Archives for: May 2012


Permalink 11:44:54 pm, by fourth, 180 words, 750 views   English (US)
Categories: General

New law review article: "The Fourth Amendment's Exclusionary Rule as a Constitutional Right"

Thomas K. Clancy, The Fourth Amendment's Exclusionary Rule as a Constitutional Right (Ohio State Journal of Criminal Law, Vol. 10, 2012), posted on SSRN. Abstract:

I am a proponent of the view that the rule is constitutionally based and is an individual remedy for the violation of that person’s Fourth Amendment rights. Both sides of the exclusionary rule debate regarding whether it is a mere tool to enforce deterrence or whether it is an individual right-based remedy have weighty authority and supporters. In my view, the constitutionally-based argument is persuasive: in constitutional law, there can be no right without a remedy. Subsidiary arguments reinforce that view. Those include the absence of any rational or empirical justification for the rule if based on deterrence theory, the lack of authority of the Court to apply the rule to the states absent a constitutional basis, and the coherence of justification of exceptions to the rule’s application if constitutionally based, unlike the ad hoc deterrence rationale, which is a mere substitute for each justice’s subjective assessment as to whether to apply the sanction.

Permalink 11:23:28 pm, by fourth, 145 words, 404 views   English (US)
Categories: General "ACLU backs Twitter's bid to hide user information" ACLU backs Twitter's bid to hide user information by Brendan Sasso:

The American Civil Liberties Union (ACLU) filed a brief in a New York state court on Thursday supporting Twitter's effort to avoid handing over the personal information of one of its users to the police.

New York City prosecutors had served Twitter with a subpoena for its data on Malcolm Harris, who was arrested for disorderly conduct during an Occupy Wall Street protest. The prosecutors asked Twitter for Harris's email address and all of his tweets in a three-month period.

Twitter argued that police would need a search warrant to access the communications. The court had concluded that Harris lacked the legal standing to challenge the subpoena on his own, but Twitter argued that its users have the authority to protect their own tweets.

Reuters: Legal battle over Twitter subpoena heats up.

Permalink 11:20:41 pm, by fourth, 108 words, 443 views   English (US)
Categories: General "U.S. Argues to Preserve GPS Tracking" U.S. Argues to Preserve GPS Tracking (paywall) by Julia Angwin and Jess Bravin:

The U.S. government told a federal appeals court Thursday that it still has the right to place Global Positioning System tracking devices on cars without obtaining a search warrant—despite a January Supreme Court ruling that the warrantless installation of such a device violated the Constitution.

In arguments aimed at preserving warrantless GPS tracking evidence in a case before the Ninth U.S. Circuit Court of Appeals, the Justice Department relied on the fact that the high court didn't specifically state that a search warrant would be required in other situations.

Permalink 11:15:31 pm, by fourth, 159 words, 508 views   English (US)
Categories: General

AELE: "Fourth Amendment Search and Seizure, Qualified Immunity and the Technological Age"

Fourth Amendment Search and Seizure, Qualified Immunity and the Technological Age by Muna Busailah and Stephen P. Chulak, 2012 (6) AELE Mo. L. J. 501 (June 2012):

This article examines two decisions, issued by the United States Supreme Court in January 2012, concerning the Fourth Amendment. The first, Ryburn v. Huff, #11-208, 132 S.Ct. 987 (2012), involves a civil rights action by homeowners against police officers from the City of Burbank, alleging that the officers’ entry into their home violated the Fourth Amendment. The Supreme Court reversed the decision of the Court of Appeal and held that the officers had a reasonable basis for fearing violence was imminent, which entitled them to qualified immunity.

In the second case, United States v. Jones, #10-1259, 132 S.Ct. 945 (2012), the Supreme Court ruled that the attachment of a Global-Positioning-System (GPS) tracking device to a vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, was a “search” within the meaning of the Fourth Amendment.

Permalink 02:28:34 pm, by fourth, 437 words, 516 views   English (US)
Categories: General

W.D.N.Y.: Federal SW executed on state seized evidence four days after warrant expired was still with PC and was not suppressed

State officers seized a camera and memory card from defendant’s apartment based on statements from two witnesses that they saw images on defendant’s camera of him raping two young girls. Even if the state officials unlawfully seized the camera, the search warrant for what was held was reasonable. The federal search warrant warrant was executed four days after it expired, but probable cause still existed so the search was still reasonable. United States v. Ahmad, 2012 U.S. Dist. LEXIS 74325 (W.D. N.Y. May 29, 2012), adopted 2012 U.S. Dist. LEXIS 103003 (W.D. N.Y. July 24, 2012):

Courts have declined to order suppression of evidence seized pursuant to belatedly-executed warrants where probable cause still existed at the time of the execution and the police did not deliberately disregard the terms of the warrant. E.g., United States v. Sims, 428 F.3d at 955 (one-day delay in executing search warrant does not justify suppression because warrant was executed within the period prescribed by Rule 41, probable cause to search still existed and police did not intentionally disregard warrant's terms; "[because] non-prejudicial and unintentional violations of Rule 41 do not result in suppression, then a fortiori technical violations of the warrant itself compel the same result"); United States v. Gerber, 994 F.2d at 1561 n.4 (denying suppression where search was conducted three days after the warrant's expiration; "inadvertent, technical violation of Rule 41 should not preclude key incriminating evidence for which a valid warrant based on abundant probable cause was obtained"); United States v. Huslage, 480 F. Supp. 870, 875 (W.D. Pa. 1979) (denying suppression where warrant expired at 5:00 a.m., police conducted second search at 10:00 a.m. and probable cause to search still existed).

In this case, the evidence was seized by the Brighton Police on June 6, 2011, and remained in their possession since that date. The federal warrant was issued on August 25, 2011, and directed its execution by September 2, 2011. Couch executed the warrant on September 6, 2011, four days after the expiration date and twelve days after it was issued. Despite the warrant's expiration, probable cause to seize the items had not lapsed — the items were still in police custody and were as likely to constitute or contain relevant evidence on September 6 as they were on August 25, 2011. Ahmad has made no showing or even suggestion of prejudice resulting from the belated execution and no evidence exists that Couch intentionally disregarded the terms of the warrant. Indeed, Couch has explained that the delay resulted from his mistaken belief that he had sixty days to execute it. On this record, I find that the delay in executing the warrant did not constitute an unreasonable seizure within the meaning of the Fourth Amendment.

Permalink 02:18:44 pm, by fourth, 209 words, 585 views   English (US)
Categories: General

W.D.Okla.: Strong chemical smell, likely meth production, was PC in affidavit for search warrant

Strong chemical smell outside a building to a trained officer was probable cause for issuance of a search warrant for the house for meth. United States v. Collins, 2012 U.S. Dist. LEXIS 74639 (W.D. Okla. May 30, 2012):

The officer reporting the smell in this case, Undersheriff King, had attended both DEA and OBN schools regarding methamphetamine laboratories. Although it could have been more specific, the search warrant affidavit did state that the undersheriff was able to identify the odor because of his "training [and] experience with methamphetamines lab." Search Warrant, Attachment "B." As noted by defendant Smith, the affidavit did not specify the exact source of the odor. However, it is apparent that the smell was coming from a building on the Smith property and not a field ("drove by described residence in Attachment "A," and detected a very strong odor of Anhydrous Ammonia and Ether"). The affidavit also was not defective for failing to explicitly link the odor to a crime, since the specific chemical odor that is identified is commonly linked to the manufacture of methamphetamine. While the affidavit submitted to the state judge was certainly bare bones, the court concludes it was sufficient, in light of the flexible standard referenced above, to support issuance of the warrant.

Permalink 02:13:14 pm, by fourth, 305 words, 446 views   English (US)
Categories: General

E.D.Ky.: Knights RS standard applies to federal supervised release

The Knights reasonable suspicion standard applies to persons on federal supervised release. The USPO had RS, too. United States v. Lykins, 2012 U.S. Dist. LEXIS 74655 (E.D. Ky. May 30, 2012):

Knights is also applicable despite Defendant's status as a supervised releasee. Knights specifically addressed the warrantless search of a probationer's home. However, other courts have applied Knights' reasonable suspicion analysis to the search of a supervised releasee's residence. See, e.g., United States v. Krug, No. 3:09cr257, 2010 WL 2196607, at *4-5 (M.D. Tenn. May 26, 2010). Moreover, other circuits have recognized that supervised releasees and probationers have similar expectations of privacy. See United States v. Stewart, 532 F.3d 32, 36 (1st Cir. 2008) (recognizing that probation and supervised release are different forms of conditional release, and courts have not distinguished among conditional releasees for Fourth Amendment purposes); United States v. Weikert, 504 F.3d 1, 12 (1st Cir. 2007) (refusing to distinguish the privacy interests of a supervised releasee from a probationer); United States v. Zimmerman, 514 F.3d 851, 855 (9th Cir. 2007) (treating probationer's Fourth Amendment challenge to DNA Act as foreclosed by prior precedent addressing challenge by supervised releasee); Banks v. United States, 490 F.3d 1178, 1187 (10th Cir. 2007) (supervised releasees and probationers fall into the "category of felons on release who are not entitled to the full panoply of rights and protections possessed by the general republic"). In fact, the Second Circuit has held that supervised release places the most severe limits on expectations of privacy, greater than those of both parole and probation. United States v. Balon, 384 F.3d 38, 44 (2d Cir. 2004). Therefore, Defendant, as a supervised releasee, had the same, if not less, expectation of privacy as did the probationer in Knights. As a result, Knights' holding that the Fourth Amendment requires "no more than reasonable suspicion to conduct a search" of a probationer applies to the search of Defendant's residence. See Knights, 534 U.S. at 121.

Permalink 06:30:13 am, by fourth, 139 words, 527 views   English (US)
Categories: General

2013 Symposium: "Technology and Crime: The Future of the Fourth Amendment in Public"

From Crim Prof Blog:

The AALS Section on Criminal Justice will hold a panel during the AALS 2013 Annual Meeting in New Orleans entitled: Technology and Crime: The Future of the Fourth Amendment in Public.

. . .

New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.


Permalink 10:26:39 am, by fourth, 365 words, 643 views   English (US)
Categories: General

WI: Issuing search warrants not a purely judicial function and non-elected court commissioners can issue them

Issuance of a search warrant in Wisconsin is not purely a judicial function under state law or the Fourth Amendment. Accordingly, court commissioners can issue search warrants. State v. Williams, 2012 WI 59, 341 Wis. 2d 191, 814 N.W.2d 460 (2012):

¶3 Throughout Wisconsin's history, including before the ratification of the Wisconsin Constitution, non-judges have been authorized by statute to issue search warrants. Therefore, we conclude that the issuance of a search warrant is not an exercise of "[t]he judicial power," as that phrase is employed in Article VII, Section 2 of the Wisconsin Constitution. Instead, issuance of a valid search warrant requires that the individual be authorized by law to issue the warrant, that he or she be neutral and detached, and that the warrant be issued only upon a showing of probable cause.

¶4 Because we also conclude that Wis. Stat. § 757.69(1)(b), which allocates the power to issue search warrants to circuit court commissioners, does not impermissibly intrude upon "[t]he judicial power" granted to the courts by Article VII, Section 2 of the Wisconsin Constitution, we hold that § 757.69(1)(b) is constitutional. Therefore, the circuit court commissioner's search warrant was validly issued. Accordingly, we affirm the circuit court's denial of Williams' motion to suppress.

. . .

¶26 Therefore, we recognize that Article I, Section 11's warrant requirement has not mandated a determination of probable cause by a judge or a court of record. Non-judges who are "neutral and detached" and are able to ascertain whether probable cause exists have been expected to issue search warrants in the past, provided that they are authorized by statute to do so. Accordingly, issuance of a search warrant does not require an exercise of the judicial power that is vested exclusively in courts under Article VII, Section 2. Although issuing a search warrant may require some exercise of quasi-judicial power, it is something less than and distinguishable from the power vested in courts and elected judges.

I remember the briefs in Leon pointing out the large number of non-trained judicial and quasi-judicial officers (like state JPs) who could issue warrants. Leon didn't address this, and this case doesn't cite Leon, but it doesn't have to. If the warrant is valid, good faith doesn't matter.

h/t to a reader

Permalink 08:30:10 am, by fourth, 143 words, 458 views   English (US)
Categories: General

E.D.Pa.: Seizure of hard drives rather than copying them onsite was reasonable execution

Defendant company and its principal were accused of false statements on toxic waste reports. The state EPA got a search warrant from the judge overseeing a statewide grand jury, and the search warrant clearly contemplated digital documents which were reasonably seized via seizure of the hard drives rather than an onsite inspection. Other technical arguments were moot, including sealing the search warrant materials for a while. United States v. Blue Marsh Labs., 2012 U.S. Dist. LEXIS 73544 (E.D. Pa. May 24, 2012).*

Defendant was stopped by the police for DUI when the motorist behind him at a McDonald’s drive-thru at 4 am called the police that he was “drunk as hell,” giving the vehicle make, color, and license number. The officer corroborated the tip with the McDonald’s employee. That was cause for a stop. State v. Steinbrunner, 2012 Ohio 2358, 2012 Ohio App. LEXIS 2083 (3d Dist. May 29, 2012).*

Permalink 08:23:14 am, by fourth, 293 words, 529 views   English (US)
Categories: General

OH3: Officer must at least articulate a legal basis for the stop

Where officer could not articulate a facial legal basis for the stop, it was unreasonable as a matter of law. In addition, the trial court made a finding of fact [likely to help the officer] that was never in the testimony at the hearing. State v. Haas, 2012 Ohio 2362, 971 N.E.2d 436 (3d Dist. 2012):

[*P27] In light of the relevant case law from this and other districts, we hold that when a defendant's conduct does not facially violate the traffic statute which provides the sole basis for the officer's alleged reasonable articulable suspicion, the stop is unconstitutional.

. . .

[*P33] The State argues that it would be unreasonable to expect our law enforcement officers to know the details of every traffic offense and to make an accurate determination of the statute's applicability. Such requirements, the State explains, would hamper law enforcement to the extent it would cause "paralysis by analysis." We aver that knowledge of the traffic laws is the very essence of a patrol officer's job. To require any less than an accurate, working knowledge of the traffic offenses and to fail to ensure that the one being seized at least reasonably appeared to have violated a statute on its face gravely deprives citizens of their constitutional right to be free from warrantless searches and seizures.

[*P34] This is the unfortunate scenario in the present case. Officer Wymer unconstitutionally seized Haas under the suspicion that Haas violated a law. However, the officer's own testimony revealed that he did not know the requirements of this very law. Haas was not and could not have been engaged in the specific criminal activity testified to by Officer Wymer. Yet he was seized and arrested due to the officer's lack of knowledge of the very law he was enforcing.

Permalink 08:13:42 am, by fourth, 373 words, 515 views   English (US)
Categories: General

MA: Pulling down defendant's pants on street for strip search for drugs in his buttocks was unreasonable

Defendant was virtually strip searched for drugs on the street. He was arrested and face down on the sidewalk, and the arresting officers pulled down his pants to get to the drugs hidden in his buttocks. This was unreasonable. The officers knew that the lump in his pants was not a weapon. Commonwealth v. Morales, 462 Mass. 334, 968 N.E.2d 403 (2012):

Here, with regard to the strip search, at the time when Detective Desmarais removed the drugs from between the defendant's buttock area, the police did not, as we suggested in Commonwealth v. Thomas, supra at 409 n.5, conduct the search in a private room or in any private location. The handcuffed defendant was face down on a public sidewalk and surrounded by four police officers. Detective Desmarais had determined that the lump in the rear of the defendant's shorts was not a weapon. Thus, there was no concern that the defendant could have used a weapon against the officers, fled, or destroyed evidence. With no exigency existing, the defendant should have been transported to a private space or location. Doing so would have avoided what followed, namely, the public exposure of his buttocks, an embarrassing and humiliating intrusion of the defendant's privacy. Indeed, the policy of the Lowell police department prohibits strip searches outside the confines of a police station. In the circumstances, the location of this search was inappropriate.

The manner in which the search proceeded, whereby the defendant's buttocks were publicly exposed in the absence of exigent circumstances, was unreasonable. See Paulino v. State, 399 Md. 341, 359 (2007) (instead of reaching into defendant's underwear to retrieve contraband, officer lifted up defendant's underwear and publicly exposed his buttocks, which rendered search unreasonable). There was no explanation in the record why Detective Desmarais was able to inspect the defendant's buttocks area for drugs without public exposure, but was unable to retrieve the drugs without the resulting exposure. If Detective Desmarais could not have retrieved the drugs without exposing the defendant's buttocks, he should not have conducted the search on a public sidewalk. Both the inappropriate location of the search and the manner in which it was conducted rendered the strip search constitutionally unreasonable under both the Federal and State Constitutions. Accordingly, we affirm the judge's order of suppression.

Permalink 07:50:07 am, by fourth, 170 words, 438 views   English (US)
Categories: General

W.D.Mo.: Refusal to remove one hand from pockets was RS

The officer was suspicious of defendant who would not remove his hands from his pockets during an encounter, and he directed defendant to remove his hands, but only one was pulled out. This was reasonable suspicion defendant was armed. United States v. Manuel, 2012 U.S. Dist. LEXIS 73703 (W.D. Mo. May 8, 2012).*

Defendant was properly seized incident to his arrest, the court finding it was in his hand. Thereafter, a search warrant was issued for the phone, which was valid. United States v. Bass, 2012 U.S. Dist. LEXIS 73783 (E.D. Mich. May 29, 2012).*

Police responding to a burglary in progress call from a pawnshop’s burglar alarm had reasonable suspicion to stop a vehicle on the parking lot after hours. United States v. Von Bargen, 2012 U.S. Dist. LEXIS 73458 (D. Idaho May 25, 2012).*

Waiver of collateral attack in guilty plea was binding on defendant. There was no conditional plea, and defendant knew he was waiving the opportunity to challenge the search. United States v. Ramirez-Hernandez, 2012 U.S. Dist. LEXIS 73728 (E.D. Ky. April 16, 2012).*

Permalink 07:43:22 am, by fourth, 242 words, 525 views   English (US)
Categories: General

N.D.Ga.: Delay in SW for cell phone seized after consent search of vehicle not unreasonable

Defendant consented to a search of his vehicle and cell phones were seized, and it took a long time for the government to get search warrants for the cell phones, which were evidence of a crime. The delay did not require suppression. United States v. Franklin, 2012 U.S. Dist. LEXIS 73692 (N.D. Ga. April 27, 2012), adopted in part 2012 U.S. Dist. LEXIS 73714 (N.D. Ga. May 25, 2012):

For all of the reasons stated above, Mitchell [United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009)] is distinguishable from the instant case and does not provide a basis for the suppression of Boykins's cell phones.4 See United States v. Emanuel, 440 F. App'x 881, 885-86 (11th Cir. 2011) ("Because Emanuel gave his voluntary consent to the seizure and search of his computer, Mitchell is inapposite"); United States v. Stabile, 633 F.3d 219, 235 (3d Cir. 2011) (distinguishing Mitchell because the warrantless seizures in Mitchell were based on probable cause and not consent).

4 Boykins also relies heavily on United States v. Shaw, No. 1:11-cr-239-29-CAP-ECS, 2012 WL 844075 (N.D. Ga. Feb. 10, 2012), adopted by 2012 WL 843919 (N.D. Ga. Mar. 12, 2012) [here](granting defendant's motion to suppress evidence where search warrant was not obtained until three months after cell phones were seized). However, Shaw is distinguishable because the seizure in that case was based on a search incident to arrest rather than consent. To the extent that Shaw is not distinguishable, I disagree with it and choose not to follow it. [The USDJ disagrees with this footnote.]


Permalink 09:00:10 am, by fourth, 230 words, 597 views   English (US)
Categories: General

OH6: There is no crime scene exception to the Fourth Amendment but other mere observations were extensions of the 911 call

A friend came to defendant’s house and he told her to call 911 because he had just killed his wife. She did, and the police arrived, and he let them in to the house. While there is no general crime scene exception to the Fourth Amendment under Flippo, the entry of the first responders and then others were by consent or a mere extension of the first for an observation. No evidence was taken as to the latter. State v. Beach, 2012 Ohio 2338, 2012 Ohio App. LEXIS 2068 (6th Dist. May 25, 2012).

Defendant was with a group of people on the street, and a police car crossed traffic to pull up in front of them. They were not seized, even by the officer “asking” them to remove their hoods. United States v. Moede, 2012 U.S. Dist. LEXIS 73219 (E.D. Wis. May 25, 2012).*

Defendant is a Russian formerly living in Cyprus who was indicted in Brooklyn for international credit card fraud. When he was arrested in Cyprus, his laptop was seized and searched. He was extradited and pled guilty here. His lawyer was not ineffective for not challenging the search of the computer in Cyprus where the U.S. was not at all involved, and he consented to parts of it. Defendant also falls short on a “shocking the conscience” due process claim. United States v. Vega, 2012 U.S. Dist. LEXIS 73329 (E.D. N.Y. May 24, 2012).*

Permalink 12:05:04 am, by fourth, 107 words, 440 views   English (US)
Categories: General

OH8: Talking to defendant already stopped was by consent

Police had a tip about defendant and drugs, and they saw him parked in an abandoned gas station working on his vehicle. They approached to talk to him, and it was all consensual. State v. Banks, 2012 Ohio 2304, 2012 Ohio App. LEXIS 2024 (8th Dist. May 24, 2012).*

Officers had reasonable suspicion defendant had cocaine on him when they approached him, and defendant’s tossing an Altoids can as police approached was not the product of an illegal stop. State v. Golden, 95 So. 3d 522 (La. App. 4 Cir. 2012).*

The owner of the vehicle defendant was a passenger in consented to the search of the vehicle. United States v. McNeil, 473 Fed. Appx. 262 (4th Cir. 2012).*


Permalink 08:25:24 am, by fourth, 75 words, 4574 views   English (US)
Categories: General

Seat belt checkpoints?

Apparently some New York, Connecticut, and Arkansas police agencies have decided that seat belt checks are a good idea for a roadblock. They aren't constitutional because the true safety rationale of Sitz is missing, and they are only going to end up giving taxpayer dollars to the civil rights lawyer that sues them first. The point, of course, is what else is swept up, like drug arrests, which will lead to a motion to suppress.

Permalink 12:21:15 am, by fourth, 203 words, 619 views   English (US)
Categories: General

TN: Statement during Terry stop was not product of flagrant misconduct

Defendant’s statement during an investigative detention was not the subject of flagrant police conduct warranting suppression under Brown. State v. Buford, 2012 Tenn. Crim. App. LEXIS 342 (May 24, 2012)*:

Consequently, a weighing of the Brown factors leads to the conclusion that the defendant's statements were sufficiently the product of his own free will so as to purge the taint of any illegal arrest. Moreover, in this case, the legal conclusion dictated by Brown is confirmed by the presence of additional facts. The record reflects that the defendant never requested to leave at any point during the time period he was in police custody. Furthermore, the statements that the defendant made to police were intended to be exculpatory. While the principle that exculpatory statements may be suppressed as fruits of the poisonous tree is a concept as old as the doctrine itself, see Wong Sun, 371 U.S. at 487 (rejecting the government's argument that certain statements should be admissible because they were ostensibly exculpatory), the overarching picture painted by this record is not one of a defendant coerced into making an involuntary confession - or indeed any sort of statement at all--to the police as a result of some pressure or trauma resulting from an illegal detention.

Permalink 12:11:43 am, by fourth, 376 words, 433 views   English (US)
Categories: General

LA: Police use of recent burglary as pretext for knock-and-talk did not make it invalid

A burglary suspect told the police that he saw marijuana in defendant’s house when he burglarized it. The police used that as a justification for a knock-and-talk, and defendant let them in. They saw marijuana in plain view, and this was valid. Defendant argued pretext for the knock-and-talk, but that was unavailing. State v. Seiler, 89 So. 3d 1159 (La. 2012):

In this instance, defendant's home was the subject of a recent burglary. Upon information received from the burglary suspect there was contraband in the home, police officers from both the New Orleans Police Property Crimes Unit and officers from the Narcotics Unit traveled to defendant's home to investigate. When the officers knocked on the defendant's door, they requested and were granted entry into his home by the defendant himself. As a result, we do not find the officers were unlawfully in that place at that time.

The trial court, to justify its ruling suppressing evidence, stated in its per curiam the officers used a "pretext" to gain entry to the defendant's home, in that the officers attempted to enter the defendant's home under the guise of a continuing burglary investigation, and not a narcotics investigation. However, the United States Supreme Court ruled in Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L.Ed.2d 168 (1978), "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." In other words, if the officers had an objective right to knock on the defendant's door and ask to be admitted, it is of no moment the reason they were admitted may not have been the full reason they were at the defendant's home in the first place. Here, detectives knocked on the defendant's door, informed him they were there to investigate the burglary, and they were granted entry voluntarily by the defendant. See, Sanders, 374 So. 2d at 1188.

Moral to the story? Don't report a burglary at your house if you keep dope there. Grin and bear it. The number of times I've seen that in reported decisions is significant. You never know when the police will show up thereafter.

Permalink 12:01:30 am, by fourth, 238 words, 556 views   English (US)
Categories: General

TN: Knock-and-talk entry into rear of rural mobile home blocked from view violated curtilage

Backyard of mobile home with a gravel driveway that ended at front yard and brush all around that blocked view from road was curtilage. Going to the backyard by following the garden hose violated the curtilage for a knock-and-talk. State v. Draper, 2012 Tenn. Crim. App. LEXIS 346 (May 24, 2012)*:

The "knock and talk" procedure does not justify Deputy Hamby's incursion into the curtilage of the Defendants' home. Deputy Hamby was very clear in his testimony at the suppression hearing that he did not approach the Defendants' front door and made no attempt to contact them at the front door. Deputy Hamby could not recall if any of the water company employees attempted to contact the Defendants at their front door. Deputy Hamby also could not recall whether there were any other cars in the driveway when he arrived. Deputy Hamby testified that he bypassed the front door and simply followed the water hose into the Defendants' backyard. As such, Deputy Hamby left the area where the public was impliedly invited, exceeded the scope of the implied invitation, and intruded upon a constitutionally protected area. Furthermore, Deputy Hamby was aware that the Defendants had posted "no trespassing" signs on their property, effectively revoking the implied invitation of the front door. Accordingly, we conclude that Deputy Hamby made no attempt to institute a "knock and talk" procedure and that the procedure provides no justification for his warrantless entry into the Defendants' backyard.


Permalink 10:46:50 am, by fourth, 229 words, 475 views   English (US)
Categories: General

OH8: Admission of PCP use is RS

Relying on a tip of men selling drugs in Cleveland, the officers approached defendant and he admitted smoking PCP earlier. That was reasonable suspicion to pat him down for officer safety. State v. Hunter, 2012 Ohio 2302, 2012 Ohio App. LEXIS 2023 (8th Dist. May 24, 2012)*:

[*P19] In our view, the record establishes that the officers proceeded to investigate the area in good faith reliance upon the tip of men selling drugs. During their conversation with the men, defendant was sluggish, appeared dazed and confused, and repeatedly failed to answer the officers' questions. Although the officers demanded that defendant take his hands from his pockets, the record demonstrates that as the officer took a few steps closer to defendant, he quickly detected the distinct odor of PCP from defendant. Defendant then told the officers that he had smoked PCP earlier, and this created a reasonable suspicion, based upon specific and articulable facts, that an individual is or has been engaged in criminal activity such to justify a search of defendant's outer clothing under Terry. Accord State v. Wilson, 8th Dist. No. 94097, 2010 Ohio 5478 (patdown permissible where officers detected odor of PCP); State v. Dunn, 8th Dist. No. 85435, 2005 Ohio 3477.

Hunter is here. What’s this gratuitous use of “good faith” for an encounter? Sloppy appellate court writing--completely unnecessary, and a prosecutor will later use this case to argue the good faith exception applies to warrantless searches.

