Archives for: January 2012

01/31/12

Permalink 12:22:12 am, by fourth, 546 words, 621 views   English (US)
Categories: General

CA6: Police investigation validly led to exigent circumstances for search for drugs

The police had the defendant’s house under surveillance and observed and stopped people leaving with drugs, a strong smell of raw marijuana in their cars, and significant drug histories. A “protective sweep” of the premises was performed which the court finds lawful. Even so, a warrant was issued thereafter, and if the information from the protective sweep was left out, there was still probable cause. [The court erroneously conflates “protective sweep” and exigent circumstances in general.] United States v. Johnson, 457 Fed. Appx. 512, 2012 FED App. 0098N (6th Cir. 2012) (unpublished)*:

Moreover, the officers were aware that Hakim and the two other individuals taken into custody after leaving the Glen Drive residence would soon be released from custody and the traffic stop, respectively, after being questioned about narcotics and their connection with the Glen Drive residence. Upon release from custody, they would be able to contact the individual(s) believed to be in the house and instruct them to destroy the narcotics. We find that the officers thus had “a reasonable belief that these third parties may soon become aware the police are on their trail, so that the destruction of evidence would be in order.” Sangineto-Miranda, 859 F.2d at 1512. The exigent circumstances exception applies, and we find that the officer’s initial entry for the protective sweep was constitutional.

[Note: This case is just wrong and bad precedent on use of the phrase “protective sweep” which is from Maryland v. Buie and centers on protecting police from an ambush. Buie at 333:

That Buie had an expectation of privacy in those remaining areas of his house, however, does not mean such rooms were immune from entry. In Terry and Long we were concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that could unexpectedly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry or Long frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.

This is judicial laziness in terminology, but the existence of probable cause is evident. Moreover, the finding of “a reasonable belief that these third parties may soon become aware the police are on their trail” is premised purely on police conduct, which is somewhat tenuous and needed to be further explored.]

Permalink 12:11:45 am, by fourth, 253 words, 672 views   English (US)
Categories: General

UT: No REP vs testing for contraband of blood legitimately seized, applying Caballes to blood testing

Cabelles essentially applies to blood already seized–there is no reasonable expectation of privacy in blood already legitimately seized against testing for presence of contraband (here THC). State v. Price, 2012 UT 7, 2012 Utah App. LEXIS 28 (January 27, 2012):

[**P12] Mr. Price certainly retained a legitimate privacy interest in the non-contraband contents of his blood. Testing Mr. Price's blood for HIV status, DNA information, blood type, or other private medical facts therefore would have infringed upon a legitimate privacy interest. But that did not occur here. The THC test conducted on Mr. Price's blood was limited to revealing only the blood's THC contents, for which Mr. Price retains no legitimate privacy interest. Tests for contraband that cannot reveal details regarding legitimate privacy interests do not implicate Fourth Amendment protections. Caballes, 543 U.S. at 408. For example, the U.S. Supreme Court has upheld the use of "a well-trained narcotics-detection dog" to reveal the presence of narcotics during a routine traffic stop, because the use of drug sniffing dogs can disclose "only the presence or absence of narcotics, a contraband item." Id. at 409 (internal quotation marks omitted). Because testing Mr. Price's blood for the presence of THC could not infringe on a legitimate privacy interest, the test is not subject to the protections provided by the Fourth Amendment.

Officer’s observation of a bulge in defendant’s groin area during a traffic stop and prior knowledge of defendant’s possession of drugs and guns justified a patdown. United States v. Stennis, 457 Fed. Appx. 494, 2012 FED App. 0093N (6th Cir. 2012) (unpublished).*

Permalink 12:01:18 am, by fourth, 169 words, 608 views   English (US)
Categories: General

OH9: Particular description for SW came from other crimes defendant was suspected of

There was probable cause for issuance of the search warrant for defendant’s house, and the list of things to be searched for included a list of items taken in other crimes: “The specific list of items to be seized was based on Lt. Phister’s sworn statements regarding his investigation of recent criminal activity, including items alleged to have been stolen at gunpoint from various victims and a bottle allegedly used to perpetrate a sexual assault on one of the victims.” This was constitutionally adequate. State v. Allen, 2012 Ohio 249, 2012 Ohio App. LEXIS 205 (9th Cir. January 25, 2012).*

Defendant was stopped for a traffic offense. After the officer asked for and received consent to search the car, defendant fled. His lawyer was not ineffective for not raising the issue. Ross v. State, 313 Ga. App. 695, 722 S.E.2d 411 (2012).*

The fact it was “possible” officers violated plaintiff’s rights in arresting him was insufficient when there were no facts in the record to support it. Hernandez v. Story, 459 Fed. Appx. 697 (10th Cir. 2012) (unpublished).*

01/30/12

Permalink 12:33:34 am, by fourth, 368 words, 561 views   English (US)
Categories: General

CA3: Direction to “show your hands” not a seizure

Officer’s mere direction to the defendant to “show your hands” did not constitute a seizure under the Fourth Amendment. Defendant then fled and abandoned a gun. United States v. Grant, 459 Fed. Appx. 154 (3d Cir. 2012) (unpublished):

The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV. An encounter between a police officer and a citizen will only trigger Fourth Amendment protections when “it loses its consensual nature.” United States v. Smith, 575 F.3d 308, 312 (3d Cir. 2009). Thus a “seizure” for Fourth Amendment purposes occurs only when “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). “[T]he test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). To trigger a “seizure” a citizen must submit to an officer’s show of authority and do so beyond mere momentary compliance. See United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000). See also Smith, 575 F.3d at 316 (“Two steps towards the hood of a car does not manifest submission to the police officers’ show of authority”).

As the officers did not use physical force until after the gun had been abandoned, Grant contends the officer’s instructions to “show your hands” constituted a show of authority to which Grant complied to by raising his hands. We disagree. As the District Court determined, Grant raised his hands at practically the same time as his flight. Thus, at most, he did nothing more than momentarily comply with the officer’s show of authority. This is not a “seizure” under our Fourth Amendment jurisprudence. See Valentine, 232 F.3d at 359. Because no Fourth Amendment seizure occurred, we do not need to consider whether the seizure was reasonable. Smith, 575 F.3d at 313 (“As such, any seizure inquiry has two steps: Was there in fact a seizure? If so, was that seizure reasonable?”).

Permalink 12:24:22 am, by fourth, 219 words, 560 views   English (US)
Categories: General

CA3: Merely pulling up to defendant's car in an unmarked car without any show of force or control was not a stop

Officers in an unmarked car pulled up next to the defendant and saw him counting money with drugs in his possession in plain view. At that point, they had reasonable suspicion. Merely pulling up next to him without any indication he was to stop was not a detention. United States v. Skinner, 459 Fed. Appx. 180 (3d Cir. 2012) (unpublished)*:

The primary issue here is whether the officers illegally stopped Skinner when they pulled up beside his car in an unmarked police car, in plain clothes, and saw Skinner counting money with drugs in his possession. In order to trigger Fourth Amendment protection against an unreasonable search or seizure, a defendant must first be seized through the use of physical force or a show of authority. United States v. Williams, 413 F.3d 347, 352 (3d Cir. 2005). The record indicates that the officers did not stop or seize Skinner until after they observed him counting money with cocaine on his lap.

[And don't inventory your money and drugs sitting in a car on the street in plain view.]

Despite defendant’s claim that the officer merely detained him for showing up where they were, the officers collectively had reasonable suspicion that defendant might be involved with others the police were investigating and one person was unaccounted for. United States v. Dunning, 666 F.3d 1158 (8th Cir. 2012).*

Permalink 12:14:03 am, by fourth, 399 words, 589 views   English (US)
Categories: General

CA4: New crime after illegal discovery of gun did not break the causal chain; suppression properly granted

Where the government’s unlawful stop led to the finding of a gun, defendant’s act in assaulting the officer trying to flee after the gun was found did not purge the taint and was still a “fruit of the poisonous tree.” This is not a situation where a new crime purges the taint of an unlawful arrest because the new crime occurred after the unlawful search. United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997), is distinguished. United States v. Gaines, 668 F.3d 170 (4th Cir. 2012):

We agree with Gaines that a proper reading of Sprinkle does not support the Government’s position. In that case, the contested evidence (the firearm) was only discovered after the defendant engaged in illegal activity subsequent to an earlier unlawful stop. See id. at 619 (“[w]hen Sprinkle drew and fired his gun at the officer, he committed a new crime that was distinct from any crime he might have been suspected of at the time of the initial stop.”). The illegal act in Sprinkle broke the causal chain between the unlawful stop and the discovery of the firearm. By contrast, in this case, the causal chain remains intact. Gaines’ subsequent criminal conduct cannot constitute an intervening event because it took place after the discovery of the firearm.

The Government, however, places much emphasis on our statement in Sprinkle that “[b]ecause the arrest for the new, distinct crime is lawful, evidence seized in a search incident to that lawful arrest is admissible.” Id. at 619. Because the firearm was not physically seized until after Gaines struck the officers, the Government argues, it may be admitted as properly seized pursuant to a lawful arrest.

This argument, though, fails to account for the fact that the gun was discovered prior to Gaines’ acts of assault. Although the Government would have us hold that the seizure of the firearm, rather than its discovery by police, is the critical act for assessing whether an intervening event has taken place, that position lacks support in law. In fact, other than the aforementioned language in Sprinkle, the Government has not cited any case for the proposition that the seizure of the evidence is legally more significant than the discovery of the evidence when the two acts do not coincide.

He could be prosecuted for the new crime, but it still doesn't break the causal chain from the government’s illegal search.

Permalink 12:04:35 am, by fourth, 280 words, 714 views   English (US)
Categories: General

WA recognizes a locked safe in a car trunk has an added level of privacy under state constitution

Defendant consented to a search of his car and its trunk, but the officer opened a locked safe within the trunk from the key on the car key ring. This search violated the differently worded "private affairs" clause of the Washington Constitution because of the added layer of constitutional protection recognized there in locked places in cars. State v. Monaghan, 266 P.3d 222 (Wash. App. 2012):

¶20 As the supreme court recently stated in State v. Valdez, the first question in an inquiry under article 1, section 7, is whether the state action constitutes a disturbance of one's private affairs. There is no dispute that the search of the trunk, as described in the above findings, constituted such a disturbance. Likewise, the search of the locked container, which is described in the above findings, also disturbed the private affairs of Monaghan.

¶21 As the trial court in this case correctly stated at the suppression hearing, the parties agreed that there was no request by either deputy to search the inside of the locked container. This is significant in Washington. In State v. Stroud, the supreme court gave “locking articles within a container” of a vehicle “additional privacy expectations” under article 1, section 7. This is in marked contrast to the federal standard under the Fourth Amendment, which permits a warrantless search of both locked and unlocked containers.

[Note: Few state constitutions read like Washington's so this wouldn't be much authority in another state.]

Defendant’s car was lawfully impounded by the police, and he had an expensive stereo system in the car, so the officer was obliged to inventory the car to protect against loss claims while defendant was in detention. State v. Tyler, 166 Wn. App. 202, 269 P.3d 379 (2012).*

01/29/12

Permalink 06:36:52 pm, by fourth, 217 words, 562 views   English (US)
Categories: General

The Raw Story: “Ron Paul: TSA ‘totally voids’ the Fourth Amendment”

The Raw Story: Ron Paul: TSA ‘totally voids’ the Fourth Amendment by David Edwards:

Republican presidential candidate Ron Paul said on Sunday that airport security should be turned over to private corporations because the Transportation and Security Administration (TSA) effectively “voids” the Fourth Amendment.

Paul’s son, Sen. Rand Paul (R-KY), claimed last week that he had been “detained” by the TSA for refusing an intrusive pat down at an airport in Nashville, Tennessee.

. . .

In 1973, the U.S. Court of Appeals for the Ninth Circuit ruled that the Fourth Amendment did not apply to airport security, “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”

Paul did not say how privatizing airport screenings would circumvent the Ninth Circuit’s [1973] ruling [that the Fourth Amendment doesn't apply to airport screenings].

Watch this video from Fox’s Fox News Sunday, broadcast Jan. 29, 2012.

[Note: If private actors fulfilling a government function violate the Fourth Amendment, what difference does it make? The Fourth Amendment does apply to airport screenings--the question is reasonableness and special needs. TV talking heads don't get it and never will because the issue can't be explained in one sentence.]

Permalink 05:43:12 pm, by fourth, 701 words, 859 views   English (US)
Categories: General

M.D.Tenn.: School nurse's examination of 6 year old's vagina without notice to parents was unreasonable as a matter of law

The mother of a 6 year old girl told her school teacher that her daughter had a doctor's appointment because of a probable urinary tract infection. The school officials took it upon themselves to have the school nurse inspect the girl's vagina without telling the parents, and this was an unreasonable search with no qualified immunity. Enough case law had developed by the time this happened that school officials were on notice it was unreasonable and excessive. The school's reliance on "special needs" completely fails. Hearring v. Sliwowski, 2012 U.S. Dist. LEXIS 9578 (M.D. Tenn. January 26, 2012), USMJ R&R overruled:

As to whether, under these decisions, Plaintiff states a Fourth Amendment violation for the search of B.H., the Court concludes that the nature of the privacy interest here, the exposure of a 6 year-old girl's labia, is far greater than the students' privacy interests in T.L.O., Safford, Beard and Brannum. The nature of the search was B.H.'s pulling down her pants and underwear as well as the separation of her vaginal area before a nurse and also a school official that resulted in embarrassment and humiliation to B.H. There is proof that this search was without a medical justification or emergency, without parental consent and was contrary to professional and state standards for public school nurses. Based upon these decisions and facts, the Court concludes that Plaintiff states and proves a violation of B.H.'s Fourth Amendment right to be free from such invasive and unjustified searches of her person by a public school nurse.

The Magistrate Judge also cited the "special needs" doctrine as justifying Sliwowski's search, as a school nurse inquiring about the need for possible medical treatment. (Docket Entry No. 69, Report and Recommendation at 12-13) (Sliwowski "was not trying to prevent an imminent injury when she examined B.H. Instead, Nusre Sliwowski was trying to determine what medical care, if any, B.H. required for her existing medical condition").

The "special needs" doctrine applies where an important governmental interest justifies excusing the probable cause requirement of the Fourth Amendment, Ferguson v. City of Charleston, 532 U.S. 67, 76 n.7 (2001), or where compliance with Fourth Amendment standards is "impracticable." Bd. of Educ. of Independent School Dist. No.92 of Pottawatomie County v. Earls, 536 U.S. 822, 829 (2002) (drug testing of middle and high school students). In T.L.O., the Supreme Court recognized that school officials act in loco parentis for school children and "the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause." 469 U.S. at 341.

In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), the Tenth Circuit considered this special needs doctrine in the context of genital examinations of pre-school students who were subjected to such searches. There, the school employed an agency to conduct health examinations, but the agency had to secure parental permission for such examinations. The district court ruled that the students' Fourth Amendment rights were violated given the absence of a medical emergency or parental consent. The Tenth Circuit held that the special needs doctrine did not apply because there was not any showing that securing a parent's consent was impracticable. Id at 1214-15. ...

. . .

Based upon these collective authorities, the Court concludes that the fundamental dignity of a young person's body is so obvious and the cited Supreme Court and Sixth Circuit decisions since 1984 provide more than fair warnings to school officials that such intrusive searches of students cannot be made by school officials without justification. The search of B.H. was not an emergency situation and was contrary to published national nursing standards and state educational standards for school nurses. As evidenced by her nursing supervisor, supra at 5, Sliwowski's search was not the "proper performance of [her] duties," Forrester, 484 U.S. at 223, that is a key rationale for qualified immunity. Applying Walker and Smith, the Court concludes that B.H.'s Fourth Amendment right to be free from such an highly invasive search was clearly established at the time of Sliwowski's search and that Sliwowski is not entitled to qualified immunity.

Permalink 12:15:31 am, by fourth, 221 words, 746 views   English (US)
Categories: General

CA11: Damage to door in attempt to enter, without entry, is de minimus for Fourth Amendment purposes

In a pro se § 1983 case over an officer allegedly banging on and kicking a door to the point of damaging it to get access, but did not get access, the court agrees with the district court that there was no seizure or interference with liberty. This damage was de minimus, and it did not rise to the level of a Fourth Amendment violation. Porter v. Jewell, 453 Fed. Appx. 934 (11th Cir. 2012) (unpublished):

The Constitution, however, "is not concerned" with de minimis violations. Ingraham v. Wright, 97 S.Ct. 1401, 1414 (1977); see also United States v. Hernandez, 418 F.3d 1206, 1212 n.7 (11th Cir. 2005) (stating that "[o]f trifles the law does not concern itself: De minimis non curat lex"); United States v. Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (concluding that a de minimis delay during a traffic stop did not violate the Fourth Amendment); Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (stating that "the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment"). Although we have not addressed the amount of property damage required to constitute a "seizure" of that property under the Fourth Amendment, we are convinced -- based on our decisions in these other contexts -- that a de minimis amount of damage does not rise to the level of a Fourth Amendment violation.

Permalink 12:05:22 am, by fourth, 84 words, 499 views   English (US)
Categories: General

UT: Stop valid where there still was some legal basis for it

Although the officer’s articulated basis of the stop was partly wrong under state law, it was partly right, and that was enough to legally support the stop. State v. Juma, 2012 UT App 27, 270 P.3d 564, 700 Utah Adv. Rep. 64 (2012).*

Minnesota statute requiring DNA production of anybody charged with a felony but pled down to a misdemeanor does not violate the Fourth Amendment or the Minnesota Constitution. State v. Johnson, 813 N.W.2d 1 (Minn. 2012).*

Same with juveniles. In re M.L.M., 813 N.W.2d 26 (Minn. 2012).*

01/28/12

Permalink 12:23:31 pm, by fourth, 139 words, 677 views   English (US)
Categories: General

E.D.Mo.: Objectively reasonable mistake of law for stop OK in 8th Cir.

Objectively reasonable mistake of fact of law [in the Eighth Circuit] does not void the stop. Here it was on whether a neighboring state required two plates or one on all vehicles. United States v. Zaritz, 2011 U.S. Dist. LEXIS 152336 (E.D. Mo. October 26, 2011).*

Defendant’s computer died and he had the hard drive data copied at a shop and transferred to the new computer he just bought. The technician stumbled upon child pornography. This was clearly a private search. United States v. Meister, 2012 U.S. Dist. LEXIS 9439 (M.D. Fla. January 26, 2012).*

Odor of marijuana smelled during valid traffic stop was PC. United States v. Shaw, 2011 U.S. Dist. LEXIS 152334 (E.D. Mo. October 5, 2011).* [If you’re going to smoke dope while you’re driving, don’t commit any traffic violations. The cloud of smoke doesn’t help, either.]

Permalink 12:10:03 pm, by fourth, 420 words, 506 views   English (US)
Categories: General

CA8: Warrant for person and his house authorizes bringing him back to house for his search

Where officers had a search warrant for defendant’s person and his house, it did not violate the Fourth Amendment to move him from where he was found nearby back to his house for the search to occur. United States v. Flagg, 455 Fed. Appx. 719 (8th Cir. 2012):

Here, officers obtained a warrant to search Flagg's person and a residence located at 2312 Southeast 18th Street, Des Moines, Iowa (18th Street residence). While executing the warrant, officers located Flagg at a neighboring residence and transferred him to the warrant-covered residence. Flagg challenges this transfer, but we see no Fourth Amendment violation in transferring Flagg-only a short distance-from a neighboring residence to the warrant-covered residence. See United States v. Slupe, 692 F.2d 1183, 1189 (8th Cir. 1982) (recognizing that a warrant to search a person authorizes an arrest of that person for purposes of conducting the search); United States v. Baca, 480 F.2d 199, 203 (10th Cir. 1973) (finding that search warrant did not require the search of a person to be conducted at a particular location). This is especially true in light of the officers' concern for their ability to control the situation at the neighboring residence. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per curiam) ("What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety."). Moreover, given that officers obtained a warrant for the 18th Street residence and reasonably believed Flagg lived there, we conclude it was constitutionally reasonable to detain Flagg after the search of his person, for the relatively short time officers needed to search the residence. See Michigan v. Summers, 452 U.S. 692, 705 (1981) (concluding "it is constitutionally reasonable to require [a] citizen to remain while officers of the law execute a valid warrant to search his home"). Although Flagg asserts that the officers simply transferred him to the 18th Street residence so they could interrogate him, the rule is well-established that as long as officers act according to a legally justified search and seizure, their subjective motivations are not relevant to a Fourth Amendment analysis. McClendon v. Story Cnty. Sheriff's Office, 403 F.3d 510, 515-16 n.4 (8th Cir. 2005). Accordingly, the district court did not err in denying Flagg's motion to suppress.

[Note: They have a search warrant. The warrant authorizes a search of the person. How much of an additional invasion of liberty is it to be moved a short distance for the search, when a person can be moved around some merely on reasonable suspicion? How can you realistically argue that the Fourth Amendment was violated under such circumstances?]

Permalink 11:30:24 am, by fourth, 145 words, 520 views   English (US)
Categories: General

W.D.Mich.: 4-5 month old information not stale in silencer possession case

Information about defendant’s possession of an unlawful silencer 4-5 months before the affidavit for search warrant was written was not stale. United States v. Vanderweele, 2011 U.S. Dist. LEXIS 152188 (N.D. Mich. December 7, 2011) adopted in part and remanded on other grounds 2012 U.S. Dist. LEXIS 8061 (W.D. Mich., January 24, 2012).*

Misdemeanors are subject to the fellow officer rule, but here defendant, accused of not registering as a sex offender, was confronted about that and couldn’t show he was. That was probable cause. United States v. Hanson, 2012 U.S. Dist. LEXIS 8795 (D. Alaska January 25, 2012).*

The good faith exception is considered before probable cause in the Fifth Circuit, and the affidavit here was more than bare bones, so the warrant was at least obtained with good faith reliance on the showing of probable cause. United States v. Blevins, 2011 U.S. Dist. LEXIS 152279 (W.D. La. November 7, 2011).*

Permalink 11:24:03 am, by fourth, 303 words, 897 views   English (US)
Categories: General

CA10: Judge issuing SW who was past ADA and prosecuted defendant still neutral and detached magistrate

A judge was still neutral and detached in issuing a search warrant against the defendant even though the judge was once an assistant prosecutor who prosecuted the defendant. United States v. Freerksen, 457 Fed. Appx. 769 (10th Cir. 2012) (unpublished):

A search conducted based on a warrant authorized by a magistrate who lacks the requisite neutrality and detachment “stands on no firmer ground than if there had been no warrant at all.” Coolidge v. New Hampshire, 403 U.S. 443, 453, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). “Whether a magistrate was neutral and detached in any particular case is necessarily an individualized and contextual inquiry. Courts must focus on the specific circumstances surrounding the issuance of the warrant ....” Ramirez, 63 F.3d at 941.

Freerksen contends Judge Work was not neutral and detached because he recused himself from a related state proceeding and because prior to becoming a judge he prosecuted Mr. Freerksen for two sex offenses while working as an assistant district attorney in Woodward County. These two facts are insufficient to show Judge Work was not “neutral and detached.” A warrant issued by a magistrate who had previously prosecuted the defendant does not violate the Fourth Amendment. United States v. Outler, 659 F.2d 1306, 1312 (5th Cir. 1981), overruled on other grounds by United States v. Steele, 147 F.3d 1316, 1317 (11th Cir. 1998). Nor under these circumstances does Judge Work’s recusal show he lacked the requisite neutrality and detachment to issue the search warrant in this case. Judge Work’s recusal came after an in camera request made by Freerksen’s counsel pursuant to Rule 15(a) of the Rules of the District Court of Oklahoma. There is therefore no record of the basis for the recusal. There is also no evidence Judge Work acted improperly or considered matters outside the warrant affidavit when making his probable cause determination. The court therefore rejects this argument.

