Archives for: March 2012

03/31/12

Permalink 07:15:19 pm, by fourth, 114 words, 404 views   English (US)
Categories: General

NYTimes: "Police Are Using Phone Tracking as a Routine Tool"

NYTimes: Police Are Using Phone Tracking as a Routine Tool by Eric Licthblau:

Law enforcement tracking of cellphones, once the province mainly of federal agents, has grown into a powerful and widely used surveillance tool for local police officials as well, with hundreds of departments, large and small, often using it aggressively with little or no court oversight, new documents show.

The practice has become big business for cellphone companies, too, with a handful of carriers marketing a catalog of “surveillance fees” to police departments to determine a suspect’s location, trace phone calls and texts or provide other services. Some departments log dozens of traces a month for both emergencies and routine investigations.

Permalink 04:52:59 pm, by fourth, 288 words, 479 views   English (US)
Categories: General

HuffPo: "Illinois State Police Drug Dog Unit Analysis Shows Error Rate Between 28 and 74 Percent"

Huffington Post: Illinois State Police Drug Dog Unit Analysis Shows Error Rate Between 28 and 74 Percent:

In the course of reporting on the traffic stop of Terrance Huff, HuffPost was able to obtain the reports of an Illinois State Police K-9 unit over an 11-month period in 2007 and 2008. An analysis of those reports shows that only 25.7 percent of the drug dog "alerts" resulted in police finding a measurable quantity of illicit drugs. Just 13 percent resulted in the recovery of more than 10 grams of marijuana, generally considered an amount for personal use, and 10.4 percent turned up enough drugs to charge the motorists or their passengers with at least one felony.

In all, the police dog conducted 252 "sniffs" over the 11-month period, resulting in 136 alerts. The U.S. Supreme Court has ruled that a drug dog's alert is enough to establish probable cause for a warrantless search of a vehicle. Of the 136 alerts, 35 turned up a large enough quantity of drugs to merit an arrest, and 63 turned up what the police officer refers to as "shake," or "residue." The officer didn't send any of those cases to a lab, so it's difficult to know if what the officer found was actually drug residue or, as appears to have been the case in the search of Terrance Huff, likely something else. In 38 cases, or 27.9 percent of the times a dog alert gave cause for a more thorough search, the officer recorded finding no drugs at all. Still, in most of these cases, the officer still notes in the report that the driver or passengers looked to be under the influence of drugs or, somewhat improbably, admitted to him that they were regular drug users. Obviously, there's no way to verify those claims.

Permalink 09:19:49 am, by fourth, 307 words, 578 views   English (US)
Categories: General

SC: DNA warrant invalid as based on bare conclusions

Warrant for DNA failed to show probable cause because it was based on mere conclusions. On remand, however, the state is free to use inevitable discovery to validate it. State v. Jenkins, 2012 S.C. App. LEXIS 84 (March 28, 2012):

Nevertheless, the State argues that because this case involves a sex crime, the magistrate could reasonably have inferred the victim was the source of the information. We disagree. The law does not allow the State to justify a bodily intrusion on the possibility that a magistrate made a correct inference as to the source of the information in the affidavit. Rather, "[m]ere conclusory statements which give the magistrate no basis to make a judgment regarding probable cause are insufficient." Smith, 301 S.C. at 373, 392 S.E.2d at 183. Moreover, the complete absence of a source for any of the information makes a variety of scenarios possible. For example, the detective could have pieced together the information from other officers, the victim's neighbors, or even an anonymous tip. This is precisely what the law forbids a magistrate from doing. The magistrate's "action cannot be a mere ratification of the bare conclusions of others." Id. (quoting Gates, 462 U.S. at 239).

Note: One of the benefits of knowing the Fourth Amendment is that you don't file pointless motions to suppress. Most of the time, 95% of the time, the warrant or search is valid. I filed my first motion to suppress in over a year this week on the same ground: The officer alleged it was his opinion that evidence would be found in the place to be searched without any effort to show probable cause connecting it to the crime under investigation saying only "It is the officer's opinion evidence will be found" in a camera and computer. And, warrants failing on this ground get no good faith exception under Leon's third ground.

Permalink 09:09:20 am, by fourth, 202 words, 389 views   English (US)
Categories: General

Cal.2d: Entry on a shooting call was by consent, and that included later crime scene processing of what was found in plain view

Police responded to a shooting call, and defendant was outside being patted down and handcuffed saying, “Just help him. Help him,” referring to his adult son Brian Chapman in the house who was shot. The first responders entered and also did a protective sweep for other possible injured, and they saw evidence in plain view. Those officers left briefly, but second responders were called to process the scene. They could enter the premises under the original consent. “California decisions uphold an officer's reentry to seize evidence observed in plain view during a lawful entry but not seized initially because the officer was performing a duty that took priority over the seizure of evidence.” The reentry was valid, and the trial court erred in suppressing the second entry. People v. Superior Court, 2012 Cal. App. LEXIS 369 (2d Dist. March 29, 2012).

Iraq solder was injured by an IED and evacuated stateside for recovery. When he was unconscious, his belongings were inventoried for shipment back with him, and child pornography was found. He was court martialed after recovery at Fort Drum. The inventory was valid under regulation for the injured and dead and MRE 313(c). United States v. Kelly, 2012 CCA LEXIS 103 (Army Ct. Crim. App. March 27, 2012) (unpublished).*

Permalink 08:28:51 am, by fourth, 94 words, 401 views   English (US)
Categories: General

Tenn. too: "Lawmakers continue to push plan to drug test welfare recipients"

WBIR.com: Lawmakers continue to push plan to drug test welfare recipients:

It's an idea in Nashville that just won't die.

Certain state lawmakers say they're not ready to give up on their plan to drug test welfare recipients, even though the attorney general says it's unconstitutional.

Lawmakers say they want to make sure those who receive public assistance are using the money as intended, and not for illegal drugs.

The plan is already moving ahead in both chambers even though the attorney general says drug testing those on benefits violates the Fourth Amendment.

Permalink 08:25:31 am, by fourth, 157 words, 478 views   English (US)
Categories: General

Memphis Commercial Appeal: "Sheriff's Office will no longer hold prisoners for 48-hour detention"

Memphis Commercial Appeal: Sheriff's Office will no longer hold prisoners for 48-hour detention | Practice violates Tenn. constitution, court finds by Lawrence Buser, Daniel Connolly, Kevin McKenzie:

Local authorities have suspended the practice of detaining people in jail for up to 48 hours without charging them with a crime.

The move follows a scathing opinion by the Tennessee Court of Criminal Appeals at Jackson, which said the Memphis Police Department was routinely violating the Fourth Amendment of the U.S. Constitution. That amendment says authorities can't make arrests or search and seize property without probable cause. The opinion also said the policy violates Tennessee's constitution.

The appeals court had ordered that convicted murderer Courtney Bishop must get a new trial because the detention that led to his confession of shooting a man in a robbery was illegal.

It was the third time since 2001 the court had issued a harshly worded opinion criticizing the 48-hour detentions.

The case is here.

Permalink 01:01:39 am, by fourth, 283 words, 545 views   English (US)
Categories: General

E.D.Pa.: Officer's constitutionally tailored testimony not believed

Bad search where officer’s testimony was clearly designed to skirt the constitution was not attenuated from a later search. United States v. Roberts, 2012 U.S. Dist. LEXIS 42752 (E.D. Pa. March 28, 2012):

The Fourth Amendment protects "against unreasonable searches and seizures." Faced with a motion to suppress, the Government bears the burden of demonstrating the reasonableness of a warrantless search or seizure. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). Here, the Government relied only on the testimony of Officer Kostick to meet its burden as to the October 7th search of Roberts and his van. As discussed supra, we do not believe Kostick's story. The objective physical facts, which are not subject to the biases of humans, prove his testimony to be false. We find his entire sequence of events (excessively tinted windows -> traffic stop -> failure to comply with commands -> drugs in plain view on the door -> gun in plain view on the floor) a fabrication, carefully constructed to stay just within the constraints of the Fourth Amendment. As such, the Government has not demonstrated the reasonableness of the October 7, 2010 traffic stop and subsequent search. This stop and search violated James Roberts' Fourth Amendment rights, and we have suppressed the evidence recovered during that search accordingly. (See Doc. No. 41).

Now we must tackle the difficult question of whether this Fourth Amendment violation taints the fruits of the December 21st search to which Roberts consented. Roberts contends it does, while the Government argues that time and intervening events have purged the taint. Because of the flagrancy of the constitutional violation that occurred here, we must agree with Roberts. Time cannot heal all wounds, and it cannot heal this one.

Permalink 12:34:30 am, by fourth, 442 words, 535 views   English (US)
Categories: General

E.D.Pa.: Govt proved attenuation; 2½ months between searches + Davis's policy of exclusonary rule

Attenuation proved: First search October 7th, second search December 21st; Davis must be considered. United States v. Roberts, 2012 U.S. Dist. LEXIS 42752 (E.D. Pa. March 28, 2012)*:

Not all Fourth Amendment violations warrant the suppression of evidence. The Amendment itself says nothing about suppression; rather, the exclusionary rule is a "prudential" doctrine with a singular purpose — to deter future Fourth Amendment violations. Davis v. United States, 131 S. Ct. 2419, 2426 (2011) (citation omitted). And as the Supreme Court recently reiterated, "real deterrent value" is a necessary, but not sufficient, condition for exclusion. Id. at 2427. Instead, we balance the hard-to-quantify social costs of exclusion (suppressing the truth) against its benefits (deterring police misconduct) and exclude the challenged evidence only when the latter outweighs the former. See id. at 2427-28 (cautioning that "[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield 'meaningful' deterrence, and culpable enough to be 'worth the price paid by the justice system.'") (citation omitted). Since we, as a society, have a compelling interest in deterring flagrant police misconduct, the more egregious the violation, the more likely it justifies exclusion. See id. (recognizing that "the deterrence benefits of exclusion 'vary with the culpability of the law enforcement conduct' at issue."). Importantly, our exclusionary rule analysis must account for the conduct of all the officers involved. See Herring v. United States, 555 U.S. 135, 140 (2009) ("In analyzing the applicability of the [exclusionary] rule, Leon admonished that we must consider the actions of all the police officers involved.").

. . .

On this particular point, we agree with the Government. As discussed supra, the point of the exclusionary rule is to deter police misconduct. The attenuation factors, including "temporal proximity" and "intervening circumstances," are really just clues that help us determine whether the benefits of suppressing certain evidence outweigh the costs. Here, the conduct we wish to deter is Officer Kostick's, not that of the agents who ultimately arrested Roberts on December 21st. Therefore, our purging-the-taint inquiry must center on the events of October 7th. The Defendant implicitly recognizes this, focusing entirely on Officer Kostick's conduct in discussing the "purpose and flagrancy" prong of the attenuation analysis. ...

Using October 7th as the starting point, the "temporal proximity" and "intervening circumstances" attenuation factors weigh against suppressing the fruits of the consensual December 21st search, but only slightly. As the Government points out, over two (2) months elapsed between Officer Kostick's search and Roberts' consent. Apparently, Roberts was not in police custody during this time. In addition, the agents who obtained Roberts' consent are different from the officer who committed the earlier illegality. All of this distances the December 21st search from the October 7th violation.

Permalink 12:27:17 am, by fourth, 282 words, 396 views   English (US)
Categories: General

TX: “Recently” in affidavit was sufficient to overcome staleness when coupled with ongoing drug operation

The affidavit twice used “recently” to describe when the officer learned of information from the CI. Coupled with a showing that this was an ongoing drug operation, that was enough to overcome staleness. Jones v. State, 364 S.W.3d 854 (Tex. Crim. App. 2012):

We have suggested that time is a less important consideration when an affidavit recites observations that are consistent with ongoing drug activity at a defendant's residence.33 We quoted from United States v. Johnson, in which the Tenth Circuit explained: "Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant."34 Other federal circuits have held that the nature of the activity must be considered, and that, in appropriate circumstances, years could pass without information becoming stale.35 In United States v. Greene, the Sixth Circuit explained that "[e]vidence of ongoing criminal activity will generally defeat a claim of staleness."36 And, according to that court, "where the criminal activity occurred in a 'secure operational base,' the passage of time becomes less significant."37

Greene was a case in which drugs were being sold out of a residence.38 Narcotics had been purchased at the residence at least twelve times, but the last reported time was twenty-three months before a warrant was sought.39 The Sixth Circuit found that the information was not stale.40 The Sixth Circuit has subsequently suggested that information about narcotics tends to go stale quickly but only "in the absence of information indicating an ongoing and continuing narcotics operation."41

Permalink 12:17:44 am, by fourth, 111 words, 371 views   English (US)
Categories: General

IA: Franks requires an offer of proof; bare allegation not enough

The trial court properly denied a Franks hearing because the defense provided no offer of proof as to what was false and how it affected probable cause. State v. Pargo, 2012 Iowa App. LEXIS 228 (March 28, 2012).*

Taillight violation supported stop that revealed defendant was an “habitual” driving without a DL violator. State v. Hughes, 2012 Iowa App. LEXIS 266 (March 28, 2012).*

The trial court erred in not considering the defendant’s offer of proof of the 911 call and other things on the question of reliability of an anonymous tip, but, on de novo review, the court of appeals considers it and finds that it does not change the outcome. State v. Kooima, 2012 Iowa App. LEXIS 231 (March 28, 2012).*

Permalink 12:02:05 am, by fourth, 148 words, 363 views   English (US)
Categories: General

LA5: Taking pretrial writ to appeal search issue bars appeal of issue after conviction

Defendant took a pretrial application for writ to this court on a Gant issue denied by the trial court, and that order was law of the case and could not be appealed again on the direct appeal from the conviction. State v. Massey, 97 So. 3d 13 (La. App. 5 Cir. 2012).

There was no proof that the officer’s challenged statements were anything more than negligent. One was a reasonable assumption based on the facts known to the officer at the time. United States v. Wyatt, 2012 U.S. Dist. LEXIS 42725 (W.D. Ky. March 28, 2012).*

Just because there is no Fourth Amendment rights in prison does not mean that an inmate has no rights at all. Here, the inmate’s drinking mug was bought with his own money, and it was arbitrarily confiscated. He stated a claim under the takings clause of the state constitution. Johnson v. King, 85 So. 3d 307 (Miss. App. 2012).*

03/30/12

Permalink 02:06:07 pm, by fourth, 177 words, 366 views   English (US)
Categories: General

BLT: "Lacking GPS Data, Prosecutors Turn To Cell Tower Information"

BLT: Lacking GPS Data, Prosecutors Turn To Cell Tower Information:

Earlier this year the U.S. Supreme Court said federal prosecutors in Washington will not be able to use global positioning system information in an upcoming drug conspiracy trial here.

...

The Jones case is back in Washington federal district court, and it now turns out that the authorities may not need the GPS data to try to link Jones to the drug house.

Prosecutors said they intend to use cell tower data in place of the GPS information, court records show. Cell tower data was not used in either of the first two trials involving Jones.

Jones’ attorney, A. Eduardo Balarezo, late Thursday filed court papers (PDF) in the case challenging the prosecution’s planned use of tower data to show Jones’ movement in the Washington metropolitan area.

Cell tower information is less reliable than GPS because of the ability of a cell phone to leapfrog over cell towers to others less close, but most persons who claim to be experts on this will admit the failings.

Permalink 08:49:30 am, by fourth, 182 words, 655 views   English (US)
Categories: General

NY1: Not leaving when metal detector goes off is implied consent to further search

Use of a metal detector to enter a building does not limit consent to just that. If it alerts, there is implied consent to a further search. Otherwise, don’t try to go in. Here, defendant was trying to carry drugs into a homeless shelter, and the metal detector went off. Here, it all ripened to reasonable suspicion. People v. Hurt, 2012 NY Slip Op 02408, 2012 N.Y. App. Div. LEXIS 2333 (1st Dept. March 29, 2012):

We reject defendant's argument that his implied consent was limited to the magnetometer search. When a person sets off a magnetometer by passing through it, the person can reasonably expect that security personnel will not permit entry into the restricted premises without taking whatever measures are necessary to find out what triggered the magnetometer. Otherwise, the magnetometer would have little value.

Since defendant never abandoned his attempt to enter the shelter, he implicitly consented to an expanded search. Defendant was free to cut off the search by turning around and walking out. The officer did nothing to suggest otherwise, and defendant never indicated that he no longer wished to enter.

Permalink 07:39:17 am, by fourth, 322 words, 2408 views   English (US)
Categories: General

D.Mass.: Wikileak border laptop seizure reasonable at inception but 49 day seizure likely too long; First Amendment claim survives

Plaintiff was a part of the Bradley Manning/Wikileaks support network, and his computer was seized in Chicago by DHS after he passed through Customs and was waiting for a flight to Boston and he was questioned about his connection to Manning. The court concludes the seizure was valid, but the 49 day detention stated a claim for unreasonableness of the seizure. Also, his First Amendment claim survives a motion to dismiss. House v. Napolitano, 2012 U.S. Dist. LEXIS 42297 (D. Mass. March 28, 2012):

Considering these factors in light of Supreme Court precedent, it cannot be said that the search and seizure of House's laptop and other electronic devices was so intrusive as to require any particularized suspicion. House contends that the search of a laptop and electronic devices implicates one's "dignity and privacy interests," not because there was any disrobing, physical search of his person, force used or exposure to pain or danger, but because such devices contain information concerning one's thoughts, ideas and communications and associations with others. However, such a search of a laptop computer or other electronic devices does not involve the same "dignity and privacy interests" as the "highly intrusive searches of the person" found to require some level of suspicion such as strip searches or body cavity searches. Flores-Montano, 541 U.S. at 152. The Supreme Court has not explicitly held that all property searches are routine or that such searches are categorically incapable of implicating the "dignity and privacy interests of the person being searched," Id., but the search of one's personal information on a laptop computer, a container that stores information, even personal information, does not invade one's dignity and privacy in the same way as an involuntary x-ray, body cavity or strip search of person's body or the type of search that have been held to be non-routine and require the government to assert some level of suspicion.

ACLU’s page on case; ACLU press release on order.

Permalink 07:12:00 am, by fourth, 528 words, 491 views   English (US)
Categories: General

N.D.Cal.: Govt ordered to provide computer search protocol to defense for overbreadth evaluation

Motion to suppress computer searches denied without prejudice, and the government is ordered to provide the computer search protocol to the defense so it can be determined whether the search was overbroad. United States v. Fu-Tain Lu, 2010 U.S. Dist. LEXIS 144395 (N.D. Cal. September 16, 2010):

The defense argues, however, that Agent Zaborowski's search was improper because the mirror images should have been turned over to a magistrate or third party to monitor any off site search. By engaging a third party to monitor the search of intermingled documents, the defendants contend that their Fourth Amendment rights could have been adequately protected. See id. at 595-96. The court finds, however, that Agent Zaborowski's method of searching adequately protected defendants' rights. By using software and word searches, the government avoided looking at documents that were likely to be outside the scope of the warrant. In a search of hard copy documents at a site, agents necessarily look at many documents that they do not seize because they are outside the scope of the warrant. With the method used by Agent Zaborowski, assuming he made appropriately narrow word searches, only those documents that had a likelihood of being within the scope of the warrant were examined by human eyes. Thus, potential Fourth Amendment concerns were minimized. Although Tamura and United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 997-9 (2009) suggest that when documents within the scope of a warrant are intermingled with documents not covered by the warrant and the documents are removed from the site for later review, the further search should be with the approval of a magistrate. However, Tamura did not consider the Government's utilization of a word search that would avoid looking at most, if not all, documents outside the scope of the warrant. It is doubtful that the method used by Zaborowski for searching electronically stored documents even existed at the time of Tamura. In Comprehensive Drug Testing the searching agents were exposed to drug testing records of non-parties whose privacy rights were clearly violated, a very different situation than that in the present case.

For the reasons stated, the court orders as follows:

1. Defendants' motion to suppress evidence is denied without prejudice to reconsideration if the defense discovers that the Government did a search of the mirror images that was not reasonably designed to find only documents, files or data described in the warrant;

2. The Government is to turn over the mirror images of the hard drives and thumb drives in its possession to the defense;

3. The mirror images of the hard drives and thumb drives are to be maintained in their present state by defense counsel or a third party escrow;

4. The Government is to return the eight 1.44MB floppy disks to defendants without reviewing them, is not to use them against defendants at trial and must destroy the CD onto which the floppy disks were copied;

5. The Government is to provide the defense with the word searches it used as best they can be reconstructed; and

6. The Government is to provide the defense with copies of any documents, files or data from the mirror images it book marked or otherwise selected or copied.

Permalink 07:03:45 am, by fourth, 249 words, 413 views   English (US)
Categories: General

D.Haw.: Pre-Jones GPS use saved by Davis

The placement of a GPS on defendant’s vehicle was authorized by binding precedent at the time, so Jones being decided after the fact requires Davis’s good faith exception be invoked. United States v. Leon, 856 F. Supp. 2d 1188 (D. Haw. 2012):

The United States now concedes that Jones renders the placement and subsequent use of the GPS device unconstitutional. And so, the sole remaining issue in this case is whether the exclusionary rule applies, focusing on whether the agents acted with objective reasonable reliance on then-existing precedent permitting the attachment and subsequent use of a GPS tracking device. Based on the following, the court agrees with the Government that the exclusionary rule does not apply.

...

Unlike the placement of a GPS tracking device on the exterior of a vehicle in an area where a defendant has no legitimate expectation of privacy, neither Supreme Court nor Ninth Circuit binding precedent [United States v. McIver, 186 F.3d 1119 (9th Cir. 1999)] in 2009 authorized the agents to continuously monitor the location of the vehicle in public places for a prolonged period of time. Davis therefore is not directly controlling on this issue. Instead, the court must determine whether the agents exhibited "deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights" or whether they acted "with an objectively reasonable good-faith belief that their conduct [was] lawful." Davis, 131 S. Ct. at 2427. And after examining precedent as of 2009, the court finds that the agents' conduct in the use of the GPS tracking device was objectively reasonable.

Permalink 06:19:24 am, by fourth, 257 words, 477 views   English (US)
Categories: General

OH distinguishes between “light” and “strong” odor of marijuana for search of trunk

Ohio distinguishes between “light” and “strong” odor of marijuana to determine whether smell is enough to search the trunk. Here, it was “strong.” State v. Ivery, 2012 Ohio 1270, 2012 Ohio App. LEXIS 1120 (11th Dist. March 26, 2012):

[*P25] However, the Ohio Supreme Court has also held that"[t]he odor of burnt marijuana in the passenger compartment of a vehicle does not, standing alone, establish probable cause for a warrantless search of the trunk of the vehicle." State v. Farris, 109 Ohio St.3d 519, 2006 Ohio 3255, 849 N.E.2d 985, ¶ 52 (where the officer detected only a "light" odor of marijuana and no contraband was found in the passenger compartment of the vehicle, a search of the trunk was improper).

[*P26] We hold that the search in this case falls under the automobile exception and that Shum did have probable cause to extend the search to include the vehicle's trunk. Many courts have found cases with similar circumstances to be distinguishable from Farris, such that a search into the trunk of the vehicle is proper under the automobile exception. ...

[*P27] In the present case, Shum testified that he smelled a "very strong" odor of marijuana upon approaching the car. In addition, after searching the interior of the car, he saw what he described as little "bits of marijuana." Upon speaking with Ivery, Shum was also informed that Ivery had been smoking marijuana that day. When considering all of these factors together, this case is distinguishable from Farris, and Shum had sufficient probable cause to search the trunk of the vehicle in addition to the interior.

03/29/12

Permalink 06:42:58 pm, by fourth, 51 words, 472 views   English (US)
Categories: General

Facebook posting sent today

"The US government can listen to my phone calls and read my emails, detain me indefinitely without charge, and incinerate me with a drone while I am abroad -- but to force me to buy health insurance would be to shred the Constitution and take away my freedom."
-- From Facebook

Permalink 08:44:54 am, by fourth, 212 words, 478 views   English (US)
Categories: General

CO declines to impose RS standard on use of a drug dog

The state constitution does not impose a reasonable suspicion standard before a drug dog can be used on a vehicle. People v. Esparza, 2012 CO 22, 272 P.3d 367 (Colo. 2012).

Sobriety roadblock was set up by a supervisory officer two days earlier by surveying in the area. The fact only two officers manned the roadblock was not an issue to make it unreasonable. State v. Brown, 315 Ga. App. 154 726 S.E.2d 654 (2012).*

The district court didn’t find probable cause for arrest, but the appellate court does, so the false arrest claim is foreclosed. “In this case there was certainly arguable probable cause. The undisputed evidence showed that within seven minutes of being informed of a possible break-in and assault, Turner spotted Fleming in an alleyway approximately one-half block from the crime scene. Fleming was the only person in the area and he substantially matched the description of the intruder that one of the victims had given to Turner—he was wearing a baseball cap, t-shirt, and camouflage cargo shorts. From this evidence, a police officer could have reasonably, if mistakenly, believed that probable cause existed to arrest Fleming. This is true even if Haleigh had described Turner's t-shirt as ‘light-colored’ because witnesses often have minor details incorrect.” Fleming v. Livingston County, 674 F.3d 874 (7th Cir. 2012).*

Permalink 07:32:48 am, by fourth, 77 words, 372 views   English (US)
Categories: General

WNYC News Blog: "NYPD Conducts Suspicionless Stops in Private Buildings: Suit"

WNYC News Blog: NYPD Conducts Suspicionless Stops in Private Buildings: Suit by Ailsa Chang:

A federal class action was filed against New York City and Police Commissioner Ray Kelly on Wednesday for what plaintiffs allege are suspicionless stops within private residential buildings.

Under the NYPD's enforcement of a program known as Operation Clean Halls, a landlord enters into an agreement with the NYPD, which grants officers permission to patrol inside the building at any time they choose.

03/28/12

Permalink 01:18:37 pm, by fourth, 238 words, 475 views   English (US)
Categories: General

S.D.Fla.: Knock-and-talk of convicted felon's house after his frisk revealed gun in plain view, and warrantless entry justified

Defendant was the subject of a wiretap, and he was confronted on the street about having a gun in his possession. He allowed a frisk and no gun was found. Officers went to his house and knocked. When the door was opened, a gun was seen through the open door. Entry without a warrant was justified by exigent circumstances that the gun would disappear if it was not seized. Officers did not arrest on the spot to keep the wiretap viable. "Conversations subsequently monitored contained a statement by Shingles that 'I'm glad they didn't find that sawed off.'" United States v. Rodgers, 924 F.2d 219 (11th Cir. 1991); United States v. Smalls, 617 F. Supp.2d 1240 (S.D. Fla. 2008). United States v. Shingles, 2012 U.S. Dist. LEXIS 41130 (S.D. Fla. March 2, 2012).