Permalink 10:28:41 am, by fourth, 154 words, 428 views   English (US)
Categories: General

S.D.Cal.: Wiretap gave PC to stop and search defendant's car

The product of the wiretap in this case gave probable cause to believe that defendant had drugs in his car when he showed up as predicted. United States v. Carey, 2012 U.S. Dist. LEXIS 72846 (S.D. Cal. May 24, 2012).*

A juvenile’s school photo ID was used in a photo lineup. He claimed an expectation of privacy in it, and the trial court granted a motion to suppress. Remanded for a determination of how all this came about because it can’t be determined whether there is a reasonable expectation of privacy on this record. “Such evidence might also help resolve whether the student identification card and photograph form part of the confidential ‘student record’ under State and Federal education regulations; if they are part of the student record, that fact would also bear on whether the juvenile had a reasonable expectation of privacy in the photograph.” Commonwealth v. Zachary Z., 462 Mass. 319, 968 N.E.2d 381 (2012).*

Permalink 10:25:41 am, by fourth, 159 words, 428 views   English (US)
Categories: General

E.D.Cal.: Gov't showed reliability of drug dog by affidavit and motion to suppress denied without hearing

By affidavit in response to the motion to suppress, the government showed that the drug dog was reliable and the motion to suppress is denied without a hearing. United States v. Sandoval, 2012 U.S. Dist. LEXIS 72776 (E.D. Cal. May 24, 2012):

"Based upon [these undisputed facts], the Government has met its burden of proving [Darco's] reliability." United States v. Neatherlin, 66 F. Supp. 2d 1157, 1160-61 (D. Mont. 1999)(stating evidence that the narcotics detection dog trains eight hours every two weeks, is tested and certified annually, and does not alert where no drugs are present "shows, by a preponderance of the evidence, that [the dog] is reliable"); see also Spetz, 721 F.2d at 1464 (stating a "mistake in the affidavit [supporting a search warrant] as to [the narcotics detection dog's] record was unimportant because the difference in figures[, i.e. alerting correctly 56 out of 61 occasions versus 60 out of 66 occasions,] is immaterial and would not have affected the magistrate's judgment of the dog's reliability").


Permalink 09:46:21 am, by fourth, 69 words, 405 views   English (US)
Categories: General

MS: Co-tenant consented to entry that led to defendant's arrest

Co-tenant consented to entry that led to defendant’s arrest. Kleckner v. State, 109 So. 3d 1072 (Miss. App. 2012).*

Bean bag shooting as excessive force was fact dependent, so no qualified immunity. Smith v. Smith, 477 Fed. Appx. 240 (5th Cir. 2012).*

Seizure of cash after detention for suspicious conduct in a casino and finding a Texas parole warrant on defendant was supported by probable cause. Adams v. State, 967 N.E.2d 568 (Ind. App. 2012).*

Permalink 09:38:51 am, by fourth, 118 words, 424 views   English (US)
Categories: General

LA5: Plain view exception to Gant

The stop and detention of the defendant was justified. Plain view of the interior of the car supported seizure of drugs, not Arizona v. Gant. State v. Burton, 98 So. 3d 375 (La. App. 5 Cir. 2012).*

The CI’s statement was entitled to credit on the probable cause determination by the issuing magistrate because it was based on first hand information and the CI was reliable in the past. State v. Banks, 95 So. 3d 508 (La. App. 5 Cir. 2012).*

Reasonable suspicion of criminal activity was created by defendant and his passenger giving inconsistent explanations regarding their travels, they were obviously nervous, there was a strong odor of air freshener and defendant had a criminal record. State v. Burney, 92 So. 3d 1184 (La. App. 2 Cir. 2012).*

Permalink 09:34:24 am, by fourth, 181 words, 475 views   English (US)
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CA3: Mirandizing and consent form made consent voluntary

When doing a knock-and-talk, officers smelled ammonia and this was probable cause of meth production and exigency. “The existence of ammonia has been recognized as constituting exigent circumstances due to its explosive nature.” State v. Cortez, 98 So. 3d 382 (La. App. 5 Cir. 2012).*

Defendant was Mirandized and signed a consent form when the officers talked in a conversational tone, so the record supports the conclusion that the consent was voluntary. United States v. Ortiz, 483 Fed. Appx. 712 (3d Cir. 2012).*

The affidavit for the search warrant showed probable cause. In executing warrant, officers were found to have knock-and-announced. The trial court credited the officers rather than somebody inside. The doors were not locked. State v. McDivitt, 2012 Ohio 2243, 2012 Ohio App. LEXIS 1980 (11th Dist. May 21, 2012).*

Officers responding to a 911 call saw a person on a child’s toy scooter and stopped him thinking that he was a juvenile out after curfew. When stopped, defendant was shocked to see the officer and highly nervous and shaking. That was reasonable suspicion and then he consented to a search of his person. Mwangi v. State, 316 Ga. App. 52, 728 S.E.2d 729 (2012).*

Permalink 08:32:08 am, by fourth, 556 words, 632 views   English (US)
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N.D.Ind.: Dog sniff on porch violated privacy interests under Jones

GPS was used to follow defendant to his home and then a dog sniff on the front porch violated his privacy rights under the Fourth Amendment. United States v. Peter, 2012 U.S. Dist. LEXIS 72485 (N.D. Ind. May 24, 2012):

While the precedent clearly teaches that a canine sniff-whether of a suitcase, an automobile, or a residence-is not itself a search within the meaning of the Fourth Amendment and therefore does not require any independent justification, the overall police action is still subject to constitutional constraints. Thus, in Place, although the dog sniff of the defendant's luggage did not constitute an unlawful search, the 90-minute detention of that luggage "went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics." 462 U.S. at 710. In Caballes, the Court "accept[ed] the state court's conclusion that the duration of the stop ... was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop," and held that the dog sniff did not transform the otherwise lawful traffic stop into an unlawful search. 543 U.S. at 408. And in Indianapolis v. Edmond, 531 U.S. 32 (2000), although the use of a drug-detection dog at drug interdiction checkpoints was not a search, the checkpoint program itself was unconstitutional because it was justified neither by road-safety concerns nor individualized suspicion. Similarly, in Brock, the Seventh Circuit reiterated that dog sniffs that detected only contraband were insignificant for Fourth Amendment purposes but stressed that "critical to our holding that the dog sniff in this case was not a Fourth Amendment search is the fact that police were lawfully present inside the common areas of the residence with the consent of Brock's roommate." 417 F.3d at 697.

In this case, Peter's front porch was unquestionably his private property, and the police came onto that property without express consent or a search warrant. As noted above, before the Supreme Court's recent decision in Jones, this fact would simply have been one factor among many relevant to determining whether the police action infringed the reasonable expectation of privacy protected by the Fourth Amendment. Although the origins of Fourth Amendment jurisprudence lie in the law of trespass, and at one time its protections were thought to limit only searches of tangible property, the Supreme Court long ago rejected "the premise that property interests control the right of the Government to search and seize" and has developed a more expansive protection for a person's "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 352-53 (1967). Following Katz, the prevailing assumption of the courts was that the new privacy-based formulation replaced the older property-based one, such that "privacy [came] not merely to supplement but to eclipse property as the interest protected by the Fourth Amendment." United States v. Redmon, 138 F.3d 1109, 1131 (7th Cir. 1998) (Posner, J., dissenting) (collecting cases). While property rights remained a relevant, even important, consideration in determining Fourth Amendment rights, property's role was "relegated to that of furnishing evidence of the reasonableness of a defendant's expectation of privacy." Id.

Whatever basis that assumption had, however, it did not survive the holding in Jones that the Katz reasonable expectation-of-privacy test supplemented, but did not replace, the older understanding that the Fourth Amendment "embod[ies] a particular concern for government trespass upon the areas ('persons, houses, papers, and effects') it enumerates." Jones, 132 S.Ct. at 950. ...

Permalink 08:21:49 am, by fourth, 316 words, 501 views   English (US)
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E.D.Ky.: Warrantless pre-Jones GPS monitoring was illegal, and the good faith exception would not be applied

Warrantless pre-Jones GPS monitoring was illegal, and the good faith exception would not be applied. United States v. Lee, 862 F. Supp. 2d 560 (E.D. Ky. 2012):

The Court, on referral, considers a motion to suppress. In sum, this is a case about legitimate law enforcement objectives pursued in an illegitimate way. Eight months after receiving a tip that Defendant was engaged in marijuana trafficking, law enforcement attached a global positioning tracking device on Defendant's car, believing that the law allowed for the installation of that device without a warrant. That belief turned out to be wrong. Although the Supreme Court held that such a warrantless installation of a tracking device violates the Fourth Amendment after the investigation giving rise to this case, the exclusionary rule applies and requires the suppression of evidence obtained through the installation and use of that tracking device. Unfortunately, the cost of suppression is high—Defendant was found with large quantities of marijuana and made damaging admissions, which support a Class A felony marijuana trafficking charge. Defendant's criminal history category, previously determined by this Court to be the worst possible under the Guidelines, underscores Defendant's propensity for dangerous criminal behavior. Indeed, Defendant admitted to marijuana trafficking while on supervised release from a previous Judgment of this Court.

For a variety of reasons, however, the deterrence benefits of suppression outweigh its heavy costs. This is so primarily because no unequivocal precedent allowed for the warrantless installation of the tracking device. Instead, law enforcement interpreted various cases to support their decision not to seek a warrant. Of course, it is the business of the courts to interpret the law. In the absence of unequivocal precedent allowing for the government's installation of the tracking device, suppression is necessary. Thus, as more fully described below, having reviewed the evidence, briefs, and arguments submitted by counsel, the Court RECOMMENDS that the District Court GRANT the motion to suppress.


Permalink 09:32:40 am, by fourth, 711 words, 706 views   English (US)
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TX: No per se rule illegal stop voids arrest on outstanding warrant

Defendant was illegally stopped for a traffic offense, but it was not flagrantly illegal. When the defendant’s DL was run, an outstanding warrant was found on him, and he was arrested for that. After surveying the law, the court decides that there is no per se rule requiring the finding of the outstanding warrant be suppressed. It is a concern that its holding would potentially encourage illegal stops, but the court is not persuaded that always is the case. Remanded for further proceedings. State v. Mazuca, 2012 Tex. Crim. App. LEXIS 697 (May 23, 2012) (dissent here and here):

We agree with the Arizona Supreme Court's general assessment. In our view, the first Brown factor is certainly relevant, but, even though it usually favors suppression of evidence that is discovered in the immediate aftermath of an illegal pedestrian or roadside stop, it will sometimes prove to be, in the context of the seizure of physical evidence, "the least important factor"—at least relative to the other two. And while we are hesitant to confirm as a categorical matter that the intervening circumstance of a valid arrest warrant is "of minimal importance"—after all, without it, there can usually be no attenuation of taint when physical evidence is unearthed immediately after an illegal stop—we agree that it should not be overemphasized to the ultimate detriment to the goal of deterrence that animates the exclusionary rule. Finally, we agree that the more important factor is the purposefulness and flagrancy, vel non, of the primary illegal conduct—whether the police have deliberately perpetrated what they know to be an illegal stop in the specific hope or expectation that it will generate some legitimate after-the-fact justification to arrest and/or search, or they have otherwise conducted themselves in particularly egregious disregard of the right to privacy and/or personal integrity that the Fourth Amendment protects. For, when this is the case, to admit the physical evidence because of the fortuity that an arrest warrant happens to come to light before the evidence is discovered perversely serves to encourage, rather than discourage, official misconduct and renders the Fourth Amendment toothless.

To summarize: When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance. To the extent that our pre-Brown analysis on direct appeal in Johnson placed practically exclusive emphasis on the intervening circumstance of an arrest warrant to justify the admission of evidence following an illegal stop, we disapprove it.

. . .

The court of appeals nevertheless affirmed the judgment of the trial court out of what it deemed an overriding concern that a contrary ruling would "encourage" the police to undertake unlawful stops on a pretext, "for the purpose of establishing probable cause or discovering the existence of arrest warrants." We certainly share that concern. However, we think that prioritizing the purposefulness and flagrancy factor satisfactorily addresses that concern without fashioning a rule that would altogether remove the intervening discovery of an arrest warrant as a factor relevant to the attenuation of taint analysis, as the court of appeals opinion tended to do. The court of appeals adopted an approach that would effectively presume purposeful and/or flagrant police misconduct from the fact of the primary illegality alone rather than assessing the character of that illegality, and of any subsequent police conduct, to determine whether it indicates that they actually behaved purposefully or flagrantly in the particular case. We hold that the court of appeals erred to rely upon this de facto presumption to affirm the trial court's ruling on the appellee's motion to suppress. Applying the appropriate analysis today, we hold that the trial court should have denied that motion.

Permalink 09:19:25 am, by fourth, 216 words, 402 views   English (US)
Categories: General

E.D.Tenn.: Premises was objectively one residence, not two as defendant contended; he was a mere guest

There were no objective manifestations that the place to be searched was actually two residences. It was one with defendant staying as a guest, and the search warrant for the building was particular. United States v. Melton, 2012 U.S. Dist. LEXIS 71151 (E.D. Tenn. February 7, 2012):

Nevertheless, even assuming there were two residences, the Court finds nothing that would have put Investigator Butler on notice that the River Road house contained two dwellings. The house was a single family dwelling, not an apartment building, a duplex, or a townhouse. The affidavit states [Exh. 1, ¶3] that the officers verified the confidential informant's description of the residence. The record is devoid of evidence that the residence had two mailboxes, driveways, or other physical indication that it contained two residences. The confidential informant's statement to Investigator Butler that he lived in the downstairs portion of the residence did not indicate that the informant was renting a separate residence, rather than staying as Ms. Burgess and the Defendant's guest. ...

The reason for defendant’s traffic stop was a reasonable mistake of fact, and defendant was acting furtively when the officer walked up on him. The furtive gestures justified a frisk of the vehicle producing a gun, then a search warrant issued for the vehicle. United States v. Jenkins, 680 F.3d 101 (1st Cir. 2012).*

Permalink 08:53:36 am, by fourth, 225 words, 417 views   English (US)
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CA3: Description of person to be seized by his street name, description, and location was particular enough

Identification of person to be arrested in the arrest warrant by street name and description and where to find him was particular enough. United States v. Dunaway, 482 Fed. Appx. 714 (3d Cir. 2012):

Here, the warrant did not include the appellant's proper name, Nisia Dunaway, referring to him instead merely as "BLIZZ." But the warrant did provide a physical description of him, including his height, skin color, hair style and color, and build— though not, as Dunaway points out, his age. Further, the warrant specified that he would be found arriving by train in Johnstown at 6:00 pm on April 10, 2010.

The warrant's physical description of "Blizz" and the specific location where he would be found at a precise time were, together, sufficiently particular that an executing officer could identify the appellant with reasonable certainty. Compare Doe, 703 F.2d at 747 (holding that warrant to arrest "John Doe a/k/a "Ed?" was unconstitutional for lack of particularity), with Ferrone, 438 F.2d at 389 (upholding search of defendant's person pursuant to warrant to search "John Doe, a white male with black wavy hair and stocky build observed using the telephone in Apartment 4-C 1806 Patricia Lane, East McKeesport, Pennsylvania"). See also 2 LaFave, supra, § 4.5(e), at 598 n.134 (collecting cases). Thus, we reject Dunaway's contention that the warrant to search his person was so lacking in particularity as to be an unlawful general warrant.

Permalink 08:19:56 am, by fourth, 161 words, 499 views   English (US)
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TX7: IP address associated with downloading CP was PC for computers in house

An IP address traced to defendant’s house was probable cause for a search warrant for computers hooked up to the premises for child pornography. Barrett v. State, 367 S.W.3d 919 (Tex. App. – Amarillo 2012).*

The fact that defendant pursued a motion to suppress at the state trial court level shows that he had a full and fair opportunity to litigate the search claim, so he could not make a Fourth Amendment habeas claim. Kidwell v. Martin, 480 Fed. Appx. 929 (10th Cir. 2012).*

(1) It was 1:15 a.m.; (2) criminal activity had recently increased in the area; (3) defendant was standing on the private property of an auto body shop; (4) the shop was closed; (5) no other businesses in the area were open; (6) no other people were nearby; (7) the officer heard a loud crash; (8) defendant fled; and (9) defendant was carrying bags. The officer reasonably concluded that he had reasonable suspicion that a theft had occurred. The motion to suppress was improperly granted. People v. Funez-Paiagua, 2012 CO 37, 276 P.3d 576 (2012).*

Permalink 08:10:37 am, by fourth, 206 words, 878 views   English (US)
Categories: General

D.Idaho: Faint smell of marijuana on defendant’s DL was not probable cause to search the car

Faint smell of marijuana on defendant’s DL was not probable cause to search the car. United States v. Hickman, 2012 U.S. Dist. LEXIS 71330 (D. Idaho May 21, 2012):

The Ninth Circuit has held that "a strong odor of marijuana emanating from a vehicle can constitute probable cause to search the vehicle." United States v. Guzman-Padilla, 573 F.3d 865, 886 n. 5 (9th Cir. 2009). The Court, however, concludes in this case that the faint smell of marijuana on Hickman's license did not justify a search of his car. When questioned about the smell of marijuana on his license, Hickman explained that his roommate has a prescription for medical marijuana. While this explanation standing alone may not have excused Hickman, other factors support a finding of no probable cause: Hickman passed the field sobriety test; he was never resistant or confrontational; he appeared coherent in the video; and neither his clothes nor his car smelled of marijuana. Even Officer Cox, who was present at the scene, questioned whether he had probable cause to search the vehicle. While this has no legal bearing on the issue because the existence of probable cause is based on objective facts, it suggests that perhaps that the proper level of justification did not exist for the search.

Permalink 07:46:51 am, by fourth, 216 words, 748 views   English (US)
Categories: General

D.Vt.: Roadside questioning here ultimately became custodial

Defendant’s detention on the side of the road evolved into a custodial interrogation because of the officer’s actions in telling defendant she wasn’t going anywhere until the drug dog did its thing and denied her use of the phone and cigarettes. While basic traffic detentions are not custodial interrogations, they can become one and this one did. United States v. Ramos, 2012 U.S. Dist. LEXIS 71259 (D. Vt. May 21, 2012) (See Howes v. Fields, 132 S. Ct. 1181, 1190, 182 L. Ed. 2d 17 (2012) (holding that "the roadside questioning of a motorist who was pulled over in a routine traffic stop did not constitute custodial interrogation."); Berkemer v. McCarty, 468 U.S. 420, 436, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (holding that while motorists subject to routine traffic stops do not generally feel free to leave they are not in custody for Miranda purposes); see Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009) ("An officer's inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.");

Defendant was detained too long considering the alleged justification, and his subsequent consent was tainted by the overlong detention. United States v. Petersen, 2012 U.S. Dist. LEXIS 71551 (D. Utah May 22, 2012).*


Permalink 05:54:06 pm, by fourth, 114 words, 458 views   English (US)
Categories: General

HuffPo: "FBI Web Surveillance: Bureau Creates Unit To Eavesdrop On Internet Communications"

HuffPo: FBI Web Surveillance: Bureau Creates Unit To Eavesdrop On Internet Communications by Sara Gates:

With the Federal Bureau of Investigation's recent push for web wiretaps and increased Internet surveillance, the U.S. seems to be edging closer to the fictional state described in George Orwell's "1984."

As CNET reported earlier this week, the FBI recently created a secret web-surveillance unit, the Domestic Communications Assistance Center, aimed at creating tech that would allow the authorities to more easily eavesdrop on Internet and wireless communications. The DCAC will act as hub for all web surveillance, but will not be directly involved in executing Internet wiretapping court orders or operating investigations if proposed legislation passes as planned.

Permalink 03:34:42 pm, by fourth, 119 words, 527 views   English (US)
Categories: General

S.D.Ill.: IAC claim has to show search issue would have prevailed and changed outcome of case

When an IAC search claim is filed, the petitioner has to show what the search was and that he would prevail and the verdict would be different. Fuller v. United States, 2012 U.S. Dist. LEXIS 70813 (S.D. Ill. May 22, 2012) (citing Johnson v. Thurmer, 624 F.3d 786, 792-93 (7th Cir. 2010) (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986))).

Stopping car in the middle of the street was reasonable suspicion for a stop. State v. Foster, 2012 Tenn. Crim. App. LEXIS 323 (May 17, 2012).*

The anticipatory warrant in this case was valid, despite a typographical error in the tracking number because of the otherwise specific description of the package and the place to be searched. State v. Davidson, 2012 Tenn. App. LEXIS 323 (May 17, 2012).*

Permalink 03:03:32 pm, by fourth, 260 words, 447 views   English (US)
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N.D.Ga.: Merely blocking a car doesn't per se constitute a seizure

Under Miller v. Harget, 458 F.3d 1251 (11th Cir. 2006), a police car pulling behind defendant’s car did not per se effect a seizure without more, such as lights and officers’ aggressive actions. United States v. Flores-Uriostegui, 2012 U.S. Dist. LEXIS 71162 (N.D. Ga. May 22, 2012):

Based on these facts, the Eleventh Circuit held that "[c]onsidering the fact that the first contact between [the suspect] and [the officer] did not occur until [the suspect] lowered the window, the fact that [the officer] pulled up behind [the suspect] and turned on his 'window lights' does not demonstrate that [the suspect] was coercively detained." Id. at 1258.

The facts here are similar to the relevant circumstances in Miller. In both instances, the officers pulled their marked patrol car behind a suspect's vehicle in such a way that the suspect could not leave. Unlike the officer in the Miller case, however, Officers Gray and Turman did not turn on their "window lights" or otherwise alert defendants to their presence. Thus, their approach was less intrusive than was the Miller officer's approach. There is also nothing in the record to suggest that the delay here between the parking of the patrol car and the approach of defendants' vehicle was anything other than "extremely brief." Perhaps most important to the Miller court's analysis was the absence of any display of authority prior to approaching the vehicle. Like the law enforcement official in Miller, Officers Gray and Turman did not draw their guns, give any directions to defendants, or activate their patrol car lights before approaching the vehicle.

Permalink 11:47:06 am, by fourth, 80 words, 465 views   English (US)
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CBSDC: "Groups Concerned Over Arming Of Domestic Drones"

CBSDC: Groups Concerned Over Arming Of Domestic Drones:

With the use of domestic drones increasing, concern has not just come up over privacy issues, but also over the potential use of lethal force by the unmanned aircraft.

Drones have been used overseas to target and kill high-level terror leaders and are also being used along the U.S.-Mexico border in the battle against illegal immigration. But now, these drones are starting to be used domestically at an increasing rate.

Permalink 11:31:32 am, by fourth, 757 words, 911 views   English (US)
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E.D.Ky.: Warrantless pre-Jones GPS surveillance was subject to the exclusionary rule and no GFE because of no binding circuit precedent

Warrantless GPS tracking before Jones was a fishing expedition, and, “[i]n this case, the DEA agents had their fishing poles out to catch Lee.” The exclusionary rule had to apply, and the good faith exception would not be applied for lack of binding precedent in the circuit. United States v. Lee, 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. May 22, 2012):

Finally, the "purpose and flagrancy of the official misconduct" weighs against attenuation. Brown, 422 U.S. at 604. This last factor is often the "most important," United States v. Shaw, 464 F.3d 615, 630 (6th Cir. 2006), because "[t]he primary focus of attenuation analysis is whether or not the deterrent purpose of the exclusionary rule is served by suppression," United States v. Gray, 491 F.3d 138, 155 (4th Cir. 2007) (Wilkinson, J.). Although the DEA agents' misconduct was not flagrant, the Sixth Circuit has explained that police officers act with an unlawful purpose when they perform an "investigatory" search, that is, "when officers unlawfully seize a defendant "in the hope that something might turn up.'" United States v. Williams, 615 F.3d 657, 670 (6th Cir. 2010) (quoting Brown, 422 U.S. at 605); see also Shaw, 464 F.3d at 631 (noting that "Brown made it clear that the requisite "quality of purposefulness' can be demonstrated when the [misconduct], in design and execution, is investigatory in nature"). The Seventh Circuit agrees that an illegal search has an unlawful purpose when it is "undertaken in an effort to advance the investigation or to embark on a fishing expedition." United States v. Reed, 349 F.3d 457, 465 (7th Cir. 2003).

In this case, the DEA agents had their fishing poles out to catch Lee. Admittedly, the agents did not intend to break the law. But they installed a GPS device on Lee's car without a warrant "in the hope that something might turn up." Williams, 615 F.3d at 670. (quoting Brown, 422 U.S. at 605). When suspicious behavior did, in fact, turn up, they alerted the Kentucky State Police. By doing so, they set in motion a chain of events that ended with Lee's arrest. Their unlawful purpose means that the third attenuation factor also weighs in favor of suppression.

Moreover, the Gross panel pointed out that allowing "post-hoc rationalization" by police would create the "perverse" incentive for police officers to detain any individual going about their daily routines in the hope of turning up an outstanding warrant. Gross, 662 F.3d at 405. The same perverse incentive is present here: if Lee's seatbelt violation were an intervening circumstance, police could install tracking devices with impunity so long as they waited until the subject of their surveillance commits a minor traffic violation. Accord Maryland v. Wilson, 519 U.S. 408, 423 (1997) (Kennedy, J., dissenting) (describing the "almost countless circumstances" that allow the police to stop a vehicle). At that point, the police could stop them and search for evidence of illegal activity. Thus, the Court agrees with Judge Ingram that the police misconduct was guided by an impermissible purpose. See R. 33 at 16. Because none of the three factors favor attenuation, the Court must suppress all evidence that derived from Metzger's illegal search, including the traffic stop, the search of Lee's car, and his subsequent confession.

. . .

This Court is also not the first district court to confront the question of whether to apply the good-faith exception after Jones. In the Ninth Circuit, where binding circuit precedent authorized warrantless GPS monitoring, three district courts have applied the good-faith exception to defeat the defendant's motion to suppress. United States v. Aquilar, No. 4:11-cr-298-BLW, 2012 WL 1600276, at *2 (D. Idaho May 7, 2012); United States v. Leon, No. CR 09-00452, 2012 WL 1081962, at *3 (D. Haw. Mar. 28, 2012); United States v. Nwobi, No. CR 10-952(C)GHK-7, 2012 WL 769746, at *3 (C.D. Cal. Mar. 7, 2012). A district court in the Eighth Circuit did the same, also holding that the officer's reliance on binding circuit precedent triggered the good-faith exception. United States v. Amaya, No. CR-11-4065-MWB, 2012 WL 1188456, at *7-8 (N.D. Iowa Apr. 10, 2012). But in the Third Circuit, where there was no appellate ruling on warrantless GPS tracking, one district court refused to extend the good-faith exception. United States v. Katzin, No. 11-226, 2012 WL 1646894, at *9-10 (E.D. Pa. May 9, 2012). Applying the good-faith exception in the absence of binding appellate precedent would, in that court's eyes, "effectively eviscerate the exclusionary rule." Id. at *9. If law enforcement could "rely on non-binding authority, particularly in the face of other, contrary non-binding authority," officers would "beg forgiveness rather than ask permission in ambiguous situations involving ... basic civil rights." Id.

See Pot Prosecution Goes Up in Smoke Due to Warrantless GPS Tracking by Kim Zetter.

Permalink 11:05:33 am, by fourth, 204 words, 693 views   English (US)
Categories: General

FL1: DA's opening statement mentioning def's refusal to consent to search of car was reversible error

Prosecutor’s opening statement reference to defendant’s refusal to consent to a search was reversible error in a possession case where the defendant denied knowledge a gun was in the car. Rose v. State, 2012 Fla. App. LEXIS 8026 (Fla. 1st DCA May 22, 2012):

We hold that the trial court erred by overruling Appellant's objection and that this error was not harmless here. See Bravo v. State, 65 So. 3d 621 (Fla. 1st DCA 2011) (reversing conviction where trial court allowed impermissible testimony regarding defendant's refusal to consent to search of home without a warrant); Gomez v. State, 572 So. 2d 952, 953 (Fla. 5th DCA 1990) (holding "[c]omment on a defendant's denial of permission to search a vehicle, although not exactly the same thing as comment on a defendant's right to remain silent, since the Fourth Amendment is involved rather than the Fifth, constitutes constitutional error of the same magnitude.") (footnote omitted); see also Ramet v. State, 209 P.3d 268 (Nev. 2009) (holding that state may not introduce evidence that defendant refused to consent to warrantless search, as "defendant's invocation of his Fourth Amendment right cannot be used as evidence of a crime or consciousness of guilt," and citing Gomez and other federal and state decisions, but recognizing that error may be harmless).

