U.S. District Courts have about 32,000 more opinions on Lexis in 2012 than 2011, and they doubled since 2007. The rough numbers (because I can only estimate):

2012 184,000
2011 142,000
2009 122,000
2008 106,000
2007 95,000

An increasing number are search and seizure cases, so lawyers have not stopped litigating the issues.

I don't know that the U.S. District Courts are putting out more written opinions, but I do know that Lexis has a lot more, including USMJ R&R's that maybe used to be overlooked. Still, I'm avoiding civil cases because of time constraints. A lot of Fourth Amendment law is made in civil cases, so, if you know of one worth mentioning here, let me know.

Number of posts here passed the 10,000 mark long ago. There were 1,669 in 2012. This site has been on two platforms. The first is gone, and the cases worth citing integrated into the book supplement. Everything without an * following the citation through summer 2012 is in the supplement. There have been 8100+ postings on this platform, so probably 10,500 total? This blog is ten years old in 7½ weeks.

Coming: On the 10th Anniversary I hope to remember and post my "8 rules" of Fourth Amendment reality. So much has changed since I became a lawyer. Some rules from 40 years ago are on their heads, but the Fourth Amendment cases are becoming more predictable for the police with "bright line rules" and courts way more often than not defaulting to the police testimony as the truth.

Reasonable suspicion is the standard for a vehicle stop, not probable cause. United States v. Gooch, 2012 U.S. Dist. LEXIS 182833 n. 7 (W.D. Pa. December 28, 2012):

Defendant Gooch argues that the appropriate standard for assessing the legality of a traffic stop based on an observed motor vehicle code violation is probable cause. (See Doc. No. 176 at 2-3). Indeed, in Whren v. United States, 517 U.S. 806, 810 (1996), the Supreme Court stated that "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." As explained in United States v. Delfin-Colina, 464 F.3d 392, 396-97 (3rd Cir. 2006), however, the phrase "probable cause" was used in response to the situation before the Supreme Court and did not alter "the longstanding reasonable suspicion standard recognized in the traffic-stop setting." The Third Circuit subsequently held that "the Terry reasonable suspicion standard applies to routine traffic stops." Id. Brendlin v. California, 551 U.S. 249 (2007), which Defendant Gooch cites in support of his argument that the probable cause standard applies, does not alter this standard. In Brendlin, the Court held that when a police officer makes a traffic stop, a passenger is seized within the meaning of the Fourth Amendment and may challenge the constitutionality of the stop. Id. at 251. In explaining its decision, the Court, citing Whren, compared precedent stating that at least articulable and reasonable suspicion is required to support random, investigative traffic stops and that an automobile stop is reasonable where the police have probable cause to believe that a traffic violation has occurred. Id. at 263 n.7. The Court did not, however, draw a distinction between the two types of stops, establish that different standards apply for different types of stops, or suggest that the probable cause language quoted from Whren represented the minimum standard that must be met to render lawful a stop based on a belief that a traffic violation has occurred. See id. Additionally, the Third Circuit has continued to apply the reasonable suspicion standard to stops premised on motor vehicle code violations since Brendlin. See, e.g., United States v. Comegys, No. 11-3630, 2012 U.S. App. LEXIS 23364, at *8 (3d Cir. Nov. 14, 2012); United States v. Lewis, 672 F.3d 232, 237 (3rd Cir. 2012); Johnson, 452 Fed. Appx. at 225; United States v. Johnson, 434 Fed. Appx. 159, 162 (3rd Cir. 2011). Nonetheless, for the same reasons that support the Court's conclusion that Corporal Johnson's decision to stop Defendants' vehicle was supported by reasonable suspicion, the Court also finds that Corporal Johnson's decision to stop Defendants' vehicle was supported by probable cause. Therefore, the traffic stop here was reasonable and did not violate the Fourth Amendment even under the more demanding probable cause standard.

Defendant’s motion to suppress the gun found in his girlfriend’s purse was granted because it was found during a protective sweep, and the state appealed. Defendant had standing to challenge the search of the apartment. “[T]he order is affirmed insofar as appealed from,” suggesting what? That the defendant didn’t have standing in her purse even though he had standing in the apartment? Is this like Brendlin and the stop v. search of a car? If he had standing as to the whole apartment, is the entire excessive protective sweep invalid. What? People v Isaacs, 2012 NY Slip Op 9086, 101 A.D.3d 1152, 956 N.Y.S.2d 510 (2d Dept. 2012).*

Reasonable suspicion existed for defendant’s stop based on a 911 call that there was a man in black on a street with a gun. Officers came to the street and saw one man in black, and they saw a bulge looking like a gun. That was reasonable suspicion. United States v. Johnson, 2012 U.S. App. LEXIS 26614, 2012 FED App. 1312N (6th Cir. December 28, 2012).*

Defendant’s claim that his teenage son was not able to legitimately consent to a police entry into the house was not in the motion to suppress nor specifically raised at the hearing, so it is waived. State v. Preston, 2012 Ohio 6176, 2012 Ohio App. LEXIS 5323 (12th Dist. December 28, 2012).

While the “motion to suppress was the sort of ‘shotgun,’ unfocused motion that courts disfavor,” the state was still on notice as to the issue. Defendant prevailed on the motion to suppress, and it’s affirmed. “[T]his judgment entry is not an opinion of the court.” State v. Gottesman, 2012 Ohio App. LEXIS 5325 (1st Dist. December 26, 2012):

While we agree that Gottesman's motion to suppress was the sort of "shotgun," unfocused motion that courts disfavor, we need not reach the issue of whether it was specific enough. The record indicates that the state was aware that Gottesman was raising the issue of probable cause to arrest. Further, without the testimony of the arresting officer, the state could not prove that the officer had had probable cause to arrest Gottesman, and numerous other issues related to the search and seizure. The trial court had little choice but to grant the motion to suppress.

The state further argues that Gottesman failed to meet his initial burden of showing that he was arrested without a warrant. See Xenia at paragraphs one and two of the syllabus. But this court has stated that while Xenia places the burden on the defendant to show the absence of a warrant, "this requirement should not be given a hypertechnical construction." State v. Petrosky, 1st Dist. Nos. C-900264 and C-900265, 1991 Ohio App. LEXIS 1257, *5 (Mar. 27, 1991). The record as a whole shows that the arresting officer did not have a warrant to arrest Gottesman. See id. at *5-6.

Defendant’s claim he didn’t flee–he merely walked away to a porch and sat down. That was flight enough for reasonable suspicion. United States v. Colbert, 2012 U.S. Dist. LEXIS 182322 (N.D. Ill. December 27, 2012):

Defendant nevertheless argues that the officers lacked reasonable suspicion because Defendant did not "flee" from the police but simply ran onto a porch and sat down. (Def.'s Mot. Quash & Suppress 6.) But Defendant began running away from the officers when the man on the corner appeared to have alerted Defendant of their presence. Running upon noticing the police is highly evasive behavior. See Wardlow, 528 U.S. 119 at 124 ("Headlong flight — wherever it occurs — is the consummate act of evasion"). Furthermore, courts regularly find evasive behavior short of the type at issue here sufficient to warrant a Terry stop. See, e.g., Oglesby, 597 F.3d at 894 (finding defendant's actions in slowly taking a few steps away from a group while looking from side to side and angling his body away from the police officers were pertinent factors in determining reasonable suspicion); U.S. v. Harris, 188 Fed. Appx. 498, 501-02 (7th Cir. 2006) ("We have held that walking away quickly in the face of commands by police officers to stop is evasive behavior that contributes to the reasonableness of an officer's suspicion."); U.S. v. Baskin, 401 F.3d 788, 793 (7th Cir. 2005) (holding that the officer had reasonable suspicion to conduct a Terry stop and concluding that "[i]t was also reasonable for [the officer] to interpret the [defendant's] vehicle's sudden acceleration as evidence of unprovoked flight"); U.S. v. Mays, 643 F.3d 537 (6th Cir. 2011) ("flight is not the only type of 'nervous evasive behavior.' Furtive movements made in response to a police presence may also properly contribute to an officer's suspicions.") (internal citations omitted); U.S. v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004) (noting that courts can consider "evasive conduct that falls short of headlong flight" and holding that defendant's "evasive conduct" included "immediately walk[ing] away as the officers approached, and although [defendant] did not run, he walked away at a quick pace, ignoring the officer's commands to stop.") Thus, Defendant's actions, coupled with the circumstances already described, provided the officers with reasonable suspicion to stop and investigate him pursuant to Terry. See Wardlow, 528 U.S. at 124-25; U.S. v. Lenoir, 318 F.3d at 729.

"I'm gonna check the car real quick and get you on your way, alright?" is not a search by consent. State v. Ross, 2012 Ohio 6111, 2012 Ohio App. LEXIS 5274 (9th Dist. December 26, 2012):

[*P19] As soon as Officer Perez completed his pat down search, he indicated that he wanted to search Ross' car. Specifically, he stated, "I'm gonna check the car real quick and get you on your way, alright?" Ross repeatedly stated during the exchange that he did not understand why it was necessary for Officer Perez to search the car. Each time, Officer Perez indicated that the search was something that needed to be done and simply ended his statements with "alright?" Officer Perez also told Ross: (1) "well, it's not even really your car," (2) there was concern due to the fact that Ross had just left a high crime area, and (3) after Ross had just left a motel, "people leaving the motel, this is kind of what we do." When Ross finally assented to the search, he stated in the same sentence "but there's no need for this." Officer Perez never clarified Ross' statement. Instead, he stated that the search would only take a few minutes and proceeded to search the car.

Consent was found purely on a question of credibility of the witnesses. Since defendant admitting lying twice to the officer about his identity, it wasn’t error for the trial court to believe the officer. State v. Jones, 2012 Ohio 6150, 2012 Ohio App. LEXIS 5313 (9th Dist. December 28, 2012).*

Police responded to a domestic battery call, and defendant’s live-in girlfriend was outside but afraid to go in to retrieve her things to get out. She told the police he kept a gun inside. When the police went in with her, they could see in the closet men’s and women’s clothes. Based on the situation presented to them, they had a reasonable belief in her authority and did not have to question her further about it. People v. Smith, 2012 NY Slip Op 927, 2012 N.Y. App. Div. LEXIS 9155 (4th Dept. December 28, 2012):

Thus, "the record establishes that the searching officer[s] relied in good faith on the apparent authority of [the complainant] to consent to the search, and the circumstances reasonably indicated that [she] had the requisite authority to consent to the search" (People v Fontaine, 27 AD3d 1144, 1145, lv denied 6 NY3d 847; see People v Frankline, 87 AD3d 831, 833, lv denied 19 NY3d 973; People v Littleton, 62 AD3d 1267, 1269, lv denied 12 NY3d 926). Contrary to defendant's contention, the searching officers were "not required to make some inquiry into the actual state of authority'" of complainant to consent to a search because they were not "faced with a situation which would cause a reasonable person to question the consenting part[y's] power or control over the premises or property to be inspected'" (Fontaine, 27 AD3d at 1145, quoting Adams, 53 NY2d at 10).

The woman who consented here testified that she did not have authority to consent, but was impeached with statements at the time of the search that she lived there and had a key. The court finds that she had actual authority, and, alternatively, apparent authority as far as the officers could ascertain at the time of the search. United States v. Brandon, 2012 U.S. Dist. LEXIS 182091 (E.D. Ill. December 27, 2012).

The officer's failure to tell the judge issuing the search warrant that he had a medical marijuana authorization under Michigan law was not a false statement or omission under Franks because it was still a crime to cultivate marijuana in Michigan (see People v. Brown, No. 303371) and federal law. Probable cause was shown for the search warrant. United States v. Ellis, 2012 U.S. Dist. LEXIS 182432 (W.D. Mich. December 19, 2012).*

Plaintiff was a police officer for the RTA charged with falsifying reports about an altercation with a passenger. She sued for false arrest as a Fourth Amendment claim, but her indictment by a state grand jury precludes this claim, even when plaintiff alleges malice. Craig v. Dallas Area RTA, 2012 U.S. App. LEXIS 26444 (5th Cir. December 27, 2012)*:

Precedent clearly establishes that, "if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation for false arrest, insulating the initiating party." Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). For our purposes, this means that "even an officer [in Craig's case] who acted with malice in procuring the warrant or the indictment will not be liable if the facts supporting the warrant or indictment are put before an impartial intermediary such as a magistrate or a grand jury." Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988) (internal quotation marks omitted).

SSRN: Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment by Ric Simmons IN Harvard Journal of Law and Public Policy, Vol. 36: Abstract:

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance. The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt. Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost. And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative sum game. Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.

The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally. Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.

Atlantic.com: This Week's Senate Scandal: Scorn for the 4th Amendment by Conor Friedersdor:

I haven't passed the bar, but I know a little bit about the 4th Amendment. Have you read it lately? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," it states in plain English, "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That's all of it.

The landline in your house? The government needs a warrant to tap it. The letters in your mailbox? The government needs a warrant to read 'em. It's like the Framers said: probable cause is required.

Yet a text or an email, even one sent from your bed, is treated differently -- it's afforded much less protection from government snoops, even though we're increasingly going all digital in our communication.

Why?

Senator Rand Paul raised that question Thursday on the Senate floor. "We became lazy and haphazard in our vigilance," he told his colleagues during a debate about government surveillance. ....

Salon.com: Senate FISA vote inspiring display of bipartisan commitment to ignoring Fourth Amendment | Fiscal calamity? Who cares! Congress shows that they can still band together and vote for horrible things, by Alex Pareene:

Congressional dysfunction and extremism may yet plunge the nation into an entirely avoidable recession, but at least Americans will likely be able to sleep at night secure in the knowledge that our lawmakers at least sprang into action, at the last possible minute, to preserve the government’s right to constantly spy on everyone without telling anyone about it.

In all likelihood, the Senate will vote today to reauthorize the FISA Amendments Act for a few years, just before it was scheduled to expire. The House reauthorized it all the way back in September, but the world’s most deliberative body likes to take its time (plus Ron Wyden placed a hold on the bill until Senate leaders agreed to at least have a debate on proposed amendments to the Amendments).

TheHill.com: Senate approves bill to reauthorize foreign surveillance programs by Ramsey Cox :

The Senate on Friday approved a bill reauthorizing the Foreign Intelligence Surveillance Act (FISA) in a 73-23 vote.

The bill will extend for five years the ability of U.S. intelligence authorities to conduct surveillance of suspected terrorists overseas without first getting permission from a court.

Law.com: Toyota settlement shines light on agency's proposed 'black box' rule by Jenna Greene:

In the wake of Toyota Motor Corp.'s estimated $1.3 billion settlement involving claims of unintended acceleration, the National Highway Traffic Safety Administration continues to push for a rule that would require manufacturers to install "black boxes" in all new cars to record accident data.

The NHTSA points to its investigation of Toyota claims as one justification for the rule, which has triggered concerns about privacy, ownership of recorder data, and how the data will be used.

Defendant was stopped by an officer who was curious because defendant was towing a trailer, not the type normally towed by a large tractor trailer truck. Defendant didn’t have answers about all his travel. An EPIC query showed defendant was once involved in a large cash seizure in Michigan. The officer asked for consent, it was denied, and defendant was allowed to go. The officer radioed to other officers who followed defendant again and stopped him for two traffic offenses. Further reasonable suspicion developed, and a drug dog was called which alerted. Cocaine was found during the search, which was valid. The second stop was justified, and defendant doesn’t contest it. Austin v. State, 980 N.E.2d 429 (Ind. App. 2012).*

Stop based on the fact the high center brake light had one of two bulbs out was not illegal as a matter of law. During the stop, the officer could smell burnt marijuana in the car. Otey v. Commonwealth, 61 Va. App. 346, 735 S.E.2d 255 (2012).*

In Florida, there is no way for an innocent owner to report a color change of a vehicle. The fact of a color change is innocent and alone cannot be reasonable suspicion. "We reverse the trial court's denial of appellant's motion to suppress and certify conflict with the Fourth District's opinion Aders v. State, 67 So. 3d 368 (Fla. 4th DCA 2011)." Van Teamer v. State, 108 So. 3d 664 (Fla. 1st DCA 2012):

=> Read more!

Search incident of a car in a DUI case was justified by defendant’s furtive gesture as he was stopping, which turned out to be beer bottles. (Decided under Fourth Amendment and state constitution.) Smith v. State, 980 N.E.2d 346 (Ind. App. 2012).

“The Government has proved the taint of the illegal stop in January 2010 had dissipated before the confession in October 2010. While the agents did not apprise the Defendant of her Miranda rights between these events, the illegal stop is both temporally distant and causally distinct from the confession.” United States v. Ramos, 2012 U.S. Dist. LEXIS 181716 (D. Vt. December 26, 2012).*

Jones not retroactive for a 2254 habeas petitioner as a new rule of law, even if Fourth Amendment claims could be considered on habeas. Successor habeas denied. In re Kubacki, 2012 U.S. App. LEXIS 26319 (10th Cir. December 20, 2012). [Not on opinions page of Tenth Circuit's website.]

Cato.org: Don’t Renters Have Fourth Amendment Rights? by Ilya Shapiro:

A person’s home is his castle and thus affords certain protections and immunities—including the right to exclude unwanted visitors—that apply whether you own or rent. Unfortunately, ordinances authorizing general administrative searches of rental properties have been increasingly adopted by local authorities with little protection for property rights or privacy interests.

These inspections cover the whole of the buildings and all of the activity that occurs within, opening every aspect of people’s lives to the government: political and religious affiliations, intimate relationships, and even all those Justin Bieber posters and Fifty Shades of Gray books you hide when people come over. They take place even if both the landlord and tenant believe them not to be necessary!

Wired.com: Feds Requiring ‘Black Boxes’ in All Motor Vehicles by David Kravets:

Federal regulators are proposing that new automobiles sold in the United States after September 2014 come equipped with black boxes, so-called “event data recorders” that chronicle everything from how fast a vehicle was traveling, the number of passengers and even a car’s location.

While many automakers have voluntarily installed the devices already, the National Transportation Safety Agency wants to hear your comments by February 11 on its proposal mandating them in all vehicles. Congress has empowered the agency to set motor-vehicle-safety rules.

Clearly, regulators’ intentions are about safety, as the devices would trigger — for about 30 seconds — during so-called “events” such as during sudden breaking, acceleration, swerving or other types of driving that might lead to an accident. The data, which can either be downloaded remotely or by a physical connection, depending upon a vehicle’s model, is to be used by manufacturers and regulators “primarily for the purpose of post-crash assessment of vehicle safety system performance,” according to an announcement in the Federal Register. (.pdf)

But privacy advocates are raising the alarm bells, and want the agency to require data safeguards, including demands that data be anonymized, and to prohibit the marketing of it.

Atlantic.com: Senate Drops Effort to Prevent Warrantless Email Monitoring by Rebecca J. Rosen:

As the week wound down before the holiday break, the senate sent President Obama a bill that gives sites like Netflix the option of allowing users to automatically share their viewing history with their social networks on Facebook.

This was relatively uncontroversial, making video sites no different from other services (like Spotify, say) that already have this kind of easy sharing. In fact, the prohibition only existed in the first place because Congress singled out video-rental history as particularly private following an incident in 1987 when then-Supreme Court nominee Robert Bork's video-rental history was leaked to the Washington City Paper.

But the bill was only so uncontroversial because the Senate stripped it of a much more significant proposal: amendments offered by Senator Patrick Leahy of Vermont, which would have required a warrant for law-enforcement agents to access the contents or metadata of emails that have been stored remotely for more than 180 days. Current law only requires a warrant for obtaining more recent communications. Once emails are older, government agents can obtain them with mere subpoenas, which require only a demonstration that the information would be useful to an ongoing investigation.

While a search warrant is required for a search of a cell phone in Ohio under State v. Smith, 124 Ohio St.3d 163, 2009 Ohio 6426, 920 N.E.2d 949 (2009), a warrant is not required if the cell phone is abandoned. State v. Moten, 2012 Ohio 6046, 2012 Ohio App. LEXIS 5204 (2d Dist. December 21, 2012).

A pre-Gant search that was valid under Belton but not Gant was still valid under Davis v. United States’s good faith exception. State v. Brown, 401 S.C. 82, 736 S.E.2d 263 (2012), revg State v. Brown, 389 S.C. 473, 698 S.E.2d 811 (Ct. App. 2010).

Defendant was suspected of robbing casino patrons after they won in Lawrenceburg, IN and drove to Cincinnati. After a lengthy investigation using GPS and recording telephone conversations, the police moved in and arrested defendant in his pickup truck. The police had probable cause to arrest defendant and the vehicle, left without a possible driver, was subject to inventory when it was towed in. The inventory was proper in all respects and not a ruse for a criminal investigation. State v. Ojile, 2012 Ohio 6015, 2012 Ohio App. LEXIS 5223 (1st Dist. December 21, 2012).* [If they had PC to arrest, they almost certainly had it to search the vehicle for evidence, weapons, or proceeds of crime because it was used in more than one of the robberies. Instead of taking the easiest to prove, the state apparently wanted to rely on inventory which has more for it to prove to show reasonableness.]

The Quarles public safety exception applies to a meth lab in a backpack voluntarily revealed by defendant and then with follow up questions. United States v. Noonan, 2012 U.S. Dist. LEXIS 181190 (N.D. Iowa December 20, 2012).

NTY Editorial: The Dawning of Domestic Drones; The drones are coming to a neighborhood near you:

The unmanned aircraft that most people associate with hunting terrorists and striking targets in Pakistan are on the brink of evolving into a big domestic industry. It is not a question of whether drones will appear in the skies above the United States but how soon.

Congress has ordered the Federal Aviation Administration to quickly select six domestic sites to test the safety of drones, which can vary in size from remote-controlled planes as big as jetliners to camera-toting hoverers called Nano Hummingbirds that weigh 19 grams.

The drone go-ahead, signed in February by President Obama in the F.A.A. reauthorization law, envisions a $5 billion-plus industry of camera drones being used for all sorts of purposes from real estate advertising to crop dusting to environmental monitoring and police work.

Wired.com: The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say) by James Bamford

The spring air in the small, sand-dusted town has a soft haze to it, and clumps of green-gray sagebrush rustle in the breeze. Bluffdale sits in a bowl-shaped valley in the shadow of Utah’s Wasatch Range to the east and the Oquirrh Mountains to the west. It’s the heart of Mormon country, where religious pioneers first arrived more than 160 years ago. They came to escape the rest of the world, to understand the mysterious words sent down from their god as revealed on buried golden plates, and to practice what has become known as “the principle,” marriage to multiple wives.

. . .

But new pioneers have quietly begun moving into the area, secretive outsiders who say little and keep to themselves. Like the pious polygamists, they are focused on deciphering cryptic messages that only they have the power to understand. Just off Beef Hollow Road, less than a mile from brethren headquarters, thousands of hard-hatted construction workers in sweat-soaked T-shirts are laying the groundwork for the newcomers’ own temple and archive, a massive complex so large that it necessitated expanding the town’s boundaries. Once built, it will be more than five times the size of the US Capitol.

Rather than Bibles, prophets, and worshippers, this temple will be filled with servers, computer intelligence experts, and armed guards. And instead of listening for words flowing down from heaven, these newcomers will be secretly capturing, storing, and analyzing vast quantities of words and images hurtling through the world’s telecommunications networks. In the little town of Bluffdale, Big Love and Big Brother have become uneasy neighbors.

Defendant rented his room in his sister’s house from her, and he locked the door. She thus lacked common or apparent authority to consent to the search. Police were called to the house because he allegedly threatened his sister with a gun, and he admitted having one in his room. Exigent circumstances to enter his locked room did not exist where he was handcuffed in a patrol car and the key was in his pocket. The unMirandized statement was taken under Quarles that he had a gun. United States v. Wilson, 2012 U.S. Dist. LEXIS 181162 (S.D. N.Y. December 18, 2012):

Here, at the time of the unwarned questioning, the Defendant, who was handcuffed and seated in the back of the patrol car, presented no threat to the complainant or the officers. Moreover, at the time the officers returned downstairs to continue their unwarned questioning of the Defendant, they already understood from the complainant that the gun was most likely located in the Defendant's bedroom, (Hernandez Tr. at 20-21 ("if he don't have the gun with him, he probably left it in his room")), which Officer Hernandez knew was locked and that no one besides the Defendant had a key. (Hernandez Tr. at 20-21.) The parties agree that Officer Hernandez then returned downstairs to question the Defendant about whether he possessed a weapon in his room and, if so, where it was located. (Id. at 22; Wilson Decl. ¶ 7; Gov't Ex. 13 at 20:19:20-20:20:20.) The parties also agree that the Defendant answered the officer's first question about the location of the gun ("I asked the defendant, your sister told me that you pulled a gun on her, and we need to know where is the gun") by admitting that he had one or more "fake" guns in his room. (Hernandez Tr. at 22; Wilson Decl. ¶ 7; Gov't Ex. 13 at 20:18:45-20:20:45.) Given that Officer Hernandez knew that the bedroom was locked and that only the handcuffed Defendant had a key to it, the Defendant's answer eliminated any reasonable concern that the gun presented a public safety danger.

Defendant showed standing from staying at his sister’s apartment a lot. He kept clothes and toiletries there, and he had a key and could come and go as he pleased. Defendant saw an unmarked police car and pulled at his pants indicating a gun in his waistband. He also ducked behind a car for a few seconds. Officers pulled to him and addressed him, and he had a bulge in his coat. At this point, officers had more than reasonable suspicion. Then defendant fled into a building , and the officers gave chase. The entry was with exigent circumstances. United States v. McGregor, 2012 U.S. Dist. LEXIS 181318 (N.D. Cal. December 21, 2012):

Defendant bolted through the front door as if it were unlocked or slightly ajar. He did not use a key. The officers did not know defendant, or whether he had a connection to the apartment. As far as the officers could tell, defendant had bolted into a random, close-by home of a stranger to seek escape from the officers, hide contraband, or endanger the occupants. Based on the foregoing information known to the officers, it was objectively reasonable for the officers to conclude that defendant's frenzied escape into the apartment posed a random and serious risk to the safety of the occupants or the officers. There was no particular indication that defendant lived there or knew the occupants. He did not say, for example, "Go away. This is my home." He did not enter using a key. Nor did the sister, who was standing inside near the door communicate in some manner to the police that defendant belonged there.

The opinion doesn't use the phrase "hot pursuit," but that's what it is.

The state contended that the search issue was of no consequence because the defendant admitted possession and growing of marijuana, but this was a medical marijuana case. The search should have been suppressed, and defendant made out his MMJ defense. Case reversed and dismissed. State v. Shupe, 172 Wn. App. 341, 289 P.3d 741 (2012)*:

=> Read more!

CSLI information is not protected by the probable cause requirement of the Fourth Amendment. The government sought the information by court order and the USMJ denied it, and the government appealed to the District Judge who granted it. CLSI information is subject to the Smith v. Maryland no reasonable expectation of privacy standard. In the Matter of the Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Site Information for Telephone Number [Text Redacted by the Court], 2011 U.S. Dist. LEXIS 156744 (D. D.C. October 3, 2011):

This Court agrees with the government that the text of the SCA permits the government to apply for compelled disclosure of CSLI records relating to a customer's past use of a cellular telephone company's phone services without meeting the probable cause requirement for a warrant. See, e.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S. Ct. 494, 90 L. Ed. 614 (1946) (holding that the probable cause requirement does not apply to compulsory process).

The Court of Appeals' opinion in United States v. Maynard does not compel a contrary result. The Court in Maynard determined that law enforcement installation of a GPS tracking device on a suspect's car that continuously registers the car's location constitutes a "search" under the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 555-56, 392 U.S. App. D.C. 291 (D.C. Cir. 2010). In so holding, the Court did not address compelled disclosure under Section 2703(d) -indeed, the law enforcement officers in Maynard sought no official process sanctioning their conduct before installing the GPS device at issue. See id. at 555. Maynard thus does not bear on the relevant evidentiary standard under Section 2703(d).

In finding that Maynard applied to this case, Magistrate Judge Facciola presumably concluded that obtaining CSLI is tantamount to the sort of continuous GPS surveillance at issue in Maynard. If the analogy holds, collection of historical CSLI may constitute a "search" that requires a warrant under the Fourth Amendment, the SCA notwithstanding. Cf. In re Application of the United States, 620 F.3d at 308-09 (describing magistrate judge's opinion comparing collection of historical CSLI to installation of a tracking device); In re United States Order, 736 F. Supp. 2d 578, 595 & n.6 (E.D.N.Y. 2010) (arguing that "[s]tatutory authority ... is not sufficient if such authority purports to allow, without a showing of probable cause, a search or seizure that must be considered unreasonable under the Fourth Amendment").

Unsealed and posted to Lexis this week.

Defendant refused to stop when the patrol car’s lights and siren came on, and that was not a seizure until he was actually stopped. His flight was reasonable suspicion, and the movement of his hands in flight added to it. United States v. Rhone, 2012 U.S. Dist. LEXIS 181135 (E.D. Mo. September 19, 2012):

The Supreme Court has held that presence in an area with a high rate of crime with unprovoked flight can satisfy the reasonable suspicion standard for a Terry stop. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Here, prior to the seizure and search of defendant, the officers found him in the Jeff Vanderlou area, an area with a high rate of crime, and defendant fled from the officers with no provocation. Additionally, while in pursuit of defendant, Officer Anderson observed defendant's hands moving around his jacket pocket. See United States v. Cornelius, 391 F.3d 965, 968 (8th Cir. 2004) (placing hands in jacket pocket and failure to remove hands upon direction by an officer sufficiently justifies a frisk); United States v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000) (placing hands in jacket pocket and moving to officer's backside upon witnessing the frisk of a companion sufficiently justifies a frisk); see also United States v. Roggeman, 279 F.3d 573, 579 (2002) (bulge in the clothing alone can establish a reasonable suspicion).

Defendant was seen leaving the scene of a burglary wearing all black and carrying a large black bag. When a man matching all that was seen by the officer, he had reasonable suspicion for a frisk when he saw a screwdriver sticking out of a pocket. Defendant then acquiesced in a consent search of the bag which produced evidence of the burglary. State v. Watkins, 2012 Tenn. Crim. App. LEXIS 1053 (December 19, 2012).*

Defendant in a blocked-in car with three officers with flashlights shining in windows was subjected to a stop governed by Terry. “[T]he police officers had only three justifications: the recent high-crime history of this lot, pat-downs of Julian's patrons, and Young's reclined position in the passenger seat of a parked car.” United States v. Young, 707 F.3d 598 (6th Cir. 2012).*

Defendant was in pretrial detention for three years, and both sides were responsible for delay, the government superceding the indictment multiple times, and the defendant for requesting extensions for filing pretrial motions, and only recently got the search warrant materials from the government. The defendant is ordered released on conditions, including cash deposit, third party custodians, drug testing, and searches of his home by USPO. [The opinion doesn’t tell us whether the defendant offered this condition. A home search as a condition of release is extremely hard to justify, and the court makes no effort to do so.] United States v. Rodriguez, 2012 U.S. Dist. LEXIS 181111 (W.D. N.Y. December 21, 2012).

The discrepancies noted by the defense between the search warrant affidavit and the discovery were not material enough to justify an evidentiary hearing. United States v. Dixon, 2012 U.S. Dist. LEXIS 180431 (N.D. Ohio December 17, 2012).*

NYT Editorial: Sneaky Apps That Track Cellphones:

A perversion of smartphone technology called “stalking apps” — precise, secretive trackings of the movements of cellphone users — is increasingly a matter of national concern, particularly for domestic abuse victims. No less threatening is the routine monitoring of children’s locales and phone habits for commercial purposes while parents are kept in the dark. Stealth apps even stoop to cyber-leering through the now notorious app called Girls Around Me, which allows men to search out women, unbeknown to them, by cross-matching GPS technology with information and photo sites like Facebook.

With these abuses proliferating, the Senate Judiciary Committee this month took a big step to protect the privacy of all cellphone users and close legal loopholes that enable stalking apps. The committee approved a worthy measure sponsored by Senator Al Franken, Democrat of Minnesota, that for the first time would require cellphone companies to obtain a user’s permission to collect location data and sell it or share it with third parties. It also would flatly outlaw creation of stalking apps, applying criminal and civil penalties.

The Sixth Circuit is troubled by three weeks of constant video surveillance of defendant’s backyard by a pole camera in light of Jones and its trespass holdings. “We are inclined to agree with the Fifth Circuit that ‘[t]his type of surveillance provokes an immediate negative visceral reaction.’” Nevertheless, the court finds the error, possible error harmless and doesn’t have to decide it. United States v. Anderson-Bagshaw, 2012 U.S. App. LEXIS 26220, 2012 FED App. 1297N (6th Cir. December 19, 2012):

Since the "backyard" was visible from a publicly accessible location, the government agents were constitutionally permitted to view whatever portions of it were visible from this point. See Katz v. United States, 389 U.S. 347, 351 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."). The government agents never physically invaded the "backyard." They merely observed it from a point where they had a right to be. See United States v. Jackson, 213 F.3d 1269, 1281 (10th Cir. 2000), judgment vacated on other grounds by Jackson v. United States, 531 U.S. 1033 (2000) (holding that using pole cameras to view outdoor areas surrounding a home and easily observable by people passing by does not violate the Fourth Amendment); United States v. Jenkins, 124 F.3d 768, 773-74 (6th Cir. 1997) (recognizing the difference between physical invasion of curtilage and "visual inspection from a lawful vantage point").

Nonetheless, we confess some misgivings about a rule that would allow the government to conduct long-term video surveillance of a person's backyard without a warrant. Few people, it seems, would expect that the government can constantly film their backyard for over three weeks using a secret camera that can pan and zoom and stream a live image to government agents. We are inclined to agree with the Fifth Circuit that "[t]his type of surveillance provokes an immediate negative visceral reaction." United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (stating in dicta that using a pole camera to view curtilage over a 10-foot fence constitutes a Fourth Amendment search). We also note that Ciraolo involved a brief flyover, not an extended period of constant and covert surveillance.

Furthermore, it appears that at least five Justices of the Supreme Court share our concerns about certain types of long-term warrantless surveillance. See United States v. Jones, 132 S. Ct. 945 (2012) (Sotomayor, J., concurring and Alito, J., concurring in the judgment). But Jones involved GPS tracking, and it may be that the privacy concerns implicated by a fixed point of surveillance are not so great as those implicated by GPS tracking. The camera revealed only Bagshaw's activities outside in her yard—a fixed space which was open to public view. It did not "generate[] a precise record of [her] public movements that reflect[ed] a wealth of detail about her familial, political, professional, religious, and sexual associations" like a GPS device would do. See id. at 955 (Sotomayor, J., concurring). Ultimately, since we hold that any possible Fourth Amendment violation here would be harmless, we decline to decide whether long-term video surveillance of curtilage requires a warrant.

A woman lawyer was the target of a home invasion and aggravated attempted rape in 1994 in Nashville. She struggled with the assailant who beat her head, and she bit off a piece of skin on his finger, spitting it under the bed. He left. In 2000, a DNA profile was run on the piece of the finger, and the DHA description was included in a John Doe warrant as a specific identifier. In 2006, the grand jury indicted John Doe. In 2008, a likely fingerprint match was made off the piece of the finger with defendant who had applied for a job at the DOC. Once police had a likely candidate for a suspect, a match on a palm print was made and the police then sought a DNA sample, and that matched the defendant. He was charged, tried, and convicted. A John Doe warrant with a DNA description was sufficiently particular under the Fourth Amendment, and the statute of limitations was properly tolled. State v. Burdick, 395 S.W.3d 120 (Tenn. 2012), aff’g State v. Burdick, 2011 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 2, 2011):

Several jurisdictions have addressed the issue since [Wisconsin] in Dabney [State v. Dabney, 2003 WI App 108, 264 Wis. 2d 843, 663 N.W.2d 366 (2003)], and most have concluded that inclusion or reference to a unique DNA profile in a "John Doe" arrest warrant or indictment sufficiently describes a person to satisfy statutory requirements. In State v. Danley, the Ohio Court of Common Pleas cited Dabney with approval and held that an affidavit of complaint and arrest warrant against "John Doe," which identified the suspect by gender and a DNA profile, was sufficient to commence the criminal action, thereby tolling the statute of limitations. 2006 Ohio 3585, 853 N.E.2d 1224, 1226-28 (Ohio Ct. Com. Pl. 2006). More recently, in People v. Robinson, the California Supreme Court ruled that an arrest warrant that described the suspect only as "John Doe, unknown male" with a unique 13-loci DNA profile adequately identified the defendant under both the Fourth Amendment and California's statutory scheme, thus timely commencing the prosecution. 47 Cal. 4th 1104, 104 Cal. Rptr. 3d 727, 224 P.3d 55, 75-76 (Cal. 2010). Finally, in Dixon, the Massachusetts Supreme Court observed that a DNA profile is more than a description; "it is, metaphorically, an indelible 'bar code' that labels an individual's identity with nearly irrefutable precision." 938 N.E.2d at 885 (citing NRC at 2, 7, 9). Consequently, that court held that a "John Doe" indictment incorporating the suspect's unique DNA profile and additional physical description "unassailably fulfil[led] the constitutional requirement that an indictment provide 'words of description which have particular reference to the person whom the Commonwealth seeks to convict,'" sufficiently identified the defendant, and tolled the statute of limitations. Id. at 885-86.

. . .

We are persuaded that a DNA profile exclusively identifies an accused with nearly irrefutable precision and, as a general rule, satisfies the particularity requirements of the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution. In our view, the "John Doe" designation in the warrant at issue, coupled with the detailed DNA profile of the assailant, identified the Defendant with "reasonable certainty," as is required by both constitution and statute. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7; Tenn. Code Ann. § 40-6-208; Tenn. R. Crim. P. 4(c)(1)(B). As a result, the prosecution was properly and timely commenced within the eight-year statute of limitations by the filing of the "John Doe" arrest warrant on February 2, 2000.

. . .

IV. Conclusion

A criminal prosecution is commenced if, within the statute of limitations for a particular offense, a warrant is issued identifying the defendant by gender and his or her unique DNA profile. Furthermore, a superseding indictment in the defendant's proper name provides the requisite notice of the charge. The judgment of conviction is, therefore, affirmed.

Officers conducted a protective sweep and saw ammunition in plain view. They also had enough to seek a search warrant, and they did, including the reference to the ammunition. There was a misleading paragraph in the affidavit. Excising it and the reference to the ammunition, there was still probable cause for issuance of the search warrant, and the motion to suppress is denied. United States v. Torres, 2012 U.S. Dist. LEXIS 179774 (E.D. Pa. December 19, 2012).*

Defendant’s 2255 claim that his criminal defense lawyer failed to object to the search of the car he was in was vague and conclusory. From the court’s own review of the record, defendant likely lacked standing to challenge the search of the car which was with probable cause based on the testimony at trial. Therefore, the lawyer couldn’t be ineffective. United States v. McIntyre, 2012 U.S. Dist. LEXIS 179957 (D. Kan. December 17, 2012).*

Defense counsel fully argued the Fourth Amendment in the District Court and then appealed it to the Fifth Circuit, so there he is barred from relitigating it by collateral estoppel. Castille v. United States, 2012 U.S. Dist. LEXIS 180871 (W.D. Tex. December 20, 2012).

The search of defendant’s car was justified by the automobile exception with probable cause or the search incident doctrine although the car was moved before the search to the police station. Defendant was stopped on a street, and a crowd had begun to form. It was within the officers’ discretion to move the car for the search for officer safety. United States v. Thompson, 2012 U.S. Dist. LEXIS 179981 (E.D. Pa. December 20, 2012).

Defendant was stopped for not wearing a seatbelt, and the officer took his DL back to the patrol car for a computer check which took eight minutes. By then backup arrived, and the officer got out and asked about drugs. That additional questioning was supported by furtive movements in the car and defendant’s brother being a known gang member. On review by the District Court, the stop was broken down into five parts, and each supported the next and overall was reasonable. United States v. Marin-Sanchez, 2012 U.S. Dist. LEXIS 180226 (E.D. Wis. December 20, 2012), R&R 2012 U.S. Dist. LEXIS 180224 (E.D. Wis. November 27, 2012).*

There is no constitutional requirement that the officer ask for DL before asking about drugs. Defendant here was found to have consented to a search of his vehicle. United States v. Cochrane, 702 F.3d 334 (6th Cir. 2012)*:

To the extent that Defendant objects to the fact that the officers asked for his driver's license and registration only after asking about the presence of contraband, we find no rule that officers must ask questions in a certain order when the totality of the circumstances indicates that the scope and duration of the stop were reasonable. See Everett, 601 F.3d at 493-94 ("[T]he touchstone of any Fourth Amendment analysis is reasonableness."). Under these circumstances, we find that the officer's extraneous questioning did not constitute an unreasonable seizure.

