Archives for: February 2012


Permalink 07:48:33 am, by fourth, 586 words, 922 views   English (US)
Categories: General

CA9: OFAC seizure violated Fourth Amendment; special needs exception did not apply despite OFAC's "vital mission"

OFAC violated due process and the Fourth Amendment in its seizure of an Islamic foundation’s assets under an Executive Order without a warrant claiming the special needs exception, held not to apply. Al Haramain Islamic Found. v. United States Dep't of the Treasury, 686 F.3d 965 (9th Cir. 2012):

AHIF-Oregon argues that OFAC's failure to obtain a warrant supported by probable cause violated its Fourth Amendment right to be free of unreasonable seizures. "In the ordinary case, the [Supreme] Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized." United States v. Place, 462 U.S. 696, 701 (1983). In most circumstances, searches and seizures conducted without a warrant are "per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). Here, OFAC argues that its seizure falls within one of those well-delineated exceptions to the warrant requirement: the "special needs" exception.

. . .

In any event, OFAC has not given us any reason why it could not have obtained a warrant here. We hold that the "special needs" exception does not apply to the seizure of AHIF-Oregon's assets by OFAC under EO 13,224. See Kind-Hearts II, 647 F. Supp. 2d at 879-82 (holding that the "special needs" exception did not apply to very similar facts).

. . .

Most of our reasoning above, concerning the special needs exception, applies equally here. The cases in which the Court has found warrantless searches to be reasonable all involve very special circumstances and greatly diminished privacy interests—a point repeatedly emphasized by the Court. For instance, in Flores-Montano, 541 U.S. at 154, the Court held that a person's privacy interest in the interior of an automobile's gas tank is not sufficient to overcome the government's interest in preventing drug smuggling at the border. Similarly, in Samson and Knights, the Court explained at length that probationers and parolees, who are subject to a clearly disclosed search condition of parole or probation, have greatly diminished expectations of privacy such that warrantless searches survived Fourth Amendment scrutiny. Samson, 547 U.S. at 850-52; Knights, 534 U.S. at 119-21. Here, however, as we have explained, the reach of OFAC's authority extends to all persons and entities, without limitation. Nothing diminishes the privacy expectation of persons and entities potentially subject to seizure by OFAC because that class includes everyone.

We reiterate that OFAC's interest in preventing terrorism is extremely high. But we cannot accept OFAC's contention that its blocking orders are per se reasonable in all circumstances, solely by virtue of that vital mission. As we noted above, an exception to the warrant requirement would permit OFAC to seize assets without obtaining a warrant in some situations. But, because there is no diminished expectation of privacy and because nothing prevents OFAC from obtaining a warrant in the normal course, we reject OFAC's argument that its blocking orders are per se reasonable under the "general reasonableness" approach.

In summary, no exception applies to OFAC's warrantless seizure of AHIF-Oregon's assets and the seizure is not justified under a "general reasonableness" test. We therefore hold that OFAC violated AHIF-Oregon's Fourth Amendment right to be free of unreasonable seizures. Because the district court did not reach the issue of remedy and because the parties did not brief that issue before us, we remand to the district court to determine, in the first instance, what remedy, if any, is available.

Permalink 12:38:25 am, by fourth, 368 words, 551 views   English (US)
Categories: General

FL: When the state relies on the fellow officer rule, the fellow officer has to testify to establish the cause for a stop or probable cause

When the state relies on the fellow officer rule, the fellow officer has to testify to establish the cause for a stop or probable cause. State v. Bowers, 87 So. 3d 704 (Fla. 2012), aff'g Bowers v. State, 23 So. 3d 767 (Fla. App. 2d Dist. 2009), disapproving Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001):

As this Court stressed in Peterson, another "unknowing" officer cannot rely on the fellow officer rule simply because the officer finds out relevant information possessed by another officer "after the fact." Peterson, 739 So. 2d at 568. Here, Officer Tracy learned of the information after he became involved in the investigation, which occurred subsequent to the challenged stop. Thus, Officer Tracy cannot testify as to information that Officer Suskovich told him as a basis for determining the validity of the initial stop.

Our ruling is consistent with our precedent and the purpose of the fellow officer rule. The fellow officer rule has been applied by this Court only to instances where the officer is testifying as to the details of a search or seizure in which the officer was a direct participant. If an officer relies on a chain of evidence to formulate his or her belief as to the existence of probable cause for a search or seizure, the rule excuses the officer from possessing personal knowledge of each link in the chain of evidence if the collective knowledge of all the officers involved supports a finding of probable cause. In short, the rule allows an officer to testify with regard to a previous link in the chain for the purpose of justifying his or her own conduct.

This Court has never applied the fellow officer rule, as the Fourth District did in Ferrer, to allow an officer who had no firsthand knowledge of the reasons for the stop and was not yet involved in the investigation to testify regarding what the initial officer told him in order to establish the validity of the initial stop. To do so would be inconsistent with the rationale and holding articulated in Peterson. Moreover, we reject the State's argument that Lara v. State, 464 So. 2d 1173, 1177 (Fla. 1985), set forth a broad rule that hearsay is always admissible in a motion to suppress hearing.

Permalink 12:27:21 am, by fourth, 468 words, 458 views   English (US)
Categories: General

CA6: 2255 petitioner failed to support his IAC claim with facts

Defendant in his § 2255 failed to adequately support his claim that his defense lawyer failed to properly advise him of the quality of his Fourth Amendment claim that was waived in his guilty plea. United States v. Ferguson, 669 F.3d 756, 2012 FED App. 0055P (6th Cir. 2012):

Ferguson argues that the failure of his trial counsel to advise him about the viability of his Fourth Amendment claim when pleading guilty and to preserve the right to appeal the denial of the suppression motion constitutes obviously deficient performance that is apparent on the record. Ferguson bases this argument on his assertion that his suppression challenge is meritorious and dispositive. In short, he argues that the failure of his trial counsel to appreciate the strength of Ferguson's position on the suppression issue, to preserve it for appeal, and to advise Ferguson of the possibility of entering a conditional plea, constitutes clearly deficient performance resulting in prejudice because in the absence of such alleged errors there is a reasonable probability that Ferguson would not have entered an unconditional guilty plea.

We find the record insufficiently developed to support Ferguson's claim of ineffective assistance of counsel. The record is devoid of information regarding the discussions Ferguson had with his counsel regarding the plea agreement. There is also scant information in the record to illuminate whether it might have been sound strategy for defense counsel to allow Ferguson to enter an unconditional plea. What the record does indicate is that defense counsel and the government negotiated a plea agreement that significantly reduced Ferguson's potential sentencing exposure. The maximum sentence for violating 18 U.S.C. § 2252A(a)(5)(B) is ten years' imprisonment with a possible lifetime term of supervised release. Pursuant to the plea agreement, the Sentencing Guidelines range recommended to the district court based on the stipulated Guideline computations for an adjusted offense level of 17 and criminal history category of I was 24 to 30 months. This range was substantially lower than the recommended Guideline range calculated in the Presentence Investigation Report ("PSR"), which would have exposed Ferguson to a potential sentence of 46 to 57 months. Whether this favorable plea agreement would not have been offered to Ferguson if he had entered a conditional plea is unknown. In light of the limited record on direct appeal, we have "no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse." Massaro, 538 U.S. at 505. Nor can we "ascertain whether the alleged error was prejudicial" without further factual development. Id. Thus, in light of the limited record regarding "the preparation of [Ferguson's] trial counsel or his communications with [Ferguson] about this ... issue," it is more appropriately raised in the first instance in post-conviction proceedings. See United States v. Bradley, 400 F.3d 459, 461-62 (6th Cir. 2005).

Permalink 12:15:12 am, by fourth, 169 words, 441 views   English (US)
Categories: General

CA4: Dist Ct erred and imposed too high a standard for probable cause

The Maryland state troopers had probable cause to search defendant’s car, so the district court erred in concluding that the officers exceeded the scope of consent and applied the wrong standard of what is probable cause. United States v. Ortiz, 669 F.3d 439 (4th Cir. 2012):

This ruling erroneously elevated the probable cause standard to one more demanding than a preponderance. Probable cause requires an officer to have a "reasonable ground for belief of guilt"—"more than bare suspicion." Brinegar, 338 U.S. at 175 (emphasis added). A "reasonable ground" for belief is less demanding than a standard requiring a preponderance of the evidence for the belief. See Gates, 462 U.S. at 235; Humphries, 372 F.3d at 660 ("[T]he probable-cause standard does not require that the officer's belief be more likely true than false"). Thus, when the district court concluded that a search of the vehicle would "more likely than not" have uncovered contraband, it reached a conclusion that satisfied the probable-cause standard and authorized the Maryland State Police to search Ortiz's vehicle.

Permalink 12:02:36 am, by fourth, 191 words, 430 views   English (US)
Categories: General

WY: Car that did not stop was not "stopped" or seized for Fourth Amendment purposes

The trial court held that defendant was unlawfully stopped when he refused to stop for the officer’s flashing lights. There was no stop until defendant stopped, so the case is remanded for further fact finding. State v. Holohan, 2012 WY 23, 270 P.3d 693 (2012).

The state showed probable cause for the search warrant for defendant’s car and house in a shooting case. [Not a great amount of evidence, but enough for probable cause: matching car color, matching gun.] Robinson v. State, 368 S.W.3d 588 (Tex. App. – Austin 2012)*:

In particular, with regard to Robinson's home and SUV, the affidavits state the following: (1) "a neighbor saw a black SUV drive away very fast" after the shooting; (2) Robinson's girlfriend "owns a small, black, SUV"; (3) an officer previously noted that Robinson kept a .38 caliber revolver in his home; (4) the bullets that were recovered from the crime scene were consistent with that of a .38 or .357 caliber revolver; and (5) the affiant's experience in criminal investigations leads him to "believe that items capable of collecting saturated blood [and other evidence], including but not limited to clothing, vehicle upholstery, carpet, [and] floor mats are located" in Robinson's home and SUV.


Permalink 04:32:52 pm, by fourth, 100 words, 524 views   English (US)
Categories: General

Marquette Law School Faculty Blog: "The Resurrection of the 'Trespass' Element of Fourth Amendment Law"

Marquette Law School Faculty Blog: The Resurrection of the “Trespass” Element of Fourth Amendment Law by David Behm:

Recently, in United States v. Jones, the Supreme Court ruled that the attaching of a GPS tracking device to a suspect’s car without his knowledge and monitoring of the vehicle’s movements violated the suspect’s Fourth Amendment rights against unreasonable search and seizure. See generally 132 S.Ct. 945 (2012). In so doing, the Court resurrected an idea relating to Fourth Amendment law that had been dormant for almost 50 years – the idea of common-law trespass as a test for violations of the amendment.

Permalink 08:12:58 am, by fourth, 159 words, 417 views   English (US)
Categories: General

E.D.Ark.: Arrest of a confederate gave probable cause to search defendant's car

After the arrest of two confederates for passing counterfeit checks and they attempted to flee, a hotel receipt was found on one, and the police went to the hotel and found two others loading a car with a computer, printer, and other stuff from a hotel luggage cart. The police had probable cause that the stuff on the luggage cart and in the car was associated with the counterfeit check scheme, so the seizure was valid. United States v. Allen, 2012 U.S. Dist. LEXIS 23450 (E.D. Ark. February 17, 2012).* [I had one of the co-defendants arrested elsewhere.]

Defendant has the burden of showing that there was no probable cause for issuance of a search warrant, and there was. The probable cause was not stale. United States v. Carter, 2012 U.S. Dist. LEXIS 23696 (W.D.Pa. February 24, 2012).*

Defendant’s guilty plea was a waiver of the search issue anyway. Gibson v. United States, 2012 U.S. Dist. LEXIS 23672 (E.D. Mo. February 24, 2012).*

Permalink 07:59:24 am, by fourth, 233 words, 394 views   English (US)
Categories: General

Volokh: "Can Magistrate Judges Rule on How the Fourth Amendment Applies to the Execution of a Court Order At the Time of the Application?"

Volokh Conspiracy: Can Magistrate Judges Rule on How the Fourth Amendment Applies to the Execution of a Court Order At the Time of the Application? by Orin Kerr:

Last week, I filed an amicus brief in the Fifth Circuit on a very important question in high-tech crime investigations. As far as I know, the issue is a matter of first impression in any court. Here’s the question: When privacy statutes require the government to obtain a court order before collecting records or conducting surveillance, is the constitutionality of the future execution of the order ripe for adjudication at the time of the application?

That’s a mouthful, so let me try an example. Imagine you’re a federal magistrate judge. The government comes to you with an application for a court order to collect records as required by a federal privacy statute. The government has satisfied the statutory standard set by Congress. But you think that the statute is unconstitutional, and that compliance with the statute therefore will violate the Fourth Amendment. Here’s the question: Can you deny the order and issue an opinion explaining your denial based on your conclusion that the collection of the records would violate the Fourth Amendment? Or do you have to issue the order, let the government execute it, and then wait for an ex post challenge to the constitutionality of the government’s conduct?

Permalink 07:28:48 am, by fourth, 277 words, 477 views   English (US)
Categories: General

Nw.L.Rev.: "On the Colloquy: The Fourth Amendment and Airport Screening Issues"

On the Colloquy: The Fourth Amendment and Airport Screening Issues, posted by Northwestern University Law Review:

The online companion to the Northwestern University Law Review is proud to feature companion essays on the Fourth Amendment and newly invasive airport screening methods.

In Revisiting “Special Needs” Theory Via Airport Searches, Professor Alexander Reinert examines the controversy surrounding the Travel Security Administration’s new airport search regime by reference to the Fourth Amendment jurisprudence that developed in response to the first instantiation of mass airport searches in the early 1960s. While the Fourth Amendment approaches developed in the 1970s remain relevant today, Professor Reinert argues, TSA’s new search regime is more difficult to square with traditional Fourth Amendment principles than were the FAA’s initial airport screening procedures; and precisely because of the pressure on courts to adjust Fourth Amendment doctrine to meet the perceived needs of the TSA and the traveling public, it is all the more important that new doctrinal limitations accompany any judicial acceptance of the TSA’s new search regime.

In his companion piece The Bin Laden Exception, Professor Erik Luna complements Professor Reinert’s Essay on the Fourth Amendment and airport safety by providing context on terrorism and the decade of Osama bin Laden. Specifically, Professor Luna argues what is at play in the airport search context is not a previously recognized exception to the Fourth Amendment, but instead an entirely new exemption from otherwise applicable requirements, driven by an abiding fear of al Qaeda and its now-deceased kingpin rather than a reasoned assessment of terrorism-related risks.

Read both pieces online at the Northwestern University Law Review Colloquy.

H/T Pogo Was Right.

Permalink 12:01:23 am, by fourth, 130 words, 421 views   English (US)
Categories: General

D.Alaska: Lack of a Miranda warning did not make the consent invalid

Defendant was not free to go in his motel room, but he was not handcuffed, moving around the room. Officers did not Mirandize him because there was no need to interrogate him. The lack of a Miranda warning did not make the consent invalid. United States v. Hanson, 2012 U.S. Dist. LEXIS 23356 (D. Alaska February 15, 2012).

When defendant’s vehicle was stopped, the officer knew that it was unregistered. That was cause for the stop, despite the ulterior motive, and defendant consented. United States v. Justice, 464 Fed. Appx. 448, 2012 FED App. 0224N (6th Cir. 2012) (unpublished).*

Defendant’s suppression hearing predated Brendlin, and the trial court held that he couldn’t challenge the stop as a passenger. Although he could, there was cause for the stop. State v. Wright, 2012 Tenn. App. LEXIS 118 (February 23, 2012).*


Permalink 12:50:46 pm, by fourth, 178 words, 486 views   English (US)
Categories: General

Grits for Breakfast: "The newest toys in the box: Police deploy cell-phone trackers, drones"

Grits for Breakfast: The newest toys in the box: Police deploy cell-phone trackers, drones:

A pair of stories show how technology is rapidly reshaping old debates about the Fourth Amendment and privacy, raising questions about whether sketchy protections outlined in the 18th Century still serve to prevent government abuses using technologies the Founding Fathers couldn't imagine.

First, the Fort Worth Star-Telegram has a story about "a new cellphone tracking system authorized for purchase by the Fort Worth City Council this week."

. . .

Then, at CNBC there's an item about the increasing use of drones by civilian police agencies, news media and an array of other possible users. The story opens:

Heads up: Drones are going mainstream. Civilian cousins of the unmanned military aircraft that have tracked and killed terrorists in the Middle East and Asia are in demand by police departments, border patrols, power companies, news organizations and others wanting a bird's-eye view that's too impractical or dangerous for conventional planes or helicopters to get.

Along with the enthusiasm, there are qualms.

Link won't work:

Permalink 12:43:57 pm, by fourth, 86 words, 384 views   English (US)
Categories: General

WSJ Blog: "FBI Turns Off Thousands of GPS Devices After Supreme Court Ruling"

WSJ Blog: FBI Turns Off Thousands of GPS Devices After Supreme Court Ruling by Julia Angwin:

The Supreme Court’s recent ruling overturning the warrantless use of GPS tracking devices has caused a “sea change” inside the U.S. Justice Department, according to FBI General Counsel Andrew Weissmann.

Mr. Weissmann, speaking at a University of San Francisco conference called “Big Brother in the 21st Century” on Friday, said that the court ruling prompted the FBI to turn off about 3,000 GPS tracking devices that were in use.

Permalink 08:04:10 am, by fourth, 284 words, 651 views   English (US)
Categories: General

CA10: Detention without reasonable suspicion was clearly established

Officers lacked reasonable suspicion to detain plaintiff for vandalism of a car. All they knew was that he was Hispanic and lived in the same apartment complex. He fled when he saw them. This was clearly established at the time. The excessive force claim was not ruled on by the district court, so the case is remanded for that. Romero v. Story, 672 F.3d 880 (10th Cir. 2012)*:

Defendants believe our holding will "give the police no recourse to interview a potential suspect to a crime." In response to this argument, we need only to look to the Constitution. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A citizen has the constitutional right to walk away from a law enforcement officer who lacks probable cause or reasonable suspicion to detain or seize him or her. See Kentucky v. King, 131 S.Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011). The Supreme Court has told us that when law enforcement officers knock on a door without a search warrant and the occupant makes the decision to open the door and speak to the officers, the occupant "may refuse to answer any questions at any time." Id. This holding is unremarkable and certainly not novel. If the officers want to force a suspect to speak, they must have reasonable suspicion or probable cause. The Constitution mandates no less. Because we hold Defendants lacked reasonable suspicion to detain Plaintiff for the vandalism, Defendants lacked probable cause to arrest Plaintiff for flight or evasion under N.M. Stat. Ann. § 30-22-1(B), thereby violating Plaintiff's constitutional right to be free from unlawful arrest.

Permalink 07:47:00 am, by fourth, 103 words, 487 views   English (US)
Categories: General

Saw a ruse checkpoint last night, MO I-55, exit 27

I'm in Marion, Illinois for a deposition in a civil case at the USP. Driving here last night in Missouri we saw a lighted MoDOT sign saying "Drug Checkpoint Ahead" right at exit 27 (State Highway A) on I-55 where there is absolutely nothing. There was a police car on the shoulder with red and blue lights on, and two cars up on the road at the exit. There was, of course, no drug checkpoint on the highway.

Lawyers in the Missouri Bootheel will have a few new cases this week. [People still fall for that? As long as there are dumb criminals, sure.]

Permalink 12:11:24 am, by fourth, 114 words, 444 views   English (US)
Categories: General

LA4: Law of the case barred relitigating search after remand

Defendant got his motion to suppress granted, and the state appealed getting the judgment reversed. Defendant then entered a plea and sought to appeal. The prior holding was law of the case and could not be appealed again. State v. Cox, 85 So. 3d 252 (La. App. 4 Cir. 2012).*

The police went into a wooded area far from defendant’s house to look for a condom with possible DNA used in molesting a child. It was open fields. Dunn v. Commonwealth, 360 S.W.3d 751 (Ky. 2012).*

On rehearing after Davis, the prior decision applying Gant (United States v. Debruhl, 993 A.2d 571 (D.C. 2010)) is reversed. Davis is virtually identical. United States v. Debruhl, 38 A.3d 293 (D.C. App. 2012).*

Permalink 12:02:00 am, by fourth, 517 words, 756 views   English (US)
Categories: General

CA6: Tasering a fleeing jaywalker in the back was not clearly established as excessive at the time it happened (citing cases)

Tasering a jaywalker in the back was not clearly established as excessive at the time it happened, so qualified immunity applies. Cockrell v. City of Cincinnati, 468 Fed. Appx. 491, 2012 FED App. 0216N (6th Cir. 2012):

Cases addressing qualified immunity for taser use fall into two groups. The first involves plaintiffs tased while actively resisting arrest by physically struggling with, threatening, or disobeying officers. In the face of such resistance, courts conclude either that no constitutional violation occurred, or that the right not to be tased while resisting arrest was not clearly established at the time of the incident. Mattos, 661 F.3d 433 (holding, in consolidated cases, that 2004 and 2006 taser deployments constituted excessive force, but did not violate clearly established law, where one plaintiff, a pregnant woman pulled over for speeding, refused to sign citation, became agitated, screamed at officers, clung to steering wheel, and was tased three times, and other plaintiff, also a woman, was shot with taser in dart mode as she stood between officers and her large, drunken, aggressive husband who was under arrest); McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011) (holding that 2007 taser deployment against misdemeanant who made sudden move toward window while being questioned by police and told not to "try anything stupid" did not constitute excessive force, even though misdemeanant fell out of window to his death after being tased); Bryan, 630 F.3d 805 (holding that 2005 taser deployment against motorist yelling angrily and acting erratically after traffic stop for failing to wear seatbelt violated Fourth Amendment, but not clearly established law); Baird v. Ehlers, No. C10-1540JLR, 2011 WL 5838431 (W.D. Wash. Nov. 21, 2011) (holding that using taser three times on man who, in "drunken stupor," was physically removed from city bus, and engaged in verbal and physical confrontation with officer, may have been excessive use of force, but that law regarding taser use was not clearly established as of November 2009); Carter v. City of Carlsbad, No. 10–CV–1072–IEG, 2011 WL 2601027 (S.D. Cal. June 30, 2011) (holding that use of taser against large, belligerent, drunken ex-marine who "took an offensive fighting stance" may have been excessive, but did not violate clearly established law on October 31, 2009); Azevedo v. City of Fresno, No. 1:09–CV–375, 2011 WL 284637 (E.D. Cal. Jan. 25, 2011) (holding that use of taser against suspect detained during investigation of burglary, who fled after being asked about weapons then was warned to stop, may have violated Fourth Amendment, but did not violate clearly established law, as of November 2007); Sanders v. City of Dothan, 671 F. Supp. 2d 1263 (M.D. Ala. 2009) (holding that officer who tased detained, but uncooperative, suspect using drive-stun mode did not violate clearly established law, as of August 2005); Beaver v. City of Federal Way, 507 F. Supp. 2d 1137 (W.D. Wash. 2007) (holding that, of five August 2004 taser deployments against suspect who fled scene of residential burglary and refused to obey command to stop, first three were not excessive uses of force, since officer had to make split-second decisions on how to subdue disobedient, fleeing felon, while last two constituted excessive force because suspect was no longer immediate threat; qualified immunity still was appropriate, however, because law was not clearly established).


Permalink 09:23:25 am, by fourth, 333 words, 598 views   English (US)
Categories: General

E.D.Ill.: Rule 41(g) motion for return of property that gov't might use at trial denied

The defendant’s motion for return of property under Rule 41(g) is denied until the trial. While some may not be used at trial, the court will not second guess the government’s trial preparation in determining what will be used. United States v. Tomkins, 2012 U.S. Dist. LEXIS 23197 (E.D. Ill. February 23, 2012):

Defendant also asserts that none of the documents which he wants the government to return has any evidentiary value. For each of the items that remain in dispute, the government has explained why it might wish to use the material as evidence at trial. Defendant disagrees with the government's articulated reasons, but that disagreement is not enough to override the government's interest in retaining materials that it may wish to offer as evidence at trial.

The process of pretrial preparation typically requires lawyers to assess a larger volume of evidence than ultimately will be used at trial. For some items of evidence, it may be abundantly clear early on whether they will be used at trial. For other items, that decision may be uncertain even as trial commences. It is the role of trial attorneys to progressively make judgments — all the way up to and including during trial — about which materials will be used.

We decline the invitation to dismiss (or dictate) the government's strategic considerations as to what evidence it may seek to use at trial. Defendant may believe that the government will not need certain items of evidence because he will not dispute certain points at trial. However, the government still may seek to introduce some evidence on those points to attempt to enhance the persuasiveness of its case. Defendant may believe that some of the materials the government seeks to keep are duplicative of other evidence that the government already possesses (such as, with respect to handwriting). However, the judgment about whether certain evidence is cumulative of other evidence depends on knowing what has been admitted into evidence at trial, which at this time is plainly unknown.

