 2011).*
Defendant’s wife’s consent to seize and search a computer was voluntary on the totality. United States v. Mueller, 2011 U.S. Dist. LEXIS 141185 (E.D. Ark. December 7, 2011).*
Defendants’ stop was not based on racial profiling, but two sales clerks spotting probable identity theft, and that was reasonable suspicion at the time of the stop. United States v. Campbell, 2011 U.S. Dist. LEXIS 141469 (D. Me. December 6, 2011).*
A disbarred attorney lost any expectation of privacy in storage units he failed to pay for. The defendants included state bar conservators of his files. Howell v. Arizona Storage Inns, 2011 U.S. Dist. LEXIS 140894 (D. Ariz. December 6, 2011).*
An informant provided information about defendant’s carrying cocaine, which was partially corroborated and added up to reasonable suspicion after the stop for speeding. United States v. De La Luz Perez, 2011 U.S. Dist. LEXIS 141559 (W.D. Tex. December 8, 2011)*:
2. After the defendant was stopped for speeding, the officers' questions and defendant's detention were brief and reasonably related in scope to the circumstances that justified the stop. The totality of the circumstances which justify the detention and investigation include the following:
• the vehicle and its occupants matched the descriptions provided by the informant;
• the vehicle had made ten crossings into or out of Mexico in the previous two months;
• the occupants were initially asked for only basic information, including identification related documents, insurance, ownership of the vehicle and destination, which only one of the occupants could communicate;
• because only the occupant who had limited English proficiency could respond to the officer's questions and because the officer was unable to communicate independently with the driver of the vehicle who did not speak English and verify the responses of the passenger, it was necessary to request a Spanish speaking officer assist;
• the officer observed no luggage or bags in the vehicle other than the driver and passenger's purses;
• defendant agreed to the search of the car and exited carrying their purses;
• a canine "showed interest" in the passenger compartment of the car;
• defendant and her passenger were observed to be nervous as the investigation progressed;
• defendant and her passenger consented to the search of their purses; and
• a mere 45-60 minutes elapsed from the time the defendant was stopped to the time the cocaine was found and defendant was arrested.
Officers pulled up behind a car parked in a residential district to check on the welfare of its occupants. There was no suspicion of criminality. When one didn’t get out of the car fast enough to please the officer he was pulled out. That is inconsistent with a stop and frisk, and the motion to suppress was properly granted. State v. Forrest, 2011 Ohio 6234, 2011 Ohio App. LEXIS 5109 (10th Dist. December 6, 2011).*
A warrant was used to place a GPS on defendant’s vehicle, but he had no reasonable expectation of privacy in movements on a public road, so there was no basis to suppress. State v. Winningham, 2011 Ohio 6229, 2011 Ohio App. LEXIS 5115 (1st Dist. December 7, 2011).* [This is a pointless exercise because Johnson is pending in the Ohio Supreme Court, argued about two months ago, and Jones was argued in SCOTUS on November 8th.]
Defendant’s arrest was outside the house, and a protective sweep was unjustified on this record. Once inside, the father’s consent was tainted by the officers’ presence during the protective sweep. Diaz v. State, 34 So. 3d 797 (Fla. 4th DCA 2010), is similar. Rozzo v. State, 75 So. 3d 409 (Fla. 4th DCA 2011):
Similarly, “exigent circumstances exist where the occupants of a house are aware of the presence of someone outside, and are engaged in activities that justify the officers in the belief that the occupants are actually trying to escape or destroy evidence.” Lee v. State, 856 So. 2d 1133, 1138 (Fla. 1st DCA 2003) (citing Benefield v. State, 160 So. 2d 706 (Fla. 1964)) (emphasis in original). Fears for officer safety based on generalizations about drug cases, rather than on any specific risk presented by the facts of defendant's case, do not qualify as exigent circumstances. Lee, 856 So. 2d at 1139-40.
Police were called to an altercation in a rural area, and they walked down a gravel driveway. On the driveway, marijuana plants were plainly visible, and the view was reasonable. Dora v. State, 957 N.E.2d 1049 (Ind. App. 2011).*
Defendant did not testify at the suppression hearing, and the court concludes that he consented to an entry into his motel room after he was advised of his right to refuse and to a search of his pockets. United States v. Manor, 2011 U.S. Dist. LEXIS 140377 (D. Vt. December 6, 2011).*
Officers had probable cause to believe that defendant was transporting a meth lab in his vehicle, and that justified its search under the automobile exception. Officers also had reason to believe there was a meth lab in a building to which defendant made no effort to show standing. United States v. Skoda, 2011 U.S. Dist. LEXIS 140363 (D. Neb. November 23, 2011).*
Not knowing the owner of the vehicle, vague travel plans, and not looking the officer in the eye was reasonable suspicion for more. United States v. Sanchez, 2011 U.S. Dist. LEXIS 140846 (D. Kan. December 7, 2011).*
Plaintiffs stated a claim for a Franks violation in a § 1983 for a search warrant for their house for evidence that Bravo Jr. was involved in a drive-by shooting. At the time of the shooting and raid on the house, Bravo Jr. had been in prison for six months. Bravo v. City of Santa Maria, 665 F.3d 1076 (9th Cir. 2011):
Hope Bravo and Javier Bravo Sr., along with their minor granddaughter E.B. (collectively “the Bravos”), appeal the adverse summary judgment grant in their 42 U.S.C. § 1983 action arising out of the nighttime SWAT team search of their home for weapons suspected of being used in a drive-by shooting and stored in the Bravo home by their son, Javier Bravo Jr. (“Javier Jr.”). The Bravos allege their Fourth Amendment rights were violated by the issuance and execution of a search warrant whose application failed to disclose that Javier Jr. was at that time, and for over six months had been, incarcerated in the California prison system and therefore not only was not present in the Bravo home, but moreover could not have been involved in the shooting or the storage of weapons used in it. Because the Bravos presented sufficient evidence establishing a genuine issue as to whether Santa Maria Police Department (“SMPD”) Detective Louis Tanore’s (“Tanore”) omission of this material fact was intentional or reckless, as opposed to merely negligent, we reverse the summary judgment grant in his favor and remand.
. . .
Nonetheless, we must ask whether probable cause remains once the affidavit is supplemented with the challenged omission—here, Javier Jr.’s two-year sentence imposed over six months prior to the incident occasioning the search warrant, and his consequent incarceration in state prison at the time of the drive-by shooting and of the warrant’s execution. We conclude that the corrected affidavit could not establish probable cause for the search and especially does not meet the heightened standard of justification required for nighttime SWAT service.
The district court reasoned that Javier Jr.’s presence was immaterial because the warrant was not for his arrest but only to search for evidence related to the April 21 shooting. This fact, however, was highly material to the search, which authorized the seizure of evidence relating to the April 21 shooting. Javier Jr.’s custody status meant not only that he would not be present in the Bravo residence at the time of the search, but that he could not have been involved in the shooting or in concealing the evidence. Tanore had no evidence that Mr. and Mrs. Bravo or E.B. were involved in the April 21 shooting or that during a period in which Javier Jr. was not residing in their home they would have assisted Tangas gang members in concealing evidence, and specifically in concealing evidence from the shooting. The generalized statements in the affidavit that it is “common” for families of gang members to assist other members of the gang are insufficient to support probable cause to search the Bravos’ home. See United States v. Rodgers, 656 F.3d 1023, 1030-31 (9th Cir. 2011) (stating that “an assumption that most sixteen-year-old passengers have identification does not lead to probable cause to search every car carrying a teenager absent some individualized suspicion regarding the teenager, the vehicle in question, and the crime at issue”); United States v. McCarty, 648 F.3d 820, 830 (9th Cir. 2011) (“Searches and seizures are ordinarily unreasonable in the absence of individualized suspicion of wrongdoing, and the circumstances under which a warrantless search not supported by probable cause may be considered reasonable under the Fourth Amendment are very limited.”) (internal quotation marks and citations omitted).
Republican leaders in the House of Representatives unveiled legislation Friday that would cut 40 weeks from the duration of federal unemployment compensation and allow states to require the unemployed to pass drug tests in order to receive benefits.
Republicans have not cited any data suggesting that drug use contributes to joblessness or that there is an elevated rate of drug abuse among the unemployed. Michael Steel, a spokesman for House Speaker John Boehner (R-Ohio), said the measure is inspired by lawmakers' conversations with businesses in their districts.
Rep. Jack Kingston (R-Ga.) cited a local business this week when he introduced a stand-alone drug testing proposal. "I had an employer tell me of an overwhelming response for job openings," said Kingston. "There was just one problem: Half the people who applied could not even pass a drug test."
So test the job applicants. That's a private search. Finally, a GOP jobs bill, and it violates the Fourth Amendment.
