Archives for: June 2012


Permalink 09:59:10 am, by fourth, 158 words, 538 views   English (US)
Categories: General

CA8: 911 hangup call justified police going to front door and then around house

Officers responding to a 911 hang up call could approach the front door of the house from where the call came and knock. Getting no answer, they could survey the perimeter to see what was going on. They came back to the front door and then smelled marijuana, for which they got a search warrant. United States v. Robbins, 682 F.3d 1111 (8th Cir. 2012).*

Defendant’s specific argument that his stop for driving too long in the left lane could not be the basis for his stop 20+ miles after the sign was not made below, and it did not show plain error. United States v. Castro, 480 Fed. Appx. 782 (5th Cir. 2012).*

An officer merely walking up to a stopped car is not a seizure. Here, two cars were stopped, and the officer stopped between them. He walked back to the second car to tell them they were not being stopped, and they were not seized. State v. Ray, 153 Idaho 564, 286 P.3d 1114 (2012).*

Permalink 09:05:41 am, by fourth, 211 words, 439 views   English (US)
Categories: General

CA10: Looking into a parked car and walking away not reasonable suspicion

Defendant and a companion were seen by police peering into a car in a purported high crime area. When they saw the officer, they walked away. That was not flight, and it did not add up to reasonable suspicion. The "high crime area" claim was discounted, too, as ambiguous on this record. United States v. Dell, 487 Fed. Appx. 440 (10th Cir. 2012) (2-1).

State probation and parole in Las Vegas has its office in a police complex, and police decided to run the license numbers of all cars in the parking garage and search those that had a probation or parole condition. Defendant’s car was searched without knowledge of his search condition, and a gun was found, and defendant was charged with FIPF. “The Government failed to prove by a preponderance of the evidence that the search of the car, conducted after the stop, was (1) based on a reasonable, particularized and objective basis for suspecting defendant of criminal activity, (2) based on the searching officer's actual prior knowledge of defendant's status as a supervisee, (3) properly narrowed in scope to fit the purpose of the investigatory stop, (4) consensual, or (5) justified for any other reason.” United States v. Gray, 2012 U.S. Dist. LEXIS 88744 (D. Nev. March 27, 2012), reconsideration denied 2012 U.S. Dist. LEXIS 88750 (D. Nev. May 23, 2012).*

Permalink 08:53:38 am, by fourth, 174 words, 367 views   English (US)
Categories: General

OR: Violation of civil execution law made search violate state constitution

Officers came to defendant’s business with a writ of execution because he was a judgment debtor. While picking up property, they saw a key marked “Sentry” and saw a small Sentry safe. They opened the safe looking for cash and found, among other things, hallucinogenic mushrooms, which got him charged. The search was for civil purposes and was governed by the administrative search law, and this search exceeded the terms of the state statute on writs of execution. That made it violate the state constitution. State v. Mast, 250 Ore. App. 605, 282 P.3d 916 (2012).

Defendant was a suspect in using a facility of interstate commerce to entice a minor to engage in illicit sexual activity, and there was probable cause to make his arrest. The search of his car producing condoms and a cell phone was justified by search incident under Gant. The car was also being towed, and it would inevitably be inventoried. United States v. Hobbs, 2012 U.S. Dist. LEXIS 88925 (E.D. Mo. May 15, 2012), adopted 2012 U.S. Dist. LEXIS 88946 (E.D. Mo. June 27, 2012).*

Permalink 08:40:59 am, by fourth, 418 words, 481 views   English (US)
Categories: General

MD: School teacher had no REP in his desk at work; it was: never locked, in a common area, used some by others

A school teacher had no reasonable expectation of privacy in his desk at work because it was never locked, it was in a common area, and others had access. Walker v. State, 206 Md. App. 13, 47 A.3d 590 (2012):

Applying precedent [Macusi and O’Connor et al.] to the case at bar yields the conclusion that appellant did not have a reasonable expectation of privacy in the desk. We recognize that appellant was assigned the desk and that he had used the same desk in prior school years. Yet, the desk was owned by the school system and was located in a large, open, well-traversed room. This room was referred to as the "first grade pod," connecting several classrooms, and contained desks for two other paraeducators. Because it was so centrally located, students and faculty routinely passed the desk. Small instructional groups and after-school programs also held meetings and conducted other activities in the large room, which was only secured at night when the custodians locked the doors leading to the outer hallways. Appellant could have taken steps to safeguard what he kept in the desk, but did not. The principal of appellant's school indicated that although other people at the school likely would not have reason to open the drawers of the desk, he stated that someone might look in the desk "to borrow a pencil or something like that." Furthermore, at the time of the search, the drawers read "seminars, research data," "student data," and "learning."

Regardless of who originally placed them on the drawers, the labels suggested that the drawers contained school-related materials accessible to a wide range of persons, rather than appellant's personal, private items. Cf. O'Connor, 480 U.S. at 718 (employee had a reasonable expectation of privacy in desk and file cabinet in own office not shared with anyone else in which he stored personal documents); Gillard v. Schmidt, 579 F.2d 825, 828 (1978) (guidance counselor who was responsible for maintaining confidential student records and whose desk was in an office secured by a locked door had a reasonable expectation of privacy in his desk). Appellant could have used a private locker provided to him by the school, but he did not. Appellant had the option of locking the desk, but he did not. The aforementioned facts, taken together, indicate that appellant did not have a subjective expectation of privacy, and even if he did, such an expectation was objectively unreasonable under the circumstances presented. Accordingly, we discern no error in the circuit court's denial of appellant's motion to suppress.

Permalink 08:19:53 am, by fourth, 233 words, 368 views   English (US)
Categories: General

MD adopts motel manager terminating REP in motel room

Maryland adopts the Sixth Circuit rule of United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997), on a motel manager terminating motel residency as also terminating a reasonable expectation in the motel room. Bordley v. State, 205 Md. App. 692, 46 A.3d 1204 (2012):

The Sixth Circuit rejected the defense contention that this warrantless entry violated the Fourth Amendment, reasoning that "a hotel guest's use of a room for illegal purposes, and beyond the pre-paid rental period vitiates the guest's reasonable expectation of privacy." Id. at 699. As long as the motel had a "valid and legitimate" reason for terminating the tenancy, "[t]he manager's consent to the officers' search of the room was all that was required to avoid constitutional infirmity." Id. (footnote omitted). Thus, "[o]nce a manager, through private action, took possession of the motel room," the defendant guest "could no longer assert a legitimate privacy interest in its contents." Id.

Although we found no Maryland precedent considering the warrantless entry of a locked-out hotel room at the request of hotel management,4 we conclude that here, as in Allen, the legality of the hotel's consent depends upon whether the hotel locked out the room for a "valid and legitimate reason." See id. In answering that question, however, we recognize that the Sleep Inn's asserted reason for locking out Room 118 was not non-payment or misconduct by the registered guest, but rather to safeguard hotel employees and guests.


Permalink 07:44:31 am, by fourth, 154 words, 486 views   English (US)
Categories: General

TX: Officer could stop and inquire of a car that pulled to a stop in front of him when he was parked at a light

An officer sitting at a red light at 1 am observed defendant’s car pull off the road ahead and stop. It was reasonable for the officer to assume that the motorist was experiencing some sort of distress or problem, and the officer could pull up to inquire under the community caretaking function. Gonzales v. State, 369 S.W.3d 851 (Tex. Crim. App. 2012).*

Petitioner’s stop was with reasonable suspicion of OWI, so his arrest and revocation of his driving privileges for refusing a breath test was permissible. Court of appeals reversed. In re Refusal of Anagnos; States v. Anagnos, 2012 WI 64, 341 Wis. 2d 576, 815 N.W.2d 675 (2012).*

Probable cause came from matching defendant’s vehicle to several area gas station robberies, and then finding the car outside defendant’s home. The fact it did not appear in the last video of a robbery was not determinative. United States v. Mercado-Cañizares, 887 F. Supp. 2d 379 (D. P.R. 2012).*

Permalink 07:27:00 am, by fourth, 317 words, 360 views   English (US)
Categories: General

OR: Prior arrest for possession of gun not RS with nervous demeanor during stop

Defendant was stopped in a high crime area at 1 am for not signaling a left turn on a bicycle. He produced an ID card and was asked some basic questions. He was relaxed and made eye contact but appeared potentially under the influence, and riding a bike under the influence was an offense. When asked about a prior arrest for having a gun he became extremely nervous, and then a frisk was started, and he told them where the gun was. The stop became unreasonable in its length. The prior arrest for a gun did not justify extending this stop. State v. Steffens, 250 Ore. App. 742, 282 P.3d 888 (2012):

The central fact on which Mawdsley based his suspicion that defendant had a weapon, and the only fact on which the trial court relied, was that defendant had been arrested the previous month for possessing a concealed handgun. However, prior arrests or convictions—even recent ones—without more, do not provide reasonable suspicion that a person is currently engaged in illegal conduct. State v. Frias, 229 Ore. App. 60, 65, 201 P.3d 914 (2009) ("[W]hatever the inference that could be reasonably drawn about [the] defendant's past drug use, there was no evidence of a current or imminent crime * * *. The fact that [the] defendant was awaiting sentencing on a drug charge does not give rise to reasonable suspicion that, at the time the officer prolonged the stop, [the] defendant was engaged in criminal activity."); State v. Holcomb, 202 Ore. App. 73, 77-78, 121 P.3d 13, adh'd to as modified on recons, 203 Ore. App. 35, 125 P.3d 22 (2005) (rejecting the state's argument that "a person's recent drug use is sufficient, without more, to establish reasonable suspicion of present drug possession"); see also Dyer, 157 Ore. App. at 329 (the fact that the defendant had once been convicted of unlawfully possessing a weapon in a public building did not provide reasonable suspicion that he posed a threat to an officer during a traffic stop).

Permalink 05:49:18 am, by fourth, 367 words, 415 views   English (US)
Categories: General

WA: Police officer texting off a drug dealer's iPhone not constitutional violation

The police had a drug dealer’s iPhone in their possession, and defendant text messaged it. The officer pretended to be the drug dealer, and they text messaged back and forth. Defendant was arrested at a meet. None of this violated the Fourth Amendment or the Washington Constitution’s privacy provision. State v. Hinton, 169 Wn. App. 28, 280 P.3d 476 (2012):

¶17 The reasoning underlying the Wojtyna decision applies equally to Hinton's text messages sent to Lee's iPhone. Like in Wojtyna, Hinton transmitted messages to a device—Lee's iPhone—over which he had no control. See Wojtyna, 70 Wn. App. at 692. By doing so, he voluntarily ran the risk that his messages, once delivered, would be received by whomever possessed the iPhone, and he had no control over what that person might do with that message. See Wojtyna, 70 Wn. App. at 692. Like in Wojtyna, the State did not monitor every message Hinton sent, “but rather, where his [message] was independently displayed and retrieved from the place to which he intended to send it.” Wojtyna, 70 Wn. App. at 692. See also State v. Goucher, 124 Wn.2d 778, 781, 784, 881 P.2d 210 (1994) (police detective did not violate article I, section 7 [or the Fourth Amendment] when he answered the telephone while executing a search warrant at a suspected drug dealer's home, told the caller that he “was handling business,” and arranged a drug transaction with the caller; an individual has no reasonable expectation of privacy when he “voluntarily expose[s] his desire to buy drugs to someone he did not know.”).

In State v. Roden, 169 Wn. App. 59, 279 P.3d 461 (2012), the court found implied consent under similar facts:

¶17 Under the implied consent reasoning of the court in Townsend, Roden impliedly consented to the recording of his text messages on Lee's iPhone. Roden voluntarily sent the text messages to Lee's iPhone with the expectation that Lee would read them. In doing so, he also anticipated that the iPhone would record and store the incoming messages to allow Lee to read them. Cell phones, like computers, are “message recording device[s],” a fact that Roden must have understood as a user of text messaging technology on cell phones. See Townsend, 147 Wn.2d 676. Accordingly, Sawyer did not violate Roden's rights under the Act.

Permalink 12:06:16 am, by fourth, 676 words, 446 views   English (US)
Categories: General

NY1: NYPD frisk of juvenile was without factual basis

Stop and frisk should not be taken lightly. Even crediting the officer’s testimony, this stop and frisk was completely unjustified. The trial court’s order permitting it “broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures.” In re Darryl C., 2012 NY Slip Op 05118 (1st Dept. June 26, 2012):

The law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual's involvement in criminal activity (CPL 140.50[1]; People v De Bour, 40 NY2d 210, 223 [1976]) and then "knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety" (CPL 140.50[3]; People v Batista, 88 NY2d 650, 654 [1996]). The motion court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures (NY Const art I, § 12; US Const 4th Amend). The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built. The ramifications go beyond this single case. Widespread, aggressive police tactics in street encounters have recently raised concerns in other judicial forums. In People v Holland (18 NY3d 840 [2011, Lippman, Ch.J., dissenting]), the Chief Judge took issue with his own Court's dismissal of the appeal as "not only unsound jurisdictionally, but erosive of this Court's role in articulating the law governing police-civilian encounters" (id. at 845). He stated:

"When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court's proper function to resolve ... This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime" (id.).

In a footnote, Chief Judge Lippman made reference to Floyd v City of New York (8 F Supp 2d 417 [SD NY 2011]), in which the United States District Court noted, "[T]he policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching almost 600,000 a year" (id. at 422 [internal quotation marks omitted]). The District Court has now granted class action status to the plaintiffs in that case to challenge the constitutionality of the New York Police Department's stop-and-frisk program (Floyd v City of New York, 2012 WL 1868637, 2012 US Dist LEXIS 68676, [SD NY, May 16, 2012, No. 08-Civ-1034 (SAS)]).

While the dissent's opening paragraph frames the issue in somewhat dramatic terms, the actual testimony in this case presents a picture that is more pedestrian in all senses of the word. Appellant, a 14-year-old boy standing alone on the street, was stopped in broad daylight, by a police officer who believed appellant to be a truant, not a gang member, holding an object that the officer could not identify. The subsequent search was conducted without any evidence that the appellant was engaged in criminality or that he represented any threat to the safety of the officer. The motion court's ruling would, in effect, give the police the authority to stop and frisk a pedestrian who is not a suspect of a crime.

The facts herein, even crediting the officer, prohibit the search undertaken in this case. ...

Permalink 12:00:06 am, by fourth, 119 words, 366 views   English (US)
Categories: General "High court's GPS ruling may have minimal impact because cellphone tracking is legal" High court's GPS ruling may have minimal impact because cellphone tracking is legal by Richard Q. Hark:

The U.S. Supreme Court recently held in U.S. v. Jones that the warrantless use of a government-placed GPS tracking device on a defendant's vehicle constitutes a trespass, requiring suppression of all evidence generated there from. Some thought Jones could become a significant step in Fourth Amendment jurisprudence protecting defendants' rights. However, in 2010, Congress amended the Stored Communications Act (SCA), 18 U.S.C. 2701, severely curtailing Jones' importance. This is because a vast majority of people in the United States voluntarily carry a GPS tracking device — their cellular telephone — to which the 2010 SCA amendments gave the government almost unfettered access.


Permalink 01:56:37 pm, by fourth, 137 words, 460 views   English (US)
Categories: General

NYTimes: "Police Had Unusual Access to Nightclub Data, Suit Says"

You can't even drink in some places without NYPD knowing about it: NYTimes: Police Had Unusual Access to Nightclub Data, Suit Says by Russ Buettner:

For more than a year, the New York Police Department had ready access to a database that held the scanned identification document of every person who entered a large SoHo nightclub, whether those people were engaged in criminal activity or simply socializing with friends, according to a lawsuit.

The club, Greenhouse, has had a history of violence and other problems. Faced with the prospect of being shut down, the owners signed an agreement with the Police Department in March 2011 that required them to scan the ID of everyone who passed through the club’s doors. The data was to be kept for at least 30 days, and provided to the police upon request.

Permalink 10:47:47 am, by fourth, 426 words, 402 views   English (US)
Categories: General

IN: If an administrative agency has a remedy for an alleged unconstitutional search, it must be followed before a judicial remedy lies

An anticipatory search warrant by an administrative agency must first be challenged through the administrative review process. In Re The Matter of a Search Warrant Regarding the Following Real Estate, Sensient Flavors, LLC v. Indiana Occupational Safety and Health Administration, 969 N.E.2d 1053 (Ind. App. 2012):

The Indiana Commissioner of Labor filed a petition for an anticipatory search warrant in order to conduct an administrative inspection of Sensient Flavors LLC's Indianapolis facility. Sensient opposed the search warrant and was successful in getting it quashed. The trial court later issued an amended search warrant that was more restrictive than the original. Although the search of Sensient's facility has been completed, Sensient appeals the issuance of the amended search warrant, arguing that it was not supported by probable cause and unreasonable because it did not contain any limitations regarding the scope or manner of the search. Concluding that Sensient has failed to exhaust its administrative remedies, we dismiss this appeal.

. . .

In In re Establishment Inspection of Kohler Company, 935 F.2d 810 (7th Cir. 1991), Kohler Company, a Wisconsin company, sought to quash an administrative search warrant issued to OSHA on grounds that OSHA lacked probable cause to inspect its plant. Like this case, OSHA argued that because the inspection had already been completed, the issue was moot. The Seventh Circuit, however, did not address OSHA's mootness argument because it found that Kohler had failed to exhaust its administrative remedies. Id. at 812. Specifically, the court found that according to the Occupational Safety and Health Act of 1970 (OSH Act), it was "without jurisdiction to consider Kohler's challenge to the warrant that authorized OSHA's inspection." Id. The court noted that Section 10(a) of the OSH Act "requires parties to contest OSHA citations before the Review Commission before obtaining judicial review" and Section 11(a) provides that "no objection that has not been argued before the Commission shall be considered by the court ...." Id. (citing 29 U.S.C. §§ 659, 660). Accordingly, the court concluded, "We cannot, therefore, review a motion to suppress evidence ... that has not been presented to the Review Commission. ... To address Kohler's motion to quash now would enable Kohler to circumvent the statutory exhaustion requirement." Id.

The court then highlighted the importance of exhausting administrative remedies, that is, it "protects the autonomy of administrative agencies, respects administrative expertise, facilitates judicial review by ensuring a well-developed factual record, and promotes judicial economy by avoiding piece-meal review of cases and by giving the agency the opportunity to resolve the case to the parties' mutual satisfaction without judicial interference." Id. Particularly relevant to this case, the court explained: ...

Permalink 09:53:55 am, by fourth, 541 words, 327 views   English (US)
Categories: General

SC: Even Gates's soft standard of PC not met in this warrant for DNA

The warrant for DNA in this case completely failed to provide any showing of probable cause to obtain the sample. Remanded for development of the record on inevitable discovery. State v. Jenkins, 398 S.C. 215, 727 S.E.2d 761 (2012), withdrawn and refiled June 20, 2012:

First, the affidavit must set forth facts as to why the police believe the suspect whose DNA is sought is the person who committed the crime. ... The affidavit in this case fails to meet the requirement of showing why the police believed Jenkins committed the crime.

Second, the affidavit does not set forth the source of the facts alleged in it. ... Similarly, the affidavit in this case is defective because it contains no indication as to where the detective obtained the information.

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

Third, the affidavit does not contain even a conclusory assertion that the information or its source is reliable. See Gates, 462 U.S. at 238 (stating the circumstances a magistrate must consider include the "veracity" of the persons supplying the information on which the warrant is based). "Without any information concerning the reliability of the informant, the inferences from the facts which lead to the complaint will be drawn not by a neutral and detached magistrate, as the Constitution requires, but instead, by a police officer engaged in the often competitive enterprise of ferreting out crime ...." State v. Johnson, 302 S.C. 243, 248, 395 S.E.2d 167, 169 (1990) (citation and quotation marks omitted).

Viewing these deficiencies together and considering the totality of the circumstances, we find the police did not provide the magistrate a substantial basis on which to find probable cause to believe Jenkins committed this crime.

How bad does an affidavit have to be to fail to meet Gates? Looking at this website, not many. One problem with the nearly 30 years since Gates is that it essentially has condoned officers being slackers and not supporting PC they way they used to have to. Still, magistrates aren't doing their job. In the last six months I've seen search warrant affidavits in my practice that are just defaults to the police conclusions that there would be something found. The officers didn't even try to show probable cause and the magistrate still rubberstamped it. What are they there for? To stand between the citizen and the government if there is no PC, not be a rubberstamp.

Permalink 09:38:04 am, by fourth, 136 words, 369 views   English (US)
Categories: General

E.D.Cal.: § 1983 claim of wrongful anal cavity search was barred by Younger

Plaintiff’s § 1983 claim that he was subjected to an anal cavity search that led to finding tobacco apparently led to his prosecution, and Younger abstention would be applied until the criminal case ran its course. Mason v. Mercy Med. Ctr., 2012 U.S. Dist. LEXIS 88441 (E.D. Cal. June 25, 2012).

Officers had probable cause as to defendant’s premises from controlled delivery of a DHL parcel with 700 grams of cocaine that went out the back door and over a fence. Officers did a knock-and-talk and the man answering the door fled inside. Officers gave chase and calmed the situation down, holstering their guns. That was exigent circumstances, akin to hot pursuit, given probable cause. After a conversational, nonconfrontational meeting, consent to search the premises was given. United States v. Brache, 2012 U.S. Dist. LEXIS 88775 (S.D. Fla. June 25, 2012).*

Permalink 09:22:12 am, by fourth, 376 words, 497 views   English (US)
Categories: General

AZ: Juvenile DNA test taken on arrest can't be tested until after adjudication as a delinquent

There is no valid state justification for taking a DNA sample from a juvenile before adjudication and putting it in CODIS. If taken for a serious crime, it can’t be tested until after adjudication as a delinquent. Mario W. v. Kaipio, 230 Ariz. 122, 281 P.3d 476 (2012), rev'g 228 Ariz. 207, 265 P.3d 389 (App. 2011):

¶15 No Arizona or United States Supreme Court case, however, addresses the constitutionality of suspicionless pre-conviction DNA testing. The case law elsewhere is sharply divided. Maryland's highest court recently found that DNA profiling of arrestees violated the Fourth Amendment. King v. State, 42 A.3d 549, 580 (Md. 2012). Other courts have also so held, distinguishing the post-conviction cases because arrestees have a higher expectation of privacy than convicted felons. See, e.g., Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir. 2009); In re Welfare of C.T.L., 722 N.W.2d 484, 492 (Minn. Ct. App. 2006).

¶16 Several other courts, however, have found DNA profiling of arrestees reasonable under the Fourth Amendment. See, e.g., Haskell, 669 F.3d at 1065 (2-1 decision); United States v. Mitchell, 652 F.3d 387, 416 (3d Cir. 2011) (en banc) (8-6 decision); United States v. Pool, 621 F.3d 1213, 1226 (9th Cir. 2010), reh'g en banc granted, 646 F.3d 659 (9th Cir.), and vacated, 659 F.3d 761 (9th Cir. 2011); Anderson v. Commonwealth, 650 S.E.2d 702, 705-06 (Va. 2007). These courts have found that the government's interests in identifying arrestees and solving crimes outweigh an arrestee's diminished expectations of privacy.

¶17 Most courts considering the constitutionality of DNA sampling and profiling have employed the totality of the circumstances test. See Mitchell, 652 F.3d at 403 ("We and the majority of circuits -- the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and District of Columbia -- have endorsed a totality of the circumstances approach."). But see Amerson, 483 F.3d at 78 (applying "special needs test"); Green v. Berge, 354 F.3d 675, 677-78 (7th Cir. 2004) (same). The parties do not dispute the applicability of the totality of the circumstances test, and we therefore analyze the Arizona scheme under that rubric.

. . .

¶32 Thus, we find no state interest sufficient to justify the serious intrusion on the privacy interests of the Juveniles occasioned by the second search -- the extraction of the DNA profile from the buccal swab before adjudication or failure to appear. The swab remains available for processing thereafter, and no exigency exists warranting an earlier suspicionless search.

Permalink 08:56:36 am, by fourth, 123 words, 341 views   English (US)
Categories: General

E.D.Tex.: Defendant who says voice recordings not his has no standing to challenge their seizure

Defendant who claims his voice was not a recording had no standing to challenge the “search,” if it was one, that obtained the recordings. United States v. White, 2012 U.S. Dist. LEXIS 89020 (E.D. Tex. June 26, 2012).*

Having seen criminal activity going on in an open garage, officers could approach as any visitor to look in. Having seen criminal activity, “[t]he Agents could then lawfully enter the open Garage to investigate further the apparent criminal activity.” United States v. Contreras, 2012 U.S. Dist. LEXIS 87921 (N.D. Ill. June 26, 2012).*

The specific ground that this traffic stop was unreasonable was not raised in the district court, so plain error applies, and this wasn’t. United States v. Castro, 2012 U.S. App. LEXIS 13147 (5th Cir. June 27, 2012).*

Permalink 08:47:29 am, by fourth, 220 words, 410 views   English (US)
Categories: General

CA4: D.Ct.'s findings officer could estimate speeds for stop was clearly erroneous

In a rare clearly erroneous finding, the Fourth Circuit finds no support at all for the district court's [overly solicitous] finding of probable cause. The speeding stop here was without probable cause, and the district court’s conclusion that the officer could estimate speed at 75 in a 70 zone, intentionally not using radar, was clearly erroneous. The finding that the officer was trained to estimate speeds was unsupported by the record. The finding that the officer’s inability to determine distances also made the findings “absurd” because time and distance are required to measure speed. United States v. Sowards, 690 F.3d 583 (4th Cir. 2012):

However, the Fourth Amendment does not allow, and the case law does not support, blanket approval for the proposition that an officer’s visual speed estimate, in and of itself, will always suffice as a basis for probable cause to initiate a traffic stop. Instead, for the purposes of the Fourth Amendment, the question remains one of reasonableness. Critically, and as further explained below, the reasonableness of an officer’s visual speed estimate depends, in the first instance, on whether a vehicle’s speed is estimated to be in significant excess or slight excess of the legal speed limit. If slight, then additional indicia of reliability are necessary to support the reasonableness of the officer’s visual estimate.