Permalink 12:01:11 am, by fourth, 131 words, 971 views   English (US)
Categories: General

FL3: Probable cause for a false arrest case is determined at the time of the arrest, not later

Probable cause for a false arrest case is determined at the time of the arrest, and factors after the arrest that might show no probable cause are irrelevant. Miami-Dade County v. Asad, 78 So. 3d 660, 37 Fla. L. Weekly D 234 (Fla. App. 3d DCA 2012)* (on rehearing and under submission for nearly three years; Rehearing denied by Miami Dade County v. Asad, 2012 Fla. App. LEXIS 3761 (Fla. Dist. Ct. App. 3d Dist., Mar. 6, 2012)).

Post-conviction petitioner’s failure to show how defense counsel’s failure to file a motion to suppress would have been granted was insufficient. Watson v. State, 2012 Ark. 27, 2012 Ark. LEXIS 38 (January 26, 2012).*

There was reasonable suspicion to stop defendant and his identification by a victim as being a robber was probable cause. United States v. Anderson, 2011 U.S. Dist. LEXIS 152284 (W.D. Tenn. July 27, 2011).*

01/27/12

Permalink 11:27:56 am, by fourth, 276 words, 513 views   English (US)
Categories: General

CA6: Nexus to house just a "fair probability" of its connection to evidence of crime

Being suspected of being a drug dealer is not enough to show nexus to defendant’s home, but the facts required to show nexus apparently aren’t much, as long as there is a "fair probability" they point to drugs in the house. United States v. Jeffries, 457 Fed. Appx. 471, 2012 FED App. 0082N (6th Cir. 2012):

For similar reasons, we reject Calloway's argument that there was no nexus between the cocaine found in the Lincoln in Louisiana and his home on Oakburn Lane. That Calloway was suspected of being a drug dealer would not have been, by itself, sufficient to establish probable cause to search his home. See McPhearson, 469 F.3d at 525 n.3. But "where the allegation of drug dealing is coupled with independently corroborated information from police officers, it may be sufficient to establish probable cause." Id. The affidavit at hand was replete with corroborating information: the Lincoln was often seen at the Oakburn residence, was sometimes operated by Calloway, was seen at the Oakburn residence immediately before leaving Louisville for Texas, and was interdicted in Louisiana. And once again, Calloway had been seen removing trash from the premises, had associated with a known felon on the premises, and had a prior drug felony history himself. Thus, there was a "fair probability" that evidence of drug activity would be found at Calloway's residence, and the affidavit submitted in support of the warrant was sufficient.

On a controlled delivery of a package of heroin by FedEx, officers had reasonable suspicion to stop defendant when he left the house. His evasive driving, in reverse, added to it. United States v. Smith, 456 Fed. Appx. 572, 2012 FED App. 0083N (6th Cir. 2012) (unpublished).*

Permalink 11:03:32 am, by fourth, 556 words, 887 views   English (US)
Categories: General

CA8: Burden on plaintiff in § 1983 action for a warrantless arrest or search to disprove exceptions

Eighth Circuit joins majority of circuits and holds that the plaintiff in a § 1983 action for a warrantless arrest or search bears the burden of production, proof, and persuasion that no exception applies. [Omitted is fn.2 with a lot of citations.] Der v. Connolly, 666 F.3d 1120 (8th Cir. 2012):

Instead, as the district court correctly noted, this court “has not expressly decided who bears the burden of proof in a § 1983 action for a warrantless arrest or search.” Der, 2011 U.S. Dist. LEXIS 112748, 2011 WL 31498, at *2. We do so now. Two views currently prevail among our sister circuits. A majority of the circuits place the burden of proof on the plaintiff in a § 1983 action for a warrantless arrest or search, with some of those circuits imposing the burden of production on the defendant. A minority of the circuits place the burden of proof on the defendant in a § 1983 action. See, e.g., Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1070 (10th Cir. 2010) (stating, in the context of a § 1983 action, “[t]he officers bear the burden of establishing that the threats posed exigent circumstances justifying the warrantless entry”); Hardesty v. Hamburg Twp., 461 F.3d 646, 655 (6th Cir. 2006) (concluding the government bears the burden of proving the presence of exigent circumstances justifying the warrantless entry); Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996) (“To excuse the absence of a warrant, the burden rests on the State to show the existence of [exigent circumstances].”); Tarter v. Raybuck, 742 F.2d 977, 980-81 (6th Cir. 1984) (holding that school officials bore the burden of demonstrating a student’s voluntary relinquishment of the constitutional protection against unreasonable searches in light of the “presumption against the waiver of constitutional rights”); Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir. 1984) (commenting that, in a § 1983 action for malicious prosecution, the “defendants bear the burden at trial of proving the defense of good faith and probable cause”).

Having reviewed the relevant case authority, we agree with the majority of our sister circuits’ “formulation of the proper allocation of the parties’ burdens in a section 1983 action alleging a Fourth Amendment violation.” Valance, 110 F.3d at 1279. We have previously recognized that “plaintiffs ordinarily retain the burden of proof throughout the trial” in a suit “brought pursuant to 42 U.S.C. § 1983.” Clark v. Mann, 562 F.2d 1104, 1117 (8th Cir. 1977). Thus, “employing a criminal burden of proof [in a § 1983 civil action] is contrary to established principles governing civil trials, namely, that the ultimate risk of nonpersuasion must remain squarely on the plaintiff.” Bogan, 644 F.3d at 570 (quotations and citations omitted). As the Seventh Circuit explained, “[e]ven if a presumption of unreasonableness arises from the fact of a warrantless search [or entry], that does not serve in a civil case to shift ‘the burden of proof in the sense of the risk of nonpersuasion.’” Valance, 110 F.3d at 1279 (quoting Fed. R. Evid. 301). Instead, such “presumption merely serves to impose on the defendant ‘the burden of going forward with evidence to meet or rebut the presumption.’” Id. (quoting Fed. R. Evid. 301). A defendant may satisfy this burden of production by “produc[ing] evidence of consent or of some other recognized exception to the warrant requirement.” Id. at 1278. “Yet once the defendant has done so, ‘the ultimate risk of nonpersuasion must remain squarely on the plaintiff in accordance with established principles governing civil trials.’” Id. (quoting Ruggiero, 928 F.2d at 563).

Permalink 10:05:49 am, by fourth, 131 words, 570 views   English (US)
Categories: General

CA9: Search and seizure § 1983 claim accrues on the date of the search

A search and seizure § 1983 claim accrues on the date of the search. One can’t wait until after reversal on appeal to sue if it ran in the meantime. Here, the suit would be barred by qualified immunity. Rollin v. Cook, 466 Fed. Appx. 665 (9th Cir. 2012) (unpublished).*

Eleven month delay in getting a search warrant in a child pornography case was not stale as a matter of law, since the Fifth Circuit has upheld an 18 month delay. United States v. Baker, 2012 U.S. Dist. LEXIS 7949 (S.D. Tex. January 20, 2012).*

Officers’ hot pursuit of two fleeing suspects into this house justified their entry. The facts here are more compelling than Warden v. Hayden where SCOTUS approved of the hot pursuit doctrine. United States v. Davis, 2012 U.S. Dist. LEXIS 7925 (S.D. Fla. January 17, 2012).*

Permalink 09:45:40 am, by fourth, 276 words, 679 views   English (US)
Categories: General

E.D.Tex.: Not attempting to show possessory interest in allegedly stolen car until after arrest showed no REP

While the description of the driver was somewhat off, the car was identified by a witness as a stolen car, and that was at least reasonable suspicion for a stop. After the car was stopped, defendant fled from it. He did nothing to assert a possessory interest in the car for the two weeks he had it until he was arrested, and that was too little, too late. United States v. Poole, 2011 U.S. Dist. LEXIS 152104 (E.D. Tex. December 30, 2011)*:

Poole apparently argues that he had a possessory interest in the vehicle because Gordon allegedly gave him the vehicle when they stopped dating two weeks prior to the traffic stop. He did not, however, assert his possessory interest to the law enforcement officers prior to the search of the vehicle. See United States v. Riazco, 91 F.3d 752, 754 (5th Cir. 1996). Instead, Poole chose to run when Deputy Hall attempted to arrest him. He never returned to the vehicle. Poole was located and arrested four days later. Even if the Court were to assume that Poole had a legal possessory interest in the vehicle, his decision to flee the scene and not return resulted in a voluntary abandonment of the vehicle. A defendant has no standing to complain about the search of property that he voluntarily abandons. United States v. Quiroz-Hernandez, 48 F.3d 858, 864 (5th Cir. 1995) (en banc). As set forth above, the initial stop and attempted arrest of Poole were proper, rendering Poole's abandonment of the vehicle voluntary and not influenced by improper police conduct. Id.; see also United States v. Alvarez, 6 F.3d 287, 289-90 (5th Cir. 1993). Poole's challenge to the search of the vehicle is without merit.

01/26/12

Permalink 01:33:34 pm, by fourth, 150 words, 660 views   English (US)
Categories: General

If your stash is the subject of a home invasion robbery and you shot the robber outside after fighting him off, is it a good idea to call the police?

Such was the case yesterday here. Ark. Democrat-Gazette: Attempted drug robbery leaves one man shot by David Harten.

The usual scenario is that the guy shot in the leg would never tell the police what earned his bullet wound. Likely he wouldn't be back to attempt the same thing on his victim since he knows the victim is armed. Calling the police to report the aggravated robbery of the drug stash here would, and did, net the robbery victim charges of possession with intent to deliver and maybe "maintaining a drug premises" (something I still don't get). Here it says possession of a weapon, which is his right in his home. It could have been simultaneous possession of guns and drugs (not a good thing). Does the Second Amendment guarantee a right to protect your stash if it's in your home? I don't think SCOTUS will even go that far.

Permalink 09:52:54 am, by fourth, 153 words, 523 views   English (US)
Categories: General

D.Mass: RS before defendant's traffic stop justified his frisk

Defendant was stopped for a traffic light violation, and they already had reasonable suspicion defendant was armed because of a gang murder they thought they could connect him to. Therefore, the order out of the car and frisk were reasonable. United States v. Martinez, 2012 U.S. Dist. LEXIS 7019 (D. Mass. January 23, 2012).*

Based on the suppression hearing record, the USMJ had all he needed to find the consent voluntary, and defense counsel was not ineffective for not subpoenaing other witnesses for the hearing. United States v. Chacon, 2012 U.S. Dist. LEXIS 7596 (D. Nev. January 23, 2012).*

While there were contradictions in the officers’ testimony about the cause for defendant’s arrest by the Street Narcotics Enforcement Unit, the court finds there was still probable cause, and the motion to suppress is denied. United States v. Vasquez, 864 F. Supp. 2d 221 (E.D. N.Y. January 23, 2012), R&R 2011 U.S. Dist. LEXIS 130543 (E.D.N.Y., Nov. 10, 2011).*

Permalink 09:23:20 am, by fourth, 398 words, 633 views   English (US)
Categories: General

CA6: Where an illegal search shows other evidence to be suddenly relevant, exclusionary rule would not be applied to the other evidence

Where an illegal search makes other evidence the government has appear more relevant, the exclusionary rule would not be applied to the other evidence. The costs outweigh the benefits. United States v. Fofana, 666 F.3d 985 (6th Cir. 2012):

As a result of a presumably illegal airport search, the Government learned that Fode Fofana used “Ousmane Diallo” as an alias. Identification bearing Diallo’s name was previously used to open two bank accounts, through which Fofana allegedly committed bank fraud. In Fofana’s federal bank fraud case, the district court suppressed any evidence bearing Diallo’s name, and the Government appeals that order. Although the actual documentation seized during the search must be suppressed, evidence obtained legally and independently of the search is not suppressible, even if the Government cannot show that it would have discovered its significance without the illegal search. Under the facts of this case, the minimal deterrent effect of suppression is far outweighed by the sweeping burden on the truth-seeking function of the courts.

. . .

There is a difference between evidence that the Government obtains because of knowledge illegally acquired, and evidence properly in the Government’s possession that it learns the relevance of because of knowledge illegally acquired. It may be that the latter must be suppressed in some cases. But in the context of the present case, bank records and other evidence that the Government obtained independently of the airport search do not have to be suppressed on account of the unconstitutionality of that search, merely because the relevance or usefulness of that evidence became apparent because of the search.

The reasoning behind this conclusion is strongly supported by case law, although the precise combination of circumstances appears to be unprecedented. First, the actual documents whose suppression is at issue—the bank records reflecting the fraud—were in the possession of the Government entirely free of illegal means. Secondly, the illegal search was not directed to the crime, or even the type of crime, for which the discovered information turned out to be useful, thereby eliminating much of the deterrent effect of suppression in this case. Third, an alternate, more direct deterrent to such searches is clearly present, in the form of excluding the passports from evidence. Fourth, exclusion of the bank records in this case unduly burdens the truth-seeking function of courts by effectively precluding relevant and legitimately obtained evidence from ever being used.

01/25/12

Permalink 10:01:19 am, by fourth, 719 words, 895 views   English (US)
Categories: General

MO: REP in cell phone provider records protects them from overbroad investigative subpoena

Overbroad investigative subpoena for defendant’s text messages violated his reasonable expectation of privacy. (The court includes stout support for a reasonable expectation of privacy in the product of a cell phone (omitted here, but read the opinion); just because government can get to something like the provider records doesn't mean there is no reasonable expectation of privacy.) State v. Clampitt, 364 S.W.3d 605 (Mo. App. 2011):

The rationale used by the Warshak court in establishing individuals' reasonable expectation of privacy in the contents of their email is equally applicable to cell phone users' expectation of privacy in the contents of their text messages. Cell phone providers have the ability to access their subscribers' text messages; however, the providers' ability to access those messages does not diminish subscribers' expectation of privacy in their text message communications. Rather, subscribers assume that the contents of their text messages will remain private despite the necessity of a third party to complete the correspondence. Callers have long enjoyed Fourth Amendment protection of the information they communicate over the phone. We see no reason why the same information communicated textually from that same device should receive any less protection under the Fourth Amendment.

Furthermore, society's continued expectation of privacy in communications made by letter or phone call demonstrates its willingness to recognize a legitimate expectation of privacy in the contents of text messages. What individuals once communicated through phone calls and letters can now be sent in a text message. Thus, as text messaging becomes an ever-increasing substitute for the more traditional forms of communication, it follows that society expects the contents of text messages to receive the same Fourth Amendment protections afforded to letters and phone calls. We therefore find that the trial court did not err in concluding that Clampitt had a reasonable expectation of privacy in the contents of his text messages.

. . .

The investigative subpoenas issued in this case were not sufficiently limited in scope or relevant in purpose. The trial court found that the State obtained copies of all text messages sent to and received by Clampitt for a thirty-two day period, which included the date of the accident and the following thirty-one days. The subpoenas did not request text messages Clampitt sent to or received from specific numbers; rather, the State obtained copies of all incoming and outgoing text messages, regardless of the recipient or sender. Furthermore, the Special Prosecutor testified that "[t]he period of time [specified in the subpoenas was] extended until such time as the defendant admitted that he was the driver of the vehicle." In other words, the State issued each consecutive subpoena because Clampitt made no admission within the time specified in the previous subpoena. If no evidence with which to charge Clampitt had come about, presumably the State would still be issuing subpoenas periodically in the hope of securing something it could use against him. The trial court found that the subpoenas were nothing but a fishing expedition, a finding amply supported by the record, and a practice uniformly recognized by the courts to be improper. Thus, even though the State contends the subpoenas were limited in scope because each subpoena requested text messages sent and received within specified dates, the only significance of those specified dates was that Clampitt had yet to admit he was the driver of the vehicle at the time of the accident. Therefore, by requesting all of Clampitt's incoming and outgoing text messages up until the time he came forward as the driver of the vehicle, the State failed to sufficiently limit the scope of information it requested in the investigative subpoenas.

. . .

Furthermore, the State had no relevant purpose for requesting Clampitt's incoming and outgoing text messages beyond the time of the accident. The trial court found that "the state was eavesdropping to see if the defendant would make an admission." By the Special Prosecutor's own testimony, the State sought the contents of Clampitt's text messages for the sole purpose of obtaining an admission from Clampitt as to who was driving the vehicle at the time of the accident. ...

Also, the good faith exception applies to police conduct, not overbroad prosecutor’s investigative subpoenas. And, Herring provides no recourse either.

One could almost say this is channeling the [hopeful] prospects of Jones, the day after and without citing it.

Permalink 09:46:55 am, by fourth, 142 words, 536 views   English (US)
Categories: General

Unconditional guilty plea waives search issue

The motion to suppress was heard and denied, and defendant’s guilty plea without a reservation of a conditional plea waived that. United States v. Lebron, 2012 U.S. Dist. LEXIS 6633 (D. R.I. January 20, 2012).*

“Movant's assertion that counsel was ineffective for failing to file pretrial motions in no way implicates the voluntariness of his plea of guilty. As a result, movant's plea of guilty prevents consideration of the third ground for review in this proceeding.” Swift v. United States, 2011 U.S. Dist. LEXIS 152097 (E.D. Tex. December 29, 2011).*

Defendant’s § 2255 claim that the prosecution, police, and defense counsel conspired to delete defendant’s girlfriend’s consent from the DVD of the stop did not show prejudice because the valid stop showed probable cause of drug possession that led to the search. Thomas v. United States, 2012 U.S. Dist. LEXIS 7091 (M.D. Tenn. January 20, 2012).*

Permalink 06:40:54 am, by fourth, 278 words, 546 views   English (US)
Categories: General

IL: Affidavit for drugs in blood was based on speculation and without PC; no GFE either

The affidavit for the search warrant for defendant’s blood for evidence of drug use in a DUI case was completely deficient and speculative. Accordingly, the good faith exception would not apply either. People v. Miranda, 2012 IL App (2d) 100769, 964 N.E.2d 1241 (2012):

[**11] Although this test is highly deferential, we must conclude that McLean's affidavit did not provide a substantial basis to find probable cause that testing defendant's urine would reveal the presence of any controlled substance. McLean's affidavit said next to nothing about controlled substances, and what scant mention it did make was unsupported by facts. McLean referred to finding physical evidence of alcohol consumption (the open Heineken bottles), but not to finding any physical evidence of drug use. He stated that he smelled alcohol on defendant's breath, observed standard indicia of alcohol intoxication, learned from defendant that he had consumed alcohol, and administered field sobriety tests that defendant failed. As a result of all of the foregoing, McLean "believed that [defendant] was under the influence of alcohol" (emphasis added) and arrested him for DUI. Conspicuously absent from McLean's detailed factual recitation was any reference to controlled substances or any evidence that defendant had used them. McLean did not state that any of these facts made him suspect that defendant had used controlled substances.

The evidence showed that the defendant only used the shed on a friend’s property when he was there visiting during the day, and then only to leave the bicycle he rode there, the backpack he wore, and his coat. Otherwise, nothing was kept there. That was not enough to create “standing” in the premises. People v. Nichols, 2012 IL App (2d) 100028, 964 N.E.2d 1190 (2012).*

Permalink 12:01:39 am, by fourth, 712 words, 768 views   English (US)
Categories: General

SCOTUS reverses CA9 denial of qualified immunity on exigent circumstances entry; and exigency gets another lift

Ryburn v. Huff, 2012 U.S. LEXIS 1063 (U.S. January 23, 2012) (per curiam), reversing in part Huff v. City of Burbank, 632 F. 3d 539 (9th Cir. January 11, 2011):

Judge Rawlinson dissented. She explained that “the discrete incident that precipitated the entry in this case was Mrs. Huff’s response to the question regarding whether there were guns in the house.” Id., at 31. She faulted the majority for “recit[ing] a sanitized account of this event” that differed markedly from the District Court’s findings of fact, which the majority had conceded must be credited. Judge Rawlinson looked to “cases that specifically address the scenario where officer safety concerns prompted the entry” and concluded that, under the rationale articulated in those cases, “a police officer could have reasonably believed that he was justified in making a warrantless entry to ensure that no one inside the house had a gun after Mrs. Huff ran into the house without answering the question of whether anyone had a weapon.” Id., at 31, 33, 37.

Judge Rawlinson’s analysis of the qualified immunity issue was correct. No decision of this Court has found a Fourth Amendment violation on facts even roughly comparable to those present in this case. On the contrary, some of our opinions may be read as pointing in the opposition direction.

In Brigham City v. Stuart, 547 U. S. 398, 400 (2006), we held that officers may enter a residence without a warrant when they have “an objectively reasonable basis for believing that an occupant is ... imminently threatened with [serious injury].” We explained that “‘[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’” Id., at 403 (quoting Mincey v. Arizona, 437 U. S. 385, 392 (1978)). In addition, in Georgia v. Randolph, 547 U. S. 103, 118 (2006), the Court stated that “it would be silly to suggest that the police would commit a tort by entering [a residence] ... to determine whether violence ... is about to (or soon will) occur.”

A reasonable police officer could read these decisions to mean that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence. In this case, the District Court concluded that petitioners had such an objectively reasonable basis for reaching such a conclusion.

The Ninth Circuit's panel was a little too ivory tower for SCOTUS. A hang-up when the police called inside did not have to be blown off as the people inside just exercising their right not to talk to the police because it could have meant more:

The panel majority—far removed from the scene and with the opportunity to dissect the elements of the situation—confidently concluded that the officers really had no reason to fear for their safety or that of anyone else. As the panel majority saw things, it was irrelevant that the Huffs did not respond when the officers knocked on the door and announced their presence and when they called the home phone because the Huffs had no legal obligation to respond to a knock on the door or to answer the phone. The majority attributed no significance to the fact that, when the officers finally reached Mrs. Huff on her cell phone, she abruptly hung up in the middle of their conversation. And, according to the majority, the officers should not have been concerned by Mrs. Huff’s reaction when they asked her if there were any guns in the house because Mrs. Huff “merely asserted her right to end her conversation with the officers and returned to her home.”

See School Law Blog.

But see Kentucky v. King, 131 S.Ct. 1849 (2011): “Others may appreciate the opportunity to make an informed decision about whether to answer the door to the police.”

Exigent circumstances in SCOTUS gets another lift, almost to the point that purported exigency is looking to outweigh search warrants. The court is nibbling around the “sanctity of the home” everywhere it can. See Silverman v. United States, 365 U.S. 505, 511 (1961) (“At [the Fourth Amendment’s] very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.” Silverman was cited with approval the same day as Ryburn in United States v. Jones, 10–1259 (U.S. January 23, 2012).

01/24/12

Permalink 02:05:13 pm, by fourth, 238 words, 711 views   English (US)
Categories: General

D.Colo.: All Writs Act enables government to get order to defendant to provide password to computer so it can be searched under a SW

The government could use the All Writs Act to compel the defendant to provide the password to her computer so it could be searched under a search warrant. Providing the password here would not be incriminating. United States v. Fricosu, 10-cr-00509-REB-02 (D. Colo. January 23, 2012):

It is clear that the All Writs Act enables the court to issues orders to effectuate an existing search warrant. See United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977) (“This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.”); see also In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, –- F.Supp.2d –-, 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) (citing cases in which All Writs Act used to effectuate existing search or arrest warrant). Moreover, the government has offered Ms. Fricosu immunity, precluding it from using her act of producing the unencrypted contents of the laptop computer against her. (See Gov’t Motion App., Exh. 1.) Accordingly, the writ should issue.

See, e.g., CNet: Judge: Americans can be forced to decrypt their laptops by Declan McCullagh, Laptop Mag: Suspects Can Be Forced to Decrypt Hard Drives, Judge Rules, by Matt Liebowitz.

Permalink 08:39:29 am, by fourth, 141 words, 472 views   English (US)
Categories: General

IA: Loud music at house drew police; defendant smoking joint on porch had no REP

The officer responded to a loud music complaint, and came up to defendant’s porch were he saw the defendant smoking a joint. Opening the screen door on the porch did not violate any reasonable expectation of privacy. The officer opened the screen door because defendant couldn't hear him. State v. Plaehn, 2012 Iowa App. LEXIS 44 (January 19, 2012).*

Defendant failed in a Franks challenge where all he could show was that the officer didn’t learn of the possible falsity of the information in the warrant request until after it was sought. State v. Brown, 2012 Iowa App. LEXIS 35 (January 19, 2012).*

Defendant’s telephone number was first associated with alien smuggling, and then his car was seen and followed. When 4-6 people got out of the car, the officer had reasonable suspicion to stop the vehicle. United States v. Salas-Avalos, 459 Fed. Appx. 318 (5th Cir. 2012) (unpublished).*

Permalink 08:27:12 am, by fourth, 109 words, 614 views   English (US)
Categories: General

CA11 & NE: “[A] traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle”

The loud thumping coming from defendant’s car justified a traffic stop. “A traffic stop based on an officer’s incorrect but reasonable assessment of facts does not violate the Fourth Amendment” provided that the “mistake of fact was reasonable.” United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003). United States v. Smalls, 458 Fed. Appx. 788 (11th Cir. 2012) (unpublished).* [Add to that list: And when you are a felon in possession or carrying drugs in the car, don’t draw attention to yourself.]