When defendant was stopped in a large conversion van for a traffic offense, the driver was not communicative about her travel plans, which was her right. However, the vehicle was moving like there was someone in it, and that gave the officer concern for his safety. When he opened the van, he found two blue vials which he opened, and this exceeded the scope of permitted instruction. State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 808 N.W.2d 411 (2011):
P10 ... The cylinders here, however, were opaque, not clear, so Officer Bartol could not see what was inside, and thus, as noted, she did not have “plain view” of the pills. Further, her other experience—that pills can be transported “in a container in which people believe that police will not think is a prescription” applies to any opaque tube, box, carton, jug, can, urn, and the like. That is too slippery a criterion to permit the warrantless search of a container that could not, by its size or shape, hold a weapon. Cf. Denk, 2008 WI 130, ¶¶59-60, 315 Wis. 2d at 27-28, 758 N.W.2d at 786-787 (Officers could search inside of hard, opaque eyeglass case dropped by passenger because: (1) it could have held “a small weapon, such as a knife or a razor blade,” and (2) it could also have held evidence of the crime for which the officers arrested the driver.). Further, Sutton was, as we have seen, entirely within his rights not to tell Officer Bartol where he had been, so his refusal to answer that question is not part of the probable-cause calculus.
P11 Officer Bartol did not have “probable cause to believe there [was] a connection between the [opaque cylinders] and criminal activity.” See Buchanan, 2011 WI 49, ¶23, 334 Wis. 2d at 399, 799 N.W.2d at 785 (quotation marks and quoted sources omitted). She thus had to get a search warrant, if she could, before she opened them. Accordingly, we reverse.
TSA officers noticed defendant and his traveling companion because of suspicious activities at the Delta counter at MSP airport, according to a behavioral specialist. By the time they got to security, officers were sure they would be subjected to secondary screening, and that led to intensive questioning and seizure of case in aid of local law enforcement who also got involved, reporting that defendant was allegedly involved in a drug deal the day before. United States v. Rosales, 2011 U.S. Dist. LEXIS 140949 (D. Minn. October 28, 2011):
Warrantless and suspicionless airport screening searches “are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.’” United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). TSA is statutorily charged with developing and executing airport screening search procedures. See 49 U.S.C. § 44901(a). More generally, TSA is responsible for creating “regulations to protect passengers and property on an aircraft ... against an act of criminal violence or aircraft piracy.” 49 U.S.C. § 44903(b). Under 49 C.F.R. § 1540.111(a), individuals may not carry a “weapon, explosive, or incendiary” onto an airplane. Title 49 of the United States Code, Section 44902(a) requires that TSA prohibit commercial airlines from transporting “a passenger who does not consent to a search ... [thus] establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance.” 49 U.S.C. § 44902(a). Pursuant to its mandate, TSA has established a “prohibited items list” which is posted online and sets forth what items may not be carried aboard aircraft. 68 Fed. Reg. 7444, 49 C.F.R. § 1540.3. The prohibited items list includes a number of small items such as razors, matchbooks, blasting caps, flares, plastic explosives, and the like. See http://www.tsa.gov/travelers/airtravel/prohibited/permitted-prohibited-items.shtm#9 (last visited October 28, 2011).
Administrative searches are exempt from the warrant and probable cause requirements if they are reasonable. Because these searches remain subject to the Fourth Amendment, however, a particular search is “constitutionally reasonable [only where] it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [and where] it is confined in good faith to that purpose.’” Aukai, 497 F.3d at 962 (quoting Davis, 482 F.2d at 913).2 To determine the reasonableness of an administrative airport search, this Court must balance an individual’s right to be free of intrusion with “society’s interest in safe air travel.” United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005).
. . .
This Court concludes that the search procedures used in this case were neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons, explosives, or other prohibited items that might be carried on an airplane. After passing through a magnetometer, Rosales was directed to secondary screening under TSA rules because he was a traveling companion of Perez, who displayed a sufficient amount of suspicious behavior indicators to require a secondary inspection of him at the security checkpoint. TSA Officer Leonard testified that the secondary screening process begins once a person walks through the magnetometer and all their accessible property has been X-ray screened. If there are no specific target areas observed by the X-ray operator that the agents need to identify first, then “as behavior detection officers we collect all their accessible property, we ask for assistance from a checkpoint certified screening officer, another transportation security officer, to do a pat-down of their person to make sure that there is no artfully concealed items on them.”
A warrant seeking “indicia” evidence, evidence of ownership or control of property, was not overbroad. Also, defendant’s brief does not show standing in the property searched. There was nothing tending to show that he had control over the property. United States v. Lisbon, 835 F. Supp. 2d 1329 (N.D. Ga. 2011):
Here, the items sought (identification documents and mail) were tempered by the object of the search – evidence of identity and/or occupancy of the premises searched – and in relation to the crimes under investigation. See Gurleski, 405 F.2d at 258 (noting that the “search must be one directed in good faith toward the objects specified in the warrant or for other means and instrumentalities by which the crime charged had been committed”). The executing agents were therefore given sufficient direction in executing the warrant and as a result, the warrant did not offend the particularity requirement of the Fourth Amendment. The former Fifth Circuit's discussion in United States v. Haydel, 649 F.2d 1152 (5th Cir. Unit A July 1981), upon which Lisbon relied, demonstrates the inadequacy of Lisbon's showing on standing. In Haydel, the evidence established that the defendant's parents had given him permission to use their home and had given him a key, causing the court to conclude that his access was for all practical purposes unencumbered. Id. at 1155. Although the defendant in Haydel did not reside regularly at his parents' home, he kept clothing there and had occasionally remained overnight, when he and his wife had domestic problems. Id. & n.2. Unlike Haydel, Lisbon's statements that he kept belongings there are insufficient to establish the requisite legitimate expectation of privacy in the premises, as explained below.
Giving the officers executing a search warrant some minimal judgment as to what to seize does not make it overbroad. Here, it was papers relating to drug trafficking. United States v. Willoughby, 2011 U.S. Dist. LEXIS 139623 (N.D. Ohio November 15, 2011)*:
The categories outlined in the search warrant are no doubt broad, encompassing papers, computers, pictures, personal and business contacts, and other categories of evidence, but “‘[a] generalized seizure of business documents may be justified’ if it is demonstrated that ‘the government could not reasonably segregate ... documents on the basis of whether or not they were likely to evidence criminal activity.’” United States v. Banks, 556 F.3d 967, 973 (9th Cir. 2009) (quoting United States v. Kow, 58 F.3d 423 (9th Cir. 1995)). Here, it is not clear how officers could have made the categories any more particular. It appears from Defendant’s brief he wanted something similar to the phrase “in connection with prostitution and/or drug-related activity” to follow each category of evidence. However, such a recitation would be redundant in light of the list of specific crimes to which the search was related appearing on page two of the search warrant. Defendant also states the search warrant description would have allowed officers to collect anything located in his home. But officers executing the warrant are permitted to exercise some minimal judgment as to whether a particular document or item fell within a described category, and therefore, that fact alone does not warrant the relief Defendant seeks. See Blair, 214 F.3d at 697. In short, the search warrant is sufficiently particular and not overly broad.
Arrests for low-level marijuana possession fell in the city in the weeks after Police Commissioner Raymond Kelly cautioned officers not to bust people for small amounts of the drug found in pockets or bags, according to department data released Wednesday.
Kelly issued the internal order Sept. 19 after claims that officers were wrongly arresting people. In New York, possessing a small amount of marijuana is punishable with a fine. But smoking the drug in public or having it visible remains a low-level crime that carries jail time.
There are more arrests on the pot charge — about 50,000 a year — than any other crime in New York City, accounting for about one of every seven cases that turn up in criminal courts. Critics say the numbers are driven in part by the department's strategy of stopping and frisking people who meet crime suspects' descriptions.
More than 450,000 people, mostly black and Hispanic men, were stopped so far this year, unfair targets, critics say. About 10 percent of stops result in arrests.
Defendant’s argument in a motion to reconsider that his roommates were acting as agents of the police in conducting a private search that turned up child pornography was not timely. That was not the purpose of a motion to reconsider. United States v. Jones, 2011 U.S. Dist. LEXIS 139561 (W.D. Tenn. September 23, 2011).*
Inconsistent and nervous responses, the suspicious method of travel, and failure to stop for a mile was reasonable suspicion. United States v. Cotton, 2011 U.S. Dist. LEXIS 139636 (E.D. Tex. November 7, 2011)*:
Lt. Viator testified that the inconsistent and nervous responses, the suspicious method of travel, and the fact that Cotton drove for nearly one mile before pulling the vehicle to the shoulder all contributed to a reasonable suspicion that criminal activity was afoot. The undersigned agrees. Given the totality of the circumstances, Lt. Viator's questioning exemplified a graduated response to emerging facts, and therefore does not constitute a Fourth Amendment violation. Brigham at 508 & nn. 5-6 (“‘[D]etention, not questioning, is the evil at which Terry’s second prong is aimed.’”) (citation omitted).