Permalink 08:25:09 am, by fourth, 353 words, 379 views   English (US)
Categories: General

D.Mass.: Length of detention on RS was justified by defendant's actions, so it wasn't unreasonable

The officer had reasonable suspicion to detain the defendant for “ATM skimming,” but he did not have sufficient evidence to frisk him. Defendant’s own curious and false answers about what he was doing could be checked out, and that made the 3-4 hour detention before his arrest reasonable. United States v. Pascu, 2012 U.S. Dist. LEXIS 88071 (D. Mass. June 26, 2012):

Pascu nevertheless argues that the duration of the stop was unreasonable. Pascu was first stopped sometime after 2 p.m., and was formally arrested by all accounts some three or four hours later. From the testimony of the officers, it appears that all of the time between the beginning of the encounter and the formal arrest was reasonably necessary to the developing investigation related to the initial Terry stop. Officer Allen needed time to assess what was going on when he first stopped Pascu and started speaking to him. As Pascu gave answers about what he was doing there and whom he was meeting, Officer Allen had reason to believe that Pascu's answers were not truthful and were evasive. When other officers arrived, Officer Allen had to get them up to speed about what was happening and they began searching for the satchel and sunglasses that had been reported by the caller.

Detectives who later arrived had to call bank security to get confirmation that the ATM appeared tampered with and to get surveillance photographs to determine whether Pascu was the individual who had installed the "skimmer" device and pinhole camera on the ATM. Detective O'Connor needed time to view the photographs and to cross-reference addresses found in the Chrysler with other ATMs in the region. Finally, because the detectives were unable to remove the "skimmer" from the ATM, they had to wait until Special Agent Seidel arrived and removed it. All of these investigative steps were "reasonably responsive to the circumstances justifying the stop in the first place as augmented by information gleaned by the officer[s] during the stop." Chaney, 647 F.3d at 409 (quotation and citation omitted). Pascu's lawful Terry detention did not become a de facto arrest because of its duration.

Permalink 08:17:19 am, by fourth, 124 words, 317 views   English (US)
Categories: General

CA4: Heck doesn't bar claim where no habeas was available

Heck barred the claim of one plaintiff who had habeas relief available to him but not the claims of two others who did not have habeas available after their convictions. Bishop v. County of Macon, 484 Fed. Appx. 753 (4th Cir. June 22, 2012).

For a 2255 Franks challenge, a detailed affidavit of falsity of the affidavit is required for the petition, and petitioner failed to provide it. Dismuke v. United States, 2012 U.S. Dist. LEXIS 88077 (E.D. Wis. June 26, 2012).*

Consent here was limited to looking for pistols in the house and didn’t include the cars outside. However, the plain view through the windows gave probable cause. United States v. Kelly, 2012 U.S. Dist. LEXIS 87653 (W.D. La. May 25, 2012), adopted 2012 U.S. Dist. LEXIS 87670 (W.D. La. June 22, 2012).*


Permalink 10:29:39 pm, by fourth, 301 words, 319 views   English (US)
Categories: General

E.D.Ky.: Police ability to conduct SI of cell phone didn't depend on defendant's ability to alter the phone's contents

Seach incident of a cell phone was permissible without the government showing that the contents were likely to be destroyed or altered. United States v. Lewis, 2012 U.S. Dist. LEXIS 86808 (E.D. Ky. June 22, 2012):

Nevertheless, courts have not required the government to show that the information on the cell phone would actually be deleted or that the defendant was actually capable of deleting the information at the time of the search incident to arrest. See Murphy, 552 F.3d at 411 (rejecting argument that government must ascertain a cell phone's storage capacity to justify a warrantless search of a phone retrieved during a search incident to arrest because "it is very likely that in the time it takes for officers to ascertain a cell phone's particular storage capacity, the information stored therein could be permanently lost"); United States v. Dennis, No. 07-008-DLB, 2007 U.S. Dist. LEXIS 83892, 2007 WL 3400500, at * 8 (E.D. Ky. 2007) (rejecting defendant's argument that search of cell phone was invalid because it was impossible for him to destroy information on it and stating that "[t]he test for validity of a search incident to arrest is not whether the defendant has actual, present capacity to destroy the evidence, but merely whether the evidence was in his immediate control near the time of the arrest"); United States v. Gomez, 807 F.Supp.2d 1134, 1147-48 (S.D. Fla. 2011) (stating that, under the search-incident-to-arrest exception to the warrant requirement, "the existence of probable cause to search the device, the potential loss of information, or the diminished expectation [of privacy] in call history data are inconsequential. What is consequential is the location that the device was found incident to arrest and the time that the search was conducted").

With an iPhone, somebody else with knowledge of the passwords could remotely erase the phone. Is that enough?

Permalink 06:14:29 pm, by fourth, 123 words, 342 views   English (US)
Categories: General

MI: MMJ patient without his ID card could be arrested for possession even if immune from prosecution

Defendant who was not in possession of his Michigan MMJ card could be arrested under the statute, but he had immunity from prosecution. Constructive possession other than on his person with the MMJ is not enough to avoid arrest. People v. Nicholson, 306496 (Mich. App. June 26, 2012).

The tip from the CI here was fully corroborated, and that gave reasonable suspicion. On the question of officer safety, the observations at the scene supported reasonable suspicion, too. United States v. Thompson, 2012 U.S. Dist. LEXIS 86800 (S.D. W.Va. June 22, 2012).*

Defendant’s consent was voluntary. When questioned about a blunt, he offered to allow the officer to search. The officer didn’t even ask. United States v. Denson, 2012 U.S. Dist. LEXIS 87493 (E.D. Tex. May 21, 2012).*


Permalink 12:06:43 pm, by fourth, 315 words, 571 views   English (US)
Categories: General

CA5 adopts RS as standard for prison employee search; underwire bra setting off metal detector enough at a prison

Plaintiff is a Texas DOC employee whose underwire bra set off the metal detector entering the prison for work. Her partial strip search was justified by reasonable suspicion of possession of a cell phone or other metal object. The Fifth Circuit adopts the majority rule that reasonable suspicion is required for a search of a prison employee, and all Texas prisons are on guard for smuggling of cell phones into prison which is contraband. Rouse v. Tex. Dep't of Crim. Justice Institutional Div., 479 Fed. Appx. 612 (5th Cir. 2012):

First, we agree with the district court that the prison officials were required to have reasonable suspicion that appellant was carrying contraband in order to justify the partial strip search of the plaintiff. Where visitors to the prison will be exposed to prison inmates, we have stated that "[t]o justify the stip search of a particular visitor under the reasonable suspicion standard, prison officials must point to specific objective facts and rational inferences that they are entitled to draw from those facts in light of their experience." Thorne v. Jones, 765 F.2d 1270, 1277 (5th Cir. 1985). The standard requires "individualized suspicion" specifically directed to the person who is targeted for the strip search. Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997). At least three circuits have held that reasonable suspicion is the appropriate standard for the partial strip search of prison staff. Leverette v. Bell, 247 F.3d 160 (4th Cir. 2001); McDonnell v. Hunter, 809 F.2d 1302 (8th Cir. 1987); Security and Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187 (2d Cir. 1984). The appellant does not challenge the district court's conclusion that this is the appropriate legal standard.

We also agree that when appellant triggered the metal detectors, the prison officials had reasonable suspicion and were entitled to conduct the partial strip search. Under the facts recited above, the prison officials had the "individualized suspicion" of appellant to justify the partial strip search. ...

Permalink 11:33:43 am, by fourth, 162 words, 369 views   English (US)
Categories: General

D.N.M.: Copar Pumice attorneys fee award $111k for Fourth Amendment violation despite small verdict

The mining company’s long running Fourth Amendment case against New Mexico authorities resulted in a jury verdict of $1 but included attorneys fees for a state administrative proceeding of $16,000. The award was not nominal. The lodestar for fees is “Because the Court finds that Copar Pumice's claimed hourly rates are reasonable, and because the Court finds that its time spent in litigating this matter is reasonable, the Court calculates the lodestar amount to be $124,401.14 in attorney's fees with $2,380.17 in expenses,” but it is reduced 10%. Copar Pumice Co. v. Morris, 2012 U.S. Dist. LEXIS 87098 (D. N.M. June 13, 2012).*

Consent search of passenger compartment produced cocaine and marijuana, so officer could search the trunk based on that probable cause. United States v. Denson, 2012 U.S. Dist. LEXIS 87493 (E.D. Tex. May 21, 2012).*

Under the WV implied consent law, a driver who refuses a test is only subject to a test by search warrant, if one is sought. State v. Stone, 229 W. Va. 271, 728 S.E.2d 155 (2012).*


Permalink 11:03:52 am, by fourth, 878 words, 541 views   English (US)
Categories: General

SCOTUS: AZ "papers please" law can lead to unconstitutional detentions

SB 1070, the Arizona “papers please” law held constitutional in part and unconstitutional in part and the court was concerned with lengthening detentions based on suspected illegal status without only a hunch. Arizona v. United States, first from the syllabus:

(c) By authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, §6 too creates an obstacle to federal law. As a general rule, it is not a crime for a removable alien to remain in the United States. The federal scheme instructs when it is appropriate to arrest an alien during the removal process. The Attorney General in some circumstances will issue a warrant for trained federal immigration officers to execute. If no federal warrant has been issued, these officers have more limited authority. They may arrest an alien for being “in the United States in violation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2). Section 6 attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform an immigration officer’s functions. This includes instances where the Attorney General has granted that authority in a formal agreement with a state or local government. See, e.g., §1357(g)(1). Although federal law permits state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” §1357(g)(10)(B), this does not encompass the unilateral decision to detain authorized by §6. Pp. 15–19.

Then from 22-23 of the opinion:

Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immigration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009); Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C, supra (concluding that Arizona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.

But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practicable”); cf. Muehler v. Mena, 544 U. S. 93, 101 (2005) (finding no Fourth Amendment violation where questioning about immigration status did not prolong a stop).

To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention.

However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U. S. 581, 589 (1948) (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); ...

Permalink 10:28:59 am, by fourth, 162 words, 365 views   English (US)
Categories: General

M.D.Fla.: Officer's uncorroborated but uncontradicted testimony showed the dog well trained

Defendant’s stop was justified for following too close as corroborated somewhat by the video. A dog was immediately called in and conducted a sniff while the warning ticket was being filled out. The dog alerted within five minutes of the stop, so the stop was not prolonged. The officer’s testimony on the “well trained” dog was that the dog had 800 alerts with no false positives, so there was probable cause. United States v. Trejo, 2012 U.S. Dist. LEXIS 86740 (M.D. Fla. May 17, 2012).*

Defendant school teacher ordered a search of people in a room based on the smell of marijuana, but included plaintiff who she was aware arrived after the smell. The defendants were on notice that such a search was illegal under T.L.O. Plaintiff also stated a claim that the search was racially motivated against two African-American students who arrived after the smell. Doe v. Champaign Cmty. Unit 4 Sch. Dist., 2012 U.S. Dist. LEXIS 86857 (C.D. Ill. February 24, 2012).*

Permalink 01:52:26 am, by fourth, 236 words, 371 views   English (US)
Categories: General

New law review article: "The Mosaic Theory of the Fourth Amendment" by Orin S. Kerr

Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 110 Mich. L. Rev. ___ (2012), on SSRN. Abstract:

In the Supreme Court’s recent decision on GPS surveillance, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

Permalink 12:21:20 am, by fourth, 325 words, 627 views   English (US)
Categories: General

OH2: Seizure of cell phone with PC to get SW was valid

The seizure of defendant’s cell phone was with probable cause because he was a suspect in a murder. The police did not search it until they obtained a warrant consistent with Smith. The seizure of the telephone was not inconsistent with Smith. Under Segura, a seizure and search protect different interests, but they both have to be justified. This was. State v. Cunningham, 2012 Ohio 2794, 2012 Ohio App. LEXIS 2443 (2d Dist. June 22, 2012):

[*P28] The police did not search the contents of Defendant's cell phone at issue until after a search warrant was obtained to search those contents. Defendant does not challenge the validity of the search warrant but instead argues that the seizure of the cell phone itself without a warrant required the trial court to exclude all evidence derived from the cell phone after the search warrant was issued pursuant to the Supreme Court's decision in Smith. We do not agree.

[*P29] The police had identified Defendant as a key suspect in a double homicide that occurred only hours before Defendant was sitting in the interview room. (Motion to Suppress Tr., p. 7-10.) Defendant was at police headquarters for purposes of an interview concerning those crimes and used the phone while waiting to be interviewed. Defendant's phone was confiscated by police out of a concern that relevant information memorialized on the phone would be deleted or lost. At no point between the time that Detective Baader seized Defendant's cellular phone and the time when the search warrant was issued did the police search the records stored inside Defendant's phone. (Id. at 15, 25, 39, 42, 46, 50.)

[*P30] The police had probable cause to seize Defendant's cellular phone until a search warrant could be obtained. As the Supreme Court recognized in Smith, the police had an "immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone are neither lost nor erased." Smith, ¶ 23. The confiscation of Defendant's phone did just that.

Permalink 12:12:43 am, by fourth, 140 words, 351 views   English (US)
Categories: General

WY: Flying from TX to SF to rent a car to drive to Chicago and nervousness was RS

Nervousness and claiming to have flown from Texas to San Francisco to rent a Mercedes to drive to Chicago for no apparent reason was reasonable suspicion of drug trafficking. Phelps v. State, 2012 WY 87, 278 P.3d 1148 (2012).*

U.S. Court of Federal Claims has no jurisdiction over Fourth Amendment claims against the government. Cox v. United States, 105 Fed. Cl. 213 (2012) [for the 1000th time].

Plaintiff’s Fifth Amendment claims about animal welfare seizure were precluded by a state court action under the Rooker-Feldman doctrine. Her Fourth Amendment claims, however, predated the state court judgment and were not precluded, despite the fact the state court even considered the search and seizure claim. The Fourth Amendment claim may be precluded, but not under the district court’s analysis and more development of the record is required. Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012).*

Permalink 12:02:03 am, by fourth, 127 words, 444 views   English (US)
Categories: General

TN: Frisk for “generalized safety” had no lawful basis under Terry

Defendant’s frisk for “generalized safety” was not shown to have any lawful basis, and the motion to suppress should have been granted. The state confessed error. State v. Brooks, 2012 Tenn. Crim. App. LEXIS 425 (June 20, 2012).*

Officers came to defendant’s house with an attachment order for failure to pay child support. The officer was invited inside and then the occupants consented to a search which was shown to be voluntary. State v. Dixon, 2012 Tenn. Crim. App. LEXIS 423 (June 21, 2012).*

The officer here saw defendants smoking marijuana at a Wendy’s so he followed them, stopped them for a traffic offense and smelled more. A search warrant for their motel room was issued, and it was with probable cause and nexus. United States v. Taylor, 471 Fed. Appx. 499 (6th Cir. 2012).*


Permalink 10:44:14 am, by fourth, 419 words, 397 views   English (US)
Categories: General

D.Utah: No differing standard of justification for a seizure v. a search

There is no differing standard of justification for a seizure v. a search. The officers’ entry here was without exigent circumstances, and their findings made it into the search warrant affidavit, so the search was suppressed. United States v. Estrada, 2012 U.S. Dist. LEXIS 86592 (D. Utah June 21, 2012):

2. Seizure vs. search

The government argues that, as the officer's intent was merely to secure the hotel room, remove any occupants, and obtain a search warrant, "their activity in entering the room should be considered a more limited intrusion than would be a warrantless search, and therefore subject to a different degree of scrutiny." In support of this contention, the government cites to the plurality opinion in United States v. Segura, which states:

[A] seizure affects only possessory interests, not privacy interests. Therefore, the heightened protection we accord privacy interests is simply not implicated where a seizure of premises, not a search, is at issue. We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.

However, this language comes from a section of the Segura opinion that was joined by only two justices. Furthermore, even if the language cited by the government garnered majority support, the same section of the opinion states that the justices did not believe that the holding would increase the possibility of illegal entries by police officers because: 1) "an entry in the absence of exigent circumstances is illegal;" 2) "officers who have probable cause and who are in the process of obtaining a warrant have no reason to enter the premises before the warrant issues, absent exigent circumstances which, of course, would justify the entry;" and 3) "officers who enter illegally will recognize that whatever evidence they discover as a direct result of the entry may be suppressed."

In the case at hand, the officers did not enter the premises "while a search warrant [was] being sought;" instead, they entered the premises before seeking the warrant, and included substantial evidence found in the apartment in the subsequently-prepared warrant affidavit.

Under the Segura plurality, an entry in the absence of exigent circumstances is illegal and evidence discovered from such a search may be suppressed. Therefore, the question before the Court remains the same: whether exigent circumstances existed to justify the officers' warrantless entry.

Under the Fourth Amendment, why would there be because both are provided for by its plain language.

Permalink 10:29:18 am, by fourth, 233 words, 374 views   English (US)
Categories: General

VI: Man with a gun report alone not RS for stop and frisk without showing a crime was committed

Man with a gun report did not create a presumption that the gun was unlicensed or otherwise criminally possessed, so a stop and frisk was not justified. [Case does not cite the Second Amendment.] People v. Murrell, 56 V.I. 796 (2012):

We agree with Murrell that, if this Court were to apply the Ubiles and Lewis decisions, there is no question that the Superior Court correctly granted Murrell's motion to suppress. As in Lewis and Ubiles, there is absolutely no evidence in the record that Douglas received any information that Murrell possessed an unlicensed firearm or a firearm with an altered serial number, nor is there any evidence from which Douglas could have inferred that Murrell was engaging in criminal behavior. On the contrary, Douglas unambiguously testified at the suppression hearing that he only had reason to believe that Murrell lacked a license after Murrell told him that he did not have one, which did not occur until after Murrell had been told to place his hands on the hedge and Douglas obtained the loaded firearm out of Murrell's pocket. (J.A. 53-54.) Therefore, were we to concur with the Third Circuit's conclusion that local Virgin Islands law does not contain a presumption that an individual lacks a permit to carry a firearm, we would easily conclude that the Superior Court committed no error in granting the motion to suppress the firearm and the ammunition.

Permalink 10:13:46 am, by fourth, 235 words, 437 views   English (US)
Categories: General

ID: Where no expectation of privacy, DA comment on refusal to consent not error

The prosecutor’s comment on defendant’s refusal to let the police look at the soles of his shoes was not a comment on the exercise of a constitutional right because there was no expectation of privacy in the soles of one’s shoes under state precedent. State v. Wright, 153 Idaho 478, 283 P.3d 795 (App. 2012).

Defendant was suspected of a murder and the police had the weapon and probable cause for her. There was a substantial basis for issuing a search warrant for her house to look for more. Hughes v. State, 90 So. 3d 613 (Miss. 2012).* [Note: What is missing from this case is a discussion of nexus: What is the relationship of the murder to the house or potential evidence in the house? Sure defendant lived there, but more has to be required. Granted, cases say “is it a reasonable and normal inference that evidence will be found in one’s house after a crime, a normal base of operations?” They never say what. Here, they found shoes linked to the murder, but they had no idea before; this was a general rummaging. Thus, the case virtually stands for the proposition that a murder suspect’s house is subject to search even though the murder didn’t occur there. Remember also that there is no murder scene exception to the warrant requirement, so does this case mean that there is a murder suspect exception to nexus?]

Permalink 09:43:49 am, by fourth, 131 words, 337 views   English (US)
Categories: General

Sun-Sentinel: "State seeks to expand secret tracking program that uses cellphones, GPS"

Sun-Sentinel: State seeks to expand secret tracking program that uses cellphones, GPS by Alexia Campbell:

Florida wants to expand a secret surveillance program that uses GPS cellphone tracking and other new tracking technology to help police solve violent crimes.

The Florida Department of Law Enforcement's Electronic Surveillance Support Teams have operated under the radar since the first one launched in the Orlando area in 2007. The teams have since spread to South Florida and all across the state, records show, and rising police requests for surveillance have led the department to push for $1.7 million to expand the program.

Although little is known about how agents on these teams use the high-tech surveillance equipment to help police, state records show that locating criminal suspects with GPS locators on smartphones is a common practice.


Permalink 10:25:05 am, by fourth, 221 words, 472 views   English (US)
Categories: General

KY: Protective sweep after 1:30 am knock-and-talk was unreasonable

Kentucky S.Ct. adopts Buie protective sweep for the first time finding that the area swept during a 1:30 am knock-and-talk was inappropriate on the facts. Defendant and his girlfriend were in bed and the officers did a protective sweep of an adjoining room without any factual justification finding drug residue on a spoon and then coercing consent to search the entire house. Guzman v. Commonwealth, 375 S.W.3d 805 (Ky. 2012):

Today, for the first time, this Court follows and adopts the holding in Buie. We note, in passing, that four years before Buie our own Court of Appeals recognized that a "protective sweep" or "safety check" is an exception to the warrant requirement in Kentucky law. Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky.App. 1986). Guzman points out that the Buie case is distinguishable from the facts of this case in that the "protective sweep" there was performed incident to an in-home arrest on a warrant and was for the purpose of protecting the safety of the police. We agree that Buie is clearly distinguishable. Unlike this case, the holdings in both Buie and Elliott dealt with a limited sweep in conjunction with an in-home arrest.

Note: The fact of a 1:30 am knock-and-talk should be presumptively invalid anyway as inherently coercive. How can armed police officers at the door at 1:30 am be non-consensual?

Permalink 10:00:38 am, by fourth, 172 words, 412 views   English (US)
Categories: General

NC: Plain feel of hard object between butt cheeks validly led to finding crack

Encounter with parked car led to a plain view of crack cocaine. Defendant’s patdown led to finding a hard object between his “butt cheeks.” The officer could pull out his waistband to look. This was not a strip search, and the officer took reasonable measures to protect defendant’s privacy as required by the case law. State v. Robinson, 2012 N.C. App. LEXIS 776 (June 19, 2012).

No clear error in the district court’s conclusion that a purse was under joint control of the driver and passenger for consent purposes. The strip search at the jail was justified because of information defendant had secreted drugs in body cavities before. United States v. Bear, 473 Fed. Appx. 525 (9th Cir. 2012).*

The trial court’s credibility determination that it believed the officer that he smelled marijuana and saw smoke coming from defendant’s ice cream truck was binding on probable cause, despite the testimony that no ash or residue of the smoking was found there. Gilliam v. United States, 46 A.3d 360 (D.C. App. 2012) (argued in December 2009).*


Permalink 11:07:10 am, by fourth, 335 words, 560 views   English (US)
Categories: General

E.D.Ky.: Warrant and GFE can cure a prior illegal search in the right circumstances

It was not objectively unreasonable for a drug officer to trust the representations of FedEx when they suspected a package. Although the first search of the package was unreasonable, a second with a warrant was distanced from the first and disclosed. The good faith exception can apply to a warrant after an initial illegal search. United States v. Poor, 2012 U.S. Dist. LEXIS 85529 (E.D. Ky. June 20, 2012)*:

The Court believes, however, that the statement in Davis [United States v. Davis, 430 F.3d 345 (6th Cir. 2005)] and the McClain [United States v. McClain, 444 F.3d 556 (6th Cir. 2005)] opinion can be reconciled. It is important to note that the statement in Davis was made in a footnote and the government had not raised the Leon argument. Thus, the statement was not intended to be a complete analysis of the issue of whether the good-faith exception applies where a warrant affidavit relies on illegally obtained evidence.

In McClain, in contrast, the court intended to and did squarely address the issue of whether the good-faith exception applies where the affidavit supporting a search warrant relies on evidence obtained in violation of the Fourth Amendment. McClain, 444 F.3d at 564. This Court reads Davis and McLean together to hold that the good-faith exception to the exclusionary rule can apply where an affidavit relies in part on evidence obtained in an illegal search only if 1) the officers who conducted the initial illegal search or seizure were not objectively unreasonable; 2) there is no evidence that the officers knew they were violating the Fourth Amendment when they performed the illegal search or seizure; 3) the officers who sought and executed the search warrant were not the same officers who performed the illegal search; 4) the warrant affidavit fully disclosed to a neutral and detached magistrate the circumstances surrounding the initial warrantless search; and 5) the facts surrounding the initial warrantless search were close enough to the line of validity to make the executing officers' belief in the validity of the search warrants objectively reasonable. McClain, 444 F.3d at 566.