Permalink 10:47:02 am, by fourth, 230 words, 489 views   English (US)
Categories: General

E.D.Mich: Terry stop for waving gun permitted handcuffing without becoming an arrest

Where waving a weapon was reported to 911, handcuffs during a Terry stop and frisk was reasonable and not an arrest. United States v. Moore, 2012 U.S. Dist. LEXIS 71023 (E.D. Mich. May 22, 2012):

Defendant argues his seizure ripened into an arrest the moment he was handcuffed and thus required probable cause. (Def.'s Mot. at 6.) This Court disagrees. The Sixth Circuit considered a similar argument in Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 814 (6th Cir. 1999). In Houston, the court observed that "the use of handcuffs [does not] exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution." Id. at 815 (citing cases). It concluded that, because the defendant officers reasonably believed that the individuals stopped had been involved in a shooting, "their use of handcuffs and their detention of the men in the [police] cruisers were both reasonably necessary to protect the officers' safety during the investigation ... [and] were therefore 'reasonably related' to the investigation that warranted the initial stop." Id. The same is true here. Based upon the facts provided to them from the in-person interview with the 911 caller, the officers that initially stopped Defendant had a reasonable belief that he was intoxicated, armed, and dangerous. Thus, their use of handcuffs before conducting a pat-down for weapons was reasonably necessary to protect their safety during the investigation that warranted the initial stop.

Permalink 12:03:13 am, by fourth, 45 words, 462 views   English (US)
Categories: General

New law review articles on Facebook

Junichi P Semitsu, Arresting Development: Facebook Searches and the Information Super Highway Patrol, 65 Ark. L. Rev. 99 (2012)

Caren Myers Morrison, Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment, 65 Ark. L. Rev. 133 (2012)

These aren't available for free on the law review's website yet.


Permalink 03:06:40 pm, by fourth, 84 words, 398 views   English (US)
Categories: General

Crain's New York: "Big glitch in feds’ case against Spongetech"

Crains New York: Big glitch in feds’ case against Spongetech by Aaron Elstein:

The government has majorly messed up its seemingly airtight case against the chief executive of Spongetech Delivery Systems, a New York-based maker of SpongeBob SquarePants sponges that allegedly faked 99% of its sales.

Last week, a federal judge ruled that reams of emails and other potentially damaging evidence couldn’t be used in court because the government took too long to examine the bounty.

My prior post on the case is here.

Permalink 09:15:16 am, by fourth, 391 words, 602 views   English (US)
Categories: General

IN: Penile swab for DNA without exigent circumstances was unreasonable; but harmless here

The police violated a juvenile rape suspect’s Fourth Amendment rights by getting his mother’s consent to a penile swab for DNA. The state’s showing of exigency was insufficient. This was harmless error here, however, where the victim ID’d him and his DNA was left on her and on a ski mask. Lee v. State, 967 N.E.2d 529 (Ind. App. 2012):

The absence of evidence that officers actually believed DNA was about to be destroyed might be due to a lack of evidence that would sufficiently support the State's appellate claim that the officers did so believe, or it might be due to Lee's failure to object and thereby press the State to present evidence thereof. In any event, our narrowly tailored holding is that sufficient evidence of exigent circumstances was not presented at trial. Because it is the State's burden to present such evidence to overcome a presumption of unreasonableness, its failure to overcome that burden renders the admission of such evidence erroneous without another valid justification.

On appeal, the State compares this case to two cases from other jurisdictions in which officers apprehended suspects of sexual assaults soon after the crimes occurred and obtained penile swabs of the suspects in a manner such that appellate courts later held the swabs justified by exigent circumstances. See Kaliku v. U.S., 994 A.2d 765 (D.C. Cir. 2010); Ontiveros v. Texas, 240 S.W.3d 369 (Tex. App. 2007), petition stricken. We agree that the offenses under investigation in Kaliku and Ontiveros are similar to this case, and that the officers faced a similar situation in those cases as the officers did here. We conclude differently from Kaliku and Ontiveros because the evidence presented at Lee's trial regarding officers' thoughts and actions do not demonstrate they actually believed Lee might destroy any DNA evidence on his penis.

. . .

Detective Cress's short statement that he would not allow Lee to wash his hands, without further elaboration, pales in comparison to the evidence presented in Kaliku and Ontiveros, and is insufficient to overcome the State's burden to demonstrate officers actually held an objective, reasonable belief that evidence was about to be destroyed.9

9 Further, it should be noted that if officers wanted Lee's DNA, exigent circumstances certainly did not exist because Lee's DNA would not change and officers could have obtained a warrant and obtained his DNA later.

Permalink 08:58:46 am, by fourth, 160 words, 455 views   English (US)
Categories: General

S.D.N.Y.: No co-conspirator standing

Five search warrants were executed after wiretaps. Defendant had standing as to his business and home, but not three others. There is no co-conspirator exception to standing for them (Padilla). There was “strong evidence” of probable cause supporting the search warrants, so the motion is denied as to all five. United States v. Kazarian, 2012 U.S. Dist. LEXIS 70050 (S.D. N.Y. May 18, 2012).*

Defendant had a “full and fair opportunity to litigate” his search claim which he waived by his guilty plea. The after the fact discovery by defendant that a witness on the search issue was not completely believable wasn’t good enough to undermine the plea. Balleza v. United States, 2012 U.S. Dist. LEXIS 69537 (N.D. Tex. May 17, 2012).*

Defendant’s 2255 claim that defense counsel failed to challenge warrantless searches fails without an allegation as to what those searches were and how he was prejudiced by it. Fuller v. United States, 2012 U.S. Dist. LEXIS 70813 (N.D. Ill. May 22, 2012).*

Permalink 08:21:44 am, by fourth, 322 words, 601 views   English (US)
Categories: General

E.D.Cal.: Threat to Taser and arrest person detained with others suspected of disorderly conduct was unreasonable

Yosemite National Park officers came to a campsite to investigate disorderly conduct and a traffic offense and ordered everybody to sit at a table and show their hands. One lady refused to be patted down and then was threatened with being Tasered, and that was unreasonable under the circumstances. She was targeted only because she was with others who might be suspects. United States v. Mazzetti, 2012 U.S. Dist. LEXIS 69922 (E.D. Cal. May 17, 2012)*:

Based on the record before the Court, including the primary concern for the personal freedom of individuals who are suspected of having done nothing more than to have committed, and completed, a misdemeanor, the rangers had the right and duty to approach the group and question its individual members regarding possible criminal activity. However, they lacked the right to conduct an investigatory stop, i.e, restrain the liberty, of Defendant. They did restrain her. The restraints violated protections afforded her under the Fourth Amendment to the United States Constitution.

The Court does not discount nor denigrate the reasonableness and sincerity of Ranger Bellino's belief that the restraints on Defendant's freedom were necessary to ensure safety of himself and his fellow rangers dealing with members of a group which outnumbered the Rangers. The Court respects such concerns. History has shown that law enforcement personnel are regularly exposed to wholly unexpected, and all too often deadly, threats. However, our Constitution demands that such concerns be balanced against citizens' rights to be free of unreasonable seizure of their persons. Thus, law enforcement may not take action to restrain the personal liberties of individuals based on purely theoretical safety concerns. Here, when Ranger Bellino arrived, nothing suggested to him that any member of the group had engaged in any serious crime or threat to public safety or posed an ongoing threat to Ranger Bellino or anyone else. There was no justification for using the threat of force to compel Defendant's continued presence.


Permalink 05:25:07 pm, by fourth, 189 words, 435 views   English (US)
Categories: General

CA5: State's attempt to remove a house now on a beach because of Hurricane Rita was an unreasonable seizure under the Fourth Amendment

The State of Texas claimed a beach easement on plaintiff’s beachfront property following Hurricane Rita which moved the vegetation line back and put the house on the beach. The State's effort to remove the house was a Fourth Amendment violation. Severance v. Patterson, 07-20409 (5th Cir. May 21, 2012) (per curiam):

The Texas Supreme Court answered our certified questions in this case, see Severance v. Patterson, 566 F.3d 490, 503-04 (5th Cir. 2009), by declaring that Texas law does not recognize a “rolling easement” created by avulsive events affecting the dry beach of Galveston’s West Beach. Severance v. Patterson, No. 09-0387, Tex S.Ct. April 19, 2012, op. on reh. For the panel majority, this answer reifies the claim of appellant Severance to an “unreasonable” seizure violative of the Fourth Amendment in the State’s assertion of an easement (and related regulatory violations) on her beachfront property following Hurricane Rita. (Judge Wiener continues to dissent on this portion of the prior and present dispositions.)

Because the potential existence of this constitutional claim is now confirmed, the district court’s judgment against Severance predicated on Fed. R. Civ. P. 12(b)(1) and (6) must be reversed.

Permalink 02:07:13 pm, by fourth, 313 words, 735 views   English (US)
Categories: General

New law review article: "Is the Exclusionary Rule Dead?"

Craig M. Bradley, Is the Exclusionary Rule Dead? 103 J. Crim. L & Criminology 1 (2012):

In three recent decisions, Hudson v. Michigan, Herring v. United States, and last Term’s Davis v. United States, the Supreme Court has indicated a desire to severely restrict the Fourth Amendment exclusionary rule. A majority of the Justices wants to limit its application to cases where the police have violated the Fourth Amendment purposely, knowingly, or recklessly, but not where they have engaged in “simple, isolated negligence” or where negligence is “attenuated” from the discovery of the evidence. They have further suggested that evidence should not be excluded where the police have behaved as reasonable policemen, using the approach from United States v. Leon.

The Court’s new approach, based on the culpability of the police, is subjective, yet the Court insists that it does not probe the police’s mind. The new approach seems to reject negligence as the basis of exclusion, yet Leon is a negligence-based approach. The new approach assumes that “reckless” behavior can be deterred more readily than negligent behavior, but that is not obvious.

This Article reviews Hudson, Herring, and Davis, as well as the court of appeals cases that have applied Herring. It suggests that the Supreme Court has not eliminated the exclusionary rule and argues that the rule should still be applied in cases of “substantial” as opposed to “simple isolated” negligence—that is, when negligence has substantially interfered with a suspect’s privacy rights, such as through an illegal arrest or an illegal search of his car or house. It notes that none of the three cases decided by the Court involved such a substantial intrusion. It concludes, through a careful reading of the three cases, as well as examination of successful defense appeals in the courts of appeals, that the exclusionary rule, though limited, is neither dead nor unacceptably constrained.

Permalink 08:31:12 am, by fourth, 159 words, 402 views   English (US)
Categories: General

S.D.N.Y.: Defendant must contest facts in police reports to get a suppression hearing

Where the arrest reports show defendant consented to a search, the defendant must file an affidavit in opposition to get a hearing to show a disputed fact. United States v. Rosario, 2012 U.S. Dist. LEXIS 69240 (S.D. N.Y. May 11, 2012).*

An AT&T technician visiting defendant’s house and working on his internet connection accessed the computer to see if it would connect to the internet and saw child pornography. This was not a government search. United States v. Jurek, 2012 U.S. Dist. LEXIS 70242 (N.D. Ohio May 21, 2012).*

Defendant was stopped on a motorcycle on the closed Quantico Marine base by a U.S. Marines police officer. The officer first thought he might be lost, but his demeanor suggested criminal activity of some sort, and the frisk of his back pack after he admitted there was a knife in there and had no DL was reasonable. United States v. Cooper, 2012 U.S. Dist. LEXIS 70001 (E.D. Va. May 18, 2012).*

Permalink 07:47:32 am, by fourth, 508 words, 595 views   English (US)
Categories: General

D.N.J.: Computer SW was limited to 2007 records, but search went way back; search violated the warrant when FBI failed to limit the keyword search

The search warrant sought computer records for 2007, but the government’s computer search intentionally wasn’t limited and found incriminating records from 2003 and 2004. The government’s failure to limit the search violated the terms of the search warrant. Also, one defendant who had a desk and a computer in a common area had an expectation of privacy in both because nobody else used them. Moreover, the computer was password protected. United States v. Reeves, 2012 U.S. Dist. LEXIS 68962 (D. N.J. May 17, 2012):

In particular, Special Agent Cassin testified that he had the ability to limit his search to the calendar year 2007 and search for documents that were created and modified in 2007. He also had the ability to search for the year "2007" or "/07," etc., in the body of the documents using a keyword search. Special Agent Cassin, however, testified that he did nothing to so limit his search and instead searched all the files on the Harbor House computers without regard to their date. Specifically, Special Agent Cassin disregarded the scope of the warrant by engaging in broad keyword searches of all the electronic files on the computers.

This is unreasonable and violates the Fourth Amendment. It is evident that Special Agent Cassin took no efforts to comply with the temporal scope of the warrant and disregarded the express date limitation contained therein. Special Agent Cassin did not conduct his search in a manner that minimized unwarranted intrusions upon privacy and his broad keyword search was more akin to "'general, exploratory rummaging" in Harbor House's computer files rather than a particular search in accordance with the express limitations of the search warrant. Andresen v. Maryland, 427 U.S. at 481. If the government felt they had enough probable cause to justify a search of Harbor House computers for all documents related to oysters and the Reeves Brothers, which is essentially what the government did, then the government needed to re-apply for a new warrant or put forth sufficient probable cause for such a broad search in their initial application. The government did neither in this case and thus their search is unreasonable as to the pre-2007 documents.

The government's reliance on United States v. Stabile, 633 F.3d 219, 241-42 (3d Cir. 2011) is misplaced. In Stabile, the government inadvertently found child pornography files on the defendant's computer while searching the computer for evidence of financial fraud. The discovery of the child pornography was inadvertent and immediately apparent due to the lurid names of the electronic files. Such files containing child pornography were in plain view of the searching agents and could thus be seized as evidence of crime.

The instant action is clearly distinguishable. There was no inadvertence by the government in finding the 2003 and 2004 incriminating documents at issue here. These documents would not have been retrieved if the search was limited pursuant to the terms of the search warrant which only authorized the government to search for documents created or modified from January 1, 2007 to December 31, 2007. The discovery of these two 2003 and 2004 documents was the result of the government's overly broad keyword search. ...

Permalink 07:38:45 am, by fourth, 321 words, 445 views   English (US)
Categories: General

D.Mass.: Civily committed NGBRI subject to DNA Act

Plaintiff is civilly committed to the BOP having been found not guilty by reason of insanity in 2003 for an attempted airplane hijacking. The court concludes the DNA Act applies to him. Commey v. United States, 2012 U.S. Dist. LEXIS 70425 (D. Mass. May 21, 2012):

No court has addressed the constitutionality of the DNA Act as applied to individuals civilly committed to BOP custody after being found not guilty by reason of insanity. In Weikert, the First Circuit applied the general Fourth Amendment totality of the circumstances analysis, balancing Weikert's expectation of privacy against the government's interest in taking his DNA. 504 F.3d at 11. Applying this analysis to Commey, civilly committed persons have a diminished expectation of privacy. Both the Supreme Court and First Circuit have compared the liberty interests of civilly committed persons to those of pretrial detainees. See Youngberg v. Romeo, 457 U.S. 307, 320 (1982); Davis v. Rennie, 264 F.3d 86, 102, 108 (1st Cir. 2001) (applying to civilly committed persons the legal standard for Fourth Amendment seizure claims brought by pretrial detainees). The Eighth Circuit has explicitly held that, when considering whether a particular search violates the Fourth Amendment, civilly committed persons have the same expectation of privacy as pretrial detainees. See Serna v. Goodno, 567 F.3d 944, 948-49 (8th Cir. 2009). In Mitchell, the Third Circuit balanced pretrial detainees' expectation of privacy against the government's interest in taking their DNA, and held that the DNA Act does not violate pretrial detainees' Fourth Amendment rights. 652 F.3d at 416.

Based on this caselaw, the court concludes that the government's important interests in monitoring and rehabilitating civilly committed persons, solving crimes, and exonerating innocent individuals outweigh Commey's privacy interests, given his status as a civilly committed person, "the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification." Weikert, 504 F.3d at 14.

Therefore, the DNA Act as applied to Commey does not violate the Fourth Amendment.

Permalink 07:02:02 am, by fourth, 157 words, 440 views   English (US)
Categories: General

N.D.Cal.: Counterfeiting arrest justified search incident of backpack

Defendant’s arrest for counterfeiting, for which there was clearly probable cause, justified a search incident of his backpack. There was also concern for officer safety. United States v. Pittman-Wright, 2012 U.S. Dist. LEXIS 69347 (N.D. Cal. May 17, 2012).*

Consent search and false arrest claims fail on the merits for valid consent and an arrest warrant. Southerland v. Garcia, 2012 U.S. App. LEXIS 10020 (2d Cir. May 18, 2012).*

There was probable cause for issuance of this search warrant in a bank robbery case based on the video of the robbery, an anonymous caller, and surveillance of the defendant’s house. Defendant’s assertion that the color of the house was slightly off and other houses in the neighborhood could have been described as well wasn’t sufficient to overcome the warrant. The suspect vehicle was parked in the driveway. United States v. Allen, 2012 U.S. Dist. LEXIS 68902 (W.D. Mo. April 24, 2012),* adopted 2012 U.S. Dist. LEXIS 68901 (W.D. Mo. May 17, 2012).*

Permalink 12:25:04 am, by fourth, 169 words, 431 views   English (US)
Categories: General

NYTimes Editorial: "The Right to Record"

NYTimes Editorial: The Right to Record:

The Civil Rights Division of the Justice Department took an important stand last week, declaring that citizens have a First Amendment right to videotape the actions of police officers in public places and that seizure or destruction of such recordings violates constitutional rights.

The Justice Department made the statement in a federal lawsuit brought against the Baltimore Police Department by Christopher Sharp, who used his cellphone to take video of the police arresting and beating a friend at Pimlico on the day of the 2010 Preakness. The officers took Mr. Sharp’s cellphone while he was recording and wiped the phone clean of all videos before returning it to him.

The Courts of Appeals for the First and Seventh Circuits have wisely found that the Constitution protects the right to videotape police officers while they perform official duties. The video taken by another witness of the beating at Pimlico shows that the right to record is crucial to holding police accountable for their actions.

Permalink 12:18:06 am, by fourth, 250 words, 423 views   English (US)
Categories: General

Business Insider: "I Spy An Occupy: Obama’s DHS Surveils Legit Protesters"

Business Insider: I Spy An Occupy: Obama’s DHS Surveils Legit Protesters:

Remember the Occupy Movement? Since last November, when the NYPD closed the Zuccotti Park encampment in downtown Manhattan-–the Movement’s birthplace and symbolic nexus—-Occupy’s relevance has seriously dwindled, at least as measured by coverage in the mainstream media. We’re told that this erosion is due to Occupy’s own shortcomings—-an inevitable outcome of its disjointed message and decentralized leadership.

While that may be the media’s take, the U.S. Government seems to have a different view.

If recent documents obtained by the Partnership for Civil Justice Fund (PCJF) are any indication, the Occupy Movement continues to be monitored and curtailed in a nationwide, federally-orchestrated campaign, spearheaded by the Department of Homeland Security (DHS).

. . .

The right to public assembly is a central component of the First Amendment. The Fourth Amendment is supposed to protect Americans from warrantless searches—with the definition of “search” expanded in 1967 to include electronic surveillance, following the Supreme Court’s ruling in Katz v. United States. Assuming the Occupy protesters refrain from violence—and the vast majority do, in accord with a stated tenet of the Occupy movement—the movement’s existence is constitutionally protected, or should be.

The DHS’s monitoring, documenting, and undermining of protesters may in fact violate the First Amendment. In a recent piece for Dissent Magazine, sociologist James B. Rule explains the fundamental importance of a movement like Occupy in the American political landscape.

Permalink 12:03:11 am, by fourth, 125 words, 510 views   English (US)
Categories: General

Fierce GovernmentIT: "Surveillance through GPS is not the same as using cellular tower data, say law enforcement officials"

Fierce GovernmentIT: Surveillance through GPS is not the same as using cellular tower data, say law enforcement officials by Molly Bernhart Walker:

The boundaries of surveillance are being called into question as the law enforcement community seeks continued warrantless access to electronically-generated location data while privacy advocates say a January 2012 Supreme Court case means all geolocation data is protected by the Fourth Amendment.

In the wake of the case (.pdf), United States v. Antoine Jones, two congressmen--Rep. Jason Chaffetz (R-Utah) and Bob Goodlatte (R-Va.)--have proposed a bill (H.R. 2168 [.pdf]) that would require law enforcement obtain a warrant before accessing any geolocation data. The Jones case ruled that the FBI could not attach a Global Positioning System device to a car without a warrant.


Permalink 12:16:01 am, by fourth, 297 words, 390 views   English (US)
Categories: General

E.D.Wis.: Defendant showed REP in fire damaged restaurant's office

Defendant had the burden of showing his reasonable expectation of privacy in heavily fire damaged premises, and he showed he retained a reasonable expectation of privacy in the basement office area suffering only water and smoke damage. The first floor was open to the world, but the basement was not and it was “perilous” to even attempt to get to it. United States v. Rahman, 2011 U.S. Dist. LEXIS 155131 (W.D. Wis. November 10, 2011):

The court concludes that when it comes to determining Rahman's expectation of privacy, the circumstances present at the time of the search control. On the date of search, from the perspective of the investigators at the scene and Rahman himself, Rahman was the valid lease-holder of the property. Subsequent actions, even if characterized as retroactive so as to cover the time of the searches, cannot terminate a reasonable expectation of privacy any more than some after-the-fact paperwork could serve to retroactively create a reasonable expectation of privacy where none had existed.

Considering all the relevant factors, although the court considers it to be a very close call, the court concludes that the nature and the extent of the damage affecting the basement was not so extensive so as to eliminate any reasonable expectation of privacy in the basement. Entering the basement would have violated the city's condemnation order but the court cannot easily dismiss the fact that "private effects ... remain[ed] on the fire-damaged premises," Tyler, 436 U.S. at 505, which in this case included items such as receipts, (Docket No. 31 at 128; see also Ex. D-6 (depicting toolset)). Therefore, it is the conclusion of this court that a person who exhibits an actual or subjective expectation of privacy in the basement of the destroyed restaurant would have an interest that society should recognize as reasonable.

Permalink 12:03:58 am, by fourth, 199 words, 402 views   English (US)
Categories: General

TN: Defendant's stepdaughter visiting him did not have apparent or actual authority to consent

Defendant’s stepdaughter who was at best an overnight guest at defendant’s house just passing through on a trip was not able to legally consent to a search of the house. When the police got there looking for a gun, they only knew defendant lived there, and they were looking around for a bystander who knew more. Then they found out about her, but they made no effort to determine her status in relation to the house. [Guest status here wouldn't be enough, but the court doesn't have to go that far. However, the constitutional violation was harmless based on all the evidence.] State v. Pike, 2012 Tenn. Crim. App. LEXIS 317 (May 16, 2012).

A judge in one county could not issue a search warrant to be executed in another county under Texas law. Sanchez v. State, 365 S.W.3d 681 (Tex. Crim. App. 2012). [Note: This is a state law issue because the Fourth Amendment doesn’t care about county lines.]

The officer’s testimony that the defendant failed to stop for a crosswalk was not unsupported by the record, so the stop of the vehicle was justified. McMahan v. State, 2012 Tex. App. LEXIS 3912 (Tex. App. – Houston (14th Dist.) May 17, 2012) (on rehearing).


Permalink 12:33:22 pm, by fourth, 311 words, 2456 views   English (US)
Categories: General

Rodney Balko, HuffPo: "Under Asset Forfeiture Law, Wisconsin Cops Confiscate Families' Bail Money"

Rodney Balko on HuffPo: Under Asset Forfeiture Law, Wisconsin Cops Confiscate Families' Bail Money (Wisconsin has no bailbondsmen, so cash, check, or credit card required):

When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail.

She used part of her disability payment and her tax return. Joel Greer's wife also chipped in, as did his brother and two sisters. On Feb. 29, a judge set Greer's bail at $7,500, and his mother called the Brown County jail to see where and how she could get him out. "The police specifically told us to bring cash," Greer says. "Not a cashier's check or a credit card. They said cash."

So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she'd be taking Joel Greer home. But she left without her money, or her son.

A drug dog alerted on the cash, which we all know means nothing.

Steven Kessler, a New York-based forfeiture attorney and the author of the legal treatise "Civil and Criminal Forfeiture: Federal and State Practice," said he had never heard of simply confiscating bail. "It's abhorrent. You can reject bail if you suspect the money is dirty. But you don't simply take it and hand it over to the police department."

Virginia attorney David Smith, who also wrote a book on forfeiture, says he has seen other cases in which authorities have confiscated bail money, but adds, "No courts have ordered forfeiture simply on the basis of a dog alert. There has to be other evidence."

Forfeitures like these may not hold up in court, but failed cases wouldn't necessarily discourage police departments from continuing the practice. If the defendant never challenges the seizure, the department generates revenue. If the defendant challenges and wins, the department loses little.

Permalink 08:17:16 am, by fourth, 447 words, 2249 views   English (US)
Categories: General

Cal.3d: Warrantless penis swabbing at the jail was a Fourth Amendment violation, but harmless compared to other evidence

The penis swabbing of defendant in the jail after his arrest for rape as a search incident without a warrant violated the Fourth Amendment, but it was harmless beyond a reasonable doubt because of the DNA evidence found in the rape victim’s underwear. People v. Fulton, 205 Cal. App. 4th 1546, 141 Cal. Rptr. 3d 374 (3d Dist. 2012):

Here, the seizure of the evidence from the defendant's penis is problematic. It involved a major intrusion on the defendant's dignity. There is a dispute in authority about the extent to which on proper showing the police can search intimate areas of an arrestee's person. (3 LaFave, Search and Seizure (4th ed. 2004) Post-Arrest Detention, § 5.3(c), pp. 168-170 & fns. 114, 116; id. 2011-2012 Supp., p. 32.) Yet the prosecution, bearing the burden of justifying the warrantless seizure, made no attempt to establish that the evidence would have been destroyed absent the warrantless seizure. At best, the People want us to assume that such is the case. That is no way to justify a warrantless seizure of evidence.

The stipulated facts established only what happened -- evidence was taken from the defendant's penis without a warrant. The prosecution did not put on evidence concerning the destructibility of the evidence or even that the police had a good-faith belief, or any kind of belief, that the evidence could be destroyed absent the warrantless seizure. (See Schmerber v. California, supra, 384 U.S. at pp. 770-771 [reasonable belief that evidence would be destroyed may justify warrantless seizure].) It should go without saying that the attorneys' arguments were not evidence. (See CALCRIM No. 222.) Therefore, we are left with a request by the Attorney General to condone a warrantless seizure based on speculation or supposition.

The Attorney General's argument that this was merely a search incident to arrest does not fare any better. Seizure of evidence from an arrestee's genitalia is a major intrusion on the arrestee's dignity. To seize evidence from a person's genitalia, as part of a search incident to arrest and without a warrant, there must be an exigency justifying the seizure, such as officer safety or imminent destruction of evidence. (See Schmerber v. California, supra, 384 U.S. at pp. 770-771; see also State v. Lussier (Minn.Ct.App. 2009) 770 N.W.2d 581, 589-590.) As noted, there was no such showing here.

While we cannot agree with the Attorney General that the warrantless seizure of evidence from the defendant's penis was justified, we also disagree with the defendant that this must result in reversal of the judgment against him. Any error in admitting the evidence obtained from the defendant's penis was harmless beyond a reasonable doubt considering the credibility of the victim and the evidence obtained from the victim's underwear.