Because no suspicion was required to search Asprilla and because probable cause existed that he was residing at his girlfriend’s Ingalls Street apartment, we need not consider whether the search was alternately justified by exigent circumstances.” United States v. Asprilla, 2012 U.S. App. LEXIS 6232 (9th Cir. March 27, 2012) (unpublished).*

Defendant allegedly threatened a neighbor with a gun, and the neighbor called the police. An officer ran defendant’s name finding a PV warrant out for a prior offense of FIPF. The officer went to defendant’s house, and his wife had apparent authority to consent to a search for the gun. United States v. Schmitz, 469 Fed. Appx. 772 (11th Cir. 2012).*

Permalink 01:03:37 pm, by fourth, 195 words, 392 views   English (US)
Categories: General

W.D.Pa.: Claim that officers made up facts in affidavit for SW requires a proffer of what's false and what's truth

Claim that officers made up the allegations of the affidavit for the search warrant still did not warrant a Franks hearing. He at least needs to make a proffer of the falsity and what rebuts. United States v. Wade, 2012 U.S. Dist. LEXIS 40754 (W.D. Pa. March 26, 2012):

7. Defendant did not, however, present a sufficient preliminary showing that the affidavit contained a false statement. He is, therefore, not entitled to a Franks hearing, and the court must deny the Motion for a Franks Hearing (ECF No. 57). Defendant presented no evidence to contradict any of the averments made in the application for the warrant. His attempt to eliminate the potential callers (and by process of elimination present testimony that no confidential informant called defendant at the appropriate time) failed. The warrant application contains a statement that the CI called Wade's phone sometime after 6:30 p.m. and before 6:55 p.m., which is when Churilla and the CI departed the police station heading to Wade's residence. There are at least five telephone calls from unidentified callers (Callers A, B, C, D, and E) in that time period which were answered, any of which could be attributable to the CI.

Permalink 12:59:08 pm, by fourth, 126 words, 470 views   English (US)
Categories: General

E.D.Mich.: Independent source, consent, lack of standing, and inevitable discovery overcame Jones violation

The government’s warrantless use of GPS on vehicles in violation of Jones does not lead to suppression. On the vehicle search, there was consent of the operator and no standing of the others. “Neither of these Defendants has presented evidence showing either an ownership or contractual interest in any of these vehicles or exclusivity of use such that would give rise to a legitimate expectation of privacy.” On a dwelling search, the evidence showed that a search warrant would have issued anyway under the independent source doctrine when the GPS information was removed from the warrant. On another vehicle search, there was independent probable cause for its search apart from the GPS monitoring. United States v. Luna-Santillanes, 2012 U.S. Dist. LEXIS 40532 (E.D. Mich. March 26, 2012).

Permalink 05:09:25 am, by fourth, 158 words, 416 views   English (US)
Categories: General

GPB News: "Welfare Drug Testing Bill Moves Forward"

GPB News: Welfare Drug Testing Bill Moves Forward by Jeanne Bonner:

ATLANTA—Georgia lawmakers have passed a bill that would require welfare recipients to take a drug test before receiving benefits. GOP supporters of the measure say it would save taxpayers money but opponents say it’s unconstitutional and uncharitable.
Georgia lawmakers have passed a bill that would require welfare recipients to take a drug test before receiving benefits. GOP supporters of the measure say it would save taxpayers money but opponents say it’s unconstitutional and uncharitable.

The bill would target what supporters call abuse of a government benefit, namely the federal welfare program.

It’s similar to a Florida law a federal judge has blocked because it violates the Fourth Amendment’s protection from unlawful search.

I hope when the Arkansas legislature comes back into session they will adopt such a law. I can use the money after suing them for adopting something so fundamentally unconstitutional.

03/27/12

Permalink 04:16:21 pm, by fourth, 160 words, 428 views   English (US)
Categories: General

Massachusetts Lawyers Weekly: "Lawyer settles cell phone suit against city, cops for $170K"

Massachusetts Lawyers Weekly: Lawyer settles cell phone suit against city, cops for $170K by Matt:

The attorney arrested for using his cell phone to record Boston police officers during an arrest has reached a settlement with the city for $170,000.

After a judge threw out criminal charges of illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace against Simon Glik, he filed a civil rights suit against the city and the arresting officers in U.S. District Court, aided by the American Civil Liberties Union of Massachusetts and Boston attorneys Howard Friedman and David Milton.

The settlement follows a landmark decision last August by the 1st U.S. Circuit Court of Appeals, which ruled that the First Amendment protects the right to record police carrying out their duties in a public place. In Glik v. Cunniffe, The 1st Circuit affirmed that an arrest for openly recording the police also violates the Fourth Amendment’s guarantee against false arrests.

Permalink 09:36:37 am, by fourth, 188 words, 368 views   English (US)
Categories: General

S.D.Fla.: Knowledge of right to refuse a search was a factor in consent

Defendant was found to have consented. Sure, there were a lot of police there, but he wasn’t yet arrested, and they talked casually for 20 minutes before consent was asked for. There was no evidence of overt coercion, and he was informed of his right to refuse the search in writing. United States v. Cochran, 2012 U.S. Dist. LEXIS 40505 (S.D. Fla. February 8, 2012).*

A wire on a cooperating codefendant-to-be was sufficient to show nexus to defendant’s house because the house was connected to the alleged drug deal. The good faith exception would support the search anyway. United States v. Bell, 2012 U.S. Dist. LEXIS 40770 (D. Minn. February 6, 2012).*

Police had fairly specific information (which was couched in terms of what they knew and didn’t know) and overhead the CI on a wire talking with a man in a silver Jetta and a drug deal was arranged. When a silver Jetta showed up, the police identified themselves, and the defendant ran from the Jetta. They had probable cause, and flight alone wasn’t all they had. United States v. Bazzle, 2012 U.S. Dist. LEXIS 40236 (E.D. Pa. March 23, 2012).*

Permalink 09:12:26 am, by fourth, 286 words, 621 views   English (US)
Categories: General

CA8: Father had apparent authority to consent to seizure of stolen computers

Officers followed tracks in the snow from the scene of a burglary to defendant’s house, and defendant’s father consented to a search of computers in the house that were likely stolen. His father, a retired police officer, appreciated the significance of what was going on and wanted the computers gone. He had apparent authority to consent to a search of these computers. United States v. Clutter, 674 F.3d 980 (8th Cir. 2012):

When determining whether a third party exercised actual or apparent common authority over the contents of a computer, courts typically examine several factors -- whether the consenting third party in fact used the computer, whether it was located in a common area accessible to other occupants of the premises, and -- often most importantly -- whether the defendant's files were password protected. See United States v. Stanley, 653 F.3d 946, 950-51 (9th Cir. 2011); United States v. Stabile, 633 F.3d 219, 232-33 (3d Cir.), cert. denied, 132 S. Ct. 399 (2011); Andrus, 483 F.3d at 719-20; United States v. Buckner, 473 F.3d 551, 554-55 (4th Cir.), cert. denied, 550 U.S. 913 (2007); United States v. Morgan, 435 F.3d 660, 663-64 (6th Cir. 2006). Clutter argues it was error to deny his motion to suppress because the government presented no evidence "that Joel Clutter used or had electronic access to the computers."

The primary flaw in this argument is that the only Fourth Amendment issue with any factual support is whether the three computers were validly seized at the Clutter home on January 22. There is no evidence that the officers searched the computers before obtaining an unchallenged warrant authorizing the search. The distinction, though often overlooked, is important: ....

[Maybe intentionally] Overlooked is a more fundamental question: Is there a reasonable expectation of privacy in stolen computers?

Permalink 08:48:53 am, by fourth, 152 words, 403 views   English (US)
Categories: General

Business Week: "Big Brother Wants Your Facebook Password"

Business Week: Big Brother Wants Your Facebook Password by Claire Suddath:

If you want to become a state trooper in Virginia, you should probably delete any indelicate information you have on Facebook. During the job interview process, the Virginia State Police requires all applicants to sign into Facebook, Twitter, and any social-networking site to which they regularly post information in front of an administrator.

“You sign a waiver, then there’s a laptop and you go to these sites and your interviewer reviews your information,” says Corinne Geller, spokeswoman for the Virginia State Police. “It’s a virtual character check as much as the rest of the process is a physical background check.” Geller says the practice has been around for only three months and is just one of many ways the state makes sure its law enforcement officials are ethically sound. (Potential troopers also have to submit to a polygraph test).

Permalink 08:45:09 am, by fourth, 159 words, 421 views   English (US)
Categories: General

CA6: Parents had apparent authority to consent to search of common computer in the house

Officers came to defendant’s house for a knock-and-talk about child pornography traced back to his IP address. He wasn’t home but his parents were. Because the computers were used by all, sitting in the dining room, and his parents paid the internet bill, his parents had apparent authority to consent to a search of the computers. The fact he had an individual profile was not enough to create a reasonable expectation of privacy because it was not password protected. United States v. Trejo, 471 Fed. Appx. 442 (6th Cir. 2012).

Officers found a marijuana patch outside defendant’s curtilage and followed footprints in the mud to defendant’s house. Officers came close to the curtilage, in making their observations, and they actually entered an outbuilding within the curtilage arguing protective sweep because of fresh footprints. That incursion, however, never was revealed to the issuing magistrate, so it was valid under inevitable discovery. United States v. Witherspoon, 467 Fed. Appx. 486 (6th Cir. 2012).*

Permalink 12:04:17 am, by fourth, 158 words, 484 views   English (US)
Categories: General

VT: HIV testing in sex cases reasonable under special needs exception

Compulsory HIV testing of accused sex offenders satisfies the special needs requirement because it is a public health issue, not a criminal law issue. Imposing a probable cause standard would be “entirely impracticable” [not impractical?] because of lack of immediate outward manifestations. State v. Handy, 2012 VT 21, 44 A.3d 776 (2012).*

Fourth Amendment law is clear that mobility of a car makes for exigency for the automobile exception. Because the defendant did not argue that the state constitution should be separately considered as in other states where a warrant would be required if there was time, the court declines to decide case on state constitution. State v. Sanchez-Loredo, 294 Kan. 50, 272 P.3d 34 (2012).*

The officers observed defendant committing a crime, so there was probable cause for the stop and search of his car. Marked money was in plain view torn up on the floorboard. Therefore, defense counsel couldn’t be ineffective. Cooper v. United States, 2012 U.S. Dist. LEXIS 39826 (C.D. Ill. March 23, 2012).*

03/26/12

Permalink 11:12:15 am, by fourth, 121 words, 750 views   English (US)
Categories: General

Cert. granted in a dog sniff equalling PC

Cert. granted today in Florida v. Harris, 11-817.

Issue: Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.

Opinion below: Harris v. State, 71 So. 3d 756 (Fla. 2011) posted here.

Briefs: Cert petition; brief in opposition.

This case will be argued next Term. Read the Florida Supreme Court's decision, the petition, and the BIO before you pass judgment on the oversimplistic issue the state chose to present. The case isn't that easy, unless, of course, the conservative wing has no problem with just saying "this is Place and Caballes and we're done." If it really was, they should have GVR'd it and been done with it.

Permalink 08:48:09 am, by fourth, 291 words, 507 views   English (US)
Categories: General

TX11: Face-to-face swearing to a SW affidavit not required; fax will do

A face-to-face meeting better the affiant for a search warrant and the issuing magistrate is not required. Here, they recognized each other’s voices, the affiant swore over the phone and faxed the affidavit to the magistrate who faxed back the signed search warrant. Clay v. State, 382 S.W.3d 465 (Tex. App. – Waco March 21, 2012), discretionary review granted by Clay, 2012 Tex. Crim. App. LEXIS 847 (Tex. Crim.
App. June 27, 2012):

The second statement relied upon by Clay is a comment by the Court that, while recognizing innovations such as telephonic search warrants should not be foreclosed by the requirement of a signed affidavit, "[w]e leave those potential future changes to the Texas Legislature...." Smith v. State, 207 S.W.3d 787, 793 (Tex. Crim. App. 2006). This statement, Clay believes, is an acknowledgment that a procedure to obtain warrants by telephone and facsimile has not been authorized by statute, does not exist under Texas law, and therefore cannot be a valid practice in Texas at the present time. We believe it is not such an acknowledgement and certainly is not such a prohibition. As the Court stated, it is important for the law to retain some flexibility in the face of technological advances. Id. at 792. Had there been no flexibility in the statute, the Smith Court would have been compelled to hold that a signed affidavit was required. It did not. And thus, the statute is also flexible so as to allow for the taking of an oath over the telephone or by some other electronic means of communication under certain circumstances. That is the nature of the development of the common law. We must decide only the issue presented—in this case, is the affidavit invalid because it was not made on an oath administered face-to-face.

Permalink 12:25:16 am, by fourth, 504 words, 457 views   English (US)
Categories: General

NE: Defendant's request to delete files from computer before seizure did not support second search warrant for child porn

Officers somehow ended up at defendant's house based on an investigation that his IP address had been used for credit card fraud. They came to do a knock-and-talk for his computers and he refused to consent to a search. They came back with a search warrant, and he requested to delete files from one of the computers when one made an off-hand remark about child pornography, which they denied. Then they sought a second search warrant for child pornography based on the request to delete files. That was not an additional factor in probable cause, and the trial court was correct in suppressing the search and in finding no good faith exception. State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012):

The Fourth Amendment contains a particularity requirement, stating that “no Warrants shall issue, but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis supplied.) The Founding Fathers’ abhorrence of the English King’s use of general warrants—which allowed royal officials to engage in general exploratory rummaging in a person’s belongings —was the impetus for the adoption of the Fourth Amendment.10 Simply put, the Fourth Amendment prohibits “fishing expeditions.”

...

[12] To allow a search based only on the fact that Sprunger wanted to hide something would sanction the type of general exploratory rummaging the Founders wished to prohibit. As we have stated before, “‘[a] general search for evidence of any crime,’” such as the one that would be issued based solely on this fact, is unconstitutional.

It is true that the fact Sprunger asked to delete some files might have raised a suspicion. But this suspicion did not amount to a fair probability that child pornography would be found on his computers. Based solely on this fact, the deputies would have no idea what would be found. Their search would have amounted to a rummaging through a treasure trove of information. “‘[T]he modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs.’” It thus makes the particularity and probable cause requirements all the more important. To sanction a search based solely on Sprunger’s request to delete some unknown files would trivialize the protections of the Fourth Amendment.

. . .

Moreover, not only would a reasonable officer know that a general search warrant was illegal, a reasonable officer would also know that telling a person that he had “nothing to worry about” if he had no child pornography on his computer would lead that person to believe he was being investigated for child pornography. The deputy had effectively planted the idea in Sprunger’s head. Given this, we do not see how the deputies could have objectively relied on the warrant. The deputies knew—or certainly should have known—that the only fact showing any connection to child pornography was of their own making.

Permalink 12:12:39 am, by fourth, 247 words, 416 views   English (US)
Categories: General

LA4: Omission in SW application was in arrest warrant application signed at same time; magistrate could consider both

While the application for the search warrant failed to show nexus to defendant’s car, the arrest warrant application presented to the magistrate just five minutes earlier did. Therefore, it was apparent the search warrant application omission was a mere oversight, and the magistrate apparently considered both in issuing the warrant, and this was not improper. The good faith exception would apply in any event. State v. Cunningham, 88 So. 3d 1196 (La. App. 4th Cir. 2012):

In sum, we find that Detective Matthews' failure to include information in the affidavit for the search warrant linking the residence to the Mustang used in the shooting was an apparent oversight. Nonetheless, the magistrate was aware of this link because it was contained in the affidavit for Williams' arrest warrant, which the magistrate read and signed mere minutes before reading the affidavit for the search warrant for the residence. Detective Matthews and the other officers were not unreasonable in relying on the validity of the search warrant for the residence. Nor is there evidence of any police misconduct on Detective Matthews' part. Given these circumstances coupled with the fact that the magistrate was in possession of the information linking the residence to the Mustang before he signed the search warrant for the residence, none of the exceptions to the good faith doctrine applies to this case. Thus, the district court did not err in denying the motion to suppress the evidence seized from the residence. Accordingly, the Relator's writ application is denied.

Permalink 12:01:44 am, by fourth, 176 words, 433 views   English (US)
Categories: General

C.D.Cal.: One defendant had no standing in search of codefendant's cell phone

One defendant’s cell phone could be seized and searched under his parole search condition, and the other defendants had no standing in his cell phone. United States v. Delvalle, 2012 U.S. Dist. LEXIS 38547 (C.D. Cal. March 20, 2012).*

There was no reasonable suspicion to extend the stop in this case, and that unlawful detention led to an invalid consent. State v. Wendler, 47 Kan. App. 2d 182, 274 P.3d 30 (2012)*:

We conclude that under the totality of the circumstances, the duration of the traffic stop was measurably extended after the purpose of the traffic stop—to investigate Wendler's commission of a traffic violation—was concluded. Moreover, during the investigation into the traffic violation, the officer did not gain reasonable suspicion of illegal drug activity necessary to lawfully extend the scope and duration of the detention. Finally, we conclude the unlawful detention of Wendler infected or tainted his consent to answer questions and to search the RV. Accordingly, we affirm the ruling of the district court suppressing the marijuana seized from the RV and the dismissal of charges against Wendler.

03/25/12

Permalink 12:28:30 am, by fourth, 235 words, 489 views   English (US)
Categories: General

KY: Rule violation as to notary on an affidavit for SW not enough to suppress without showing prejudice

The affidavit for the search warrant in this case was signed before a notary public working for the DA, but not one authorized by a judge in violation of the Rules of Criminal Procedure. A violation of the Rules was not a Fourth Amendment issue, defendant cannot show he was prejudiced, and the court will not order suppression of the evidence. Copley v. Commonwealth, 361 S.W.3d 902 (Ky. 2012):

Suppression under this test is not warranted in this case because neither prong is satisfied. Copley was not prejudiced by the violation of RCr 2.02 and 13.10. There was no allegation or proof that the search would not have occurred absent the rule violation or that the search was abusive. Nor is there evidence that law enforcement officials deliberately disregarded the rules. Rather, given that Ms. Hardy was a notary public, was generally qualified to administer oaths and was employed by the Commonwealth Attorney's office, and that all other requirements for securing the warrant were carefully observed, such as complying with KRS 15.725(5) by having the Commonwealth Attorney and the County Attorney certify that no judge or commissioner was available, it appears that the violation of Rules 2.02 and 13.10 was simply inadvertent.

The notion of needing to show prejudice is a death knell to nearly any suppression motion. How can you show prejudice from the wrong notary? You can't. The affidavit was sworn and seemingly truthful, that's all that's really required.

Permalink 12:19:51 am, by fourth, 292 words, 470 views   English (US)
Categories: General

D.N.J.: Defendant failed to show need for access to CI identity under Roviaro even where it is claimed CI framed defendant

In a FIPF case where the gun was the target of a search warrant, the defendant did not show enough to get access to the CI’s identity under Roviaro. The CI was not central to the charge under the government's theory of constructive possession. Here, it was all speculative what the defense was trying to prove. United States v. Anthony, 2012 U.S. Dist. LEXIS 38123 (D. N.J. March 20, 2012):

Defendant offers a series of contentions for why disclosure is warranted, including: the need to challenge the basis for the warrant; the fact that the informant is the only person who claims to have seen Defendant in possession of the firearm; and the need to investigate Defendant's theory that the informant played a role in framing Defendant. None of these reasons provides a sufficient basis to overcome the qualified privilege.

First, the validity of the search warrant does not turn on the informant's intentions or mental state. ...

Second, the Government does not intend to introduce the informant's testimony at trial in order to prove possession; instead, the Government will present a case for constructive possession. Therefore, there is no need to cross-examine the informant regarding the informant's claimed observations.

The third and final issue is the question of whether disclosure is necessary because the informant's identity is helpful to Anthony's defense involving the gun having been planted by the informant or the informant's co-conspirator. This is the kind of defense theory that does not rise above mere speculation or hope. ...

Roviaro was decided in 1957, yet I still occasionally see charges where the prosecuting attorney charged the defendant with the underlying CI offense thereby making the CI a material witness. They apparently were not paying attention in law school or when reading the file.

Permalink 12:11:10 am, by fourth, 272 words, 453 views   English (US)
Categories: General

CA11: RS justified pulling weapons and controlling situation before frisk

Officers pulled guns on defendants and ordered them to sit down, and this was with reasonable suspicion somebody in the group was armed. The district court erred in suppressing the frisk. United States v. Lewis, 674 F.3d 1298 (11th Cir. 2012):

As the Supreme Court emphasized in Terry itself, a brief stop-and-frisk is permissible, even absent probable cause to arrest, "for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual." 392 U.S. at 27 (emphasis added). In fact, the very rationale underpinning Terry -- the protection of officer safety and the safety of others nearby, especially from the dangers posed by firearms -- is presented by the facts of this case. We add that the detention took place at night in a high crime area, which, while surely not dispositive, is still another relevant consideration in the Terry calculus. See Wardlow, 528 U.S. at 124; United States v. Gordon, 231 F.3d 750, 755-56 (11th Cir. 2000). And we further emphasize that, as in Clark, the defendant here was not some "unrelated bystander," Clark, 337 F.3d at 1288, but rather "an associate of [the] persons being investigated for criminal activities," id.

In short, under the totality of the circumstances of this case, the officers were entitled to control the scene and exercise command over the situation in the course of briefly detaining McRae for further investigation. A brief detention of all four associated individuals was reasonable, in light of the substantial risks to the officers' safety. Accordingly, we REVERSE the district court's order granting Lewis's motion to suppress, and REMAND for further proceedings consistent with this opinion.

Permalink 12:03:40 am, by fourth, 217 words, 453 views   English (US)
Categories: General

CA10: Defendant denied having a "weapon," but his possession of a small pocket knife is not normally considered a weapon justifying a frisk for firearms

That defendant may have had a pocket knife didn’t mean he was false when he said he had no weapons on him because small pocket knives are not considered weapons to most people. Defendant’s frisk was without reasonable suspicion he was armed. United States v. House, 463 Fed. Appx. 783 (10th Cir. 2012) (unpublished):

It is likely that many law-abiding citizens would not consider themselves armed with a weapon, while carrying a folded pocket knife, when approached on the street and questioned unexpectedly by an officer. To allow a search based on the hunch that a citizen walking down the street is illegally carrying a firearm, without more, serves to erode the precious protections of the Second and Fourth Amendments. See Terry, 392 U.S. at 22 ("[I]ntrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches [are] a result this Court has consistently refused to sanction.").

An officer is free to initiate a consensual encounter without any articulable suspicion. Such an encounter may develop previously unconfirmed suspicions of criminal behavior and/or result in genuine concerns for officer safety. United States v. Jones, 606 F.3d 964, 968 (8th Cir. 2010). The difficulty in this case is that the consensual encounter did neither; in the absence of which, the evidence must be suppressed as violative of the Fourth Amendment.

03/24/12

Permalink 02:26:30 pm, by fourth, 144 words, 704 views   English (US)
Categories: General

CA11: Truck was illegally entered, but it was inevitable discovery here

A commercial vehicle safety stop was valid, and defendant’s lack of knowledge about his load, where he got it, and exactly where he was going was reasonable suspicion to detain him for a dog sniff. The USMJ concluded that the trailer was unlawfully searched but a drug dog alert after that was inevitable discovery because that was probable cause. United States v. Rendon, 462 Fed. Appx. 923 (11th Cir. 2012).*

The testimony of consent was conflicting, but the credibility determination of the trial court is binding on appeal. State v. Reglus, 2012 Ohio 1174, 2012 Ohio App. LEXIS 1033 (9th Dist. March 21, 2012)* (sustaining consent); State v. Durden, 2012 Ohio 1194, 2012 Ohio App. LEXIS 1048 (8th Dist. March 22, 2012) (finding consent involuntary).

The trial court concluded that the officer’s car blocked defendant’s car and was a stop, but it was with reasonable suspicion. State v. Spradlin, 2012 Ohio 1211, 2012 Ohio App. LEXIS 1071 (5th Dist. March 12, 2012).*

Permalink 02:16:52 pm, by fourth, 426 words, 514 views   English (US)
Categories: General

W.D.Ky.: Failure to show nexus to place to be searched violated Fourth Amendment, and no GFE here, either

An affidavit for search warrant that showed utterly no connection to the place to be searched lacked probable cause. And, it was so lacking in probable cause that the good faith exception did not apply. United States v. Bautista, 2012 U.S. Dist. LEXIS 39222 (W.D. Ky. March 22, 2012):

To establish probable cause, the affidavit must have indicated why evidence of illegal activity would be found at the particular place to be search-Lot #78. The affidavit does not do so. Like in Laughton, the affidavit in this case neither indicated that Lot # 78 was Bautista's residence nor indicated that the drug sales described by Copeland occurred at Lot # 78. Instead, the affidavit states only that the drug sales occurred at Bautista's residence, and then lists Lot # 78 as the place to be searched. The government contends that, given all the circumstances of Copeland's information and the detailed description of the place to be searched, the inference can be made Lot #78 is Bautista's residence. However, the government's argument is to no avail because the affidavit contains no evidence from which such an inference could be made. The single paragraph setting forth the factual details fails to even mention Lot #78. Accordingly, probable cause to search the residence located at Lot #78 was not established because the affidavit submitted to obtain the warrant did not explain the significance or the relevance of searching the home located at this particular location. See United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988) (finding no probable cause where the affidavit failed to provide any nexus between the residence and the illegal activity).

. . .

Likewise, here, the affidavit simply lists an address of the premises to be searched, and states Copeland's allegations regarding the fact that he regularly purchased methamphetamine from Bautista at his home. There is not even a "modicum of evidence" linking the criminal activity described by Copeland and Lot #78. Cf. United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998) (applying good faith exception where affidavit for search warrant neglected to indicate why the affiant believed the defendant had any connection to the residence, but did state that the rooms in the residence were available to the defendant). Importantly, the affidavit did not state any evidence linking Bautista to Lot #78 and did not even state that Bautista resided at Lot #78. No reasonable officer could have believed that the affidavit was not so lacking in indicia of probable cause as to be reliable. Although the Court does not find that the law enforcement officers acted in bad faith, it nonetheless must conclude that the Leon good faith exception does not apply.

Permalink 12:39:53 pm, by fourth, 87 words, 472 views   English (US)
Categories: General

TN: Victim citizen informant's report enough to make a stop

A citizen informant’s report that his store was a crime victim was a sufficient basis for a stop. State v. Wiggins, 2012 Tenn. Crim. App. LEXIS 178 (March 20, 2012).

Factual disputes on excessive force as shown by the video was enough to deny qualified immunity. Staten v. Tatom, 465 Fed. Appx. 353 (5th Cir. 2012).*

Appellate counsel’s decision not to appeal the alleged lack of probable cause for the search warrant was justified because it was a loser issue. Ford v. United States, 2012 U.S. Dist. LEXIS 38296 (E.D. Mo. March 21, 2012).*

Permalink 12:02:46 am, by fourth, 161 words, 594 views   English (US)
Categories: General

DC: Signing for package in controlled delivery with fake name was more than mere acceptance

It was reasonable to arrest plaintiff with probable cause on a controlled delivery because he signed for the package with a fictitious first name for him. This was more than mere acceptance of the package known by the police to carry drugs. He left the house with the package and got into a car with the package, and that gave probable cause to search the car [citing search incident cases, which was wrong; automobile exception applied]. Johnson v. United States, 40 A.3d 1 (D.C. 2012).*

Defendant was stopped for a seat belt violation, and reasonable suspicion developed from numerous factors, one of which was that defendant was a known drug trafficker who made a five hour trip to a store and didn’t buy anything. State v. Fisher, 725 S.E.2d 40 (N.C. App. 2012).*

Fourth Amendment issue raised on direct appeal and rejected was not a proper subject of a 2255. Martinez v. United States, 2012 U.S. Dist. LEXIS 36781 (D. S.D. March 19, 2012).*

03/23/12

Permalink 01:13:19 pm, by fourth, 300 words, 435 views   English (US)
Categories: General

CA8: Man found in apartment during SW execution was unlike the bar patron in Ybarra

Officers found defendant in an apartment being searched under a search warrant, and they had probable cause as to him on the premises. This was unlike the unwitting bar patron in Ybarra. A patdown of defendant produced car keys, and keys were subject to the warrant. It was immediately apparent what they were by feel, unlike Dickerson. United States v. Cowan, 674 F.3d 947 (8th Cir. 2012):

Cowan’s presence in Booth’s apartment, unlike the patron in the public tavern in Ybarra and more like the passenger in the private car in Pringle or the hotel room occupant in Romero, could lead a reasonable officer “to infer [Cowan was part of] a common enterprise” among the people in the apartment. Pringle, 540 U.S. at 373. Although an apartment “is a larger and more multipurpose space,” Romero, 452 F.3d at 618 n.2, than the hotel room in Romero, Detective Canas had additional reason to suspect Cowan was involved in the drug trafficking activity. After breaking down the exterior door to the building and before entering the apartment, the officers saw someone running inside, which reasonably suggested people present in the apartment were trying to conceal evidence of drug trafficking activity. When Cowan stated he was from Chicago—the reputed source of the crack cocaine used in the suspected drug trafficking operation occurring in the apartment—Cowan gave Detective Canas particularized suspicion that Cowan himself was involved in the drug trafficking. The present case is further distinguishable from Ybarra because Detective Canas frisked Cowan’s outer clothing pursuant to Terry, and the search of Ybarra was not a valid Terry frisk. See Ybarra, 444 U.S. at 92-93. Detective Canas did not violate Cowan’s Fourth Amendment right to be free from unreasonable searches and seizures by patting down Cowan’s pockets and seizing the keys.