Permalink 10:38:15 am, by fourth, 193 words, 411 views   English (US)
Categories: General

TX: Appellate court's refusal to look at video of consent during appeal was error

The appellate court standard of review of deference to the trial court findings did not insulate from review the failure of the trial court to review the videotape of the defendant’s stop that included the consent. The appellate court should review the video in light of the deferential standard of review and reverse if it doesn’t support the findings. Tucker v. State, 369 S.W.3d 179 (Tex. Crim. App. 2012):

Finally, we held in Montanez that appellate courts should apply the deferential standard articulated in Guzman "to a trial court's determination of historical facts when that determination is based on a videotape recording admitted into evidence at a suppression hearing." Montanez, 195 S.W.3d at 109. The case before us differs from Montanez in that the video was admitted into evidence but was not viewed by the trial court, and was therefore not used as the basis for any findings, determinations, or rulings. Despite this distinction, deference is still the correct standard to use here. However, in order to determine whether the evidence supports the trial court's implicit finding, the court of appeals must take all of the evidence, including the video, into account.

Permalink 10:21:51 am, by fourth, 160 words, 371 views   English (US)
Categories: General

FL4: With PC, it doesn't matter that the officer arrested first and searched later

Defendants were stopped for excessive tinting, and the officer could smell marijuana. The officers then had probable cause to search the car and arrest defendants, and it did not matter if the officer arrested first and searched later. State v. Sarria, 2012 Fla. App. LEXIS 9953 (Fla. 4th DCA June 20, 2012).*

Defendant who borrowed his fiancee’s car to commit a bank robbery was not shown to have a reasonable expectation of privacy in it when it was searched. People v. Earl, 297 Mich. App. 104 (June 19, 2012)*:

The mere fact that defendant was engaged to the owner-driver does not endow him with an ownership interest in the vehicle or a reasonable expectation of privacy in it. Although defendant claims that his fiancée allowed him to use the vehicle, he did not show a continuous use of and right of access to the vehicle. Thus, defendant failed to carry his burden of demonstrating that he had a legitimate possessory or privacy interest in the vehicle.

Permalink 09:49:45 am, by fourth, 158 words, 389 views   English (US)
Categories: General

W.D.Ky.: The metaphysics of location for Jones good faith

Defendant was indicted in Kentucky in the Sixth Circuit, but a GPS on his vehicle was monitored across the Ohio River bridge in Indiana in the Seventh Circuit, so for Davis good faith exception purposes, Seventh Circuit case law was settled that GPS tracking was permissible before Jones. Alternatively, a single monitoring instance rather than Maynard/Jones’s 60 days was not unreasonable. United States v. Shelburne, 2012 U.S. Dist. LEXIS 85368 (W.D. Ky. June 20, 2012)*:

Although the defendants were indicted and face charges in this court, within the Sixth Circuit, our case is very different from the case which faced the court in Lee. The law enforcement officials who attached the GPS tracking device and monitored its location in this case were Jeffersonville Police Department detectives in Jeffersonville, Indiana. Indiana is within the Seventh Circuit, where two binding appellate decisions had held that the limited use of a GPS tracking device was not a "search" for Fourth Amendment purposes.

Permalink 09:44:06 am, by fourth, 146 words, 386 views   English (US)
Categories: General

E.D.Ky.: State law prerequisites for AG's participation in a case is irrelevant in federal court

The Kentucky AG was involved in the child pornography investigation, and state law required certain prerequisites the defendant argued weren’t met. They were irrelevant under Fourth Amendment reasonableness. United States v. Rogers, 2012 U.S. Dist. LEXIS 85947 (E.D. Ky. June 21, 2012),* reconsideration denied 2012 U.S. Dist. LEXIS 98166 (E.D. Ky. July 16, 2012).*

The officer formed reasonable suspicion defendant was driving under the influence, and he asked for consent to search the trunk, which was voluntary. Discovery of drugs there justified a search of the engine compartment, too, under the automobile exception. United States v. Cathey, 485 Fed. Appx. 119 (6th Cir. 2012).*

The officer pulled over to talk to defendant in a parked car about a recent robbery in the area. Defendant was not stopped. Defendant consented to the encounter and a patdown, and a marijuana baggy was found by plain feel. Kirkland v. State, 316 Ga. App. 310, 728 S.E.2d 907 (2012).*

Permalink 09:25:06 am, by fourth, 148 words, 409 views   English (US)
Categories: General

AR: Where arrest was within territorial jurisdiction, the fact the breath test was outside jurisdiction isn't a ground to suppress

The arrest was within the officer’s jurisdiction, but a breathalyzer administered outside of the officer’s jurisdiction was not a Fourth Amendment violation. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143 (2012).*

Defendant apparently was snitched off to the police by his own passenger that he was wanted on a warrant. The officer ran the defendant’s name and found the warrant. That was a sufficient basis for a stop. The CI’s reliability, if it’s even an issue, was established by finding the warrant or was mooted by the warrant. United States v. Beals, 2012 U.S. Dist. LEXIS 84919 (E.D. Cal. June 19, 2012).*

On de novo review, the officer’s version is more credible, even though he admitted he was in the gang unit conducting a traffic stop and “was not well-versed in the traffic code.” United States v. Shipp, 2012 U.S. Dist. LEXIS 85924 (E.D. Wis. June 21, 2012).*


Permalink 12:35:02 pm, by fourth, 209 words, 2211 views   English (US)
Categories: General

CA5: Consent from immigration stop of citizen within 30 seconds was valid

Consent during immigration stop as an interstate bus was boarding was valid; here granted within 30 seconds. Subjective intent irrelevant. United States v. Castille, 478 Fed. Appx. 868 (5th Cir. 2012)*:

Because the permissible duration of an immigration checkpoint stop includes the time necessary to inquire about citizenship status, request documentation, and request consent to extend the detention, the 30-second stop of each defendant in this case, during which Pacheco asked each defendant about his citizenship status and for consent to search, "lasted no longer than necessary to fulfill its immigration-related purpose." See Machuca-Barrera, 261 F.3d at 429, 435; see also United States v. Jaime, 473 F.3d 178, 185-86 (5th Cir. 2006). The scope and duration of the immigration checkpoint stop remained valid even though Agent Pacheco had concluded that both Lewis and Castille were United States citizens before he asked for consent to search. See Jaime, 473 F.3d at 185. Furthermore, because the scope and duration of the immigration checkpoint stop were permissible, we will not inquire into Agent Pacheco's motivation in asking for consent to search. See Machuca-Barrera, 261 F.3d at 432-34. Finally, because Agent Pacheco requested consent to search during the course of his immigration inspection of the passengers on the bus, our decision in Portillo-Aguirre is inapplicable here. See Jaime, 473 F.3d at 185-88.

Permalink 11:19:06 am, by fourth, 143 words, 2286 views   English (US)
Categories: General

NE: Molded gun case is PC of incriminating nature in FIPF case

In a felon in possession case, seeing a molded gun case in defendant’s bedroom when he was believed to be in possession was probable cause of incriminating nature for plain view. State v. Vyhnalek, 19 Neb. App. 904, 814 N.W.2d 768 (2012).*

A bailment (contract) claim for seizure of a laptop at the border fails because a seizure is not bailment; bailments are mutually agreed upon. Kam-Almaz v. United States, 682 F.3d 1364 (Fed. Cir. 2012).*

“We find that under the ‘totality of the circumstances,’ including Officer Mermon's twelve years of training and experience, which led him to believe that the U.S. currency found on Mr. McLaughlin's person and the manner in which it was bound was evidence of an illegal drug transaction, there was a substantial basis for concluding that probable cause existed.” United States v. McLaughlin, 2012 U.S. Dist. LEXIS 85324 (W.D. Pa. June 20, 2012).*

Permalink 09:10:01 am, by fourth, 515 words, 2794 views   English (US)
Categories: General

E.D.Va.: Drug interdiction officer pursued traffic stop as a drug investigation, and it was suppressed

The stop was justified, but the nature of the questioning wasn’t. The facts show that this was always pursued as a drug investigation and not a traffic stop. United States v. Santiago, 869 F. Supp. 2d 707 (E.D. Va. 2012):

The defendants in this case have moved to suppress evidence seized from their rental car. This case is another in a series of incidents in which police officers stop drivers, ostensibly for routine traffic offenses, and drag out the stop until they have probable cause to search the drivers' vehicles. [citations omitted] Here, the officer measurably lengthened the stop and expanded the scope of his investigation without reasonable suspicion, thereby violating the defendants' Fourth Amendment rights. For that reason, the Court will suppress the evidence.

. . .

The heart of this case, however, concerns the second prong of the Terry test—that the seizure must be sufficiently limited in scope and duration. With regard to scope, "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Royer, 460 U.S. at 500; Guijon-Ortiz, 660 F.3d at 764. In terms of duration, the reasonable time for a traffic stop "cannot be stated with mathematical precision," Branch, 537 F.3d at 336, but a stop may become "unlawful if it is prolonged beyond the time reasonably required to complete [its] mission." Illinois v. Caballes, 543 U.S. 405, 407 (2005). "If a police officer seeks to prolong a traffic stop to allow for investigation into a matter outside the scope of the initial stop, he must possess reasonable suspicion or receive the driver's consent." Digiovanni, 650 F.3d at 507 (citing Branch, 537 F.3d at 336).

. . .

Turning to the traffic stop in this case, the Court finds that Trooper Homiak pursued his mission as a member of the interdiction team. It is not surprising, then, that he failed to diligently pursue the purposes of the stop and embarked on a sustained course of investigation into the presence of drugs in the car that constituted the bulk of the encounter between the officer and defendants. See Digiovanni, 650 F.3d at 509. At the outset, Homiak stayed with the approved script for a routine traffic stop, asking for a license and registration, then inquiring who owned the car before receiving the rental agreement. See Branch, 537 F.3d at 337; Foreman, 369 F.3d at 781. He then informed the defendants of the reason for the encounter—their 82 mph speed. Just over two minutes into the stop, however, Trooper Homiak embarked on a sustained investigation of the defendants' travel history, plans, and purpose.

The officer's subsequent actions "bespeak an utter lack of diligence." Digiovanni, 650 F.3d at 510. Homiak's questions concerning the defendants' flight from Puerto Rico, where they were going, how long they were staying, and their purpose for the trip were unrelated to the reason for the traffic stop. This line of questioning continued with Santiago in his patrol car, where Homiak claimed to have been diligently completing the necessary paperwork. ...

I've seen plenty of videos of stops that were similar but never good enough to suppress. This was clearly over the line.


Permalink 04:02:35 pm, by fourth, 340 words, 2350 views   English (US)
Categories: General

CA6: Officer's testimony can support reliability of dog for alert; alert can lead to search of containers

The reliability for a dog alert as probable cause can be established by the testimony of the officer alone. Some inaccuracies don’t undermine the dog's reliability because none is infallible. The dog alert can result in searches of containers, here an envelope. United States v. Stubblefield, 682 F.3d 502, 2012 FED App. 0183P (6th Cir. 2012):

... Although Earvin correctly points out that no drugs were discovered in Earvin's rental car following Arrow's positive alert, this fact is not dispositive. The crucial question for reliability is not whether a dog is actually correct in the specific instance at hand—no dog is infallible—but rather whether the dog is likely enough to be right so that a positive alert "is sufficient to establish probable cause for the presence of a controlled substance." Diaz, 25 F.3d at 394. "This court has defined probable cause as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion, and is said to exist when there is a fair probability, given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." United States v. Howard, 621 F.3d 433, 453 (6th Cir. 2010) (internal quotation marks omitted) (emphasis added).

Because Arrow's reliability and proper training have been established, Earvin's next argument—that Arrow's alert did not justify opening the envelope containing the first set of counterfeit documents—is easily dismissed. An alert by a properly trained and reliable drug-detection dog "is sufficient to establish probable cause for the presence of a controlled substance." Diaz, 25 F.3d at 394. If the police have probable cause to search a lawfully stopped vehicle for contraband, then the police have probable cause to search every part of the vehicle and all containers found therein in which the object of the search could be hidden. United States v. Crotinger, 928 F.2d 203, 205 (6th Cir. 1991) (citing United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)). So Arrow's alert gave the officers probable cause to search the car and any containers capable of hiding drugs.

Permalink 01:27:53 pm, by fourth, 248 words, 2368 views   English (US)
Categories: General

CA10: Lack of state good faith exception irrelevant in a federal criminal case

Defendant’s search incident pre-Gant was valid under McCane and Davis, so the motion to suppress was properly denied. The fact state law had no good faith exception was irrelevant in a federal case. United States v. Madden, 682 F.3d 920 (10th Cir. 2012):

Madden argues the good-faith exception does not apply in this case for several reasons. He first asserts the search of his vehicle was not objectively reasonable because the state of Oklahoma does not recognize the good-faith exception and Officer Balderrama should have known that. Whether Oklahoma recognizes the good-faith exception, however, has no bearing on the outcome of this case. This court is not bound by a state court's interpretation of the Fourth Amendment. Wilder v. Turner, 490 F.3d 810, 814 (10th Cir. 2007). "[I]n federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal Law even though the police actions are those of state police officers." United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999) (quotations omitted). Whether an "arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended." Id. (quotation omitted).

In fact, the mere lack of a state good faith exception would be a good reason for the USAO to take a case. Quirks in state search and seizure law often lead to the "silver platter" giving the feds a search bad under state law but not federal law. Been there, done that.

Permalink 01:02:06 pm, by fourth, 133 words, 2314 views   English (US)
Categories: General

MN: Because of state definition of "public place," no RS for gun possession in one's own yard

Syllabus: “Because the Minnesota handgun statute that prohibits a person from carrying a handgun ‘in a public place’ defines ‘public place’ only as government land or as private land that is clearly dedicated to the public for public use, police officers do not have reasonable suspicion to detain a man merely on a report that he possesses a gun at a private residence and on their finding him walking from that residence into its front yard.” State v. Theng Yang, 814 N.W.2d 716 (Minn. App. 2012).

Defendant’s stop was factually based and valid without regard to pretext. Because the trial court’s suppression order was based on the finding of an illegal stop, the case is remanded for a determination of the independent basis for the inventory. People v. Vissarriagas, 2012 CO 48, 278 P.3d 915 (2012).*

Permalink 12:05:02 pm, by fourth, 436 words, 2176 views   English (US)
Categories: General

D.D.C.: Franks doesn't apply to facts of intent for crime, just PC

Defendant Somali alleged pirate’s Franks claim based on omission of exculpatory facts about his intent to aid the other pirates fails. Probable cause was shown with exculpatory facts, and his mens rea is fact for trial. United States v. Ali, 870 F. Supp. 2d 10 (D. D.C. 2012):

Ali's primary challenge to the sufficiency of the affidavits is born of the fact that he maintains a view of his role on the CEC Future that is completely at odds with the government's characterization of the evidence. Ali's chief defense at trial will be that he intended neither to conspire with, nor to aid and abet, the pirates. The government, on the other hand, argues that Ali had the requisite intent. The jury will make the ultimate determination of Ali's mens rea. But, in his motion to suppress, Ali presses a related argument. He claims that the affidavits underlying certain warrants omitted facts which he alleges show his innocent intent, and that these omissions entitle him to a Franks hearing.

In so arguing, however, Ali has confused the showing required of an affidavit—for probable cause—with that required of the government to prove his guilt. "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Gates, 462 U.S. at 245 n.13; see Jones, 362 U.S. at 270 (the "'difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search'" is "'large'" (quoting Brinegar v. United States, 338 U.S. 160, 172 (1949))). And "'[o]nce it is established that probable cause exists to believe a federal crime has been committed a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of evidence of the crime.'" Zurcher v. Stanford Daily, 436 U.S. 547, 558 (1978) (alteration in the original) (quoting United States v. Mfrs. Nat'l Bank of Detroit, 536 F.2d 699, 703 (6th Cir. 1976)).

While Ali maintains that his own involvement in the piracy of the CEC Future was not criminal, he does not contest that what occurred was a crime. Therefore, the only question is whether there was a "fair probability that contraband or evidence of [that] crime [would] be found in" the warrants' targets. Gates, 462 U.S. at 238; see Zurcher, 436 U.S. at 558; Mays, 134 F.3d at 814 ("[S]earch warrants are directed, not at persons, but at property where there is probable cause to believe that ... evidence of a crime will be found."). On these facts, Ali's intent was not relevant to the magistrates' determinations of probable cause.

Permalink 11:44:13 am, by fourth, 152 words, 445 views   English (US)
Categories: General

CA11: Unmistakable sound of operation of gun justified entry and sweep

The decision of the district court is affirmed based on credibility determinations. The police were investigating a home invasion robbery in Miami-Dade, and they exhausted all investigative leads, so they tried a knock-and-talk at the suspect's house. When his girlfriend answered the door, she was “very cooperative,” and she called for him. He appeared at the top of the stairs naked, and said he was getting dressed. He disappeared from sight, and the officers heard the metal sound of guns inside, so they barged in [my word] for safety. The entry was lawful, and the further consents were voluntary. United States v. Pupo-Reynaldo, 470 Fed. Appx. 873 (11th Cir. 2012).*

Defendant was sued for student loans and defended claiming the law violated the Fourth Amendment. “All of the arguments in defendant's filings are fanciful and/or incomprehensible.” Summary judgment for government granted. United States v. Dennis, 2012 U.S. Dist. LEXIS 84292 (E.D. N.Y. June 18, 2012).*


Permalink 10:42:18 am, by fourth, 162 words, 662 views   English (US)
Categories: General

WV: Stop for no passenger side mirror without legal basis

West Virginia law does not require two side mirrors, so the fact defendant’s car was missing the passenger side mirror was not cause for a stop, and it didn’t render the vehicle unsafe. Similar is State v. Reid, 722 S.E.2d 364 (Ga. App. 2012), where the vehicle had no side mirrors but Georgia law didn’t require them. State v. Dunbar, 2012 W. Va. LEXIS 307 (June 13, 2012).*

The USMJ erred in concluding that a U.S. MLAT request of the Netherlands to locate the defendant for an arrest led to a joint venture. On his own, the Netherlands police officer requested a wiretap warrant to locate defendant’s telephone. The U.S. had nothing to do with the wiretap request, so the product of that was not a joint venture. The fact the U.S. requested copies of tapes and transcripts that weren’t forwarded until after he was wasn’t important. United States v. Omar, 2012 U.S. Dist. LEXIS 83665 (D. Minn. June 18, 2012).

Permalink 10:13:54 am, by fourth, 294 words, 583 views   English (US)
Categories: General

E.D.Pa.: Search warrant's use of “including but not limited to” not per se a general search; it has to be read in context

Motion to suppress filed twelve days before trial and a month after the motions cutoff was clearly untimely and there is no good cause tendered for the delay. Nevertheless, the court will go to the merits [meaning: the court can rule against the defense anyway, so why leave this 2255 issue looming?]. “[I]ncluding but not limited to” in a search warrant with a specific list is not an authorization for a general search because it has to be read in context of what it connects to. Even so, the good faith exception applies. United States v. Staton, 2012 U.S. Dist. LEXIS 83933 (E.D. Pa. June 15, 2012):

Thus, general phrases in a warrant must be read in the context of the entire warrant and not in isolation. Andresen, 427 U.S. at 473; see also United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982) (noting that warrants must be read as a whole). Here, the phrase "including but not limited to," followed by the list of materials, certainly is not separate from the list of items to be searched and seized. Based upon a reasonable reading of the language, "including but not limited to" refers to and modifies the prior phrase "business records." If anything, the list of seven categories of materials, and specific examples, that follow define the term "business records" more narrowly and therefore limit, rather than expand, the scope of the searches. Accordingly, the three warrants at issue are not general warrants. See $92,422.57, 307 F.3d at 149 (holding that while the scope of the warrant at issue "was certainly extensive, the warrant was not general" since the warrant "'describ[ed] in ... inclusive generic terms what is to be seized'" and "did not vest the executing officers with 'unbridled discretion' to search for and seize whatever they wished"); ...


Permalink 02:28:58 pm, by fourth, 141 words, 617 views   English (US)
Categories: General "Racial Profiling as a Means of Thwarting the Alleged Latino Security Threat" Racial Profiling as a Means of Thwarting the Alleged Latino Security Threat - III. Fourth Amendment Constitutional Foundations for Racial Profiling by Lupe S. Salinas & Fernando Colon-Navarro:

III. Fourth Amendment Constitutional Foundations for Racial Profiling

A. Search and Seizure Jurisprudence

Unfortunately and surprisingly, the bases for America's racial and ethnic profiling problems can be traced to rulings issued by our Supreme Court. These rulings essentially and collectively state that an officer has a right to make a temporary detention based on reasonable suspicion or a traffic stop even if that stop was primarily for the basis of checking out possible criminal behavior for which the officer lacked reasonable suspicion or probable cause.

We begin first, however, with Terry v. Ohio, the landmark opinion, which created the reasonable suspicion exception to the probable cause standard of the Fourth Amendment. ...

Permalink 08:19:33 am, by fourth, 190 words, 559 views   English (US)
Categories: General

D.Minn.: Matching description of bank robber, wrapped money sticking out of pocket, GPS locator on him was RS

Matching the description of a bank robber just given by the tellers, wrapped and loose cash sticking out of pockets, and GPS transmitter located in the money locating him was reasonable suspicion. United States v. Johnson, 2012 U.S. Dist. LEXIS 83417 (D. Minn. May 23, 2012).* [Come on. If that's not, what is? In fact, this looks like probable cause to me.]

Defense counsel was not ineffective for conceding defendant had no standing in the house of another that he was briefly at before the search. There was nothing that supported his standing as a guest. State v. Brown, 2012 Ohio 2672, 2012 Ohio App. LEXIS 2355 (5th Dist. June 13, 2012).*

The warrant in a child pornography case sought “Written documents in communications with [E14] or describing the relationship with [E14], Computers and any other electronic devices used in the transmission of communication and solicitation of [E14], any electronic storage devices that may be used to store communications, ....” Seizure of a computer, camera, CDs, DVDs, and storage media were permitted, but male enhancement lotion was not. United States v. Young, 2012 U.S. Dist. LEXIS 83198 (D. Neb. June 15, 2012),* adopted in substantial part 2012 U.S. Dist. LEXIS 92048 (D. Neb. July 3, 2012).*

Permalink 07:50:38 am, by fourth, 201 words, 566 views   English (US)
Categories: General

W.D.Tex.: Fingerprint evidence as a result of an illegal seizure in an illegal re-entry case not suppressed

Fingerprint evidence as a result of an illegal seizure in an illegal re-entry case would not be suppressed. United States v. Lopez, 2012 U.S. Dist. LEXIS 83426 (W.D. Tex. June 15, 2012):

No such bright line exists in published case law explicitly preventing the suppression of fingerprint evidence gathered as part of an illegal seizure and arrest in the illegal re-entry context. However, in Roque-Villanueva, the Fifth Circuit held that, "[e]ven if the [d]efendant was illegally stopped, neither his identity nor his INS file [is] suppressible." 175 F.3d 345, 346 (5th Cir. 1999) (emphasis added); Scroggins, 599 F.3d at 450 (quoting the holding in Roque-Villanueva). In a number of unpublished Fifth Circuit opinions, panels have acknowledged that "identity" includes fingerprint evidence by, for example, concluding that "even if there was a Fourth Amendment violation, this [circuit] has held that evidence of identity, such as one's fingerprints and A-file, is not suppressible." United States v. Cervantes-Malagon, 2012 WL 13769, at *1 (5th Cir. Jan. 4, 2012) ...

The Court is persuaded by the reasoning in the foregoing authorities that, in the context of an illegal re-entry prosecution, even fingerprint evidence gathered following a Fourth Amendment violation is not subject to suppression when that evidence is used merely to establish a defendant's identity. ...

Permalink 12:20:12 am, by fourth, 674 words, 455 views   English (US)
Categories: General

TN: Stop of a vehicle after a report of a suspicious man while serial rapist was operating was with RS

Police were investigating a serial rapist who struck on rainy nights. An officer saw a Jeep parked in a likely neighborhood because of a report of a man in a ski mask, and he felt the hood which was warm. He noted the license number finding it didn't stay in the neighborhood, looked through the windows, and drove off. An hour later he saw the vehicle moving and stopped it, asking the driver about what he was doing in the neighborhood, and he noted the answer. He asked for consent which was denied, and he let the driver go. The next day, after a rape was reported, officers followed up on the story obtained from the stop and found it false. The stop was with reasonable suspicion. State v. Burdick, 2012 Tenn. Crim. App. LEXIS 396 (June 13, 2012):

We conclude that, under the totality of the circumstances, Officer Hamm had reasonable suspicion to stop the Defendant's Jeep. At the time of the stop, "The Wooded Rapist" was at large in the community. "The Wooded Rapist" had committed his rapes on rainy evenings in the Brentwood area. On the night of April 27, 2008, which was rainy, Officer Hamm responded to a call about a man wearing a ski mask and dark clothing in the area of Meadow Lake and Arnold Road. While patrolling that area, looking for something out of place, he noticed a gray Jeep parked on the side of the road. Upon approaching the vehicle, he found the hood of the vehicle warm. He ran the vehicle's tags and determined that it was registered to the Defendant, whose listed address was not in the subdivision. The officer left and returned an hour later, passing the Defendant driving the Jeep away from the Meadow Lake area. Officer Hamm initiated an investigatory traffic stop to identify the driver of the Jeep and determine if he was related to the call about the man in the ski mask. We conclude Officer Hamm had an articulable and reasonable suspicion that the vehicle, or its occupant, were subject to seizure for violation of the law.

We further conclude that Officer Hamm's stop of the Defendant did not exceed the proper parameters. The stop lasted between three and five minutes. The officer asked the Defendant if he had seen anything suspicious, and the Defendant responded negatively. The officer filled out a field interview card, and the Defendant offered the officer his phone number. The officer asked the Defendant why he was in the neighborhood, and the Defendant responded that he was there to visit a friend.

