Archives for: July 2012


Permalink 11:11:32 am, by fourth, 104 words, 395 views   English (US)
Categories: General

The Hill: "Senator wants to require warrant for GPS tracking in cybersecurity bill"

The Hill: Senator wants to require warrant for GPS tracking in cybersecurity bill by Jennifer:

Sen. Ron Wyden (D-Ore.) plans to offer an amendment to cybersecurity legislation that would require law enforcement officials to procure a warrant before obtaining location data from a person's cell phone, laptop or other gadgets.

The bill — called the Geolocation Privacy and Surveillance (GPS) Act — hasn't seen any action since Wyden introduced it last year with Rep. Jason Chaffetz (R-Utah). With the August recess and the presidential election on the horizon, the cybersecurity bill could be Wyden’s last chance to move the GPS measure through the 112th Congress.

Permalink 08:07:38 am, by fourth, 108 words, 442 views   English (US)
Categories: General

OH7: 36 minute stall for drug dog during traffic stop was unreasonable

Defendant was stopped for suspicion of DUI drugs, and it normally took ten minutes to write a citation. There was no suggestion that being under the influence meant possession. Here the officer took 36 minutes as he stalled around for the drug dog to get there, and that was unreasonable because it became a criminal search. “The primary purpose of the exclusionary rule is to remove incentive from the police to violate the Fourth Amendment.” [sure not citing Herring]. State v. Elliott, 2012 Ohio 3350, 2012 Ohio App. LEXIS 2944 (7th Dist. July 11, 2012).

State supported the legality of its DUI checkpoint. City of Ashtabula v. Presciano, 2012 Ohio 3418, 2012 Ohio App. LEXIS 3020 (11th Dist. July 30, 2012).*

Permalink 07:59:26 am, by fourth, 160 words, 352 views   English (US)
Categories: General

OH2: Call of nature during overlong stop was suppressed

Defendant was pulled over for driving with his horn continuously blowing. When the officer found him, he said that he had to urinate really bad and was rushing to a place to relieve himself. The officer told him sit there and wait. He couldn’t wait, so he got out of the car and urinated at the side of the road, and the officer arrested him for public indecency. When defendant said his horn was stuck, the purpose of the stop was over, and it was unreasonable to detain him [probably just to cause discomfort]. The officer did not discover defendant was drunk until he got out to relieve himself and he staggered. The arrest was unlawful and the motion to suppress should have been granted. State v. Wilcox, 2012 Ohio 3400, 2012 Ohio App. LEXIS 2992 (2d Dist. July 27, 2012).*

Controlled delivery of firearms to CI under visual and audio surveillance was probable cause. State v. Shabazz, 2012 Ohio 3367, 2012 Ohio App. LEXIS 2960 (8th Dist. July 26, 2012).*

Permalink 07:48:36 am, by fourth, 163 words, 399 views   English (US)
Categories: General

NM: Round golf ball sized object in pocket was not suspected to be a weapon during patdown, so search for it was unreasonable

The officer could not reasonably conclude that the golf ball size object found in defendant’s pocket after a patdown was a weapon. Alternatively, inevitable discovery did not support search incident of the object in his domestic battery arrest because he was not arrested at the scene and state law did not permit a warrantless DV arrest away from the scene. State v. Almanzar, 2012 NMCA 111, 288 P.3d 238 (App. 2012), Certiorari Granted, November 2, 2012, No. 33,763.*

Officers knocked and were admitted to the house. Additional officers entered by consent by defendant’s girlfriend not objecting and they conducted a sweep of the downstairs to talk to additional persons. State v. Strickland, 2012 Ohio 3397, 2012 Ohio App. LEXIS 2990 (2d Dist. July 27, 2012).* [Two officers in the house and two more called in, and the second wave is consent by not objecting? This isn’t acceding to a claim of lawful authority? I can see this one going down another way for the state, but this resolution is just wrong on consent.]

Permalink 12:01:06 am, by fourth, 186 words, 500 views   English (US)
Categories: General

AK: Suspicious behavior alone not enough to be probable cause

Suspicious behavior alone is not enough to establish probable cause where none otherwise exists. Ruaro v. State, 280 P.3d 1233 (Alas. App. 2012). (From the concurring opinion: “As described by Trooper Brown when he applied for the search warrant, Leon Ruaro received an unusual series of packages over a period of months, all shipped to him in Ketchikan via Alaska Marine Lines. On a couple of occasions, Ruaro became incensed and abusive when the Marine Lines failed to promptly off-load a package from its barge, so that Ruaro could pick it up.” Who gets cocaine by barge? Alaskans apparently do. Drug dogs sniff packages by air, but not by barge.)

Aside from the CI’s basis for a stop, the officer recognized defendant as a person with a suspended DL, and that justified the stop. Pretext was thus irrelevant. United States v. Irons, 2012 U.S. Dist. LEXIS 103708 (N.D. W.Va. July 26, 2012).*

Defendant’s racial profiling IAC claim on his 2255 was barred by the result of his suppression hearing and the Third Circuit affirming on appeal. United States v. Edwards, 2012 U.S. Dist. LEXIS 104191 (E.D. Pa. July 26, 2012).*


Permalink 11:38:39 am, by fourth, 299 words, 517 views   English (US)
Categories: General

NJ: Anonymous 911 call of a domestic battery going on was found objectively unreliable and police could not search

Officers responded to a de facto anonymous 911 call that defendant was beating his girlfriend, the caller’s sister. The police arrived and found nothing that would support that domestic violence was going on. They frisked defendant and found no gun. They searched the house and found a gun. Objectively, searches were invalid under the “emergency-aid test.” New Jersey law should now comport with federal law on this issue. State v. Edmonds, 211 N.J. 117, 47 A.3d 737 (2012):

In light of recent federal precedent, we conclude that the second factor in the emergency-aid test set forth in Frankel, which addresses the officer's subjective motivation, is no longer consonant with Fourth Amendment jurisprudence. Since Frankel, the United States Supreme Court has made clear that, in the emergency-aid context, the subjective motivation of a police officer is irrelevant in determining whether a search or seizure is unreasonable under the Fourth Amendment. Brigham City v. Stuart, 547 U.S. 398, 404-05, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650, 658 (2006). Rather, the test is simply one of objective reasonableness -- viewing the circumstances objectively, were the actions of the officer justified. Ibid.; Michigan v. Fisher, 558 U.S. __, __ , 130 S. Ct. 546, 548, 175 L. Ed. 2d 410, 413 (2009) ("This 'emergency aid exception' does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises. It requires only 'an objectively reasonable basis for believing,' that 'a person within [the house] is in need of immediate aid.'" (citations omitted)).

The Ninth and Tenth Circuits had a three-part emergency-aid test -- almost identical to the one in Frankel -- and eliminated the subjective-motivation factor in the wake of Brigham City. United States v. Snipe, 515 F.3d 947, 951-52 (9th Cir. 2008); United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006).6 We now do the same to align our jurisprudence with federal law.

Permalink 11:27:19 am, by fourth, 135 words, 508 views   English (US)
Categories: General

OR: Community caretaking function justified tow of vehicle to be left on parking lot in high crime area

Towing a vehicle under the community caretaking function was justified where defendant’s car was stopped for a traffic offense and the driver had a suspended DL. It was in a parking lot in a high crime area known for car break-ins, and the vehicle had expensive stuff in it. State v. Oneill, 251 Ore. App. 424, 285 P.3d 1127 (2012).*

The officer’s founded conclusion that the defendant was under the influence of meth when her car was stopped did not also support the inference that the paraphernalia to ingest was also on her person. The motion to suppress should have been granted. State v. Kolb, 251 Ore. App. 303, 283 P.3d 423 (2012).*

Defendant had a valid re-sentencing issue, but he couldn’t gain the benefit of 2009's Gant decision on his 1995 conviction. State v. Pittman, 20 Neb. App. 36, 817 N.W.2d 784 (2012).*

Permalink 10:51:04 am, by fourth, 308 words, 418 views   English (US)
Categories: General

CA8: 911 call led to threat to EMTs with a baseball bat and possible gun, and that justified entry

Plaintiff’s girlfriend discovered that he had an apparent stroke, and she called 911. EMTs arrived, and plaintiff threatened them with a baseball bat. They called for the police, and they arrived and Tasered him when he was threatening and verbally abusive to them. His girlfriend told them he had a rifle in the house, and that concerned them. He sued claiming that they didn’t appropriately respond to the stroke, and he suffered permanent damage. The entry was valid because of the threat with the bat and the report of the gun. Carpenter v. Gage, 686 F.3d 644 (8th Cir. 2012)*:

A reasonable deputy sheriff could have believed that exigent circumstances justified entering Carpenter's home without a warrant. Deputies Gage and Paul both received reports that Carpenter had threatened first responders with a baseball bat. Although Carpenter denies wielding a bat while ordering the first responders out of his house, the relevant question is whether the deputies reasonably believed that he had used a baseball bat. ... Here, the deputies were advised by a reliable source that Carpenter had done so. The deputies also were advised by Carpenter's companion that Carpenter kept a rifle in the home. In light of these facts and Carpenter's belligerence toward the first responders and the deputies, it was reasonable for Gage and Paul to believe that Carpenter may have withdrawn abruptly into his home to retrieve a gun. As neither deputy knew where Carpenter's rifle was located, it was reasonable for them to fear that they lacked time to make a safe retreat. A reasonable officer therefore could have concluded that allowing Carpenter to go unaccompanied back into his home posed a threat to the lives of the law enforcement officers and first responders outside the house. ... For these reasons, the district court correctly dismissed Carpenter's claim alleging an unreasonable search under the Fourth Amendment.