Permalink 08:06:06 am, by fourth, 613 words, 2791 views   English (US)
Categories: General

E.D.N.Y.: Govt's failure to examine seized hard drives leads to suppression as "flagrant disregard" of warrant and Fourth Amendment

The government seized 61 hard drives to copy and copied four others then took its time analyzing them. The court finds the delay was unreasonable and was a “flagrant disregard” of the rights of the owner of the computers and target of the search and suppresses. United States v. Metter, 860 F. Supp. 2d 205 (E.D. N.Y. 2012):

This conclusion leaves the Court with a final determination to make: What is the appropriate remedy in this case? It is well-settled that "[g]overnment agents 'flagrantly disregard' the terms of a warrant so that wholesale suppression is required only when (1) they effect a 'widespread seizure of items that were not within the scope of the warrant,' ... and (2) do not act in good faith." United States v. Liu, 239 F. 3d 138, 140 (2d Cir. 2000) (quoting United States v. Matias, 836 F. 2d 744, 748 (2d Cir. 1988)). "The rationale for blanket suppression is that a search that greatly exceeds the bounds of a warrant and is not conducted in good faith is essentially indistinguishable from a general search." Liu, 239 F. 3d at 141. "[T]o satisfy the first prong of the two-part test described above, the search conducted by government agents must actually resemble a general search." Id. Thus, "the extreme remedy of blanket suppression should only be imposed in the most extraordinary of cases." United States v. Foster, 100 F. 3d 846, 852 (10th Cir. 1996) (internal quotation marks omitted.)

The lack of good faith by the government can be inferred from its conduct in this case. In the affidavits in support of the search warrants issued in this case, the government promised to review the evidence seized offsite to determine whether any evidence fell outside the scope of the warrants. (See McGuire Home Aff. ¶ 58; Carrano Aff. ¶ 60; McGuire Email Aff. ¶ 130.) The government then failed to commence the review, despite repeated requests from defense counsel and directions from the Court to do so. In fact, the government seemed shocked that the Court would require such a review, and, as mentioned above, threatened to provide all of the evidence seized and imaged to each defendant in the case, without conducting any such review. (See 2/4/11 S/C Tr. 24-26, 29-30; 2/28/11 Gov't Letter at 2.) The government's own conduct and statements indicate that it had no intention of fulfilling its obligations as promised in the search warrants. Nor has the government presented any evidence or arguments to the effect that it failed to fulfill this obligation due to limited resources, such as it has argued in other cases.

The Court has not reached this conclusion lightly. However, the Court cannot, in the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Accordingly, Metter's motion to suppress is granted. This conclusion is limited to the electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant and does not include the paper documents and currency seized pursuant to those warrants.

Udpate: I've looked a couple of times today to find the order, and I can't without paying for it. Even then, I don't have the capability of posting it as a pdf yet (well, never asked to learn). At any rate, here is a link from the USAO about the case which, of course, doesn't mention this order. It does show, however, a status conference for this week as to Mr. Metter, and all the other defendants have apparently pled guilty. One of the letter briefs by the government appears here.

Permalink 07:30:44 am, by fourth, 243 words, 2211 views   English (US)
Categories: General

CA3: Unexplained gesture [not called furtive] toward console justified look

The stopped motorist pulled his license and registration from his rear pants pocket. His later gesture to the center console of the vehicle was cause for police concern and justified a frisk of the console under Mimms [and Long]. United States v. Colen, 482 Fed. Appx. 710 (3d Cir. 2012):

Here, the police acted reasonably. Their suspicion was aroused when they saw Colen quickly shut the center console as they first approached the car. They did not conduct a search at that point although they clearly could have under Mimms. Thereafter, Colen removed his license and registration from his rear pants pocket, thus negating a possible explanation for his gestures toward the center console. When the officers returned to their car, they both saw Colen again reaching for the center console. Only then did the officers remove him from the car, frisk him, and search the portion of the interior of the car that would have been within his immediate control when they allowed him to get back in. It was during that protective search that Officer Mason found the loaded handgun.

When deciding to conduct the kind of limited search that occurred here, "an officer need not be absolutely certain that the individual is armed' so long as the officer's concern was objectively reasonable." United States v. Kithcart, 218 F.3d 213, 219 (3d Cir. 2000) (quoting Moorefield, 111 F.3d at 13-14). The officers' decision to check the center console for weapons was completely justified by the circumstances here.

Permalink 07:23:00 am, by fourth, 173 words, 2235 views   English (US)
Categories: General

CA1: No joint venture with DEA in Aruba wiretap in drug investigation

An American DEA officer in Aruba working on a drug investigation ultimately indicted in Puerto Rico was not on a joint venture with Aruba. The Aruba investigation was underway before he got there, and they got the wiretap on their own without U.S. participation and then excluded the DEA officer from having anything to do with it while it was conducted. United States v. Valdivia, 680 F.3d 33 (1st Cir. 2012).

Officer’s knowledge of an arrest warrant for person is reason for a stop. United States v. Nelson, 483 Fed. Appx. 677 (3d Cir. 2012).*

The stop of the car here was justified because of a license plate light being out, even though there was a temporary paper tag in the rear window. Once an arrest was made of the driver, it was proper to impound and inventory the car at 4:30 am, and there is no constitutional requirement to impose lesser intrusive measures on the police to find the unidentified and unregistered alleged owner. United States v. Cubillos, 2012 U.S. Dist. LEXIS 68984 (N.D. Ga. March 20, 2012).*

Permalink 06:59:40 am, by fourth, 273 words, 2162 views   English (US)
Categories: General

DE rejects de minimus continuation of pretextual highway stop

Defendant’s car was stopped for a traffic offense and a pretext for a drug investigation. There was justification for the traffic stop but no reasonable suspicion for anything else. A de minimus Fourth Amendment violation is rejected as inconsistent with Arizona v. Johnson which had reasonable suspicion. Murray v. State, 45 A.3d 670 (2012):

This case, then, involves baseless police investigation after the conclusion of a traffic stop. The dissent nevertheless defends this continuing investigation, describing it as a de minimis intrusion. The first problem with this conception is that the relevant United States Supreme Court precedent focuses on whether police extended the traffic stop's duration "measurably," not on whether police extend the stop "significantly" or "substantially." In Arizona v. Johnson, the Court said that "[a]n officer's inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of a traffic stop." In Johnson, the Court permitted an officer who suspected criminal activity on the strength of gang clothing, tattoos, and the presence of a police scanner radio to perform a protective patdown at the start of a traffic stop. That is, the 'unrelated matters,' in Johnson, were not matters that the officer dealt with after the traffic stop, but measures taken for self-protection at the very start of the traffic stop. None of the officers in this case spotted items in the car that provided a reasonable basis to think the car's occupants posed a threat, nor did they conduct protective patdowns at the start of the encounter.


Permalink 10:22:38 am, by fourth, 88 words, 2174 views   English (US)
Categories: General "Kelly Reacts After Stop-and-Frisk Ruling" Kelly Reacts After Stop-and-Frisk Ruling:

A day after a federal judge issued a ruling fiercely criticizing the New York Police Department’s stop-and-frisk tactics, Police Commissioner Raymond W. Kelly unveiled new measures on Thursday intended to reduce the frequency of illegitimate stops.

The measures, which were outlined in a three-page letter sent to the City Council speaker, Christine C. Quinn, include a re-emphasis on an existing departmental order banning racial profiling. The order is to be incorporated in routine training sessions for officers beginning next month.

Permalink 10:14:18 am, by fourth, 173 words, 373 views   English (US)
Categories: General

CA6: Eight individually weak factors of RS collectively were enough

Eight factors of reasonable suspicion cited by the government were individually quite weak but collectively were reasonable suspicion. United States v. Stepp, 680 F.3d 651 (6th Cir. 2012).*

“While the totality of the circumstances may include innocent activity, the innocent factors must collectively eliminate ‘a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied,’ as Defendant's actions do. United States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004).” United States v. Stacks, 2012 U.S. Dist. LEXIS 67422 (W.D. N.C. May 14, 2012).*

There was [clearly] probable cause for a search warrant for defendant’s house when the police were able to credibly link him to a bank robbery. United States v. Allen, 2012 U.S. Dist. LEXIS 68902 (W.D. Mo. April 24, 2012).*

41(g) motion for return of property is denied because the government doesn’t have the property. Also, the claimant has an adequate remedy under state law for the same thing. Bennett v. United States, 2012 U.S. Dist. LEXIS 68298 (N.D. W.Va. April 13, 2012), adopted 2012 U.S. Dist. LEXIS 67925 (N.D. W.Va. May 16, 2012).*


Permalink 10:02:14 am, by fourth, 246 words, 388 views   English (US)
Categories: General

NM: Search incident of pockets in DUI arrest was reasonable because of possibility defendant was under influence of drugs, too

In an arrest for DUI, a search incident that included opening a dollar bill that was folded in a way to indicate it held cocaine, which defendant then admitted, was reasonable. The officers did know all that defendant was under the influence of. State v. Armendariz-Nunez, 2012 NMCA 41, 276 P.3d 963 (2012):

[*13] We disagree with Defendant's argument that the cocaine was not evidence of the DWI crime for which he had been arrested. See NMSA 1978, § 66-8-102(B) (2008) (amended 2010); State v. Aleman, 2008 NMCA 137, 145 N.M. 79, 194 P.3d 110 (affirming the defendant's conviction for driving while under the influence of cocaine). While the deputy observed that Defendant smelled of alcohol, there was no indication that other substances could not have contributed to his intoxicated state. As the State points out, both alcohol and marijuana emit a distinct odor, while cocaine and many other controlled substances do not. The discovery of a particular drug on a suspect's person could be relevant evidence that the suspect may be under the influence of that drug and, therefore, may be appropriately seized.

Police responded to a domestic abuse call and were inside defendant’s house. He was arrested and removed from the house and warrants were obtained. Drugs were found on him when he was booked into the jail. Even if the entry was unconstitutional, which does not have to be decided) the finding of the drugs was sufficiently attenuated from that, and suppression was properly denied. Echavarry v. Commonwealth, 60 Va. App. 177, 725 S.E.2d 151 (2012).*

Permalink 09:44:38 am, by fourth, 139 words, 482 views   English (US)
Categories: General

FL4: Adult son staying with mother did not give her actual or apparent authority to consent to search of his stuff

Defendant’s mother did not have actual or apparent authority to consent to a search of her adult son’s bedroom. He had been staying with her for four months and she came into the room with “regular access” to make the bed and clean up, but that wasn’t enough because it was apparent that the room was used by only her son. She consented to a search, and the police looked in a box with men’s clothes. Ward v. State, 88 So. 3d 419 (Fla. 4th DCA 2012).

Jail inventory policy was unconstitutional under the Oregon constitution because it had no limitations on search of containers objectively likely to hold contraband. State v. Taylor, 250 Ore. App. 90, 279 P.3d 254 (2012).*

Existence of an arrest warrant was justification for a stop. United States v. Nelson, 2012 U.S. App. LEXIS 9839 (3d Cir. May 16, 2012).*

Permalink 08:59:57 am, by fourth, 367 words, 372 views   English (US)
Categories: General

S.D.N.Y.: Negligence in regognizing defendant's objection to girlfriend's consent didn't lead to suppression

Defendant’s girlfriend consented to a search of their place, but defendant was present and objected under Randolph, except the officer’s didn’t hear him during the noise of the arrest (and neither did she). Since the officers were, at worst, just negligent, the court would not apply the exclusionary rule since the Second Circuit’s rule is that Herring may apply even when not attenuated. United States v. Smith, 2012 U.S. Dist. LEXIS 68054 (S.D. N.Y. May 15, 2012):

In this case, the benefits of deterrence are marginal. As the Herring Court stated, "the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." 555 U.S. at 144. The Court has credited the officers' testimony that they did not deliberately disregard Smith's refusal to consent to a search, but rather did not hear Smith make a statement to that effect, (Tr. 77:7-78:3.) Their failure to hear him constituted, at the most, an isolated instance of negligence; there was no evidence that their conduct rose to the level of deliberate or reckless conduct, or gross, recurring, or systemic negligence. The evidence suggested only that, in the midst of the noise and confusion that ensued during the arrest, the officers simply did not hear Smith, just as Smith's girlfriend did not hear him. On those facts, the officers reasonably believed that they were authorized to search the Apartment after obtaining the consent of Smith's girlfriend.

Smith argues that exclusion of the evidence has deterrent value insofar as suppression would "encourage[e] arresting officers to pay attention to a defendant's assertion of rights." (Def.'s Supplemental Mem. at 6.) Although suppression may hypothetically have this effect, such deterrence is insufficient to warrant application of the exclusionary rule: "Even assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity." United States v. Leon, 468 U.S. 897, 919, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). As noted, in light of all the circumstances, the officers' reliance on Smith's girlfriend's consent was objectively reasonable.

Permalink 08:40:41 am, by fourth, 597 words, 498 views   English (US)
Categories: General

D.N.J.: Standing was found in one's office desk and computers

In a search of business’s desks and computers, the individual defendants had standing under Mancusi v. DeForte. Also, one password protecting her computer supported standing as to her computer. The warrant limited seizure of records to 2007, and the government's seizure of records before that violated the terms of the warrant, and the motion to suppress is granted to that. United States v. Shellrock, 2012 U.S. Dist. LEXIS 68962 (D. N.J. May 17, 2012):

The Court finds both Meloney and Bryan have standing to challenge the search of the Harbor House premises. First, Bryan is a co-owner of Harbor House and Defendant Meloney worked directly for Bryan and was his personal assistant. As co-owner of the corporation, Bryan had an ownership and possessory interest in Meloney's workplace computer and as Meloney's direct supervisor, he had a reasonable expectation of privacy in the work she completed on the computer at his direction. Therefore, the court finds that Defendant Bryan has standing to challenge the search of Harbor House's premises.

Defendant Meloney also has standing to challenge the search of her computer. Though Meloney did not have a private office and her workspace was in a common area, is not conclusive of whether Meloney had an expectation of privacy in this area. The area searched was Meloney's personal desk and workspace where she worked for more than ten years. She did not share this desk, computer, and workspace with other employees. Other employees did not use her computer or her desk to complete their work. Meloney also kept personal items on her desk in her workspace.

The Supreme Court has clearly held that even where a person's workspace is located in a room shared with others, the person's expectation of privacy in their own desk and files is not diminished. See Mancusi, 392 U.S. at 369 (holding that a union officer has a reasonable expectation of privacy in his workspace which was located in one large room which was shared with several other union officials and therefore had standing to successfully challenge the warrantless search therein). Here, the court is satisfied that the area searched was Meloney's personal workspace which she did not share with other employees and was used as her workspace on a regular basis for more than ten years.

In addition, Meloney's computer was password protected. While her password was commonly known at the work place among her fellow employees, it was not known to the public and could not be accessed by anyone outside this small, closely held corporation. This is sufficient to show her intent to exclude members of the public and maintain privacy in the documents kept on her computer, an expectation shared with the business owner. The electronic documents were retrieved from Meloney's "My Documents" folder and it is unclear from the record whether this folder was part of the network or an independent folder on Meloney's desktop. However, these documents were found on Meloney's computer and there is no evidence that these documents were found in any of the other computers searched by the government. This leads to the conclusion that the "My Documents" folder was not part of the general corporate network. While Meloney's standing is a closer question than Bryan's, the court is satisfied that society would recognize that Meloney has a reasonable expectation of privacy in her personal workspace and that subjectively, Meloney intended to keep her workspace private as she did not share or allow others to use her desk or computer.

Therefore, both Meloney and Bryan have standing to challenge the execution of the search warrant at Harbor House.

Permalink 08:02:22 am, by fourth, 586 words, 625 views   English (US)
Categories: General

M.D.Fla.: Tracking a cell phone by state court order was not a Jones trespass

Tracking a cell phone by court order was not a violation of the Fourth Amendment under Jones because there was no trespass on defendant’s property. (Defendant had the telephone that was the target of a tracking warrant, and that was sufficient to give him standing. His name was even on the tracking order issued by the Florida state court.) United States v. Sereme, 2012 U.S. Dist. LEXIS 68202 (M.D. Fla. March 26, 2012):

With regard to the merits, the Defendant argues that the interception of his movements by the use of a GPS device constituted a warrantless search in violation of the Fourth Amendment and therefore any items of evidence found at the traffic stop must be suppressed. Here, the Government had obtained an order from a state court judge which instructed Sprint to provide the location of the cell phone in question at any time for a period of sixty days. There was no device physically placed on the vehicle by law enforcement. Rather, the monitoring was only done through the cellular telephone. This distinction is important as the Supreme Court recently held in United States v. Jones, that the Government's installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle's movements without a valid warrant was a search in violation of Jones' rights. United States v. Jones, 132 S. Ct. 945 (2012). Sereme relies on Jones, contending that the GPS evidence should be suppressed as five members of the Court in a concurring opinion authored by Justice Alito, expressed the view that long-term GPS monitoring of an individual by law enforcement impinges on expectations of privacy, without regard to the specific technology employed. Id. at 954, 964. "But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car, for a very long period." Id. at 964. The concurring opinion was not limited to the attachment of physical devices to monitor movements.

In this case, there was no physical trespass onto Sereme's property. There was no physical device attached to the car in which he was a passenger or any other piece of his property. Based upon this Court's reading, the Jones opinion does nothing to preclude the Government's monitoring of individuals through the use of cell site technology. As the opinion stated, it resolved only "whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment." Jones, 132 S. Ct. at 948. The Supreme Court has not answered the broader question presented here which is whether the Government's monitoring of an individual's movements through their cell phone for a certain period of time constitutes a "search" within the meaning of the Fourth Amendment, and more importantly whether that "search" requires a warrant issued upon probable cause of some other level of suspicion, such as the traditional reasonable suspicion.

In this case, law enforcement monitored and tracked the movements of the target telephone that was believed to be used by Sereme for a period of 12 days after law enforcement had received an Order allowing them to do so in accordance with Fla. Stat. § 934.32. Thus, the initial stop of the vehicle was not unlawful on these grounds.

Permalink 07:50:09 am, by fourth, 486 words, 476 views   English (US)
Categories: General

CA9: Stop suppressed as based on a hunch and represented at suppression hearing as a mere conclusion

Defendant was seen leaving a stash house with a box, and he was followed from a distance where he went to a liquor store and then somewhere else. He was stopped but the stop was without probable cause. There was no showing that he had drugs when he left the stash house and his driving was not indicative of “counter-surveillance.” Officer's alleged expertise that it was a stash house was a mere unsupported conclusion. United States v. Cervantes, 678 F.3d 798 (9th Cir. 2012):

The government asks us to place heavy reliance on Hankel's conclusory statement that, based on Hankel's training and experience, the white box in Cervantes's possession came from a "suspected narcotics stash house." But in the absence of any underlying facts as to why Hankel suspected the house was a "stash house," this statement is entitled to little, if any, weight in the probable cause analysis.

"One of the themes which runs through the decisions on the Fourth Amendment probable cause requirement is that when the ultimate probable cause determination is made, whether by a magistrate when a warrant is sought or upon a motion to suppress evidence obtained without a warrant, mere conclusions will not suffice." 2 Wayne Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(e), at 297 (4th ed. 2004). See, e.g., Illinois v. Gates, 462 U.S. at 239 (noting that "wholly conclusory" statements of officers are insufficient to establish probable cause); United States v. Ventresca, 380 U.S. 102, 108-09 (1965) (noting that "purely conclusory" statements of officers, without detailing any of the underlying circumstances, will be insufficient to establish probable cause); Nathanson v. United States, 290 U.S. 41, 47 (1933) (noting that an officer's "mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances" is insufficient to establish probable cause).

In United States v. Thomas, we noted that a conclusory allegation by law-enforcement that a particular house was a suspected narcotics stash house, was entitled to little (if any) weight in determining whether officers had satisfied the lower reasonable suspicion standard required to stop a vehicle leaving the house. 211 F.3d 1186, 1189-90 (9th Cir. 2000). We explained that the conclusory allegation, without any foundational facts, was akin to an anonymous tip and, consequently, was entitled to little weight. Id. at 1190.

Here, as in Thomas, Hankel's statements amount to nothing more than conclusory assertions. Hankel failed to provide any underlying facts as to why he, or any other officers, suspected the house was a "narcotics stash location." While Hankel's training and experience are factors to be considered, "it is incumbent upon the arresting or searching officer to explain the nature of his expertise or experience and how it bears upon the facts which prompted the officer to arrest or search." 2 Wayne Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.2(c), at 45 (4th ed. 2004) (internal quotation marks omitted). Conclusory statements and a general claim of expertise will not suffice. Id.; Thomas, 211 F.3d at 1189-92.

Permalink 07:32:35 am, by fourth, 204 words, 403 views   English (US)
Categories: General

IL: Asking for identifying information at a car with the hood up was not a criminal investigation

Officer saw a vehicle pull off a well-traveled road, stop, and the driver opened the hood. The officer stopped to see if the driver needed assistance and asked for the driver’s identifying information. This led to the officer finding that defendant’s DL was revoked. The fact that the officer asked for defendant’s identifying information did not necessitate a conclusion that he was conducting a criminal investigation. Further, the officer’s asking for defendant’s identifying information had the safety benefit of allowing the officer to know whom he was dealing with, should defendant attempt to harm one of the officers or flee. People v. Mains, 969 N.E.2d 926, 2012 IL App (2d) 110262 (2012).

Officers had a warrant for defendant’s arrest, and his mother was found to have consented to an entry into her apartment. She said he wasn’t home and she’d call him. A cell phone rang in the back of the house, and the police went to look finding defendant going out the window. In plain view were drugs and a handgun. The entry into the apartment was valid as was looking for defendant because he was expected to be armed. State v. Craft, 425 N.J. Super. 546, 42 A.3d 222 (2012).*


Permalink 11:32:55 am, by fourth, 179 words, 451 views   English (US)
Categories: General

Plunderbund: "Ohio Republicans AGAIN Try to Pass Unconstitutional Laws. This Time: Welfare Drug Testing"

More from the political party of small government: Ohio Republicans AGAIN Try to Pass Unconstitutional Laws. This Time: Welfare Drug Testing:

Ohio Senate Republicans have proposed a three-county, two-year program where welfare applicants who are suspected of having a drug problem would have to submit to and pay for drug tests before receiving benefits. The Dispatch notes that Ohio is not unique: the “move appears to be part of a renewed national GOP movement to require drug testing for welfare recipients. ... revised laws have been introduced this session in about 30 states, and lawmakers in Georgia, Utah, Oklahoma, Tennessee and Louisiana have moved legislation in recent weeks.”

. ..

The proposal to drug test welfare recipients is just the latest effort of Republican legislators to import ideological ideas from other states. But at least by bringing in ideas in from other states, we don’t have to guess that the proposals are unconstitutional. We know. We know because judges have already ruled that these efforts in other states are unconstitutional.

Trying to make money for civil rights lawyers when budgets are tight?

Permalink 09:03:44 am, by fourth, 346 words, 418 views   English (US)
Categories: General

D.Mass.: Discovery of GPS related information premature until motion to suppress filed

The government disclosed GPS surveillance occurred, and the tracking information was not kept. On defendant’s motion for discovery of GPS information to frame a motion to suppress the tracking, it is granted in part and denied in part. As to application of the good faith exception under Davis, the request is premature and denied without prejudice. United States v. Rose, 2012 U.S. Dist. LEXIS 68095 (D. Mass. May 16, 2012):

Upon consideration of Andrews' stated need for the information, the Court finds that Andrews has met his burden of proof to the extent that some of the requested information may help him to delineate the scope of a possible Fourth Amendment violation. However, given the government's interest in protecting the confidentiality of its surveillance techniques, the Court will not order the information produced in the form requested by Andrews. Rather, the government shall produce an affidavit by an agent knowledgeable about the use of GPS tracking in the investigation. The affidavit should include information regarding: (1) the tracking radius of the GPS devices; and (2) how the devices were used in conjunction with surveillance in this investigation. Andrews' remaining requests are denied.

Delay in seeking a search warrant for a computer was not unreasonable where the delay was caused by the government thinking that defendant was going to cooperate. United States v. Armstrong, 2012 U.S. Dist. LEXIS 68429 (M.D. Pa. May 15, 2012)*:

The fact that an earlier application was presented to a Magistrate Judge is not dispositive, particularly because the Magistrate Judge was concerned about the timing of the warrant in light of the imminent trial. Although the timing of the request for authorization, almost one year after the initial seizure of the laptops, is of concern, I am willing to accept the Government's representation that it did not immediately request an authorization to search the computers because it believed Armstrong intended to cooperate with the Government and plead guilty.

Where body language allegedly belied the defendant’s denial he had drugs in the car, a frisk was reasonable. United States v. Acosta, 2012 U.S. Dist. LEXIS 67551 (W.D. Mo. April 27, 2012).*

Permalink 08:44:12 am, by fourth, 461 words, 1316 views   English (US)
Categories: General

D.N.M.: Does Brady apply to suppression hearings?

If Brady likely applies to suppression motions, there was no showing that the evidence was sufficiently impeaching to change the outcome. United States v. Harmon, 871 F. Supp. 2d 1125 (D. N.M. 2012).*

Circuit courts have split on the issue whether Brady v. Maryland's restrictions apply to suppression hearings, although it is not likely that a prosecutor must disclose impeachment evidence before a suppression hearing in light of the Supreme Court's conclusion in United States v. Ruiz that a prosecutor does not have to disclose impeachment evidence before the entry of a guilty plea. In an unpublished opinion, the Tenth Circuit, without discussing whether Brady v. Maryland applies to a suppression hearing, rejected a defendant's argument that the prosecution violated Brady v. Maryland by failing to disclose impeachment evidence before a suppression hearing on the basis that the evidence was not impeachment evidence and not material. See United States v. Johnson, 117 F.3d 1429, 1997 WL 381926 at *3 (10th Cir. 1997) (unpublished table decision). ...

The United States Court of Appeals for the District of Columbia has recognized that "it is hardly clear that the Brady line of Supreme Court cases applies to suppression hearings," because "[s]uppression hearings do not determine a defendant's guilt or punishment, yet Brady rests on the idea that due process is violated when the withheld evidence is 'material either to guilt or to punishment.'" United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999). Without deciding the issue and in an unpublished opinion, the United States Court of Appeals for the Sixth Circuit quoted with approval this language from United States v. Bowie. See United States v. Bullock, 130 F.App'x 706, 723 (6th Cir. 2005) (unpublished) ("Whether the suppression hearing might have come out the other way, however, is of questionable relevance to the Brady issues at stake here."). The Fifth Circuit and the United States Court of Appeals for the Ninth Circuit held, before the Supreme Court issued its United States v. Ruiz decision, that Brady v. Maryland restrictions apply to suppression hearings. See United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993) ("[W]e hold that the due process principles announced in Brady and its progeny must be applied to a suppression hearing involving a challenge to the truthfulness of allegations in an affidavit for a search warrant."); Smith v. Black, 904 F.2d 950, 965-66 (5th Cir. 1990) ("Timing is critical to proper Brady disclosure, and objections may be made under Brady to the state's failure to disclose material evidence prior to a suppression hearing."), vacated on other grounds, 503 U.S. 930 (1992)). The United States Court of Appeals for the Seventh Circuit held that, under its precedent and the law from other circuits, it was not "obvious" for clear-error purposes that "Brady disclosures are required prior to suppression hearings." United States v. Scott, 245 F.3d 890, 902 (7th Cir. 2001).

Permalink 08:23:55 am, by fourth, 211 words, 328 views   English (US)
Categories: General

OH9: Common computer in house was subject to apparent authority of any of them to consent

After defendant was arrested for touching her children, the woman of the house delivered two laptops used by the entire family to the police to look for evidence on the computers. She had apparent authority to consent to a search of the computers because all that the police knew was that the computers were used by everybody in the house. State v. Rice, 2012 Ohio 2174, 2012 Ohio App. LEXIS 1909 (9th Dist. May 16, 2012).*

The car had no trunk, and a dog alert to the interior was to the whole interior. The state proved that the dog was a well trained dog. State v. Duran, 2012 Ohio 2114, 2012 Ohio App. LEXIS 1857 (9th Dist. May 14, 2012).*

Defendant was stopped with reasonable suspicion based on a detailed call from a citizen informant who called to report an erratic driver in front of him. He gave his first name and stayed on the phone until police caught up. State v. Bunn, 2012 Ohio 2151, 2012 Ohio App. LEXIS 1868 (12th Dist. May 14, 2012).*

The vehicle defendant was a passenger in was stopped for a lane change violation, and the driver said that he had drugs. On the floor in front of him was paraphernalia in plain view. Coupled with his furtive movements, a search was reasonable. State v. Jackson, 2012 Ohio 2123, 2012 Ohio App. LEXIS 1861 (11th Dist. May 14, 2012).*

Permalink 07:55:55 am, by fourth, 159 words, 375 views   English (US)
Categories: General

NYTimes Editorial: "Reform Stop-and-Frisk"

NYTimes Editorial: Reform Stop-and-Frisk:

Judge Shira Scheindlin of Federal District Court spoke up for the constitutional rights of blacks and Hispanics on Wednesday by granting class-action status to a lawsuit that accuses the New York Police Department of using race as the basis for stopping and frisking hundreds of thousands of citizens a year.