The state could not rely on lack of standing to support admission of the product of the search where it did not raise it at the suppression hearing. State v. Jepson, 2012 Ore. App. LEXIS 1525 (December 19, 2012).*

Defendant was on probation and in custody, and his consent was not coerced even though there were several police officers around. He’d been on probation with this PO before, and he knew that he was subject to home inspection searches as a condition. State v. Brock, 254 Ore. App. 273, 295 P.3d 89 (2012).*

Because “‘[A]ny person of ordinary intelligence, who had a reasonable opportunity to observe a vehicle in motion and judge its speed may testify as to his estimation of the speed of that vehicle.’ State v. Barnhill, ...”, the officer’s testimony, if credited, is enough for a stop. Here, the officer testified defendant was speeding, going in the opposite direction, speed observed for four seconds. State v. Royster, 737 S.E.2d 400 (N.C. App. 2012).*

In another Jones on remand case, the district court held that suppressing the GPS data would not lead to suppression of the police determining that 9509 Potomac Drive was the stash house because they figured that out the day before the GPS was installed on his Jeep. United States v. Jones, 1:05-cr-00386 (D. D.C. December 20, 2012):

5. Here, the Court concludes that defendant has not met his burden of establishing that, “but for the illegal [GPS search], the officers likely would not have discovered [the stash house and the evidence contained therein].” Holmes, 505 F.3d at 1292. To the contrary, on September 26, 2005, a day before the GPS device was even attached to Jones’ car, law enforcement officials had determined that 9508 Potomac Drive was the likely stash house based on: (1) the GPS coordinates from the “ping” to the 678 cell phone; (2) property records confirming that only 9508 and 9509 Potomac Drive were not owner-occupied; and (3) the physical appearance of 9508 Potomac Drive as compared to the other houses on the street. (See supra Findings of Fact ¶¶ 7-13.) They had also initiated the process of installing a stationary camera at 9509 Potomac Drive before they began accessing data from the GPS device. (See supra Findings of Fact ¶¶ 15-17.)

6. The Court further concludes that even if defendant could demonstrate a causal nexus between the GPS data and the location of the stash house, the evidence would be admissible under the inevitable discovery doctrine. After the GPS device was installed on Jones’ Jeep, law enforcement officers continued to obtain information from independent—and lawful—sources that confirmed that 9508 Potomac Drive was in fact the stash house. For example, they continued to monitor the Title III wiretap and on October 4, 2005, they observed Jones and his associate Roel Bermea driving to and from the Potomac Drive area. (See supra Findings of Fact ¶ 19.) They also succeeded in installing a stationary camera at 9509 Potomac Drive and obtained visual confirmation that Jones and Bermea frequented the 9508 address. (See supra Findings of Fact ¶ 20.) Thus, even if the Court were not convinced that law enforcement officers had in fact identified 9508 Potomac Drive as the stash house prior to the installation of the GPS device on defendant’s Jeep, the government has met its burden of showing that, absent the constitutional violation, it would inevitably have confirmed the location of the stash house using entirely lawful.

h/t reader. Also, many of the D.D.C. opinions are available on its website, but this one isn't yet.

Defendant’s failure to object to the officer stating “we’re going to have to take the firearms” was not implicit consent. That was a statement they were taking property. State v. Jepson, 2012 Ore. App. LEXIS 1525 (December 19, 2012).

Defendant’s vehicle was already stopped when the officer came up to it and asked him out. When he got out, the officer saw drugs in plain view. The vehicle was not stopped by the officer, and that did not implicate the Fourth Amendment. Plain view supported the seizure. State v. Morales, 2012 La. App. LEXIS 1668 (La. App. 5 Cir. December 18, 2012).*

Only a judge of a court of record can issue search warrants in Ohio, and the state showed that the judge’s appointment for a three month term by the Chief Justice was regular, so the search warrant was not suppressed. State v. Nurse, 2012 Ohio 6000, 2012 Ohio App. LEXIS 5172 (9th Dist. December 19, 2012).*

While Washington recognizes pretext stops, a mixed motive is not unconstitutional. State v. Arreola, 176 Wn.2d 284, 290 P.3d 983 (2012), rev’g State v. Arreola, 163 Wn. App. 787, 260 P.3d 985 (2011):

¶1 The issue in this case is whether a traffic stop motivated primarily by an uncorroborated tip, but also independently motivated by a reasonable articulable suspicion of a traffic infraction, is unconstitutionally pretextual under article I, section 7 of the Washington State Constitution and State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).

¶2 We hold that a mixed-motive traffic stop is not pretextual so long as the desire to address a suspected traffic infraction (or criminal activity) for which the officer has a reasonable articulable suspicion is an actual, conscious, and independent cause of the traffic stop. So long as a police officer actually, consciously, and independently determines that a traffic stop is reasonably necessary in order to address a suspected traffic infraction, the stop is not pretextual in violation of article I, section 7, despite other motivations for the stop.

Defendant’s argument that the Utah state trooper caused him to commit the traffic violation that led to his stop was rejected. There was still reason for the stop. United States v. McCoy, 2012 U.S. Dist. LEXIS 178936 (D. Utah December 18, 2012).

“Based on these facts, we agree with the district court's conclusion that the officers were in the home for a legitimate law enforcement purpose, and, given the violent nature of the drug cartel, that the officers possessed a reasonable, articulable suspicion that the house posed a danger to them.” United States v. Gutierrez, 2012 U.S. App. LEXIS 25909 (5th Cir. December 19, 2012).*

The search of defendant’s vehicle was valid by inevitable discovery, the court not having to decide probable cause, because the defendant committed felony fleeing attempting to elude the officer, and the vehicle was subject to forfeiture because of a prior heroin find in the vehicle. United States v. Jordan, 2012 U.S. Dist. LEXIS 178972 (D. Kan. December 17, 2012).*

A general consent to search a vehicle for “weapons, drugs, or money” permitted the officers to use tools to take the dashboard apart and find a hidden compartment. It was expected that compartments would be searched, and that had to include hidden compartments. United States v. Locke, 2012 U.S. Dist. LEXIS 179425 (E.D. Wis. October 9, 2012) adopted 2012 U.S. Dist. LEXIS 179420 (E.D. Wis. December 19, 2012):

Here, Trooper Taylor asked Locke whether he had any weapons, drugs, or money in the vehicle, and Locke answered "no." Trooper Taylor specifically asked if he could search Locke's Expedition, and Locke answered "yes." So, Locke was well aware that Trooper Taylor was searching for weapons, drugs, and money. While suspects may limit the scope of their consent, Locke placed no limit on the extent of the search. Thus, a reasonable person in the officer's position would have understood that, by consenting to search the Expedition and all of its contents, Locke agreed to permit a search of any compartments or containers that could contain contraband, including the hidden compartment that was ultimately discovered.

Locke argues, however, that Trooper Taylor's search exceeded the scope of his consent because he used tools to access the hidden compartment. Locke cites no case law to support his argument. Indeed, and quite to the contrary, cases suggest that, in the absence of intentional damage "to the places or things to be searched," using tools to access hidden compartments is not per se unreasonable. See Saucedo, 688 F.3d at 866-67. In Saucedo, the court upheld as reasonable an officer's use of a flashlight and screwdriver to look behind a TV, unscrew the molding, and remove the hidden compartment from an alcove. See id. at 866. Additionally, in United States v. Torres, 32 F.3d 225 (7th Cir. 1994), an officer used a screwdriver to remove six screws that secured the cover of a wooden compartment in a trailer. The court found it to be objectively reasonable for the officer to believe that the scope of consent allowed him to open the compartment in such a manner. Id. at 231-32.

Locke makes no claim that Trooper Taylor, or any other officer on the scene, intentionally damaged the Expedition or any personal property inside. At one point, Locke accused Trooper Taylor of "tearing the truck up." However, it appears Locke's concern stemmed from a general rummaging of contents, as opposed to destruction of the contents in the vehicle. Further, Trooper Taylor assured Locke that the officers would put everything back the way it was. ...

NYLJ.com: Ruling Revives Claims Against City Over Stop-and-Frisk Data by John Caher:

Information gleaned from stop-and-frisk targets must be sealed and cannot be used for subsequent police investigations, an appellate panel has held while finding that individuals whose information was disclosed or utilized have a private right of action against New York City.

In an opinion addressing the ongoing debate over the New York City Police Department's stop-and-frisk policies, a unanimous panel of the Appellate Division, First Department, yesterday reversed a trial court and delivered a victory to civil rights activists who have criticized and legally challenged police procedures.

The panel in an unsigned opinion flatly rejected the city's position and, significantly, held that targets need not await a "readily apparent prospective injury" before seeking relief under a state privacy law.

NYT: Suit on Police Stops Is Reinstated by Joseph Goldstein:

In a further blow to the Police Department’s database of stop-and-frisk interactions, a state appellate court on Thursday reinstated a lawsuit challenging the police’s authority to retain information about people who were arrested after a street stop, but later cleared of criminal charges.

The Missouri Highway Patrol followed defendant from Kansas City MO to Kansas City KS, and their actions in Kansas allegedly in violation of Kansas law are not pertinent to the Fourth Amendment reasonableness inquiry. “In sum, for all of the foregoing reasons, we reject Mr. Jones's argument that the Missouri officers' seizure of him in Kansas effected a Fourth Amendment violation simply because they were acting outside of their jurisdiction and without authority under Kansas law.” United States v. Jones, 701 F.3d 1300 (10th Cir. 2012):

It is "well established in this circuit that in federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers." United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999) (emphasis added) (quoting United States v. Le, 173 F.3d 1258, 1264 (10th Cir. 1999)) (internal quotation marks omitted); ...; see also Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (holding that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections"); California v. Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) ("We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs."); ... More specifically, "officers' violation of state law is not, without more, necessarily a federal constitutional violation." United States v. Mikulski, 317 F.3d 1228, 1232 (10th Cir. 2003); accord Pasiewicz v. Lake Cnty. Forest Pres. Dist., 270 F.3d 520, 526 (7th Cir. 2001) ("A violation of a state statute is not a per se violation of the federal Constitution. The federal government is not the enforcer of state law."); .... Accordingly, Mr. Jones's argument that the Missouri officers' actions effected a Fourth Amendment violation simply because they were acting outside of their jurisdiction and without authority under Kansas law is mistaken.

. . .

While "compliance with state law may be relevant to our Fourth Amendment reasonableness analysis" in some circumstances, "we have never held it to be determinative of the constitutionality of police conduct." Gonzales, 535 F.3d at 1182; see Sawyer, 441 F.3d at 899 ("State law is not determinative of the federal question, but rather may or may not be relevant to the determination of the federal question."). In Gonzales, we explained that "compliance with state law is 'highly determinative' only when the constitutional test requires an examination of the relevant state law or interests." 535 F.3d at 1182 (quoting Sawyer, 441 F.3d at 896-97). No such examination was required in Gonzales:

[W]e need not examine state law or interests. The federal test for determining the validity of a traffic stop simply requires us to determine whether a traffic violation has occurred .... It does not require an examination of a state's law or interests, but focuses instead on whether the stop was reasonable under the circumstances.

Id. at 1183 (citation omitted). We do not perceive such an examination of state-law interests to be required here either. The Missouri officers' encounter with Mr. Jones principally implicates federal legal standards related to the reasonableness of a Fourth Amendment seizure and, at least under the circumstances of this case, we see no need to assess state-law interests.

Written 12/20, and set to post at 6:11 am EST, 11:11 UTC, the time the "world is supposed to end."

The search of defendant’s backpack was because the officer was “curious” because of its weight and not because of any concern about it. Therefore, the search of the backpack was not justified under the community caretaking exception. “The record lacks evidence that gives rise to an objectively reasonable belief that Officer Lancaster's searching appellant's backpack was necessary to protect the backpack or its contents from theft or damage; to protect Deputy Hayes or Officer Lancaster from appellant's claims of stolen property; or to protect the police or public from danger.” Knight v. Commonwealth, 61 Va. App. 297, 734 S.E.2d 716 (2012).

Defendant’s search incident was justified because officers had information that he was armed, and he fled from the police in the hallway of an apartment building under circumstances that justifies the inference that he had hidden evidence. State v. Sanders, 2013 WI App 4, 345 Wis. 2d 754, 826 N.W.2d 394 (2012).*

Defendant was driving 13 mph below the speed limit in the left lane, but there was nothing that showed why, like that cars in front of him may be going too slow. Therefore, the trial court abused its discretion in crediting this finding. Delafuente v. State, 389 S.W.3d 616 (Tex. App. – Houston (14th Dist.) 2012).*

The officer had reasonable suspicion because of the owner not being present with the car, the occupants were inconsistent in describing their travel plans, they were nervous, and they had multiple types of air fresheners. “[E]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Caban, 2012 PA Super 278, 60 A.3d 120 (2012).*

The CI here was named and was the next door neighbor relating observations and what he heard from occupants of the house, and that was enough to give the officers probable cause for a search warrant for marijuana plants in the basement. Yet, the officer had PC without the information from the CI, so that is academic. Here, defendant was verified to be a medical marijuana cardholder, and he consented to the search of his basement and showed the officers around. State v. Deshaw, 2012 MT 284, 367 Mont. 218, 291 P.3d 561 (2012).*

The stop was reasonable in duration, and the passenger has standing to challenge the length of the stop. Since it was reasonable, he lacks standing to challenge the search of the car. State v. Franklin, __ N.C. App. __, 736 S.E.2d 218 (2012).*

A lost and final suppression motion is collateral estoppel to the basis for the seizure in a forfeiture. Three Hundred Eighty-Nine Thousand Nine Hundred Five & No/100 Dollars v. State, No. 04-11-00666-CV, 2012 Tex. App. LEXIS 10453 (Tex. App. – San Antonio December 19, 2012).

EFF: Newly Released Drone Records Reveal Extensive Military Flights in US:

View EFF's new Map of Domestic Drone Authorizations in a larger window.

Today [12/5] EFF posted several thousand pages of new drone license records and a new map that tracks the location of drone flights across the United States.

These records, received as a result of EFF’s Freedom of Information Act (FOIA) lawsuit against the Federal Aviation Administration (FAA), come from state and local law enforcement agencies, universities and—for the first time—three branches of the U.S. military: the Air Force, Marine Corps, and DARPA (Defense Advanced Research Projects Agency).

For the one in Arkansas, I copied this:

Governmental Body/Entity: North Little Rock Police Dept

Type of Drone: Rotomotion SR30 UAS helicopter

Status: Active

General Location of Drone Activity: Little Rock, AR

Stated objective/purpose of COA: Operation of the Rotomotion SR30 UAS helicopter in the National Airspace System over unpopulated areas of Lonoke County, Arkansas. The objective is to gather data regarding operation of UAS helicopters in the National Airspace System for future UAS helicopter operations in support of local law enforcement. Operation of the Rotomotion SR30 UAS helicopter below 400' AGL. All flight operations will be conducted south of Interstate 40. This is an unpopulated area of a company owned park consisting of parking areas and recreational areas. The operation will launch/recover from a fenced recreational area. Operations will be conducted only when the recreational areas are not in use. Flights will be conducted during daylight hours during optimal weather conditions. Flights will be limited to line of sight distances. Flight durations will not exceed sixty minutes in length. Flight crews will demonstrate flight planning, flight plan execution, change in flight path upon command by the observer to avoid simulated aircraft traffic, and recovery of the aircraft to the planned landing point. Emergency proceedures including manual control of the aircraft, recovery to a pre-planned emergency recovery point, and loss link proceedures will also be demonstrated.

Effective Dates: May 17, 2011-May 16, 2012 (COAs from 2008-2012)

Comments: "The Rotomotion SR30 is a small, economical, short endurance UA. Utilizing a helicopter platform, the SR30 houses one or two cameras in a pan/tilt camera mount. The system is designed to track objects of interest even when the helicopter nose is pointed away from the object. The SR30 can carry day zoom cameras, infrared cameras, or both simultaneously. As purchased, the aircraft is equipped with both day and infrared cameras. The aircraft is capable of fully autonomous flight with auto-takeoff and landing. Manual control is provided by a 2.4 GHz safety controller." ("North-Little-Rock-PD-2011_AIRCRAFT_SYSTEM.DOC")

Stop was without justification; how could officer tell occupants of a car were nervous along side of them? This is no more than an "unparticularized suspicion or hunch." State v. Canty, __ N.C. App. __, 736 S.E.2d 532 (2012).*

Based on the testimony at the suppression hearing, a handyman had been given apparent authority to consent to an entry so that the police could enter on a knock-and-talk. Defendant then consented to a search. Briggs v. State, 2012 Ark. App. 692, 2012 Ark. App. LEXIS 812 (December 12, 2012).*

The officer stopping defendant’s car saw marijuana seeds and stems and a cut open cigar. He asked if there was more and it was produced. This was probable cause for a more intensive search under the automobile exception. State v. Carmichael, 2012 Ohio 5923, 2012 Ohio App. LEXIS 5103 (9th Dist. December 17, 2012).*

Defendant’s consent was found valid on the totality, and factor to consider is that the defendant is not a “newcomer to the law.” State v. Smith, 2012 Ohio 5962, 2012 Ohio App. LEXIS 5112 (12th Dist. December 17, 2012).*

Defendant’s stop for reckless driving was justified on the facts, so his identity as an illegal is not suppressed. United States v. Rosas-Herrera, 2012 U.S. App. LEXIS 25593 (4th Cir. December 13, 2012).*

There was probable cause on the totality for the seizure of cash from the front seat of defendant’s car. He was on a known drug corridor driving a rental car he was not authorized to drive, with a prior drug conviction, going to a town where he had no address to meet somebody. United States v. Julian, 2012 U.S. App. LEXIS 25356 (11th Cir. December 12, 2012).*

Aside from other crimes, a NOPD officer’s burning a dead man’s car to cover up murder during the aftermath of Katrina was a civil rights violation, too. United States v. McRae, 702 F.3d 806 (5th Cir. 2012):

This case tells one of the nightmarish stories that arose from Hurricane Katrina in 2005—the physical devastation, human diaspora, and struggle of the City to maintain some semblance of law and order, and, in the chaos, a horrific failure of law enforcement. The case also demonstrates again the axiom that a cover-up, with its domino effect, begets more tragedy than the crime. It indeed presents a grim vignette within the larger Katrina story, told here in terms of legal consequences.

The three appellant former policemen were convicted in the same trial—conducted from November 8 to December 9, 2010—largely on separate facts but all arising from the death of one citizen, Henry Glover. Thus, this opinion will set out the facts and the issues raised on appeal in three separate parts.

. . .

Importantly, the second superseding indictment charged McRae with seizing Tanner's car by burning it. McRae contends that he cannot have seized the car by burning it because the car had already been seized at that point: the car had been moved twice on the school property, and driven away from the school before it was burned. He argues that Tanner's possessory interest in the car had therefore already suffered meaningful interference. The government responds that the burning was merely the culmination of a course of conduct, all of which constitutes an unreasonable seizure. [This is reviewed for plain error.]

Although McRae's position is eminently logical, we do not think that the district court, in entering judgment based on this conviction, committed any error that is beyond reasonable dispute. Assuming that it is error to regard the burning of the car as a seizure, the error is not plain because the law neither clearly nor obviously limits the meaning of seizure to the initial moment of dispossession.

McRae correctly observes that some circuits, with respect to the seizure of property, limit the meaning of seizure to initial dispossession. See Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999); United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992). But at least one other circuit defines the seizure of property more broadly, to include a course of conduct that interferes with possessory interests. See Presley v. City of Charlottesville, 464 F.3d 480, 487-89 (4th Cir. 2006). McRae does not point to any precedent in this circuit staking a position in this split, and we are not aware of any. "Because this circuit's law remains unsettled and the other federal circuits have reached divergent conclusions on this issue . . . [McRae] cannot satisfy the second prong of the plain error test—that the error be clear under existing law." United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007).

With respect to seizures of the person, rather than property, the law is equally unclear, and the lack of clarity further undermines a contention of plain error in this case. We know that seizures of the person do not end at the initial moment of seizure. See Graham v. Connor, 490 U.S. 386, 394-96, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). How long the seizure of the person goes on, however, is not defined with precision in our circuit, and it is a question that divides other circuits. See Brothers v. Klevenhagen, 28 F.3d 452, 455-57 (5th Cir. 1994); Valencia v. Wiggins, 981 F.2d 1440, 1443-44 (5th Cir. 1993). The imprecision in describing the temporal quality of seizure in the context of seizures of the person discredits any argument that it is clear or obvious that a seizure is over at the moment of initial dispossession in this context—that is, seizure of property.

[Because of plain error review:] We hold that it is neither clear nor obvious that McRae's burning of Tanner's car could not constitute an unreasonable seizure under the Fourth Amendment, and we therefore affirm his conviction under count four of the second superseding indictment.

Even a mistake of law can be reasonable without violating the Fourth Amendment, following United States v. Martin, 411 F.3d 998 (8th Cir. 2005). State v. Heien, 2012 N.C. LEXIS 1003 (December 14, 2012):

We find the Eighth Circuit's reasoning to be more compelling. To begin, that rationale seems to us, as it did to the Eighth Circuit, to be consistent with the primary command of the Fourth Amendment—that law enforcement agents act reasonably. See Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979) (noting that the purpose of the Fourth Amendment "is to impose a standard of reasonableness upon the exercise of discretion by government officials, including law enforcement agents, in order to safeguard the privacy and security of individuals against arbitrary invasions" (footnote call number, citations, and internal quotation marks omitted)). An officer may make a mistake, including a mistake of law, yet still act reasonably under the circumstances. As stated above, when an officer acts reasonably under the circumstances, he is not violating the Fourth Amendment. So long as the officer's mistake of law is objectively reasonable, then, the Fourth Amendment would seem not to be violated. Accordingly, requiring an officer to be more than reasonable, mandating that he be perfect, would impose a greater burden than that required under the Fourth Amendment.

PoliceOne:com: Video: Women file suit over 'painful' roadside cavity search | Officers stated the women were acting strange and suspected marijuana was involved by Eric Nicholson, The Dallas Observer

DALLAS, Texas — On July 13, Angel Dobbs was driving her boyfriend's car north down the George Bush Turnpike when they were pulled over by state troopers. The troopers said they had spotted Dobbs throw a cigarette butt out the window.

According to a lawsuit filed by the Dobbs yesterday in federal court, the traffic stop soon took a different turn. One of the troopers, David Ferrell, took Angel Dobbs to a roadside field, where he peppered her with questions that quickly transitioned from general queries about where the pair was headed and to more pointed questions about whether they were transporting marijuana. He did the same with Ashley Dobbs. Both denied having any weed.

. . .

According to the lawsuit, Hellson's gloved hands went inside Dobbs' sweatpants and probed both front and back. Dobbs suffers from a skin condition called hidradenitis suppurativa that made the whole thing particularly painful. Without changing her gloves, Hellson performed an identical search on Ashley Dobbs, the suit claims.

When Angel Dobbs told Farrell she felt violated by the search, which had happened on a public roadway in full view of passersby, he told her it was justified by the odor of marijuana, which made it clear that "someone is a daily smoker in that car," according to the suit.

I filed a suit like this about 20 years ago in Arkansas involving a male strip searched on the side of a U.S. highway. The answer was a reasonable offer of judgment.

During a traffic or pedestrian stop, an officer in New York must have reasonable suspicion to ask about whether a weapon is possessed. Officers already have the power to order occupants out of a car. People v. Garcia, 2012 NY Slip Op 08670, 20 N.Y.3d 317, 983 N.E.2d 259, 959 N.Y.S.2d 464 (2012):

... Moreover, the rule of Mimms and Robinson already guards against the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements. Indeed, Mimms and Robinson place automobile occupants in the same position as pedestrians vis-à-vis police officers; the People's proposed rule, on the other hand, would create disparate degrees of constitutional protections based on an individual's mode of transport. Finally, by sanctioning, in the interest of safety, a suspicionless inquiry into whether the ocupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.

See Court Limits Questioning of Motorists by the Police in the NYT.

The police made a warrantless entry based on speculation of exigency. Their knowledge of actions in the home showed nothing out of the ordinary, too. State v. Tate, 2012 Tenn. Crim. App. LEXIS 1035 (December 17, 2012).

“Upon consideration of all which, the undersigned finds that from a totality of the evidence presented to Magistrate Elbon, there was ‘a fair probability that contraband or evidence of a crime’ would be found in the residence and attached building.” Accordingly, the SW affidavit was not so lacking that the good faith exception did not apply. United States v. Collins, 2012 U.S. Dist. LEXIS 178068 (N.D. W.Va. December 17, 2012).*

The occupants were suspected of being involved in a robbery from information from a CI. Their stop was for a loud exhaust, and the occupants had differing explanations of where they were going, they were nervous, and one had a knife. One was a convicted felon, and that was probable cause to search the glove compartment for a weapon. United States v. Hendrickson, 2012 U.S. Dist. LEXIS 178167 (D. Vt. December 17, 2012).*

The judicial officer issuing a computer search warrant can impose preconditions ("ex ante conditions") like in CDT on execution. Here, the conditions are upheld except for the state’s ability to discover things by a valid plain view which is a question of law that should not be abrogated by the warrant. In re Appeal of Application for Search Warrant, 2012 VT 102, 2012 Vt. LEXIS 100 (December 14, 2012):

[*P1] In this complaint for extraordinary relief, we are asked to determine whether a judicial officer has discretion to attach ex ante or prospective conditions to a search warrant. The State petitions this Court to strike ten such conditions pertaining to the search of a personal computer, seized by police as part of an identity theft investigation. The State contends that the conditions exceed the judicial officer's authority under the Fourth Amendment and unnecessarily impede law enforcement's ability to investigate crime. Two amici have filed briefs in opposition to the State's petition, and they argue that the conditions are a valid exercise of the judicial officer's authority and are necessary to protect personal privacy. We grant the petition in part and strike the condition abrogating the plain view doctrine. Because we conclude that the remaining conditions serve legitimate privacy interests, the petition is otherwise denied.

. . .

[*P7] The judicial officer reviewing the request granted a warrant to search the residence and to seize electronic devices to be searched at an off-site facility for as long as reasonably necessary. In a separate order, however, the judicial officer stated only that “[t]he application to search the computer belonging to Eric Gulfield is granted,” and attached conditions: (1) restricting the police from relying on the plain view doctrine to seize any incriminatory electronic record not authorized by the warrant — that is, “any digital evidence relating to criminal matters other than identity theft offenses”; (2) requiring third parties or specially trained computer personnel to conduct the search behind a “firewall” and provide to State investigatory agents only “digital evidence relating to identity theft offenses”2; (3) requiring digital evidence relating to the offenses to be segregated and redacted from surrounding non-evidentiary data before being delivered to the case investigators, “no matter how intermingled it is”; (4) precluding State police personnel who are involved in conducting the search under condition (2) from disclosing their work to prosecutors or investigators; (5) limiting the search protocol to methods designed to uncover only information for which the State has probable cause; (6) precluding the use of specialized “hashing tools” and “similar search tools” without specific authorization of the court; (7) allowing only evidence “relevant to the targeted alleged activities” to be copied to provide to State agents; (8) requiring the State to return “non-responsive data” and to inform the court of this action; (9) directing police to destroy remaining copies of electronic data absent judicial authorization otherwise; and (10) requiring the State to file a return within the time limit of the warrant to indicate precisely what data was obtained, returned, and destroyed.

. . .

[*P15] While the State has argued briefly that Article 11 creates no greater power to issue ex ante instructions as part of the constitutional mandate, and the Defender General argues to the contrary urging us to ground our decision on the Vermont Constitution, this case is fundamentally about the reach of the Fourth Amendment. The judicial officer relied upon Fourth Amendment decisions in imposing the instructions, and the parties have relied upon Fourth Amendment decisions in their arguments to this Court. In part, this is because there are no state constitution precedents. To be sure, we have noted on many occasions that Article 11 “may offer protections beyond those provided by the Fourth Amendment,” State v. Roberts, 160 Vt. 385, 392, 631 A.2d 835, 840 (1993), and this case could involve a variation of this principle. Our first impression, however, is that this case is less about the scope of protections of a constitutional provision and more about the tools available to ensure that protection occurs. Thus, any holding we might ultimately make concerning the scope of Article 11 with respect to ex ante instructions will be based on a new analysis of the protections of that Article. In view of our disposition of the case under the Fourth Amendment, we decline to engage in such an analysis in this case.

[*P16] Nor do we rest our decision on Vermont non-constitutional law. While the State argued that Vermont law does not authorize a judicial officer to impose ex ante instructions, it addressed only Vermont Rule of Criminal Procedure 41. It argued that this criminal procedure rule does not authorize the magistrate to issue instructions on how the search shall be conducted. Although Rule 41 is relevant, neither it, nor the federal rule on which it is based, purport to completely define the scope of judicial power with respect to search warrants. Thus, we are not persuaded on this limited record that Vermont law supports the State's argument and do not consider it further.

. . .

[*P18] We now proceed to the main question before us — whether a judicial officer issuing a warrant has the authority to place ex ante instructions on how a search may be conducted. We have stated the question broadly because the State has challenged the authority of the judicial officer to impose any ex ante instructions, not particularly those in this case. We also emphasize that the general question is one of authority, and not responsibility. No party or amicus is directly claiming that ex ante instructions are ever required, and we certainly do not hold so here.

. . .

[*P20] In creating the instructions, the issuing judicial officer explicitly relied on United States v. Comprehensive Drug Testing, Inc. (CDT I), 579 F.3d 989 (9th Cir. 2009) (en banc). ...

. . .

[*P25] The permissibility of imposing the ex ante instructions on computer searches is a relatively novel question for courts generally. What tools are at the disposal of judicial officers in confronting the challenges presented by searches of electronic media is a real and important question. As one court succinctly put it: “Computers are simultaneously file cabinets (with millions of files) and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes. The former must be protected, the latter discovered.” United States v. Adjani, 452 F.3d 1140, 1152 (9th Cir. 2006). We are not called upon to decide today how these conflicting goals are best satisfied. Our question is not whether the judicial officer's attempt to reconcile these objectives was recommendable, much less required. Our question is simply whether this attempt was such a clear abuse of authority as to merit our prohibition in the context of this petition for extraordinary relief.

. . .

[*P26] In this light, we reject the State's invitation to hold that all ex ante restrictions on the execution of a search warrant are universally of no effect in defining the constitutional requirement. Although the historical record is sparse at this point, we see no bright line that allows some conditions, but not ones that specify how law enforcement officials must conduct their search. Indeed, the evidence from Vermont suggests that such ex ante instructions have been used in the past. See discussion supra note 8.

[*P27] We conclude that ex ante instructions are sometimes acceptable mechanisms for ensuring the particularity of a search. According to Professor Kerr's argument, which the State would have us adopt, a judicial officer's only concern ex ante should be with probable cause and particularity, not reasonableness. Kerr, supra, at 1290-91 (“[E]x ante assessment of probable cause and particularity serves a different function than ex ante assessment of how a search should be executed.”). Accepting arguendo that such a bright dividing line exists, ex ante instructions may be a way to ensure particularity. Even in traditional contexts, a judicial officer may restrict a search to only a portion of what was requested — a room rather than an entire house, or boxes with certain labels rather than an entire warehouse. In other words, some ex ante constraints — of the form “here, not there” — are perfectly acceptable. Warrant applications describing the proposed scope of a search are not submitted to the court on a take it or leave it basis.

The fact the defendant only shared his child pornography with "friends" on the GigaTribe peer-to-peer network does not create a reasonable expectation of privacy. After all, he never otherwise communicated with the officer he was chatting with who requested child porn that he sent. United States v. Brooks, 2012 U.S. Dist. LEXIS 178453 (E.D. N.Y. December 17, 2012)*:

Brooks contends that he "maintained a reasonable expectation of privacy" in his GigaTribe files because the peer-to-peer network was open only to "friends." (Def. Br. (Doc. No. 23-5) at 12.) Even accepting that proposition as true, the Supreme Court has "consistently [ ] held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith v. Maryland, 442 U.S. 735, 743-44 (1979). In applying this principle to emerging internet technologies, courts have uniformly held that a user of a private or "closed" peer-to-peer network such as GigaTribe who makes available files to his "friends" does not have an objectively reasonable expectation of privacy in those files he shared. See United States v. Soderholm, 11-cr-3050, 2011 WL 5444053, at *7 (D. Neb. Nov. 9, 2011) (holding that the "defendant did not have an objectively reasonable expectation of privacy in the files stored on his computer once he designated those files for sharing with the 'friends' on his private network"); United States v. Sawyer, 786 F. Supp. 2d 1352, 1356 (N.D. Ohio 2011) (holding that the "[d]efendant did not have an objectively reasonable expectation of privacy in the information that he shared over GigaTribe"); United States v. Ladeau, 09-cr-40021, 2010 WL 1427523, at *5 (D. Mass. Apr. 7, 2010) (holding that once the defendant "turned over the information about how to access the network to a third party, his expectation of privacy in the network became objectively unreasonable"). This Court joins in so holding, and finds that once Brooks accepted the undercover agent as a "friend" and designated as shared certain files to which the undercover could gain access, Brooks had no legitimate expectation of privacy in those shared files.

Defendant leased the property and he and his live-in girlfriend got in a serious argument and he kicked her out, pulling her clothes out of the closets. He tried getting her keys from her and that led to an assault charge when they fought over the keys. Defendant adequately revoked his apparent authority to her for her otherwise having an ability to consent. The police were aware of enough of these circumstances to have to inquire further and didn’t. Therefore, she lacked apparent authority. United States v. Jackson, 2012 U.S. Dist. LEXIS 178066 (E.D. Wis. December 17, 2012):

... Thus, before they commenced their search, the police knew that defendant had ordered King out and that she possessed a key only because she had fought off defendant's effort to retrieve it. These facts do not suggest that King was authorized to consent to a search of defendant's home.

The officers were also aware of other facts raising red flags. When Knight called King to ask her to look for the gun, she was not at defendant's home. Nor did she find the gun. Likewise, when Johnson called King to set up a search, King was not at the residence. And when Johnson met King she did not come from inside the house; rather, she, Jamauri and Presha arrived in a car suggesting that the three of them were residing elsewhere. Cf. Ryerson, 545 F.3d at 485 (finding actual and apparent authority when the defendant's girlfriend left their daughter and her belongings behind after she left). Further, the officers found boxes and bags on the porch and virtually nothing in the living room, indicating that someone had or was moving out.

Finally, it is important to note what the police did not know at the time King consented: they did not know how long King had lived at the residence, whether she was a co-owner or co-lessee, whether she paid any portion of the rent, or whether she performed any household chores. And they didn't ask. Nor did they check King's driver's license or mailing address. Despite the many signs that King no longer lived at the residence, the police made no serious inquiry into her authority. Had they made such an inquiry, they would have discovered that defendant was the sole lessee and that he had a right to revoke her shared authority over the premises. King said nothing suggesting the contrary.

. . .

In the present case, conversely, the officers asked only if King lived at the residence. Despite the red flags raised by the circumstances leading to defendant's arrest and the officers' own observations, they asked King nothing about her connection to the premises. Nor did they conduct any independent investigation such as, for example, contacting the landlord or checking utility records. It is also worth noting that no exigency required the police to proceed as they did. The police could easily have obtained a warrant to search the house as they did for the Jeep parked outside. Cf. Ladell, 127 F.3d at 624 (noting that the officers obtained consent during an ongoing domestic violence incident in which the defendant's sister and mother feared he would shoot someone). In sum, the government fails to meet its burden of showing by a preponderance of evidence that the facts were such that a person of reasonable caution would believe that King had authority to consent to a search of defendant's residence.

The government put a pole camera on a pole on defendant’s property but the pole was on an easement belonging to the utility company, and this was not a Jones trespass. United States v. Nowka, 2012 U.S. Dist. LEXIS 178025 (N.D. Ala. December 17, 2012)*:

The 50-foot right-of-way was dedicated, without restriction or reservation, to the public. Thus, although the use of the utility pole for surveillance purposes, as opposed to for the provision of utilities, is a change in kind that might support a theory of trespass if the dedication had been only for utilities, those simply are not the facts of this case. As the utility pole was on a publicly-dedicated space, and as the use of the pole was not shown to have been subject to any restriction, Nowka has failed to show any constitutional violation under his trespass theory.

Officers knew that a drug deal was going down with a guy named “D” in the vehicle. They didn’t need a name to have probable cause. United States v. Williams, 2012 U.S. Dist. LEXIS 177894 (D. Vt. December 17, 2012).*

Defendant was questioned for having sex with a developmentally disabled teenager who could not talk. The officer noticed dried blood on his hands, and swabbed it with distilled water. It proved to be the victim’s. The taking of the blood sample was reasonable under Cupp v. Murphy. Dardy v. State, 2012 Ala. Crim. App. LEXIS 110 (December 14, 2012):

These facts provided probable cause to believe that the blood on Dardy's hands was evidence of a crime. Because Dardy could have easily attempted to destroy the evidence by wiping it off or by putting his fingers in his mouth, exigent circumstances existed from "the ready destructibility of the evidence." Cupp, 412 U.S. at 296. Thus, the warrantless search was justified under the probable-cause-coupled-with-exigent-circumstances exception.

Furtive movements plus a lone bullet on the seat when defendant got out justified a Long frisk of the vehicle. State v. Craig, 2012 Ala. Crim. App. LEXIS 114 (December 14, 2012).

A bag of crack was in plain view on the floorboard when defendant was stopped. State v. Moore, 2012 Ala. Crim. App. LEXIS 118 (December 14, 2012).*

Paragould.com: Armed task force to patrol streets / Police chief says citizens could be subject to ID checks by Ryan Saylor:

In response to a recent increase in crime, Paragould Mayor Mike Gaskill and Police Chief Todd Stovall offered residents at a town hall meeting Thursday night at West View Baptist Church what could be considered an extreme solution — armed officers patrolling the streets on foot.

Stovall told the group of almost 40 residents that beginning in 2013, the department would deploy a new street crimes unit to high crime areas on foot to take back the streets.

"[Police are] going to be in SWAT gear and have AR-15s around their neck," Stovall said. "If you're out walking, we're going to stop you, ask why you're out walking, check for your ID."

Stovall said while some people may be offended by the actions of his department, they should not be.

"We're going to do it to everybody," he said. "Criminals don't like being talked to."

The police chief is a fool who is obviously so untrained in the Fourth Amendment he has no qualified immunity. See Malley v. Briggs, 475 U.S. 335, 341 (1986): "As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law."

See also ArkansasTimes Blog late Tuesday.

Update: Clarification from the Paragould P.D.

In the Duke lacrosse case, on the Fourth Amendment malicious prosecution issue, police officers who told the prosecutor that the case was weak and presented him what exculpatory evidence they had were entitled to qualified immunity. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012):

=> Read more!

Search warrant for e-mail was overbroad because non-searchable information was subject to search, too. Nevertheless, it was done in good faith so there is no suppression. United States v. Roy, 2012 U.S. Dist. LEXIS 177674 (C.D. Cal. December 13, 2012):

Defendant also moves to suppress the e-mail search warrant in this case, arguing that the search and seizure was unreasonable because the warrant was a general warrant and overbroad in scope. Few cases in the Ninth Circuit or elsewhere have addressed the standard of particularity that should be applied with respect to an e-mail search warrant. The cases that have addressed the issue, however, have held that the burden remains on the government to prove how the warrant application will segregate information regarding third parties from information relating to the defendant.

In this case, the Court holds that the government has not met its burden of setting forth the items to be seized with particularity. The information sought by the warrant lacks protocol that would affirmatively segregate the target information from information outside the scope of the warrant. The warrant is therefore overbroad.

The inquiry does not end there, however. Where the police did not act in bad faith, and as such, suppression of the evidence would not deter police misconduct, the district court, may, in its discretion, admit the evidence over the objection of the defendant. Illinois v. Gates, 462 U.S. 213 (1983). In fact, exclusion of the evidence is a last resort. Hudson v. Michigan, 547 U.S. 586 (2006).

In this case, the court finds that exclusion of the evidence would not be warranted. The seizure was reasonably conducted, and the evidence of criminal activity was properly seized. In executing the warrant, the investigating agents aptly followed the contours of the warrant. Consequently, the underlying justification for the exclusionary rule would not be served by excluding the e-mails, and accordingly, the Court denies defendant's motion to suppress.

Defendant was stopped at a driver’s license check roadblock which found him DWI, and he was indicted as an habitual DWI offender. The state proved a compelling state interest in setting up this DL roadblock because nearly 14% of all fatal crashes in the state involved drivers with no valid DL. State v. Monk, 2012 Tenn. Crim. App. LEXIS 1022 (December 12, 2012):

The Hicks Court held that the "presence of a sufficiently compelling interest is necessary under Article I, section 7 before an examination of the other aspects of a roadblock may proceed." Hicks, 55 S.W.3d at 527. As we earlier noted, the State may not merely rely on its general interest in maintaining highway safety. Id. at 530. It must produce "some proof of the need to curb a substantial and imminent threat to the safety of motorists on public roads distinctly resulting from the conduct of unlicensed drivers."

