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.

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.

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).*

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.

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).*

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.

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.