Failure to file a suppression motion was a waiver of the issue for appeal. Carroll v. State, 202 Md. App. 487, 32 A.3d 1090 (2011).*
UPS Store employee opened a package that rattled because he feared an unfounded insurance claim. He was not acting as an agent of the police. United States v. Lawrence, 2011 U.S. Dist. LEXIS 139655 (D. Utah December 5, 2011)*:
In determining whether a private person has become an agent of the government, the Tenth Circuit uses a two-part inquiry: “1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir. 1989). Both prongs must be met before the private search is deemed governmental conduct. United States v. Leffall, 82 F.3d 343, 347 (10th Cir. 1996).
Defendant abandoned CDs with child pornography on them by leaving them in a house foreclosed on that he moved out of and never tried to reclaim them. United States v. Larson, 2011 U.S. Dist. LEXIS 139566 (W.D. Mo. November 17, 2011)*:
Defendant's subjective desire to someday retrieve the computer disks borders on the absurd. He no longer owned the house. He moved out of the house. Someone else bought the house and moved in. Defendant never contacted Fannie Mae, he never contacted the new owner. More than a year from the date of foreclosure had gone by before defendant learned the authorities had possession of those disks; nearly eight months had gone by since he vacated the premises. It is unclear to me exactly when defendant planned to try to retrieve these disks, and it is ridiculous to think that he had any privacy interest in these disks which were sitting in someone else's house for this length of time.
Not surprisingly, there are no cases which support defendant's theory on this point. However, United States v. Thomas, 451 F.3d 543 (8th Cir. 2006), cert. denied, 549 U.S. 1144, 127 S. Ct. 1010, 166 L. Ed. 2d 761 (2007), is similar in that the defendant in that case left mail in a mailbox at Mail Boxes, Etc. He failed to pay the rent on the box or come by to ask for the mail for about a year. Police obtained the mail from the Mail Boxes, Etc., establishment and opened it without a warrant. The court held that the mail was clearly abandoned.
Officers had a reasonable belief that the subject of an arrest warrant, plaintiff’s son, was at her home because he had given that address to the state court. When the officers got there, somebody looked out an upstairs window, but they couldn’t tell who it was. Considering the time of day, the entry was reasonable under Payton and Steagald, and the question of plaintiff’s consent was irrelevant. Williams v. City of Philadelphia, 2011 U.S. App. LEXIS 24092 (3d Cir. December 5, 2011) (unpublished)*:
The officers in this case were reasonable in their belief that Peno was present inside the house when they arrived. The record reveals that the officers obtained a valid residential address for Peno from the state court, an address Peno himself provided. This address was Williams' home. Further, the officers arrived to serve the warrant at eight o'clock in the evening on a week night. After knocking, the officers saw an unidentified person peering through an upstairs window. They could not determine whether this person was Peno. A subsequent delay in opening the door and Williams' hostility toward them reasonably raised the officers' suspicions that Peno could have been hiding within the home. Other behavior–such as Williams abruptly fleeing upstairs–could reasonably have been taken as consistent with an attempt to prevent Peno's apprehension.
In plaintiff’s malicious prosecution claim based on an alleged illegal search, the discovery of a gun on plaintiff’s person was probable cause to arrest. This was on a motion to reconsider and there was no notice of appeal timely filed from the original order. Cyrus v. City of New York, 450 Fed. Appx. 24 (2d Cir. 2011)*:
The district court held on both the initial motion for summary judgment and on the motion for reconsideration that the discovery of the weapon on plaintiff's person gave rise to probable cause to prosecute the weapons charge. Even assuming that plaintiff's arrest was unlawful, the district court concluded that the exclusionary rule does not apply to § 1983 claims and therefore the gun would be admissible to determine probable cause in the civil action. See, e.g., Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999) (“No Fourth Amendment value would be served if [plaintiff], who illegally possessed firearms and narcotics, reaps the financial benefit he seeks. [Plaintiff] has already reaped an enormous benefit by reason of the illegal seizure and search to which he was subjected: his freedom, achieved by the suppression of evidence obtained in violation of the Fourth Amendment.” (footnote omitted)); ....
Jefferson City, MO - infoZine - Neal Wayne “Bear” Groom, former sheriff in Worth County, Mo., was sentenced in Kansas City, Mo., for violating the civil rights of eight women while he was working as a law enforcement officer. On Aug. 17, 2011, Groom pleaded guilty to coercing the women to expose parts of their bodies to him, in violation of the Fourth Amendment prohibition against unreasonable searches. Magistrate Judge Sarah W. Hays sentenced Groom to 18 months in prison and one year of supervised release for the eight counts of conviction.
As part of the plea, Groom admitted that while he was sheriff of Worth County, he coerced the women into exposing unclothed parts of their bodies to him and that he photographed several of the women’s exposed or partially covered breasts. Groom mostly used the guise of checking the women for injuries related to domestic violence assaults or checking them for evidence of drug injections to coerce them into revealing different parts of their bodies to him. Groom admitted that he conducted the searches for no legitimate law enforcement purpose.
Defendant consented to a drug search of his car in Arizona, and the officer searched a portable hard drive in a bag on the front seat for drug records, which he says he expected to find because they often do. Instead, he found child pornography, and that led to a warrant for the hard drive. The search was valid as a consent. United States v. Suing, 2011 U.S. Dist. LEXIS 139855 (D. Neb. December 5, 2011):
The court agrees with the magistrate judge's implicit finding that the scope of Suing's consent included the external hard drive and its contents. The court finds that even if, arguendo, the scope of Suing's consent was limited to drugs, the search of the external hard drive still would have been legal because the Arizona deputies lawfully searched the external hard drive for evidence of illegal drug activity, and after they inadvertently discovered child pornography, they immediately ceased their search efforts and obtained a new warrant to search for evidence of child pornography.
. . .
Assuming, arguendo, Suing's consent was limited in scope to only drugs, drug paraphernalia, guns, or any location where those items might be found, the court is persuaded that the search of the hard drive would still have been legal under the rule promulgated in United States v. Walser, 275 F.3d 981 (10th Cir. 2001). In Walser, an agent discovered evidence of child pornography on the defendant's computer while the agent was executing a search warrant for evidence of drug activity. Id. at 983-85. In Walser, the Tenth Circuit determined the agent did not exceed the scope of the search warrant, because the agent discovered the child pornography inadvertently and the agent stopped his search immediately and obtained a new search warrant for evidence of child pornography. Id. at 986-87.
The victim of a domestic assault reported to the police that defendant had a gun, and he would be a felon in possession. When his car was quickly seen thereafter, that was probable cause for a stop and search under the automobile exception. State v. Craig, 807 N.W.2d 453 (Minn. App. 2011).*
A search warrant for persons at a particular house particularly described them: the search was limited to black men of particularized heights and weights, with described skin color differentiations, facial hair, and hairstyles. Commonwealth v. Johnson, 2011 PA Super 256, 33 A.3d 122 (2011).*
Defendant’s stop was for following too close the vehicle in front. The fact the officer on the highway may have caused the car in front to slow down did not cause the traffic violation. United States v. Privratsky, 2011 U.S. Dist. LEXIS 139613 (S.D. Ohio December 5, 2011).*
I can't quote this. It's too strange all the way through. Draw your own conclusions about the war on terrorism as a war on the Bill of Rights: InfoWars.com: Gingrich Advocates Trashing Fourth Amendment and Bill of Rights by Kurt Nimmo.
A trash pull at defendant’s house produced extensive evidence of marijuana trafficking for a search warrant, and that, in turn, provided reasonable suspicion for a stop of defendant’s car as he was leaving his house before execution of the search warrant. Then officers smell marijuana in the car. United States v. Montieth, 662 F.3d 660 (4th Cir. 2011):
... In United States v. Taylor, 857 F.2d 210 (4th Cir. 1988), we held that under the circumstances presented, a narcotics search warrant furnished the reasonable suspicion necessary to conduct an investigative stop of the appellants, whose suspected drug trafficking was the target of the warrant.
As in Taylor, the officers here “possessed a search warrant based upon probable cause to believe that appellant[ ] [was] engaged in narcotics trafficking” and the stop likewise took place as appellant left his home where he was believed to keep narcotics and drug paraphernalia. Id. at 213. Moreover, the warrant in this case specified the defendant’s person, in addition to his residence, as subject to search for evidence of drug trafficking. Once the officers pulled Montieth over, the odor of marijuana emanating from his car offered further reason to suspect he was presently engaged in criminal activity and to support his confinement to the police car. Under these circumstances, the detention was valid under Terry.
Crime Mapping and the Fourth Amendment: Redrawing “High-Crime Areas” by Andrew Guthrie Ferguson, 63 Hast. L. J. 178 (2011):
Crime-mapping technology has the potential to reshape Fourth Amendment protections in designated “high-crime areas.” In Illinois v. Wardlow the Supreme Court held that presence in a high-crime area is one of only two factors necessary for creating reasonable suspicion to stop an individual. Since Wardlow, thousands of federal and state cases have used the term “high-crime area,” yet only a handful of courts have considered how to define it. New crime-mapping technologies can now address that definitional problem. Crime-mapping technologies can collect and analyze crime statistics so that police districts can produce almost perfect information about the level, rate, and geographic location of crimes in any given area. The result: police can define official “high-crime areas” for Fourth Amendment purposes.