Permalink 12:28:34 am, by fourth, 333 words, 482 views   English (US)
Categories: General

N.D.Ga.: Example of why no standing shown in another's hotel room

Defendant failed to show standing in a hotel room that he was not registered to that he was only a casual visitor to. United States v. Bushay, 859 F. Supp. 2d 1335 (N.D. Ga. 2012)*:

First, Judge Baverman concluded that Bushay lacked standing to challenge the agents' search of the hotel room because he did not establish that he had a subjective or objective expectation of privacy in the hotel room. As to Bushay's subjective expectation of privacy, the magistrate judge concluded that Bushay did not show that he had an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence on the premises as a mere guest or invitee. Specifically, Bushay failed to establish that the room was rented in his name, that he paid for the room, or that he was the registered additional guest.

In reaching this conclusion, Judge Baverman found significant that Bushay described his presence in the area as having "met friends"; referred to "the" hotel room rather than "his" hotel room; never proved that the two plastic keys were in fact the keys to room 308; did not prove that the vehicle he was operating at the time of his arrest was a vehicle registered for room 308; was not using the hotel for lodging; and kept no personal items in the room other than the gun. Although Bushay argued that the fact that the agents believed that he was staying in the room helped prove his standing, Judge Baverman found this argument unpersuasive because a defendant may not establish standing by relying on the government's theory of the case. Because he could not establish that the hotel room was his, nor could he establish that he was an overnight guest, Judge Baverman found that Bushay had not established that he had a subjective expectation of privacy. Further, he concluded that Bushay had also failed to establish an objective expectation of privacy in the hotel room because at most he was only a casual visitor.

Permalink 12:21:17 am, by fourth, 124 words, 523 views   English (US)
Categories: General

Why cell phone pictures might be important in drug cases

Cell phone pictures might have evidence of crime in drug cases. I've been seeing for years in search warrant affidavits that officers want to see pictures on computers or in a house because of the propensity of drug traffickers to take pictures of their scores. And, I've seen them in evidence: all the plants of the grow operation, the bounty from the big score, the pound of coke before it is parceled out. See Mail Online: Driving his Porsche in pants, posing with stacks of cash and beating up his rivals: Photos found on lost phone of 'Chinese gangster' show his bad-boy lifestyle. Besides the stacks of cash, there's a picture of torture with a pair of pliers and a foot to the neck.

Permalink 12:15:43 am, by fourth, 282 words, 385 views   English (US)
Categories: General

NetworkWorld: "You consent to a search if a camera sees you? Facial Recognition vs 4th Amendment"

NetworkWorld: You consent to a search if a camera sees you? Facial Recognition vs 4th Amendment:

When you go outside or go to other public places such as a bank or a mall, have you automatically given up your Fourth Amendment rights and consented to a search? When it comes to tracking you via facial recognition technology, what if the government or other law enforcement were to use that argument, that by simply being in a place where there are security cameras, you waived your Fourth Amendment rights and consented to a search?

The FBI and DOD sponsored a legal series about the U.S. government using facial recognition; the latest forum was titled "Striking the Balance - A Government Approach to Facial Recognition Privacy and Civil Liberties." Whenever the word 'balance' is used, privacy and civil liberties are usually about to be kicked in the name of 'security.' When it comes to surveillance via facial recognition technology, federal law enforcement, intelligence personnel and national security agencies are looking into the "gaps in legal/policy authority that may result in privacy and civil liberties vulnerabilities if left unaddressed."

The Future of Privacy Forum (FPF) Senior Fellow Peter Swire, also a law professor at Ohio State University, spoke about "Facial Recognition by the Government: Privacy and Civil Liberties Issues." Since using "one's facial image, with or without knowledge or consent," can identify and be used to track a person "an inherent tension exists between privacy and facial recognition." The forum was to "examine where the appropriate balance lies between crime and terrorism prevention using facial recognition and robust privacy safeguards." Swire started with two different perspectives about facial recognition, according to FPF.

Permalink 12:05:14 am, by fourth, 105 words, 441 views   English (US)
Categories: General

MI: IAC for failure to file suppression motion has to show it would be successful

Failure to file a suppression motion is not a ground for IAC without showing how it would have been granted. Just alleging one wasn't filed doesn't cut it. People v. Johnson, 2012 Mich. App. LEXIS 519 (March 20, 2012).*

Defendant’s claim defense counsel was ineffective for not moving to quash the arrest warrant fails because there was clearly probable cause. People v. Lambert, 2012 Mich. App. LEXIS 499 (March 20, 2012).*

The CI was not shown to be reliable except by corroboration by an “extensive” police investigation, and that was adequate. The triggering conditions of the anticipatory warrant here satisfied Grubbs. United States v. Donnell, 2012 U.S. Dist. LEXIS 36487 (D. Minn. February 2, 2012).*

03/22/12

Permalink 12:26:48 pm, by fourth, 222 words, 440 views   English (US)
Categories: General

CA8: Lifting defendant's pant leg was without RS or consent, and search suppressed

Defendant was stopped at the Omaha bus terminal apparently because he showed an interest in what the police were doing with bags on the bus. [Note: Every criminal defense lawyer does too. Does that give reasonable suspicion? Not here.] The government conceded there was no reasonable suspicion, but it argued that defendant consented. The District Court’s finding of no consent was supported by the evidence, and lifting defendant’s pant leg was without reasonable suspicion. Meth was found and suppressed. United States v. Aquino, 674 F.3d 918 (8th Cir. 2012)*:

The government contends the dispositive issue in this case is whether Aquino's compliance with Lutter's request to pull the bottom portion of his pant leg tight against his body was a consensual act which gave rise to reasonable suspicion when Lutter noticed the concealed bulge, in turn justifying a subsequent investigatory detention. We disagree. This case turns not on Aquino's last act before being handcuffed, but rather Lutter's first act after placing Aquino in handcuffs, which was to lift Aquino's pant leg to reveal the concealed bulge. Under the circumstances involved in this case, Lutter violated the Fourth Amendment when he searched underneath an article of Aquino's clothing without his consent and without probable cause to do so, instead of performing a pat down to confirm whether the concealed bulge was a weapon.

Permalink 08:23:06 am, by fourth, 286 words, 590 views   English (US)
Categories: General

D.N.J.: Dog sniff outside apt reasonable under Place and Caballes

Dog sniff outside the defendant’s house in a multi-family unit was reasonable under Place and Caballes, and Jardines is rejected. United States v. Anthony, 2012 U.S. Dist. LEXIS 38123 (D. N.J. March 20, 2012):

This is the type of distinction the Florida Supreme Court found in Jardines v. State, 73 So.3d 34 (Fla. 2011). The Court reasoned that even though the revelation of possession of contraband could not invade a privacy interest, the canine sniff outside a home "will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many-neighbors, passers-by, and the public at large-will be viewed as an official accusation of crime." Id. at 36. The Court added that if police can conduct suspicionless sniff tests, there was nothing to prevent discriminatory or irrational use of the procedure. Id.

However, neither reason for distinguishing Caballes is persuasive as applied to the present facts. First, the Florida Court's conclusion that sniffs "will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident" is less applicable to the facts of this case, in which the sniff occurred away from the plain view of the general public inside a common area of a multi-family residence with the permission of the owner. Nothing in the record suggests anyone but the landlord was privy to the presence of police activity, much less aware of the particular apartment being sniffed. Similarly, this Court is not asked to determine whether police presence with a dog on the curtilage of a home without permission involves some intrusion into privacy not present in Caballes or Place. Instead, this situation involves police presence in a common area with express permission to be there.

Permalink 08:09:09 am, by fourth, 192 words, 453 views   English (US)
Categories: General

CA7: Defendant didn't show that his failure to be called as a witness at his suppression hearing would have changed the outcome, in light of the video

Defendant’s confusing account of his travel plans was reasonable suspicion. The trial court’s findings of consent to the search was clearly supported by the record. Defendant was unhandcuffed and sitting in the police car during the search. A dog alert made that irrelevant. Thus, a challenge to the search was frivolous. Defendant did not show how his failure to testify at the suppression hearing would have changed anything in light of the video, not that IAC claims can be raised on direct appeal anyway. United States v. Penlton, 463 Fed. Appx. 593 (7th Cir. 2012) (unpublished)*; United States v. Harris, 463 Fed. Appx. 594 (7th Cir. 2012) (unpublished).*

Plaintiff state prisoner failed to state a Fourth Amendment claim that he was unreasonably removed from his cell during a suicide threat. “Insofar as Brown contends that his seizure during this incident was unreasonable, even assuming that a prisoner has any Fourth Amendment right not to be seized and transported from one place to another within a state prison facility, there is no record evidence that this particular seizure was not justified by the same legitimate interest in safety and security.” Brown v. Graham, 470 Fed. Appx. 11 (2d Cir. 2012).*

Permalink 07:25:13 am, by fourth, 216 words, 488 views   English (US)
Categories: General

CA6: Gant bars SI of the unhandcuffed and outnumbered

Defendant was stopped for not dimming his headlights, and he was without a DL. The officers’ search incident of defendant’s car violated Gant; even though the defendant and his passenger weren’t handcuffed and were standing at the rear of the car, they were outnumbered. The government’s argument that Long justified a protective weapons search of the car was also rejected. United States v. McCraney, 674 F.3d 614 (6th Cir. 2012):

Here, McCraney and Ammons were not handcuffed or secured in the back of a patrol car. They were standing, however, behind the Buick as instructed, two or three feet from the rear bumper, with three officers standing around them, while the other two officers on the scene conducted the search of the passenger compartment. Ricker testified that he stood approximately eight feet from McCraney, and watched him closely while the search was conducted. The officers outnumbered the detainees and, although not formally arrested, handcuffed or secured in a patrol car, the district court did not err in finding that the officers could not reasonably believe McCraney and Ammons were "within reaching distance" of the passenger compartment at the time of the search. Given the narrowed scope of the exception in light of Gant, the search may not be justified as a search incident to arrest.

Permalink 07:14:11 am, by fourth, 112 words, 465 views   English (US)
Categories: General

TN: Arrest without PC because officers could hold defendant for 48 hours led to statement that should have been suppressed

Officers’ determination that they could hold defendant for 48 hours on an illegal arrest was the cause of defendant’s statement, and it should have been suppressed. State v. Bishop, 2012 Tenn. Crim. App. LEXIS 171 (March 14, 2012).*

Talking to defendant sitting in a parked car was a “consensual encounter” under Ohio case law, and the officer’s plain view of two roaches in the ashtray was valid. State v. Calhoun, 2012 Ohio 1128, 2012 Ohio App. LEXIS 994 (11th Dist. March 19, 2012).*

Defendant's 2255 was couched in terms of a Fourth Amendment violation and not a Sixth Amendment violation, so it should have been raised in the direct appeal. Ford v. United States, 2012 U.S. Dist. LEXIS 38296 (E.D. Mo. March 21, 2012).*

Permalink 12:10:08 am, by fourth, 311 words, 1287 views   English (US)
Categories: General

Geekosystem: "FBI Can’t Crack Pimp’s Phone’s Pattern Lock, Serves Google With Warrant"

Geekosystem: FBI Can’t Crack Pimp’s Phone’s Pattern Lock, Serves Google With Warrant by James Plafke:

The FBI secured a pimp’s Samsung Android phone as part of a case following a former pimp released on parole who seemed to be partaking in pimping activities once again, specifically through the use of his Android phone. The pimp previously signed a Fourth Amendment search rights waiver, which allowed the FBI to search his home and property at any time without a court order. When he turned over his phone, he didn’t unlock the device, even though his parole conditions prevented him from hiding or locking digital files, but claimed the phone belonged to his sister. Amusingly, the FBI couldn’t crack the phone’s unlock pattern, and then served a warrant to Google, Android’s developer, to help them unlock the phone.

The FBI obtained a warrant to search the phone last month, but weren’t able to crack it due to the phone’s swipe password lock, which can actually be easily defeated — either by simply looking at the smudges on the phone’s screen, or because you’re the FBI and should have access to a variety of cracking tools and skilled employees who know how to use them. The FBI attempted the password too many times, which locked the phone, which in turn could only be unlocked using the phone owner’s Google account credentials. As you could imagine, the pimp refused to cooperate, so the FBI served Google with a warrant in order to get the Android developers to help out.

This is the logical step. See ZDnet.com: "Woman who pleaded Fifth in password case now citing Fourth". If the owner of the phone can plead the Fifth, then the government has to attempt to use a search warrant to get into the phone.

Permalink 12:03:26 am, by fourth, 193 words, 499 views   English (US)
Categories: General

NPR: "FBI Still Struggling With Supreme Court's GPS Ruling"

NPR: FBI Still Struggling With Supreme Court's GPS Ruling by Carrie Johnson:

Earlier this year, the Supreme Court said police had overstepped their legal authority by planting a GPS tracker on the car of a suspected drug dealer without getting a search warrant. It seemed like another instance in a long line of cases that test the balance between personal privacy and the needs of law enforcement.

But the decision in U.S. v. Jones set off alarm bells inside the FBI, where officials are trying to figure out whether they need to change the way they do business.

Before the Supreme Court ruling in late January, the FBI had about 3,000 GPS tracking devices in the field.

See also BLT: Prosecutors Gear Up For GPS Drug Case, Sans Tracking Data:

With the U.S. Supreme Court's landmark warrantless surveillance case back in Washington federal district court, prosecutors said they are gearing up for a legal fight over the availability of certain pieces of evidence.

The high court in January ruled for a Washington nightclub owner named Antoine Jones. Prosecutors have accused him of running a cocaine trafficking ring in the Washington metropolitan area.

03/21/12

Permalink 07:13:45 pm, by fourth, 108 words, 463 views   English (US)
Categories: General

BLT: "D.C. Judge Weighs Constitutional Challenge to 'Post and Forfeit'"

BLT: D.C. Judge Weighs Constitutional Challenge to 'Post and Forfeit' by Zoe Tillman:

U.S. District Judge Amy Berman Jackson heard arguments today about whether a legal challenge to a controversial post-arrest procedure in the District of Columbia known as "post and forfeit" should survive a motion to dismiss.

Under "post and forfeit," a person arrested for certain low-level offenses in D.C. can post collateral and then agree to forfeit it in exchange for having the case essentially dropped. The Metropolitan Police Department has come under scrutiny in the past amid concerns that officers used "post and forfeit" to quickly close and cover up wrongful arrests.

Permalink 07:01:26 pm, by fourth, 255 words, 564 views   English (US)
Categories: General

Indiana Law Blog: "Ind. Law -- Gov. signs SEA 1, the right to defend against unlawful entry"

Indiana Law Blog: Ind. Law -- Gov. signs SEA 1, the right to defend against unlawful entry

A news release just received:

Tuesday evening, Governor Daniels signed SEA 1, titled “Right to defend against unlawful entry.” He issued the following statement about his decision to sign the bill:

“After close inspection, I have decided to sign Senate Enrolled Act 1. Contrary to some impressions, the bill strengthens the protection of Indiana law enforcement officers by narrowing the situations in which someone would be justified in using force against them. Senate Enrolled Act 1 puts into place a two-part test before a person can use deadly force against a law enforcement officer: First, it clarifies and restates the current requirement that a person reasonably believe the law enforcement officer is acting unlawfully. Second, it adds that the force must be reasonably necessary to prevent serious bodily injury to the citizen. This second requirement is not part of the current law.

“Moreover, unless a person is convinced an officer is acting unlawfully, he cannot use any force of any kind. In the real world, there will almost never be a situation in which these extremely narrow conditions are met. ..."

The Act is to counter the Indiana Supreme Court's Barnes case, posted here.

Update: IndyStar.com: Indiana's new "right to resist" law worries police:

Gov. Mitch Daniels is warning Hoosiers that a new Indiana law meant to protect citizens from an illegal intrusion by police is no green light to resist law enforcement.

Police, though, fear it will lead to just that.

Permalink 10:40:55 am, by fourth, 213 words, 529 views   English (US)
Categories: General

D.S.D.: Officer may determine exigency on arrival to a 911 call

While the 911 calls did not say that there was a domestic disturbance in progress, the officer could reasonably assume that when he arrived and assessed the situation, and that was exigency for an entry on these facts. United States v. Ladeaux, 2012 U.S. Dist. LEXIS 37251 (D. S.D. March 16, 2012).*

Defendant lost on his arrest issue on the merits on appeal, so he can’t pursue it on a 2255. Martinez v. United States, 2012 U.S. Dist. LEXIS 36781 (D. S.D. March 19, 2012).*

Officers had reasonable suspicion first from a CI tip that “Little Rob” was dealing meth from a red F-150. They later learned that it was defendant. Then, another officer in an “ongoing investigation” [never telling us the quality of this information] told this officer that defendant would be delivering meth and they set up surveillance. This was reasonable suspicion when defendant showed up. The traffic stop was reasonable based on a traffic offense. United States v. Harrelson, 465 Fed. Appx. 866 (11th Cir. 2012) (unpublished).* [This case essentially says that a search on reasonable suspicion was proper because it never says there was probable cause for the search of the vehicle after the stop on reasonable suspicion or the traffic offense. If that’s what it means, it’s wrong. This may just be sloppy writing.]

Permalink 09:17:47 am, by fourth, 268 words, 504 views   English (US)
Categories: General

WA: SW for car permitted search of purse left there even though there was no PC as to purse

Defendant was in a car that was stopped and the police had probable cause. They made her leave her purse behind. When the warrant issued, the purse could be searched because it was with the car, for which there was probable cause. State v. Campbell, 166 Wn. App. 464, 272 P.3d 859 (2011), Order Granting Motion to Publish 165 Wn. App. 1021, 2011 Wash. App. LEXIS 2915 (Wash. Ct. App., Dec. 29, 2011):

Circumstances can exist where probable cause may exist for a search of an individual's property even though officers do not have equivalent probable cause that the owner of the property is involved in crime. Cf. Zurcher v. Stanford Daily, 436 U.S. 547, 556-57, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978) (Fourth Amendment does not prevent issuance of a warrant to search property simply because the owner or possessor is not reasonably suspected of criminal involvement); see also 2 Wayne R. Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 4.10(b) at 747-48 (4th ed. 2004) (distinguishing entitlement to search a visitor's belongings where police have grounds to believe items sought in the warrant might be concealed there). Both Worth and Hill implicitly recognize that personal property belonging to someone other than the owner of premises can be subject to a warrant for a premises search where probable cause exists and the scope of a warrant is accordingly broad: Worth's holding depends on its reasoning that no probable cause brought Worth's purse within the scope of the warrant. Hill's holding that “generally officers have no authority under a premises warrant to search personal effects an individual is wearing or holding” implies that sometimes they do. 123 Wn.2d at 644 (emphasis added).

Permalink 09:03:19 am, by fourth, 147 words, 385 views   English (US)
Categories: General

PA: Warrant was overbroad as to other drugs, but plain view supported seizure anyway

The search warrant was for marijuana, cocaine, and paraphernalia, but there was only probable cause for marijuana, so the remainder is excised from the warrant. Nevertheless, the police were properly in defendant’s home on the warrant, and they could seize other drugs in plain view and as inevitable discovery. Commonwealth v. Anderson, 2012 PA Super 65, 40 A.3d 1245 (2012).

Two people lived at defendant’s house besides him, and one of the others granted consent. There was no reason to doubt their authority to consent. Smallfoot v. State, 2012 WY 39, 272
P.3d 314 (2012).*

The district judge does not need to say that a de novo review was done because it is presumed that it was. Defendant was removed from the house and another officer stayed behind to ask about others in the house, and then a plain view occurred. It was reasonable. United States v. Ginn, 465 Fed. Appx. 585 (8th Cir. 2012) (unpublished).*

03/20/12

Permalink 01:57:30 pm, by fourth, 88 words, 424 views   English (US)
Categories: General

Florida Independent: "Scott signs latest random drug testing of state employees bill"

Florida Independent: Scott signs latest random drug testing of state employees bill by Ashley Lopez:

Last night, Gov. Rick Scott signed into law the state’s second attempt to randomly drug test state employees.

A bill passed through both chambers of the Legislature this month that would allow state agencies to adopt policies for randomly drug testing all of their employees. Civil rights and labor groups spoke out against the bill, which was lobbied for by the governor’s office, as it made its way through the Legislature.

Permalink 01:53:19 pm, by fourth, 110 words, 434 views   English (US)
Categories: General

CA9 grants rehearing en banc in Cotterman

The Ninth Circuit granted rehearing en banc in United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011), posted here.

Today we examine a question of first impression in the Ninth Circuit: whether the search of a laptop computer that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away can still fall within the border search doctrine. The district court considered the issue to be a simple matter of time and space. It concluded that the search of property seized at an international border and moved 170 miles from that border for further search cannot be justified by the border search doctrine. We disagree.

Permalink 08:48:04 am, by fourth, 130 words, 429 views   English (US)
Categories: General

GA: State couldn't justify seizure of clothing in ER in a capital case

The seizure of defendant’s clothing in the ER was not shown to be supported by any exception to the warrant requirement. It was not shown to be inevitable by the state, it was in an opaque bag so not plain view, and it was not by exigency or consent. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012).

There is no constitutional requirement [citing no cases] that a CI be searched before a controlled buy. Also, the CI here unwittingly led the police to defendant, and that enhanced his reliability. United States v. Donnell, 2012 U.S. Dist. LEXIS 36487 (D. Minn. February 2, 2012).*

Wearing an empty holster and putting something in a saddlebag is probable cause there is a gun in the saddlebag. State v. Pryor, 2012 Ohio 1033, 2012 Ohio App. LEXIS 973 (1st Dist. March 16, 2012).*

Permalink 08:11:05 am, by fourth, 203 words, 416 views   English (US)
Categories: General

N.D.Ga.: Living at house where drugs are sold still gives standing under Carter

Defendants lived at the place searched, and the fact that it was also used to distribute drugs did not deny them standing under Carter. United States v. Vazquez-Velazquez, 2012 U.S. Dist. LEXIS 35867 (N.D. Ga. February 23, 2012):

Notwithstanding the Government's evidence that the house at 1986 Benthill Drive was used for some drug activity, the evidence does not establish that the house was used primarily for drug operations. Based on the evidence discussed above, I conclude that Defendants met their burden of showing that they lived in the house and used it for ordinary activities of daily living, and thus, had a legitimate expectation of privacy in the house.

A traffic stop based on a reasonable belief that a traffic violation occurred is proper. United States v. Rodriguez-Trevino, 2012 U.S. Dist. LEXIS 36561 (N.D. Ga. February 21, 2012)*:

"the propriety of the traffic stop does not depend on whether the defendant is actually guilty of committing a traffic offense," but instead, "the pertinent question is whether it was reasonable for the officer to believe that a traffic offense had been committed." United States v. Crump, Criminal Action File No. 4:10-CR-032-HLM-WEJ, 2011 WL 6153106, at *5 (N.D. Ga. Nov. 21, 2011) (citation omitted), adopted by 2011 WL 6179211, at *8 (N.D. Ga. Dec. 12, 2011).

Permalink 08:04:19 am, by fourth, 124 words, 477 views   English (US)
Categories: General

ACLU.org: "Even After Supreme Court GPS Decision, Feds Still Want Warrantless Cell Phone Tracking"

ACLU.org: Even After Supreme Court GPS Decision, Feds Still Want Warrantless Cell Phone Tracking by Sarah Roberts, Speech, Privacy and Technology Project:

Even after January's landmark Supreme Court decision cast significant doubt on the government’s ability to electronically track a person’s location without a warrant, the Justice Department continues to defend this practice. On Friday, the ACLU, along with the Electronic Frontier Foundation, the Center for Democracy and Technology, and the National Association of Criminal Defense Lawyers, filed a friend-of-the-court brief in the U.S. Court of Appeals for the Fifth Circuit, arguing that the government should be required to obtain a warrant based on probable cause before seizing 60 days’ worth of location information generated by an individual’s cell phone.

Permalink 07:28:28 am, by fourth, 173 words, 380 views   English (US)
Categories: General

Volokh Conspiracy: "What Are the Damages for a Fourth Amendment Search?"

Volokh Conspiracy: What Are the Damages for a Fourth Amendment Search? by Orin Kerr:

Imagine the police search a home for evidence of crime. No one is home but the door is unlocked, and the officers look in the kitchen, bedroom, and closets. They find nothing, and then they leave. Assume that the police do not damage any property or make a mess of things inside the home.

. . .

Now imagine the homeowner learns of the search. The homeowner believes correctly that the search violated the Fourth Amendment, and he sues the officers for money damages. Imagine five possibilities for why the search violated the Fourth Amendment: ...

Here’s my question. Assume that there is no qualified immunity, and that the officers are liable for whatever damages the homeowner suffered for the search. If you are a juror and you are tasked with estimating the damages, what do you think the damages are for these five scenarios?

With this Supreme Court, not much. Maybe no qualified immunity, but how do you calculate the damages?

03/19/12

Permalink 08:03:21 am, by fourth, 141 words, 434 views   English (US)
Categories: General

CO: Ruse to open door not unreasonable; denial of connection to premises not a waiver of standing

A defendant who denied living in an apartment at the time of a search did not waive his reasonable expectation of privacy in the apartment where he actually paid the rent. A ruse to get defendant to open the door of the apartment did not violate the Fourth Amendment. It would have if the ruse led to consent, but this one didn’t. People v. Nelson, 2012 COA 37M, 296 P.3d 177 (Colo. App. 2012).

“[W]e need not conduct the balancing test for an Article 1, Section 11 determination because the manager of the motel evicted Harper immediately upon his arrest and then gave officers permission to search the room.” Harper v. State, 963 N.E.2d 653 (Ind. App. 2012).*

Defendant consented after he was told he was free to go. His prior possession offenses made the officer “curious.” McLain v. State, 963 N.E.2d 662 (Ind. App. 2012).*

Permalink 07:51:37 am, by fourth, 180 words, 431 views   English (US)
Categories: General

OH: Potential suicide justifies a community caretaking stop

Police with information that a suicidal person is driving to a location to kill himself can stop the car. State v. Dunn, 2012 Ohio 1008, 131 Ohio St. 3d 325, 964 N.E.2d 1037 (2012):

[*P22] Thus, we hold that the community-caretaking/emergency-aid exception to the Fourth Amendment warrant requirement allows police officers to stop a person to render aid if they reasonably believe that there is an immediate need for their assistance to protect life or prevent serious injury.