Permalink 10:41:14 am, by fourth, 108 words, 392 views   English (US)
Categories: General

E.D.Va.: IAC search claim also requires allegation search was bad

2255 IAC claim involving a search requires an allegation that the search was invalid for some reason. This one didn’t, so counsel’s failure to file a motion essentially means there was no ground to. United States v. Smith, 2012 U.S. Dist. LEXIS 103848 (E.D. Va. July 24, 2012), R&R 2012 U.S. Dist. LEXIS 97851 (E.D. Va. July 11, 2012).

Defense counsel was not ineffective for not challenging search that was clearly a losing issue. United States v. Luke, 686 F.3d 600 (8th Cir. 2012).*

Defendant’s guilty plea waived the issue of the legality of his arrest in the Phillippines. United States v. Feldman, 879 F. Supp. 2d 231 (N.D. N.Y. 2012).*

Permalink 10:26:09 am, by fourth, 100 words, 374 views   English (US)
Categories: General

S.D.Ga.: Pre-Jones GPS use valid under Davis in CA11

Police investigating a kidnaping placed a GPS on defendant’s car pre-Jones, and this was valid under Davis because of settled circuit law. United States v. Nelson, 2012 U.S. Dist. LEXIS 103944 (S.D. Ga. July 25, 2012).

An anonymous tip of marijuana at a house led to a knock-and-talk and consent which was not coerced. Officers could smell it and see paraphernalia when the door was opened. State v. Delgado, 92 So. 3d 314 (Fla. App. 3d DCA July 25, 2012).*

Detention of the defendant while a search warrant was being executed on his premises was reasonable. State v. Wilburn, 93 So. 3d 1115 (Fla. App. 4th DCA 2012).*

Permalink 10:16:37 am, by fourth, 135 words, 353 views   English (US)
Categories: General

WA: Defendant's testimony about gun essentially waived argument on appeal it was illegally seized

Under the category of "why move to suppress in the first place": The trial court struck parts of the affidavit in support of the search warrant, and it still yielded probable cause. Admission at the trial of the shotgun seized was not even prejudicial here because the defendant testified to it trying mitigate guilt. State v. Martin, 169 Wn. App. 620, 281 P.3d 315 (2012).

Defendant’s guilty plea to felony shoplifting waived his search and seizure claim [which would have failed anyway]. Swilley v. State, 93 So. 3d 901 (Miss. App. 2012).*

Defendant was arrested for domestic battery and removed from the home. His girlfriend was packing his stuff and found a box with child porn in it which she turned over to the police. This was a classic private search. State v. Cameron, 2012 WI App 93, 344 Wis. 2d 101, 820 N.W.2d 433 (2012).*


Permalink 11:55:19 am, by fourth, 308 words, 323 views   English (US)
Categories: General

VA: Exigency permitted entry into defendant's home police thought was being burglarized

Officers received a burglary call and followed fresh footprints in the new snow from one burglary to a trailer that they thought was being burglarized, too. Instead, it was defendant’s, and the entry through the open door for a sweep was valid when nobody answered. When incriminating evidence was found, they got a search warrant. Note that this was analyzed as one of those “split second decisions” for reasonableness. Washington v. Commonwealth, 60 Va. App. 427, 728 S.E.2d 521 (2012)*:

Washington contends the deputies could not be certain a burglary suspect was still in the trailer. True, but the deputies were "not required to possess either the gift of prophecy or the infallible wisdom that comes with hindsight. Their conduct in making a warrantless search must be judged by the circumstances confronting the officers at the time they act." Hill, 18 Va. App. at 3, 441 S.E.2d at 51 (quoting Reynolds v. Commonwealth, 9 Va. App. 430, 437, 388 S.E.2d 659, 664 (1990)). In Fourth Amendment cases, the "calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving." Ryburn v. Huff, 132 S. Ct. 987, 992, 181 L. Ed. 2d 966 (2012) .... Police officers must often make an "on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences." United States v. Taylor, 624 F.3d 626, 634 (4th Cir. 2010) ... When they do so, courts should not "engage in 'should have/could have/would have' hindsight" to second-guess their objectively reasonable judgments. Id.

For these reasons, the trial court correctly denied Washington's motion to suppress the incriminating evidence obtained from the later search pursuant to the warrant. The deputies' initial warrantless entry did not violate the Fourth Amendment's prohibition against unreasonable searches, and thus, the observations made during their protective sweep did not taint the application for the search warrant.

[Actually posted 7/30]


Permalink 04:15:44 pm, by fourth, 286 words, 480 views   English (US)
Categories: General

CA9 grants en banc review of California DNA on arrest case

Rehearing en banc was granted this week by the Ninth Circuit on whether the Fourth Amendment bars seizure of DNA from felony arrestees; Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012), rehearing en banc granted 10-15152 (9th Cir. July 25, 2012). See Federal appeals court to reconsider California DNA-collection law by Maura Dolan. (Note that the en banc grant vacates the panel decision in the Circuit: "The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."

Prior post from Feb. 23 reposted: CA9 upholds DNA testing on an arrest with probable cause. Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012):

We assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances,” balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.

Permalink 01:42:28 pm, by fourth, 229 words, 411 views   English (US)
Categories: General

D.Minn: Govt didn't prove inventory policy, so suppressed (second federal inventory suppressed in a week)

The government didn’t prove the inventory here satisfied the department inventory policy, so the inventory was suppressed. United States v. Caskey, 2012 U.S. Dist. LEXIS 103026 (D. Minn. July 25, 2012)*:

Furthermore, Officer Bobo did not describe the places that department policy allowed an officer to search in a vehicle. It is thus possible that the location of Officer Bobo's search went beyond the policy's dictates. This concern is particularly acute because Officer Bobo did not testify as to where he found each item located in the truck. See Best, 135 F.3d at 1225 (holding that an inventory policy allowed for the opening of any opaque containers but did not allow looking inside door panels).

The mere fact that Officer Bobo testified that he complied with NBPD's policy is insufficient to meet the United States' burden; the United States must define the policy and demonstrate that Officer Bobo complied with it. See Kennedy, 427 F.3d at 1144. The United States has not met its burden of producing evidence that proper inventory search procedures were in place and that law enforcement complied with those procedures. See id. Accordingly, the Court will suppress the items seized from the interior of Caskey's truck during the inventory search.

United States v. Best, 135 F.3d 1223 (8th Cir. 1998), is one of mine. And, the Trooper who made the search is now a friend of mine; he's an elected Sheriff.

Permalink 12:54:05 pm, by fourth, 61 words, 400 views   English (US)
Categories: General "Domestic Drones in North Dakota" Domestic Drones in North Dakota:

In Afghanistan and Yemen, armed drones have become an effective military tool. In the US, unarmed drones have become a tool of domestic law enforcement. Brooke speaks with Star Tribune military affairs reporter Mark Brunswick about the use of an unarmed drone to help end a dispute over six missing cows in North Dakota.

Permalink 10:38:22 am, by fourth, 148 words, 431 views   English (US)
Categories: General

CA3: Unidentified twice 911 caller was corroborated and thus reliable

An unidentified twice 911 caller was [sort of] corroborated and thus reliable for a stop. United States v. Holloway, 489 Fed. Appx. 591 (3d Cir. 2012):

These facts are directly analogous to the instant case: here, the caller was an eyewitness to a recently committed crime, the tip provided a detailed description of the vehicle-including the make, color, and license plate number-while contemporaneously describing the movement of the vehicle, and the caller informed the dispatcher when he and Holloway were about to pass a police station, providing the police with ample opportunity to identify him. This information was credibly available to the caller and it accurately predicted what would follow, namely that Holloway would be found near the reported location with a gun. In addition, the tip was further bolstered by the fact that Holloway was driving in a high-crime area, at a late hour.