“[A] traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle,” here an improper turn. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).*

Permalink 08:14:03 am, by fourth, 192 words, 492 views   English (US)
Categories: General

N.D.Ga.: Second vehicle inventory 4 days after seizure was valid, despite officer's mixed motive

The police department’s impound policy required a complete inventory, including closed containers. A second inventory, four days after the initial seizure, was not invalid. The fact that the officer had a mixed motive for the inventory doesn’t make it unlawful. Also, to be valid, a traffic stop need only be based on probable cause to believe that a traffic offense occurred, not belief that it actually happened. Once this stop happened, the defendant gave a false name and that justified more. United States v. Reyes, 2011 U.S. Dist. LEXIS 151967 (N.D. Ga. August 29, 2011), adopted 2012 U.S. Dist. LEXIS 6903 (N.D. Ga. January 19, 2012).

Where there was an altercation outside the house where defendant threatened to “get my gun,” tribal police had probable cause for issuance of a search warrant for the house for a gun. The omission that defendant was drunk at the time did not have any effect on the probable cause finding because one could also consider it “truth serum.” Besides, the good faith exception supports the warrant. United States v. Youngbear, 2011 U.S. Dist. LEXIS 151982 (N.D. Iowa December 1, 2011), adopted 2012 U.S. Dist. LEXIS 6704 (N.D. Iowa January 20, 2012).*

01/23/12

Permalink 10:37:03 am, by fourth, 1084 words, 735 views   English (US)
Categories: General

SCOTUS: GPS use a search under the Fourth Amendment

SCOTUS holds in United States v. Jones, 2012 U.S. LEXIS 1063 (U.S. January 23, 2012), that the government’s use of GPS tracking there was a search under the Fourth Amendment. Opinion by Scalia and 9-0 with a concurrence. The Syllabus:

The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.

Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.

(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.

(c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12.

615 F. 3d 544, affirmed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed a concurring opinion. ALITO, J., filed an opinion concurring in the judgment, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

This will be the subject of about 1500 news articles, blog entries, and press commentaries. I’ll likely only pick up the important ones by scholars. Mr. Kerr: You’re up.

What is significant to me is that the court still recognizes common law trespass, which I have argued in the past, has never been repudiated, and now is emphasized:

The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its under body) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding. Less than two years later the Court upheld defendants’ contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.” Alderman v. United States, 394 U. S. 165, 176 (1969). “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home ....” Id., at 180.

More recently, in Soldal v. Cook County, 506 U. S. 56 (1992), the Court unanimously rejected the argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was forcibly removed, id., at 62, no Fourth Amendment violation occurred because law enforcement had not “invade[d] the [individuals’] privacy,” id., at 60. Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” 506 U. S., at 64.

. . .

We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U. S. 83, 88 (1998) (internal quotation marks omitted). Katz did not narrow the Fourth Amendment’s scope.

More about this later. I have my day job to go back to. Enjoy. The Fourth Amendment maybe is now off life support. Still not in good condition, but at least “not dead yet.”

Permalink 04:21:18 am, by fourth, 537 words, 695 views   English (US)
Categories: General

D.Ore.: Cell phones shouldn't be subject to search incident, but law unclear for § 1983 liability; but arrest for videotaping violated Fourth Amendment

Plaintiff was recording an officer on a “personal electronic device,” and the officer and another took him down. “Solesbee charged plaintiff with unlawful intercepting of communication and resisting arrest. Plaintiff was handcuffed and placed in a police cruiser. While standing at the police cruiser, Solesbee viewed the contents of plaintiff's camera without getting a warrant.” Viewing the video without a warrant violated the Fourth Amendment as a matter of law because of lack of exigency, and the plaintiff’s § 1983 claim depends on the facts of the arrest, which is disputed for summary judgment purposes. If it was valid, the officer gets qualified immunity; if not, the officer gets judgment against him--cell phones should not be subject to search incident, but the law is not clear. Schlossberg v. Solesbee, 2012 U.S. Dist. LEXIS 5492 (D. Ore. January 18, 2012):

I find the reasoning in Smith [State v. Smith, 920 N.E. 2d 949 (Ohio 2009)] and Park [United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007)] persuasive. Courts which have likened electronic devices such as cell phones to closed containers fail to consider both the Supreme Court's definition of "container" and the large volume of information capable of being stored on an electronic device. In New York v. Belton, the Supreme Court stated that "container" means "any object capable of holding another object." Belton, 453 U.S. 454, 460 (1981). Consideration of an electronic device as a "container" is problematic. Electronic devices do not store physical objects which are in plain view once the containers are opened. Moreover, the storage capability of an electronic device is not limited by physical size as a container is. In order to carry the same amount of personal information contained in many of today's electronic devices in a container, a citizen would have to travel with one or more large suitcases, if not file cabinets.

Cases following the reasoning set forth in Finley and other cases allowing warrantless searches of electronic devices incident to arrest set forth a new rule: any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer. See e.g., Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 27 (2008); Jana L. Knott, Note, Is There an App for That? Reexamining the Doctrine of Search Incident to Lawful Arrest in the Context of Cell Phones, 35 Okla. City U.L. Rev. 445, 445-47 (2010). Newhard v. Borders illustrates this issue. Newhard, 649 F.Supp.2d 440, 444 (W.D. Va 2009). In that case, Nathan Newhard was arrested for driving while intoxicated. Newhard, 649 F.Supp at 447-49. In the course of a routine search incident to arrest, the arresting officer retrieved Newhard's cell phone from Newhard's pocket, conducted a warrantless search of the photos contents and viewed multiple photos of Newhard and his girlfriend nude and in "sexually compromising positions." Id. The officer showed Newhard's private images (which were wholly unrelated to his drunk driving arrest) to another officer. Id. Subsequently, at the stationhouse, several more officers and stationhouse employees viewed the photos on the seized phone, notifying others that the photos were available for viewing enjoyment. Id.

[Cops just hate to be videotaped, and they will arrest people doing it, even though it clearly is not a crime.]

Permalink 12:27:23 am, by fourth, 189 words, 581 views   English (US)
Categories: General

KY: Officer's curiousity not a valid ground for stop

“When Officer Dunn asked West to step out of the car, he had already ascertained that there were no warrants or other problems relating to West and his passengers. He had observed no new behavior or learned any new facts in addition to what he had noted during the course of the stop. His motive, which he described as curiosity to see what was going on, did not give rise to a reasonable and articulable suspicion of criminal activity to justify asking West to step out of the car.” West v. Commonwealth, 358 S.W.3d 501 (Ky. App. 2012).

Defendant’s questioning at the scene of his arrest fleeing from a bank robbery was valid under the public safety exception of Quarles, even though he was handcuffed and out of the car. Through the window, the officer could see the proceeds of the bank robbery and the bandana defendant wore. United States v. Miller, 456 Fed. Appx. 595 (7th Cir. 2012) (unpublished).*

Discarded baggy of drugs on flight from officers was not shown to be the result of unconstitutional action by the officers. United States v. Patton, 2012 U.S. Dist. LEXIS 6096 (D.Kan. January 18, 2012).*

Permalink 12:19:20 am, by fourth, 124 words, 598 views   English (US)
Categories: General

KY: Davis GFE applied to pre-Gant search

Defendant’s pre-Gant search was with good faith under Davis. Artis v. Commonwealth, 360 S.W.3d 771 (Ky. App. 2012).*

The brief wait for a drug dog was not unreasonable. Defendant waived the PC issue by not raising it below. State v. Jefferson, 2012 Ohio 148, 2012 Ohio App. LEXIS 118 (5th Dist. January 17, 2012).*

Renewed motion to suppress rental car search is denied. The officer’s testimony that one taillight did not work was “unimpeached” by repair records from Enterprise that all the lights worked and no repairs had been done. The existence of the rental agreement doesn’t really matter because the validity and continuation of the stop had nothing to do with the rental agreement. United States v. McGee, 2012 U.S. Dist. LEXIS 6415 (S.D. W.Va. January 18, 2012).*

Permalink 12:05:27 am, by fourth, 287 words, 525 views   English (US)
Categories: General

OH8: Defendant's prison DNA validly connected him to a cold case

Defendant was connected to a 2003 rape by his DNA from a conviction in 2007, but police could not find the victim until 2010. The taking of the DNA in 2007 was reasonable. State v. Bolton, 2012 Ohio 169, 2012 Ohio App. LEXIS 122 (8th Dist. January 19, 2012).*

A search of defendant’s backpack on his arrest depended on the legality of his stop, which the trial court failed to find after having been asked by defense counsel. Remanded for findings on consent for the stop, although defendant was held by the arm when stopped. State v. Hines, 2012 Ohio 207, 2012 Ohio App. LEXIS 164 (2d Dist. January 20, 2012):*

[*P16] The trial court cannot be faulted for having followed the existing jurisprudence of this appellate district. Nevertheless, in view of our recent decision in State v. Gardner, supra, the trial court erred when it denied the motion to suppress based solely upon the fact that a warrant for Hines's arrest was outstanding at the time of the search and seizure. The trial court never reached the factually contested issue of the voluntariness of the stop, or the issue of whether the officers had a sufficient suspicion of the existence of a weapon to have justified their having opened and searched Hines's backpack, which was also the subject of conflicting testimony. Therefore, the judgment of the trial court must be reversed, and this cause must be remanded for reconsideration of the suppression motion in light of State v. Gardner. The trial court need not hold another hearing on the suppression motion, although it may do so if the court would find another hearing helpful.

Defendant could not suppress seizure of his telephone records from the telephone company under Smith v. Maryland. State v. Neely, 2012 Ohio 212, 2012 Ohio App. LEXIS 165 (2d Dist. January 20, 2012).*

01/22/12

Permalink 10:21:51 am, by fourth, 238 words, 688 views   English (US)
Categories: General

OH8: Officers saw defendant inside engaging in drug trafficking but he didn't know they were outside; warrant required, except he consented

Detectives testified that they were responding to a police report of harassment at defendant's residence when they viewed him through his front window engaging in drug trafficking. At the suppression hearing, the detectives each testified that they believed entry into defendant's apartment was necessary to prevent the destruction of evidence. However, there was no indication that any marijuana or other evidence was being destroyed. In fact, defendant was alone in his apartment and was unaware that the detectives were even at his front door until they announced their presence. Thus, the detectives had ample opportunity to secure the premises and obtain a valid warrant without risking retrieval of the evidence at issue. However, because defendant opened the door and took a step back when the detectives asked to enter his apartment, he consented to their entry. Once inside the apartment, the marijuana was in plain view, justifying defendant's arrest. State v. Booker, 2012 Ohio 162, 2012 Ohio App. LEXIS 126 (8th Dist. January 19, 2012).*

Defendant called police because of a domestic disturbance between him and his live-in girlfriend. The officer asked about the drugs and rolling papers on the dresser, and the girlfriend said it was his and she’d take a drug test. The stuff was in plain view and validly seized. State v. Seagle, 2012 Ohio 132, 2012 Ohio App. LEXIS 105 (3d Dist. January 17, 2012).* [Note: If you're inviting the cops into your house, at least have the presence of mind to hide your dope.]

Permalink 10:03:03 am, by fourth, 309 words, 540 views   English (US)
Categories: General

D.Mont.: MMJ caregivers don't state claim v. feds for search

Plaintiffs’ claim as medical marijuana growers against federal search warrants did not state a claim under the Fourth, Fifth, Ninth, and Tenth Amendments because of Gonzalea v. Raich. Mont. Caregivers Ass'n v. United States, 2012 U.S. Dist. LEXIS 6425 (D. Mont. January 20, 2012):

Moreover, the federal government has never given a free pass to produce and consume marijuana, even for medical purposes. In the so-called "Ogden Memo," the Department of Justice communicated to its attorneys that certain marijuana users and providers would be a lower priority for prosecution than others. See David W. Ogden, Dep. Atty. Gen., U.S. Dept. of Just., Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana ("Ogden Memo") (October 19, 2009) (available at www.justice.gov/opa/documents/medical-marijuana.pdf) (accessed on Jan. 13, 2012). For example, "[I]ndividuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana," would be a lower priority than "large-scale criminal enterprises, gangs, and cartels." Id. at 1-2. But the Department also made clear that it did not intend to "legalize" marijuana (nor could it). ...

. . .

The plaintiffs claim the federal government violated their fourth amendment protection against unreasonable searches and seizures when authorities searched their property and seized thousands of marijuana plants, hundreds of pounds of marijuana, various pieces of equipment and supplies, and money. The plaintiffs claim the searches and seizures were unreasonable only because federal authorities failed to acknowledge that the plaintiffs were acting legally under Montana law. As discussed above, though, whether the plaintiffs' conduct was legal under Montana law is of little significance here, since the alleged conduct clearly violates federal law. As a result, the searches and seizures were not unreasonable, and the plaintiffs' fourth amendment claim fails.

Permalink 09:55:31 am, by fourth, 454 words, 455 views   English (US)
Categories: General

E.D.N.C.: Seizure of computer on arrest was with PC; later search with warrant was valid

Officers came to defendant's place to arrest him on a warrant for bank fraud, and they knew a computer had been used. In plain view was defendant’s laptop, and that gave the officers probable cause to seize it. After seizure, they applied for a search warrant to search it. The seizure was valid. United States v. Van Santvoord Camp, 2012 U.S. Dist. LEXIS 5878 (E.D. N.C. January 18, 2012):

"[S]eizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place." Soldal v. Cook County, 506 U.S. 56, 68, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992). Law enforcement officers may seize evidence in plain view if "(1) the seizing officer is lawfully present at the place from which the evidence can be plainly viewed; (2) the seizing officer has a lawful right of access to the object itself; and (3) the object's incriminating character is immediately apparent." United States v. Williams, 592 F.3d 511, 521 (4th Cir. 2010) (internal quotations and citation omitted). After announcing the requirements of the plain view doctrine, the Supreme Court subsequently tailored the "immediately apparent" requirement: an officer need not "know" that an item is contraband or evidence of a crime, but rather must have probable cause to believe that the object is associated with the criminal activity. Texas v. Brown, 460 U.S. 730, 741-42, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).

Here, Agent Spears and Detective Boyce were lawfully in Defendant's office pursuant to an arrest warrant. Defendant's laptop was on Defendant's desk in his office, in plain view of law enforcement. It was the only computer visible to law enforcement in Defendant's office. Agent Spears, an investigating agent on Defendant's case, knew that Defendant had used a computer as an instrumentality of the fraud that Defendant was being charged with and had been made aware by a reliable witness that Defendant utilized a laptop computer for business activities. Because Agent Spears had probable cause to believe that Defendant's laptop was associated with Defendant's criminal activity, the seizure of the laptop computer in Defendant's office was pursuant to a valid exception to the warrant requirement.FN1

1 Defendant's argument as to the validity of Agent Spears' seizure of the laptop computer focuses solely on whether the seizure was a valid search incident to an arrest, assumedly because, in his affidavit in support of his application for a search warrant, Agent Spears refers to his seizure of the laptop as "incident to the arrest of [Defendant] on June 8, 2011." Because the Court has found that a valid exception to the warrant requirement existed when Agent Spears seized the laptop, it is inapposite whether the Agent correctly identified his justification for seizing the laptop while arresting Defendant in his application for a search warrant.

Permalink 12:03:03 am, by fourth, 153 words, 618 views   English (US)
Categories: General

IA: Living in mobile home as guest for six months was REP

Defendant who had been staying in a mobile home with the owner for six months had a reasonable expectation of privacy in it. The officer’s observation of defendant inside doing something through the window from the driveway was not an illegal search. State v. Lowe, 2012 Iowa Sup. LEXIS 8 (January 20, 2012).*

A church parking lot was often littered with beer bottles and sometimes used condoms, so the pastor would call the police to roust those who would be parking there at night. He called the police on a car found there. The officer walked up to the vehicle and could smell marijuana smoke, and that was reasonable suspicion or more. Webb v. State, 313 Ga. App. 620, 722 S.E.2d 360 (2012).*

The drug dog’s positive alert on money, despite false alerts on money, still was probable cause to believe there were drugs in the vehicle. United States v. Giuffrida, 2011 U.S. Dist. LEXIS 151875 (D. Me. January 19, 2012).*

01/21/12

Permalink 10:12:03 am, by fourth, 143 words, 552 views   English (US)
Categories: General

D.Minn.: Drug sales outside defendant's apartment creates inference of drugs inside

The defendant was alleged to have engaged in three drug sales with a CI right outside his apartment door. This led to a fair inference that drugs would be found in defendant’s apartment. United States v. Dedrick, 840 F. Supp. 2d 482 (D. Minn. 2012).

Merely being the “emergency contact” on a storage unit lease did not give the defendant standing to challenge its search. Defendant was neither lessor nor owner of the unit. United States v. McMahan, 2011 U.S. Dist. LEXIS 151724 (E.D. Tenn. December 7, 2011).*

One defendant gave a false name and SSN when asked, and it is clear from the video that there was consent to search the vehicle for their identities. One defendant’s reaching for her shoes and purse did not constitute a limitation on consent for the vehicle. United States v. Jackson, 2012 U.S. Dist. LEXIS 5849 (W.D. Va. January 18, 2012).*

Permalink 10:03:36 am, by fourth, 167 words, 635 views   English (US)
Categories: General

M.D.Pa.: Burglary in progress call justified protective sweep

Officers responded to a burglary in progress call and conducted a protective sweep, which was valid and led to a search warrant. United States v. Williams, 2012 U.S. Dist. LEXIS 6350 (M.D. Pa. January 19, 2012) [Note: The court applies the wrong burden of proof to a warrantless search by citing search warrant cases and conflating the two, but, based on the facts, the outcome would be the same]:

"The proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights were violated." United States v. Correa, 653 F.3d 187, 190 (3d Cir. 2011) (citing Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978); United States v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010)). The applicable standard of proof is the preponderance of the evidence standard. United States v. Matlock, 415 U.S. 164, 178 n.14 (1974). Where the search in question was conducted pursuant to a warrant, the reviewing court is to uphold the warrant where there is a "substantial basis" for the finding of probable cause. United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001).

Permalink 09:56:03 am, by fourth, 192 words, 485 views   English (US)
Categories: General

E.D.Tenn.: Return of property denied where gov't still has interest in use of property

Because of a continuing interest in the property, the motion for return of financial records is denied, but defendant’s reading glasses should be returned to him. Defendant’s property was seized in Pennsylvania but defendant was indicted in the Eastern District of Tennessee. Under the rule, a motion for return of property would have to be filed where it was seized, but, because the government doesn’t object, it will be heard here. United States v. Bolze, 2011 U.S. Dist. LEXIS 151731 (E.D. Tenn. December 22, 2011):

"A defendant's motion for return of property will be unavailing where the government has a continuing interest in the property." United States v. Francis, 646 F.2d 251, 263 (6th Cir. 1981). Defendant Bolze has appealed his sentence in this case. Accordingly, the Government has a continuing interest in the property while there remains the chance that the case could be remanded. See United States v. Nelson, 190 F. App'x 712, 715 (10th Cir. 2006) (recognizing that "the government has a legitimate interest in maintaining control of property relevant to the prosecution and sentencing of a defendant until his criminal proceedings are final" but also observing that the property must be relevant to sentencing).

Permalink 09:45:45 am, by fourth, 136 words, 583 views   English (US)
Categories: General

D.Me.: A traffic violation is not required for a vehicle stop if there is RS or PC of drug possession

A stop of a car can be justified by at least reasonable suspicion of drug trafficking, not just a traffic offense. Here, the officer had probable cause, and that also justified a search of the car, not just by defendant’s consent. United States v. Deras, 2012 U.S. Dist. LEXIS 5258 (D. Me. January 17, 2012).

While the officers’ testimony was somewhat conflicting on the details of all the circumstances of the search, it still didn’t undermine the district court’s conclusion that defendant was cooperative and consented to the search. United States v. Ortiz, 455 Fed. Appx. 669, 2012 FED App. 0052N (6th Cir. 2012) (unpublished).*

Defendant fled from police and dropped a baggy of cocaine, and this was not the result of any illegal police conduct and constituted abandonment. United States v. Patton, 2012 U.S. Dist. LEXIS 6096 (D. Kan. January 18, 2012).*

01/20/12

Permalink 07:13:42 am, by fourth, 344 words, 619 views   English (US)
Categories: General

CA6: Ruse to get defendant into police car and go home did not make it involuntary

Using a ruse to get defendant to get into a police car and come back to his house was not unreasonable and did not make that consent involuntary. The officer told defendant he needed to come home to talk about an arson investigation, but it was really a drug investigation. United States v. Gregory, 456 Fed. Appx. 533, 2012 FED App. 0063N (6th Cir. 2012) (unpublished):

Importantly, the question is not whether Gregory may have declined Bunch’s request had he known the officer’s true motivation. Rather, the question under the Fourth Amendment is whether the “‘police misrepresentation of purpose [was] so extreme that it deprive[d] the individual of the ability to make a fair assessment of the need to surrender his privacy.’” Hardin, 539 F.3d at 425 (quoting 2 Wayne R. LaFave et al., Criminal Procedure § 3.10(c) (3d ed. 2007)). Essentially, the question this court must ask is whether the ruse created a scenario where Gregory “ha[d] no choice” but to concede his privacy interests. Id. (quoting United States v. Copeland, No. 95-5596, 1996 U.S. App. LEXIS 17177, 1996 WL 306556, *3 n.3 (6th Cir. June 6, 1996)). The Hardin court concluded that “the ruse regarding the water leak presented a situation in which an individual would feel ‘no choice but to invite the undercover officer in’ and any consent was invalid.” Id. (quoting Copeland, 1996 U.S. App. LEXIS 17177, 1996 WL 306556 at *3 n.3).

This case does not present the type of situation addressed in Hardin. Although Gregory believed that he would be traveling to his residence to examine evidence in the arson investigation, rather than meet with other officers concerning an ongoing drug case, he was fully aware that he would be accompanying a law enforcement officer. By contrast, in Hardin, the defendant believed he was interacting simply with an apartment manager, not a government agent. Moreover, the water leak ruse in Hardin undoubtedly created a sense of urgency and compulsion for the defendant who was residing in the apartment. Despite the ruse in this case, Gregory maintained “the ability to make a fair assessment of the need to surrender his privacy.” Id. at 425.

Permalink 06:47:22 am, by fourth, 216 words, 685 views   English (US)
Categories: General

S.D.Ohio: Overseizure was slight and not prejudicial nor “abrasive”

The fact some small things were seized under a documents warrant did not rise to the level of an “abrasive” search (United States v. Searp, 586 F.2d 1117 (6th Cir. 1978)) justifying suppression of all that was within the warrant. The fact the warrant was not present for the search was a potential Rule 41 violation, but it was not a constitutional issue, and defendant did not show prejudice. United States v. Sadler, 2012 U.S. Dist. LEXIS 5207 (S.D. Ohio January 17, 2012).*

Merely having to post bond wasn’t shown here to be a real Fourth Amendment seizure issue. Moreno-Medina v. Toledo, 458 Fed. Appx. 4 (1st Cir. 2012) (unpublished)*:

Construing the plaintiffs’ complaint in the light most favorable to them, the district court speculated that the only potentially cognizable post-arraignment deprivation Moreno suffered was having to post a $10,000.00 bond. The court concluded that, because Moreno was able to post the bond and was not detained, the bond was a “run-of-the-mill” pre-trial release condition and did not amount to a Fourth Amendment seizure. Nieves, 241 F.3d at 55; see also Harrington, 610 F.3d at 32-33. Because the plaintiffs have not put the issue squarely before us, we need not address today whether a post-arraignment release on bond, standing alone, could ever approximate a Fourth Amendment seizure for purposes of a Section 1983 malicious prosecution claim.