The decision opens the door to potential claims by an enormous number of people who may have been illegally stopped, and any remedy would be applied citywide. In a fierce defense of the Fourth Amendment, which guarantees freedom from unreasonable search and seizure, Judge Scheindlin was profoundly critical of the police program. The city’s arguments, she wrote, “do not withstand the overwhelming evidence that there, in fact, exists a centralized stop-and-frisk program that has led to thousands of unlawful stops.” She allowed the class-action status because “the vast majority of New Yorkers who are unlawfully stopped will never bring suit to vindicate their rights.”

Permalink 07:51:59 am, by fourth, 161 words, 412 views   English (US)
Categories: General "Judge Napolitano: Shoot down a drone, become an American hero"

Judge Napolitano: Shoot down a drone, become an American hero:

Fox News commentator Judge Andrew Napolitano has found a novel approach to handling the whole drone surveillance dilemma that has Americans worried that the government will soon watch their every move from the sky.

Speaking out against the future of aerial eavesdropping in America, Judge Napolitano said on Fox on Tuesday, “The first American patriot that shoots down one of these drones that comes too close to his children in his backyard will be an American hero.”

[He's not a judge. He resigned to make more money as a Fox flack. Kenneth Starr insisted that his minions continually refer to him as Judge, like it was a title of nobility, as he did with Webb Hubbell, who was a judge for all of four months by appointment. You resign, judge goes away with the job. And, isn't shooting a gun into the air from one's backyard kind of a bad idea?]


Permalink 07:45:38 am, by fourth, 255 words, 418 views   English (US)
Categories: General

WA: Liquor license compliance check only in public areas was not a "search"

A Washington state ABC compliance check of a licensed establishment that only had officers in open areas was not a search under the constitutions. Dodge City Saloon v. Wash. State Liquor Control Bd., 168 Wn. App. 388, 288 P.3d 343 (2012):

In this case, the Liquor Board's actions did not constitute a search for Fourth Amendment purposes because the Liquor Board did not violate Dodge City's privacy interests. Dodge City had no reasonable privacy interest in areas of its licensed premises that it actively invites the public to enter. Barlow's Inc., 436 U.S. at 315. 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 C.M. onto the premises. United States v. Bramble, 103 F.3d 1475, 1478 (9th Cir. 1996) ("Once consent has been obtained from one with authority to give it, any expectation of privacy has been lost."). Thus, the Liquor Board's officers did not conduct a "search" when they entered the public portions of Dodge City's premises and observed only what members of the public could also observe. Likewise, the Liquor Board's officers did not conduct a "search" when they observed C.M.'s entry into Dodge City from a public street. Accordingly, because there was no "search" in this case, the Liquor Board's actions do not implicate constitutional considerations and Dodge City has no "search" on which to base a Fourth Amendment or article I, section 7 unreasonable search and seizure claim. Centimark Corp., 129 Wn. App. at 375.

Permalink 07:40:38 am, by fourth, 119 words, 364 views   English (US)
Categories: General

CA6: Administrative search of water meters was protected by qualified immunity, if a violation at all

Attempted search of water department employee’s meters was not in violation of clearly established law, so the complaint failed to state a claim for relief against city officials, if it even violated the Fourth Amendment. Clemente v. Vaslo, 679 F.3d 482 (6th Cir. 2012).*

Defendant’s admission that he had child pornography on his flash drive being used on a university library computer was justification for his arrest by university police. He consented to a further search. United States v. LaPradd, 480 Fed. Appx. 405, 2012 FED App. 0495N (6th Cir. 2012).*

Defense counsel was not ineffective for not pursuing a search claim that would have lost under the automobile exception anyway. United States v. Whitfield, 2012 U.S. Dist. LEXIS 67292 (E.D. Va. May 11, 2012).*

Permalink 07:36:34 am, by fourth, 200 words, 380 views   English (US)
Categories: General

E.D.Ky.: When defendant asserts curtilage, he has to show standing

Defendant first failed to show that he had standing to challenge a search of open fields asserted to be curtilage. Then, it was open fields, and, alternatively, he consented. United States v. Wilburn, 2012 U.S. Dist. LEXIS 66300 (E.D. Ky. March 5, 2012)*:

The Court is simply unable to assess whether Defendant had a reasonable expectation of privacy in the place where the propane tank was discovered. Significantly, no evidence was presented to establish ownership or other interest in the land where the propane tank was located. As discussed above, the "defendant claiming that a search violated his Fourth Amendment rights has the burden of demonstrating that he had a legitimate expectation of privacy in the place that was searched." Mastromatteo, 538 F.3d at 544 (quoting Talley, 275 F.3d at 563. Here, Defendant did not present any evidence regarding this issue and has failed to meet his burden. Thus, the Court concludes that, although Defendant has standing to challenge the search of his home, he lacks standing to challenge the search of the property where the propane tank was located. Nevertheless, to ensure a complete analysis, the Court will assume for purposes of this Recommended Disposition that Defendant has standing to challenge both searches.

Permalink 07:17:45 am, by fourth, 144 words, 365 views   English (US)
Categories: General

W.D.N.C.: “The necessary suspicion for an investigative Terry stop is not a high bar”

Defendant was driving through hotel parking lots apparently casing cars for break-in when he was stopped. It was a high crime area for break-ins, and the police were looking. “The necessary suspicion for an investigative Terry stop is not a high bar.” United States v. Stacks, 2012 U.S. Dist. LEXIS 67422 (W.D. N.C. May 14, 2012).*

Defendant’s failure to identify a document that witnesses to a consent search were not examined about does not justify 2255 relief. Based on the findings at the suppression hearing, it seems highly unlikely this document would change the outcome anyway. Jones v. United States, 2012 U.S. Dist. LEXIS 66194 (M.D. Tenn. May 11, 2012).*

Warrant for defendant’s arrest justified police entry into the house to arrest him, and then do a protective sweep after a gun was seen. United States v. Tran, 2012 U.S. Dist. LEXIS 67238 (N.D. Iowa May 15, 2012).*

Permalink 07:11:27 am, by fourth, 303 words, 300 views   English (US)
Categories: General

W.D.La.: Search of desk in criminal investigation not governed by O'Connor

Defendant was a school resource officer, and his desk was searched in a fraud investigation seizing his computer and bank statements. The search was not sustainable as a workplace search under Ortega and United States v. Slanina, 283 F.3d 670 (5th Cir. 2002), judgment vacated on other grounds, 537 U.S. 802, 123 S.Ct. 69 (2002). United States v. Johnson, 2012 U.S. Dist. LEXIS 67294 (W.D. La. May 14, 2012), R&R 871 F. Supp. 2d 539 (W.D. La. March 20, 2012):

Under Slanina, the Government is correct that the status of the "searcher" as a "law enforcement officer is not dispositive," and that "'work related misconduct' can include criminal activity unrelated to the job." [Doc. No. 31, p. 4]. However, the Government asks the Court to ignore the "critical distinction" between this case and Slanina: whether an investigation was "wholly criminal" or had the dual purpose of an internal investigation into work-related misconduct and into the possible commission of a crime. In this case, there was no dual purpose; the single purpose of this investigation was Johnson's possible commission of a crime. On September 8, 2008, Sergeant Charles Roark of the MPD, opened a criminal investigation into the sale of stolen merchandise through an eBay account in Johnson's name. On September 12, 2008, Sergeant Roark asked the Federal Bureau of Investigation ("FBI") to become involved. By the time they searched Johnson's desk at Carroll Junior High School on February 20, 2009, Sergeant Roark and Agent Chesser had been involved in a joint criminal investigation of Johnson for six months. Under these circumstances, the MPD's interest in the prompt and efficient operation of its workplace is not compelling in the least. The search of Johnson's desk should not be reviewed under the O'Connor exception, as interpreted by the Fifth Circuit, and Magistrate Judge Hayes properly recommended the exclusion of the evidence found as a result of the search of Johnson's desk.

Permalink 12:15:28 am, by fourth, 174 words, 466 views   English (US)
Categories: General

CA8: Advice of right to refuse consent was apparently determinative when consent was a close call.

The district court’s finding of consent was, it said, a close call, but defendant was advised of his right to refuse and consented. [Thus, advice of right to refuse consent was apparently determinative when consent was a close call.] United States v. Mendoza, 677 F.3d 822 (8th Cir. 2012)*:

. . . The validity of consent is a question of fact, which we review for clear error. See id.

The district court recognized the factual record made this case a close call. On the one hand, Mendoza did not explicitly state the officers were permitted to search the Louis Place residence or sign the consent-to-search form, and the significant police presence at the roadside stop and the residence raise the possibility Mendoza merely acquiesced to police authority. See id. at 773. On the other hand, Mendoza's gestures and body language indicated his consent. Officer Fink and Detective Batcheller specifically informed Mendoza of his right to refuse consent, and Mendoza clearly understood this right, because he initially refused consent and bargained with the officers regarding the terms of his consent.

Permalink 12:01:47 am, by fourth, 95 words, 352 views   English (US)
Categories: General

CA9: No clear error in finding third-party consent, especially where she testified she consented

There was no clear error in the district court’s determination that defendant’s girlfriend he shared a bedroom with consented to a search of the bedroom to look for guns. She admitted it on the stand, too. She was not advised of a right to refuse, but that is only a factor. United States v. Graham, 480 Fed. Appx. 453 (9th Cir. 2012).*

Defendant was stopped because his car was illegally parked and that was justification for the officer approaching the defendant and observing him allegedly under the influence. Miller v. Chenoweth, 229 W. Va. 114, 727 S.E.2d 658 (2012).*


Permalink 03:18:41 pm, by fourth, 207 words, 399 views   English (US)
Categories: General

D.Nev.: Pre-Jones GPS surveillance still not excluded under Davis "exception" to exclusionary rule

GPS surveillance in the Ninth Circuit was under binding precedent before Jones, so Davis applies. United States v. Fata, 2012 U.S. Dist. LEXIS 66759 (D. Nev. March 15, 2012):

Consequently, even assuming non-compliance with ATF regulations, the Court finds that use of the GPS device in this case was lawful under Pineda-Moreno at the time it was installed and monitored.

Further, consistent with the Supreme Court's decision in Davis v. United States, 131 S. Ct. 2419 (2011), the Court finds that the purpose of the exclusionary rule would not be served in this instance by suppression based solely on placement of the GPS device because placement of the GPS device and the subsequent monitoring was done in reasonable reliance on then binding appellate precedent as announced in Pineda-Moreno.

As a result of the Court's finding and the decision in Davis, even though the installation and use of the GPS device to assist agents in initiating their surveillance on May 14, 2011 through May 15, 2011 did violate Defendants' Fourth Amendment rights, none of the information obtained as a result thereof is subject to suppression. In particular, the surveillance evidence obtained by agents on May 15, 2011, when they observed and overheard conversations during the purchases of firearms at the Gun Store and the gun show will not be suppressed.

Permalink 03:01:14 pm, by fourth, 182 words, 362 views   English (US)
Categories: General

S.D.Ohio: Overturned vehicle was subject to inventory and contents were in plain view

Officers responded to a one vehicle accident and found an Escalade on its side in the road. The vehicle had to be towed, so the inventory was lawful. Besides that, the officer saw a gun in the car and one of the occupants dropped a baggy of drugs when the police showed up. United States v. Brown, 2012 U.S. Dist. LEXIS 66880 (S.D. Ohio May 14, 2012).*

The affidavit for the search warrant here was “bare-boned” and “slim” but barely sufficient to show probable cause and have the benefit of the good faith exception. United States v. McIrby, 2012 U.S. Dist. LEXIS 66946 (S.D. Ala. May 14, 2012)*:

Analyzing the affidavit under the totality of the circumstances, the court finds that the information contained in the warrant, although slim, is sufficient to establish probable cause. The affidavit does not offer evidence of the informant's history of reliability. However, while such information is relevant to a probable cause determination, it is not required to be set forth in the affidavit if there is other evidence under the totality of the circumstances to support a probable cause finding.

Permalink 02:40:10 pm, by fourth, 400 words, 422 views   English (US)
Categories: General

M.D.Fla.: Monitoring a package with beeper and GPS pre-Jones but only when it was briefly in a public place was reasonable

A UPS package from Mexico to Florida was inspected at the UPS de facto border checkpoint at its Louisville hub, and it was found to have cocaine. A controlled delivery was arranged for the Florida address with an anticipatory search warrant. The package was equipped with a beeper to alert to when it was opened and a GPS. First, the defendant’s name was nowhere on the package as shipper or recipient, so he lacked “standing.” Second, the package was lawfully opened under the border exception. Third, the monitoring of the packages with the beeper and GPS occurred while the vehicle was in a public place. Finally, the officers had probable cause to stop and search the car. United States v. Arrendondo, 2012 U.S. Dist. LEXIS 66919 (M.D. Fla. May 14, 2012):

The facts of this case are more closely aligned with Karo and United States v. Knotts, 460 U.S. 276 (1983) than with Jones. In Karo, the government came into physical contact with the container before it belonged to the defendant. "The transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo's privacy." Jones, 132 S. Ct. at 952 (citing Karo, 468 U.S. at 712). Jones found that the conclusion was "perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper's presence, even though it was used to monitor the container's location." Jones, 132 S. Ct. at 952. Unlike Jones, no law enforcement officer trespassed on defendant's vehicle to install a tracking device. Indeed, law enforcement officers did nothing to place the package in the vehicle. The package was simply delivered to the mobile home according to the instructions given by defendant or a conspirator to UPS, and the conduct of the conspirators was allowed to take its natural course.

Karo did hold, however, that some monitoring of the tracking device required a warrant under the Fourth Amendment. The Court held that the monitoring of a beeper in a location not open to visual surveillance (there a residence) violated the Fourth Amendment rights of those who had a justifiable interest of privacy in the location. Karo, 468 U.S. at 714-18. Here, the beepers were monitored only while the Toyota was moving in public places subject to lawful visual surveillance. Therefore, the monitoring did not violate the Fourth Amendment.

Permalink 02:24:35 pm, by fourth, 170 words, 360 views   English (US)
Categories: General

W.D.Mo.: Unlocated gun in domestic dispute justified entry

Officers responded to a domestic dispute where the defendant felon was alleged to have used a gun in an assault on the other in the house. He came to the door to talk to the officers, but the gun was in the couch. That was exigency enough to enter where the officers feared he might break for the gun. United States v. Ward, 2012 U.S. Dist. LEXIS 66824 (W.D. Mo. April 16, 2012).*

Probable cause and exigent circumstances supported the entry into the defendant’s apartment. While the police were outside, they heard voices of the people they knew were in there. Defendant was wanted but not yet found. United States v. Ashbourne, 2012 U.S. Dist. LEXIS 66985 (E.D. Mich. May 14, 2012).*

The USMJ found the traffic stop and detention was justified by reasonable suspicion. On review, the USDJ finds that the officers did not create exigent circumstances–their investigation was appropriate. United States v. Dunn, 2012 U.S. Dist. LEXIS 66427 (W.D. Tenn. May 13, 2012), adopting 2012 U.S. Dist. LEXIS 66977 (W.D. Tenn. March 27, 2012).*


Permalink 08:24:10 am, by fourth, 93 words, 424 views   English (US)
Categories: General

ID: Defendant alleged enough in IAC search claim to get a hearing

The trial court erred in summarily dismissing defendant’s post-conviction petition. He alleged various grounds that the warrantless search was invalid and defense counsel was ineffective for not challenging it. Essentially, the defendant was charged with misdemeanor driving offenses and the trunk of the car was searched incident to the arrest. Hoffman v. State, 153 Idaho 898, 277 P.3d 1050 (2012).*

Officers had reasonable suspicion when they sent a wired CI to the defendant’s apartment and defendant said “Okay” and “hold on” and he left from another door. State v. Durham, 2012 Tenn. Crim. App. LEXIS 311 (May 9, 2012).*

Permalink 08:04:01 am, by fourth, 210 words, 587 views   English (US)
Categories: General

E.D.Ky.: Apparent authority is different from actual authority

Apparent authority is different from actual authority. One is not the other. United States v. Wilburn, 2012 U.S. Dist. LEXIS 66301 (E.D. Ky. May 11, 2012)*:

Wilburn argues the finding of actual authority was erroneous for two reasons. First, he ties what he concludes is a shaky basis for apparent authority to what he argues must correspond to a finding of no actual authority, "if her apparent authority was questionable the officers certainly could not rely on actual authority." [R. 426 at 2]. Like all of Wilburn's arguments, he cites no legal authority to support this proposition. Indeed, Wilburn's argument is at odds with the clear legal principles present in this situation. Apparent authority is present when "the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises." United States v. Campbell, 317 F.3d 597, 608 (6th Cir. 2003) (quotation omitted). Thus, apparent authority, as an idea, concerns what information the officers knew at the time of the search and whether it would be reasonable to conclude that the consenter had authority.

This is very different from actual authority. The concept of actual authority is concerned with whether the consenter had actual dominion over the object he authorized to be searched.

Permalink 07:04:53 am, by fourth, 321 words, 344 views   English (US)
Categories: General

New law review article: "Searching Secrets"

New law review article: Searching Secrets by Nita A. Farahany of the Vanderbilt Law School, forthcoming in the U. Pa. L. Rev. Abstract:

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated protected information like the “content” inside. That metaphor is flawed because it focuses exclusively on whether information is secluded and assigns no value to the substantive information itself. This Article explores the descriptive potential of intellectual property law as a metaphor to describe current Fourth Amendment search and seizure law. It applies this new metaphor to identifying, automatic, memorialized, and uttered evidence to solve current riddles and predict how the Fourth Amendment will apply to emerging technology. Unlike real property law, intellectual property law recognizes that who authored information — and not just how or where it was stored — informs the individual interests at stake in that information. The exclusive rights of authors, including nondisclosure, are interests recognized by copyright law. Recognizing the secrecy interests of individuals has broad implications for the Fourth Amendment in the information age. Together with real property law, an intellectual property law metaphor better describes emerging doctrine, which has required greater government justification to search certain categories of information. But it also reveals the normative shortcomings of current doctrine when the secrets the government seeks are automatically generated information that arises from computer activities, via GPS tracking, or are emitted by our brains.


Permalink 09:58:28 am, by fourth, 69 words, 402 views   English (US)
Categories: General "New York Police Release Data Showing Rise in Number of Stops on Streets" New York Police Release Data Showing Rise in Number of Stops on Streets by Al Baker:

Police officers stopped people on New York City’s streets more than 200,000 times during the first three months of 2012, putting the Bloomberg administration on course to shatter a record set last year for the highest annual tally of street stops.

Welcome to the Big Apple. Come on Vacation, Leave on Probation.

Permalink 08:50:48 am, by fourth, 158 words, 414 views   English (US)
Categories: General

TN: CODIS hit from prior arrest that had no conviction was still valid

Defendant was convicted of rape and murder based on a CODIS hit. His previous DNA draw was the result of his Tennessee arrest on a Mississippi fugitive warrant for a violent offense there. While the Mississippi charge had been dropped, Tennessee was never told. He was actually a felon, so no harm, no foul. State v. Scott, 2012 Tenn. Crim. App. LEXIS 302 (May 10, 2012).*

The state concedes that the traffic stop that led to the smell of marijuana wasn’t legal after all. Riggle v. State, 967 N.E.2d 522 (Ind. App. 2012).*

The trial court apparently discounted the officer’s testimony that defendant was following a tractor-trailer too close when the officer stopped him for a lack of proof of the traffic offense. When defendant refused to consent to a search, the officer got out a drug dog. The court of criminal appeals affirmed because the evidence does not preponderate against the finding. State v. Baldwin, 2012 Tenn. Crim. App. LEXIS 294 (May 10, 2012).*

Permalink 12:01:23 am, by fourth, 148 words, 470 views   English (US)
Categories: General

OH8: Automobile exception justified search of trunk of receiver of stolen cell phones

Defendant was a suspect in receiving cell phones stolen from Wal-Mart. The police recorded him talking with their CI who worked for Wal-Mart and he took a bag of phones and put them in his trunk. The trunk could be searched for the cell phones under the automobile exception. State v. Kamleh, 2012 Ohio 2061, 2012 Ohio App. LEXIS 1810 (8th Dist. May 10, 2012).*

The legality of the inventory of defendant’s car was moot where defendant fled from the car at the time of the stop. Wilson v. State, 966 N.E.2d 1259 (Ind. App. 2012).*

The district court did not clearly err in finding that consent was voluntary. The fact one person in the house was in custody did not mean that the consenter was. Also, there admittedly was no warning of a right to refuse, but that is only a factor in the totality. United States v. Graham, 480 Fed. Appx. 453 (9th Cir. 2012).*


Permalink 08:25:18 am, by fourth, 144 words, 490 views   English (US)
Categories: General

IA: Community caretaking function did not justify stop for minor damage from striking object in road

Defendant’s stop for allegedly having struck an object in the roadway that did not affect the drivability of the car was unjustified. State v. Kurth, 813 N.W.2d 270 (Iowa 2012):

This case presents the question whether an officer is justified in activating his emergency lights and blocking a driver into a parking space under the "community caretaking function" exception to the warrant requirement of the Fourth Amendment based solely upon his knowledge that the vehicle has just struck an object in the roadway and suffered minor damage not affecting the drivability of the car. We conclude that under these circumstances, the community caretaking exception is inapplicable, and the seizure was impermissible. For this reason, we reverse the judgment of the district court and remand this case.

Tinted license plate cover was probable cause for a stop. State v. Tyler, 817 N.W.2d 495 (Iowa App. 2012).*

Permalink 08:10:56 am, by fourth, 365 words, 3793 views   English (US)
Categories: General

OH8: Four armed officers who moved toward open door in a knock-and-talk was coercive of consent

Four armed police officers and two security officers at the door for a knock-and-talk who moved forward when the door was opened was a coercive show of force making the consent involuntary. State v. Clark, 2012 Ohio 2058, 2012 Ohio App. LEXIS 1806 (8th Dist. May 10, 2012):

[*P21] While accepting the trial court's findings of fact as true, we find that upon considering these factors, the totality of the circumstances in this case demonstrates that Clark did not voluntarily consent to the officers' entry into and search of his apartment. The record reflects that four police officers and two uniformed security officers were waiting for Clark when he opened his apartment door. Even discounting Clark's testimony that one of the officers had his gun drawn, we find the presence of six officers immediately outside Clark's apartment door to be an overwhelming show of force that was inherently coercive, especially if, as Det. Kreischer testified, the purpose of a "knock and talk" is simply to "engage a suspect in conversation."

[*P22] The record also reflects that when Clark opened the door, the officers immediately surged forward into the doorjamb, making it impossible for Clark to shut the door. This tactic could only be meant to intimidate Clark into letting the police into his apartment so they could observe any contraband, consistent with Det. Carpenter's testimony that the real purpose of a "knock and talk" is to develop probable cause and make an arrest.

. . .

[*P24] Based on the foregoing, we can only conclude that under the totality of the circumstances, any consent was the result of coercive police tactics, and not voluntarily given. "'Consent' that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse." Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Therefore, any evidence obtained as a result of the warrantless entry into and search of Clark's apartment should have been suppressed as tainted fruit of the poisonous tree and, accordingly, the trial court erred in denying the motion to suppress. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Permalink 08:01:57 am, by fourth, 220 words, 470 views   English (US)
Categories: General

TN: Evasive driving with belief driver regularly possessed drugs was reasonable suspicion

The officer had information about defendant usually being in possession of drugs when he was driving in town, and the officer saw him. Once the officer started following, defendant’s driving pattern of going in circles suggested evasion. Defendant tossed drugs when the lights came on and Tennessee law favors the defendant on that, but the existence of reasonable suspicion makes the stop reasonable. State v. Gibson, 2012 Tenn. Crim. App. LEXIS 289 (May 8, 2012)*:

Additionally, we are compelled to address the State's and the trial court's mistaken reliance on California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), and State v. Baker, 966 S.W.2d 429 (Tenn. Crim. App. 1997), for the proposition that Gibson could not challenge the admissibility of the drugs he dropped out of the car after O'Dell turned on his blue lights. The Tennessee Supreme Court has rejected the holding of Hodari D., making it, and our previous cases relying on it, inapplicable here. See State v. Randolph, 74 S.W.3d 330, 337 (Tenn. 2002).

The officer had probable cause to stop the defendant for DUI. State v. Padgett, 2012 Tenn. Crim. App. LEXIS 291 (May 9, 2012).*

Defendant was stopped for following too close, and the driver exhibited signs he was under the influence of marijuana. Ultimately, a dog alerted. People v. Wofford, 969 N.E.2d 383, 2012 IL App (5th) 100138 (2012), Motion to Publish Granted May 9, 2012.*

Permalink 12:01:11 am, by fourth, 242 words, 501 views   English (US)
Categories: General

New law review article: "Suspicionless Searches of Public School Students: An Empirical Legal Analysis"

New law review article: Suspicionless Searches of Public School Students: An Empirical Legal Analysis by Jason P. Nance forthcoming in the U. Colo. L. Rev. Abstract:

This Article presents an original empirical legal analysis of recent data from the U.S. Department of Education’s School Survey on Crime and Safety. The results of the analysis suggest that many public schools are violating students’ civil rights by conducting suspicionless, intrusive searches without valid justifications, such as having particularized evidence of a drug or weapons problem. Furthermore, the data indicate that many school officials may be using illegitimate criteria – most notably race – to determine whether to conduct those searches. For example, in schools that did not report any student violations relating to weapons, alcohol or drugs during the school year, schools with high minority populations were more than twice as likely to perform suspicionless, intrusive searches than schools with low minority populations. These findings hold true even when taking into account schools officials’ perceptions of the levels of crime where students live and where the school is located. The results underscore the importance of requiring school officials to provide particularized, objective evidence of a drug or weapons problem to justify these searches under the Fourth Amendment. Performing such searches without sufficient justification violates a fundamental civil right in the very institution where children should be educated about good citizenship. Schools cannot expect students to learn important constitutional principles when school authorities disregard them.


Permalink 11:22:49 am, by fourth, 64 words, 504 views   English (US)
Categories: General "Trucker found with 364 pounds of marijuana doesn't have to reveal BlackBerry password, N.J. court rules" Trucker found with 364 pounds of marijuana doesn't have to reveal BlackBerry password, N.J. court rules by AP:

MOUNT OLIVE — Police in northern New Jersey can't force a California trucker accused of hauling marijuana to reveal his password to unlock his BlackBerry.

A judge in Morristown on Thursday ruled that disclosing the password would violate the trucker's Fifth Amendment privilege against self-incrimination.

Permalink 10:53:26 am, by fourth, 66 words, 377 views   English (US)
Categories: General "Few Companies Fight Patriot Act Gag Orders, FBI Admits" Few Companies Fight Patriot Act Gag Orders, FBI Admits by Kim Zetter:

Since the Patriot Act broadly expanded the power of the government to issue National Security Letters demanding customer records, more than 200,000 have been issued to U.S. companies by the FBI. But the perpetual gag orders that accompany them are rarely challenged by the ISPs and other recipients served with such letters.

Permalink 10:23:06 am, by fourth, 184 words, 295 views   English (US)
Categories: General "Lawsuit Says Sheriff Discriminated Against Latinos" Lawsuit Says Sheriff Discriminated Against Latinos by Fernanda Santos and Charlie Savage:

PHOENIX — A federal lawsuit asserting a “pattern of unlawful discrimination” by law enforcement officials here claims that Latinos at the county jail were often referred to as “stupid” or addressed with a coarse ethnic slur. It also says that an e-mail circulated among jail officers contained a photograph of a Chihuahua in a swimsuit, over the words, “A rare photo of a Mexican Navy Seal.”