This is just too thin for me.

Permalink 10:11:15 am, by fourth, 251 words, 442 views   English (US)
Categories: General

New law review article: "The Importance of James Otis"

Thomas K. Clancy of West Virginia University College of Law has posted The Importance of James Otis, 82 Miss. L. J. __ (2012) on SSRN. Abstract:

Historical analysis remains a fundamentally important tool to interpret the words of the Fourth Amendment and no historical event is more important that James Otis’ argument in the Writs of Assistance Case in 1761. The Writs case and the competing views articulated by the advocates continue to serve as a template in the never-ending struggle to accommodate individual security and governmental needs. In that case, James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles. No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment. More fundamentally, Otis’ importance then and now stems not from the particulars of his argument; instead, he played and should continue to play an inspirational role for those seeking to find the proper accommodation between individual security and governmental needs. Otis proposed a framework of search and seizure principles designed to protect individual security. James Otis, his vision, and his legacy have become largely forgotten outside a small circle of Fourth Amendment scholars. This essay is a modest attempt to recall his importance for contemporary construction of the Fourth Amendment.

If you've been around, you've seen me wax on about Otis and, among other things, the 250th anniversary of his argument on the Writs of Assistance in Boston in February 2011.

Permalink 12:06:21 am, by fourth, 336 words, 615 views   English (US)
Categories: General

CA6: Drug dog instinctively jumping into a car is not a search; joining CA3, 8, 10

Joining the Third, Eighth, and Tenth Circuits, the Sixth Circuit holds that a drug dog’s instinctive jumping into a car is not a search. United States v. Sharp, No. 10-6127, 2012 FED App. 0232P (6th Cir. July 27, 2012):

Unlike other circuits, this Court has not addressed this exact situation. In another case involving a police canine, however, we have stated that “absent police misconduct, the instinctive acts of trained canines ... do[] not violate the Fourth Amendment.” Reed, 141 F.3d at 650. In Reed, the defendant allowed the police and a trained canine to enter his apartment to search for a fugitive burglar. Id. at 647. The police gave the canine the signal to search for intruders and released the dog. Id. The defendant did not know that the canine was also trained to search for drugs. Although not ordered to search for drugs, the dog alerted to the presence of drugs in several areas during the search. Id. The canine alerted to the presence of drugs inside a dresser and knocked one of the dresser drawers off its runners. Id. After the drawer fell to the ground, the police observed, in plain view, what appeared to be narcotics inside the dresser drawer. Id. This Court noted that “at least two circuits have found that, absent police misconduct, the instinctive acts of trained canines, such as trying to open a container containing narcotics, do[] not violate the Fourth Amendment.” Reed, 141 F.3d at 650 (citing United States v. Lyons, 957 F.2d 615, 617 (8th Cir. 1992); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989)).

Our sister circuits who have addressed this precise issue are unanimous in holding that a dog’s instinctive jump into a car does not violate the Fourth Amendment as long as the canine enters the vehicle on its own initiative and is neither encouraged nor placed into the vehicle by law enforcement. See, e.g., United States v. Pierce, 622 F.3d 209, 213-14 (3d Cir. 2010); United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989). ...

Permalink 12:00:28 am, by fourth, 174 words, 431 views   English (US)
Categories: General

E.D.Ky.: Defendant excluded others from his rented room in house; no actual or apparent authority for homeowner to consent

Person who could exclude others from his room he rented in a house had standing to challenge a search of the room. The person who consented had neither actual nor apparent authority to consent to the search of the room, and it wasn’t reasonable for the police to believe he did. United States v. Aponte, 2012 U.S. Dist. LEXIS 103577 (E.D. Kan. July 5, 2012).*

Seven days of surveillance gave reasonable suspicion in this drug case. United States v. Soto-Enriquez, 2012 U.S. Dist. LEXIS 102816 (N.D. Ga. July 24, 2012).*

A tow truck driver repossessing a vehicle called 911 to complain that he just had a gun pulled on him and the vehicle taken. Police stopped the vehicle a minute away from there and frisked the occupants finding no gun. Other officers frisked the vehicle and found the gun in the backseat. The frisk of the vehicle was valid. Also, the vehicle was going to be towed away for other reasons, and it would have been inventoried. United States v. Price, 2012 U.S. Dist. LEXIS 102855 (D. Utah July 23, 2012).*


Permalink 10:38:36 am, by fourth, 471 words, 557 views   English (US)
Categories: General

D.Mont.: Even with a clear Fourth Amendment violation, court has to analyze deterrence of the officers

Police had consent from a roommate to enter the apartment, but defendant was asleep, and the officers had no consent to enter his bedroom. Therefore, the search of the bedroom violated the Fourth Amendment. Still, under Herring, the court has to determine whether exclusion is justified, and it is. United States v. Wohlmaker, 2012 U.S. Dist. LEXIS 103069 (D. Mont. July 24, 2012):

Where police act in objectively reasonable good-faith belief that their conduct is lawful, based on a statute, case law, a warrant, or paperwork that is later found to be incorrect or to violate the Fourth Amendment, the exclusionary rule does not apply because the deterrent value is low. Davis, 131 S. Ct. at 2427-28 (citing cases involving good-faith reliance). On the other hand, where the police deliberately and flagrantly violate the Fourth Amendment, suppression does have a deterrent effect which may outweigh its costs. Herring, 555 U.S. at 143-144. The standard is objective, not subjective, but an officer's knowledge and experience may be considered. Id. at 145. "It is the government's burden to show that evidence is not 'fruit of the poisonous tree.'" United States v. Shetler, 665 F.3d 1150, 1157 (9th Cir. 2011). In this case such a showing was not made.

Here, the officers did not rely on any statute, case law, warrant, paperwork, consent, or other belief that would justify their intrusion into Wohlmaker's bedroom. Case law unquestionably establishes that a person has a legitimate expectation of privacy in his own bedroom, and that only a person with apparent or actual authority may consent to a search of that bedroom. It is also firmly established that consent to search a house or apartment does not extend to others' private bedrooms within that house, unless the consenting individual has joint access and control of the room. E.g. Mejia, 953 F.2d at 466. Nonetheless, the experienced officers in this case entered the bedroom they believed to be Wohlmaker's without a warrant, without consent, and without exigent circumstances. They did not attempt to ask Ritchie for permission to enter Wohlmaker's bedroom, and they did not ask if Ritchie had authority to give such consent. Nor did they attempt to wake Wohlmaker from the hallway to obtain his consent to enter.

The deterrence value of suppression in this case is clear, while the social costs of suppression are low. Wohlmaker could face other charges and has been released on his own recognizance for over a year. Police officers cannot justify peering in every private area of a shared home when consent has only been obtained to enter the common areas. Permitting such activity—which is in clear violation of the Fourth Amendment—would have a high social cost and impact on individuals' legitimate expectation of privacy in their own bedrooms. Thus the evidence that directly and indirectly derived from the officers' illegal intrusion must be suppressed.

Permalink 10:31:04 am, by fourth, 257 words, 556 views   English (US)
Categories: General

E.D.N.Y.: RS for stop gives judge an opportunity to be a jerk pointing it out

Officers had reasonable suspicion, and the judge thought he’d be cute. Instead, he showed that he’s a jerk. United States v. Haynesworth, 879 F. Supp. 2d 305 (E.D. N.Y. July 24, 2012)*:

The United States Supreme Court held in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) that no evidence obtained as a result of an unlawful search and seizure may be used in a criminal prosecution. Judge, later Justice, Benjamin Cardozo summarized the exclusionary rule in his iconic phrase: "The criminal is to go free because the constable has blundered." People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585 (1926). The motion to suppress the gun discovered and the statements made after arrest present the question of whether or not the constables blundered. After hearing the parties and the witnesses to the events in this case, after assessing the credibility of those witnesses, after reviewing the authorities cited by counsel and after determining the facts material to the resolution of the motion, this Court has a one word answer to the question presented: No. These constables did not blunder. This criminal does not go free. The motion to suppress is denied.

He’s an accused criminal, sir. And remember Defore? There the constable arrested Defore outside his house and took him in his house for a search incident. That’s not a blunder–that’s just stupid.

And, judge, just how much do you hate the exclusionary rule that you have to say this? (Did defense counsel say something to set you off enough to prejudge guilt?)