The State provided statistics indicating that 13.9% of all fatal crashes statewide in 2008 involved drivers with revoked licenses, suspended licenses, or no license. Additional statistics revealed that 25.8% of the drivers involved in accidents between 2005 and 2009 in Sullivan County were charged with driver's license related charges. The Defendant complains that the State did not break down the charges to categories indicating if the driver was cited for driving on a revoked license, driving on a suspended license, or, as is the case here, driving after being declared a Habitual Motor Vehicle Offender. We do not think this distinction undermines the proof that approximately one fourth of the accidents in Sullivan County involved unlicensed drivers. The State has provided statistics in support of its contention that the roadblock is related to maintaining highway safety. These statistics provide individualized suspicion and support the conclusion that unlicensed drivers are an imminent threat to the safety of motorists on the public roads in Tennessee and, specifically, in Sullivan County. We conclude that the record does not preponderate against the trial court's finding that the State demonstrated a sufficiently grave public concern.

NPR: Teenager's Faith At Odds With Locator Tags In School IDs by Wade Goodwyn:

A federal court in Texas on Monday will take up the case of a high-school student who refuses to wear her location-tracking school ID.

The 15-year-old sophomore says the ID badge, which has an embedded radio frequency identification tag, is a violation of her rights. The student, Andrea Hernandez, believes the ID is "the mark of the beast" from the Book of Revelation.

ABAJ: Kagan Sees Privacy as One of Most Important Future Issues for Court by Debra Cassens Weiss:

Justice Elena Kagan highlighted a future important issue for the U.S. Supreme Court and reflected on a past high-profile remark in a speech on Thursday evening.

Kagan said privacy in a changing world is a big issue likely to come before the court, Politico reports. She spoke in a question and answer session at a Washington, D.C., synagogue.

Kagan said former Justice Louis Brandeis was aware of the importance of the issue, according to the Politico account. He “understood how new technologies interfere with privacy, which I think will be one of the most important issues before the court in the decades to come,” Kagan said.

The juvenile was with three others three minutes before curfew walking in the middle of the street. The officer told them to come over toward the police car so he could tell them to walk on the sidewalk, and he was also curious about where they lived since curfew was in minutes. The juvenile tugged at his pants like a gun was weighing them down, in the officer’s experience. That justified a patdown for the weapon that was found. State in the Interest of T.H., 2012 La. App. LEXIS 1645 (La.App. 4 Cir. December 12, 2012).

“Here, the officers did no more than they were authorized to do by Terry. The approach of the defendant, on a public street, by officers who wore no uniforms and therefore identified themselves by displaying their badges, and who neither displayed any weapons nor engaged in hostile or aggressive actions towards the defendant, did not impinge upon any constitutionally protected interest of the defendant.” Commonwealth v. Damelio, 83 Mass. App. Ct. 32 (December 14, 2012).*

Defendant was stopped for a traffic offense, and the officer asked for his DL and papers. Sitting on the seat next to the driver was a crumpled brown paper bag. The officer asked for the bag, and in it was cocaine. The turning over the bag was by consent, not a response to a command. State v. Milton, 104 So. 3d 414 (La. 2012).*

Defendant was stopped coming out of an apartment building because he was the same race as a man wanted in an arrest warrant who was thought to be there. Defendant refused to give his name. Parole officers came to the scene and recognized defendant, not as the man wanted, but as a PV. He was searched and drugs were found. The stop of the defendant was for merely being the same race as a wanted man, with no other sign of criminality. Under the Brown v. Illinois attenuation factors, this was not attenuated. Applying the exclusionary rule is necessary to protect privacy of the people. The search incident to the PV warrant is suppressed. State v. Shaw, 2012 N.J. LEXIS 1263 (December 13, 2012):

Although the exclusionary rule "may vindicate the Fourth Amendment rights of a particular defendant, and more generally the privacy rights of all persons," it also may "depriv[e] the jury or judge of reliable evidence that may point the way to the truth." Id. [State v. Williams, 192 N.J. 1, 16, 926 A.2d 340 (2007)] at 14-15, 926 A.2d 340 (citations omitted). Because of the high price exacted by suppressing evidence, "the exclusionary rule is applied to those circumstances where its remedial objectives can best be achieved." Id. at 15, 926 A.2d 340 (citing Calandra, supra, 414 U.S. at 348, 94 S. Ct. at 620, 38 L. Ed. 2d at 571). Thus, when law enforcement officials secure evidence that is sufficiently independent of the illegal conduct -- evidence that is not tainted by the misdeed -- then withholding evidence from the trier of fact is a cost that may not be justified by the exclusionary rule. Badessa, supra, 185 N.J. at 311, 885 A.2d 430.

. . .

Significantly, two of the courts cited above suggested that the random stopping of people in the hope of picking up some on outstanding warrants is the type of flagrant or purposeful conduct that would weigh against a warrant serving as a determinative intervening circumstance. See Brendlin, supra, 195 P.3d at 1082; McBath, supra, 108 P.3d at 249. In Brendlin, supra, the California Supreme Court indicated that where a seizure is "undertaken as a fishing expedition, the third Brown factor will make it unlikely that the [State] would be able to demonstrate an attenuation of the taint of the initial unlawful seizure." 195 P.3d at 1082. The Brendlin court contrasted the "fishing expedition" scenario with "a chance discovery of an outstanding arrest warrant in the course of a seizure that is later determined to be invalid." Ibid. (internal quotation marks and citations omitted).

Similarly, the Alaska appellate court in McBath, supra, observed that an arrest warrant may not constitute a determinative intervening circumstance "where the police conducted an unjustifiable 'dragnet' investigative stop of many people, hoping to find some for whom there were outstanding arrest warrants." 108 P.3d at 249. In such a case, "the flagrance of the police misconduct may still require suppression of the evidence." Ibid.

There is a difference between an unlawful motor vehicle or investigatory stop in which, incidental to the stop, the police learn about an outstanding warrant and, as here, an unlawful stop executed for the specific purpose of ascertaining whether a suspect is the subject of an arrest warrant. That is a point clearly made in People v. Mitchell, 355 Ill. App. 3d 1030, 824 N.E.2d 642, 291 Ill. Dec. 786 (Ill. App. 2005) (cited with approval in Brendlin, supra, 195 P.3d at 1082).

People v. Brendlin, 45 Cal. 4th 262, 85 Cal. Rptr. 3d 496, 195 P.3d 1074 (2008)
McBath v. State, 108 P.3d 241, 242, 248 (Alaska App. 2005)

In the dashcam video, defendant consented to a search of his vehicle without even being asked, and it was voluntary. United States v. McGowan, 2012 U.S. Dist. LEXIS 177630 (N.D. Ala. October 30, 2012).*

The stop of the vehicle was with probable cause, and the officer developed reasonable suspicion that defendant was not legally in the country. The stop was not overlong and was reasonable. United States v. Munoz, 2012 U.S. Dist. LEXIS 177633 (D. S.D. October 10, 2012).*

An officer unexpectedly ran into defendant and asked defendant whether he had a gun. It was not in an accusatory tone, and defendant fled. He was not seized at the point the question was asked. United States v. Sanchez, 2012 U.S. Dist. LEXIS 177623 (D. Mass. December 14, 2012).*

Defendant was not prejudiced by defense counsel’s failure to move to suppress his girlfriend’s written consent. He was removed from the premises on arrest, and the police had no duty under Randolph to seek consent from him. United States v. Swain, 2012 U.S. Dist. LEXIS 177193 (D. S.C. December 14, 2012). [Yes, the police can wait for their suspect to leave and then seek consent from somebody with apparent authority.]

The officer stopped defendants walking on the street because they matched the description of two men who robbed a cell phone store. His lights were on and he commanded them to stop and show their hands with his hand on his gun. That was a seizure, and it was with reasonable suspicion. United States v. Brown, 2012 U.S. Dist. LEXIS 176658 (D. Mass. December 12, 2012).*

Defendant consented to a time-limited search of his cell phone. He was asked for consent, and he said he would except that he wanted the phone back that day so he could use it as an alarm clock the next morning. When asked for clarification, he reaffirmed. The search was by consent. United States v. Weisinger, 2012 U.S. Dist. LEXIS 177129 (D. Vt. December 11, 2012).*

Antoine Jones won his landmark case holding GPS tracking requires a warrant, but he loses on remand to the good faith exception. United States v. Jones, 2012 U.S. Dist. LEXIS 177294 (D. D.C. December 14, 2012):

Defendant, with the support of an amici curiae brief filed by Electronic Frontier Foundation and Center for Democracy & Technology (Brief Amici Curiae in Support of Defendant Jones' Motion to Suppress, Aug. 13, 2012 [ECF No. 644] ("Amicus Br.")), argues that under the Fourth Amendment, the government was required to obtain a warrant based on probable cause prior to tracking Jones' location based on cell-site data provided by a third party provider for a four-month period of time. The Court, however, need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies.

Such is the nature of Fourth Amendment litigation in the modern era. Get used to it.

An uncorroborated tip led to a strip search of a female student in school. Nothing was found, and the student was threatened with trouble if she talked about it. The question is close, but the court finds that plaintiff did not show sufficient precedent that an uncorroborated tip is not enough for a school search to overcome qualified immunity. S.S. v. Turner Unified School District No. 202, 2012 U.S. Dist. LEXIS 177180 (D. Kan. December 14, 2012)*:

The court recognizes in that responding to a qualified immunity challenge, plaintiff is not required to find Supreme Court or Tenth Circuit cases with precisely the same facts. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). But plaintiff must demonstrate that the right allegedly violated is clearly established in a more particularized and relevant sense:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in light of the pre-existing law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted).

As one example, plaintiff could have identified Supreme Court or Tenth Circuit case law discussing whether an informant's tip justified a finding of reasonable suspicion in the school setting or in other circumstances. See, e.g., United States v. Chavez, 660 F.3d 1215, 1222 (10th Cir. 2011) (discussing relevant factors in determining whether a tip provides reasonable suspicion). But plaintiff did not make this showing or engage in this analysis. And it is not the court's job to search the case law and create arguments on plaintiff's behalf. Accordingly, plaintiff has not carried her burden and demonstrated that the right allegedly violated was clearly established. Hillidard v. City & Cnty. of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991); ...

There was no indication from the officer's testimony that defendant saw the police car and continued to drive, was attempting to evade the police, or otherwise acted in a furtive manner. Therefore, the motion to suppress should have been granted. People v. Petty, 2012 IL App (2d) 110974, 981 N.E.2d 1157 (2012).*

The trial court’s findings of consent are supported by the record. Defense counsel’s state constitutional argument would fail if it had been made. State v. Kiche, 826 N.W.2d 516 (Iowa App. 2012).*

Defendant was charged with false pretenses and false identity for holding himself out as a lawyer to get money from somebody to represent them in a criminal case. He was pro se at trial, and his Fourth Amendment claim is waived for not presenting it to the circuit court first. Patton v. State, 109 So. 3d 66 (Miss. 2012).*

The search of defendant’s car was not based on officer safety; it was a de facto search incident without probable cause under the guise of officer safety, and the motion to suppress is granted. A search of a closed container was unreasonable. United States v. Morgan, 2012 U.S. Dist. LEXIS 175192 (D. Neb. December 11, 2012):

By his own admission, Officer Normandin searched the vehicle immediately after removing the occupants from the car. Importantly, this case does not involve a traffic stop, where the violation of a traffic law would support a suspicion of criminal activity. The defendant was sitting with two other people in the well-lit parking lot of an open business. Although it was 12:45 a.m., the late hour alone and the fact that people were in a car does not automatically signal an inherently dangerous situation. Any suspicion of illegal activity prompted by the occupants' behavior in ducking down and reaching under the seat would have been explained by the officers' observation of open containers in the vehicle. The officers herein did not conduct a limited Terry-type inquiry in order to confirm or dispel their suspicions; they proceeded to immediately search the vehicle as if the search were "a police entitlement," rather than an exception justified by the twin rationales of officer safety and evidence preservation.

Moreover, the officers' conduct with respect to the closed container found in the search of the vehicle requires a separate analysis. The government has not argued or shown that the detention of the box was so minimally invasive that strong countervailing governmental interests justified a seizure based on specific articulable facts that the lockbox contained contraband or evidence of a crime. The court finds the removal of the lockbox from the car was a meaningful interference with the defendant's possessory interests and finds the lockbox was seized when it was removed from the vehicle. The later investigative procedure—opening the box—was a search itself requiring probable cause, so the initial seizure cannot be justified on less than probable cause.

The officers did not have probable cause to believe that the vehicle contained contraband or other evidence of a crime to support the seizure and subsequent search of the lockbox found under the seat of the defendant's car. Officer Normandin explicitly disavowed any suspicion of drug trafficking. He stated that his only concern was officer safety. ...

Defendant was acquitted of a weaving offense, but convicted of DUI for driving on the wrong side of the road. Defense counsel was not ineffective for not moving to suppress the stop because the acquittal of the weaving charge doesn’t mean anything on the DUI and the basis for the stop. State v. Arnold, 2012 Ohio 5809, 2012 Ohio App. LEXIS 5002 (9th Dist. December 10, 2012).

A traffic stop requires reasonable suspicion, not probable cause, and the trial court erred in so finding. State v. Liebling, 2012 Ohio 5818, 2012 Ohio App. LEXIS 5011 (9th Dist. December 10, 2012).

Defendants were pulled over on suspicion of being involved in a robbery and got out of the car with hands up. That was a seizure, but it was with reasonable suspicion. The description of the robbers was not all that generic, and they fit it under the totality of circumstances, including location and dress. The detention was also reasonable in scope. United States v. Brown, 2012 U.S. Dist. LEXIS 176658 (D. Mass. December 12, 2012).*

Rolling Stone: Outrageous HSBC Settlement Proves the Drug War is a Joke by Matt Taibbi:

If you've ever been arrested on a drug charge, if you've ever spent even a day in jail for having a stem of marijuana in your pocket or "drug paraphernalia" in your gym bag, Assistant Attorney General and longtime Bill Clinton pal Lanny Breuer has a message for you: Bite me.

Breuer this week signed off on a settlement deal with the British banking giant HSBC that is the ultimate insult to every ordinary person who's ever had his life altered by a narcotics charge. Despite the fact that HSBC admitted to laundering billions of dollars for Colombian and Mexican drug cartels (among others) and violating a host of important banking laws (from the Bank Secrecy Act to the Trading With the Enemy Act), Breuer and his Justice Department elected not to pursue criminal prosecutions of the bank, opting instead for a "record" financial settlement of $1.9 billion, which as one analyst noted is about five weeks of income for the bank.

The banks' laundering transactions were so brazen that the NSA probably could have spotted them from space. ...

The police did not violate curtilage by walking up to defendant’s car parked in his front driveway that had been damaged in a hit-and-run, was missing a bumper, and had its airbags deployed. Commonwealth v. Simmen, 2012 PA Super 268, 58 A.3d 811 (2012).

Defendant had no standing to challenge the search of her murder victim’s car parked in the victim’s driveway. State v. Jackson, 2012 Tenn. Crim. App. LEXIS 1003 (December 10, 2012).

The trial court erred in concluding that the police, on answering a domestic dispute, were required to ask for consent from the defendant, too, under Randolph, after his girlfriend consented to a search of a drawer revealing three guns. People v Watson, 2012 NY Slip Op 8562, 101 A.D.3d 913, 955 N.Y.S.2d 411 (2d Dept. 2012).

A warrant was being sought, and the officers waiting for the warrant reasonably figured that their cover had been blown and it was time to secure the premises before the warrant arrived. The seizure of the house and protective sweep 22 minutes before the warrant arrived wasn’t unreasonable. United States v. Figueroa-Cruz, 2012 U.S. Dist. LEXIS 176298 (N.D. Ala. August 2, 2012):

Unlike the officers entry into the apartment of Santa [United States v. Santa, 236 F.3d 662 (11th Cir. 2000)] agents at the Skyline Drive house had every reason to believe that the occupants of the house would soon be alerted to the presence of the agents. Stephens ordered an entry to "secure the scene." That stated purpose alone does not alter the fact that the entry was not authorized by a warrant. " Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency." Kentucky v. King, __ U.S. __, __, 131 S.Ct. 1849, 1862, __ L.Ed.2d __, __ (2011) citing Brigham City v. Stuart, 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Stephens stated purpose, however is relevant to the inquiry into whether he "created" exigency as they Eleventh Circuit found was the case in Santa. "A warrantless search is allowed,[], where both probable cause and exigent circumstances exist." United States v. Tobin, 923 F.2d at 1510 . Exigent circumstances exist "where the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action." United States v. Morales, 868 F.2d 1562, 1575 (11th Cir.1989). Here there was a warrantless entry and protective sweep of the house. Assuming without deciding that agents seized the drugs and money once they were seen on the counter the Supreme Court has clearly approved the warrantless seizure of property to maintain the status quo while a warrant is obtained where they would or did hold a warrantless search to be invalid. Rowlings [sic] v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). In the present case Stephens did not commence the actual search until warrant had been obtained. (Tr.7/19/12 p.39)

The agents watching the Skyline Drive location had reasonable grounds to believe that whoever was in the house would soon be alerted that some form of investigation was on going. With such knowledge the individuals may have been able to flee without detection because agents had only a limited view of the scene. The Eleventh Circuit has long expressed acceptance of the fact that the possibility of destruction of evidence is acute in narcotics cases. Tobin, 923 F.2d at 1511 (This Court has held that the need to invoke the exigent circumstances exception to the warrant requirement is "particularly compelling in narcotics cases" because narcotics can be so quickly destroyed. United States v. Young, 909 F.2d 442, 446 (11th Cir.1990)). Because both probable cause and exigent circumstances existed at the time of the warrantless seizure of the evidence which was in plain view following that entry was consistent with the requirements of the Fourth Amendment. Suppression is due to be denied.

The USMJ granted a Franks hearing and concluded that the statements were not materially false and removing them still left probable cause. Therefore, no suppression. United States v. Houston, 2012 U.S. Dist. LEXIS 175955 (E.D. Tenn. November 21, 2012)*, R&R 2012 U.S. Dist. LEXIS 176812 (E.D. Tenn. May 29, 2012).*

In this internet traveler case, defendant twice consented to a search of his computer when he was arrested, and the hard drive was copied. After the defense raised the defense of entrapment, the police could search the copy of the hard drive they made for other chat sessions that belied his entrapment defense, showing that he chatted with four other young girls before this one. Commonwealth v. Buswell, 83 Mass. App. Ct. 1, 979 N.E.2d 768 (2012).*

The pro se appellant changed his argument between the trial court and the court of appeals, so his Fourth Amendment argument on appeal is waived. Ivy v. State, 103 So. 3d 766 (Miss. App. 2012).*

Police were delivering marijuana to defendant’s house. They planned it for 11 hours, and they had no exigent circumstances. Worse, they never even argued exigent circumstances. People v. Krinitsky, 2012 IL App (1st) 120016, 367 Ill. Dec. 698, 982 N.E.2d 848 (2012)*:

[**P30] In this case, the State failed to argue that any exigent circumstances existed to justify the warrantless entry into defendant's apartment. Id. ("The State bears the burden of demonstrating exigent need for a warrantless search or arrest."). The police knew cannabis would be at the apartment because they were delivering it. They knew the amount of cannabis and defendant's address. Officer Graham testified that he first knew of the informant at approximately 10 in the morning on the day of the incident. Tardona did not deliver the cannabis, according to Officer Graham's testimony, until at least an hour after he met with defendant at either 9:30 or 10 p.m. that evening. The police had all day to secure an anticipatory search warrant. Accordingly, the State has not satisfied its burden in proving that exigent circumstances existed to justify the police's warrantless entry into defendant's apartment. Under the facts of this case, it was unreasonable for the police to not even attempt to get a warrant when they knew the time, place, quantity, and price of the arranged transaction and had at least 11 hours to secure a warrant.

Anders brief rejected; the Fourth Amendment claim here is at least arguable and must be discussed more fully. The court won't reject it out of hand. United States v. Telfair, 2012 U.S. App. LEXIS 25376 (3d Cir. December 12, 2012)*:

In addition, the importance of the evidence seized from 185 Parker Street to the Government's case, and the circumstances of its discovery, should have alerted Mr. Azzarello that he must address the issue. The heroin found at 185 Parker Street was the source of the investigation of Telfair; if this evidence is tainted, it is not "fruit of the poisonous tree," but rather is the root of the poisonous tree. This evidence provided the foundation for the investigation and prosecution of Telfair. Without that foundation, the case collapses. Furthermore, because this quintessential evidence was discovered during a warrantless search—which is per se unreasonable, subject to a few, narrow exceptions, Katz v. United States, 389 U.S. 347, 356 (1967)—Mr. Azzarello was obligated to discuss the issue in his brief and explain why it would be frivolous to seek a reversal of the District Court's order.

Given the foregoing, Mr. Azzarello's Anders brief does not satisfy this Court that he has conducted a thorough examination of the record in search of appealable issues. Finding that his Anders brief is inadequate, we proceed to step two of the analysis, and conduct an independent review of the record to determine whether any nonfrivolous issues exist. Coleman, 575 F.3d at 321; Youla, 241 F.3d at 301.

Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there after a crime elsewhere. United States v. Morris, 2012 U.S. Dist. LEXIS 175977 (D. Minn. December 12, 2012):

Morris argues that there was insufficient evidence of a nexus between Morris's home and the evidence expected to be found. The Eighth Circuit has noted:

Although there must be evidence of a nexus between the contraband and the place to be searched before a warrant may properly issue, we have held that an officer executing a search warrant may rely in the permissibility of the issuing judge's inference that such a nexus exists when that inference has common sense appeal.

United States v. Houston, 665 F.3d 991, 995 (8th Cir. 2012) (citations and internal quotation marks omitted) (emphasis added). The Court concludes that, here, there was common sense appeal to the inference that evidence related to the shooting would be found in Morris's home. Connor detained Morris between the shooting site and his home, "directly on the opposite side" of his home, making it reasonable to assume his home was where he came from on his way to the shooting and where he was going. Under these circumstances, it was reasonable to infer that evidence related to the crime existed in Morris's home. See United States v. Summage, 481 F.3d 1075, 1078 (8th Cir. 2007) (finding it reasonable to infer that the defendant would have a video and photographs at his new residence where "it could be presumed that [the defendant] would maintain in his possession the video and photographs"). Specifically, the warrant sought latex gloves, firearms/ammunition, and evidence of gang affiliation, which were items that could be reasonably expected to be found in his home and not left at the scene of the crime. Accordingly, the Court will deny Morris's motion to suppress evidence stemming from the warrants.

Probable cause existed for seizure of money from a car by the way it was bundled and packaged, among other things. Legitimate businesses do not transport their cash in cardboard boxes. United States v. Julian, 2012 U.S. App. LEXIS 25356 (11th Cir. December 12, 2012)*:

In determining whether probable cause existed at the time of a seizure of alleged drug proceeds, we evaluate whether, given a commonsense view of "the realities of normal life" and the totality of the circumstances, there is "probable cause to believe that the money is the proceeds of, or is otherwise connected to, any illegal drug transaction." Id. Even where the evidence presented by the government would support an alternative hypothesis for the source of funds, this does not prevent the evidence from being probative on the issue of probable cause. Id. ...

. . .

Here, under the totality of the circumstances, we conclude that probable cause existed for the seizure of $21,015 in cash from the car Julian was driving. Although all seven factors identified by the district court, taken together, support a finding of probable cause, the most probative of these factors are the condition of the funds and their substantial value. At the time of the traffic stop, Julian was in possession of a significant amount of cash, the vast majority of which had been rubber-banded into 20 separate bundles of $1,000 each and concealed inside of a cardboard box, and "[a] common sense reality of everyday life is that legitimate businesses do not transport large quantities of cash rubber-banded into bundles and stuffed into packages." $242,484.00, 389 F.3d at 1161. Julian had no paperwork, bank receipts, or any documentation whatsoever concerning the source of the funds. Although Julian provided an explanation for the cash's origin, the fact that his explanation could support an alternative hypothesis does not prevent the lack of documentation from being probative on the issue of probable cause. See id.

In addition, unlike in Boyce, the video of the traffic stop in the present case did not belie Woolard's testimony. ...

The Hill: Drone-makers push feds on test flights by Kevin Bogardus and Keith Laing:

Lobbyists for the booming drone industry are pushing the Federal Aviation Administration (FAA) to stop delaying action on a plan that will open up U.S. skies to unmanned vehicles.

The agency has yet to select six test sites that will be used to gauge the safety of drone flights, despite a mandate to do just that under the FAA reauthorization bill that passed earlier this year. That has led to pressure from the Association of Unmanned Vehicles Systems International (AUVSI) and lawmakers on Capitol Hill to get the process moving.

ComputerWorld: Tendency of law enforcement to adopt new technology without considering its impact on privacy and civil liberties 'unacceptable' to one expert by Taylor Armerding:

Drones are not just for spying and targeted assassinations in Iraq, Afghanistan and other war zones. They are also being used extensively for surveillance in the U.S.

The fact of domestic drone surveillance is not new. There have been numerous reports of Customs and Border Protection using Predator drones to monitor the nation's borders, and that multiple branches of the military are authorized to fly drones in the U.S.

But the Electronic Frontier Foundation (EFF) provided evidence last week of how extensive that use is, not only by the federal government but by local law enforcement as well, with a posting of several thousand pages of drone license records, along with a new map that tracks the location of those domestic flights.

Defendant’s car was stopped for too much tint, and the officer noted the car was rocking as he approached and there was movement toward the dashboard. When he got to the window he saw that the driver and passenger had switched, which they ultimately admitted because the original driver had no license. The officer got them out and handcuffed them and then did a Long frisk of the car finding cocaine in the steering wheel. The court finds the Long frisk without factual justification because, as dangerous as a traffic stop can be, this one showed all along that it wasn’t risky and reasonable suspicion did not develop. Jackson v. United States, 56 A.3d 1206 (D.C. 2012):

The same is true here: there is a logical gap between Mr. Jackson’s movement of his hands along the dashboard and the conclusion that police were confronting someone dangerous, and under our case law, “the ambiguous movement in this case cannot be the decisive fact justifying a frisk that was otherwise unwarranted.” Powell, 649 A.2d at 1091 (Farrell, J., concurring); see also Page, 298 A.2d at 237 (“Furtive movements standing alone would hardly warrant a search[.]”). The overall calculus of factors in this case unquestionably varies from that in Spinner, and Spinner’s holding that the search there violated the Fourth Amendment by no means dictates a like conclusion here. ... Yet our view that the predominant factor in the trial court's analysis in this case suffers from the same flaw as the gesture at issue in Spinner--namely, that it lacked specific indicia that it had something to do with grabbing or concealing a weapon--nevertheless becomes dispositive where the additional circumstances do not “reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Long, 463 U.S. 1032, 1049-50 (citation and internal quotation marks omitted).

...

Officer Norris’s observation that the van was rocking when he pulled it over was the other factor besides the movement of Mr. Jackson’s hands on the dash that the trial court mentioned as having heightened the officer's suspicion. ... [W]e cannot ignore the reality that Officer Norris’s concerns about the rocking van were largely dispelled when he immediately saw that the occupants had switched places and understood why the van had been rocking. Given these circumstances, and given that there is nothing about people switching places in a car that inherently suggests these people are armed and dangerous, we do not view this factor as meaningfully reinforcing the lawfulness of the search for weapons under Terry.

It is beyond question that police officers face untold dangers when they conduct traffic stops. Our task, however, is to evaluate the individualized articulable facts supporting reasonable suspicion in this case, and we would fail in that task if we were to quote Stanfield’s unbridled language and perfunctorily conclude that the van’s window tinting gave rise to reasonable suspicion in this case without checking that impulse against the facts of this case. ...

The stop in this case lacked many of the hallmarks of a particularly dangerous situation. The offense for which the officer stopped the van—illegal window tinting—was a minor one that prompted Officer Nelson to give Mr. Jackson only a verbal warning and to explain the law to him. ...

There is a dissent.

Defendant’s arrest was based on his driving and BAC. It was raised to a felony by the officer after dispatch reported priors. This isn’t improper as reliance on hearsay under the Fourth Amendment. People v. Conley, 211 Cal. App. 4th 953, 150 Cal. Rptr. 3d 334 (3d Dist. November 8, 2012), Rehearing granted, Depublished by, Vacated by People v. Conley, 2013 Cal. App. LEXIS 96 (Cal. App. 3d Dist., Jan. 2, 2013).

Illegal tint led to strong smell of air freshener, nervousness and implausible story and a drug dog also led to a federal fugitive being found. The stop was not too long. Mordica v. State, 319 Ga. App. 149, 736 S.E.2d 153 (2012).*

Suppression of the stop here might have been on a misinterpretation of the statute requiring a turn signal, so the case is remanded to the trial court to specify what’s going on. People v. Tramble, 2012 IL App (3d) 110867, 980 N.E.2d 1254 (2012).*

Defendant’s detention, frisk, and search was without reasonable suspicion. It quickly evolved into a de facto arrest. There were general reports of robberies in the area, but nothing related to this stop. The officers’ heavy handedness was also a factor in finding a Fourth Amendment violation. United States v. Morgan, 2012 U.S. Dist. LEXIS 175192 (D. Neb. December 11, 2012)*:

The factors that courts consider in determining whether an investigative detention has become an arrest weigh in favor of finding an arrest. This is not the case of a lone law enforcement officer-two officers were involved from the outset and more officers arrived on the scene shortly thereafter. At least two squad cars were present. The nature of the crime under investigation was ostensible robbery, but there was no testimony with respect to number or locations of the robberies, whether the alleged robbers were armed, and no description of either suspects or vehicles involved. The officers' articulable suspicions were weak. The only suspicious behavior was reaching under the automobile seat. Pat-downs of the defendant and his companions yielded no weapons or contraband. There is no evidence that the defendant was violent, uncooperative or aggressive. Other than the defendant's gesture of reaching under the seat, there was no reason to suspect the defendant was armed and dangerous. There was no need for immediate action by the officer.

Also, there was an opportunity for the officer to have conducted himself in a less threatening manner. Officer Normandin did not testify as to any facts indicating a need to handcuff the defendant and the two young women once they were removed from the vehicle.

The government's reliance on "officer safety" concerns to justify their actions in this case are perplexing. The court finds the officers have not shown a reasonable belief based on specific articulable facts that the defendant posed a threat of harm or danger once the defendants and passengers had been removed from the vehicle and patted down. ...

Officers had probable cause to believe defendant had a grow operation based on his buying stuff at a store specializing in that and a trash pull finding marijuana leaves. An email in the trash pull that referred to the drug operation justified a search of his computer. Child pornography was stumbled upon in that search. Alternatively, the search warrant was valid under the good faith exception. United States v. Ellis, 2012 U.S. Dist. LEXIS 174367 (D. Kan. December 10, 2012).*

A 2255 can’t relitigate a denied motion to suppress. United States v. Brown, 2012 U.S. Dist. LEXIS 174515 (N.D. Ohio December 7, 2012).*

Defendant’s arrest was justified by probable cause, so the search of her person was valid incident to the arrest. United States v. Ortiz, 2012 U.S. Dist. LEXIS 174514 (D. Minn. November 20, 2012).*

This knock-and-talk was valid. Three LEOs were clearly identified and no guns were drawn. United States v. Poom-Medina, 2012 U.S. Dist. LEXIS 175222 (D. Ariz. December 11, 2012).*

Defendant was stopped for an expired tag, which was a valid stop. After he was out of the car, he fled, and that was another crime. United States v. Holifield, 2012 U.S. Dist. LEXIS 174597 (E.D. Tenn. September 27, 2012).*

The court concludes that the affidavit was lacking in probable cause for the search because it was conclusory. Nevertheless, the issuing magistrate did not abandon her judicial role, and the good faith exception would be applied to sustain the search. United States v. Farlee, 2012 U.S. Dist. LEXIS 175351 (D. S.D. October 9, 2012) (R&R), adopted 2012 U.S. Dist. LEXIS 174085 (D. S.D. December 7, 2012)*:

Here, the issuing judge signed both warrants after she read the affidavits submitted by Detective LeBeau. Although probable cause did not exist based on the terse and conclusory nature of the affidavits, this Court cannot conclude Judge Jeffries abandoned her judicial role. ...

[T]his is not one of those "unusual cases in which exclusion will further the purposes of the exclusionary rule" because the judge did not completely abandon her judicial role and the search was not objectively unconstitutional. Leon, 468 U.S. at 918. This Court adopts Judge Moreno's Report and Recommendation in refusing to suppress the physical evidence because the good faith exception to the warrant requirement applies.

Defendant failed to show that omission of disputed facts from the affidavit for the search warrant constituted a Franks violation. What was there showed probable cause, and including what was omitted wouldn’t have changed anything. United States v. Miller, 2012 U.S. Dist. LEXIS 174509 (N.D. Ohio December 10, 2012):

While "false information" can include material omissions, the Sixth Circuit has "repeatedly held that there is a higher bar for obtaining a Franks hearing on the basis of an allegedly material omission as opposed to an allegedly false affirmative statement." United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008) ("Allegations of material omission are held to a higher standard because of the 'potential for endless rounds of Franks hearings' due to potentially 'endless conjecture about investigative leads, fragments of information, or other matter[s] that might, if included, have rebounded to defendant's benefit.'" (quoting United States v. Martin, 920 F.2d 393, 398 (6th Cir. 1990)). The Sixth Circuit has reiterated that "except in the very rare case where the defendant makes a strong preliminary showing that the affiant with an intention to mislead excluded critical information from the affidavit, and that omission is critical to the finding of probable cause, Franks is inapplicable to the omission of disputed facts." Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998) (emphasis in original). Thus, "an affidavit which omits potentially exculpatory information is less likely to present a question of impermissible official conduct than one which affirmatively includes false information." United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997).

P.S.: Defendant's street name in the indictment is "Jesus Penis."

Defendant called 911 because of a small propane tank exploding, severing the tip of his finger and cutting him. The 911 dispatcher did not limit the size of the tank, and firefighters responded. Through a window they could see blood and heard the sound of running water. Defendant had cuts on his chest, too, and he explained the explosion. While the explosion was not great, based on all the firefighters knew, an entry was justified, and marijuana plants and pipe bombs were in plain view. United States v. Infante, 701 F.3d 386 (1st Cir. 2012):

Based on these facts, the firefighters had a reasonable basis, approximating probable cause, both to believe that there was an emergency and to associate the emergency with the inside of Infante's residence. Infante's reports of an explosion involving volatile gas, whether propane or butane, coupled with his significant wounds that were consistent with the occurrence of an explosion, caused the firefighters to reasonably perceive an emergency -- the prospect of a secondary explosion resulting from escaping gas. Under these circumstances, the danger of a secondary explosion is akin to that of a rekindling fire that the Supreme Court identified in Tyler as a continuing danger that justified fire officials' remaining in a building for a reasonable time after extinguishing a fire in order to promptly investigate its cause. See Tyler, 436 U.S. at 510; see also Michigan v. Clifford, 464 U.S. 287, 293 (1984) ("Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases."). Indeed, relying in part on the Court's reasoning in Tyler, a number of our circuits have held that the presence of potentially explosive chemicals can justify warrantless entry into a home. ...

Defendant was the subject of a child pornography knock-and-talk, and he consented to the government seizing his computers to look for child porn which he admitted was on his computers. He asked to copy files he needed for school work, and they let him. The next day, his attorney wrote the FBI and revoked his consent to the search and seizure of the computers, and 25 days later, the FBI submitted a search warrant request to a USMJ who sat on it for another six days because he was in a habeas hearing. On the totality, the 25 days was not an unreasonable seizure. This was a small FBI office, and their delay was not unreasonable considering defendant was given access to the files he needed, and he didn’t ask for me. While his possessory interest was interfered with, it wasn’t unreasonably interfered with. United States v. Laist, 702 F.3d 608 (11th Cir. 2012):

Since there is no "per se rule of unreasonableness," McArthur, 531 U.S. at 331, the devil, as always, is in the details. The essential question boils down to this: whether the 25-day delay in this case was unreasonable. We hold that it was not. Initially, there is no doubt that Laist retained a significant possessory interest in his computer and his hard drives. See Mitchell, 565 F.3d at 1351. The interference with Laist's possessory interest was not insubstantial, inasmuch as the FBI held his computer and hard drives for 25 days without his consent.

However, Laist's possessory interest in the contents of these possessions was diminished for several reasons. First, the district court found that Laist was afforded the opportunity to remove "whatever he wanted to download" from the computer and hard drives, and, notably, Laist did in fact remove files he needed for school. As the district court put it, "It is my understanding from the evidence that there was no limitation about this ... . [I]t [i]s clear from the record that if he wanted to take other things off at the time he also could have done that." Since the possessory interest in a computer derives from its highly personal contents, the fact that Laist had a real opportunity to copy or remove personal documents reduces the significance of his interest. Indeed, although Laist revoked consent on March 12, 2009, he did not request any additional files prior to the time the FBI obtained the search warrant on April 13, 2009, and there is no indication in this record that the FBI would have denied a request to retrieve additional non-contraband material on the computer. In the second place, Laist not only admitted to the presence of illicit images on the computer, which standing alone already diminishes his possessory interest, see Mitchell, 565 F.3d at 1351, he actually showed an image of child pornography to the FBI agents during the course of the interview. This fact both diminishes Laist's interest further while also enhancing the government's legitimate interest in maintaining custody of the computer and hard drives as substantial evidence of a serious federal crime.

Nevertheless, since Laist retained a possessory interest, albeit a diminished one in his computer, the Fourth Amendment still obligated the United States to "diligently obtain[] a warrant." McArthur, 531 U.S. at 334. On this record, we are convinced the government acted diligently, and thus reasonably, based on several critical facts. ...

Wired: Public Buses Across Country Quietly Adding Microphones to Record Passenger Conversations by Kim Zetter:

Transit authorities in cities across the country are quietly installing microphone-enabled surveillance systems on public buses that would give them the ability to record and store private conversations, according to documents obtained by a news outlet.

The systems are being installed in San Francisco, Baltimore, and other cities with funding from the Department of Homeland Security in some cases, according to the Daily, which obtained copies of contracts, procurement requests, specs and other documents.

The use of the equipment raises serious questions about eavesdropping without a warrant, particularly since recordings of passengers could be obtained and used by law enforcement agencies.

It also raises questions about security, since the IP audio-video systems can be accessed remotely via a built-in web server (.pdf), and can be combined with GPS data to track the movement of buses and passengers throughout the city.

An officer confronting students allegedly skipping school to question them about smoking marijuana was not a mere “social contact” and became a detention. State v. Guevara, 172 Wn. App. 184, 288 P.3d 1167 (December 6, 2012).*

The officer was given consent to look in the car. While the officer was looking at the bumper, he could tell the defendant’s stress level went “through the roof.” He noticed that the screws around the inside of the trunk were worn from being removed repeatedly, and plastic push pins were broken. That led to reasonable suspicion to detain for a drug dog. State v. Ochoa, 2012 Tenn. Crim. App. LEXIS 999 (December 7, 2012).*

Because defendant’s backup lights came on when he hit the brakes, the officer was justified in concluding that the brake lights were not in working order, and that justified the stop. State v. Gonzalez, 2012 Tenn. Crim. App. LEXIS 990 (December 5, 2012).*

There was no justification for a warrantless entry into defendant’s house to check on her welfare after an accident. The only information the police had was that she was not injured. There was no exigency because this was not a hot pursuit under Welsh; the police didn’t even see the accident. City of Cleveland v. Lynch, 2012 Ohio 5740, 2012 Ohio App. LEXIS 4942 (8th Dist. December 6, 2012).

There was a warrantless entry into defendant’s house based on a shots fired call and the police arrived there three minutes after the call. No evidence from that entry was admitted at trial, so there could be no error. State v. Cowan, 2012 Ohio 5723, 2012 Ohio App. LEXIS 4927 (8th Dist. December 6, 2012).*

The officer was sent to the house on a welfare check, and it was dark and remote. Cars were in the driveway, but there was no answer at the door which was unlocked and ajar. The officer pushed open the door, and the room looked ransacked like the place had been burglarized. Drugs were seen in plain view. While this was a “close call,” the court decides that this was a valid welfare check entry based on the totality. State v. Hallam, 2012 Ohio 5793, 2012 Ohio App. LEXIS 4981 (2d Dist. December 7, 2012).*

Officers have a right to rely on NCIC information about priors, and the fact it later turned out to be inaccurate did not deprive it of being probable cause at the time of the stop. State v. Flores, 392 S.W.3d 229 (Tex. App. – San Antonio 2012).