Does this case suggest a sliding scale of reasonable suspicion where the more serious the crime the lesser reasonable suspicion is required? If so, should that be permissible? Catching a serial rapist is certainly among the weightiest of government and public interests, as was preventing the armed robbery in Terry. Remember, that case also involved a frisk, not just a stop. Can it be said that comparing this case to a drug case where reasonable suspicion is the excuse for a stop, maybe this wouldn’t be reasonable suspicion for a stop? Well, you can’t compare this case to a drug case: Serial rapist on the loose striking on rainy nights; man with a ski mask seen in the neighborhood; a vehicle not belonging in the neighborhood is seen parked there, and it hadn’t been there long; stopping it to ask if the driver had seen anything suspicious, like the man in the ski mask, and asking for identification was not unreasonable. If defendant had been taken in on that, the discussion would be different. But, at the time of the stop, no rape had yet been reported, and he was let go in 3-5 minutes, getting only a name and why he was there. This was just good police work that fully respected the detainee's rights. It wasn't a stop on a pure hunch--it was because this car didn't come back as belonging in the neighborhood, and there was a report of a prowler.

Permalink 12:11:53 am, by fourth, 180 words, 532 views   English (US)
Categories: General

Cal.1: Stop of vehicle and occupants matching description of burglars was with RS

Defendants and their vehicle matched the description of people alleged to have stolen from open houses. They were found within 30 minutes of the initial dispatch in the same city in a distinctive vehicle. The stop was with reasonable suspicion, and they admitted then to having been at the open house in question. People v. Rangel, 206 Cal. App. 4th 1310, 142 Cal. Rptr. 3d 728 (1st Dist. 2012);* People v. Little, 206 Cal. App. 4th 1364, 142 Cal. Rptr. 3d 466 (4th Dist. 2012).*

Claimant’s money was seized after a valid consent, and his testimony was found incredible on the consent issue. He was flagged by an Amtrak drug courier profile: one-way ticket bought just before departure for a sleeper car on somebody else’s credit card. United States v. Funds in the Amount of $239,400, 2012 U.S. Dist. LEXIS 82682 (N.D. Ill. June 5, 2012).*

In a forfeiture case, the government is not required to show probable cause or meet its ultimate trial burden. Therefore, claimant’s 12(b)(6) motion to dismiss is denied, and he must answer. United States v. $33,984.00 in United States Currency, 2012 U.S. Dist. LEXIS 83119 (D. Neb. June 14, 2012).*

Permalink 12:03:06 am, by fourth, 147 words, 495 views   English (US)
Categories: General

FL5 follows state precedent permitting SI of cell phone without cause

Following state precedent, the search incident of a cell phone without any reason to believe it contains evidence of a crime is sustained. The issue is certified to the Florida Supreme Court. State v. Glasco, 90 So. 3d 905 (Fla. 5th DCA 2012):

Pursuant to Fawdry [v. State, 70 So. 3d 626 (Fla. 1st DCA 2011)] and Smallwood [v. State, 61 So. 3d 448 (Fla. 1st DCA), review granted, 68 So. 3d 235 (Fla. 2011)], we reverse the order granting the motion to suppress and remand this case to the trial court for further proceedings. We certify to the Florida Supreme Court a question of great public importance similar to the questions certified in Fawdry and Smallwood:



Permalink 11:40:49 am, by fourth, 136 words, 529 views   English (US)
Categories: General "Unwarranted Intrusion" Unwarranted Intrusion / When it comes to wiretaps, the federal government's official policy is: "Trust us!" by J.D. Tuccille:

On June 11, Sen. Ron Wyden (D-Ore.) temporarily blocked the renewal of legislation that allows the U.S. government to listen in, without a warrant, on Americans' conversations, so long as they're chatting with overseas chums who are the official targets of the eavesdropping. In doing so, Wyden not only stood against a bipartisan cabal of snoopy legislative colleagues, but also against the White House, which wants the extension passed and is vigorously battling against constitutional challenges to such electronic eavesdropping. That may come as a bit of a surprise to anybody who remembers then-presidential candidate Barack Obama promising to end the use of warrantless wiretaps that were so popular under the George W. Bush administration.

Permalink 10:04:44 am, by fourth, 277 words, 472 views   English (US)
Categories: General

UT: Defendant was let go after a stop in a store, and his Catch-22 that if he went to his car he would be arrested is not the government's problem

Defendant and a companion were suspected of shoplifting in a Target store, and defendant was a suspected lookout for the other. Both had come and gone from the store repeatedly. When defendant was confronted in the store, there was reasonable suspicion, but he was frisked and told he was free to leave. The loss prevention people, however, were looking for the vehicle to see if shoplifted stuff was in it. Defendant was clearly free to leave, and his companion was already let go. “We acknowledge that this left Little in an unfortunate catch-22—if he stayed, the officers would ultimately discover the car; if he attempted to leave in the car, he would lead the officers to it; and if he left on foot, the officers would eventually find the car and arrest him later. However, this situation resulted from information the officers legally obtained in the course of the lawful investigatory detention, and the officers were not required to cease all investigation simply because they determined they could no longer legally detain Little.” So, there was a second encounter when he went to the car, and that didn't make the stop unreasonable. State v. Little, 710 Utah Adv. Rep. 58, 280 P.3d 1072 (2012).*

Catch-22 is the name of a novel. It should be capitalized, unless it is now in general use. Since copyrights are good for 70 years after the death of the author, I'd say not yet allowed for general use, but a lot of people do. Joseph Heller created it by his own genius. The value of the word and concept is undeniable, and I don't use it without thinking of the book, which I read twice in 1968.

Permalink 09:45:01 am, by fourth, 114 words, 424 views   English (US)
Categories: General

E.D.Tenn.: CI's falsity is not the affiant's under Franks

The informant’s false statement, comparing grand jury testimony with the affidavit for the search warrant, is not chargeable to the officer under Franks, so the motion is denied. United States v. Neal, 2012 U.S. Dist. LEXIS 81849 (E.D. Tenn. April 13, 2012).

A game warden received a call about unlawfully taking a deer by three people in a “whitish old Subaru car,” and that justified the stop when it was seen. United States v. Wilks, 2012 U.S. Dist. LEXIS 82165 (D. Mont. June 12, 2012).*

The USMJ’s findings of voluntary consent is adopted by the USDJ. There is no testimony except that the consent was voluntary. United States v. Talamante-Rodriguez, 2012 U.S. Dist. LEXIS 82009 (D. Ariz. June 12, 2012).*

Permalink 09:27:16 am, by fourth, 301 words, 516 views   English (US)
Categories: General

D.Me.: Multifaceted Franks challenge failed because none undermined PC; they could be questions for trial

Defendant was charged with internet stalking and identity theft for using a false name, and he raised a host of issues over the search warrants, all of which failed. The government did not violate curtilage by pulling into defendant’s driveway to view his house. The defendant lacks standing for the government’s viewing his neighbor’s wifi signal that defendant was accused of hacking. Defendant’s Franks issues are each an overstatement of the situation, and, even so, excluding what he complains of still leaves probable cause. “Most of the issues raised by the defendant are legitimate jury issues for the jury to consider in assessing whether or not the offender is guilty of the crime charged, but they do not meet the Franks standard for an evidentiary hearing on this warrant application.” None of the Franks challenges were material to the finding of probable cause. United States v. Sayer, 2012 U.S. Dist. LEXIS 82729 (D. Me. June 13, 2012).*

Moral here: Taking the court at face value, none of these Franks challenges were even close. Do you have the time to make a massive Franks challenge that's likely going to fail? Just because the client can pay enough fee to pursue it doesn't mean that you should. Put that time and energy into defending at trial. After all these years, my view of Franks has evolved into a rule of reason: Unless it just screams lie or negligent omission, you lose, so use it to attack the officer's credibility at trial, which is just what this court suggests, reading between the lines. But, even if it doesn't undermine the officer as an exaggeration, does it create a reasonable doubt?

Remember my Rule 1 of the Fourth Amendment: “There are no technicalities.” There used to be, but not anymore. Not in the last 20+ years.

Permalink 08:42:46 am, by fourth, 774 words, 1249 views   English (US)
Categories: General

W.D.Ky. provides good example of a defense failure of proof on guest standing

The defense failed to show guest standing at the hearing, and the court is left with speculation on critical facts. United States v. Wix, 2012 U.S. Dist. LEXIS 81871 (W.D. Ky. June 13, 2012)*:

In the context of guests in a residence, the Sixth Circuit has broadly interpreted the Fourth Amendment's protections. Overnight guests staying in a residence's common area have standing to challenge a police intrusion and search. See United States v. Pollard, 215 F.3d 643, 647 (6th Cir. 2000) (privacy interest existed for occasional overnight guest who was allowed to stay in residence alone and kept personal belongs in closet). Non-overnight guests have also been permitted to challenge the search of personal items kept in a third-party's residence. United States v. Washington, 573 F.3d 279, 283 (6th Cir. 2009) (citing United States v. Waller, 426 F.3d 838, 844 (6th Cir. 2005)). Suffice it to say, the appeals court has "generously" interpreted the reach of the Fourth Amendment as it pertains to temporary residents of a dwelling. See id.

Nevertheless, this generosity does not arise without some measure of proof by a defendant. Whether an informal sleeping arrangement creates a reasonable expectation of privacy naturally begets a fact-dominated inquiry for a court. Criminal defendants hoping to establish Fourth Amendment standing offer a variety of evidence to show a reasonable expectation of privacy. Factors that courts have considered include how often the defendant stayed in the dwelling, e.g., United States v. Love, 70 F.3d 116, at *4 [published in full-text format at 1995 U.S. App. LEXIS 35493] (6th Cir. 1995) (table) (defendant did not have expectation of privacy in mother's house as he was not an overnight guest and had moved out six months before the search), whether the defendant maintained personal belongings in the residence, e.g., United States v. Robertson, 297 F. App'x 722, 726 (10th Cir. 2008) (defendant had no reasonable expectation of privacy when hotel room was not registered in his name and "no personal items indicating an overnight stay were present"), whether the defendant provided any sort of remuneration for the privilege of staying there, e.g., United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998) (no expectation of privacy where defendant was squatting in building and did not pay rent to the owners of the structure), or whether the defendant could come and go freely, e.g., United States v. Davis, 932 F.2d 752, 756-57 (9th Cir. 1991) (where defendant had key to apartment, could come and go freely, and stored items in an apartment, he had a reasonable expectation of privacy).

Too many questions exist to accurately measure Defendants' legitimate expectation of privacy in the mobile home. How often did Defendants spend the night in the mobile home and on the Property? The Court cannot possibly measure with any accuracy the subjective statement of Dozier that Wix and she stayed there "a lot." When was the last time Dozier and Wix were guests in the mobile home? Dozier admitted during her testimony that she did not spend the previous night in the trailer and the Court does not have additional information on the subject. Did Defendants have permission to stay there from the owner, Clifford Wix? It may be safe to assume so, but no direct evidence on this point was presented during either hearing. Were there any personal belongings of Defendants in the mobile home? Dozier did not offer any proof on this matter and Wix's silence is impossible to measure. Were Defendants providing Clifford Wix some sort of compensation to stay in the mobile home? Again, there is a deficiency in the record on this issue. Did Defendants have a key to mobile home and could they come and go without first obtaining permission from Clifford Wix? No relevant information was offered in this regard. The only verifiable information about which the Court can be sure is Defendants did not own the mobile home and they did not stay there the night before the police raided the Property. 1 HR, DN 41 p. 9-10.

Defendants undoubtedly possessed some connection to the mobile home. However, "the act of staying overnight at a third party residence does not automatically entitle a defendant to the protections of the Fourth Amendment." United States v. Hunt, No. 2:07-CR-284-WKW, 2008 U.S. Dist. LEXIS 111768, 2008 WL 4080770, at *3 (M.D. Ala. Sept. 3, 2008). The evidence Defendants submitted to the Court falls short of establishing an expectation of privacy in the mobile home. For the Court to find otherwise would be to apply guesswork and conjecture to the present record. Accordingly, Defendants' motion to suppress is improper.

Standing is the defense burden, and they simply failed to adequately pursue it, maybe believing labeling the defendants as "guests" was enough to carry them through the hearing, but it's not.

Permalink 08:15:53 am, by fourth, 208 words, 539 views   English (US)
Categories: General

D.Md.: PC was shown for violations of Clean Water Act

In a mail fraud case for violations of the Clean Water Act, the search warrant for the business’s records was issued with probable cause: “Hailey's inconsistent statements and inability to identify or locate records of the sources of his vegetable oil donors, or the buyer of his equipment, and his provision of a photograph of another facility, ECF No. 62-1, showed that Hailey had probably issued RINs without producing bio-diesel, and fraudulently caused wire transfers. There was ‘a fair probability that contraband or evidence of a crime [would] be found’ in Hailey’s business records and in his home, office, and production facility.” United States v. Hailey, 2012 U.S. Dist. LEXIS 82053 (D. Md. June 13, 2012).* [If lack of probable cause is your only issue, you’re almost certainly going to lose. The threshold is just not that high, and a judicial finding of PC is almost unassailable.]

Defense counsel was hardly ineffective for not challenging the search and seizure in this case. The place searched was in “open fields,” a ditch near a road where drugs were hidden across the street. Besides, it’s almost a certainty he lacked standing to challenge the search at all. Nunn v. United States, 2012 U.S. Dist. LEXIS 81955 (M.D. Ala. May 29, 2012).*


Permalink 02:18:21 pm, by fourth, 186 words, 642 views   English (US)
Categories: General

D.Kan. erroneously shifts burden of proof to defendant to prove inventory unreasonable

The District of Kansas puts the burden on the defendant to prove that the inventory of his car was unlawful, when it was allegedly only parked, after his stop, more than 12" from the curb. No mention that the officer could not have pulled it over closer and left it. United States v. Calvin, 2012 U.S. Dist. LEXIS 83037 (D. Kan. June 15, 2012).* Shifting the burden:

The burden is on defendant to prove that the challenged search was illegal under the Fourth Amendment. United States v. Cooper, 654 F.3d 1104, 1124 (10th Cir. 2011). ...

... Further, defendant conceded that department towing policy required Officer Eckel to complete a full inventory search of the vehicle, including the glove compartment. Defendant has not provided any basis to suppress the evidence that resulted from the inventory search of his vehicle.

Maybe the defendant should have lost on the merits, but he at least could have had the correct burden of proof applied. If the court dealt with the merits appropriately, the analysis would be completely different. Really lame.

This was decided by a USDJ, not a Magistrate Judge, and it's just completely wrong in its approach.

Permalink 10:37:47 am, by fourth, 552 words, 614 views   English (US)
Categories: General

D.Mass.: All records warrant was not overbroad in eBay reselling fraud case

Defendant was suspected of running a reselling fraud on eBay, and a search warrant was obtained for all his records pertaining to interstate transportation of stolen property. The search warrant was sufficiently particular and not overbroad. United States v. Kuc, 2012 U.S. Dist. LEXIS 82398 (D. Mass. June 14, 2012):

1. The First Prong: Evidence of Other Contraband

The degree to which evidence of contraband is believed to be on the premises is largely connected to the pervasiveness of the illegal activity being investigated. ...

Pervasiveness for purposes of the first prong is not limited to large organizations or entities. United States v. Falon, 959 F.2d 1143, 1148 (1st Cir. 1992). Thus, in United States v. Morris, the First Circuit found that two illegal drug transactions at the same residential address gave the magistrate judge "sufficient evidence to believe that a large collection of similar contraband would be present in the premises that were to be searched pursuant to the warrant." 977 F.2d at 681.

2. The Second Prong: Distinguishing Contraband

As to the second prong, the principle that emerges from the First Circuit's caselaw is that a warrant is insufficiently particular if the suspected crime being investigated and leading to the warrant application was substantially narrower than the scope of the warrant that ultimately issued. For example, the First Circuit held in United States v. Roche that where an affidavit in support of the warrant application made clear that only motor vehicle insurance fraud was being investigated, a warrant that authorized the seizure of documents pertaining to all types of insurance was overbroad because it could have been more narrowly tailored to only authorize the seizure of documents pertaining to motor vehicle insurance. 614 F.2d 6, 7 (1st Cir. 1980). In other words, where there is "information available to the agents which could have served to narrow the scope of the warrant and protect the defendant['s] personal rights" but the information is either withheld from the magistrate or not included in the warrant, "the warrant [is] inadequate." Klein, 565 F.2d at 190.

But where the warrant's list of items to be seized is tailored to the specific crime being investigated, it will survive an overbreadth challenge under the second prong. For example, the First Circuit upheld a warrant against a particularity challenge where it provided for the seizure of all documents relating to a list of seventeen individuals that constituted evidence of the specific suspected crime of conspiring to defraud the Social Security Administration. United States v. Bithoney, 631 F.2d 1, 2 (1st Cir. 1980).

Even a broad search warrant authorizing the seizure of all of a business's records may be sufficiently particular if the fraud alleged is pervasive such that most, if not all, of the business is suspected of being linked to a mail and wire fraud scheme. This is intimately connected to the scope of the fraud which factors heavily into the first prong analysis. See Brien, 617 F.2d at 306-08. In Brien, as noted above, affidavits submitted with the warrant application demonstrated that the fraud in the business was pervasive. The First Circuit held that "where there ... exists a pervasive scheme to defraud, all the business records of an enterprise may be seized, if they are, as here, accurately described so that the executing officers have no need to exercise their own judgment as to what should be seized." Id. at 309 (emphasis added).

Permalink 10:21:48 am, by fourth, 178 words, 471 views   English (US)
Categories: General

OH2: Search for crack not justified by plain feel

Defendant was stopped for jaywalking and he admitted having marijuana which was produced. The officer conducted a patdown and felt something that was indiscernible, but was clearly not a weapon. A search produced crack, and the search was unjustified. The defendant had been stopped the day before by the same officer and apparently endured the same search. State v. Byrd, 2012 Ohio 2659, 2012 Ohio App. LEXIS 2336 (2d Dist. June 15, 2012).*

Defendant lost suppression motion apparently because she thought the state had to justify the seizure of every item in the search warrant. It was seizure under a warrant, and the defense had the burden. State v. Crumpler, 2012 Ohio 2601, 2012 Ohio App. LEXIS 2288 (9th Dist. June 13, 2012).*

Defendant’s vehicle was properly ordered towed where it was left blocking in a private business’s driveway. State v. Neal, 2012 Ohio 2609; 2012 Ohio App. LEXIS 2295 (9th Dist. June 13, 2012).*

A DV report described a suspect with a black shirt with skulls on it. Defendant was the only one around with skulls on it, so the stop was valid. State v. Will, 2012 Ohio 2616, 2012 Ohio App. LEXIS 2300 (9th Dist. June 13, 2012).*

Permalink 10:06:16 am, by fourth, 118 words, 379 views   English (US)
Categories: General

CA6: “Good to go” but followed by questions led to effective consent

“Good to go” of a stopped motorist but followed by questions led to effective consent. United States v. Rodriguez, 485 Fed. Appx. 16 (6th Cir. 2012):

At the end of the discussion, Diggs told Rodriguez that he was "good to go." Immediately after making that statement, however, Diggs said, "Let me ask you something," and proceeded to ask Rodriguez additional questions about his travel plans, as well as questions about his arrest history and whether there was anything illegal in his van. After approximately four minutes of questioning, Diggs asked Rodriguez for permission to search his van, and Rodriguez consented. Ultimately, law enforcement officers recovered two kilograms of heroin and ten kilograms of cocaine from a hidden compartment in the van.

Permalink 08:31:42 am, by fourth, 273 words, 724 views   English (US)
Categories: General

TN: Entry into backyard and deck violated curtilage

Officers responding to an anonymous shots fired call entered defendant’s backyard and found him on his deck. The search of his bag violated the Fourth Amendment and Tennessee Constitution because the officers entered the curtilage without exigent circumstances. State v. Anderson, 2012 Tenn. Crim. App. LEXIS 385 (June 12, 2012):

Anderson's deck was plainly within the curtilage of his home for the purposes of both the Fourth Amendment and article I, section 7. Considering the Fourth Amendment test, the deck was immediately attached to the house, and a back door opened to it. Although the area was not included within an enclosure, it was largely surrounded by trees. A grill was on the deck, indicating that Anderson used the area for cooking. The many toys indicate that young children used the area to play. Roberson's testimony indicates that Anderson used the area to relax and entertain guests. Additionally, the area was behind the house and not visible to passers-by on the road. All these factors support the conclusion that the deck was intimately tied to the home, and the deck, therefore, is protected under the Fourth Amendment. Cf. Hardesty v. Hamburg Twp., 461 F.3d 646, 652 (6th Cir. 2006) (finding rear deck to be protected curtilage under similar facts). Furthermore, this same evidence, particularly the nature of the activities that occurred on the deck, demonstrates that the deck was an area to which the activity of home life extended. Consequently, Anderson also enjoyed the protection of article I, section 7 of the Tennessee Constitution while on his deck. Because the deputies intruded on this constitutionally protected area without a warrant, they violated the mandates of the United States and Tennessee Constitutions.

Permalink 07:44:28 am, by fourth, 149 words, 424 views   English (US)
Categories: General

WI: Identified CI with corroborated info could be relied upon for stop

This investigation started with an anonymous informant, but the police then received information from an identified informant who gave predictive information that panned out. The police could rely on that information and it gave cause for a stop when defendant was leaving a supposed drug deal. State v. Miller, 2012 WI 61, 341 Wis. 2d 307, 815 N.W.2d 349 (2012).*

Plaintiff pled to DUI and he was awaiting placement in an alcohol program. Despite the court order, officers went to his house and arrested him and held him for a month without a valid court order. The district court failed to conduct a proper qualified immunity analysis, so the judgment is vacated and remanded. Handt v. Lynch, 681 F.3d 939 (8th Cir. 2012).*

When the challenged evidence was never offered to the finder of fact, there is no search and seizure question for the appellate court to decide. Fuller v. State, 2012 Tenn. Crim. App. LEXIS 381 (June 12, 2012).

Permalink 07:05:07 am, by fourth, 217 words, 507 views   English (US)
Categories: General

MN: Individual PC not required for a rental property inspection administrative warrant

Issue: “Should Article 1, Section 10, of the Minnesota Constitution be interpreted to require individualized probable cause of a code violation in a particular building, as a prerequisite to the issuance of an administrative search warrant, even though that position was rejected by the United States Supreme Court when it interpreted the Fourth Amendment of the United States Constitution 45 years ago?”

Syllabus: “Under Camara v. Mun. Ct., 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), reasonable inspections of rental property, conducted pursuant to warrants issued after a balancing of the need to protect public health and safety against the degree of intrusion upon privacy interests, may be permissible under the Fourth Amendment, even without a showing of individualized probable cause to believe that a particular dwelling is in violation of minimum standards prescribed by a building or safety code. A challenged Minnesota municipal ordinance that (a) requires advance notice to property owners and tenants; (b) limits inspections to ordinary business hours; (c) imposes restrictions on the scope of inspections; (d) prohibits the disclosure of information to law enforcement agencies unless an exception applies; and (e) requires a showing of reasonableness to obtain a warrant from a judicial officer is not facially invalid under Article 1, Section 10 of the Minnesota Constitution.” McCaughtry v. City of Red Wing, 816 N.W.2d 636 (Minn. App. 2012).


Permalink 05:17:38 pm, by fourth, 142 words, 361 views   English (US)
Categories: General "An Eye Without an 'I': Justice and the Rise of Automated Surveillance" An Eye Without an 'I': Justice and the Rise of Automated Surveillance by Ross Andersen:

Over the past decade, video surveillance has exploded. In many cities, we might as well have drones hovering overhead, given how closely we're being watched, perpetually, by the thousands of cameras perched on buildings. So far, people's inability to watch the millions of hours of video had limited its uses. But video is data and computers are being set to work mining that information on behalf of governments and anyone else who can afford the software. And this kind of automated surveillance is only going to get more sophisticated as a result of new technologies like iris scanners and gait analysis.

Yet little thought has been given to the ethics of perpetually recording vast swaths of the world. What, exactly, are we getting ourselves into?

Permalink 09:51:56 am, by fourth, 285 words, 512 views   English (US)
Categories: General

NJ: Auto exception search at police station after vehicle was removed was not unreasonable

The fact that a search under the automobile exception happened at the police station after the vehicle was removed was not unreasonable under the circumstances. "'[T]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" State v. Minitee, 210 N.J. 307, 44 A.3d 1100 (2012):

Moreover, we do not consider it fatal to the validity of this search that by the time it took place the vehicle had been at police headquarters for some period of time. The difficulties the police faced were exacerbated by the multiple sites that had to be carefully examined for clues with respect to the identity of the perpetrators, the critical need to locate the handgun Baldwin told the police he had discarded when he was on the run, as well as by the fact that the events were not unfolding during normal business hours but, rather, close to midnight and the hours beyond in the dead of winter. The confluence of those multiple factors lead us to conclude that the actions of the police were reasonable under the circumstances. "'[T]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" State v. O'Donnell, 203 N.J. 160, 162 (2010) (quoting State v. Bogan, 200 N.J. 61, 81 (2009)). It is only searches that are objectively unreasonable that run afoul of constitutional principles. State v. O'Hagen, 380 N.J. Super. 133, 141 (App. Div. 2005), aff'd, 189 N.J. 140 (2007) (upholding requirement that upon conviction defendant provide a DNA sample). Nothing within Pena-Flores would lead us to conclude that the search of this vehicle was objectively unreasonable in the totality of the circumstances.