Permalink 09:40:45 am, by fourth, 317 words, 384 views   English (US)
Categories: General

D.Minn.: Inventory was invalid in kidnaping case as a criminal search

There was probable cause to arrest defendant for kidnaping, and he doesn’t dispute it. The inventory of his vehicle [why was it not searchable with PC?], however, was invalid because the search was for criminal evidence, like hair follicles, not for high value items. United States v. Caskey, 2012 U.S. Dist. LEXIS 103026 (D. Minn. July 25, 2012):

In contrast, because the Court finds that the United States has not met its burden of establishing that Officer Bobo conducted the search in accordance with standard police procedures, it finds that the items seized inside the truck are inadmissible. When describing the items that officers could seize pursuant to department policy, Officer Bobo did not define the term "high value items." The Court finds that some of the items seized by Officer Bobo – including receipts, hair follicles, and fingerprints – are not "high value items" within the plain meaning of that term. While it is possible that other items seized by Officer Bobo – such as the camera or women's clothing – might qualify as "high value items" pursuant to department policy, the Court cannot make this determination without further information about the policy.6

6. Furthermore, the NPBD policy may be unconstitutional if it allows investigation into items of "value" only to the police. "[P]olice 'may keep their eyes open for potentially incriminating items that they might discover in the course of an inventory search, as long as their sole purpose is not to investigate a crime,'" United States v. Petty, 367 F.3d 1009, 1013 (8th Cir. 2004) (quoting United States v. Marshall, 986 F.2d 1171, 1176 (8th Cir. 1993)), and "the coexistence of investigatory ... motives will not invalidate the search." United States v. Wallace, 102 F.3d 346, 348 (8th Cir. 1996) (internal quotation marks omitted). However, inventory search policies must relate to the purpose of inventory searches, Best, 135 F.3d at 1225, and an officer's discretion cannot be exercised for the "sole purpose" of investigating a crime, Hall, 497 F.3d at 851.


Permalink 10:46:12 am, by fourth, 285 words, 489 views   English (US)
Categories: General

CA10: Officers believing exigency and beating on door were not threatening to violate the Fourth Amendment if door not opened

Officers beating on the door to open when they reasonably believed there was an exigency was not unreasonable. Their actions did not amount to a threat to violate the Fourth Amendment if the door wasn’t opened. United States v. Ramirez-Fragozo, 490 Fed. Appx. 125 (10th Cir. 2012) [Co-defendant's case: United States v. Canas, 462 Fed. Appx. 836, 2012 U.S. App. LEXIS 3329 (10th Cir. 2012)]:

We emphasize two fundamentals: First, the facts creating the exigency occurred well prior to the officers' arrival at the house, as discussed above. Second, the officers made no overt threat to violate the occupant's rights. After their arrival, the officers knocked on the door several times; they twice announced their presence; they twice asked the occupants to come to the door; and they twice waited for a response. This is not a "demand that amounts to a threat to violate the Fourth Amendment." King, 131 S. Ct. at 1863.

Ramirez-Fragozo argues the "show of military force ... clearly implied that if there was no compliance with their demands the Fourth Amendment would be violated," (Appellant's Br. at 27). However, there was no evidence that the occupants were aware of the extent of the police presence or felt threatened. Mostly we have the suppositions of counsel. We know only that someone spread a blind, peeked out of the window and then drew the blind. We have no idea what the occupants saw or thought.

But we know that after the peek there was a flurry of activity, reasonably suggesting destruction of evidence. Before the officers arrived they were legitimately concerned that critical evidence would be lost if they did not act decisively. The events at the door exacerbated those pre-existing concerns—destruction of evidence was not merely likely, it was ongoing.

Permalink 10:35:59 am, by fourth, 429 words, 467 views   English (US)
Categories: General

CA9: Even under Arvizu BP couldn't show RS for this stop

Defendant was stopped 70 miles north of the Mexican border without reasonable suspicion to believe he was smuggling drugs or people. United States v. Valdes-Vega, 685 F.3d 1138 (9th Cir. 2012) (2-1):

In evaluating whether the stop of a vehicle satisfies the reasonable suspicion standard, we must look to the "totality of the circumstances." Arvizu, 534 U.S. at 273 (internal quotation marks omitted). When a border patrol stop is at issue, the totality of the circumstances may include:

(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including obvious attempts to evade officers; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8) officer experience.

Berber-Tinoco, 510 F.3d at 1087 (quoting United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997)). Under the totality of the circumstances approach, reasonable suspicion may exist even when each individual fact is susceptible to an innocent explanation or is not probative. Arvizu, 534 U.S. at 277. This approach "allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Id. at 273. The court, however, "will defer to officers' inferences only when such inferences rationally explain how the objective circumstances 'arouse[d] a reasonable suspicion that the particular person being stopped ha[d] committed or [was] about to commit a crime.'" ... Accordingly, "reasonable suspicion may not be based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped." ...

. . .

D. The Totality of the Circumstances Did Not Provide Agents with Reasonable Suspicion to Believe that Valdes-Vega Was Smuggling Drugs or Aliens

The facts of this case, when considered cumulatively, do not create a reasonable suspicion that Valdes-Vega was smuggling drugs or aliens. Taken together they reveal the following profile: a Ford F-150 pickup truck, with Baja California plates, being erratically driven on I-15, 70 miles north of the border, at approximately 2:00 in the afternoon, that slowed down as it passed through the closed Temecula Checkpoint, and whose driver failed to look a Border Patrol Agent in the eyes. Putting aside the erratic driving, this description likely "fit[s] hundreds or thousands of law abiding daily users of the highways of Southern California." United States v. Rodriguez, 976 F.2d 592 (9th Cir. 1992), amended by 997 F.2d 1306 (9th Cir. 1993).

The question, then, is whether the addition of the erratic driving to this equation pushes this otherwise innocent profile to a reasonably suspicious one. ...

Permalink 10:20:33 am, by fourth, 515 words, 703 views   English (US)
Categories: General

CA6 elaborates the collective knowledge doctrine

The DEA had reasonable suspicion for stops of this vehicle in a health care fraud case. The state officers involved could rely on the DEA under the fellow officer rule which has it's limits, but they weren't exceeded here. United States v. Lyons, 687 F.3d 754, 2012 FED App. 0229P (6th Cir. 2012).*

Despite its flexibility, the collective knowledge doctrine is not without its restrictions. The doctrine's primary boundary is, of course, the Fourth Amendment itself. As with any traditional investigative stop, a traffic stop based on collective knowledge must be supported by a proper basis and must remain reasonably related in its scope to the situation at hand. See Davis, 430 F.3d at 354. Accordingly, if an investigating officer "lacked sufficient information to satisfy the reasonable suspicion requirement, and the [responding officer's] subsequent observations did not produce reasonable suspicion," then the stop violates the Fourth Amendment. Feathers 319 F.3d at 849. Likewise, if a responding officer exceeds the stop's scope because he was not provided with the facts necessary to stay within its proper bounds, then any evidence improperly obtained therefrom remains subject to the exclusionary rule, just as if the investigating officer committed the error. See, e.g., United States v. Pineda-Buenaventura, 622 F.3d 761, 776 n.5 (7th Cir. 2010) (finding that the exclusionary rule "remain[ed] in play" when supervisors failed to communicate the proper bounds of a search warrant to executing officers). The taint of a stop effected without reasonable suspicion similarly cannot be cured by an after-the-fact relay of information. See Blair, 524 F.3d at 751-52. Applying traditional Fourth Amendment restrictions equally to the collective knowledge doctrine ensures that communications among law enforcement remain an efficient conduit of permissible police activity, rather than a prophylactic against behavior that violates constitutional rights.

The Seventh Circuit has helpfully clarified the application of the collective knowledge doctrine by identifying three separate inquiries: (1) the officer taking the action must act in objective reliance on the information received; (2) the officer providing the information must have facts supporting the level of suspicion required; and (3) the stop must be no more intrusive than would have been permissible for the officer requesting it. United States v. Williams, 627 F.3d 247, 252-53 (7th Cir. 2010) (citing United States v. Nafzger, 974 F.2d 906, 911 (7th Cir. 1992)). We are persuaded by the simplicity of this approach.

Moreover, and from a purely functional standpoint, practical considerations naturally restrict the collective knowledge doctrine, because a responding officer is invariably in a better position when provided with the details helpful and necessary to perform his duties. The relay of sufficient information is critical to a responding officer who needs to, for example, report to the correct location, identify the correct suspect, respond appropriately to exigent circumstances, and protect his safety and the safety of others.

. . .