Crime-mapping technology raises significant Fourth Amendment questions. Does crime-mapping technology alter the existing Fourth Amendment reasonable suspicion analysis? Will this technology create an implicit high-crime area exception to the Fourth Amendment? How will this technology effect police-citizen encounters and liberty interests in officially designated high-crime areas? This Article addresses these questions in an effort to reevaluate and rethink the concept of the high-crime area as understood by the courts. Tracing the history and practice of crime-mapping technology and its effect on Fourth Amendment doctrine, this Article proposes a new framework and redefinition of the term that is both informed by existing crimemapping technologies and consistent with Fourth Amendment principles.
Bank robbery tracking devices are sufficiently reliable to alone establish probable cause, even of a person who does not exactly match the description of the robber. Here, the tracking device pointed to defendant walking alone ten minutes away from the robbery. That alone was probable cause for his stop. United States v. Revels, 2011 U.S. Dist. LEXIS 138844 (W.D. Wash. December 2, 2011).
Prior suits against officers for violations of the Fourth Amendment is not proof of a failure to train claim under § 1983. Courtney v. City of Chicago, 439 Fed. Appx. 557 (7th Cir. 2011).*
Plaintiff was arrested for disorderly conduct. While holding a repent as a sinner for Jesus sign during the Mobile Mardi Gras parade, plaintiff was arrested for unprovokedly telling a 13 year old girl she was a “whore” and a “slut” and would rot in hell. The parents’ report to the police led to the arrest which was with probable cause, and the officer has qualified immunity even from a free speech claim. Bethel v. City of Mobile, 2011 U.S. App. LEXIS 24042 (11th Cir. December 2, 2011) (unpublished).*
Defendant’s stop by the police was with reasonable suspicion, albeit mistaken, that defendant was involved in a homicide. The officers were warned at shift change of trouble brewing at the subject address, and then they got trouble calls from there. Defendant was seen on the street leaving and was stopped. United States v. Pontoo, 666 F.3d 20 (1st Cir. 2011)*:
Given this factual mosaic, we think that the district court supportably determined that Officer Maillet's stop of the appellant was accompanied by a reasonable suspicion that a crime (murder) may have been committed, that Austin may have committed it, and that the appellant was Austin. A reasonably prudent police officer standing in Maillet's shoes and knowing what Maillet knew would certainly have harbored such suspicions.
To be sure, this suspicion was predicated on two mistaken conclusions: that Officer Michaud had said "the suspect" rather than "a subject" and that the appellant was Austin. The district court found, at least implicitly, that these mistakes were objectively reasonable and made in good faith. This finding was not clearly erroneous. See, e.g., United States v. Lang, 81 F.3d 955, 965-66 (10th Cir. 1996).
An unauthorized driver of a rental car can still show standing if he can show permission from the renter. State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011):
Our precedent in Nebraska supports the approach used in the Eighth [U.S. v. Best, 135 F.3d 1223 (8th Cir. 1998)] and Ninth [U.S. v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006)] Circuits. We have stated that a defendant may demonstrate the infringement of his own legitimate expectation of privacy by showing that he owned the premises or that he occupied them and had dominion and control over them based on permission from the owner. State v. Stott, 243 Neb. 967, 503 N.W.2d 822 (1993), disapproved on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). Thus, we have recognized standing of a guest as to certain areas of the home, State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000); an "occupant" in a vehicle belonging to another, Stott, supra; and the driver of a vehicle of which he was not the owner where a nonowner passenger gave consent to search, State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). Our cases show the importance of dominion and control and that standing is not limited to property rights or ownership.
 In accordance with the Eighth and Ninth Circuits, we hold that a driver of a rental vehicle may have standing to challenge a detention or search if he or she has demonstrated that he or she has received permission to drive the vehicle from the individual authorized on the rental agreement.
In this case, Nelson was not the authorized driver of the rental vehicle. However, he presented undisputed evidence that he had received permission from his uncle to use the vehicle, and the uncle was the authorized driver under the rental agreement. Accordingly, Nelson had standing to challenge his detention and the search of the rental vehicle on Fourth Amendment grounds.
Defendant arrested for obstruction did not mean there would be evidence in the car for search incident purposes. Moreover, she was handcuffed and in the back of a police car at the time. State v. Oram, 46 Kan. App. 2d 899, 266 P.3d 1227 (2011):
Our Supreme Court noted that under Gant, “[t]o have a valid search incident to arrest, when there is no purpose to protect law enforcement present, the search must seek evidence to support the crime of arrest, not some other crime, be it actual, suspected, or imagined.” Henning, 289 Kan. at 147. Our Supreme Court further stated that “[i]n the vehicle context, ‘in many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains ... evidence [relevant to the crime of arrest.].’” 289 Kan. at 147 (quoting Gant, 556 U.S. at ___ [129 S. Ct. at 1719]).
Although our Supreme Court has struck down K.S.A. 22-2501(c) as facially unconstitutional, we point out that under Gant, there was no reasonable basis for the deputy to believe that the car contained evidence of Oram’s crime of arrest (for obstruction). As a result, the search was an unreasonable search incident to arrest under Gant and Henning. Clearly, the trial court would have been correct, under these circumstances, to hold that the search violated Gant.
Defendant consented twice after Miranda warnings were given, and that supports the district court’s finding of consent. United States v. Dotson, 449 Fed. Appx. 450, 2011 FED App. 0803N (6th Cir. 2011) (unpublished).*
Arguments over what the video showed or didn’t show essentially were credibility questions already resolved by the trial court against him. State v. Collins, 2011 Ohio 6187, 2011 Ohio App. LEXIS 5061 (6th Dist. December 2, 2011).*
Employees of a recently robbed restaurant saw a man they described to the police as lurking near the back door at 3 am. The police stopped defendant matching that description, and that was with reasonable suspicion of a potential robbery. Johnson v. State, 313 Ga. App. 137, 720 S.E.2d 654 (2011).*
Arrest not required under automobile exception search. Here, stop was for OUI. Commonwealth v. Johnson, 461 Mass. 44, 958 N.E.2d 25 (2011):
Here, prior to the search of the defendant's SUV, Officer Rose had probable cause to believe that the defendant had been committing an OUI violation, and that he could find evidence pertaining to such crime in the motor vehicle. Officers Rose and Kelly had observed the defendant driving his SUV through a red light and then down several streets before finally parking the vehicle on Auckland Street. When the officers approached the defendant after he had left the SUV, they immediately noticed that the defendant “reeked” of alcohol, was slurring his words, was unsteady on his feet, and was agitated. He also provided the officers with false information as to his identity. See Commonwealth v. Riggins, 366 Mass. 81, 87-88 (1974) (providing implausible or false information to police, along with other facts, supports finding of probable cause to conduct warrantless search of automobile). As the officers were standing outside the SUV conversing with the defendant, they saw a half-empty bottle of cognac in plain view on the dashboard of the SUV. There was ample probable cause to permit a search of the defendant's motor vehicle under the automobile exception to the warrant requirement. The fact that the defendant was not arrested for OUI does not affect the legitimacy of the search. See Commonwealth v. Antobenedetto, supra at 54-55. “The police are not required to make an arrest every time they have probable cause to believe someone has committed a crime.” Commonwealth v. Celestino, 47 Mass. App. Ct. 916, 918 (1999). See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 695 (1984) (probable cause to search not always congruent with probable cause to arrest).
Information in a wiretap application 2-3 months before the search and used in this search warrant application was not stale where the wiretap ran continuously for ten months. United States v. Mastendri, 2011 U.S. Dist. LEXIS 138661 (W.D. Pa. December 1, 2011)*:
Finally, defendant argues that because some of the information relied on dated from 2009, and had already been included in affidavits supporting an application for wiretap warrants, the information did not provide a substantial basis from which to infer that a search would yield evidence of a crime. He cites United States v. Williams, 124 F.3d 411 (3d Cir. 1997) for the proposition that stale information included in an affidavit may have limited value in showing that contraband could still be found at the premises. In Williams, information a decade old was held to be not stale given the "long and continuous operation" of the activity. Id. at 420-21.
In the instant case, the wiretaps were conducted in October and November 2009, only two to three months prior to the execution of the search warrant. The information that formed the basis of the wiretap affidavits was collected continuously beginning in January 2009, and was not stale. Further, the information established using the wiretaps contained sufficient facts to support a conclusion that the drug activity in question was continuous, and that there was probable cause to infer that the state of affairs described by the confidential source had not changed.