[*P23] In this case, officers received a dispatch regarding an allegedly armed and suicidal person with an imminent plan to kill himself upon reaching a certain destination. Given that stopping a person on the street is "considerably less intrusive than police entry into the home itself, Illinois v. McArthur, 531 U.S. 326, 336, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), the officers' effecting a traffic stop to prevent Dunn from harming himself was reasonable under the Fourth Amendment. Thus, the community-caretaking/emergency-aid exception to the Fourth Amendment warrant requirement allows police officers to stop a driver based on a dispatch that the driver is armed and plans to kill himself.

Permalink 06:25:11 am, by fourth, 121 words, 450 views   English (US)
Categories: General

CA6: Police officer's arrest of defendant outside of jurisdiction irrelevant under Fourth Amendment

Defendant fled at high speed across city boundaries from Cleveland to Lakewood City, and officers from the latter actually arrested him. Jurisdictional limits on police officers are irrelevant for Fourth Amendment purposes. United States v. King, 466 Fed. Appx. 484, 2012 FED App. 0270N (6th Cir. 2012).

A drug dog was called at the conclusion of the traffic stop, and it took 50 minutes to arrive. Since there was reasonable suspicion, this did not unreasonably extend the stop. Federal cases have permitted such detentions for longer. United States v. Adams, 2012 CCA LEXIS 87 (N.-M. Ct. App. March 15, 2012).*

Pro se defendant didn’t file a motion to suppress, so he couldn’t challenge the search on appeal. State v. Henderson, 2012 Ohio 1040, 2012 Ohio App. LEXIS 930 (8th Dist. March 15, 2012).

Permalink 06:21:24 am, by fourth, 311 words, 735 views   English (US)
Categories: General

NY4: Buccal swab for DNA requires a court order without consent

Buccal swab for DNA requires a court order if defendant doesn’t consent. People v Smith, 95 A.D.3d 21, 940 N.Y.S.2d 373, 2012 NY Slip Op 1896 (4th Dept. 2012):

An order compelling an individual to provide corporeal evidence, such as blood or saliva for DNA analysis, constitutes a search and seizure within the meaning of the Fourth Amendment (see Skinner v Railway Labor Executives' Assn., 489 U.S. 602, 618; Schmerber v California, 384 U.S. 757, 767; Matter of Abe A., 56 NY2d 288, 295). Although no New York statute expressly authorizes courts to compel uncharged suspects to supply a DNA sample (see Abe A., 56 NY2d at 293-294; cf. CPL 240.40 [2]), the Court of Appeals has held that a court may issue an order to obtain a blood sample from a suspect so long as the People establish: "(1) probable cause to believe the suspect has committed the crime, (2) a clear indication' that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other. Only if this stringent standard is met ... may the intrusion be sustained" (Abe A., 56 NY2d at 291). Here, the court determined that the People satisfied the requirements of Abe A. set forth above, and defendant does not expressly challenge that determination. Rather, defendant contends that (1) he was denied due process because the second order compelling defendant to provide a buccal swab was not made upon notice to him; and (2) the method of collecting the swab, i.e., the use of the taser, was excessive and objectively unreasonable. We agree with defendant on both counts, and thus that reversal is required.

Permalink 06:08:15 am, by fourth, 474 words, 487 views   English (US)
Categories: General

SD: GPS required warrant under Jones

Placing a GPS on defendant’s car to track him for 26 days violated defendant’s reasonable expectation of privacy and required a search warrant under Jones and relying on its lower court decision in Maynard. State v. Zahn, 2012 SD 19, 812 N.W.2d 490 (2012):

[*P22] In this case, the State argues that Zahn could not have had a subjective expectation of privacy in his movements because he voluntarily exposed his movements to the public. We disagree. While a reasonable person understands that his movements on a single journey are conveyed to the public, he expects that those individual movements will remain "disconnected and anonymous." Maynard, 615 F.3d at 563 (citation omitted). Indeed, the likelihood that another person would observe the whole of Zahn's movements for nearly a month "is not just remote, it is essentially nil." Id. at 560. The prolonged use of a GPS device in this case enabled officers to determine Zahn's speed, time, direction, and geographic location within five to ten feet at any time. It also enabled officers to use the sum of the recorded information to discover patterns in the whole of Zahn's movements for twenty-six days. The prolonged GPS surveillance of Zahn's vehicle revealed more than just the movements of the vehicle on public roads; it revealed an intimate picture of Zahn's life and habits. We thus believe that Zahn had a subjective expectation of privacy in the whole of his movements. This subjective expectation of privacy was not defeated because Zahn's individual movements were exposed to the public.

. . .

[*P31] We thus hold that the attachment and use of a GPS device to monitor an individual's activities over an extended period of time requires a search warrant. Because the unfettered use of surveillance technology could fundamentally alter the relationship between our government and its citizens, we require oversight by a neutral magistrate. Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378). Thus, the warrantless attachment and use of the GPS device to monitor Zahn's activities for nearly a month was unlawful, and the evidence obtained through the use of the GPS device should be suppressed.

[*P32] By our holding today, we do not deny police the ability to use this valuable law enforcement tool. We recognize that police must be allowed to use developing technology in the "often competitive enterprise of ferreting out crime." Sweedland, 2006 S.D. 77, ¶ 22, 721 N.W.2d at 415 (quoting Illinois v. Gates, 462 U.S. 213, 240, 103 S. Ct. 2317, 2333, 76 L. Ed. 2d 527 (1983)). The Fourth Amendment "cannot sensibly be read to mean that police [should] be no more efficient in the twenty-first century than they were in the eighteenth" century. United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007), cert. denied, 552 U.S. 883 (2007). But police must obtain a warrant before they attach and use a GPS device to monitor an individual's activities over an extended period of time.

03/18/12

Permalink 11:13:01 am, by fourth, 302 words, 635 views   English (US)
Categories: General

CA4: Finding ammo during inventory permitted search for a gun in locked compartment

While inventory does not permit forcing open locked compartments in a car, the finding of ammunition in this car justified a further search for a gun. That was inevitable discovery. Essentially, where there's ammunition there's probably a gun. United States v. McCullum, 469 Fed. Appx. 194 (4th Cir. 2012):

Although the policy did not permit officers to force open a locked glove compartment during an inventory search, the ammunition discovered in the trunk would have provided probable cause to conduct a warrantless search of the vehicle for the gun associated with the seized ammunition. See Michigan v. Thomas, 458 U.S. 259, 260-62 (1982) (explaining that evidence seized during an inventory search of a vehicle can provide probable cause to search elsewhere in the vehicle for additional contraband). The scope of that warrantless search would have included "every part of the vehicle and its contents that may [have] conceal[ed] the object of the search." United States v. Ross, 456 U.S. 798, 825 (1982). Because a glove box can conceal a gun, the glove box of the Cadillac was obviously within the scope of the warrantless probable cause search. The fact that the glove box was locked would not prevent us from upholding the lawfulness of its search. "[I]f the police have probable cause to believe that there is contraband . . . anywhere in the car they can search for it even if it is in a ... locked compartment such as the glove compartment ...." United States v. Mazzone, 782 F.2d 757, 760 (7th Cir. 1986); see also Ross, 456 U.S. at 823 ("The scope of a warrantless search based on probable cause is no narrower ... than the scope of a search authorized by a warrant supported by probable cause."). Accordingly, we affirm the district court's denial of the motion to suppress because the marijuana, the clip of ammunition, and the gun would have been inevitably discovered.

Permalink 11:05:44 am, by fourth, 172 words, 366 views   English (US)
Categories: General

CA8: A consent to search for firearms includes checking clothing hanging in a closet

A consent to search for firearms includes checking clothing hanging in a closet. The consent was obtained for a parole search. United States v. Anderson, 674 F.3d 821 (8th Cir. 2012)*:

Even assuming a reasonable officer would have interpreted the consent as limited in scope to a search for firearms, the search was within the scope of such consent. United States v. Dinwiddie, 618 F.3d 821, 831 (8th Cir. 2010) ("The scope of consent for a search is limited to what a reasonable person would have understood by the exchange between the investigating officer and the person to be searched."). Firearms easily could be located in clothing hanging in a closet, particularly in outerwear such as a coat, jacket, or vest, and most particularly in a blaze orange hunting vest. See United States v. Lopez-Mendoza, 601 F.3d 861, 867 (8th Cir. 2010) ("The scope of a search is generally defined by its expressed object ..."). Further, the testimony supports the conclusion that the searching officer identified the ammunition without delving into spaces, pockets, or containers smaller than might hold a firearm.

Permalink 10:21:21 am, by fourth, 194 words, 390 views   English (US)
Categories: General

NYPost.com: "Law office of accused madam's upstate neighbor raided by cops"

NYPost.com: Law office of accused madam's upstate neighbor raided by cops by Jeane MacIntosh, Laura Italiano and Antonio Antenucci:

The probe of accused madam Anna Gristina widened today as cops descended on the downtown offices of a criminal defense lawyer who is her upstate neighbor — and the registered agent for Gristina's pig rescue farm house.

The lawyer, David Jaroslawicz, confirmed this afternoon that several cops were in his office at 225 Broadway, going through files.

Asked what they were looking for, he said, "I have no idea."

Prosecutors have claimed that Gristina had a "lawyer friend" who helped her invest and launder her money.

Law office searches are scary for both the target and the police because they're so easy to screw up. If you're a law enforcement officer reading this, get a special master involved ASAP, preferably before the search or at least before records are reviewed. In this case, the key is the fourth paragraph referring to money laundering. Lawyers are not immune from searches for money laundering. Clients, however, have a reasonable expectation of privacy in their lawyer's files and they have every right to challenge the PC and the execution.

Permalink 12:02:15 am, by fourth, 209 words, 553 views   English (US)
Categories: General

SC: Hollowed out blunt with loose tobacco and smell of marijuana justifies search of trunk

When the officer approached this stopped vehicle, he smelled marijuana. When defendant was ordered out of the car, the officer saw hollowed out blunts and loose tobacco which told him that the blunts were to be packed with marijuana. That justified a search of the trunk because that’s a place marijuana could be kept. State v. Morris, 395 S.C. 600, 720 S.E.2d 468 (2011), substituted for opinion filed August 17, 2011.

The defendant juvenile’s car was stopped because of the pointing of a rifle at a law enforcement officer. The police used a dog to sniff the trunk to see if a person was hiding there, but they stopped because the dog was distracted. Finally, they just opened the trunk as “SOP.” There were no exigent circumstances justifying a search of the trunk under New Mexico law. The search of the trunk also failed as a “protective sweep” looking for a person, but the evidence did not support that either. State v. Leticia T., 2012 NMCA 50, 278 P.3d 553 (2012),* Certiorari Granted, May 11, 2012, No. 33,566 & 33,567.

One officer was writing a traffic ticket for the defendant when another officer asked for consent to search the car. Since the request did not extend the stop any, it was valid. State v. Nims, 248 Ore. App. 708, 274 P.3d 235 (2012).*

03/17/12

Permalink 06:09:25 pm, by fourth, 288 words, 409 views   English (US)
Categories: General

NM: No right for juvenile to be told of right to refuse consent

Defendant was stopped for a traffic offense, and he had a bandana with a marijuana leaf design hanging from the mirror. The officer asked for consent to search his person and then called for back up. He then asked for consent to search the car. The court holds there is no right under state law to have the Fourth Amendment read more broadly to require that juveniles get a warning of a right to refuse a search of a car. State v. Carlos A., 2012
NMCA 69, 284 P.3d 384 (2012).*

Police stopped behind defendant’s car which was double parked in front of a garage at 3 a.m. They had a CI’s report, and the car matched a radio call of it being involved in an incident. The occupant made a furtive movement toward the floor. On the totality, they had reasonable suspicion. United States v. Parker, 467 Fed. Appx. 120 (3d Cir. 2012) (unpublished).*

Defendant failed to show that he had a reasonable expectation of privacy in the hotel room of another that was searched. He was neither the renter nor the additional guest, but he had a key. It was not shown that the key was to that room. “In any event, as he concedes, possession of a key to a hotel room, without more, does not establish a reasonable expectation of privacy in the room. Cooper, 203 F.3d at 1286 n.7 (citing United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995)). Nor did Bushay prove that the vehicle he was operating was a vehicle that was ‘registered’ for room 308.” He was not an overnight guest, and he lacked standing to contest a search that produced a gun associated with him. United States v. Bushay, 2012 U.S. Dist. LEXIS 33653 (N.D. Ga. January 24, 2012).*

Permalink 11:55:08 am, by fourth, 268 words, 440 views   English (US)
Categories: General

LA5: SW omitting reference to car at residence did not bar search of car

The warrant application specified a car and the residence as the target of the search. The warrant, however, did not mention the car. Since warrants for houses include vehicles parked on the curtilage, the car could be searched. State v. Washington, 90 So. 3d 1157 (La. App. 5 Cir. 2012):

Although the affidavit on which the warrant was based refers several times specifically to the Monte Carlo, the warrant itself does not refer to any vehicles. However, a warrant authorizing the search of a particularly described premises permits the search of a vehicle located on the premises targeted for the search and subject to the authority of the warrant. State v. Smith, 02-1842, p. 1 (La. 9/20/02), 827 So. 2d 1122, 1123 (per curiam); State v. Carter, 10-973, p. 8 (La. App. 5 Cir. 8/30/11), 75 So.3d 1, 5. The rationale behind this holding is that the vehicle is capable of concealing the sought-after contraband. Id. Accordingly, the search of defendant's vehicle was valid pursuant to the warrant since it was parked in front of the residence which was the target of the search and which was particularly described in the warrant. This assignment of error is without merit.

Defendant’s traffic stop was unlawful and was suppressed. Information from that stop ended up in a search warrant application. Excising it, the remainder still showed probable cause. Defendant had been under investigation for quite sometime and a lot of information had been developed. State v. Williams, 87 So. 3d 949 (La. App. 2d Cir. 2012).*

The CI’s tip of a group smoking marijuana was corroborated by plain smell on the officer’s arrival, providing reasonable suspicion. State v. Pineda, 90 So. 3d 1163 (La. App. 5 Cir. 2012).*

Permalink 11:40:18 am, by fourth, 244 words, 397 views   English (US)
Categories: General

FL3: Possession of firearm justifies frisk, not withstanding concealed carry law

Seeing a firearm on defendant’s person justified a patdown. While Florida is a concealed carry state, the officer does not have to exclude the possibility of a permit before the frisk. Mackey v. State, 83 So. 3d 942 (Fla. 3d DCA 2012):

Mackey contends the arresting officer had no reasonable suspicion to detain him for carrying a concealed firearm. He begins by noting that it is generally not illegal to possess a firearm in Florida. Mackey then argues in his brief, relying again upon Regalado, that "since, under Florida law, carrying a concealed firearm is illegal only if the individual does not have a permit and since the officer had no information suggesting that defendant did not have a permit, the officer lacked reasonable suspicion to stop him for carrying a concealed firearm." Whether, as a general proposition, mere possession of a firearm is not illegal in Florida, it is beside the point. Mackey was not observed in mere possession of a firearm; rather, he was observed in possession of a concealed firearm, and the officer testified that he observed a "piece of the handle sticking out" of Mackey's pocket, enabling the officer to identify it as a firearm. It is the concealment of the firearm, not merely its possession, which rendered Mackey's conduct illegal, and authorized the officer's actions in this case. Moreover, Mackey's argument necessarily overlooks the difference between an essential element of the crime and an exception, or affirmative defense, to the crime.

03/16/12

Permalink 05:14:36 pm, by fourth, 120 words, 531 views   English (US)
Categories: General

O'Reilly Factor: "Drug testing for unemployment benefits?"

O'Reilly Factor: Drug testing for unemployment benefits? Transcript:

O'REILLY: "Kelly File" segment tonight. Two very hot topics, a call for the U.N. to investigate U.S. voting laws. What?

But first, the Arizona Senate approves a measure requiring a drug test for anyone applying for unemployment benefits in that state. Here now, attorney and Fox News anchor, Megyn Kelly. All right so tell me about Arizona. What do they want?

MEGYN KELLY, FOX NEWS ANCHOR: So they want to test unemployment recipients for drug use.

O'REILLY: Why?

KELLY: But they only want to test those whom they have a reasonable suspicion about, if they have reasonable cause to believe you might be on drugs. And if you got arrested…

Permalink 12:19:33 pm, by fourth, 299 words, 471 views   English (US)
Categories: General

CA8: SW for “guns, drugs, and ammunition” permitted officers to search a box and open folded papers

In a search warrant for “guns, drugs, and ammunition,” officers searched a box and opened folded papers finding child pornography. This was valid as a plain view because the officers have the authority to look in folder papers for drugs. United States v. McManaman, 673 F.3d 841 (8th Cir. 2012):

Under a warrant to search McManaman's home for guns, drugs, and ammunition, officers would have had the authority to search in any closet, container, or other closed compartment in the building large enough to contain the possible contraband. See United States v. Ross, 456 U.S. 798, 820-21 (1982). We have applied the plain view doctrine in similar circumstances where a search warrant "authorized the police to seize, among other things, drugs and drug paraphernalia, either of which could have been stored in a box in a closet. The police were, therefore, acting within the scope of the warrant when they opened the box containing [incriminating] photos." United States v. Evans, 966 F.2d 398, 400 (8th Cir. 1992). Even if the pictures in the present case were folded up in the box, it seems reasonable to conclude, as the magistrate judge did, that "officers would have had reason to unfold the documents to determine whether they contained drugs, which often are contained within folded pieces of paper." United States v. McManaman, No. CR10-4024-MWB, 2010 WL 3717288 at *7 n.2 (N.D. Iowa Sept. 15, 2010).

The officers came across the photographs and the videotape with McManaman's step-daughter's name on it within the scope of a search that would have been proper had they obtained a search warrant. Because the incriminating nature of this evidence was immediately apparent to the officers, they were entitled to seize it under the plain view doctrine. Therefore the district court did not err in denying McManaman's motion to suppress because of the inevitable discovery doctrine.

Permalink 11:57:52 am, by fourth, 228 words, 400 views   English (US)
Categories: General

CA6: Hearing not required on motion to suppress that presents purely questions of law

The CIs gave detailed information that indicated a pattern of drug dealing from defendant’s house, and that was probable cause and overcame staleness. The district court did not err in denying a hearing on the motion to suppress where the motion only presented questions of law on PC, nexus, staleness, and good faith exception. United States v. Lawson, 2012 U.S. App. LEXIS 5374, 2012 FED App. 0278N (6th Cir. March 13, 2012):

Lawson's motion, contending that the warrant was based on stale information insufficient to amount to probable cause, set forth purely legal questions. As in Abboud, Lawson "argued that the facts were insufficient to support probable cause" and that there was insufficient corroboration, both of which "contest[] a legal conclusion." 438 F.3d at 577. Similarly, he "argued that the probable cause was stale[, which] too was a challenge to a legal conclusion." Id. Finally, Lawson challenged Leon's applicability to the case, which is also a pure legal question. The issues before that court at the time of its denial were all purely legal questions and, therefore, we do not find that the district court abused its discretion in denying Lawson's request.

Three people trying to tow away a vehicle without proper towing gear was reasonable suspicion. United States v. Boone, 2012 U.S. Dist. LEXIS 33915 (W.D. N.C. February 1, 2012),* R&R 2012 U.S. Dist. LEXIS 33914 (W.D. N.C. March 8, 2012).*

Permalink 12:19:04 am, by fourth, 120 words, 708 views   English (US)
Categories: General

New Haven Register: "Bill would let Connecticut towns seek search warrants to inspect properties"

New Haven Register: Bill would let Connecticut towns seek search warrants to inspect properties by Jordan Fenster:

A bill up for legislative review would grant municipalities the right to seek a search warrant if zoning officials believe there has been an ordinance violation.

The pending legislation, requested by state Rep. Susan Johnson, D-Windham, is the result of a state Supreme Court ruling that affirmed the right of citizens to, in the words of the court’s decision, “be free from unreasonable searches.”

In the case of the town of Bozrah v. Anne D. Chmurynski, town zoning official Thomas Weber had been asked to examine private property because, according to the court record, “he intended to inspect the property for ‘junk.’”

Permalink 12:14:17 am, by fourth, 121 words, 468 views   English (US)
Categories: General

GPB News: "Welfare Drug Testing Bill Revised"

And the beat goes on:

GPB News: Welfare Drug Testing Bill Revised by Jeanne Bonner:

Georgia lawmakers are revising a bill that opponents say is almost certain to land in federal court. It would require welfare recipients to take a drug test before receiving benefits. Its sponsor says the measure would save taxpayers money but others say it’s unconstitutional.

Sen. John Albers, a Roswell Republican, is the bill’s sponsor. He modeled it on a Florida law, now blocked by a federal judge because it violates the Fourth Amendment’s protection from unlawful search.

When these clowns pass such bills, they just make money for the plaintiffs' civil rights bar that files the case in attorneys fees. They are clueless.

Permalink 12:02:35 am, by fourth, 446 words, 522 views   English (US)
Categories: General

D.N.M.: Inventory must be in "good faith" and not a general rummaging

Inventory policy that allows the vehicle to go with somebody “immediately available,” not otherwise defined, does not require the police to allow somebody to be called and the police wait for that person to show up. The person essentially has to be there already. If the inventory is conducted in “good faith,” that’s enough. United States v. Reyes-Vencomo, 866 F. Supp. 2d 1304 (D. N.M. 2012):

The officers initiated the search in compliance with standardized police procedures and the requirement that the officers make a post-search notation regarding the decision to search adds little to the protections that the Fourth Amendment and Supreme Court precedent seeks to impose. The Fourth Amendment is satisfied so long as an officer conducts an inventory search in good faith. See United States v. Battle, 370 F.App'x at 430 (citing Colorado v. Bertine, 479 U.S. at 374). Holfelder and Ortega conducted an orderly inventory search, documenting and photographing the items in the vehicle as they went, and were not "general[ly] rummaging in order to discover incriminating evidence." United States v. Martinez, 512 F.3d at 1274. Holfelder explained that he understood the policy's purpose to be to protect the department and the driver's property, and nothing indicates that he was acting in bad faith. See United States v. Maraga, 76 F.App'x at 228 ("An impoundment must either be supported by probable cause, or be consistent with the police role as 'caretaker' of the streets and completely unrelated to an ongoing criminal investigation."); United States v. Lugo, 978 F.2d at 636 ("When the police acquire temporary custody of a vehicle, a warrantless inventory search of the vehicle does not offend Fourth Amendment principles so long as the search is made pursuant to 'standard police procedures' and for the purpose of 'protecting the car and its contents.'"). Failing to make a notation in the police report regarding the tow decision was a minor deviation from procedure, and an understandable one given the circumstances, and does not render the inventory search invalid.

[I had to go read these cases on good faith, and both appear to just be throw-away lines as to what the government's burden of proof is:

Battle: "Rather, he acted in good faith as he undertook to identify, secure and protect valuable property."

Bertine: "We conclude that here, as in Lafayette, reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure."

So, don't see there being a "good faith exception" to inventory searches. Good faith inventory and not a rummaging is something that the government has to prove in every case.]

03/15/12

Permalink 11:24:43 am, by fourth, 603 words, 587 views   English (US)
Categories: General

CA7: Attenuation found after illegal search later led to consent

Attenuation was found with a two hour delay, (unnecessary) Miranda warnings, defendant counseling with his father on his cell phone who told him not to cooperate, and finally thinking about his predicament for at least an hour. United States v. Conrad, 673 F.3d 728 (7th Cir. 2012)*:

If ordered, suppression of unconstitutionally obtained evidence can permit "[t]he criminal ... to go free because the constable has blundered." People v. Defore, 150 N.E. 585, 587 (N.Y. 1926) (Cardozo, J.). Given a blunder that the Government does not dispute here, Defendant David Conrad argues that the district court should have suppressed all the evidence of child pornography that was recovered following an illegal entry into his father's home. As we explain below, however, the district court correctly denied exclusion of evidence obtained from Mr. Conrad's own home—an hour's drive away from the home that had been illegally entered and which Mr. Conrad authorized the Government to search. That evidence was sufficiently attenuated from the original illegal entry so as to have been purged of the unconstitutional taint.

. . .

Consistent with existing precedent, the district court identified intervening circumstances that favored attenuation: Mr. Conrad's repeated consents to search and his waiver of Miranda rights (which law enforcement was not even required to give because he was not in custody), about two hours after the underlying constitutional violation and in a completely different location. As for the different location, we note that in contrast to cases where no attenuation was found after the defendant was taken, for example, to a police station, e.g., Taylor, 457 U.S. 687, here Mr. Conrad volunteered to go from his family home, a location where, according to the unchallenged findings of the district court, he "was undoubtedly comfortable," Conrad, 578 F. Supp. 2d at 1037, to a location that was as yet unknown to the agents, the Chicago Apartment. He was likely as or more comfortable there, and thus in a better position to decide whether to stand on his constitutional rights there. Furthermore, because the Chicago Apartment was independently protected under the Fourth Amendment, extending the scope of the exclusion would have little additional deterrent effect. Cf. Harris, 495 U.S. at 20 ("Even though we decline to suppress statements made outside the home following a Payton violation, the principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home. If we did suppress statements like Harris', moreover, the incremental deterrent value would be minimal.").

Although the district court did not explicitly rely on it for this second factor, we also attach particular significance to another, rather unusual, circumstance. Mr. Conrad not only could use his cell phone to obtain advice about his predicament, but he actually did—and was, as the district court found, specifically told by his father "not to talk to the officers." Conrad, 578 F. Supp. 2d at 1025. While he suggests that his decision to ignore that advice was in recognition that he had already confessed to so much that he had no choice but to continue, the district court found, and he does not contest, that his statements were voluntary. Id. at 1036-37. The voluntariness of his statements—made despite superfluous Miranda warnings, a specific warning from his father, and after an hour to think in the car and twenty minutes to think while tending to his cats and showing off music equipment—help establish that his conduct at the Chicago Apartment was "sufficiently an act of free will to purge the primary taint of the unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 486 (1963) (footnote omitted).

Permalink 10:00:51 am, by fourth, 193 words, 349 views   English (US)
Categories: General

W.D.N.C.: Waiting for backup to do a frisk not unreasoanble

Officer’s waiting for backup to arrive before doing frisk of occupants of the car was not a separate seizure requiring a new analysis of reasonable suspicion. United States v. Boone, 2012 U.S. Dist. LEXIS 33914 (W.D. N.C. March 8, 2012).

