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.
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.
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).*
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. ...
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.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)