Permalink 08:44:35 am, by fourth, 188 words, 483 views   English (US)
Categories: General

IN: Retaining defendant's drivers license meant he wasn't free to leave

Retaining defendant’s drivers license while asking pointed questions about potentially illegal conduct was a seizure because the defendant would not feel free to go. State v. Scott, 966 N.E.2d 85 (Ind. App. March 1, 2012), ordered published March 16, 2012.

Defendants failed to make a substantial preliminary showing of material falsity to get a Franks hearing. United States v. Neal, 2012 U.S. Dist. LEXIS 81849 (E.D. Tenn. April 13, 2012).*

The district court concluded that defendant’s rationale for consenting was that he hoped that the police wouldn’t find what they were looking for, but they did. That was a reasonable interpretation of the facts supported by the evidence. “That was a rational gamble, but one that Welch lost. Welch's consent was not coerced, just constrained, by having to place his bet on one of two poor alternatives. Maybe if he let them in, the police would want to get the search done quickly and fail to find his contraband. Or maybe if he put them to the trouble of getting a search warrant, they would search more thoroughly because he had inconvenienced them.” United States v. Welch, 683 F.3d 1304 (11th Cir. 2012).*

Permalink 08:21:55 am, by fourth, 170 words, 432 views   English (US)
Categories: General

W.D.N.Y.: One has standing to challenge a search of stuff left with another during incarceration

Defendant left property with another while he was incarcerated. This was not formalized, but it was a relationship that was more than just a subjective expectation of privacy. Contrary to the government’s argument, it was not precipitous, like the cases where the defendant gave drugs to somebody to store just before the police arrived. Accordingly, the court will get to the merits of the search claim, and the government is ordered to respond. United States v. Eldridge, 2012 U.S. Dist. LEXIS 81442 (W.D. N.Y. June 12, 2012).*

Defendant’s IAC claim against defense counsel for not filing a motion to suppress is denied because the guilty plea expressly waived it. United States v. Ortiz, 2012 U.S. Dist. LEXIS 81137 (S.D. Tex. June 12, 2012).*

Defendant was stopped for alleged DUI, and made to go through a field sobriety test. She was tested for alcohol and drugs. A jury question remained on whether the officer just made it up to justify the stop. Green v. Throckmorton, 681 F.3d 853, 2012 FED App. 0175P (6th Cir. 2012).*

Permalink 08:13:18 am, by fourth, 267 words, 458 views   English (US)
Categories: General

W.D.Ky.: Example of defense failure to show guest standing

Guest standing here is speculative without a better showing by the defense. United States v. Wix, 2012 U.S. Dist. LEXIS 81871 (W.D. Ky. June 13, 2012)*:

Too many questions exist to accurately measure Defendants' legitimate expectation of privacy in the mobile home. How often did Defendants spend the night in the mobile home and on the Property? The Court cannot possibly measure with any accuracy the subjective statement of Dozier that Wix and she stayed there "a lot." When was the last time Dozier and Wix were guests in the mobile home? Dozier admitted during her testimony that she did not spend the previous night in the trailer and the Court does not have additional information on the subject. Did Defendants have permission to stay there from the owner, Clifford Wix? It may be safe to assume so, but no direct evidence on this point was presented during either hearing. Were there any personal belongings of Defendants in the mobile home? Dozier did not offer any proof on this matter and Wix's silence is impossible to measure. Were Defendants providing Clifford Wix some sort of compensation to stay in the mobile home? Again, there is a deficiency in the record on this issue. Did Defendants have a key to mobile home and could they come and go without first obtaining permission from Clifford Wix? No relevant information was offered in this regard. The only verifiable information about which the Court can be sure is Defendants did not own the mobile home and they did not stay there the night before the police raided the Property. 1 HR, DN 41 p. 9-10.


Permalink 04:55:17 pm, by fourth, 262 words, 521 views   English (US)
Categories: General

CA5: Use of “electronic memory devices” not overbroad and was limited by the subject matter of the search warrant

The use of “electronic devices” and “electronic memory devices” in the search warrant was not overbroad because it had to be interpreted in terms of the last limiting phrase, to locate an alleged missing person. Child pornography was found. United States v. Triplett, 684 F.3d 500 (5th Cir. 2012):

Triplett lists some of the wide variety of devices with electronic memories. He argues that the warrant description was overbroad. We find limiting guidance for the officers in the warrant. It stated that the objects were relevant "to locate Kaila Morris," informing the officers that the proper electronic memory devices were those on which information on her location could be preserved. The arguably vague terms were among a list of other items to be seized described in greater detail. The warrant called for the seizure of "all articles of clothing of Kaila Morris, bed sheets, electronic devices, electronic memory devices, cell phone, DNA, hand digging and cutting tools, vehicles, and utility vehicles." See 2 LaFave, Search and Seizure § 4.6(d), at 628 (4th ed. 2004) (noting that a general reference "at the end of a list of specific items may be upheld on the theory that the language of a warrant is to be construed in light of an illustrative list of seizable items" (quotation marks and citation omitted)). The list was of evidence likely in Triplett's possession and relevant to his interactions with Kaila Morris, who had just been reported missing. See United States v. Hibbard, 963 F.2d 1100, 1102 (8th Cir. 1992) (finding enough particularity when warrant "limited the search to locating Shelly Ramsey or any evidence relating to her").


Permalink 02:25:19 pm, by fourth, 128 words, 344 views   English (US)
Categories: General "Judge Orders DA to Give Lawyer Copies of Documents Seized in Police Raid of His Law Office" Judge Orders DA to Give Lawyer Copies of Documents Seized in Police Raid of His Law Office by Martha Neil:

A state-court judge has ordered the local district attorney's office to provide to a New York lawyer copies of all documents seized during a police raid last week of his law office.

Ezequiel Neuman, 51, doesn't know what his court schedule is because his calendar was seized, defense attorney Edward Menkin told Onondaga County Judge Anthony Aloi. He ordered that copies of the documents be provided to Neuman during a ruling from the bench on Tuesday morning, the Post-Standard reports.

Neuman was arrested last week on a felony charge of bribing a witness. He is accused of offering a client $50,000 not to testify in a murder case.

Permalink 12:31:53 pm, by fourth, 225 words, 334 views   English (US)
Categories: General "Bill proposes to protect Americans' privacy from warrantless drone surveillance" Bill proposes to protect Americans' privacy from warrantless drone surveillance by Ms. Smith:

Didn't hear anyone yell "Fore," yet wonder if that is a golf ball in the sky? It's not; it's a drone and it's coming. Judge Andrew P. Napolitano warned about the "coming use of drones - some as small as golf balls - to watch us, listen to us and record us. Did you consent to the government having that power? Did you consent to the American military spying on Americans in America? I don't know a single person who has, but I know only a few who are complaining."

Although Secrecy News reported the Senate Armed Services Committee said drones need to operate 'freely and routinely' in America, you can add Senator Rand Paul to that "few" who are raising a ruckus about drones. Senator Paul proposed a bill to prevent warrantless drone surveillance. He said, "The Preserving Freedom from Unwarranted Surveillance Act of 2012 will protect American's personal privacy. Like other tools used to collect information in law enforcement, in order to use drones a warrant needs to be issued. Americans going about their everyday lives should not be treated like criminals or terrorists and have their rights infringed upon by military tactics."

"A drone is a very, very powerful way of snooping on behavior," Sen. Paul told CNN.

Permalink 12:21:37 pm, by fourth, 98 words, 360 views   English (US)
Categories: General "Feds Raid Utah Law Offices in Probe of Loan Modification Work" Feds Raid Utah Law Offices in Probe of Loan Modification Work by Martha Neil:

Multiple federal agencies including the FBI, IRS and the office of the inspector general for the Troubled Asset Relief Program raided three offices affiliated with a Utah law firm Tuesday.

The U.S. Attorney's office in Utah confirmed the raid on the CC Brown Law Office in Midvale and West Valley City, in cooperation with local authorities, but said the search warrant is sealed and no criminal charges have been filed, according to a local ABC News affiliate and Salt Lake Tribune.

Permalink 09:26:21 am, by fourth, 213 words, 757 views   English (US)
Categories: General

MO: High crime area, eye contact, furtive movement RS

Driving in a high crime area, eye contact with officer, and furtive movement like toward a gun was reasonable suspicion. State v. Norfolk, 366 S.W.3d 528 (Mo. 2012).*

The district court’s verdict in a bench trial, inter alia, that subpoenaing records of cell phone calls was reasonable was affirmed on credibility of witnesses. Cunningham v. Terrebonne Parish Consol. Gov't, 478 Fed. Appx. 230 (5th Cir. 2012).*

“While the fact that Whisnant did not understand he could refuse consent to search is a factor to consider in determining whether consent was voluntary, police do not have to inform an individual of his right to refuse to consent to a search. ... Likewise, when requesting an individual's consent to search a vehicle, police are not required to inform the individual that others could object to the search. Nor are police required to obtain the consent of all the occupants of a vehicle in order to search it. ... In this case, the alleged consenter himself testified repeatedly that he consented to the search and never testified that he felt coerced into doing so by the factors cited by Collins or by any other factors. Accordingly, the district court did not clearly err in finding that Whisnant's consent was valid.” United States v. Collins, 683 F.3d 697, 2012 FED App. 0173P (6th Cir. 2012).*

Permalink 08:36:59 am, by fourth, 202 words, 342 views   English (US)
Categories: General

S.D.Tex.: Merely alleging there was a basis for a suppression motion isn't enough for IAC

Merely alleging there was a basis for a suppression motion that was not filed does not allege IAC under Strickland. United States v. Action, 2012 U.S. Dist. LEXIS 81137 (S.D. Tex. June 12, 2012):

[B]y arguing that "there was a sufficient basis to file a motion to suppress," and that the defense "had nothing to lose and everything to gain" by filing the motion, Defendant does not establish ineffective assistance of counsel. Defendant must do more than allege there were grounds for filing the motion; he must prove that the motion would have been granted. He must move beyond asserting that there was no downside to filing the motion; he must establish a reasonable probability that, but for counsel's failure to file the motion, the result of his proceeding would have been different.

Defendant’s repeated refusal to remove his hands from his pockets during a traffic stop became reasonable suspicion. United States v. Fletcher, 2012 U.S. Dist. LEXIS 79795 (M.D. Tenn. June 8, 2012).*

When defendant’s DL was called in, there was a note to call his federal PO, which happened. That did not unreasonably extend the length of the stop. United States v. Campbell, 2012 U.S. Dist. LEXIS 81083 (E.D. Tenn. May 22, 2012).*

Permalink 08:06:26 am, by fourth, 288 words, 503 views   English (US)
Categories: General

D.Utah: Inventory was pretext; tow of vehicle occurred without reason

The excuse for stopping the defendant was that the license plate looked counterfeit, but it was apparent that it was not, and the reason for the stop thus evaporated. There is no law prohibiting a driver from using the roads of this country with a Mexican driver’s license. The officer called for a tow truck without any reason, and then conducted a rummaging search that was a purported inventory. The government’s failure to raise standing until the suppression hearing was waiver of the issue because it prejudiced defendant’s ability to prove standing. United States v. Garcia-Medina, 2012 U.S. Dist. LEXIS 80620 (D. Utah June 8, 2012):

It is well-established that an inventory search may not be used as a ruse for a general search. Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990) ("Our view that standardized criteria or established routine must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.") (internal citations omitted). ...

Here, Trooper Sheets did not write anything down. He was not methodical in his search. He was tapping and rummaging, looking for something hidden. He called for a drug-sniffing dog without any basis for suspecting that drugs were present. And he made that request almost immediately after he requested the tow truck, even though at that point in the stop he had not asked Mr. Garcia-Medina questions to dispel his concerns about the driver's license, Mr. Garcia-Medina's residency in Arizona, or anything else of substance. The court finds that the purported inventory search was a pretext for investigating criminal activity and so it violated Mr. Garcia-Medina's Fourth Amendment rights.


Permalink 02:58:08 pm, by fourth, 205 words, 553 views   English (US)
Categories: General

Reason Magazine: "Public Defender in GA: Cops Can't Use Thermal Images of Possible Grow Lights For Search Warrants"

Thermal imaging neighborhoods: Reason Magazine: Public Defender in GA: Cops Can't Use Thermal Images of Possible Grow Lights For Search Warrants by Matthew Feeney:

A public defender in Georgia is hoping to have his client's case dismissed by a Georgia Superior Court after claiming that evidence against his client was illegally obtained. James Brundgie has been charged with the manufacture of marijuana, possession with intent to distribute, and possession of a controlled substance after a judge approved a warrant to search his property after thermal imaging detected a 'hot spot' in his garage. If the search warrant is upheld it will be a worrying precedent to set as police forces and other agencies will be able to justify thermal imaging of entire neighborhoods in search of similar 'hot spots'.

The public defender, Benjamin Pearlman, is rightly arguing that the warrant should never have been issued as Georgia law states that a warrant may not be issued 'for anything other than physical, tangible evidence.' It is hard to see exactly how a thermal scan fits into the category of physical or tangible evidence.

While state law may say "tangible evidence," the Fourth Amendment is not so limited, so this is a state law argument only.

Permalink 08:28:59 am, by fourth, 247 words, 547 views   English (US)
Categories: General

WV: Exclusionary rule doesn't apply to DL revos or suspensions

The judicially-created exclusionary rule is not applicable in a civil, administrative driver's license revocation or suspension proceeding. Miller v. Toler, 729 S.E.2d 137 (W. Va. 2012).*

Defendant’s truck was under surveillance near the border with Mexico for 72 hours, and officers suspected drugs in an auxiliary fuel tank, which had become common at the time. All the factors involving this vehicle pointed to reasonable suspicion because of the suspicious activities with the truck of proximity to the border. The officers suspected that the vehicle could have been driven across the river at a shallow point. United States v. Mark, 481 Fed. Appx. 899 (5th Cir. 2012).*

On the totality, the officer had reasonable suspicion that defendant was carrying drugs in his car. [Note the court mentions consent was denied, but this is not mentioned later as a factor in reasonable suspicion.] State v. Smith, 373 S.W.3d 502 (Mo. App. 2012)*:

Here, Appellant was first legitimately stopped for two traffic violations. Already knowing that Appellant had just left a residence known for drug activity, Officer Buske first made contact with Appellant and was struck by Appellant's nervousness, sweating, and shaking. Further, he recognized Appellant from dealing with him on previous occasions and knew of his history of drug use and criminal activity. It was at this point that Officer Buske requested to search Appellant's vehicle and Appellant denied that request such that Officer Buske made the decision to request a police dog to sniff the vehicle which was done in an expeditious manner.

Permalink 07:47:38 am, by fourth, 155 words, 425 views   English (US)
Categories: General

OH10: Long protective weapons search of car permitted even if defendant in back of patrol car

Defendant’s conduct was suspicious enough to permit the officers to conduct a protective weapons sweep of his car for weapons, even though he was in the patrol car at the time. Long specifically permitted it. State v. Broughton, 2012 Ohio 2526, 969 N.E.2d 810 (10th Dist. 2012).*

Defendant’s hiding his hand during a traffic stop that would have made the officer fear he was going for a gun made it reasonable for the officer to pull his weapon and order defendant out. United States v. Bost, 2012 U.S. Dist. LEXIS 80523 (E.D. Tenn. May 3, 2012).*

The search warrant was for “53 West James Circle,” which ostensibly was a duplex, but further investigation had revealed that the duplex was being converted into one unit with one driveway, one water meter, finally learning that it had “a mother-in-law suite” accessible from the common area inside. The search warrant was valid and particular. Conrad v. State, 163 Ga. App. 146, 730 S.E.2d 7 (2012).*

Permalink 07:36:54 am, by fourth, 348 words, 379 views   English (US)
Categories: General

S.D.Miss. declines to find potential Florence exceptions “clearly established law”

Strip searches of everybody at the jail, even those not going into general population, might be unreasonable even under Florence which left that question open, but, for civil liability, the question is “clearly established law,” and it’s not. Wamble v. County of Jones, 2012 U.S. Dist. LEXIS 79969 (S.D. Miss. June 8, 2012)*:

In the wake of Florence, the central question is whether Merrill violated clearly established law by allegedly participating in the search of Wamble. Merrill argues that he could not have violated clearly established law because the Florence Court left "open the possibility of exceptions" to the blanket rule that newly arrested persons may be strip-searched without reasonable suspicion if they are going to be booked into the general population of a detention facility. Florence, 132 S. Ct. at 1523 (Roberts, J., concurring).

When there is an "open question" as to whether certain conduct is unconstitutional, the law cannot be considered clearly established. See Mitchell v. Forsyth, 472 U.S. 511, 535 (1985) (holding that defendant was entitled to qualified immunity because "[t]he decisive fact is not that Mitchell's position turned out to be incorrect, but that the question was open at the time he acted"); Shepard v. Ripperger, 57 Fed. App'x 270, 272 (8th Cir.2003) ("Because the legality of refusing to identify oneself to police is an open question, it is not clearly established law for the purpose of denying qualified immunity." (citations omitted)); Polk v. District of Columbia, 121 F. Supp. 2d 56, 70 -71 (D.D.C.,2000) ("In both Davis v. Scherer and Mitchell v. Forsyth, the Supreme Court's holdings that the law was not clearly established turned on the fact that there was an 'open question' whether the Constitution outlawed the conduct at issue." (citations omitted)).

Thus, "[g]iven the Supreme Court's express reservation of the question of whether" detainees who are not going to be held overnight in a cell with other inmates may be strip-searched without a reasonable suspicion, the "contours" of Wamble's right to be free from unreasonable searches are "not sufficiently clear that the unlawfulness" of the search to which he was subjected would be "apparent" to all reasonable officials.

Permalink 06:43:50 am, by fourth, 350 words, 372 views   English (US)
Categories: General

WI: Suspicionless supervision search condition based on threats of violence was reasonable

A suspicionless supervision condition was imposed on defendant “based on the facts in this case—involving violence, threats, and a firearm.” Defendant threatened to hunt down and kill anybody involved in her conviction, and that threat made the suspicionless search condition reasonable. State v. Rowan, 2012 WI 60, 341 Wis. 2d 281, 814 N.W.2d 854 (2012):

[*18] We next turn to the second part of the test relating to the constitutionality of the condition of extended supervision, including persons released on community supervision such as probation and parole. We conclude that the condition is, under the circumstances presented here, reasonably related to Rowan's rehabilitation. A condition is reasonably related to a person's rehabilitation "if it assists the convicted individual in conforming his or her conduct to the law." It is also appropriate for circuit courts to consider an end result of encouraging lawful conduct, and thus increased protection of the public, when determining what individualized probation, extended supervision, or parole conditions are appropriate for a particular person. Unsurprisingly, public safety is often mentioned in connection with the goal of rehabilitation: decreased criminality and greater public safety are logically connected to successful rehabilitation efforts. The trial in this case included evidence of the defendant's repeated explicit threats to shoot law enforcement officers and medical professionals and their family members, as well as evidence of the handgun and ammunition recovered from her vehicle, where it had been unlawfully concealed. In light of the circumstances that resulted in her conviction for battery to a law enforcement officer, the condition at issue was reasonably related to Rowan's rehabilitation, because her diminished right to be free from search was designed to assist her in "conforming [her] conduct to the law" by recognizing that her prior criminal conduct demonstrated a pattern involving guns and violent threats. Giving her an increased incentive to refrain from possessing a gun again was reasonably related to her rehabilitation. It is clear that Rowan's successful rehabilitation would also serve the interest of public protection and safety.

Suspicionless condition of supervised release search was appropriate here. Blakney v. United States, 2012 U.S. Dist. LEXIS 79755 (D. S.D. June 8, 2012).*


Permalink 05:13:26 pm, by fourth, 83 words, 426 views   English (US)
Categories: General "Stop-and-Frisk Policy ‘Saves Lives,’ Mayor Tells Black Congregation" Stop-and-Frisk Policy ‘Saves Lives,’ Mayor Tells Black Congregation by Kate Taylor:

As criticism of the Police Department’s so-called stop-and-frisk policy grows louder, Mayor Michael R. Bloomberg took to the pulpit before a black congregation in Brooklyn on Sunday to make his most forceful and nuanced defense of the practice yet, arguing that it had helped make New York the safest big city in the country, while acknowledging that the police needed to treat those whom they stopped with greater respect.

Permalink 08:44:59 am, by fourth, 362 words, 591 views   English (US)
Categories: General

FL2: Defendant agreed to a knock-and-talk at his gate, but the officers' coming inside violated consent and the curtilage

Defendant agreed to a knock-and-talk at his gate, and the officers’ insistence on coming inside violated the curtilage and the scope of consent. Ferrer v. State, 113 So. 3d 860 (Fla. 2d DCA 2012):

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

Permalink 08:17:23 am, by fourth, 174 words, 349 views   English (US)
Categories: General

D.Minn.: Dropping gun when shot at during flight was not a seizure

Defendant’s flight from the officer who was attempting to seize him for a minor offense was a new crime to which the exclusionary rule did not apply. His dropping his gun when shot at was still abandonment under Hodari D. United States v. Gant, 2012 U.S. Dist. LEXIS 78853 (D. Minn. June 7, 2012), R&R 2012 U.S. Dist. LEXIS 79269 (D. Minn. May 22, 2012).*

Probable cause developed to search defendant and his companion’s purse, and that provided probable cause to search the car they arrived in. The defendant admitted that the stop started with the officer quite respectfully offering assistance because they might be lost. One thing turned into another into another, and PC developed. [A new one on me: “motel drug interdiction duty” in North Carolina.] United States v. Laihben, 482 Fed. Appx. 827 (4th Cir. 2012).*

The stop here was not so long that the traffic stop was turned into a detention requiring reasonable suspicion. The passenger also had no standing in the vehicle. United States v. Santos, 2012 U.S. Dist. LEXIS 79252 (N.D. Ga. April 24, 2012).*

Permalink 08:05:01 am, by fourth, 315 words, 559 views   English (US)
Categories: General

MD: Knock-and-talk, entry, and seizure of premises while SW sought was not suppressed under inevitable discovery

Undercover officers used a man who didn’t know they were police to go to defendant’s house to buy drugs, which he did. When he got back to the car, he was arrested, and the officers went to the house to do a knock-and-talk, ultimately entering and doing a protective sweep and seizing the house pending investigation. In the meantime, another had gone to get a search warrant for the house. They had probable cause to get a search warrant before the protective sweep, and suppression was not ordered because of the inevitable discovery doctrine even though the view of drugs during the protective sweep made it into the search warrant application. Kamara v. State, 205 Md. App. 607, 45 A.3d 948 (2012):

Thus, the issue here is whether the later search pursuant to the warrant was genuinely independent of the earlier observation of the marijuana in the house. The Court in Murray gave guidance on how to assess this issue. It noted two situations in which the evidence would not be deemed to be obtained by independent lawful means: (1) where the officer's "decision to seek the warrant was prompted by what they had seen during the initial entry"; and (2) where "information obtained during that entry was presented to the [judge] and affected his decision to issue the warrant." Id.

In the present case, neither of these situations are present. The evidence here established that the police planned to get a warrant prior to the protective sweep or the discovery of any contraband. Detective Oaks testified that, when Sergeant Carafano arrived at the house, he announced that the police were going to detain appellant while they sought a search warrant. Appellant was then handcuffed and detained, and two officers conducted the protective sweep. The uncontradicted evidence shows that the decision to seek the search warrant was not prompted by what the officers saw during the initial protective sweep.

Permalink 07:49:47 am, by fourth, 589 words, 375 views   English (US)
Categories: General

VI: Police had exigent circumstances but were delayed in finding the motel room defendant was in; once they had it, a warrantless entry was permitted

Defendant was suspected in the murder of his wife, and he was on the lam with their son. He was tracked to a hotel room that night, but the police waited until the next day to make an entry, which, of course, led to the argument that they had no exigent circumstances. The court finds that they had probable cause to believe that defendant was involved in the murder and the son was likely a witness. And, with probable cause, he could be arrested without a warrant under VI law and the Fourth Amendment. However, the police knew he was at the hotel but not the room, and there was nobody to ask, and that’s why they waited until morning. If they could have isolated the room, then they could have gotten an oral or telephonic warrant if necessary [n.13]. As soon as they had a room number, they went in. Nicholas v. People, 56 V.I. 718 (2012):

Here, the police clearly possessed exigent circumstances at the time they entered the hotel room. "Circumstances involving the protection of a child's welfare, even absent suspicions of criminal activity, may present an exigency permitting warrantless entry, but only if the officer reasonably believes that 'someone is in imminent danger.'" Ray v. Twp. of Warren, 626 F.3d 170, 177 (3d Cir. 2010) (quoting Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996)). At the time the police gathered the relevant information—that Nicholas was in Room 205 of the Bella Vista Hotel with his son—they had reason to believe that D.N. witnessed his mother's murder and may, in fact, have been the only eyewitness. (S.A. 144.) They knew that a gun was used in the killing but was not left at the crime scene. (S.A. 172.) The police had statements from neighbors establishing that Nicholas entered the apartment that morning. (S.A. 238.) Shortly after he entered, the neighbors heard the sound of a gunshot and a loud thump, and Nicholas was seen leaving the apartment in a hurry with his son. (S.A. 143, 144, 200; J.A. 113-15.) Although the police had no evidence that Nicholas ever threatened his son, they knew that he had both a motive and the opportunity to silence his son, the only likely eyewitness. Therefore, the police acted reasonably and the trial court correctly found that exigent circumstances justified the warrantless entry and search. See United States v. Thompson, 357 Fed. Appx. 406, 411 (3d Cir. 2009) (finding exigent circumstances where witnesses to a shoot-out saw a participant to the crime pull a child out of a bullet-ridden vehicle and enter an apartment); United States v. Parris, 229 Fed. Appx. 130, 135 (3d Cir. 2007) (determining that it was reasonable for police to enter a home without a warrant where a man who had been firing a weapon outside the house had entered the home, where children were inside and appeared afraid, and where the police could not see inside well enough to determine if anyone was injured or being held against their will); State v. Aviles, 891 A.2d 935, 945 (Conn. 2006) (concluding that police acted reasonably when they entered the room of someone suspected of having committed murder within the last twelve hours and where the murder weapon had not yet been recovered, because the assailant might still have possessed the gun and might still have been willing to use it); Columbus v. Montgomery, No. 09AP-537, 2011 WL 983080, at *10 (Ohio Ct. App. Mar. 22, 2011) (unpublished) (finding exigent circumstances where children may have been sexually abused and were inside an apartment, possibility with the alleged assailant, even though there was no evidence of ongoing violence).