01/19/12

Permalink 08:01:50 am, by fourth, 229 words, 644 views   English (US)
Categories: General

MO: No exigency justified warrantless blood draw under Schmerber

No exigency justified ordering a doctor to take defendant’s blood in a DWI case, and the trial court’s order suppressing the evidence was affirmed. State v. McNeely, 358 S.W.3d 65 (Mo. 2012):

The patrolman here, however, was not faced with the "special facts" of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge.

Seizure of a gun from the defendant was unreasonable under the Fourth Amendment. The officers’ testimony was contradicted by the video. For example, they said the discussion was quiet and restrained, but the video showed them shouting obscenities at him. They also turned off the video because they said they wanted to protect his identity if they “turned him.” A first warrantless search was found valid, but the second was not. United States v. Rosas, 2011 U.S. Dist. LEXIS 151622 (D. Minn. November 23, 2011).*

Permalink 07:28:20 am, by fourth, 183 words, 540 views   English (US)
Categories: General

D.Minn.: FISA standard of review undetermined

FISA probable cause determinations are subject to a split on what the standard of review is for issuance of a warrant. Also, defendant doesn't get to see the affidavit for the FISA warrant where the Attorney General certifies disclosure is contrary to national security. United States v. Mahamud, 838 F. Supp. 2d 881 (D. Minn. 2012):

There is no agreement among the federal courts as to whether the probable cause determination is made de novo or if a deferential standard is applied. See Abu-Jihaad, 630 F.3d at 130; Warsame, 547 F. Supp.2d at 990 (court reviewed probable cause determination de novo, given that the Court's review is ex parte). Even applying a de novo review, however, the Court finds that there was sufficient probable cause set forth in the applications and related materials that Defendant was an agent of a foreign power, al-Shabaab, and that the places to be searched or to be surveilled were being used by Defendant.

Defendant’s objection to a search after the jury heard about the evidence was a waiver of the issue. Black v. State, 358 S.W.3d 823 (Tex. App. – Ft. Worth 2012).

Permalink 07:09:37 am, by fourth, 285 words, 670 views   English (US)
Categories: General

CA3: RS not required before knock-and-talk

Officers came to defendant’s house to do a knock-and-talk for drugs, and they had to come though a gate to get to the front porch. They talked to defendant’s longtime live-in companion who told them he wasn’t home. She agreed they could come in and talk. They concluded she was lying about where he was and then finally admitted he was upstairs. They told him to come down, and he did. He said no search without a warrant, and they said they could do that, but the house would be secured and they would likely tear the place up during the search. If he consented, they said he wouldn’t be incarcerated. He consented to a search of the house, cutting off their reading the consent form to him. They found a considerable amount of marijuana and arrested him. Neither lesser intrusive measures nor reasonable suspicion are constitutionally required before a knock-and-talk. Knowledge of a right to refuse is only a factor in the totality, particularly when facing strong evidence of consent. United States v. Claus, 458 Fed. Appx. 184 (3d Cir. 2012):

Claus argues that the officers' conduct should not be sanctioned as a constitutional "knock and talk" because they did not first attempt other less intrusive investigatory steps. However, the recognized purposes behind the "knock and talk" procedure is to either speak with occupants or ask for consent to search. As a result, no objective level of suspicion is required. See United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000) (holding that "no suspicion is needed to be shown in order to justify the 'knock and talk'" (citing Florida v. Bostick, 501 U.S. 429, 434 (1991))). We therefore refuse to impose the additional protections urged by Claus.

Permalink 06:30:21 am, by fourth, 231 words, 473 views   English (US)
Categories: General

E.D.Mich.: 911 call led to plain view of rifle defendant accidentally shot himself with

Defendant was handling his rifle and accidentally shot himself. He called 911, and paramedics and the police arrived. The police officer could seize the rifle in plain view when the officer was in the house. United States v. Taylor, 2012 U.S. Dist. LEXIS 4950 (E.D. Mich. January 17, 2012). [Note: As a general rule, a call to 911 is a waiver of a reasonable expectation of privacy for all who might show up: police, EMS, firemen. If you want to protect your privacy, either don't call 911 or go outside and wait. The number of cases arising from the simple fact the police were called is astounding. How dumb can some people be? My favorite is having a burglar alarm and then complaining because the police showed up, checked the premises, and stumbled upon evidence of crime.]

Under the “four corners” of the affidavit, United States v. Hudspeth, 525 F.3d 667, 674 (8th Cir. 2008), it shows probable cause for issuance of the search warrant for defendant’s house. Even if it didn’t, there was enough for the good faith exception. United States v. Mariano, 2011 U.S. Dist. LEXIS 151528 (D. Minn. November 22, 2011), R&R United States v. Mariano, 2012 U.S. Dist. LEXIS 4346 (D. Minn. January 13, 2012).*

Defendant’s post-conviction motion that he should have search warrant materials was moot because he got them before the trial. United States v. Reynolds, 2011 U.S. Dist. LEXIS 151546 (E.D. Tenn. June 8, 2011).*

Permalink 06:11:42 am, by fourth, 281 words, 469 views   English (US)
Categories: General

CO: Randolph does not prohibit protective sweep

Police were called to a domestic dispute, and defendant held off the police for a while, finally surrendering. He was taken away, objecting to a search. After he left, his wife consented to a protective sweep for weapons which were found, along with a pipe bomb. Randolph condones this search because of the protective sweep. The trial court erred in suppressing. People v. Strimple, 2012 CO 1, 267 P.3d 1219 (2012):

Nevertheless, the circumstances of a domestic abuse incident can justify a warrantless search for weapons based upon a request of one co-tenant, despite the objection of one or more other co-tenants. The Randolph Court clarified two points applicable to the case now before us. First, a co-tenant's consent to a search can prevail over a defendant's refusal to consent when the defendant has left the scene, where there is "no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection." Id. at 121. Second, a warrantless search for weapons can be justified under the totality of the circumstances involved in a domestic abuse incident:

[T]his case has no bearing on the capacity of the police to protect domestic victims .... [T]he question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes .... The undoubted right of the police to enter in order to protect a victim ... has nothing to do with the question in this case, whether a search with the consent of one co-tenant is good against another, standing at the door and expressly refusing consent.

Id. at 118-19 (citations omitted). Both of these clarifications are applicable in this case.

01/18/12

Permalink 05:15:45 pm, by fourth, 73 words, 527 views   English (US)
Categories: General

Reuters: TSA searches a colostomy bag of elderly woman

Reuters: TSA: Agents erred in search of elderly passengers:

The Transportation Security Administration said its agents violated procedures by inspecting an elderly woman's colostomy bag screening another's back brace but denied claims the women were strip searched.

The women, Ruth Sherman, 88, of Sunrise, Florida, and Lenore Zimmerman, 85, of Long Beach, New York, complained they were strip searched by agents at New York's John F. Kennedy International Airport during the busy Thanksgiving travel holiday.

Permalink 02:20:39 pm, by fourth, 148 words, 518 views   English (US)
Categories: General

Wonder why jail strip searches for weapons?

HuffPo: Man Hides Gun In Rectum: Michael Leon Ward Smuggled 10-Inch Weapon, Cops Say:

There are some places you should definitely not hide a gun.

Police in North Carolina believe that despite multiple searches after a traffic violation , a suspect managed to sneak a 10-inch gun into a prison last Monday by concealing the weapon in his rectum.

One day later, officers confiscated the .38 revolver from the jail cell of Michael Leon Ward, arrested Jan. 9, a statement from the Onslow County Sheriff's Office explains. They'd performed a strip search on Ward and even required that he "squat and cough" to see if he held any contraband, but nothing turned up, according to MSNBC.

My question is: How did he get it in there? Seems improbable.

The Sheriff's press release is here from another internet source.

Update: I heard from a law enforcement agency, and they say "Butt first."

Permalink 12:19:42 am, by fourth, 177 words, 505 views   English (US)
Categories: General

Gizmodo: "The NYPD Wants Mobile Weapon Scanners for Drive-By Patdowns"

Gizmodo: The NYPD Wants Mobile Weapon Scanners for Drive-By Patdowns:

The NYPD is in hot water with civil rights groups over its controversial Stop-and-Frisk policy. But, NYPD Commissioner Ray Kelly has a solution—handheld weapons scanners that see guns under clothing! Fourth Amendment? What's that?

As Kelly told a State of the NYPD breakfast Tuesday, the department is developing a mobile, infrared scanner mechanism that would allow officers to detect concealed weapons similar to the way that full-body scanners at airports work. The Department of Defense is also working with the NYPD to develop the technology, though details are still rather scarce.

Currently the technology only has a range of three to four feet, requiring the officers to still actually interact with the citizenry presumed criminals. The NYPD hopes to eventually extend the range to 25 meters (80 feet) and mount it atop a police van. This would allow the cops to simply cruise down a street and scan everybody on the sidewalk without having to let them know they've just been searched. [NY Post - Gothamist via DVice]

Permalink 12:10:07 am, by fourth, 252 words, 535 views   English (US)
Categories: General

NH: School search of student leaving school was without RS

A school policy to search students for contraband who left assigned areas during the day was without reasonable suspicion under the N.H. Constitution. Also, he was leaving school for the day, and they ordered him back and told him he was going to be searched when he produced marijuana. In re Anthony F., 163 N.H. 163, 37 A.3d 429 (2012).

An officer at an immigration checkpoint does not need reasonable suspicion to refer a person stopped for secondary inspection. Defendant consented to a search of the car and handed keys to the trunk to the officer. A dog had alerted to the car. Defendant couldn’t answer fundamental questions about where they were coming from. United States v. Wilson, 2012 U.S. Dist. LEXIS 4609 (D. Ariz. January 12, 2012),* R&R 2011 U.S. Dist. LEXIS 151532 (D. Ariz. November 18, 2011).*

The trial court did not err in denying a motion to suppress evidence in a drug case, where the initial encounter between the defendant and law enforcement personnel was entirely consensual. The officer had a reasonable articulable basis sufficient to detain him while attempting to gather information to dispel or confirm his suspicions. The consensual search of defendant's person and his vehicle were not, therefore, fruits of an unlawful seizure under the Fourth Amendment. “Begley's request to see his driver's license was no more than a request, and Branham's compliance was voluntary and not coerced.” Branham v. Commonwealth, 283 Va. 273, 720 S.E.2d 74 (2012)* [Note: These guys really think that an officer's request for a driver's license can be refused?]

01/17/12

Permalink 01:25:25 pm, by fourth, 424 words, 523 views   English (US)
Categories: General

OH: Defendant abandoned hard drive in leaving it with others and never seeking to recover it

Defendant removed a hard drive from a computer and gave it to his mother while still living with her. He moved out about six months later, not taking the hard drive with him. His twin brother told mom to get rid of it because it probably had child pornography on it. She gave it back to defendant. Defendant moved in with his older brother, and ultimately stole his truck and took off. He left the hard drive and other stuff behind. The older brother sold his stuff at a garage sale, but mom retrieved the hard drive. Ultimately she gave it to the police who locked it away and looked for defendant, not finding him. Finally, mom consented to a search of the hard drive, and child porn was found. The court of appeals found the computer was not abandoned, State v. Gould, 131 Ohio St. 3d 179, 2012 Ohio 71, 963 N.E.2d 136 (6th Dist. 2010) (posted here), but the Ohio Supreme Court reversed finding that it was. Forensic analysis of the hard drive showed him sexually assaulting a seven year old, and he was charged with rape and possession of child porn. The state argued that Herring should dictate the exclusionary rule should not apply because the police were not negligent or reckless. The court declined and went right to abandonment. State v. Gould, 2012 Ohio 71, 131 Ohio St. 3d 179 (January 17, 2012):

{¶ 34} As in Hershenow, Freeman, Chandler, and Davis, here the evidence similarly weighs against a finding that Gould had an objectively reasonable expectation of privacy in the hard drive. He left the hard drive in his apartment with his other belongings when he stole his brother’s truck and left Toledo sometime in August 2006. From the time he left Toledo until his arrest by federal marshals sometime before June 3, 2007, Gould never inquired about the hard drive or attempted to assert control over it or its location, he concealed his whereabouts, and he never knew the hard drive had been removed from his apartment when his brother sold his other belongings.

{¶ 35} And even if we consider the period of time from when Gould left Toledo until Detective Dec searched the hard drive in December 2006, the facts reveal that Gould had not made any inquiry about the hard drive or asserted control over it for almost four months. Hence, the police could have reasonably concluded that Gould had abandoned it.

[Note: One cannot disagree with this outcome under the facts and prior authority. The state hedged its bets by going with its Herring argument when the abandonment issue was pretty clear.]

Permalink 11:39:59 am, by fourth, 373 words, 648 views   English (US)
Categories: General

NH: Police entry onto neighbor's property to smell defendant's grow operation did not violate his REP

Police officers went on neighbor’s land to be able to smell the grow operation in defendant’s home. The defendant had no reasonable expectation of privacy beyond her own property line, and the neighbor’s property was not their curtilage. State v. Smith, 163 N.H. 169, 37 A.3d 409 (2012):

We agree with the trial court that the defendant had no reasonable expectation of privacy in the area from which the police officers observed her house and smelled an odor of marijuana emanating from its air vent. First, although Sergeant Prince and Detective James may have had no independent right or invitation to cross onto the defendant's property, they made an effort to ascertain its boundary line and stay on the neighbor's side of it. Cf. Orde, 161 N.H. at 266 ("[A]n officer has no greater right to intrude onto a person's property than any other stranger would have." (quotation and brackets omitted)). Moreover, crossing over the defendant's property line is not equivalent to crossing into her home's curtilage. See Hanson, 113 N.H. at 691 (holding, on federal grounds, that "there was no unconstitutional search even though the officers may have been trespassing"). Further, whether the police had a right to be where they were must be considered in context of the "open fields" doctrine, which recognizes implicitly that a trespass alone does not necessarily invade a property owner's reasonable expectation of privacy. See Dunn, 480 U.S. at 304 ("[T]here is no constitutional difference between police observations conducted while in a public place and while standing in the open fields."); Oliver v. United States, 466 U.S. 170, 180 n.11 (1984) ("[T]he term 'open fields' may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither 'open' nor a 'field' as those terms are used in common speech. For example, ... a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.").

Inquiry into the character of the area searched establishes that the woods behind the defendant's home fall outside her curtilage. While the officers conducted their search within approximately fifty to seventy feet of the defendant's home, proximity alone is not dispositive because there is no fixed distance at which curtilage begins or ends. ...

Permalink 11:25:02 am, by fourth, 727 words, 535 views   English (US)
Categories: General

CA5: District court's IAC analysis was clearly insufficient where motion to suppress wasn't filed

In a § 2255 IAC claim before the appellate court on a certificate of appealability from a life sentence in a drug case, the court finds that the district court’s sole finding that defendant said during trial that he let the police search him did not answer the question of whether the alleged consent search of his person was voluntary for frivolousness purposes of defense counsel’s failure to move to suppress. United States v. Dowling, 458 Fed. Appx. 396 (5th Cir. 2012) (unpublished):

On the record before us, we cannot say that a motion to suppress would have been frivolous. When reviewing whether a search was justified by consent, a district court examines several issues. First, the government must show that the defendant consented based on the totality of the circumstances. United States v. Freeman, 482 F.3d 829, 831-32 (5th Cir. 2007). Next, the government must show that this consent was voluntary, also based on the totality of the circumstances. Id. at 832 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)). District courts focus on six factors to determine voluntariness:

(1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. All six factors are relevant, but no single one is dispositive or controlling.

Id. (quoting United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)). Third, the government must show that the search was within the scope of the consent. Id. (internal citations omitted). Scope of consent is governed by objective reasonableness: "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). The question of objective reasonableness is a question of law that we review de novo, although factual findings explicit in a district court's reasonableness decision are reviewed for clear error. United States v. Ibarra, 965 F.2d 1354, 1356-57, 1360 (5th Cir. 1992) (en banc); see also United States v. Harrison, 918 F.2d 469, 473 (5th Cir. 1990), and United States v. Tedford, 875 F.2d 446, 448-49 (5th Cir. 1989).

Only voluntariness and scope of consent are at issue in this appeal. In United States v. Watson, 273 F.3d 599 (5th Cir. 2001), the court held that, "[i]t is not enough to show the mere existence of consent; the government also must show that 'consent was freely and voluntarily given.'" Id. at 604 (quoting United States v. Ponce, 8 F.3d 989, 997 (5th Cir.1993)). The district court in Watson conflated the question of voluntariness with that of the mere existence of consent and failed to apply the six factor test. Id. As a result, we vacated the conviction and remanded the case in order for the district court "to consider the evidence pertaining to each of the six factors and weigh them against each other." Id.

Similarly in this case, the district court devotes no analysis to the voluntariness of Dowling's consent. Having considered the full record ourselves, we perceive that a predominance of relevant factors implies voluntariness. Dowling agreed when his counsel asked him on direct examination whether he "understood that [he] didn't have to let [the police]" look in his pockets. Furthermore, Dowling's assent, coupled with his furtive movements throughout the traffic stop, strongly indicate that he was hopeful that the bag in his pants might not be found. Finally, Dowling was blunt with his own testimony that as a previously convicted felon, he knew his rights, especially his right to refuse consent and to refuse to speak to police. On the other hand, Dowling was not cooperating with repeated police warnings to stop making hand gestures towards his pants. And, as our COA identified, the district court never examined the impact of Dowling's being handcuffed prior to the search of his person on the voluntariness of his confession. Third, trial counsel for Dowling cross-examined each officer to confirm that no one told Dowling he could refuse consent to search. Finally, a careful review of all the police testimony suggests that the unbuckling of Dowling's pants may not have been coterminous with the consent search of his pockets but may instead have been a pat-down triggered by more threatening hand movements towards his waist even while handcuffed and even after being told to stop.

Permalink 11:15:58 am, by fourth, 448 words, 515 views   English (US)
Categories: General

E.D.Wis.: Belize search warrant executed in Belize was not a “joint venture” even though U.S. officers there

Defendant’s hotel room and thumb drive were searched in Belize with a Belize search warrant which was lawful under Belize law. The fact U.S. Embassy officials passed the information on to Belize officials who got the warrant and executed it and the U.S. officials were there and watched did not make it a U.S. search governed by the Fourth Amendment. The fact a U.S. official interrogated defendant did not change the result. United States v. Flath, 845 F. Supp. 2d 951 (E.D. Wis. 2012) (posted here)*:

Generally, Fourth Amendment principles do not apply to searches by foreign authorities in their own countries, even if the targets of the search are American citizens. United States v. Stokes, 710 F.Supp.2d 689, 697 (N.D. Ill. 2009) (citing United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987)). An exception occurs, however, when the participation of United States agents in the investigation is so substantial that the action is a joint venture between the United States and foreign officials. Id. (citing United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995)). In other words, the court must ask whether the level of involvement of the United States government agents was sufficient enough for them to be considered participants in the actions of the foreign police. United States v. Marzano, 537 F.2d 257, 270 (7th Cir. 1976). It is well-settled that providing information to foreign authorities does not transform a subsequent search by foreign officials into a joint venture. Id. at 270-71. Likewise, the mere presence of United States officials during a search is not sufficient to make the officials participants. Id.

In this case, the U.S. officials, though present at the search of Flath's residence and at the Inn, did not actively participate in the actual search of defendant's property. Instead, Belizean officers obtained and executed the warrant. Even though the warrant was supported by information gathered and provided by the United States officials, that provision of information is clearly insufficient. Moreover, like the Magistrate, this court finds that the interrogation of Flath by a U.S. officer is quite distinct from the actual search of his residence and the Inn. Thus, the fact that the U.S. officer's interrogation could be categorized as substantial has no bearing on this court's inquiry into whether the U.S. officers' participation in the search was substantial. Accordingly, the court finds that the facts of this case do not support a finding that the United States officers' actions in the search were so substantial as to be considered participants in the search. In turn, the search of defendant's Belizean residence and the Inn does not implicate Fourth Amendment protections, and, therefore, the court will deny Flath's motion to suppress.

Permalink 11:04:55 am, by fourth, 107 words, 472 views   English (US)
Categories: General

CA2: Parolee's arrest did not elevate his status to non-parolee for Fourth Amendment purposes

The district court granted suppression in a parole search case where the parole officer received a complaint that defendant had fired a gun at a complainant. Under New York law, defendant consented to a parole search by accepting parole. His arrest did not elevate him to the status of a non-parolee subject to greater Fourth Amendment protection. The parole officer was still entitled to search the defendant's property. Suppression reversed. United States v. Barner, 666 F.3d 79 (2d Cir. 2012).*

Where statements were made two months after the allegedly illegal search, the statements were clearly attenuated from the allegedly illegal search. United States v. Bergin, 455 Fed. Appx. 908 (11th Cir. 2012).*

01/16/12

Permalink 02:25:54 pm, by fourth, 37 words, 512 views   English (US)
Categories: General

Daily Herald: "Man wants a job with FBI, instead gets 80 months in jail"

Daily Herald: Man wants a job with FBI, instead gets 80 months in jail by Harry Hitzeman. He admits to having child pornography on his computer after the polygraph and then consents to a search of his computer.

Permalink 02:23:25 pm, by fourth, 197 words, 445 views   English (US)
Categories: General

WebProNews: "Private Company Amassing Database of License Plate Data"

WebProNews: Private Company Amassing Database of License Plate Data | No doubt the precogs have already seen this by Mike Tuttle:

Back in November, Josh Wolford opened quite a discussion about the rising prevalence of license plate readers in law enforcement. These scanning devices read license plates quickly and compile data to help track movements, reveal stolen vehicles, etc.

Some have expressed concern that such ubiquitous tracking of license plates is a violation of the Fourth Amendment to the U.S. Constitution, which protects citizens against unreasonable search and seizure and outlines the necessity of warrants in searches.

. . .

The great concern that some have now is that data from these scans is now being compiled. They fear that profiles can be built to construct a data “picture” of a person’s movements. Over time, that kind of tracking can yield quite a profile on a person in terms of personal habits and proclivities. And, if your cameras are concentrated thickly enough in an area (Washington, DC has one reader per square mile, so far) that picture gains definition quickly. With enough info, it is almost as unbroken a stream of info as a GPS tracking device would provide.

Permalink 12:47:42 pm, by fourth, 345 words, 771 views   English (US)
Categories: General

YouTube: "MELTDOWN! Cop Flips Out When Told He Can't Search Car Without Warrant"

YouTube: MELTDOWN! Cop Flips Out When Told He Can't Search Car Without Warrant:

Cop: Everything came back OK on your driver’s license. I did notice you got arrest there about six months ago for minor in possession of marijuana

Man in car: I [took it] for somebody else, my buddy, my buddy [inaudible].

Cop: I gothca. I’ll tell you what. I’m not going to write you a ticket for speeding. I’m going to cut you free on that. Before you take off, you mine if I take a look through your car for any narcotics or anything like that?

Man in car: Not without a warrant, man

Cop: Pardon?

Man in car: Not without a warrant.

Cop: You’re not going to let me look in your car without a warrant.

Man in car: No, not without a warrant.

Cop. [Sighs] Well OK. I guess that’s OK. I guess that’s just fine actually. That’ll be fine. That’ll just be fucking fine buddy! You don’t like you, you take your shit and get back to fucking Charleston! You don’t fucking come back here, you understand? You understand me, motherfucker? Fuck you! [Walks away, turns and flips the bird:] Fuck you! [Gets in car]

Man in car: What the fuck did you say? [Asked about license, too]

Cop: [Gets out of car] Get your fucking license and get out of here motherfucker! Fuck you! [Gets back to car and PA is on:] Cocksucker! [Inaudible] Goddamn motherfucker!

I would think that most people would think they'd get the same response for refusing a consent search of their car. You can almost hear the cop going through a mental checklist trying to figure out it he can search the car without a warrant. A better is question is: how did this video get from the police department to YouTube? It was posted January 10th by a marijuana legalization group and has a quarter of a million hits today.