Considering that reasonable suspicion is less than a preponderance of the evidence, a 911 caller who left her number but not name was sufficient where it related first hand information. United States v. Collier, 2011 U.S. Dist. LEXIS 138645 (D. Kan. December 2, 2011)*:
(1) the informant lacked “true anonymity” since she had provided her telephone number to the police; (2) the informant was reporting contemporaneous first-hand knowledge of the events as they were transpiring; (3) the informant's motivation was to prevent her neighbor's house from being burglarized; and (4) the police corroborated some of the informant's information, such as the reported information that the two men on the property were driving a white van that was pulling a trailer. The tip also provided sufficient information that criminal conduct was occurring or was about to occur. The court reaches this conclusion with the thought that the level of suspicion required for reasonable suspicion is considerably less than a preponderance of the evidence.
Defendant was stopped for following too close, and he easily consented to a search when his travel plans didn’t make sense. The search revealed a hidden compartment and 6 kg of cocaine. United States v. Jimenez, 446 Fed. Appx. 771, 2011 FED App. 0802N (6th Cir. 2011) (unpublished).*
Police got a tip that defendant had a civil arrest warrant for him for child support, and he was arrested and his bag was searched incident to arrest. Since he was a known gang member, a search of his bag for a weapon was permissible. People v. Cregan, 961 N.E.2d 926, 2011 IL App (4th) 100477 (2011)*:
[**P27] Defendant next contends officers were limited to a brief search for weapons as they could not expect to find any evidence of defendant's failure to pay child support in the luggage. We conclude the scope of the search was not limited in any way by the absence of evidence of failure to pay child support as a justification for the search. The court in Robinson, 414 U.S. at 234-35, made it clear a search for weapons is just as important and thorough as a search for evidence. The mere fact an officer cannot expect to uncover evidence of the crime charged during a search in no way limits the scope or intensity of the search. See Robinson, 414 U.S. at 234 (narrower Terry standards do not limit a search merely because officers do not expect to uncover evidence of the particular crime for which the defendant was arrested during the search).
[**P28] Officers admitted they were not searching for evidence of the crime of failure to pay child support. This did not limit the search to a more restrictive sweep for weapons. Defendant's argument the officers' search should have been confined to a quick weapons check fails. The situation afforded officers wide latitude to conduct a thorough search of defendant's luggage, including the container of hair gel located inside.
Hearsay is usually admissible in suppression hearings on the question of consent or whether a search warrant was properly issued. Hearsay on a Miranda issue is not. Parker v. State, 89 So. 3d 844 (Fla. 2011).*
Defendant’s arrest for possession of an open container wasn’t legal as to the place of possession, so the search incident that produced crack was invalid. Smith v. State, 75 So. 3d 800 (Fla. 5th DCA 2011).*
“We find that the tip from the confidential informant in the instant case contained predictive information from which the officers could reasonably determine that the informant had ‘inside information’ or a ‘special familiarity’ with defendant’s affairs. We conclude that this corroborated information from the CI, in conjunction with Agent Morris’s observations on the scene, were sufficient to provide the officers with the requisite reasonable suspicion to justify the officers' approach of the parked vehicle.” A hand to hand drug deal was seen, too. State v. Molette, 79 So. 3d 484 (5th Cir. 2011).*
NYTimes.com: When the Police Go Military by Al Baker:
RIOT police officers tear-gassing protesters at the Occupy movement in Oakland. The surprising nighttime invasion of Zuccotti Park in Lower Manhattan, carried out with D-Day-like secrecy by officers deploying klieg lights and a military-style sound machine. And campus police officers in helmets and face shields dousing demonstrators at the University of California, Davis with pepper spray.
Is this the militarization of the American police?
. . .
Radley Balko, a journalist who has studied the issue, told a House subcommittee on crime in 2007 that one criminologist found a 1,500 percent increase in the use of SWAT (special weapons and tactics) teams in the United States in roughly the last two decades.
. . .
The more the police fail to defuse confrontations but instead help create them — be it with their equipment, tactics or demeanor — the more ties with community members are burned, he said. The effect is a loss of civility, and an erosion of constitutional rights, rather than a building of good will.
Review of a magistrate’s finding of probable cause is subject to a deferential standard of review, and “[a] reviewing court should not substitute its judgment for that of the issuing court.” State v. Trujillo, 150 N.M. 721, 2011 NMSC 40, 266 P.3d 1 (2011):
[*18] “[T]he substantial basis standard of review is more deferential than the de novo review applied to questions of law, but less deferential than the substantial evidence standard applied to questions of fact.” Williamson, 2009 NMSC 39, ¶ 30. The United States Supreme Court reasoned that “[a] deferential standard of review is appropriate to further the ... strong preference for searches conducted pursuant to a warrant.” Massachusetts v. Upton, 466 U.S. 727, 733 (1984). A deferential stance “to the warrant process encourages police officers to procure a search warrant.” Williamson, 2009 NMSC 39, ¶ 28. This in turn provides “a layer of protection from unreasonable searches and seizures” without a warrant. Id. (internal quotation marks and citation omitted). Accordingly, “‘the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’” Upton, 466 U.S. at 734 (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).
[*19] This standard “does not preclude the reviewing court from conducting a meaningful analysis of whether the search warrant was supported by probable cause.” Williamson, 2009 NMSC 39, ¶ 30. Rather, “[i]f, after reviewing the affidavit as a whole, the direct and circumstantial evidence alleged, as well as all reasonable inferences to be drawn from those allegations, does not support the issuing court’s determination of probable cause, then the search is invalid and unreasonable.” Id. (internal quotation marks and citation omitted). But, if the factual basis for issuing the warrant is sufficiently detailed in the affidavit, “and the issuing court ‘has found probable cause, the [reviewing] courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than commonsense, manner.’” Id. (quoting Ventresca, 380 U.S. at 109). As stated previously, under a deferential standard the reviewing judge does not substitute his or her judgment for that of the issuing judge.
HuffPo: 85 year old "Lenore Zimmerman: TSA 'Strip-Searched' Me" with wheelchair and walker:
An 85-year-old Long Island woman is threatening to sue the TSA after what she claims was a bloody strip-search by the agency.
Lenore Zimmerman, of Long Beach, was on her way from JFK airport to Fort Lauderdale on Tuesday when she claims the TSA took her into a private room and began removing her clothes, the Daily News reports.
The retired receptionist, who uses a walker and stands 4 foot 11, said her son dropped her off at the airport for a 1pm flight. When she got to security, she asked if she could not go through the scanners--fearing it could interfere with her defibrillator--and instead be patted down, which she claims she normally does. Instead, she was taken by two female agents to a private room.
"I walk with a walker -- I really look like a terrorist," she told the paper. "I'm tiny. I weigh 110 pounds, 107 without clothes, and I was strip-searched."
Being from the government means never having to say you're sorry.
Defendant did not allege foundational facts for standing to contest a seizure of his mother's van. He had the keys, but he needed to show permission. Still, the court denies the motion without prejudice to renew it and attempt to make a proper showing. United States v. Sinclair, 2011 U.S. Dist. LEXIS 138154 (N.D. Cal. December 1, 2011):
In the instant case, Defendant has failed to establish that he had a legitimate expectation of privacy in the van. Though it is clear that Defendant possessed the keys to van, Defendant does not state how he obtained the keys or that he, in fact, had his mother's permission to use the van. Nor does Defendant make any showing that he had the authority to exclude all others, except his mother, from using or accessing the van. Based on Defendant's failure to make this foundational showing, the Court finds that Defendant lacks standing to challenge the search of the van belonging to his mother and denies his motion to suppress. E.g., [United States v. Thomas, 447 F.3d 1191 (9th Cir. 2006)] (affirming denial of motion to suppress where defendant failed to establish that he had "permission" to use the rental car). However, since it conceivable that Defendant could cure the foregoing deficiencies and make the requisite showing to establish a legitimate expectation of privacy in the van, the denial of his motion is without prejudice to renewal.
Whether property was lawfully or unlawfully seized is not the question in a Rule 41(g) proceeding for return. Defendant was entitled to return of property where he was acquitted of some counts and it wasn’t contraband. United States v. Crooker, 2011 U.S. Dist. LEXIS 138234 (D. Mass. November 30, 2011).*
Officers went to defendant’s house to do a knock-and-talk about inappropriate text messages to a young girl. His daughter answered the door and said he was in the backyard. Officers saw him and he invited them into the yard. He consented to a search of his computer and house but contended he only agreed to one doing it, not three. He didn’t object, so his claim fails. United States v. Coulter, 2011 U.S. Dist. LEXIS 138271 (E.D. Ark. November 30, 2011).*
Stop for car theft justifies a patdown. United States v. Braxton, 456 Fed. Appx. 242 (4th Cir. 2011), certiorari denied, 132 S. Ct. 1815, 182 L. Ed. 2d 633, 2012 U.S. LEXIS 2468 (U.S., Mar. 26, 2012) (unpublished):
After all, as the District of Columbia Circuit has emphasized, “car theft is a crime that often involves the use of weapons and other instruments of assault that could jeopardize officer safety, and thus justifies a protective frisk under Terry.” United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007).