A passenger producing a “blunt” is probable cause that there is other contraband in the vehicle. State v. Mitchell, 2012 N.C. App. LEXIS 1374 (December 4, 2012).*

The totality of circumstances provided the police with reasonable suspicion that defendant had drugs in his vehicle because of good information about an earlier meth buy. United States v. Valencia, 2012 U.S. Dist. LEXIS 173269 (W.D. Ky. September 14, 2012).*

The search warrant for defendant’s house was issued without probable cause. The fact somebody worked in a medical marijuana operation in a state recognizing it is hardly indicative of criminality at his home. When undercover officers tried to buy from the dispensary, they were turned down because their “recommendations” could not be verified. United States v. Franklin, 2012 U.S. Dist. LEXIS 172808 (E.D. Cal. December 4, 2012).

The affidavit for search warrant was not based on stale information. While part of it was years old, it contained current information which showed it to be an ongoing drug operation. State v. Thomas, 2012 Ohio 5577, 2012 Ohio App. LEXIS 4855 (3d Dist. December 3, 2012).*

The search of defendant’s house was not incident to the arrest warrant; it was based on defendant’s parole agreement. United States v. Johnson, 2012 U.S. Dist. LEXIS 172163 (N.D. Ga. April 24, 2012).*

A motion to suppress the Intoxilyzer 8000 test result for lack of scientific basis was not proper; it should have been a motion in limine. State v. Miller, 2012 Ohio 5585, 983 N.E.2d 837 (11th Dist. 2012):

[*P14] The purpose and effect of a motion to suppress and a motion in limine are distinct. A "motion to suppress" is defined as a "[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation etc.), of U.S. Constitution." Black's Law Dictionary (6 Ed. 1990) 1014. Thus, a motion to suppress is the proper vehicle for raising constitutional challenges based on the exclusionary rule first enunciated by the United States Supreme Court in Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, T.D. 1964, and made applicable to the states in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513. Further, this court has held that the exclusionary rule will not ordinarily be applied to suppress evidence which is the product of police conduct that violates a statute but falls short of a constitutional violation, unless specifically required by the legislature. Kettering v. Hollen (1980), 64 Ohio St.2d 232, 235, 18 O.O.3d 435, 437, 416 N.E.2d 598, 600. An important characteristic of a motion to suppress is that finality attaches so that the ruling of the court at the suppression hearing prevails at trial and is, therefore, automatically appealable by the state. R.C. 2945.67(A); [former] Crim.R. 12(J); see, also, State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477 N.E.2d 1141.

Under the totality of circumstances, “[o]fficers in conducting such an investigation are fully entitled to rely upon their professional experience and specialized training to draw inferences from and make deductions about the cumulative information available to them, information that might well seem entirely innocuous to the untrained eye.” United States v. Valencia, 2012 U.S. Dist. LEXIS 173269 (W.D. Ky. September 13, 2012).*

In a combined suppression hearing and bench trial, the defense properly preserved the objection to the admission of the evidence for appeal. The search of the defendant’s person was invalid because the consent was coerced. State v. Spagnola, 295 Kan. 1098, 289 P.3d 68 (2012).*

Defense counsel was not ineffective for not raising a suppression issue that was a loser. United States v. Altamirano-Quintero, 2012 U.S. App. LEXIS 25127 (10th Cir. December 6, 2012).*

Keeping mind that affidavits for search warrants are usually drafted in the haste of a criminal investigation, this alleged false statement was just in artful drafting. United States v. Bradley, 2012 U.S. Dist. LEXIS 173827 (N.D. Ohio December 7, 2012):

Taking a commonsense approach, and keeping in mind that search warrant affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation," United States v. Ventresca, 380 U.S. 102, 108 (1965), the Court is satisfied that the affiant, Detective Susan Barker, did not intentionally misstate the facts. ... The challenged language in the affidavit may be lacking in precision, but the Court concludes that, if anything, this was a result of inartful drafting rather than an intent to deceive. The defendants have failed to prove that the police intentionally or with reckless disregard for the truth misstated the facts when they included the words "present" or "met" in the warrant affidavit.

Drawing a gun during a traffic stop until backup could arrive to freeze the situation was still not an arrest, and it’s governed by Terry. Billingsley v. State, 980 N.E.2d 402 (Ind. App. 2012).*

Following Fifth Circuit precedent, the search incident of defendant’s cell phone was reasonable. It was found on his person at the time of the arrest. United States v. Rodriguez, 702 F.3d 206 (5th Cir. 2012).*

After an apparent drug buy from a house, the police followed the buyer and arrested him. With that information they did a knock and talk with seven officers of the house. A purse in the basement with no people around was not subject to search because nothing suggested a safety risk. Commonwealth v. Brooks, 388 S.W.3d 131 (Ky. App. 2012).*

The information from the CI was not stale when the police corroborated the CI with information that the defendant was dealing drugs that day. Nexus to the house was shown by defendant leaving his place to go to a drug deal and coming back. It’s a reasonable inference the stash is in the house. United States v. Bradley, 2012 U.S. Dist. LEXIS 173827 (N.D. Ohio December 7, 2012).*

Defendant’s description and being involved in a shots fired incident was more than mere suspicion. They had the car, street name, and two people said he was in the car (one as shooter, one as driver). United States v. Roper, 2012 U.S. Dist. LEXIS 173402 (W.D. Wash. December 6, 2012).*

Defendant’s 2255 claim of illegal search and seizure was waived by not presenting it to the district court before conviction. United States v. Dantzler, 2012 U.S. Dist. LEXIS 173495 (W.D. La. September 25, 2012) [if had been raised as an IAC claim, it would at least be considered].*

AOL AutoBlog: White House clears way for NHTSA to mandate vehicle black boxes by Jeremy Korzeniewski:

At present, over 90 percent of all new vehicles sold in the United States today are equipped with event data recorders, more commonly known as black boxes. If the National Highway Traffic Safety Administration gets its way, that already high figure will swell to a full 100 percent in short order.

Such automotive black boxes have been in existence since the 1990s, and all current Ford, General Motors, Mazda and Toyota vehicles are so equipped. NHTSA has been attempting to make these data recorders mandatory for automakers, and according to The Detroit News, the White House Office of Management Budget has just finished reviewing the proposal, clearing the way. Now NHTSA is expected to draft new legislation to make the boxes a requirement.

An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest. State v. Gardner, 2012 Ohio 5683, 135 Ohio St. 3d 99, 984 N.E.2d 1025 (2012):

=> Read more!

Telling a person that he’s the target of a child pornography investigation creates exigency to seize his work computer so he won’t destroy what’s on it. Here, the officers told defendant they had probable cause against him. United States v. Brown, 701 F.3d 120 (4th Cir. 2012):

Based on their investigation, the detectives had probable cause to believe that any computer used by either Brown or Yarboro during their work shifts at Medical Transport harbored evidence of child pornography. Accordingly, when the Charlottesville detectives informed Brown that they were investigating internet crimes against children, they had probable cause to believe that Brown's laptop, which he possessed during his work shift, contained evidence of child pornography. See United States v. Place, 462 U.S. 696, 701 (1983) (recognizing that the Fourth Amendment permits a warrantless seizure of property "[w]here law enforcement authorities have probable cause to believe that [the property] holds contraband or evidence of a crime ..., if the exigencies of the circumstances demand it."). Following up on Brown's response, it was entirely reasonable for the officers to seize Brown's laptop – as they did – to prevent either it or its contents from being damaged or destroyed. See King at 1862.

Police created exigency?

Defendant was arrested for criminal impersonation for giving false name, address, and DOB to officer during a traffic stop, and that supported his search incident. Stafford v. State, 59 A.3d 1223 (Del. 2012).

Validity of consent issue is not one normally appealable by the state in Arkansas. State v. Myers, 2012 Ark. 453, 2012 Ark. LEXIS 486 (December 6, 2012)*; Same; consent in advance for parole search. State v. Jones, 2012 Ark. 454, 2012 Ark. LEXIS 484 (December 6, 2012).*

Trial court’s crediting officer’s testimony that defendant failed to stop at a red light was sufficient to justify a stop. State v. Turk, 2012 Tenn. Crim. App. LEXIS 985 (December 5, 2012).*

Defendant’s revocation of his consent did not make the officers’ presence unlawful for purposes of his resisting arrest prosecution. People v. Kodlowski, 2012 Mich. App. LEXIS 2440 (December 4, 2012).*

There was [apparently] probable cause for plaintiff’s arrest and the impoundment of his car, so his Fourth Amendment claim fails. Philpott v. Weaver, 497 Fed. Appx. 667 (8th Cir. 2012).*

A Kansas ruse checkpoint led to a stop. The government argued that the defendants were not seized at the time of the stop, but the district court didn’t believe the trooper’s testimony because it was contradictory. Substantial evidence supported the district court’s findings of fact leading to suppression of the search. The stop was in Kansas and the indictment was in the Northern District of New York. United States v. Murphy, 703 F.3d 182 (2d Cir. 2012).*

Defendant was staying at a house on house arrest, and he did not have a reasonable expectation of privacy as to its storage room to which he had a key. He did not have exclusive access to it, and others came and went. United States v. Gardner, 2012 U.S. Dist. LEXIS 171927 (E.D. N.C. August 9, 2012).*

Inability to name what defendant did what makes it impossible to hold them responsible for a failure to intervene or forced consent search. Bark v. Chacon, 2012 U.S. App. LEXIS 24928 (10th Cir. December 5, 2012).*

Defendant in a car seen seven blocks from a shots fired call matching the description of the car involved was reasonable suspicion. Statements of counsel alone are insufficient to make a question of fact in this district for a hearing; there must be an affidavit of fact. United States v. Russell, 2012 U.S. Dist. LEXIS 172206 (S.D. N.Y. November 14, 2012).*

The wrong number for the address of defendant’s place (“34” not “32”) was not a constitutional error. The correct color was shown, and the officers made certain that they entered the correct house when they got there by rechecking with other sources. United States v. Running Shield, 2012 U.S. Dist. LEXIS 172245 (D. S.D. December 4, 2012).

In an interstate transportation for prostitution case, a search warrant was validly issued for evidence to corroborate the victim’s version of events. A search warrant for sealed evidence bags coming from another state was as particular as it could get. United States v. Campbell, 2012 U.S. Dist. LEXIS 172246 (D. S.C. December 5, 2012).*

Any errors in the officers’ “smell statistic” of the number of times the smell of marijuana bore fruit at a grow operation were not so material or beyond reckless that they undermined the probable cause. Hamilton v. State, 2012 Alas. App. LEXIS 173 (December 5, 2012).*

SSRN: To Be Secure: The Forgotten Words of the Fourth Amendment by Luke M. Milligan:

The Fourth Amendment of the U.S. Constitution 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...” For over two hundred years the text “to be secure” has been neglected by courts and constitutional historians.

As currently interpreted, the Fourth Amendment is limited to the protection of persons against actual searches and seizures. If such a limitation had been the design of the framers, then the “to be secure” text must be acknowledged as superfluous. The prohibition of actual searches and seizures would have been sufficiently conveyed by a Fourth Amendment that read: “The right of the people, in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The framers’ inclusion of the “to be secure” language therefore suggests an intent to create a different, somewhat broader, right against searches and seizures.

The intended scope of this broader Fourth Amendment right depends upon the meaning of the term “secure” at the time of drafting and ratification. From my review of relevant historical materials, there appear to have been two contending meanings of “to be secure”: (1) “to be free of fear”; and (2) “to be protected.” Either definition expands the reach of the literal Fourth Amendment to new and important forms of government action. Currently the Amendment does not prohibit government (1) threats of unreasonable searches or seizures; (2) acts leaving persons unsure about the use of unconstitutional (or potentially unconstitutional) surveillance techniques; or (3) restrictions on home or personal security measures. These forms of government action, permissible under modern doctrine, would fall within the purview of the Fourth Amendment if the “to be secure” text were taken seriously. Its first plausible meaning (“to be free of fear”) renders all three acts described above (i.e., threats of search/seizure, creation of confusion about the use of unconstitutional surveillance techniques, and restrictions on home/personal security) vulnerable to Fourth Amendment challenges. The alternative plausible meaning (“to be protected”) calls into question the constitutionality of, at the very least, government restrictions on private security measures.

Search of defendants’ recent call list off a cell phone was reasonable as a part of search incident where there was probable cause to connect the phone to the offense of arrest. Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210 (2012):

This case falls squarely within the scope of Madera [and basic SI law]. The evidence at issue here consists of the contents of the recent call list on the defendant's cellular telephone. The defendant does not appear to dispute that the cellular telephone itself -- the physical object -- was seized properly during a permissible search incident to his lawful arrest. More to the point, like the police in Madera, 402 Mass. at 158, 160-161, the officers here had probable cause to believe the telephone's recent call list would contain evidence relating to the crime for which he was arrested: Officer Fontanez had seen the defendant using the cellular telephone just before the observed drug transaction between the defendant and Claiborne took place; the police recognized Claiborne as a drug user and recovered cocaine from Claiborne; and Detective McCarthy testified that based on his experience, telephones are commonly used in the drug trade. Thus, the search of the call list in this case was a valid search incident to arrest.

We do not suggest that the assessment necessarily would be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device. Determination of the reasonableness of a search "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). As other courts have noted, see, e.g., United States v. Flores-Lopez, 670 F.3d 803, 805-806 (7th Cir. 2012); State v. Smith, 124 Ohio St. 3d 163, 167-169 (2009), today's cellular telephones are essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms. They present novel and important questions about the relationship between the modern doctrine of search incident to arrest and individual privacy rights. Although an individual's reasonable expectation of privacy is diminished concerning his or her physical person when subject to a lawful arrest and taken into custody, the same may not necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that he or she is carrying at the time of arrest. See People v. Diaz, 51 Cal. 4th 84, 110 (Werdegar, J., dissenting), cert. denied, 132 S. Ct. 94 (2011). However, we do not need to consider these questions in the present case.

Accord: Commonwealth v. Berry, 463 Mass. 800, 979 N.E.2d 218 (2012).

Defendant’s backpack was lawfully searched incident to his arrest. Arizona v. Gant applies to vehicles, and it does not change the rules of search incident of the person. People v. Marshall, 2012 CO 72, 289 P.3d 27 (2012):

[*P14] In contrast to the search of a vehicle, the arrest of a person necessarily involves greater officer safety concerns because, unlike items in the compartment of a vehicle, the arrested individual might still be able to access those items on his person even after arrest. Similarly, because the items remain in close proximity to an arrested individual, he might still be able to access that evidence. In brief, there is a factual distinction between searches of cars and persons. This Court's Fourth Amendment jurisprudence reflects this distinction and, accordingly, indicates that the trial court's extension of Gant without additional guidance from the United States Supreme Court was error. Compare Gant, 556 U.S. at 337-38, with United States v. Robinson, 414 U.S. 218, 226, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). As such, we turn to this Court's precedent addressing the search of a person incident to arrest.

The center brake light wasn’t working, and that justified defendant’s stop under state law (at least there was reasonable suspicion for it). The officer recognized defendant as a recent arrestee and shooting victim, and saw furtive movements. The officer went where the movements were and recovered a machine pistol. The search there was reasonable, and the drawing of guns was not excessive. United States v. Jones, 2012 U.S. App. LEXIS 24860 (3d Cir. December 4, 2012).*

Defendant was stopped with reasonable suspicion where the vehicle and driver matched the description of a vehicle involved in a bank robbery. The defendant was cooperative, and, when he smiled, the officer could see a chipped tooth which was described by the robbery victims. The stop and its continuation was all with reasonable suspicion ripening to probable cause. United States v. Farnell, 701 F.3d 256 (8th Cir. 2012).*

The CI’s reliability for this search warrant was shown by officer corroboration of information, not by his past performance. United States v. Johnson, 2012 U.S. Dist. LEXIS 171552 (E.D. Mich. November 28, 2012).*

The affidavit for search warrant provided probable cause on the totality of information. While the reporting victim was young, that did not undermine her statement that her father had sex with her because of some limited corroboration from statements of the father. The search warrant also was not stale. “When the affidavit recites facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant.” The victim’s statements supported a request in the warrant for writings and pictures. Jarnagin v. State, 392 S.W.3d 223 (Tex. App. – Amarillo 2012).*

Defendant’s 2255 claim that defense counsel was ineffective for not challenging the search warrant was denied because there was no search warrant. Defense counsel did challenge a warrantless search. United States v. Anderson, 2012 U.S. Dist. LEXIS 171275 (E.D. Va. December 3, 2012).*

Claimant’s stop was reasonable based on a traffic offense, and it was not so long before consent was given that it was unreasonable. United States v. $89,980.00 United States Currency, 2012 U.S. Dist. LEXIS 171893 (S.D. Tex. November 9, 2012).*

Plaintiffs’ gated front yard was curtilage, and the officer had to know it. Kicking open the gate hitting plaintiff was unreasonable. Sims v. Stanton, 706 F.3d 954 (9th Cir. 2012), amended January 16, 2012:

Sims's small, enclosed, residential yard is quintessential curtilage. "[A] small, enclosed yard adjacent to a home in a residential neighborhood [] is unquestionably such a 'clearly marked' area 'to which the activity of home life extends,' and so is 'curtilage' subject to the Fourth Amendment protection." Struckman, 603 F.3d at 739 (quoting Oliver, 466 U.S. at 182 n.12). Because Sims's front yard obviously meets the definition of curtilage, the district court did not need to analyze it under the factors announced by the Supreme Court in United States v. Dunn. 480 U.S. at 294. These factors serve as "useful analytical tools" to ensure that Fourth Amendment protections extend to areas that are much further from the house but that still should be "treated as the home itself." Id. at 300-01. Here, however, the factors are unnecessary because it is "easily understood from our daily experience" that Sims's yard is curtilage.⁴ Oliver, 466 U.S. at 182 n.12; see also Struckman, 603 F.3d at 739.

4 Of course, applying the Dunn factors to Sims's yard leads to the same result. The first factor, "the proximity of the area claimed to be curtilage to the home," id. at 301, is met because her front yard is adjacent to her home and extends only a short distance. The second factor, whether the area is "included within an enclosure surrounding the home," id., is met because a tall wooden fence encloses both her front yard and her home. Sims meets the third factor, "the nature of the uses to which the area is put," id., because Sims stated that she enjoyed a high degree of privacy in her front yard, that she used it to store her wheelchair, and that she entertains guests there. The final factor, "steps taken by the resident to protect the area from observation by people passing by," id., is met because the gate that Stanton kicked in was a "sturdy, solid wood," six-foot-high fence with narrow slats between the planks of wood.

One defendant in this § 1983 case argued that his entry into plaintiffs’ home was de minimus and, therefore, reasonable. The Sixth Circuit disagreed that a de minimus entry is reasonable, finding support in Payton and Steagald. Andrews v. Hickman County, 700 F.3d 845 (6th Cir. 2012):

Finally, Wade argues that his actions were de minimis and thus qualify for an exception where conduct that technically qualifies as a warrantless search or seizure may be found reasonable and thus excused due to the minor nature of the violation. The de minimis rationale has been recognized in limited circumstances. See, e.g., United States v. Jacobsen, 466 U.S. 109, 125, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Wade cites Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001), to support his claim that his intrusion was de minimis and reasonable. However, McArthur is clearly distinguishable from Wade's alleged conduct. McArthur involved the temporary seizure of an individual and a trailer while law enforcement officers obtained a search warrant. The officers had been told by the individual's wife that she had just seen the individual in question hide drugs in the trailer in which he lived. Id. at 329. An officer then proceeded to prevent the individual from reentering the trailer for the two hours it took another officer to obtain a warrant. Id. Unlike the officer in McArthur, Wade and Chessor did not enter the Andrews' home to preserve the status quo while a warrant was sought. Wade had no intention of seeking a warrant or preserving evidence when he stepped into the Andrews' home. In addition, Wade's entry into the home was not de minimis. Under either his account or that of the Plaintiffs, he fully entered the Andrews' home, unlike the officer in McArthur who remained in the doorway observing the individual when he was allowed to reenter the trailer for cigarettes and to use the phone. See id. Further, Wade cannot rely on cases such as United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984), which held that the destruction of a small amount of cocaine during a field test of the substance was a de minimis seizure, because his violation is an invasion of a different degree. Indeed, even in Jacobsen the Supreme Court emphasized that, despite its holding, "where more substantial invasions of constitutionally protected interests are involved, a warrantless search or seizure is unreasonable in the absence of exigent circumstances." 466 U.S. at 125 n.28. The Court cited Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), and Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981), to support the proposition, suggesting that cases implicating warrantless in-home searches and arrests are not appropriate for de minimis arguments. See id.

Wade carried out a warrantless, non-consensual entry into the Andrews' home. As Payton instructs, "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." 445 U.S. at 590. Viewing the record in the light most favorable to the Andrews, a violation of the Andrews's Fourth Amendment right to be free from unreasonable searches and seizures has been shown.

Defendant was Tasered and arrested outside his own house at night in an area known for burglaries and trespasses. He said the house was his, and the door was ajar. The officers acted reasonably by going to the open door and calling out for anyone inside. They pushed the door open and saw lit candles. It was reasonable to enter to extinguish them because of the risk of fire if left unattended too long. Cocaine was in plain view, and the entry was reasonable under all the circumstances. State v. Washington, 2012 La. LEXIS 3083 (La. November 16, 2012).*

Use of a PBT to determine a minor in possession case was waived where not presented to the trial court. In re J.J.M., 2012 Ohio 5605, 2012 Ohio App. LEXIS 4844 (7th Dist. December 3, 2012).*

The evidence supported the trial court’s finding that defendant consented to a search of her person for drugs during a stop. City of Ashland v. Zehner, 2012 Ohio 5545, 2012 Ohio App. LEXIS 4826 (5th Dist. November 29, 2012).* Same; search of a house. State v. Jackson, 2012 Ohio 5548, 2012 Ohio App. LEXIS 4827 (5th Dist. November 29, 2012).*

Incorrect time of issuance on the search warrant was a “mere technicality” and a scrivener’s error that could be overlooked by the state proving the correct time. State v. Thompson, 307 Conn. 567, 57 A.3d 323 (2012); State v. Jevarjian, 307 Conn. 559, 58 A.3d 243 (2012) (Also, parking an RV at the house of another did not give one standing to contest the search of the entire house as an overnight guest. It presented a moot question on the RV which still supported the guilty plea.):

Turning first to the defendant's claim that the trial court improperly relied on parol evidence to determine whether a scrivener's error was made, we previously have observed that, "although probable cause must be determined from the four corners of the warrant, we are not confined to the four corners of the warrant in determining whether the affidavit in support of probable cause has been validly executed." State v. Colon, supra, 230 Conn. 34. Mere technical defects are likewise insufficient to invalidate an otherwise valid search warrant. See, e.g., State v. Browne, 291 Conn. 720, 743-44, 970 A.2d 81 (2009). Accordingly, we do not agree with the defendant that the trial court's reliance on parol evidence to determine the timing of the warrant's execution was improper.

Parole search of a car extends where the parolee could keep his stuff. People v. Schmitz, 55 Cal. 4th 909, 149 Cal. Rptr. 3d 640, 288 P.3d 1259 (2012):

This case involves the constitutional limits of a vehicle search based on a passenger's parole status. Here, an officer, aware that the front seat passenger was on parole, searched the backseat of defendant's car and recovered drugs and drug paraphernalia from a chips bag and a pair of shoes. Defendant, the driver, sought to suppress that evidence. We conclude that the search was reasonable under the Fourth Amendment to the United States Constitution. We hold that the Constitution permits a search of those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity. Additionally, the officer may search personal property located in those areas if the officer reasonably believes that the parolee owns those items or has the ability to exert control over them.

Court of Appeals reversed. People v. Schmitz, 187 Cal. App. 4th 722, 114 Cal. Rptr. 3d 490 (4th Dist. 2010).

The trial court correctly determined that the search of defendant was outside the specific terms of the search warrant because he was not inside the house at the time of the search. The warrant was otherwise issued with probable cause. State v. Stambaugh, 2012 Ohio 5568, 2012 Ohio App. LEXIS 4832 (9th Dist. December 3, 2012).*

The trial court’s finding on credibility is almost unassailable, and here it was against the officer on consent. Affirmed. State v. Evans, 2012 Ohio 5485, 2012 Ohio App. LEXIS 4763 (9th Dist. November 28, 2012).*

State court pen registers were valid because they said they were to be conducted within the jurisdiction of the state court that authorized them. 18 U.S.C. § 3123(b)(1)(B). United States v. Mamalis, 498 Fed. Appx. 240 (4th Cir. 2012).*

Officers failed to articulate a factual basis for stopping defendant for an obscured license plate number or obstructed windshield. As to the former, the dispatch tape has the officer reading the license plate number off before the stop. United States v. Lozoya-Izaguirre, 2012 U.S. Dist. LEXIS 170816 (S.D. Tex. November 30, 2012).*

The defendant is allowed to supplement his motion to suppress to preserve additional grounds for appeal, since it doesn’t require an additional hearing. These matters were discussed at the suppression hearing. United States v. Rodriguez, 2012 U.S. Dist. LEXIS 170879 (D. N.M. November 30, 2012).*

Drugs and guns found during a protective sweep were validly found. The court finds as a fact that the officers did not search before the search warrant arrived. United States v. Hammer, 2012 U.S. Dist. LEXIS 171220 (W.D. Tenn. October 24, 2012).*

A damaged package in a mail sorting center obviously contained marijuana, so the USPS Postal Inspection Service got a search warrant and opened it, finding marijuana. A controlled delivery was arranged. The package went from a house to a car, and the car was stopped. The brief detention of the package to get a search warrant was valid under Van Leeuwen, even though it went over a weekend. This defendant’s challenge of the stop of the car was without standing. United States v. Hayes, 2012 U.S. Dist. LEXIS 170915 (W.D. Pa. December 3, 2012).*

Statement at guilty plea that defense counsel did everything requested (“Boyd's solemn pronouncement made under oath at his guilty plea hearing-that Evatt had done everything that he had asked her to do for him-forecloses any argument at this time that Evatt failed to respond to Boyd's requests.”) precluded an IAC claim for not appealing a suppression motion that was denied. United States v. Boyd, 2012 U.S. Dist. LEXIS 171123 (D. S.C. December 3, 2012).*

Defendant’s stop was based on specific and detailed information from a CI that heroin was being carried in the air vent of defendant’s car. The conflicting information given after the stop added to it. One defendant conceded no standing in the car as a passenger. United States v. Genao, 2012 U.S. Dist. LEXIS 170941 (D. Me. December 3, 2012).*

NYT: Border Searches Face New Challenges in Digital Age by Susan Stellin:

The government has historically had broad power to search travelers and their property at the border. But that prerogative is being challenged as more people travel with extensive personal and business information on devices that would typically require a warrant to examine.

Several court cases seek to limit the ability of border agents to search, copy and even seize travelers’ laptops, cameras and phones without suspicion of illegal activity.

“What we are asking is for a court to rule that the government must have a good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices,” said Catherine Crump, a lawyer for the American Civil Liberties Union who is representing plaintiffs in two lawsuits challenging digital border searches.

While the officer’s testimony seemed slightly exaggerated at times, it still showed probable cause to believe the defendants were smoking marijuana in the car stopped at an intersection. Another in the car admitted to smoking marijuana, and that undermined the defense theory that it was planted by the first officer. United States v. McCrimmon, 2012 U.S. Dist. LEXIS 170592 (S.D. N.Y. November 26, 2012).*

Officers had highly specific information from a CI who obviously saw what he was reporting, and that was sufficient for probable cause and nexus for a stop of the defendant’s car. State v. Vasquez, 2012 Tenn. Crim. App. LEXIS 971 (November 28, 2012).*

Defendant’s successor habeas was denied. The first petition alleged IAC for not challenging a search of a videotape in defendant’s house consented to by his live-in girlfriend, where the tape showed defendant having sex with her minor daughter. She had the ability to consent. Thompson v. Ballard, 2012 W. Va. LEXIS 951 (November 30, 2012) (memorandum).*

A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead following United States v. Scott, 610 F.3d 1009 (8th Cir. 2010), where such a sniff was not unlawful. United States v. Givens, 2012 U.S. Dist. LEXIS 170649 (N.D. Iowa November 30, 2012).* [Note: Davis would support this search because of Scott even if Jardines is reversed by SCOTUS. Scott was decided in July 2010, and this search was the following December.]

Defendant’s stop was based on an apparent drug deal going down in it. The use of a drug dog after that was with reasonable suspicion. The search of his hotel room wasn’t invalid as a fruit of the poisonous tree since there wasn’t any illegality. United States v. Jackson-Forsythe, 498 Fed. Appx. 224 (4th Cir. 2012).*

Defendant’s arrest was reasonable, so his statements come in. United States v. Foster, 2012 U.S. Dist. LEXIS 169794 (D. Md. November 28, 2012).*

Crediting the officers’ testimony that defendant consented to a patdown that produced a sawed-off shotgun was not clearly erroneous. United States v. Oldham, 2012 U.S. App. LEXIS 24686, 2012 FED App. 01227N (6th Cir. November 28, 2012). Clearly erroneous explained:

The district court did not commit clear error in crediting the officers' testimony that the encounter and pat-down search were consensual. Nothing in the officers' reports, in their testimony, or in any evidence contradicts their version of the events.

There 'can virtually never be clear error' where the 'trial judge's finding is based on [her] decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence,' and where that finding is 'not internally inconsistent.'

Brooks v. Tennessee, 626 F.3d 878, 897 (6th Cir. 2010) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985)). The district judge credited the officers' testimony, which is uncontradicted by anything but Oldham's testimony. That determination cannot constitute clear error.

The juvenile had an early meeting with her school counselor, and, after the meeting, she had to leave her bookbag because of a school rule against bookbags in the hallway. Four times during the day she came and asked for access to the bookbag which was denied. Based on that, the counselor decided to search the bookbag, and marijuana and paraphernalia was found. The search was without reasonable suspicion of any violation of law or rule, and was unconstitutional. T.S. v. State, 100 So. 3d 1289 (Fla. 2d DCA 2012).

Defendant was stopped on a bicycle for having no light. It should have been viewed the same as a traffic stop with basic questioning. Defendant was asked if he had a weapon and he volunteered he did. That was not unconstitutional. State v. Brown, 2012 Ohio 5532, 2012 Ohio App. LEXIS 4806 (2d Dist. November 30, 2012).

Fleeing from a car stopped for a traffic violation is not being “stopped” for Fourth Amendment purposes. United States v. Sebbern, 2012 U.S. Dist. LEXIS 170550 (E.D. N.Y. November 30, 2012).*

Ohio Plain Dealer: Keep DNA evidence private by Jonathan Witmer-Rich and Brendan Heil:

On Nov. 1, the Ohio Supreme Court issued a startling -- and unnecessary -- opinion eroding DNA privacy for Ohio citizens. The court held that the Fourth Amendment does not protect an individual's personal DNA profile. In the court's words, "[a] person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample."

The case, State v. Emerson, originally involved DNA evidence legally obtained from Emerson through a valid warrant in a rape investigation. Emerson was acquitted of the rape charge, but his DNA profile was kept in the Ohio DNA database. His DNA profile could then be searched again and again, anytime law enforcement compared a sample from a new crime scene with the DNA profiles in the database. Emerson was later convicted of murder, mostly due to a DNA match with a sample found at the scene of that crime.

The case is here.

The box delivered to defendant had a beeper inside that was supposed to emit a continuous tone when it was opened. It malfunctioned and continued to emit a continuous tone before it left police custody. There were no exigent circumstances justifying a warrantless entry into defendant’s dwelling to secure the package because the police had no information of imminent destruction of evidence. United States v. Lawson, 2012 U.S. App. LEXIS 24681 (9th Cir. November 30, 2012).*

Defense counsel was not ineffective for not moving to suppress a photograph in a camera that was already lawfully subject to search under a warrant. In it was a picture of defendant wearing the same shirt described by the witnesses to this shooting. People v. Marshall, 2012 Mich. App. LEXIS 2416 (October 4, 2012), ordered published November 29, 2012.

Defendant was allowed free access to a storage room in the house searched, but he had no key to it. Consequently he had no reasonable expectation of privacy and, thus, no standing. United States v. Gardner, 2012 U.S. Dist. LEXIS 170258 (E.D. N.C. November 30, 2012).*

Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judge is binding on remand–no new hearing for it. United States v. Delgado, 701 F.3d 1161 (7th Cir. 2012):

For the government's theory to be reasonable under these circumstances, one would have to believe that the shooter (lethally armed and bent on killing Aviles), Delgado (potentially lethally armed and bent on protecting Aviles), and Aviles rushed into the sole-occupant apartment and were poised for a fatal showdown, but that the officers happened to knock on Delgado's door at the precise climactic moment before anyone could pull a trigger or throw a punch, causing the parties to immediately suspend all hostilities while the shooter scrambled into a hiding position and Aviles and Delgado left acting as if nothing had happened. The presumption of unconstitutionality that attaches to warrantless searches requires the government to point to something that would lead a reasonable officer to think that this improbable scenario actually transpired, but the government simply has not done so.

The government argues that Aviles's and Delgado's silence when they came out of the apartment does not mean that the shooter was not in the apartment, because victims of violence sometimes choose to remain silent to prevent an investigation into their own criminal activity or to prevent their wounded foe from receiving aid. But this argument erroneously suggests that the defendant carries the burden of proving a lack of exigent circumstances, when it is actually incumbent upon the government to point to some affirmative sign of exigency. Silence in this context cannot be that sign, as it could have easily meant any number of things having nothing to do with exigent circumstances. Cf., e.g., Ellis, 499 F.3d at 691 (finding no exigent circumstances because general movement noises in response to officer's knocking do not automatically mean that evidence is about to be destroyed, when they could simply signal someone getting up to answer the door). The government notes that in other cases, police officers have validly entered homes without a warrant upon suspicion of domestic violence even when the victim remains silent upon answering the door, but in those cases, silence or an indication that everything was fine was not in and of itself an affirmative indication of exigent circumstances. The victim's silence simply failed to vitiate other affirmative indications that something dangerous was happening inside the home. ... Absent such other affirmative indications here, Aviles's and Delgado's silence adds nothing to the exigent circumstances equation.

The government's failure to carry its burden compels us to find that the officers violated Delgado's Fourth Amendment rights when conducting a warrantless search of his apartment. So we reverse the denial of Delgado's suppression motion, vacate his conviction, and remand for additional proceedings consistent with this decision. In remanding, we also instruct the district court to grant Delgado's suppression motion. After the magistrate judge found a lack of exigent circumstances based on a set of stipulated facts, the government could have asked the district court to supplement the record and could have requested an evidentiary hearing. See 28 U.S.C. § 636(b)(1); Hynes v. Squillace, 143 F.3d 653, 656 (7th Cir. 1998); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). It did not. Though the government has not suggested that it is now entitled to an evidentiary hearing at this late stage, our instructions to grant the suppression motion do not include providing an evidentiary hearing. It is too late for that.

A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, __ Md. App. __, 56 A.3d 830 (2012) (Moylan, J.):

What A Reviewing Judge Must Not Do:

Determine Probable Cause De Novo

[Query: Isn’t that exactly what appellate courts do under Ornelas? Come on; you’re going too far in your rhetoric.]

What A Reviewing Judge Should Do: Be Content With A Substantial Basis

In Fitzgerald v. State, 153 Md. App. 601, 627, 837 A.2d 989 (2003), aff'd, 384 Md. 484, 864 A.2d 1006 (2004), this Court switched to affirmative terms to praise a suppression hearing judge for doing what a reviewing judge should do:

Once again [the suppression hearing judge] commendably recognized the constraints on her reviewing role. She did not presume to find probable cause. That was not her job. What she found was that [the warrant-issuing judge] had had a "substantial basis" for finding probable cause. That was her job. .

The relatively lower hurdle that must be cleared by an application for a search warrant is that it must provide a "substantial basis" for the issuance of the warrant. Illinois v. Gates described that lower hurdle, 462 U.S. at 236: ...

. . .

"Substantial Basis" Is Less Than "Probable Cause"

Terms such as "substantial basis" and "probable cause" can be, however, frustratingly slippery. The one thing we can be certain about is their relative weight when compared with each other. A substantial basis is less weighty and less logically probative than probable cause. A tightly reasoned examination, for instance, might reveal a subtle logical flaw in the posited probable cause, but the substantial basis test would not subject the warrant application to so rigorous an analysis. The preference for the warrant and the resulting presumptive validity of the warrant will be able to cover over flaws that might be more compromising if one were examining probable cause in a warrantless setting. Fine points in the arguable nexus between the street criminality of the suspect and the police entitlement to search his home for evidence might well constitute such a case wherein the relative intensities of the examinations might produce very different conclusions. What we know for certain is that some warrant applications will past muster under the lesser test that would not pass muster under the more demanding test.

. . .

A Prima Facie Case Is Not Required

Defendant was arrested for obstruction, and the search of his truck after he was handcuffed was invalid under Gant. Hargis v. State, 319 Ga. App. 432, 735 S.E.2d 91 (2012).

The court credits the officers’ testimony that defendant spontaneously admitted to having a gun on him after a brief encounter that was not a confrontation and involved “exchanging pleasantries.” United States v. Pankey, 2012 U.S. Dist. LEXIS 169276 (D. Ore. November 29, 2012).*

Defendant’s stop was for a broken taillight, and the officer saw furtive movements under the seat, and there was a cigarette pack with glass tubes sticking out in plain view. State v. Bridges, 104 So. 3d 657 (La. App. 4 Cir. 2012).*

Defendant’s claim that the AUSA’s signature on warrant papers is constitutionally meaningless even if it was true. Similarly, the fact the affidavit was signed on one day before one judge and the warrant issued on another day before another judge does mean anything. The information about a robbery in this case wasn’t stale; just because the robber could have disposed of the proceeds doesn’t mean that he would. It was within a really short time after the robbery. United States v. Burroughs, 2012 U.S. Dist. LEXIS 169066 (D. D.C. November 29, 2012).*

Probable cause existed for defendant’s arrest, and it was more than mere propinquity (Ybarra). He was known to have driven the co-defendant to a drug deal, and the CI said that more than one person would be coming. The DEA also had prior information about defendant dealing heroin. United States v. Nunez, 2012 U.S. Dist. LEXIS 169893 (W.D. N.Y. February 9, 2012).*

Nervousness and four cell phones, two of which were prepaid, and conflicting travel plans between the passenger and driver was reasonable suspicion to detain for 13 minutes for a drug dog to arrive which was also reasonable. United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012).*

A motorcycle checkpoint program in New York State was shown to be justified by special needs. Wagner v. Sprague, 489 Fed. Appx. 500 (2d Cir. 2012) [but this is a memorandum opinion with no facts].

The government justified a protective sweep of defendant’s house by showing his history of violence. This one took less than two minutes. United States v. Davis, 2012 U.S. Dist. LEXIS 169262 (S.D. W.Va. November 29, 2012)*:

The officers' check of the rooms was prudent, cursory, and over and done with in about two minutes. Given the Defendant's past history of violence, his evasive behavior upon the officers' arrival at the home, and the presence of a fully loaded assault weapon fitted with a large, unsheathed bayonet that was within easy reach of a potential hidden attacker, the officers had every reason to be concerned for their safety. In light of these facts, the officers' limited precautionary check of the spaces immediately adjoining the point of arrest was constitutionally reasonable.

The automobile exception applies to vehicles, not their occupants, and the state confesses error based on United States v. Di Re, 332 U.S. 581, 586-87 (1948). State v. Freeman, 253 Ore. App. 472, 290 P.3d 908 (2012).

Defendant was seized by being ordered by loudspeaker to come out of the house, but there was probable cause to believe that he was involved in crime because the house was a murder scene, police knew an unidentified man was in there, and he wasn’t answering the telephone when they called the house. State v. Hudson, 253 Ore. App. 327, 290 P.3d 868 (2012).*

Defendant was lawfully stopped for blocking the street, and the officer could order defendant out of the vehicle, and that revealed a gun in plain view. State v. Kinard, 105 So. 3d 974 (La. App. 5 Cir. 2012).*

The state violated the Maryland Stored Communications Act, similar to the federal Stored Communications Act, in obtaining cell phone provider created information about his account by a state subpoena served out of state. He has no reasonable expectation of privacy in that information, so the evidence is not excluded. While the state did not explicitly raise standing in the trial court, the trial court found a lack of standing. Defendant’s argument that he did not have an opportunity to provide standing fails because he wouldn’t have standing as a matter of law, and this is harmless error if error at all. Upshur v. State, 208 Md. App. 383, 56 A.3d 620 (2012).