On the streets, Latino drivers were five to nine times more likely than their non-Latino counterparts to be stopped or searched, the suit asserts, for appearing disheveled or dirty or if it was deemed that too many people were in the back seat. Some were detained because they were said to have looked nervous or avoided eye contact.

. . .

Portraying Sheriff Arpaio’s roughly 900 deputies as poorly trained and supervised, the suit contends that they are far more likely to stop and search Latinos than non-Latinos. Further, the complaint asserts, there is a “culture of bias” against Latinos among the 1,800 officers in the county jail system.

Permalink 09:24:09 am, by fourth, 377 words, 365 views   English (US)
Categories: General

CA4: Blocking defendant’s car made the encounter a seizure

Blocking defendant’s car made the encounter a seizure. [This case provides a wealth of caselaw.] United States v. Jones, 678 F.3d 293 (4th Cir. 2012):

That this was not a routine encounter, but one targeted at Jones seems to us particularly significant given that the officers blocked in Jones's car to effectuate the encounter. In United States v. Green, 111 F.3d 515 (7th Cir. 1997), the Seventh Circuit considered a very similar case. There, as here, the police followed a car into a driveway where the driver parked the car, and there, as here, the defendant then exited his car. Id. at 517. The Seventh Circuit concluded that, although the driver was no longer in his car, and indeed was walking away from his car toward a house, when "the officers pulled their car in behind the [defendant's car], blocking the car's exit ... a reasonable person would not feel that he was free to leave." Id. at 520 n.1. Accordingly, the court found that the police had seized not only the passenger who remained in the car but also the driver who had left it. Id.

This holding comports with that of numerous other courts considering similar facts. ...

We agree that when an officer blocks a defendant's car from leaving the scene, particularly when, as here, the officer has followed the car, the officer demonstrates a greater show of authority than does an officer who just happens to be on the scene and engages a citizen in conversation. For this reason, the three cases on which the Government relies are inapposite. ... Rather, Jones saw the officers follow his car from a public street onto private property and then block the car from exiting in their haste to speak with him.

The Government contends that the placement of the police cruiser has minimal relevance because, as the police approached, two of Jones's companions walked away from the car—one into an apartment and one in the other direction —and the officers did not chase after them or call them back. But it is not altogether clear to us which way this fact cuts. On the one hand, that the officers allowed two passengers to walk away from the vehicle could convey to a reasonable person that he, too, was free to walk away.

Permalink 08:39:32 am, by fourth, 267 words, 613 views   English (US)
Categories: General

ID: Roommate did not have actual or apparent authority to consent to a search of defendant’s separate area

Roommate did not have actual or apparent authority to consent to a search of defendant’s separate bedroom and bathroom. State v. Robinson, 152 Idaho 961, 277 P.3d 408 (App. 2012):

The absence of locked doors does not mean that Mr. Daigneau had access to these rooms. While it does make it physically easier for him to enter these rooms, it is not uncommon for residents of a home to leave their bedroom doors unlocked. The fact that each bedroom was private and not communal is strengthened by the fact that each bedroom door was shut prior to the search commencing.

The fact that Mr. Daigneau slept at the residence does not mean that he has the actual authority to authorize the search of the entire residence. The same holds true for the fact that Mr. Daigneau listed the house in question as his residence. The State was aware prior to the search that Mr. Daigneau shared the residence with others. The probation forms list the other residents of the house, police officers on the scene the night before were aware that both [Robinson] and Mr. Daigneau lived at the residence, and the State was aware that Mr. Daigneau did not own the residence.

From these facts it is conclusive that Mr. Daigneau had actual authority only over his own bedroom and to some extent the common areas of the house. The extent of the search at that time should have been limited to communal areas and Mr. Daigneau's private bedroom. It also must be noted that [one officer] testified that he did not know whose bedroom the back bedroom was.

Permalink 08:03:00 am, by fourth, 114 words, 453 views   English (US)
Categories: General

CA9: Probation search could occur while probation term extended by pending revo petition

Defendant’s probation was not over for purposes of this probation search where a petition to revoke had been filed and unresolved at the time of the search, effectively extending probation. United States v. Izatt, 480 Fed. Appx. 447 (9th Cir. 2012).*

There was probable cause and nexus for a search warrant of defendant’s house where he left the house to go directly to a drug deal. United States v. Thornton, 2012 U.S. Dist. LEXIS 65652 (E.D. Pa. May 10, 2012).*

Defendant got a Franks hearing, and it was readily apparent that the proof failed. Faced with that, the defense still didn’t withdraw the motion. United States v. Villar, 2012 U.S. Dist. LEXIS 65528 (S.D. Fla. May 1, 2012).*

Permalink 07:38:17 am, by fourth, 412 words, 500 views   English (US)
Categories: General

CA8: Plaintiff’s allegations that force was applied to coerce consent to search survives qualified immunity claim

Plaintiff’s allegations that force was applied to coerce consent to search survives qualified immunity claim in a 1983 case. Hemphill v. Hale, 677 F.3d 799 (8th Cir. 2012):

In Chambers, we held that evidence of de minimis injury does not necessarily foreclose a Fourth Amendment excessive-force claim, that the force alleged was not reasonable under the circumstances, but that defendants were entitled to qualified immunity because the state of the law in August 2005 was such that a reasonable officer could have believed that as long as he did not cause more than de minimis injury to an arrestee, he would not violate the Fourth Amendment. See Chambers, 641 F.3d at 904, 906-08.

Chambers, however, did not address the situation alleged here: that the force was used in an attempt to coerce consent to a search. While in Chambers we stated that "[p]olice officers undoubtedly have a right to use some degree of physical force, or threat thereof, to effect a lawful seizure," see id. at 907, we agree with the district court that officers do not have the right to use any degree of physical force or threatened force to coerce an individual to consent to a warrantless search of his home. See United States v. Drayton, 536 U.S. 194, 201 (2002) (law enforcement officers may request consent to search "provided they do not induce cooperation by coercive means"); United States v. Thomas, 93 F.3d 479, 486 (8th Cir. 1996) (consent to search may not be result of "'duress or coercion, express or implied'" (internal citation omitted)); cf. Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989) (showing of physical injury required to state Fourth Amendment excessive-force claim for force used in course of arrest is not required in situations not involving arrest, such as during interrogation). Because no use of force to obtain Hemphill's consent to search would have been reasonable, the force Hale was alleged to have used-grabbing Hemphill by the neck, choking him, and hitting him two or three times while he was handcuffed-was objectively unreasonable given the facts and circumstances in the case. See Graham v. Connor, 490 U.S. 386, 396-97 (1989) (officer's use of force violates Fourth Amendment when it is objectively unreasonable given facts and circumstances of particular case, judged from perspective of reasonable officer at scene). The law regarding forced consent was clearly established in August 2009 such that a reasonable person in Hale's position would have known that his actions were unreasonable. See Drayton, 536 U.S. at 201; Thomas, 93 F.3d at 486.

The order denying qualified immunity is affirmed.

Permalink 07:35:08 am, by fourth, 185 words, 436 views   English (US)
Categories: General

CA6: SOL for search 1983 cases run from search, and they are not dependent on underlying criminal case

Plaintiff’s 1983 case was an attempt to relitigate his state criminal case, and it was barred under Heck v. Humphrey. Alternatively, it is time barred because search claims don’t depend on overturning the state conviction to accrue. Hunt v. Michigan, 482 Fed. Appx. 20 (6th Cir. 2012)*:

But even if we were to agree with Hunt that some of his search-and-seizure claims are not barred by Heck, dismissal of his complaint was still proper because those claims are time-barred. The search and arrest about which Hunt complains occurred in October 1998, but Hunt did not file his complaint until November 2009, well beyond the three-year statute of limitations that applies to § 1983 claims in Michigan. See Wolfe v. Perry, 412 F.3d 707, 713-14 (6th Cir. 2005). To the extent his claims are not barred by Heck, they do not benefit from the rule that a claim so barred does not accrue until the state conviction has been overturned. Heck, 512 U.S. at 489-90; see Eidson v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 641 (6th Cir. 2007). Because Hunt's claims are either Heck-barred or time-barred, the district court properly dismissed his complaint.

Permalink 07:32:05 am, by fourth, 360 words, 497 views   English (US)
Categories: General

E.D.Pa. declines to apply Davis good faith exception to GPS

Davis's good faith exception is not applicable to GPS surveillance because of lack of binding authority, at least in the circuit. Jones was decided after indictment based on the surveillance. United States v. Katzin, 2012 U.S. Dist. LEXIS 65677 (E.D. Pa. May 9, 2012):

In support of the good faith argument, the Government relies primarily on Davis v. United States, 131 S. Ct. 2419 (2011). In that case, Willie Davis moved to suppress evidence found during the search of a vehicle in which he was a passenger, which took place after he and the driver were handcuffed and placed in a police car. Id. at 2425. At the time of the search, precedent in the circuit where the search was conducted clearly set forth a brightline rule allowing police to search vehicles contemporaneously with arrests of recent occupants, regardless of whether the occupants were still within reach of the vehicle. After the trial court denied Mr. Davis's motion and he had appealed his subsequent conviction, the Supreme Court decided Arizona v. Gant, 556 U.S. 332 (2009), in which the Court departed from the brightline rule regarding vehicle searches previously adopted by most courts. Instead, the Supreme Court held that a vehicle search is not automatically permitted unless the occupants are still "'unsecured and within reaching distance of the passenger compartment at the time of the search.'" Id. at 2425 (quoting Gant, 556 U.S. at 343). Because the police acted in good faith in relying on binding appellate precedent at the time of the search, the Supreme Court upheld the Eleventh Circuit's holding that the exclusionary rule should not apply in Mr. Davis's case. The Court likened this extension of the exclusionary rule to cases in which police had relied on subsequently invalidated statutes or warrants. Id. at 2428-29.

Here, there was no binding Third Circuit precedent on the issue at hand (or even arguable ambiguity in Circuit case law), but rather a split of other circuits with regard to the Fourth Amendment significance of non-consensual GPS monitoring. After Davis, only a very small handful of federal court opinions have even discussed the extension of Davis's holding to an area of unsettled law, and all three deal with GPS monitoring. ...

Permalink 12:22:49 am, by fourth, 103 words, 353 views   English (US)
Categories: General "2 Opinions on Stop-and-Frisk Report" 2 Opinions on Stop-and-Frisk Report by Al Baker and Joseph Goldstein

In 2003, the second year of Mayor Michael R. Bloomberg’s first term, police officers confiscated 604 guns through 160,851 stop-and-frisk encounters: a success rate of one gun for every 266 stops.

Last year, the police seized 780 guns through 685,724 stop-and-frisk encounters, meaning that officers made 879 stops for each gun found.

Critics of the Police Department’s street-stop tactics, including the New York Civil Liberties Union, said the falling gun recovery rate was a sign that the department was stopping too many innocent people as it made an increasing number of street stops in minority neighborhoods.

Permalink 12:11:59 am, by fourth, 240 words, 958 views   English (US)
Categories: General

"Marijuana Odor Perception: Studies Modeled From Probable Cause Cases"

Marijuana Odor Perception: Studies Modeled From Probable Cause Cases, 28 Law and Human Behavior, No. 2 (April 2004), by Richard L. Doty, Thomas Wudarski, David A. Marshall, and Lloyd Hastings:

The 4th Amendment of the United States Constitution protects American citizens against unreasonable search and seizure without probable cause. Although law enforcement officials routinely rely solely on the sense of smell to justify probable cause when entering vehicles and dwellings to search for illicit drugs, the accuracy of their perception in this regard has rarely been questioned and, to our knowledge, never tested. In this paper, we present data from two empirical studies based upon actual legal cases in which the odor of marijuana was used as probable cause for search. In the first, we simulated a situation in which, during a routine traffic stop, the odor of packaged marijuana located in the trunk of an automobile was said to be detected through the driver’s window. In the second, we investigated a report that marijuana odor was discernable from a considerable distance from the chimney effluence of diesel exhaust emanating from an illicit California grow room. Our findings suggest that the odor of marijuana was not reliably discernable by persons with an excellent sense of smell in either case. These studies are the first to examine the ability of humans to detect marijuana in simulated real-life situations encountered by law enforcement officials, and are particularly relevant to the issue of probable cause.

Permalink 12:01:49 am, by fourth, 137 words, 345 views   English (US)
Categories: General

Network World: "Fight the Patriot Act and win. Next? Promise privacy, a surveillance-free ISP"

Network World: Fight the Patriot Act and win. Next? Promise privacy, a surveillance-free ISP:

Nick Merrill, once known as John Doe, secretly fought for our First and Fourth Amendment rights, battled against NSL abuse, a gag order, excessive government secrecy, and almost entirely redacted documents from FBI counterintelligence. Living under such mentally-exhausting circumstances for years is bound to change a person, but Merrill believes it is "better to die on your feet than live on your knees" and is "hoping to do further legal challenges to some of the warrantless wiretapping laws in America.” What’s next after fighting the Patriot Act and winning? Merrill intends to create a surveillance-free ISP with end-to-end encryption that promises to put your privacy above profit. The Calyx Institute promises to be an ISP that will stand up to the government.


Permalink 09:16:07 am, by fourth, 323 words, 550 views   English (US)
Categories: General

New Yorker: "Here’s Looking at You; Should we worry about the rise of the drone?"

New Yorker: Here’s Looking at You; Should we worry about the rise of the drone? by Nick Paumgarten:

ABSTRACT: THE WORLD OF SURVEILLANCE about drones. The prospect of unmanned flight has been around—depending on your definition—since Archytas of Tarentum reputedly designed a steam-powered mechanical pigeon, in the fourth century B.C., or since Nikola Tesla, in 1898, demonstrated a radio-controlled motorboat at an exposition in Madison Square Garden. By the sixties the Air Force was deploying unmanned reconnaissance jets over Southeast Asia. Still, it was the advent, in the mid-nineties, of the Global Positioning System, along with advances in microcomputing, that ushered in the possibility of automated unmanned flight. The Department of Defense, meanwhile, developed a keen interest. With the wars in Iraq and Afghanistan, and manhunts in places like Yemen, the military applications, and the corporations devoted to serving them (Lockheed Martin, Northrop Grumman), came to dominate the skyscape. Many of these manufacturers had one client: the Department of Defense. In 2001, the military had just a few Unmanned Aerial Vehicles (U.A.V.s). Now it has more than ten thousand. Later this month, the F.A.A. will present a regulatory regimen enabling law-enforcement departments to fly small drones, and the military contractors will suddenly have some eighteen thousand potential new customers. As of now, only a tiny percentage of municipal and state police departments have any air presence, because most can’t afford helicopters or planes. Small camera-loaded U.A.V.s are much cheaper. The public proposition, at this point, anyway, is not that drones will subjugate or assassinate unwitting citizens but that they will conduct search-and-rescue operations, fight fires, catch bad guys, inspect pipelines, spray crops, count nesting cranes and migrating caribou, and measure weather data and algae growth. For these and other tasks, they are useful and well suited. Of course, they are especially well suited, and heretofore have been most frequently deployed, for surveillance.

Permalink 08:35:38 am, by fourth, 134 words, 377 views   English (US)
Categories: General

MN: A parole search needs only reasonable suspicion

“No more than reasonable suspicion is required to search a parolee's home when the search is conducted pursuant to a valid parole condition.” State v. Heaton, 812 N.W.2d 904 (Minn. App. 2012).*

Defendant was stopped for a turn lane violation. Defendant’s detention was based on the fact that he would not make direct eye contact, his eyes were red and glassy, he was looking around the vehicle, and he acted somewhat suspicious. This led the officer to believe that he might be engaged in criminal activity. State v. Aguirre, 2012 Ohio 2014, 2012 Ohio App. LEXIS 1765 (3d Dist. May 7, 2012).*

Defendant has the burden of showing that the search warrant was issued without probable cause. Evaluating all the information, there was a substantial basis for concluding there was probable cause. State v. Fruge, 95 So. 3d 1112 (La.App. 5 Cir. 2012).*

Permalink 08:00:11 am, by fourth, 150 words, 550 views   English (US)
Categories: General

D.S.D.: Davis good faith exception requires a change in the law; it doesn't apply to wrong interpretations

To apply a Davis good faith exception to an officer’s interpretation of the statute, it has to be correct and in accord with existing case law that thereafter changed. If the officer is wrong on application of the statute, that’s a mistake of law and any good faith exception would not apply. United States v. Gore, 2012 U.S. Dist. LEXIS 64784 (D. S.C. May 9, 2012).*

Officers approached defendant outside a store and got her ID to run a “local check” finding no warrants. They let her go but watched her walk and then decided to encounter her again, having her back against a wall and officers to both sides. A reasonable person would not have felt free to leave, and this was a Terry stop without justification. Defendant had the burden of showing that this was a seizure, and she satisfied it. State v. Young, 167 Wn. App. 922, 275 P.3d 1150 (2012).*

Permalink 07:39:42 am, by fourth, 271 words, 410 views   English (US)
Categories: General

CA10: State court's erroneous decision on search claim not subject to habeas

COA (2253(c)) in a 2254 denied on petitioner’s Fourth Amendment claim. The contention that the free standing Fourth Amendment claim was decided wrongly by state courts is barred under Stone v. Powell and AEDPA. McIntyre v. McKune, 480 Fed. Appx. 486 (10th Cir. 2012):

Unlike the situation in Gamble, however, there is no indication that the Kansas courts refused to recognize or apply the correct legal standards in this case. McIntyre's belief that the state courts decided the claim wrongly does not mean that he was denied a full and fair opportunity to litigate. See Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009). He was able to brief his arguments, and the trial court held a hearing on whether to hold a Franks hearing. At that hearing, in addition to concluding that a Franks hearing was not warranted, the trial court held that the omissions were not material. McIntyre's counsel declined to raise suppression in his direct criminal appeal, but the Kansas Court of Appeals allowed McIntyre to file a pro se supplemental brief challenging the denial of suppression. After the Kansas Court of Appeals specifically acknowledged the pro se brief and stated that the arguments were meritless, McIntyre again on direct appeal was able to file a pro se petition for review to place the issue before the Kansas Supreme Court. No reasonable jurist would find it debatable whether McIntyre had a full and fair opportunity to litigate his Fourth Amendment claim in the Kansas courts.2 See Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992) (concluding that defendant had a full and fair opportunity to litigate, even though he did not receive a Franks hearing).

Permalink 07:28:50 am, by fourth, 178 words, 362 views   English (US)
Categories: General

S.D.Ind.: The fact there was an innocent explanation does not undermine PC for SW

The fact there were innocent explanations for what was described in the application for the search warrant does not undermine probable cause. The showing as to one of the searches was not supported and was thus waived. United States v. Durham, 2012 U.S. Dist. LEXIS 65126 (S.D. Ind. May 9, 2012):

Mr. Durham's motion also purports to challenge the fruits of a search warrant issued in Ohio. [See dkt. 153 at 1.] He has not provided the Court with a copy of that warrant, its application, or with any argument specifically addressing the legal and factual circumstances for that warrant (including, for example, an explanation of the extent of his reasonable expectation of privacy there). Those failures constitute a waiver of any argument that he may have had, for lack of cogent development. E.g., Kawasaki Heavy Indus. v. Bombardier Rec. Prods., 660 F.3d 988, 994 n.3 (7th Cir. 2011) (citation omitted).

Inmate telephone calls out of a federal prison are recorded, and recording and listening to one is not an illegal search. United States v. Bassett, 2012 U.S. Dist. LEXIS 65068 (E.D. Mo. April 13, 2012).*

Permalink 12:01:18 am, by fourth, 213 words, 452 views   English (US)
Categories: General

LA: Bystanders to two SW being executed at motel could be stopped for safety purposes

Narcotics officers executing two search warrants at a motel were justified in detaining those around the scene for officer safety. “The record in this case fully supports the determination that the initial detention of Thompson was a valid investigatory stop. The officers were engaged in executing narcotics search warrants, "... the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence." Summers, 452 U.S. at 702, 101 S.Ct. at 2594. Moreover, Agent Parker's testimony that guns are frequently used in narcotic trafficking is a factor which increases the possibility of danger to the officers.” State v. Thompson, 93 So. 3d 553 (La. 2012), revg 58 So.3d 994 (La. App. 2 Cir. 2011).

An officer at a sobriety checkpoint observed a vehicle abruptly pull into a parking lot of closed businesses. He went to investigate, and defendant’s vehicle pulled in, too. The police car blocked the exit. This was a stop without reasonable suspicion of wrongdoing, and it was not consensual. Jones v. State, 291 Ga. 35, 727 S.E.2d 456, 729 S.E.2d 428 (2012).*

The search warrant for defendant’s cell phone was based on probable cause, and the nine months between transactions did not make it stale here. The good faith exception also applies. United States v. Sinclair, 2012 U.S. Dist. LEXIS 63864 (N.D. Cal. May 3, 2012).*


Permalink 07:22:23 pm, by fourth, 73 words, 338 views   English (US)
Categories: General

We were down for 24 hours or more

In the process of renewing this website until 2017 yesterday, some electronic switch was thrown that put us out of commission for about 24 hours. Then, only some people could see it not others. I was one of those who couldn't. I couldn't see it until about 5 pm central.

The Internet may seem to operate seamlessly, but it really is subject to individual failures. Anything subject to human intervention is prone to be screwed up.

Permalink 07:02:53 pm, by fourth, 221 words, 409 views   English (US)
Categories: General

D.Idaho: GPS use prior to Jones not excluded under Davis

Where placing a GPS on a vehicle was permitted by binding circuit authority prior to Jones, the information could be used and not excluded under Davis [which applied to binding SCOTUS case law]. United States v. Aquilar, 2012 U.S. Dist. LEXIS 64139 (D. Idaho May 7, 2012):

At the time the GPS devices were used in this case, binding precedent in the Ninth Circuit established that the warrantless attachment of GPS devices did not violate the Fourth Amendment. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999). More recently, the Ninth Circuit held that placing a GPS tracker on a vehicle while the vehicle was parked in a private driveway did not constitute a search under the Fourth Amendment. See United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir. 2010), judgment vacated by Pineda-Moreno v. United States, 132 S.Ct. 1533, 182 L. Ed. 2d 151 (2012). The court in Pineda-Moreno further held that monitoring such tracking devices did not constitute an impermissible search under the Fourth Amendment. Id. at 1216-17. Thus, law enforcement officers, when they placed the GPS tracker on Mr. Aguilar's car in October and November of 2011, were acting in objectively reasonable reliance on the binding appellate precedent provided by McIver and Pineda-Morales. Accordingly, the exclusionary rule will not be applied here because suppression of the evidence obtained would do nothing to deter police misconduct. See Davis supra.

Permalink 06:46:35 pm, by fourth, 200 words, 496 views   English (US)
Categories: General

M.D.Ala.: Disavowing drugs and guns at the time of raid was factor in not having standing

Defendant disavowed the drugs and guns at the time of the search, and then he failed to show a sufficient connection to the property for standing. “At the hearing, Hollis testified that he did not know Howard, the lessor of the apartment. He also testified that he was not given permission by Howard to enter the apartment. Hollis did testify that he was given keys to the apartment by a man named Terry, who claimed to know Howard. However, Howard testified to the Grand Jury that she had not given Terry, or anyone for that matter, a set of keys to the apartment.” United States v. Hollis, 2012 U.S. Dist. LEXIS 63778 (M.D. Ala. April 11, 2012).*

Defendant was stopped for a seat belt violation, and the usual inquiries took twenty minutes. The court does not find that unreasonable as a matter of law. United States v. Sotelo-Lopez, 2012 U.S. Dist. LEXIS 64126 (D. Kan. May 7, 2012).*

“[R]eason to believe” in 8 U.S.C. § 1357(a) means probable cause to believe that a person is illegally in the United States. The regulation in 8 C.F.R. § 287.8 governs arrest and questioning of suspects. United States v. Ravelo-Rodriguez, 2012 U.S. Dist. LEXIS 63801 (E.D. Tenn. March 12, 2012).*

Permalink 06:36:07 pm, by fourth, 447 words, 364 views   English (US)
Categories: General

D.S.D.: DV call here did not provide exigency for house entry

Officers responding to a DV call did not have exigent circumstances or a reason to believe that defendant was in need of aid inside to justify an entry. United States v. Ladeaux, 2012 U.S. Dist. LEXIS 64302 (D. S.D. May 8, 2012), reconsideration denied 2012 U.S. Dist. LEXIS 64830 (D. S.D. May 9, 2012)*:

Similarly, the court finds a reasonable, experienced officer with knowledge of the facts of this case would not have a legitimate concern for the safety of Mr. LaDeaux. There is no evidence he was injured or was a threat to himself. See Uscanga-Ramirez, 475 F.3d at 1029 (finding exigent circumstances were present when defendant's wife told officers defendant locked himself in the bedroom with a gun and was very upset). The government also argued Officer Ten Fingers was justified in entering the residence to protect his safety in the event Mr. LaDeaux used a firearm or other weapon. However, there is no evidence Mr. LaDeaux owned a firearm or, if he owned one, would use a firearm against anyone, much less law enforcement. See United States v. Church, No. 1:06:CR:292, 2007 WL 689890 at *2, (W.D. Mich. March 2, 2007) (noting "[t]he presence of a weapon creates an exigent circumstance, provided the government is able to prove they possessed information that the suspect was armed and likely to use a weapon or become violent") (citation and internal quotation marks omitted). The government presented no evidence Mr. LaDeaux ever used any kind of weapon, whether a firearm, a knife, or his fists, against Ms. Belt, a police officer, or anyone else. Further, no shots were heard or reported on September 5, 2011, nor did anyone (a neighbor, a caller to police dispatch, or Ms. Belt herself) inform the police they saw or knew of a firearm in the residence or they saw Mr. LaDeaux brandishing a firearm. There is no evidence Mr. LaDeaux ever physically assaulted anyone, used a weapon against anyone, or threatened to use a weapon against anyone, whether on September 5, 2011, or any other time. There is no evidence Officer Ten Fingers observed wounds, blood, scratch marks, or any signs of violence on Ms. Belt as she fled the residence. This is not a situation where Officer Ten Fingers asked Mr. LaDeaux to exit the residence and Mr. LaDeaux threatened to use a weapon to harm himself or Officer Ten Fingers. Nor is this a situation where Officer Ten Fingers observed through a window Mr. LaDeaux pick up a weapon. In such situations, warrantless entry into a residence may be justified.

If there was any danger to Officer Ten Fingers, it was the result of his own actions, that is, his entry into the residence without backup and without knowing the situation. ...

Permalink 06:19:59 pm, by fourth, 108 words, 350 views   English (US)
Categories: General

AR: Abandonment before a stop is not the product of the stop

Abandonment before a stop is not the product of the stop. Williams v. State, 2012 Ark. App. 337, 2012 Ark. App. LEXIS 441 (May 9, 2012).*

Defendant was convicted of assaulting an officer serving a search warrant for his DNA. He did not show sufficient evidence to get a self-defense instruction that he was fighting off an “unauthorized assailant.” United States v. Johnson, 480 Fed. Appx. 437 (9th Cir. 2012).*

Probation officers had probable cause to believe that defendant was living at the apartment they searched. They also had reasonable suspicion to stop him on the street for possession of a weapon based on a CI’s corroborated tip. United States v. Asprilla, 473 Fed. Appx. 570 (9th Cir. 2012).*

Permalink 06:08:51 pm, by fourth, 321 words, 465 views   English (US)
Categories: General

How the War on Drugs Distorts Privacy Law by Jane Yakowitz Bambauer (a preview of Jardines)

How the War on Drugs Distorts Privacy Law by Jane Yakowitz Bambauer, 64 Stan. L. Rev. Online 131:

The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. Jardines, 132 S. Ct. 995 (No. 11-564), 2011 WL 5254666. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones.

A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.

Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,”Id. at 409 (quoting Place, 462 U.S. at 707), a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches. See id. at 411-12 (Souter, J., dissenting). See also Florida v. Harris, 71 So. 3d 756 (Fla. 2011), cert. granted, 132 S. Ct. 1796 (2012).