The cases to this effect are legion. See, e.g., United States v. Garcia-Rivera, 353 F.3d 788, 791 (9th Cir. 2003) (approving pat-down when “[i]nability to provide proof of registration gives rise to suspicion of a stolen vehicle”); United States v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003) (“[L]aw enforcement could infer the vehicle might be stolen, and as possible car thieves [defendants] might possess weapons.”); United States v. Shranklen, 315 F.3d 959, 963 (8th Cir. 2003) (holding that defendants “might have stolen the car and, therefore, might have weapons in the car that they used during the theft or had available in case they were discovered”); United States v. Tuggle, 284 Fed.Appx. 218, 227 (5th Cir. 2008) (“[W]hen [defendant]’s conduct reasonably suggested that he might be part of that auto-theft ring, the officers were justified in fearing for their safety.”); United States v. Williams, 7 Fed.Appx. 876, 885 (10th Cir. 2001) (Officer’s “frisk of [defendant] for weapons ... was permissible under Terry” in light of “the objectively reasonable suspicion that the van was stolen.”) United States v. Bradley, 1990 WL 124205 at *2 (6th Cir. 1990) (“It was reasonable for the officer to believe that appellant, who was suspected of having recently been involved in a car theft, might have been armed and dangerous.”)
Dumb legislators at it again, this time in Georgia. From the AJC.com blog: On the topic of drug-testing: We’ve been here before by jgalloway:
So we are back to talking about mandatory drug tests for those who receive government assistance. State Sen. John Albers, R-Roswell, is one of those backing the measure.
A federal judge has blocked a similar measure in Florida on constitutional grounds. Fourth Amendment protection against search and seizure is alleged. But we are entering an election year, so the odds favor passage here in Georgia.
In reaction, state Rep. Scott Holcomb, D-Atlanta, on Friday dropped a measure to require that all members of the Legislature submit urine or blood samples so that they, too, can be screened for mind-altering substances.
If all this sounds familiar, it’s because we’ve been here before. A well-informed reader reminded us of a particular April 15, 1997 decision by the U.S. Supreme Court. [link added]
No sense of history? Never read a Supreme Court case? Did Rep. Holcomb get Sen. Albers's attention? I doubt he understood the irony.
Wired.com: Carrier IQ Admits Holding ‘Treasure Trove’ of Consumer Data, But No Keystrokes by David Kravets:
An embattled phone-monitoring software maker said Friday that its wares, secretly installed on some 150 million phones, have the capacity to log web usage, and to chronicle where and when and to what numbers calls and text messages were sent and received.
The Carrier IQ executives, speaking at their nondescript headquarters in a residential neighborhood in the heart of Silicon Valley, told Wired that the data they vacuum to their servers from handsets is vast — as the software also monitors app deployment, battery life, phone CPU output and data and cell-site connectivity, among other things. But, they said, they are not logging every keystroke as a prominent critic suggested.
The data, which gets downloaded from consumers’ phones roughly once a day, is encrypted during transit and also provided to carriers to enhance the “user experience,” these executives said.
“We do recognize the power and value of this data,” Andrew Coward, the chief marketing officer, said. “We’re very aware that this information is sensitive. It’s a treasure trove.”
Court dismisses a Foreign Corrupt Practices Act conviction for prosecutorial misconduct, including false information in a search warrant application. United States v. Noriega, 831 F. Supp. 2d 1180 (C.D. Cal. 2011):
In this case, the first Foreign Corrupt Practices Act criminal prosecution against a corporation to proceed to jury trial, the Court has been asked to vacate the convictions and dismiss the indictment because of alleged prosecutorial misconduct. On November 29, 2011, the Court conducted a hearing on this motion. Before the hearing began, the Court provided a draft of this order to all the lawyers and allowed them three hours to prepare for argument. The hearing lasted for more than two and a half hours.
When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith. In this case, for example, the Court denied several previous motions to dismiss and permitted the prosecution to proceed over the heated objections of defense counsel because it was willing to accept the prosecutors’ assurances that their conduct was inadvertent and would not be repeated. The Court even said it was “not anxious to attribute a deliberate, intentional, and devious motive” to the Government. April 5, 2011, R.T. at 448.
In this Court’s experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness. So it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.
Consequently, the Court throws out the convictions of Defendants Lindsey Manufacturing Company, Keith E. Lindsey and Steve K. Lee and dismisses the First Superseding Indictment.
A parked trailer with illegal liquor was seen in an open field and an ABC officer tried to look through a gap in the back but could not see much. Eight days later he came back and saw that stuff had been moved, and he used a carpenter’s scope to look through a crack inside the trailer. The search was valid under the automobile exception even though the trailer was unhitched and parked. United States v. Smith, 456 Fed. Appx. 200 (4th Cir. 2011) (unpublished):
In [United States v.] Navas[, 597 F.3d 492 (2d Cir. 2010)] in a thorough opinion, the Second Circuit held that the automobile exception applied to a tractor trailer unhitched from its cab, even when the defendants were already placed under arrest at the time of the search. Id. at 501. The court reiterated that “a vehicle’s inherent mobility—not the probability that it might actually be set in motion—is the foundation of the [automobile exception’s] mobility rationale.” Id. at 498. Thus, “the mobility rationale ... does not turn on case-by-case determinations by agents in the field regarding either the probability that a vehicle could be mobilized or the speed with which movement could be achieved.” Id.
In this case, the automobile exception applies to the tractor trailer on the land in Pittsylvania County. The tractor trailer clearly was inherently mobile, and counsel for Smith conceded at oral argument that the tractor trailer could be moved by simply attaching a cab to the tractor trailer. Moreover, the recent unloading activity at the tractor trailer suggested that it might be moved when all of the liquor jugs were unloaded. In short, embracing Smith’s position here would contravene the sound reasoning of both Carney and Navas.
During an eviction where a locksmith picked a lock to let movers in, fraudulent identification documents were found, and the finder called the police who said to bring them in. It was still a private search. United States v. Jones, 2011 U.S. Dist. LEXIS 137602 (W.D. Tenn. November 29, 2011).*
The stop of defendant’s car was with reasonable suspicion that it was involved in a bank robbery. After the stop, defendant’s three year old daugther was found in the car, and she was asked where they were coming from, and she pointed toward the bank. Asked if they were at the bank, she said yes. The registration of the car was expired, and its impoundment was valid. United States v. Brumfield, 2011 U.S. Dist. LEXIS 137834 (N.D. Ga. February 17, 2011).*
Defendant consented because he wanted to show the police there was nothing amiss. The fact the consent form was not timely executed is irrelevant. United States v. Garcia, 2011 U.S. Dist. LEXIS 137252 (E.D. N.Y. November 30, 2011).*
Search of envelope finding cash by TSA, “[a]lthough it is a close question,” is lawful because TSA was looking for potential for “sheet explosives,” and there was no sign this was an investigatory search, distinguishing other cases. United States v. Rosales, 2011 U.S. Dist. LEXIS 137405 (D. Minn. November 30, 2011):
Although it is a close question — particularly given the lack of detail about the discovery of the envelope and why the TSA agent looked inside of it — the Court concludes that the search of the envelope was lawful. “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness’ ....” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). The government did not offer direct evidence of the condition of the envelope, but it is reasonable to infer that a standard, business-size envelope containing thousands of dollars of cash — as well as vehicle titles and photographs — would be quite bulky. It was thus reasonable for the TSA to take at least a cursory look in the envelope to confirm that it did not contain sheet explosives. In addition, unlike several recent cases in which courts have held that a TSA agent’s search went beyond the permissible scope of an airport-screening search, see McCarty, 648 F.3d at 836; United States v. Fofana, 620 F. Supp. 2d 857, 863-65 (S.D. Ohio 2009), here there is absolutely no evidence that the TSA agent’s search was motivated by anything other than legitimate security concerns. The agent did not know that Rosales was under surveillance or even that Rosales was suspected of criminal activity; in fact, the agent permitted Rosales to leave with his cash after the screening procedure was complete. The Court therefore finds that, in light of changes in technology since Kroll [481 F.2d 884 (8th Cir. 1973)] was decided in 1973, the search of the envelope was within the proper scope of an airport-screening search.
Defendant’s house was under surveillance, and police followed car away, which they stopped 8-10 miles from defendant’s house. After the stop, one person stopped was on a cell phone which an officer took away from him but did not look at the calls because he thought he needed a warrant. Officers then decided to secure the house while getting a search warrant. It was reasonable to believe that the occupants knew the police were around or even coming, so a warrantless entry into the property to secure it was reasonable under the circumstances. United States v. Lockett, 2011 U.S. Dist. LEXIS 137266 (M.D. Ga. November 30, 2011):
According to the officers, the decision to secure the residence was based on several factors: (1) they did not know who was in the residence; (2) concerns about preserving evidence; (3) preventing the destruction of evidence; (4) the amount of traffic coming in and out of the residence during the day; (5) the fact Wynn and Young were found with drugs; (6) suspicions that there were drugs at the residence; (7) the fact either Wynn or Young was on the cell phone while in the police vehicle, which led to a concern that Defendant was tipped off about the police activity; (8) the fact Defendant left the residence after the Nissan was stopped; and (9) the attention drawn by the Wynn and Young traffic stop.