Moreover, it is immaterial that the troopers were unaware of all of the specific facts that supported the DEA's reasonable suspicion analysis. The troopers possessed all the information they needed to act—a request by the DEA (subsequently found to be well-supported) that they execute the traffic stop in the expectation that illegal narcotics would be found in the vehicle. ...

Permalink 12:42:36 am, by fourth, 151 words, 512 views   English (US)
Categories: General "D.C. Cops: You Can Take Pictures, But we Can Still Seize Your Cameras" D.C. Cops: You Can Take Pictures, But we Can Still Seize Your Cameras by Jason Mick:

Police can no longer detain citizens for taping them doing their job on taxpayer dollars

You pay the bills of an employee. But suddenly, he's holding you at gunpoint, all because you videotaped him while on the job to make sure he was doing the right thing.

I. Police Detain Man for Photographing Him, Forced to Apologize Later

That's the situation a taxpayer named Jerome Vorus found himself in when he was detained by police officers in Washington D.C. for taking pictures of them on the job. The incident occurred in Washington D.C.'s historic Georgetown district, during a traffic stop by police officers. Mr. Vorus -- not involved in the stop -- decided to use the incident to practice his skills as a photojournalist, chronicling the stop in pictures.


Permalink 11:31:32 am, by fourth, 755 words, 426 views   English (US)
Categories: General

MN joins OH on requiring SW for cell phone

While defendant was in a place where he had no standing, he still had a reasonable expectation of privacy in his cell phone from a warrantless search. State v. Barajas, 817 N.W.2d 204 (Minn. App. 2012):

This constitutional protection extends to items "thus closed against inspection, wherever they may be." Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1878) (emphasis added) (recognizing Fourth Amendment protection of sealed letters or packages in the mail); see also United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S. Ct. 1029, 1031-32, 25 L. Ed. 2d 282 (1970) (reaffirming this principle). Indeed, an individual does not necessarily relinquish the constitutional protection afforded to the concealed contents of a closed container by taking the container to a location in which the individual lacks a reasonable expectation of privacy. See Bond, 529 U.S. at 338-39, 120 S. Ct. at 1465 (holding that defendant retained some privacy interest in contents of bag brought onto public bus); United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986) (holding that holdover guest's luggage left in motel room retained Fourth Amendment protection even though motel had legal right to forcibly evict holdover guest); State v. Mooney, 218 Conn. 85, 588 A.2d 145, 161 (Conn. 1991) (holding that defendant retained reasonable expectation of privacy in contents of duffle bag and cardboard box located under highway bridge where he was living). Our careful research, however, has identified no published decisions in Minnesota articulating whether a cellular telephone may be treated as a closed container, the digital contents of which are protected from unreasonable government searches. The facts and circumstances here require us to address this matter of first impression.

The origin of the protection afforded to closed containers is Ex parte Jackson, in which the United States Supreme Court held that the contents of sealed letters or packages in the mail cannot be searched by government agents without a warrant. 96 U.S. at 733. Since then, the United States Supreme Court has explained that the general rule protecting the contents of closed containers applies broadly to all types of containers because "a constitutional distinction between 'worthy' and 'unworthy' containers would be improper." Ross, 456 U.S. at 822, 102 S. Ct. at 2171. As the Ross court observed, "a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf [may] claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case." Id. Similarly, person's privacy interest in the contents of a cellular telephone is not diminished by virtue of those contents' digital format. See Katz, 389 U.S. at 352-53, 88 S.Ct. at 512 (rejecting claim that Fourth Amendment protects only tangible property);1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.6(f) (4th ed. 2004) (observing that the Katz holding suggests that digital information may be protected from unreasonable searches). A cellular telephone that conceals its contents is consistent with the broad definition of constitutionally protected containers described in Ross.

Moreover, rapid advancements in cellular-telephone technology have broadened the capabilities of telephones beyond communication to include the creation and storage of private data that the owner does not intend for others to view. Cellular telephones are capable of storing substantial amounts of private data, including address books and photographs. Smith, 920 N.E.2d at 954-55; see also State v. Ferguson, 804 N.W.2d 586, 591-92 (Minn. 2011) (recognizing contacts list from cellular telephone as evidence). Here, the record clearly establishes that Barajas's cellular telephone is capable of taking and storing digital photographs. For the purpose of determining the constitutionality of a police search, we cannot identify a meaningful distinction between the digital photographs stored in Barajas's cellular telephone and the personal items stored in the paper bag contemplated by the United States Supreme Court in Ross.

We are mindful that, because cellular telephones are capable of sharing information with the public or third parties, the contents of a cellular telephone are not always truly concealed. See Gail, 713 N.W.2d at 860 (concluding that defendant lacked reasonable expectation of privacy in cellular telephone call history because defendant sublet the cellular telephone and the records were held by the telephone service provider and exposed via the "Caller ID" function on the cellular telephone of defendant's call recipient); Smith, 920 N.E.2d at 954 (observing that some cellular telephones can transmit or receive text messages and other data and access the Internet). And the contents of closed containers are not shielded from warrantless intrusion if the container's outward appearance betrays its contents. Sanders, 442 U.S. at 764 n.13, 99 S. Ct. at 2593 n.13. But these circumstances are not before us.

Permalink 11:17:33 am, by fourth, 103 words, 459 views   English (US)
Categories: General

OH12: Man in baggy jeans running in high crime area was RS

Defendant was running in a high crime area wearing baggy jeans, apparently not doing it for the exercise. This justified a stop. State v. Jimenez, 2012 Ohio 3318, 2012 Ohio App. LEXIS 2917 (12th Dist. July 23, 2012).*

The stop was justified for a traffic offense, and the officer asked about the marijuana he could smell. That did not prolong the stop. Parker v. State, 317 Ga. App. 93, 730 S.E.2d 717 (2012).*

Defendant’s running a red light was cause for a stop. While the officer was admittedly confused about a detail, he was found otherwise credible, and that’s binding. State v. Bostock, 2012 Ohio 3324, 2012 Ohio App. LEXIS 2918 (4th Dist. July 19, 2012).*

Permalink 10:54:31 am, by fourth, 265 words, 395 views   English (US)
Categories: General

CA8: RS not needed for driver if there is for passengers

The fact there was no specific reasonable suspicion as to the driver didn’t matter if there was as to co-conspirators in the car. United States v. Zamora-Lopez, 685 F.3d 787 (8th Cir. 2012):

Zamora-Lopez argues the deputies lacked reasonable suspicion that the unknown driver of the Jeep was involved in Memo's narcotics trafficking operations. This argument relies on a too-narrow conception of reasonable suspicion and fails to consider the totality of the information available to the deputies. See Stewart, 631 F.3d at 457. The supplier earlier described to law enforcement a very specific pattern of long-standing conduct that nearly always involved three people—the supplier, Memo, and an unknown driver. Memo and his driver sometimes arrived in a silver SUV. Memo's driver frequently stayed in the area to pick up Memo following the drug transaction. The deputies' surveillance observations during the controlled buy confirmed the supplier's account in virtually every detail. Cf. Illinois v. Gates, 462 U.S. 213, 241-46, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (concluding probable cause existed to issue a search warrant where an anonymous informant's tip was corroborated by law enforcement officers' independent investigations).

The deputies believed Memo was an experienced and high-volume drug trafficker. Such an individual might be expected to rely on trusted confederates to drive him to and from his drug transactions. While Memo might have used unknown and innocent drivers, it was reasonable for the deputies to suspect the unidentified driver was knowingly involved in Memo's drug trafficking activities. Thus, Zamora-Lopez's Fourth Amendment rights were not violated, and the district court's admission of the evidence resulting from the traffic stop was proper.