Curiously missing from any Supreme Court opinion is a reflection on how contraband-detecting dogs fundamentally change law enforcement. Police dogs are old technology, but their widespread use ushers in a new model of policing. Like pattern-based data mining, dog sniffs produce tradeoffs inherent in dragnet-style law enforcement. They redistribute the burden of unproductive searches from the few-but-stereotypically “suspicious” to the entire population.

This Essay presents new qualitative research based on the facts of Florida v. Jardines. ...

Permalink 06:04:03 pm, by fourth, 345 words, 353 views   English (US)
Categories: General

The Dead Past, by Alex Kozinski

The Dead Past, by Alex Kozinski, Chief Judge, United States Court of Appeals for the Ninth Circuit, 64 Stan. L. Rev. Online 117

. . .

I have worried a good deal about that fish bowl over the years, and it seems pretty clear that it’s getting smaller, and its walls are getting more transparent. To give just one example, the other day one of my sons sent me a link to a satellite picture of my house from Google Maps. You could not only see the house in pretty clear detail, but you could see who was home, from the two cars in the yard—my son’s blue Subaru and my brother-in-law’s gray Avalanche. I was very happy that I hadn’t been taking one of my famous nude sun-baths on my patio.

I flew here today from Los Angeles. I drove to LAX, landed at San Jose Airport and a student drove me to Palo Alto. Who knows this? Big Brother knows. Why? Because I carried my cell phone, and who doesn’t carry a cell phone nowadays? The cell phone logs in every few minutes to a nearby cell tower, so if you obtain the telephone company’s records, it’s pretty easy to piece together exactly where I’ve been all day. And, if you have the student’s cell phone number, you’d also know how long we spent together and where we went.
Does the government obtain such records to check people’s alibis in case they are suspected of crimes? You bet they do. In fact, if you left your phone at home that day, so there’s no cookie-crumb trail to show you were somewhere else, prosecutors will argue that you not only committed the crime, but premeditated it as well—by leaving your cell phone at home so your steps couldn’t be traced. China has taken this to another level: Earlier this year, Beijing officials announced that they intend to use cell phones to monitor the movements of twenty million residents—“to ease traffic and subway congestion.”


Permalink 06:41:52 pm, by fourth, 124 words, 418 views   English (US)
Categories: General

PCWorld: "DOJ Says Requiring Warrant for Cell Phone Tracking Would 'Cripple' Law Enforcement"

PCWorld: DOJ Says Requiring Warrant for Cell Phone Tracking Would 'Cripple' Law Enforcement by Darlene Storm:

If your mobile phone is on then it is constantly pinging cell phone network towers, leaving you no choice about revealing your location. The ACLU warned the "threat to personal privacy presented by this technology is breathtaking," especially since the "government is routinely violating American's privacy rights through warrantless cell phone tracking." Apparently any mobile phone privacy is too much privacy in the early stages of an investigation, before law enforcement actually has any proof that a person has done anything illegal. An Obama administration official told a congressional panel that requiring a search warrant to obtain cell phone location tracking information would "cripple" law enforcement and prosecutors.

Permalink 09:17:38 am, by fourth, 236 words, 405 views   English (US)
Categories: General

N.D.Ala.: Crossing center line repeatedly justified stop

The video showed defendant crossing the centerline repeatedly. There was probable cause for his stop, despite his contention that state law was not violated. “Additionally, as noted by the officer and demonstrated by the video, the defendant's driving pattern indicated that he might be impaired, also warranting an investigatory stop.” United States v. Benitez, 2012 U.S. Dist. LEXIS 62913 (N.D. Ala. April 4, 2012).*

Defendant probationer consented to a search of his cell phone and pictures of him holding guns were revealed, and that justified a probation search of where he lived. United States v. Peila, 2012 U.S. Dist. LEXIS 63036 (D. Nev. April 3, 2012).*

Defendant filed a general motion to suppress which was heard before trial, but only statements made at the time of arrest were discussed. A gun was also seized in Tennessee, and it was never mentioned. At trial, the gun was not objected to. On appeal, the issue of the seizure of the gun was waived. Rockholt v. State, 291 Ga. 85, 727 S.E.2d 492 (2012).*

Drug officers stopped defendants based on a request to stop him so used the fact that one of three taillights was out. But, Arizona law just says that “a stop light” needs to work, and this is a mistake of law because defendants otherwise were committing no traffic violation. The subsequent consent derived from the illegal stop, and it’s all suppressed. United States v. Manzo, 2012 U.S. Dist. LEXIS 63058 (D. Ariz. May 3, 2012).*

Permalink 08:53:44 am, by fourth, 124 words, 410 views   English (US)
Categories: General

LA Times editorial: "The secret life of your cellphone"

LA Times editorial: The secret life of your cellphone; In a threat to the 4th Amendment, law enforcement is using location data as a crime-fighting tool:

Concerned that mobile phone networks are becoming surveillance tools, the American Civil Liberties Union recently asked hundreds of local law enforcement agencies whether they've tracked people's movements through their cellphones. Most of those that responded said they had, usually obtaining the information from mobile phone companies without a warrant. The practice has become so routine, the ACLU found, that phone companies are sending out catalogs of monitoring services with detailed price lists to police agencies. The alarming findings should persuade Congress to clarify that the government can't follow someone electronically without showing probable cause and obtaining a warrant.

Permalink 08:49:56 am, by fourth, 554 words, 638 views   English (US)
Categories: General

N.D.Ind.: Excessive force in arrest didn't justify suppression of search with no causal connection

Allegations of excessive force used during defendant’s arrest did not justify suppression of the search where there was no causal connection. United States v. Collins, 2012 U.S. Dist. LEXIS 63214 (N.D. Ind. May 4, 2012):

The Defendant's primary objection to the admission of the evidence against him is his claim that Officers Ealing and Johnson used unreasonable force to effectuate his arrest. The Defendant cites a Ninth Circuit case, United States v. Ankeny, for the proposition that a Fourth Amendment excessive force violation requires suppression of the evidence seized. 502 F.3d at 836. However, the Defendant also cites to United States v. Watson, where the Seventh Circuit disagreed with the Ankeny court. Specifically, the Seventh Circuit declined to apply the Ankeny court's reasoning, holding: "We thus disagree with the dictum in United States v. Ankeny ... that the use of excessive force in the course of a search can require suppression of the evidence seized." 558 F.3d at 705. Rather, if a defendant proves excessive force, "his remedy would be a suit for damages under 42 U.S.C. § 1983 (or state law) rather than the exclusion from his criminal trial of evidence that had been seized in an otherwise lawful search." Id. at 704. Therefore, under a plain reading of Watson, suppression would not be appropriate even if the Defendant could establish that Officers Ealing and Johnson used excessive force against him. Rather, the Defendant's appropriate remedy would be a § 1983 civil suit against the Officers for use of excessive force.

The Court notes that even under Ankeny, suppression would not be appropriate in this case. The Ankeny court held that it did not need to determine whether unreasonable force had been used because there was no "causal nexus" between the allegedly unreasonable force and discovery of the evidence. Ankeny, 502 F.3d at 837; see also Watson, 558 F.3d at 702 ("There was no causal connection ... between the alleged police misconduct and the obtaining of the evidence."). The bag containing cocaine was obtained not because of any allegedly unreasonable force used by the Officers, but because the Defendant threw it away from his person before Officer Ealing used any force. As the Government urges, "[a]n arrest does not occur until a police officer lays hands on a subject or the subject voluntarily submits to a show of authority." United States v. Britton, 335 Fed. Appx. 571, 575 (6th Cir. 2009); California v. Hodari D., 499 U.S. 621, 626 (1991) ("An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority."). The exclusionary rule is only triggered where evidence is obtained "following an unlawful arrest." United States v. Howard, 621 F.3d 433, 451 (6th Cir. 2010). Because the facts indicate that the Defendant threw the bag away from his person before Officer Ealing touched him, the bag was not obtained "following" an arrest at all, and so there can be no nexus between the alleged unreasonable force and finding the bag. For that matter, it appears that the Defendant placed the bag in a publicly exposed place, suggesting that the Government's retrieval of the bag did not constitute a search at all within the meaning of the Fourth Amendment. See United States v. Eubanks, 876 F.2d 1514, 1516 (11th Cir. 1989) ("[U]nder the fourth amendment no governmental 'search' occurs if the place or object examined is publicly exposed such that no person can reasonably have an expectation of privacy.").

Permalink 08:13:24 am, by fourth, 377 words, 341 views   English (US)
Categories: General

IL: Defendant's stop on a SW for another's apartment was unreasonable

Defendant was stopped based on a search warrant for the apartment of another. In the search, officers found no drugs, but they found keys. It turned out that a key fit the apartment door. At the time of the search of his person, the officers did not have probable cause to detain him because there was no known connection to the keys and the apartment. Defendant was taken from the place of his seizure to the apartment. People v. Hill, 2012 Ill. App. LEXIS 332, 2012 IL App (1st) 102028 (May 4, 2012):

[**P22] We note that the finding of probable cause to support the search warrant does not permit us to assume that there was probable cause or reasonable suspicion to justify the continued detention and transportation of defendant. These are related, but different, inquiries, and "[e]ach requires a showing of probabilities as to somewhat different facts and circumstances." 2 Wayne R. LaFave, Search and Seizure § 3.1(b), at 8-9 (4th ed. 2004). "In the case of arrest, the conclusion concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with crime and to their present location." Id. at 10. The same holds true for the State's Terry argument: the search warrant does not, by its mere existence, give rise to reasonable suspicion that justifies the continued detention and transportation of defendant. While this information supporting the search warrant is now part of the record, the State has never argued—in the motion to supplement the record, in its brief, or at oral argument—that the specific facts in the complaint for the search warrant support an independent finding of probable cause or reasonable suspicion that would justify the seizure. Instead, the State simply argues that because police had a reason to believe there were drugs in the Flournoy apartment (i.e., they had probable cause for the search warrant), they also had probable cause, or at least reasonable suspicion, that allowed for defendant's continued detention and transportation. Where the search of defendant revealed no narcotics and police had not yet found any narcotics or contraband at the apartment, the mere expectation that police would find drugs in the apartment, without more, cannot justify defendant's continued detention and transportation to the apartment.

Permalink 07:34:57 am, by fourth, 52 words, 348 views   English (US)
Categories: General

Volokh Conspiracy: "The Fourth Amendment and Video Recording in Bathrooms, in Civil Commitment Units for Sex Offenders"

Volokh Conspiracy: The Fourth Amendment and Video Recording in Bathrooms, in Civil Commitment Units for Sex Offenders by Eugene Volokh:

Arnzen v. Palmer (N.D. Iowa Apr. 12, 2012) deals with an interesting and unusual questions: To what extent, if any, does the Fourth Amendment restrict searches in civil commitment units for sex offenders?


Permalink 12:13:23 am, by fourth, 200 words, 432 views   English (US)
Categories: General

CAAF: Consent to UA could be withdrawn before testing under M.R.E. 314(e)(3)

Defendant Airman first consented to a UA but withdrew his consent before the testing was done. This was potentially binding under M.R.E. 314(e)(3), which had to be considered. Also, his UA could not be considered an abandonment. United States v. Dease, 71 M.J. 116 (C.A. A.F. 2012):

For the reasons set forth below, we hold that the military judge did not abuse his discretion in ruling that Appellant had a privacy interest in his urine sample and could withdraw consent prior to the search. Further, the military judge did not abuse his discretion in concluding that the urinalysis evidence and evidence derived from that urinalysis would not have been subject to inevitable discovery. Seizure and search are not necessarily coterminous, particularly in the context of a urinalysis case. M.R.E. 314(e)(3) states that "[c]onsent may be limited in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time." (Emphasis added.) Therefore, the lower court erred in determining that Appellant's privacy interest in his urinalysis sample was extinguished by his voluntary surrender of his urine to the Government, without addressing M.R.E. 314(e)(3).

Permalink 12:02:59 am, by fourth, 82 words, 459 views   English (US)
Categories: General

CA2: Challenging consent search for scope rather than voluntariness was strategic decision

Defendant’s challenge to his 1992 search was originally on scope of search rather than the validity of third party consent. Reviewing for plain error, counsel was not ineffective for not challenging the consent on that ground rather than voluntariness. “Strickland grants no license to question counsel's strategic decisions.” United States v. Balogun, 480 Fed. Appx. 27 (2d Cir. 2012).*

Defendant passed out in his car going the wrong way through a McDonald’s drive-in was reasonable suspicion. State v. Ownby, 2012 Tenn. Crim. App. LEXIS 274 (May 3, 2012).*


Permalink 12:08:37 pm, by fourth, 217 words, 474 views   English (US)
Categories: General

Baltimore Sun editorial: "DNA testing: Why not just trash the Fourth Amendment?"

Baltimore Sun editorial: DNA testing: Why not just trash the Fourth Amendment?

I found Dan Rodricks' commentary regarding DNA testing and the recent Maryland Court of Appeals ruling ("DNA: Why wait for an arrest?" May 3) to be quite interesting. He states at the end that he can't think of a good argument against his position that we should all give DNA samples to the authorities whether we have been accused of a crime or not. Well, Dan, I've also thought about how useful having a large repository of DNA can be. Unsolved crime and a city mayor on your back? No problem! We'll just take some DNA from our bank, plant it at the scene, and say that it was left there.

DNA evidence would surely trump any factual alibi, so no problem, case closed, someone (whether guilty or not) now behind bars, and the mayor's happy. Don't believe it could happen? Think again. Planting "evidence" is not unheard of.

. . .

Of course, we could simply scrap the whole Fourth Amendment and allow the government to enter our homes and search them whenever they felt like it, all in the name of proving our innocence. If we have nothing to hide, why should we not give them free reign and not require things like probable cause and warrants?

Permalink 08:34:45 am, by fourth, 831 words, 714 views   English (US)
Categories: General

KS: Officer's sticking foot under closing garage door to open it was unreasonable entry into home

Officer following a DUI suspect home watched defendant pull into his garage. As the garage door was closing, she stuck her foot in to stop the door from closing. This was an unreasonable entry of the home without a warrant or exigent circumstances. The police had probable cause, but all the state's claimed exigent circumstances were considered and rejected. State v. Dugan, 47 Kan. App. 2d 582, 276 P.3d 819 (2012):

The United States Constitution draws a line at the threshold of a person's home over which law enforcement officers may not step without a warrant from a judge or exigent circumstances so compelling as to override that fundamental right. The Fourth Amendment's prohibition against unreasonable searches of dwellings or seizures of their occupants reflects a tenet the founders considered essential to the ordered liberty they fought a war to achieve and then cherished as this nation matured. That prohibition is no less significant nearly two and a half centuries into this country's maturation. The comparatively mundane facts of this case belie the magnitude of the constitutional right and the significance of the constitutional issue—when government agents may claim exigency to override Fourth Amendment protections of citizens in their own homes.

I. Factual and Procedural History

The Douglas County District Court denied a motion to suppress evidence a Lawrence police officer obtained after she stuck her foot in a garage door to keep it from closing and then entered a private home to search and seize Defendant Troy E. Dugan based on a reported misdemeanor traffic offense. The district court found the officer's actions did not offend the Fourth Amendment to the United States Constitution. Although the question might be closer than some, we do not share the district court's tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted.

. . .

The courts have generally recognized four types of exigent circumstances that may obviate the warrant requirement: (1) preventing harm to law enforcement officers or others by capturing a dangerous suspect, see Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); (2) securing evidence in the face of its imminent loss, see King, 131 S. Ct. at 1853-54; (3) hot pursuit of a fleeing suspect, see United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976) ; and (4) thwarting escape of a suspect, see Welsh, 466 U.S. at 754. Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (noting those exigent circumstances); United States v. Struckman, 603 F.3d 731, 743 (9th Cir. 2010) (cataloging exigent circumstances). Those categories of exigency are not exclusive, and the facts of a given case might support some different imperative rendering a search or seizure constitutionally reasonable under the Fourth Amendment without a warrant. Struckman, 603 F.3d 743 ("no immutable list of exigent circumstances"); United States v. Plavcak, 411 F.3d 655, 663 (6th Cir. 2005). Likewise, the factual scenario in a given case might implicate multiple exigencies, suggesting a greater likelihood of reasonableness. See Santana, 427 U.S. at 43 (While hot pursuit "was sufficient to justify the warrantless entry into Santana's house," the narcotics officers also had "a realistic expectation" that Santana would try to dispose of illegal drugs on the premises.).

The courts have recognized an allied exception when a warrantless entry reasonably appears necessary to assist persons who are seriously injured or face imminent injury. Brigham City, 547 U.S. at 403 (recognizing emergency assistance doctrine as warrant exception); State v. Geraghty, 38 Kan. App. 2d 114, 123-24, 163 P.3d 350 (2007). The emergency assistance exception to the warrant requirement stands on a somewhat different legal footing than the "exigent circumstances." The exigent circumstances all entail conventional law enforcement functions related to taking individuals into custody or securing evidence. As stated, they require the officers have probable cause. The emergency assistance exception neither implicates that kind of law enforcement action nor requires probable cause. Brigham City, 547 U.S. at 403; Geraghty, 38 Kan. App. 2d at 122. The emergency assistance exception applies when a government agent enters a dwelling or other private place for the purpose of rendering emergency aid to a person in serious peril. The agent must have a reasonable factual basis to believe an emergency threatening life or property is imminent or ongoing and to believe the place entered is associated with that threat. The agent may not use the emergency as a subterfuge to effect a search for evidence or a seizure of a criminal suspect. 38 Kan. App. 2d at 123-24. This case does not implicate the emergency assistance doctrine.

III. State's Claimed Exigencies Insufficient

In this case, the State argues hot pursuit and preservation of evidence justified entering Dugan's home without first getting a warrant. We consider each of those bases in turn and find insufficient grounds to support a constitutional entry, a seizure of Dugan, or a search of him or the premises without a warrant. The United States Supreme Court has noted "the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welch, 466 U.S. at 750.

Permalink 08:26:59 am, by fourth, 220 words, 434 views   English (US)
Categories: General

IN: When state relies on inventory, for all practical purposes, they have to put it into evidence

The state did not prove the standardized policy for an inventory, so it fails in this case. The state does not have to rely on a statute, and policy is good enough. Although case law has not indicated the policy needs to be admitted into evidence, others have said that it is relevant. Berry v. State, 967 N.E.2d 87 (Ind. App. 2012). The court almost, but doesn’t quite, hold that the policy must be admitted. Considering the outcome, that is a logical conclusion:

Despite characterizing Officer Sherrell's testimony as describing the "primary operating procedure prior to towing a vehicle," the record lacks any evidence of Indianapolis Metropolitan Police Department policy on impoundment. (Appellee's Br. p. 4). Thus, we cannot say whether Officer Sherrell's discretion to impound Berry's vehicle was in keeping with such policy. Furthermore, although the State argues that Berry has cited no case law for the proposition that a written law enforcement policy must be introduced into evidence to justify impoundment, we note that other cases have found formal policies relevant in justifying impoundment. See Peete v. State, 678 N.E.2d 415, 420 (Ind. Ct. App. 1997), trans. denied (Indianapolis Police Department policy on impoundment). Consequently, we conclude that the State failed to prove that an exception to the warrant requirement existed at the time of the inventory search of Berry's car.

Permalink 08:07:09 am, by fourth, 161 words, 496 views   English (US)
Categories: General

OH5: Smell of raw marijuana couldn't have come from the roach they found so search of trunk was justified

The smell of raw marijuana coming from defendant’s person, his admission that he smoked earlier, and the small amount in the car not accounting for the smell, a search of the passenger compartment and trunk was justified. State v. Fogel, 2012 Ohio 1960, 2012 Ohio App. LEXIS 1726 (5th Dist. April 19, 2012).*

Defendant was arrested walking out of a building where there was a marijuana grow on the second floor, for which the officers had a search warrant. He lived on the first floor. He said he signed a consent as acquiescence to the officer’s claim of authority. He is entitled to a hearing on the motion because the only document tendered was the criminal complaint generated post-arrest. United States v. Morillo, 2012 U.S. Dist. LEXIS 62590 (S.D. N.Y. May 2, 2012).*

There was probable cause to arrest the defendant for soliciting sex, so the search incident to arrest that produced a syringe was valid. State v. Cavalier, 2012 Ohio 1976, 2012 Ohio App. LEXIS 1738 (2d Dist. May 4, 2012).*

Permalink 12:01:19 am, by fourth, 296 words, 518 views   English (US)
Categories: General

OH6: In voyeurism consent search, cell phone was discovered to be instrumentality of crime, so it could be seized, too

Defendant consented to a search of his computer for evidence of voyeurism. His cell phone was discovered to be an instrumentality of the crime for some of the photographs, so it was properly seized. State v. Dennison, 2012 Ohio 1988, 2012 Ohio App. LEXIS 1744 (6th Dist. May 4, 2012).*

In a search warrant for drugs and “any and all other items related to the purchase, manufacture or sale of illegal drugs,” the police were permitted to seize, in addition to drugs: “(1) 2 flat screen TVs, (2) a camera, (3) a snow blower, (4) a stereo, (5) a dvd player, (6) a refrigerator, (7) an electric range, (8) a washer and dryer, (9) a receiver, (10) a stun gun, and (11) a bicycle.” Considering defendant’s comparatively lavish lifestyle while on unemployment and the seizure of $42,000 in cash from his house, there was justification for the seizure based on the officer’s reasonable belief it was all bought with drug proceeds. State v. Kreuz, 2012 Ohio 1990, 2012 Ohio App. LEXIS 1747 (6th Dist. May 4, 2012):

Detective Jones acknowledged that none of the above items were listed in the search warrant. He testified, however, that based on what he knew of appellant's financial situation, the above high end items could only have been purchased from proceeds appellant received through drug trafficking. Detective Jones cited appellant's properly subpoenaed bank and tax records which showed that appellant was unemployed and receiving weekly unemployment benefits in the approximate amount of $250 a week. This appeared to be appellant's only income. However, a large amount of cash, $42,799, was found in the home. Appellant was also making a mortgage payment of approximately $1,000 a month. Receipts found for some of the items listed above showed that appellant paid for those items with either cash or gift cards. After relaying his impressions to the Wood County prosecutor, he was advised to seize the above listed items.


Permalink 01:09:36 pm, by fourth, 115 words, 379 views   English (US)
Categories: General

N.D.Fla.: Post-conviction petition can't relitigate search without IAC claim

Defendant can’t relitigate his motion to suppress in a 2255 which was decided on the merits on appeal without an IAC claim. United States v. Reed, 2012 U.S. Dist. LEXIS 61806 (N.D. Fla. March 8, 2012).*

The intrusion by detention was minimal here and led to consent, and defense counsel was not ineffective for not pursuing that ground because it would lose on the merits. Woodson v. State, 966 N.E.2d 780 Ind. App. 2012).*

Officers who entered after no answer to knocking at a door of the location of a disturbance call were entitled to qualified immunity. This was a reasonable response to a perceived need. They were inside two minutes. Burke v. Sullivan, 677 F.3d 367 (8th Cir. 2012).*

Permalink 01:08:34 pm, by fourth, 365 words, 439 views   English (US)
Categories: General

CA6: Affiant need not personally see CP pictures

It isn’t required that the affiant actually viewed child pornography to get a search warrant, at least as long as somebody did and reported it to the affiant. It is not required to attach the photographs to the search warrant application. Even if some were computer generated images, there was still probable cause. United States v. Ranke, 480 Fed. Appx. 798, 2012 FED App. 0471N (6th Cir. 2012)*:

Next, Defendant argues that the affidavit was insufficiently detailed. He points out that the affidavit does not indicate how Detective Pitts determined that the images were of a minor and that Detective Pitts' description of a boy "apparently masturbating" suggests that he never actually viewed the images personally. Defendant claims these deficiencies were compounded when Detective Pitts failed to attach the images to the affidavit for the state court judge's independent review.

The implication, to the extent one exists, that Detective Pitts never viewed the images personally, as well as his failure to attach the photographs to the search warrant affidavit, are both factors that should have played into the state court judge's probable cause analysis. However, neither precluded the judge from issuing the search warrant. First, an officer is entitled to rely on information supplied by other officers or agencies for the purposes of a search warrant affidavit, provided that the information and its sources are accurately described for the reviewing judge's independent evaluation. See United States v. Yusuf, 461 F.3d 374, 385, 48 V.I. 980 (3d Cir. 2006); United States v. Jenkins, 525 F.2d 819, 823 (6th Cir. 1975) (per curiam). Detective Pitts fulfilled that requirement when he provided an accurate description of the circumstances under which he "received information from federal authorities" regarding the greeting card, the accompanying photographs, and the incriminating evidence discovered in Brown's cell. Likewise, Detective Pitts' failure to attach the photographs themselves did not prevent the search warrant from being issued. A magistrate judge need not view all the evidence personally to make its decision, and the probable cause stage only requires an affidavit to show the "'probability or substantial chance of' possession of images of actual children; 'an actual showing' that the images depicted real children" is not required. Lapsins, 570 F.3d at 765 (citing Gates, 462 U.S. at 243 n.13).

Permalink 11:13:49 am, by fourth, 347 words, 381 views   English (US)
Categories: General

S.D.Fla.: Entry onto curtilage led to smell of grow operation and violated Fourth Amendment

Officers entered onto the curtilage of defendant’s property before they could smell a grow operation and hear the equipment. That was a Fourth Amendment violation, and it vitiated alleged consent and the good faith exception to a later warrant. United States v. Lopez, 2012 U.S. Dist. LEXIS 61707 (S.D. Fla. May 2, 2012):

Here the Court finds that the area within the Target Residence's metal fence and gates—and specifically the areas occupied by Officers Bartra, Rios, and Benavides at the time they smelled marijuana and heard the sounds of marijuana-grow-house equipment— constituted curtilage subject to fundamental Fourth Amendment protections. The area was close in proximity to the residence, was enclosed within the metal fence and contiguous gates, and was shielded by the fence's white paneling to block observation from outside. Although the driveway may have been used for ingress to and egress from the property, and although the driveway gate did not contain obstructive paneling, the closed, locked mechanical gate clearly delineated the driveway as a private area which visitors—and thus the investigating officers—were not expected to encroach. See, e.g., Edens v. Kennedy, 112 F. App'x 870, 875 (4th Cir. 2004); United States v. Hambelton, No. 1:08cr26-SPM, 2009 U.S. Dist. LEXIS 25139, 2009 WL 722284, at *4 (N.D. Fla. 2009). Moreover, although at one point Perez opened the gate so that he and Ricano could exit, one cannot say that this brief opening of the gate converted the driveway into only a semi-private area through which visitors were free to travel. See Fernandez v. State, 63 So. 3d 881, 884 (Fla. Dist. Ct. App. 2011) ("[T]he momentary opening of the gate for the defendant to leave was not an open invitation to the public, or by extension to the police, to enter. ... No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors.") The Court thus finds that the area from which officers first smelled marijuana constituted "curtilage" and that the officers' physical entry into that area implicated Defendants' Fourth Amendment protections.

Permalink 10:48:13 am, by fourth, 48 words, 292 views   English (US)
Categories: General "Wireless Carriers Who Aid Police Are Asked for Data" Wireless Carriers Who Aid Police Are Asked for Data by Eric Lichtblau:

WASHINGTON — A leading House Democrat is demanding information from the country’s biggest cellphone companies about their role in helping local police departments conduct surveillance and tracking of suspects and others in criminal investigations.

Permalink 10:17:55 am, by fourth, 238 words, 331 views   English (US)
Categories: General

CA4: Unaccounted for gun at a disturbance call justified protective sweep

The district court erred in granting the motion to suppress a protective sweep. When officers arrived at a disturbance call, they heard defendant threaten a woman, and the gun he allegedly had was unaccounted for with another person inside. United States v. Laudermilt, 677 F.3d 605 (4th Cir. 2012)*:

Applying this framework, we believe the district court erred in granting the suppression motion. We begin by noting our agreement with the district court that the protective sweep was justified by Buie. The officers were responding to a potentially volatile situation involving a firearm and a domestic dispute, and they personally witnessed Laudermilt threatening Kuri and her family. When the officers arrested Laudermilt, the firearm was unaccounted for and—even by Laudermilt's own admission—at least one other person was in the home. In addition, as the officers were arriving on the scene, two individuals were leaving in a vehicle, one of whom was "slouched" over in his seat. Clearly, these articulable facts would have led a reasonably prudent officer to believe a protective sweep was warranted.