. . .
The Court agrees with the Government that the officers had an objectively reasonable basis to believe that exigent circumstances existed which required their warrantless entry into Defendant's residence. Wynn and Young, who were stopped after leaving Defendant's residence, were found to be in possession of cocaine and marijuana. Wynn or Young spoke with someone on the telephone, and shortly thereafter Defendant and another male were seen talking on the telephone, going to the outbuilding, and leaving the premises. The officers could not see into the residence or the outbuilding, but knew there was at least one person still in the residence. The Court finds that based on the totality of the circumstances the officers could reasonably have determined that Defendant was aware of the surveillance and that evidence could have been destroyed during the time it took them to get a search warrant.
A traffic citation is not an “arrest” for U.S.S.G. § 4A1.2(a)(2). The majority does not cite the Fourth Amendment arrest cases, but the concurrence and dissent does. United States v. Leal-Felix, 09-50426 (9th Cir. November 30, 2011) (en banc):
In this appeal, we are asked to interpret the United States Sentencing Guidelines § 4A1.2(a)(2). The United States Sentencing Commission (the “Commission”) has authority to define the terms in the Sentencing Guidelines. See 28 U.S.C. § 994(p). However, until it does, we consider the context and purpose of the Sentencing Guidelines as a whole in interpreting them. Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term “arrest” to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient. Therefore, we vacate the sentence imposed by the district court and remand for re-sentencing.
. . .
 Nothing in the record suggests Leal-Felix was ever formally arrested for driving with a suspended license. He was not told he was “under arrest,” he was not transported to the police station, and he was not booked into jail. Absent one of these hallmarks of a formal arrest, the district court erred in finding that he had been “arrested” for purposes of the Sentencing Guidelines. Therefore, his sentence is vacated. The case is remanded for resentencing in accordance with this opinion.
I join the majority’s opinion, but write separately to highlight the most compelling reason for concluding that a traffic citation is not an arrest for the purposes of the Sentencing Guidelines: the common understanding of the term arrest does not include being pulled over and ticketed for a traffic violation.
It is a bedrock principle of statutory construction that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). I am confident that an average citizen—with or without a law degree—would not believe he had been arrested if pulled over, briefly detained and issued a traffic ticket. Indeed, if a traffic citation constituted an arrest in ordinary parlance, then aspiring police officers and prison guards might have a lot more to disclose on their job applications. Young drivers would need to be more concerned about getting into college, and those filling out employment applications, background checks, visa applications, and adoption papers would need to employ an entirely different “truth-o-meter” than commonly understood. It seems unlikely, however, that police departments, prisons, colleges, government agencies and adoption organizations mean—or are even concerned about—speeding tickets when they ask if applicants have ever been arrested. In other words, treating an ordinary traffic ticket as an arrest defies our common experience and would be a paradigmatic shift.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion which, in my view, improperly imports Fourth Amendment analysis into calculation of a sentence under the Sentencing Guidelines, and unnecessarily creates a circuit split.
Law.com: 9th Circuit, in Reversal, Says Traffic Stops Aren't 'Arrests', Ginny LaRoe:
Is a traffic stop an "arrest" for sentencing purposes in federal court?
The Ninth Circuit U.S. Court of Appeals on Wednesday in an en banc ruling said no, reversing itself and creating a circuit split.
The court, by a 10-1 vote, said a traffic citation is not the same as a formal arrest, which would include informing the suspect he was under arrest and taking him to jail or a police station.
Care2.com: Drug Testing Welfare Recipients is “Compassionate” by Robin Marty:
Florida is already mired in courtroom proceedings over their new law mandating that all welfare recipients must submit to and pass a drug test in order to receive benefits. But despite the state’s court blocking the law as a violation of the fourth amendment, Ohio legislators are looking at implementing the same practice in their state.
Because, as one Republican law maker puts it, it’s the “compassionate thing to do.”
. . .
Florida quickly learned that regardless of the legality of their plan, the actual testing itself showed that despite the Republicans’ assumptions, very few welfare recipients actually were using drugs. In fact, the percentage of welfare recipients using drugs was actually lower than that of the regular population.
That kind of emasculates the "state need" for the intrusion then, doesn't it?
Federal Rules changes are effective December 1 [except the U.S. Sentencing Guidelines which are November 1]. Rule 41 changes involve adding "reliable electronic means" and tracking warrants, almost in anticipation of Jones, considering it takes three years for rules changes to work their way up.
Rule 41. Search and Seizure
. . .
(d) Obtaining a Warrant.
. . .
(3) Requesting a Warrant by Telephonic or Other Reliable Electronic Means. In accordance with Rule 4.1, a magistrate judge may issue a warrant based on information communicated by telephone or other reliable electronic means.
(e) Issuing the Warrant.
. . .
(2) Contents of the Warrant.
. . .
(C) Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:
(i) complete any installation authorized by the warrant within a specified time no longer than 10 days;
(ii) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and
(iii) return the warrant to the judge designated in the warrant.
(f) Executing and Returning the Warrant.
(1) Warrant to Search for and Seize a Person or Property.
. . .
(D) Return. The officer executing the warrant must promptly return it — together with a copy of the inventory — to the magistrate judge designated on the warrant. The officer may do so by reliable electronic means. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.
(2) Warrant for a Tracking Device.
(A) Noting the Time. The officer executing a tracking-device warrant must enter on it the exact date and time the device was installed and the period during which it was used.
(B) Return. Within 10 days after the use of the tracking device has ended, the officer executing the warrant must return it to the judge designated in the warrant. The officer may do so by reliable electronic means.
(C) Service. Within 10 days after the use of the tracking device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person’s residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person’s last known address. Upon request of the government, the judge may delay notice as provided in Rule 41(f)(3).
To succeed in a post-conviction petition, the defendant must show that the motion would be granted, essentially by trying the motion to suppress in the post-conviction proceeding. In this case, only defense counsel was called on this issue, not the officer. Scott v. State, 2011 Tenn. Crim. App. LEXIS 868 (November 22, 2011):
We need not address whether a motion to suppress should have been filed in this case because, after a careful review of the record, we conclude that the Petitioner has failed to establish that he was prejudiced by trial counsel's failure to file such a motion. To meet his burden of showing prejudice, the Petitioner must establish that there is a reasonable probability that, had trial counsel filed a motion to suppress, the motion would have been granted. Id. (citing Strickland, 466 U.S. at 694). Here, the Petitioner has failed to do so. Under the facts of this case, the Petitioner must have adduced sufficient facts to allow the post-conviction court to conclude that the second search was illegal, that is, not undertaken pursuant to one of the exceptions to the warrant requirement. To the contrary, the facts in the instant case do not lead to such a conclusion.
The trial court found the search was by consent; therefore, no Strickland prejudice. State v. Mohler, 2011 Ohio 6121, 2011 Ohio App. LEXIS 5006 (5th Dist. November 28, 2011).*
Defendant was stopped with reasonable suspicion of being involved in a robbery. He consented first to looking through maps on the front seat visible to the officer. Then he consented to a search of his van. United States v. Farnell, 2011 U.S. Dist. LEXIS 136890 (E.D. Mo. November 8, 2011).*
Reaching into defendants underwear to seize drugs as a search incident was reasonable. It was not a strip search. Foxworth v. State, 94 So. 3d 1178 (Miss. App. 2011):
P6. While a search incident to arrest can exceed the scope of some other warrantless searches, the scope of the search is not limitless. “As intrusiveness increases, the amount of suspicion necessary to justify the search correspondingly increases.” United States v. Vega-Barvo, 729 F.2d 1341, 1344 (11th Cir. 1984). There are certain limitations regarding the use of strip searches. While a strip search has not specifically been defined by Mississippi common law, surrounding jurisdictions have addressed the term. A strip search has been defined as “any exposure or observation of a portion of a person’s body where that person has a ‘reasonable expectation of privacy.’” Doe v. Calumet City, Ill., 754 F. Supp. 1211, 1215 n.9 (N.D. Ill. 1990) (citation omitted). A strip search has also been defined as “the removal of the arrestee’s clothing for inspection of the under clothes and/or body.” State v. Nieves, 383 Md. 573, 861 A. 2d 62, 70 (Md. 2004) (citing William J. Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L. Rev. 665, 667 (2000)). Black’s Law Dictionary 1469 (9th Ed. 2009) defines a strip search as a “search of a person conducted after that person’s clothes have been removed, the purpose [usually] being to find any contraband the person might be hiding.”