Permalink 09:20:31 am, by fourth, 377 words, 548 views   English (US)
Categories: General

CA11: Officers investigating child porn by knock-and-talk entered for welfare check; subsequent entry was by consent and attenuated

Officers received a tip that defendant, a pharmacist, had child pornography on a computer. They investigated as best they could and found no support for it. A year later, officers came to his house and, after knocking for several minutes did not bring him to the door, they supposedly feared that he could be ill or worse. Their knocking woke his next door neighbor. Officers entered through a partially open and unlocked sliding glass door and heard moaning. With guns drawn they found defendant nude on an air mattress and unarmed. He said he would talk to them after he got dressed and he’d meet them outside. They went back outside, and he came outside. They never looked at or touched anything. By this time, a child pornography investigator was at the house. Defendant agreed to an entry, and it was admittedly by consent. The court found the second entry was attenuated from the initial entry, valid or not. This was a classic knock-and-talk. United States v. Smith, 688 F.3d 730 (11th Cir. 2012):

In undertaking this [Herring exclusionary rule] analysis, "[w]e are obliged to determine whether the consent was 'sufficiently an act of free will to purge the primary taint of the unlawful invasion,' or, alternatively, whether the causal connection had 'become so attenuated as to dissipate the taint.'" Delancy, 502 F.3d at 1309 (quoting Wong Sun, 371 U.S. at 486-87, 83 S. Ct. at 416-17). This inquiry requires that we review carefully the facts and circumstances of each case. Although no single factor is dispositive, we have identified previously three helpful factors in framing the analysis: (1) the temporal proximity of the illegal act and the subsequent consent, (2) the intervening circumstances and (3) the purpose and flagrancy of the officers' misconduct. Id. These factors "are not meant to be exhaustive." Id. The underlying question "involves a pragmatic evaluation of the extent to which the illegal police conduct caused the defendant's response." Id. at 1310 (internal quotation marks omitted).

We turn first to the time that elapsed between the officers' entry and Mr. Smith's consent. Our case law reflects the commonsense principle that the more time that has elapsed between the illegal act and the defendant's consent, the more likely it is that the defendant's consent was untainted. Id. ...

Permalink 06:19:30 am, by fourth, 146 words, 394 views   English (US)
Categories: General

Kerr and Nojeim: "Patriots Debate: The Data Question: Should the Third-Party Records Doctrine Be Revisited?" Patriots Debate: The Data Question: Should the Third-Party Records Doctrine Be Revisited? by Orin Kerr and Greg Nojeim:


If a suspected thief has left written records of his crime in a friend’s desk, can the police simply subpoena the friend for the records in the desk or should that be treated as a search of the suspect’s property?

That question is at the heart of the “third-party records doctrine,” which has provided guidelines for criminal investigations since the late 1970s. In essence, the doctrine holds that information lawfully held by many third parties is treated differently from information held by the suspect himself. It can be obtained by subpoenaing the third party, by securing the third party’s consent or by any other means of legal discovery; the suspect has no role in the matter, and no search warrant is required.


Permalink 08:53:03 am, by fourth, 113 words, 454 views   English (US)
Categories: General

CA8: RS needed to detain a UPS package in transit

Reasonable suspicion is needed to detain a package, and the markings and other information gave that here. A dog then alerted, and then a search warrant obtained. Then there was a controlled delivery to defendant's house. United States v. Tapia, 481 Fed. Appx. 288 (8th Cir. 2012):

As a law enforcement officer, Meyer needed "reasonable suspicion that a piece of mail, or a package shipped via a commercial carrier, contains contraband to lawfully seize it for investigative purposes." United States v. Lakoskey, 462 F.3d 965, 975 (8th Cir. 2006) (quoting United States v. Smith, 383 F.3d 700, 704 (8th Cir. 2004)). A seizure occurs "when there is some meaningful interference with an individual's possessory interests in that property." Jacobsen, 466 U.S. at 113.

Permalink 08:43:10 am, by fourth, 163 words, 366 views   English (US)
Categories: General

NSLs: New American: "Feds Sue Telecom for Fighting Warrantless Search"

New American: Feds Sue Telecom for Fighting Warrantless Search by Michael Tennant:

The Justice Department is suing a telecommunications company for challenging a request from the Federal Bureau of Investigation for customer information — despite the fact that the law authorizing the request explicitly permits such challenges.

According to documents provided by the Electronic Frontier Foundation (EFF), which is representing the telecom, the company (whose name is one of the many redacted details in the documents) received a national security letter (NSL) in 2011. An NSL is essentially a self-issued search warrant whereby the FBI bypasses the Fourth Amendment and demands information about an individual without bothering to obtain a judge’s consent — and forces the recipient of the letter to keep mum about it because disclosure would allegedly harm national security. NSLs were employed somewhat sparingly prior to 2001 but became widely used — and abused, as the Justice Department’s inspector general reported in 2007 — after the misnamed Patriot Act loosened the requirements for issuing them.

Permalink 08:38:54 am, by fourth, 124 words, 487 views   English (US)
Categories: General

CA9: State appeal collaterally estops § 1983 case over same search

State appeals court affirmance of denial of motion to suppress collaterally estops § 1983 case over the same search. Patten v. County of Lake, 479 Fed. Appx. 781 (9th Cir. 2012).

“[T]he Court concludes that installation and monitoring of a Global Positioning System (‘GPS’) tracking device on a vehicle requires a warrant. The Court further concludes that the so-called ‘good faith’ exception to the exclusionary rule does not apply due to the absence of binding precedent authorizing warrantless GPS installation and tracking. Accordingly, the Court grants defendant's Motion to Suppress Evidence.” United States v. Ortiz, 878 F. Supp. 2d 515 (E.D. Pa. 2012).*

Defense counsel was not ineffective for not challenging defendant’s consent which would surely have lost. United States v. Greer, 2012 U.S. Dist. LEXIS 100121 (D. Neb. July 19, 2012).*

Permalink 08:36:20 am, by fourth, 284 words, 479 views   English (US)
Categories: General

W.D.N.Y.: All Writs Act can be used by govt post-indictment to get DNA sample to connect defendant to offense

All Writs Act, 28 U.S.C. § 1651, can be used for post-indictment DNA testing to attempt to connect defendant to gun in indictment. United States v. Barner, 2012 U.S. Dist. LEXIS 101305 (W.D. N.Y. July 19, 2012):

The All Writs Act provides that courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. §1651(a). It "invests a court with a power essentially equitable and, as such, not generally available to provide alternatives to other, adequate remedies at law." Clinton v. Goldsmith, 526 U.S. 529, 537 (1999). "Courts may rely on [the All Writs Act] to issue orders necessary for conducting factual inquiries." United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995).

While conceding that the it "would most likely" have been appropriate for the government to issue a grand jury subpoena for his saliva at the pre-indictment stage of the case (defendant's Response [51], ¶25), defendant argues that since the government failed to take advantage of this alternative remedy (which is no longer available), no order may be issued under the All Writs Act (id.) (citing United States v. Vanwort, 887 F.2d 375, 387 (2d Cir. 1989), cert. denied, 495 U.S. 906 (1990) ("it is clearly improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial")). That argument was expressly rejected in Li, involving use of the All Writs Act to compel handwriting exemplars following an indictment: "The post-indictment nature of the order did not diminish the trial court's authority to issue the order. The district court had authority to require the handwriting exemplars." 55 F.3d at 329.

United States v. Marshall, 2012 U.S. Dist. LEXIS 101300 (W.D. N.Y. July 19, 2012), too.


Permalink 07:45:21 am, by fourth, 233 words, 621 views   English (US)
Categories: General

S.D.N.Y.: GJ subpoena to photograph tattoos was not unreasonable

A grand jury subpoena to display tattoos for photographing is subject to the reasonableness requirement, and here was shown to be reasonable. United States v. Meregildo, 876 F. Supp. 2d 445 (S.D. N.Y. July 6, 2012), R&R adopted 2012 U.S. Dist. LEXIS 115085 (S.D. N.Y. August 10, 2012):

The Second Circuit has also suggested that displaying one's body in this manner implicates the Fourth Amendment. In dicta, the Court of Appeals cautioned that "perhaps,... a demand for the display of identifying characteristics such as scars or birthmarks on parts of the body not normally exposed" may be a Fourth Amendment "search." United States v. Doe, 457 F.2d 895, 898 (2d Cir. 1972). This Court agrees that compelling a person to display his or her arms, legs, and torso is a Fourth Amendment search.

. . .

A grand jury subpoena is not a warrant and is subject only to the reasonableness requirement of the Fourth Amendment. See Okla. Press Publ'g Co. v. Walling, 327 U.S. 186, 208-209 (1946) (holding that the Fourth Amendment requires that disclosures sought by a subpoena be reasonable); see also United States v. Miller, 425 U.S. 435, 445 n.8 (1976) ("A subpoena duces tecum issued to obtain records is subject to no more stringent Fourth Amendment requirements than is the ordinary subpoena. A search warrant, in contrast, is issuable only pursuant to prior judicial approval and authorizes Government officers to seize evidence without requiring enforcement through the courts." (internal citations omitted)).

Permalink 07:41:34 am, by fourth, 132 words, 380 views   English (US)
Categories: General

D.D.C.: While gov't has burden of proof, a tie on the credibility goes to the gov't on objectively reasonable belief

Where both the defendant and the officer testified credibly that the defendant did or did not have his seat belt on left the court with the conclusion that ties go to the government when the question is the officer’s objectively reasonable belief. United States v. Williams, 878 F. Supp. 2d 190 (D. D.C. 2012).