Defendant was stopped because he was suspected of being a hack taxi and threatening his passenger. He denied everything. In a patdown, the car keys in his pocket were subject to “plain feel” connecting him to the hack taxi. McCracken v. State, 429 Md. 507, 56 A.3d 242 (2012).*

Franks “reckless disregard” was shown in a wiretapping case. Here, the issue was the government’s claim they could not use additional GPS devices in exhausting other investigative techniques, and then actually did after that. United States v. Hamilton, 2012 U.S. Dist. LEXIS 169290 (W.D. Wash. November 16, 2012). Examples of Franks reckless disregard from the Ninth Circuit used to aid the analysis:

In Stanert, the Ninth Circuit held that an affiant acted with reckless disregard for the truth when he stated that a suspect had been arrested without mentioning that the suspect was not convicted, and stated that he investigated a lab blowup at the suspect's residence a year before without mentioning the suspect had purchased and moved into the residence after the explosion. 762 F.2d at 782. Similarly, in U.S. v. Chesher, the Ninth Circuit held that the affiant acted with reckless disregard for the truth by representing that a suspect was a current member of the Hell's Angels when affiant had been conducting an investigation for some time which would have apprised him that was untrue. 678 F.2d 1353, 1361 (9th Cir. 1982). In U.S. v. Davis, the Ninth Circuit held that an affiant acted with reckless disregard for the truth when he signed an affidavit written in the first person knowing that it would mislead the magistrate judge into believing he had first-hand knowledge of the facts therein. 714 F.2d 896, 899-901 (9th Cir. 1983). By contrast, in U.S. v. Dozier, the Ninth Circuit held that the trial court's finding that an affiant acted with negligence, rather than reckless disregard for the truth, was "not clearly erroneous." 844 F.2d 701, 705 (9th Cir. 1988). In that case, the affiant misrepresented the defendant's prior criminal history because he did not know how to read the rap sheets. He also falsely stated that another agent had told him that he had seen two vehicles on the defendant's property registered to drug suspects, when in fact, the affiant had conducted a registration check and knew this was not true. See id. at 705-06.

Surveillance of comings and goings to defendant’s apartment with a pole camera does not constitute a “trespass” under Jones. United States v. Brooks, 2012 U.S. Dist. LEXIS 168738 (D. Ariz. November 28, 2012):

Additionally, as argued by the Government, despite a block wall that could potentially act as an enclosure or barrier that could obstruct the view of a person standing on the outside of the Westgate complex, the typical focal point of the pole camera was visible to any passerby inside the complex or to any person in the arena parking lot. In fact, Detective Kinsey testified that the complex's outer wall also had iron openings that allowed for easy visibility of Building "L" for someone standing outside of the complex. Defendant presented no evidence to rebut Detective Kinsey's testimony that he could simply walk into the complex from the street, leaving Defendant's assertions about the apartment community's keypad access as insufficient to show that there were special features or activities associated with the Westgate complex parking lot to support a reasonable expectation of privacy in the parking lot.

The evidence points to the fact that a person would not be required to be a complex resident to see the "comings and goings" at the Glendale Apartment, and any expectation of privacy by Defendant in the complex parking lot in front of Building "L" from surveillance was unreasonable. Therefore, law enforcement's use of the pole camera did not violate the Fourth Amendment and, thus, there was no need for law enforcement to seek a warrant before using the camera.

Defendant had been Mirandized and told he could refuse consent, so his consent is found voluntary. United States v. Brooks, 2012 U.S. Dist. LEXIS 168734 (D. Ariz. November 28, 2012).*

Police officers acted reasonably in entering defendant’s apartment after repeated rebuffed requests to turn down the music which was bothering the neighbors. Even though nighttime entries require higher justification, defendant’s own actions “‘undermined’ his right to privacy.” The police entered, and he allegedly resisted. Olson v. State, 208 Md. App. 309, 56 A.3d 576 (2012):

Although his Fourth Amendment rights would ordinarily be at their zenith when he is home at night, appellant "undermined" his right to privacy "by projecting loud noises into the neighborhood in the wee hours of the morning, thereby significantly disrupting his neighbors' peace." United States v. Rohrig, 98 F.3d 1506, 1521 (6th Cir. 1996). See also State v. Kaltner, 420 N.J. Super. 524, 534 (2011) ("under certain circumstances, a defendant who knowingly exposes one's home to the public has a 'lessened expectation of privacy'") (quoting State v. Henry, 133 N.J. 104, 117 (1993)); Commonwealth v. Orlando, 371 Mass. 732, 735 (1977) ("[A]busive language [which] in some circumstances may constitute protected speech ... may be constitutionally proscribed when loudly uttered late at night in a residential neighborhood so that people in the privacy of their homes are unable to avoid the noise."). Through his own actions, appellant made it impossible to protect his privacy interests "without diminishing his neighbors' interests in maintaining the privacy of their homes." Rohrig, 98 F.3d at 1522. Here, "preserving a peaceful community is all the more compelling when balanced against [appellant's] substantially weakened interest in maintaining the privacy of his home." Id.

To be sure, it would have been appropriate, and perhaps feasible, for the police to have obtained a warrant soon after they first arrived on the scene in light of appellant's behavioral history and his expressed intent to continue projecting his music through the night. But appellant should not be rewarded — and the neighborhood penalized — for the extended period of police patience and restraint.

Placing a GPS on a car in April 2011 was not unlawful because of the Davis good faith exception. When it was placed, the car was parked in an apartment complex parking lot, and it could not be considered curtilage. United States v. Brooks, 2012 U.S. Dist. LEXIS 168737 (D. Ariz. November 28, 2012).*

Defendant argued that the search warrant for defendant’s warehouse didn’t authorize a search of the entire warehouse because it said the part “under control” of the defendant. The court found that the good faith exception justified the search, and the government justified the good faith exception. United States v. Sakuma, 2012 U.S. Dist. LEXIS 168877 (D. Haw. November 27, 2012).*

Plaintiff’s termination proceeding as a law enforcement officer ligated his search issue but it wasn’t appealed. It could have been appealed but wasn’t, and it’s res judicata. Jacobs v. Arizona, 491 Fed. Appx. 837 (9th Cir. 2012).*

The use of a “Shadow” radio device to find wireless signals in an area associated with suspect IP address subscribers was not a Fourth Amendment search, and defendant had no reasonable expectation of privacy in a radio signal emitting from his house. Going on to defendant’s lawn, however, invaded the curtilage. Then, an ambiguous usage spike didn’t provide probable cause to believe that child pornography was being obtained. United States v. Broadhurst, 2012 U.S. Dist. LEXIS 168893 (D. Ore. November 28, 2012):

Defendant contends Detective Link's actions fall squarely within the definition of a search under Jones. Detective Link trespassed on defendant's front lawn to obtain data with the Shadow regarding the location of the suspect station device. The government does not dispute that Detective Link trespassed on defendant's front lawn and offers no exigent circumstance for Detective Link's actions. (Resp. [42] at 15). I agree with defendant that Detective Link engaged in a warrantless search in violation of the Fourth Amendment when he physically trespassed on defendant's protected private property for the purpose of obtaining information.

Four non-exhaustive factors are examined to determine whether an area is part of a home's curtilage: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 307 (1987); see Perea-Rey, 680 F.3d at 1184 (applying Dunn factors). "These factors do not yield a definite answer; rather they guide courts in determining whether the area is so intimately connected to the home that it should fall under the umbrella of the Fourth Amendment's protections." United States v. Johnson, 256 F.3d 895, 911 (9th Cir. 2001) (en banc) (Kozinski, J., concurring). Here, all four factors are met. The front lawn is next to the home and is included in the mixed enclosure of trees, shrubbery, and fence surrounding the home. The lawn appears well-kept with trimmed grass and trees, a garden, and a dog house. In addition to the enclosures, the lawn had at least two "Private Property/No Trespassing" signs. Because all four factors are satisfied, the front lawn is curtilage. Therefore, defendant's front lawn is afforded the same Fourth Amendment protection as the home, see Duenas, 691 F.3d at 1081, and Detective Link's trespass constituted an unlawful search under the Fourth Amendment, see Perea-Rey, 680 F.3d at 1186.

. . .

Perhaps some of this missing information in the warrant affidavit could be attributed to the fact that this investigation was the first time the Clackamas County Sheriff's Office used the Shadow. Nonetheless, an officer must provide the issuing judge with sufficient information to understand the technology at issue. And although the suppression hearing more fully explained the Shadow technology, this information cannot be used retrospectively to evaluate the legality of the warrant affidavit. See Stanert, 762 F.2d at 778.

Consequently, an ambiguous spike coupled with a limited description of the Shadow technology did not establish a "fair probability" that evidence of child pornography crimes would be found in defendant's residence.

The GUID confirmation also failed to support a finding of probable cause to search defendant's residence. While the consistent GUID confirmed Deputy Sheriff Schweitzer's belief that one peer with one computer was accessing multiple Internet connections, none of the IP addresses associated with this GUID was subscribed to defendant's residence. Therefore, the GUID confirmation actually suggested that defendant's residence might not have been the location of the suspect station device. This, too, undermined a finding of probable cause.

A dog alert on a car alone was no justification for a frisk because it could have been drugs, money, or people the dog was alerting on. “The Supreme Court has not allowed a general suspicion of drug activity to provide blanket authorization for frisking anyone in the vicinity. See Ybarra v. Illinois, 444 U.S. 85, 90-91 (1979).” United States v. I.E.V., 705 F.3d 430 (9th Cir. 2012):

Moreover, in this case, both officers testified that the Defendant acted in a non-threatening and compliant manner. This is similar to the compliant suspect who was unconstitutionally frisked in Ybarra, and unlike the suspect in Jacobs who was charging police officers in his vehicle. Moreover, the Defendant was a young teenager surrounded by three police officers, rather than a man confronting a solitary officer in a confined space, as in U.S. Currency. Therefore, the officers' general suspicion of drugs did not justify the frisk of Defendant.

Officer failed to show reasonable suspicion for his continued questioning of the plaintiff, so there is no qualified immunity. Sutton v. Metro. Gov't of Nashville & Davidson County, 700 F.3d 865 (6th Cir. 2012).*

Nexus was shown to defendant’s house by witnesses saying defendant had a gun and fired it, and the car in front of his house was hit by a bullet. “The nexus between the items to be seized and the place to be search need not establish to a certainty that the items to be seized will be found in the location specified in the warrant, nor exclude any and all possibility that the items might be found elsewhere. Rather, the test is probable cause, not certainty. ‘The affidavit need not convince the magistrate beyond a reasonable doubt, but must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.’ Commonwealth v. Donahue, supra.” Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 978 N.E.2d 1215 (2012).*

The probable cause for defendant’s apartment was not stale because the affidavit in support referred to ongoing drug sales, and there was good faith. In the search a safe was seized, and information received at the time of the search separately supported the search warrant for the safe. United States v. Gibbs, 2012 U.S. Dist. LEXIS 168586 (W.D. Pa. November 28, 2012).*

Physical pain is enough injury for a Fourth Amendment violation of a suspect's rights to support a conviction under 18 U.S.C. § 242 for abusing an arrestee. The defendant was a Border Patrol officer. United States v. Diaz, 498 Fed. Appx. 407 (5th Cir. 2012):

Because determining whether a Fourth Amendment injury is more than de minimis depends on the context in which the injury arose, see id., we cannot categorically say that the district court may never charge the jury that "bodily injury" may include "physical pain." Moreover, Diaz's argument that including "physical pain" in the definition of "bodily injury" means including injuries that this circuit has held to be de minimis is foreclosed by Brugman. [United States v. Brugman, 364 F.3d 613 (5th Cir. 2004)]

Mich.L.Rev.: The Mosaic Theory of the Fourth Amendment by Orin S. Kerr:

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

Policy alone does not justify an inventory; the facts must justify it, too. United States v. Cervantes, 703 F.3d 1135 (10th Cir. 2012):

Neither Sanchez nor Colley provided any testimony that Cervantes's vehicle was parked illegally, posed a safety hazard, or was vulnerable to vandalism or theft. To the contrary, Officer Colley testified that Cervantes appropriately pulled over to the curb when he was stopped in a residential neighborhood. While it is true that Cervantes's vehicle was not in close proximity to his home at the time it was impounded, cf. Caseres, 533 F.3d at 1075 (noting that defendant's vehicle was two houses away from his home), the government presented no evidence that the vehicle would be vulnerable to vandalism or theft if it were left in its residential location, or that it posed a safety hazard, and thus failed to meet its burden to show that the community caretaking exception applied. Id.; Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n.4 (9th Cir. 1993) (upholding the towing of a car from a public parking lot, not a residential street, under the community caretaking exception).

Nor can the government justify the impoundment by simply citing to sections of the California Vehicle Code and the LAPD's policy on impoundments and inventory searches. The fact that an impoundment complies with a state statute or police policy, by itself, is insufficient to justify an impoundment under the community caretaking exception. See Miranda, 429 F.3d at 864 ("We begin with the premise, apparently not recognized by the Defendants, that the decision to impound pursuant to the authority of a city ordinance and state statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment ...."). "[T]he decision to impound a vehicle Moreover, it is not clear that Officers Colley and Sanchez even complied with the California Vehicle Code when they impounded Cervantes's vehicle. According to California Vehicle Code § 22651(h)(1), an officer may impound and remove a vehicle "[w]hen an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody." Cal. Vehicle Code § 22651(h)(1) (emphases added). Pursuant to California Vehicle Code § 14602.6(a)(1), "[w]henever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked ... the peace officer may either immediately arrest that person and cause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic collision, cause the removal and seizure of the vehicle without the necessity of arresting the person ...." Cal. Vehicle Code § 14602.6(a)(1) (emphases added). While the purported reason for the impoundment of Cervantes's car was his alleged driving without a license, in violation of California Vehicle Code § 12500(a), according to both officers, Cervantes was arrested and taken into custody only after the vehicle was impounded and the inventory search had already resulted in the discovery of narcotics.

In sum, on this record, the impoundment of Cervantes's vehicle was not justified by the community caretaking exception to the Fourth Amendment's warrant requirement. The district court's contrary holding was error.

I suspect this case may go up. Courts always grant deference to the police to impound a vehicle, almost on a whim, or at least bending over backwards to twist facts to support the police, as the dissent seemed to do here. Such deference has always rubbed me the wrong way, but I'm not an appellate judge, either. Here, Cervantes's vehicle was stopped in an ordinary residential area, not a "high crime area," so the risk of theft was reduced. But, if Cervantes was going to be in custody for a while, what about leaving it for weeks or months parked in front of a house? I'm making the government's argument now, I guess. But, so what? What about inevitable discovery when the vehicle is someday towed? Too speculative?

In this child pornography case, the officer here accidentally typed the name of a nonexistent town criminal court at the top of the warrant. “The Village Justice [of the Peace] signed the warrant without correcting the mistake. His signature was affixed on a line marked ‘Signature of Judge or Justice,’ but it is illegible, and the court is not named.” The warrant is void because it can’t be ascertained who issued it, and that violates the neutral and detached magistrate requirement. People v Gavazzi, 2012 NY Slip Op 8054, 20 N.Y.3d 907, 957 N.Y.S.2d 660, 981 N.E.2d 256 (2012):

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The officer did not ask dispatch to run warrants on defendant until eight minutes into the stop and after the warning ticket was written. Then the officer ignored dispatch’s response to continue the stop. The stop was too long and invalid. Weems v. State, 318 Ga. App. 749, 734 S.E.2d 749 (2012).*

“Prior to requesting consent to search, Sergeant Mathews asked Berry if there was ‘anything in the vehicle [he] should be concerned with.’” Hearing that, defendant’s general consent included the entire vehicle. Berry v. State, 318 Ga. App. 706, 734 S.E.2d 527 (2012).*

The Davis good faith exception applies to GPS installed on a vehicle in 2010. Kelly v. State, 208 Md. App. 218, 56 A.3d 523 (2012).

NACDL Press Release: Former Prosecutors and Judges Join Nation’s Criminal Defense Bar to Support a Warrant Requirement for Law Enforcement Access to Email:

Washington, DC (November 27, 2012) – In a letter to Senators Patrick Leahy and Charles Grassley, the Chair and Ranking Member respectively of the United States Senate Judiciary Committee, 30 former prosecutors and judges weighed in on November 21 in support of Senator Leahy’s amendment to H.R. 2471. As explained in the letter, this amendment “would provide for a much needed judicial check on when the government can access our private digital information.” Currently, and shockingly to many Americans, there is no warrant requirement for the government to access electronic communications stored by a third-party provider so long as the communication is more than 180 days old. This amendment simply puts electronic communications on the same constitutional footing as private communications sent via the U.S. Postal Service, for example.

See HuffPo: The Government Can Read Your Emails, But a New Law Might Stop Them.

HuffPo: A Fourth Amendment for the 21st Century by Julian Sanchez:

The resignation of CIA Director David Petraeus has thrown a spotlight on the FBI's sweeping power to sift through the most intimate details of our digital lives -- often with little or no judicial supervision. On Thursday, the Senate Judiciary Committee will consider legislation that would modestly improve the outdated law governing police access to our emails and other electronic records -- yet even this first step toward meaningful online privacy reform is encountering strong resistance.

Most Americans know that the Fourth Amendment protects us against "unreasonable searches and seizures" -- requiring a judge to issue a specific warrant based on "probable cause" before government agents can search our homes, open our mail or wiretap our phones. Most probably assume that the same protection applies to their email conversations and other sensitive information stored in "the cloud," such as documents, photos, chat logs and records of their Web browsing habits. Unfortunately, under the misnamed Electronic Communications Privacy Act of 1986, that's not true.

Defendant was the driver but not the registered owner of the car. He didn’t testify at the suppression hearing, so he had to rely on the codefendant’s testimony to give him standing, and that fell way short. United States v. Flores, 2012 U.S. Dist. LEXIS 167589 (D. Kan. November 27, 2012)*:

In considering a vehicle where a defendant is the driver but not the registered owner, "mere possession of the car and its keys does not suffice to establish a legitimate possessory interest." Id. (citing United States v. Martinez, 983 F.2d 968, 973 (10th Cir. 1992)). Flores bears the burden of establishing that a person with authority over the vehicle granted him possession. Id. (citing United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990)). There is no evidence whatsoever to establish that Flores received permission from Ochoa prior to driving the Nissan. Moreover, there is no evidence that the Nissan transferred ownership at any point between September 2011 and February 2012.

Search warrant for hotel room included the locked safe in the closet without having to specifically mention it. United States v. Tapia, 2012 U.S. Dist. LEXIS 168118 (W.D. Mo. November 2, 2012).

Defendant can’t win his 2255 for failing to file a suppression motion where he can’t show that he’d have won it. Ables v. United States, 2012 U.S. Dist. LEXIS 167211 (S.D. Ohio November 26, 2012).*

The frisk of defendant’s car was justified by defendant’s furtive movement that appeared to the officer to remove a gun from his waistband and put it under the car seat. Officers approached the car because of the way it was parked, and the furtive movement apparently was in response to that. The gun was seen in plain view through the window. United States v. Brown, 2012 U.S. Dist. LEXIS 167017 (W.D. Pa. November 26, 2012)* (All in all a confusing opinion. The court ends up calling it a “search incident” after describing facts that made the search incident doctrine inapplicable. There was plenty to support the search here without calling it that.)

Defendant was riding a bicycle, and the officer stopped his car without lights and got off. Defendant stopped and talked to the officer. Defendant exhibited nervousness and was fidgety and putting his hands in his pockets. The officer told him to keep his hands out, but he didn’t. That justified a patdown, and cocaine was subject to plain feel. June v. State, 2012 Fla. App. LEXIS 20232 (Fla. 1st DCA November 26, 2012).*

At the guilty plea, it appeared that the search of defendant was valid, and he clearly knew that he was waiving a motion to suppress by pleading guilty. “The record demonstrates that Williams chose to proceed as he did because the search appeared lawful, and he concluded it would be in his best interest not to challenge it.” It also didn’t help that he said he pled guilty not knowing that he’d probably be deported when the guilty plea transcript shows that was clearly discussed. Williams v. United States, 2012 U.S. Dist. LEXIS 167668 (W.D. Ky. November 27, 2012).*

Houston Chronicle: Email not in the Fourth Amendment | Outdated privacy regulations let law enforcement spy via Internet companies and social networks by Caleb Garling:

Outdated digital privacy regulations are increasingly allowing law enforcement agencies to use Internet companies and popular social networks to do their spying.

The Fourth Amendment protects against unreasonable search and seizure of private citizens and their "persons, houses, papers, and effects" - but obviously makes no mention of email in a remote server. In 1986, Congress passed a law regulating how law enforcement can access information stored and communicated electronically. That was years before the Internet became a household term and before email was commonplace.

The law, known as the Electronic Communications Privacy Act, updated the 1968 Federal Wiretap Act. Now, as the Senate considers amending the privacy act to make law enforcement more accountable to the courts, Internet providers and service companies find themselves as awkward middlemen between the government and Web users.

How is email not an "effect"? It is, but there are too many other Fourth Amendment problems lurking.

Defendant filed a motion to suppress and the government didn’t respond in writing, but it did respond at the suppression hearing. The government did not waive its automobile exception argument, and it was squarely before the district court by defendant’s own submission and the arguments of the parties before the USMJ. The district court erred in finding the automobile exception did not apply. United States v. Scott, 705 F.3d 410 (9th Cir. 2012):

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Defendant was subjected to an “incredibly brief” Terry stop to determine if he was armed in a high crime area known for guns. At the time defendant was arrested, the gun was visible inside the car with the doors closed, which made it not subject to search incident. It was, however, subject to plain view. United States v. Brown, 2012 U.S. Dist. LEXIS 167017 (W.D. Pa. November 26, 2012).*

Police had a warrant to search a residence, and they didn’t need a separate search warrant to search one room of it. Defense counsel thus can’t be ineffective. Ables v. United States, 2012 U.S. Dist. LEXIS 167211 (S.D. Ohio November 26, 2012).*

Plaintiff’s Bivens claim against FCI Fort Dix had to go through PLRA exhaustion, which is explained in detail. Brown v. United States, 2012 U.S. Dist. LEXIS 167085 (D. N.J. November 15, 2012).*

NYTimes: Courts Divided Over Searches of Cellphones by Somini Sengupta:

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

A Rhode Island judge threw out cellphone evidence that led to a man being charged with the murder of a 6-year-old boy, saying the police needed a search warrant. A court in Washington compared text messages to voice mail messages that can be overheard by anyone in a room and are therefore not protected by state privacy laws.

In Louisiana, a federal appeals court is weighing whether location records stored in smartphones deserve privacy protection, or whether they are “business records” that belong to the phone companies.

One Lecroy was wanted for an FTA after a traffic accident. Based on a tip of unknown reliability he’d been staying there, they went to defendant’s home at night to find him. Shining flashlights through the window, they found people asleep inside. “Trooper Havens determined that an enquiry of the home's occupants was ‘[a]bsolutely’ appropriate and instructed Trooper Gangloff to knock. In a process that lasted ‘maybe two seconds, three seconds[,]’ Gangloff banged on the door, pushing it open, allowing the smell of burned marijuana to drift outside, and Trooper Havens entered.” After they were in, they told the occupants they weren’t under arrest, but they weren’t free to leave either because the officers were getting a search warrant. The search under the warrant was unconstitutional under the Fourth Amendment, not even deciding the state constitution. The court discussed the weighty privacy concerns of nighttime searches and the state implications of inevitable discovery and concluded the search was just indefensible. Commonwealth v. Berkheimer, 2012 PA Super 253, 57 A.3d 171 (2012) (en banc):

In Mason, law enforcement had sought a warrant prior to entering the defendant's home and obtained the warrant based on information gleaned without resort to illegal entry, thus allowing at least the possibility that the Commonwealth could comport with Fourth Amendment jurisprudence delineating the independent source rule. In response, the Court identified Article I, Section 8 as a source of additional rights and protections that could not be met under the aggravated circumstances in that case. By contrast, while the circumstances in this case exceed those in Mason when measured by the injury they inflicted to the defendants' right to privacy, they also fall substantially short of demonstrating an independent source as required by Murray. Although the search is thus doubly infirm, we need only rely on Fourth Amendment jurisprudence to strike it down. Quite simply, the record in this case identifies no source whatsoever unsullied by the taint of illegality. Therefore, the inevitable discovery exception is not satisfied and the evidence on which the Commonwealth relies was obtained unlawfully.

For the foregoing reasons, we conclude that the trial court erred in denying the defendants' joint motion for suppression. As Mr. Justice Brandeis observed almost a century ago: "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." Edmunds, 586 A.2d at 906 (quoting Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting)). "Although the exclusionary rule may place a duty of thoroughness and care upon police officers and district justices in this Commonwealth, in order to safeguard the rights of citizens under [the Fourth Amendment and] Article I, Section 8, that is a small price to pay, we believe, for a democracy." Id. In the absence of the Commonwealth's proffered evidence, obtained by palpably unlawful government action, there is no evidence that these defendants engaged in any act that was itself unlawful. Consequently, they are entitled to a full discharge.

Defendant who was sitting at his desk and told police that a cooler at his feet had “more weed” in it, and pushed it in the direction of the officers impliedly consented to its search. United States v. Bowser, 2012 U.S. App. LEXIS 24162, 2012 FED App. 01196N (6th Cir. November 20, 2012).*

Defendant’s consent came during the unlawful stop, not after, so reconsideration of the prior opinion is granted and the judgment reversed. State v. Canfield, 251 Ore. App. 442, 283 P3d 438 (2012), reversed. State v. Canfield, 253 Ore. App. 574, 291 P.3d 775 (2012).*

The district court did not plainly err in finding the police had both probable cause and exigent circumstances for their entry, without telling us what it is. United States v. McKoy, 2012 U.S. App. LEXIS 24122 (4th Cir. November 20, 2012).*

While Massachusetts decriminalized possession of small amounts of marijuana for a search of the car, the finding of a warrant on defendant justified his arrest and search because it would have inevitably have happened at the police station anyway. Commonwealth v. Lobo, 82 Mass. App. Ct. 803, 978 N.E.2d 807 (2012).*

Defendant and others were suspected, from looking at hours of casino video surveillance, of conspiring to rob winning casino patrons, following them from Lawrenceburg, Indiana back to Cincinnati and robbing them at their homes. Officers developed probable cause for defendant, and the inventory search of her vehicle when she was arrested followed SOP and was done in good faith and not as a pretext for criminal investigation. State v. Erkins, 2012 Ohio 5372, 2012 Ohio App. LEXIS 4712 (1st Dist November 21, 2012).*

Defendant drifted over the fog line, and he was stopped. The officer wrote him a warning, and told him he was free to leave. Then he asked if he could ask more questions, defendant agreed, and he asked about whether there was anything illegal in the car. Defendant’s heart rate obviously jumped. Defendant validly consented to a search of the car. United States v. Salas, 2012 U.S. Dist. LEXIS 165008 (E.D. Okla. November 1, 2012).*

Officers lacked exigent circumstances for a warrantless entry. They created the exigency by this knock and talk. Defendant’s failure to come to the door timely did not support exigency. Commonwealth v. Waddell, 2012 PA Super 252, 61 A.3d 196 (2012):

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Houston Chronicle: Drone makers push Congress to open skies to surveillance by Gary Martin:

WASHINGTON - Are unmanned aircraft, known to have difficulty avoiding collisions, safe to use in America's crowded airspace? And would their widespread use for surveillance result in unconstitutional invasions of privacy?

Experts say neither question has been answered satisfactorily. Yet the federal government is rushing to open America's skies to tens of thousands of the drones - pushed to do so by a law championed by manufacturers of the unmanned aircraft.

The 60-member House of Representatives' "drone caucus" - officially, the House Unmanned Systems Caucus - has helped push that agenda. And over the last four years, caucus members have drawn nearly $8 million in drone-related campaign contributions, an investigation by Hearst Newspapers and the Center for Responsive Politics shows.

. . .

Privacy concerns

Some lawmakers remain skeptical. Along with civil rights advocates, they worry over government eavesdropping, surveillance photography and other potential privacy violations.

"The drones are coming," shouted Rep. Ted Poe, R-Humble, earlier this year from the House floor, as he warned of encroachment by government into the rights of citizens.

A North Dakota court upheld the arrest of a Lakota, N.D., farmer by a police SWAT team using information from a Customs and Border Protection Predator drone over the northern U.S.-Canadian border.

Defendant had an interview for a job with the FBI and he failed the polygraph on child pornography. He admitted that he had child pornography on his home computer as a part of research on international child pornography. Based on his admissions from the interview process, FBI agents procured a search warrant for his computer. His admissions were not custodial and were freely made. United States v. Pelletier, 700 F.3d 1109 (7th Cir. 2012)*:

Federal investigative agents will tell you that some cases are hard to solve. Some cases require years of effort—chasing down false leads and reigning in flighty witnesses. Others require painstaking scientific analysis, or weeks of poring over financial records for a hidden clue. And some cases are never solved at all—the right witness never comes forward, the right lead never pans out, or the right clue never turns up.

This is not one of those cases. The defendant, Dominick Pelletier, admitted during a job interview with the FBI that he had pornographic pictures of children on his home computer. Instead of joining the FBI's vaunted ranks, Pelletier was indicted for one count of possession of child pornography. After the district court denied two of his motions to suppress, Pelletier entered a conditional guilty plea and reserved the right to appeal the denial of the suppression motions. Finding no error, we affirm.

Foundation Economic Education: The Fourth Amendment and Faulty Originalism by Joseph R. Stromberg:

“All arrests are at the peril of the party making them.”
—Alexander H. Stephens, August 27, 1863

These days the Fourth Amendment to the Constitution means next to nothing. Consider, for example, the choice offered a few years ago: surveillance under routine, easy “warrants” from the drive-through FISA Court or warrantless surveillance at the whim of George W. Bush and his allegedly boundless reserve of unitary-executive authority. A January 2006 Justice Department memo (“Legal Authorities Supporting the Activities of the National Security Agency ...”) explained the executive’s claims in mind-numbing and unconvincing detail. But the memo at least suggested how far below any practical service to Americans’ liberty the Fourth Amendment has fallen, and did so by heaping up available (and rather bad) search-and-seizure precedents, many of which arose from the terminally futile war on drugs (pages 37–38). The result is something like “your Constitution on drugs”—with the searchers and seizers on steroids.

Turning to the Fourth Amendment itself, we read: ...

This sounds pretty good, doesn’t it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.

Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments—state and federal—felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).

Defendant failed to preserve in the trial court the argument that hearsay was improperly admitted and credited by the trial court, so it is forfeited for appeal. People v. Hawkins, 211 Cal. App. 4th 194, 149 Cal. Rptr. 3d 469 (2d Dist. 2012).

Officers received reports that gunshots came from defendant’s vehicle. When they stopped it, a bag of marijuana was in plain view. There was probable cause for the search. United States v. Brown, 498 Fed. Appx. 940 (11th Cir. 2012).*

Officers drove by defendant’s double parked car and smelled marijuana. They got out and asked him why they could smell it, and he said it was because he “just smoked.” That was probable cause, and a gun found in the car was admissible. United States v. Evans, 2012 U.S. Dist. LEXIS 165895 (S.D. N.Y. November 19, 2012).*

An FBI agent stationed in Saipan installed spyware on a computer given his child by his school so he could monitor the computer. When he learned he was being stationed to the mainland and the computer was going back to the school, he had the computer wiped clean by a service tech, but the spyware survived. A while after the computer was returned to the school, he again received emails about the use of the computer visiting child pornography websites, and he turned this information over to the FBI in Saipan. The court discusses at length whether a search occurred and whether it was a government search, but it ultimately decides the defendant had no reasonable expectation of privacy in a school computer that was for the use of students. [Really interesting analysis.] United States v. Weindl, 2012 U.S. Dist. LEXIS 166733 (D. N.M.I. November 20, 2012) (not yet on court's website):

Even if Weindl had a subjective (albeit unrealistic) expectation of privacy in the PSS laptop, it was not an expectation that society is prepared to endorse. An expectation of privacy does not become objectively reasonable just because a person hides someone else's property away in his office desk and does not let anyone else use it. A person cannot have a reasonable expectation of privacy in a computer he stole or obtained by fraud. See United States v. Wong, 334 F.3d 831, 839 (9th Cir. 2003) (stolen laptop); United States v. Caymen, 404 F.3d 1196, 1201 (9th Cir. 2005) (fraudulently obtained laptop). In Caymen, police got a warrant to seize from the defendant a laptop suspected to have been obtained through credit card fraud. Caymen, 404 F.3d at 1197. After the seizure, they discovered that the defendant had a prior conviction for possession of child pornography. Id. at 1198. They then conducted a warrantless search of the laptop's hard drive, ostensibly looking for evidence of credit card fraud, and instead found sexually explicit images of children. Id. The defendant moved to suppress the images, and the motion was denied on grounds that the defendant lacked Fourth Amendment standing. Id. On appeal, the Ninth Circuit affirmed. It found that "one who takes property by theft or fraud cannot reasonably expect to retain possession and exclude others from it once he is caught. Whatever expectation of privacy he might assert is not a legitimate expectation that society is prepared to honor." Id. at 1201.

Defendant was stopped for alleged violation of a protective order. He objected that there was no showing of probable cause by the state for the underlying order, and he’s right. The state’s failure to prove probable cause for the protective order was fatal to the arrest. No witness with knowledge of it testified at the suppression hearing. People v. Hyland, 2012 IL App (1st) 110966, 981 N.E.2d 414 (2012):

=> Read more!

Officers knocked and announced and heard running inside. They knew that he was armed, and they testified they feared for their safety because they didn’t know whether he was coming to the door to shoot anybody coming in or was securing a safe location to ambush somebody coming in. State v. Farley, 2012 W. Va. LEXIS 899 (November 21, 2012).

Defendant’s giving his computer to the police to seize it was implied consent to search it. State v. Jonathan B., 737 S.E.2d 257 (W. Va. 2012).*

Defendant failed to show plain error in the trial court’s finding that the probable cause was based on a false statement. [Also, arresting the defense suppression hearing witness for aggravated perjury did not deprive him of a defense or due process and thus was not prosecutorial misconduct.] State v. Clark, 2012 Tenn. Crim. App. LEXIS 942 (November 19, 2012).

Defendant was stopped for drifting from lane to lane without signaling. The officer suspected DWI, and defendant did not challenge the initial stop. He did challenge the delay in waiting for a DWI Task Force officer to arrive to do the FSTs. The court found the delay reasonable under the circumstances. Bullock v. State, 2012 Tex. App. LEXIS 9625 (Tex. App. – Houston (1st Dist.) November 21, 2012) (not yet on court's website):

When a traffic stop detention is prolonged by a reasonable delay to comply with legitimate police policy, no Fourth Amendment violation has occurred. See Belcher, 244 S.W.3d at 539; Hartman, 144 S.W.3d at 573. 4 But the duration of the delay must be reasonable in light of the law enforcement purposes served. Texas courts of appeals that have reviewed delays for the same law enforcement purposes at issue here—increased experience and expediency in conducting DWI investigations and the need to have officers available to respond to emergency calls—have found delays of twenty minutes or more were reasonable with respect to the public policies served. See Belcher, 244 S.W.3d at 541-42 (holding twenty-seven minute delay while waiting for DWI officer did not violate Fourth Amendment). The delay here was approximately fifteen minutes—shorter than the delays in these cases. Like the delay in Belcher, the delay here was reasonable in light of the public policies served by the role of the DWI task force. See Belcher, 244 S.W.3d at 541-42.

The juvenile had an 1" thick wad of cash on him visible to a teacher, and he was talking to other students about selling something. While having a large amount of cash doesn’t violate school policy, it does create potential problems. That was reasonable suspicion for a search. Marijuana was found. The search was valid under T.L.O. State v. M.W., 2012 Del. Fam. Ct. LEXIS 70 (October 9, 2012).*

The search of defendant’s place was with valid third party consent. Motion to reconsider denied. United States v. Utley, 2012 U.S. Dist. LEXIS 166248 (E.D. Mich. November 21, 2012).*

Defendant was indicted in a RICO murder case, and the FBI went to arrest. They had a forfeiture warrant for her car, and they seized and searched it using inventory as a justification. The inventory was valid. United States v. Savage, 2012 U.S. Dist. LEXIS 166010 (E.D. Pa. November 20, 2012).*

A Colombian wiretap gave highly specific information that a kilo of heroin was coming to a hotel room in Queens. Every detail gleaned from the wiretap proved to be accurate, and it played out as foretold. When the officers went to the motel room door, the evasive actions of defendant added to the probable cause. The warrantless entry was justified because the defendant was clearly aware the police were there for the heroin and it would be moved or destroyed if not seized right then. United States v. Moreno, 701 F.3d 64 (2d Cir. 2012).*

Defendant had a choice to consent between a blood draw by needle or a breath test. Since he said he was afraid of a needle, it is clear that he consented to a breath test. Fienen v. State, 2012 Tex. Crim. App. LEXIS 1597 (November 21, 2012).*

Defendant did not show that the searches were unlawful where defense counsel did not challenge them. As to an inventory, the record does not show that there was an inventory except for paperwork filled out saying it was from an inventory, and that at least shows an attempt at complying with standardized procedures. Defendant, at least, did not show the search to be invalid if his 2255 filing. Rosado v. United States, 2012 U.S. Dist. LEXIS 165609 (D. Mass. November 20, 2012).*

Officers responded to a 12:30 am call of a disturbance at defendant’s apartment reported by neighbors hearing crashing sounds. When they arrived, they could see that she had trashed the place because she was upset that her boyfriend was cheating on her. She said she was alone, and officers had no reason to disbelieve her. She told them to leave four times. They waiting until “wants or warrants” came back clean in case there was a no contact order, which was found not to make sense. Their refusal to leave was unreasonable. Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012), dissents here and here:

The trial court's fact findings and conclusions of law state that the officers' presence in the apartment at the time they found the illegal substance was permissible as part of their investigation for domestic violence. But the record does not support this. Although it is undisputed that the officers' initial entry into the apartment was part of their investigation for domestic violence, it is also undisputed that they found no evidence of domestic abuse, appellant told them to leave four times, and the only reason that they did not leave was because they were waiting for a return on the warrant check on appellant. The officers' explanation for refusing to leave before they received the warrant check was, essentially, "But we always do it that way." This is insufficient justification for their continued presence, as is the state's argument that remaining in appellant's apartment was appropriate because the entire encounter was very short—under six minutes.

The state's brief suggests that the warrant check was part of the officers' domestic-violence investigation; they wanted to determine whether there was a protective order in place. No evidence, however, explains why a warrant check on the appellant would provide information about a protective order and, in their testimony, the officers never mentioned checking, or wanting to check, for a protective order.

The state's entire argument on appellant's second and third grounds is based on "the statutory obligations of law enforcement officers to investigate domestic violence and protect victims." Certainly, law-enforcement officers should investigate allegations of domestic violence and protect victims, but if such an investigation reveals that domestic violence was not involved and that there are no victims to protect, officers no longer have a sufficient legal basis for remaining in a residence over the objections of the resident.

Officers were doing a knock and talk and got no answer. One of them decided to look into the backyard by going to the driveway to get a better view seeing potted plants he suspected were marijuana. They got a search warrant and came back. The appellate court rejects that this is a plain view. The state has been clear before that the backyard is curtilage. State v. Grice, 2012 N.C. App. LEXIS 1316 (November 20, 2012):

In this case, we decline to adopt the State's argument that the initiation of a valid "knock and talk" inquiry gave Detectives Guseman and Allen a lawful right of access to walk across Defendant's backyard in order to seize the plants. If we were to adopt such an approach, it would be difficult to articulate a limiting principle such that "knock and talk" investigations would not become a pretense to seize any property within the home's curtilage, so long as that property otherwise satisfied the remaining prerequisites for seizure under the plain view doctrine. As this Court has observed, "[t]he implication that police officers have the right to seize any item which comes into their plain view at a place they have a right to be is fraught with danger and would sanction the very intrusions into the lives of private citizens against which the Fourth Amendment was intended to protect." State v. Bembery, 33 N.C. App. 31, 33, 234 S.E.2d 33, 35, disc. review denied, 293 N.C. 160, 236 S.E.2d 704 (1977). Accordingly, we hold the trial court erred in its conclusion that no Fourth Amendment violation resulted from the seizure in light of the fact "Detective Allen visually observed what he believed to be marijuana plants in plain view."

In the alternative, the State argues that since the trial court found the detectives' seizure of the plants "was to prevent their destruction," that the seizure was valid under the "exigent circumstances" exception to the warrant requirement. We disagree, because no evidence was presented at trial to support the trial court's finding to that effect.

Defendant was in a hotel room, and the police used a ruse to draw him out for a warrantless arrest. That was not unconstitutional. Defendant’s consent was voluntary because he was experienced with the criminal justice system, and he knew that cooperation could get him leniency. State v. Fornore, 2012 Ohio 5339, 2012 Ohio App. LEXIS 4653 (7th Dist. November 19, 2012).