P7. In this case, Officer Keckler reached inside Foxworth’s pants and undergarments to remove an item he believed to be a controlled substance. At no point was Foxworth forced to remove any clothing. There is also no indication that any part of his body was ever exposed to the public. He remained fully clothed during the entire search. The Mississippi Supreme Court has upheld cases where the officer pulled a bag out of the defendant’s belt line and also where officers retrieved evidence from the pocket of the defendant. See Ellis, 573 So. 2d at 725; Johnson v. State, 999 So. 2d 360, 365 (¶23) (Miss. 2008). While those cases do not directly address the issue of a strip search, the conduct of the police officers in those cases was found to be appropriate. The actions taken by Officer Keckler are similar to the conduct in those cases. He simply retrieved evidence from inside Foxworth’s clothing. Because no strip search occurred and the search incident to arrest was appropriate, we find no error.
Remember the first episode of FX's "The Shield"? In the opening scene, Vic Mackey yanks down a suspect's pants and removes drugs from his genitalia. That was in an alley.
San Antonio Express-News: Attorney: Trial was tainted by search; Lawyer says prosecutor rifling through defense table ‘unsettled' him by Craig Kapitan:
Defense attorney Tony Reyes was in the middle of calling witnesses for his client's embezzlement trial last January when, during a jury break, a district attorney's office employee served him with a search warrant signed by a judge in another courtroom.
State District Judge Ron Rangel told Reyes to stand back as a prosecutor then began sifting through documents on the defense table, the attorney recalled Wednesday as he testified at a hearing for his client's motion for a new trial.
The tactic — in which Reyes was named a criminal suspect alongside his client on the search warrant — was so unheard of and shocking that it obliterated his ability to zealously defend his client, he and a large team of attorneys have alleged during sporadic hearings over the past month.
Prior post here.
If defendant, an intermittent overnight guest at the house of another had any standing, something not conceded, he waived it when he turned himself in ten days before the search occurred by leaving stuff there. Also the owner consented. United States v. Burke, 2011 U.S. Dist. LEXIS 136877 (M.D. Fla. November 29, 2011):
The evidence establishes that Defendant Burke had a subjective expectation of privacy; the question is whether Defendant Burke's expectation of privacy is one which society recognizes as legitimate. If Defendant Burke occupied the second bedroom in HLS' apartment intermittently prior to 2/5/2011, after Defendant Burke turned himself in on 2/5/2011, Defendant Burke could not have expected to return to the apartment to continue Defendant's intermittent residence. If Defendant Burke had a long-standing familial type of relationship with HLS in the past, on 2/15/2011, Defendant Burke was not a guest, occupying the premises with the permission of HLS, and there was no realistic expectation that Defendant Burke would return to occupy the premises, since Defendant Burke remained in custody.
Trash at the edge of a gravel road for pick up was not on the curtilage. United States v. Lemons, 2011 U.S. Dist. LEXIS 136691 (W.D. Ky. November 28, 2011).*
Almost considering the merits of defendant’s Fourth Amendment claim in habeas deferential AEPDA review on the independent source doctrine: “Upon review of the district court order and the state court record, we agree that Cheeks had a full and fair opportunity to litigate his Fourth Amendment claim in state court.” Cheeks v. Smelser, 448 Fed. Appx. 848 (10th Cir. 2011).*
Wired.com: The Pest Who Shames Companies Into Fixing Security Flaws by Mike Kessler:
Every Christopher Soghoian production follows a similar pattern, a series of orchestrated events that lead to the public shaming of a large entity—Google, Facebook, the federal government—over transgressions that the 30-year-old technologist sees as unacceptable violations of privacy. Sometimes he discovers these security flaws by accident, other times because someone has pissed him off, but mostly because he’s parked at his computer all day looking for security flaws.
When he finds one, Soghoian, a PhD candidate in computer science at Indiana University Bloomington, learns everything he can about it and devises what he sees as a viable solution. Then he alerts the offending party and gives them a chance to fix things, explaining that if they don’t, he’ll go public with his discovery. (OK, sometimes he skips the give-them-a-chance step.) When the inevitable wave of media coverage starts breaking, Soghoian is often the first expert that reporters turn to for sound bites—about stories he has effectively handed them. In the end, the security holes get patched, and Soghoian gets more notoriety and more work. He’s vertically integrated.
. . .
Soghoian managed to record a Sprint Nextel executive boasting that the company had provided user location data to law enforcement agencies some 8 million times. Naturally, Soghoian made the tape public. Stephen Colbert—among others—picked up the story, which was later cited by the Ninth Circuit Court of Appeals in a case concerning police surveillance tactics.
The case is United States v. Pineda-Moreno, 617 F.3d 1120, 1125 (9th Cir. 2010) (Kozinski, J., dissenting from denial of rehearing en banc):
If you have a cell phone in your pocket, then the government can watch you. Michael Isikoff, The Snitch in Your Pocket, Newsweek, Mar. 1, 2010, available at http:// www.newsweek.com/id/233916. At the government's request, the phone company will send out a signal to any cell phone connected to its network, and give the police its location. Last year, law enforcement agents pinged users of just one service provider--Sprint--over eight million times. See Christopher Soghoian, 8 Million Reasons for Real Surveillance Oversight, Slight Paranoia (Dec. 1, 2009) http://paranoia/dubfire.net/2009/12/8-million-reasons-for-real-surveillance.html. The volume of requests grew so large that the 110-member electronic surveillance team couldn't keep up, so Sprint automated the process by developing a web interface that gives agents direct access to users' location data. Id. Other cell phone service providers are not as forthcoming about this practice, so we can only guess how many millions of their customers get pinged by the police every year. See Justin Scheck, Stalkers Exploit Cellphone GPS, Wall St. J., Aug. 5, 2010, at A1, A14 (identifying AT&T and Verizon as providing "law-enforcement[ ] easy access to such data").
NPR: Fresh Air: Interpreting The Constitution In The Digital Era:
GPS monitors can track your every movement. Brain scans can now see lies forming in your brain. And advancements in genetic engineering may soon allow parents to engineer what their children will look and be like.
These new technologies are "challenging our Constitutional categories in really dramatic ways," says George Washington University law professor Jeffrey Rosen. "And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today."
On Wednesday's Fresh Air, Rosen, the co-editor of the new book Constitution 3.0: Freedom and Technological Change, details how technological changes that were unimaginable at the time of the Founding Fathers are challenging our notions of things like personal vs. private space, freedom of speech and our own individual autonomy.
Plaintiff was arrested for “scalping” a free ticket from a radio promotion, but it turned out there was no law against it in Nevada. The district court erred in finding officer had qualified immunity for the arrest because this was an error of law. Rosenbaum v. Washoe County, 663 F.3d 1071 (9th Cir. 2011)*:
This is not a case where courts disagree about the contours of a constitutional right or where officers may be confused about what is required of them under various circumstances. As our analysis establishes, the statute is unambiguous, and not susceptible to the reading that the county suggests. Therefore, no reasonable officer could believe that Rosenbaum's conduct violated this statute.
Considering the facts in the light most favorable to Rosenbaum, all reasonably competent officers would have agreed that he was not committing a crime. There is no scalping law in Nevada; it is simply not a crime to sell tickets to a fair—even when the tickets were received for free. His t-shirt did not suggest fraud, nor were the ticket buyers duped by the sale.
His right to family integrity merely from being handcuffed in front of his children was not violated:
We do not imply that verbal abuse—and even verbal abuse to children in the midst of an arrest—would never rise to the level of a constitutional violation. Rather, in this instance, the officers' conduct does not “shock the conscience.”
Because we conclude that the Rosenbaums' right to family integrity was not violated, we need not reach the question of whether Forbus is entitled to qualified immunity for the violation of the right to family integrity.
[Note: Criminal defense lawyers: indulge these civil cases. Like Jeff Foxworthy's joke about his family tree, qualified immunity and the good faith exception have the same origins, and the cases often read the same and apply each other. Also remember that some of the most important Fourth Amendment cases are § 1983 cases.]
Smartphone app records everything for phone carrier: Huffington Post: Carrier IQ: Researcher Trevor Eckhart Outs Creepy, Hidden App Installed On Smartphones (VIDEO):
A security researcher has posted a video detailing hidden software installed on smart phones that logs numerous details about users' activities.
In a 17-minute video posted Monday on YouTube, Trevor Eckhart shows how the software – known as Carrier IQ – logs every text message, Google search and phone number typed on a wide variety of smart phones - including HTC, Blackberry, Nokia* and others - and reports them to the mobile phone carrier.
The application, which is labeled on Eckhart’s HTC smartphone as "HTC IQ Agent," also logs the URL of websites searched on the phone, even if the user intends to encrypt that data using a URL that begins with "HTTPS," Eckhart said.
The software always runs when Android operating system is running and users are unable to stop it, Eckhart said in the video.
And, if the carrier has it, can the government get everything by search warrant from the carrier?
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)