Officers were in hot pursuit of a suspected burglar and followed him to an apartment building and an apartment from which burning marijuana could be smelled. They knocked several times and were finally admitted, and a gun was in plain view. A protective sweep was conducted. Even without exigency, there was written consent. [Consent here is suspect because of the banging on the door insisting on entry.] United States v. Stokes, 2012 U.S. Dist. LEXIS 100572 (E.D. Pa. July 12, 2012).*

Permalink 07:20:45 am, by fourth, 167 words, 391 views   English (US)
Categories: General

E.D.N.Y. Co-conspirator with key and alarm password had apparent authority

Giving a co-conspirator a key to the building because he regularly used it and the password to turn off the burglar alarm was sufficient to give him apparent authority to consent to a search. United States v. Wright, 2012 U.S. Dist. LEXIS 100676 (E.D. N.Y. July 19, 2012):

Here, in the testimony at the hearing, the Government proved that Spears was a co-conspirator with Wright with regard to the possession and distribution of drugs; that Wright gave Spears a key to the subject apartment in Mineola; that Spears used the key to enter the apartment on a number of times prior to May 17, 2008; that Spears knew the password to turn off the alarm in the apartment; that Spears was present in the apartment when the alarm was installed, when Wright told the installer that "the other black male could know the password to the alarm;" and that prior to May 17, 2008, Spears had stayed and slept in the apartment on a number of occasions, sometimes without Wright being present.

Permalink 06:51:48 am, by fourth, 130 words, 422 views   English (US)
Categories: General

CA6: Conceding RS existed if officer credible means you can't change the argument on appeal to no RS

Defendant admitted in the suppression hearing that the officer, if believed, had reasonable suspicion, and there was little on which to challenge the officer’s credibility at the hearing. Having conceded that, he couldn’t change his argument on appeal to include a lack of reasonable suspicion. United States v. Jackson, 490 Fed. Appx. 707 (6th Cir. 2012)*:

Because Jackson waived below any challenge other than one based on credibility, our review of the denial of his suppression motion is limited to that issue. United States v. Collins, — F.3d —, No. 10-6454, 2012 WL 2094415, at *2 (6th Cir. June 12, 2012) ("When a defendant raises an argument by motion but then abandons the argument before the district court, the defendant has waived the argument and this Court cannot review that issue even for plain error." (citations omitted)).


Permalink 07:55:23 am, by fourth, 175 words, 429 views   English (US)
Categories: General

CA6: Forcibly removed co-tenant still can have apparent authority to consent

Plaintiff was acquitted of domestic battery so he sued all the officers involved, and they had qualified immunity. The entry into plaintiff’s house was with the apparent authority of the victim who still had it despite having been forcibly removed by plaintiff. Hays v. Bolton, 488 Fed. Appx. 971 (6th Cir. 2012):

We have held that "magic words" are not necessary for effective consent; rather, the totality of the circumstances, including a party's non-verbal conduct, should be considered in determining whether consent exists. See United States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) (finding consent "considering th[e] testimony and all [of] the circumstances" where an ordinary citizen would have recognized that assent had been given). Here, the totality of the circumstances suggested that Heather was a forcibly removed co-tenant with authority to consent to a warrantless search of the residence. Even assuming Heather was no longer a resident and lacked the actual authority to consent to a search, we conclude that she displayed apparent authority sufficient to justify Officers Bolton and Grassnig's conduct under the Fourth Amendment.

Permalink 07:50:02 am, by fourth, 167 words, 427 views   English (US)
Categories: General

TN: IAC: Not filing a motion to suppress bloody shoes was valid strategy where defense was alibi and they weren't defendant's

It was a valid strategic decision not to file a motion to suppress a search of defendant’s bedroom where bloody shoes were found. Defendant’s contention all along was that the shoes were not his, were the wrong size, and he had an alibi for the murder. Besides, it looks like there was no valid ground to suppress anyway. Gardner v. State, 2012 Tenn. Crim. App. LEXIS 526 (July 20, 2012).

Officers conducted an illegal protective sweep of defendant’s house before they got a search warrant. Removing what was learned from the illegal protective sweep from the search warrant affidavit still left probable cause for the search. Martinez-Vargas v. State, 730 S.E.2d 633 (Ga. App. 2012).*

The trial court did not abuse its discretion in not suppressing defendant’s arrest for “a vicious murder” without an arrest warrant. When police arrived at the residence of the defendant, they saw him doing something with a bicycle, which was the motive for the murder. Paul v. State, 971 N.E.2d 172 (Ind. App. 2012).*

Permalink 07:00:55 am, by fourth, 145 words, 456 views   English (US)
Categories: General

OH4: State was sufficiently on notice from motion to suppress to know to call the dog handler at the hearing

Defendant’s motion to suppress was sufficiently detailed [not a lot but still enough] to put the state on notice what the issues were at the suppression hearing, and the state was not entitled to a continuance at the hearing to get the dog handler there to testify to finding the drugs. State v. Rife, 2012 Ohio 3264, 2012 Ohio App. LEXIS 2856 (4th Dist. July 10, 2012).

Walking through the parking lot of a closed business at 1:30 am to an illegally parked car is reasonable suspicion. State v. Pittman, 2012 Ohio 3297, Ohio App. LEXIS 2900 (6th Dist. July 20, 2012).*

When the officer stopped defendant for a headlight being out, she was asked “is there anything in the car I should be concerned about,” and she produced a pipe. That was enough to get her out of the car and extend the stop further. State v. McDaniel, 2012 Ohio 3286, 2012 Ohio App. LEXIS 2887 (2d Dist. July 20, 2012).*

Permalink 06:23:25 am, by fourth, 142 words, 478 views   English (US)
Categories: General

CA6: Answering a knock at the door and unlocking it is not consent to enter

Officers were not entitled to qualified immunity for this entry because unlocking the door to answer it is not consent to enter. Even if it could be construed as consent, the officers’ banging on the door and threatening jail time if he didn’t let them in is hardly consent. Turk v. Comerford, 488 Fed. Appx. 933 (6th Cir. 2012).*

Officers who traveled outside their jurisdiction in Illinois could not statutorily arrest the defendant without a local officer present. Search incident and statements suppressed. People v. Harrell, 2012 IL App (1st) 103724, 975 N.E.2d 624 (2012).*

Collateral estoppel: “The district court properly granted summary judgment on Patten's Fourth Amendment claim because issues related to the initial search and seizure were precluded by the California Court of Appeal's judgment affirming the denial of Patten's motion to suppress.” Patten v. County of Lake, 2012 U.S. App. LEXIS 14934 (9th Cir. July 20, 2012).*

Permalink 12:01:35 am, by fourth, 145 words, 436 views   English (US)
Categories: General

TX13: Consent to search car included under the kickplate that could be removed without tools

Defendant’s consent to search the car included the kickplate which could be removed without tools. Cedeno v. State, 2012 Tex. App. LEXIS 2716 (Tex. App. – Corpus Christi-Edinburg April 5, 2012), Released for Publication May 17, 2012

A motion to reconsider is appropriate to bring attention to something that changed or is missing, but this one doesn’t, and it’s also untimely. United States v. Lopez, 2012 U.S. Dist. LEXIS 100749 (D. Kan. July 20, 2012).*

The police received an anonymous call about a black Saturn in a particular location occupied by a man with a gun who was hunting another man who’d robbed him so he could shoot the robber. The first effort to find the car was fruitless, but later in the night the car was found and the details were corroborated. The officers had reasonable suspicion. United States v. Garcia, 2012 U.S. Dist. LEXIS 99754 (S.D. N.Y. July 10, 2012).*


Permalink 09:50:45 am, by fourth, 101 words, 357 views   English (US)
Categories: General

Politico: W.H.: Surveillance exceeded limits

Politico: W.H.: Surveillance exceeded limits by AP:

In a rare move, the Obama administration acknowledged Friday that the government's surveillance efforts have exceeded legal limits on at least one occasion.

The Office of the Director of National Intelligence made the comment in a letter to Democratic Sen. Ron Wyden.

Wyden is a member of the Senate Intelligence Committee. The Oregon Democrat has suggested that the government may be reviewing the emails and phone calls of law-abiding Americans in the U.S. who are at the other end of communications being monitored abroad by the U.S. government.