Defendant defaulted his search issues by not raising them in his direct appeal. On the merits anyway he would lose because of probable cause and plain view when he dropped the gun. Rosado v. United States, 2012 U.S. Dist. LEXIS 165609 (D. Mass. November 20, 2012).*

Defendant was subjected to a patdown and the officer felt something in a pocket of his cargo pants. The officer knew it was not a weapon, but he didn’t know what it was. He asked [told] defendant to pull out the bag and then open it. This exceeded Terry. Williams v. State, 318 Ga. App. 715, 734 S.E.2d 535 (2012).

Defendant whose girlfriend’s father bought car for her had standing to challenge the search of it when he was driving it. Under the LVMPD policy, there was a question for the police whether defendant was driving with permission of the owner, and that made the inventory reasonable. The car was stopped in a parking lot of a 24 hour bar. Here, though, the police had already inventoried the car, and then made the decision to call off the tow and impound because the owner was found, and he said he’d come and get the car. The impoundment was not pretextual and was reasonable under LVMPD policy. United States v. Poblete, 2012 U.S. Dist. LEXIS 165527 (D. Nev. October 31, 2012).*

A CI called probation to report that defendant was in possession of drugs. Police corroborated that, and a police officer and probation officer went to defendant’s house to conduct a search. When they arrived, defendant fled into the house, and that was reasonable suspicion for the officers’ entry into the house. A protective sweep was then possible [but hardly necessary at that point]. Evans v. State, 2012 Ga. App. LEXIS 979 (November 20, 2012).*

Fourth Amendment — Strip Searches of Prisoners: Florence v. Board of Chosen Freeholders, 126 Harv. L. Rev. 206 (2012) | DOWNLOAD PDF

Fourth Amendment — Search and GPS Surveillance: United States v. Jones, 126 Harv. L. Rev. 226 (2012) | DOWNLOAD PDF

Claimant admitted smoking marijuana two hours before his traffic stop as an explanation for the smell of marijuana in the car. He admitting having cash, but when it was found there was more than he admitted and it was packaged strangely. That was reasonable suspicion of use of the money for drug acquisition for seizure for forfeiture. United States v. Nineteen Thousand Eight Hundred Fifty Five ($19,855.00) Dollars in United States Currency, 2012 U.S. Dist. LEXIS 164737 (M.D. Ala. November 19, 2012)*:

Though there is nothing criminal about carrying large sums of money, even in unconventional ways, the characteristics of the res and its packaging offer the best support for the reasonable belief that a substantial connection existed between the res and illegal activity. First, Claimant carried approximately twice the amount of cash he first told officers he was carrying; his bag contained almost $20,000 rather than the $8,000 to $10,000 he first indicated. Second, the money was divided into stacks, secured with rubber bands, and stashed inside a microwave popcorn box carried in his backpack. "A common sense reality of everyday life is that legitimate businesses do not transport large quantities of cash rubber-banded into bundles and stuffed into packages in a backpack." United States v. $242,484, 389 F.3d 1149, 1161 (11th Cir. 2004). The facts sufficiently and plausibly support a reasonable belief that the res was furnished or intended to be furnished in exchange for illegal drugs, or that it was otherwise traceable to the illegal drug trade.

The officer had reasonable suspicion to continue the stop where defendant and his passenger were in a brand new rental car, neither was on the paperwork, and they didn’t know the name of the renter. State v. Jalloh, 2012 Ohio 5314, 2012 Ohio App. LEXIS 4636 (2d Dist. November 16, 2012).

Because digital camera can record videos, a digital camera is seizable under a search warrant for “video recording devices.” United States v. Carson, 2012 U.S. Dist. LEXIS 165041 (C.D. Ill. November 19, 2012),* R&R 2012 U.S. Dist. LEXIS 168149 (C.D. Ill. October 25, 2012).

Defendant’s consent to DUI test was valid where he signed two consent forms that said it was voluntary, and he was not in custody when he signed. State v. Doyle, 139 Conn. App. 367, 55 A.3d 805 (2012).*

The officer did not produce the inventory policy and testified vaguely to it. Since the defense did not ask for it, the court can’t say the inventory was unconstitutional. The inventory itself will not be micro-managed by the courts. “The inventory here, while not a model, was sufficient to meet the constitutional minimum.” Also, policy was to impound a vehicle if the driver had no valid DL and the owner was not present. Since neither the driver nor passenger mentioned a word about the owner, the officer wasn’t constitutionally obligated to inquire. People v. Walker, 2012 NY Slip Op 7851, 20 N.Y.3d 122, 957 N.Y.S.2d 272, 980 N.E.2d 937 (2012):

Neither defendant nor his girlfriend asked the trooper if the girlfriend could drive the car, or told him that she had a driver's license and the owner's permission to drive it. The trooper was not required, as a matter of constitutional law, to raise the question, or to initiate a phone call to the owner. To impose such a requirement on police in such situations would not only create an administrative burden, but would involve them in making (and the courts in reviewing) difficult decisions in borderline cases. If a person present claims to have the owner's permission to drive, must the police take her word for it? If the owner is called and does not answer immediately, must police wait for a call back? It is reasonable for the police to institute clear and easy-to-follow procedures that avoid such questions.

. . .

Defendant's argument focuses on several alleged deficiencies in the proof relating to the inventory search: the written policy that governed the search was never produced; the state trooper's description of the policy was very vague; and the descriptions of the returned property on the inventory form — "misc. items" and "paperwork" — would be of limited usefulness in the event the car's owner claimed that some of her property was missing. These criticisms are not without force. Certainly, it would be better for a prosecutor seeking to prove the existence of a written policy to put a copy of the policy into evidence. On the other hand, defense counsel could have demanded that the policy be produced to help her cross-examine the trooper. She did not do so.

When a car has been lawfully impounded, the reasonable expectation of the person who was driving it that its contents will remain private is significantly diminished. In such a case, the driver presumably expects the police to find whatever is in the car. Galak, Johnson and Gomez establish that this does not give the police carte blanche to conduct any search they want and call it an "inventory search." The police must follow a reasonable procedure, and must prepare a "meaningful inventory list" (Johnson, 1 NY3d at 256). But it would serve little purpose for courts to micro-manage the procedures used to search properly impounded cars. The United States Supreme Court implicitly recognized as much in Bertine, by upholding as constitutionally valid a search producing what a trial court had found to be a "somewhat slipshod" inventory (479 U.S. at 369; see id. at 383 [Brennan, J., dissenting] [describing the inventory's deficiencies]). The inventory here, while not a model, was sufficient to meet the constitutional minimum.

Compare State v. Williams, 382 S.W.3d 232 (Mo. App. 2012), posted 11/1 with a different view of inventory.

CNET: Senate bill rewrite lets feds read your e-mail without warrants by Declan McCullagh:

Proposed law scheduled for a vote next week originally increased Americans' e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.

A Senate proposal touted as protecting Americans' e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.

CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans' e-mail, is scheduled for next week.

Leahy's rewritten bill would allow more than 22 agencies -- including the Securities and Exchange Commission and the Federal Communications Commission -- to access Americans' e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

It's an abrupt departure from Leahy's earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other communications. The Vermont Democrat boasted last year that his bill "provides enhanced privacy protections for American consumers by... requiring that the government obtain a search warrant."

Revised bill highlights

✭ Grants warrantless access to Americans' electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.

✭ Permits state and local law enforcement to warrantlessly access Americans' correspondence stored on systems not offered "to the public," including university networks.

✭ Authorizes any law enforcement agency to access accounts without a warrant -- or subsequent court review -- if they claim "emergency" situations exist.

✭ Says providers "shall notify" law enforcement in advance of any plans to tell their customers that they've been the target of a warrant, order, or subpoena.

✭ Delays notification of customers whose accounts have been accessed from 3 days to "10 business days." This notification can be postponed by up to 360 days.

UPDATE: Leahy scuttles his warrantless e-mail surveillance bill.

NYT: Case Pits Technology-Based Police Search Against Citizens’ Rights by Dan Frosch:

Document: Motion to Suppress Evidence and Responses

AURORA, Colo. — On the afternoon of June 2, the authorities say, a former music teacher named Christian Paetsch walked into a Wells Fargo bank waving a gun and ordered everyone to lie down.

About 15 minutes later, a phalanx of police cars descended upon an intersection a few miles away, blockading dozens of shocked motorists — including Mr. Paetsch, whom the authorities had tracked with a GPS device buried in the $26,000 he was accused of stealing.

But with only the faintest physical description and unsure which vehicle the device was in, the police trained their weapons on all 20 cars at the intersection and ordered people to show their hands. For nearly two hours, the police ordered every driver and passenger to step out of their cars, even handcuffing some of them, before discovering the missing money and two loaded firearms in Mr. Paetsch’s S.U.V.

The case, now winding its way through the federal court system, is being watched by Fourth Amendment lawyers and law enforcement experts. While advanced technology now gives the police the power to shadow a suspect moments after a crime is committed, there are still legal questions over how wide a net the authorities can cast while in pursuit.

I predict the defendant will lose the motion to suppress. Was the police conduct unreasonable? Arguably, but what's his standing to challenge the seizure of others? And consider this dicta by Justice Jackson dissenting in Brinegar v. United States, 338 U.S. 160, 182-83 (1949), which inevitably will come back to life:

And we must remember that the authority which we concede to conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.

With this prologue I come to the case of Brinegar. His automobile was one of his "effects" and hence within the express protection of the Fourth Amendment. Undoubtedly the automobile presents peculiar problems for enforcement agencies, is frequently a facility for the perpetration of crime and an aid in the escape of criminals. But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

The Tennessee Department of Labor came to Publix Super Markets in Chattanooga for a random surprise inspection and demanded access to personnel files of minors. Access was required under state law. The employer store refused demanding an administrative warrant. The grocery store was not a pervasively regulated business, and the state could not demand production without consent or an administrative warrant. Assessment of penalty reversed. Publix Super Mkts. v. Tenn. Dep't of Labor & Workforce Dev., 2012 Tenn. App. LEXIS 799 (November 16, 2012):

... On appeal, the employer contends it maintained the records on site as required, thus it did not violate Subsection (1) of the statute. The employer also asserts that it has a Fourth Amendment right to object to a warrantless search by the Department and it may not be penalized for asserting its constitutional right. We have determined the Department's decision to assess penalties for violating Subsection (1) of Tennessee Code Annotated § 50-5-111 is not supported by substantial and material evidence and the inference drawn by the Department that the records were not maintained on site based upon a mere inference drawn from the fact they were not produced within one hour of demand is insufficient. Therefore, the assessments for allegedly failing to maintain personnel records of minor employees on site is reversed. As for the requirement under Subsection (4) of Tennessee Code Annotated § 50-5-111 that employers of minor employees furnish and allow inspection of the separate and independent file records for each minor employed upon request by the Department, the Act expressly provides that if the Department is denied permission to make an inspection, Tennessee Code Annotated § 50-4-101 provides that the Department employee or official may obtain an administrative inspection warrant in accordance with the procedures outlined in the statute; the Department did not seek to obtain a warrant in this case. As for refusing the Department's request to inspect the records without an administrative warrant, in order for a warrantless search or inspection to be constitutionally permissible under the Fourth Amendment, the Department must establish that the employer was part of a pervasively regulated industry or that the employer had weakened or reduced privacy expectations that are significantly overshadowed by the Department's interests in regulating the employer's industry. We have determined the Department failed to establish either; accordingly, the Department cannot assess a penalty against an employer for asserting its constitutional rights under the Fourth Amendment. Thus, the penalty assessed for allegedly violating Subsection (4) of the statute is reversed. Pursuant to the foregoing, we remand with instructions for the trial court to order the Department to vacate the citations and penalties against the employer.

That the snitch broke off an “appreciation piece” from the crack to give to a drug runner when the drugs changed hands is not a Fourth Amendment issue. It isn’t even government action. United States v. Lewis, 2012 U.S. Dist. LEXIS 164723 (N.D. Ind. November 19, 2012).*

Defendant fled from where he was sitting when he saw a police officer, and he ran leaving things behind including a cell phone and marijuana. This was an abandonment. People v. Crooke, 2012 V.I. LEXIS 60 (Super.Ct. November 14, 2012).*

Defendant was stopped for crossing the fog line, and he blamed it on the police officer following him, which the court doesn’t believe. United States v. Salas, 2012 U.S. Dist. LEXIS 165008 (E.D. Cal. November 1, 2012).*

Defendant argued that a search warrant for defendant’s car for forensic evidence in a sexual assault case was stale and “speculation.” The officer testified at the suppression hearing that a forensic expert told him that evidence could still be found, so he got the search warrant, and that was enough to show it was not stale. United States v. Brown Thunder, 2012 U.S. Dist. LEXIS 164934 (D. S.D. November 19, 2012):

Agent Lakey's factual allegations that A.C. placed H.C. in Brown Thunder's car shortly before A.C. saw Brown Thunder drive away, that H.C. then suffered a serious injury by a penetration of her vaginal wall, and that Lakey checked with FBI forensic specialists who told her that forensic evidence could be discoverable a year after a sexual assault created a "fair probability that evidence of a crime will be found" in Brown Thunder's vehicle at the time the warrant issued. Accordingly, this Court adopts the Report and Recommendation.

Citizen Media Law Center: Another Go-Round with Recording the Police in Massachusetts by Jeffrey P. Hermes:

Last Thursday, according to the Shrewsbury Daily Voice, Irving Espinosa-Rodrigue was arraigned in Westborough District Court for making a recording of a police officer in violation of Massachusetts' wiretap law, M.G.L. c. 272, § 99. The audio/video recording was allegedly made secretly during a traffic stop by a female passenger in Espinosa-Rodrigue's car at his direction, and later uploaded to YouTube.

But wait a minute -- didn't we already deal with this issue in Massachusetts? Didn't the U.S. Court of Appeals for the First Circuit, the federal appeals court with jurisdiction over Massachusetts, pretty clearly state in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that there's a First Amendment right to record the activities of the police in public?

McClatchy: Commentary: Welfare drug testing and the Fourth Amendment by Linda P. Campbell | The Fort Worth Star-Telegram:

Texas Gov. Rick Perry and Lt. Gov. David Dewhurst probably wouldn't admit it, but they want to engage in social engineering. They want people not to waste money on drugs, liquor, smokes or lottery tickets. Not everybody, mind you, but poor people.

That's because poor people can get taxpayer dollars to help feed their kids or tide their families over when they lose a job -- and we can't have them spending that money on things the rest of us disapprove of. ...

But the method of choice put forward by Perry, Dewhurst, Sen. Jane Nelson of Flower Mound and other Republicans is to drug-test people applying for public benefits such as Temporary Assistance for Needy Families and unemployment assistance. As though drug use is the main reason people with kids are poor or have been thrown out of work.

Defendant was subjected to a stop and frisk. A pen cap was removed from his person, and it was obvious that it was not a weapon. The officer’s further search of the pen cap was unreasonable. Officer working off-duty security at an apartment complex was acting as a police officer and the Fourth Amendment governed the search. Clanton v. State, 2012 Ind. App. LEXIS 565 (November 15, 2012):

In our view, the dispositive fact is not whether a container is open or closed, but whether the illicit nature of an item was immediately apparent to the officer or apparent only through further manipulation. See Dickerson, 508 U.S. at 379 (analogizing the plain-feel doctrine to the plain-view doctrine as limited by Arizona v. Hicks, 480 U.S. 321 (1987), which held that the moving of stereo equipment to check serial numbers was an impermissible search under the Fourth Amendment absent probable cause to suspect the equipment was stolen when "the incriminating character of the stereo equipment was not immediately apparent").

Here, once Officer Price discovered that the sharp item in Clanton's pocket was a pen cap, he had dispelled his suspicion that the item was a weapon. Indeed, Officer Price testified that he kept the pen cap, searched it, and seized its contents because, "upon further investigation and looking at it," he saw a baggie hanging from the pen cap, and based on previous experiences of finding narcotics in baggies in pen caps, he suspected that this baggie contained narcotics. Tr. p. 11, 18, 47-48, 51. Officer Price also admitted numerous times that he could not tell what was inside the baggie when he first observed it hanging out of the pen cap. Id. at 18, 48. In fact, Officer Price realized that the baggie contained cocaine only upon closer examination. Id. at 11. Thus, like in Harris and Jackson where the illicit nature of the pill bottles was not immediately apparent to the investigating officers, here the contraband nature of the contents of the pen cap was not immediately apparent to Officer Price. As a result, the discovery of the cocaine violated Clanton's right to be free from unreasonable searches under the Fourth Amendment, and the trial court erred in admitting the cocaine into evidence. Thus, Clanton's conviction cannot stand.

“We conclude that defendant's detention at the scene of the traffic stop was lawful and did not constitute a de facto arrest. Defendant was placed in the back seat of a patrol vehicle without handcuffs after the police observed him leaving a residence subject to a search warrant, and they observed his furtive movements and those of the driver.” People v. Binion, 2012 NY Slip Op 7801, 100 A.D.3d 1514, 954 N.Y.S.2d 369 (4th Dept. 2012).

Defendant was handcuffed when he was stopped for five minutes until he attempted to flee. That was not an arrest and the time was not unreasonable. United States v. Lesane, 498 Fed. Appx. 363 (4th Cir. 2012).

Defendant drove down a street with police cars not lit up because they just arrived to an unknown problem. His car wouldn’t fit through the cars already there and the officer yelled at him to stop. The officer tapped on the window, and defendant rolled it down, and the officer could smell alcohol. That justified the stop. Ward v. State, 2012 Ark. App. 649, 2012 Ark. App. LEXIS 768 (November 14, 2012).*

Trial court erred in not applying the totality of circumstances standard to the conduct of the police during the search. Officers knocked at the door and got no answer, so they pushed the door open and saw a lit candle, so they entered to blow it out, seeing contraband. Remanded per curiam. State v. Washington, 2012 La. LEXIS 3083 (November 16, 2012)*:

The Louisiana and Federal constitutions prohibit unreasonable searches and seizures. State v. Lee, 05-2098, p. 14 (La. 1/16/08), 976 So.2d 109, 122; see U.S. Const. amend. IV and La. Const. art. I, § 5. Therefore, the pivotal question in this case is whether the police officers acted reasonably in the following series of events: 1) entering the front yard of a residence with an open front door and standing at the door; 2) announcing their presence and asking if anyone was inside; 3) hearing no response to their announcement, further pushing the door open; 4) viewing lit candles inside; 5) then entering the residence to extinguish the candles to prevent a fire; and 6) seizing contraband the officers viewed while extinguishing the candles. Given only these facts, we might well have found the third action by police of further pushing the door open unreasonable. See Lee, 05-2098 at 14-15, 976 So.2d at 122 ("Warrants ... are generally required to search an individual's home or person, 'unless "the exigencies of the situation" make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.'"). However, as found by the district court, these were not the only facts and circumstances prompting the officers to push the door open further. The district court erred in not considering the totality of the circumstances when ruling on the defendant's motion to suppress drug evidence seized from the residence at the end of the above-described series of events. See State v. Bush, 12-0720, p. 1 (La. 6/1/12), 90 So.3d 395, 396 (describing the standard on motion to suppress for admissibility of evidence seized without a warrant as a "totality of the circumstances" test).

Reason Science Correspondent Ronald Bailey Talks DNA Testing Without Warrants on HuffPost Live

Reason Science Correspondent Ronald Bailey appeared on HuffPost Live to talk about the Supreme Court's recent decision to hear a case dealing with the Fourth Amendment implications of taking a DNA sample from an arrestee prior to conviction. Is it just like fingerprints or a violation of civil liberty guarantees of privacy?

Here's the link to the segment, where Bailey favored privacy over prosecution in a debate with other participants including Brian Neman, CEO of the biotech company Sanguine BioSciences, Karen Morrison, former prosecutor and law professor at Georgia State University, and Evan Michael Hess, professor of law at the Southern California Institute of Law.

There were several factors of reasonable suspicion, individually none might be enough but collectively they were. “In this case, several factors—the most important of which was Mr. Guardado's own evasive behavior—converged to create an objectively reasonable suspicion that criminal activity was afoot. Therefore, we hold that the seizure did not violate the Fourth Amendment.” United States v. Guardado, 699 F.3d 1220 (10th Cir. 2012).*

The state’s comment that defendant hesitated before signing the consent to search the car was not important because defendant consented. It was merely mentioned in recounting the facts of finding evidence. Braddy v. State, 2012 Fla. LEXIS 2357 (November 15, 2012).*

The evidence clearly supports the conclusion that the search of the house occurred with probable cause after marijuana was seen after a consent entry. Jones v. State, 318 Ga. App. 614, 734 S.E.2d 450 (2012).*

Yahoo! searched defendant’s photo files in its storage, and this was a private search. They received a tip it contained child pornography. United States v. Cameron, 699 F.3d 621 (1st Cir. 2012).*

At the post-trial conference, based on trial testimony, the district court changed its finding from consent to probable cause for the search. This was supported by the record. United States v. Pascual, 2012 U.S. App. LEXIS 23272 (3d Cir. November 13, 2012).*

An officer grabbed defendant’s arm and asked where he was going, and defendant ran. He was not seized by the grabbing for his arm. He was not seized until he was subdued. Henson v. United States, 55 A.3d 859 (D.C. 2012).*

Defendant was driving a stolen car, and the officer who stopped him was alerted by a license plate reader. He’d robbed a post office and convenience stores of blank money orders. “Although we have not reached the question before, it is hardly surprising that several other courts have held that the possessor of a stolen vehicle lacks standing to challenge a search of the vehicle.” United States v. White, 2012 U.S. App. LEXIS 23456 (3d Cir. November 15, 2012).

Based on wiretaps, officers learned of an impending break-in to steal money from a drug dealer. They came to the scene, and two were running from the house. They had probable cause for the stop and arrest, and the search of the car was valid either as search incident, automobile exception, or the inevitable inventory. United States v. Martinez, 2012 U.S. Dist. LEXIS 163990 (D. Mass. November 16, 2012).*

Probable cause developed and that justified the search of defendant’s automobile under the automobile exception. United States v. Boyd, 2012 U.S. Dist. LEXIS 163187 (W.D. Pa. November 15, 2012).*

The Stored Communications Act is a legal dinosaur. Technology has left our privacy rights in the "dust," as it were. The blogsphere is finally outraged about the ease of government access to email. Maybe this will get Congress off its lazy ass to do something.

Just a few I've seen:

WSJ: Affair Highlights Uncertainty of Email-Privacy Laws by Ashby Jones and Joe Palazzolo posted yesterday.

Likely the Best One from EFF, of course: When Will our Email Betray Us? An Email Privacy Primer in Light of the Petraeus Saga by Hanni Fakhoury and Kurt Opsahl and Rainey Reitman:

The unfolding scandal that led to the resignation of Gen. David Petraeus, the Director of the Central Intelligence Agency, started with some purportedly harassing emails sent from pseudonymous email accounts to Jill Kelley. After the FBI kicked its investigation into high gear, it identified the sender as Paula Broadwell and, ultimately, read massive amounts of private email messages that uncovered an affair between Broadwell and Petraeus (and now, the investigation has expanded to include Gen. John Allen's emails with Kelley). We've received a lot of questions about how this works—what legal process the FBI needs to conduct its email investigation. The short answer? It's complicated.

CNET: Petraeus e-mail affair highlights U.S. privacy law loopholes | Because of the wording of an obscure 1986 federal law, the former CIA director -- and the rest of Americans -- receive less privacy protection than we would for love letters stored under a mattress by Declan McCullagh

WaPo: FBI investigation of Broadwell reveals bureau’s comprehensive access to electronic communications

San Francisco Chronicle: Petraeus scandal reveals threat to privacy

Politico: David Petraeus affair scandal highlights email privacy issues

Reuters: Collateral damage of our surveillance state by Julian Sanchez:

As the surreal sex scandal that forced CIA Director David Petraeus’ resignation reveals another prominent general’s “flirtatious” emails, the serious scandal here may well be the breadth of the FBI’s power to launch fishing expeditions through Americans’ most intimate communications.

onthemedia.org: Will the Patraeus scandal be good for privacy?

Defendant was named in the indictment with using and maintaining drug premises, but this alone was not enough to give him standing to get a hearing on a motion to suppress. He still had to file an affidavit showing his connection to the property to give him standing. “However, ‘[a] defendant's unsworn assertion of the Government's representations does not meet [his] burden’ to establish standing to contest the search.” United States v. Marshall, 2012 U.S. Dist. LEXIS 163606 (W.D. N.Y. November 9, 2012).

The CI’s support of reliability was thin, but just barely gets over the hurdle for reasonable suspicion to justify the stop of the vehicle defendant was riding in. United States v. Osorieo-Torres, 2012 U.S. Dist. LEXIS 163901 (D. Kan. November 13, 2012).*

Defendant normally can’t raise an IAC claim on direct appeal. Here, even if he could, he’d lose on the merits. Two issues: (a) typo in a date wasn’t prejudicial; (b) items not listed in the SW were listed in the attached affidavit. United States v. Scott, 2012 U.S. App. LEXIS 23454 (3d Cir. November 15, 2012).*

Nexus for a search warrant for defendant’s house was shown by the fact she left her house to go the place for the meet for a prearranged drug deal minutes after the call from the buyer. In other deliveries, she went from the place of the delivery back home. Commonwealth v. Tapia, 463 Mass. 721, 978 N.E.2d 534 (2012).

Once a drug dog alerted, the more intensive search of the car was valid. [Also, this case involved letting the officer testify that defendant’s multiple cell phones, empty pill bottles, and car rental agreements were indicative of drug dealing.] State v. Brooks, 2012 Ohio 5235, 2012 Ohio App. LEXIS 4580 (3d Dist. November 13, 2012).*

Defendant conceded that he was speeding, and that justified his stop. The stop was not overlong and was continued on reasonable suspicion. “Within minutes of the initial traffic stop, Norton provided Agent Campbell with a travel itinerary that seemed improbable; shortly thereafter, Comegys provided a different improbable itinerary and appeared nervous while searching for the car rental agreement.” United States v. Comegys, 2012 U.S. App. LEXIS 23364 (3d Cir. November 14, 2012).*

Defendant was confronted by the police walking in a park with a companion. As the officer got close, he handed the sweatshirt in his hand to his companion and the officer grabbed it. Defendant’s hand was still on it, so that was not an abandonment, and he still had control over it. The seizure was invalid. B.L. v. State, 2012 Fla. App. LEXIS 19731 (Fla. App. 4th DCA November 14, 2012).*

Officers had information from a good source that defendant was at a particular address, and they had an arrest warrant. They knocked at the door, and nobody answered. They went to the back and found a man who said that Stoekel was the tenant. They went back to the front door, and Stoekel finally answered the door. He would not consent to an entry to search for defendant but he let the officers into the living room. Once in the living room, a discussion of the crime of harboring got Stoekel to point upstairs. That was consent to go upstairs, and defendant was found asleep with a gun next to him. That was valid consent. United States v. Collins, 699 F.3d 1039 (8th Cir. 2012).*

Defendant “indicated” during his valid stop that he was attempting to flee, and that supported an arrest and search incident. State v. Durham, 107 So. 3d 755 (La. App. 2 Cir. 2012).*

WSJ: Affair Highlights Uncertainty of Email-Privacy Laws by Ashby Jones and Joe Palazzolo:

The adultery scandal that short-circuited David Petraeus's career also shined a light on the peculiar legal standards governing the privacy of email.

According to U.S. officials, the Federal Bureau of Investigation obtained search warrants after developing probable cause that Mr. Petraeus's biographer, Paula Broadwell, may have sent harassing emails to Jill Kelley, who planned social events for military personnel in Tampa, Fla.

Probable cause for what? What's the federal crime?

Question to defendant whether gun was loaded was not a Miranda violation. United States v. Ashmore, 2012 U.S. Dist. LEXIS 161613 (E.D. Tenn. October 11, 2012).

A locked box in a car that was being towed was not subject to search at first, but it was as a part of the inevitable inventory, so it could have been searched then. The prior search was thus not illegal. United States v. Ashmore, 2012 U.S. Dist. LEXIS 161612 (E.D. Tenn. October 2, 2012).*

Probable cause for the search of defendant’s car was shown, so the search was valid under the automobile exception. United States v. Boyd, 2012 U.S. Dist. LEXIS 163187 (W.D. Pa. November 15, 2012).*

Congressional Research Service:

Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, October 9, 2012 (18 pages)

Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, October 9, 2012 (162 pages)

Privacy: An Overview of the Electronic Communications Privacy Act, October 9, 2012 (91 pages)

Privacy: An Abridged Overview of the Electronic Communications Privacy Act, October 9, 2012 (11 pages)

Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions, November 9, 2012 (66 pages)

(These were added to the sidebar.)

Requesting defendant get out of the vehicle and then moving him back between vehicles was not unreasonable or excessive. Handcuffing and lying down are reasonable; so’s this. United States v. Warrick, 2012 U.S. Dist. LEXIS 162985 (W.D. N.Y. April 13, 2012):

The fact that the defendant was requested by Officer Fuller to exit the vehicle and was "pulled towards the back of the vehicle" (T2, p. 102) before the weapon in question was observed, is of no legal consequence. Officer Fuller and his fellow officers had the right to direct all of the occupants of the vehicle to exit it while they conducted their investigation and such directive was not violative of the Fourth Amendment's proscription of unreasonable seizures. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); Maryland v. Wilson, 579 U.S. 408, 415 (1997); ... Dempsey v. Town of Brighton, 749 F. Supp. 1215 (W.D.N.Y. 1990) (officer's decision to stop vehicle containing individual who matched description of suspect in armed bank robbery and order occupants of the vehicle to crawl out of the vehicle and lay down on the grass, and to handcuff their wrists behind their back while conducting a pat down search, was reasonable), ... see also United States v. Laing, 889 F.2d 281, 285 (D.C. Cir. 1989) ("The amount of force used to carry out the stop and search must be reasonable, but may include using handcuffs or forcing the detainee to lie down to prevent flight or drawing guns where law officers reasonably believe they are necessary for their protection."), ...; United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983) ("requiring the suspect to lie down while a frisk is performed, if reasonably necessary, does not transform a Terry stop into an arrest.").

The actions of Officer Fuller and the other police officers were reasonable in carrying out their investigation and protecting their safety and did not violate the defendant's Fourth Amendment "interest in remaining secure from intrusion." United States v. Hensley, 469 U.S. 221, 226 (1985).

Defendant used the Moocherhunter™ software to cause his computer to use another person’s wireless router. Following the rationale of the pen register case (Smith), the court finds that the defendant did not have a reasonable expectation of privacy in a wireless signal sent to a computer outside his own home to procure child pornography off the internet. United States v. Stanley, 2012 U.S. Dist. LEXIS 162317 (W.D. Pa. November 14, 2012):

5. Here, the issue is whether a search occurred when Erdely used Moocherhunter™ to follow the wireless signal being sent from and to the computer identified by the 95 MAC address in order to connect to Kozikowski's wireless router. More specifically, the court must determine whether Stanley had a legitimate expectation of privacy in the wireless signal he caused to emanate from the computer in his home to Kozikowski's wireless router and the wireless signal he received back from Kozikowski's wireless router in order to connect to the internet.

. . .

11. Based upon Smith's rationale, the court finds Stanley did not have a legitimate expectation of privacy in the wireless signal he caused to emanate from his computer to the Kozikowski wireless router or in the signal being sent from the router back to his computer, and therefore, Erdely's use of Moocherhunter™ did not constitute a search in violation of the Fourth Amendment. In Smith, the pen register was used to record the telephone numbers people voluntarily dialed and thus, conveyed, to the telephone company by monitoring electrical impulses caused when the dial on the telephone was released. Here, Moocherhunter™ monitored the strength of a signal that Stanley voluntarily caused to send from his computer to Kozikowski's wireless router and to receive a signal back from the wireless router in order to gain unauthorized access to Kozikowski's internet connection. In both cases, the party seeking suppression of evidence assumed the risk that information disclosed to a third party may be turned over to the police. Notably, Moocherhunter™, like the pen register, did not reveal the contents of the communications; it only revealed that communications were taking place.

12. The court finds that Stanley did not have a reasonable expectation of privacy in the wireless signal he caused to emanate from his computer to Kozikowski's wireless router or the wireless signal he received from Kozikowski's wireless router in order to connect to the internet. The information logged on that wireless router was accessible to Kozikowski and through his consent, to Erdely. This information showed the private IP address of Stanley's computer. Stanley, therefore, could have no reasonable expectation of privacy in the signal he was sending to or receiving from Kozikowski's wireless router in order to connect to the internet. An internet subscriber does not have a reasonable expectation of privacy in his IP address or the information he provides to his Internet Service Provider, such as Comcast, in order to legally establish an internet connection, and likewise, a person connecting to another person's wireless router does not have an expectation of privacy in that connection, i.e. the private IP address, when it is available to that third person and anyone with whom that person shares the information.

See Who's Stealing Your Wireless Signal by Derek Gerry on Life123.com.

Update: See Volokh by Orin Kerr.

Defendant got out of a vehicle with a bag and set it down on the ground. He pushed it under the vehicle, but not far. The court concludes that the bag was abandoned by this action. United States v. Davis, 2012 U.S. Dist. LEXIS 162396 (D. S.C. November 14, 2012):

Two possible inferences can be drawn from Davis's placing the bag on the ground underneath the vehicle. The first is, as Davis argues, that he was hiding the bag—unquestionably in an attempt to prevent Officer Cox from discovering its illegal contents—and that he never intended to relinquish his Fourth Amendment rights in the bag but instead intended to retrieve it later, maintaining an expectation of privacy in the bag and its contents. The second possible inference is that Davis intended to abandon and get rid of the bag, separating it from the vehicle and hoping Officer Cox would not connect it to him. Davis argues that no evidence was introduced to support the second inference, except the mere and insufficient fact that the bag was on the side of the road. However, Davis's subjective expectation, by itself, is not dispositive of this issue. Rather, his expectation of privacy, for Fourth Amendment purposes, must be objectively reasonable.

. . .
Here, although Davis did not attempt to flee, the core facts are the same. After Officer Cox ordered the driver from the vehicle, Davis made his decision to remove the bag from the vehicle. Why he made that decision and whether he expected to later retrieve the bag are not determinative of the analysis so long as Davis's expectations were objectively unreasonable. Much like the defendant in Jones, Davis's ability to recover the bag depended entirely on fate—specifically the possibility that either Officer Cox or Deputy Smith would not observe him retrieving the bag in the event he was freed to leave. In light of the risk Davis faced in placing the bag under the vehicle on the side of a public highway where anyone could pick it up, any expectation of privacy Davis had, by society's standards, was objectively unreasonable.

Therefore, the Court finds that Davis abandoned the bag and waived any Fourth Amendment rights he had in it and its contents. Because the bag was abandoned, Officer Cox and Deputy Smith did nothing unlawful in seizing and searching the bag after it was discovered. ...

The officer had no reasonable belief that defendant was in a third party’s residence to enter to arrest defendant: His car was not outside and he was only seen there the day before. Essentially, the officer admitted they didn’t want to wait around all day for him to show up. Gutierrez v. State, 2012 Ark. App. 628, 2012 Ark. App. LEXIS 740 (November 7, 2012).

The trial court’s conclusion that defendant consented to a general search of her home rather than a photographing was supported by the record. State v. Saunders, 55 A.3d 1014 (N.H. 2012).*

The district where the evidence was seized by the police was the logical place for the forfeiture to be tried. The claimant’s motion for a change of venue is denied. United States v. $1,074,900.00 in United States Currency, 2012 U.S. Dist. LEXIS 161943 (D. Neb. November 13, 2012).*

The search warrant here for a computer in a child pornography case was not a general warrant, although it permitted a search of the entire computer. United States v. Morgan, 2012 U.S. Dist. LEXIS 161771 (E.D. Pa. November 13, 2012):

In this case, the search warrant for the Hatfield residence authorized the government to seize the computer hardware and software located in the residence as part of the search for evidence of criminal conduct. Such seizures were justified under the warrant because electronic evidence is the heart of this case.

The search warrant application provided extensive detail on the computer activity of Wook_inky101@yahoo.com from September through December 2011. This Yahoo account was used to engage in sexually explicit conversations, send sexually graphic images, and transmit child pornography to a person believed to be a thirteen-year-old girl in Texas. Federal agents traced this activity to Defendant's residence. The search warrant application noted the importance of computer technology in creating, exchanging, and storing child pornography, and also explained how agents would conduct their electronic searches of any evidence seized from the residence. The application made clear that evidence of child pornography rarely, if ever, completely disappears from any computer that once housed it.

In sum, the warrant authorized the FBI to seize a wide array of electronic equipment and data to search for evidence of criminal activity that was thoroughly supported by the general characteristics of those involved in child pornography, and by the actual facts in this case. The Court therefore concludes that the search warrant for the Hatfield residence was not a general warrant and properly complied with Fourth Amendment requirements.

Still, it reads like a general warrant. It seems that the court considers the entire object to be the subject of the search without specifying the target materials. Today, that's easy to do with computer programs seeking all image or video files by what they are, not by the name.

Defendant lived with a woman named Price at her dad’s house. The police tailed him there, arrested him for drugs, and then got permission of the dad to search the room. They asked the dad if he ever needed permission to enter the room, and he said no, so they asked him for consent. [No analysis of the relationships.] United States v. Page, 2012 U.S. Dist. LEXIS 161531 (E.D. Tenn. October 22, 2012):

To be sure, if the search of the bedroom was an incident to defendant's arrest, it may have gone too far. But it was not an incident to defendant's arrest. Drug Task Force Director McQueen asked permission of the owner, Mr. Price, to search the house. Additionally, he asked Price if he (Price) had to obtain permission of his daughter or defendant to enter the daughter's bedroom. Price stated that he never asked permission, and he freely entered the bedroom when and as he wished, never asking permission of his daughter or defendant to do so. Mr. Price gave his consent to search. Based upon the representations Mr. Price made about his perceived authority over all areas of that house and Price's consent, the officers searched Nikea Price's bedroom, finding considerable evidence of drug trafficking therein.

Officer’s cut and paste error from one affidavit to another was enough for a Franks hearing. United States v. Rodriguez-Ramirez, 2012 U.S. Dist. LEXIS 161211 (D. Utah November 7, 2012):

The court is not convinced by the United States' argument. The erroneous statements concerning the affiant's surveillance of the house in Magna are sufficiently material to justify an evidentiary hearing on the validity of the warrant. While the threshold for holding a Franks hearing is a high one, the court finds that the affiant's failure to remove this key information could constitute a reckless disregard for the truthfulness of the affidavit. The Defendants may also be able to establish that the affiant omitted information about the CS, the meeting with Chalmes, or the results of the license plate check, and that this omission was committed either deliberately or recklessly. Taken together, this evidence may establish that the search warrant was not supported by probable cause and that the search of the house in Magna was conducted in violation of the Defendants' Fourth Amendment rights.

HuffPo: Should Republicans Blame The TSA For Their Loss? (VIDEO) by Christopher Eliott:

When Susan Verbeeck attended a rally for Republican presidential candidate Mitt Romney with her two daughters and a friend at the Virginia State Fairgrounds in Doswell, Va., earlier this month, she didn't expect to be greeted by TSA agents.

But that's exactly what she found blocking the entrance to the fair: a row of metal-detectors staffed by uniformed TSA agents.

"We're accustomed to the TSA at airports when we travel," she says. "But now it seems they are ubiquitous. I understand that the presidential candidates need security, but wasn't the TSA originally formed for airport security?"

Well, that was the idea. But a look at TSA's mission statement, which isn't limited to air travel, means the agency could try to "protect" you anytime you set foot outside your home.

...

What would you do if you were assigned to screen supporters of a party that you knew presented a threat to your job security? If you answered: harass them, fail to properly screen them and indirectly allow the candidate to be heckled, then congratulations -- here's your tin foil hat and your very own copy of "The X-Files: The Complete Collector's Edition."

Did the TSA cost the Republicans the presidency? In such a close presidential election, anything could have swayed the electorate. But I think it's safe to say the agency didn't exactly help.

Jonathan Turley: Poll: One-Third of Americans Would Accept Cavity Searches By TSA:

In past columns, I have lamented how our government has not only stripped away core civil liberties from citizens, but that citizens have become increasing passive and accepting of the loss of such freedoms. A new poll conducted by Harris Interactive offers a particularly chilling measure of just how passive and accepting citizens have become to the new realities of our internal security system. The poll found almost one third of American adults would accept a “TSA body cavity search” in order to fly. Moreover a majority believes that it is reasonable to criminalize the act of disobeying any TSA agent.

The boiling frog.

Tenth Amendment Center: Will Texas Nullify Both NDAA and TSA?