I've since been told this is a spoof by two cops.

Permalink 12:12:20 am, by fourth, 321 words, 569 views   English (US)
Categories: General

ND almost holds searches as a condition of pretrial release violate Fourth Amendment

State criminal rule 46 which has a catch-all “imposing any other conditions reasonably necessary to assure appearance as required, including a condition requiring the return of the person to custody after a specified time of day” does not, at least on this record, permit warrantless searches of defendant’s home or person [except maybe for urine testing which was not argued] as a condition of pretrial release because of the presumption of innocence, at least without some findings that it is required to assure appearance in court as directed. Here it was imposed without findings and was an abuse of discretion. State v. Hayes, 2012 ND 9, 809 N.W.2d 309 (2012). [Note: The court didn’t quite hold that warrantless searches of the home are an unreasonable condition of pretrial release because it apparently felt it couldn’t go that far. But, how can a court ever logically hold after a hearing that a search of the defendant's home is necessary to show his or her appearance in court? Nevertheless, I can’t see how it can be anything but a violation of the Fourth Amendment, absent the super-rare case where it could conceivably be shown by the government, but, in such a case, wouldn't the defendant already be detained? The state's attempting to base the searches on the law of probationers and parolees is grasping at straws because they are based on a conviction, and pretrial detainees are subject to a probable cause finding with the arrest warrant and indictment or information. Then there are those on both pretrial release and probation who would still be subject to valid probation searches.]

A Virginia mine sued the state mining inspectors for pursuing anonymous complaints for inspections of the mine that led to numerous safety citations. The Virginia mining inspection statute satisfied the Burger standard and the Fourth Amendment. Thus, qualified immunity isn’t even an issue. Lesueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261 (4th Cir. 2012).

Permalink 12:03:49 am, by fourth, 365 words, 521 views   English (US)
Categories: General

AK rejects Brigham City under state constitution

Alaska rejects Brigham City emergency exception under state constitution in favor of the rule adopted by its court of appeals in 1982's Gallmeyer and New York's 1976 Mitchell. Nevertheless, this entry was valid under the state constitution. State v. Gibson, 267 P.3d 645 (Alas. 2012):

In this appeal we consider the long-standing emergency aid exception to the general requirement that a search warrant be obtained prior to police entry into a residence. Today we establish that the Alaska Constitution's standards for justifying the doctrine's application go beyond those required by the United States Constitution, and we adopt the standards our court of appeals first implemented in Gallmeyer v. State. We then consider whether the court of appeals correctly applied the doctrine when it reversed the trial court's ruling that the doctrine excused the warrantless police entry in this case. Because the police had a reasonable belief of an emergency justifying a warrantless entry into the residence, we conclude the court of appeals did not and we reverse its decision.

. . .

We conclude the Alaska Constitution article I, sections 14 and 22, affords greater protection against warrantless searches and seizures in the emergency aid context than the United States Constitution and the Alaska Constitution prior to the enactment of section 22. Although the State accurately observes that article I, section 22, does not create an independent ground for suppressing evidence, Alaska courts have used section 22's right to privacy to give section 14's protection against unreasonable searches and seizures "a liberal interpretation." Alaskans' heightened right to privacy is safeguarded by requiring the State to meet all three Mitchell test prongs when seeking to justify a warrantless search under the emergency aid exception. We therefore hold the Alaska Constitution requires that warrantless searches under the emergency aid doctrine satisfy all three Mitchell test prongs specified in Gallmeyer: (1) the police must have reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance in the protection of life or property; (2) the search must not be primarily motivated by the intent to arrest a person or to seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

01/15/12

Permalink 11:08:11 am, by fourth, 165 words, 725 views   English (US)
Categories: General

CA4: Seven cars outside house on arrest justified a protective sweep

The fact there were seven cars parked outside defendants’ property justified a protective sweep when there was an arrest of two on the property. United States v. Jones, 667 F.3d 477 (4th Cir. 2012).*

Plaintiffs are California Sexual Violent Predators who sued their keepers with a Fourth Amendment claim that alleged that defendants' policies, practices and customs subjected plaintiffs to unreasonable searches, searches as a form of punishment, degrading public strip searches, improper seizures of personal belongings, and the use of unreasonable force and physical restraints. But there was no allegation of a specific policy implemented by defendants or a specific event or events instigated by defendants that led to these purportedly unconstitutional searches, so the district court properly granted judgment for defendants. Hydrick v. Hunter, 669 F.3d 937 (9th Cir. 2012).*

A juvenile hanging around in the backyard of an abandoned house was reasonable suspicion of a trespass. As the officers approached, he abandoned a handgun. State in Interest of P.L., 81 So. 3d 983 (La. App. 4th Cir. 2012).*

Permalink 10:37:25 am, by fourth, 237 words, 484 views   English (US)
Categories: General

D.Nev.: On remand from USDJ, USMJ finds no RS for stop

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

Permalink 10:28:12 am, by fourth, 384 words, 467 views   English (US)
Categories: General

S.D.Ohio: Stop outside AFB was without RS

Defendant approached a closed gate of Wright Patterson Air Force Base and started to make a U-turn when he was stopped by air base security officers. After the stop, they learned he was driving on a suspended license (for which he was cited and released). Nevertheless, the motion to suppress is granted. United States v. Adams, 2012 U.S. Dist. LEXIS 4048 (S.D. Ohio January 12, 2012)*:

Although this Court fully understands Sedon's sincere testimony regarding his duty as a law enforcement officer to keep WPAFB safe, there was no testimony elicited at the suppression hearing to indicate Sedon believed the vehicle being driven by Adams was being operated in an unsafe manner. Sedon never testified that he witnessed the vehicle swerve or otherwise move erratically, impede traffic in any way, or that he believed the driver may be having a medical emergency, falling asleep, or under the influence of alcohol or drugs. In fact, Sedon very clearly testified that he did not witness any traffic violations committed by Adams before initiating the traffic stop.

In addition, while it is understandable that a heightened level of security may exist around a military base, the vehicle's movements, as well as the actions of its occupants, did not provide a reasonable basis for Sedon to believe Adams or his passenger were, or were about to be, engaged in any sort of criminal activity. For example, Sedon did not testify the vehicle attempted to evade him, was previously witnessed in the area, or had otherwise appeared to be taking photographs of the base or involved in some type of surveillance. Sedon also did not testify that any intelligence or other reason existed to believe the type of vehicle, or the occupants therein, posed a specific security threat or concern to WPAFB. In addition, when the vehicle pulled up to Gate 1A, which closed at 6 p.m., none of the occupants emerged from the vehicle, nor did the vehicle stay there for any longer than would have been necessary to switch gears and complete a u-turn. Likewise, because the gate was closed and no guards were present, it is clear that Adams did not make the u-turn in front of the gate as a way to avoid the need to identify himself to, or otherwise have contact with, law enforcement personnel.

Permalink 10:00:35 am, by fourth, 145 words, 602 views   English (US)
Categories: General

NPR: "Drones: Coming Soon to a Sky Near You?"

NPR: Drones: Coming Soon to a Sky Near You? On the Media:

The Federal Aviation Administration is preparing to announce new regulations for small camera-equipped drones, versions of which you can already buy at your local mall. Lots of people are eager to hear the FAA's decision, from energy execs and environmentalists to police and protesters. Brooke talks to Matt Waite, founder of U. Nebraska's Drone Journalism Lab, about some of the 'cool' and 'creepy' ramifications of drone technology. Also, check out this blog post for some cool examples of journalistic drones in action.

I'm on a Tea Party list serv that had drones and posse comitatus as its weekly outrage that selling police military style drones violated the law. They chose to put their head in the sand about raw capitalism making drones available to anybody. See posts here, here, and here about drones.

01/14/12

Permalink 09:05:31 am, by fourth, 166 words, 526 views   English (US)
Categories: General

FL4: No REP in desk shared with coworkers

Defendant was fired from his job and the manager consented to a search of the desk he used that was shared with others. There was no lock on the desk. Kelly v. State, 77 So. 3d 818 (Fla. App. 4th DCA 2012).

Defendant did not show that his stop was unreasonably prolonged for consent. Sims v. State, 313 Ga. App. 544, 722 S.E.2d 145 (2012)* [Note: This opinion is badly written and comes dangerously close to putting the burden on the defendant to show a warrantless detention was unreasonable.]

The search of defendant’s car was shown to be by consent, and the court does not accept that the atmosphere was generally coercive. Berry v. State, 2012 Ga. App. LEXIS 13 (January 12, 2012).*

At least in the Sixth Circuit, municipal ordinances are subject to judicial notice, and the government didn’t have to prove it as cause for a stop. There was cause to believe defendant violated a municipal ordinance for his stop. United States v. Alexander, 467 Fed. Appx. 355, 2012 FED App. 0025N (6th Cir. 2012) (unpublished).*

Permalink 08:36:26 am, by fourth, 313 words, 616 views   English (US)
Categories: General

WA: No clear authority on community caretaker entry of home for § 1983 case so officers have qualified immunity

The entry into plaintiff’s home under the community caretaking function to retrieve weapons was not clearly unconstitutional, so the officers have qualified immunity. SCOTUS has yet to speak to it. Feis v. King County Sheriff’s Dep’t, 165 Wn. App. 525, 267 P.3d 1022 (2011)*:

¶32 At the time of Feis's arrest, the question of whether community caretaking could justify a warrantless entry of Feis's home under the circumstances attendant to this particular type of domestic dispute was not clearly established beyond debate. “Where no controlling authority specifically prohibits a defendant's conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established.” Morgan, 659 F.3d at 372 (citing Wilson v. Layne, 526 U.S. 603, 617-18, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999)). Since Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), wherein the Court foreshadowed the current uncertainty regarding community caretaking by discussing the “constitutional difference” between vehicles and houses, the Supreme Court has not elaborated on whether or when the community caretaking exception may justify warrantless entry into a home. Cady, 413 U.S. at 441; see United States v. Gillespie, 332 F. Supp. 2d 923, 929 (W.D. Va. 2004). As a result, the federal circuits are not in agreement on the precise contours of the community caretaking exception. See Ray v. Township of Warren, 626 F.3d 170, 175-76 (3rd Cir. 2010) (“There is some confusion among the circuits as to whether the community caretaking exception set forth in Cady applies to warrantless searches of the home.”). Some federal courts condone resort to the community caretaking exception as an independent justification for a warrantless search of a private residence, while others do not. Because the extent, scope, and applicability of the community caretaking doctrine itself was not settled at the time of the search of Feis's home, the law was certainly not clearly established such that the deputies' actions here were unlawful beyond debate.

Permalink 08:27:51 am, by fourth, 312 words, 520 views   English (US)
Categories: General

D.Minn.: No REP in an apparent abandoned refrigator in an open field

While defendant had permission to use an open field by a relative, that did not give him a reasonable expectation of privacy in what was nothing more than an abandoned refrigerator containing some drugs. United States v. Douglas, 2012 U.S. Dist. LEXIS 3673 (D. Minn. January 11, 2012)*:

As [U.S.M.] Judge Brisbois recognized, the most closely analogous precedent in the Eighth Circuit is United States v. Stallings, 28 F.3d 58 (8th Cir. 1994). In Stallings, the Eighth Circuit found that the defendant (Stallings) did not have a subjective expectation of privacy in a tote bag that he had left in the underbrush of a field belonging to his neighbor. Stallings, 28 F.3d at 59-61. The Eighth Circuit emphasized that the tote bag "bore no indicia of ownership indicating it belonged to Stallings," id. at 61 n.4, and, moreover, that Stallings had "put on no evidence of his possession or control of the bag, his historical use of the tote bag, or his ability or attempts to regulate access to it." Id. at 60-61. The Eighth Circuit further observed that, even if Stallings had a subjective expectation of privacy, it would not have been a reasonable expectation because Stallings, by leaving the bag in an open field unattended, had no means of restricting access to the bag. Id. at 61 ("[A]ny expectation of privacy Stallings had is not objectively reasonable ... because 'animals, children, scavengers, snoops, and other members of the public' had access to the tote bag.") (quoting California v. Greenwood, 486 U.S. 35, 40 (1988)).

Police received a suspicious vehicle report from a McDonald’s near an interstate that had been robbed before. They found two people asleep who gave nonsensical explanations and the license of the vehicle did not exist. It all added up to reasonable suspicion. The request for consent and giving it was valid. United States v. Espinal, 2011 U.S. Dist. LEXIS 151179 (N.D. Ga. August 29, 2011).*

01/13/12

Permalink 07:40:33 am, by fourth, 496 words, 550 views   English (US)
Categories: General

CA8: Six year old information for CP was still PC (staleness not mentioned)

Defendant engaged in an email exchange with the mother of his niece who was posing as the niece to talk about his molesting her six years earlier in Wisconsin, which he essentially admitted, along with having child pornography on his computer. A USMJ in South Dakota issued a search warrant for defendant’s computers in Wisconsin. After they were seized, another was issued in South Dakota to search them. There was probable cause and the good faith exception would support the warrant. The legality of the interstate warrant does not need to be decided. United States v. Houston, 665 F.3d 991 (8th Cir. 2012)*:

Here, Shawback, based on her experience, discerned a connection between child molestation and possession of child pornography. She conveyed this experience in her affidavit along with evidence that Houston acknowledged that he possessed a computer disk, a disk which one may infer likely contained child nudity and potentially pornography, based on the context of his email admission, that he took with him to Wisconsin when he molested E.L.. Based on Shawback's affidavit, a Wisconsin judge issued a warrant to search Houston's computers for child pornography. With this search warrant in hand, Shawback searched his computers and found child pornography. Under these facts, by excluding this evidence, we would be "[p]enalizing the officer for the magistrate's error, rather than [her] own, [which] cannot logically contribute to the deterrence of Fourth Amendment violations." Leon, 468 U.S. at 921.

Houston further argues that, in light of the fact that the issuing judge limited Warrant #2's applicability to violations of Wisconsin statutes the Leon good-faith exception does not apply because no officer could reasonably believe that the computers seized in South Dakota would contain any evidence of a six-year-old violation of a Wisconsin statute. This argument presupposes that an officer would know the legal and jurisdictional limits of a judge's power to issue interstate search warrants as well as statutory limitation periods for prosecutors. We decline to impose such a duty on officers exercising a search warrant obtained without deceit. "'[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.'" Id. (quoting Stone v. Powell, 428 U.S. 465, 498 (1976) (Burger, C.J., concurring)). After all, "[i]t is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment." Id. "In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient." Id. Here, Shawback searched Houston's computers in Wisconsin for evidence of child pornography pursuant to a search warrant. Under these facts, we cannot say that the warrant was "'so facially deficient' that no police officer could reasonably presume the warrant to be valid." Proell, 485 F.3d at 431 (internal quotations omitted). Thus, we find that Shawback conducted the search in good faith.

Permalink 07:28:51 am, by fourth, 337 words, 551 views   English (US)
Categories: General

N.D.Okla.: A knock and talk does not require reasonable suspicion

A knock and talk does not require reasonable suspicion. United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006). Entry by a way open to the public was authorized. United States v. Shuck, 2012 U.S. Dist. LEXIS 2521 (N.D. Okla. January 9, 2012).*

911 call that there was a fight outside at a boys club sent officers who found apparently it across the street. When defendant tried to drive off after he was told to stop officers had reasonable suspicion. United States v. Hightower, 2012 U.S. Dist. LEXIS 3334 (W.D. Ark. January 11, 2012)*:

The officers in this case were initially dispatched to the Boys' Club based on a call that officers were needed there. The officers determined that there was no disturbance at the Boys' Club and made the reasonable assumption that the hang-up call was made concerning a group of people who appeared to be arguing across the street. Since hang-up calls are treated as emergency calls by the Paris Police Department, the officers made the reasonable decision to cross the street to the apartment complex and investigate what was happening. Both Officer Haney and Chief O'Brien testified that people in the group were posturing as if they were about to, or had already been, fighting. O'Brien also testified that he heard raised voices and unsavory language. Both officers testified that the Paris Police Department had often received calls regarding fights or other criminal activity from that apartment complex on prior occasions. As the officers approached the group, the Group dispersed. The officers stopped several people for questioning, including Defendant, who attempted to drive off in his car. From the officers' perspective, Defendant ignored repeated orders to stop, and continued to attempt to flee.

Isn’t this cart before the horse? The court doesn’t come right out and say that there was reasonable suspicion for the stop before the defendant tried to leave, but trying to leave was an act supporting reasonable suspicion. Therefore, there had to be reasonable suspicion before the stop, but the court doesn’t quite articulate it.

Permalink 07:17:38 am, by fourth, 244 words, 532 views   English (US)
Categories: General

E.D.N.C.: No REP when sitting on front porch from what can be seen

There is no reasonable expectation of privacy when sitting on one’s porch with a visible gun. United States v. Locklear, 2012 U.S. Dist. LEXIS 3295 (E.D. N.C. January 11, 2012)*:

Here, the court finds that Locklear did not manifest a reasonable expectation of privacy when he visibly possessed a gun while sitting on the front porch of his house. It appears that the front yard of Locklear's residence is not surrounded by any physical barriers, such as fences, nor are there signs such as "No Trespassing" or "Private Property" which would indicate some reasonable expectation of privacy. The front porch was also not enclosed with any impediments that would either block its view nor would preclude the casual visitor from entering the area. In fact, a visitor would have to enter the front porch to even arrive at the front entrance of Locklear's home. Ultimately, the front yard and the front porch was as open to the police officer as to any delivery person, guest, other members of the neighborhood, or the general public and no evidence has been provided to contrary. As Locklear was in an area that was open and exposed to public view, it appears that he lacked the requisite reasonable expectation of privacy to trigger the protection of the Fourth Amendment. Accordingly, the court finds that the police officer's action of entering Locklear's front yard and front porch did not amount to a "search" as contemplated by the Fourth Amendment.

Permalink 07:12:32 am, by fourth, 231 words, 643 views   English (US)
Categories: General

CA10: No REP in rented hanger; 70% dog reliability enough for PC

A rented airplane hanger cannot be compared to a hotel room for purposes of determining a reasonable expectation of privacy. The hanger was shared with others and the owner had the ability to admit others. The fact the drug dog was only 70% reliable did not undermine probable cause. United States v. Ruiz, 664 F.3d 833 (10th Cir. 2012) (unpublished):

Finally, Mr. Ruiz cites two cases involving parking lots which, he claims, support his argument that he had a legitimate expectation of privacy in the hangar. In United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1993), we held that a defendant had no reasonable expectation of privacy in a motel parking lot that "was open and visible from the public roads bordering it," where the defendant "produced no evidence that the lot was fenced, that a gate prevented unauthorized entry, or even that signs restricted entry to the parking lot." Id. at 1526. The parking lot was patrolled by law enforcement officers and drug dogs with permission from the motel manager. Id. at 1525. Ludwig is of no help to Mr. Ruiz. There, as here, police were present with the owner's permission. Id. The mere fact that the defendant in Ludwig lacked a legitimate expectation of privacy in an unfenced, open parking lot does not imply that Mr. Ruiz had a privacy interest in a fenced hangar that he shared with the hangar's owner and other customers.

01/12/12

Permalink 07:56:07 am, by fourth, 109 words, 2865 views   English (US)
Categories: General

CA7: State court denial of motion to suppress precluded § 1983 suit over search

Plaintiff sued over his search in his criminal case, but the issue was appealed in the criminal case and thus precluded by the state court judgment, even if the appeal was pending under Wisconsin law. Wisconsin applies issue preclusion equitably, and there was no unfairness in applying it here. Kaprelian v. Bowers, 460 Fed. Appx. 597 (7th Cir. 2012).*

A hand-to-hand transaction on the street from a small plastic bag was probable cause to believe a drug deal occurred. United States v. Roland, 2012 U.S. Dist. LEXIS 2899 (S.D. N.Y. January 10, 2012).*

Protective sweep during an immigration knock-and-talk was valid. United States v. Crisolis-Gonzalez, 2011 U.S. Dist. LEXIS 151037 (W.D. Mo. December 20, 2011).*

Permalink 07:23:27 am, by fourth, 335 words, 2815 views   English (US)
Categories: General

D.Minn.: Removing cover from cell phone in jail property room to get FCC ID was reasonable as jail search

Removing the back cover from a cell phone to get its FCC ID number was reasonable where the telephone was in defendant’s property at the jail. He also did not have standing in the search of the car because he was a mere passenger and nothing of his was searched. His duffle bag was moved, but not searched [as in Bond]. United States v. Rodriguez, 2012 U.S. Dist. LEXIS 3157 (D. Minn. January 10, 2012)*:

Following Rodriguez’s arrest on January 29, 2011, police took and inventoried his property, including the phone. Two days later, following the search of Daniel Rodriguez’s car, a law enforcement agent retrieved Justin Rodriguez’s cell phone from the jail and removed the back cover to obtain the FCC ID number. Because the cell phone was held by police in connection with an undisputedly lawful arrest, Rodriguez had no reasonable expectation of privacy in the phone. See Lester, 647 F.2d at 874-75 (noting Supreme Court’s approval of warrantless search of an accused’s effects at the stationhouse well after the time of the arrest). The inspection of his phone was therefore proper. See id.

Rodriguez’s objection that removal of the cover from the phone is akin to a closed container search requiring a warrant, see United States v. Chadwick, 433 U.S. 1, 10-11 (1977) (discussing closed containers), would be relevant if the phone were not already in police custody pursuant to a lawful arrest. It is true that the constitutional protection against unlawful searches and seizures applies regardless of how brief the unlawful intrusion: that the removal of the battery was “brief” would not render an otherwise unlawful search lawful. But the duration of the search is irrelevant here because Rodriguez’s property was already subject to search by virtue of its being held pursuant to a lawful arrest. See Lester, 647 F.2d at 874-75. Because the Court finds the inspection of Rodriguez's phone to be proper, it follows that the inspection offers no basis on which to invalidate the later-obtained search warrant.

Permalink 07:08:26 am, by fourth, 138 words, 2842 views   English (US)
Categories: General

W.D.Mo.: Entry by warrant or consent is not required for a valid protective sweep under Buie

Entry by warrant or consent is not required for a valid protective sweep under Buie. All that is required is the officer lawfully be on the premises. United States v. Crisolis-Gonzalez, 2012 U.S. Dist. LEXIS 2568 (W.D. Mo. January 10, 2012).*

Defendant’s consent argument was off the mark: “Crawford, largely ignoring the well-established vehicle exception to the warrant requirement, insists that the law enforcement officers were required to obtain his consent to search the vehicle. Crawford’s motion to suppress fails for three reasons: 1) probable cause to search the vehicle; 2) consent of the lien holder; and 3) independent knowledge.” United States v. Crawford, 2012 U.S. Dist. LEXIS 2336 (N.D. Ohio January 9, 2012).*

Since the search incident in this case was four years before Gant, Gant doesn’t even apply. United States v. Schuttpelz, 467 Fed. Appx. 349, 2012 FED App. 0023N (6th Cir. 2012) (unpublished).*

Permalink 06:59:27 am, by fourth, 261 words, 2813 views   English (US)
Categories: General

D.Me.: Just being a driver of a vehicle doesn't guarantee standing

Just being the driver of a vehicle doesn’t automatically give one standing to challenge its search–more is required to be shown. United States v. Almeida, 2012 U.S. Dist. LEXIS 2415 (D. Me. January 9, 2012)*:

At hearing, Almeida’s counsel argued that his client had a reasonable expectation of privacy in the Silverado because, when Drouin first stopped the vehicle, Almeida was driving it and, as a result, was in exclusive control of it. However, “First Circuit precedent reflects that, in general, ‘standing’ does not exist to challenge a search of a vehicle when the defendant neither owns nor is in possession of the vehicle in question.” United States v. Paquette, No. CRIM 04-10BW, 2005 WL 850847, at *2 (D. Me. Apr. 12, 2005) (rec. dec., aff’d May 2, 2005) (footnote and citation omitted). As counsel for the government suggested at hearing, the mere fact that Almeida was driving the vehicle during the initial traffic stop is insufficient to confer “standing” to challenge its search, particularly in circumstances in which Martin was found driving it a short time later. See, e.g., id. at *2-*3 (defendant lacked standing to challenge search of vehicle’s trunk when he was neither the owner nor the individual in exclusive possession of the vehicle; conceivably, he might have been able to establish both “historical use” of the vehicle and that he was able to “regulate access” to it given that vehicle had served as his conveyance for a period of weeks, but on record before court, he lacked “standing” to challenge the constitutionality of search of vehicle) (internal quotation marks omitted).