Permalink 09:17:51 am, by fourth, 422 words, 471 views   English (US)
Categories: General

M.D.La.: Stop still valid, although officer's testimony contradicted his report

Defense counsel made headway on the officer’s credibility based on conflicts between his report and his testimony, but the court still finds the stop valid. United States v. Lopez, 2012 U.S. Dist. LEXIS 22812 (M.D. La. February 21, 2012)*:

The testimony did not establish why LoCicero approached Lopez's truck. LoCicero's proffered explanation is devoid of an articulable reason for suspecting Lopez had or was about to commit a crime. The sole reason why he approached Lopez's truck was because he and his companion had been sitting there for several minutes "conducting no lawful business." This sounds suspiciously like a police euphemism for profiling. It is the presence of unlawful business, not the absence of "lawful business," which serves as the touchstone for reasonable suspicion analysis. LoCicero had no articulable reason for approaching Lopez's car. Nevertheless, mere approach and questioning alone does not trigger Fourth Amendment protections. Bostick, 501 U.S. at 435; see also United States v. Brown, 209 Fed.Appx. 450, 452 (5th Cir. 2006) (defense counsel conceding at oral argument that officer's initial approach of parked car does not implicate Fourth Amendment). At that point, therefore, LoCicero's interaction with Lopez remained completely lawful.

It is unclear how long LoCicero spoke with Lopez, but LoCicero's report—filed only a couple of days following the incident—clearly implies that, prior to asking for identification, he perceived the situation to have ripened into a stop. LoCicero's precise language—"prior to releasing Lopez"—could not be given meaning without necessarily acknowledging that a stop of some sort had already occurred. Citizens who are free to terminate a police encounter do not need "releasing."

LoCicero attempted during the hearing to backtrack on what he meant in his report, but he did ultimately acknowledge the report's language implied a stop had occurred. While contending that the imprecise language he used in the report created a misimpression as to whether Lopez had been free to leave at that point, he freely admitted his police report provided a better picture of what happened that night because it reflected his memory of the incident mere days after it occurred. LoCicero's testimony effectively contradicts his report even though he admits the report provides a more accurate portrayal of how the events unfolded that day because it was written in the wake of the incident. Giving the report a straight-forward reading compels the conclusion that LoCicero thought the questioning ripened into a stop at some point prior to him asking for Lopez's identification card.

However, an officer's perception of the legal effect of his actions is not dispositive. ...

Permalink 08:45:45 am, by fourth, 172 words, 468 views   English (US)
Categories: General

Cal.4: Digital camera was a container under Ross that could be searched with PC

A park ranger stopped defendant’s car because a 12 year old was driving it, and defendant was arrested for child endangerment. The car was inventoried for tow, and papers and folders strongly suggestive of child pornography were found in the trunk along with a camera and a thumb drive hidden under the spare, an unusual place. Officers searched a digital camera finding child pornography that defendant made. The search of the camera was valid as a container search under Ross because it was with probable cause defendant sexually molested the 12 year old with him and there very well could be pictures there. People v. Haraszewski, 2012 Cal. App. LEXIS 197 (4th Dist. January 30, 2012), Published February 23, 2012.

The court finds that the officer has cause to stop defendant for a lane change violation, and that he consented to a search of the car. The fact the audio on the video was off at the time of the consent did not otherwise make it involuntary. United States v. Perry, 2012 U.S. Dist. LEXIS 22789 (N.D. Ga. January 19, 2012).*

Permalink 08:22:08 am, by fourth, 198 words, 434 views   English (US)
Categories: General

OH12: Consent to search car did not include purse left as driver got out

A computer check showed warrants on defendant, and the officer asked for and got consent to search the car. Defendant got out and left her purse behind. The officer searched the purse, too, and this exceeded the scope of consent. State v. Brooks, 2012 Ohio 646, 2012 Ohio App. LEXIS 592 (11th Dist. February 21, 2012).

Officer could walk up to a car parked in a high crime area and see what was going on. He got their names to see if there were warrants on them and smelled PCP. “Shortly after smelling the PCP, Officer Holloway noticed in plain view a vanilla-extract bottle lodged in the driver’s-side door. Based on his experience, he recognized this as a container in which PCP is commonly stored. At that juncture, even if it was not present before, there was probable cause to search the vehicle for controlled substances.” United States v. McGehee, 672 F.3d 860 (10th Cir. 2012).*

Defendant was stopped by ICE officers working a flea market in Indianapolis. The state failed to call the officer who made the stop at trial, and it failed in its burden of proof of showing reasonable suspicion under the state constitution. Yanez v. State, 963 N.E.2d 530 (Ind. App. 2012).*


Permalink 08:45:13 am, by fourth, 118 words, 531 views   English (US)
Categories: General

OR: Emergency aid exception could not be relied on where factors relied on came after entry

The state’s emergency aid exception argument for the entry into defendant’s motel room was based on observations after the entry, so they could not justify the entry. State v. Shirk, 248 Ore. App. 278, 273 P.3d 254 (2012).

Case remanded for review under Gant even though defendant didn’t raise it in trial court. State v. Cross, 166 Wn. App. 320, 271 P.3d 264 (2012) (pending 23 months, resulting in a two paragraph opinion).*

Plaintiff’s wrongful detention for 16 days was based on mere negligence of a jailer in stapling his form to the wrong pile of paper, and that did not state a claim under the state civil rights act. Shoyoye v. County of L.A., 203 Cal. App. 4th 947, 137 Cal. Rptr. 3d 839 (2d Dist. 2012).*

Permalink 08:20:19 am, by fourth, 339 words, 437 views   English (US)
Categories: General

CA3: Handing cell phone to LEO to open text messages was a waiver of expectation of privacy

Defendant came to a Pennsylvania police station with his cell phone complaining of threatening text messages from a person in Ohio. He handed the cell phone to the officer sitting at the duty desk who was pushing buttons trying to make the text messages come up when the officer saw child pornography on the phone. By handing the phone over for the officer to look at it and try to open the text messages, defendant waived his expectation of privacy in the phone. He might have retained it if he opened the text messages and showed them instead. United States v. Coates, 462 Fed. Appx. 199 (3d Cir. 2012):

[I]t is abundantly clear that Coates did not possess a legitimate expectation of privacy in the contents of his cell phone. "Regarding the subjective prong, 'we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy,'" ... , and an individual cannot claim a subjective expectation of privacy in an object voluntarily turned over to third parties. ... Nor is such an expectation, if one exists, considered reasonable. ...

Coates walked into the Bloomsburg Police Department and voluntarily handed his cell phone over to a police officer. Although he stated that he wanted to show the officer a text message, he did not hold the phone to show the message to the police officer, nor did he navigate to the text message before handing it to the officer, as we would expect of an individual expecting to maintain privacy. And even though the cell phone was in a closed position, Coates did not instruct Officer Persing how to navigate to the text message from the start screen, nor did he say anything during the period that Officer Persing was attempting to access the message. Coates freely and knowingly exposed the contents of his cell phone to law enforcement, without manifesting any expectation of privacy therein, and "[w]hat a person knowingly exposes to the public … is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351 (1967) (citations omitted); ...

Permalink 08:10:30 am, by fourth, 257 words, 520 views   English (US)
Categories: General

LA2: An impaired driver is an exception to Gant

An impaired driver is an exception to Gant. State v. Cook, 2012 La. App. LEXIS 192 (La. App. 2d Cir. February 21, 2012):

The first exception (an unshackled arrestee, still near the car) is inapplicable to the current facts.

The second exception allows law enforcement to search the passenger compartment incident to arrest, together with any containers located therein, if there is a reasonable belief (reasonable suspicion) that evidence of the crime of arrest is in the car. Of any genre of crime, the one most likely to fit this criteria would be the arrest of an impaired operator. The observed impairment of the driver in this case, while clearly involving alcohol, raises the considerable possibility for the involvement of other drugs used by the defendant. It is therefore reasonable to believe that evidence of the crime of arrest (beer bottles, pills, other drugs) would be located in the vehicle being unlawfully operated by the arrestee and in her purse.

Defendant was the subject of a 911 call about erratic driving. When stopped, he was not intoxicated, but defendant acted suspiciously. He consented to a search of the car for illegal drugs and a couple of joints and an empty nitrous bottle was found under the seat. A wireless video camera was on the front seat that the officer asked about. After defendant was in custody and memory cards were found, defendant consented to a search of them too, and eleven pictures and videos of child pornography were found. He validly consented. State v. Aguirre, 2012 Ohio 644, 2012 Ohio App. LEXIS 595 (11th Dist. February 21, 2012).*

Permalink 07:52:16 am, by fourth, 208 words, 449 views   English (US)
Categories: General

N.D.W.Va.: Failure to show hands during knock-and-talk is exigency that permitted entry

Officers were conducting a knock-and-talk, and defendant refused to show his right hand which was behind his back or come out. That justified an entry to see if it was a weapon. United States v. Brooks, 2012 U.S. Dist. LEXIS 22458 (N.D. W.Va. February 23, 2012). [So much for the ability to exclude.]

The stop was justified by a reasonable belief that some traffic offense occurred. It doesn’t matter that the officer can’t fully articulate the proper one. United States v. Guevara, 2012 U.S. Dist. LEXIS 20910 (D. Neb. February 21, 2012):

Law enforcement officers are not expected to "interpret the traffic laws with the subtlety and expertise of a criminal defense attorney," United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005) (quoting United States v. Sanders, 196 F.3d 910, 913 (8th Cir.1999)). The determination of objective reasonableness "is not to be made with the vision of hindsight, but instead by looking to what the officer reasonably knew at the time." United States v. Smart, 393 F.3d 767, 770 (8th Cir.2005). If an officer makes a mistake in law or fact, the mistake "must be objectively reasonable to avoid running afoul of the Fourth Amendment." Martin, 411 F.3d at 1001.

All that was required in this case was a reasonable suspicion that some traffic violation occurred. ...

Permalink 07:35:42 am, by fourth, 86 words, 423 views   English (US)
Categories: General

NPR: "Court: Unscrambling Hard Drive Is Unconstitutional"

NPR: Court: Unscrambling Hard Drive Is Unconstitutional by Carrie Johnson:

A federal appeals court has ruled for the first time that a suspect in a child porn case does not need to unlock his thoroughly-scrambled computer hard drives because it would violate his Fifth Amendment rights. That ruling conflicts with two other cases, including one this week where a Denver-based appeals court says a Romanian immigrant needs to turn over an unencrypted version of her laptop hard drive to help authorities pursue a mortgage fraud case



Permalink 05:16:34 pm, by fourth, 172 words, 460 views   English (US)
Categories: General "Fla. panel OKs state worker drug-testing bill" Fla. panel OKs state worker drug-testing bill:

TALLAHASSEE, Fla. (AP) — After a roller-coaster ride through the House, a bill that allows state agencies to randomly drug-test their employees was cleared by a final committee on Friday.

The House State Affairs Committee cleared the bill (HB 1205) by a party-line vote of 9-6.

The measure allows, but does not require, state agencies to randomly test workers every three months. It makes it easier to fire those workers who show positive for drugs after a first test that has been confirmed.

An earlier committee had rejected the measure after Republicans and Democrats questioned its cost and legality. Rep. Jimmie Smith, the Inverness Republican sponsoring the bill, changed it so that no extra money for drug tests is needed. Tests will be paid for out of the agencies' existing budgets.

Under this latest version of the revived bill, a random sample of employees to be tested can't be more than 10 percent of the agency's workforce and must be generated by an "independent third-party" computer.

Permalink 03:58:16 pm, by fourth, 319 words, 562 views   English (US)
Categories: General

WSJ Blog: "[CA5]: Fifth Amendment Protects Suspects from Having to Decrypt Hard Drives"

WSJ Blog: Court: Fifth Amendment Protects Suspects from Having to Decrypt Hard Drives by Joe Palazzolo:

In a ruling that could have broad ramifications for law enforcement, a federal appeals court has ruled that a man under investigation for child pornography isn’t required to unlock his computer hard drives for the federal government, because that act would amount to the man offering testimony against himself.

The case is In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011, No. 11-12268 & 11-15421 (11th Cir. February 23, 2012). The owner of the hard drive was held in civil contempt and imprisoned for refusing to give the information under the limited immunity order he got from the court:

For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.

. . .

Whether the drives’ contents are testimonial, however, is not the issue. What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact. See Fisher v. United States, 425 U.S. 391, 410, 96 S. Ct. 1569, 1581, 48 L. Ed. 2d 39 (1976) (“The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.”). Thus, we focus on whether Doe’s act of decryption and production would have been testimonial.

Permalink 03:01:29 pm, by fourth, 150 words, 457 views   English (US)
Categories: General

AP: "VA governor dropped bill over legal concerns"

AP: VA governor dropped bill over legal concerns by Beth Fouhy:

WASHINGTON (AP) — Virginia Gov. Bob McDonnell said Friday he backed away from a bill requiring women to undergo an invasive procedure before receiving an abortion because he believed it might not have withstood legal scrutiny.

McDonnell, chairman of the Republican Governors Association, addressed the matter at a panel hosted by Politico. It was his first extensive comments since asking lawmakers this week to drop a bill that would have required women seeking abortions to submit to a vaginal ultrasound procedure. The bill drew sharp opposition from Democrats and women's groups and was lampooned on national late night comedy shows.

"I got legal advice from various people, including my attorney general, that these kinds of mandatory invasive requirements might run afoul of Fourth Amendment law," McDonnell said. The Fourth Amendment to the Constitution guards against unreasonable search and seizure.


Permalink 08:25:04 am, by fourth, 165 words, 427 views   English (US)
Categories: General

CA7: Even if officers said they'd seal the house and get a warrant, that did not violate the Fourth Amendment here

There was probable cause from a controlled delivery of a shipping container with 505 lbs of marijuana. The district court found that the officers did not tell the defendant that they would “seal” his house and exclude him while they got a warrant if he didn’t consent. Even if they did say that, they could have easily gotten a warrant, so that was not an unreasonable “threat.” United States v. Neely, 462 Fed. Appx. 632 (7th Cir. 2012).*

Narcs set up a drug deal with a lady and arranged a meeting. She arrived in a car driven by defendant. She gave him up when arrested. That was probable cause to arrest the defendant as the source of her drugs. United States v. Canales, 2012 U.S. Dist. LEXIS 21403 (W.D. Tex. February 21, 2012).*

Claimant’s taking the Fifth in a forfeiture action cost him his standing claim and resulted in summary judgment against him. United States v. $133,420.00 in United States Currency, 672 F.3d 629 (9th Cir. 2012) (not on court’s website).

Permalink 08:16:04 am, by fourth, 252 words, 416 views   English (US)
Categories: General

GA: Arrest warrant authorized entry to arrest, despite ulterior motive to do a plain view for drugs

A narcotics investigator found defendant in a bedroom. He found a methamphetamine pipe in defendant's pockets while performing a pat-down search. The court of appeals held that because the police had a valid arrest warrant for the resident and limited their search to those areas where she could be located, the fact that they could have been motivated to enter the house to search for drugs was immaterial and did not render the entry and subsequent seizure of evidence from defendant illegal. The police reasonably believed that the resident was in the house at the time of their entry based upon information from a neighbor and the fact that the vehicle registered to the resident was parked in front of the house. Jones v. State, 314 Ga. App. 247, 723 S.E.2d 697 (2012).*

“Pleading guilty to two firearm offenses, Lewis unsuccessfully moved to suppress the firearm as the fruit of an unlawful search and seizure. We must determine whether the traffic stop was supported by the requisite reasonable suspicion of criminal activity under the Fourth Amendment based on either: (1) the illegal tints on the vehicle's windows; or (2) the tip that firearms were in the possession of the individuals in the vehicle. We hold that neither basis establishes the reasonable suspicion necessary for the traffic stop. Hence, the firearm discovered on Lewis should have been suppressed. We will vacate Lewis's judgment of conviction and sentence, reverse the denial of his motion to suppress, and remand for further proceedings.” United States v. Lewis, 672 F.3d 232 (3d Cir. 2012).*

Permalink 12:14:03 am, by fourth, 56 words, 2019 views   English (US)
Categories: General

251st anniversary of Otis's Writs of Assistance argument in Paxton's Case

Today is the 251st anniversary of James Otis’ argument at the Boston Old State House against the writs of assistance in Paxton’s Case, heard Tuesday, February 24, 1761. (See this prior post from 2006).

Last year's post here.

Based on the average number of postings over the last nine years, this website passed 10,000 postings, probably 5-7 months ago.

Permalink 12:08:51 am, by fourth, 162 words, 529 views   English (US)
Categories: General "DOJ Urges Supreme Court to Halt Challenge to Warrantless Eavesdropping" Threat Level: DOJ Urges Supreme Court to Halt Challenge to Warrantless Eavesdropping by David Kravets:

The Obama administration is urging the Supreme Court to halt a legal challenge weighing the constitutionality of a once-secret warrantless surveillance program targeting Americans’ communications that Congress eventually legalized in 2008.

The FISA Amendments Act (.pdf), the subject of the lawsuit brought by the American Civil Liberties Union and others, allows the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information."

The administration is asking the Supreme Court to review an appellate decision that said the nearly 4-year-old lawsuit could move forward. The government said the ACLU and a host of other groups don’t have the legal standing to bring the case because they have no evidence they or their overseas clients are being targeted.

Permalink 12:02:35 am, by fourth, 242 words, 458 views   English (US)
Categories: General

MD: Failure to train on difference between Payton and Steagald was a jury question

Failure to train on the difference between a Payton entry on an arrest warrant of the arrestee’s home and a Steagald entry with a search warrant in the premises of a third person was a jury question on this record. “[A] jury could infer from the testimony of Prince George's County Sheriff's Department's deputies that the State trained law enforcement officers to execute arrest warrants in a manner inconsistent with the rules of Payton and Steagald. There was, therefore, sufficient evidence to allow the question of whether the State breached its duty to train officers in a manner consistent with Fourth Amendment principles to reach the jury.” Jones v. State, 425 Md. 1, 38 A.3d 333 (2012).*

Officers were in a crack house responding to a wounded person call. Defendant was more concerned about an open drawer than the person wounded, and an officer went to look and found cocaine. The defendant consented to a search of the premises. Commonwealth v. Carlton, 81 Mass. App. Ct. 294 (February 16, 2012).*

“Does a lawful stop of a motor vehicle for moving violations, the observation of a noticeable odor of freshly-burnt marijuana in the passenger compartment, and the recovery of two packages of marijuana from the driver authorize a police officer to do more than was permitted in Commonwealth v. Cruz, 459 Mass. 459, 945 N.E.2d 899 (2011)? We believe so.” Commonwealth v. Daniel, 81 Mass. App. Ct. 306, 962 N.E.2d 213 (2012),* Review granted by Commonwealth v. Daniel, 462 Mass. 1101, 967 N.E.2d 634, 2012 Mass. LEXIS 373 (Mass., May 3, 2012).


Permalink 02:39:55 pm, by fourth, 244 words, 537 views   English (US)
Categories: General

CA9 upholds DNA testing on an arrest with probable cause

CA9 upholds DNA testing on an arrest with probable cause. Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012):

We assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances,” balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.

Changes from the 90s: DNA was taken by blood and resulted in only a few exonerations. The change in both made this possible.

Update: Rehearing en banc granted July 25, 2012, and this is republished July 28th. This opinion is now vacated by the grant and can't be cited.

Permalink 08:36:34 am, by fourth, 369 words, 441 views   English (US)
Categories: General

OR: Inventory of backpack defendant was told to leave behind with car was unreasonable

Defendant was driving a friend’s car police stopped, and there was no insurance card in the car. The officer said he was going to inventory the car, and he wouldn’t let the defendant take a backpack from the car. That made the inventory discretionary and unreasonable as to the backpack. State v. Dimmick, 248 Ore. App. 167, 273 P.3d 212 (2012):

Here, the city's impoundment ordinance authorized Lundry to seize the vehicle defendant was driving. However, the impoundment policy does not address Lundry's authority to seize portable closed containers located within the vehicle at the time it was stopped. Nor does the policy specify that items present in the vehicle at the time it was stopped must be inventoried. Rather, Lundry was left to exercise his discretion to determine whether the backpack should have been seized as part of the impoundment of the vehicle. Yet, an essential purpose of the limitation on police inventories is to require the police to conduct the inventory "pursuant to a properly authorized administrative program, designed and systematically administered so that the inventory involves no exercise of discretion by the law enforcement person directing or taking the inventory." Atkinson, 298 Or at 10. Because Lundry's seizure of the backpack was an exercise of discretion to deviate from the express authority granted by the city's impound and inventory ordinances, the seizure of the backpack was invalid.

Further, as we stated in Sparks, "inventorying" the contents of a closed container that a vehicle's occupant removes from a vehicle serves none of the purposes justifying the inventory exception to the warrant requirement. Rather, the purposes put forward to justify that policy--protecting the vehicle owner's property while the vehicle is in police custody, reducing the likelihood of false theft claims against the police, and "in the occasional case," protecting the police and others from danger if there is a "concrete basis in specific circumstances" to believe that danger exists--would be served by encouraging occupants to remove small containers. Sparks, 228 Or App at 167 (quoting Atkinson, 298 Or at 7-8) (emphasis in original).

For those reasons, the seizure of the backpack was not justified by the impoundment of defendant's vehicle. Nor did the state provide any other lawful basis for the seizure and consequent search.

Permalink 08:13:44 am, by fourth, 189 words, 410 views   English (US)
Categories: General

CA8: Despite defendant's inability to understand much English, he consented to a search

District court did not clearly err in concluding that a reasonable person would believe defendant had voluntarily consented to a search of his vehicle when he said "sure" in response to the officer's request to search the car, despite giving his name when he was asked his age. Also, the passenger did not have standing to challenge the search. United States v. Guzman, 2012 U.S. App. LEXIS 3343 (8th Cir. February 21, 2012) (unpublished).*

During defendant’s stop for a traffic offense (with the real motive pursuing a meth trafficking investigation), defendant was really nervous and his answers didn’t make sense and he had no driver’s license. Defendant consented to a search, only challenging the basis for the stop, not the consent. Under the hood, it was apparent the air filter had been recently tampered with, and inside was powder methamphetamine. State v. Lopez, 2012 N.C. App. LEXIS 284 (February 21, 2012).*

The district court dismissed this § 1983 claim, inter alia, under Heck v. Humphrey because of a valid state conviction. Plaintiff never really addressed that on appeal, and the judgment is affirmed. Taylor v. Streicher, 465 Fed. Appx. 414, 2012 FED App. 0199N (6th Cir. 2012) (unpublished).*

Permalink 07:34:36 am, by fourth, 363 words, 493 views   English (US)
Categories: General

CA2: Defendant moved to suppress and government failed to do much of anything; suppression affirmed

The district court granted defendant’s motion to suppress for failure to have a reasonable basis for a protective sweep. In the district court, the government failed to develop the record. [Because they couldn’t, because they didn’t think they had to, why?] United States v. Fann, 462 Fed. Appx. 128 (2d Cir. 2012):

In part because the Government did not submit any affidavits or other evidence before the district court to develop the record, the Government fails to identify specific, articulable facts that demonstrate that the officers who conducted the search of the residence reasonably believed that an individual was present at the time of Fann's arrest and that such individual posed a danger to them. Because the officers lacked this reasonable belief, their warrantless search of the residence violated Fann's Fourth Amendment rights. The evidence obtained through the search was properly suppressed.

Compare this Texas case from four days ago where the state prosecutor did the same thing. What were they thinking? We're from the government and we can lose?

They indicted. Did they have no confidence in the case? Roll over and play dead if the defendant happens to file a motion to suppress? What's going on here? If the search was that bad they shouldn't have indicted in the first place. Or were they so obtuse they didn't think of that before going to the grand jury?

Remember Calandra from 1974 holding that the defendant can't litigate the quality of the search before the grand jury because it unnecessarily screws with the grand jury's function and we have to trust the AUSA to do the right thing? In the run of the mill case (98% of them) with close questions of fact and law, I get that. This case, however, is real proof that Calandra might have been wrong when the government is just incapable of recognizing that the officers did it really wrong and the search will fail in court. Nevertheless, there is at least some remedy after indictment. Maybe there is an ethical complaint here for the prosecutor proceeding without justification. See Rule 3.8(a) which is not clear on this. More to the point is Rule 4.4(a) on burdens on others.

Permalink 12:13:55 am, by fourth, 165 words, 501 views   English (US)
Categories: General

SSRN: Slobogin: "Comments on Three Recent Fourth Amendment Articles"

SSRN: Slobogin on Three Recent Fourth Amendment Articles:

Christopher Slobogin (Vanderbilt Law School) has posted Comments on Three Recent Fourth Amendment Articles on SSRN. Here is the abstract:

This document combines short comments about three recent articles discussing Fourth Amendment issues. An Original Take on Originalism, published in Harvard Law Review Forum, is a comment on Orin Kerr’s An Equilibrium-Adjustment Theory of the Fourth Amendment, recently published in Harvard Law Review. Professor Kerr argues that Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. Contrary to Professor Kerr’s assertion, however, his equilibrium-adjustment theory does not easily explain many of the Court’s cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are often shaky or insufficiently cognizant of modern preferences. At bottom, equilibrium-adjustment theory is originalism, and thus suffers from all of the problems associated with that methodology.