The Texas legislature will take up two bills designed to protect basic civil liberties in the Lone Star State during the 2013 legislative session.

On Monday morning, Rep. David Simpson (R-Longwood) prefiled The Texas Travel Freedom Act (House Bill 80). If passed, the law would make it a criminal act to intentionally touch “the anus, breast, buttocks, or sexual organ of the other person, including touching through clothing,” without probable cause in the process of determining whether to grant someone access to a public venue or means of public transportation.

...

The Texas legislature will also consider a bill that would block any attempt to indefinitely detain people in Texas under sections of the National Defense Authorization Act. Rep. Lyle Larson (R-San Antonio) prefiled House Bill 149, which declares:

It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. No. 112-81). Any act to enforce or attempt to enforce those laws is in violation of this subchapter.

Officer doing a knock and talk smelled burning marijuana coming from the house, and he could see marijuana on the coffee table. His entry to preserve the evidence was reasonable since the defendant knew that the officers knew it was there. State v. Miller, 2012 Ohio 5206, 982 N.E.2d 739 (2d Dist. 2012).*

Beer bottles seen in a vehicle during a DUI stop were in plain view and subject to seizure. Commonwealth v. Miller, 2012 PA Super 244, 56 A.3d 424 (2012).*

Following the few cases that have decided the issue, parole officers have qualified, not absolute, immunity for ordering arrests of their charges. Draine v. Leavy, 2012 U.S. App. LEXIS 23230, 2012 FED App. 01166N (6th Cir. November 9, 2012).*

The alleged defective appointment of a judge to replace one who died cannot be attacked in a criminal proceeding challenging a search warrant the judge issued. The general rule is that the legality of the judge's appointment must be tested in quo warranto and not by collateral attack in a criminal proceeding. State v. Hill, 2012 Ohio 5210, 2012 Ohio App. LEXIS 4556 (2d Dist. November 9, 2012):

[*P21] Defendant relies on State v. Williams, which held that a warrant is void ab initio if not signed by a judge prior to the search. In Williams, the warrant bore no signature at all. In the present case, the warrant bore the signature of a person purporting to be a judge. The warrant did not suffer from the facial defect in Williams, which rendered the warrant void and therefore precluded application of the "good faith" exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Spaw, 18 Ohio App.3d 77, 480 N.E.2d 1138 (1984).

[*P22] The power and authority of a judicial officer and the validity of her office cannot be collaterally attacked in a criminal proceeding. Those challenges must instead be made in an original action in quo warranto to determine whether the judge had a valid title to her office, in which proceeding the judge herself would be made a party defendant and have an opportunity to appear and make a defense thereto. Stiess v. State, 103 Ohio St. 33, 41 (1921). That challenge is not reviewable on appeal from an adverse judgment rendered in the criminal proceeding. State ex rel. Stowell v. Lovinger, 6 Ohio St.3d 21, 450 N.E.2d 1176 (1983).

The fact that the defendant was “going to” or “fixing to” manufacture meth is not exigent circumstances. Actual manufacturing required. Wehrenberg v. State, 385 S.W.3d 715 (Tex. App. – Ft. Worth 2012):

Thus, whether it was the odor of ether, ether running on the ground, or the observance of articles associated with the ongoing manufacture of methamphetamine, in each of the three preceding cases, officers observed facts that led them to believe that someone was actively manufacturing methamphetamine. This fact was significant to the exigent-circumstances inquiry because it sustained the officers' belief that the destruction or removal of evidence was imminent—a result that could have occurred due to the inherent volatility associated with the active manufacture of methamphetamine.

Here, unlike the officers in Rhiger, Walsh, and Wilson, Investigator Montanez did not testify that he observed anything that led him to believe that someone was actively manufacturing methamphetamine at the residence. Instead, the record demonstrates (1) that Investigator Montanez had information that the occupants of the residence were "going to" or "fixing to" manufacture methamphetamine, and (2) that officers arrived at the residence and entered without a warrant. Therefore, notwithstanding that a fire was alleged to have previously occurred at some point at the residence as a result of manufacturing methamphetamine, in the absence of any evidence that could have led the officers to believe that someone was actively manufacturing methamphetamine, officers could not have reasonably concluded that the destruction or removal of evidence was imminent due to either the inherently volatile nature of manufacturing methamphetamine or the inevitable "destruction" of various chemicals when combined to manufacture methamphetamine. See, e.g., State v. Meeks, 262 S.W.3d 710, 726-27 (Tenn. 2008) (holding that hazards posed by actively operating methamphetamine lab created exigent circumstances justifying warrantless search); Williams v. State, 995 So.2d 915, 921 (Ala. 2008) ("Based on the inherent dangers of an operating methamphetamine lab, we now hold that discovery of such a lab by law-enforcement officials constitutes an exigent circumstance justifying a warrantless search" (emphasis added)); State v. Bilynsky, 2007 ME 107, 932 A.2d 1169, 1176 (Me. 2007) (holding that exigent circumstances justified warrantless entry because officers observed facts demonstrating that manufacturing methamphetamine was "in progress"); Bishop v. Commonwealth, 237 S.W.3d 567, 570 (Ky. Ct. App. 2007) ("[T]he court did not clearly err by finding that a search was justified by the exigent circumstances created when an active methamphetamine lab was found in the trunk of a car ...." (emphasis added)). Although probable cause existed at the time of the warrantless entry, there is nothing in the record to indicate that the officers were confronted with a "now or never"-type situation, one in which they had to act before obtaining a warrant in order to head off the possible destruction or removal of evidence caused by the volatility inherently associated with the actual manufacture of methamphetamine. See Roaden, 413 U.S. at 505, 93 S. Ct. at 2802; State v. Moore, 2008 NMCA 56, 144 N.M. 14, 183 P.3d 158, 161 (N.M. Ct. App. 2008) (reasoning that "mere probable cause that a methamphetamine lab exists is not per se an exigent circumstance that will justify a warrantless entry into a home" (emphasis added)). Contrary to the State's argument, the first, second, and fifth McNairy criteria do not support a conclusion that exigent circumstances justified the warrantless entry. Accordingly, we may not affirm the trial court's denial of Wehrenberg's motion to suppress on this ground.

Search incident includes text messages on a cell phone removed from the person, following the majority. State v. James, 48 Kan. App. 2d 310, 288 P.3d 504 (2012):

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“[W]e conclude that fidgeting alone is insufficient to justify a Terry search for weapons.” Reynolds v. Commonwealth, 393 S.W.3d 607 (Ky. App. 2012).

Defendant’s reckless driving and conduct in an effort to flee from the police was a separate crime, completely separate from the alleged illegality of the stop. People v. May, 2012 NY Slip Op 07472, 2012 N.Y. App. Div. LEXIS 7371 (4th Dept. November 9, 2012):

It is well established that "[a] person who is stopped or detained illegally is not immunized from prosecution for crimes committed during his [or her] detention period" (United States v Garcia-Jordan, 860 F2d 159, 160; see Rogers, 52 NY2d at 531-532). Here, inasmuch as defendant's response to the police approach was "unjustified and criminal in nature ... and unrelated to the initial [allegedly] unlawful action on the part of the police," suppression of the subsequently-acquired evidence was not required (People v Townes, 41 NY2d 97, 102; People v Ellis, 4 AD3d 877, 878, lv denied 3 NY3d 639, reconsideration denied 3 NY3d 673; cf. People v Felton, 78 NY2d 1063, 1065).

Gant is retroactive under the Washington Constitution and applies to all nonfinal cases. State v. Louthan, 175 Wn.2d 751, 287 P.3d 8 (2012).

Defendant’s postconviction claim of unsworn affidavits for search warrant is shown to be false. Johnson v. State, 2012 Fla. LEXIS 2276 (November 8, 2012),* connected case, Johnson v. State, 104 So. 3d 1010 (Fla. 2012).*

Defendant was found to have consented to an entry into his curtilage where the police waited and got permission to enter the yard. State v. Collins, 101 So. 3d 557 (La. App. 3 Cir. 2012).*

Officers talking to a motorist parked in a Lexus in a high crime area to watch out was not a seizure. The officer walked around the car and saw the butt of a gun, but it turned out to be a BB gun. United States v. Mahr, 2012 U.S. Dist. LEXIS 161000 (D. Neb. October 22, 2012):

Taking the "position that a person is 'seized' for Fourth Amendment purposes whenever an officer interrupts what that person was otherwise doing is absurd." United States v. Tarantola, 332 F.3d 498, 499 (8th Cir. 2003). Merely attempting to attract a person's attention to further investigate suspected criminal behavior "does not implicate any Fourth Amendment interest, does not amount to a seizure, and thus falls outside the ambit of the Fourth Amendment." Tarantola, 332 F.3d 499-500 (knocking on glass door of laundromat is not a seizure). More specifically, an officer's attempt to make contact with individuals occupying a vehicle parked in a public place does not constitute a seizure. See Mabery, 686 F.3d at 596-97(citing cases) (finding no seizure where officer shined a spotlight on vehicle from the street); see also United States v. Barry, 394 F.3d 1070 (8th Cir. 2005) (finding no seizure where officer knocked on vehicle's window as it was parked in vacant parking lot behind a mall).

Georgia law limits access to cell phone records, and a double murderer was at large and the police were trying desperately to locate him. There is a statutory suppression remedy, but the telephone company turned them over voluntarily when asked by the police, in good faith. This obviated the suppression remedy. Registe v. State, 292 Ga. 154, 734 S.E.2d 19 (2012).*

“In light of Grimes, Reyes, and Newton, as well as subsequent district court precedent, it is crystal clear that the stalking horse theory is not a valid defense to warrantless searches of probationers, parolees, or individuals on supervised release in this Circuit.” United States v. Washington, 2012 U.S. Dist. LEXIS 159863 (S.D. N.Y. November 7, 2012).*

Plaintiffs sued the government exactly one year after their house was searched and their son arrested. The government was moved to be substituted 18 months later. The two year Federal Tort Claims Act statute of limitations ran on the government. Farmer v. United States, 2012 U.S. Dist. LEXIS 160405 (E.D. La. November 8, 2012).*

Defendant had standing to challenge the search of a mailed package even though the return address was not his name. United States v. Gardenier, 2012 U.S. Dist. LEXIS 160030 (D. Mont. November 7, 2012):

The parties do not dispute that Gardenier sent the package, even though the return label read "Jenny Harbinger." As the sender of the package, Gardenier had a legitimate expectation of privacy in it. She thus has standing to challenge the warrantless seizure of the package from the UPS facility and the subsequent search of the package at the Task Force headquarters.

A store security guard reported to the police, apparently without any factual justification, that somebody in a car was doing drugs. A police car pulled up behind the car, without blue lights on, but non-flashing white lights on the light bar. That still conveyed “Stay put” and was a seizure. The seizure was without factual justification. United States v. Gray, 2012 U.S. Dist. LEXIS 159292 (D. Kan. November 7, 2012).*

The facts are not in dispute, so defendant is not entitled to a hearing on his motion to suppress a probation search. It was a valid probation search. United States v. Muhammad, 2012 U.S. Dist. LEXIS 159721 (E.D. N.Y. November 5, 2012)*; United States v. Washington, 2012 U.S. Dist. LEXIS 159863 (S.D. N.Y. November 7, 2012).*

The Supreme Court granted cert in Maryland v. King today. Chief Justice Roberts had previously granted Maryland a stay pending decision on cert.

Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.

There is no time limit for motions to suppress in a forfeiture case under the forfeiture rules, so they must be governed by local rule. Here, the motion should have been filed far earlier after discovery started than it did, and there is no excuse not to because the essential facts were known. United States v. $33,330.00 in United States Currency & Ten Pieces of Jewelry Valued at $27,750.00, 2012 U.S. Dist. LEXIS 159081 (N.D. Ga. September 4, 2012)*:

Rule G(8) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions provides, in pertinent part, the following:

Motion to Suppress Use of the Property as Evidence. If the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeiture of the property based on independently derived evidence.

Rule G(8)(a). As such, a motion to suppress is a specific motion allowed in civil forfeiture matters.

. . .

Assuming, without accepting, that practical considerations would have made it difficult for Claimant to depose the law enforcement officers he had identified at the beginning of the discovery period, there are still other actions Claimant could have taken to preserve the Fourth Amendment issue for review by the Court. As is often done in criminal proceedings, Claimant could have filed in a timely manner a preliminary motion to suppress and sought leave to perfect the motion upon Claimant's receipt of all of the evidence supporting the motion. At the very least, Claimant could have stated in the Joint Preliminary Report that he intended to file a motion to suppress after conducting sufficient discovery and could have sought permission from the Court to do the same. Claimant took none of these actions. Instead, Claimant agreed to the deadlines adopted in the Court 's Scheduling Order and then made no mention of the Fourth Amendment issue until he filed his Motion to Suppress on November 2, 2009.

In addition to neglecting the deadline for filing the Motion to Suppress, Claimant still did not act diligently in raising the Fourth Amendment issue once he learned the information that he maintains forms the basis for the Motion to Suppress. ...

Defendant was on a Greyhound bus stopped at the permanent checkpoint south of Falfurrias, Texas, and she was suspected of having on a “body suit” carrying drugs. However, she was wearing Mandenform body shaping clothing. The stop became excessive and without reasonable suspicion. United States v. Diaz, 2012 U.S. Dist. LEXIS 159415 (S.D. Tex. November 7, 2012)*:

At the hearing on the motion to suppress, testimony and exhibits demonstrated that the beige piece of clothing that Defendant was wearing was not in fact a "body suit." What Agent Cavazos saw was actually one of two articles of clothing, each with brassiere-like straps attached to material covering the torso area. According to testimony, these two camisoles, one with an attached brief and built-in brassiere, are commonly used by women as body shapers. Evidence also showed that these common articles of clothes were made by Maidenform, a popular manufacturer of women's underwear. These styles of undergarment can be purchased at major retail stores, such as JCPenny and Walmart, and are advertised online.

. . .

Agent Cavazos relied heavily on Defendant's undergarment as an indicator that Defendant was a body carrier. Agent Cavazos, however, testified that only a small and commonly exposed portion of this undergarment was visible at the time of the immigration inspection. In fact, he was only able to see a strip of a beige article of clothing on Defendant's left shoulder that he believed to be made of spandex. Based on this evidence, the undergarment that Agent Cavazos saw peeking out from under Defendant's blouse could have been any type of women's undergarment, ranging from a brassiere to a full body suit. The commonality of such articles of clothing does not lend itself to creating individualized suspicion of wrongdoing merely by its use. And, though drugs may be stashed inside women's underwear, if the mere use of underwear was used to justify search or seizure of an individual, agents may have free rein over half the population passing through a checkpoint. See Portillo-Aguirre, 311 F.3d at 657 ("In short, neither the bag nor its location suggested that criminal activity was afoot. If such common circumstances qualified as reasonable suspicion, then most interstate travelers would be subject to prolonged detention, for virtually any item of luggage, from a handbag to a suitcase, is capable of housing illegal narcotics."). This undergarment, even when viewed with Defendant's northward travel as a single, heavy-set female, does not give rise to reasonable suspicion. Defendant was not nervous and Agent Cavazos did not articulate any other suspicious facts that may be used to build sufficient justification.

Here, officers were surveilling an area known for its drug trafficking, and they saw what was likely a drug deal going down. The fact that it could have also been a legitimate transaction had to be considered with the place. It turned out that this was a gun sale, not a drug deal, but that was of “no constitutional significance.” United States v. Rabbia, 699 F.3d 85 (1st Cir. 2012):

Although the behavior in question also could have been consistent with legitimate commercial activity, the circumstances "reasonably supported a more sinister explanation." Brake, 666 F.3d at 805; see also United States v. Stanley, 915 F.2d 54, 57 (1st Cir. 1990) ("Under Terry, the test is whether the circumstances give rise to a reasonable suspicion of criminal activity, not whether the defendant's actions are subject to no reasonable innocent explanation."); cf. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) ("Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.").

Here, those circumstances included Rabbia's presence late at night in an area known to be a hotbed of drug activity. On its own, of course, the character of the location where a stop occurs "is insufficient to create reasonable suspicion," United States v. Am, 564 F.3d 25, 30 (1st Cir. 2009), and we do not suggest that residents of poorer urban neighborhoods, where crime typically is more prevalent than in nearby suburban communities, may be detained on suspicion of criminal activity simply because of where they live. See United States v. Brown, 334 F.3d 1161, 1165, 357 U.S. App. D.C. 339 (D.C. Cir. 2003) (stating that "an individual's presence in [a certain neighborhood], 'standing alone, is not enough to support reasonable, particularized suspicion that the person is committing a crime'" (quoting Wardlow, 528 U.S. at 124)). However, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Wardlow, 528 U.S. at 124. Accordingly, Rabbia's presence at 11:00 p.m. in a neighborhood with a high incidence of drug crimes is a relevant consideration supporting the reasonableness of the detectives' suspicion that he was involved in a drug deal. See id.; Am, 564 F.3d at 30 (noting that location "is clearly a consideration that a police officer may use to decide to make a Terry stop" (quoting United States v. Kimball, 25 F.3d 1, 7 (1st Cir. 1994) (internal quotation marks omitted)).

It is of no constitutional significance that, as it turned out, Rabbia was involved in an illicit gun sale, not a drug deal. ...

Defendant lived in a rooming house, and he had no reasonable expectation of privacy in the attic storage shared with others. He could not deny others access to the area. State v. Pierre, 139 Conn. App. 116, 54 A.3d 1060 (2012).

Being asleep or passed out behind the wheel of a parked car on a motel parking lot with the motor running was reasonable suspicion of being under the influence. Defendant allegedly consented to a search of his car, and that included a locked safe box in the trunk. Either way, it would have been opened in an inventory. Two guns were found, and defendant was a convicted felon. An older state case said that closed containers could not be opened, but federal cases were contra, including Florida v. Wells. United States v. Ashmore, 2012 U.S. Dist. LEXIS 159577 (E.D. Tenn. November 7, 2012).*

Bricks of heroin found “as plain as day” in an open change purse in the defendant’s car. All the factors for a plain view were clearly present. United States v. Jones, 2012 U.S. App. LEXIS 22706 (3d Cir. November 5, 2012).*

ABAJ: Litigation News: Eight Google Skills All Litigators Should Master by Don MacLeod:

Hiding in plain sight are some tools that can quickly improve the quality of your Google search results, help you save time, and produce custom-tailored results that simple keyword searching can’t deliver on its own. These are the techniques no litigator should do without.

DART transit operators called central control that two men got on a train wearing bandanas over their faces. Customers were fearful of a robbery. A transit police officer swept the train finding them, and they had reasonable suspicion for a frisk when the defendants were found. The call was not treated as an anonymous call, and the choice of wearing a bandana over one’s face justified the officer’s actions. The district court was not clearly wrong. While defendant claimed it was cold, video of the stop and frisk showed officers in short sleeves. United States v. Roberson, 496 Fed. Appx. 390 (5th Cir. 2012):

Third, Roberson argues that his attire--that is, the bandana covering his face--was not a legitimate basis for reasonable suspicion. He does not cite any case law holding that attire is an inherently inappropriate factor for a reasonable suspicion calculus. Roberson's principal contention regarding his attire is that there are reasons other than robbery that he might have been wearing a bandana, namely that it was cold. During the suppression hearing, Roberson presented evidence that a cold front had developed in Dallas that evening, and that at the time he boarded the DART train, the temperature was possibly 40 degrees Fahrenheit with wind chill, and that the inside temperature of the train was roughly similar. On the other hand, the train conductor and Officer Ibarra testified that it was not that cold on the train and that the train had a heater. The Government also presented video evidence that while some officers were wearing jackets on the scene, others were wearing short sleeves. This conflicting evidence does not clearly support Roberson's portrayal of the events, and thus we defer to the district court's resolution of the facts, since the court was uniquely situated to determine the credibility and reliability of the testimony. The district court did not clearly err in finding that Roberson was wearing the bandana for reasons unrelated to the weather.

Officers saw bullet holes in a car next to defendant’s fenced backyard and shell casings. While two hours had passed and there were 20 officers in the area, the entry was justified because of the risk of a wounded person, not a gunman. United States v. Schmidt, 700 F.3d 934 (7th Cir. 2012):

At the time of the search, gunshots had recently been heard in the neighborhood. Bullet holes were in a car that was adjacent to the backyard, bullet holes were in the 1424/1426 duplex itself, and there was a trail of about nine spent casings on the ground nearby, including five right next to the 1424/1426 duplex and one in the yard. These circumstances, taken together, made it reasonable for an officer to believe, at the time of the search, that people in the backyard area may have recently been shot and in need of immediate aid.

Schmidt principally argues that by the time of the search, two hours had already passed since the shots were fired and over 20 officers had blanketed the block. But the prime exigency in this case was the potential for wounded victims, not necessarily the threat of further shooting. If a victim had been shot in the yard, as a reasonable officer could have suspected, that victim would not have become any less wounded after two hours had passed; to the contrary, he would need immediate aid. It would not have made sense for an officer to wait for a warrant when a shooting victim could have been dying in the yard, and the officer also did not need to know that someone had actually been shot in order to go into the yard. ...

Officers got a valid warrant for defendant’s car for evidence linked to a shooting. In the car they found a digital camera, and they looked at pictures. Then they got a warrant for the camera, opining that there might be evidence on the camera. There was no showing of any reason to believe evidence would be found on the camera. The good faith exception was also inapplicable. United States v. Alkhaldi, 2012 U.S. Dist. LEXIS 158870 (E.D. Ark. September 18, 2012), adopted 2012 U.S. Dist. LEXIS 158874 (E.D. Ark. November 6, 2012):

In this instance, the LRPD detective's declaration in the affidavit that "[i]t is believed that this camera is now concealing possible evidence of a crime" could not have been made without his premature and undisclosed search of the camera. Without that initial unauthorized search of the camera, his truthful representation to the issuing judicial officer would have been consistent with his testimony at the suppression hearing, that being, he did not suspect that there would be evidence in the camera until he looked in it. Under the state of facts, as the detective knew them to be, his belief in the existence of probable cause was entirely unreasonable.

The motion to suppress the evidence obtained from the execution of the car warrant should be denied. See Document 25. The motion to suppress the evidence obtained from the execution of the camera warrant, though, should be granted. See Document 16. Alkhaldi's supplemental motion to suppress should be denied as moot. See Document 17.

[Disclaimer: My case. Government didn't object to R&R, which was adopted yesterday. JT Tuesday.]

Defendant was arrested on a fast food restaurant parking lot, and it was appropriate for the officers to tow and inventory the vehicle under Ninth Circuit precedent. Also, defendant’s sister was called about getting the car, but she wouldn’t come until the following day. United States v. Sequeira, 2012 U.S. Dist. LEXIS 158636 (D. Ariz. September 28, 2012).*

Defendant’s consent was voluntary; defendant told the officers where the firearms were and provided the key to get in. United States v. Yonts, 2012 U.S. Dist. LEXIS 158911 (E.D. Ky. November 6, 2012).*

The security sweep of defendant’s garage was proper. The officers properly looked behind things for persons, and there they found hidden marijuana. This was called a “second” sweep by one of the officers, but the court finds that it was a continuation of the initial sweep. United States v. Sinclair, 2012 U.S. Dist. LEXIS 158445 (W.D. N.Y. November 2, 2012).*

Officers had information that child pornography had been received at defendant’s house via the Internet, so they did a knock-and-talk. Defendant was then attempting to delete files to the recycle bin, so the officers decided to take the computer without a warrant for safekeeping. While the files were not being permanently deleted from the computer, that wasn’t determinative. United States v. Ma, 2012 U.S. Dist. LEXIS 158775 (D. Mont. November 6, 2012):

The court finds that the agents' decision to take the computer with them did not violate the Fourth Amendment. Whether or not Ma's actions could have permanently destroyed the evidence of child pornography is not the question here. Ma's actions, taken immediately after he was informed that the agents were looking for evidence of possession of child pornography, made it reasonable for the agents to believe he was attempting to destroy evidence, regardless of the language in which the files were captioned. Ma points to no authority stating that agents in the field are required to have a sophisticated understanding of computer technology or absolute certainty about whether Ma's actions were reversible. Furthermore, the court notes that once the computer was seized by law enforcement, nothing was done to access its files until the search warrant was issued. This action adds to the reasonableness of the agents' actions, a critical inquiry under the Fourth Amendment. See Kentucky v. King, __ U.S. __, 131 S.Ct. 1849, 1856 (2011) ("The ultimate touchstone of the Fourth Amendment is 'reasonableness'") (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

The New American: Will Police Drones Destroy the Fourth Amendment? by Joe Wolverton, II:

Although the president’s use of drones to execute the war on terror and those he assumes are associated with it has so far occurred only outside the United States, soon drones will slice through the domestic skies, as well. While the sight of drones over U.S. cities and towns is rare now, the Federal Aviation Administration (FAA) predicts that by 2020, 30,000 of these unmanned aerial vehicles (UAV) will be patrolling American airspace.

Scores of these UAVs will be deployed by state and local law enforcement, adding to the many that will be sent airborne by the federal government.

Officers had objectively reasonable evidence that somebody had been shot to justify their entry under exigent circumstances. United States v. McCabe, 2012 U.S. Dist. LEXIS 158309 (D. Ariz. November 2, 2012).*

Defendant’s trash was searched, and he claimed officers entered the curtilage to conduct the search. Based on the evidence at the hearing, the court finds that the trash container searched was not on the curtilage at the time of the search; it was at the street. United States v. Knox, 2012 U.S. Dist. LEXIS 158129 (N.D. Tex. November 5, 2012).*

In a conspiracy to violate the Clean Water Act conviction, the defendant is denied bail pending appeal because none of the issues are sufficiently strong to suggest reversal on appeal, including the search question of open fields. “Because the Court does not believe either Fourth Amendment claim presents a ‘close question or one that could go either way,’ Pollard, 778 F.2d at 1182, the Court concludes the first ground for staying on bond pending appeal must fail.” United States v. Fillers, 2012 U.S. Dist. LEXIS 158269 (E.D. Tenn. November 5, 2012).*

Officers responded to a domestic abuse call and entered without a warrant and guns drawn when they got no answer. Defendant was in the shower with loud music playing and he did not respond to the officers’ knock or calling out. Instead of going to the bathroom, they lifted the flap of a suitcase laying open and found a gun. The search of the suitcase was without exigent circumstances. State v. Roberson, 2012 Ohio 5106, 2012 Ohio App. LEXIS 4468 (2d Dist. November 2, 2012)*:

[*P25] At the close of the suppression hearing, counsel for the State argued that the exigent circumstance was the weapon itself. Tr. 46. However, the mere presence of firearms does not create an exigent circumstance. United States v. Johnson, 22 F.3d 674, 680 (6th Cir.1994); State v. Sharpe, 174 Ohio App.3d 498, 2008 Ohio 267, 882 N.E.2d 960, at ¶ 50 (2d Dist.).

[*P26] Furthermore, we do not agree that the search of the suitcase necessarily would increase officer safety. The search of the suitcase would result in one of two scenarios. First, if a firearm was found in the suitcase, then the firearm had already been secured by the police and therefore the firearm posed no immediate risk to anyone, including the officers. Under this scenario, the search of the suitcase would do nothing to increase officer safety. We acknowledge that the discovery of the gun in the suitcase may have provided the police with additional comfort or relief as they ultimately approached the bathroom to get Roberson to exit. But the search of the suitcase itself in an apartment that had already been secured would not increase officer safety.

[*P27] On the other hand, discovery that the weapon was not in the suitcase would do nothing to secure the safety of the officers "as the whereabouts of the gun would still be unknown." State v. Simmons, 4th Dist. Highland No. 05CA4, 2006 Ohio 953, ¶ 43. While it is true that the discovery that the gun was not located in the suitcase may have put the officers on heightened alert that Roberson may have the gun on his person in the bathroom, the officers had already been made aware that this was a possibility. Indeed, beginning with their entry into the apartment, the officers had proceeded with their guns drawn, as if Roberson had the gun on his person. This is completely understandable given that police officers often have to proceed with the utmost caution, assuming the worst-case scenario, in order to ensure the protection of the public and themselves. This is especially true when a firearm is involved. While we do not minimize the need for officer safety, we do not agree that the search of the suitcase was necessary or helpful to ensure officer safety in the particular facts of this case.

Officers came to defendant’s house to execute an arrest warrant for another matter, and they smelled burning marijuana. One stayed at the house and others went to get a search warrant. They knocked and announced and entered getting no answer from within. That was reasonable under Wilson v. Arkansas. State v. Eilander, 824 N.W.2d 561 (Iowa App. 2012).

The evidence at the trial court supports the finding that the consent was valid. Also, the consent form was explained to the defendant before it was signed. State v. Powell, 2012 Ohio 5104, 2012 Ohio App. LEXIS 4467 (2d Dist. November 2, 2012).*

The driver of a car who could not own it for “legal reasons” had the authority to consent to a search. At least the officer was reasonable in believing that he had the ability to consent. State v. Prater, 2012 Ohio 5105, 2012 Ohio App. LEXIS 4470 (2d Dist. November 2, 2012).*

The Nation: Checking Big Brother by David Cole:

What if the government was tapping your phone unconstitutionally, and there was nothing you could do about it? That’s just life in the United States of America, at least according to the Justice Department. On Monday, October 29, Solicitor General Donald Verrilli Jr. argued in the Supreme Court that, for all practical purposes, the most expansive authority Congress has ever given the government to intercept Americans’ international phone calls and e-mails could not be challenged in court, even by the very people most likely to be harmed by it.

Defendant was arrested in his own house for aggravated DWI on a warrantless entry. Defendant made a prima facie case of IAC getting a hearing on defense counsel’s failure to move to suppress. State v. Crocco, 2013 NMCA 033, 296 P.3d 1224 (2012), Certiorari Granted, March 1, 2013, No. 33,938*:

[*1] Following a warrantless police entry into a private residence, Defendant Gregg Crocco was arrested and charged with aggravated driving while intoxicated, contrary to NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). His trial counsel did not move to suppress evidence that resulted from the warrantless entry. Defendant was convicted and he appeals, arguing, among other things, that the police made an unconstitutional warrantless entry into the residence and that his counsel was ineffective for failing to move to suppress the evidence obtained as a result. We hold that Defendant has made a prima facie showing of ineffective assistance of counsel based on his counsel's failure to move to suppress evidence gained from the warrantless entry. We reverse Defendant's conviction and remand for a new trial.

The officer allegedly extended the stop and defense counsel at trial didn’t move to suppress. Because the facts aren’t clear that the motion probably would have been granted, defense counsel wasn’t ineffective. State v. Walker, 824 N.W.2d 561 (Iowa App. 2012).*

Knock-and-talk entries could still lead to an entry on exigent circumstances. The failure of the defense to mention exigency in the motions below means that the certified question for appeal might not be dispositive of the case. Therefore, appeal dismissed under state law. State v. Ward, 2012 Tenn. Crim. App. LEXIS 907 (November 2, 2012).*

The same for State v. Finney, 2012 Tenn. Crim. App. LEXIS 908 (October 29, 2012):

In the instant appeal, the defendant's certified question is overbroad and non-specific. The defendant challenges the validity of an alleged search and an ensuing seizure but does not state the reasons she relied upon in the trial court. From our review of the defendant's brief and relevant transcripts we discover that the defendant argued in the trial court that: (1) the State did not have the authority to search the defendant's vehicle simply because it had entered State property, and (2) the consent given by the defendant to the search of her purse was involuntary because no reasonable person [*9] would have felt free to leave or to decline such consent after having been ordered to exit the vehicle. These claims are not frivolous on their face.

However, the certified question reserved by the defendant in the trial court, as phrased, does not include the "reasons relied upon by defendant in the trial court at the suppression hearing" as required by Preston. ...

The authorized driver of a rental car has standing. The stop was prolonged unreasonably because the officer for some reason refused to listen to the occupants that he was looking at the wrong rental agreement and questioning them about it. The consent thereafter was not voluntary. United States v. Ma, 2012 U.S. Dist. LEXIS 157247 (D. Mont. November 1, 2012).*

Plaintiff’s suit against the government is barred by his guilty plea which admits probable cause. Rankin v. United States, 2012 U.S. Dist. LEXIS 156034 (S.D. Miss. October 31, 2012).*

Plaintiff was on probation and had his person and car searched when he made a report. His § 1983 case was subject to Delaware’s two year SOL, and he filed outside the time. He knew that he was subjected to the search and what was taken, so it accrued then. Woodson v. Payton, 2012 U.S. App. LEXIS 22579 (3d Cir. November 2, 2012).*

Defendant was excluded from the house searched by an ex parte order of the domestic relations court and the locks had been changed. The fact he had a deed giving him an interest in the property was not determinative, and he had no standing to challenge the search of the house. State v. Cannon, 2012 Tenn. Crim. App. LEXIS 900 (October 30, 2012)

The defendant's first challenge to the trial court's conclusion that she had no standing to challenge the searches is that the pending divorce action between the parties, and the accompanying ex parte order granting the victim exclusive possession of their former marital residence, abated with his death. However, even assuming the defendant is correct in this assertion, the operation of civil law is not dispositive of the Fourth Amendment inquiry. As our Supreme Court has explained, "[i]n defining the scope of [Fourth Amendment protections], we adhere to the view expressed in [prior] cases that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas, 439 U.S. at 143. Rather, "'(n)o one circumstance is talismanic to the Rakas inquiry.'" Turnbill, 640 S.W.2d at 46 (quoting United States v. Haydel, 649 F.2d 1152, 1154-1155 (5th Cir. 1981)).

The defendant also directs our attention to the fact that the victim had surrendered his interest in the marital home to the defendant via a quit claim deed in 2005, and consequently, the defendant was the sole title holder of record of the home at the time of the searches. The defendant further directs our attention to evidence in the record that the defendant and the victim were engaged in an "on-again, off-again" relationship during the months preceding the murder, that they were attempting to reconcile at the time of the victim's death, and that the defendant stored some of her clothing at the house. While these facts standing alone might tend to favor the defendant, they are insufficient to establish a reasonable expectation of privacy in the residence when viewed in the context of the record as a whole. At most, they establish that the defendant had an ownership interest in the property searched and a subjective expectation of privacy. However, mere title "does not establish a privacy interest in property, State v. Smith, 656 S.W.2d 882, 887 (Tenn. Crim. App. 1983), and these two factors must be balanced against the remaining Turnbull and other relevant factors.

A person who does not live at a residence and who has no key to a residence usually has no reasonable expectation of privacy in that residence. See State v. Transou, 928 S.W.2d 949, 958 (Tenn. Crim. App. 1996). It is undisputed that the defendant lived in a separate location—an apartment located approximately one-half of a mile from the residence at issue. Moreover, the defendant has failed to direct our attention to any clear evidence in the record that supports her claim that she still had a key to the residence that functioned after (as record testimony reflects) the victim had the locks changed following her departure on May 5, 2008.

Jonathan Turley: The Watering Down of the Fourth Amendment by Lawrence E. Rafferty (guest blogger):

We all know or should know the Fourth Amendment and how it protects all citizens from an illegal search and seizure of our property and person. “‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’" Cornell Law

Over the years, this valuable right has been watered down. Recently, the Roberts Court heard arguments in a case that did not get much media attention. That case involved a man who was arrested and detained after a traffic stop just because he had been in an apartment that the police had just exercised a search warrant. The name of the case is Bailey v. United States and oral arguments in front of the Supreme Court were heard on November 1st, 2012. Bailey v. United States. The narrow issue that the Supreme Court is deciding is whether an individual can be detained by the police merely because he recently left a residence before the police executed a search warrant at that location. Sounds like a no brainer, doesn’t it?

Police were investigating regular interstate shipment of drugs, and defendant was suspected of picking up one of the packages. Defendant fled from a traffic stop, and the officer was able to confront him with a Taser, ordering him to the ground. That was not unreasonable. United States v. Clement, 2012 U.S. Dist. LEXIS 157814 (W.D. La. October 11, 2012)*:

Using some force on a subject, pointing a weapon at a suspect and handcuffing a suspect, whether singly or in combination, does not automatically convert an investigatory detention into an arrest requiring probable cause. Campbell, 178 F.3d at 349 citing Sanders, 994 F.2d at 206. This is particularly the case when officers are investigating drug transactions where safety may be a concern, as drugs and firearms are commonly found in connection with each other. See United States v. Majors, 328 F.3d 791, 795 (5th Cir. 2003) ("[F]irearms are tools of the trade for those engaged in illegal drug activities." (internal citations and quotation marks omitted); United States v. Coleman, 969 F.2d 126, 132 fn. 20 (5th Cir. 1992).

The fact the U.S. Marshals transferred plaintiff from one jail to another in pretrial detention did not state a Fourth Amendment claim for an unreasonable seizure without alleging a lot more not even present. Vega v. United States, 2012 U.S. Dist. LEXIS 157102 (W.D. Wash. November 1, 2012).*

Defense counsel was not ineffective for not moving to suppress the stop in this case because there was at least a technical violation of the traffic code, and that justified the stop. “In light of the holding of Mosley, the stop was lawful because a traffic infraction can be used as a pretext for investigation into the drug activity. Mosley, 454 F.3d at 252. ... ‘[C]ounsel cannot be deemed ineffective for failing to raise a meritless claim.’ ...” Ferguson v. United States, 2012 U.S. Dist. LEXIS 157341 (W.D. Pa. November 2, 2012).*

That defendant had pictures of a naked child not his own was PC for child pornography at least under Pennslyvania law. The fact a parent might have an innocent picture of his or her own child is different. United States v. Kofalt, 2012 U.S. Dist. LEXIS 157349 (W.D. Pa. November 2, 2012).*

Defendant was with four men, one of whom was wanted and in a high crime area. It was not unreasonable to order all four to the ground so the lone officer at the scene could control it. He was frisked quickly by the first officer there, and another showed up and subjected him to another frisk finding drugs. United States v. Howard, 2012 U.S. Dist. LEXIS 157691 (W.D. Wis. October 22, 2012),* adopted 2012 U.S. Dist. LEXIS 157691 (W.D. Wis. November 2, 2012).*

Reaching over the console during a stop for a seatbelt violation is not a furtive gesture warranting a patdown. Nothing else suggested criminal conduct. Grantham v. City of Tuscaloosa, 2012 Ala. Crim. App. LEXIS 89 (November 2, 2012).*

A citizen informant in a bar told the officer that the defendant was going to get in a particular truck and drive, and he was “wasted” drunk. The face-to-face meeting with predictors that all proved true was reasonable suspicion for a stop. Venegas v. State, 2012 WY 136, 287 P.3d 746 (2012).*

The Hill: Police drones prompt privacy concerns by Brendan Sasso:

Drones are well-known for their ability to hunt down suspected terrorists abroad, but they have also increasingly become a popular tool of police departments around the country.

Drones are cheaper to build and fly than helicopters, making them a cost-effective option for police departments looking to gain a bird's eye view of a scene. But privacy groups are sounding alarm that there aren't enough legal safeguards in place to prevent drones from being used for mass surveillance.

The privacy groups are pushing Congress to pass a law that would set nationwide restrictions on how police can use drones.

Security Theater: WaPo: Airport security checks are vulnerable to fake boarding passes, experts warn by Astrid Riecken:

More than 11 years after the Sept. 11 terrorist attacks, it remains possible to use fake boarding passes to get through airport security checks, according to new evidence from security researchers and official documents.

The security vulnerabilities could allow terrorists or others on “no-fly” lists to pass through airport checkpoints with fraudulent passes and proceed through expedited screening. They could even allow them to board planes, security analysts warn.

Spousal testimonial privilege did not bar the defendant’s wife from being the CI in a search warrant affidavit. State v. Fairfield, 2012 Ohio 5060, 2012 Ohio App. LEXIS 4428 (8th Dist. November 1, 2012):

[*P15] At all times in the affidavit, any reference to the CRI is to Fairfield's wife. Fairfield contends that his CRI-wife could not provide information in support of the warrant because it violated the spousal privilege in violation of R.C. 2945.42, concerning the competency of a witness, and R.C. 2317.02, regarding privileged communications. Both statutes state that a husband and CRI-wife "shall not testify" concerning communications made to each other or regarding an act done in the presence of the other, during coverture, unless the communication or act was done in the known presence of a third person.

[*P16] The court in State v. Jaschik, 85 Ohio App.3d 589, 620 N.E.2d 883 (11th Dist.1993), addressed an identical situation. In Jaschik, the CRI-wife told police that her husband abused drugs and had weapons at the home. Based on the information she provided, the police obtained a search warrant for the marital home where weapons were found. The court in Jaschik concluded that the prohibition against "testifying" against a spouse applied to trials and not search warrants because warrants are used to aid in the investigation process and are ancillary to the criminal proceedings. We agree. Although the CRI-wife would not be permitted to testify at trial, she could provide information in support of the investigation.