This started as a motorist assist and ended up as a warning ticket. The whole thing took nine minutes, which was not unreasonably long. As defendant was leaving, the officer asked if he could ask some additional questions, and that led to a valid consent. The granting of the motion to suppress was reversed. People v. Kats, 967 N.E.2d 335, 2012 IL App (3d) 100683, 359 Ill. Dec. 605 (2012).*

“The 911 hang-up call, combined with the lack of answer on the return and Defendant's overtly aggressive and hostile behavior and refusal to answer basic questions, provided a reasonable basis for the officers to conduct a protective sweep of the house to ensure that no one inside was in need of immediate help. While Defendant had a right to respond as he did, this nevertheless did not dispel the officers' concern for the safety of the occupants.” United States v. Obbanya, 2012 U.S. Dist. LEXIS 33627 (N.D. Cal. March 13, 2012).*

Permalink 05:19:45 am, by fourth, 241 words, 482 views   English (US)
Categories: General

NY1: Consent to "take a look" in or "check" a car doesn't include the locked glove compartment

A police request to “take a look” in a car or to “check” it for contraband does not include looking in locked containers. Here, the officer did take a look, then took the keys and unlocked the glove compartment finding a gun. That exceeded the consent. The state's burden in a consent case is "heavy," and here not met. People v. McFarlane, 2012 NY Slip Op 01754, 939 N.Y.S.2d 460 (1st Dept. 2012):

Here, the officer's request to "take a look" into the car or "check" it for contraband could reasonably have been understood to be a request to search the vehicle, possibly to include closed containers, but it did not reasonably imply a request for permission to open the locked glove compartment (cf. People v Gomez, 5 NY3d 416, 418-419, 838 N.E.2d 1271, 805 N.Y.S.2d 24 [2005] [general consent to search car did not authorize breaking into hidden compartment]). That the officer subjectively intended to search the glove compartment when he made the request is not determinative. Normally, a locked container can only be opened by breaking into it or using a key. A reasonable person in defendant's situation would have assumed that if the officer wanted to open the glove compartment with defendant's consent he would have asked for the key or asked defendant to open it. The officer did neither; after checking the seats and the center console, he simply took the keys from the ignition and opened the glove compartment.

Permalink 05:11:11 am, by fourth, 158 words, 454 views   English (US)
Categories: General

CA9: Cal. probation search could be suspicionless, so lack of corroboration of CI didn't matter

In a probation search, the government must first have probable cause to believe the home is the defendant’s, a fact not in dispute in this case. This search was based on a CI saying that defendant was involved in a homicide, but the CI’s track record and information was clearly lacking. A shotgun was found at defendant’s house. A California probation search, however, can be suspicionless, so the gun was not suppressed after all. United States v. King, 672 F.3d 1133 (9th Cir. 2012), amended August 27, 2013 with a dissenting opinion on denial of rehearing en banc.

Where defendant’s father signed a consent to search form, his mother’s refusal to sign because she disagreed with the search was not binding on the police. Brunetti v. Comm'r of Corr., 134 Conn. App. 160, 37 A.3d 811 (2012).*

A “road closed” sign is a traffic control device, and disobeying it justified a stop. State v. Morrissey, 19 Neb. App. 590, 2012 Neb. App. LEXIS 52 (March 13, 2012).*

03/14/12

Permalink 01:11:11 pm, by fourth, 277 words, 476 views   English (US)
Categories: General

New law review article: "Virtual Curtilage: A Theory of Fourth Amendment Privacy in Public"

Andrew Guthrie Ferguson, Virtual Curtilage: A Theory of Fourth Amendment Privacy in Public. SSRN Abstract:

This article proposes a new theory of Fourth Amendment privacy in public that builds off the legal construct of curtilage around private homes. Curtilage involves a publicly observable area defined as a protected space outside the home in which intimate activity associated with the sanctity of the home and the privacies of life are conducted. Arising from principles of property law and privacy conceptions that pre-date the Fourth Amendment, the idea is a well-grounded legal fiction that protects individuals beyond the four walls of the home.

This article takes the principle of curtilage applied to property, and applies it to the rest of the Fourth Amendment protections covering “persons,” “papers,” and “effects.” The “virtual curtilage” theory has been developed in response to growing surveillance techniques in public spaces, as well as difficulties in protecting thoughts and writings in the digital realm. The theory looks at the development of an historic legal concept that expanded privacy protections based on fundamental principles of property and privacy – a concept based not on what could be searched, but what should be searched consistent with societal rules. That limiting principle of protecting a zone outside the literal four walls of a home has renewed urgency as surveillance technologies increase on our streets and in our digital lives. In addition, building off the Supreme Court’s decision in United States v. Jones and other cases that have refocused interest on the property based-nature of the Fourth Amendment, the idea of curtilage remerges as a central organizing principle for redefining a reasonable expectation of privacy under the Fourth Amendment.

Permalink 09:17:58 am, by fourth, 191 words, 527 views   English (US)
Categories: General

CA5: Host could consent to search of guest's stuff

“Espada was the resident of the searched premises, while Cruz was a temporary guest who admitted that he had no control over the residence. In leaving the residence with his belongings still in the bedroom, unlocked and exposed in a doorless closet, Cruz assumed the risk that Espada would consent to a search of her residence.” United States v. Cruz, 470 Fed. Appx. 91 (3d Cir. 2012). [This is tenuous at best, and it deserved a better, more detailed analysis than brushing it off without much in a per curiam. A guest has standing, but are his personal belongings subject to the whim of the host? Not usually. Why would the police even think that the host had apparent authority over the guest's stuff? This is just wrong as written. Hopefully the defense will ask for rehearing or try for cert.]

Defendant being a known drug dealer in an area where there might have been a drug deal 2-3 hours earlier in a vehicle that only might have matched the color of the one they were looking for wasn’t probable cause. United States v. Allen, 2012 U.S. Dist. LEXIS 32707 (M.D. La. March 12, 2012).*

Permalink 09:07:45 am, by fourth, 248 words, 431 views   English (US)
Categories: General

CA5: Where defendant is in jail and refuses consent, Randolph doesn't bar going to house to get consent from cotenant

Following CA7 (United States v. Reed, 539 F.3d 595 (7th Cir. 2008)) and CA8 (United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc)) and not CA9 (United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008)), CA5 finds that an absent cotenant who refuses to consent is not what was contemplated in Randolph. Defendant was in jail and refused to consent, so officers went to his house and got it anyway. [There is also a curtilage issue under Dunn.] United States v. Cooke, 674 F.3d 491 (5th Cir. 2012):

We agree with the Seventh and Eighth Circuits that the objection of an absent cotenant does not vitiate the consent of a physically present cotenant under Randolph. First, as both courts noted, Randolph self-consciously emphasized the importance of Randolph's presence by repeatedly noting it when declaring and reiterating the holding. See Randolph, 547 U.S. at 106, 114, 121, 122, 123. Justice Breyer's concurrence confirms the importance of physical presence. Id. at 126 (Breyer, J., concurring). Second, the Randolph Court seemed to have structured the holding as an exception to the general rule of Rodriguez and Matlock that a cotenant may consent to the search of a residence, id. at 106, and that this exception was narrowly drawn along a "fine line." Id. at 121-22. Third, although it is a close question, social convention normally allows for a visitor to feel invited into a home when invited by a physically-present resident, even if an absent cotenant objects to it, rather than the visitor's assuming he is verboten forever until the objector consents.

Permalink 08:24:03 am, by fourth, 284 words, 371 views   English (US)
Categories: General

D.Minn.: Prior consent search of home did not prevent SW if something overlooked

Defendant was indicted for mail fraud for sending threatening letters. Investigators found threads under a stamp on the envelope. That and other things showed a nexus for a search warrant for defendant’s house. The fact that there had been a prior consent search did not mean that the police could not seek to come back if something had been overlooked. United States v. Carlson, 2012 U.S. Dist. LEXIS 32734 (D. Minn. March 12, 2012), R&R 2012 U.S. Dist. LEXIS 32727 (D. Minn. February 7, 2012):

The prior consent search — during which no evidence was seized — is irrelevant. First, there is nothing to suggest the scope of the prior search was exactly the same as the search authorized by the warrant. Second, failure to find items during a prior search does not destroy probable cause for a subsequent search, if there is reason to believe the evidence could have been overlooked. See United States v. Blom, 242 F.3d 799, 807 (8th Cir. 2001). Here, the affidavit indicated that the home was extremely cluttered, making it likely that relevant evidence was overlooked. Third, even if the evidence was not in Carlson's home at the time of the prior search, that absence is immaterial. See United States v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993) (holding that evidence does not need to be at the location to be searched at the time the warrant issues, so long as there was probable cause to support a belief that it will be there when the warrant is executed). The Court finds that the affidavit as a whole supported a conclusion that the items listed were likely to be in Carlson's home at the time the warrant was executed, and the warrant was, therefore, supported by probable cause.

Permalink 08:07:56 am, by fourth, 200 words, 355 views   English (US)
Categories: General

M.D.Fla.: Not controlling driver and passenger permitted Belton search

By not securing the occupants of a rental car that was subject to impoundment for lack of an authorized driver, the need for a search incident was akin to the situation in Belton rather than Gant. United States v. Harmon, 2011 U.S. Dist. LEXIS 153996 (M.D. Fla. November 4, 2011).* [So, the officer can simply not secure the persons arrested and use that as an excuse for search incident? Better yet, the car was subject to impoundment for lack of a licensed driver. Period. This was deciding something that didn't need to be decided. Don't count on this case being good law.]

Defendant’s suppression motion was denied in 1998 and he appealed. He since had post-conviction hearings. “His repetitive frivolous motions and appeals will not change this court's ruling on the issue. It was determined more than a decade ago that the January 2, 1998, search of Claude Bellamy's house was by consent.” Bellamy v. United States, 2012 U.S. Dist. LEXIS 32458 (E.D. N.C. March 12, 2012).

Defendant was arrested in Belize for immigration violations and child pornography was found. He makes no showing whatsoever that American authorities had anything to do with it. United States v. McVicker, 2012 U.S. Dist. LEXIS 33164 (D. Ore. March 13, 2012).*

03/13/12

Permalink 07:30:05 am, by fourth, 583 words, 598 views   English (US)
Categories: General

N.D.Ga.: 90 day delay in getting SW for seized cell phones was unreasonable

Defendant conceded his cell phones were properly seized, but the government’s 90 day delay in getting a search warrant for the cell phones were unreasonable and required suppression. United States v. Shaw, 2012 U.S. Dist. LEXIS 32624 (N.D. Ga. February 10, 2012):

The facts of the instant case are not materially distinguishable from Mitchell [United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009),] and dictate the same result. In Mitchell, the computer hard drive was seized without Defendant's consent based upon the officers' belief it might contain child pornography. Likewise, in the instant case, the three cell phones were seized without Defendant's consent, incident to arrest and based upon probable cause to believe the phones may have been used in furtherance of the indicted drug conspiracy offenses. Like a computer hard drive, cell phones contain personal information, contacts, text messages, photographs, and other data maintained in electronic form. Also as in Mitchell, the government in the instant case has offered no substantial justification for its failure to obtain the warrants for more than ninety days, well in excess of the twenty-one days in Mitchell. Indeed, the government has offered no justification at all for the delay. Rather, the government relies primarily on the argument that Defendant did not ask for the return of his property and on the contention that the cell phones could be detained because they possessed evidentiary value in and of themselves, regardless of any information contained within them. Govt. Brief at 7, [Doc. 485].

. . .

With regard to the absence of any request for return of the property, there is no evidence that such a request was made in this case, or, for that matter, in Mitchell. Because this fact was not discussed or noted in Mitchell, the failure to request return would not appear to have figured significantly, if at all, in the Court's analysis. Likewise, the failure by Defendant to request return of his cell phones in this case should not change the result here.

As for the argument that the phones were evidence "in and of themselves" warranting indefinite detention, the government does not explain exactly how the phones would fall into such a category, or cite any authority for such a proposition. The phones were not in and of themselves contraband, nor was their evidentiary value readily apparent without regard to other information to be obtained from the phones. By extension of the government's logic, the hard drive in Mitchell could be considered evidence "in and of itself" subject to indefinite detention without a warrant because there was probable cause to believe it was used to facilitate the possession of child pornography.

Defendant certainly had a possessory interest in his personal property – his cell phones – that was significantly interfered with for more than ninety days, without Defendant's consent, before the government got around to obtaining a warrant. The fact that the Defendant was detained without bond and could not, himself, have accepted the return of the property does not equate with the government's right to exclude him or his designee from his property indefinitely without a warrant. Furthermore, the government has offered no justification or rationale for the delay. In short, the undersigned, applying the rule of reasonableness announced in Mitchell, concludes that the government's delay in the instant case was certainly as unreasonable, if not more unreasonable, than was the delay in Mitchell under substantially similar circumstances.

Accordingly, the undersigned RECOMMENDS that the motions to suppress, [Docs. 362, 338], be GRANTED and that the evidence obtained from the cell phones be suppressed.

Permalink 07:16:30 am, by fourth, 202 words, 383 views   English (US)
Categories: General

CA10: Questions unrelated to purpose of stop were legitimate of tractor-trailer driver

The suspicious nature of defendant’s trip was apparent from his not really knowing where he was coming from or going or what he was carrying in his tractor-trailer. All this was developed after a stop for a frayed hose to the trailer. The questions were all unrelated to the stop, but still legitimate. United States v. Lopez-Merida, 466 Fed. Appx. 170 (10th Cir. 2012) (unpublished)*:

But during a traffic stop an officer can request the documents concerning the travel-such as driver's license, registration, rental contract, or, as here, the driver's log and shipping documents. See id.; United States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004). The officer can also inquire about the trip being taken, see United States v. Vazquez, 555 F.3d 923, 928-29 (10th Cir. 2009), and can ask questions on any subject so long as the questioning does not prolong the detention beyond what is otherwise necessary to perform such routine tasks as computer checks and preparing reports and citations, see Karam, 496 F.3d at 1161. Moreover, if information obtained by such inquiries and other observations during the stop create reasonable suspicion to believe that a crime has been or is being committed, the officer can take reasonable steps to investigate. See Vazquez, 555 F.3d at 929.

Permalink 07:08:01 am, by fourth, 157 words, 478 views   English (US)
Categories: General

D.Ariz.: "Reasonable certainty" of border crossing shown

There was a reasonable certainty that the defendant just crossed the border for the extended border search doctrine where he was seen near the border after having literally been seen on the Mexican side of the border shortly before that. “Proof of the border crossing beyond a reasonable doubt, however, is not the applicable standard. Guzman-Padilla, 573 F.3d at 880.” United States v. Nelson, 2012 U.S. Dist. LEXIS 32249 (D. Ariz. March 12, 2012), R&R 2011 U.S. Dist. LEXIS 154016 (D. Ariz. December 2, 2011).*

Based on the totality of defendant’s nervousness, lack of current logbook, inability to show where he was going on a map compared to where he said he came from and more all added up to reasonable suspicion. United States v. Fraguela-Casanova, 858 F. Supp. 2d 432 (M.D. Pa. 2012).*

Defendant failed to show false information was included in the affidavit for the search warrant under Franks. United States v. Kearse, 2012 U.S. Dist. LEXIS 32576 (E.D. Tenn. February 21, 2012).*

Permalink 07:04:44 am, by fourth, 469 words, 884 views   English (US)
Categories: General

M.D.N.C.: Traffic stop with frisk is not enough to invoke Miranda

Just because a motorist is stopped with flashing lights, frisked, and put in a police car, that does not make it a “custodial interrogation” for Miranda purposes under Berkemer. United States v. Hernandez-Rodriguez, 2012 U.S. Dist. LEXIS 31918 (M.D. N.C. March 7, 2012):

When police question a suspect outside of a police station environment, however, “Miranda is not triggered simply because a person detained by the police has reasonable cause to believe that he is not free to leave.” United States v. Streifel, 781 F.2d 953, 961 (1st Cir. 1986); United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995) (“[T]he perception ... that one is not free to leave is insufficient to convert a Terry stop into an arrest.” (second alteration in original) (quoting United States v. Moore, 817 F.2d 1105, 1108 (4th Cir. 1987))). The “free to leave” standard, without more, determines whether an individual is “seized” within the meaning of the Fourth Amendment such that any evidence uncovered during a search conducted without a reasonable suspicion that criminal activity was afoot must be excluded. United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002) (“[A] ‘seizure’ warranting protection of the Fourth Amendment occurs when ... a reasonable person would not feel free to leave or otherwise terminate the encounter.”).

The fact that a person has been seized within the meaning of the Fourth Amendment, therefore, does not necessarily mean that he is “in custody” within the meaning of the Fifth Amendment. United States v. Collins, 972 F.2d 1385, 1405 (5th Cir. 1992) (“[A]lthough a temporary Fourth Amendment seizure may have occurred . . ., a Fifth Amendment custodial situation did not.”). Instead, the court must consider a “host of factors” in deciding whether the suspect’s freedom of action has been curtailed to “a degree associated with formal arrest.” Streifel, 781 F.2d at 961 (citation omitted). Those factors include the location of the questioning, the number of officers present, the degree of physical restraint exercised over the defendant, and the duration and character of the interrogation. United States v. Teemer, 394 F.3d 59, 66 (1st Cir. 2005).

Applying these factors in the context of a traffic stop, the Supreme Court in Berkemer v. McCarty, 468 U.S. 420 (1984), held that an individual subject to a routine traffic stop is not entitled to Miranda warnings prior to police questioning. According to the Court, routine traffic stops are “presumptively temporary and brief,” in contrast to station-house interrogations which can extend indefinitely. Id. at 437-38. In addition, the public nature of most traffic stops, coupled with the small number of police officers typically involved, indicate that “the atmosphere surrounding an ordinary traffic stop is substantially less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.” Id. at 438-39.

Here, Hernandez-Rodriguez’s vehicle was stopped for a clear traffic violation, and there is no indication that the trooper’s questions or the atmosphere of the encounter were coercive. ...

Permalink 06:42:04 am, by fourth, 380 words, 392 views   English (US)
Categories: General

New law review article: "Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment"

Donald A. Dripps, Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment, 81 Miss. L. J. 133 (2011). SSRN Abstract:

Granting for purposes of argument the general theoretical case for interpreting constitutional text according to some version of the original understanding, this contribution to the University of Mississippi's 2011 Fourth Amendment symposium argues that consulting founding-era practices at the particular level is not a faithful approach to the original understanding. I develop two lines of objection to specific-practices originalism (SPO). I call one the contextual critique and the second the dynamism critique.

The constitutional text was situated in the context of eighteenth-century institutions and doctrines that disappeared in the nineteenth century. The utter disappearance of the context means that we just don’t know what the founders expected the Fourth Amendment to prohibit, or permit, in a radically different legal and technological environment. The degree of privacy and liberty in 1791 were a product of the contemporary criminal justice system, the economic and technological social circumstances, and the legal regime that limited search-and-arrest powers. The rules of 1791 would have different consequences for liberty and security in a society like today’s, with full-time proactive police and modern technology.

The dynamism critique points out that the 1791 rules of search-and-seizure were not static. Tort law was the legal regime regulating search-and-arrest powers. Illegal detention gave rise to actions for false arrest or false imprisonment. Illegal entries of private premises gave rise to trespass suits. But common law can change. Precedents can be overruled, and new factual contexts require debatable applications of old principles. Most dramatically, common law rules can be trumped by statutes.

If the reasonableness clause perpetuates all the specific 1791 tort rules, the force of the contextual critique becomes overwhelming. If, however, the clause incorporates common law rules subject to plenary statutory revision, the constitutional provision is nugatory. Either the Fourth Amendment freezes search-and-seizure law in the form it had before the advent of modern police and modern technology, or it permits any search or arrest authorized by statute. Some search for principled middle ground seems in order. The interpretive mode most faithful to the original understanding is “aspirational balance of advantage originalism,” a mode practically very similar indeed to competing approaches such as common-law constitutionalism or legal process theory.

03/12/12

Permalink 08:03:20 am, by fourth, 130 words, 469 views   English (US)
Categories: General

NM: Giving laptop to another for repair and then asking for CP to be destroyed was a waiver of REP

Defendant took his computer to a friend who was going to do a software and hardware upgrade on it. While the friend was working on the computer, defendant volunteered there was child pornography on the computer and asked him to destroy it. Instead, he copied it for the police. If anything, defendant had a reasonable expectation that it would be disclosed to the police rather than destroyed when he gave the computer to another. State v. Ballard, 2012 NMCA 43, 276 P.3d 976 (2012),* Certiorari Granted, May 2, 2012, No. 33,565.

Defendant admitted he was speeding, so the officer had probable cause for a stop, and it ripened into reasonable suspicion for a longer stop based on what was observed and from information from other officers. United States v. Mudgett, 2012 U.S. Dist. LEXIS 31720 (D. Minn. February 22, 2012).*

Permalink 12:22:19 am, by fourth, 307 words, 702 views   English (US)
Categories: General

IN: Probation search targeting wife of probationer was invalid; probation officer was truly stalking horse

Use of defendant’s husband’s probation status to conduct a “probation search” led by the police was unreasonable and violated Griffin and Knights. Hensley v. State, 962 N.E.2d 1284 (Ind. App. 2012):

This evidence reveals that the search was not conducted as a probation search, nor was it truly conducted for probation reasons. Instead, the police were pursuing their own agenda and conducted an investigatory search under the guise that it was a probationary search. The search was prompted by the police officers, not by the probation officer. Stuckey agreed that the police could join her in the search, as officers often do for the reason of safety. Instead of acting as Stuckey's backup, however, the police entered the home and left Stuckey alone with Hensley, without conducting a safety sweep of the home that purportedly contained a firearm. The police did not ask Hensley about the ownership of the home and failed to follow the lead of Stuckey, from whom they could have learned that Robert slept in the living room and not the bedroom. This search did not meet the guidelines for a valid search under Griffin.

. . .

To qualify as a constitutional search under Knights, the police would have needed to have reasonable suspicion that Robert had engaged in criminal activity. In the State's response to Hensley's motion to suppress, the State makes no mention of the reasoning in Knights, nor does it contend that these unsubstantiated tips provided "reasonable suspicion" to believe that Robert was engaging in criminal activity. Furthermore, the evidence found in Hensley's home was discovered under her bed and in her dresser drawer. Hensley was not on probation nor was she the person suspected of criminal activity. The search by Officer Tharp, which uncovered the marijuana and generic Xanax violated her Fourth Amendment right against unreasonable search and seizure under Knights.

Permalink 12:10:02 am, by fourth, 267 words, 433 views   English (US)
Categories: General

AK: SW overcame possible lack of consent

Officers went to defendant’s property to conduct a knock-and-talk suspecting a commercial marijuana grow operation. After smelling growing marijuana and actually seeing it, one officer left to get a search warrant. While they were waiting, defendant came home and seemingly but equivocally consented, but the consent came into dispute. In the meantime, the search warrant issued, and this was an independent basis for the search. Starkey v. State, 272 P.3d 347 (Alas. App. 2012):

This distinction is explained by Professor LaFave: "[T]he inevitable discovery [doctrine] is hypothetical in nature, [and] it does not apply if [an] alternative, legitimate source is actually used to seize the evidence". Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 11.4(a), Vol. 6, p. 265, n. 55. 1 This distinction was also addressed by the Alaska Supreme Court in Smith v. State, 948 P.2d 473 (Alaska 1997):

[P]roperly applied, the "independent source" exception [to the exclusionary rule] allows the prosecution to use evidence only if it was, in fact, obtained by fully lawful means. ... The "inevitable discovery" exception ... differs in one key respect[:] ... the [challenged] evidence ... [was] not actually ... obtained from an independent source, but rather would have been discovered as a matter of course if independent investigations [had been] allowed to proceed.

Smith, 948 P.2d at 479-480 (emphasis added, and citations omitted).

One further aspect of the "independent source" doctrine must be emphasized: the doctrine applies to situations like the one in Starkey's case — situations where the police initially discover the evidence unlawfully, but ultimately take possession of the evidence through a lawful means that is untainted by the prior illegality. ...

Permalink 12:02:18 am, by fourth, 161 words, 419 views   English (US)
Categories: General

GA: If impoundment could be avoided by passenger taking the car, it should

Search incident of defendant’s vehicle was invalid because it was for a traffic offense and there was no evidence of the crime. Since this arrest was custodial, the vehicle was improperly impounded because it was lawfully parked and the officer made no effort to see if the passenger would drive the vehicle, thus obviating impoundment. Canino v. State, 314 Ga. App. 633, 725 S.E.2d 782 (2012).*

A visitor to a house ran the risk that the host would consent to admitting the police who came in and saw the visitor’s suitcase and seized it. The police got a search warrant for the seized suitcase on probable cause. United States v. Cruz, 2012 U.S. App. LEXIS 4986 (3d Cir. March 9, 2012) (unpublished).*

The officer’s seeing defendant cross the center line was credited as the basis for the OVI stop, and the fact the video didn’t catch it didn’t make the stop unreasonable. State v. Lemaster, 2012 Ohio 971, 2012 Ohio App. LEXIS 846 (4th Dist. March 2, 2012).*

03/11/12

Permalink 10:09:03 am, by fourth, 161 words, 388 views   English (US)
Categories: General

IA: Grabbing suspect's arm to move him implicit in stop-and-frisk

Grabbing defendant’s arm to remove him from a store during an investigative detention was not unreasonable. Some force or threat of force is implicit in a Terry stop and frisk. State v. Dewitt, 811 N.W.2d 460 (Iowa Sup. 2012):

At the outset, we reject the adoption of a per se rule prohibiting police from grabbing the arm of a suspect to stop and briefly detain the person to obtain an explanation for suspicious circumstances surrounding the stop. The right to make an investigatory stop "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455. Thus, it is necessary to assess every fact and circumstance of the situation in applying the constitutional standard of reasonableness. See Scott v. Harris, 550 U.S. 372, 383, 127 S. Ct. 1769, 1777-78, 167 L. Ed. 2d 686, 696 (2007) (indicating no easy-to-apply legal test exists to determine reasonableness of force under the Fourth Amendment).

Permalink 10:04:54 am, by fourth, 810 words, 469 views   English (US)
Categories: General

S.D.N.Y. Arrest of defendant permitted search of hotel room

A Bronx motel room search was found to be without exigent circumstances, as much as the government tried, but sustained on a strained reading of inevitable discovery because defendant's arrest made the room searchable. Defendant was wanted for a murder two weeks earlier upstate, and his hotel room was staked out, but the police got impatient, twice considering search warrants. United States v. Stokes, 2012 U.S. Dist. LEXIS 31513 (S.D. N.Y. March 7, 2012)*:

This is a tale of nine guns, a misguided prosecutor whose poor judgment jeopardized the safety of the public he is tasked to protect, and a motel clerk, who, by simply doing his job, has prevented the Fourth Amendment and its exclusionary rule from becoming a suicide pact.

. . .

Defendant makes much of the fact that the officers made a strategic decision not to obtain a warrant in order to evade Defendant's right to counsel. The officers' subjective reason for proceeding without a warrant is not relevant to MacDonald's objective test. However, the surrounding facts do bear on the exigent circumstances determination. For instance, Detective Perrotta had time to make two separate attempts to secure a warrant prior to entering room 57; there were no exigencies between the time the Marshals located the Defendant and the time of the warrant requests, and nothing happened after Detective Perrotta's second conversation with ADA Chase to create a newfound urgency in apprehending the Defendant. Moreover, when Detective Perrotta decided to approach Defendant without a warrant, his mission shifted from effecting a quick arrest to reasoning with the Defendant and trying to convince him to cooperate. The Court cannot see any urgent need to enter the motel room where the officer's goal was to talk first and then detain. Ultimately, the officers had nothing more than probable cause to arrest a murder suspect. That probable cause, standing alone, is not enough get the officers into the motel room and, as a result, is not enough to sustain the Government's burden of proof with respect to the exigent circumstances exception to the exclusionary rule.

. . .