Permalink 12:00:13 am, by fourth, 111 words, 384 views   English (US)
Categories: General

FL2: Continuing interrogation after defendant lawyered up required suppression of a knife

A knife of the defendant was suppressed as the direct product of a continuing interrogation after defendant invoked his right to counsel and remain silent. State v. Venegas, 79 So. 3d 912 (Fla. 2d DCA 2012).*

Defendant’s nervousness and the officer’s prior knowledge of the defendant’s drug record was reasonable suspicion to continue the stop. [Not anywhere else in the country, that’s for sure.] Johnson v. State, 2012 Ark. App. 167 (February 22, 2012).*

Defense counsel was not ineffective for not filing a motion to suppress a gun found after defendant fled from the police during a stop allegedly without reasonable suspicion and dropped it. People v. Henderson, 965 N.E.2d 1285, 2012 IL App (1st) 101494 (2012).*


Permalink 03:05:54 pm, by fourth, 372 words, 830 views   English (US)
Categories: General "There Is Nothing Constitutional About State-Mandated Transvaginal Ultrasounds" There Is Nothing Constitutional About State-Mandated Transvaginal Ultrasounds by John W. Whitehead:

“Women might consider this bill a TSA pat-down inside their vagina.” – Jon Stewart, The Daily Show

Contraception and abortion are shaping up to be mobilizing issues in this year’s presidential election. From disputes over whether the federal health care mandate should cover contraception and abortion to state-led efforts to undermine abortion by, among other things, requiring that women seeking to have abortions be subjected to invasive transvaginal ultrasounds without their consent, these highly partisan issues keep us divided and distracted, and incapable of doing anything to prevent the steady erosion of our rights by the powers that be.

The latest political kerfuffle to make national headlines comes out of Virginia, where women’s rights advocates are mobilizing over legislation requiring that doctors act as agents of the state and subject women seeking abortions to ultrasound procedures, which in many cases would mean an invasive transvaginal probe, without their consent. This legislation encapsulates exactly how disrespectful of life and freedom the dialogue on abortion has become.

. . .

The issue, however, is not even whether or not a transvaginal ultrasound is widely used or is medically necessary in order for a doctor to carry out an early-stage abortion. The point is that requiring doctors to carry out such invasive probes on a woman without her consent, thereby intruding upon the physician-patient relationship and reducing doctors to agents of the state, violates the Fourth Amendment’s prohibition against searches by government agents. Frankly, no medical actor, doctor or otherwise, should be coerced by the state into probing a woman’s body. By mandating that doctors carry out such invasive probes on a woman without her consent, the bill’s sponsors trade one misdeed (abortion) for another (violating a woman’s Fourth Amendment right to be free from searches by government agents).

Besides being an unreasonable search, it would be rape under most state laws by forced penetration by a foreign object against a woman's will. State sanctioned rape by foreign object?

For many in the GOP, there is more of a constitutional right to the light bulb of your choice than in bodily integrity or bedroom privacy. How twisted is that?

Permalink 11:44:45 am, by fourth, 1055 words, 508 views   English (US)
Categories: General

SCOTUS reverses CA9 denial of qualified immunity on warrant that should have been good

In Messerschmidt v. Millender, 2012 U.S. LEXIS 1687 (February 22, 2012), the Supreme Court held that the Ninth Circuit en banc erred in finding officers who obtained a search warrant that might have been overbroad were still entitled to qualified immunity because the officers prepared the application and warrant, cleared it with a superior and a prosecutor, and then a magistrate signed off on it. It was not so lacking in probable cause that the good faith exception would not apply or qualified immunity would not protect them. The officers were not, in the words of Malley v. Briggs, “plainly incompetent.” Essentially, they're saying the warrant was good after all under Groh v. Ramirez. The Syllabus, omitting the facts:

(a) Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U. S. 223, 231. Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner, or in “objective good faith.” United States v. Leon, 468 U. S. 897, 922–923. Nonetheless, that fact does not end the inquiry into objective reasonableness. The Court has recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.” Malley v. Briggs, 475 U. S. 335, 341. The “shield of immunity” otherwise conferred by the warrant, id., at 345, will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U. S., at 923. The threshold for establishing this exception is high. “[I]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination” because “[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.” Leon, supra, at 921. Pp.8−10.

(b) This case does not fall within that narrow exception. It would not be entirely unreasonable for an officer to believe that there was probable cause to search for all firearms and firearm-related materials. Under the circumstances set forth in the warrant, an officer could reasonably conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned, Illinois v. Gates, 462 U. S. 213, 238, and that Bowen’s sawed-off shotgun was illegal. Cf. 26 U.S.C. §§ 5845(a), 5861(d). Given Bowen’s possession of one illegal gun, his gang membership, willingness to use the gun to kill someone, and concern about the police, it would not be unreasonable for an officer to conclude that Bowen owned other illegal guns. An officer also could reasonably believe that seizure of firearms was necessary to prevent further assaults on Kelly. California law allows a magistrate to issue a search warrant for items “in the possession of any person with the intent to use them as a means of committing a public offense,” Cal. Penal Code Ann. §1524(a)(3), and the warrant application submitted by the officers specifically referenced this provision as a basis for the search. Pp. 10–12.

(c) Regarding the warrant’s authorization to search for gang related materials, a reasonable officer could view Bowen’s attack as motivated not by the souring of his romantic relationship with Kelly but by a desire to prevent her from disclosing details of his gang activity to the police. It would therefore not be unreasonable—based on the facts set out in the affidavit—for an officer to believe that evidence of Bowen’s gang affiliation would prove helpful in prosecuting him for the attack on Kelly, in supporting additional, related charges against Bowen for the assault, or in impeaching Bowen or rebutting his defenses. Moreover, even if this were merely a domestic dispute, a reasonable officer could still conclude that gang paraphernalia found at the Millenders’ residence could demonstrate Bowen’s control over the premises or his connection to other evidence found there. Pp. 12−16.

(d) The fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause. A contrary conclusion would mean not only that Messerschmidt and Lawrence were “plainly incompetent” in concluding that the warrant was supported by probable cause, Malley, supra, at 341, but that their supervisor, the deputy district attorney, and the magistrate were as well. Pp. 16−18.

(e) In holding that the warrant in this case was so obviously defective that no reasonable officer could have believed it to be valid, the court below erred in relying on Groh v. Ramirez, 540 U. S. 551. There, officers who carried out a warrant-approved search were not entitled to qualified immunity because the warrant failed to describe any of the items to be seized and “even a cursory reading of the warrant” would have revealed this defect. Id., at 557. Here, in contrast, any arguable defect would have become apparent only upon a close parsing of the warrant application, and a comparison of the supporting affidavit to the terms of the warrant to determine whether the affidavit established probable cause to search for all the items listed in the warrant. Unlike in Groh, any error here would not be one that “just a simple glance” would have revealed. Id. at 564. Pp. 18−19.

620 F. 3d 1016, reversed.

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

One could see this one coming. The Ninth Circuit to me plainly contradicted Groh, and the warrant was going to ultimately be upheld. As I've said here and in the treatise before, if the good faith exception would save the warrant, the officer would have qualified immunity, and vice versa. They work hand in glove. The qualified immunity cases were used to create the good faith exception.

Permalink 09:44:01 am, by fourth, 290 words, 508 views   English (US)
Categories: General

NC: Defendant consented to search of trunk and showed trunk key; he did not withdraw consent by equivocal statement

Defendant consented to a search of his trunk, even showing the officers the trunk key. His statement “they’re tearing up my trunk” was not a withdrawal of consent. State v. Schiro, 2012 N.C. App. LEXIS 245 (February 21, 2012)*:

In the case at hand, officers testified to receiving consent from defendant to search his vehicle. Defendant even showed officers which key opened the trunk of his car. Defendant, alternatively, contends he revoked his consent while sitting, arrested, in a nearby patrol car when he “said several times, ‘They’re — man, they’re tearing up my trunk.’” Defendant correctly notes that a person may withdraw his or her consent to a search. State v. Hagin, 203 N.C. App. 561, 564, 691 S.E.2d 429, 433, disc. review denied, 364 N.C. 438, 702 S.E.2d 500 (2010). “The scope of a valid consent search is measured against a standard of objective reasonableness where the court asks ‘what would the typical reasonable person have understood by the exchange between the officer and the suspect?’” Id. at 564, 691 S.E.2d at 432 (quoting Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302 (1991)). A reasonable person would not have considered defendant’s statements that the officers were “tearing up” his car to be an unequivocal revocation of his consent. Similarly, in State v. Morocco, 99 N.C. App. 421, 430, 393 S.E.2d 545, 550 (1990), our Court held that the trial court did not err in determining that the defendant did not revoke his consent to search his vehicle when he made the ambiguous statement that a tote bag found in his car had nude photographs of his wife. Had defendant, in the case at bar, desired to revoke his consent he should have made it in a clearer statement that a reasonable person would have considered to be a revocation.

Permalink 07:57:25 am, by fourth, 176 words, 618 views   English (US)
Categories: General

GA: Even arrest warrant for minor infraction justified entry to arrest

An arrest warrant for a minor infraction still justified an entry into the home to arrest. The search was limited to looking for a person. Evidence found on defendant’s person was legally seized. Jones v. State, 314 Ga. App. 247, 723 S.E.2d 697 (2012):

Here, the officers' entry into the home was not warrantless. Instead, the officers entered Brown's residence, reasonably believing she was present in the home at the time, to execute a valid arrest warrant. ... Importantly, the police limited their search to those areas in which Brown might be located; there was no evidence that they attempted to search the house for narcotics or any other items. Under these circumstances, because the police had a valid arrest warrant for Brown (albeit for a minor infraction), and because the officers properly limited their search of her home to those areas where she might be located, the fact that they might have been motivated to enter the house to search for drugs was immaterial and does not render the entry and subsequent seizure of evidence from Jones illegal. ...

Permalink 07:31:31 am, by fourth, 145 words, 411 views   English (US)
Categories: General

E.D.Va.: Trash can not far from back door was on "common easement," and, therefore, outside curtilage

In a trash pull, the court finds that the trash can was partially on a common sidewalk away from the back door of defendant’s house on a “common easement,” therefore outside the curtilage. United States v. Jackson, 2012 U.S. Dist. LEXIS 20517 (E.D. Va. February 17, 2012).*

Defendant did not show a reasonable expectation of privacy in a vehicle where he did not even know the owner of it and there was no pattern of possession of the vehicle indicative of control granted by the owner. United States v. Guevara, 2012 U.S. Dist. LEXIS 20910 (D. Neb. February 21, 2012).*

Defendant was an accused member of a drug trafficking organization (DTO) that operated for a long time. Reliance on a telephone call that was four months old was not stale given the ongoing nature of the DTO. United States v. Loaiza-Clavijo, 2011 U.S. Dist. LEXIS 153347 (N.D. Ga. October 13, 2011).*

Permalink 12:06:07 am, by fourth, 75 words, 398 views   English (US)
Categories: General "Drones May Set Off a Flurry of Lawsuits" Drones May Set Off a Flurry of Lawsuits by Somini Sengupta:

Opening up the skies to the civilian use of drones in the United States is likely to lead to a number of new questions about surveillance by electronic means.

Unmanned aerial vehicles can not only take photos and videos, they can also spot heat sources, read car license plate numbers, and perhaps soon capture other information about people and things down below.


Permalink 05:15:04 pm, by fourth, 82 words, 429 views   English (US)
Categories: General "Will SCOTUS Invent a 'Database-and-Mining' Exception to the Fourth Amendment?" Will SCOTUS Invent a “Database-and-Mining” Exception to the Fourth Amendment?

As I noted yesterday, the Administration appealed the 2nd Circuit Decision granting review of the FISA Amendments Act to the Supreme Court last week. I wanted to talk about their argument in more detail here.

Over at Lawfare, Steve Vladeck noted that this case would likely decide whether and what the “foreign intelligence surveillance” exception to the Fourth Amendment, akin to “special needs” exceptions like border searches and drug testing.

Permalink 05:05:38 am, by fourth, 86 words, 610 views   English (US)
Categories: General

Santorum: "The right to privacy is not the right to a common good."

From one person who wants to pick your Supreme Court members, from 2003: Santorum: Privacy ruined everything:

All the rights in the Constitution, which are individually based rights, according to our founders were not there for the individual’s gain, but the reason we established those rights was for the common good. The right to privacy is not the right to a common good.

From The Maddow Blog. Sounds almost Communistic to me. I thought Ayn Rand was a Tea Party darling? This isn't what she believed.

Permalink 12:04:59 am, by fourth, 146 words, 595 views   English (US)
Categories: General

CA4: A protective weapons search under Michigan v. Long is an exception to Gant

Defendant’s stop for a taillight being out was cause for the stop, defendant’s inability to answer basic questions about what he was doing and where he was going in a high crime area, his criminal record, and his generally matching the description of a robber became reasonable suspicion. A protective weapons search under Michigan v. Long is an exception to Gant. United States v. Lewis, 466 Fed. Appx. 170 (4th Cir. 2012) (unpublished)*:

[T]the officer reasonably believed that Lewis could be armed and dangerous. Moreover, Lewis' lack of restraint and close proximity to the driver's side door permit the conclusion that Lewis could access any weapons within the vehicle. See Long, 463 U.S. at 1051-52; United States v. Elston, 479 F.3d 314, 320 (4th Cir. 2007).

... [T]he limited restraint placed on Lewis prior to the search did not amount to a formal arrest that would trigger Gant's protection.


Permalink 03:55:40 pm, by fourth, 182 words, 537 views   English (US)
Categories: General

IT World: "SOPA replacement uses child porn as excuse to spy on 99.7 percent of Americans"

IT SOPA replacement uses child porn as excuse to spy on 99.7 percent of Americans / SOPA author Lamar Smith pushing bill to make web sites track every user's every move by Kevin Fogarty:

The SOPA and PIPA bills that went down in flames earlier this year for their unbearable intrusiveness, used content piracy as an excuse to give the government powerful tools with which to censor Internet content.

For 2012 the primary author of those bills has switched to a fallback tactic: using child porn as an excuse to create a vast surveillance network from which the government can demand data on every email sent, site visited or link clicked on by all but a fraction of one percent of the U.S. population.

Internet anti-censorship advocates including Anonymous are calling for the ouster of Texas Congressman Lamar Smith, who is following his co-sponsorship of the failed Stop Online Piracy Act (SOPA) with a bill critics call "Big Brother" disguised as an effort to curb child porn and sexual abuse.

The link I can't imbed:

Permalink 12:24:27 am, by fourth, 330 words, 430 views   English (US)
Categories: General

FL1: Wife had no apparent or actual authority to consent to search of safe in shared bedroom where she had no key and nothing in it

Defendant’s wife had no apparent or actual authority to consent to a search of a safe in their bedroom where she had nothing in the safe and did not have a key to it. King v. State, 79 So. 3d 236 (Fla. 1st DCA 2012):

At the motion hearing, the wife testified that (1) the safe was given to her husband by his mother; (2) she did not have a key to the safe; (3) the safe housed her husband's personal belongings; and (4) she did not have any of her personal belongings inside. As such, the wife did not have the actual authority to consent because she did not mutually use the safe. Marganet, 927 So. 2d at 57-58.

Second, the State argues the officers had apparent authority to search the safe because it was found amidst the belongings of both spouses in their jointly owned bedroom and closet. However, "[l]aw enforcement may only rely on a person's apparent authority to give consent if such consent is reasonable given the totality of the circumstances." Brock v. State, 24 So. 3d 703, 704 (Fla. 1st DCA 2009) (citing State v. Young, 974 So. 2d 601, 609 (Fla. 1st DCA 2008)). If the basis for the asserted authority is not clear, the officer must conduct further inquiry before relying on the third party's representations. Id. Here, prior to prying open the safe, the officer knew the wife did not have a key and that the safe contained appellant's personal property. As such, it was incumbent upon him to conduct a further inquiry into the possession of the safe prior to forcing it open. For these reasons, we reverse the motion to suppress and remand for further proceedings consistent with this opinion.

We also reject the argument that exigent circumstances justified the warrantless search. Once the officers had secured the safe, there was no reasonable probability that evidence would be destroyed or that the failure to conduct an immediate search would endanger persons or property.

[Having to pry open the safe might have been a clue.]

Permalink 12:14:24 am, by fourth, 184 words, 415 views   English (US)
Categories: General

OH12: Counsel talking with client within earshot of courtroom security was not privileged communication; they waived REP

Overhearing a conversation between attorney and client in the courtroom in front of a courtroom security officer was not a violation of the Fourth or Sixth Amendment because they chose to talk within earshot of him. “Had Lawson and his counsel wished to protect the right to private consultation, they could have chosen to discuss matters in the jail where Lawson had the right to hold discussions with counsel without security personnel in the room. Such was Lawson's right. His choice not to do so, however, is not a violation of his constitutional right to counsel.” This is not a situation of an overheard private conversation where there was an expectation of privacy. State v. Lawson, 2012 Ohio 548, 2012 Ohio App. LEXIS 481 (12th Dist. February 13, 2012).

“Fruits of the crime” from state Rule 41 in the search warrant was an adequate description where it was not possible for officers to specify what the proceeds would be. The police validly seized the goods, but it wasn’t good enough to convict for possession of proceeds because it was speculation. State v. Conway, 2012 Ohio 590, 2012 Ohio App. LEXIS 514 (8th Dist. February 16, 2012).

Permalink 12:01:40 am, by fourth, 261 words, 498 views   English (US)
Categories: General

LA2: Error of other references of name of person to be searched in SW was correctable at suppression hearing

The search warrant for blood was based on a template that had the name of another person in the warrant too. This was a mere typographical error that was correctable by the court [citing no case law at all]. State v. Green, 91 So. 3d 315 (La. App. 2 Cir. 2012):

The blood sample taken from the defendant was withdrawn pursuant to a warrant issued based on a probable cause affidavit. The affidavit submitted in support of the warrant application inadvertently contained in several places the name of an individual not associated with the case. The attesting officer utilized a template to generate the affidavit and failed to change the name of the accused to the defendant's name in several places. The affidavit, however, also contained the name, date of birth and address of the defendant, sufficiently describing the defendant as the person from whom evidence was being sought. In addition, the search warrant contained only the name of the defendant. Since it is apparent from the four corners of the affidavit that the defendant was the individual from whom the evidence was to be seized, the mistaken references to the other individual are not fatal to the affidavit.

Defendant’s tractor trailer logbooks made little sense and also showed that defendant came from California heading to Miami, but he’d gone through Montana. Defendant couldn’t account for his downtime, and the officer brought the defendant between the vehicles to talk to him. He asked for consent to use a drug dog which defendant consented to. Freeman v. State, 2012 Ark. App. 144, 391 S.W.3d 682 (2012).*


Permalink 03:05:43 pm, by fourth, 193 words, 446 views   English (US)
Categories: General

Drug Policy Alliance Press Release: "Congress Approves Drug Testing of America's Unemployed"

Drug Policy Alliance Press Release: Congress Approves Drug Testing of America's Unemployed / Americans Will Be Forced to Pay for the Violation of their Own Constitutional Rights:

WASHINGTON, DC—Congress today approved a deal which will broadly expand drug testing. As part of the deal to extend the payroll tax cut and unemployment benefits, Democrats caved in to Republican demands to allow states to drug test people applying for unemployment insurance (UI) benefits.

The deal, which President Obama will sign, allows states to drug test UI benefit claimants who might apply to work for employers with a drug testing policy. The new policy amounts to a subsidized “prescreen,” at taxpayer expense, for employers who would eventually have done their own tests. The policy actually encourages employers to just announce that they will drug test, without actually paying to do it, because state unemployment bureaucracies will now do that for them.

This policy is strongly skewed toward lower-wage jobs, as “white-collar” employers are far less likely to humiliate job applicants in this way. This policy broadly expands and subsidizes drug testing in a way that may be difficult to reverse for many years, if ever.

Permalink 09:37:03 am, by fourth, 380 words, 482 views   English (US)
Categories: General

CA3: State court could have heard § 1983 case, so issue preclusion barred federal action

Plaintiff’s injuries were caused by the defendants’ illegal warrantless searches and penalties without due process. However, the claim was barred by issue preclusion because of a state court order that essentially decided the issues and could have heard the § 1983 claim. Cycle Chem, Inc. v. Jackson, 465 Fed. Appx. 104 (3d Cir. 2012) (unpublished):

All three requirements are met here. The judgment rendered by the New Jersey Appellate Division was valid, final and on the merits. There is also identity of the parties, for Cycle Chem was a party to the first action and the Defendant, the DEP Commissioner, is the DEP's privy. See Jones, 29 F.3d at 830 (finding that the defendants, who were employees of a state agency, were in privity with that state agency, which was the defendant in the first action); see also Schuster v. Martin, 861 F.2d 1369, 1373 (5th Cir. 1988) ("It is also a general principle of the law of preclusion that state officials are, as a matter of law, in privity with the agency or department in which they serve.").

Finally, the claims presented in this action grow out of the same transaction or occurrence as the claims in the first action; indeed, the New Jersey Appellate Division considered and rejected the same claims that Cycle Chem brings here. Cycle Chem's claims here stem from the DEP's allegedly illegal search of Cycle Chem's facilities and imposition of penalties on Cycle Chem for impeding the attempted search. In its opinion, the Appellate Division listed Cycle Chem's arguments, among them that the DEP "lacked authority to conduct a warrantless search" and that the penalties were wrongfully imposed. ... The Appellate Division then rejected those arguments, discerning "no basis in the record of this matter justifying a departure from the general rule permitting 'administrative,' i.e. warrantless, searches of highly or pervasively regulated industries" and finding that the penalties were therefore properly imposed. (Id. at A38-39.) By doing so, the Appellate Division demonstrated that it would have exercised its original jurisdiction to resolve the § 1983 claims had Cycle Chem brought them in state court. See Jones, 29 F.3d at 831-32 (predicting whether a state court would have exercised original jurisdiction over a § 1983 claim in an appeal from an administrative decision). Accordingly, res judicata bars a federal court from entertaining Cycle Chem's suit.

Permalink 12:12:26 am, by fourth, 245 words, 400 views   English (US)
Categories: General

TX4: State didn't call officer and relied on his report and failed in its burden of proving exigency

A general denial of a motion to suppress preserves all the issues raised. In the suppression hearing, the state only put in the officer’s report and the defendant testified. While the testimony at trial was far more complete, the state failed to prove destruction of the evidence as an exigent circumstance or consent, and the motion to suppress should have been granted. Turrubiate v. State, 365 S.W.3d 780 (Tex. App. – San Antonio February 15, 2012) (dissent here), PDR granted 2012 Tex. Crim. App. LEXIS 737 (Tex. Crim. App. June 6, 2012). [Note: One would suspect that the state knew the trial judge would deny the motion because of the trial judge's predictability (i.e., denies all suppression motions, no matter what the merit), so it just didn't care about the record.]

“The motion judge did not err in essentially concluding that after being read Miranda rights, the defendant consented to the search based on a pragmatic assessment of the circumstances, and not because of coercion or duress.” Commonwealth v. Charlton, 81 Mass. App. Ct. 294, 962 N.E.2d 203 (2012).*

Defense counsel was not ineffective, inter alia, because he “did not move to suppress the firearm on the grounds that the search warrant was not issued by a federal judge, was not supported by a proper affidavit, lacked the proper seals or stamps, and was not made available to defense counsel ....” The motion to suppress was litigated on the merits before trial. United States v. Broadnax, 2012 U.S. Dist. LEXIS 19901 (N.D. Tex. January 11, 2012).*

Permalink 12:02:41 am, by fourth, 401 words, 488 views   English (US)
Categories: General

GA: Reasonable to open "My Picture" folder in a search for drug records in a computer

In a search warrant of a computer for drug record evidence, it was reasonable to open the “My Pictures” folder where child pornography was found. Henson v. State, 314 Ga. App. 152, 723 S.E.2d 456 (2012):

In his sole enumeration of error, Henson contends that the trial court erred in denying his motion to suppress the evidence of child pornography found on his personal computer. Specifically, he argues that the police officer who initially searched his computer exceeded the scope of the warrant seeking evidence of illegal drug transactions when he opened the "My Pictures" folder. We disagree.

In Reaves v. State, our Supreme Court addressed the particularity requirement for warrants and held that "[a]lthough a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved." Specifically, "the particularity requirement only demands that the executing officer be able to identify the property sought with reasonable certainty."

Here, as previously noted, the warrant sought a search for "marijuana, miscellaneous items associated with drug distribution such as packaging material, digital and hand scales, marijuana smoking devices, cash proceeds and records (both written and electronic) of illegal drug sales." And given that electronic records of illegal drug transactions are included amongst those items to be searched, the warrant permitted the search of personal computers at the subject address. Indeed, Henson does not argue on appeal that his computer was an improper target of the search. Nevertheless, he contends that the officer's search exceeded the scope of the warrant because his computer's "My Pictures" folder, which by its very title obviously contained photographs, is not encompassed by the term "electronic records." However, the ordinary signification of "record" is "[a]n account of some fact or event preserved in writing or other permanent form ... or "any thing ... serving to indicate or give evidence of, or preserve the memory of, a fact or event." And given that a picture certainly preserves or gives evidence of a fact or event—in many instances as efficiently as a thousand words—Henson's claim that the term "electronic records" does not encompass pictures or photographs lacks merit. Thus, the trial court did not err in finding that the officer's search did not exceed the scope of the warrant.