Permalink 05:55:31 am, by fourth, 153 words, 2821 views   English (US)
Categories: General

WaPo and NPR on attacks on privacy from smartphones and social media

WaPo: CES 2012: Smart appliances can cause privacy concerns (3:30):

Privacy expert Jules Polonetsky and The Washington Post's Cecilia Kang discuss the myriad privacy issues that come with the new trend of smart and connected appliances.

NPR: "I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy" (Diane Rehm Show, one hour):

Social networks have empowered us and connected us to people around the world. In the last year, they have even been credited with fostering democracies. But they have also eroded our personal privacy and made us more vulnerable. Data aggregator services use our on line activity to compile an astonishing amount of information on us and sell it to others. Potential employers and colleges judge candidates in part by their social network pages. The law has not yet caught up with the technology. Diane and her guests discuss protecting our privacy in the digital age.

01/11/12

Permalink 09:00:25 am, by fourth, 226 words, 2793 views   English (US)
Categories: General

S.D.W.Va.: Independent source of warrant separate from illegal entry made evidence admissible

Officers seized defendant’s luggage out of his hotel room but didn’t open it until a search warrant was produced. Another officer left to get the warrant before the entry occurred. Nothing in the warrant application mentioned the entry, and the independent source doctrine of Murray makes it admissible. United States v. Manuel, 2012 U.S. Dist. LEXIS 2704 (S.D. W.Va. January 10, 2012)*:

Assuming that is when the officers reentered the room and began the search, it had absolutely no role in Corporal Hunter applying for and receiving the warrant. The warrant he obtained was completely and genuinely independent of anything produced by illegal search conducted by the officers at the scene after he left. Thus, any evidence seized prior to the time Corporal Hunter phoned to tell officers at the scene that he had the warrant, including the luggage and its contents, would have been inevitably discovered when officers searched pursuant to the warrant. Although the Court is not pleased with the manner in which this search may have occurred and cautions officers that in future cases the independent source doctrine may not be so clear cut, the Court finds the facts of this case fall within the doctrine and the evidence ultimately would have been discovered after the warrant was issued. Therefore, the Court finds the evidence taken from the hotel room is admissible.

Permalink 08:40:58 am, by fourth, 267 words, 2761 views   English (US)
Categories: General

M.D.La.: Finding gun right away in a SW for a gun did not require the officers to stop looking for guns

Officers had a search warrant for a gun, and, as soon as they entered, they found a gun in plain view. They did not have to believe that gun was one sought, and they could keep looking in hiding places. In the course of searching for more guns, they validly found drugs. United States v. Lasyone, 2012 U.S. Dist. LEXIS 2576 (M.D. La. January 10, 2012)*:

Moreover, in addition to the Court's finding that the narcotics were lawfully seized pursuant to the plain view doctrine, the Court also finds that the narcotics were lawfully seized in the course of the officers' execution of the search warrant. As mentioned supra, the Court heard testimony from Officer Morris, the commander of the operation, who testified that he has over twenty years of experience in his field, and, as part of his training and experience, knows that firearms and other contraband are oftentimes intentionally hidden from the naked eye. He further testified that, although there were several firearms that were in plain view on the counter top (including the one later determined to have been the firearm described in the search warrant), the search warrant did not include a serial number for the firearm at issue, and, therefore, the officers conducting the search did not know with absolute certainty that the firearm they retrieved was the same one described in the search warrant. ... [¶] The Court agrees and finds that the officer's act of opening of the garbage bag and the lunch box during their search for the firearm described in the warrant was within the scope of the warrant, and, thus, constitutional.

Permalink 08:28:06 am, by fourth, 162 words, 544 views   English (US)
Categories: General

S.D.Fla.: Lawyered up defendant still consented to search

Defendant lawyered up in the police station, but the officer kept on pressing for a DNA sample, which defendant voluntarily provided. United States v. Davis, 2012 U.S. Dist. LEXIS 2377 (S.D. Fla. January 9, 2012), R&R 2011 U.S. Dist. LEXIS 150909 (S.D. Fla. September 30, 2011):

The Court finds that despite the officers' continued questioning and requests for a DNA sample after Davis invoked his right to an attorney, the totality of the circumstances outlined above – including the Magistrate Judge's credibility determinations regarding the testimony of Davis and the forensic psychologist and the lack of any threats by law enforcement – show that Davis voluntarily provided his consent to the search.

When officers knocked at the screen door, defendant’s father told them to come in, and that was consent to enter. It doesn’t matter that the officer opened the screen door. Once inside, he consented to a “quick search” of the premises. United States v. Downwind, 2011 U.S. Dist. LEXIS 150963 (D. Minn. October 24, 2011).*

Permalink 08:09:39 am, by fourth, 215 words, 582 views   English (US)
Categories: General

CA9: Child porn supervised release condition of searches of computers connected to internet valid

In a child porn case, it was hardly an abuse of discretion to condition supervised release on searches of computers connected to the internet. United States v. Grigsby, 2012 U.S. App. LEXIS 412 (9th Cir. January 9, 2012) (unpublished):

The district court did not abuse its discretion by imposing a condition of supervised release pursuant to 18 U.S.C. § 3583(d) requiring that Grigsby submit to searches and seizures of computers and related devices. “Subjecting computers and other devices able to access the Internet to monitoring, search and seizure is critical to preventing [Grigsby] from viewing or obtaining child pornography.” United States v. Goddard, 537 F.3d 1087, 1090 (9th Cir. 2008). This condition of supervised release is sufficiently narrow because it applies only to those devices connected to the Internet. See United States v. Quinzon, 643 F.3d 1266, 1272-74 (9th Cir. 2011) (analyzing an identically-worded condition of supervised release).

The encounter with defendant was voluntary and consensual, but there was more because defendant fit the description of a person in a conversion van whom a BBQ joint’s employees thought was casing the place to rob it. When the officer saw the van and the defendant he was the only person around and he was acting suspiciously. Finally, he fled when the questions got more pointed. United States v. Foskey, 455 Fed. Appx. 884 (11th Cir. 2012).*

Permalink 12:05:05 am, by fourth, 418 words, 591 views   English (US)
Categories: General

The Independent: "LAPD's sci-fi solution to real crime: Predicting where felons might strike is being made easier with a computer calculation"

The Independent: LAPD's sci-fi solution to real crime: Predicting where felons might strike is being made easier with a computer calculation by Guy Adams:

Sergeant John Gomperz slows his black-and-white patrol vehicle to a crawl as he enters the parking lot of one of the shopping malls that litter the Los Angeles northern suburbs. For the next 15 minutes, he drives up and down, past McDonald's, Taco Bell, and a row of fast-food outlets. Then he pauses at the entrance of the electronics store Best Buy, and scans the horizon.

We're looking for people he considers "suspicious". These include lone, predatory males; youths cruising around on bicycles; and anyone who happens to be sporting gangland tattoos. "I'm trying to be highly visible," he explains. "Just because we don't see them doesn't mean they can't see us."

Eventually, after smiling at a few shoppers, waving to a casual acquaintance, and making a final lap of the car-park, Gomperz looks at his watch, winds up the window, and drives off. Job done, he announces.

To a casual observer, it might seem a waste of a quarter of an hour of valuable police time. But the way the sergeant sees things, the long, slow tour of a seemingly normal parking lot is one of the most important things he's done all day.

That's how things roll in the brave new world of computerised "predictive policing", a hi-tech crime-busting technique which Gomperz is helping to pioneer and which, has the potential to revolutionise modern law enforcement.

. . .

It also has legal complications. Under the Fourth Amendment of the US Constitution, police officers are forbidden from stopping a suspect without "reasonable suspicion" that they are committing a crime. No one yet knows whether simply being in a geographic box identified by a computer programme represents reasonable suspicion.

"What happens if officers turn up at a 500ft x 500ft area, on the look out for burglaries, see a guy with a black bag, search him and find it contains stolen goods?" wonders Andrew Ferguson, an assistant professor of Law at the University of the District of Colombia. "If that case goes to court, there will be the question of whether it was reasonable for the officer to suspect he was committing a crime."

It is quite settled that being in a high-crime area is not reasonable sucision. Is Mr. Ferguson suggesting that a computer algorithm takes the place of the police officer's objective observations and can show reasonable suspicion from presence alone? I don't think so.

01/10/12

Permalink 10:57:17 am, by fourth, 369 words, 784 views   English (US)
Categories: General

IL: Lesser justification for anonymous tips in DUI cases is based on exigency and doesn't apply to parked cars

The relaxed justification for a stop of a DUI suspect on an anonymous tip is based on exigency. That standard was not satisfied here because a parked car is less exigent. Suppression affirmed. Defendant here was ratted out by a woman he had an argument with on a date. People v. Smulik, 964 N.E.2d 183, 2012 IL App (2d) 110110 (2012):

[**P11] We note that there is authority that the threat that intoxicated drivers pose to public safety justifies some relaxation of the corroboration requirement. See People v. Shafer, 372 Ill. App. 3d 1044, 1052-53 (2007). Courts taking this view have distinguished anonymous tips concerning drunk drivers from tips concerning individuals carrying weapons. In this regard, the Shafer court relied, in part, on Rutzinski, in which the Wisconsin Supreme Court cited the following passage from State v. Boyea, 765 A.2d 862 (Vt. 2000):

“‘In contrast to the report of an individual in possession of a gun *** an anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for prompt action. In the case of a concealed gun, the possession itself might be legal, and the police could, in any event, surreptitiously observe the individual for a reasonable period of time without running the risk of death or injury with every passing moment. An officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury. Indeed, a drunk driver is not at all unlike a “bomb,” and a mobile one at that.’” Rutzinski, 2011 WI 22, ¶ 35, 623 N.W.2d 516 (quoting Boyea, 765 A.2d at 867).

That reasoning does not apply here. Defendant's vehicle was not moving and Johnson could have attempted to initiate a consensual encounter in order to determine whether the tip relayed by the dispatcher was reliable. See generally People v. Luedemann, 222 Ill. 2d 530, 544 (2006). The urgency that would have existed if defendant's vehicle had been in motion was absent here.

Note to Illinois practitioners: Lexis's citation of the Illinois public domain citation in this case is incorrect. 2012 IL App (2d) 110110 means 2d Dist case number 11-0110. On the Illinois courts opinion page, this case is 2011 IL App (2d) 110110, not 2012, even though the case was decided in 2012. Go figure. Which is correct?

Permalink 10:31:54 am, by fourth, 224 words, 572 views   English (US)
Categories: General

IN: Mere presence in a high-crime area did not justify stop

Defendant was seen sitting in a car in a parking lot known for drug activity. He got out, put on a backpack, and got on a bicycle and rode around in the parking lot. The officer stopped him, and he got belligerent which led to his handcuffing for officer safety and a search of his backpack finding pirated DVDs. The stop and search were without reasonable suspicion. Woodson v. State, 960 N.E.2d 224 (Ind. App. 2012)*:

Officer Cooper testified here that he could not see any transaction between Woodson and the driver of the maroon car and there had been no report of criminal activity to which Officer Cooper was responding. Woodson did not attempt to flee the scene and hide or dump contraband upon completing a transaction and seeing a police officer approach in a high-crime area. See Ross v. State, 844 N.E.2d 537, 541-42 (Ind. Ct. App. 2006). Nor did Officer Cooper testify that in his training and experience Woodson's behavior was of a type frequently displayed by individuals dealing in pirated DVDs, drugs, or any other contraband. See Wilson v. State, 670 N.E.2d 27, 28-29 (Ind. Ct. App. 1996) (concluding there was reasonable suspicion to detain defendant where the arresting officer was in a high-crime and -drug area, was trained in the factors pointing to drug transactions, and observed conduct conforming to this pattern).

Permalink 10:14:13 am, by fourth, 248 words, 445 views   English (US)
Categories: General

CA4: False statements removed still left PC for search warrant

Removing the false information from the affidavit still left probable cause under Franks. United States v. Glisson, 460 Fed. Appx. 259 (4th Cir. 2012)*:

Although it is undisputed that the affidavit supporting the search warrant contained numerous false statements, the district court correctly found that after the false statements are removed from the affidavit the remaining information in the affidavit still “informs that a subject arrived to the hospital with a gunshot wound, that there were spent shell casings throughout the vehicle in which the subject arrived, and that there had been a shooting earlier in the day.” J.A. 240. In light of this, we agree with the district court that “there is a fair probability that contraband or evidence of a crime will be found in a vehicle which has blood, firearm shell casings, and an individual with a gunshot wound as its cargo.” J.A. 240. Therefore, we find that when the false information is excised from the affidavit, the remaining factual allegations are sufficient for a magistrate to find probable cause for a search warrant.

The officer had reasonable suspicion for stop of the driver of a parked tractor trailer with Florida parts after he saw it at a truck stop at 5 am with a covered vent hole suggesting a false compartment, the driver switched with the driver of a Ford Explorer, the truck was driven to rural property and parked, and the Ford driver was apparently doing counter surveillance. United States v. Gonzalez-Rodriguez, 456 Fed. Appx. 494 (5th Cir. 2012) (unpublished).*

Permalink 09:06:25 am, by fourth, 124 words, 626 views   English (US)
Categories: General

NYT: "T.S.A. Defends Cupcake Confiscation"

NYT: T.S.A. Defends Cupcake Confiscation:

The federal Transportation Security Administration is defending its decision to confiscate a frosted cupcake from a Massachusetts woman flying from Las Vegas. The agency said in a blog comment posted Monday that the cupcake had been packed in a jar filled with icing, considered a gel under a policy intended to secure travelers from terrorists seeking to evade detection by using explosives made of plastics, liquids or gels. The traveler, Rebecca Hains of Peabody, was barred from taking her cupcake onto a plane last month when a T.S.A. agent said icing in the jar exceeded amounts of gels allowed in carry-on luggage. The T.S.A. says travelers with such items might get added screening.

01/09/12

Permalink 09:00:46 am, by fourth, 481 words, 641 views   English (US)
Categories: General

D.Ariz.: Discovery for suppression limited to that which already in existence and heading off GFE not part of it

Defendant sought a ton of information about the investigative techniques used against him to potentially challenge the searches, and the court decides that Rule 16(a)(1)(E)(i) does not require the government to create information not already in existence. Also, some information sought was “sensitive” information that is not discoverable and would enable criminals to evade detection. United States v. Rigmaiden, 844 F. Supp. 2d 982 (D. Ariz. 2012)*:

As an initial matter, the Court concludes that Defendant has not shown his right to this information under Rule 16(a)(1)(E)(i). That rule requires the government to disclose documents or other tangible objects within its possession, custody, or control. The rule does not require the government to create documents that may provide information a defendant desires to obtain, nor does it require the government to present agents or witnesses for interviews or in-court examination. United States v. Mahon, No. CR09-0712-PHX-DGC, 2011 WL 5006737 at *3 (D. Ariz., Oct. 20, 2011) (citing cases). The rule “triggers the government’s disclosure obligation only with respect to documents within the federal government’s actual possession, custody or control.” United States v. Gatto, 763 F.2d 1040, 1048 (9th Cir. 1985).

In addition, the Court finds on the basis of Agent Morrison’s testimony at the ex parte hearing that the identities of individuals involved in locating the aircard is law enforcement sensitive information. Agent Morrison testified credibly that revealing the identities of these individuals could compromise their safety during future law enforcement missions. He also testified credibly that if the identities of these individuals were disclosed, they no longer could safely participate in such missions, a fact that would seriously limit the government’s law enforcement capabilities given the unique training and skill set of individuals involved in the operation. The Court finds that the identities of individuals involved in locating the aircard are subject to a Roviaro privilege. For reasons that follow, the Court also finds that Defendant has not made the showing required to overcome the privilege.

. . .

Questioning agents in order to challenge the government’s reliance on a good faith exception to the warrant requirement would not be helpful or relevant to the defense because such a good faith exception depends on the objective reasonableness of the law enforcement officers’ actions. See United States v. Leon, 468 U.S. 897, 919 n. 20 (1984) (“We emphasize that the standard of reasonableness we adopt is an objective one. Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment.”) (quotation marks and citations omitted).

Finally, the Court cannot conclude that Defendant’s desire to show the bad faith destruction of potentially exculpatory evidence justifies disclosure of the identities of agents who located the aircard. ...

Permalink 08:12:13 am, by fourth, 218 words, 796 views   English (US)
Categories: General

E.D.Tex.: No minimum number of trash pulls to show PC

There is no minimum number of trash pulls that are required to establish probable cause. Here, there were two, and the second produced marijuana residue. Probable cause did not require a third pull. United States v. Medrano, 2012 U.S. Dist. LEXIS 1545 (E.D. Tex. January 6, 2012):

Next, the Court turns to Defendant's argument that the marijuana discovered during a single trash run was not enough to form probable cause. There is no magic number of "trash runs" to be conducted prior to the issuance of a search warrant. See U.S. v. Hopkins, 2000 WL 20986, 3 (N.D. Tex. 2000). Noting that there is no per se requirement that there be multiple searches of trash to establish probable cause, Judge Fitzwater of the Northern District of Texas noted:

In some cases the paucity of evidence found in one trash seizure may in fact require more than that single garbage pickup before a warrant may be issued. In the present case, however, the contents of the trash were themselves a treasure trove and, coupled with the other grounds set out in the affidavit, amply established probable cause.

Id. (finding there was a sufficient basis for the state judge to find probable cause to issue the search and arrest warrant based on totality of circumstances, even though only a single trash run was conducted).

Permalink 07:37:13 am, by fourth, 348 words, 472 views   English (US)
Categories: General

S.D.Ohio: Asking about marijuana converted consent to a stop, but it was with RS

The officer did not have reasonable suspicion to approach and talk to defendant in a parking lot known for drug sales. The conversation was by consent. “A seizure began when Officer Burkey stood at the passenger’s side of Parker's vehicle (while Officer Sampson stood on the other side), after smelling marijuana, and asked Parker if he was smoking marijuana. A reasonable person would not feel as though he or she could leave when two police officers were standing on either side of his or her vehicle inquiring as to whether any illegal activity was occurring.” By then the officer had reasonable suspicion. United States v. Parker, 2012 U.S. Dist. LEXIS 1385 (S.D. Ohio January 5, 2012).*

Defendant’s turning around and coming back when officer called for him was consent. A second request did not escalate it to an order. United States v. Brown, 447 Fed. Appx. 706 (6th Cir. 2012)*:

We may reasonably infer from Brown’s decision to turn his car around and drive toward Officer Pesa that Brown consented to stopping to oblige an officer’s request. See Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216 (1984) (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”). Although Officer Pesa followed up his request to “come here” with a request to stop, nothing in the record suggests that Brown stopped because of Officer Pesa’s later instruction. Rather, Officer Pesa's request came after Brown already turned his car around, evincing an intent to stop. Officer Pesa’s second request is best interpreted as a continuation or renewal of the initial request, rather than as an escalating, coercive order. See Florida v. Rodriguez, 469 U.S. 1, 4 (1984) (holding that consensual interaction occurred when officer first asked defendant to talk with him, defendant consented, and officer then asked defendant to step fifteen feet aside to talk). Brown's behavior in advance of Officer Pesa's request to stop suggests that Brown stopped and engaged in a conversation with Officer Pesa voluntarily.

Permalink 12:02:25 am, by fourth, 103 words, 541 views   English (US)
Categories: General

Boston Globe: "Laptop seizures at customs cause thorny legal dispute"

Boston Globe: Laptop seizures at customs cause thorny legal dispute by Katie Johnston:

David House took his laptop to Mexico a little over a year ago, hoping to squeeze in some work between sightseeing, fishing, and laying on the beach. All went well, vacation- and work-wise, until the former MIT researcher landed in Chicago, where federal agents seized his laptop, kept it for nearly two months, and may have shared information on his hard drive with several government agencies.

They didn’t have a search warrant. They didn’t charge him with a crime. And there was nothing House could do about it.

01/08/12

Permalink 12:20:25 am, by fourth, 410 words, 623 views   English (US)
Categories: General

IL: No REP in an ice fishing shanty

Defendant did not have a complete reasonable expectation of privacy in an icy fishing shanty because it was not a place where people slept. A conservation officer approached the shanty and overhead the occupants talking about the quality of their “weed,” and he entered. Motion to suppress denied. People v. Slavin, 964 N.E.2d 150, 2011 IL App (2d) 100764 (2011):

[**P17] Defendant contends that, although the occupants of the shanty were not living or camping there, in many cases a person’s expectation of privacy in a dwelling does not depend on where he or she sleeps. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (referring to “the mistaken premise that a place must be one’s ‘home’ in order for one to have a legitimate expectation of privacy there”). Defendant asserts that activities of a personal nature take place in a shanty just as they do in a tent, despite there not being any sleeping arrangements (see Larsen, 650 N.W.2d at 149), and that many fishermen seek isolated areas for their pursuits because they do not want to be disturbed (Pruss, 181 P.3d at 1236). ...

[**P18] We observe that, unlike in the cases cited by defendant, where the tent-like structures were used for dwelling purposes, the shanty in this case bore no similarities to a dwelling place. The shanty did not even contain a sleeping bag, which could indicate that defendant had expected to stay the night. As pointed out by the State, there is a distinction between overnight guests, who have a reasonable expectation of privacy, and people with a mere transitory presence on the premises at the time of a search, and this distinction is crucial to the fact that a person in this particular ice shanty had no expectation of privacy as someone in a camping tent would. See, e.g., People v. Brown, 277 Ill. App. 3d 989, 994-95, 661 N.E.2d 533, 214 Ill. Dec. 679 (1996) (mere transitory presence on the premises at the time of the search is insufficient to establish a legitimate expectation of privacy); People v. Delgado, 231 Ill. App. 3d 117, 119, 596 N.E.2d 149, 172 Ill. Dec. 870 (1992) (mere status as the sole occupant of girlfriend’s mother’s residence at time of search is not sufficient to establish a legitimate expectation of privacy); United States v. Rigsby, 943 F.2d 631, 636 (6th Cir. 1991) (presence of tent, in which no one was apparently residing, did not create a privacy interest in the otherwise nonprivate area surrounding it).

Noted in Network World.

Permalink 12:09:54 am, by fourth, 296 words, 501 views   English (US)
Categories: General

E.D.Pa.: “[A]nd any other items of evidentiary value” does not make SW general

An add on to an already particular list “and any other items of evidentiary value” does not make a search warrant general. United States v. Ballard, 2012 U.S. Dist. LEXIS 1334 (E.D. Pa. January 5, 2012)*:

The Supreme Court has addressed this very issue. In Andresen, the Court held that a general tail at the end of a list of enumerated items to be seized does not create an impermissible general warrant. 427 U.S. at 481. The warrant in Andresen contained a long list of items related to a fraudulent real estate scheme, followed by the phrase, “together with other fruits, instrumentalities and evidence of crimes at this [time] unknown.” Id. at 479. The Court observed that the catch-all phrase at the tail end of the list was “not a separate sentence” but rather appeared at the end of a list of specific items. Id. The Court concluded that reference to “crime” in the catch-all phrase was meant to be interpreted in the context of the preceding specified list, meaning that it limited the search to other evidence of the real estate scheme described in the warrant. Id. The Court held that the warrant was not unconstitutionally general. Id.

The Third Circuit has similarly found that a catch-all phrase following a list of specific items to be seized does not render a warrant impermissibly broad. In United States v. American Investors of Pittsburgh, Inc., the Court analyzed a warrant authorizing the search of categories of “specifically delineated records and seizure of other documents and items considered [] fruits, instrumentalities and/or evidence of criminal activity.” 879 F.2d 1087, 1093 (3d Cir. 1989). The Court held that “because the items to be seized were described with sufficient particularity, the general tail, which is not read in isolation, does not render the warrant invalid.” Id. at 1106.