Permalink 10:50:25 am, by fourth, 320 words, 318 views   English (US)
Categories: General

N.D.Ill.: Plaintiff was properly temporarily removed from a city council meeting when it was discovered he was armed

In a combined First and Fourth Amendment case, plaintiff was at a city council meeting to speak, and he was animated and concerned others when they determined he was armed. He was removed from the meeting, and it was determined that he was a law enforcement officer, so they let him back in. The decision to remove him was reasonable under the circumstances. Sandefur v. Hanover Park, 2012 U.S. Dist. LEXIS 79412 (N.D. Ill. June 7, 2012)*:

Here, the court finds it significant that the stop took place in the context of a Village Board meeting. The situation is thus somewhat different from a typical Terry stop of an individual on the street. In the public setting of a Village Board meeting, the potential consequences of failing to apprehend an individual about to commit a crime are significantly enhanced, for any criminal activity is a threat not only to the order of the meeting, but also to the safety of all present. A stop that would not be justified on the street might therefore be reasonable in the setting and circumstances of a public meeting.

With that backdrop, the court determines that there was reasonable suspicion to seize Sandefur at the meeting, take him to the hallway, and search him. As explained above, the defendants had observed that Sandefur was carrying a concealed weapon, and they were not aware that he was a law enforcement officer. Moreover, Sandefur was very animated as he addressed the Board. The defendants were thus justified in attempting to ascertain whether Sandefur was legitimately carrying the weapon. Moreover, the search was minimally intrusive, for it lasted no longer than necessary to ascertain that Sandefur was a law enforcement officer and involved only as much force as necessary to secure Sandefur and prevent any potential harm to the attendees of the meeting. Within only a few minutes of the commencement of the search, Sandefur was free to leave.

Permalink 10:38:40 am, by fourth, 140 words, 525 views   English (US)
Categories: General

N.D.Ga.: After consent search, officer explained that drug dog was needed, too, and defendant acquiesced in expanding consent

Defendant consented to a search that led the officer to determine that a dog sniff was required. He explained it to the defendant, and defendant’s acquiescence expanded the consent. The officer did not have to remove a duffle bag from the car before having the drug dog smell it. United States v. Hill, 2012 U.S. Dist. LEXIS 79250 (N.D. Ga. June 7, 2012).*

Plaintiff sufficiently pled trespass by border patrol officers coming on his property and assault and battery for nearly driving into him because he attempted to take their picture with his cell phone camera. Moher v. United States, 875 F. Supp. 2d 739 (W.D. Mich. 2012).*

Defendant was in custody, but the state can meet his heavy burden of showing consent without having Mirandized the defendant. People v. McCray, 2012 NY Slip Op 4579, 96 A.D.3d 1480, 946 N.Y.S.2d 744 (4th Dept. 2012).*

Permalink 10:05:32 am, by fourth, 148 words, 368 views   English (US)
Categories: General

CA9: Fact a state or local employee lacks statutory arrest authority has no bearing on the Fourth Amendment question of probable cause

In a § 1983 case, the fact a state or local employee lacks statutory arrest authority has no bearing on the Fourth Amendment question of probable cause. Saunders v. Silva, 473 Fed. Appx. 769 (9th Cir. 2012):

The district court found that Silva seized Saunders when he ordered her to leave church and return to her home. It further found that this seizure was unreasonable because Silva, as a Deputy Animal Control Officer within the Yavapai County Sheriff's Office, lacked the authority to conduct an arrest. Although Silva was not authorized under Arizona law to arrest Saunders, "state restrictions [on arrest authority] do not alter the Fourth Amendment's protections." Virginia v. Moore, 553 U.S. 164, 176 (2008). To constitute a Fourth Amendment violation, an arrest by a state officer must be unreasonable under the United States Constitution, rather than simply not in compliance with state laws. See United States v. Becerra-Garcia, 397 F.3d 1167, 1174-75 (9th Cir. 2005).


Permalink 12:44:14 pm, by fourth, 179 words, 422 views   English (US)
Categories: General

OH9: Knowledge of what police are looking for not required for consent

A suspect does not have a right to know what it is the police are looking for in a consent search, which is essentially his only issue for suppression. Here, defendant clearly consented by signing a consent form and even unlocked doors for the officers. He’s been through a police investigation before that was apparently fruitless and consented to a search there. State v. Chesrown, 2012 Ohio 2476, 2012 Ohio App. LEXIS 2175 (9th Dist. June 6, 2012).*

That defendant may have been injured in an accident did not affect the admissibility of the evidence in a DUI case by motion to suppress. That went to weight of the evidence. Even assuming the officers misstated their ability to force a blood draw, that does not require suppression of the search here. State v. Walters, 2012 Ohio 2429, 2012 Ohio App. LEXIS 2138 (9th Dist. June 4, 2012).*

While the officers never saw money change hands, they had probable cause to arrest defendant after months of investigation, wiretaps, and tailing the defendant on drug runs, always on a Sunday. United States v. Rucker, 2012 U.S. Dist. LEXIS 78323 (N.D. Fla. June 6, 2012).*

Permalink 12:31:39 pm, by fourth, 240 words, 452 views   English (US)
Categories: General

OH9: Wad of money not seizable under plain feel during patdown

A patdown that revealed a wad of money was not a valid plain feel because it should have been apparent that it was not a weapon. State v. Robinson, 2012 Ohio 2428, 2012 Ohio App. LEXIS 2137 (9th Dist. June 4, 2012):

[*P20] Here, the testimony is unclear as to whether the nature of the "wad of money" was apparent by touch during the Terry search, or whether the officer reasonably believed the "wad" in Robinson's pocket to be a weapon. Moreover, the record does not indicate that Officer McConnell at any point subjectively believed that the "wad" in Robinson's pocket was a weapon. Therefore, the seizure of the money from Robinson's pockets is not justified by the Terry search or the plain feel doctrine. See Maumee v. Weisner, 87 Ohio St.3d 295, 297, 1999 Ohio 68, 720 N.E.2d 507 (1999) ("Generally, at a suppression hearing, the state bears the burden of proving that a warrantless search or seizure meets Fourth Amendment standards of reasonableness.")

Plaintiff is a state prison inmate required under state law to give fingerprints for SORNA purposes, and he refused. He was placed in segregation for refusing, and a criminal investigation was opened by the State Police. He sued under § 1983, but he doesn’t state a claim for relief because the intrusion is minimal [not to mention that, as a prison inmate, his fingerprints are in multiple places and were likely taken when he got there]. Ford v. Curtin, 2012 U.S. Dist. LEXIS 79439 (W.D. Mich. June 8, 2012).*

Permalink 12:26:34 pm, by fourth, 193 words, 572 views   English (US)
Categories: General

CA6: Arrest warrant made officers lawfully in defendant's place under Payton for a plain view

Officers lawfully in defendant’s place with an arrest warrant saw a gun and ammunition in plain view, so the seizure was valid. United States v. Lyons, 488 Fed. Appx. 40 (6th Cir. 2012).*

Defendant argued that one question from the officer expanded the scope of a traffic stop. The court concludes, however, that his shaking and obvious nervousness and deflection when the question was asked was reasonable suspicion. One question could be enough, but not here. State v. Smith, 814 N.W.2d 346 (Minn. 2012)*:

[W]e conclude that Smith's extreme shaking and his evasive response when asked about his shaking provided the officers with reasonable, articulable suspicion sufficient to support an expansion of the traffic stop. In essence, because we conclude that the officers had reasonable, articulable suspicion to support the alleged expansion of the stop, we assume without deciding that Ehrhardt's question caused an incremental expansion in the scope of the traffic stop.1
1 We are not persuaded by the State's argument that a question cannot expand the scope of a traffic stop. Instead, we recognize that even a single question, depending on its content, could expand the scope of a traffic stop under other facts.

Permalink 12:16:45 pm, by fourth, 282 words, 384 views   English (US)
Categories: General

CADC: Forest Service failed to show "special needs" justifying random drug tests of JCCCC workers

The Secretary of Agriculture failed to show “special needs” for random drug testing of civilian employees of the Job Corps Civilian Conservation Centers of the U.S. Forest Service. The only evidence shows that there is no drug problem. Nat'l Fedn. of Fed. Employees-IAM v. Vilsack, 401 U.S. App. D.C. 152, 681 F.3d 483 (2012):

The National Federation of Federal Employees ("the Union") challenges the constitutionality of a random drug testing policy applicable to all employees working at Job Corps Civilian Conservation Centers operated by the U.S. Forest Service. The district court granted summary judgment in favor of the Secretary of Agriculture and the Chief of the U.S. Forest Service (hereinafter "the Secretary") and denied the Union's request for a preliminary injunction. Upon de novo review, we conclude that the Secretary has failed to demonstrate "special needs" rendering the Fourth Amendment requirement of individualized suspicion impractical in the context of Job Corps employment. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995); Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665-66 (1989). Although identifying governmental interests in the students' abstention from drug use and in their physical safety, the Secretary offered no foundation for concluding there is a serious drug problem among staff that threatens these interests and thus renders the requirement for individualized suspicion impractical. Rather, the Secretary's evidence to date suggests the contrary. Because the Secretary has offered a solution in search of a problem, the designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the "closely guarded category of constitutionally permissible suspicionless searches," Chandler v. Miller, 520 U.S. 305, 309 (1997). Accordingly, we reverse and remand the case for proceedings consistent with this opinion.

Permalink 11:41:47 am, by fourth, 268 words, 530 views   English (US)
Categories: General

The Week: "The drone over your backyard: A guide"

The Week: The drone over your backyard: A guide / U.S. skies are being opened to police and private drones. Will it be the end of privacy?

Drones are coming to the U.S.?

They're already here — and the drone era is just beginning. Predator drones — the same remote-controlled, camera-equipped aircraft used to hunt terrorists in Afghanistan and Pakistan — have been patrolling U.S. borders since 2005. Emergency responders have used smaller drones to search for missing persons and track forest fires, and police departments in Florida, Maryland, Texas, and Colorado are testing drones for surveillance and search-and-rescue missions. Last month, the Federal Aviation Administration, acting at the behest of Congress, relaxed the rules for deploying unmanned aerial vehicles. Police departments across the country can now fly drones weighing up to 25 pounds, as long as the aircraft stay within sight of the operator and fly no higher than 400 feet (so as not to get in the way of commercial aircraft). More rules easing restrictions on commercial drones are expected by 2015. By the end of the decade, the FAA expects 30,000 unmanned aerial vehicles — some as small as birds — to be peering down on American soil.

Why are they allowing more drones?
Law-enforcement officials love them. They believe the mobile, eye-in-the-sky technology will improve public safety at a low cost. With high-resolution cameras, drones can help police patrol large areas, spot runaway criminals, and track drug shipments. And since a small police drone with a camera can be purchased for around $50,000 (with some basic models costing as little as $300), they're far cheaper than standard helicopters, which can cost $1 million or more.

Permalink 12:09:24 am, by fourth, 199 words, 458 views   English (US)
Categories: General "The App That's Taking On The New York Police" The App That's Taking On The New York Police; The ACLU's new “Stop-and-Frisk Watch” app aims to help observers report and quantify stop-and-frisks. But can an app really change the police? by Rosie Gray & Matt Buchanan:

The New York branch of the ACLU has big dreams for the newest piece in its crusade against stop- and-frisk, the New York Police Department’s practice of stopping young men — nearly always men, and nearly always minorities — and frisking them on the street in public. The NYCLU’s “Stop and Frisk Watch,” a smartphone app designed to let observers record and report stop-and- frisks they see on the street, is a “free and innovative smart phone application that will empower New Yorkers to monitor police activity and hold the NYPD accountable,” per its description online.

The app is only on Android phones right now — with an iPhone version due later — in an effort to reach those who are regularly stopped-and- frisked. “We chose Android first because the demographic who gets stopped and frisked in New York City is the same demographic as who's on Android — 86 percent of people stopped are black or Latino,” NYCLU Communications Director Jen Carnig said.

Permalink 12:02:27 am, by fourth, 141 words, 376 views   English (US)
Categories: General

FBI Gets OK To Inspect Cop-Filmer’s Phone

New Haven Independent: FBI Gets OK To Inspect Cop-Filmer’s Phone by Paul Bass:

Federal agents will prepare a “mirror image” of Jennifer Gondola’s iPhone4 to see what happened on a violent night in the Temple Street courtyard.

Gondola’s attorney Friday faxed signed consent forms from Gondola to both the FBI and the New Haven police department’s internal affairs division giving them permission to review a video she shot on her cellphone camera before Sgt. Chris Rubino demanded she turn it over. Gondola refused and stashed the cellphone in her bra. Rubino ordered a female officer, Nikki Curry, to snatch the cellphone from Gondola’s bra. Then Rubino pocketed the phone and arrested Gondola for “interfering.”

The attorney, Diane Polan, also charged city police with violating her client’s Constitutional rights by grabbing her phone from her bra.


Permalink 03:53:18 pm, by fourth, 176 words, 548 views   English (US)
Categories: General

ABA: "The ESI Tsunami: A Comprehensive Discussion about Electronically Stored Information in Government Investigations and Criminal Cases"

Justin P. Murphy & Matthew A.S. Esworthy: The ESI Tsunami: A Comprehensive Discussion about Electronically Stored Information in Government Investigations and Criminal Cases, 27 Criminal Justice 31 (Spring 2012):

Dealing with electronically stored information (ESI), for clients, prosecutors, and defense attorneys, has steadily grown into a tsunami of cost and complexity—with little guidance provided by courts and none from the rules. Moreover, the paradigms developed in civil litigation to curb ESI discovery abuses are often not effective in the criminal system, due to the onesided nature of ESI burdens and demands in government investigations and criminal matters and the absence of costeffective methods sanctioned by courts to resolve criminal discovery disputes. The world of criminal e-discovery continues to evolve every day, particularly in the contexts of subpoena compliance, social media, Fourth Amendment issues, and postindictment discovery.

The article has helpful sections on:
• Subpoena Compliance,
• Social Media, the Internet, and Admissibility
• ESI and the Fourth Amendment
--CDT and the Ninth Circuit's standards
--Increasing judicial skepticism
--Warrantless searches of cellular telephones
--Warrantless use of GPS tracking devices
• Postindictment Discovery

Permalink 08:19:43 am, by fourth, 520 words, 534 views   English (US)
Categories: General

CO: Search incident of the call log of defendant’s cell phone was valid

Search incident of the call log of defendant’s cell phone was valid. (Maybe that's all that's subject to search incident.) People v. Taylor, 2012 COA 91, 296 P.3d 317 (2012):

=> Read more!

Permalink 07:55:33 am, by fourth, 123 words, 397 views   English (US)
Categories: General

Cal.1: Improperly seized evidence excluded in criminal case still admissible in probation revo

The search of defendant’s purse violated the Fourth Amendment, and it was excluded in her criminal case, but that did not make it excludable in her probation revocation proceeding. People v. Lazlo, 206 Cal. App. 4th 1063, 206 Cal. App. 4th 1063 (1st Dist. 2012):

[T]he exclusionary rule does not apply in probation revocation hearings, unless the police conduct at issue shocks the conscience. (See, e.g., United States v. Vandemark (9th Cir. 1975) 522 F.2d 1019, 1020 [“[t]his accords with the almost unanimous view that the exclusionary rule does not usually apply in probation revocation proceedings”]; People v. Harrison (1988) 199 Cal.App.3d 803, 811 [245 Cal. Rptr. 204] (Harrison) [“federal law does not require application of the exclusionary rule to probation revocation hearings”]; People v. Nixon (1982) 131 Cal.App.3d 687, 691, 693–694 [183 Cal. Rptr. 878].)

Permalink 07:48:31 am, by fourth, 157 words, 328 views   English (US)
Categories: General

PA: Defendant encountered during a search for a homicide suspect and asked his name wasn't subject to investigative detention

Police were searching woods for a murder suspect and they encountered defendant, whom they asked for identification and why he was in the woods. This was not an investigative detention subject to the Fourth Amendment. He wasn’t the suspect they were looking for. Commonwealth v. McAdoo, 2012 PA Super 118, 46 A.3d 781 (2012).*

The stop was justified based on the testimony even though its basis wasn’t mentioned in the reports. “No extrinsic evidence has been offered to contradict Officer Nelson’s testimony, and ‘[t]he mere fact an incident report omits certain details is not sufficient to render the officer's testimony concerning the underlying action facially implausible.’ United States v. Mendoza, 677 F.3d 822, 828 (8th Cir. 2012).” United States v. Gant, 2012 U.S. Dist. LEXIS 78853 (D. Minn. June 7, 2012).*

Defendant’s post-conviction claim that his 2007 conviction should be voided because of Gant was rejected, not on Davis grounds, but on the automobile exception. United States v. Carter, 481 Fed. Appx. 475 (11th Cir. 2012).*

Permalink 07:29:33 am, by fourth, 191 words, 504 views   English (US)
Categories: General

D.Mass.: Obtaining arrest warrant based solely on name could be reckless disregard if wrong person arrested

Plaintiff stated a claim against officer for procuring an arrest warrant based on name alone when it turned out that there were more than one person in the geographical area with that name. “Basing probable cause solely on a similarity of name could create a substantial risk of error,” and it qualifies as reckless disregard. Parks v. Town of Leicester, 2012 U.S. Dist. LEXIS 78973 (D. Mass. June 7, 2012)*:

Nonetheless, it is troublesome that Fontaine, in concluding that plaintiff was the assailant, relied on the mere coincidence that the name that the victim provided matched the name in the database. The probability of multiple persons with the same name residing in a single geographic region--at least one as populous as Worcester County--is not negligible. Basing probable cause solely on a similarity of name could create a substantial risk of error. Arguably, an officer who pursued such a practice would be acting in reckless disregard of the truth.

Plaintiff alleged enough facts to stay in court that the police called to aid a repossession of a vehicle converted private action into state action. Morozov v. Howard County, 2012 U.S. Dist. LEXIS 77767 (D. Md. June 5, 2012).*

Permalink 06:56:26 am, by fourth, 289 words, 514 views   English (US)
Categories: General

N.D.Miss.: Consent during pretext traffic stop was suppressed

Defendant was stopped via a traffic offense that was completely ignored to focus on a drug investigation. Within two minutes they had consent, and it was found not voluntary. United States v. King, 2012 U.S. Dist. LEXIS 76988 (N.D. Miss. June 4, 2012):

The government argues that the defendant's consent to search is valid because it was given within two minutes of the traffic stop. In looking at the surrounding circumstances, however, it appears that consent was not voluntarily given. As Agent Force requested, Hutchins attempted to make the stop appear normal. Yet, the record shows that the officers were not interested in any alleged traffic violation when they stopped King. They knew the defendant was a suspect in an ongoing drug investigation and the officers acted in furtherance of that investigation when they stopped the defendant. While Hutchins claims King could have left prior to the search, at no time did he or any of the other officers tell the defendant he was free to leave or that he had a right to refuse consent. Hutchins, two police officers, and a K-9 dog were present when King consented to the search. The defendant complied with the officer's requests and told them where money was located inside his truck. Though the defendant was allegedly stopped for violating traffic laws, none of the officers issued a citation prior to asking to search the vehicle. Instead, they held the defendant at the traffic stop without advising him that he was suspected of criminal activity. Looking at these factors, it appears King's consent was not the product of an essentially free and unconstrained choice. An objectively reasonable person in the defendant's position would not have felt free to leave the scene or refuse consent.

Permalink 06:22:23 am, by fourth, 77 words, 318 views   English (US)
Categories: General

Nat Hentoff: "Coming: Even more FBI warrantless [FISA] searches?"

Nat Hentoff: FISA: Coming: Even more FBI warrantless searches?

On May 9, FBI Director Robert Mueller strongly recommended that Congress reauthorize the 2008 Foreign Intelligence Surveillance Act (FISA) Amendments Act by the end of the year. This law allows federal authorities, including the FBI, to conduct warrantless searches. These are beyond the Attorney General's Guidelines for Domestic FBI Operations that let the FBI avoid going to a court to get a warrant to track Americans suspected of terrorist ties.


Permalink 09:09:35 am, by fourth, 257 words, 507 views   English (US)
Categories: General

MA: Defendant's suspicious conduct while getting dressed after arrest led to valid search under mattress for gun

Defendant answered his door in his underwear and was told he was under arrest. He asked if he could get dressed, and an officer went to his bedroom with him. The room was checked by a protective sweep. Defendant’s conduct in the bedroom led the officer to suspect a weapon, so the officer lifted the mattress and found a gun. That was lawful under Chrisman. Commonwealth v. Quilter, 81 Mass. App. Ct. 808, 969 N.E.2d 163 (2012):

The firearm was not discovered during the protective sweep after the police entered the bedroom. Rather, it was discovered when an officer, suspicious of the defendant's conduct -- sitting at the end of the bed farthest away from the closet -- found the firearm under the mattress where the defendant had been sitting. While the judge stated that the officer was "acting on a hunch -- an excellent one, but a hunch nevertheless," the facts instead indicate that the officer's decision to look under the mattress was objectively reasonable. It is not unreasonable "for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety -- as well as the integrity of the arrest -- is compelling." Washington v. Chrisman, 455 U.S. 1, 7, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982). "[A] police officer's decision how and where to conduct the search is 'a quick ad hoc judgment.'" Commonwealth v. Elizondo, 428 Mass. 322, 324, 701 N.E.2d 325 (1998), quoting from United States v. Queen, 847 F.2d 346, 352 (7th Cir. 1988).

Permalink 08:51:42 am, by fourth, 136 words, 339 views   English (US)
Categories: General

M.D.Fla.: Gun found before consent withdrawn was admissible

Defendant was arrested by the DEA with a SWAT team, and he consented to a limited search and a gun was found. He effectively withdrew consent, and the search stopped. The gun found earlier was admissible. United States v. Posa, 2012 U.S. Dist. LEXIS 78456 (M.D. Fla. June 6, 2012).*

Defendant consented to a search of his car, and there was probable cause in any event. United States v. Lee, 2012 U.S. Dist. LEXIS 78579 (D. Haw. June 6, 2012).*

On the totality of evidence, there was probable cause to believe there was drug evidence in defendant’s car. United States v. Rucker, 2012 U.S. Dist. LEXIS 78323 (N.D. Fla. June 6, 2012).*

Defendant’s nervousness, criminal history, geographical limitations on use of his rental car, and possession of industrial degreaser was not reasonable suspicion. United States v. Johnson, 482 Fed. Appx. 137 (6th Cir. 2012).*

Permalink 07:51:22 am, by fourth, 120 words, 333 views   English (US)
Categories: General

WV: Police already seeking warrant when search occurred fell under inevitable discovery

Inevitable discovery applied because the search warrant was being sought when defendant was arrested and a search occurred. State v. Myers, 229 W. Va. 238, 728 S.E.2d 122 (2012).

Defendant’s car was searched because of the strong odor of marijuana after he was stopped on the street with reasonable suspicion of drug dealing and they “discovered more than $500 in small, disorganized bills stashed in various pockets.” The search was valid under the automobile exception or the search incident doctrine because he was standing at the door when all this went down. United States v. Carter, 2012 U.S. App. LEXIS 11265 (11th Cir. June 5, 2012).*

While Washington law grants automatic standing, somebody with third-party authority can still consent. State v. Libero, 168 Wn. App. 612, 277 P.3d 708 (2012).*

Permalink 12:18:42 am, by fourth, 384 words, 670 views   English (US)
Categories: General

CA10: Off-duty officer from another city working bar security was not government actor for Fourth Amendment

A police officer from another city working plain clothes at a bar with a t-shirt with “Security” on the back who found a gun was not a state actor at the time of employment. The record was clear he was serving the interests of the bar and not the police, and he called the police to “sort it out” after the encounter. United States v. Cintron, 482 Fed. Appx. 353 (10th Cir. 2012):

The OK Corral Club, not the Boley Police Department, hired and paid Mr. Reed for his security guard work at the club. Not all security team members were off-duty police officers. As for the members of OK Corral's security staff who were off-duty police officers, the OK Corral Club hired them and did not rely on official assistance from the police department. See Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir. 1980) (holding that off-duty police officer working as security teller at a bank was a state actor when that position was part of a "secondary hiring" program and the security teller's "primary duty was to the [police] department, not to the bank").