Permalink 02:56:19 pm, by fourth, 190 words, 424 views   English (US)
Categories: General

JURIST: "FISA and the Battle Between National Security and Privacy"

JURIST: FISA and the Battle Between National Security and Privacy by Jimmy Gurulé:

Defendant Mohanad Shareef Hammadi, an Iraqi citizen who was granted refugee status under the Refugee Admissions Program and resided in Bowling Green, Kentucky, was arrested and charged with 10 terrorism-related offenses. The indictment alleged that Hammadi and a co-defendant attempted to provide material support and resources to members of al Qaeda in Iraq, a designated foreign terrorist organization, including rocket-propelled grenade launchers, hand grenades, machine guns, cases of C4 plastic explosives, sniper rifles and money, to be used in the preparation for and killing of Americans located outside the US. Hammadi and his co-defendant were also charged with attempting to provide two Stinger surface-to-air missile launcher systems to al Qaeda in Iraq for the purpose of killing Americans abroad.

Prior to trial, Hammadi filed a motion to disclose and suppress evidence obtained pursuant to electronic surveillance and a physical search authorized under the Foreign Intelligence Surveillance Act (FISA). Hammadi alleged that the evidence should be suppressed on the grounds that it was illegally obtained or not collected in conformity with the order of the Foreign Intelligence Surveillance Court.

Permalink 01:50:43 pm, by fourth, 607 words, 645 views   English (US)
Categories: General

MA: Because of traffic offenses, smell of marijuana from car warranted search despite decriminalization

Smell of marijuana in a car also implicates the dangerous use of the car. Here, the officer observed three traffic violations in short order, and, on stopping the car, he smelled marijuana coming from the car. Commonwealth v. Cruz, 459 Mass. 459 (2011) [posted here] distinguished. Commonwealth v. Daniel, 81 Mass. App. Ct. 306, 962 N.E.2d 213 (2012):

Our analysis begins with the reasoning and holding of Cruz [decriminalization of marijuana and search], but does not end there because the criminality afoot in this case does not depend solely on the amount of marijuana present in the vehicle. Rather, it derives from the presence of a noticeable odor of freshly burnt marijuana inside a vehicle that was being operated in a dangerous manner on a public way by an operator who had marijuana on her person, together with a passenger who made movements in the vicinity of the glove box upon the approach of the officer. Put differently, what rendered the activities of Tayetto and Daniel criminal was not the amount of marijuana possessed, but their consumption of marijuana in a vehicle that was operating on the ways of the Commonwealth in a manner that put the public at considerable risk. See G. L. c. 90, §§ 24(1)(a)(1) (operating under the influence of marijuana), & 24(2)(a) (operating negligently so as to endanger the lives and safety of the public).

Here there was far more to establish criminality than the faint odor of marijuana emanating from an illegally parked vehicle. First was the manner of Tayetto's operation: she operated the vehicle at night without a driver's—side headlight; made a left intersection turn in front of DeLeo's cruiser without signaling; and in response to the cruiser's blue lights, applied the brakes immediately, stopping in the middle of the travel lane. Second was the likelihood that Daniel's movements signified his hiding of contraband. As DeLeo approached, Daniel was leaning over, and rocking his shoulders back and forth with his head down. Third was the noticeable odor of freshly burnt marijuana, which suggested an immediate explanation for Tayetto's erratic operation, followed by an explanation for the odor that DeLeo was free to reject as implausible given his observations, and Tayetto's quick surrender of two baggies of marijuana from her person. Viewed objectively and reasonably, and without parsing each individual component, these facts provided DeLeo with probable cause to believe that Tayetto and Daniel were engaged in the consumption of marijuana in a moving vehicle, that Tayetto's capacity to operate was impaired thereby, that Tayetto's negligent operation endangered the lives and safety of the public, and that additional marijuana and evidence of recent marijuana usage could be found inside the passenger compartment, including the glove box. See Commonwealth v. Garden, 451 Mass. at 50 ("any contraband hidden on the passengers' person easily could have been transferred to a location in the passenger compartment"). See also Commonwealth v. Correia, 66 Mass. App. Ct. 174, 177 (2006) (odor of burnt marijuana emanating from vehicle gave probable cause to search vehicle's occupants as well as vehicle for evidence of marijuana use and possession whether or not police had probable cause to arrest any particular occupant).

While it might have been preferable for DeLeo first to have made detailed observations of Tayetto's eyes or conducted field tests for additional evidence that she was operating under the influence of marijuana, his failure to do so is not fatal to the determination of probable cause. Having observed Tayetto commit three moving violations in the span of only a short distance, readily detected the odor of freshly burnt marijuana emanating from the passenger compartment, and recovered two baggies of marijuana from her person, DeLeo did not require more to establish probable cause. ...

Permalink 12:44:26 pm, by fourth, 171 words, 375 views   English (US)
Categories: General "Drones Set Sights on U.S. Skies" Drones Set Sights on U.S. Skies by Nick Wingfield and Somini Sengupta:

WOODLAND HILLS, Calif. — Daniel Gárate’s career came crashing to earth a few weeks ago. That’s when the Los Angeles Police Department warned local real estate agents not to hire photographers like Mr. Gárate, who was helping sell luxury property by using a drone to shoot sumptuous aerial movies. Flying drones for commercial purposes, the police said, violated federal aviation rules.

“I was paying the bills with this,” said Mr. Gárate, who recently gave an unpaid demonstration of his drone in this Southern California suburb.

His career will soon get back on track. A new federal law, signed by the president on Tuesday, compels the Federal Aviation Administration to allow drones to be used for all sorts of commercial endeavors — from selling real estate and dusting crops, to monitoring oil spills and wildlife, even shooting Hollywood films. Local police and emergency services will also be freer to send up their own drones.

Permalink 12:14:28 am, by fourth, 196 words, 370 views   English (US)
Categories: General

DC: SW for guns authorized search behind dresser

Officers had a search warrant for guns, and they searched defendant’s bedroom and found bag of marijuana behind a dresser, defendant's I.D. on the dresser, and a marijuana pipe and bong on a shelf in the closet. Those items were found in places the officers would have legally searched while looking for guns and ammunition pursuant to the warrant. State v. Shank, 2012 Iowa App. LEXIS 114 (February 15, 2012).*

The record here was insufficient to decide whether the defendant was not prejudiced by lack of evidence that defense counsel did not introduce. Moreover, “[g]iven the deficiencies in the factual record, we cannot uphold the court's denial of appellant's § 23-110 motion on the alternative ground urged by the government (i.e., that the motion to suppress that his trial counsel failed to file would not have resulted in the exclusion of evidence).” Remanded; the court does not think that the government abandoned its position on developing the record. Porter v. United States, 37 A.3d 251 (D.C. 2012).*

Defendant was not seized when he dropped a gun while fleeing, so defense counsel was not ineffective for not raising it. People v. Henderson, 2012 Ill. App. LEXIS 102, 2012 IL App (1st) 101494 (February 15, 2012).*

Permalink 12:02:17 am, by fourth, 116 words, 364 views   English (US)
Categories: General

W.D.Ark.: Defense counsel not ineffective for not playing video of stop that didn't contradict any witness

Defense counsel was not ineffective for not playing the video of defendant’s stop at the suppression hearing since it was merely cumulative to the officer’s testimony and contradicted nothing. United States v. Franklin, 2011 U.S. Dist. LEXIS 153257 (W.D. Ark. November 16, 2011).*

The search of defendant’s vehicle was with probable cause and involved the automobile exception and not Gant search incident. United States v. Winarske, 2012 U.S. Dist. LEXIS 19334 (D. N.D. February 16, 2012).*

The information provided in the affidavit showed probable cause [it clearly did], and, even if it didn’t, it’s not bare bones, and the good faith exception would apply. United States v. Escamilla, 2012 U.S. Dist. LEXIS 19079 (D. Md. February 15, 2012).*


Permalink 09:52:29 am, by fourth, 218 words, 401 views   English (US)
Categories: General

D.Neb.: Interrogating workers with likely PC not a 4A seizure

ICE did an audit of meat processing plant workers and found that about two dozen employees had submitted I-9 identification that was in the FTC database for identity theft. Interrogating the workers was not a Fourth Amendment seizure. United States v. Flores, 2012 U.S. Dist. LEXIS 19272 (D. Neb. February 16, 2012):

The systematic questioning of employees at a workplace is not a seizure because "[o]rdinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers" and "most workers could have had no reasonable fear that they would be detained upon leaving." [INS v. Delgado, 466 U.S. 210,] at 218-19 [(1984)]. Under the Fourth Amendment, when officers have no basis for suspecting a particular individual, they may generally ask questions of the individual and ask to examine the individual's identification. Id. at 216; United States v. Escobar, 389 F.3d 781, 786 (8th Cir. 2004). Police may not, however, convey a message that compliance with their requests is required. Florida v. Bostick, 501 U.S. 429, 435 (1991).

Accord: United States v. Mejia-Flores, 2012 U.S. Dist. LEXIS 19272 (D. Neb. February 16, 2012).*

Since the evidence before the trial court was not conflicting that there was consent, the appellate court was bound by that finding. Hernandez v. State, 280 So. 3d 416 (Fla. 4th DCA 2012).*

Permalink 09:30:10 am, by fourth, 189 words, 506 views   English (US)
Categories: General

CT: Targeted zoning search requires individualized showing of administrative PC under Camara

The trial court properly determined that the inspection of the defendants' property, which was not part of a periodic or area inspection program, was subject to the requirements of the Fourth Amendment. That court, however, did not apply the correct standard in making its finding of probable cause so the judgment granting the injunction was reversed. The trial court erred in concluding that the appropriate standard for determining probable cause is a showing of a valid public interest. The relaxed showing of Camara is limited to routine and area wide inspections and did not apply to the targeted search of the defendant's property here, which demanded a more particularized showing of probable cause. Before a trial court may issue an order permitting a zoning officer to enter and search a particular property, there must be a preliminary showing of facts within the knowledge of the zoning officer and of which that officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property. Town of Bozrah v. Chmurynski, 303 Conn. 676, 36 A.3d 210 (2012).


Permalink 09:14:12 am, by fourth, 183 words, 475 views   English (US)
Categories: General

M.D.Pa.: Mere passenger had no standing for search of trunk

While defendant arguably had standing to contest the stop of the vehicle [which Brendlin holds and the court does not even cite] he was a mere passenger and had no standing to contest the search of the trunk of a car where he was a mere passenger under Rakas. The search was valid both by consent and search incident for probable cause defendant was involved in a bank robbery. United States v. Shabazz, 2012 U.S. Dist. LEXIS 18470 (M.D. Pa. February 14, 2012).* [Standing to challenge the stop of a vehicle is axiomatic. The court’s failure to cite Brendlin is both its own fault and defense counsel’s failure to raise it.]

Defendant pulled out into the street and stopped for a minute and then backed into the parking lot that he came from. He got the attention of an officer who walked toward his car. While the defendant blocked no traffic and committed no traffic offense, the officer recognized the defendant as somebody with a warrant out on him. That was reasonable suspicion for more. State v. Rodriguez, 2012 Tenn. Crim. App. LEXIS 87 (February 13, 2012).*

Permalink 09:11:17 am, by fourth, 310 words, 452 views   English (US)
Categories: General

E.D.N.C.: 19 day delay in getting SW for laptop seized incident to arrest was not unreasonable

Officers came to arrest defendant for bank fraud and they knew that defendant used a computer as an instrumentality of the crime. They seized his laptop in plain view when making the arrest, and they applied for a search warrant 19 days later. The seizure of the laptop to preserve it and the 19 day delay were not unreasonable under the circumstances. United States v. Camp, 2012 U.S. Dist. LEXIS 5878 (E.D. N.C. January 18, 2012):

Insofar as Defendant has contended that the nineteen day delay between the seizure of Defendant's laptop computer and Agent Spears' application for a search warrant was unreasonable, the Court finds this argument to be without merit. "[E]ven a seizure based on probable cause is unconstitutional if police act with unreasonable delay in securing a warrant." United States v. Martin, 157 F.3d 46, 54 (2nd Cir. 1998). In determining whether a delay is reasonable, a court must consider all of the facts and circumstances surrounding the delay in each particular case. United States v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009) (citation omitted).

The Government has asserted that, during the delay, Agent Spears prepared a draft application for review by the Office of the United States Attorney while simultaneously working on other investigations and arrests. Ultimately, Agent Spears submitted a seventeen page affidavit in support of his application that contained detailed descriptions and statements. Defendant has not pointed to any basis, other than the mere lapse of time, that would support a finding that the delay was unreasonable. Although Defendant's possessory interest in his laptop computer was substantial, the Court finds that there was a compelling justification for the delay in applying for a search warrant such that evidence seized from Defendant's laptop computer should not be suppressed. See Id. (discussing the court's role in weighing the possessory interest in the item seized against the justification for delay offered by the government).

Permalink 09:03:29 am, by fourth, 333 words, 437 views   English (US)
Categories: General

CO: Standing outside of a liquor store in a high crime area and looking left and right and turning away when police car was visible was not RS

Being in a high crime area and standing in front of a liquor store and looking left and right a few times before going in was not reasonable suspicion. When defendant saw a police car, he turned away. This didn't rise to the level of "casing the place" like Terry. People v. Revoal, 2012 CO 8, 269 P.3d 1238 (2012)*:

P17 Although we must consider the location and the hour together with Revoal's actions, the actions of looking left and right and wandering across the parking lot in a seemingly aimless fashion (as opposed to engaging in more deliberate conduct) are too ambiguous to amount to reasonable suspicion that a crime had occurred, was in progress or was about to occur. Revoal's behavior falls below the level of suspicion aroused by the observed behavior in Terry, where the defendants paced "alternately along an identical route, pausing to stare in the same store window roughly 24 times," conferring with each other in between passes and then conferring with a third individual. Terry, 392 U.S. at 22-23. In contrast, Revoal was not looking in any shop windows, nor was he standing or walking where he could access a store to rob it. He did not, at any time, confer with any other person in the vicinity. "There is nothing unusual in ... standing ... on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances strolling up and down the street, singly or in pairs." Id. This is particularly so in an area where businesses are open and other individuals are present.

P18 Finally, although flight from police may support an informant's claim that an individual is engaged in drug trafficking, Canton, 951 P.3d at 910-11, an attempt to avoid coming into contact with a police officer does not, without more, justify an investigative detention of the individual. Rahming, 795 P.2d at 1342. Here, Revoal's change in direction did not convert the relatively innocuous set of circumstances the police observed into justification for an investigatory stop.

Permalink 08:33:41 am, by fourth, 639 words, 729 views   English (US)
Categories: General

D.R.I. Handcuffing here unjustified and turned Terry stop into arrest

Defendant’s handcuffing here was not justified for officer safety and turned a Terry stop into an arrest. United States v. Mayen-Munoz, 844 F. Supp. 2d 251 (D. R.I. 2012):

The government's argument boils down to this: the Defendant's detention was a valid Terry stop from the time of the initial encounter at 7:22 or 7:23 to the point when Officer Metfooney drove him to the station at 7:27 p.m. It is true that a number of the typical factors cut against de facto arrest: the duration was short (no more than five minutes); there was no use of force; Defendant was not told he was under arrest, nor was he Mirandized; there were only two officers at the scene; no weapons were brandished; and the encounter took place in a public, neutral location.

Defendant was, however, handcuffed almost immediately — no later than 7:23 p.m. Although "traditionally associated with an arrest," United States v. Mohamed, 630 F.3d 1, 6 (1st Cir. 2010), the use of handcuffs "does not automatically convert the encounter into a de facto arrest." Acosta-Colon, 157 F.3d at 18. Nonetheless, the use of handcuffs, "being one of the most recognizable indicia of a traditional arrest, substantially aggravates the intrusiveness of a putative Terry stop," id. (internal quotation marks and citation omitted), and the burden of showing the necessity of their use falls squarely on the government:

[I]t must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to undue risk of harm.

Acosta-Colon, 157 F.3d at 19 (emphasis in original); see also Mohamed, 630 F.3d at 6-7. Factors include whether the suspect was "uncooperative, belligerent, or showed any perceptible inclination to put up resistance or become violent" and whether the officers "harbored an actual suspicion" that the suspect was armed. Acosta-Colon, 157 F.3d at 19 (emphasis in original); see also United States v. Meadows, 571 F.3d 131, 141 (1st Cir. 2009).

In this case, the Government has not met its burden. Defendant did not resist his detention — he was cooperative, compliant, and placed into custody without incident. Furthermore, that Defendant was suspected of drug trafficking is not enough to justify a belief that he was armed; such a "factually unanchored justification ... is generalizable to virtually every investigatory stop involving a drug suspect." See Acosta-Colon, 157 F.3d at 19 (emphasis in original). And while the officers' belief that Defendant had fled from the scene of the traffic stop is a relevant consideration, no evidence was offered that would support a belief or suspicion that Defendant was armed. See Meadows, 571 F.3d at 142-43.

The same can be said for the relocation of Defendant to a patrol car. The government must "point to some specific fact or circumstance that could have permitted law enforcement officers reasonably to believe that relocating the suspect . . . was necessary to effectuate a safe investigation," and cannot rely on "bald assertions" for its justification. Acosta-Colon, 157 F.3d at 17 (emphasis in original). The government has offered no evidence to suggest Defendant's relocation was motivated by safety concerns.

Finally, even if the government could show that the use of these arrest-like measures was justified, wholly absent from Defendant's initial detention was any sort of investigation, questioning, or confirming or dispelling of suspicions — the very purposes for which these lesser-intrusions are permitted under the Fourth Amendment. See United States v. Trueber, 238 F.3d 79, 91-92 (1st Cir. 2001) ("[Terry] permits officers to 'stop and briefly detain a person for investigative purposes' and 'diligently pursue[] a means of investigation ... likely to confirm or dispel their suspicions quickly.'" (emphases added) (internal citation omitted)); see also Pontoo, 2011 WL 6016141, at *5, *8.

For all of these reasons, as of 7:23 p.m., when Defendant was handcuffed, his detention amounted to an arrest.

Permalink 08:07:28 am, by fourth, 333 words, 728 views   English (US)
Categories: General

D.Me.: Handcuffs during Terry stop does not automatically make it an arrest

Also from the same circuit same day:

The use of handcuffs for safety, particularly when the officer is alone during a Terry stop does not automatically convert the stop into an arrest. United States v. Maguire, 2012 U.S. Dist. LEXIS 17729 (D. Me. February 13, 2012):

The government has the better argument. The use of handcuffs to address legitimate officer safety concerns during a Terry stop or investigative detention does not transform that detention into an arrest. See, e.g., United States v. Pontoo, 666 F.3d 20 at *8 (1st Cir. 2011) ("[T]he limits of a Terry stop are not automatically transcended by an officer's use of other prophylactic measures. When officer safety is a legitimate concern, a Terry stop appropriately may involve the application of handcuffs[.]"); United States v. Navarrete-Barron, 192 F.3d 786, 791 (8th Cir. 1999) (in light of dangerous nature of suspected crime of drug trafficking and good possibility driver or passenger had weapon, limits of Terry stop were not exceeded when suspect was handcuffed while officers searched truck; "Several other circuits also have found that using handcuffs can be a reasonable precaution during a Terry stop."); Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1030 (10th Cir. 1997) ("[A] Terry stop does not automatically elevate into an arrest where police officers use handcuffs on a suspect or place him on the ground. Police officers are authorized to take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo during the course of a Terry stop.") (citations and internal punctuation omitted); United States v. Le, 377 F. Supp.2d 245, 254 (D. Me. 2005), aff'd, 471 F.3d 1 (1st Cir. 2006) ("Of course, officers may take necessary steps to protect themselves if the circumstances reasonably warrant such measures without transforming a Terry stop into an arrest. This includes drawing weapons when reasonable, such as when officers are faced with a report of an armed threat. The First Circuit has also allowed the reasonable use of handcuffs and backup officers as the situation requires.") (citations and internal quotation marks omitted).


Permalink 02:35:30 pm, by fourth, 277 words, 490 views   English (US)
Categories: General

Volokh: "Does Fourth Amendment Standing Work Differently for Jones Trespass Searches, Traditional Katz Searches, and Long-term Katz Searches?" Does Fourth Amendment Standing Work Differently for Jones Trespass Searches, Traditional Katz Searches, and Long-term Katz Searches? by Orin Kerr:

Over the last forty years, the Supreme Court has worked out a series of principles for when a defendant has standing to object to the Fourth Amendment search of someone else’s property. According to the those cases, the key issue is whether the government violated the defendant’s own reasonable expectation of privacy under the framework introduced by Justice Harlan’s concurring opinion in Katz v. United States. The owner, legitimate renter, or legitimate repeated borrower of a car generally has standing to object to a search of it. A person who steals a car or drives it in violation of a rental contract does not.

In the recent GPS decision of United States v. Jones, however, the Supreme Court introduced — or, depending on how you look at it, reintroduced — two new kinds of Fourth Amendment searches. First, the majority opinion introduced a trespass test for what is a search that supplements the Katz expectation-of-privacy test. Second, to the extent you think it proper to combine the votes of the concurring opinions and consider that an alternative holding, five Justices thought that the cumulative effect of 30 days of monitoring of the car also amounted to a search of the car because it revealed such invasive information about its public location over time.

So here’s the question: Does the standing inquiry developed over the last forty years for Katz expectation–of-privacy searches apply in the same way for Jones trespass searches and Jones long-term expectation of privacy searches? Or is the standing test different?

Permalink 10:00:07 am, by fourth, 280 words, 387 views   English (US)
Categories: General

E.D.N.C.: 20 year scope in records search not overbroad as a matter of law

A date limitation that went back to 1990 was not overbroad as a matter of law. A search warrant for defendant’s gmail email account for evidence of flight was validly issued because the informant’s story was sufficiently corroborated. United States v. Salyer, 2012 U.S. Dist. LEXIS 16981 (E.D. N.C. February 9, 2012):

First, defendant challenges the inclusion of Category II(C)(1), handwritten lab registers and other documents purportedly relating to fraudulent product labeling, because it includes documents going back to 1990, "long before the relevant time period." But defendant provides no authority for this view that only documents dated within the "relevant time period" are subject to search. The cases relied upon by defendant do not stand for this proposition. The cited Ninth Circuit cases involved warrants that permitted searches that were not likely to find evidence of a crime at all. Defendant has identified no case, and the court is aware of none, where the "scope" referred to the mere date of the evidence gathered. The government made a probable cause showing that the evidence of the mis-labeling crimes was to be found in the lab registers and similar documents. Therefore, the government was entitled to search the lab registers.

Police were driving down a cul de sac conducting surveillance, and they were made. They stopped when defendant gestured by waiving his arms and slapping his chest. He refused to identify himself, and he got handcuffed. He was asked about whether there was anybody in the house, and he said there was, so the police could go to the door to knock. They were admitted by acquiescence by somebody with actual authority. United States v. Coulter, 461 Fed. Appx. 763 (10th Cir. 2012).*

Permalink 09:39:12 am, by fourth, 411 words, 458 views   English (US)
Categories: General

MA: Simple MJ possession case did not justify a full search of the person and cell phone

Massachusetts decriminalized small marijuana possession cases. Where the officers only had knowledge of smoking of marijuana and not delivery, a full search of the person and cell phone was unjustified, and the motion to suppress was properly granted. Defendants were rousted by the police after a parent called to complain they wouldn't stop smoking. Commonwealth v. Keefner, 461 Mass. 507, 961 N.E.2d 1083 (2012):

An intent to distribute "is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had ... by inference from all the facts and circumstances ...." Commonwealth v. Rivera, 425 Mass. 633, 648, 682 N.E.2d 636 (1997), quoting Commonwealth v. Ellis, 356 Mass. 574, 578-579, 254 N.E.2d 408 (1970). In this case, while Officer Finnerty had been informed by another about recent marijuana use by the defendant, Officer Finnerty, prior to searching the defendant, did not observe any illegal or suspicious activity on the part of the defendant indicative of an intent to distribute marijuana and there was no information relayed to him concerning any actions by the defendant to support probable cause that the defendant intended to distribute any marijuana. Although Officer Finnerty permissibly could take into account his knowledge of the defendant's prior criminal record, see Roe v. Attorney Gen., 434 Mass. 418, 442, 750 N.E.2d 897 (2001), without additional facts specifically concerning an intent to distribute, Officer Finnerty's knowledge of the defendant's prior criminal record by itself could not justify police intrusion, see Commonwealth v. Kennedy, 426 Mass. 703, 709, 690 N.E.2d 436 (1998). In these circumstances, we conclude that probable cause was not met. See Commonwealth v. Levy, 459 Mass. 1010, 1011, 947 N.E.2d 542 (2011), quoting Commonwealth v. Kennedy, supra at 711 (rejecting per se rule that officer must see object exchanged to have probable cause to arrest for possession of controlled substance with intent to distribute, but noting that such observation is important piece of evidence supporting probable cause and its absence weakens prosecution's probable cause showing).

Because Officer Finnerty lacked probable cause to search the defendant, his search of the defendant was unlawful and the evidence obtained therefrom, namely, the marijuana, cash, and cellular telephone, must be suppressed. Further, because all text messages recovered from the defendant's cellular telephone and information derived therefrom was the direct product of the unlawful search, such evidence also must be suppressed under the "fruit of the poisonous tree" doctrine set forth in Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). See Commonwealth v. Ferguson, 410 Mass. 611, 616, 574 N.E.2d 990 (1991). The motion to suppress was properly allowed.