Plaintiff’s refusal to answer questions as a witness at the scene of a hit-and-run was not clearly an obstruction of an officer under Colorado law, so his arrest was without probable cause, and any reasonable officer should have known it. Kaufman v. Higgs, 11-1390 (10th Cir. October 23, 2012), revg Kaufman v. Higgs, 2011 U.S. Dist. LEXIS 83609 (D. Colo. July 29, 2011) (posted here):

... Refusal to answer questions during a consensual encounter, expressed by silence and assertion of “privilege,” is not an “obstacle” as the term is used in the statute.

. . .

An “obstacle” is “a thing that blocks one’s way or prevents or hinders progress.” Oxford New English Dictionary 1211 (3d ed.). Silence accompanied by an explanation of the basis for that silence does not obstruct anything. In fact, it is hardly “a thing” at all. It is a null action; it simply maintains the status quo. Mr. Kaufman’s silence here did nothing to the police’s investigative efforts; it allowed them to continue unimpeded. They were able to continue putting questions to Mr. Kaufman, they could have sought out other members of Mr. Kaufman’s family for questioning, and they could have even sought to compel Mr. Kaufman to answer their inquiries with a grand jury subpoena.

. . .

C. Was there “arguable probable cause” for the arrest?

No reasonable officer could have construed Colorado’s obstruction statute as criminalizing the choice to remain silent when faced with questions the answers to which might be incriminating. Even if the text of the obstruction statute were ambiguous (and it is not), the Colorado Supreme Court foreclosed the Defendants’ interpretation with its opinion in Dempsey.

h/t: a reader

Defendant was found to have voluntarily consented to a search of his business. Officers said that they did not have a search warrant, and he said “go ahead.” He refused consent to search his house, and that showed voluntariness. Uriel-Ramirez v. State, 385 S.W.3d 687 (Tex. App. – El Paso 2012).

Defendant was the subject of an encounter at the Baton Rogue Greyhound station over whether he was a U.S. citizen. The court finds the encounter was consensual because it was administrative and not criminal. It took a while, but it was determined that defendant’s British identity was likely false and, by his own admission, he’d overstayed the 90 day visa by several years. United States v. Doe, 2012 U.S. Dist. LEXIS 156186 (W.D. La. October 1, 2012).*

Defendant was found to have consented to a search of his two cell phones at the Niagara Falls border crossing after he had been handcuffed and detained at the border and MDMA had been found in the car. The court [wisely] declines to decide, at the urging of the government, that the cell phones could have been searched as a part of a border crossing. United States v. Ighodaro, 2012 U.S. Dist. LEXIS 156834 (W.D. N.Y. July 5, 2012).*

Defense counsel was not ineffective for the decision to allow defendant to cooperate by further interrogation and consenting to searches. When defendant turned himself in, counsel-less, he admitted the killing, said it was self-defense, and already admitted to hiding the body. Woods v. State, 291 Ga. 804, 733 S.E.2d 730 (2012).*

A storage unit operator called the police to complain that somebody was living in a storage unit contrary to the rental terms, thereby trespassing. That gave the officers reasonable suspicion when they found defendant living in one. His admission he had marijuana on him was only more. Clark v. State, 2012 Ind. App. LEXIS 547 (October 31, 2012).*

Officers on drug patrol were looking for people who had sold them drugs a few weeks prior. When they saw defendant, that was reasonable suspicion. State v. Gibson, 103 So. 3d 641 (La.App. 5 Cir. 2012).*

Crossing the centerline justified the stop. State v. Vinson, 400 S.C. 347, 734 S.E.2d 182 (App. 2012).*

Officers gave chase to a bank robber who was carrying a GPS in a bait pack of money. When the package stopped moving, it was in one of 20 cars. Considering the gravity of the situation, stopping all 20 at a roadblock was reasonable. It was not constitutionally required for the officers to further attempt to narrow down the potential vehicles involved. United States v. Paetsch, 2012 U.S. Dist. LEXIS 157022 (D. Colo. October 23, 2012):

Under the particular facts and circumstances of this case, the Court holds that the officers' initial stop of the twenty vehicles was reasonable, and therefore did not violate the Fourth Amendment. Applying the statement of law cited immediately above from Edmond, the roadblock here was, without a doubt, designed "to catch a dangerous criminal ...." Edmond, 531 U.S. at 44. At the time the 20 vehicles were detained, the Aurora Police Department was seeking an armed individual whom they knew had robbed a bank with the use of a visible handgun, clearly designed to instill fear in the individuals in the bank, and creating the potential for a fatal shooting at the bank. In the Court's view it was entirely reasonable for the officers to assume that the robber continued to be armed and dangerous, especially given the fact that the mass traffic stop was effected less than 15 minutes after the bank robbery itself had taken place.

Computer technology being what it is, it is well known now that searches can be confined to the scope of search provided for by the warrant. Here, the computer search warrant was for evidence of passport and identity theft, and there is no reason why video files had to be rummaged through. That violated the scope of the warrant and the Fourth Amendment. The motion to reconsider prior denial of the motion to suppress is granted, as is the motion to suppress. United States v. Schlingloff, 2012 U.S. Dist. LEXIS 157272 (C.D. Ill. October 23, 2012):

By opening the "Vicky" files flagged by the KFF alert, McNamee knew or should have known that those files would be outside the scope of the warrant to search for evidence of passport fraud or identity theft, particularly as the warrant did not specifically refer to evidence found in video files. In this respect, the facts of this case are distinguishable from either United States v. Burgess, 573 F.3d 1078, 1092 (10th Cir. 2009) or United States v. Wong, 334 F.3d 821 (9th Cir. 2003), both of which are cited favorably in Mann, where the files were opened inadvertently in the normal course of the search.

Additionally, in light of the admitted ability to confine the FTK search by not enabling the KFF filter for child pornography alerts, the Court finds that Agent McNamee took an affirmative additional step to enable the KFF alerts that would identify known child pornography files as part of his search for evidence of passport fraud or identity theft. In a case where the professed subject matter sought in the search bore no resemblance to child pornography, it is difficult to construe this as anything other than a deliberate expansion of the scope of the warrant, or at the very least, an affirmative step that effectively did so.

Given the ever increasing state of technology and consequently, technology related crimes, the Court finds that this issue is not going to go away, and in fact, will likely become more prevalent and finely contoured. Digital images or files can be located nearly anywhere on a computer and "may be manipulated to hide their true contents." 592 F.3d at 782-83, citing United States v. Hill, 459 F.3d 966, 978 (9th Cir. 2006). Accordingly, more comprehensive and systematic searches have been found to be reasonable. See United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 1006)(finding that a computer search may be as extensive as reasonably required to locate the items described in the warrant.) Nevertheless, it is also important to note that there is normally no fear of degradation or dissipation of evidence or a rapidly evolving situation requiring the need to "shoot from the hip" in examining seized computer files without a proper warrant. United States v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012). In fact, Judge Posner recently noted that the doctrine of staleness has taken on new contours as a result of technological advancements and the importance of employing a "realistic understanding of modern computer technology" when evaluating Fourth Amendment challenges to computer searches. Id., at 778.

The promise of the Fourth Amendment to be free from unreasonable searches and seizures contemplates a warrant that sets forth with specificity the area to be searched and the subject matter of the search. So if a warrant authorizes an officer to look in all files on a computer, should the courts care how it is done? This Court believes so.

Statute of limitations for plaintiff prison inmate’s § 1983 complaint for a wrongful search began when he knew the search occurred. Here, it was time barred when filed. Woodson v. Payton, 2012 U.S. App. LEXIS 22579 (3d Cir. November 2, 2012).*

Failure to intervene instruction from the plaintiff was wrong on the law, but he can’t complain on appeal. Sanchez v. City of Chicago, 700 F.3d 919 (7th Cir. November 2, 2012).*

A parent sued the defendant school board under the Fourth Amendment for giving the child an H1-N1 shot. Also, “Plaintiffs' Complaint did not come close to meeting these rigorous standards” of deliberate indifference or shocking the conscience. B.A.B. v. Bd. of Educ. of St. Louis, 698 F.3d 1037 (8th Cir. 2012).*

Reason.com: Why a Sensitive Dog Is an Evidence-Impaired Cop's Best Friend by Jacob Sullum:

On Monday I noted the 2011 Chicago Tribune analysis of data from suburban police departments that found vehicle searches justified by a dog's alert failed to turn up drugs or drug paraphernalia 56 percent of the time. A 2006 study by the New South Wales Ombudsman in Australia looked at more than 10,000 searches triggered by dog alerts and discovered that 74 percent of them found no illegal drugs. In other words, as the National Association of Criminal Defense Lawyers (NACDL) and the American Civil Liberties Union (ACLU) note in their Harris brief, "any given alert was almost three times more likely to be a false alert than an accurate one." More-recent data from New South Wales indicate an even higher error rate: 80 percent.

The NACDL and the ACLU also describe a 1984 operation in which Florida state police stopped about 1,330 vehicles at roadblocks and walked dogs around them. If one dog alerted, another was brought in, and vehicles were searched only if both dogs indicated the presence of illegal drugs. That happened 28 times, but those searches yielded just one drug arrest. "Despite the requirement that two dogs alert before a search," the NACDL/ACLU brief notes, "police found illegal narcotics sufficient to justify an arrest in only 4% of cars searched," meaning "the likelihood of a false alert was approximately 96%." With impressive chutzpah, Florida's lawyers claim "this example at most shows a 'false' alert rate under 2%." You see what they did there? Twenty-seven false alerts divided by 1,330 cars equals 2 percent. But the relevant question is not the percentage of vehicle stops that resulted in a false alert; it is the percentage of alerts (in this case, double alerts) that turned out to be false. For purposes of probable cause, we want to know the likelihood that a search triggered by a dog's alert will find drugs. In this case it was 4 percent—not, as Florida's tricky calculation implies, 98 percent.

SailFeed.com: Coast Guard Boardings and Your Fourth Amendment Rights, Part 2 & Part 3 by Clark Beek

The constitutionality of the government’s warrantless obtaining the International Mobile Subscriber Identity (IMSI) number from defendant’s cell phones was a question that did not have to be decided because it was harmless beyond a reasonable doubt. The calls on the phone were obtained on the phone after that. The government already had the phone of the co-defendant and had the calls from that to the defendant. “We cannot imagine that the jury would have rendered a different verdict in the absence of the one, relatively minor, piece of evidence derived exclusively from the retrieval of Green's IMSI number: namely, that the particular phone he was carrying on the day he was arrested was assigned telephone number (954) 245-2759. We therefore find beyond a reasonable doubt that any error here did not contribute to the verdict, see Chapman, 386 U.S. at 24, and we leave the Fourth Amendment question for another day.” United States v. Green, 698 F.3d 48 (1st Cir. 2012).*

Defendant had no standing to challenge the obtaining information from the cell phone at issue. It wasn’t his, and he previously sought to distance himself from the phone. On the motion to suppress, he was pressed about his possession of the phone and he wouldn’t go there. Therefore, he had no standing. United States v. Cannon, 2012 U.S. Dist. LEXIS 156668 (D. S.C. November 1, 2012).*

It does not violate the Fourth Amendment for the State of Ohio to keep the DNA of a person acquitted and then use it later. State v. Emerson, 2012 Ohio 5047, 134 Ohio St. 3d 191, 2012 Ohio LEXIS 2630 (Ohio November 1, 2012):

{¶ 1} There are two issues presented in this case. First, when a sample of a person’s DNA is lawfully obtained by the state during the course of a criminal investigation but the person is acquitted of that crime, does that person have standing to object under the Fourth Amendment to the U.S. Constitution to the retention by the state of the DNA profile obtained from that sample or its use in a subsequent criminal investigation? Second, is the state authorized to retain and subsequently use a DNA profile when the DNA sample was lawfully taken from a person during a criminal investigation, but the person was acquitted?

{¶ 2} For the reasons that follow, we conclude that a person does not have standing to object to the retention of his or her DNA profile or the profile’s use in a subsequent criminal investigation, and the state is authorized to retain the DNA profile and to use it in a subsequent investigation even though the profile was obtained from a sample taken during the investigation of a crime of which the person was acquitted. We accordingly affirm the judgment of the court of appeals.

. . .

{¶ 30} There is no support in the CODIS Methods Manual for appellant’s position. The manual has no provision for the removal of a DNA profile of an individual acquitted at trial. Section 17.6 sets forth the basis for expunging a DNA profile—a conviction being overturned on appeal or a sample taken in error—and the procedures that need to be followed. However, section 17.6 is not self-executing. There is no mechanism set forth in the manual by which the state is automatically notified that a person’s conviction has been overturned, requiring the profile of the acquitted person to be removed. Instead, the requirement of going forward is on the exonerated individual to notify CODIS that the conviction has been overturned and to seek expungement of the DNA profile. Appellant failed to do this.

{¶ 31} There is no legislative requirement that DNA profiles obtained from lawfully obtained DNA samples be removed from CODIS on the state’s initiative when the subject of the profile is acquitted at trial, and we will not create such a requirement. “Exclusion of extremely valuable evidence in crimes that often leave little other trace is a major social cost” and “the potential for abuse in the future is not sufficiently clear to warrant adopting a rule excluding evidence from the database on the ground that it was obtained or retained beyond the authorized classifications.” Smith, 744 N.E.2d at 442.

The court declines to view each paragraph of the affidavit separately because it has to consider the totality of the circumstances. On the totality, there is probable cause. A search of defendant’s detached garage was permissible under a search warrant for the house. United States v. Green, 2012 U.S. Dist. LEXIS 156068 (N.D. Ohio October 31, 2012).*

Four men went into a house when a police showed up in the neighborhood. They could see a gun in defendant’s waistband, and he was last in. That was a furtive movement first, and reaching for a gun was probable cause. The officer was acting reasonably giving pursuit and then stopping for the gun when it was discarded in flight through the house. State v. Gibson, 2012 La. App. LEXIS 1354 (La. App. 5 Cir. October 30, 2012).*

Removing the gearshift boot from a car as a part of an inventory search showed it was really a criminal search. Also, when the officer was conducting the inventory, she had no pen and paper in hand suggesting that there was no inventory. The video of the inventory process also was relied upon. State v. Williams, 382 S.W.3d 232 (Mo. App. 2012):

Although we do not have the inventory report itself, from Officer Laffoon's cross-examination we know that she also failed to document all of the valuable property found within the vehicle. According to Officer Laffoon's testimony, and as depicted in the video recording, two cell phones found in the vehicle were returned to Williams. The Kansas City Police Department inventory policy provides that "[p]roperty other than evidence and contraband may be released at the scene by the officer to a responsible person. Release information on the reverse side of the Physical Evidence/Property Inventory Report, Form 236 P.D., will be completed prior to releasing the property." Despite the explicit requirement to document the release of property to third parties, Officer Laffoon admitted on cross-examination that "no, it doesn't look like [the cell phones] ended up being listed on there."

We also note that the dashboard video recording makes clear that Officer Laffoon "did not have a pen, [and] did not write anything down" as she conducted her search. United States v. Garcia-Medina, No. 2:11-CR-545-TC, 2012 U.S. Dist. LEXIS 80620, 2012 WL 23597765, at *4 (D. Utah Aug. 20, 2012). Although Officer Laffoon told Officer Henry that she should be the only person physically searching the vehicle's interior, she did not complete the inventory form. According to Officer Laffoon, Officer Henry completed the form, "[m]ore than likely" based on what she told him. The video recording reflects that Officer Henry did not ask Officer Laffoon whether she had Tow-In reports in her patrol car until fifteen minutes after the search had begun. The fact that Officer Laffoon had no device to actually document the property she was uncovering, and that fifteen minutes elapsed before Officer Henry began the process of documenting whatever he listed, are additional factors indicating that this was not a true inventory.

Officer Laffoon's failure to completely and accurately document the property found in Williams' vehicle as required by the Kansas City Police Department inventory policy, and the behavior indicating that her objective was not to prepare an exhaustive property listing, are highly significant in determining whether this was a bona fide inventory search. "The policy or practice governing inventory searches should be designed to produce an inventory.'" Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990) (emphasis added). The underlying purpose of an inventory search is (or at least should be) to produce a report documenting the nature, and condition, of property being impounded, to protect the police department from spurious claims of lost or damaged property. Investigating officers' failure to properly record the property they find is a significant consideration in determining the bona fides of the inventory.

The court concludes that the officers are not believable and the officers were searching defendant’s apartment without a warrant or exigent circumstances when they obtained his consent which could not be voluntary. United States v. Johnson, 2012 U.S. Dist. LEXIS 155710 (E.D. Pa. October 31, 2012).

Notice of forfeiture provides due process so there is no Bivens claim for such forfeitures. Rankin v. United States, 2012 U.S. Dist. LEXIS 156034 (S.D. Miss. October 31, 2012).*

The SW was based on IP access to child pornography, and it was in somebody else’s name. That, however, does not invalidate the search warrant, and the cases defendant cites in his 2255 don’t support his claim. Ables v. United States, 2012 U.S. Dist. LEXIS 155220 (S.D. Ohio October 30, 2012).*

In a drug trafficking case, it is a reasonable inference for an issuing magistrate that drugs and guns will be kept in the trafficker’s home. United States v. Johnson, 2012 U.S. Dist. LEXIS 155885 (E.D. Ky. October 31, 2012), quoting United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008):

In a recent line of cases, we have held that an issuing judge may infer that drug traffickers use their homes to store drugs and otherwise further their drug trafficking. See, e.g., United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002); see also United States v. Gunter, 266 Fed.Appx. 415, 419 (6th Cir. 2008) (unpublished decision) (noting that our precedents establish that there is a nexus between a drug dealer's criminal activity and the dealer's residence when there is reliable evidence connecting the criminal activity to the residence); United States v. Newton, 389 F.3d 631, 636 (6th Cir. 2004), vacated in part on other grounds, 546 U.S. 803, 126 S.Ct. 280, 163 L.Ed.2d 35 (2005) (holding that in cases involving drug traffickers engaged in "continuing operations," the "lack of a direct known link between the criminal activity and the residence[ ] becomes minimal"); United States v. Caicedo, 85 F.3d 1184, 1192-93 (6th Cir. 1996) (holding that there was probable cause based on an affidavit that stated, in the affiant's experience, many drug traffickers use their residences to conduct their drug trafficking activities). ...

“[A] general statistical inquiry into the background of individual canine units” should be avoided by the courts. United States v. King, 2012 U.S. Dist. LEXIS 155647 (D. Kan. October 31, 2012):

The [Tenth Circuit] further cautioned against a general statistical inquiry into the background of individual canine units:

[I]t surely goes without saying that a drug dog's alert establishes probable cause only if that dog is reliable. But none of this means we mount a full-scale statistical inquisition into each dog's history. Instead, courts typically rely on the dog's certification as proof of its reliability. After all, it is safe to assume that canine professionals are better equipped than judges to say whether an individual dog is up to snuff. And beyond this, a dog's credentials provide a bright-line rule for when officers may rely on the dog's alerts – a far improvement over requiring them to guess whether the dog's performance will survive judicial scrutiny after the fact. Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors.

[United States v. Ludwidg, 641 F.3d 1243, 1251 (10th Cir. 2011)]. (emphasis added, citations omitted).

OK, so there is no defense to the alleged "well trained" drug dog?

Cop talk adopted by the court: Not "dog"; it's now "canine unit."

A reference to the drug crimes statute in a search warrant was a mere scrivener’s error where the search warrant clearly was looking for semen on sheets. Magness v. State, 2012 Ark. App. 609, 2012 Ark. App. LEXIS 721 (October 31, 2012):

Appellant filed a motion to suppress the evidence seized during the search of his cabin based on his allegation that the warrant’s reference to section 5-64-401 in the description of the property to be seized rendered it defective. Highly technical attacks on search warrants are not favored because the success of such attacks could discourage law-enforcement officers from utilizing search warrants. [Moss v. State, 2011 Ark. App. 14, ___ S.W.3d ___.] Moreover, to uphold the validity of an affidavit made in support of a search warrant, it is not necessary that the affidavit be completely without inaccuracy as long as the inaccuracies are relatively minor when viewed in the context of the totality of the circumstances, including the affidavit taken as a whole and the weight of the testimony of the participants who procured and executed the search warrant. Moss, supra.

Atlantic.com: What the 'Bailey' Case May Reveal About Supreme Court Ideology by Daniel Epps:

Imagine that the police have a warrant to search a house. Could they detain you -- in handcuffs -- just because you happen to be driving away from that house before the search?

That's the issue in Bailey v. United States, which the Supreme Court will hear Thursday. (The case was originally scheduled for Tuesday, but umpire-in-Chief John Roberts declared a rainout due to Hurricane Sandy.)

Though the situation in Bailey is relatively rare, the way the Court decides the case could reveal a lot about the future of Fourth Amendment jurisprudence.

The case arose, like so many Fourth Amendment cases do these days, out of a narcotics investigation. Police got a tip that someone nicknamed "Polo" was selling drugs out of the basement apartment of a house in Islip, New York.

Volokh.com: Thoughts on the Oral Arguments in the Dog Sniff Cases by Orin Kerr:

This morning I attended the oral arguments at the Supreme Court in the dog sniff cases, Florida v. Jardines and Florida v. Harris. Based on the arguments, my guess is that the state will win one and lose one. The Court will probably agree that the Fourth Amendment was violated in Jardines, in which the officer brought the dog to the front door and the dog sniffed for drugs. On the other hand, the Court will probably rule that the Fourth Amendment was not violated in Harris because the training the dog received was sufficient. Here are some impressions from the argument, as well as my guesses to where the future majorities may be (which of course are worth the electrons you paid for them): ...

WaPo: Supreme Court is asked to be skeptical of drug-sniffing dogs by Robert Barnes,

NEW SMYRNA BEACH, Fla. — Aldo the German shepherd and Franky the chocolate Lab are drug-detecting dogs who have been retired to opposite ends of the ultimate retiree state.

But their work is still being evaluated, and on Wednesday it will be before the Supreme Court. The justices must decide whether man’s best friend is an honest broker as blind to prejudice as Lady Justice, or as prone as the rest of us to a bad day at the office or the ma­nipu­la­tion of our partners.

...

For one thing, no national standard for certification exists. “There’s no such thing as a well-trained narcotics detection dog,” said Jeffrey Weiner, a criminal defense lawyer from Miami. “It means whatever a trial judge or appellate judge or Supreme Court justice wants it to mean.”

ABAJ: Chemerinsky: The Fourth Amendment Goes to the Dogs by Erwin Chemerinsky.

NPR here; NBC News here.

Prior post here.

Officers with an arrest warrant had probable cause, not just reasonable suspicion which is all that is required, to believe that defendant was in a camper, so they could enter it. United States v. Locke, 2012 U.S. Dist. LEXIS 155207 (E.D. Tenn. October 29, 2012),* R&R 2012 U.S. Dist. LEXIS 156221 (E.D. Tenn. August 29, 2012).*

Defendant’s stop was based on a purported hostage of a smuggler calling 911 and identifying herself. That was entitled to more reliability. United States v. Lagos, 2012 U.S. Dist. LEXIS 155108 (S.D. Tex. October 30, 2012).*

Property owner’s Fourth Amendment administrative warrant claim changed on appeal, so the change was defaulted. Levitt v. City of Oak Ridge, 2012 Tenn. App. LEXIS 753 (October 30, 2012).*

Court is troubled by officer’s omission of the named informant’s conviction for falsifying prescriptions but weighed against the detail of his report, the omission did not affect the probable cause determination. But, the court doesn’t like how it has to decide the case, so it chides the officer’s omission. United States v. Tanguay, 2012 U.S. Dist. LEXIS 155376 (D. N.H. October 29, 2012):

Because the application for the warrant to search Tanguay's computer demonstrates probable cause that it contained child pornography, even when clarified by the facts that Lieutenant Nolet intentionally or recklessly omitted, Tanguay's motion to suppress the evidence allegedly found during that search must be denied. As a result of this ruling, Lieutenant Nolet's intentional or reckless conduct in withholding Wiggin's felony falsification conviction from the magistrate will go "unpunished" in the sense that it will have no effect on Tanguay's prosecution here. The same can be said of her strained efforts to defend that decision through her affidavit to, and testimony before, this court.

But Franks simply does not authorize the use of the exclusionary rule as a deterrent for even intentional misstatements or omissions in a warrant application, unless it was those misstatements that created (or, in the case of omissions, preserved) probable cause. Indeed, prior to Franks, lower courts had held that "'[t]he fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.'" 2 LaFave, supra, § 4.4(c), at 549-50 (quoting United States v. Carmichael, 489 F.2d 983, 989 (7th Cir. 1973) and citing additional cases). Franks has been criticized for the Court's failure to "acknowledge[] the existence of this body of authority," let alone "explain[] in some detail the reasons which justify a rejection of it," id. at 550, and a case of this nature lends a measure of support to such criticism. But criticism is one thing, and controlling law is another.

Under that controlling law, the evidence seized through the search warrant cannot be excluded unless the facts that Lieutenant Nolet intentionally or recklessly omitted would have negated probable cause for the search. They would not have, so Tanguay's motion to suppress must be DENIED.

When the officer asked for consent, the defendant’s walking to the back hatch and opening it was consent. State v. Pickle, 253 Ore. App. 235, 288 P.3d 1039 (2012).

Search was not shown by state to be attenuated from unlawful stop. State v. Knapp, 253 Ore. App. 151, 290 P.3d 816 (2012).*

Where defendant was arrested for criminal trespass and that led to a search incident, the state had to show the trespass. Here, it didn’t, so the search incident fails. State v. Musser, 253 Ore. App. 178, 289 P.3d 340 (2012).*

Defendant admitting that he committed the traffic violation that led to the stop, his pretext argument fails. United States v. Ford, 2012 U.S. Dist. LEXIS 155208 (E.D. Tenn. October 30, 2012),* R&R 2012 U.S. Dist. LEXIS 156222 (E.D. Tenn. August 17, 2012).*

Defendant failed to show IAC of defense counsel in not challenging the search under a warrant for the multi-resident house he lived in where his pleading was not helpful, the cases cited were no help, and he failed to show how the police violated the Fourth Amendment. Ables v. United States, 2012 U.S. Dist. LEXIS 155220 (S.D. Ohio October 30, 2012).*

Defendant raised and lost the search and seizure issue in the direct appeal, and he offers nothing to permit revising it. Smith v. United States, 2012 U.S. Dist. LEXIS 155083 (S.D. Ill. October 30, 2012).*

Defendant was stopped for wandering over the centerline then an abrupt turn. He was seen stuffing something between the seats then jumped out of the car and headed toward the officers. That gave them concern for their safety and they may have pulled their guns. They had probable cause for a search of the car. State v. Whitfield, 2012 Ohio 5019, 2012 Ohio App. LEXIS 4391 (9th Dist. October 29, 2012)* [No they didn’t. They had reasonable suspicion for a search of the seats for a possible weapon, which could have produced the same outcome, but it is NOT probable cause.]

Officers watching a drug house saw a car pull up, the passenger get out and go in, and come back out in five minutes. The car made a u-turn, and officers attempted a stop. Defendant fled from the car and dropped a baggie of crack which he admitted was his. Officers had reasonable suspicion for a stop. State v. Murray, 2012 Ohio 4996, 2012 Ohio App. LEXIS 4381 (6th Dist. October 26, 2012).*

Defense counsel representing both the driver and passenger of a car had a conflict of interest because it was obvious they had conflicting defenses to the charge. State v. Smith, 2012 Ohio 5020, 2012 Ohio App. LEXIS 4397 (3d Dist. October 29, 2012):

[*P30] Under these circumstances, we do not see how one attorney could legitimately claim to give effective and impartial advice to serve both Defendants. It may have been different if Smith declined to accept the plea agreement because she professed her innocence, or if she was reluctant to testify against Brooks because of some sense of loyalty or fear of reprisal. However, Smith had already signed a confession admitting her guilt and implicating Brooks.

[*P31] If Smith's counsel would have successfully pursued this plea offer on Smith's behalf, the result would have detrimentally affected Brooks. See Moss, supra. As such, the existence and the terms of this plea offer establish that Smith's counsel "actively represented conflicting interests," and that the conflict "actually affected the adequacy of his representation." See State v. Gillard, 78 Ohio St.3d at 552. Based on the facts in this case, Smith's constitutional rights to effective and conflict-free representation of counsel were denied her at the plea bargaining stage.

[*P32] This Court has also recognized the trial court's duty to conduct an inquiry into a possible conflict of interest to determine whether a defendant would receive the right to conflict free counsel guaranteed him by the Sixth Amendment to the United States Constitution. State v. Johnson, 185 Ohio App.3d 654, 2010 Ohio 315 ¶¶ 3-4 (3d.Dist), citing to Gillard. In Johnson, a review of several seminal United States Supreme Court cases clearly demonstrated that where a trial court knows or reasonably should know of an attorney's possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists. Johnson, at ¶ 3, quoting Gillard, 64 Ohio St.3d at 309-312. When "a trial court breaches its affirmative duty to inquire, a criminal defendant's rights to counsel and to a fair trial are impermissibly imperiled and prejudice or 'adverse effect' will be presumed." Id.

Officers placing photographic equipment on a grow operation in open fields was not a Fourth Amendment issue–there was no reasonable expectation of privacy there. United States v. Mendoza, 2012 U.S. Dist. LEXIS 154750 (E.D. Wis. October 9, 2012). Update: CNET: Court OKs warrantless use of hidden surveillance cameras by Declan McCullagh; ArsTechnica here; Government Technology here.

Defendant stopped at the gate to Fort Campbell to provide ID before entering the base, and the officer on duty at the gate could smell the “pungent odor of alcohol.” That, according to an unpublished Kentucky case, at least, was reasonable suspicion for a stop. United States v. Riley, 2012 U.S. Dist. LEXIS 154672 (W.D. Ky. October 29, 2012).

Defendant voluntarily consented. She had been Mirandized and had time to think about it on the drive back to her apartment before it happened. United States v. Lizarraras-Chacon, 2012 U.S. Dist. LEXIS 154763 (D. Ore. October 29, 2012).*

Cato.com: The Fourth Amendment in the Supreme Court This Week by Jim Harper:

Prior to the development of trade and commerce, movable property was “not esteemed of so high a nature, nor paid so much regard to by the law,” Blackstone tells us in his commentaries on the laws of England. Such property in transit was routinely confiscated by authorities or tariffed at exorbitant rates.

When commercial relations expanded, the quantity and value of personal property increased, and the law “learned to conceive different ideas of it.” Legal protection for movable property increased.

Consent to search a car, given knowing that the object of the search is drugs, is consent to open closed packages within the vehicle. Here, it was a gift box. State v. Howell, 284 Neb. 559, 822 N.W.2d 391 (2012):

[7,8] These cases guide our resolution of the instant case. Lewis asked Howell if there were drugs or weapons in the vehicle immediately prior to obtaining consent to search. Thus, a reasonable person would have been on notice that Lewis was looking for drugs or weapons. The scope of a search is generally defined by its expressed object. One could reasonably expect drugs to be hidden in a closed container such as the gift-wrapped box. "A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search." When Howell consented to a search of the vehicle, he did not place any limitation on the search. After Lewis observed the gift-wrapped box, he asked Howell to whom it belonged and whether it was "basically" Howell's. Despite Lewis' interest in the box, Howell did not revoke or limit his consent to search. The general rule is that when a suspect does not limit the scope of a search, and does not object when the search exceeds what he later claims was a more limited consent, an officer is justified in searching the entire vehicle. In the instant case, Lewis used a knife to cut the tape on the gift wrap and created a tear in the box as he tried to peer inside. However, the box and gift wrap were not rendered useless by the search. The tear in the generic cardboard box could be fixed with a piece of tape, and the wrapping paper could be secured to the box with another piece of tape. Under the circumstances, we conclude that the search of the box was within the scope of Howell's consent. Thus, the district court did not err in overruling Howell's motion to suppress the evidence.

Defendant accepted state furlough: “Lamell's choice was between remaining in his cell or going on furlough. Under such circumstances, this Court cannot conclude that acceptance of certain terms of release rendered his assent involuntary.” Therefore, he was subject to search on furlough. United States v. Lamell, 2012 U.S. Dist. LEXIS 153424 (D. Vt. October 25, 2012).*

Defendant’s stop for turning too wide and going outside the lane was justified. State v. Petty, 2012 Tenn. Crim. App. LEXIS 866 (October 11, 2012).*

No jurisdiction to enjoin TSA’s alleged Fourth Amendment violations. Haka v. United States, 107 Fed. Cl. 111 (2012).*

Defendant was stopped in a high crime area with at least reasonable suspicion. The fact there were drugs involved and the stop was a high crime area justified a patdown. The officer also articulated a fear [not facts] that defendant could have procured a weapon from the other person in the car. State v. Bales, 2012 Ohio 4968, 2012 Ohio App. LEXIS 4349 (2d Dist. October 26, 2012):

[*P23] Additionally, it is well recognized that the need for a protective pat down becomes more urgent where drugs are involved. "The very nexus between drugs and guns can create a reasonable suspicion of danger to the officer." State v. Thompson, 1st Dist. Hamilton No. C-050400, 2006 Ohio 4285, ¶11. Further, "[r]ecognizing the prevalence of weapons in places where illegal drugs are sold and used * * * an officer's fear of violence when investigating drug activity is a legitimate concern that will justify a pat-down search for weapons." State v. Oatis, 12th Dist. Butler No. CA2005-03-074, 2005 Ohio 6038, ¶ 23, citing State v. Taylor, 82 Ohio App.3d 434, 612 N.E.2d 728 (2d Dist.1992).

[*P24] We find that, based on the totality of the circumstances, Officer Benge articulated a reasonable basis to believe that appellant may be armed and dangerous. The area in which the officers stopped appellant was known for its high rate of crime and specifically its high rate of drug crimes. Officer Benge testified that, based on her knowledge and experience as an officer, "weapons are synonymous with drugs. They go hand and hand." Moreover, Officer Benge testified that she was concerned appellant may have obtained a weapon from the female passenger while they were in the back of the cruiser unhandcuffed. These factors, taken together and viewed objectively through the eyes of the officer on the scene, warrant a reasonable belief that appellant could be armed. Thus, the totality of the circumstances supports the trial court's finding that Officer Benge's pat down of appellant was proper.

Note: This is virtually a per se rule the way this is written.

The seizure of plaintiffs’ daughter for medical procedures was completely reasonable and based on medical advice, which plaintiffs virtually admit. Therefore, the special needs exception applies, and the state CPS officials have qualified immunity. Mueller v. Auker, 694 F.3d 989 (9th Cir. 2012).*

While defendant in the house of another logically would have standing to challenge anything seized off his person, defendant did not show a connection to the premises to have standing to challenge seizure of marijuana from the house. United States v. Aldaya, 2012 U.S. Dist. LEXIS 154172 (E.D. N.C. October 26, 2012).*

Defendant’s Fourth Amendment 2255 claim fails for lack of an IAC or actual innocence claim. Thus, it had to be raised in the original proceeding and was defaulted. Parks v. United States, 2012 U.S. Dist. LEXIS 154149 (N.D. Ga. October 1, 2012).*

“Officer Ammons therefore did not violate Defendant's rights by requesting his name and date of birth.” Defendant didn’t have his DL on him, saying it was in his “crib.” The officer asked for it, but wouldn’t let defendant go in the house to get it alone for officer safety. Thus, he followed defendant into the house. That was an illegal entry. The consent argument fails, too, because there was no express or implied consent to enter. The court notes similar cases. Marijuana was smelled and a warrant obtained. United States v. Harvey, 2012 U.S. Dist. LEXIS 153474 (N.D. W.Va. September 28, 2012), adopted 2012 U.S. Dist. LEXIS 153511 (N.D. W.Va. October 25, 2012):

In the case at bar, Defendant was not under arrest and was not believed to have committed any crime. No one was injured or needed assistance in the residence. There was no arrestable "underlying offense" in this case as regards Defendant. The driver of the car was driving without a license and the officers smelled burnt marijuana in the car. The officers found a bong in the trunk. Defendant was a passenger in the car. There was no evidence Defendant had committed any crime. He was not connected to the bong or the marijuana smell. The police did not find any marijuana in the car and did not test the bong for residue or fingerprints. Whether Defendant provided a false name or Officer Ammons heard the name incorrectly, Defendant's offer that his ID was in his "crib" was an insufficient reason for a warrantless entry into his home.

Accordingly, the undersigned concludes on the totality of the facts of this case that the United States has failed to carry its burden of proving that exigent circumstances existed or that an emergency existed which justified the warrantless police entry into Defendant's home on the date in question.

Russia Today: Fourth Amendment freedom in focus of US Supreme Court today:

The US Supreme Court will hear today arguments against the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA), upon which the government could obtain extended rights to spy on its citizens.

The arguments will be presented by the American Civil Liberties Union (ACLU).

Though the amendments are pursuing national security issues and not targeted at US citizens, they are, as the ACLU claim, violating the Fourth Amendment freedom from unreasonable searches.

The case is Clapper v. Amnesty International USA. [The Executive Branch of government is closed because of the hurricane, but the judicial branch isn't.]

Odor of burning marijuana coming from a house is enough to justify a search warrant for the house for the marijuana, even in the face of a claim that only a small amount of marijuana would be found. United States v. Kilgore, 2012 U.S. Dist. LEXIS 154148 (N.D. Ga. September 13, 2012):

Kilgore contends that the information provided by Rawlings and the odor of burnt marijuana did not establish probable cause to search his residence, asserting that "it only tends to indicate the recent presence of a small amount of marijuana." [Doc. 50 at 4-5]. Kilgore's arguments, however, ignore the fact that the basis for the warrant for which probable cause was established was possession under O.C.G.A. § 16-13-30(a), see (Gov. Ex. 1), and courts have routinely found probable cause existed to search a residence based on a marijuana odor detected by law enforcement officers, see United States v. Yarbrough, 272 F. App'x 438, 443 (6th Cir. 2007) (per curiam) (unpublished) (citations omitted) ("[A]n officer's detection of the smell of marijuana in a home may by itself establish probable cause," and "[w]hen the smell of marijuana is coupled with [a] [ ] tip of drug activity, probable cause exists for a search warrant."); United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (citation omitted) ("There is no doubt that the agent's suspicions rose to the level of probable cause when, as the door stood open, he detected what he knew from his law enforcement experience to be the odor of marijuana.") ; United States v. Harwell, 426 F. Supp. 2d 1189, 1196 (D. Kan. 2006) (citation omitted) ("The odor of burning marijuana emanating from the open front door of a single home would lead a reasonable officer to believe that marijuana was probably present in the residence."); see also Johnson v. United States, 333 U.S. 10, 13 (1948); United States v. Noriega, 676 F.3d 1252, 1261 (11th Cir. 2012); United States v. Cephas, 254 F.3d 488, 495 (4th Cir. 2001); United States v. Kittrell, No. CR 10-2903-TUC-RCC (JCG), 2011 WL 2746252, at *9 (D. Ariz. May 20, 2011), adopted by 2011 WL 2784618, at *1 (D. Ariz. July 13, 2011) (citation omitted); United States v. Neth, No. 6:09-cr-210-Orl-19GJK, 2010 WL 1257695, at *7-8 (M.D. Fla. Mar. 30, 2010); Floyd v. United States, Civil Action No. 3:08cv133-MEF, 2010 WL 1052839, at *7 (M.D. Ala. Feb. 18, 2010), adopted by 2010 WL 1197707, at *1 (M.D. Ala. Mar. 23, 2010); United States v. Murat, No. 08-20479-CR, 2008 WL 4394788, at *13 (S.D. Fla. Sept. 26, 2008), adopted at *1; United States v. Correa, No. 1:07-cr-00011-MP-AK, 2008 WL 1804309, at *12 (N.D. Fla. Apr. 18, 2008). In short, the totality of the circumstances presented in the affidavit, when taking a "realistic and commonsense approach" and not viewing the affidavit in a "hypertechnical manner," established probable cause for the search warrant for Kilgore's residence for the crime of unlawful possession of marijuana. Miller, 24 F.3d at 1361 (citation omitted).

Where the warrant failed to describe the place to be searched but the affidavit did and was attached, the papers as a whole properly described the place to be searched. State v. Cheeks, 400 S.C. 329, 733 S.E.2d 611 (2012).

The trial court held that the officer failed to show that a traffic violation occurred and suppressed the search based on that stop. The video of the stop did not contradict the trial court’s findings, so they are affirmed. State v. Houghton, 384 S.W.3d 441 (Tex. App. – Ft. Worth 2012).

Defendant argued that the inventory policy for no insurance was too discretionary with the officer. Here, however, the vehicle was parked so it impeded traffic, so the inventory was proper because the vehicle was towed for that without regard to possible pretext. State v. Penney, 252 Ore. App. 677, 288 P.3d 989 (2012).*