Permalink 12:02:50 am, by fourth, 202 words, 653 views   English (US)
Categories: General

OH11: Probable cause is but a fair probability, not by a preponderance of the evidence, nor even a prima facie showing

Probable cause is but a fair probability, not by a preponderance of the evidence, nor even a prima facie showing. State v. Tuff, 2011 Ohio 6846, 2011 Ohio App. LEXIS 5672 (11th Dist. December 30, 2011):

In regard to the “probable cause” determination for a valid search warrant, the courts of this state have noted that “‘the task of the issuing (judge) is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, (***) there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” State v. Young, 12th Dist. No. CA2005-08074, 2006 Ohio 1784, at ¶19, quoting State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph one of the syllabus. To satisfy this standard, it is not necessary for the affidavit to show the existence of criminal activity by a preponderance of the evidence; in this respect, not even a prima facie showing is mandated to justify the issuance of the search warrant. State v. Montgomery (Aug. 29, 1997), 11th Dist. No. 95-P-0034, 1997 Ohio App. LEXIS 3880, at *3.

Controlled buys by a CI from defendant’s house was probable cause for issuing a search warrant. State v. Shearer, 2011 Ohio 6835, 2011 Ohio App. LEXIS 5661 (11th Dist. December 30, 2011).*

01/07/12

Permalink 01:53:24 pm, by fourth, 322 words, 458 views   English (US)
Categories: General

HuffPo: "Dems Fire Back At GOP Proposals To Drug Test Jobless: 'You Pee In The Cup'"

HuffPo: Dems Fire Back At GOP Proposals To Drug Test Jobless: 'You Pee In The Cup':

The past year has seen an unprecedented wave of Republican bills to drug test the poor and jobless. It also saw a smaller wave of Democratic bills that said in response, "No, you pee in the cup."

One of the most recent retorts comes from Georgia, where last month Democratic state Rep. Scott Holcomb introduced a bill requiring members of the local legislature to prove they're not Legislating Under the Influence. Holcomb told HuffPost he came up with the idea because he was struck by a bill from his Republican colleagues to drug test welfare applicants.

"I was really struck by how awful it was," he said. "I wanted to bring some attention to it."

Democrats in Florida, Ohio and Tennessee have done the same thing. Tennessee state representative G.A. Hardaway said his bill to test lawmakers was inspired by constituents annoyed with a Republican welfare-drug-testing bill. "They said to me, 'how do we know y'all aren't on drugs?'" Hardaway told local TV station WMC-TV. "I thought, well, you don't."

. . .

The drug testing action in the states eventually percolated to the U.S. Congress. In December Rep. Jack Kingston (R-Ga.) introduced a bill to require states to screen unemployment insurance claimants for drugs. A version of Kingston's legislation was included in a broader bill that passed the U.S. House of Representatives but failed in the Senate.

Assistant Minority Leader Rep. James Clyburn (D-S.C.) called the Republican drug test scheme unfair and insulting. "I don't see anyone in the Republican majority demanding drug testing for folks who receive oil and gas subsidies," he said.

Having sat through numerous House Judiciary Committee meetings in Arkansas last winter, one would conclude that two-thirds are either stupid or stoned all the time. They have the attention span of a day care class of three year olds.

Permalink 01:23:48 pm, by fourth, 251 words, 476 views   English (US)
Categories: General

AR: Police officer could be tested for drugs randomly and here with individual suspicion

A police officer’s wife, also an officer, reported to the Chief that her husband was using steroids, and the department ordered a drug test. The test was valid under Skinner and Von Raab because he carried a gun and was arresting drug defendants, and there was individualized suspicion from the wife’s report. Green v. City of North Little Rock, 2012 Ark. App. 21, 388 S.W.3d 85 (2012):

We also note that, in the present case, not only did the test meet the general reasonableness standard, but the City actually had some “measure of individualized suspicion.” Id. As mentioned above, Bradley determined that he had reasonable suspicion to order a drug test of Green based not solely on Green’s ex-wife’s allegation about the bag of syringes and the bank statements showing purchases of steroids, but also on his own personal observation of Green’s physical appearance and recent aggressiveness, traits which Bradley associated with the use of anabolic steroids. The Police Department’s drug policy provides that an officer may be required to submit to chemical testing “[w]hen the City has reasonable suspicion that a member has violated any of the [policy’s] prohibitions regarding use of alcohol or drugs.” Under the policy, “reasonable suspicion” must be “based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the member.” Clearly, Bradley’s observations, coupled with Carmen Green’s allegations, provided the Police Department with reasonable suspicion to order Green to submit to a drug test.

Permalink 01:16:20 pm, by fourth, 192 words, 542 views   English (US)
Categories: General

IA: Surveying many cases, a SW constitutionally need not be present at time of search

The state constitution does not require that a search warrant for blood be physically present at the time of the search. The court surveys many cases from state and federal courts and concludes that presence of the warrant is not required. State v. Breuer, 808 N.W.2d 195 (Iowa 2012):

At the outset, we note that Iowa has no express constitutional, statutory, or procedural provision requiring a search warrant to be physically present before a search may begin. Like the Fourth Amendment, neither the Reasonableness Clause nor the Warrant Clause of article I, section 8 mentions whether the warrant must be physically present during the search. Likewise, Iowa Code section 808.5, which governs the manner in which search warrants are to be executed, is silent on the issue. See Iowa Code § 808.5. Also, Iowa Code section 808.8 requires officers to provide a receipt or inventory of items taken after the search, but it creates in the officers no obligation to possess or present the warrant before the search begins. See id. § 808.8. Furthermore, the Iowa Rules of Criminal Procedure contain no rule explicitly requiring officers to be in physical possession of the search warrant before they may begin searching.

Permalink 12:48:46 pm, by fourth, 173 words, 449 views   English (US)
Categories: General

CA8: Most important factor in consent is advice of right to refuse

Defendant’s consent was valid. Most importantly, he was advised of his right to refuse consent before he signed the consent form. He was detained five hours, but that alone is not determinative. United States v. Rakotojoelinandrasana, 450 Fed. Appx. 549 (8th Cir. 2011):

The district court here analyzed all the circumstances. Most important, Rakotojoelinandrasana signed a consent form that stated he had a right to refuse. See United States v. Czeck, 105 F.3d 1235, 1239 (8th Cir. 1997) (consent was voluntary based on age, sobriety, and criminal-justice experience, but the signed form was the most important factor).

On a shots fired call, officers nearby stopped the only vehicle leaving the dead end street that had only one house. They had reasonable suspicion. United States v. Thomas, 456 Fed. Appx. 156 (3d Cir. 2012) (unpublished).*

Despite the lack of video, the stop was with reasonable suspicion and the odor of marijuana, confirmed by other officers [and we know how crebible that is once it’s been found] was cause to search the vehicle. United States v. Bates, 453 Fed. Appx. 839 (10th Cir. 2012) (unpublished).*

Permalink 12:36:12 pm, by fourth, 538 words, 444 views   English (US)
Categories: General

CA6: SJ denied in excessive force case of shooting of infirm older man who was also allowed to bleed to death

Officers responded to a shots fired call and encountered a man who wore an eyepatch and moved slowly carrying a stick as a cane. “Miedzianowski radioed Officer Jeremy McGraw for assistance and stepped out of his car to speak with Scozzari. Miedzianowski asked Scozzari to drop the stick and to come closer, but Scozzari responded, ‘Fuck you, boy’ and continued walking. This reaction caused Miedzianowski to wonder if Scozzari was the armed person who had fired gunshots in the park.” After a couple of “fuck you”s, the man reached to his waistband for what the officer thought was a knife. Witnesses disputed the officers’ version. The man also found a hatchet and advanced on the officer who backed up and tripped dropping his gun. Ultimately he shot the man. After the shooting, the officers did nothing to aid the man while they waited for paramedics, and he died. Summary judgment on qualified immunity was denied as to excessive force and deliberate indifference. Scozzari v. Miedzianowski, 454 Fed. Appx. 455, 2012 FED App. 0004N (6th Cir. 2012) (unpublished)*:

Defendants argue that, like the officers in Chappell, they had probable cause to believe that Scozzari posed an imminent threat of serious physical harm. However, the differences between Chappell and this case are significant. Viewed in the light most favorable to Plaintiff, the evidence indicates that the Officers were standing 15 to 20 feet from Scozzari when they shot him. Further, Scozzari was 51 years old, 5'3' and 133 pounds, blind in one eye and hardly physically intimidating. Additionally, there are genuine issues of material fact whether Scozzari was wielding a knife and hatchet over his head. Further, there is evidence that Scozzari was moving slowly. According to Miedzianowski, Scozzari walked or took “a couple steps” in McGraw’s direction; other witnesses recalled Scozzari moving slowly or not at all. In contrast to Chappell, the circumstances here present a genuine question whether the situation compelled a split-second decision to use lethal force. See Estate of Kirby, 530 F.3d at 482-83 (affirming denial of qualified immunity where, under plaintiff's version of the facts, defendant officers were not in harm's way “and critically, defendants had sufficient time ... to assess the situation before firing several rounds at” the decedent); cf. Garner, 471 U.S. at 11 (“Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”). Accordingly, the district court did not err in denying Defendant Officers qualified immunity with respect to Plaintiff's excessive-force claim.

In the instant case, Defendants knew that the likely cause of Scozzari’s collapse was one or more gunshot wounds. Furthermore, as they waited to ensure that Scozzari was not faking injury, the Officers observed a large pool of blood near his neck and heard gurgling sounds coming from his mouth. Lastly, when McGraw felt Scozzari for a pulse, he found none. A layperson under these circumstances would immediately recognize that Scozzari risked serious harm unless given immediate medical attention. Therefore, the questions to resolve are whether medical treatment was unreasonably delayed for non-medical reasons and whether this delay was due to deliberate indifference on the Officers’ part. See Blackmore, 390 F.3d at 899.

01/06/12

Permalink 01:31:20 pm, by fourth, 56 words, 1312 views   English (US)
Categories: General

Cert granted in Florida v. Jardines on dog sniff of grow operation in the home

SCOTUS granted cert in Florida v. Jardines today limited to the first question:

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause.

ScotusBlog is here with the petition and response.

My post on Jardines from April is here.

Permalink 08:55:52 am, by fourth, 417 words, 589 views   English (US)
Categories: General

CA9: Full-body patdown for drugs at airport by consent could include groin area

Defendant arrived at SEA and paid cash for a last minute ticket to Anchorage on Alaska Airlines and had no luggage. The ticket agent called the police, and they met defendant at the gate and talked to him. He consented to a full-body pat down that produced 700 Oxycodone pills. Going to the groin area for the search was reasonable under the facts. United States v. Russell, 664 F.3d 1279 (9th Cir. 2012):

The factual context is key to our decision. Bruch specifically advised Russell that he was looking for narcotics. After consenting to the search, Russell was more than cooperative. To facilitate the search, he lifted his arms to shoulder height and spread his legs. Russell could have objected either of the two times he gave verbal consent before the search, or while Bruch worked his way up from the ankles to the groin. See, e.g., United States v. Sanders, 424 F.3d 768, 776 (8th Cir. 2005) (granting a motion to suppress where the suspect consented to a search of his person but then withdrew consent by actively shielding his groin area from the officer’s search). Indeed, Bruch purposely searched from the ankles up because “it gives them an opportunity to say that they don’t want the search ... there is an opportunity to stop.” Instead Russell said nothing and certainly did nothing to manifest any change of heart about his consent to search. He never objected, expressed any concern, nor did he revoke consent or call a halt to the search, nor did he complain to the officer after the fact.

We hold that the search was reasonable. Narcotics are often hidden on the body in locations that make discovery more difficult, including the groin area. The search here did not extend inside the clothing. Finally, this case does not present a question of a body pat-down by an officer of the opposite gender. See, e.g., Hudson v. Hall, 231 F.3d 1289, 1298 (11th Cir. 2000) (noting as a significant factor that the searching officer was the same gender as the suspect); United States v. Rodney, 956 F.2d 295, 298 n.3 (D.C. Cir. 1992) (“In particular, we do not address situations where, unlike here, the officer and the suspect are of opposite sexes.”). Not only would a reasonable person in Bruch’s situation understand that the general consent for a narcotics search of the person included a pat-down of all areas of the body, including the groin area, Russell’s unrestricted consent to the search and conduct during the search suggested nothing different.

Permalink 08:39:05 am, by fourth, 167 words, 464 views   English (US)
Categories: General

W.D.Pa.: Taking DNA by SW not a critical stage

The warrant for defendant’s DNA was not unlawful. Defendant had no right to counsel before taking his DNA because it is not a critical stage. United States v. Lewis, 483 F.3d 871, 874 (8th Cir. 2007). United States v. Mathis, 2012 U.S. Dist. LEXIS 354 (W.D. Pa. January 3, 2012).*

Defendant’s belated challenge under Franks that his accomplice and companion was misidentified doesn’t even rise to the level of a Franks violation. A search of a common area bathroom on an apartment floor did not intrude in any reasonable expectation of privacy. United States v. Rucker, 2011 U.S. Dist. LEXIS 150540 (D. Minn. November 9, 2011).*

Defendant’s argument that the officer did not swear out a warrant for arrest and arrested on probable cause without it is not an indication that the officer found the tipster to be less credible. Acting that way was consistent with law and departmental policy, and there was probable cause in any event. United States v. Henderson, 2011 U.S. Dist. LEXIS 150558 (E.D. N.C. November 4, 2011).*

01/05/12

Permalink 02:03:02 pm, by fourth, 108 words, 476 views   English (US)
Categories: General

ABAJ.com: "ABAJ.com: Prosecutors Seek Court Order For Suspect to Turn Over Computer Password"

ABAJ.com: Prosecutors Seek Court Order For Suspect to Turn Over Computer Password by Rachel M. Zahorsky:

Federal prosecutors have asked a Denver court to order a bank-fraud suspect to hand over her computer password so that they may search her files for evidence against her.

The move is extremely rare, the Denver Post reports, as civil-liberties groups say U.S. District Judge Robert Blackburn’s decision could test the strength of rights against self-incrimination in an increasingly digital era. However, prosecutors counter that current data encryption methods could make it impossible for law enforcement officials to access key evidence on hard drives without a user’s password.

Permalink 08:04:49 am, by fourth, 341 words, 650 views   English (US)
Categories: General

MA: Report of gun in car justified exit order; furtive movements made it more so

Officers had reasonable suspicion that there was a gun in the car before it was stopped, and that justified an “exit order” from the car. As the officer approached, there were furtive gestures to make him worry that more might happen. Commonwealth v. Charles, 81 Mass. App. Ct. 901, 959 N.E.2d 994 (2012)*:

The arresting officer’s exit order and subsequent patfrisk of the defendant were permissible because the officer had an objectively reasonable belief that his safety, and the safety of other officers, was in danger. See Commonwealth v. Gonsalves, 429 Mass. 658, 662-663, 665 (1999); Commonwealth v. Torres, 433 Mass. 669, 673-674 (2001); Commonwealth v. Stampley, 437 Mass. 323, 326 (2002); Commonwealth v. Bostock, 450 Mass. 616, 619-621 (2008). When the officer, whose testimony the motion judge credited, approached the car in which the defendant was a passenger, the officer had credible information that there might be a firearm in the car. As the weapon had not been recovered and the possibility of its presence had not been eliminated, the officer had a reasonable fear that it might be within the defendant’s reach.

Before the officer actually reached the defendant’s side of the vehicle, he saw that the defendant’s passenger door was open between six and twelve inches and, as a result, feared that the defendant would either flee or attack. Bostock, 450 Mass. at 622-623. Moreover, as the officer approached, the defendant made furtive gestures towards his waistband and continued those gestures when he was outside the vehicle. In addition, the defendant did not heed the officer’s order to keep his hands out of his waistband. Indeed, when the defendant exited the automobile, he grabbed toward his pants and appeared to be guarding something in them. The defendant’s nervous and excited manner during the encounter, his furtive gestures, and the officer’s credible information about the firearm gave him reasonable suspicion that the defendant was armed and dangerous. Viewed objectively, therefore, the facts and circumstances gave rise to “a heightened awareness of danger,” which justified the officer’s exit order and ensuing patfrisk. Stampley, 437 Mass. at 326, quoting from Gonsalves, 429 Mass. at 665.

Permalink 07:54:12 am, by fourth, 280 words, 449 views   English (US)
Categories: General

S.D.Fla.: Defendant ducking inside when the police showed up was exigency

When officers saw the defendant duck inside when they showed up at his house, they had exigent circumstances. United States v. Shillingford, 2011 U.S. Dist. LEXIS 150154 (S.D. Fla. December 19, 2011)*:

Exigent circumstances also existed. Detective Penoyer testifies that she saw Defendant from the doorway, and that he ran into the kitchen. The Court does not credit Defendant’s attempts to refute this testimony based on the short distance to the kitchen. Defendant testifies that he heard someone at the door, looked around the kitchen wall, saw the officers--unknown to be officers, and ducked back into the kitchen to hide in the closet. Whether he was running into the kitchen or ducking back into the kitchen to hide, Defendant, after observing and being observed by law enforcement, moved quickly out of view. The reasonable conclusion by Detective Penoyer was that Defendant was fleeing, destroying evidence or getting a weapon. This suffices to create exigent circumstances. Blasco, 702 F.2d at 1325. As such, irrespective of the marijuana’s location, both the probable cause and exigent circumstances necessary to enter a house without a warrant were present.

Statement immediately after arrest was unMirandized and suppressed. United States v. Cotter, 2011 U.S. Dist. LEXIS 150248 (W.D. Mo. December 21, 2011)*:

The statement made by Cotter at the scene and after he had been arrested, however, is a different matter. After Cotter had been handcuffed and arrested, the officers asked Cotter why he had a gun and Cotter responded by saying that he was holding it for Matt, the owner of the Cadillac. Cotter was not apprised of his Miranda rights prior to this inquiry. Moreover, the Court concludes that this statement was the product of custodial interrogation.

Permalink 07:48:10 am, by fourth, 174 words, 470 views   English (US)
Categories: General

S.D.Fla.: Consent to search person includes a wallet

Consent to search the person included defendant’s wallet. “I concur with Magistrate Judge O'Sullivan that the search of the billfold section of the wallet did not exceed the scope of consent because Mr. Labrada’s identification and concealed weapons permit are similar to the shape and size of credit cards. And once the officer was able to look at the credit cards in the possession of both Mr. Lopez and Mr. Labrada, he had probable cause to arrest Mr. Labrada.” United States v. Labrada, 2011 U.S. Dist. LEXIS 150183 (S.D. Fla. December 23, 2011).*

71 days was not stale in a child pornography case, particularly in light of cases that say that months or years is not stale. United States v. Barker, 2012 U.S. Dist. LEXIS 229 (D. Vt. January 3, 2012).*

Defendant did not show standing to challenge the search of the rental car he was in. The officer had cause for a stop, and then probable cause to arrest when he gave a false name. United States v. Fowler, 2012 U.S. Dist. LEXIS 255 (D. S.C. January 3, 2012).*

01/04/12

Permalink 05:22:27 pm, by fourth, 183 words, 599 views   English (US)
Categories: General

NJ.com: "In futile car search for drugs, Pompton Lakes police inflict $12K worth of damage"

NJ.com: In futile car search for drugs, Pompton Lakes police inflict $12K worth of damage by James Queally/The Star-Ledger:

When Pompton Lakes police seized Darren Richardson’s car on a rainy September afternoon, they told him it was headed for an impound lot. When they returned it three weeks later, he says, the 2004 BMW belonged in a junk yard.

The instrument cluster and leather dashboard were gone. The caramel-colored seats were torn up. The gear shift was ripped out and stray wires hung limp everywhere. Geico, Richardson’s insurance company estimated the damage at $12,636.42 — more than he paid for the car — and declared the vehicle a "total loss."

According to police reports, the damage to the black BMW 325i came in the aftermath of a traffic stop during which officers detected a "strong odor of raw marijuana" inside the vehicle. Searching for a cache of drugs, members of three different police agencies and a detective from a federal drug task force spent two days tearing the car apart, the reports said.

So what did police find after their $12,000 search?

Absolutely nothing.

Permalink 02:30:11 pm, by fourth, 198 words, 507 views   English (US)
Categories: General

Volokh Conspiracy: "Originalism and Civil Damages for Fourth Amendment Violations"

Volokh Conspiracy: Originalism and Civil Damages for Fourth Amendment Violations by Orin Kerr:

Originalists are often opposed to the exclusionary rule, the rule that evidence obtained in violation of the Fourth Amendment cannot be used in court. The exclusionary rule was made up by 19th and 20th century judges, the argument runs. At common law, the remedies for violations of search and seizure law were civil damages against the officers, not exclusion of evidence. Because the Fourth Amendment is widely recognized to have adopted and endorsed those cases, such as Entick v. Carrington (1765), the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick.

I’m not entirely sure that’s correct, but let’s assume it is. Here’s my question: If you’re an originalist, does that mean that you think the Constitution guarantees the civil remedies that existed at common law for search and seizure violations? Put another way, can modern judges change the civil remedies that were available at common law for constitutional violations? Or is there a civil remedies scheme that must be available under an originalist understanding of the Fourth Amendment?

Permalink 02:14:00 pm, by fourth, 57 words, 604 views   English (US)
Categories: General

NPR: "Outsmarting Your Spying Smartphone"

NPR: Outsmarting Your Spying Smartphone (January 4, 2012):

That shiny new smartphone you got for Christmas boasts cool features and games, but buried deep in the software are tools that collect personal information. What exactly is being collected, and how should you take caution? Host Michel Martin speaks with John Verdi, senior counsel for the Electronic Privacy Information Center.

Permalink 08:58:17 am, by fourth, 116 words, 469 views   English (US)
Categories: General

LA5: Description of robber in a particular cab matched defendant, so reasonable cause for stop

In defendant’s 1996 appeal from his conviction, the issue of reasonable cause of a stop of the cab defendant was riding in was decided against him. Still, the evidence of reasonable suspicion was strong. Police had a description of a robber in a White Fleet taxicab with a mustache and a red cap, and they saw him and pulled him over. That was reasonable cause. State v. Seals, 83 So. 3d 285 (La. App. 5th Cir. 2011).*

Defendant consented to a search of his car. A search warrant was obtained for defendant’s address based on his statement to the police where he lived. The search warrant wasn’t challenged. State v. Robinson, 87 So. 3d 881 (La. App. 5th Cir. 2011).*

Permalink 08:27:26 am, by fourth, 174 words, 534 views   English (US)
Categories: General

New law review article: "Fourth Amendment Pragmatism"

Daniel J. Solove, Fourth Amendment Pragmatism, 51 Boston College Law Review 1511 (2010). Abstract:

This Essay argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the U.S. Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) the Coverage Question—does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) the Procedure Question—how should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: the Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.

01/03/12

Permalink 04:33:38 pm, by fourth, 218 words, 526 views   English (US)
Categories: General

E.D.Mo.: Six month GPS monitoring required no warrant

USMJ can't wait for Jones and rules that GPS requires no warrant, even though it was in place for six months (n. 10). United States v. Robinson, No. 4:11 CR 361 AGF/DDN (E.D. Mo. December 28, 2011)*:

Here, installation of the GPS tracker device onto defendant Robinson’s Cavalier was not a “search” because defendant Robinson did not have a reasonable expectation of privacy in the exterior of his Cavalier. Agents installed the GPS tracker device onto defendant’s Cavalier based on a reasonable suspicion that he was being illegally paid as a “ghost” employee on the payroll of the St. Louis City Treasurer’s Office. Installation of the GPS tracker device was non-invasive; a magnetic component of the GPS tracker device allowed it to be affixed to the exterior of the Cavalier without the use of screws and without causing any damage to the exterior of the Cavalier. The GPS tracker device was installed when the Cavalier was on a public street near defendant’s residence. See Marquez, 610 F.3d at 610. Installation of the GPS tracker device revealed no information to the agents other than the public location of the vehicle. See Karo, 468 U.S. at 712. Under these circumstances, installation of the GPS tracker device was not a search within the meaning of the Fourth Amendment.