Permalink 09:20:29 am, by fourth, 536 words, 596 views   English (US)
Categories: General

CA7: Facts of child molestation coupled with being a Limewire subscriber was probable cause CP on computer

Defendant was suspected of sexual molestation after his girlfriend’s friend’s six year old daughter said he molested her when he was babysitting. She related that a nine year old boy was also involved. Defendant was a subscriber to Limewire and had three computers in the house. The facts of child molestation coupled with being a Limewire subscriber was probable cause, and the computers were a logical repository for it. In any event, the good faith exception applies. United States v. Clark, 668 F.3d 934 (7th Cir. 2012):

In his affidavit, Vucich did not provide an example of Michele Clark downloading child pornography; however, he did not need to do so in order to establish Clark's sexual interest in children and connect him to the "collector" profile. Vucich's state-law affidavit extensively described Clark's sexual assault on his four-year-old niece. It further detailed his sexual advances on a nine-year-old boy and another six-year-old girl. In short, the affidavit documents Michele Clark's particular, sexual attraction to children and his willingness to act on his proclivities. The affidavit thus places him at the heart of the boilerplate language to which he objects: as an individual associated with sex offenses involving minors, he likely "collect[ed] and/or view[ed] images on the computer." See supra Part I.A.2.

Moreover, Vucich's affidavit provided evidence that Clark used a computer—a probable repository for child pornography—as part of his advances. These details, too, provided probable cause to connect Clark to the "collector" profile and to conduct an appurtenant search. Specifically, Clark watched pornography on his computer while concurrently asking a six-year-old girl to take her clothes off. Facially, the affidavit provides probable cause to search.

. . .

In light of our conclusion that probable cause existed to search for evidence that Michele Clark collected child pornography, all that was required to authorize a search of his personal residence were facts that "allow[ed] for a reasonable inference that there [wa]s a fair probability that evidence w[ould] be found in a particular place." See Aljabari, 626 F.3d at 944-45. We have held that in child pornography cases, an issuing judge may reasonably assume that a recipient or collector of child pornography would store that content in his home. See id. (citing Watzman, 486 F.3d at 1008). That analysis controls in this case as well: once probable cause existed to characterize Clark as a collector of child pornography, probable cause existed to extend the search to his home and personal computers.

I've been waiting for this to happen, and here it is. No knowledge of child pornography required if there is a logical connection. Can a reviewing court say that it is speculative that an accused child molester would have child pornography too? Based on my experience, no. Most of the people I've represented in child porn cases have denied sexual contact with minors, and one even passed a polygraph from the FBI after passing a private polygraph. Based on his hermit lifestyle, I believe it. Others have a fantasy or curiosity they don't act on. The question is not "more probable than not," so the reviewing court has to sustain the warrant if it is a reasonable conclusion. In this case, it is.

Permalink 09:03:57 am, by fourth, 278 words, 420 views   English (US)
Categories: General

CA6: Letting officers follow inside was consent to enter

The district court’s finding of consent is not clearly erroneous. Officers talked to defendant outside his apartment, “and allowed the officers to follow him inside without objection.” Another witness said he held the door for them. United States v. Jackson, 468 Fed. Appx. 447, 2012 FED App. 0149N (6th Cir. 2012) (unpublished).*

“As the Fourth Circuit has recognized, ‘[t]he maximum acceptable length of a routine traffic stop cannot be stated with mathematical precision.’ United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008).” The officer must at least pursue the subject of the stop. United States v. Singleton, 2012 U.S. Dist. LEXIS 17083 (E.D. Va. February 10, 2012):

Significantly, during the course of a routine traffic stop, a law enforcement officer's "questions or actions ... need not be solely and exclusively focused on the purpose" of the initial stop. United States v. Mason, 628 F.3d 123, 131 (4th Cir. 2010). Rather, an officer may "inquir[e] into matters unrelated to the justification for the traffic stop, ... and may take other actions that do not constitute 'searches' within the meaning of the Fourth Amendment, such as conducting a dog-sniff of the vehicle," provided that those additional actions or inquiries "do not measurably extend the duration of the stop." United States v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2011) (internal quotation marks and citations omitted). 10 Put differently, the scope of the unrelated questions or actions must not demonstrate that the officer has "definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation;" nor may the unrelated questions or actions "constitute[] the bulk of the interaction" between the officer and the motorists. United States v. Digiovanni, 650 F.3d 498, 508-09 (4th Cir. 2011) (internal quotation marks and citation omitted).

Permalink 08:47:42 am, by fourth, 426 words, 565 views   English (US)
Categories: General

N.D.Iowa: Proving "actual authority" v. "apparent authority" to consent

The government failed on proving “actual authority,” but it succeeded in showing “apparent authority.” United States v. Shady, 2012 U.S. Dist. LEXIS 17210 (N.D. Iowa January 20, 2012)*:

Here, Hubbard is not Defendant's spouse nor does she have legal title in Defendant's residence. The exact nature of the living arrangement understood between Defendant and Hubbard is unknown. Hubbard told officers that she had lived at the residence since March 2010, but she did not testify at the hearing. It is likely that 18 months of living with Defendant featured all of the privileges typical of cohabitation, which would thus enable Hubbard authority to consent. See Matlock, 415 U.S. at 171 n.7 ("[i]t is reasonable to recognize that any of the co-inhabitants has the right to permit inspection in his own right."). However, no evidence was presented at the hearing detailing the arrangement. Without proof regarding Hubbard's prior use of and access to the trailer, the Court is unable to find that she had common authority over the residence. Thus, the Government has failed to meet its burden of proving her actual authority to consent to a search.

. . .

Furthermore, the facts available to the officers prior to the warrantless entry support their belief that Hubbard had authority. Most importantly, Hubbard told the police she lived with Defendant. She described in detail her efforts to retrieve personal effects still inside. Hubbard told the officers that Defendant had carried her belongings back into the residence after she had removed them to the sidewalk. This could reasonably suggest to the officers that Defendant recognized Hubbard's cohabitation of the trailer. Finally, Officer Fier testified that Hubbard's knowledge of an unlocked window was apparently not discovered through trial-and-error, as if she were a guest, but with the precise knowledge of a genuine resident. The Eighth Circuit has routinely upheld a finding of apparent authority under similar facts. See Nichols, 574 F.3d at 636-37 (finding apparent authority where cohabitant girlfriend kept possessions at defendant's house, called and met police at the door, and "appeared familiar with the home"); Hilliard, 490 F.3d at 639 (finding apparent authority where girlfriend invited officers into defendant's home, picked up her personal items from the floor, and retrieved defendant's hidden handgun); Douglas, 135 Fed. Appx. at 5-6 (finding girlfriend had apparent authority where she invited officers into defendant's apartment, claimed it was her primary residence over defendant's objections, kept belongings there and revealed location of defendant's handgun). Therefore, the Court believes that the officers could have reasonably believed that Hubbard had authority to allow law enforcement to enter the residence. Amratiel, 622 F.3d at 916.

Permalink 12:02:11 am, by fourth, 253 words, 2643 views   English (US)
Categories: General "Legal proceedings: What is a John Doe investigation anyway?" Legal proceedings: What is a John Doe investigation anyway? by Marcus J. Berghahn, Hurley, Burish & Stanton S.C., Madison:

The news is full of references to an ongoing John Doe investigation concerning the activities of persons connected to Gov. Scott Walker while he served as Milwaukee County executive. John Doe, in this context, does not refer to a person; it is a legal proceeding.

The John Doe proceeding is an institution sanctioned by long usage since Wisconsin’s territorial days. The provisions of Wis. Stat. section 968.26 currently define the scope of a John Doe proceeding in Wisconsin, which is intended as an independent, investigatory tool to ascertain whether a crime has been committed and if so, by whom.

The goal is to allow the judge to determine whether it appears probable from the testimony given that a crime has been committed, and whether to file a complaint. But the proceedings are also designed to protect innocent citizens from the fallout of frivolous prosecutions.

As the Wisconsin Supreme Court stated in 1889: “When [the John Doe] statute was first enacted the common-law practice was for the magistrate to issue the warrant on a complaint of mere suspicion, and he was protected in doing so. This was found to be a very unsafe practice. Many arrests were made on groundless suspicion, when the accused were innocent of the crime and there was no testimony whatever against them. This statute was made to protect citizens from arrest and imprisonment on frivolous and groundless suspicion.”


Permalink 12:23:50 pm, by fourth, 194 words, 544 views   English (US)
Categories: General "Feds Argue Using a Fake Name Can Deprive You of Rights" Feds Argue Using a Fake Name Can Deprive You of Rights by Jennifer Valentino-DeVries:

Does using a fake name when you sign up for a cellphone plan mean the government can get information from your phone without a warrant?

That’s one argument the Department of Justice is making in an Arizona case – that using a false name is fraud and means you don’t have a reasonable expectation of privacy.

Such a stance might raise questions about the widespread practice of using pseudonyms to sign up for services online. But legal experts said it’s unlikely a court would take the argument that far.

The case, which the Journal first covered in an article last year, involves the use of a cellphone-tracking device called a stingray to find a mobile broadband card that the government says was being used to file fraudulent tax returns.

Update: Not the first time the government has argued it. I've seen and posted cases dealing with false names to rent cars and likely hotel rooms as depriving someone of an expectation of privacy. See Use of stolen ID to rent storage unit defeated expectation of privacy.

Permalink 12:13:19 am, by fourth, 316 words, 507 views   English (US)
Categories: General

CA6: Dog alert on front of car doesn't limit the PC for the extent of the vehicle search

Dog alert on the front of the car justified a search of the trunk. Defendant’s Franks challenge failed for no offer of proof and lack of materiality. United States v. Kelley, 2012 U.S. App. LEXIS 2634, 2012 FED App. 0155N (6th Cir. February 7, 2012) (unpublished) *:

This showing must be "accompanied by an offer of proof .... Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained ...." Id. at 171. Kelley alleged that the affiant's statement that "Kelley, Akins, Lewis and their associates have extensive experience trafficking drugs and have numerous arrests for drug violations" was false as to him. However, this claim was not supported by an offer of proof. Further, the statement, even if it was false, was not necessary to the issuing magistrate's finding of probable cause. Therefore, Kelley's motion for a Franks hearing was properly denied.

. . .

Kelley next argues that the police search of his car was illegal, arguing that the dog alerted only at the front of the car and that therefore there was no basis for searching his trunk. However, it is well settled that an alert from a trained dog provides probable cause for a search for drugs. United States v. Hill, 195 F.3d 258, 273 (6th Cir. 1999). Further, the search based on such probable cause may be of the entire car, including the trunk. United States v. Burnett, 791 F.2d 64, 67 (6th Cir. 1986) ("[I]f probable cause justifies the search of the lawfully stopped vehicle, it justifies the search of every part of the vehicle and the contents that may conceal the object of the search.") (citing United States v. Ross, 456 U.S. 798, 825 (1982)). The magistrate judge's finding that Officer Thompson's dog was certified to detect drugs was not disputed, and Sixth Circuit case law clearly demonstrates that the search of an entire car for drugs after a drug-dog's alert is reasonable. Therefore, the search of Kelley's car was justified.

Permalink 12:03:26 am, by fourth, 161 words, 498 views   English (US)
Categories: General

CA6: Mortgage holder in foreclosure had authority to consent to entries of the property for “property preservation”

Plaintiff’s home was in foreclosure, and she also had to leave because of ill health. The mortgage holder had the authority to consent to entry of city officials to trap her cats based on the mortgage documents which had “property preservation provisions” for repair. Farinacci v. City of Garfield Heights, 461 Fed. Appx. 447 (6th Cir. 2012).*

Taking a driver’s license is a detention, here with reasonable suspicion, regardless of whether the officer is going to write a ticket or not. Defendant was also frisked during the wait for the records check, and a drug dog arrived and alerted. All this was reasonable. State v. Kilgore, 2012 Tenn. Crim. App. LEXIS 79 (February 10, 2012).*

Boilerplate language about drug trafficking admittedly added little to affidavit for search warrant, but the affidavit did mention seeing marijuana roaches on the premises, and that took it past “bare bones” for good faith exception purposes. United States v. Hollin, 2012 U.S. App. LEXIS 2670, 2012 FED App. 0160N (6th Cir. February 8, 2012) (unpublished).*


Permalink 06:20:45 pm, by fourth, 116 words, 472 views   English (US)
Categories: General "Case on 'bra-lift search' goes to N.C. Supreme Court" Case on 'bra-lift search' goes to N.C. Supreme Court by Martha Waggoner:

The state Supreme Court will hear arguments involving a student at an alternative school in Brunswick County who had to untuck her shirt and pull out her bra with her thumb as part of a search for pills.

The attorney who represents the student will argue that search in front of two men violated constitutional guarantees involving unwarranted searches.

Attorney Geeta Kapur said she believes the court's ruling will apply to all public school students, about 1.5 million of them, and not just those in alternative schools.

The case involves a 15-year-old who attended Brunswick County Academy, a school for at-risk children.

Permalink 12:29:41 am, by fourth, 363 words, 379 views   English (US)
Categories: General

CA6: Warrant to seize necessarily includes power to search; here a computer

A warrant for child pornography on defendant’s computer was based on probable cause from a report from a user who saw it. The warrant was to “seize,” and that included “search.” United States v. Evers, 669 F.3d 645, 2012 FED App. 0042P (6th Cir. 2012):

The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a “sufficient chance of finding some needles in the computer haystack.” Upham, 168 F.3d at 535; see also United States v. Grimmett, 439 F.3d 1263, 1268-70 (10th Cir. 2006) (holding that a warrant for the search of “any and all” computer hardware and software for child pornography authorized both the seizure and subsequent search of the defendant’s computer files); Guest, 255 F.3d at 335 (“Because of the technical difficulties of conducting a computer search in a suspect’s home, the seizure of the computers, including their content, was reasonable in [this] case[] to allow police to locate the offending files.”); Upham, 168 F.3d at 535 (“As a practical matter, the seizure and subsequent off-premises search of the computer ... was about the narrowest definable search and seizure reasonably likely to obtain the images [of the child pornography sought].”).

Moreover, a second warrant to search a properly seized computer is not necessary “where the evidence obtained in the search did not exceed the probable cause articulated in the original warrant.” Richards, 659 F.3d at 539 n.10 (citing United States v. Gregoire, 638 F.3d 962, 967-68 (8th Cir. 2011); Grimmett, 439 F.3d at 1268-69; Upham, 168 F.3d at 535; and United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998)). This is in keeping with the general principle that “even evidence not described in a search warrant may be seized if it is reasonably related to the offense which formed the basis for the search warrant.” United States v. Wright, 343 F.3d 849, 863 (6th Cir. 2003) (citations and internal quotation marks omitted); see also United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988) (“A search does not become invalid merely because some items not covered by a warrant are seized.”).

Permalink 12:16:30 am, by fourth, 235 words, 440 views   English (US)
Categories: General

WY: Officer who found defendant convulsing in motel room could look in backpack for possible cause

Defendant was convulsing in a motel room, and the other person asked whether he should call 911. He said “Yes, I don’t want to die.” EMTs and a police officer arrived, and the police officer was looking around for what could have caused defendant’s condition. He looked in a backpack and found an unlabeled pill bottle with a powder in it. After defendant was taken to the hospital, police came back with a warrant. The warrant was lawfully issued because the search of the backpack was reasonable as an emergency search to attempt to find the cause of defendant’s condition. Owens v. State, 2012 WY 14, 269 P.3d 1093 (2012).

Defendant was a passenger in a car stopped by the police. He removed a package of drugs from his backpack and put it on the seat. He lacked standing to challenge the finding of the drugs he took out. United States v. Love, 2012 U.S. Dist. LEXIS 16245 (E.D. Mo. February 9, 2012)*:

As a passenger in the Altima, Defendant had no expectation of privacy. US v. Green, 442 F.3d 677, 680. While Defendant argues that he had a reasonable expectation of privacy in the contents of his backpack, Defendant completely ignores the fact that the package of heroin was no longer protected by contours of privacy he may have had in his backpack by his acts of removing the package from the backpack and placing it in the seat compartment.

Permalink 12:08:02 am, by fourth, 123 words, 318 views   English (US)
Categories: General

OH3: Search of shoes during a patdown was unreasonable

The officer had reasonable suspicion and conducted a patdown for “officer safety,” and he testified that he almost always has the suspect remove his shoes as a part of the patdown. Here, the patdown produced a baggy of marijuana, and the patdown was not for officer safety. It was a full scale search incident. State v. Minyoung, 2012 Ohio 411, 2012 Ohio App. LEXIS 367 (3d Dist. February 6, 2012).

The arrest warrant for the defendant was based on a failure to appear on the sworn affidavit of the judge presiding in the failure to appear case. There was no affidavit. The police officers’ entry into his house on that warrant was void. State v. Sandusky, 2012 Tenn. Crim. App. LEXIS 75 (February 8, 2012). [Note there was no discussion of good faith.]


Permalink 12:40:45 pm, by fourth, 416 words, 460 views   English (US)
Categories: General

D.Utah: [Casting aside all the fictions other courts apply,] The defendant had no way of believing stop ended or he could ever leave

Defendant was never given any indication the stop was over to be able to know that he was ever free to leave; indeed, no reasonable person would leave. The consent was invalid. “Because a videotape is present in this case, the court should view ‘the facts in the light depicted by the videotape.’ Scott v. Harris, 550 U.S. 372, 381-82 (2007).” United States v. Conte, 2012 U.S. Dist. LEXIS 16470 (D. Utah February 8, 2012):

Because Conte had been given no warning or citation, he could not know the traffic stop had ended. See Guerrero-Espinoza, 462 F.3d at 1310. "More to the point, a reasonable person in [Conte's] position would not have felt free at that time to decline to answer the trooper's questions and instead leave." Id. Indeed, under the circumstances, "May I ask you some additional questions?" is similar in nature to "May I see your license and registration?" Although worded as questions, circumstances can change them into polite commands. "No one ... after having been stopped by [an] officer for a perfectly legitimate reason ... can reasonably view himself or herself as free to leave," Sandoval, 29 F.3d at 542, when an officer has failed to inform the driver about the outcome of the stop. This is particularly so when leaving would cause injury to an officer due to the officer's contact with the driver's vehicle. The court, therefore, concludes that Conte was unlawfully detained after Trooper Jensen returned his documents to him.

. . .

As stated before in this case, Trooper Jensen maintained a calm, professional demeanor throughout the encounter. As in McSwain, however, he leaned into the vehicle and rested on the door. Although the court does not find that Trooper Jensen did this in an effort to intimidate Conte, his actions, combined with failing to inform Conte the stop had concluded, suggest Conte's consent was not voluntary. Furthermore, Conte's consent was given less than a minute after the illegal detention and there were no intervening circumstances. These "factors weigh heavily against finding the taint cleansed." Id. Finally, with respect to the third factor, when Trooper Jensen engaged Conte in additional conversation he had no articulable suspicion of criminal activity. Instead, his questions were designed to see if something would turn up. The questions were purposeful and devised to see if Conte would implicate himself. Based on the totality of these facts, the court concludes that the taint of the unlawful detention had not been removed and Conte's consent was invalid. Accordingly, the court hereby suppresses the evidence found during the search.

Permalink 11:52:26 am, by fourth, 373 words, 396 views   English (US)
Categories: General

NY Co.: Arrest of defendant bystander on arrest of another was unjustified

Defendant was arrested for talking to a man on the street that the police were moving in to arrest. The state framed the issue as whether the defendant had standing to challenge the arrest of the other man, but that was not the issue at all; it was his own arrest. At any rate, if the arrest of defendant depended on the probable cause to arrest the other man, the state failed to put on any proof of what the arrest for the other man was based on. People v McLoyd, 35 Misc. 3d 822, 946 N.Y.S.2d 829, 2012 NY Slip Op 22027 (N.Y. Co. 2012):

While it is true that in some limited circumstances the courts have permitted the police to detain people in order to arrest another individual in complete safety, the circumstances in those cases typically involve confined spaces and a significant relationship between the suspect they are about to arrest and his or her companion. ...

Here, there were no such circumstances justifying the forcible detention of defendant. Six police officers, fully armed and wearing bulletproof vests and tactical gear, presented overwhelming force while defendant was simply walking away from Davis. Defendant had done nothing to suggest he posed a risk to the officers, and his minimal connection to Davis — a brief conversation on a public street in front of a bodega — does not support an inference that the two were confederates in wrongdoing or that they even knew each other. Certainly, the legitimate and understandable caution of police officers engaged in the dangerous task of arresting a violent fugitive may have permitted Detective Kuhnapfel to approach defendant to gain some explanatory information regarding if and how well he knew Davis. It may also have permitted him to briefly detain defendant, short of a forcible seizure, to ensure that defendant posed no risk to the arresting officers. But defendant's mere presence in the company of a person the police intended to arrest did not permit the police to summarily force defendant against a nearby wall. The frisk that followed was the direct result of this impermissible forcible detention, and thus the recovery of the weapon was unlawful.

The SWAT Team making street arrests? What has NYC come to? Sounds like an armed camp.

Permalink 11:44:09 am, by fourth, 166 words, 370 views   English (US)
Categories: General

OH2: Protective sweep in DV call was unjustified after two hour delay and no indication anybody else involved

In a domestic violence call, the police had no information that anybody other than the defendant was involved nor that there were weapons. Defendant came out and peaceably surrendered, and then they entered. Therefore, a protective sweep of his house was unreasonable. The state argued that the two hour delay in the police arriving (! Come on.) at house after the call meant that all risk was not eliminated. [Obviously no exigency after two hours either.] State v. McLemore, 2012 Ohio 521, 197 Ohio App. 3d 726, 968 N.E.2d 612 (2d Dist. 2012).

Two trailers and a truck were parked on an open lot surrounded by a chain link fence, and only the space where they were parked was leased by the defendant. The owner let the police in, and they found the vehicles were stolen from the VINs. The trial court erred in holding that the defendant had a reasonable expectation of privacy in the chainlink fenced area from all intrusion. State v. Anderson, 2012 Ohio 441, 2012 Ohio App. LEXIS 382 (2d Dist. February 3, 2012).*

Permalink 11:19:17 am, by fourth, 401 words, 373 views   English (US)
Categories: General

OH3: Failure to reasonably pursue basis for stop made its continuation unreasonable

While the officer had reasonable suspicion, she questioned defendant four times about whether he had drugs in his vehicle during a traffic stop where no ticket was written, and the entire event was pursuing a drug investigation and seemed to have nothing to do with a bona fide traffic stop. Defendant consented to a search after repeated requests and being told he was being held while a drug dog was coming. He was held in the patrol car and told he couldn't have his cigarettes: "Chill." This all was unreasonable. State v. Troutman, 2012 Ohio 407, 2012 Ohio App. LEXIS 370 (3d Dist. February 6, 2012)*:

[*P40] While Trooper Long may very well have had a reasonable articulable suspicion of criminal activity that would justify the continuation of the traffic stop, the more important question is whether Trooper Long diligently pursued a means of investigation that was likely to confirm or dispel her suspicions quickly and whether she acted unreasonably in failing to recognize or pursue an alternative means. Id.; see also, Batchili, supra, at ¶ 12.

[*P41] Unquestionably, Trooper Long was given permission by Troutman to search his vehicle. He was locked in the back of her patrol car, yet she chose, for reasons not articulated in the record, to not search it and wait for the canine. Even after a back-up officer arrived and Troutman gave her permission to search his vehicle once again, Trooper Long did not search his vehicle or have the other officer do so. Further, during the four minutes that she had Troutman's permission to search, Trooper Long chose not to search the vehicle and to keep Troutman locked in the patrol car and then repeatedly questioned him about what was in his vehicle.

[*P42] Not only did Trooper Long fail to diligently pursue a means of investigation that was likely to confirm or dispel her suspicions quickly, i.e. searching the vehicle once Troutman consented, she acted unreasonably in failing to recognize or pursue this avenue. Indeed, the recording of this stop reveals that this was not a swiftly developing situation that required on-the-spot decisions. To the contrary, Trooper Long discussed the situation with the back-up officer, chatted with that officer about other matters, and opened the door to the patrol car to ask the same questions of Troutman and receive the same answers time and time again, which clearly elevated Troutman's argumentative attitude towards her each time she repeated her questions.


Permalink 10:51:31 am, by fourth, 190 words, 445 views   English (US)
Categories: General

E.D.Tex.: Domestic disturbance complaint with blood on clothes and missing firearm justified protective sweep

“[T]he Court finds that the warrantless entry into the apartment was justified based on the fact that there was a violent altercation in the apartment, evidence of blood on people, the entrance, and inside the apartment and based on the information that individuals — including several children — and a firearm were said to be still inside. See Flores-Castaneda, 384 Fed. Appx. at 367; see also United States v. Rodriguez, 601 F.3d 402, 408 (5th Cir. 2010) (holding that ‘domestic disputes often involve high emotions and can quickly escalate to violence’).” United States v. Fuentes, 2011 U.S. Dist. LEXIS 153004 (E.D. Tex. November 10, 2011).*

Based on collective knowledge, officers had reasonable suspicion that a Honda and a cargo van driving in tandem from one place to another were hauling drugs in the van. The collective knowledge doctrine applies to reasonable suspicion. United States v. Montero, 2011 U.S. Dist. LEXIS 153022 (W.D. Ky. November 1, 2011).*

Pulling up behind a car with just headlights on and the officer knocking on the window does not communicate that the person is not free to leave. State v. Randle, 152 Idaho 860, 276 P.3d 732 (App. 2012),* Review denied by State v. Randle, 2012 Ida. LEXIS 132 (Idaho, May 22, 2012).