Nexus to this apartment was shown by defendant’s mail being received there and his admitting that his immigration documents were there. When defendant was confronted with a piece of mail, his demeanor changed and he refused to cooperate about going to apartment to get his immigration documents. A search warrant was obtained for the apartment. United States v. Abdul-Ganiu, 480 Fed. Appx. 128 (3d Cir. 2012).*

Permalink 08:27:16 am, by fourth, 123 words, 342 views   English (US)
Categories: General "The Justices tend to find a violation if they can imagine the search applying to them personally" The Court and the Fourth Amendment; The Justices tend to find a violation if they can imagine the search applying to them personally by Erwin Chemerinsky:

I long have believed that the best predictor of whether the U.S. Supreme Court finds a violation of the Fourth Amendment is whether the justices could imagine it happening to them. For example, the Supreme Court upheld drug-testing requirements in every case until it considered a Georgia law that required that high-level government officials be subjected to it. The two Fourth Amendment decisions this term, U.S. v. Jones and Florence v. Board of Chosen Freeholders of Burlington County, powerfully illustrate that the justices only seem to care if it could happen to them.


Permalink 06:07:58 am, by fourth, 233 words, 295 views   English (US)
Categories: General

S.D.N.Y.: First SW wasn't executed and second was obtained; first was valid and obviated any claim from the second

The government got a search warrant with information from a CI in a white collar case. Instead of executing the warrant, the government gathered some more information, resubmitted the information and obtained a second search warrant which was executed. The alleged Franks violation was not material to the second search warrant’s issuance, and there was plenty of probable cause in the first application. United States v. Mandell, 2012 U.S. Dist. LEXIS 60925 (S.D. N.Y. May 1, 2012)* [Note: Any problems with the second warrant likely weren't sufficient to suppress, but this was an easier resolution of the case.]

Defendant was suspected of possession of drugs, but his driving justified a reasonable suspicion stop for likely possession of drugs. The stop was valid, and there was actually probable cause for the search of the car and search incident for drugs. State v. Watkins, 2012 N.C. App. LEXIS 588 (May 1, 2012).*

The defendants were suspected of possession of stolen property moving in interstate commerce. The government did a fly over and spotted a mini excavator nearby which was never established to be on their property. Officers driving by noticed four trailers and they were suspected of having stolen trailers. Officers got a search warrant to enter the property, and it was valid and with probable cause. In any event, the excavator was on open fields 500' from their house. United States v. Young, 477 Fed. Appx. 976 (4th Cir. 2012).*

Permalink 05:53:50 am, by fourth, 332 words, 648 views   English (US)
Categories: General

NJ: Community caretaking function did not permit officers responding to noise complaint to enter bedrooms of house

Officers responding to a noise complaint at a loud party and seemingly invited in to the living room by an unknown guest were not entitled to go to the bedrooms and open doors under the community caretaking function. State v. Kaltner, 210 N.J. 114, 41 A.3d 736 (2012), aff’g per curiam 420 N.J. Super. 524, 22 A.3d 77 (2011):

The panel explained that the community caretaking exception to the warrant requirement requires a case-by-case, fact-sensitive analysis. The relevant question focuses on the objective reasonableness of the police action under the circumstances, and requires that the court balance the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern. The panel concluded that the police action in this case was not constitutionally permitted. Although the officers' entry into the dwelling was initially justified, their subsequent action in fanning out and conducting, in essence, a full-blown search of the home was not reasonably related in scope to the circumstances that justified the entry in the first place, nor was it carried out in a manner consistent with the factors supporting the entry's initial legitimacy. As explained by the motion judge, the objective of noise abatement could have been achieved well short of the officers' full-scale search. For example, given the number of officers present and the fact that the offending noise emanated from the crowd itself, the officers could easily have dispersed the partiers.

After balancing the competing interests, including the important privacy interest in one's home, the breadth and extent of the invasion of the entire premises, the limited nature of the community caretaking concern, and the relatively low threat posed in light of the available less-drastic options, the panel concluded that Officer Camacho was not lawfully in the hallway outside Kaltner's bedroom when he viewed the evidence, and the plain-view doctrine did not excuse his entry into the bedroom and seizure of the drugs.

Permalink 05:42:42 am, by fourth, 152 words, 338 views   English (US)
Categories: General "Taking Liberties: Cab driver isn't paranoid, the government IS watching him" Taking Liberties: Cab driver isn't paranoid, the government IS watching him by Douglas Kennedy:

Just because taxi driver Andre Olczak believes he’s being watched, doesn’t mean he’s paranoid

In fact, he’s not only being watched, he’s being monitored every second while he’s at work.

“It’s terrible,” he says as he drives his yellow cab on W. 48th St. in midtown Manhattan.

“They are constantly watching me.”

“They” are the TLC, or Taxi and Limousine Commission, the government body that licenses taxi drivers in New York City. In 2007, the TLC required all cabbies to install GPS or Global Positioning System devices to monitor their locations, speed and meters while they’re driving.

My last post about TLC's GPS monitoring was back in September 2010. Are taxicabs “highly regulated” for fare ripoffs? FoxNews being FoxNews, it probably does not have a sense of history on this.

Permalink 05:37:09 am, by fourth, 269 words, 360 views   English (US)
Categories: General

E.D.N.Y.: Defendant easily consented to computer search for CP

Defendant’s consent to a computer search for child pornography was voluntary. He was seemingly gregarious when talking with the officers explaining his obtaining child pornography. [For staleness cases, note that defendant admitted eight years worth of stuff.] United States v. Schaefer, 859 F. Supp. 2d 397 (E.D. N.Y. 2012):

First, the circumstances surrounding the consent to search were non-coercive. In particular, the Court finds that (1) the defendant was approached at his own residence during the early evening; (2) the two agents and detective who came to his home to speak with him were in plain clothes, and their weapons were not drawn; (3) the agents asked the defendant for permission to enter his home, which he granted; (4) the agents introduced themselves and stated that the reason for the visit related to child pornography; (5) the defendant was never handcuffed or placed in custody by the agents; (6) the entire interview and search took one-half hour; and (7) no threats or promises were made to the defendant during the interview or search.

Second, the defendant orally consented to the search and also signed a written consent form which (1) specifically advised him of his right to refuse consent, (2) stated that he understood that information obtained by the search could be used against him, and (3) stated that no threats or promises had been made in exchange for consent.

Third, with respect to the characteristics of the defendant, the Court notes that the defendant is a 53-year old who graduated high school, reads English, manages a deli department, and is familiar with computers. Thus, his personal characteristics also favor a finding that he voluntarily consented to the search.


Permalink 07:14:06 am, by fourth, 567 words, 618 views   English (US)
Categories: General

MA: Stashing a backpack under neighbor's bush during flight was abandonment

Massachusetts engages in a sensitive analysis of abandonment and subjective reasonable expectation of privacy and concludes that a fleeing suspect who stashes a backpack under a bush in a neighbor’s yard really didn’t have one. (Alternatively, there were exigent circumstances.) Commonwealth v. Carnes, 81 Mass. App. Ct. 713, 967 N.E.2d 148 (2012):

A search in the constitutional sense requires that the defendant must have had a subjective expectation of privacy in the item or place searched, and that such expectation must have been one that society recognizes as reasonable. See, e.g., Commonwealth v. Pina, 406 Mass. 540, 544, cert. denied, 498 U.S. 832 (1990); Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). "The defendant bears the burden of establishing both elements." Commonwealth v. Montanez, 410 Mass. at 301. Here, the judge's conclusion of abandonment requires us to consider whether the defendant manifested a subjective expectation of privacy in the place searched, and in the contents of his backpack, which "could be considered objectively reasonable or legitimate." Commonwealth v. Straw, 422 Mass. 756, 759 (1996). More particularly, abandonment is a question of intent, which may be inferred from words, behavior, and other objective facts. See generally Commonwealth v. Paszko, 391 Mass. 164, 184 (1984).

Because we conclude that the defendant's actions in discarding the backpack in the back yard of his best friend suggest a subjective expectation of privacy, we focus on whether the defendant's subjective expectation of privacy "could be considered objectively reasonable or legitimate." Commonwealth v. Straw, 422 Mass. at 759. First, we consider that the defendant concealed his backpack outside, in a back yard in which "by law, he ... had no reasonable expectation of privacy." Id. at 761. He was neither the owner nor did he establish any right of control over the property. See Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (defendant put drugs in friend's purse over which he had no control or right to exclude others); United States v. Hershenow, 680 F.2d 847, 855-856 (lst Cir. 1982) (defendant had "no legal interest or even access rights" to the storage barn where he directed another to hide a box of incriminating evidence). See also Commonwealth v. Williams, 453 Mass. at 207-209 ("defendant lacked a reasonable expectation of privacy in the basement area [of her mother's apartment building] in which she had deposited some possessions"); United States v. Soto, 779 F. Supp. 2d 208, 219 (D. Mass. 2011) (defendant had no legitimate expectation of privacy in computer's hard drive left in vehicle defendant obtained by fraud and turned over to third party; hard drive deemed abandoned). Contrast Commonwealth v. Mubdi, 456 Mass. 385, 391-394 (2010), citing with approval Commonwealth v. Williams, supra.

. . .

In sum, the defendant's act of hiding his backpack in the bushes in his best friend's yard without establishing that he placed the backpack in someone else's control, while he was trying to avoid apprehension, and in particular, while he was in possession of a handgun, fails to evoke an expectation of privacy that society is willing to recognize as reasonable. See Commonwealth v. Carter, 424 Mass. 409, 412 (1997) (art. 14 "does not relieve a defendant who unlawfully intruded on someone else's reasonable expectation of privacy from establishing that he had a reasonable expectation of privacy himself"). The motion judge properly concluded that the backpack had been abandoned. See generally United States v. Morgan, 936 F.2d at 1570-1571, cited with approval in Commonwealth v. Straw, 422 Mass. at 760-761; United States v. Soto, 779 F. Supp. 2d at 219.

One could wish that all courts would do this analysis. Few would. Still, the defendant loses, but he can't complain he wasn't adequately heard.

Permalink 07:03:30 am, by fourth, 334 words, 448 views   English (US)
Categories: General

CA9: Ashcroft v. al-Kidd gives immunity for "Torture Memo"

John Yoo gets immunity under Ashcroft v. al-Kidd for the “Torture Memo.” Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012):

After the September 11, 2001 attacks on the United States, the government detained Jose Padilla, an American citizen, as an enemy combatant. Padilla alleges that he was held incommunicado in military detention, subjected to coercive interrogation techniques and detained under harsh conditions of confinement, all in violation of his constitutional and statutory rights. In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice's Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was not "sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]" the plaintiffs' rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo's tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not "beyond debate" at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla's alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.


Permalink 07:19:34 am, by fourth, 209 words, 523 views   English (US)
Categories: General

E.D.Mo.: Defendant was told he could refuse consent, and his claim he attempted to refuse to consent and his failure to talk to Pretrial Services suggests intelligence

Defendant was found to have consented to a search of his car after the stop was based on knowledge of a warrant. He was at least twice told he could refuse consent. And “[h]e did not interview with the Pretrial Services Officer so the amount of his education is not available; he appears intelligent enough making a practice of not consenting to a search or refusing to speak to the Pretrial Services Officer; there was no problem with his language ability.” United States v. Capps, 2012 U.S. Dist. LEXIS 60054 (E.D. Mo. February 24, 2012).*

Defendant was found to have consented. Even if he hadn’t, the drugs would inevitably have been found by an inventory search on impoundment because the officers already knew that the LPN didn’t belong with the car. United States v. Capps, 2012 U.S. Dist. LEXIS 60055 (E.D. Mo. April 30, 2012).*

Defendant’s statutory argument that a city could not impose its city speed limit on unimproved land near the border is rejected. Peck v. State, 153 Idaho 37, 278 P.3d 439 (App. 2012).*

Defendant was detained for Miranda and Fourth Amendment purposes when he was found nearly dying in the desert and Border Patrol EMT’s questioned him. United States v. Vasquez-Corrales, 2012 U.S. Dist. LEXIS 59818 (D. Ariz. April 5, 2012).*

Permalink 07:04:01 am, by fourth, 375 words, 405 views   English (US)
Categories: General

CA4: Second frisk was factually justified by first being cursory

Second frisk by another officer was still reasonable because the first was “was hardly comprehensive,” and defendant’s actions strongly indicated he was hiding something. United States v. Roach, 477 Fed. Appx. 993 (4th Cir. 2012):

Roach's conduct during the stop only heightened the officers' suspicion that he possessed a weapon. Roach was seen contorting his body, sitting "upright" and "half off the [front passenger's] seat." J.A. 74-75. While in that strange posture, he repeatedly thrust both hands behind him toward his pants and waistband area, all the while watching Officer Burnem, who was at the time preoccupied with the driver. Roach persisted in these movements, moreover, even after Officer Kruger opened the back door of the car and ordered Roach to put his hands up. Those movements, consistent with concealing or retrieving a weapon, would have led a reasonably prudent officer to fear for his or her safety. See United States v. Hamlin, 319 F.3d 666, 671-672 (4th Cir. 2003) (defendant's "repeated attempts to reach toward his groin area gave [the officer] reason to believe that [the defendant] was armed and dangerous"). Meanwhile, the driver's odd behavior upon being stopped — namely, exiting the vehicle rapidly while leaving the car door ajar — reinforced the officers' apprehension.

Given these circumstances, Roach appears to concede that Officer Kruger had sufficient justification to perform an initial Terry frisk for the presence of weapons. See Brief of Appellant at 13 ("Officer Kruger may have developed a reasonable suspicion to search Roach"). Roach argues, however, that any authority to frisk him under Terry vanished as soon as Officer Kruger's patdown uncovered no weapon. In Roach's view, any subsequent patdown was unlawful because Officer Kruger's failure to detect a weapon on him allayed any reasonable suspicion.

The perception of danger, however, did not dissipate with Officer Kruger's frisk. As an initial matter, Roach impeded Officer Kruger's patdown by defying his instructions. He repeatedly brought his hands and elbows down to his waistband area, sought to remain close to the car, and resisted spreading his feet apart. Those movements indicated that Roach was concerned about something Officer Kruger might find. Indeed, Officer Kruger testified that he was compelled to handcuff Roach during the frisk because Roach's movements caused him to be concerned "for officer safety." J.A. 82.

Permalink 06:19:26 am, by fourth, 186 words, 554 views   English (US)
Categories: General

WA: State search warrant on fee land on Indian reservation valid

The state had jurisdiction to try an offense against state law that occurred on fee land located on an Indian reservation, and state officers could execute a search warrant there. Nevada v. Hicks recognizes that states can prosecute state crimes on fee land. State v. Clark, 167 Wn. App. 667, 274 P.3d 1058 (2012)*:

¶14 This case is neither Baker nor Mathews. Unlike Colorado in the Baker case, Washington had jurisdiction over the crime it was prosecuting. Mathews is a little closer factually, but even if the quoted observation is treated as a rule of law, it has been superseded by Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001).

¶15 In Hicks, the court faced the question of whether a tribe could assert jurisdiction over state officers serving a state warrant on reservation trust land. The court answered the question in the negative, noting that states typically have jurisdiction over reservation lands unless a competing policy interest prohibited it. 533 U.S. at 361-65. The court specifically ruled that state officers could enter the reservation and serve a search warrant for a crime committed within the state's jurisdiction. Id. at 363-64.

Permalink 05:49:15 am, by fourth, 502 words, 708 views   English (US)
Categories: General

New Law Review article: Police Efficiency and the Fourth Amendment

L. Song Richardson, Police Efficiency and the Fourth Amendment, 87 Indiana Law Journal 1143 (Summer, 2012):

This Article argues that provocative new research in the mind and behavioral sciences can transform our understanding of core Fourth Amendment principles. Recent research in the field of implicit social cognition-a combination of social psychology, cognitive psychology, and cognitive neuroscience -demonstrates that individuals have implicit (nonconscious) biases that can perniciously affect the perceptions, judgments, and behaviors that are integral to core Fourth Amendment principles. Drawing from recent implicit social cognition research and prior work, this Article attempts to solve a conceptual puzzle that continues to stymie courts and Fourth Amendment scholars. How can the reasonable suspicion standard promote efficient policing-policing that protects liberty against arbitrary intrusion while simultaneously promoting effective law enforcement?

The reasonable suspicion standard attempts to strike a delicate balance between individual privacy rights and law enforcement needs. This standard serves law enforcement interests by permitting officers to act on their suspicions of criminal activity even in the absence of probable cause. However, in order to prevent arbitrary police actions, courts impose an articulation requirement that obliges officers to justify the intrusion by stating the facts-not mere hunches-that led them to feel suspicious of the individual's ambiguous behaviors. Courts then review these facts to determine whether they give rise to a reasonable inference of criminality.

Ultimately, the standard fails to protect against unjustified encroachments upon individual liberty because it treats suspicion as an objective concept. Courts assume that it is possible to objectively determine whether people are acting suspiciously. They also assume that only people who are behaving suspiciously will be accosted by the police and restrained in their freedom to walk away. This assumption is crucial to the efficacy of the safeguards against arbitrary policing offered by the reasonable suspicion standard.

This Article makes the case, however, that the assumptions driving Fourth Amendment stop-and-frisk jurisprudence are flawed; they are based upon a critical misunderstanding of the nature of suspicion. Implicit social cognition research demonstrates that implicit biases can affect whether police interpret an individual's ambiguous behaviors as suspicious. For instance, studies repeatedly reveal that people evaluate ambiguous actions performed by non-Whites as suspicious and criminal while identical actions performed by Whites go unnoticed. The current operation of the articulation requirement does not ameliorate the problem because an officer will likely be unaware that nonconscious biases affected his or her interpretation of ambiguous behavior. Thus, an officer who acts on his suspicions can easily point to the specific facts that he believes made him feel suspicious without even realizing that implicit biases affected how he interpreted the behavior.

. . .

My argument unfolds in three parts. Part I introduces the science of implicit social cognition and examines its relevance to core Fourth Amendment principles. Part II scrutinizes the reasonable suspicion standard and exposes its weaknesses. Part III draws from implicit social cognition research to reconceptualize the reasonable suspicion standard. It ends by considering some of the benefits and shortcomings of this new approach.

Via Race, Racism, and the Law.


Permalink 01:21:17 pm, by fourth, 57 words, 337 views   English (US)
Categories: General

WaPo: "Profiled at airport? There's an app for that"

WaPo: Profiled at airport? There's an app for that:

A Sikh advocacy group launched a free mobile application Monday that allows travelers to complain immediately to the government if they feel they’ve been treated unfairly by airport screeners. Launched at midnight Monday by the Sikh Coalition, the FlyRights app had fielded two complaints by 10 a.m.

Permalink 01:11:41 pm, by fourth, 132 words, 626 views   English (US)
Categories: General

ACLU: Government Settles Charity’s Lawsuit Over Unconstitutional Terrorism Probe

ACLU news release: Government Settles Charity’s Lawsuit Over Unconstitutional Terrorism Probe:

The U.S. Treasury Department has settled a lawsuit brought by KindHearts for Charitable Humanitarian Development, an Ohio-based charity that was under investigation for alleged ties to terrorism.

After a string of legal victories for the group, including court findings that the government’s actions violated its due process and Fourth Amendment rights, the government has agreed to remove it from a blacklist and let it distribute funds raised for humanitarian causes consistent with the intent of donors. Details of the agreement were announced today.

This is the first time the government has agreed to de-list a frozen organization as a result of a lawsuit, and to then allow it to distribute its assets.

The last Kindhearts case is here.

Permalink 08:12:47 am, by fourth, 308 words, 487 views   English (US)
Categories: General

CA8 rejects de facto co-conspirator standing in a vehicle

Defendant lacked standing to challenge the stop of a vehicle that he was two blocks away from at the time of the stop and did not argue that he had an expectation of privacy. Art. III standing does not apply. [Like this court had any choice?] United States v. Ruiz-Zarate, 678 F.3d 683 (8th Cir. 2012):

Ruiz does not argue that he had a reasonable expectation of privacy in Morales's truck at the time of the stop. Rather, he contends that he has "standing" to raise a Fourth Amendment challenge because he suffered an injury-in-fact "that is fairly traceable to the challenged action of the defendant, and likely to be redressed by a favorable decision." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009) (quotation, citation, and alteration omitted). Our court has previously rejected Ruiz's argument, concluding that this "concept of 'standing' has not had any place in Fourth Amendment jurisprudence ... since the Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), indicated that matters of standing in the context of searches and seizures actually involved substantive Fourth Amendment law." United States v. Green, 275 F.3d 694, 698 n.3 (8th Cir. 2001) (quotation, alteration, and citation omitted). "Fourth Amendment rights are personal and may not be vicariously asserted." United States v. Randolph, 628 F.3d 1022, 1026 (8th Cir. 2011) (quotation and citation omitted). Thus, to challenge a search or seizure under the Fourth Amendment, "the defendant must show that (1) he has a reasonable expectation of privacy in the areas searched or the items seized, and (2) society is prepared to accept the expectation of privacy as objectively reasonable." United States v. Stults, 575 F.3d 834, 842 (8th Cir. 2009) (quotation and citation omitted). Here, Ruiz-Zarate had no reasonable expectation of privacy in Morales's vehicle, which he neither owned nor was near at the time of the traffic stop. Consequently, Ruiz-Zarate cannot raise a Fourth Amendment claim.

Permalink 07:51:51 am, by fourth, 442 words, 599 views   English (US)
Categories: General

CA4: Bailbondsmen have no qualified immunity for trespass and assault

A bailbondsman sued for assault and trespass was not entitled to a qualified immunity defense when he came into plaintiff’s home. He was sued under § 1983 because he had police officers with him. Gregg v. Ham, 678 F.3d 333 (4th Cir. April 30, 2012)*:

Applying the test articulated in Richardson [Richardson v. McKnight, 521 U.S. 399, 404 (1997)], we conclude that the history and policy behind the qualified immunity defense do not support extending it to bail bondsmen. First, there is no evidence that bail bondsmen have historically been afforded immunity for their actions. In fact, courts have rejected the notion that bail bondsmen act as an arm of the court or perform a public function. See, e.g., Ouzts v. Md. Nat'l Ins. Co., 505 F.2d 547, 554-55 (9th Cir. 1974) (rejecting the "strange thesis" that a bail bondsman is "an arm of the court"); Fitzpatrick v. Williams, 46 F.2d 40, 40 (5th Cir. 1931) ("The right of the surety to recapture his principal is not a matter of criminal procedure, but arises from the private undertaking implied in the furnishing of the bond.").

Second, the policy justifications underlying qualified immunity do not apply to bail bondsmen. See generally Bailey v. Kenney, 791 F. Supp. 1511, 1523-25 (D. Kan. 1992) (concluding that "[w]ith respect to bail bondsmen, the court finds none of the compelling policy reasons that traditionally justify the availability of qualified immunity to state actors performing discretionary functions"). Courts have traditionally afforded qualified immunity to public officials because susceptibility to suit would distract them from performing their public functions, inhibit discretionary action, and deter desirable candidates from performing public service. See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). There is no need, however, for qualified immunity to shield bondsmen from suit, as they are not entrusted with a public function. To the contrary, while the law certainly allows a bail bondsman to apprehend a fugitive, that right is exercised in tandem with the obligation of law enforcement to accomplish the same objective. See Bailey, 791 F. Supp. at 1524.

Moreover, rather than operating in the interest of public service, the work of a bail bondsman is fueled primarily by a strong profit motive. See Richardson, 521 U.S. at 409-10 (highlighting the importance of "ordinary marketplace pressures"). Accordingly, even if bail bondsmen are entrusted with a public function, the economic incentives inherent in the system would "ensure an ample number of qualified persons willing to assume the occupational risks of apprehending fugitives." Bailey, 791 F. Supp. at 1524.

In sum, neither history nor policy support extending the qualified immunity defense to bail bondsmen. Ham is therefore unable to show error, plain or otherwise, based on the district court's jury instruction on a defense to which he was not entitled.

Permalink 07:32:40 am, by fourth, 250 words, 406 views   English (US)
Categories: General

N.D.Ga.: In shooting call, protective sweep can go into attic

Officers responding to a shooting call were validly in the defendant’s residence. They did a protective sweep that extended into the attic, and it was valid. Guns and drugs were in plain view in the attic and seized. United States v. Cruz, 2012 U.S. Dist. LEXIS 59708 (N.D. Ga. March 19, 2012).

The inventory of defendant’s car was proper because it was being towed because it would have been left blocking traffic. Defendant’s mother arrived after the inventory started, and the officer was not obliged to let her have it. [Although, I’m sure he could have, but the inventory would still have been valid up until then, like the withdrawn consent after something found.] State v. Pullen, 2012 Ohio 1858, 2012 Ohio App. LEXIS 1631 (2d Dist. April 27, 2012).*

In a search warrant for child sexual exploitation with photographs on a camera, cell phone, or computer, the fact that the victim was referred to as a “juvenile” was enough for probable cause. It would have been better to have listed the DOB of the juvenile, but close enough for government work. The court also chides defense counsel for the lateness of the motion to suppress, but doesn’t rely on that because it invites an IAC claim. [Not to mention the government may not have quickly provided the search warrant materials; try getting them around here sometimes, especially if a state court issued the warrant and the feds are using it.] United States v. Gleaves, 2012 U.S. Dist. LEXIS 59508 (N.D. Iowa April 27, 2012).*

Permalink 07:08:11 am, by fourth, 254 words, 374 views   English (US)
Categories: General

OH4: Consent not involuntary just because officer yelled at motorist to stay with car for safety reasons

The trial court found a lack of consent in part because the officer yelled at the motorist to stay with the car, but the appellate court was not persuaded. Safety reasons need to be considered. State v. Miller, 2012 Ohio 1901, 2012 Ohio App. LEXIS 1659 (4th Dist. April 17, 2012)*:

[*P28] After our review of the stipulated evidence submitted in the case sub juice, we disagree with the trial court's conclusion that the appellee did not voluntarily consent to the search. The trial court relied upon the following factors to determine that appellee did not consent: (1) the trooper ordered appellee to remain in the vehicle; (2) the trooper removed appellee from the vehicle; and (3) the trooper did not advise appellee of his right to refuse. With respect to the first of these factors, the trooper was entirely justified to order appellee to remain in the vehicle. As the United States Supreme Court has recognized, traffic stops carry inherent dangers and law enforcement officers are entitled to exercise authority over the driver and any passengers in order to maintain a sense of safety. See Arizona v. Johnson (2009), 555 U.S. 323, 330, 129 S.Ct. 781, 172 L.Ed.2d 694 (recognizing that "traffic stops are 'especially fraught with danger to police officers" and that "'"[t]he risk of harm to both the police and the occupants [of a stopped vehicle] is minimized *** if the officers routinely exercise unquestioned command of the situation."'") (internal quotations and citations omitted). Thus, the trooper's command that appellee remain in the vehicle does not constitute a coercive or threatening act.

Permalink 05:51:16 am, by fourth, 238 words, 1206 views   English (US)
Categories: General

AALS call for papers on Technology and Crime: The Future of the Fourth Amendment in Public

If you're a law professor, you probably already have seen this call for papers for a symposium: CrimProfBlog: AALS call for papers on Technology and Crime: The Future of the Fourth Amendment in Public:

The AALS Section on Criminal Justice will hold a panel during the AALS 2013 Annual Meeting in New Orleans entitled: Technology and Crime: The Future of the Fourth Amendment in Public.

We are soliciting papers to consider for presentation in conjunction with this panel. Current confirmed speakers on this distinguished panel include Christopher Slobogin, Vanderbilt University Law School, Tracy Meares, Yale Law School, and Orin Kerr, George Washington University School of Law. The panel will be moderated by Andrew G. Ferguson, UDC David A. Clarke School of Law.

Panel: Technology and Crime: The Future of the Fourth Amendment in Public

New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.

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by John Wesley Hall
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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)

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  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:
  S. Ct. Docket
  Solicitor General's site
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor:
  S.Ct. Com't'ry:

  General (many free):
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx $ (criminal law/ 4th Amd) $ (4th Amd) $
  F.R.Crim.P. 41

  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."

"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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