H/T Wired.com.

Permalink 12:25:57 am, by fourth, 410 words, 541 views   English (US)
Categories: General

CA1: 911 call about man with gun permitted stop of two men leaving address as officers arrived

Five officers responded to a 911 call about a gun potentially being used in a confrontation that the caller said was escalating into a fight. On arrival at the house, two men were walking away from it dressed in baggy clothes that could have concealed a weapon. “Although their actions could have been entirely innocent, the circumstances reasonably supported a more sinister explanation.” United States v. Brake, 666 F.3d 800 (1st Cir. 2011):

Here, the facts display reasonable suspicion with respect to both the stop and the pat-down. With respect to the stop, the 911 caller had reported the presence of a man with a handgun at the residence making threats and that a fight seemed imminent. See Romain, 393 F.3d at 73-74 (contrasting reliability of information provided by a 911 caller who is at the site of the reported criminal activity with the holding in Florida v. J.L., 529 U.S. 266 (2000), in which uncorroborated information from an anonymous tip emanating from an “unknown caller” phoning from an “unknown location” was deemed insufficient to warrant a Terry stop). A potentially fatal situation may have been rapidly cresting; indeed, five police officers responded, arriving without delay. The police immediately noticed two men who, given their temporal and spatial connection to the scene, may very well have just left the residence. Cf. United States v. Golab, 325 F.3d 63, 66-67 (1st Cir. 2003) (holding that Terry stop was improperly based only on an “impermissible hunch” in part because the seized car was located in a remote parking lot and thus lacked a geographical connection to the site of the suspected criminal activity). The baggy clothing that the men wore easily could have concealed a handgun. Finally, the cohorts’ conduct at the parked van gave rise to a fair suspicion that they may have either deposited a gun or retrieved additional weaponry. Although their actions could have been entirely innocent, the circumstances reasonably supported a more sinister explanation. See United States v. Stanley, 915 F.2d 54, 57 (1st Cir. 1990) (noting that “[u]nder 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.”).

These circumstances called for quick decision-making by the police. See generally United States v. Sharpe, 470 U.S. 675, 686 (1985). Viewing the whole fabric through the lens of a reasonable and cautious police officer, we conclude that specific and articulable facts justified the Terry stop to investigate Brake's possible involvement in the reported disturbance.

Permalink 12:15:35 am, by fourth, 330 words, 696 views   English (US)
Categories: General

TN: Redacting illegal search from affidavit under Murray still left probable cause

A mixed affidavit that includes untainted information and information from a tainted search that occurred prior to the search warrant issuing is subject to redaction. If probable cause remains, the search warrant is still valid. State v. Smith, 2011 Tenn. Crim. App. LEXIS 952 (December 27, 2011):

Regardless, just like federal courts in the wake of the Murray [v. United States, 487 U.S. 533 (1988)] decision, following [State v.] Clark[, 844 S.W.2d 597 (Tenn. 1992)] it has remained the practice of this court to analyze the reliance issue that was so crucial to the Supreme Court in Murray by permitting trial courts to redact those search warrant affidavits partially tainted by illegal material of any and all references to the same and then to re-scrutinize the redacted affidavit in order to determine whether or not probable cause remains nonetheless. See, e.g., State v. Vanderford, 980 S.W.2d 390, 399-400 (Tenn. Crim. App. 1997); State v. Bowling, 867 S.W.2d 338, 342-43 (Tenn. Crim. App. 1993). Indeed, in State v. Stephen J. Udzinski and Donna Stokes a/k/a Donna Story, No. 01C01-9610-CC-00431, 1998 Tenn. Crim. App. LEXIS 161, 1998 WL 44922 (Tenn. Crim. App. at Nashville, Feb. 5, 1998), we were confronted with an argument virtually identical to the one made in this case — that Murray and Clark “require exclusion of the evidence as a blanket remedy where an affidavit in support of a search warrant application improperly informs the magistrate of the results of an illegal search” because the effect “the tainted information [could] have on the magistrate's ability to perform his functions” is “immeasurable.” 1998 Tenn. Crim. App. LEXIS 161, [WL] at *23. We roundly rejected that argument and also rejected the notion that Murray required a subjective inquiry into what information the magistrate may have relied upon in issuing his or her decision. Instead, we opted to follow the well-accepted practice of redacting any affidavit containing both legally and illegally gathered evidence, excising all tainted material, and scrutinizing whatever remains to confirm the continued presence of probable cause. 1998 Tenn. Crim. App. LEXIS 161, [WL] at *30.

Permalink 12:08:01 am, by fourth, 543 words, 1089 views   English (US)
Categories: General

CA5: A ruse drug checkpoint on an interstate highway does not violate the Fourth Amendment

Plaintiff filed a § 1983 case alleging that a ruse drug interdiction checkpoint violated the Fourth Amendment, but lost. City of Indianapolis v. Edmond only applies to actual roadblocks. Webb v. Arbuckle, 456 Fed. Appx. 374 (5th Cir. 2011) (unpublished):

Numerous courts have upheld the constitutionality of ruse checkpoint operations like the one in this case or have implicitly approved of their use. For instance, in United States v. Martinez, 358 F.3d 1005, 1006-07 (8th Cir. 2004), officers stopped Orlando Martinez (“Martinez”) for rolling through a stop sign at the top of an exit ramp that followed a sign advising of an upcoming drug checkpoint. Martinez argued that the police were operating an illegal checkpoint, relying in part on Edmond. Id. at 1008. The court rejected Martinez’s contention, distinguishing Edmond as involving an “actual checkpoint[] at which motorists were stopped regardless of whether they had committed a traffic violation” and noting that “[a]ny traffic violation, however minor, provides probable cause for a traffic stop.” Id. at 1008-09 (citation and internal quotation marks omitted). The court further noted that “[t]he fact that the officers may have believed Martinez was carrying illegal drugs does not invalidate an otherwise valid stop.” Id. at 1009 (citation omitted). In upholding the constitutionality of another ruse checkpoint operation on similar grounds, the court in United States v. Williams, 359 F.3d 1019, 1021 (8th Cir. 2004) stated that “the deputy here probably pursued the traffic violation because he suspected drug trafficking .... But a law enforcement officer’s ulterior motives in initiating contact with an individual (or his pursuit of the more general programmatic purposes of the operation) are irrelevant to the Fourth Amendment question when probable cause ... exists.”). In addressing a ruse checkpoint operation, the Seventh Circuit stated:

Wendt argues that based on City of Indianapolis v. Edmond ..., the traffic stop was unreasonable because the officers lacked individualized suspicion. Moreover, Wendt asserts that the DEA established a “programmatic regiment” to stop and search cars with out-of-state license plates for drugs. An automobile stop will violate the Constitution if it is deemed “unreasonable” under the circumstances. The decision to stop an automobile is reasonable when the police have probable cause to believe that a traffic violation has occurred. Wendt’s reliance on Edmond is misplaced.

In Edmond, the police established various drug checkpoints, where officers stopped and questioned the driver of every car that passed through. The Supreme Court found that officers seized motorists without any particularized suspicion, a violation of the Fourth Amendment. In contrast, here, the traffic stop was conducted based on the officers’ reasonable belief that traffic violations had occurred.

United States v. Wendt, 465 F.3d 814, 816-17 (7th Cir. 2006) (citations omitted). Similarly, in United States v. Flynn, 309 F.3d 736, 738-39 (10th Cir. 2002), the Tenth Circuit held the use of a ruse checkpoint was constitutional and rejected the argument that such checkpoints were illegal under Edmond. As these courts have noted, ruse checkpoint operations that stop cars only when there is probable cause, such as the sign detail operation at issue in the instant case, are distinguishable from Edmond and are constitutional under the Fourth Amendment. Cf. Edmond, 531 U.S. at 47 (“When law enforcement authorities pursue primarily general crime control purposes at checkpoints such as here, however, stops can only be justified by some quantum of individualized suspicion.”).

Permalink 12:01:00 am, by fourth, 182 words, 416 views   English (US)
Categories: General

LA5: Stop of juvenile on the street was without RS, and he tried to leave; gun suppressed

Police approached the juvenile on the street, and he started to walk away. An officer grabbed him and searched him finding a gun. The stop was without reasonable suspicion and suppressed. State in Interest of J.H., 83 So. 3d 1100 (La. App. 5th Cir. 2011).*

An officer saw a truck parked on the lot of Big Lots at 1:40 am near stuff for sale on pallets. He entered the parking lot and the truck started to move without lights on. The officer stopped him, and the defendant had a wet shirt in V down from his neck. He said he had “3 or 4 beers.” Because stuff on the parking lot could have been stolen, it was reasonable for the officer to approach the defendant to see what was going on. City of Brunswick v. Ware, 2011 Ohio 6791, 2011 Ohio App. LEXIS 5608 (9th Dist. December 30, 2011).*

CI’s detailed information of time of arrival of cocaine and a full description of the car and occupant was probable cause. Also, defendant’s actions on seeing the police heightened their suspicion of him. State v. Sierra, 83 So. 3d 239 (La. App. 5th Cir. 2011).*

01/02/12

Permalink 06:55:42 am, by fourth, 216 words, 2853 views   English (US)
Categories: General

CA3: Stop of car leaving scene of shooting led to furtive gestures led to plain view

Three police cars responded to a shots fired call that involved a green car. As they got near the address, they saw a green car and one officer stopped it. Defendant was in it and made furtive movements while standing outside the car. The officer looked in the car and saw the handle of a gun which he validly seized. United States v. Jackson, 456 Fed. Appx. 142 (3d Cir. 2011) (unpublished).*

Defendant’s consent argument was harmless beyond a reasonable doubt. His IAC claim that defense counsel failed to argue lack of probable cause would never win on the merits of the search claim. People v Watson, 2011 NY Slip Op 9729, 2011 N.Y. App. Div. LEXIS 9526 (4th Dept. December 30, 2011).*

The use of the PBT here for probable cause was not reached on appeal because it has an alternate basis not attacked by defendant. State v. Manwaring, 2011 UT App 443, 698 Utah Adv. Rep. 34, 268 P.3d 201 (2011).*

“FSTs must be supported by reasonable suspicion, that there is no requirement for an officer to advise a minor of a right to withhold consent, and that failure to advise a minor of a right to remain silent does not render FSTs inadmissible.” State v. Candace S., 274 P.3d 774 (N.M. App. 2011),* writ of certiorari denied State v. Candace S., 2012 N.M. LEXIS 42 (N.M., Feb. 13, 2012)

Permalink 12:20:00 am, by fourth, 495 words, 3118 views   English (US)
Categories: General

CA4: Asking for consent after traffic stop was complete here was de minimus

After issuing defendant a traffic ticket, the officer told him to get out of the car so he could explain it to him, and merely asking for consent was a de minimus extension of the stop. United States v. Davis, 460 Fed. Appx. 226 (4th Cir. 2011):

Officer Flatt’s following two questions, which asked whether any drugs or weapons were in the vehicle and for consent to search it, were unrelated to the underlying justification for the traffic stop, but they do not demonstrate a lack of diligence in prosecuting the stop so as to unlawfully extend its scope and duration beyond the circumstances justifying it. They neither constituted the bulk of the encounter between Officer Flatt and Davis nor signaled a definitive abandonment of the prosecution of the traffic stop to embark on another sustained course of investigation. They were the first and only unrelated questions asked until that point. All of the officers’ actions leading up to that exchange were tailored to prosecuting the traffic stop. The delay resulting from the exchange, which lasted a matter of seconds, was de minimis. Furthermore, after obtaining Davis’s consent, Officer Flatt returned to prosecuting the traffic stop while Officer Dollar searched the vehicle. Officer Flatt explained the citation to Davis and issued it to him. Because the officers diligently pursued the objective of the traffic stop, we hold that the brief exchange surrounding the request for consent did not extend the scope and duration of the stop in a manner that rendered the stop unconstitutional.

Thus, Davis’s consent was not the product of an illegal detention. As Davis’s consent was voluntary and provided during a lawful detention, it was valid and not tainted. When Davis provided his consent to search the vehicle, he necessarily consented to an extension of the traffic stop long enough for the officers to conduct the search. See United States v. Rivera, 570 F.3d 1009, 1013-14 (8th Cir. 2009) (“When a motorist gives consent to search his vehicle, he necessarily consents to an extension of the traffic stop while the search is conducted ....”). His further detention during the search of his vehicle was, therefore, lawful. The consensual search yielded the firearm at issue. Because the firearm was recovered during a lawful detention and search, it was not tainted, and the district court correctly declined to suppress it.

[Note: This was far too long and detailed to be just unpublished. Watch for de minimus extension of stops in the cases--it's dangerous. See this quote from Rivera, at 1014:

As soon as Rivera declined to execute the written consent form, Coleman promptly walked the dog around Rivera's truck, where it alerted. This took less than two minutes. Our cases hold that such a brief detention for a dog sniff at the end of a traffic stop is de minimis and does not violate the Fourth Amendment. United States v. Alexander, 448 F.3d 1014, 1016-17 (8th Cir.2006); United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir.1999).

Permalink 12:12:38 am, by fourth, 145 words, 2787 views   English (US)
Categories: General

N.D.Ohio: Acts of conspiracy at defendant's business and home justified search warrant for home, too.

Defendant claimed the affidavit for the search warrant failed to show nexus to his house. The two master affidavits for search warrant totaled 365 pages, and they showed that defendant conducted business of the conspiracy from both his house and office, and that showed nexus for a search of the house. United States v. Dimora, 836 F. Supp. 2d 534 (N.D. Ohio 2011).*

In a suit over the constitutionality of a rental property inspection ordinance, the landlord showed a justiciable controversy because of three prior inspections in the last four years. The court of appeals decision not reaching the merits because it found a lack of justiciability was reversed. McCaughtry v. City of Red Wing, 808 N.W.2d 331 (Minn. 2011).*

There being a particularized suspicion that defendant made an illegal U-turn on his motorcycle, the officer had a reason to stop him. State v. Lemay, 2011 MT 323, 363 Mont. 172, 266 P.3d 1278 (2011).*

Permalink 12:01:04 am, by fourth, 215 words, 3028 views   English (US)
Categories: General

LA5: Pretextual stop had factual basis so it was lawful

Admitted pretextual stop had a factual basis, so it was legal. State v. Martin, 83 So. 3d 230 (La. App. 5 Cir. 2011):

In the instant case, the officer was justified in stopping defendant's vehicle. Officer Mekdessie observed that defendant violated a traffic law in that he had a broken taillight on his vehicle. The Jefferson Parish Sheriff's Office Arrest Report and Probable Cause Affidavit contained in the record show that defendant was charged with having improper equipment in violation of LSA-R.S. 32:53, which requires that a vehicle contain parts in proper condition.

Moreover, there was no evidence that this stop was a pretext to investigate the commission of other crimes. However, even if it was, this Court indicated in Davis [31 So.3d 513], that police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for other crimes. Also, the fact that the officer did not issue a citation for the traffic offense is not relevant to the constitutionality of the stop.

A motion to suppress is to raise Fourth Amendment violations before trial. It is not to be used in place of a motion in limine of evidence to be excluded. People v. Burney, 2011 Ill. App. LEXIS 1295, 2011 IL App (4th) 100343 (December 27, 2011),* modified on denial of rehearing January 26, 2012.

01/01/12

Permalink 07:41:04 am, by fourth, 548 words, 2936 views   English (US)
Categories: General

OR: Car was still “mobile” for automobile exception where somebody else was going to drive it off

Officers finally arrested defendant for violating the “no alcohol” provision of his parole because they could smell it on his breath. He got them to leave the car parked where it was–in the driveway of a friend. Nevertheless, the car was mobile enough for the automobile exception to apply because somebody else wanted access to it, ostensibly to drive off. State v. Wiggins, 245 Ore. App. 119, 260 P.3d 826 (2011), on rehearing State v. Wiggins, 247 Ore. App. 490, 2011 Ore. App. LEXIS 1798 (December 29, 2011) (reaching same result):

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

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

On reconsideration:

Similarly, here, defendant's car was mobile at the time it was stopped. That exigency persisted at the time of the search despite the intervening break in contact with the vehicle and the lapse of time. See, e.g., Meharry, 342 Ore. at 180 (“[T]he exigency that permits the police to conduct a warrantless search of a mobile vehicle arises from the fact that the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” (Citations and internal quotation marks omitted.)). As we noted in our prior opinion, defendant’s car continued to be the subject of the officers' ongoing investigation, and “[n]othing occurred between the moment of the initial encounter and the time the officers searched defendant's car that rendered the vehicle immobile. The car had not been impounded, the car was not functionally disabled, and nothing prevented the car from being driven away once the officers relinquished control over it.” Wiggins, 245 Ore. App. at 127. That conclusion is consistent with Meharry.

We need not go further and decide when a “mobile” vehicle ceases to be mobile by virtue of police delay. The Supreme Court has made clear that the automobile exception has only two requirements: (1) the vehicle must be mobile at the time that it is first encountered by police and (2) probable cause must exist for the search of the vehicle. Kurokawa II, 351 Ore. at 187. Under the facts in this case, those requirements are met. Thus, defendant's motion to suppress should have been denied.

[Note: First posted 8/20/11, and reposted]

Permalink 12:20:48 am, by fourth, 480 words, 3096 views   English (US)
Categories: General

OR: Courthouse entry search policy was subject to arbitrary and nonstandardized application in violation of state constitution

Meth found in a cigarette package during a courthouse security search was invalid because the search policy was subject to arbitrary and nonstandardized application in violation of state constitution. State v. Snow, 247 Ore. App. 497, 268 P.3d 802 (2011):

Defendant argues that the policy fails to meet the third criterion for a valid administrative search—that it be “designed and systematically administered” to control the discretion of those implementing it. Atkinson, 298 Ore. at 10. “The purpose of that requirement is to protect against arbitrariness and to ensure that individuals or particular items of property are not improperly singled out for special attention.” Weber, 184 Ore. App. at 436 (citation omitted).

Order 94-5 permits “searches of an individual’s person and carried item[s]” and requires that “any person” entering the courthouse “submit to a search of their person and a search of their bags, briefcases, valises, and hand-carried items.” That policy grants wide latitude to an officer to decide both who to search and the scope of a search. In other words, the policy does not specify which persons an officer must search—for instance, by requiring that every person’s closed containers be searched—nor does the policy specify how intrusive any given search may be—for instance, by requiring that closed containers be examined only by x-ray as opposed to a visual search. See, e.g., Department of Justice v. Spring, 201 Ore. App. 367, 373, 120 P3d 1 (2005), rev den, 340 Ore. 483, 135 P.3d 318 (2006) (statute authorizing DNA testing to establish paternity adequately limited discretion where it required every person who denied paternity to submit to a test); Coleman, 196 Ore. App. at 130 (police waiting room policy adequately limited discretion where it required “every person” to be searched and prohibited searches of closed containers); Weber, 184 Ore. App. at 436-37 (school drug testing policy adequately limited discretion where students were selected randomly and testing procedures were standardized). Instead, the policy would permit a security officer searching for weapons to subject one person to a metal detector and x-ray examination, while subjecting another to a full strip search. We readily conclude that that policy fails to limit the discretion of those conducting a search under its authority. See, e.g., State v. Eldridge, 207 Ore. App. 337, 342-43, 142 P3d 82 (2006) (police inventory policy did not adequately limit discretion because it lacked standardized criteria or procedures regarding the scope of each inventory); Haney, 195 Ore. App. at 280-81 (assuming that policy authorized officer to search car after accident, it did not adequately limit officer discretion because it provided no guidelines on the physical scope of searches); Willhite, 110 Ore. App. at 573-74 (although police inventory policy specified that every towed vehicle must be inventoried, and specified a standardized procedure for removing property, it was nonetheless defective because “it [was] so general that an officer [could] look everywhere he [could] think of”). Thus, the search in this case—carried out pursuant to that policy—violated Article I, section 9.

Permalink 12:11:56 am, by fourth, 567 words, 2900 views   English (US)
Categories: General

CA9: Govt failed to show attenuation of statement from illegal search

Where the search of defendant’s property was illegal and defendant saw them, confronting him with the product of the search was designed to get him to make a statement which was not attenuated since he had not consulted with a lawyer in the meantime. United States v. Shetler, 665 F.3d 1150 (9th Cir. 2011):

The government did not bear its burden of showing that Shetler’s statements were not the product of the illegal searches. Contrary to the district court’s determination, there is no evidence in the record to support the conclusion that the statements were “the product of the initial legal search of the garage, ... and were not tainted by the illegal searches of the garage.” Both the district court and the government appear to presume that the relevant inquiry is whether the agents could have questioned Shetler regarding his drug activities but for the illegal search. The logic underlying this position is as follows: because the government had probable cause, regardless of any evidence revealed during the illegal searches of his house and garage, to arrest and question Shetler as to whether he used or manufactured methamphetamine, the statements he made during that questioning cannot be considered the product of the illegal searches.

Although the presence of probable cause may generally be the “dispositive” issue in determining whether a confession stemming from an illegal detention should be suppressed, see Crawford 372 F.3d at 1056, “[t]he analysis that applies to illegal detentions differs from that applied to illegal searches,” id. at 1054 (citing 5 Wayne R. LaFave, Search and Seizure 273, § 11.4(c) (3d ed. 1996)). As Shetler’s case illustrates, there are at least two additional relevant considerations when a confession follows an illegal search rather than an illegal detention.

. . .

A second, related, consideration in an illegal search case such as this is that the answers the suspect gives to officials questioning him may be influenced by his knowledge that the officials had already seized certain evidence. “Confronting a suspect with illegally seized evidence tends to induce a confession by demonstrating the futility of remaining silent.” 6 Wayne R. LaFave, Search and Seizure 307, § 11.4(c) (4th ed. 2004) (quoting People v. Robbins, 54 Ill. App. 3d 298, 369 N.E.2d 577, 581, 12 Ill. Dec. 80 (Ill. App. Ct. 1977)). The government has produced no evidence to demonstrate that the answers Shetler gave to the government officials' questions were not induced or influenced by the illegal search; indeed, there is every reason to believe that they were. Nothing in the record suggests that Shetler was aware of the initial, legal search of his garage: he came out of a side door of his house shortly after the officers had already completed their initial sweep. There is, on the other hand, irrefutable evidence that while detained outside his home for more than five hours he witnessed multiple illegal searches of his house and garage, including a set of lengthy searches, using protective clothing and masks, of the garage which he knew contained extensive materials associated with methamphetamine production. Witnessing government officials conduct these extensive searches that uncovered numerous items indicative of methamphetamine production could certainly have led Shetler to make the inculpatory statements he made to the DEA agents. Contrary to the district court's holding, therefore, these statements cannot be said to be simply the product of the initial legal search (of which Shetler was likely unaware) rather than the extensive subsequent illegal searches (of which Shetler was undoubtedly acutely aware).

Permalink 12:01:11 am, by fourth, 222 words, 641 views   English (US)
Categories: General

OH9: Passenger had no standing to contest search of car

Trial court erred in finding a passenger could contest the search of the car as a “fruit” of an illegal stop when he didn’t show standing. State v. White, 2011 Ohio 6748, 2011 Ohio App. LEXIS 5575 (9th Dist. December 29, 2011)*:

[*P8] Therefore, here, White contested the search of the Ogbartam-Tetteh’s vehicle as the “fruit” of an illegal stop. See Carter, 69 Ohio St. 3d at 67 (“The exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality, or ‘fruit of the poisonous tree.’”), quoting Nardone v. United States (1939), 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307. However, in the context of a valid stop, White could contest the search only if he had a “legitimate expectation of privacy” in the area searched. See Rakas, 439 U.S. at paragraph four of the syllabus. The trial court determined that the initial stop and the arrest were proper. Therefore, White had the burden of proving that he had a legitimate expectation of privacy in order to contest the validity of the search of Ogbartam-Tetteh’s vehicle.

Officers arrested defendant for being unlawfully in the country, but delayed timely bringing him before a USMJ. His subsequent statement violated McNabb/Mallory and was suppressed. United States v. Valenzuela-Espinoza, 664 F.3d 1265 (9th Cir. 2011).*

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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

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United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

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Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
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Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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