Permalink 10:23:24 am, by fourth, 559 words, 446 views   English (US)
Categories: General

E.D.N.C.: Practice Pointer: One way to show officer lacked credibility on RS for stop

USMJ finds that officer was not credible because the proof at the suppression hearing was developed by leading questions, and the officer seemed to have little independent recollection of the stop, needing to repeatedly look at this file. Also, there was a proven embellishment in the reports. United States v. Northington, 2011 U.S. Dist. LEXIS 153029 (E.D. N.C. November 29, 2011):

Further detracting, at least to some degree, from Daughtry's credibility is the fact that various portions of the direct examination of him were leading in character. (Id., e.g., 14:21; 15:8-10; 18:3-4; 18:15-17; 19:7-8; 19:10-11; 21:7; 21:15-17; 30:13-15; 30:20-21). In addition, Daughtry repeatedly looked at his report for the first two-thirds of his direct examination before the questioning was stopped and Daughtry provided time to review it. (Id. 21:23 to 22:16). The inference, of course, is that Daughtry lacked a strong, if any, independent recollection of the events about which he was being examined.

The court concludes that Daughtry is not a reliable source of information regarding the stop of defendant. As discussed, his lack of credibility is shown by a broad range of factors, including the implausibility of certain statements he made, the inconsistency of his conduct with certain statements, the inconsistency of his testimony with his report and/or the ATF Letter, the inconsistency of portions of his testimony with other portions, the inconsistency of his testimony with portions of Johnson's testimony, omissions from his report, and other factors. Some of the statements shown to lack credibility relate to facts central to the question of reasonable suspicion and their unreliability therefore directly undermines the government's case on that issue. But the other statements are also material to reasonable suspicion because they shed light on Daughtry's overall credibility.

Similarly, there are statements by Daughtry that do not themselves bear indicia of unreliability and there is some evidence tending to support Daughtry's credibility, such as Johnson's corroboration of Daughtry's testimony that defendant was acting erratically (see id. 92:10-21). However, the number of statements that do bear such indicia, the significance of many of these statements to the issue of reasonable suspicion, and the underlying deficiencies in veracity the demonstrably noncredible statements reveal, such as possible misperceptions, deficient memory, and embellishment, render all of Daughtry's statements unreliable. Given the government's reliance on Daughtry's statements to support its case on reasonable suspicion, his lack of credibility precludes the government from establishing by a preponderance of the evidence that reasonable suspicion existed. Defendant's motion to suppress should accordingly be allowed.

This case isn't really precedent for anything, but it is significant for all of us to see how this court discounted testimony when the government carries the burden of proving reasonable suspicion because of "possible misperceptions, deficient memory, and embellishment." Look, officers: you don't need to embellish. Your truthful testimony will usually carry the day. If it doesn't, too bad; you were operating on a hunch. Having made the arrest, you felt you had to follow through to bring some "bad guy" to justice. The ADA or AUSA, however, took your reports at face value, as they are expected to. When you had to be led through the testimony, the AUSA here should have seen this coming. And, AUSA's, don't lead. Let the case collapse of its own weight. You got the indictment, but you don't own this case. Also, this was a Federal Defender case.

Permalink 10:01:19 am, by fourth, 138 words, 386 views   English (US)
Categories: General

N.D.Cal.: Revised parole condition under CA law didn't mention searches, and that was binding on PO

Where defendant was under state probation that included a search term and he was revoked and put back on probation with new conditions and no express search term, California law precluded a search term under such circumstances. United States v. Silva, 2011 U.S. Dist. LEXIS 152967 (N.D. Cal. March 7, 2011).*

Plaintiff was believed to have purchased t-posts for his property with a stolen check. Some were installed on his property and some were in his truck when he was stopped. They were in plain view, and the officer had probable cause for the seizure. Thompson v. City of Shawnee, 464 Fed. Appx. 720 (10th Cir. 2012).*

Defendant was felony fleeing from officers and stopped and attempted to hide. He was arrested, and his car was properly impounded after his arrest. United States v. Scott, 2012 U.S. Dist. LEXIS 14053 (W.D. Mo. January 5, 2012).*


Permalink 05:01:04 pm, by fourth, 130 words, 686 views   English (US)
Categories: General "Woman who pleaded Fifth in password case now citing Fourth" Woman who pleaded Fifth in password case now citing Fourth by John Fontana:

A woman who pleaded the Fifth Amendment before being ordered by a federal court to provide a password to decrypt a computer hard drive is appealing the order and now citing the Fourth Amendment.

The case drew national attention when the accused, Ramona Fricosu, argued that surrendering a password was a violation of her Fifth Amendment rights, which protect against self-incrimination.

Fricosu, and her now ex-husband, were arrested in 2010 on bank-fraud charges as part of a mortgage scam.

The 10th Circuit Court of Appeals [sic; District Court] in Denver ruled on Jan. 23 that the Fifth Amendment had nothing to do with the case and gave Fricosu until Feb.21 to provide the password.

Prior post here.

Permalink 01:41:42 pm, by fourth, 282 words, 535 views   English (US)
Categories: General

E.D.Cal.: Presence of owner to drive made impoundment unreasonable

Where the owner of the vehicle was present and able to drive it off after the defendant’s arrest, it was unreasonable to impound the vehicle. United States v. Moreno-Nanez, 2012 U.S. Dist. LEXIS 15710 (E.D. Cal. February 7, 2012):

Although the "reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative 'less intrusive' means," Illinois v. Lafayette, 462 U.S. 640, 647 (1983), the court agrees that under the circumstances of this case impounding a vehicle under the community caretaker doctrine to remove it from an unsafe location would be unreasonable if the owner of the vehicle was present at the time of the stop and legally able to immediately drive the vehicle away from the scene. In concluding that the decision to impound a vehicle was unreasonable in Miranda, the Ninth Circuit emphasized that the owner of the vehicle, who was also a passenger at the time of the stop, was licensed to drive the car. Miranda [Miranda v. City of Cornelius, 429 F.3d 858 (9th Cir. 2005)], 429 F.3d at 866. In discussion, the court explained that "[t]he policy of impounding the car without regard to whether the defendant can provide for its removal is patently unreasonable if the ostensible purpose for impoundment is for the 'caretaking' of the streets." Id. at 865 (quoting United States v. Duguay, 93 F.3d 346, 353 (7th Cir. 1996)) (internal quotation marks omitted). Additionally, when concluding that the impoundment of a vehicle did not come within the community caretaker function in United States v. Maddox, 614 F.3d 1046 (9th Cir. 2010), the Ninth Circuit emphasized that, "because [the defendant] offered to have his friend move the vehicle, the officer did not sufficiently consider alternatives before impounding [the] truck." Id. at 1050.

Permalink 01:21:08 pm, by fourth, 142 words, 467 views   English (US)
Categories: General

W.D.Mo.: Initial reluctance to consent belies coercive atmosphere

The court finds that the entry on a knock-and-talk was by consent, discounting the consenter's version of events. The consenter was told she could refuse and said “I don’t know, I don’t know,” then later consented. “Ms. Handley's initial reluctance to consent negates a coercive atmosphere.” The consent was valid. United States v. Turner, 2012 U.S. Dist. LEXIS 14551 (W.D. Mo. January 19, 2012).*

Voluntariness of consent is reviewed for clear error, and this is supported by the evidence. The defendants also exchanged incriminating comments to each other in the jail elevator that were not the product of interrogation. United States v. Martinez, 2012 U.S. App. LEXIS 2423 (3d Cir. February 7, 2012) (unpublished).*

Officers had reasonable suspicion from defendant’s movements between his car and a known “stash pad” under surveillance. United States v. Reyes, 2012 U.S. Dist. LEXIS 14980 (S.D. N.Y. February 1, 2012).*

Permalink 01:04:54 pm, by fourth, 213 words, 497 views   English (US)
Categories: General

KS using electronic warrants on iPads

In the Treatise, I wrote in 1999 about "Why not electronic warrants?" Finally in Kansas: With iPads, judges in touch any time, any place:

Douglas County District Judge Robert Fairchild during his 16 years on the bench estimates he’s signed search warrants at nearly every restaurant in town.

Douglas County District Judge Robert Fairchild demonstrates the use of an iPad for receiving and signing warrants from his chambers last week at the Douglas County Judicial and Law Enforcement Center. The iPad is among several pieces of technology that Fairchild says is speeding up the judicial process.

Once while serving as duty judge on a weekend, Fairchild drove back from the Kansas City area and pulled over at a Eudora convenience store off of Kansas Highway 10 to sign one for an officer.

But those days are now over for the county’s six judges.

Fairchild sits at his desk holding a white Apple iPad. He touches his finger to the screen and begins moving it to scroll down to the bottom of a PDF version of a probable cause affidavit form.

Anywhere else? Surely there are. If not, why not?

The Fourth Amendment favors warrants. Anything that leads to a search warrant and judicial review (except by a rubberstamp judge) can't be bad at all.

Permalink 12:54:46 pm, by fourth, 157 words, 375 views   English (US)
Categories: General "Nevada Officers Kicked Man In Diabetic Shock" Adam Greene Settles Police Beating Suit For $300,000: Nevada Officers Kicked Man In Diabetic Shock:

A diabetic who was suffering from insulin shock when Nevada police officers mistook him for a drunk driver and physically assaulted him will receive a settlement of nearly $300,000.

Adam Greene, 38, settled his lawsuit against the city of Henderson and the state of Nevada on Tuesday night. Under the settlement, Greene will receive $158,000 from the city and $35,000 from the state. His wife will receive an additional $99,000 from the city.

The payout settles a federal civil rights lawsuit that Greene filed against Henderson city police and the Nevada Highway Patrol, accusing them of battery, assault and intentional infliction of emotional distress.

And it was all on video. Why would these cowboys be, first, so untrained to not recognize diabetic shock as a possibility, and, second, not just show basic human respect to a man being arrested instead of treating him like a dirtbag?

Permalink 12:09:12 am, by fourth, 262 words, 452 views   English (US)
Categories: General "Ramarley Graham, Unarmed Teen, Illegally Killed By New York Police, Lawyer Says" Ramarley Graham, Unarmed Teen, Illegally Killed By New York Police, Lawyer Says:

A week after police shot to death an unarmed 18-year-old in his grandmother's Bronx apartment, questions continue to swirl around the aggressive police tactics that led to the fatal confrontation.

Ramarley Graham died last Thursday after Richard Haste, 30, a New York police officer, kicked down the door of his grandmother's apartment and shot Graham in the chest while he attempted to flush a bag of marijuana down the toilet. Graham was unarmed and police did not have a warrant to enter the home.

. . .

Jeffrey Emdin, an attorney representing Graham's mother, also called the police tactics unlawful. "They illegally entered the home," Emdin said. "They had no right to be inside. They had no right to use force."

Many linked the shooting to the NYPD's aggressive street policing program, called "stop-and-frisk," which predominantly targets low-income minority neighborhoods. In 2011, the program stopped and searched more than 500,000 New Yorkers, 85 percent of them black or Latino. The searches contributed to a record number of misdemeanor marijuana arrests last year.

. . .

John Wesley Hall, a criminal defense attorney in Little Rock, Ark. who has argued cases involving police searches before the Supreme Court, said a police suspicion that Graham might be carrying an illegal handgun was insufficient justification for breaking down his door.

"If they thought he had a gun, they should have stopped him on the street and not waited for him to go inside," Hall said. "Any reasonable officer would have known that they needed a warrant to get into the house."


Permalink 11:23:40 am, by fourth, 200 words, 985 views   English (US)
Categories: General

E.D.N.C.: First trash pull entered curtilage, second didn't; SW upheld for PC

The search warrant here was based in part on a trash pull which the magistrate found as a fact was at the curb and not on the curtilage so there was no expectation of privacy in it. And, even if that information were deleted from the application for the warrant, there still was probable cause. The magistrate’s finding as to the good faith exception was thus moot. Notably, there was a prior trash pull where the police entered the curtilage. That was suppressed, and there still was enough in the application for the warrant. United States v. Rodgers, 2012 U.S. Dist. LEXIS 13865 (E.D. N.C. February 6, 2012).*

“When Trooper James asked Stanfield for consent to search the van, Stanfield informed Trooper James that the van was not his, and eventually refused to consent to a search. At that point, the purpose of the traffic stop was complete. From that point forward, Trooper James's interaction with Defendants changed. He approaches the situation as though he suspects that criminal activity is afoot.” Thus, there had to be reasonable suspicion to continue the stop. Here there was. The stop lasted two hours. United States v. Goss, 852 F. Supp. 2d 871 (W.D. Mich. 2012).*

Permalink 10:32:25 am, by fourth, 206 words, 393 views   English (US)
Categories: General

D.N.J.: Knowledge of right to refuse consent almost determinative

A factor in voluntariness is knowledge of the right to refuse, and apparently this is almost a determinative factor when it has been given. United States v. Durante, 2012 U.S. Dist. LEXIS 14533 (D. N.J. February 7, 2012).* [Note: Why don't police officers do this in writing or on video or audio in every case? Based on what I observed from the Arkansas State Police requiring it in written consent forms for 15 years, it seemed to have no appreciable effect on the number of consents still granted by suspects. Believe it or not. And it cut off the argument over the consent not being voluntary. I find this a huge lesson learned as a litigator and writer on the subject. Yet, officers are still reticent to seek memorialization of consent. People still confess on video.]

It doesn’t matter that the police characterized the search of the car as a search incident if it was valid under the automobile exception. United States v. Wooliver, 2012 U.S. Dist. LEXIS 14439 (W.D. Mo. February 7, 2012),* R&R 2011 U.S. Dist. LEXIS 152896 (W.D.Mo. November 2, 2011).

The evidence was uncontroverted that defendant consented to a search of his backpack. United States v. Murphy, 2012 U.S. App. LEXIS 2272 (3d Cir. February 6, 2012) (unpublished).*

Permalink 12:08:14 am, by fourth, 171 words, 404 views   English (US)
Categories: General "Senate amends Occupy Boise bill to avoid Fourth Amendment concerns" Senate amends Occupy Boise bill to avoid Fourth Amendment concerns:

The bill to prevent camping on state property was amended by the Idaho Senate Wednesday to quell concerns that it might violate Fourth Amendment search and seizure protection rights.

There were three amendments up in the Senate’s amending process Wednesday, including one to remove an emergency clause from the measure. ...

The bill comes as a result of the Occupy Boise group setting up camp across the street from the Idaho Capitol on the old Ada County courthouse lawn.

The sole adopted amendment, backed by Senate Pro Tem Brent Hill, R-Rexburg, and Senate Majority Leader Bart Davis, R-Idaho Falls, would ease how the state handles property after evictions. The measure would allow protestors’ property to be stored by the state for up to 90 days, though a reasonable fee could be charged.

The bill, as originally passed by the House, would have allowed the state to take protestors’ property and dispose of it immediately.

What about bill of attainder, too?


Permalink 02:50:27 pm, by fourth, 145 words, 494 views   English (US)
Categories: General

AR: Where only vehicle around was LEO in front of defendant, failure to signal might have affected use of other vehicle

Where only vehicle around was the police officer in front of defendant, defendant's failure to use a signal might have affected that vehicle, so it justified a stop. The undisputed evidence was that the police car was the only car around. Mitchell v. State, 2012 Ark. App. 128 (February 8, 2012).* [I find this laughable. The court is straining so hard it loses its credibility as an institution.]

Defendant’s trash search was valid, and that led to a search warrant with probable cause. United States v. Rodgers, 2012 U.S. Dist. LEXIS 13865 (E.D. N.C. February 06, 2012).*

Defendant ran a stop sign, recorded by the dashcam, and fled when the officer tried to stop him. When finally stopped, the officer validly saw drugs in the car in plain view. Defendant’s pro se motion to suppress denied. United States v. Scott, 2012 U.S. Dist. LEXIS 14053 (W.D. Mo. January 6, 2012).*

Permalink 02:26:55 pm, by fourth, 531 words, 525 views   English (US)
Categories: General

E.D.Wis.: Box of ammunition was plain view of contents; use of a stepladder did not exceed consent

Defendant’s roommate consented to an entry by officer to look around for the defendant who was alleged to be an unregistered sex offender. The officer looked in a grey bag that was suppressed. As to a shelf, however, the court declines to find getting a stepladder to look on the shelf was an unreasonable search. Add to that the roommate’s getting the stepladder. The box of ammunition proclaimed its contents, and it was validly seized under plain view. United States v. Tolbert, 2012 U.S. Dist. LEXIS 14287 (E.D. Wis. February 7, 2012):

It is true that, ordinarily, the police must obtain a warrant before opening a closed container because, by concealing the contents from plain view, the possessor creates a reasonable expectation of privacy. United States v. Banks, 514 F.3d 769, 773 (8th Cir. 2008). “However, like objects that sit out in the open, the contents of some containers are treated similarly to objects in plain view.” Id. Courts have held that containers which permit one to infer their contents based on their outward appearance are not entitled to full Fourth Amendment protection. Id. (citing Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13 (1979) (“Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.”), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991)); United States v. Meada, 408 F.3d 14, 23 (1st Cir. 2005) (collecting cases holding that containers which betray their contents are treated as being in plain view); United States v. Miller, 929 F.2d 364, 364-65 (8th Cir. 1991) (holding that no warrant was required to search a bag whose size and shape suggested it contained a gun). Individuals possess a lesser expectation of privacy in the contents of such containers when the container is observed from a lawful vantage point. Banks, 514 F.3d at 774.

In the present case, the boxes Decker saw proclaimed their contents -- Remington ammunition. While it might be theoretically possible that the boxes contained something else, there is certainly a reasonable likelihood that they contained bullets. Because ammunition, possessed by a felon, is evidence of a crime, Decker lawfully seized these boxes. See Banks, 514 F.3d at 775-76.

. . .

Second, even if Decker used a stool to observe and photograph the ammunition, I cannot conclude that this exceeded the scope of Warren’s consent. While a person’s failure to object should not be construed as expanding the scope of consent, the court may properly consider silence in understanding what it is she allowed the police to do. Thus, while I agree with the magistrate judge that Warren’s acquiescence to Decker’s looking through the gray bag cannot bring that search within the ambit of her consent, her apparent agreement in Decker’s use of a stool to photograph the bedroom is something else. Indeed, it appears that Warren may have fetched the stool for Decker, which suggests that she did not see this as outside the scope of what she agreed he could do.

Permalink 12:24:21 pm, by fourth, 170 words, 2528 views   English (US)
Categories: General

Democracy Now: "Ramarley Graham: NYPD Slays Unarmed Black Teen as Outrage Over Targeting of People of Color Grows"

Democracy Now: Ramarley Graham: NYPD Slays Unarmed Black Teen as Outrage Over Targeting of People of Color Grows:

The New York City Police Department is under mounting criticism after police shoot dead an unarmed teenager inside his own home. Eighteen-year-old Ramarley Graham was shot at close range in his parents’ apartment in the Bronx after being chased into the house by narcotics detectives. Police said they found marijuana in the home and think Graham may have been trying to flush some down the toilet. The NYPD is coming under criticism not only for shooting Graham, but also for its broader "stop-and-frisk" policy, which critics say disproportionately targets people of color. On Monday, about 500 protesters rallied in the Bronx to condemn the police treatment of black youth. We speak to Jamel Mims, an organizer with the Stop Mass Incarceration Network, which is working to end the practice of stop-and-frisk; and Nicholas Peart, who is serving as a witness in a federal class action lawsuit challenging "stop-and frisk" as racist and unconstitutional.

Permalink 06:07:28 am, by fourth, 156 words, 399 views   English (US)
Categories: General

CA4: Defendant's request for cigarettes from his car led to valid plain view

During this stop with reasonable suspicion, the defendant wanted cigarettes and the officer was permitted to go into the car after them, seeing crack cocaine in plain view. United States v. Scott, 463 Fed. Appx. 216 (4th Cir. 2012) (unpublished).*

Defendant’s claim that the government coerced him to provide the password to his cell phone has no support in the record at all. He was only asked his phone number when he was booked. United States v. Askew, 2011 U.S. Dist. LEXIS 152781 (W.D. Ky. December 2, 2011).*

Officers had both reasonable suspicion for a stop and saw a traffic violation. Approaching the vehicle, the officer smelled fresh marijuana, and that was probable cause. United States v. Salcido-Guzman, 2011 U.S. Dist. LEXIS 152791 (W.D. Ky. October 28, 2011).*

The officer’s observation of defendant stopping nearly in the middle of an intersection and almost hitting mailboxes was reasonable suspicion for his stop. State v. Napier, 2012 Ohio 394, 2012 Ohio App. LEXIS 338 (9th Dist. February 6, 2012).*


Permalink 10:45:33 am, by fourth, 59 words, 461 views   English (US)
Categories: General

NYTimes: "‘We the People’ Loses Appeal With People Around the World"

NYTimes: ‘We the People’ Loses Appeal With People Around the World by Adam Liptak:

The Constitution has seen better days.

Sure, it is the nation’s founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.

Same with the Fourth Amendment and personal privacy.

Permalink 09:05:52 am, by fourth, 384 words, 422 views   English (US)
Categories: General

PA: Using somebody else's email account doesn't give standing to challenge SW for email

This child pornography investigation involved search warrants for AOL emails, a subpoena for subscriber information, then a search warrant for the offending computer as it is supposed to be done. The only issue was whether the first search warrant for the emails was stale where the information was six months old. As an aside, the court notes that defendant probably did not have standing because the account was not in his name, and the issue is saved for another day. Commonwealth v. Hoppert, 2012 PA Super 21, 39 A.3d 358 (2012), n.3:

We further note that while neither party nor the trial court raised the issue, we question whether Appellant had an expectation of privacy in the AOL records that were the subject of the first search warrant. “[A]s a preliminary matter, [a defendant] must show that he had a privacy interest in the area searched.” Commonwealth v. Jones, 874 A.2d 108, 117 (Pa. Super. 2005). Here, the AOL account was registered to Sallie Hoppert, not Appellant.

Although it does not appear that Pennsylvania courts have addressed the expectation of privacy in computer user accounts, we note that another panel of this Court recently examined the issue in relation to cellular phone records in Commonwealth v. Benson, 10 A.3d 1268 (Pa. Super. 2010). In Benson, the defendant sought to suppress records related to a cellular phone owned by his then-girlfriend, on a cell phone primarily used by him. We ultimately concluded:

[W]hile Appellant had use of the telephone, the bills in question were not his telephone bills. ...Appellant had no legal right to request or control access to the information from the telephone company because he was not the owner of the telephone. He had no legitimate expectation of privacy in them.

Id. at 1273-1274 (emphasis in original). Moreover, our decision in Benson relied upon a 2008 Washington Court of Appeals case wherein that court held that “a defendant did not have a legitimate expectation of privacy in telephone bills in the name of defendant’s wife.” Id. at 1273 (emphasis added).

However, because the precise issue was not squarely before the trial court, we do not reach a decision as to whether Appellant had an expectation of privacy in the AOL records held in his wife’s name. We merely note this threshold requirement for future guidance for both bench and bar.

Permalink 08:47:04 am, by fourth, 210 words, 388 views   English (US)
Categories: General

ID: This motorist was free to ignore the officer's tapping on his window; he consented to a stop

Defendant was convicted of felony DUI. An officer came up to defendant’s parked car and tapped on the window. Defendant was free to ignore it. State v. Randle, 2012 Ida. App. LEXIS 11 (February 6, 2012). [I still don’t buy this utter fiction. People who ignore police “commands” or even suggestions do it at their peril, and most of them know it. Only the truly street smart would walk away. Probably what’s more laughable is watching the DA and the LEO argue to the court that he was free to ignore it all to justify the stop. In my jurisdiction, and most of them, you'd be arrested for driving off. I’m representing a guy Tasered in the back three times for not responding fast enough to what was supposedly a “consensual encounter.”]

Defendant was stopped for DUI3 based on his making a wide right turn in violation of statute. Because the officer’s interpretation of the statute was reasonable, the stop was based on reasonable suspicion. State v. Dahl, 2012 SD 8, 809 N.W.2d 844 (2012).*

While proximity to a possible crime is not enough to search, the officers here knew more, and that justified the stop of defendant’s vehicle. United States v. Landeros-Sandovar, 2011 U.S. Dist. LEXIS 152784 (W.D. Ky. October 28, 2011).*

Permalink 08:07:08 am, by fourth, 436 words, 1032 views   English (US)
Categories: General

NJ declines to limit Pena-Flores on the automobile exception

NJ refuses to overrule State v. Pena-Flores without a full statistical record. The one proffered by the state was too limited. State v. Shannon, 210 N.J. 225, 43 A.3d 1146 (2012)*:

In these companion cases, the State asks the Court to revisit its recent decision in State v. Pena-Flores, 198 N.J. 6, 965 A.2d 114 (2009), which addressed the proper standard for warrantless searches of motor vehicles. The State contends that the decision's impact on police practices and New Jersey motorists provides special justification to overturn Pena-Flores. As support, the State relies in part on certain data taken only from New Jersey State Police motor vehicle stops. That data represents a fraction of statewide encounters with motorists and covers the limited period of time since Pena-Flores went into effect.