Even if Defendant left the bag in his room, a proposition the Court finds highly unlikely considering his demonstrated concern about protection from retaliation for Kareem Porter's stabbing, then cleaning staff would have found the open bag of firearms along with the ammunition, ring, and documents that were in fact recovered when they went into the room to prepare it for another guest. Just as he did with the ammunition, ring, and documents, the Court has no doubt that Mr. Patel, in the ordinary course of business, would have turned the firearms over to law enforcement. In other words, the fact that additional ammunition was inevitably discovered in room 57 gives the Court a high level of confidence that the firearms would have been inevitably discovered as well. Defendant makes two points in opposition. First, Defendant argues that his arrest did not terminate his rental of room 57, which was paid through July 13, 2010, and therefore he had a reasonable expectation of privacy in the room post-arrest such that police could not search property recovered by motel cleaning staff without a warrant. However, Defendant cites no authority in this Circuit in support of his argument, and at least one court had made findings to the contrary. See United States v. Wyche, 307 F. Supp. 2d 453, 460-61 (E.D.N.Y. 2004) ("Wyche having been taken into custody on the basis of the witness identification, the police would have seized his luggage from his motel room. (It is unlikely that the motel owner would allow Wyche to indefinitely keep his belongings there.) ... Wyche's three weapons would have inevitably, and lawfully, been discovered in his duffel bag when the bag was later inventoried at the Fifth Precinct after Wyche's arrest."). Thus, if cleaning staff entered room 57 after Defendant's arrest but prior to the expiration of the rental period, found the bag of firearms, and turned it over to the police, there is no authority in this Circuit preventing law enforcement from searching the bag. Indeed, it is not at all clear that Defendant's expectation of privacy in a pre-paid motel room survives his arrest such that police could not enter the room or search items recovered from that room. See United States v. Rahme, 813 F.2d 31, 34-35 (2d Cir. 1987) (holding that "when a hotel guest's rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy" in the room or articles therein (emphasis added)); see also Patel Decl. ¶ 2 (noting motel policy of entering rooms to clean after tenants "check out or otherwise cease their stay").

Another self-fulfilling prophecy: We arrest you, then we can search your hotel room because you're not going back to it. That borders on the absurd, and is a clear manipulation of the Fourth Amendment. Let's just call this the "9-guns-in-a-motel-room exception to the Fourth Amendment."

Permalink 09:30:55 am, by fourth, 148 words, 405 views   English (US)
Categories: General

MA: Anonymous crime reporter's statement akin to an "excited utterance" could be credited

An anonymous caller could be credited in a call about flight from a robbery where the facts of the call were corroborated by license number matching a vehicle with the same description of the getaway car and the excited nature of the event. In addition, “the anonymous call here may be comparable to an excited utterance. If a person wants to harass an enemy by providing false information to the police that would trigger an investigative stop, the person is unlikely to wait until the caller has just seen someone flee a crime scene.” Commonwealth v. Anderson, 461 Mass. 616, 963 N.E.2d 704 (2012).

Standing with a group of other young man in a high crime area, having no gang colors, walking away when the officers approached, and being out of breath when the officer stopped him was not reasonable suspicion. In Interest of J. B., 314 Ga. App. 678725 S.E.2d 810 (2012).*

Permalink 08:44:29 am, by fourth, 916 words, 801 views   English (US)
Categories: General

W.D.N.Y.: No apparent authority to consent to computer search without password

A parent who does not know the child’s computer password doesn’t have apparent authority to consent to a search of the computer; rejecting United States v. Andrus, 483 F.3d 711 (10th Cir. 2007), as illogical and unwarranted. United States v. Griswold, 2011 U.S. Dist. LEXIS 153943 (W.D. N.Y. June 2, 2011) (just now on Lexis):

The government does not argue that the Second Circuit has yet adopted the Andrus holding on apparent authority as to password protected computers and the reasoning behind the Andrus decision has been questioned by both a leading Fourth Amendment scholar and several law review student commentators. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(g) at 180 (4th ed. 2004, 2010-11 Supplement) (“Remarkably, the majority in Andrus, on these facts, upheld the search on an apparent authority basis.”); David D. Thomas, Note, Dangerously Sidestepping the Fourth Amendment: How Courts Are Allowing Third-Party Consent To Bypass Warrants for Searching Password-Protected Computers, 57 Clev. St. L. Rev. 279, 304-05 (2009) (It is constitutionally wrong to “allow police officers to skate around the Fourth Amendment by intentionally avoiding asking questions of third parties while obtaining consent, as well as allowing them to ignore password “locks” on computers that, as shown, courts have held to be analogous to locks on physical items.”); Michael J. Ticcioni, Comment, United States v. Andrus: Does the Apparent Authority Doctrine Allow Circumvention of Fourth Amendment Protection in the Warrantless Search of a Password-Protected Computer, 43 New Eng. L. Rev. 339, 355 (Winter 2009) (“The Tenth Circuit erred in its holding that law enforcement agents were reasonable in relying on the apparent authority of a ninety-one year old man to consent to a search of his son’s password-protected computer.”); Michael Smith, Survey, The Fourth Amendment, Password-Protected Computer Files and Third Party Consent Searches: The Tenth Circuit Broadens the Scope of Warrantless Searches, 85 Denv. U. L. Rev 701, 723 (2008) (“The Andrus rule essentially does three things: first, it removes the requirement for a third party consenter to have a key to a locked container; second, it replaces the key requirement with a government actor’s reasonable belief that there is no need for a key; and third, it allows the use of technology to bypass a key (or password) without first determining whether the container (or computer) is locked.”); Noah Stacy, Comments and Casenotes, Apparent Third Party Authority and Computers: Ignorance of the Lock is No Excuse, 76 U. Cin. L. Rev. 1431 (Summer 2008) (“The court’s holding sets a dangerous precedent under which law enforcement may evade the Fourth Amendment requirement of either a warrant or valid consent by claiming ignorance of any password protection and relying upon the apparent authority of a third party.”); Sarah M. Knight, Casenote, United States v. Andrus: Password Protect Your Roommate, Not Your Computer, 26 J. Marshall J. Computer & Info. L. 183, 184 (Fall 2008) (“As a consequence of this holding, third-parties can consent to searches beyond their authority, and individuals’ efforts to secure their data are rendered useless.”); John-Robert Skrabanek, Note, Apparent Authority in Computer Searches: Sidestepping the Fourth Amendment, 97 Ky. L.J. 721, 728-29 (2008-09) (“By allowing such searches, these courts have created the incentive for law enforcement not to ask questions.”). In addition, in responding to a petition for rehearing, the Tenth Circuit panel in Andrus issued a decision limiting its holding to the “narrow question” presented by the facts and was not controlling authority on facts not presented such as a situation where “law enforcement confronts password protection or user profiles on home computers.” United States v. Andrus, 499 F.3d 1162 (10th Cir. 2007) (rehearing denied).

But aside from doubts as to its constitutional logic, the facts in Andrus are distinguishable in an important way from the search of Griswold’s laptop. In Andrus the court specifically relied on the fact that when the officers began opening files on the computer they were not aware (and did not inquire about) whether the computer was locked or password protected. “Even if [the defendant’s] computer was protected with a user name and password, there is no indication in the record that the officers knew or had reason to believe such protections were in place.” 483 F.3d at 721. Here, however, the proof is the opposite. Investigator Becker testified that before commencing the search he noted that “[t]he laptop was on and it showed a screen and it said Bryan on the screen and it said locked.” (Tr. at p. 67) (emphasis added). Instead of inquiring further about the fact that the computer was locked, Becker testified he then shut down the computer, inserted his special forensic software disk, booted up the computer, and then was able to “browse the hard drive without a password.” (Tr. at p. 67). The need for a password to enter an otherwise locked computer, known to Investigator Becker prior to opening any files and commencing his search, clearly indicated that Griswold had taken steps to protect his privacy and exclude others from looking at files on his laptop computer. At that point, without more information, it was unreasonable for the Investigators to assume that Mrs. Williamee had actual authority to consent to the search of her son’s laptop.

In sum, based on the totality of circumstances present here, I find that the government has failed to meet its burden of demonstrating that it was objectively reasonable for the Investigators to believe that Mrs. Williamee had the authority to consent to a search of a password protected laptop computer belonging to her eighteen year old son and retrieved from her son’s bedroom.

03/10/12

Permalink 04:20:05 pm, by fourth, 99 words, 660 views   English (US)
Categories: General

NYT: "Police Officer Guilty of Falsifying Information" for SWs

NYT: Police Officer Guilty of Falsifying Information by Russ Buettner:

A New York City police officer was convicted on Thursday of lying under oath and filing false information to obtain a search warrant, the second conviction in what prosecutors described as a scheme to cover up illegal searches of vehicles.

The officer, Michael Carsey, 31, was acquitted in September of other charges. His prior supervisor, William Eiseman, a former sergeant, pleaded guilty in June to performing illegal searches of cars and an apartment of people he had stopped, and then lying in court about why he had performed the searches.

Permalink 02:23:20 pm, by fourth, 173 words, 407 views   English (US)
Categories: General

D.Ariz.: Defendant didn't show stop was under enjoined part of AZ SB 1070

The stop was justified and the questioning not so prolonged that the stop was unreasonably extended. The officers were not acting pursuant to SB 1070 or the part enjoined in United States v. Arizona, 641 F.3d 339 (9th Cir. 2011). United States v. Paramo-Villasana, 2012 U.S. Dist. LEXIS 31075 (D. Ariz. March 8, 2012).*

Defendant’s broad attack on a long affidavit based on wiretaps and investigation for lack of a substantial basis for finding probable cause failed. There was such a basis and it was not stale. United States v. Bussell, 2011 U.S. Dist. LEXIS 153965 (E.D. Tenn. December 16, 2011).*

Plaintiffs’ complaint that the police could not come to their house after they called for the police after a prowler call and then attempted to terminate the encounter didn’t state a claim. Plaintiff was ordered to produce his gun because he was a felon. That, too, didn’t state a claim. Plaintiffs were also sanctioned attorney’s fees but didn’t properly appeal that order. Smith v. Bd. of County Comm'rs for Chaves, 468 Fed. Appx. 843 (10th Cir. 2012) (unpublished).*

Permalink 10:27:18 am, by fourth, 122 words, 409 views   English (US)
Categories: General

Hartford Courant: "Feel Like You're Being Watched? It's Because You Are"

Hartford Courant: Feel Like You're Being Watched? It's Because You Are by David McGuire:

Imagine a government that can track everyone, all the time, with license plate scanners, cellphone signals and networks of cameras mounted on buildings, traffic lights — even flying drones.

You don't have to imagine. Law enforcement agencies in the United States already use these technologies and are starting to collect, indiscriminately and on a massive scale, data on the movements and associations of innocent Americans. It's happening everywhere, including Connecticut.

As the surveillance state expands, it is rapidly developing the capacity to expose your whole life, the way an airport scanner exposes your body. The damage to privacy and constitutional protections is incalculable. The potential for abuse is staggering.

Permalink 10:13:58 am, by fourth, 306 words, 437 views   English (US)
Categories: General

D.Del.: Police arrival and defendant's response not police-created exigency

Arrival of the police at defendant’s house led to likely destruction of evidence, and that was exigency for an entry by the police. United States v. Boney, 2012 U.S. Dist. LEXIS 30947 (D. Del. March 8, 2012)*:

31. Having found probable cause, the issue becomes whether the record establishes that exigent circumstances were present to support the warrantless, forcible entry into the residence. In finding that exigent circumstances warranted the entry of the residence, the court recognizes that the events unfolded very rapidly, increasing an already precarious undercover investigation. This fluid chain of events began when Hughes surmised that Gonzalez had discovered the police presence and was warning the people inside the house, ostensibly, to destroy evidence and/or arm themselves. The decision to arrest Gonzalez further heightened the danger through the noise and attention drawn to the area. In fact, defendant averred that the sounds of screeching tires drew him to the window to open the curtains and that he saw people running toward the residence. During those split seconds that the curtains were open, Collins, at very close proximity, observed an individual place something in the couch before the curtains were quickly closed. Defendant's own affidavit corroborates the observation. Further, while standing in front of the residence, Hughes heard loud noises and movement coming from inside. With officers stationed in vulnerable positions, Hughes made the decision to forcibly enter the residence to protect themselves and prevent the destruction of evidence.

32. The record does not support defendant's contention that officers created the exigency. Rather, the quickly unfolding events satisfactorily demonstrate that officers acted reasonably. There was nothing of record to suggest that officers' conduct caused or manipulated the events to create the need to forcibly enter the residence.

Then what is a police created exigency? The police just show up, and exigency is a self-fulfilling prophecy in Delaware?

Permalink 10:00:50 am, by fourth, 153 words, 365 views   English (US)
Categories: General

OH9: Inventory policy needs to cover container within a container

Inventory law requires that there be a standardized policy which need not be in writing. The policy has to include inventorying containers within containers, and this one doesn’t, so that part would be invalid, if it applied here. State v. Goss, 2012 Ohio 857, 2012 Ohio App. LEXIS 747 (9th Dist. March 5, 2012).

Defendant’s MySpace page came into evidence, and he only challenged it as a search on appeal, for which he cited no law. That argument was waived. State v. Yates, 2012 Ohio 919, 2012 Ohio App. LEXIS 809 (8th Dist. March 8, 2012).*

Search claim not raised in original case procedurally barred in § 2255. Grose v. United States, 2011 U.S. Dist. LEXIS 153875 (S.D. W.Va. December 19, 2011).*

Defendant conceded his traffic stop was lawful, and that led to a plain view of a gun. Since defendant was known to be a felon, that was probable cause for an arrest. United States v. Chivers, 2012 U.S. Dist. LEXIS 30123 (W.D. Mo. February 10, 2012).*

Permalink 09:32:36 am, by fourth, 245 words, 566 views   English (US)
Categories: General

D.Mass.: SW for defendant at house did not permit search anywhere

A search warrant that named defendant at his house did not permit a general search of defendant wherever he was found; a frisk yes. United States v. Andrews, 847 F. Supp. 2d 236 (D. Mass. 2012):

I find that the warrant in this case did not permit a general search of the defendant away from the premises, 452 Kempton Street, although the pat-frisk of him was reasonable. The Massachusetts Supreme Judicial Court decision in Commonwealth v. Santiago, 410 Mass. 737, 741-742 (1991), and Professor LaFave indicate that, in the context of the language in the search warrant in this case, the officers were authorized by the warrant to search Andrews only at 452 Kempton Street. See 2 LaFave, Search and Seizure, §4.9(a) ("Sometimes the search warrant which is being executed will describe not only certain premises but also a person. There is no inherent defect in a single warrant which authorizes the search of a place and also a person, and thus a search of the named person when he is found at the place will be a valid search under the warrant.").

The warrant was for contraband, not for mere evidence of a crime. Andrews was a felon and known to be a felon. It was a federal crime for him to possess a gun. See 18 U.S.C. §922(g). In addition, he did not have an FID card. See M.G.L. c. 140, §129C. The search for guns at 452 Kempton Street was a search for contraband in the circumstances of this case.

Permalink 12:02:49 am, by fourth, 207 words, 428 views   English (US)
Categories: General

LA3: Anonymous tip of man with gun led police to observe defendant move a rifle from one car to another; this wasn't RS

The police got an anonymous and unverifiable tip that a suspicious man had a gun in a car. Finally, defendant’s car is stopped parked, and officers see the defendant move a rifle from the trunk of his car to another. This was not reasonable suspicion. Numerous police officers arrived and defendant and others were held at gunpoint, on their knees, and handcuffed. Defendant was Mirandized and incriminated himself. There was no break in the causal chain for the statement. State v. Charpentier, 86 So. 3d 86 (La. App. 3d Cir. 2012), Decided, Writ granted by, Reversed by State v. Charpentier, 85 So. 3d 129, 2012 La. LEXIS 1017 (La., Apr. 4, 2012).

Dispatch told the officer that there was an active warrant on defendant, and the officer arrested him on the warrant and searched his person. Herring governs, and the good faith exception applies. State v. Brock, 91 So. 3d 1003 (La. App. 2d Cir. 2012).

Defendant had no expectation of privacy in his clothes seized from him at the jail on his arrest for a sex offense. The day after his arrest, the clothes went to forensics. What was taken from them was of such limited value in the case, it didn’t matter anyway. People v Woodard, 93 A.D.3d 944, 939 N.Y.S.2d 648 (3d Dept. 2012).

03/09/12

Permalink 09:13:47 am, by fourth, 244 words, 490 views   English (US)
Categories: General

AR: Bad nighttime search purpose saved by GFE

In a nighttime search case, the safety of children on the premises with a meth lab could be considered by the police and courts in issuing a nighttime search warrant. While all the prior case law deals with officer safety and a nighttime search, here it needed to mean that the children were generally at risk and the warrant happened to be sought at nighttime. That is not a valid reason for a nighttime search warrant. However, the officers were acting in good faith, and this nighttime search would not be suppressed. [Presumably the next one would? The dissenters seem to think not.] State v. Tyson, 2012 Ark. 107, 388 S.W.3d 1 (2012) (4-3):

Additionally, as evidenced by this split opinion, this court cannot unanimously agree in the exact interpretation of the language in Rule 13.2(c)(iii). Therefore, we cannot hold that an officer should have known that the threat of immediate harm to the children inside a trailer with an active methamphetamine lab was not the type of reasonable cause covered by Rule 13.2(c)(iii) to execute the search warrant in hand that had been considered and signed by a judge. Accordingly, we hold that the Leon good-faith exception applies under these circumstances and that the circuit court erred in suppressing the evidence from the nighttime search and seizure.

One curious part of this case is the fact that Arkansas has a rule-made good faith exception that it did not even discuss. So why have it?

Permalink 08:46:30 am, by fourth, 126 words, 555 views   English (US)
Categories: General

GA: Reckless driving doesn't support search incident of car

Driver’s arrest for reckless driving in a shopping mall parking lot did not support a search incident of the passenger compartment. Canino v. State, 314 Ga. App. 633, 725 S.E.2d 782 (2012).

A controlled buy was probable cause for a search warrant that produced more drugs; § 1983 case fails on the merits. Abreu v. Romero, 466 Fed. Appx. 24 (2d Cir. 2012) (unpublished).*

Officers went to defendant’s place for a knock-and-talk and could smell marijuana coming from around the door. One looked through a gap between the blinds and the window frame. Even if this look was excluded from the application, there would still be probable cause. Also, defendant saw the officers and fled the premises. That added to the probable cause. United States v. Newton, 463 Fed. Appx. 462 (5th Cir. 2012) (unpublished).*

Permalink 08:38:58 am, by fourth, 393 words, 453 views   English (US)
Categories: General

D.Kan.: Defendant's wife had full access to consent to search of defendant's computer

Based on representations from defendant’s wife and all the police officers knew, she had apparent authority to consent to a search of what they believed was the family computer. It was not locked with a password, and she had full access to it. The after-acquired facts were not enough to undermine what they knew at the time. United States v. Schuler, 2012 U.S. Dist. LEXIS 30512 (D. Kan. March 8, 2012):

The court heard the testimony of Mrs. Schuler and Officer Crawford. The court also heard the testimony of defendant. The court has reviewed the parties' briefs and the applicable law. The court does not believe that Officer Crawford was presented with an ambiguous situation here, nor was he required to make further inquiry. Mrs. Schuler had retrieved her husband's laptop from their home, had it in her possession, and provided it to officers–on and unlocked–explaining that she believed it was used to write the letters and/or that it contained the letters, although she was not able to find them on it. The computer was in her care, custody, and control when she provided it to officers and consented to their search of it.

It is true that police only later learned more facts that would either support or undermine Mrs. Schuler's authority to consent to the search, such as where the laptop was kept; whether Mrs. Schumer had previously been provided a password (or whether any password was actually required); and whether she occasionally used the laptop. However, the critical inquiry is what police knew at the time consent was given. Sanchez, 608 F.3d at 689, n.1 (noting that reasonableness of officer's belief that a third party has authority to consent is an objective inquiry, "based on the 'facts available to the officer at the moment,'" quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)); United States v. Andrus, 483 F.3d 711, 722 (10th Cir. 2007) (noting that "[a]ny after-acquired factual knowledge that 'might undermine the initial reasonable conclusion of third-party apparent authority [is] generally immaterial,'" (quotation omitted)). The court need not resolve contradictions in the hearing testimony because these additional facts are not relevant to the inquiry. The court agrees with the government that, at the time and under the circumstances in which Mrs. Schuler gave consent to search, it was reasonable for Officer Crawford to believe that she had authority to do so.

Permalink 08:05:11 am, by fourth, 372 words, 409 views   English (US)
Categories: General

N.D.Ga.: Potential IAC rejected as "good cause" to reopen waived suppression motion

Former defense counsel waived the suppression motion and hearing on the ground that it was done by private action. Second successor counsel wants to raise the issue anew on the eve of trial, and it is denied. United States v. Onyekaba, 2011 U.S. Dist. LEXIS 153919 (N.D. Ga. October 21, 2011). Even the “good cause” claim in Rule 12(e) that former defense counsel would be ineffective for waiving wasn’t good enough, and led to footnote 8:

8 To the extent defendant is arguing ineffective assistance of counsel as "good cause" to "hear these motions now, rather than in a future 28 U.S.C. § 2255 proceeding," [Doc. 148 at 4], this argument is misplaced. Indeed, ineffective assistance claims raised for the purpose of showing "good cause" under Rule 12(e) are "not ripe for review" and "are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the issue." United States v. Jones, No. 3:07-CR-162, 2009 WL 1471807, at *4 (E.D. Tenn. May 27, 2009) (rejecting defendant's argument that he has shown good cause to excuse the waiver due to the alleged ineffective assistance of his prior attorney); see also United States v. Lopez-Medina, 461 F.3d 724, 738-39 (6th Cir. 2006) (finding defendant's "ineffective assistance claim is not ripe for review, and [defendant] therefore, cannot, at this point, demonstrate 'good cause' to excuse his waiver under Rule 12(e)").

Reading between the lines in this case, I’d think that the defendant was insisting on raising this search issue despite the court’s summary which shows it woefully inadequate. Defendant was arrested for shoplifting in a Macy’s store by store security. On him were three credit cards that didn’t belong to him. They called police who stopped the car he was in for a traffic stop, and the codefendants were arrested. The full details aren’t given, but it appears that something came from the traffic stop and there’s at least the appearance that the vehicle was not his; hence a standing problem. Therefore, one might conclude that this was the USMJ’s way of brushing off a motion to suppress that was doomed anyway. We all know clients know more about the Fourth Amendment from their friends than from us.

Permalink 12:01:00 am, by fourth, 235 words, 535 views   English (US)
Categories: General

ars technica: "Obama admin wants warrantless access to cell phone location data"

ars technica: Obama admin wants warrantless access to cell phone location data by Timothy B. Lee:

A Maryland court last week ruled that the government does not need a warrant to force a cell phone provider to disclose more than six months of data on the movements of one of its customers. Two defendants had been accused of armed robbery, and a key piece of evidence against them was data about the movements of the pair's cell phones. The defendants had sought to suppress this location evidence because the government did not get a warrant before seeking the data from network providers. But last Thursday, Judge Richard D. Bennett ruled that a warrant is not required to obtain cell-site location records (CSLR) from a wireless carrier.

Courts all over the country have been wrestling with this question, and the government has been on something of a winning streak. While one court ruled last year that such information requests violate the Fourth Amendment, most others have reached the opposite conclusion.

The Obama administration laid out its position in a legal brief last month, arguing that customers have "no privacy interest" in CSLR held by a network provider. Under a legal principle known as the "third-party doctrine," information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection. The government contends that this rule applies to cell phone location data collected by a network provider.

03/08/12

Permalink 03:32:19 pm, by fourth, 390 words, 419 views   English (US)
Categories: General

Volokh: Concurring Opinions in Jones Lead FBI To Turn Off 3,000 GPS Devices, Considered a “Sea Change” Within the Bureau

Volokh: Concurring Opinions in Jones Lead FBI To Turn Off 3,000 GPS Devices, Considered a “Sea Change” Within the Bureau by Orin Kerr:

Earlier today, I sent off to law reviews a new draft article on the implications of the mosaic theory of the Fourth Amendment introduced in the GPS case, United States v. Jones — and specifically the majority opinion for the DC Circuit (under the name United States v. Maynard ) and the concurring opinions of Justice Alito and Sotomayor. A recent speech by the general counsel of the FBI suggests that I’m not the only one who thinks that the mosaic theory is a really big deal — and a lot more complicated than many realize:

A Supreme Court decision has caused a “sea change” in law enforcement, prompting the FBI to turn off nearly 3,000 Global Positioning System (GPS) devices used to track suspects, according to the agency’s general counsel.

When the decision-U.S. v. Jones-was released at the end of January, agents were ordered to stop using GPS devices immediately and told to await guidance on retrieving the devices, FBI general counsel Andrew Weissmann said in a recent talk at a University of San Francisco conference. Weissmann said the court’s ruling lacked clarity and the agency needs new guidance or it risks having cases overturned . . .

Weissmann said it wasn’t Scalia’s majority opinion that caused such turmoil in the bureau, but a concurring opinion written by Justice Samuel Alito. Alito, whose opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, agreed with the Court’s conclusion in the case but wrote separately because his legal reasoning differed from the majority.

Alito focused not on the attachment of the device, but the fact that law enforcement monitored Jones for about a month. Alito said “the use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” . . .

In his talk at a University of San Francisco Law Review Symposium, Weissmann suggested that Alito’s concurrence means that several members of the court are concerned with long-term surveillance by technologies beyond GPS systems and that the FBI needs new guidance in order to ensure that evidence does not get thrown out.

“I just can’t stress enough,” Weissmann said, “what a sea change that is perceived to be within the department.”

. . .

. . .

Permalink 07:12:26 am, by fourth, 212 words, 360 views   English (US)
Categories: General

LA4: Defendant did not show that arrest warrant was not valid under Herring

Defendant had a driver’s license in his possession, but he was arrested for a suspended license, for which there were several possible reasons. It was never shown that there was not a valid warrant. If there was no valid warrant, Herring would apply. State v. Brock, 2012 La. App. LEXIS 248 (La. App. 2d Cir. March 7, 2012)*:

Based on the evidence presented, there was no showing that the arresting officers acted with reckless disregard of the constitutional requirements or were grossly negligent. Thus, the record supports the district court's finding that even if the warrant was not valid at the time, the deputies acted in an objectively reasonable manner in relying on the information of an active warrant to arrest the defendant. Consequently, as held in Herring, supra, the exclusionary rule is not applicable under such circumstances. Therefore, we cannot say the district court erred in denying the motion to suppress the evidence seized in the search incident to that arrest. The assignment of error lacks merit.

Officers suspected defendant for a robbery and surveilled his house after they got a line on where he lived. They saw him coming and going and then confronted him, and he produced a key and consented to the search. Nshaka v. State, 82 So. 3d 174 (Fla. 4th DCA 2012).*

Permalink 06:02:52 am, by fourth, 169 words, 576 views   English (US)
Categories: General

E.D.Mich.: Dog sniff at apartment door was PC for SW

Officers were let into an apartment building by tenants and the manager, and they did a dog sniff outside defendant’s apartment door. That was support for a search warrant. [This issue is pending in SCOTUS in Florida v. Jardines, 11-564 granted Jan. 6 (ScotusBlog), not yet calendared for argument, so not this Term.] United States v. Sample, 2012 U.S. Dist. LEXIS 29278 (E.D. Mich. March 6, 2012).

Co-occupant of hotel room who occupied it, had clothes there, and told police he had counterfeiting tools there had standing, and therefore could consent, despite the fact he didn’t sleep there the night before. United States v. Yates, 2012 U.S. Dist. LEXIS 29028 (D. R.I. March 6, 2012).