Mr. Reed was not wearing his police uniform, did not have his badge, and never identified himself as a police officer. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1429-30 (10th Cir. 1984) (holding that off-duty police officer working as a store security guard was acting under color of state law when he flashed his badge, identified himself as a police officer, and arrested the alleged shoplifter on the spot), vacated on other grounds,City of Lawton, Okla. v. Lusby, 474 U.S. 805 (1985).

At the suppression hearing, Mr. Reed explained that he was working to further the interests of the OK Corral Club, not those of the police department. ... "Well, yeah, but I don't [enforce the laws] there. I just ... protect and keep the staff and the property safe over there. It's not a matter of me really enforcing the laws over there. We just look out for the safety over there." Id. at 34-35. He also explained that had he been acting as a police officer, he would have acted differently and would have "put [Mr. Cintron] on the ground." Id. at 32.

Finally, Mr. Reed did not formally arrest Mr. Citron. ...

Under the facts, it probably wouldn't make any difference, either.

Permalink 12:11:30 am, by fourth, 267 words, 378 views   English (US)
Categories: General

S.D.Ohio: Where car was validly impounded, difficulty in recovering it isn't a Fourth Amendment claim

Plaintiff’s car was validly towed to impound because she was hospitalized after an accident. She had difficulty in regaining her vehicle, and she sued for $500B. “Plaintiff's claims do not appear to challenge the actual seizure of her vehicle, but instead focus on her inability to regain possession of her vehicle. Plaintiff's interest in regaining her vehicle, however, is outside the scope of the Fourth Amendment. See Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999) (‘[T]he Fourth Amendment protects an individual’s interest in retaining possession of property but not the interest in regaining possession of property.’).” Mathis v. Dep't of Pub. Safety, 2012 U.S. Dist. LEXIS 76780 (S.D. Ohio June 4, 2012).

Defendant was possibly speeding and hastily exited from a freeway, but the officer didn’t stop the defendant. He followed him home. Defendant got out of his van and went onto his porch and the officer followed. The attempted stop on defendant’s porch was without reasonable suspicion of any wrongdoing other than the alleged traffic offense, and that wasn’t good enough. Defendant testified that he did not know there was a police officer in the car because it was unmarked. “Sgt. Norman followed and grabbed Defendant by the back of his coat. Defendant pulled away and continued behind the house. At this point, uniformed officers appeared on the property, and they Tasered, handcuffed and arrested Defendant.” The search that relieved him of his gun was unreasonable under the Fourth Amendment. United States v. Walker, 2012 U.S. Dist. LEXIS 76781 (S.D. Ohio June 4, 2012)*, reconsideration denied 2012 U.S. Dist. LEXIS 111919 (S.D. Ohio August 9, 2012).*

Permalink 12:05:34 am, by fourth, 308 words, 388 views   English (US)
Categories: General

D.Md.: “[T]he age of the information supporting a warrant is increasingly irrelevant when the object searched is stored on a computer.”

14-month-old information in a child pornography case is not stale. More importantly, it seems that computer forensics makes staleness almost irrelevant: “the age of the information supporting a warrant is increasingly irrelevant when the object searched is stored on a computer.” United States v. Johnson, 865 F. Supp. 2d 702 (D. Md. 2012)

Additionally, the ability of forensic examiners to recover files from a computer—even those deleted by a user—impacts a court's staleness analysis. Since evidence on a computer is recoverable months or years after it has been downloaded, deleted, or viewed; the age of the information supporting a warrant is increasingly irrelevant when the object searched is stored on a computer. See, e.g., Gourde, 440 F.3d at 1071 ("Having paid for multi-month access to a child pornography site, Gourde was also stuck with the near certainty that his computer would contain evidence of a crime had he received or downloaded images in violation of § 2252. Thanks to the long memory of computers, any evidence of a crime was almost certainly still on his computer, even if he had tried to delete the images. FBI computer experts, cited in the affidavit, stated that 'even if ... graphic image files [] have been deleted ... these files can easily be restored.' In other words, his computer would contain at least the digital footprint of the images."); United States v. Toups, No. 2:06-cr-112-MEF, 2007 WL 433562, at *4 (M.D. Ala. February 6, 2007) ("Further bolstering the conclusion that the staleness calculation is unique when it comes to cases of Internet child pornography is the images and videos stored on a computer are not easily eliminated from a computer's hard drive. The mere deletion of a particular file does not necessarily mean that the file cannot later be retrieved.").

Note: The court also notes that no case it could find had ever found staleness in a CP case.


Permalink 11:30:17 am, by fourth, 253 words, 614 views   English (US)
Categories: General "Lawsuit filed over OR man's warrantless cavity search" Lawsuit filed over OR man's warrantless cavity search by Bob Fowler:

An Oak Ridge man who says he was forced in June 2011 to submit to a digital rectal exam for suspected drugs — and no drugs were found — has filed a lawsuit in Anderson County Circuit Court.

Wesley Antwan Gulley's legal action contends his constitutional rights were violated and he was subjected to false arrest and imprisonment, assault and battery and medical battery.

The lawsuit alleges Gulley was in shackles and reluctantly consented to the exam, but only after Dr. Michael A. LaPaglia ordered an injectable sedative and threatened to use it "in performing the digital rectal exam …"

The defendants used coercion and "undue influence" to force Gulley's consent, and police officers didn't have a warrant, it continues.

No drugs were found, and he was released after having been shackled for the ride to the hospital. It started because of a dog alert on a $20 bill in the car, which everyone in law enforcement should know by now (since it's been public knowledge for over 25 years) that virtually all currency that goes through money counting machines has microscopic traces of cocaine.

I normally don't include lawsuits because so many fail on qualified immunity or the merits of the Fourth Amendment claim. Based on the news article, this one states enough to get to trial. Forced warrantless digital exams are unreasonable even with probable cause, except for a convict in prison or a jail inmate, thanks to Florence.

h/t to a reader

Permalink 11:18:24 am, by fourth, 308 words, 975 views   English (US)
Categories: General

CA10: Pulling off I-70 at ruse checkpoint signs at off-ramp is not reasonable suspicion; more required

Relying on Edmond, United States v. Yousif, 308 F.3d 820 (8th Cir. 2002), and United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011), the Tenth Circuit holds that stopping cars that pulled off at an exit by ruse checkpoint was not based on reasonable suspicion. Pulling off was a factor in RS, but more is required. United States v. Neff, 10-3336 (10th Cir. June 5, 2012):

We agree with the Eighth Circuit that a driver's decision to use a rural highway exit after seeing drug checkpoint signs may serve as a valid, and indeed persuasive, factor in an officer's reasonable suspicion analysis. See, e.g., Carpenter, 462 F.3d at 987; United States v. Klinginsmith, 25 F.3d 1507, 1510 n.1 (10th Cir. 1994) (listing as one valid factor that "the defendants took an exit which was the first exit after a narcotics check lane sign, and an exit that was seldom used"). But standing alone, it is insufficient to justify even a brief investigatory detention of a vehicle. Here, of course, the government points to a number of other factors that the trooper relied on in forming reasonable suspicion, including: (1) Neff's car had a Shawnee County license plate but was driving in Wabaunsee County; (2) the exit was in a rural area without highway services such as restaurants or gas stations; (3) Neff pulled into a private driveway where he did not seem to have any reason to be; (4) Neff had a startled look on his face when he saw the trooper.

. . .

These facts, when taken together, do not fairly suggest that Neff was attempting to evade police. To be sure, an officer is “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.” Arvizu, 534 U.S. at 276. But even considering the totality of the circumstances, Neff’s conduct conformed to the patterns of everyday travel. ...

Permalink 08:56:00 am, by fourth, 217 words, 445 views   English (US)
Categories: General

CA10: “[I]t is not clear that individuals have a constitutional right to a reasonable post-arrest investigation.”

Plaintiff was arrested and detained for 224 days for a sexual assault charge that was ultimately dismissed. He had a prosthetic lower leg and had prostate surgery that made it impossible for him to ejaculate, two things not mentioned anywhere in the investigation. “[I]t is not clear that individuals have a constitutional right to a reasonable post-arrest investigation.” Barham v. Town of Greybull Wyo., 483 Fed. Appx. 506 (10th Cir. 2012)*:

We turn next to Plaintiff's argument that his constitutional rights were violated by his 224-day detention on charges that were later dismissed. He contends there were problems with the alleged victims' stories, particularly relating to Plaintiff's inability to ejaculate semen, and he argues a reasonable law enforcement officer would have investigated these problems and attempted to obtain Plaintiff's release earlier. As we stated in Romero, it is not clear that individuals have a constitutional right to a reasonable post-arrest investigation. See Romero, 45 F.3d at 1478. To the extent there is such a right, it must be based on "facts that, at a minimum, demonstrate Defendants acted with deliberate or reckless intent." Id. After thoroughly reviewing the record, we conclude that the officers' post-arrest investigation was, at most, negligent. Thus, Plaintiff has not shown the officers' conduct during his detention violated any potential constitutional right to a reasonable post-arrest investigation.

Permalink 08:46:34 am, by fourth, 94 words, 384 views   English (US)
Categories: General

E.D.N.Y.: Plaintiff can amend complaint to allege strip search at station house

Plaintiffs’ strip search claim on arrest without booking permitted on motion to amend; it was not futile. Sorrell v. Inc. Vill. of Lynbrook, 2012 U.S. Dist. LEXIS 77303 (E.D. N.Y. June 4, 2012).*

There was probable cause for defendant’s arrest for murder for hire by payment of a snowmobile. State v. Santiago, 305 Conn. 101 (2012).*

In litigation over a 1991 search warrant in 2012, the seizure under the search warrant was somewhat excessive, but it was not reason to suppress the whole search under Andersen. United States v. Persico, 2012 U.S. Dist. LEXIS 77298 (E.D. N.Y. June 1, 2012).*

Permalink 07:32:44 am, by fourth, 383 words, 1376 views   English (US)
Categories: General

VA: Drivers' license checkpoint constitutional

A “checkpoint,” without hardly telling us what for, was valid where it snared the defendant, a habitual driving offender with no license. Desposito v. Commonwealth, 726 S.E.2d 355 (Va. App. 2012):

Appellant's challenge to the validity of the checkpoint is limited to two points: (1) the supervisor's direction that the checkpoint should be conducted "during the lunchtime" leaves the officers with unbridled discretion as to the time of operation; and (2) the plan is flawed because while it requires a 30-minute minimum operational duration, the plan does not establish a maximum time, thus allowing the officers at the checkpoint to determine the duration of the operation. These omissions, appellant contends, render the checkpoint constitutionally unsound, thus violating his Fourth Amendment rights.

"As a preliminary matter, checkpoints with the primary objective of enforcing safety requirements are constitutional." Wright v. Commonwealth, 52 Va. App. 263, 268, 663 S.E.2d 108, 111 (2008) (citing Delaware v. Prouse, 440 U.S. 648, 658 (1979)); see also Palmer v. Commonwealth, 36 Va. App. 169, 172, 549 S.E.2d 29, 30 (2001) (holding the purpose of a checkpoint was valid when officers stopped vehicles to look for "any violations on the vehicles, such as drivers' license, equipment, [or] inspection").

. . .

The reasonableness of such seizures, which are less intrusive than a traditional arrest, depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Brown v. Texas, 443 U.S. 47, 50-51 (1979) (citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). In considering the constitutionality of these seizures on appeal, we must weigh "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id. at 51.

What is the public interest in stopping everybody to look for a driver's license? Bank robbers, kidnapers [Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting)], DUIs? Yes. General crime control, no. I just cannot accept that a driver's license checkpoint is constitutional under Edmund or Sitz. And, yes, Prouse was decided in 1979, and its throwaway reference to driver's license checkpoints was wrong then and it's still wrong. If SCOTUS is concerned about "it could happen to us," then they might now agree. To quote "Ferris Bueller's Day Off," "Uh, what country do you think this is?" American highways are not constitution free zones.

Please, somebody, take this up.

Permalink 05:28:38 am, by fourth, 198 words, 421 views   English (US)
Categories: General

Volokh Conspiracy: "Police Searching for Bank Robber Stop All Cars at Intersection, Handcuff Drivers, Search Cars"

Volokh Conspiracy: Police Searching for Bank Robber Stop All Cars at Intersection, Handcuff Drivers, Search Cars by Eugene Volokh:

So reports ABC News:

Police in Aurora, Colo., searching for suspected bank robbers stopped every car at an intersection, handcuffed all the adults and searched the cars, one of which they believed was carrying the suspect.

Police said they had received what they called a “reliable” tip that the culprit in an armed robbery at a Wells Fargo bank committed earlier was stopped at the red light.

“We didn’t have a description, didn’t know race or gender or anything, so a split-second decision was made to stop all the cars at that intersection, and search for the armed robber,” Aurora police Officer Frank Fania told ABC News….

“Split-second decision”--code word for “we should get at least qualified immunity because of the hard decisions we have to make in the field protecting the public from bad people.” Good point. What about the 15 people handcuffed for up to 90 minutes who did nothing wrong? They had no description, just a place, so everybody in the place gets handcuffed. Good that they caught the right guy, but heavy handed nonetheless.

Permalink 05:21:49 am, by fourth, 35 words, 539 views   English (US)
Categories: General

New law review article: "Davis v. United States: Expanding the Good Faith Exception to the Exclusionary Rule ..."

Permalink 05:18:28 am, by fourth, 344 words, 297 views   English (US)
Categories: General

New law review article: "The Fourth Amendment in a World Without Privacy"

The Fourth Amendment in a World Without Privacy by Paul Ohm, in Mississippi Law Journal, Vol. 81, No. 5, p. 1309, 2012. Abstract on SSRN:

This Article explores the relationship between private and public surveillance. Every year, companies spend millions of dollars developing new services that track, store, and share the words, movements, and even the thoughts of their customers. Millions now own sophisticated tracking devices (smart phones) studded with sensors and always connected to the Internet. They have been coaxed to use these devices to access fun and valuable services to share more information, more of the time. Our country is rapidly becoming a surveillance society.

Meanwhile, the police can access the records that the surveillance society produces and stores with few impediments. Current Fourth Amendment doctrine — premised on the reasonable expectation of privacy test and elaborated through principles such as assumption of risk, knowing exposure, and general public use — places far fewer hurdles in front of the police when they use the fruits of somebody else’s surveillance than when they do the surveillance themselves. As the surveillance society expands, the police will learn to rely more on the products of private surveillance, and will shift their time, energy, and money away from traditional self-help policing, becoming passive consumers rather than active producers of surveillance. Private industry is destined to become the unwitting research and development arm of the FBI. If we continue to interpret the Fourth Amendment as we always have, we will find ourselves not only in a surveillance society, but also in a surveillance state.

If we believe that the Fourth Amendment can and should survive the coming reach of private surveillance, it is not enough to prescribe mild tweaks to the third-party doctrine. A more thorough reinvention of the Fourth Amendment is in order. We should rebuild the Fourth Amendment atop a foundation of something other than privacy, and this Article extends the work of other scholars who have convincingly suggested that the Fourth Amendment was originally intended and is better interpreted to ensure not privacy but liberty from undue government power.


Permalink 01:15:49 pm, by fourth, 130 words, 362 views   English (US)
Categories: General "Keeping your cell phone from spying on you" Keeping your cell phone from spying on you by Rep. Jason Chaffetz (R-Utah):

In the age of Onstar, smartphones and GPS tracking devices, we are more effective than ever at tracking people. But the line between a convenient tool and an unreasonable search has become increasingly nebulous.

No one wants their every move surreptitiously monitored without permission – whether it be law enforcement, a spurned partner, or a nefarious stranger keeping tabs on us. Given the legal ambiguities associated with modern technology, we must update and clarify the law.

Although the Supreme Court ruled attaching a GPS device to a person’s car without their knowledge constitutes a search under the Fourth Amendment, there are no rules governing the use of geolocation information obtained from other types of devices.

Permalink 07:52:15 am, by fourth, 220 words, 427 views   English (US)
Categories: General

CO: Consent to enter here included implied consent to stay until ICE officers, who came later, left too

Having consented to an entry by the police, here it included remaining there until federal agents there too had left. ICE came because of an alleged illegal alien. People v. Arapu, 2012 CO 42, 283 P.3d 680 (2012) (4-3)*:

We find that Arapu consented to Detective Chi's presence in his apartment to monitor the woman inside, and that such consent would reasonably include asking her for identifying information. Similarly, we find that Arapu consented to Detective Chi remaining in the apartment to gather Arapu's keys and phones, and to secure the apartment, and such consent would reasonably include remaining in the apartment until the federal agents had left. We, accordingly, find that the trial court erred in finding Detective Chi was unlawfully in the apartment when he observed the open bag containing drugs, and therefore reverse the trial court's suppression of the drug-related evidence. Because the prosecution concedes in its briefing to us that the discovery of the firearm was unlawful, we determine whether the affidavit would support a finding of probable cause if the firearm portions were excised, but with the observation of the open bag containing drugs included. We hold that it does, and that the firearm would have been discovered in a search pursuant to the redacted affidavit. We therefore reverse the suppression order with regard to the firearm as well.

Permalink 07:42:01 am, by fourth, 215 words, 363 views   English (US)
Categories: General

CA8: Objectively reasonable mistake as to identity still supported stop

An objectively reasonable mistake as to defendant looking like another man who was wanted when defendant was pointed out to him from a photograph supported his stop and ordering him from the car, fearing he was an armed fugitive. When stopped, defendant admitted he had a gun on him, and then the mistake in identity was discovered. Defendant, however, was a FIPF. United States v. Phillips, 679 F.3d 995 (8th Cir. 2012).*

Defendant was effectively in custody when he was talking to a DEA officer in a DEA truck, and he couldn’t leave, so he had to have been Mirandized. United States v. King, 2012 U.S. Dist. LEXIS 76988 (N.D. Miss. June 4, 2012)*:

Although the government maintains that King was free to go, this position is in direct conflict with Douglas' statements to the defendant. King could not leave until he "talked" to Douglas inside the DEA truck. "Talking" is what Miranda is all about. Therefore, the defendant was in custody at the time he confessed and was entitled to Miranda warnings. Douglas failed to warn the defendant before beginning the interrogation. He told King about drug arrests in Greenville, Mississippi stemming from the DEA investigation. King then confessed. Since Agent Douglas failed to give Miranda warnings to the defendant, the confession must be excluded from evidence.

Permalink 07:20:34 am, by fourth, 206 words, 1781 views   English (US)
Categories: General

E.D.Pa.: Because of the Second Amendment, possession of a firearm is not per se a ground for a stop-and-frisk

Merely being in possession of a firearm is not a reason for a stop-and-frisk–-an objective risk of potentially using it criminally is. Here, defendant was acting evasively when he saw the police and tried to get into a house he was not allowed in. United States v. Derrick, 2012 U.S. Dist. LEXIS 76540 (E.D. Pa. May 31, 2012):

However, as some individuals are legally permitted to carry guns pursuant to the Second Amendment of the Constitution, a reasonable suspicion that an individual is carrying a gun, without more, is not evidence of criminal activity afoot. Therefore, the tip alone was not sufficient to support an investigatory stop and the Court must examine whether the stop was supported by other factors.

Defendant’s stop on his own porch by a homicide detective for a traffic offense was without reasonable suspicion. Defendant’s car was not stopped, and defendant got out and went to his house, and the officer pulled up and ran behind him yelling “stop” showing his badge and then there was a “tangle” on the porch with uniformed officers, too. The stop was without reasonable suspicion, and the gun found on him is suppressed. United States v. Walker, 2012 U.S. Dist. LEXIS 76781 (S.D. Ohio June 4, 2012).*


Permalink 02:42:33 pm, by fourth, 49 words, 918 views   English (US)
Categories: General

Cert. grant today: Bailey v. United States

Cert. grant today: Bailey v. United States, SCOTUSBlog here, opinion below here.

Issue: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.

Permalink 02:30:22 pm, by fourth, 343 words, 601 views   English (US)
Categories: General

SCOTUS: Arrest with PC qualified immunity on First Amendment claim because law not clearly established

Reichle v. Howards, 11–262 (June 4, 2012). SCOTUSBlog here. From the Syllabus:

Petitioners are entitled to qualified immunity because, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Pp. 5−12.

(a) Courts may grant qualified immunity on the ground that a purported right was not clearly established” by prior case law. Pearson v. Callahan, 555 U. S. 223, 236. To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U. S. ___, ___. Pp. 5−6.

(b) The “clearly established” standard is not satisfied here. This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest. P. 6.

(c) At that time, Hartman’s impact on the Tenth Circuit’s precedent was far from clear. Although Hartman’s facts involved only a retaliatory prosecution, reasonable law enforcement officers could have questioned whether its rule also applied to arrests. First, Hartman was decided against a legal backdrop that treated retaliatory arrest claims and retaliatory prosecution claims similarly. It resolved a Circuit split concerning the impact of probable cause on retaliatory prosecution claims, but some of the conflicting cases involved both retaliatory prosecution and retaliatory arrest claims and made no distinction between the two when considering the relevance of probable cause. Second, a reasonable official could have interpreted Hartman’s rationale to apply to retaliatory arrests. Like in retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually all retaliatory arrest cases, and the causal link between the defendant’s alleged retaliatory animus and the plaintiff’s injury may be tenuous. Finally, decisions from other Circuits in the wake of Hartman support the conclusion that, for qualified immunity purposes, it was at least arguable at the time of Howards' arrest that Hartman extended to retaliatory arrests. Pp. 7−12.

Permalink 02:26:33 pm, by fourth, 51 words, 412 views   English (US)
Categories: General "Bloomberg Backs Plan to Limit Arrests for Marijuana" Bloomberg Backs Plan to Limit Arrests for Marijuana by Thomas Kaplan:

Mayor Michael R. Bloomberg said on Monday that he would support a proposal by Gov. Andrew M. Cuomo to significantly curb the number of people who could be arrested for marijuana possession as a result of police stops.

Permalink 08:23:21 am, by fourth, 221 words, 478 views   English (US)
Categories: General

TN: Coaxing expanded third-party consent after entry and seeing other stuff was still voluntary

After the police entered with consent to seize ammunition, they saw other relevant stuff and they were able to “coax” an expanded consent with defendant’s wife, and it was effective. State v. Niles, 2012 Tenn. Crim. App. LEXIS 362 (June 1, 2012):

Although the record shows that Niles's wife initially objected to the detectives' attempts to seize the entire date planner and its contents and the computer, Niles's wife and the detectives were able to reach an acceptable compromise regarding these items. Niles's wife acknowledged at the suppression hearing that she consented to the detectives' photographing parts of the planner and seizing documents inside the planner. Although Niles's wife and William Niles testified that the detectives exceeded the scope of her consent, the trial court accredited the testimony of Detectives Crews and Merlo on that issue. As we have stated, "[q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." See Odom, 928 S.W.2d at 23. Moreover, because the evidence from the computer and the letters between Niles and the victim were never admitted at trial, any issue regarding suppression of this evidence is moot. Accordingly, we conclude that the trial court did not err in denying Niles's motion to suppress.

Permalink 07:50:10 am, by fourth, 276 words, 360 views   English (US)
Categories: General

LA5: Guns drawn during a stop not per se arrest

Officers stopped defendant with reasonable suspicion of drugs, and they blocked his car and approached with guns drawn. That was not a per se arrest. State v. Carter, 96 So. 3d 1283 (La. App. 5 Cir. 2012):

The vast majority of courts have held that police actions in blocking a suspect’s vehicle and approaching with weapons ready, and even drawn, does not constitute an arrest per se. United States v. Edwards, 53 F.3d 616, 619 (3rd Cir.1995). An investigatory stop necessarily involves an element of force or duress and the temporary restraint of a person's freedom. There is the complete restriction of movement in an investigatory stop, but for a shorter period of time than an arrest. [citing cases] Investigatory stops may be accompanied by features normally associated with an arrest, i.e., use of drawn weapons. An investigatory stop is reasonable even when the police block a vehicle to prevent its occupant from leaving and approach with weapons ready or even drawn. [citing cases] Because an officer's view of a suspect seated in a car is always partially obscured, the officer is at a disadvantage when he approaches the occupant. United States v. Edwards, 53 F.3d 616, 619 (3rd Cir.1995). Furthermore, guns and drugs frequently go hand-in-hand. State v. Warren, 05-2248, p. 18 (La.2/22/07), 949 So.2d 1215, 1229.