We do not find sufficient support in the current record to establish the "special justification" needed to depart from precedent. State v. Brown, 190 N.J. 144, 157, 919 A.2d 107 (2007) (quoting Dickerson v. United States, 530 U.S. 428, 443, 120 S. Ct. 2326, 2336, 147 L. Ed. 2d 405, 419 (2000)). We rely on the Attorney General, the Public Defender, the American Civil Liberties Union, appearing in this matter as amicus curiae, and other interested non-parties to amass and develop a more thorough, statistical record over time relating to motor vehicle stops by the State Police and local authorities.

To the extent that it is impractical to collect data from local law enforcement throughout the entire State, data from representative urban, suburban, and rural areas may suffice. That information should include, where possible, (a) the total number of motor vehicle stops, (b) the number of warrantless probable cause searches conducted, consent searches requested, consent searches conducted, and vehicles impounded -- both before and after Pena-Flores -- and (c) other relevant information.

The first paragraph of Pena-Flores:

At issue in these appeals, which we have consolidated for the purpose of this opinion, is the automobile exception to the warrant requirement. Today, we reaffirm our longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence.

Don't be concerned about the court relying on the ACLU--New Jersey has been sued repeatedly over the last two decades for racial profiling and other abuses, and most have been proved. See, e.g., State v. Carty, 170 N.J. 632, 790 A.2d 903 (2002), discussing the statistic proof of driving while black and intimidation once stopped.

Permalink 07:39:43 am, by fourth, 232 words, 367 views   English (US)
Categories: General

CA6: Ongoing traffic offense does not create right to an immediate stop

The officer waited four hours observing defendant’s vehicle license was expired to stop defendant, ostensibly because the officer was investigating another more serious crime. Neither the delay nor ulterior motive made the stop invalid because of the ongoing nature of the traffic violation, which is distinguished from discrete traffic offenses. United States v. Anderson, 458 Fed. Appx. 440, 2012 FED App. 0108N (6th Cir. 2012) (unpublished). [Opinion has numerous citations.]

To get a suppression hearing on a search warrant, the defendant has to make a showing that contested facts exist. Here, the record is devoid of anything showing who owned the van, and that was a lack of standing. Even if there was standing, there was probable cause. United States v. Harris, 2012 U.S. Dist. LEXIS 12976 (W.D. Ky. February 2, 2012):

While the defendant seeks to probe various statements in the affidavit, he has, in fact, not shown that any contested facts exist. Harris is not entitled to an evidentiary hearing in the absence of such a showing. "An evidentiary hearing is required 'only if the motion is sufficiently definite, specific, detailed, and non-conjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.' United States v. Downs, No. 96-3862, 1999 WL 130786, at *3 (6th Cir. Jan. 19, 1999) (citing United States v. Unimex, Inc., 991 F.2d 546, 551 (9th Cir.1993)) (emphasis supplied)." US v. Abboud, 438 F.3d 554, 557 (6th Cir. 2006).


Permalink 06:32:25 pm, by fourth, 119 words, 407 views   English (US)
Categories: General

USA Today: "FBI cuts back on GPS surveillance after Supreme Court ruling"

USA Today: FBI cuts back on GPS surveillance after Supreme Court ruling by Kevin Johnson:

The FBI has begun cutting back GPS surveillance in an array of criminal and intelligence investigations following a Supreme Court ruling last month restricting its use, a federal law enforcement official said.

The bureau began implementing the change the day after the Jan. 23 ruling in which the court found that attaching such a device to a car amounted to a search covered by the Fourth Amendment, requiring police to seek warrants in many cases.

The official, who was not authorized to comment publicly on the matter, said the GPS directive was issued until further legal guidance is provided on the use of the technology.

Permalink 04:58:27 pm, by fourth, 143 words, 602 views   English (US)
Categories: General

New law review article: "A Reasonableness Approach to Searches After the Jones GPS Tracking Case"

Peter Swire, A Reasonableness Approach to Searches After the Jones GPS Tracking Case, 64 Stan. L. Rev. Online 57 (2012):

In the oral argument this fall in United States v. Jones,[1] several Supreme Court Justices struggled with the government’s view that it can place Global Positioning System (GPS) tracking devices on cars without a warrant or other Fourth Amendment limit. Chief Justice Roberts asked: “You think there would also not be a search if you put a GPS device on all of [the Justices’] cars, monitored our movements for a month?”[2] (The lawyer for the government said yes.) Justice Breyer remarked: “[I]f you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.”[3] He added: “[I]f you win, you suddenly produce what sounds like 1984 ....”

Permalink 03:33:08 pm, by fourth, 151 words, 477 views   English (US)
Categories: General

In PA: Pilot program of drug tests for welfare recipients may go statewide Harrisburg headlines: Pilot program of drug tests for welfare recipients may go statewide by Yvonne P Mazzulo:

On January 18th, 2012, Senator David G. Argall (R-29) announced that the Pennsylvania Department of Public Welfare (DPW) would implement a drug testing pilot program in Schuylkill County.

Under the pilot program, DPW will randomly drug test applicants and recipients of Temporary Assistance for Needy Families and General Assistance cash assistance who have been convicted of a felony drug offense that occurred within the past five years and for applicants who are currently on probation for a felony drug offense.

Upon the announcement of the pilot program for Schuylkill County, Senator Argall stated, “People at my town hall meetings throughout the district repeatedly tell me they would like to see serious reforms to stop giving a ‘free ride’. This news is long overdue in a department that consumes 30 percent of the state budget.”

Permalink 08:12:07 am, by fourth, 499 words, 581 views   English (US)
Categories: General

VI: Govt waives standing by not arguing it at suppression hearing

In a murder case, officers seized defendant’s car, allegedly without probable cause, but shortly thereafter had a search warrant for the car. Whether the initial seizure was invalid really doesn’t matter. Segura applies. Browne v. People, 56 V.I. 207 (2012).*

As to Browne’s co-defendant, the government’s claim he lacked standing to contest a search of the car was not raised in the trial court, and it is waived. Melendez v. People, 2012 V.I. Supreme LEXIS 8 (February 2, 2012):

As an initial matter, we must determine whether the People can assert for the first time on appeal that Melendez does not have standing to challenge the seizure of Jeffrey's vehicle. In United States v. Butler, 405 Fed. Appx. 652, 654 (3d Cir. 2010) (unpublished), the Court of Appeals for the Third Circuit held that if the government fails to raise the issue of standing in the trial court, the issue is waived on appeal. The court reasoned:

Unlike Article III standing, which cannot be waived, Fourth Amendment standing can be waived if not raised and properly preserved. See Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ("[T]his Court's long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing."); see also United States v. Washington, 380 F.3d 236, 240 n.3 (6th Cir. 2004) ("'Standing to challenge a search or seizure is a matter of substantive Fourth Amendment law rather than of Article III jurisdiction, meaning that the government can waive the standing defense by not asserting it.'" (quoting United States v. Huggins, 299 F.3d 1039, 1050 n.15 (9th Cir. 2002))); United States v. Dewitt, 946 F.2d 1497, 1499-1500 (10th Cir. 1991) ("[T]he issue of [F]ourth [A]mendment standing could be waived if the government has failed to raise it in a timely fashion during the litigation." (quotation marks and alterations omitted)).

Id. In addition to those cited in Butler, other federal circuits have also held that failing to raise the issue of standing in the trial court bars the government from raising it on appeal. See United States v. Gonzalez, 71 F.3d 819, 827 n.18 (11th Cir. 1996); United States v. Mendoza, 722 F.2d 96, 97 n.1 (5th Cir. 1983).7 We agree with the majority of the Courts of Appeals that have addressed this issue and find that by failing to raise the issue of standing in the Superior Court, the People have waived the issue on appeal. See Steagald v. United States, 451 U.S. 204, 209 (1981) (warning that the government can "lose its right" to challenge "standing" "when it has made contrary assertions in the courts below ... or when it has failed to raise such questions in a timely fashion during the litigation"). Accordingly, since the People failed to assert that Melendez lacked standing to challenge the seizure of Jeffrey's vehicle in the Superior Court, we deem this argument waived and proceed to the merits of Melendez's claim.

Permalink 07:42:34 am, by fourth, 170 words, 389 views   English (US)
Categories: General

AR: Defendant waived consent to search claim by testifying to his possession of drugs in trial

Defendant did not argue that the sobriety checkpoint was illegally set up, instead challenging his consent to search, which was found voluntary. In any event, defendant cannot show he was prejudiced by the consent search when he took the stand and said he was addicted to cocaine and had it in his possession. Wilson v. State, 2012 Ark. App. 96, 2012 Ark. App. LEXIS 195 (February 1, 2012). [Note: Probably no harm here because the trial court's findings of consent would likely be sustained on appeal, anyway.]

A sobriety checkpoint was not exactly where the press release said it would be, and that was not enough to suppress a stop there. It was still done according to a predetermined plan. Commonwealth v. Aivano, 81 Mass. App. Ct. 247, 961 N.E.2d 613 (2012).*

The USMJ’s findings that the stop of defendant was invalid, based on the credibility of the officer’s testimony, was supported by the evidence. The government’s objections did not overcome the findings. United States v. Northington, 2012 U.S. Dist. LEXIS 12941 (E.D. N.C. January 31, 2012).*

Permalink 07:29:13 am, by fourth, 165 words, 415 views   English (US)
Categories: General

OH10: “Come over here” was not a command; it could legally be ignored

Officers query to “come over here” was not a command; it could legally be ignored. City of Columbus v. Body, 2012 Ohio 379, 2012 Ohio App. LEXIS 318 (10th Dist. February 2, 2012):

[*P18] Federal courts have also recognized that "simply calling out to someone to come over to talk does not constitute a seizure." United States v. Brown (C.A.6, 2012), 447 Fed. Appx. 706, citing United States v. Matthews (C.A.6, 2002), 278 F.3d 560, 562. In Brown, the officer "holler[ed] for [the defendant] to come here," at which point the defendant turned his car around. The Sixth Circuit relied on its earlier decision in Matthews where it found that the statement, "Hey, buddy, come here," did not constitute a stop because the addressee could have "politely declined to do so, and walked away." Id., citing Matthews, 278 F.3d at 562; see also United States v. Richardson (C.A.8, 2008), 537 F.3d 951, 956 (no seizure where the officer states "[c]ome here" in a "[p]olice tone of voice").

[And I've got a bridge to sell you.]

Permalink 07:19:25 am, by fourth, 166 words, 362 views   English (US)
Categories: General

OH8: DEA can go along on a state search warrant

While the state search warrant rule defines “law enforcement officer” as a state law enforcement officer, it does not violate the rule to have a DEA agent along for the ride participating. Long v. State, 2012 Ohio 366, 2012 Ohio App. LEXIS 306 (8th Dist. February 2, 2012):

As stated by this court in State v. Joiner, 8th Dist. No. 81394, 2003 Ohio 3324, 2003 WL 21468900, "[f]ederal and state officers often work in conjunction in criminal cases and their cooperating in the execution of a search warrant is acceptable provided they are searching for the same contraband." See also State v. Siegrist, 11th Dist. No. 10-088, 1984 Ohio App. LEXIS 10955, 1984 WL 7295 (Sept. 28, 1984) (upholding warrant allegedly requested by DEA agent but executed by local police); State v. Miller, 9th Dist. No. 12198, 1986 Ohio App. LEXIS 5412, 1986 WL 1127 (Jan. 22, 1986) (stating that if officers from the jurisdiction where the search took place are present, the presence of unauthorized officers is immaterial); State v. Ridgeway, 4th Dist. No. 00CA19, 2001 Ohio 2655, 2001 WL 1710397 (holding that DEA agent could participate in search on local warrant).

Permalink 07:11:03 am, by fourth, 179 words, 360 views   English (US)
Categories: General

NY: Search incident of car day after arrest invalid

Defendant was arrested for having an open container that was in plain view. While a search incident at the time of the arrest would have been valid, a search the next day was not. People v Tashbaeva, 35 Misc. 3d 812, 938 N.Y.S.2d 873, 2012 NY Slip Op 22022 (Richmond Co. 2012).

The officers had reasonable suspicion for stopping a Lincoln Town Car that pulled up in front of a residence under surveillance for drug activity. The car stopped 3-5' from the curb, the driver stayed in the car, somebody ran inside, stayed a few seconds, and came back out, and then the car drove away committing a couple of traffic offenses. When the officer started following, the Town Car stopped in the middle of the street. Lovato v. State, 2012 WY 10, 269 P.3d 426 (2012).*

Defendant and the officer taking his statement were unaware of an allegedly illegal search of his computer for child pornography before he made an incriminating statement. Therefore, the statement was not caused by the illegal search. United States v. Howe, 2012 U.S. Dist. LEXIS 12989 (W.D. N.Y. February 2, 2012).*

Permalink 12:01:35 am, by fourth, 418 words, 358 views   English (US)
Categories: General

MD: Person approaching a house being searched with a warrant could be detained and frisked

Under Michigan v. Summers and Maryland cases, defendant approaching a house being searched under a warrant could be detained. An explicit threat is not required. Fields v. State, 203 Md. App. 132, 36 A.3d 1026 (2012):

Michigan v. Summers and other cases have established that, when executing a search warrant, police officers may reasonably detain persons found in and about the premises for reasons of safety and to secure the premises being searched. While the particular issue presented by this case, viz., that the person detained was walking towards the premises being searched, is a matter of first impression in this State, our conclusion that the police acted reasonably in detaining appellant is fully consistent with Maryland law and supported by persuasive decisions from other jurisdictions.

. . .

We now return to the case before us. In his brief, Fields emphasizes that his initial interaction with the officers was cordial, so he could not reasonably have been perceived as a threat. He also points out that the officers left the house to meet him before he entered the premises, and implies that their action virtually eliminated him as a threat to the integrity of the ongoing search because he was stopped before actually reaching the house itself.

We are not persuaded that an apparently benign interaction removes the initial encounter in this case from the justifications set forth in Summers and Cotton. First, it is not at all clear that the officers "perceived" no threat. For example, Sergeant Thayer stated on cross-examination that "[t]here's a possibility" that Fields might have "potentially" had a weapon. Additionally, Fields's argument that he could not reasonably be perceived as a threat by the officers because he was in the yard, as opposed to at the house itself, is undermined by Williamson's rejection of the argument that the defendant in that case could not have been a threat to the officers because he was departing the house.

More importantly, a person who is subjected to a limited detention pursuant to Summers may not dictate the contours of the police response simply on the basis of good behavior. Indeed, a "perceived" threat is not a prerequisite for the detention authorized by Summers; instead, "[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Summers, 452 U.S. at 702-03. Hence, the limited detention that is sanctioned by Summers does not depend on the presence of a threat, actual or perceived, to the officers executing the warrant.


Permalink 05:31:12 pm, by fourth, 158 words, 388 views   English (US)
Categories: General

WaPo: "Beware of privacy policies: Time to clean up your digital footprint"

WaPo: Beware of privacy policies: Time to clean up your digital footprint by Melissa Bell:

Last week, Google tracked the Web sites I visited and, like most technology companies, tried to guess who I was based on the places I visited. Its goal: to target advertising to me. The result? The search engine thought I was a 70-year-old man based in Atlanta.

I am not a man, not 70 and haven’t had the privilege of visiting the Peach State. Google’s guessing game might improve, though, thanks to a change in its privacy policies launched Wednesday. Now all the company’s products are governed by one policy, which lets the company track what I write on Gmail and compare it to what I watch on YouTube — all to better direct ads to me.

Why is facebook worth $75B? The information it has collected on 875M people.

When will the government start datamining to target people? It already can.

Permalink 09:15:38 am, by fourth, 355 words, 365 views   English (US)
Categories: General

FL2: Permitting officers through a gate was not consent to roam the curtilage

Officers asked defendant whether they could come through his gate to talk to him, and he agreed. That did not amount to consent to roam the curtilage or search the house. Ferrer v. State, 2012 Fla. App. LEXIS 1406 (Fla. App. 2d DCA February 3, 2012):

We reject the State's contention that once Ferrer open the locked gate, general "knock-and-talk" principles authorized the deputies to proceed to the front door area. See, e.g., State v. Navarro, 19 So. 3d 370, 372-73 (Fla. 2d DCA 2009). The State argues that because the officers were free to proceed to the front door of the house to knock and talk, the evidence of marijuana was legally obtained under the "plain smell" doctrine. However, the facts of this case do not demonstrate the implied general consent to enter the curtilage of the house that provides the basis for entry to conduct a knock-and-talk investigation. Rather than leaving his property open for any member of the public to enter, Ferrer had taken steps to keep out uninvited visitors by fencing it and erecting an electric gate across his driveway, thereby demonstrating an expectation of privacy. Cf. Nieminski v. State, 60 So. 3d 521, 525-27 (Fla. 2d DCA 2011) (finding no violation of privacy where officers entered fenced property through a closed, but unlocked, gate). Thus, while officers were free to approach the gate to conduct a knock and talk—which they did—the area inside the fence fell under the same constitutional protections as the residence itself, and the officers were not at liberty, absent consent, to approach the residence. Compare Fernandez v. State, 63 So. 3d 881, 883-84 (Fla. 3d DCA 2011) (holding that the defendant had a reasonable expectation of privacy in the fenced yard adjacent to his residence and that the momentary opening of the gate to allow the defendant to leave was not an invitation for police to enter); with State v. Triana, 979 So. 2d 1039, 1045 (Fla. 3d DCA 2008) (finding no constitutional violation where the police had a consensual encounter with the defendant outside of the locked gate to the defendant's property and the defendant agreed to a search and opened the gate to allow the police to enter).

Permalink 09:02:14 am, by fourth, 136 words, 367 views   English (US)
Categories: General

N.D.Ohio: Gov't showed established inventory policy to justify it

Because the government showed that the inventory was under an established policy, the inventory was valid. United States v. $677,660.00 in United States Currency, 2012 U.S. Dist. LEXIS 12948 (N.D. Ohio February 2, 2012).*

Defendant’s driving 80 miles an hour on the wrong side of the road, trying to elude police, and then crashing the car and fleeing was probable cause to search the car. United States v. Christian, 2012 U.S. Dist. LEXIS 12147 (N.D. Ga. January 5, 2012).*

Defendant got out of the vehicle searched, but he never alleged any facts that suggested that he had standing in the first place. United States v. Harris, 2012 U.S. Dist. LEXIS 12976 (W.D. Ky. February 2, 2012).*

The CI’s tale here was similar to Draper, and that provided probable cause. United States v. Sanchez-Manzanarez, 2012 U.S. Dist. LEXIS 12757 (S.D. N.Y. February 2, 2012).*

Permalink 08:47:02 am, by fourth, 306 words, 609 views   English (US)
Categories: General

CA6: "Full and fair" opportunity to litigate search in state court bars its habeas review

I ignore 99% habeas cases because of Stone v. Powell coupled with AEDPA making them largely redundant since based on a pro se habeas petition, but occasionally one shows up worth reporting; but always a federal appeal:

2254 habeas petitioner had a “full and fair” opportunity to litigate his search and seizure claim in state court, and the habeas court could not second guess it's decision and will not permit litigation of a defaulted claim. Fulcher v. Logan County Circuit Court, 2012 U.S. App. LEXIS 1908, 2012 FED App. 0112N (6th Cir. January 31, 2012) (unpublished):

Upon review, we hold that Fulcher had a full and fair opportunity to litigate his Fourth Amendment claims in state court. As his primary argument, Fulcher asserts that the Kentucky State Police acted in bad faith in obtaining the August 3 search warrant, which he contends was not supported by probable cause. This precise issue, however, was addressed at trial and reviewed by the Kentucky Supreme Court. Fulcher II, 2007 Ky. Unpub. LEXIS 45, 2007 WL 1536854, at *3-*4. Moreover, there is no evidence indicating that Fulcher's presentation of his claim was somehow frustrated. Accordingly, Fulcher's arguments before this court, which go to the "correctness" of the Kentucky Supreme Court's analysis, will not be considered. Riley, 674 F.2d at 526.

With regard to the July 24 search, Fulcher again asserts that the warrant was not supported by probable cause. This claim, like the first, is not cognizable on habeas review as Fulcher had a "full and fair" opportunity to litigate this claim in state court. Id. What's more, this claim is procedurally defaulted, as Fulcher failed to challenge the July 24 search on direct appeal and he may no longer assert the claim in state-court proceedings. Fulcher II, 2007 Ky. Unpub. LEXIS 45, 2007 WL 1536854, at *3 n.1. Accordingly, the claim is barred.

Remember, the only exception to "full and fair" is ineffective assistance under Kimmelman v. Morrison.

Permalink 12:06:35 am, by fourth, 183 words, 404 views   English (US)
Categories: General

WV: Cell phone seized with SW could be searched under that warrant

Where a cell phone was seized under a search warrant, a separate search warrant was not required to search it under Ross. State v. White, 2011 W. Va. LEXIS 761 (February 10, 2011) [yes, a year ago]:

Accordingly, we now expressly hold that, when searching a vehicle pursuant to a valid search warrant, no additional search warrant is required to examine the contents of items that are properly seized in the execution of the warrant, including, but not limited to, cellular telephones. Applying this holding to the case at hand, we find the contents of the Motorola cellular telephone seized from Mr. Mahrous's yellow truck were properly examined by law enforcement officials. Therefore, the trial court did not err in denying Mr. White's motion to suppress evidence that was obtained as a result of that examination.

Defendant and the passengers were all out of the car and frisked after defendant was stopped. The officers articulated no reason to search the car. However, defendant consented to a dog search of the car, and that gave probable cause. United States v. Campbell, 2011 U.S. Dist. LEXIS 152725 (D. Me. December 6, 2011).*


Permalink 09:23:56 am, by fourth, 189 words, 467 views   English (US)
Categories: General

CA5: Being told to follow the police officer to a drug dog is not consent when defendant was under police control

After defendant was stopped, the officer told dispatch he was going to have to follow him to a checkpoint for a dog sniff. The district court erred in finding consent. The officer made it clear to the dispatcher, in defendant's presence, that he planned to take defendant to the checkpoint “to run the dog on him,” the officer obtained defendant’s verbal consent to follow him to the checkpoint while he was in the police cruiser, defendant was in the cruiser at the officer’s direction and each time he exited the cruiser, he obtained the officer’s permission, and the officer never advised defendant he was free to go or decline his invitation to follow him to the checkpoint. United States v. Zavala, 459 Fed. Appx. 429 (5th Cir. 2012) (unpublished).*

Defendant’s stop for a seatbelt violation was valid and with probable cause. His admissions thereafter were valid. United States v. Adams, 2012 U.S. App. LEXIS 1781 (4th Cir. January 25, 2012) (unpublished).*

Defendant’s search claim was decided in the criminal case, so it couldn’t be brought up in the § 2255. United States v. Williams, 2012 U.S. Dist. LEXIS 12593 (D. Ore. February 1, 2012).*

Permalink 09:09:23 am, by fourth, 151 words, 386 views   English (US)
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IN: DNA taken by mistake not suppressed from CODIS

Indiana’s DNA submission statute has a mistake exception, and defendant’s DNA was taken in another case because he was charged with a felony but pled to a misdemeanor. Ten months later, his DNA was connected to a murder, and it was not excluded under the mistake exception. Anderson v. State, 2012 Ind. App. LEXIS 38 (January 31, 2012).*

When defendant was approached by the police, he placed an object in his hand away from him, and the trial court found that it was abandoned. It was a magnetic key box which the officer had seen before as a place to hide drugs. State v. Lewis, 85 So. 3d 150 (La. App. 4 Cir. 2012).*

Defendant was stopped for a ticketable offense, and the fact the officer might have had an ulterior motive for the stop didn’t matter. Additional questions during the stop did not require a Miranda warning. State v. Cortes, 84 So. 3d 733 (La. App. 3 Cir. 2012).*

Permalink 08:36:02 am, by fourth, 286 words, 426 views   English (US)
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IN: Gant officer safety exception permits SI of vehicle if passengers remain inside

Gant permits a search incident of a vehicle despite the detained driver when passengers remain in the car, if there is potential evidence in the car. Stark v. State, 960 N.E.2d 887 (Ind. App. 2012):

Davis [United States v. Davis, 569 F.3d 813 (8th Cir. 2009)], Goodwin-Bey [United States v. Goodwin-Bey, 584 F.3d 1117 (8th Cir. 2009)], and Young [Commonwealth v. Young, 78 Mass. App. Ct. 548, 940 N.E.2d 885 (Mass. App. Ct. 2011] indicate that, where unrestrained passengers remain in a vehicle, a search of the vehicle incident to a defendant's arrest is permissible to alleviate officer safety concerns and to prevent the destruction of evidence. We find this analysis persuasive. The Court in Gant emphasized the officer safety basis for the search incident to arrest exception. Gant, 556 U.S. at 332, 129 S. Ct. at 1716. The three passengers here were unsecured during Officer Shockey's arrest of Stark, Stark had behaved suspiciously regarding his jacket, and they were in a high crime area. An objective officer considering these facts would have been warranted in conducting a search of the vehicle incident to Stark's arrest under Gant's officer safety considerations. See United States v. Salamasina, 615 F.3d 925, 930 (8th Cir. 2010) (holding that, where the defendant's fiancée repeatedly entered and exited the vehicle, spoke to the defendant in a foreign language, and attempted to close the garage door, "[a]n objective officer considering these facts, in conjunction with the fact that officers had just executed an arrest warrant on [the fiancée] on drug charges, would be warranted in conducting a search of the vehicle incident to [the defendant's] arrest under Gant's officer-safety consideration"). The search of the vehicle incident to Stark's arrest was permissible under Gant, and the trial court properly denied Stark's motion to suppress.