2255 ground that defense counsel didn’t file a motion to suppress was wrong; one was filed and heard. Schmitz v. United States, 2012 U.S. Dist. LEXIS 29274 (N.D. Ala. January 19, 2012).*

2255 is not a method to relitigate the search and seizure already denied on direct appeal. Kapordelis v. United States, 2011 U.S. Dist. LEXIS 153854 (N.D. Ga. December 12, 2011).*

Permalink 05:52:42 am, by fourth, 499 words, 483 views   English (US)
Categories: General

N.D.Cal.: Fire rendered apt uninhabitable and abandoned by operation of law, and, here, fact

A San Francisco apartment building was rendered uninhabitable from a fire, and occupants were locked out while clean up was going on. Defendant approached a construction worker and asked him to retrieve a gun from the motor compartment of a refrigerator, and that was reported to the police. The fire rendered the building de facto and de jure abandoned by operation of law, and the landlord could consent to the police entry. At the time, all personal belongings appeared to have been moved out of the apartment except for large pieces of furniture. United States v. Allen, 2012 U.S. Dist. LEXIS 28790 (N.D. Cal. March 5, 2012):

The first is that under California law, either party to a lease may terminate the lease if the premises are destroyed. Cal. Civ. Code § 1932(2) ("The hirer of a thing may terminate the hiring before the end of the term agreed upon: ... (2) When the greater part of the thing hired, or that part which was and which the letter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the want of ordinary care of the hirer."); Cal. Civ. Code § 1933(4) ("The hiring of a thing terminates: ... (4) By the destruction of the thing hired."). Based on this principle of California landlord-tenant law, coupled with the representations the property manager made to the SFPD dispatcher about the apartment being vacant, see Scafani Decl. ¶ 3, it was objectively reasonable for Officer Scafani to believe that Ms. Wilson's lease had been terminated as a result of the fire and, thus, that the property manager had the authority to consent to a search of Ms. Wilson's apartment. This belief was an objectively reasonable mistake of fact, not law, and if the mistaken fact were true, it would have conferred authority to consent on the property manager.

The second reason it was objectively reasonable for Officer Scafani to believe the property manager had authority to consent to a search is the condition of Ms. Wilson's apartment and the building as a whole at the time of the search. There is no definitive list of facts that may lead to a reasonable belief of abandonment, but in Sledge the Ninth Circuit found apparent authority where the tenants had given their landlord thirty days notice of their intent to vacate, had removed all personal belongings from the apartment, and the apartment was "empty of furnishings not belonging to the landlord" at the time that the landlord consented to the police search. 650 F.2d at 1076, 1082. Similarly, in determining whether eviction had actually taken place, the Ninth Circuit in Young considered whether the defendant's personal belongings had been removed from his hotel room and placed into storage and whether his room key worked. 573 F.3d at 717.

Here, as in Sledge, it was objectively reasonable to believe that the apartment had been vacated. Most of the personal belongings inside had been removed from the apartment and placed into storage. ...

03/07/12

Permalink 09:19:31 am, by fourth, 382 words, 841 views   English (US)
Categories: General

C.D.Cal.: Warrant was vague as to a search: “further analysis”

Warrant was vague as to a search for “further analysis” of the digital media, so the subsequent searches were suppressed. The first searches are enough for the case to proceed. United States v. Salceda, 2012 U.S. Dist. LEXIS 28211 (C.D. Cal. February 27, 2012):

The government conducted searches of defendant's digital media in September and October 2011 based on the following language of the original search warrant:

If, after conducting such an initial search [within 60 days from the date of the execution of the search warrant], the case agents determine that a digital device is an item to be seized or contains any data falling within the list of items to be seized pursuant to this warrant, the government will retain the digital device for further analysis; otherwise, the government will return the digital device.

. . .

The Court finds that any evidence discovered during the September and October 2011 forensic searches is inadmissible. The original warrant's "further analysis" language is ambiguous as to whether it permits the government to analyze defendant's digital devices for additional evidence of contraband, or whether it merely permits additional analysis of previously discovered contraband. Given this ambiguity, suppression of the evidence is appropriate. See Transfiguracion, 442 F.3d at 1228 (construing ambiguities in plea agreements in favor of a defendant because the government, as drafter of the agreement, bears the "responsibility for any lack of clarity") (internal quotation marks and citation omitted); Wilhelm, 425 F.3d at 463 (finding fourth amendment violation because officer "recognized the warrant as ambiguous before the execution of the warrant, but failed to immediately stop execution and seek the necessary clarification of a warrant in order to make certain the warrant particularly described the place to be searched. ..."). The Court's decision is informed by the fact that the government sought—and was denied—a new warrant from Judge Zarefsky, and thereafter sought ex parte relief from this Court before conducting the subsequent searches. At the very least, the government's conduct demonstrates its acknowledgment that the "further analysis" language is ambiguous. In denying the government's ex parte application, the Court directed the government to seek clarification from the issuing judge to cure any ambiguities. Because the government chose to proceed with the searches without clarification or without securing a new search warrant, that evidence must be suppressed. See Wilhelm, 425 F.3d at 463.

Permalink 09:01:46 am, by fourth, 396 words, 345 views   English (US)
Categories: General

OK: Arrest of murder suspect on traffic warrant not pretextual

Arrest of capital murder suspect on an outstanding traffic warrant was valid, and pretext was not a valid argument. Johnson v. State, 2012 OK CR 5, 272 P.3d 720 (2012):

[*P12] Appellant first asserts that his arrest on outstanding warrants was illegal because it was solely a pretext to hold him for questioning about the homicides. However, if police have a valid right to arrest an individual for one crime, it does not matter if their subjective intent is in reality to collect information concerning another crime. Bland v. State, 2000 OK CR 11, ¶ 48, 4 P.3d 702, 718. "Whether a Fourth Amendment violation has occurred, 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, ... and not on the officer's actual state of mind at the time the challenged action was taken.'" Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985) quoting Scott v. United States, 436 U.S. 128, 136-39 n. 13, 98 S.Ct. 1717, 1722, 1724 n. 13, 56 L.Ed.2d 168 (1978). See also Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89, 98 (1996) (Supreme Court reiterated its position that it was unwilling to entertain Fourth Amendment challenges based upon the actual motivations of individual officers); Phillips v. State, 1999 OK CR 38, ¶ 41, 989 P.2d 1017, 1031. If the police action could have been taken against an individual "even absent the 'underlying intent or motivation,' there is no conduct which ought to have been deterred and thus no reason to bring the Fourth Amendment exclusionary rule into play for purposes of deterrence." See 1 Wayne R. LaFave, Search and Seizure § 1.4(e) (4th ed. 2004). In other words, if the alleged pretextual arrest could have taken place absent police suspicion of Appellant's involvement in another crime, then the arrest is lawful. In the present case, Appellant was arrested on outstanding warrants which were issued before the murders occurred. The officers legally executed the valid arrest warrants and their subjective intent does not make this otherwise lawful conduct illegal or unconstitutional.

I wouldn't have raised this argument, but it's a capital case and defense counsel has to pursue issues that seem weak anyway. At least in my state we can raise it in trial court and not bother to argue it on appeal, but, by rule and statute, the issue is deemed decided on the merits for post-conviction purposes without cluttering the appeal with what seems to be a frivolous issue.

Permalink 08:39:54 am, by fourth, 259 words, 386 views   English (US)
Categories: General

CA9: Tough call on consent not being voluntary

Defendant was free to go when she consented to a search of her purse, despite her language difficulties and fact that she was outnumbered by the police. They “asked” “rather than commaned[ed].” United States v. Nieto-Rojas, 470 Fed. Appx. 674 (9th Cir. 2012)*:

The district court held that Appellant was not in custody when her purse was searched, reasoning that the officers were deferential and protective rather than commanding, that they asked rather than demanded to search her purse, that they did not physically control her at any time or display their weapons, and that they told her multiple times that she was free to go when her ride arrived. Appellant argues she was in custody because there were three officers on the scene, she was cited for traffic violations, English was not her native language, she watched the officers conduct an inventory search of the car, her passenger was searched in front of her, and she was told that she could leave when her ride came but she was not told she could leave before. We agree with the district court that Appellant was not in custody. Appellant was told several times she would be free to leave when her ride came. She did not ask to leave before her ride came. It was not unreasonable for the officer to stay with Appellant and her passengers while she waited for a ride, given the dangers of the busy highway.

If the district court had found consent involuntary, likely that would have been affirmed on appeal, given the standard of review.

Permalink 07:59:49 am, by fourth, 344 words, 456 views   English (US)
Categories: General

D.C.Cir. & CA9: Two cases on Heck bars

In what is a footnote to the GPS case, Jones’s claim previously barred by Heck can conceivably be resurrected by F.R.C.P. 60(b)(5), not by mandamus, but qualified immunity may be a problem [it will]. In re Jones, 399 U.S. App. D.C. 300, 670 F.3d 265 (2012)*:

Two years after the district court dismissed Jones’ civil case¸ this Court reversed Jones’ conviction. See United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). The Supreme Court recently affirmed that ruling. See United States v. Jones, 132 S. Ct. 945 (2012). Because Jones can now show that the dismissal of his civil suit was “based on an earlier judgment that has been reversed or vacated,” he might consider filing a motion in district court under Fed. R. Civ. P. 60(b)(5). See Robinson v. Connell, No. 9:05-CV-1428 (GLS/ATB), 2010 WL 6268444, at *2 (N.D.N.Y. Sept. 8, 2010) (magistrate report and recommendation) (Second Circuit remanded civil claim, which had been dismissed under Heck, to district court to consider motion under Rule 60(b)(5) after criminal sentence was allegedly vacated), on remand from No. 08-1992-pr (2d Cir. Aug. 25, 2009). In the alternative, Jones might consider re-filing his complaint. Although Jones expresses concern that re-filing might raise “statute of limitations issues,” Pet. Br. 13–14 n.3, the Supreme Court has implied that, even if Jones’ claims had accrued before the district court dismissed them under Heck, the statutes of limitations should be tolled as long as the bar of Heck prevented Jones’ suit from going forward. See Wallace v. Kato, 549 U.S. 384, 395 n.4 (2007) (“Had petitioner filed suit upon his arrest and had his suit then been dismissed under Heck, the statute of limitations, absent tolling, would have run by the time he obtained reversal of his conviction. If under those circumstances he were not allowed to refile his suit, Heck would produce immunity from § 1983 liability, a result surely not intended.”).

Plaintiff’s claims for the wrongful towing of his car after his arrest were shown to be Heck barred. Dismissals for Heck bars are without prejudice. Rowell v. Ewing Bros. Towing Co., 471 Fed. Appx. 597 (9th Cir. 2012).*

Permalink 07:25:15 am, by fourth, 167 words, 395 views   English (US)
Categories: General

W.D.Okla.: Standard for a stop is RS, not PBRD

Defendant’s stop was justified for reasonable suspicion, and that is all the standard is; not proof beyond a reasonable doubt. United States v. Turrentine, 2012 U.S. Dist. LEXIS 28511 (W.D. Okla. March 5, 2012)*:

While the defendant's evidence might well be sufficient to raise a reasonable doubt as to whether defendant committed the traffic violation, that is not the standard here. For present purposes, the question is whether the government has established by a preponderance of the evidence that the violation occurred, hence justifying the trooper's action. The court concludes it has. Trooper Painter testified that he observed the violation and the court found his testimony to be generally credible. Defendant's suggestion that the trooper's smile shown on the video is inconsistent with observing a traffic violation is speculative and ultimately unpersuasive.

Changing information from the CI served to enhance his credibility. The CI was believable and supported the stop, as did only the information that the police knew. United States v. Pete, 463 Fed. Appx. 113 (3d Cir. 2012) (unpublished).*

03/06/12

Permalink 09:54:09 am, by fourth, 185 words, 619 views   English (US)
Categories: General

Gizmodo: "Police Drone Crashes into Police"

Gizmodo: Police Drone Crashes into Police:

The Montgomery County (Texas) Sheriff's Office had a big day planned. After becoming the first department in the country with its own aerial drone ($300,000!), they were ready for a nice photo op. And then the drone crashed into a SWAT team.

. . .

Not only did the drone fail [at 18' altitude], and not only did it crash, it literally crashed into the police. It's no wonder we're not able to find a video of this spectacular publicity failure. Luckily, the SWAT boys were safe in their Bearcat.

This would be a fine one-off blooper story if it weren't for some upsetting implications. This is exactly why we have reason to raise multiple eyebrows at Congress, which wants to allow hundreds of similar drones to fly over US airspace. These drones are still a relatively young technology, relatively unproven, and relatively crash-prone. The odds of being hit by one are low, of course, but should a Texas-style UAV plummet ever happen in, say, a dense urban area, nobody would be laughing. Not all of us are driving around in Bearcats. [Examiner]

Permalink 08:25:11 am, by fourth, 227 words, 385 views   English (US)
Categories: General

KS: No REP in internet search history on borrowed computer

Defendant used a buddy’s work computer to do internet searches on “how to kill a baby, how to have a miscarriage, and how to find a missing person.” He was told before the search that the company could see it. The computer was password protected but the search history was available to IT. He was convicted of arranging the murder of a 14-year-old he impregnated. He had no reasonable expectation of privacy in the internet search history after the computer was turned over to the police after the murder. State v. Robinson, 293 Kan. 1002, 270 P.3d 1183 (2012). [The court did not have to go this far to show a lack of REP in the search history. It was somebody else's computer, and he assumed the risk it would be found and turned over to the police. That's all it had to say.]

An officer approached a van parked too long in a McDonald’s parking lot and he saw the occupants “moving frantically as if they were trying to hide something or retrieve something.” He yelled, “‘Show me your hands,’ and moved toward the front of the van; neither individual complied.” He pulled his gun, and ordered them from the vehicle and then searched for a weapon. This did not constitute an arrest, and was for officer safety. State v. Walker, 2012 Ohio 847, 2012 Ohio App. LEXIS 739 (2d Dist. March 2, 2012).*

Permalink 08:18:14 am, by fourth, 239 words, 528 views   English (US)
Categories: General

E.D.N.C.: Just being a little slow to respond to a command to put hands on wheel is not RS

The fact that defendant was a little slow in responding to an officer’s command to put his hands on the steering wheel does not justify a protective weapons search of the car. The officer first called him "reluctant," then qualified it. In addition, the government used every innocuous fact to attempt to show reasonable suspicion and came up short [damaging its credibility in the meantime; like a lawnmower and weedeater in the trunk must have meant the defendant was trading for drugs]. United States v. Wright, 856 F. Supp. 2d 736 (E.D. N.C. 2012), Adopted by, Motion denied by United States v. Wright, 2012 U.S. Dist. LEXIS 29440 (E.D.N.C., Mar. 3, 2012).*

Trash pulls and a records check of the resident showing a drug history was probable cause for issuance of a search warrant for drugs in the house. State v. Mooney, 2012 Ohio 852; 2012 Ohio App. LEXIS 745 (5th Dist. February 23, 2012).*

Police responded to a shooting call and asked for permission to look in defendant’s house to see if anyone was shot. Defendant let them in. The officer could see marijuana and scales in plain view in the kitchen and, through a floor heating vent, he saw marijuana in baggies. The officer removed the vent grill and pulled out what he could. Then he went to the basement to get the rest by removing the ductwork. All this was reasonable. State v. Smith, 2012 Ohio 845, 2012 Ohio App. LEXIS 737 (2d Dist. March 2, 2012).*

Permalink 04:45:40 am, by fourth, 216 words, 395 views   English (US)
Categories: General

CA6: CI's corroborated tip justified protective weapons search of car when stopped

Based on a CI’s tip, the details of which had panned out completely, as soon as defendant was stopped, the officer reached for the center console and found a gun where the CI said it would be. Also, there was cocaine there. Defendant was not secured at the time it happened, and it “cleanly” fit within the Michigan v. Long protective weapons search exception. United States v. Ware, 465 Fed. Appx. 487, 2012 FED App. 0244N (6th Cir. 2012) (unpublished).

It was a reasonable condition of supervised release in a child pornography case to submit to searches of any computers or devices which may access the internet. United States v. Grigsby, 469 Fed. Appx. 589 (9th Cir. 2012)*:

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

Permalink 04:34:54 am, by fourth, 358 words, 398 views   English (US)
Categories: General

E.D.Tex.: No standing to challenge search of mother's house where not a guest at time

Defendant had no standing to challenge the search of his mother’s and sister’s house. He lived elsewhere, but he only occasionally spent the night there; he didn’t on the day in question. He was there, but he fled when the police showed, and that was an abandonment of whatever expectation of privacy he had in the premises. United States v. Oliver, 2012 U.S. Dist. LEXIS 27701 (E.D. Tex. March 2, 2012):

The Court finds that Oliver has no expectation of privacy in the PR 2623 residence. The evidence shows that, at the time of the search, the residence was owned by his mother and sister, but not by him. Oliver lived in a home with his wife in Longview, Texas. Further, Oliver, at most, only sporadically slept at the residence. Additionally, there is no evidence before the Court that on May 1, 2009, when officers executed the search, Oliver was present in the home when the search was conducted. The Government alleges that Oliver was there and fled immediately before the search began. Thus, if Oliver was not present in the home during the search, Oliver cannot claim an expectation of privacy. Further, if as the Government contends, Oliver was present in his mother and sister's home at the time of the search but fled immediately before the search began, then he abandoned any expectation of privacy he had in the home upon fleeing the premises.

Claimant’s vehicle was stopped for crossing the fog line three times in a mile while being followed. Officers noticed that the truck appeared to be modified while following it. After a dog alert within minutes of the stop, the vehicle was towed to a nearby garage, and they drilled a hole for a fiberoptic scope that revealed plastic wrapped packages. The mechanic figured out how to activate the electrically operated truck bed revealing the cash. After the cash was found not to be drugs, the claimant and his passenger were released six hours after the stop. The stop and search were legal. United States v. One Million, Thirty-two Thousand, Nine Hundred Eighty Dollars in U.S. Currency ($1,032,980.00), 855 F. Supp. 2d 678 (N.D. Ohio 2012).*

03/05/12

Permalink 09:15:42 am, by fourth, 51 words, 523 views   English (US)
Categories: General

Volokh: "Are Historical Cell-Site Data Protected Under the Fourth Amendment After United States v. Jones?"

Volokh: Are Historical Cell-Site Data Protected Under the Fourth Amendment After United States v. Jones? by Orin Kerr:

No, concludes Judge Bennett in United States v. Graham (District of Maryland, March 1, 2012). Judge Bennett concludes that historical cell-site records are not protected because they fall under the third-party doctrine: ...

[posted here, too].

Permalink 12:54:34 am, by fourth, 108 words, 512 views   English (US)
Categories: General

ID again declines to adopt GFE under state constitution

“This is an appeal asking that we overrule State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992), and hold that the Leon good-faith exception to the exclusionary rule applies to violations of Article I, section 17, of the Idaho Constitution. Because the State has not shown any ground for doing so, we decline to overrule that case and affirm the order of the district court suppressing evidence obtained incident to an arrest pursuant to a wrongly issued warrant.” Considering state case law, the Idaho Supreme Court adopted the exclusionary rule in State v Arregui, 44 Idaho 43, 254 P. 788 (1927), and the good faith exception was not adopted in Guzman. State v. Koivu, 152 Idaho 511, 272 P.3d 483 (2012).

Permalink 12:43:47 am, by fourth, 245 words, 388 views   English (US)
Categories: General

KS: Officer's actions in delaying search for "officer safety" belied that justification

Officers responded to an alleged burglary call, but they found that a tenant was removing stuff, and there was no burglary. Defendant asked to get a cigarette, and the officer said no because of “officer safety,” but she reached into her purse and pulled out a cigarette pack which the officer took away from her and laid it down. After awhile the officer looked in the cigarette pack and found a glass pipe, so he then searched her purse. The search of the cigarette package could not be justified for officer safety which, the officer said, was based on his experience with prostitutes and drug addicts having sharp objects in there, which this case wasn’t. Also, his casual after-the-fact search of the cigarette package belied the “officer safety” rationale. Finally, the state’s failure to raise an expectation of privacy argument in the trial court is a waiver on appeal [not that it would have worked anyway]. State v. Johnson, 293 Kan. 959, 270 P.3d 1135 (2012).

Officers approached an already parked car, and they did not need reasonable suspicion to do that. When defendant got out of the car and reached for his pocket, officers were justified in a patdown because of information from an informant. State v. Ray, 2012 Ohio 840, 2012 Ohio App. LEXIS 733 (2d Dist. March 2, 2012).*

Plaintiff was “confined” when she was strip and body cavity searched, so the state one year limitations applied, and this suit was not timely. Bing v. Haywood, 283 Va. 381, 2012 Va. LEXIS 40 (March 2, 2012).*

Permalink 12:34:07 am, by fourth, 181 words, 444 views   English (US)
Categories: General

D.Guam: Actual authority to consent also supported by having key to back door, although front door key wouldn't work

There was actual authority to consent to a search by the consenter, although she did not have a working key to the front door, she did to the back. Alternatively, the court finds that it was reasonable for officers to believe in her apparent authority to consent. Finally, even if the information derived from that entry were excised from the application for the search warrant, there still would be probable cause for issuance. United States v. Taitano, 2012 U.S. Dist. LEXIS 27489 (D. Guam February 17, 2012).*

Defendant’s guilty plea waived his illegal search claim, so defense counsel was not shown to be ineffective for not challenging the search before the guilty plea. Schniepp v. State, 2012 Ark. 94, 2012 Ark. LEXIS 108 (March 1, 2012).*

Neither defendant had standing to challenge the search of the car: the passenger because he was a passenger and the driver showing no connection to having it with permission of the owner. They did have standing to challenge the stop, and there was cause for the stop for wandering within a lane. United States v. Perez-Guerrero, 2012 U.S. Dist. LEXIS 27365 (D. Kan. March 2, 2012).*

Permalink 12:23:44 am, by fourth, 145 words, 434 views   English (US)
Categories: General

CA4: A drug dog alert justifies a search of the trunk

A dog alert on a car justifies a search of the trunk. A new Fourth Amendment issue raised in a reply brief is waived. United States v. Greene, 468 Fed. Appx. 303 (4th Cir. 2012) (unpublished):

Greene's second argument — that the search of the trunk was outside the scope of a warrantless search — is likewise meritless. See Kelly, 592 F.3d at 589-90 ("The scope of a search pursuant to [the automobile] exception is as broad as a magistrate could authorize. Thus, once police have probable cause, they may search 'every part of the vehicle and its contents that may conceal the object of the search.'") (quoting United States v. Ross, 456 U.S. 798, 825 (1982) (citation omitted)).

Information from Medivac crew was sufficient to provide probable cause defendant was under the influence when he was taken to the hospital after a wreck. Crowe v. State, 314 Ga. App. 527, 724 S.E.2d 831 (2012).*

Permalink 12:13:23 am, by fourth, 122 words, 998 views   English (US)
Categories: General

C.D.Cal.: Stolen Wii had victim's Netflix account used; IP traced back was nexus for SW for defendant's house

A Wii stolen in a burglary had the victim’s Netflix account, and the police were able to track the Netflix use back to defendant’s IP address. That was sufficient nexus for a search warrant for the premises, and it also was not stale. United States v. Medel, 2012 U.S. Dist. LEXIS 27410 (C.D. Cal. February 29, 2012).*

The protective sweep here was legal. But, even if it wasn’t, the person consenting didn’t know about it, so the consent was not tainted by the sweep. United States v. Gomez-Rivero, 807 F. Supp. 2d 1134 (N.D. Ga. 2012).*

As a mere passenger, defendant had no standing to challenge the inventory search of the car. State v. Parker, 2012 Ohio 839, 2012 Ohio App. LEXIS 730 (2d Dist. March 2, 2012).*

Permalink 12:03:44 am, by fourth, 95 words, 574 views   English (US)
Categories: General

IA: Furtive movement when LEO appeared at window justified search for weapon

Officers saw a van parked in an industrial area around noon on Sunday, and they approached because that was unusual. Defendant would not roll down the window and reached under the seat, and that justified a protective search of where he was reaching. State v. Rose, 814 N.W.2d 622 (Iowa App. 2012).*

In this circuit the good faith exception is considered first, and the affidavit for the warrant is not so lacking in probable cause that the good faith exception would not apply. United States v. Oldaker, 2012 U.S. Dist. LEXIS 25788 (N.D. W.Va. February 16, 2012).*

03/04/12

Permalink 08:42:07 am, by fourth, 175 words, 479 views   English (US)
Categories: General

IA: Baggy of marijuana in the pocket was plain feel

The patdown was reasonable based on the strong smell of marijuana coming from defendant’s department. The feel of a baggy in the pocket was plain feel. State v. Banks, 814 N.W.2d 622 (Iowa App. 2012):

At the suppression hearing, Officer Younie testified he felt the crunch or crinkle of plastic in Banks's front pants pocket. Based on his experience he knew marijuana is routinely packaged in plastic baggies. He smelled the odor of burnt marijuana, and therefore, he opined the item in Banks's pocket was packaged marijuana. Officer Younie acknowledged that it was possible the baggie may have contained something other than marijuana, but as stated above, absolute certainty is not required. In addition, in his police report Officer Younie stated that he felt something in the pocket during the pat-down and that it felt like a plastic bag with a soft substance inside. We believe this evidence provided Officer Younie with probable cause to believe the item he felt in Banks's pocket was contraband, justifying his seizure of the item during the Terry pat-down.

Permalink 12:30:49 am, by fourth, 277 words, 512 views   English (US)
Categories: General

OH10: The possibility the dog might eat marijuana was not an exigent circumstance

Defendant was stopped for his license plate being out near his house, and a bag of marijuana was in plain view between his feet. Defendant asked if he could put his dog in the house, and the officer let him, and the officer could see a small quantity of marijuana and a grinder in the living room. There was no reason to believe anyone else was inside, and the entry for a protective sweep was unreasonable. State v. Alihassan, 2012 Ohio 825, 2012 Ohio App. LEXIS 718 (10th Dist. March 1, 2012):

[*P22] We disagree with the state's contentions. There was no evidence presented that the marijuana and grinder were in danger of destruction or removal. Although Leighty testified he knew there had been prior disturbance calls to the apartment regarding appellant and his girlfriend, he never said that he believed appellant's girlfriend lived at the apartment, and he admitted that people can have domestic disturbances when they do not live together. Leighty also admitted he heard no voices coming from inside the apartment, the television was not on, and there were no indications that a person was in the apartment. Although Leighty first testified that he heard no noises coming from inside the apartment, he later said he heard "noises" inside, and the noises were from an aquarium. Importantly, Leighty never testified that he believed the noises were made by people inside the apartment.

[*P23] With no evidence of any third parties present in the apartment, there was no risk of destruction of the evidence. Although, conceivably, the dog could have ingested the small amount of marijuana on the table, the grinder would not have been easily destroyed. ...

[I resisted the temptation.]

Permalink 12:23:04 am, by fourth, 476 words, 695 views   English (US)
Categories: General

OH8: Consent here was mere submission to authority

Defendant was stopped for having a headlight out and was given a warning. Immediately after he was told he was free to leave, the officer went into asking whether he had any drugs, firearms or knives on him. In the meantime, a second officer showed up to observe. The consent to search his person was a mere submission to authority at that point. State v. Dieckhoner, 2012 Ohio 805, 2012 Ohio App. LEXIS 699 (8th Dist. March 1, 2012):

[*P22] We find no legal distinction between Robinette and the case before this court. Just as the Ohio Supreme Court was in Robinette, we are also troubled by the timing of Comerford's immediate transition from giving Dieckhoner the warning for the improperly working headlight to questioning him about contraband and then requesting to search his person.