The juvenile was found on the street in a high crime area in violation of the curfew. He was patted down and a gun was found in his waistband. His sister testified that he was summoned from his porch and arrested. The juvenile court credited the officer’s version, and that’s the end of it. State in Interest of R.L., 95 So. 3d 1147 (La. App. 4 Cir. 2012).*

Permalink 07:34:25 am, by fourth, 490 words, 425 views   English (US)
Categories: General

E.D.Tex.: Dog's unproductive alert excluded under F.R.E. 403; dog not challengeable via Daubert motion

The government proved the “well-trained” drug dog by training and certification and general lack of false positives sufficient for probable cause. However, the fact of an alert to a dresser in defendant’s house where no drugs were present is excluded from trial under F.R.E. 403 as more prejudicial than relevant. United States v. Pierre, 2012 U.S. Dist. LEXIS 76411 (E.D. Tex. May 10, 2012):

Here, the Court finds that any testimony about Bartje's alert on the dresser would confuse the issues and cause Defendant undue prejudice. In this case, the Government must prove that Defendant was involved in the distribution - not merely personal use - of cocaine and marijuana. Based on the testimony presented at the hearing, although Bartje's alert may have been reliable as an indicator that drugs were once present near the dresser, there is nothing about the alert that would show the amount of drugs that once were there, the amount of time that had passed since they were there, or the kind of drugs present. Any probative value Bartje's alert might have is outweighed by the risk that the alert was to an amount or type of drug not a part of the charged conspiracy and for a time period not within the charging indictment. Because the alert cannot define the who, what or when -- and because there is no possibility of examining or cross-examining Bartje as to the who, what or when of the alert -- any testimony about it would confuse the issues and unduly prejudice Defendant.

A Daubert motion is not the way to challenge a dog sniff because a dog is not an expert witness. A motion to suppress is required. n.1:

The Court notes that Defendant has challenged the introduction of the evidence of the canine alert through three different motions: a Daubert motion, a motion in limine and this motion to suppress. As this Court has previously noted, the Fifth Circuit has stated that, "a Daubert hearing is the wrong procedural tool to challenge the reliability of a drug detection dog." U.S. v. Three Hundred Sixty-Nine Thousand Nine Hundred Eighty Dollars ($369,980) in U.S. Currency, 214 Fed. Appx. 432, 435, 2007 WL 143240, 3 (5th Cir. 2007); see also U.S. v. Outlaw, 134 F. Supp.2d 807, 810 (W.D. Tex. 2001). See Dkt. 504. Because the Fifth Circuit has made this express statement, the Court declined to conduct a Daubert analysis as originally requested by Defendant (and ultimately denied by this Court), although factually this case — involving the requested exclusion of essentially a lack of physical evidence — does appear to be one of first impression in this Circuit. In U.S. v. Outlaw, 134 F. Supp.2d 807, 810 (W.D. Tex. 2001), after rejecting Defendant's challenges to a canine alert based on Daubert, the District Court instead turned to directly to whether the reliability of the canine inspection at issue. Without any express guidance to the contrary by the Fifth Circuit, the Court will adopt the Outlaw court's approach herein.


Permalink 12:50:37 pm, by fourth, 192 words, 398 views   English (US)
Categories: General

CA10: Seeing known convicted felon with dead antelope in truck was RS of FIPF

The officer here had a first tip that defendant as a felon in possession of a firearm and a second tip that defendant had shot an antelope. The officer verified that defendant was a convicted felon. When defendant was seen with the dead antelope in his truck, that was reasonable suspicion of FIPF. United States v. Whitley, 680 F.3d 1227 (10th Cir. 2012).

Defendant’s stop for driving one block without headlights for 12 minutes before sunrise was still based on a traffic violation. His continued detention was based on suspicion he was with a prostitute in the car because, among other things, his zipper was down. Defendant’s allegedly answering questions truthfully “are overwhelmingly outweighed by the suspicious circumstances detailed” in the officer’s testimony. Defendant consented to a search that produced a gun. United States v. Anderson, 2012 U.S. Dist. LEXIS 75992 (M.D. La. May 31, 2012).*

There was probable cause for two searches. The second had a warrant. Even if the information for the second warrant was partially misleading under Franks, there was probable cause without it. United States v. Jones, 473 Fed. Appx. 761 (9th Cir. 2012)* [The actual opinion is not much longer than this.]

Permalink 12:07:04 am, by fourth, 686 words, 604 views   English (US)
Categories: General

TN: Anonymous tip of men with gun failed RS standard and allowed general searches

A police show of force at an “armed party” where several officers converged and at least one had a gun drawn on the group was a seizure. Under Florida v. J.L. there is no firearms exception to the reasonable suspicion requirement. Here, there was none on this anonymous report. Without articulable reasonable suspicion, the court would be sanctioning general searches on the street. State v. Williamson, 368 S.W.3d 468 (Tenn. 2012), revg State v. Williamson, 2011 Tenn. Crim. App. LEXIS 656 (August 19, 2011):

Since the Court's decision in J.L., its principles have been applied in a variety of cases on both the federal and state levels. Recently, the Court of Appeals for the Fourth Circuit addressed the denial of a motion to suppress under facts similar to those before this Court today. In United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011), police received an anonymous phone call alleging that eight shots had been fired in "a high-crime area." Id. at 482-83. As in this case, there was no description of the suspect. Id. at 483. One of the officers who responded to the call saw four young black men walking a few blocks from where the shots were allegedly fired. Id. ... The district court upheld the propriety of the stop and frisk .... The Fourth Circuit reversed, first emphasizing that in order to justify a frisk, "the Constitution requires 'a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Id. at 486 (quoting United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009)). The court found "precious little" to demonstrate that the officer "had reasonable, particularized suspicion ... such that a non[-]consensual frisk was lawful under the Fourth Amendment," holding that the anonymous tip neither provided any predictive information about the suspect nor tested the knowledge or credibility of the informant. Massenburg, 654 F.3d at 486-87. In addition, the court found that the tip's reliability was undermined because it did not include a "physical description of the perpetrators or any other outward identifying features," meaning that "the only link between the tip and Massenburg's group was [their] rough proximity to the alleged site of the gunfire." Id. at 487. Finally, the court observed that the location of the incident in a high-crime area failed to bolster the credibility or reliability of the anonymous tip. Id. at 488. "To hold otherwise," the court ruled,

would be to authorize general searches of persons on the street not unlike those conducted of old by the crown against the colonists. Allowing officers to stop and frisk any individuals in the neighborhood after even the most generic of anonymous tips would be tantamount to permitting a regime of general searches of virtually any individual residing in or found in high-crime neighborhoods, where complaints of random gunfire in the night are all too usual[].

Id. (alteration in original) (internal quotation marks omitted).

. . .

Based upon our review of J.L., and the numerous cases with comparable facts, we conclude that the anonymous tip to the Covington police was insufficient to support the stop and frisk of the Defendant. The unidentified 911 caller, whose complaint was relayed to the various officers by dispatch, contained only an allegation that an armed individual was outside a particular room at the Baxter Motel. The content of the tip provided even less support for a stop and frisk than that in J.L., as there was no description of the suspect, much less "predictive information," which would allow police "to test the informant's knowledge or credibility." 529 U.S. at 271; ... Because of the lack of descriptive information, as in Massenburg, "the only link between the tip" and the Defendant was his proximity to Room 21. 654 F.3d at 486-87.9 In Gomes, the tip at issue was substantially more detailed than the one before this Court, including a description of the suspect's appearance, the make and color of his car, in addition to the allegation that he was "holding a gun in the air" in a high-crime area, 937 N.E.2d at 14, yet the court determined that it was insufficient. In comparison, the tip in this case falls far short of providing sufficiently probative information.

Permalink 12:01:39 am, by fourth, 294 words, 455 views   English (US)
Categories: General

SC: Defense counsel ineffective for misunderstanding that motel operator could consent

Defense counsel was ineffective for misapprehending the standard for motel operator consent to search a room in not filing a motion to suppress. But, defendant was not prejudiced because he couldn’t show here that he wouldn’t have gone through with it anyway and not pled guilty. Goins v. State, 397 S.C. 568, 726 S.E.2d 1 (2012):

Although the PCR court found that the police were in Goins' room to serve a warrant on the distribution charges, there is no evidence to support this finding in the record. Absent a warrant or exigent circumstances, the law is clear that a motel owner cannot lawfully consent to a search of a guest's room. However, in his PCR testimony as to why he advised against proceeding with the suppression hearing, counsel stated: "I told him in the suppression hearing that the law favored the landlord or basically that the proprietor of the motel being able to consent - - excuse me. Being able to unlock the door and let someone in." This unqualified statement is clearly inaccurate considering the search and seizure jurisprudence that specifically recognizes a landlord or motel owner does not enjoy an unfettered right to grant entry into the rented guest rooms of his establishment. We therefore agree with Goins that counsel informing him he could not have prevailed in the suppression hearing was erroneous and does not reflect "reasonable professional judgment. "

. . .

Although counsel provided ineffective assistance in failing to properly advise Goins on the law regarding whether a motel owner can freely admit police into a rented room, Goins has failed to prove this advice was his reason for electing not to go to trial and has thus failed to establish prejudice. We therefore affirm the circuit court order denying Goins' PCR application.


Permalink 03:23:44 pm, by fourth, 674 words, 542 views   English (US)
Categories: General

CA9: Entry into the visible carport was still trespass onto curtilage, citing Jones

Police entry onto the curtilage, defendants’ carport, violated the Fourth Amendment because, while it could be seen, it was still a trespass under Jones. United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012):

This confusion has persisted for decades. For example, in United States v. Magana, 512 F.2d 1169 (9th Cir. 1975), we stated that "'a reasonable expectation of privacy,' and not common-law property distinctions, now controls the scope of the Fourth Amendment." Id. at 1170-71 (citing Katz). Relying on Magana, we repeated this error in a recent opinion that the government cited to the district court. See United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), vacated, 132 S. Ct. 1533, 182 L. Ed. 2d 151 (2012). In Pineda-Moreno, despite the government's admission that agents had, without a warrant, entered the curtilage of the defendant's home to place a mobile tracking device on his car in his driveway, our court concluded that there was no Fourth Amendment violation because Pineda-Moreno had no reasonable expectation of privacy in the curtilage. Id. at 1215. The Supreme Court recently and emphatically repudiated this reasoning, explaining that "as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." Jones, 132 S. Ct. at 952.

After determining that the carport was part of the curtilage to the home, the district court erroneously concluded that the agents did not violate Perea-Rey's Fourth Amendment rights when they occupied the carport without a warrant. The Supreme Court has explained that the role of reasonable expectation analysis in evaluating the constitutionality of searches of the curtilage is only in determining the scope of the curtilage, and not the propriety of the intrusion. See Dunn, 480 U.S. at 300 ("[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself."). The district court circularly reasoned that because the agents were able to freely enter the carport, Perea-Rey had no reasonable expectation of privacy in the carport. Yet, because it was curtilage, it was a constitutionally protected area, and the warrantless entry, search and seizure by the agents violated Perea-Rey's Fourth Amendment rights. See Payton, 445 U.S. at 586 ("It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable."). No further showing was required of Perea-Rey.

The district court also conflated the ability to observe inside the curtilage with the right to enter the curtilage without a warrant. Although a warrant is not required to observe readily visible items within the curtilage, and "officers [need not] shield their eyes when passing by a home on public thoroughfares," California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986), a warrant is required to enter the home. In Ciraolo, the Supreme Court held that warrantless aerial observation of the curtilage of a home was not a violation of the Fourth Amendment, and that such observations could form the basis for probable cause to support a warrant to search the curtilage. Id. at 213-14. Only after obtaining a warrant based on the observations did officers actually enter Ciraolo's curtilage. The ability to observe part of the curtilage or the interior of a home does not authorize law enforcement, without a warrant, to then enter those areas to conduct searches or seizures. See Struckman, 603 F.3d at 747 ("[P]olice officers must either obtain a warrant or consent to enter before arresting a person inside a home or its curtilage or make a reasonable attempt to ascertain that he is actually a trespasser before making the arrest."). The agents here could observe the curtilage from the sidewalk and use those observations, as in Ciraolo, as the basis for a warrant application. But, the ability to see into the curtilage or the home does not, absent some other exception to the warrant requirement, authorize a warrantless entry by the government. Therefore, the district court erred by admitting the evidence simply because the officers could view the inside of the carport from the street.

Permalink 03:09:52 pm, by fourth, 189 words, 350 views   English (US)
Categories: General

D.Mass.: Warrantless non-exigent entry into hotel room survived SJ motion

On summary judgment, entry into plaintiff’s hotel room was without exigent circumstances or a warrant, and a jury might find the officers liable. On this claim, the law is well settled. “Making all inferences in plaintiffs' favor, a reasonable fact-finder could conclude that a competent officer under the circumstances of this case would have understood both that exigent circumstances did not exist before the officers entered the room and that entering the room in the absence of such circumstances violated plaintiffs’ [clearly established] constitutional rights.” Inman v. Siciliano, 2012 U.S. Dist. LEXIS 75285 (D. Mass. May 31, 2012).*

DUI traffic stop led to plain view of a switchblade in passenger’s lap which caused his arrest. Following that, a plain view of a gun led to a search for which he had no standing. United States v. Seigler, 484 Fed. Appx. 650 (3d Cir. 2012).*

In this murder case the defendant did not specify what was to be suppressed, but “[w]aiver notwithstanding, the only testimony is that the Defendant consented to the search of his vehicle.” That’s first a question of fact resolved against him. State v. Sexton, 368 S.W.3d 371 (Tenn. 2012).*

Permalink 02:59:22 pm, by fourth, 299 words, 560 views   English (US)
Categories: General

W.D.Wash.: DNA test after CODIS match reasonable

The government’s motion to compel DNA samples is granted. Defendants are already indicted, and it needs to test the samples to confirm a CODIS match. The government also has shown probable cause for the sample. United States v. Sexton, 2012 U.S. Dist. LEXIS 75847 (W.D. Wash. May 31, 2012):

The Court notes that "the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels—the 'seizure' of the 'person' necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence." Dionisio, 410 U.S. at 8 (internal citation omitted). In this case, the first level is not at issue. An indictment has been returned against each Defendant, Dkt. # 23, and a neutral magistrate has found probable cause to seize each Defendant, Dkt. # 1. The Court thus moves to the second level question: whether, "'given all the circumstances set forth in the affidavit before [the Court] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Tan Duc Nguyen, 673 F.3d 1259, 1263 (9th Cir. 2012) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

. . .

Moreover, the Court sees no reason to deny the United States' request as to the DNA or the fingerprints simply because the United States may have already procured similar samples. As the United States explains, the laboratory requests new DNA samples in order to confirm that the CODIS record is accurate. Frankly, this is not only logical, but reassuring. It minimizes the risk that an erroneous positive will result in the conviction of an innocent defendant. And while Defendants may have been fingerprinted already in this case, major case prints—a far more thorough recording of all the friction detail ridges covering the hand—have not been obtained.

Permalink 02:45:41 pm, by fourth, 334 words, 355 views   English (US)
Categories: General

N.D.Okla.: 911 call of man with gun in gray shirt resulting in finding person fitting description by end of call

Police arrived at the location of a 911 call that was just ending when they saw a man fitting the description of a man with a gun. All things considered, that was reasonable suspicion and not a generic discovery of this defendant. United States v. Willis, 2012 U.S. Dist. LEXIS 75858 (N.D. Okla. June 1, 2012)*:

In this case, police heard a dispatch that a black man wearing a gray shirt was present at a disturbance with a gun at a specific address. Officers Hamm and Zeller immediately responded to the dispatch and drove to the address. They arrived at the address within two minutes of hearing the dispatch, and they found a black man wearing a gray shirt about a block away from the 911 caller's house. ... [¶] Although not cited by the parties, the Court finds that the Supreme Court's decision in Florida v. J.L., 529 U.S. 266 (2000), is relevant to the Court's determination as to whether Officers Hamm and Zeller had reasonable suspicion to initiate a stop. ...

Considering the evidence known to Officers Hamm and Zeller before initiating the stop, the Court finds that the stop was reasonable from its inception. Defendant bore a reasonable resemblance to person described by the dispatcher and he was found near the 911 caller's house. Officers Hamm and Zeller arrived at 911 caller's house about two minutes after hearing the dispatch, and it was reasonable for them to believe that the black male wearing a gray shirt was the same person described by the dispatcher. The Court gives particular weight to the close geographical proximity of the defendant to the caller's house and the temporal proximity of the events. Officers Hamm and Zeller arrived at the 911 caller's house almost before the 911 call was completed and they found a person matching the description provided to them. The Court also notes that this was a residential area, not a commercial or high traffic area, and police were not confronted with a situation where they were likely to find numerous persons meeting a generic description. ...

Permalink 02:28:48 pm, by fourth, 39 words, 472 views   English (US)
Categories: General How to Define Fourth Amendment Doctrine for Searches in Public?

A website on dealing with United States v. Jones in the future:
How to Define Fourth Amendment Doctrine for Searches in Public?

Papers due June 4th, if you're interested. A meeting in DC June 7-8.

Permalink 12:08:05 am, by fourth, 97 words, 386 views   English (US)
Categories: General

Boston Occupier Free Press: "CISPA Follows SOPA in Attacking Internet Freedom"

Boston Occupier Free Press: CISPA Follows SOPA in Attacking Internet Freedom by Kendra Moyer

The Cyber Information Sharing and Protection Act (CISPA) was drafted by Representative Mike Rogers (R-Michigan) with the stated intention of protecting consumers and business owners by reducing intellectual property theft, identity theft, and perceived “cyber threats.” The bill was passed by the House of Representative in April 2012, as an amendment to the National Security Act of 1947. It has not yet come up in the Senate.

Those concerned with civil rights, privacy, and the freedom of information have expressed strong concerns about the bill.

Permalink 12:01:01 am, by fourth, 127 words, 379 views   English (US)
Categories: General

Findlaw: "First Arrest by Pilotless Drone Raises Fourth Amendment Questions"

Findlaw: First Arrest by Pilotless Drone Raises Fourth Amendment Questions:

The first American citizen to be arrested with the help of a pilotless drone in the U.S. is claiming his legal rights were violated when a drone flew overhead during a stand-off with police.

The Lakota, North Dakota, resident held police off for nearly 16 hours as he threatened to kill anyone who came on his property. (The stand-off took place over the ownership of six cows that had made their way onto the man’s property.)

The Department of Homeland Security eventually got involved. It used a drone to accurately pinpoint the man’s location on his farm. Then the arrest was made.

The novel facts of the case seem settled, but the outcome is not.


Permalink 02:20:26 pm, by fourth, 145 words, 375 views   English (US)
Categories: General "Safe Data: Amending the Constitution to protect informational privacy" Safe Data: Amending the Constitution to protect informational privacy by Adam Cohen:

When the National Security Agency spying scandal broke in 2005, it revealed that the government was engaged in a sweeping program of surveillance of its own citizens. As technology advances, the ability of the government to spy on ordinary Americans is growing rapidly. The government has sophisticated methods of intercepting phone calls and Internet traffic. And the FBI has just told Congress it wants to expand its ability to monitor Web-based communications, including Facebook and Twitter, in part by requiring these services to build special "back doors" for the government to use for monitoring. We are also being observed every day by spy cameras, throughout major cities and suburban shopping malls. The public has no way of knowing how much information the government is collecting and what it is being used for.

Permalink 12:21:47 pm, by fourth, 111 words, 400 views   English (US)
Categories: General

LATimes: "Who's got your back online?"

LATimes: Who's got your back online? by Michelle Maltais:

Twitter may be full of a bunch of followers, but the social networking site has proved itself a leader when it comes to protecting its users' privacy.

In an annual survey of who's got your back, the Electronic Frontier Foundation gave Twitter three and a half gold stars out of four. New to the list this year, was the only four-star company.

EFF examined the policies of 18 major Internet companies to assess whether they publicly commit to standing with users when the government seeks access to user data. The companies included email providers, ISPs, cloud-storage providers, and social networking sites.

Permalink 11:26:52 am, by fourth, 66 words, 387 views   English (US)
Categories: General

Cell phone location data

Speaking of the "mosaic theory":

Most cell phone providers keep location data for a year. AT&T has it going back to 2008.
--Jim Harper, Director of Information Policy Studies, The Cato Institute (June 1, 2012)

As cells get smaller, the tracking data gets more accurate.
--Greg Najeim, Senior Counsel, Center for Democracy & Technology (June 1, 2012)

[I just added it up: There were 1572 posts to this website 6/1/11-5/31/12]

Permalink 10:40:07 am, by fourth, 168 words, 388 views   English (US)
Categories: General

N.D.Ohio: Health inspectors could inspect a liquor licensee for violations of Ohio's Smoke Free Workplace Act

The Amvest Post, a private club, had an Ohio liquor license, and health inspectors showed up to investigate complaints of violation of the Ohio's Smoke Free Workplace Act, and they went into areas not open to the public. The entry and inspection did not violate the Fourth Amendment because the club was closely regulated under New York v. Burger. Amvets Post #711 v. Rutter, 2012 U.S. Dist. LEXIS 74743 (N.D. Ohio May 30, 2012):

Ohio's Smoke Free Act authorizes warrantless administrative searches to protect its citizens against the well-documented dangers of and harms from secondhand smoke. The regulation complies with the requirements the Supreme Court set out in Burger. The Act, therefore, does not violate plaintiff's Fourth Amendment rights. Because defendants have not violated plaintiff's constitutional rights, they are entitled to dismissal of plaintiff's complaint.

[Note: The court does not differentiate between the liquor licensing authorities and the health department. The point of Burger is the expectation of privacy vis-a-vis one's license. What about inspections unrelated to the license, like here?]

Permalink 10:26:44 am, by fourth, 264 words, 473 views   English (US)
Categories: General

CA5: Reasonableness for due process purposes can equal reasonableness for Fourth Amendment purposes

Reasonableness for due process purposes can equal reasonableness for Fourth Amendment purposes. Kinnison v. City of San Antonio, 480 Fed. Appx. 271 (5th Cir. 2012):

"As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a government search is 'reasonableness.'" Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). "[A] 'reasonableness' determination[] involves a balancing of all relevant factors," Whren v. United States, 517 U.S. 806, 817 (1996), and for Fourth Amendment purposes generally "requires no more of government officials than that of due process of law. Both constitutional provisions recognize an exigency exception, and, thus, lead to no practical distinction in" the summary action context. Flatford v. City of Monroe, 17 F.3d 162, 170 (6th Cir. 1994) (citing United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993)); see also Freeman, 242 F.3d at 652 (noting that Supreme Court precedent "forecasts, even if it does not compel, that a balancing of the public and private interests at stake will favor the public interest in nuisance abatement after the conclusion of adequate administrative proceedings" (citing GM Leasing Corp. v. United States, 429 U.S. 338 (1977))).

We see no reason to depart from the general practice of tethering the outcome of the Fourth Amendment inquiry to whether the property deprivation offended due process. In light of the procedural due process analysis above, we conclude that the district court should not have granted summary judgment on Kinnison's Fourth Amendment claim. Cf. Samuels v. Meriwether, 94 F.3d 1163, 1168 (8th Cir. 1996) ("[A]n abatement carried out in accordance with procedural due process is reasonable in the absence of any factors that outweigh governmental interests.") (citations omitted).

Permalink 10:16:09 am, by fourth, 279 words, 475 views   English (US)
Categories: General

MA: Host could not consent to search of guest's bag in bedroom

Defendant was the suspect in a string of burglaries and thefts to support a drug habit, and the police went where he was staying to get consent. A guest’s backpack and shopping bag in a house could not be the subject of consent by the host. Commonwealth v. Magri, 462 Mass. 360, 968 N.E.2d 876 (2012):

Thus, the crucial question is whether the defendant had a reasonable expectation of privacy in his bags that were in Barnes's bedroom. It is well settled that an overnight guest maintains an expectation of privacy in luggage stored in a host's dwelling. See, e.g., United States v. Davis, 332 F.3d 1163, 1167-1168 (9th Cir. 2003); United States v. Salinas-Cano, 959 F.2d 861, 864-865 (10th Cir. 1992); United States v. Wilson, 536 F.2d 883, 884-885 (9th Cir.), cert. denied, 429 U.S. 982 (1976). See also 4 W.R. LaFave, Search and Seizure § 8.5(d), at 231-232 & n.104 (4th ed. 2004) ("Among the articles which it would seem would most commonly be deserving of the 'high expectation of privacy' label in the host-guest context would be the overnight bag or suitcase or similar object brought to the premises by the guest").

Although the bags in this case were not traditional luggage, there is no reasoned basis to draw a legal distinction between a guest's containers based on the materials from which they are made, their shape, or the mechanism by which they are closed. Cf. Commonwealth v. Linton, 456 Mass. 534, 557 (2010) (defendant held expectation of privacy in backpack he brought to his brother's house for extended visit). The Commonwealth makes no claim that the bags were not closed. We conclude that the defendant maintained a reasonable expectation of privacy in both his backpack and the shopping bag.

Permalink 09:42:54 am, by fourth, 125 words, 441 views   English (US)
Categories: General

D.Minn.: Words and gestures showed consent

“It light of Kellerman’s ‘words and gestures,’ the officers reasonably believed that Kellerman had consented to their entry into the basement. See Almeida-Perez, 549 F.3d at 1171 (‘Our circuit precedent ... has been more liberal about allowing police to form their impressions from context.’).” United States v. Derden, 2012 U.S. Dist. LEXIS 74684 (D. Minn. April 16, 2012), adopted 2012 U.S. Dist. LEXIS 74218 (D. Minn. May 30, 2012).*

Defendant consented to the entry of her home by the police: “No, no, come in and look. No one is home.” She was arrested for resisting. United States v. Hernandez, 2012 U.S. Dist. LEXIS 74499 (W.D. N.C. April 16, 2012).*

A pre-Gant search in reliance on it was not subject to the exclusionary rule under Davis. Hinkle v. State, 86 So. 3d 441 (Ala. Crim. App. 2011).*

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by John Wesley Hall
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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)
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2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

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"If it was easy, everybody would be doing it. It isn't, and they don't."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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