Permalink 08:22:45 am, by fourth, 271 words, 449 views   English (US)
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HI: Typo in date on SW not fatal

A typographical error by the judge in the date of the search warrant does not invalidate it. This issue, too, is covered by the good faith exception, and it makes no sense to suppress based on this. “Courts from other jurisdictions have concluded that a clerical or scrivener's error does not justify invalidating the warrant and suppressing evidence obtained pursuant to the warrant. E.g., State v. Dalton, 887 P.2d 379 (Or. Ct. App. 1994); State v. Steffes, 887 P.2d 1196, 1210 (Mont. 1994).” State v. McKnight, 128 Haw. 328, 289 P.3d 964 (App. 2012), aff'd State v. McKnight, 2013 Haw. LEXIS 427 (December 31, 2013) (posted here):

Defendant was a truck driver stopped for reported erratic driving. Although he was able to offer an innocent explanation and did not seem impaired, the officer did not have to accept that and could inquire further. Having him pull the truck to a different place to get out of traffic was not unreasonable. State v. McCaa, 963 N.E.2d 24 (Ind. App. 2012):

Although we consider it a somewhat close call, we conclude that Sergeant Cothran was still entitled to detain McCaa for further investigation at the time he told McCaa to move his truck to the gas station. When Sergeant Cothran was speaking with McCaa for between thirty seconds and one minute, McCaa offered a seemingly plausible explanation for his erratic driving and exhibited no outward signs of impairment. A reasonable person, however, would have been entitled to doubt McCaa's story. First, although plausible, the story was undeniably self-serving and therefore suspect. We will not adopt the rule that reasonable suspicion vanishes as soon as a suspect offers a plausible, innocent explanation for his seemingly criminal behavior.


Permalink 08:14:05 am, by fourth, 718 words, 2959 views   English (US)
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CA5: Proctoscopic examination under sedation in search warrant for drugs in the rectum was unreasonable, but GFE validates it

Proctoscopic examination under sedation in search warrant for drugs in the rectum was unreasonable, but the good faith exception makes it valid. United States v. Gray, 669 F.3d 556 (5th Cir. 2012):

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767 (1966). This case forces us to balance this fundamental interest in a person’s bodily integrity and dignity against the significant need of law enforcement officers to unearth evidence of crime. Specifically, the Appellant Rondrick Gray was forced to undergo a proctoscopic examination under sedation pursuant to a warrant obtained on the police’s belief that he was concealing crack cocaine in his rectum. Weighing the competing interests, we find that the search was unreasonable but that the evidence should not be suppressed because the police acted in good-faith reliance on a valid search warrant. Accordingly, we AFFIRM.

. . .

Applying the Winston factors to the present case, the magnitude/danger of the proctoscopy appears to be slight. Though the testimony reveals that there was some risk of respiratory depression or arrest associated with the sedatives administered and risk of anal bleeding or perforation associated with the use of the proctoscope, these risks were low in the hospital setting where the proctoscopy occurred. The risks here are obviously greater than the blood draw found permissible in Schmerber, 384 U.S. at 771 (allowing a blood draw to determine the blood alcohol level of a drunk driver), but they do not seem to rise to the level of the risks associated with the surgery found unreasonable in Winston, 470 U.S. 763-65.

On the extent of the intrusion factor, Gray argues that “[s]hy of full-on exploratory surgery [like in Winston], it is hard to imagine a more demeaning and intrusive invasion of Gray’s interests” in personal privacy and bodily integrity. Br. of Defendant—Appellant at 29. This is an understatement: the proctoscopy here was a greater affront to Gray’s dignitary interest than full-on exploratory surgery. Though sedated, Gray was conscious throughout the entire procedure. Moreover, the procedure targeted an area of the body that is highly personal and private. In our society, the thought of medical technicians, under the direction of police officers, involuntarily sedating and anally probing a conscious person is jarring. Such a procedure is degrading to the person being probed—both from his perspective and society’s. This type of search resembles the physical vaginal cavity search that the First Circuit encountered in Rodriques v. Furtado, 950 F.2d 805 (1st Cir. 1991). ... [¶] In taking both of the individual interests into account, the magnitude of the intrusion from the proctoscopy was minimal, but the extent of intrusion from the proctoscopy was great.

Society’s interest here, like in Winston, is “of great importance.” Winston, 470 U.S. at 762. The interest is even greater than in Winston, where there was other evidence of guilt, id., because the crack cocaine that Hethcock believed Gray was concealing in his anal cavity was the only direct evidence of Gray’s possession. Unlike in Schmerber or Winston, however, there were other available avenues for obtaining this evidence, such as a cathartic or an enema. Such alternatives militate against society’s great interest “in conducting the procedure” used in this case—proctoscopy. Id. at 760 (emphasis added).

When balancing these interests and comparing them to our benchmarks of the permissible Schmerber blood draw and the impermissible Winston surgery, the medical danger here is slightly greater than in the former but nowhere near the danger of the latter. As to the dignitary interest, this is one of the greatest dignitary intrusions that could flow from a medical procedure?involuntary sedation for an anal probe where the person remains conscious. The last consideration is society’s interests, which are not as great as in Schmerber but greater than in Winston. On balance, we find the proctoscopic search unreasonable due to the exceeding affront to Gray’s dignitary interest and society’s diminished interest in that specific procedure in light of other less invasive means.

Apparently the good faith exception always trumps reasonableness? This is an issue SCOTUS should take as a potential conflict with Winston, but I have no confidence in how it will come out. I personally think the court downplayed the comparison to Winston too much.

Permalink 08:10:28 am, by fourth, 226 words, 2511 views   English (US)
Categories: General

CA9: Defendant's abandonment of car caused by illegal search

The officer reached in and took the keys to defendant’s car without reasonable suspicion, and then he started searching it. The defendant then abandoned the car. The abandonment was caused by the illegal search, and suppression was properly granted. United States v. Biddle, 467 Fed. Appx. 693 (9th Cir. 2012) (unpublished):

A person retains some expectation of privacy in his car. See New York v. Class, 475 U.S. 106, 114 (1986). Neither the officer's seizure of the keys or search of the glove compartment of an unoccupied vehicle can be justified as a stop under Terry v. Ohio, 392 U.S. 1 (1968). The officers knew the car was registered to Biddle and was not stolen before they searched the glove compartment. The search cannot be justified as a search incident to arrest because Biddle was not arrested at that time. Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 1721 (2009). Nor can the search be justified on the grounds of officer safety because Biddle was not identified and present during the search. Michigan v. Long, 436 U.S. 1032, 1049 (1983). These initial actions by the officers tainted any succeeding actions by Biddle, whether or not those succeeding actions constituted abandonment. United States v. Gilman, 684 F.2d 616, 620 (9th Cir. 1982). Moreover, these initial searches also tainted the towing of the car and subsequent search of the trunk under a community caretaking function rationale. See Wong Sun v. United States, 371 U.S. 471, 488 (1963).

Permalink 07:36:17 am, by fourth, 289 words, 2510 views   English (US)
Categories: General

NJ: City ordinance criminalizing refusal to consent to residential code search violates Fourth Amendment

Refusing a city inspection by insisting on one’s Fourth Amendment rights cannot itself be an offense. State v. Heine, 424 N.J. Super. 48, 35 A.3d 691 (2012):

By exercising her constitutional right to refuse to participate in an unwarranted inspection, Heine could not be deemed to have created the circumstances that would criminalize her conduct and cause the forfeiture of the very rights she sought to exercise. See State v. Berlow, 284 N.J. Super. 356, 358, 362-64, 665 A.2d 404 (Law Div. 1995) (refusing to find a defendant guilty of obstructing the administration of law, N.J.S.A. 2C:29-1(a), for closing and locking the door to his room in a boarding house when police, wanting “to see if there was a woman shot and bleeding and injured,” requested entry without a warrant). We adhere to the sentiments that an individual “is not required to surrender [her] Fourth Amendment protection on the say so of the [inspector]. The Amendment gives [her] a constitutional right to refuse to consent. ... [Her] asserting it cannot be a crime.” United States v. Prescott, 581 F. 2d 1343, 1350 (9th Cir. 1978).

We conclude that Garfield’s criminalization of Heine’s refusal to allow the inspections is not in accordance with long-established law. Since the seminal cases of Camara and See, our Fourth Amendment jurisprudence has — with the exceptions noted above — required search warrants to conduct unconsented-to inspections. Given the relaxed standards for obtaining such a search warrant, Camara, supra, 387 U.S. at 534-40, 87 S. Ct. at 1733-39, 18 L. Ed. 2d at 938-44, we are confident that the health, safety, and welfare of the citizens of Garfield will not be jeopardized. Accordingly, we find § 181-3 unconstitutional as applied. We reverse and vacate the convictions and sanctions for its violation in both appeals


Permalink 12:03:43 am, by fourth, 304 words, 2478 views   English (US)
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AR: If RS exists, stop does not end with the ticket or warning

The record supports reasonable suspicion for continuing the stop. While prior cases say the stop was complete at the time the warning was written, if there was reasonable suspicion, it could be extended for 15 minutes. Menne v. State, 2012 Ark. 37:

Two issues confront this court in the instant case. The first is whether the purpose of the traffic stop was over at the time Trooper Roark requested Menne’s consent to search the vehicle. The second issue is whether Roark developed a reasonable suspicion during the course of the traffic stop that was a sufficient basis to detain Menne further. The parties agree that at the time Roark requested a consent to search, he had not given Menne the warning citation for speeding. According to Roark’s testimony, he had not yet returned all of Menne’s documents to her. Our case law suggests that a stop is not complete until the warning citation and other documents are delivered back to the driver. See Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007) (holding that it was permissible for a police officer to ask for consent to search the vehicle when the officer had determined that he would issue a warning ticket but had not yet returned the driver’s identification papers or issued that ticket); see also Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004) (noting that the legitimate purpose of the traffic stop ended after the officer handed back the driver’s license and registration along with a warning ticket). Countering that, however, is Menne’s assertion that the warning citation was not provided to her by Roark because he was waiting for the K-9 unit to begin the dog sniff. Because we conclude that Roark had reasonable suspicion to detain Menne, we need not resolve the first issue.

Reversing the court of appeals, posted here.


Permalink 07:22:08 am, by fourth, 130 words, 586 views   English (US)
Categories: General

Oregonian: Police officer who arrested person video recording him held liable

The Oregonian: Eugene verdict clarifies legal protections for protesters who turn video cameras on police by Bryan Denson:

Camcorders, smart phones and live-streaming gizmos bob atop seas of demonstrators these days in Oregon, often capturing hostilities between police and demonstrators from various angles.

State law permits protesters to record police in public places. But courts have made few rulings on what officers can do with the recording devices they seize from people during arrests.

The rules of engagement became clearer in Eugene's U.S. District Court last week, when a civil jury determined that a city police sergeant violated an environmental activist's constitutional protections against illegal search and seizure during a 2009 leafletting campaign outside a bank.

[Note: This is so obvious, there is no qualified immunity. It isn't even close.]

Permalink 07:16:33 am, by fourth, 186 words, 454 views   English (US)
Categories: General

N.D.Ga.: Violation of parole officer's manual not determinative; Fourth Amendment is

Whether or not the parole officer violated the parole officer’s field manual really doesn’t matter if the search otherwise complied with the Fourth Amendment. United States v. Wade, 2012 U.S. Dist. LEXIS 11552 (N.D. Ga. January 31, 2012).*

Plaintiff was a potential suspect under the suspect exception of the Privacy Protection Act, 42 U.S.C. § 2000aa(a)(1). Her status as a photojournalist did not automatically protect her under the Act. Sennett v. United States, 667 F.3d 531 (4th Cir. 2012) (unpublished).

The trial court’s incomplete findings of fact left the appellate court unsure how it was applying the facts in crediting defendant (no violations of the law) or the officer (three traffic offenses). The fact that the trial court applied a reasonable suspicion standard rather than a probable cause standard suggested either that the trial court misapplied the law or disbelieved some or all of defendant’s testimony. The law that applied depended upon whose version of the events was to be believed, and the trial court failed to make any credibility determinations in the first instance. State v. Payne, 2012 Ohio 305, 2012 Ohio App. LEXIS 247 (9th Dist. January 30, 2012).*

Permalink 07:00:17 am, by fourth, 374 words, 578 views   English (US)
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S.D.Fla.: To invoke Jones in a GPS case, one must have standing

Under Jones, the person complaining has to have standing to contest installation of the GPS in the vehicle. The members of the robbery crew here had no standing. United States v. Hanna, 2012 U.S. Dist. LEXIS 11385 (S.D. Fla. January 30, 2012):

Under either approach recognized by Jones, an essential component of the Fourth Amendment claim requires that one's own personal "effects" have been trespassed (e.g., one's automobile when a GPS tracking device was secretly installed), or that one's own expectation of privacy was impinged (e.g., one's own movements were continuously monitored and tracked for a material period of time). That is principally where these Defendants' attempt to benefit from the Supreme Court's decision in Jones fails. Neither Ransfer nor Hanna was either the owner or exclusive user of the Ford Expedition. To the contrary, the record shows that members of the robbery crew consistently referred to the Expedition as co-Defendant Middleton's truck. It is undisputed, and the Court has found, that neither Ransfer nor Hanna was in possession of the Expedition at the time that the alleged trespass (the installation and subsequent use of the tracker) occurred. It is also undisputed that Middleton owned that vehicle at all relevant times. Thus, to the extent that Jones relies upon a theory of trespass upon private property, neither Ransfer nor Hanna has standing to challenge a trespass upon property as to which they had no rights.

Moreover, Defendants Ransfer and Hanna also lack standing to challenge the installation and use of the GPS device on the Ford Expedition because — under a traditional Katz analysis — they had no reasonable expectation of privacy in the vehicle. In Jones, five members of the Court concluded that Justice Scalia's trespass theory did not form a sufficiently comprehensive analysis of the Fourth Amendment implications of GPS monitoring and argued that GPS monitoring should also (in the case of Justice Sotomayor) or only (in the case of Justice Alito) be analyzed to determine whether it has invaded a reasonable expectation of privacy. Under this traditional test as well, neither defendant Ransfer nor Hanna had a reasonable expectation of privacy in the Ford Expedition or its movements, and thus neither has standing to challenge the installation and use of the GPS device.

Permalink 06:51:40 am, by fourth, 112 words, 363 views   English (US)
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NC: Defendant's hunting land was "open fields"

Defendant was accused of hunting baited bears on his own land, and the land was clearly open fields under Oliver. State v. Ballance, 2012 N.C. App. LEXIS 60 (January 17, 2012).*

When defendant was paroled, he agreed to be searched without cause. Samson v. California, 547 U.S. 843 (2006). Even if reasonable suspicion was necessary, the officers had it. United States v. Wade, 2012 U.S. Dist. LEXIS 11561 (N.D. Ga. January 4, 2012).*

Under the Florida Contraband Forfeiture Act, there was probable cause to believe defendant’s vehicle was used in the commission of a drug crime so the vehicle was “contraband,” and that justified its impoundment. United States v. Allen, 2011 U.S. Dist. LEXIS 152604 (M.D. Ga. December 5, 2011).*


Permalink 02:16:20 pm, by fourth, 96 words, 434 views   English (US)
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WBZ TV Boston: "FBI Uses Chainsaw In Raid On Wrong Fitchburg Apartment"

WBZ TV Boston: FBI Uses Chainsaw In Raid On Wrong Fitchburg Apartment by Jim Armstrong:

FITCHBURG (CBS) – It’s going to be a while before things get back to normal for Judy Sanchez and her three-year-old daughter.

Last Thursday, a team of FBI agents swarmed her apartment building as part of a massive citywide drug and weapons gang raid.

Trouble is, Sanchez lives in apartment 2R.

The suspect they were after is in 2F.

At 6:04 last Thursday morning, just before Sanchez’ alarm was set to go off, she heard a pounding outside her second floor apartment.

Permalink 10:29:14 am, by fourth, 439 words, 563 views   English (US)
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NC: Search incident after arrest for possession of a weapon after stop for being involved in a drive by was valid

The search incident of defendant’s car under Gant was permissible after he was stopped on a 911 call that he was seen and shot up the caller’s house the night before. When they got him out of the car, he admitting having a gun on him, which officers took. That supported a search incident of the car for evidence of the shooting incident. Defendant was otherwise locked in the police car, but that is not determinative where there is reasonable suspicion evidence of the crime could be in the car. State v. Mbacke, 365 N.C. 403, 721 S.E.2d 218 (2012), revg 703 S.E.2d 823 (N.C. App. 2011):

Instead, we conclude that the “reasonable to believe” standard set out in Gant parallels the objective “reasonable suspicion” standard sufficient to justify a Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). Although the rationales for the two standards differ somewhat, in that Gant addresses officer safety and evidence preservation, Gant, 556 U.S. at __, __, 129 S. Ct. at 1715-16, 1719, 173 L. Ed. 2d at 492-93, 496-97, while Terry addresses “effective crime prevention and detection” along with officer and public safety, Terry, 392 U.S. at 22-24, 88 S. Ct. at 1880-81, 20 L. Ed. 2d at 906-08, we believe the underlying concept of a reasonable articulable suspicion discussed in Terry, id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906, is readily adaptable to a scenario in which a search of a vehicle is contemplated after the occupants have been arrested and detained. See also United States v. Place, 462 U.S. 696, 702, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110, 117-18 (1983) (explicitly adopting the “reasonable, articulable suspicion” standard implied in Terry). In addition, law enforcement officers and courts have worked with the Terry standard for decades, making application of Gant’s similar objective standard a straightforward matter. Accordingly, we hold that when investigators have a reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect’s vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.

Here, defendant was arrested for the offense of carrying a concealed gun. The arrest was based upon defendant’s disclosure that the weapon was under his shirt. Other circumstances detailed above, such as the report of defendant’s actions the night before and defendant’s furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant’s vehicle. Accordingly, the search was permissible under Gant, and the trial court properly denied defendant’s motion for appropriate relief.

Permalink 10:05:02 am, by fourth, 104 words, 426 views   English (US)
Categories: General

LA4: No error denying defense continuance in suppression hearing for witness without proffer

The trial court did not abuse its discretion in denying a recess in the suppression hearing so the defense could attempt to locate another witness where there was no offer of proof as to what the witness would provide. State v. Lee, 79 So. 3d 1278 (La. App. 4th Cir. 2012).

There is no reasonable expectation of privacy in IP subscriber information. United States v. Lemburg, 2012 U.S. Dist. LEXIS 10907 (D. Neb. January 10, 2012).*

Defendant was excessively nervous and consented to a search of his vehicle which produced drugs. That justified a search incident of his person which produced more drugs. Lee v. State, 100 So. 3d 982 (Miss. App. 2012).*

Permalink 08:58:40 am, by fourth, 934 words, 899 views   English (US)
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E.D.Wis.: A general “clothing and accessories exception” rejected

Defendant was arrested outside his house, and the police had no reason to believe anyone else was in the house. A protective sweep of the house was invalid, and the view of a gun case was suppressed and had to be excised from the affidavit for later search warrant. The affidavit for the search warrant was plagued with exaggerations and misstatements which greatly concerns the court because this was a double homicide investigation. The court also rejects the “clothing and accessories exception” proferred by the government. United States v. McMillian, 2012 U.S. Dist. LEXIS 10841 (E.D. Wis. January 27, 2012):

The “clothing and accessories” exception purports to justify a law enforcement officer’s warrantless entry into a partially clothed arrestee’s home for the limited purpose of retrieving clothing or shoes for that arrestee. United States v. Jackson, 414 F. Supp. 2d 495, 504 (D.N.J. 2006). A review of the cases from the circuits that have recognized the exception shows that the exception generally fall under one of two categories. The first and more common category is an off-shoot of the already recognized exigent circumstances exception to the Fourth Amendment. United States v. Clay, 408 F.3d 214 (5th Cir. 2005) (finding that the need to procure footwear for barefoot arrestee constituted exigent circumstances justifying officer’s return to the bedroom); United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000) (finding an arrestee’s partially clothed status may constitute an exigency justifying an officer’s temporary reentry into the arrestee’s home to retrieve clothes reasonably calculated to lessen the risk of injury to the arrestee); see also United States v. Nascimento, 491 F.3d 25, 50 (1st Cir. 2007) (finding the need to dress a defendant may constitute an exigency justifying officers in entering another room to obtain clothing; however, also finding “[g]eneralizations are hazardous”); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir. 1992) (allowing officers to retrieve shoes for defendant because broken glass in the area where defendant was arrested presented a legitimate health and safety risk; however, finding that “entry into the defendant’s residence cannot be effected, in the absence of consent or exigent circumstances, solely upon the desire of law enforcement officers to complete the arrestee’s wardrobe”).

This is distinct from the situation in Washington v. Chrisman, 455 U.S. 1 (1982). In that case, the police arrested a student on campus but allowed him to go to his dorm room to get his identification card. While in the dorm room, the police observed contraband in plain view. The court held that the officer’s entry into the student’s dorm room was lawful. Id. at 7. The Court explained that incident to his arrest of the student, the officer’s “need to ensure his own safety-as well as the integrity of the arrest” was “compelling” justification for him to accompany the student to his dorm room. Id.

The second and outlier category stems from a so-called duty to find clothing for a defendant. United States v. DiStefano, 555 F.2d 1094 (2nd Cir. 1977) (finding the officers had a duty to find clothing for an arrestee clad only in a nightgown and bathrobe or permit her to do so). To date, two circuits have rejected the underlying rationale for the clothing exception. United States v. Whitten, 706 F.2d 1000, 1016 (9th Cir. 1983) (finding officer’s entry into room without specific request or consent unlawful); United States v. Kinney, 638 F.2d 941, 945 (6th Cir. 1981) (entry cannot be justified when defendant did not request permission to secure additional clothing and did not consent to an entry of his home).

The Seventh Circuit has not addressed either variant of the clothing exception. Indeed, the clothing exception appears to expand the Supreme Court’s and this circuit’s exigent circumstances line of cases. U.S. v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998) (“Exigent circumstances exist when there is a compelling need for official action and no time to secure a warrant”); U.S. v. Webb, 83 F.3d 913, 916 (7th Cir. 1996) (“Exigent circumstances exist when there is a reasonable belief by police that their safety, or the safety of the public, may be threatened.”). Accordingly, I agree with the district court in Jackson, 414 F. Supp. 2d at 504 n.11, that it is “a dubious proposition that the Court contemplated the evanescent risks associated with transporting a barefoot or shirtless criminal suspect to police headquarters as exigent circumstances sufficient to dispense with the Fourth Amendment’s warrant requirement.”

Moreover, even if I were to apply the “clothing and accessories” exception advanced by the government, the record does not support that McMillian’s lack of shoes amounted to an exigent circumstance or posed any risk to his health or safety. McMillian was arrested in the daytime, in July, in Milwaukee – not in the dead of night in a typical Milwaukee winter. See, e.g., Gwinn, 219 F.3d 326 at 333 (the court found exigent circumstance to enter trailer and retrieve clothing and shoes where defendant was arrested shirtless and barefooted on a cool late night in May in a remote location in rural West Virginia). There is also no evidence that any dangerous conditions such as broken glass, hazardous waste, not even rain existed to impede McMillian’s walk to the squad car. See e.g., Butler, 980 F.2d at 621-22 (court found police’s warrantless entry into defendant’s residence justified by health and safety concern for barefooted defendant who was arrested in area with broken glass).

Given the lack of authority from the Seventh Circuit on this exception and the lack of a factual record justifying its application, I do not find that the “clothing and accessories” exception validates the warrantless entry into the bedroom in this case.

Permalink 08:52:43 am, by fourth, 218 words, 442 views   English (US)
Categories: General

E.D.Tenn.: Stop and frisk can occur in front of one's own home

Defendant was lawfully “stopped” after he stopped his car at his mother’s house. There is no prohibition against a stop in front of defendant’s own home, let alone his mother’s. See O’Malley v. City of Flint, 652 F.3d 662, 670 (6th Cir. 2011) (stop in defendant’s own driveway); see also Illinois v. McArthur, 531 U.S. 326, 335 (2001) (arrest in defendant’s own doorway). United States v. Wade, 2012 U.S. Dist. LEXIS 10498 (E.D. Tenn. January 30, 2012).*

Defendant’s parole search of his house was justified by reasonable suspicion where he was a shooting victim in his front yard and didn’t cooperate in the investigation, had numerous violations before, and a gun box without the gun was found outside the house. United States v. Lynch, 459 Fed. Appx. 147 (3d Cir. 2012) (unpublished).*

Defendant’s parole officer got a telephone call from an anonymous CI that gave information that defendant was engaged in drug dealing from his apartment. There was limited predictive information, but, at the scene, the officers saw nothing that corroborated what the informant was saying. They knocked at his door, got no answer, and entered with a passkey. The motion to suppress was granted for lack of reasonable suspicion of criminal activity despite the CI’s story. United States v. Perminter, 2012 U.S. Dist. LEXIS 10836 (W.D. Pa. January 30, 2012).*

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by John Wesley Hall
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  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
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2011-12 Term:
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  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
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"If it was easy, everybody would be doing it. It isn't, and they don't."

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

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

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

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

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

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

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

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

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

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

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

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

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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