[*P23] Comerford gave Dieckhoner a verbal warning for the improperly working headlight and told Dieckhoner that "he was all set and to have a good night." As Dieckhoner turned to walk toward his car, Comerford then asked, "[b]y the way, do you have anything illegal; guns, knives, bombs, anything[?]" Unlike the facts in Robinette, there was no departmental or "drug interdiction policy" that required Comerford to question Dieckhoner about weapons or drugs. With the second officer standing five feet away, Dieckhoner denied having any contraband. Comerford immediately asked for consent to search him and Dieckhoner agreed.

[*P24] Comerford testified that he asks everyone he stops if they have any weapons, drugs, or guns on their person, and that he had no particular reason for asking Dieckhoner to search his person. In fact, Comerford testified that Dieckhoner was not acting suspicious in any way and that Dieckhoner was free to leave.

[*P25] Although Detective Leanza testified that Dieckhoner stated he consented to the search because he did not think Comerford would find the drugs in his pocket, the test for whether consent was voluntary depends on the totality of the circumstances at the time consent was given. Dieckhoner's reasoning for consenting to the search given after being arrested and to another law enforcement officer while in police custody does not withstand the State's burden of clearly demonstrating that Dieckhoner's consent was voluntary.

[*P26] After considering the totality of circumstances in the instant case, including Comerford's testimony that Dieckhoner appeared calm, the seamless transition between the detention and the request for consent, the fact that Comerford had no reasonable suspicion that Dieckhoner was involved or engaging in criminal activity, and the presence of another uniformed police officer, this court finds there was a sufficient show of authority such that Dieckhoner would not believe at the time that he was free to get in his car and drive away. Under these circumstances, any reasonable person would have felt compelled to submit to the officer's search, rather than consenting as a voluntary act of free will. See Robinette at 244-245.

Permalink 12:11:35 am, by fourth, 171 words, 356 views   English (US)
Categories: General

OH2: Removal from car at gunpoint and handcuffing after furtive movements still not an arrest

The officer lacked reasonable suspicion for a stop in a high crime area, but the officer then saw that the license for the vehicle was expired. When defendant was stopped, he made furtive movements under the dashboard, and that justified the officer handcuffing him when defendant was removed from the vehicle. This was still not an arrest. State v. Walker, 2012 Ohio 847, 2012 Ohio App. LEXIS 739 (2d Dist. March 2, 2012):

{¶ 25} Considering the totality of the circumstances, the detective's actions of drawing his gun and handcuffing Walker did not constitute an arrest. Given Walker's frantic movements below the dashboard upon being stopped by the police, his failure to comply when ordered to show his hands, and their location in a high crime area, House took reasonable actions to ensure his safety while initiating an investigatory detention.

Officers responded to a shooting call at defendant’s premises, and a cursory review of the premises revealed bags of marijuana. Even opening a closet door was not unreasonable. State v. Smith, 2012 Ohio 845, 2012 Ohio App. LEXIS 737 (2d Dist. March 2, 2012).*

Permalink 12:02:04 am, by fourth, 182 words, 423 views   English (US)
Categories: General

WA: No expectation of privacy in a bar's public area

A bar had no reasonable expectation of privacy in the public area of its establishment under Barlow’s. “Even if, as Dodge City argues, it had a subjective reasonable expectation of privacy to exclude persons under 21 years old, which it did not, Dodge City lost that interest when it voluntarily admitted [the minor] onto the premises.” Dodge City Saloon, Inc. v. Liquor Control Bd., 166 Wn. App. 828, 271 P.3d 363 (2012).

Just because a judge denies a motion to suppress does not mean that the judge is biased against the defendant. United States v. Harris, 2012 U.S. Dist. LEXIS 26578 (W.D. Mo. January 24, 2012).*

In an Anders brief, the search warrant was valid. State v. Jones, 88 So. 3d 1120 (La. App. 5th Cir. 2012).*

Here the officers had an arrest warrant for defendant and performed a “protective sweep” to corral the children in the house so they would be attended to when the officers left with defendant. This was reasonable. Defendant consented to retrieving his ID from the bedroom and the seizure of his cell phones. United States v. Rivero, 2012 U.S. Dist. LEXIS 26867 (N.D. Ga. January 20, 2012).*

03/03/12

Permalink 08:58:14 am, by fourth, 707 words, 472 views   English (US)
Categories: General

D.Md. follows majority and does not require PC for historical cell site location data

This district court follows the majority and does not require probable cause for historical cell site location data. United States v. Graham, 846 F. Supp. 2d 384 (D. Md. 2012):

Some courts, most notably the Eastern District of New York and the Southern District of Texas, have concluded that, under certain circumstances, applications seeking cell site location data must be granted only after a showing of probable cause, and not the lower statutory standard of "specific and articulable facts" contained in the Stored Communications Act. See, e.g., In re Application of the United States, 809 F. Supp. 2d 113 (E.D.N.Y. 2011) (Garaufis, J.); In re Application of the United States, 747 F. Supp. 2d 827 (S.D. Tex. 2010) (Smith, Mag. J.), appeal docketed, No. 11-20554 (5th Cir. Dec. 14, 2011); In re Application of the United States, 736 F. Supp. 2d 578 (E.D.N.Y. 2010) (Orenstein, Mag. J.), rev'd No. 10-MC-0550 (E.D.N.Y. Nov. 29, 2011) (unpublished order noting written opinion to follow). Those courts have essentially held that a government application for cell site location records does not implicate the Fourth Amendment if the request is for a discrete, and relatively short period of time. Compare In re Application, 736 F. Supp. 2d at 578-79 (application requesting cell site location data for a period of 58 days required warrant based on probable cause); In re Application, 747 F. Supp. 2d at 829 (60 days), with In re Application of the United States, No. 11-MC-0113, 2011 WL 679925, at *1 (E.D.N.Y. Feb. 6, 2011) (application for a period of 21 days required only specific and articulable facts, and not probable cause). In other words, those courts have concluded that the Fourth Amendment is only implicated when the government surveillance of historical cell site location data occurs over a sufficiently long—albeit undefined—period of time so as to implicate a person's legitimate expectation of privacy. None of these decisions have explicitly defined the length of time at which a request for cell site location data must be supported by probable cause, but Magistrate Judge Orenstein of the Eastern District of New York suggested that thirty days might be an appropriate limit. See In re Application, 2011 WL 679925, at *2.

A majority of courts, on the other hand, have concluded that the acquisition of historical cell site location data pursuant to the Stored Communications Act's specific and articulable facts standard does not implicate the Fourth Amendment, regardless of the time period involved. See, e.g., United States v. Dye, No. 10CR221, 2011 WL 1595255, at *9 (N.D. Ohio Apr. 27, 2011); United States v. Velasquez, No. 08-730-WHA, 2010 WL 4286276, at *5 (N.D. Cal. Oct. 22, 2010); United States v. Benford, No. 09 CR 86, 2010 WL 1266507, at *3 (N.D. Ind. Mar. 26, 2010); United States v. Suarez-Blanca, No. 07-023-MHS/AJB, 2008 WL 4200156, at *8-11 (N.D. Ga. Apr. 21, 2008); In re Application of the United States, 509 F. Supp. 2d 76, 80-81 (D. Mass. 2007). These courts have primarily relied on a line of Supreme Court cases construing the scope of Fourth Amendment rights relating to business records held by third parties. More specifically, these courts have concluded that because people voluntarily convey their cell site location data to their cellular providers, they relinquish any expectation of privacy over those records. See Suarez-Blanca, 2008 WL 4200156, at *8 (finding no expectation of privacy in records kept by third parties) (citing, inter alia, Smith v. Maryland, 442 U.S. 735, 743-44 (1979); United States v. Miller, 425 U.S. 435, 442-44 (1976)).

For the following reasons, this Court concludes that the Defendants in this case do not have a legitimate expectation of privacy in the historical cell site location records acquired by the government. These records, created by cellular providers in the ordinary course of business, indicate the cellular towers to which a cellular phone connects, and by extension the approximate location of the cellular phone. While the implications of law enforcement's use of this historical cell site location data raise the specter of prolonged and constant government surveillance, Congress in enacting the Stored Communications Act, has chosen to require only "specific and articulable facts" in support of a government application for such records. Put simply, the Fourth Amendment, as currently interpreted, does not contemplate a situation where government surveillance becomes a "search" only after some specified amount of time.

[Sorry, it was too hard to use Google Scholar to locate all of them. I don't have that much time.]

Permalink 07:48:05 am, by fourth, 424 words, 431 views   English (US)
Categories: General

N.D.N.C.: District court reviews de novo only those portions of a magistrate judge's R&R to which objections are filed

When defendant refused to be “seized” and ran away, he obviously felt free to leave. Also, “[t]he district court reviews de novo only those portions of a magistrate judge's R&R to which objections are filed.” There is no de novo review to that which the defendant does not object. United States v. Huckabee, 2012 U.S. Dist. LEXIS 24491 (N.D. N.C. February 27, 2012):*

The district court reviews de novo only those portions of a magistrate judge's M&R to which objections are filed. 28 U.S.C. § 636(b)(1). The court does not perform a de novo review of those portions to which a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely objection, the court reviews only for "clear error," and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

. . .

Detective Hunter did not seize defendant when she attempted to question him near the side of the road. After Detectives Becker and Hunter pulled to the side of the road, Detective Hunter approached defendant from the front and asked, in a conversational tone, if she could talk to him. Defendant responded aggressively by saying, "Who the [expletive omitted] are you? You don't know me." Detective Hunter identified herself as a police detective and again asked if she could talk to him. Defendant again responded, "You don't know me," and then fled. The entire encounter lasted about five seconds.

Under these factual circumstances, a reasonable person would have felt himself free to leave. Detective Hunter did not physically contact defendant, nor was her questioning of him intimidating. Her firearm was holstered, and she did not accuse defendant of any criminal activity. Based on these circumstances, a reasonable person would have felt himself free to go about his business. Further, even if Detective Hunter's conduct could somehow be construed as an assertion of authority, defendant never submitted. Rather, he attempted to flee. As stated above, "[a] defendant who flees the police in response to an assertion of authority has not been seized, and thus his Fourth Amendment rights are not implicated." Brown, 401 F.3d at 594.

Permalink 07:27:06 am, by fourth, 142 words, 400 views   English (US)
Categories: General

W.D.Okla.: IAC claim of failure to investigate apparent authority wouldn't change the outcome

2255 petitioner’s claim that his defense lawyer failed to fully investigate the apparent authority of the consenter to consent would have added nothing and the motion to suppress still would have been denied. United States v. Livingston, 2012 U.S. Dist. LEXIS 25558 (W.D. Okla. February 28, 2012).

Even if the curtilage were entered (it wasn’t), purging that information from the affidavit for the search warrant would not nullify the probable cause. Defendant carries the burden on the GFE, and he fails. United States v. Simmons, 2012 U.S. Dist. LEXIS 25615 (D. Me. February 28, 2012).*

2255 petitioner’s Fourth Amendment claim was time barred, and he couldn’t get in the back door via a writ of error coram nobis. Also, WECN is only available if the petitioner is not in custody, and he was. Johnson v. United States, 2012 U.S. Dist. LEXIS 26522 (E.D. Mo. February 28, 2012).*

Permalink 07:04:25 am, by fourth, 181 words, 370 views   English (US)
Categories: General

W.D. Tex.: Officer's use of "please" and normal tone of voice showed consent

Officer’s queries with “please” and normal tone of voice, all recorded during the stop of defendant at the El Paso interstate bus terminal, showed defendant’s consent to a search of his person for drugs strapped to him was voluntary. The court concludes it was not an order. United States v. Trujillo, 2012 U.S. Dist. LEXIS 26580 (W.D. Tex. February 29, 2012).*

Defendant’s conduct was suspicious around a car and indicated either theft, drug dealing, or a car jacking. When the officer stopped with lights, defendant attempted to back away. All this was more than a hunch of criminal activity. United States v. Bady, 2012 U.S. Dist. LEXIS 26265 (S.D. Ill. February 29, 2012).*

Defendant’s 2255 claim that defense counsel failed to raise a racial motivation issue based on something the officer said during the stop is belied by the DVD of the stop. Defendant’s plea deal to a five year max was a huge benefit, considering where he would have fallen on the guidelines if the government pursued his priors. United States v. Curry, 2012 U.S. Dist. LEXIS 25803 (D. Neb. February 29, 2012).*

Permalink 06:49:57 am, by fourth, 87 words, 407 views   English (US)
Categories: General

CA4: Consent to search person for drugs had to mean pockets, too

Defendant had to understand that a search of his person for drugs would mean going into the pockets. United States v. Stinson, 468 Fed. Appx. 285 (4th Cir. 2012) (unpublished).*

33 minute delay in the stop here was reasonable and caused by the language barrier and waiting for an interpreter to arrive. United States v. Hernandez-Coria, 2012 U.S. Dist. LEXIS 24624 (D. Minn. January 25, 2012).*

Defendant was stopped in a taxicab, and marijuana was seen in plain view. People v Souffrant, 2012 NY Slip Op 1521, 93 A.D.3d 885, 939 N.Y.S.2d 190 (3d Dept. 2012).*

Permalink 06:26:13 am, by fourth, 278 words, 380 views   English (US)
Categories: General

MA: Informant wasn't supported for patdown

A defendant told he’s going to be frisked is “seized.” Here, the record is devoid of any factual justification for the frisk based on what “other people” said. If they were informants, there was no showing of basis of knowledge or any reason to be truthful. Commonwealth v. Arias, 81 Mass. App. Ct. 342, 963 N.E.2d 100 (2012)*:

Here, the record reveals nothing about the informants' basis of knowledge or veracity. Hart and Halloran, the MBTA employees who told the police about the defendant, expressly stated that they were passing on information they had obtained from "other people" but said nothing about who the other people were and provided no information about the other people that would enable anyone to determine either their veracity or basis of knowledge. In that regard, we treat the individuals who gave information to Hart and Halloran as unknown informants even though police knew their identities by the time of the hearing. ... Nothing in the record suggests that the police knew who the informants were before they arrested the defendant or that they had any idea how the informants knew of the gun. Moreover, information obtained from known informants receives somewhat greater weight than that received from anonymous informants because known informants expose themselves to "charge[s] of filing a false report or any comparable consequence of providing false information to law enforcement." Commonwealth v. Mubdi, 456 Mass. 385, 397, 923 N.E.2d 1004 (2010). See Commonwealth v. Costa, 448 Mass. 510, 515-517, 862 N.E.2d 371 (2007). Here, the informants faced no such consequences when they made their disclosures to Hart or Halloran. Indeed, nothing in the record suggests that they even knew that Hart or Halloran would relay their information to authorities.

03/02/12

Permalink 09:50:51 am, by fourth, 364 words, 499 views   English (US)
Categories: General

OH9: Need to establish standing in a possession offense is not a “Catch-22”

Defendant was not in a “Catch-22” by having to establish standing since it couldn’t be used to prove guilt. The trial court explained it to her. State v. Vu, 2012 Ohio 746, 2012 Ohio App. LEXIS 650 (9th Dist. February 27, 2012):

[*P23] Vu asserted in the court below that the trial court placed her in a "Catch-22" by insisting that she prove a possessory interest in the properties, as any such proof would aid the State's case. She also avers on appeal that it is illogical that she was barred from seeking suppression on the basis that she lacked a possessory interest, but was found guilty of possession, for which there had to be evidence of a possessory interest. The answer to both arguments lies in the difference between the suppression stage and the trial stage.

[*P24] Although the State bore the burden of proof at trial, it was Vu's burden to prove that she possessed a legitimate expectation of privacy for purposes of suppression. Redding, 2010 Ohio 4286, at ¶ 8, quoting Blackert, 1992 Ohio App. LEXIS 3818, 1992 WL 174642, at *3. Further, any evidence she introduced at the suppression stage to prove that she had a possessory interest would not have been admissible against her at trial on the issue of guilt. Simmons, 390 U.S. at 394. The trial court explained both propositions of law to Vu's counsel at the suppression stage. Even so, Vu's counsel maintained that he did not have any testimony to offer, the record spoke for itself, and Vu automatically should be entitled to challenge the applicable search warrants, given that the State intended to pursue possession charges against her. The United States Supreme Court has specifically rejected the notion of "automatic standing," however, and it was Vu's burden to demonstrate a privacy interest. State v. Johnson, 63 Ohio App.3d 345, 347-348, 578 N.E.2d 867 (9th Dist.1989), citing United States v. Salvucci, 448 U.S. 83, 91-93, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Because she failed to carry her burden, the trial court did not err by concluding that she lacked standing to challenge the warrants issued for the houses at Troon Avenue, Baywood Drive, and Autumnwood Lane and the apartments at Grand Lake Drive and Stoneybrook Lane.

Come on: Simmons is almost 45 years old.

Permalink 09:40:02 am, by fourth, 121 words, 458 views   English (US)
Categories: General

N.D.W.Va.: The GFE question is not “just lacking” in probable cause, but so lacking that no reasonable officer could rely on it

The affidavit was more than just “bare bones,” and the good faith exception was satisfied. The question is not “just lacking” in probable cause, but so lacking that no reasonable officer could rely on it. United States v. Oldaker, 2012 U.S. Dist. LEXIS 25788 (N.D. W.Va. February 16, 2012).*

Officers had reasonable suspicion for a probation search, and probable cause was not the standard. United States v. Bolivar, 670 F.3d 1091 (9th Cir. 2012).*

To satisfy the Fourth Amendment, an inventory did not require watch commander approval. The policy mentions it, but failure to follow is not a Fourth Amendment issue when the inventory is otherwise proper. State v. Stewart, 152 Idaho 868, 276 P.3d 740 (App. 2012),* Review denied by State v. Stewart, 2012 Ida. LEXIS 135 (Idaho, May 22, 2012).

Permalink 08:55:31 am, by fourth, 169 words, 424 views   English (US)
Categories: General

CA11: No qualified immunity for Tasering an unarmed man in a tree to get him out

Plaintiff overcame qualified immunity in his claim that he was standing in a tree showing his hands when officers were trying to arrest him, having thrown down his rifle. They gave him conflicting orders, and Tasered him and he fell from the tree. Their claim that he could have jumped on them from the tree to grab the gun was dubious at best. Harper v. Perkins, 459 Fed. Appx. 822 (11th Cir. 2012) (unpublished).*

Defendant’s racial motivation for a stop failed here because, after the stop ended and he was told he was free to leave, he continued to talk to the officer and ultimately consented. United States v. Curry, 2012 U.S. Dist. LEXIS 25803 (D. Neb. February 29, 2012).*

Plaintiff in this FTCA case was caught stealing from the mail, and a body search was conducted with his consent to locate fluorescent powder markings from the mail he tampered with. Thus, his consent and failure to object denies him a claim for this. Pinero v. United States, 844 F. Supp. 2d 232 (D. P.R. 2012).*

Permalink 08:38:31 am, by fourth, 226 words, 407 views   English (US)
Categories: General

E.D.Mo.: Officer could go with an arrestee asking to go back for clothes; plain view sustained

Defendant was arrested at home in her pajamas. She was allowed to reenter to get dressed, but officers were allowed to go in with her for self-protection, and a sawed off shotgun was seen inside leaning against the wall. This observation was lawful. [If she didn’t want them to see the gun, she should not have asked to go back inside. This is just like Christman.] United States v. Reid, 2012 U.S. Dist. LEXIS 24523 (E.D. Mo. February 7, 2012):

When the deputies arrested Graham at 712 Thrush, she was dressed in her pajamas. Following the arrest and a brief discussion, the deputies allowed Graham to reenter 712 Thrush to change her clothes. Although the deputies had no specific reason to suspect danger to them or that Graham might attempt to escape, the deputies were entitled to enter the residence immediately before or with Graham and to remain with her as she changed clothes. Debuse, 289 F.3d at 1074-75 (holding that where the defendant "chose to reenter his house simply for his own convenience[,] [a]llowing reentry on the condition that the officers accompany him was reasonable"); ....

Based on prior wiretaps, officers had probable cause as to defendant. When they saw what appeared to be a hand to hand transaction, they had more probable cause to stop him. United States v. Coria, 2012 U.S. Dist. LEXIS 24624 (D. Minn. January 25, 2012).*

Permalink 12:20:12 am, by fourth, 213 words, 426 views   English (US)
Categories: General

Forbes op-ed: "The TSA Is Coming To A Highway Near You"

Forbes op-ed: The TSA Is Coming To A Highway Near You by Rep. Marsha Blackburn (R-TN):

One of the great honors of my service to Tennessee is having the opportunity to represent Ft. Campbell which is home to the storied 101st Airborne, the 5th Special Forces Group and the Army’s 160th Special Operations Aviation Regiment which piloted Navy SEAL Team Six during the raid on Osama Bin Laden.

Each soldier who calls Ft. Campbell home has gone through some of the most intensive training on the planet which pushed their minds and bodies to their physical limits. In the end, those who make the cut have earned the right to be part of our United States military, are honored to wear its uniform, and are serving on the frontlines in the fight against global terrorism.

Unfortunately, the same cannot be said for our nation’s Transportation Security Officers (TSOs) who Department of Homeland Security Secretary Janet Napolitano contends are our nation’s last line of defense in fighting domestic terrorism. Unlike “hell week” which faces potential Navy SEALs, becoming a TSO requires a basic level of classroom and on the job training. In many cases this rigorous training is less severe than the requirements of becoming a security guard in most states.

03/01/12

Permalink 10:51:53 am, by fourth, 772 words, 567 views   English (US)
Categories: General

CA7: A cell phone can be searched for its number

The possibility, not even the probability, of remote wiping of a cell phone with applications for nearly all phones, is enough to justify entering the phone to get its number. The question of a more detailed search is saved for another day. United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012):

This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant—for a modern cell phone is a computer.

. . .

A modern cell phone is in one aspect a diary writ large. Even when used primarily for business it is quite likely to contain, or provide ready access to, a vast body of personal data. The potential invasion of privacy in a search of a cell phone is greater than in a search of a “container” in a conventional sense even when the conventional container is a purse that contains an address book (itself a container) and photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. ... [T]here is a far greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir. 2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009). An iPhone application called iCam allows you to access your home computer’s webcam so that you can survey the inside of your home while you’re a thousand miles away. “iCam—Webcam Video Streaming,” http://itunes.apple.com/us/app/icam-webcam-videostreaming/id296273730?mt=8 (visited Feb. 6, 2012, as were the other web sites that we cite in this opinion). At the touch of a button a cell phone search becomes a house search, and that is not a search of a “container” in any normal sense of that word, though a house contains data.

A complication in this case is that, remarkably, the record does not indicate the brand, model, or year of the defendant’s cell phone, so we do not know how dumb or smart it is. But does that matter? Even the dumbest of modern cell phones gives the user access to large stores of information.

. . .

We said it was conceivable, not probable, that a confederate of the defendant would have wiped the data from the defendant’s cell phone before the government could obtain a search warrant; and it could be argued that the risk of destruction of evidence was indeed so slight as to be outweighed by the invasion of privacy from the search. But the “invasion,” limited as it was to the cell phone’s number, was also slight. And in deciding whether a search is properly incident to an arrest and therefore does not require a warrant, the courts do not conduct a cost-benefit analysis, with the invasion of privacy on the cost side and the risk of destruction of evidence (or of an assault on the arresting officers) on the benefit side of allowing the immediate search. Toting up costs and benefits is not a feasible undertaking to require of police officers conducting a search incident to an arrest. Thus, even when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, United States v. Robinson, supra, 414 U.S. at 235, provided it’s no more invasive than, say, a frisk, or the search of a conventional container, such as Robinson’s cigarette pack, in which heroin was found. If instead of a frisk it’s a strip search, the risk to the officers’ safety or to the preservation of evidence of crime must be greater to justify the search. Campbell v. Miller, 499 F.3d 711, 717 (7th Cir. 2007), citing Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). Looking in a cell phone for just the cell phone’s phone number does not exceed what decisions like Robinson and Concepcion allow.

Permalink 08:44:25 am, by fourth, 199 words, 404 views   English (US)
Categories: General

W.D.Okla.: Whether motel room occupant was there two days or one day, there still was apparent authority

The person answering the door at a motel room said he’d been staying there two days. That was apparent authority for consent to the police to enter. Even if the actual fact was he stayed there one day, the officer still would have seen apparent authority, and that was not IAC for not developing that fact. United States v. Livingston, 2012 U.S. Dist. LEXIS 25558 (W.D. Okla. February 28, 2012).

Defendant concedes that the marijuana patch in this case was in open fields, but he contends the police entered his curtilage to get a photograph of it. Even if true, that would not have tainted the warrant here when it was excised from the lawfully obtained information. United States v. Simmons, 2012 U.S. Dist. LEXIS 25615 (D. Me. February 28, 2012).*

Regardless of whether the officer violated Miranda in defendant’s equivocal statement about marijuana in his car in a national park, the officer already had probable cause for a search of the car. United States v. Lehman, 2012 U.S. Dist. LEXIS 25754 (E.D. Cal. February 28, 2012).*

Defense counsel did, in fact, challenge the search so no IAC for failing to do so. United States v. Davis, 2012 U.S. Dist. LEXIS 24939 (D. Kan. February 28, 2012).*

Permalink 07:27:49 am, by fourth, 223 words, 404 views   English (US)
Categories: General

E.D.Mich.: "Standing" in places where business stored records

The principals in a business subjected to a search warrant had “standing” (which the court notes was a word rejected by SCOTUS). Storing records there is still an expectation of privacy. A second place was a residence owned by the corporation that they kept business stuff in, and they came and went at will. They had “standing” there, too. United States v. Ferguson, 2012 U.S. Dist. LEXIS 24929 (E.D. Mich. February 27, 2012):

The government argues that the Ferguson defendants' bare assertion that they were permitted to store personal belongings at the 500 Griswold offices is insufficient to support a reasonable expectation of privacy. However, as discussed below, the rule in United States v. Jeffers, 342 U.S. 48, 52 (1951), indicates that if defendant Ferguson Enterprises were permitted to store business records in the search locations, they should be permitted to challenge the government's seizure of those records. In addition, in United States v. Waller, 426 F.3d 838 (6th Cir. 2005), the Sixth Circuit held that the owner of an apartment did not have authority to consent to a search of the defendant's luggage that was stored in the apartment because there was an understanding between the owner and the defendant that the luggage was private. Id. at 845-46. This holding implies that a defendant has a reasonable expectation of privacy in goods stored by permission at a third party's residence.

Permalink 12:02:19 am, by fourth, 167 words, 563 views   English (US)
Categories: General

C.D.Ill.: Officer called it a patdown, but it was valid as a SI

The officer said he was going to patdown the defendant for a weapon after defendant said he had a gun on him which was a violation of Illinois law. It was valid as a search incident, not a patdown. United States v. Lyons, 856 F. Supp. 2d 946 (C.D. Ill. 2012),* reconsideration after conviction denied 2012 U.S. Dist. LEXIS 61379 (C.D. Ill. May 2, 2012).*

Plaintiff’s case was not attempting to invalidate a conviction in another state case, so there was no Heck bar. Plaintiff also barely satisfies a substantive due process claim. Plaintiff’s Fourth Amendment claim doesn’t survive. Andrews v. Bureau of Codes Admin. Office, 2012 U.S. Dist. LEXIS 23835 (M.D. Pa. February 24, 2012).*

Pro se motion to suppress that states no grounds is denied. United States v. Goodrich, 2012 U.S. Dist. LEXIS 25337 (W.D. Mo. February 10, 2012).*

2255 petitioner’s claim that defense counsel was ineffective for not moving to suppress his stop is wrong; defense counsel did. United States v. Davis, 2012 U.S. Dist. LEXIS 25314 (D. Kan. February 28, 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  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)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  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)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

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

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

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

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

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

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

"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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