Permalink 09:24:13 am, by fourth, 142 words, 436 views   English (US)
Categories: General

D.Minn.: One needs standing to object to installation of a GPS device

Defendant who did not have a possessory interest in a car did not have standing to contest installation of a GPS device, even if it violated the rights of the owner under Jones. United States v. Maldonado, 2012 U.S. Dist. LEXIS 99992 (D. Minn. July 19, 2012).

Defendant’s 2255 claim that the search exceeded the consent was decided on direct appeal. Also, watching a search by consent and not objecting to scope supports that the search was within the scope of the consent. United States v. Greer, 2012 U.S. Dist. LEXIS 100121 (D. Neb. July 19, 2012).*

The officer had reasonable suspicion after defendant’s stop because defendant acted in a manner potentially consistent with criminal activity when he shook uncontrollably, stared straight ahead without looking at the officer, and refused to cooperate with lawful requests to exit the vehicle. United States v. Hill, 492 Fed. Appx. 365 (4th Cir. 2012).*

Permalink 09:02:57 am, by fourth, 140 words, 440 views   English (US)
Categories: General

S.D.Tex.: 2255 argument that search claim was improperly argued is really just an attempt to reargue a decided claim

Defendant’s attempt to recast his already denied-on-appeal search issue as an ineffective assistance claim that it wasn’t argued right the first time fails as an attempt to relitigate that which is already decided. Montanya v. United States, 2012 U.S. Dist. LEXIS 99324 (S.D. Tex. July 17, 2012).*

Defendant’s motion to suppress was improperly granted. When the officer approached defendant, he was sitting in his car with the door open, so it wasn’t a stop. The officer’s declining to tell defendant why he was talking to him (“wait a minute”) did not convert it to a stop. State v. Glauser, 2012 Ohio 3230, 2012 Ohio App. LEXIS 2844 (5th Dist. July 11, 2012).*

Furtive gestures in a high crime area known for narcotics and further furtive gestures toward the console after the stop was reasonable suspicion. Beasley v. Commonwealth, 60 Va. App. 381, 728 S.E.2d 499 (2012).*

Permalink 08:42:54 am, by fourth, 388 words, 624 views   English (US)
Categories: General

Cal.6: Sweep of house was factually unjustified and suppressed

The state opposed the “sweep” of defendant’s house without citing Buie or any justification other than officer safety, but the officers could not articulate a factual basis for the need for a sweep. The entry into his house was unjustified. People v. Werner, 207 Cal. App. 4th 1195, 144 Cal. Rptr. 3d 266 (6th Dist. 2012):

... The test under Buie therefore requires a reasonable suspicion both that another person is in the premises and that that person is dangerous. (3 LaFave, Search and Seizure (4th ed. 2004) § 6.4(c), p. 377.) The existence of such a reasonable suspicion is evaluated on a case-by-case basis by looking at the “totality of the circumstances” to ascertain whether the police had or whether the officer has “a particularized and objective basis” for his or her suspicion. (United States v. Arvizu (2002) 534 U.S. 266, 273.)

A protective sweep is not limited to situations immediately following an arrest; it may occur in conjunction with a suspect’s detention (Celis, supra, 33 Cal.4th at p. 679), or a valid probation search (People v. Ledesma (2003) 106 Cal.App.4th 857, 864 (Ledesma)). And in some instances, an entry of a residence solely to conduct a protective sweep may be justified to ensure the safety of officers effectuating arrests just outside. (People v. Maier (1991) 226 Cal.App.3d 1670, 1675; see also Ledesma, at p. 864, fn.3.) “[I]n some circumstances, an arrest taking place just outside a home may pose an equally serious threat to the arresting officers as one conducted inside the house. [Citation.]” (Celis, supra, 33 Cal.4th at p. 679, italics omitted.) The facts known to the officers before they perform such a protective sweep must still satisfy Buie; there must be “articulable facts” considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbors a person posing a danger to officer safety. [Citation.]” (Celis, at pp. 679-680, citing Buie, supra, 494 U.S. at pp. 327, 334.)


Here, there are even fewer facts than in Celis that justifed a protective sweep. Unlike in Celis, the deputies in this case had no information whatsoever that anyone lived in the home besides defendant and Ingram; in fact, they had been told by Ingram that no one was inside. Further, the deputies had no evidence that Ingram was dangerous or had any criminal history. ...

h/t to a reader

Permalink 08:26:06 am, by fourth, 305 words, 1379 views   English (US)
Categories: General

TX1: Show of force and firing a gun while ordering defendant to come out was not consent

Numerous officers came to defendant’s house with a warrant to only enter the curtilage to look for municipal code violations. They surrounded his house and banged on doors and windows and ordered him to come out because they weren’t leaving. One of them fired a shotgun. When he came out, they argued it was by consent. Not hardly. Orosco v. State, 394 S.W.3d 65 (Tex. App. – Houston (1st Dist.) 2012):

"Opening the door to one's home is not voluntary if ordered to do so under color of authority." Reeves, 524 F.3d at 1167. "If an individual's decision to open the door to his home to the police is not made voluntarily, the individual is seized inside his home." Id. "A reasonable person faced with several police officers consistently knocking and yelling at their door for twenty minutes in the early morning hours would not feel free to ignore the officers' implicit command to open the door." Id.

Under these circumstances, it cannot be said that appellant voluntarily exposed himself to a warrantless arrest by leaving the confines of his home. After searching the property before daylight, seven officers surrounded the home, knocked on doors and windows for 20 to 30 minutes, and discharged a weapon before appellant exited the house. As the officers themselves testified, they were not leaving the premises, nor allowing anyone else to enter or leave the premises, until appellant answered the door and responded to their questioning. In effect, appellant's home was under siege when he finally consented to come outside. Because he answered the door in response to an unreasonable show of authority by the officers, he was unconstitutionally seized at that time. See Hernandez, 392 F. App'x at 353; Reeves, 524 F. 3d at 1169. Thus, we turn to the issue of whether appellant's subsequent consent to search was sufficiently attenuated from his unconstitutional seizure.

Permalink 07:58:18 am, by fourth, 112 words, 353 views   English (US)
Categories: General

MN: There is no due process right to refuse a properly requested medical test for DUI

“Minnesota's chemical-test-refusal statute does not violate an individual's substantive due process rights because an individual does not have a fundamental right under the due process clauses of the United States Constitution and Minnesota Constitution to passively or nonviolently refuse to submit to a constitutionally reasonable police search, and the imposition of criminal penalties for refusing to submit to a properly requested chemical test is a reasonable means to a permissible state objective.” State v. Wiseman, 816 N.W.2d 689 (Minn. App. 2012).*

An allegation of sexual assault on a minor with a reference to photography is enough to show probable cause for production of child pornography. State v. Johnson, 372 S.W.3d 549 (Mo. App. 2012).*

Permalink 07:28:26 am, by fourth, 148 words, 1365 views   English (US)
Categories: General MD DNA case going up: "Maryland law enforcement agencies resume DNA collections" Maryland law enforcement agencies resume DNA collections by Yvonne Wenger:

Maryland Attorney General Douglas F. Gansler has asked the Supreme Court to decide whether collecting the genetic information before a person is convicted violates the Fourth Amendment right to be free from unreasonable search and seizure. The samples are used to link suspects to DNA evidence from previous crime scenes.

Roberts' order is a first step in a long process leading up to the Supreme Court's decision whether to take up the issue, which has split lower courts across the country. The federal government and about half the states allow police to collect DNA after an arrest.

The Maryland Court of Appeals, the state's highest court, blocked the collections in April. A chief concern for those opposed to the practice is that the DNA samples, unlike fingerprints, provide access to a significant amount of personal information.

Permalink 07:24:31 am, by fourth, 319 words, 2088 views   English (US)
Categories: General "Spy Agency Activities Violated Fourth Amendment Rights, Letter Discloses" Spy Agency Activities Violated Fourth Amendment Rights, Letter Discloses by Sibhan Gornman:

WASHINGTON—National Security Agency spy activities on at least one occasion have violated the Fourth Amendment protections against unreasonable search and seizure, according to a ruling by the U.S.'s secret national security court.

The ruling, which was revealed Friday in a declassified statement, represented the first time the government has acknowledged U.S. spy activities violated the constitution since the passage of a 2008 law that overhauled surveillance laws following the uproar over the NSA's warrantless wiretapping program in the George W. Bush Administration.

Note: The FISA court has issued one opinion, posted here. It operates virtually in secret. Only the government seems to know it exists. Search "FISA" on this website; there are about 20 entries. Some depressing. FISA operates largely extra-judicially with little control, and I recall, but can't readily find, that the government admitted regularly violating FISA years ago in a letter to the FISA court.

On my drive to work everyday I pass by Metropolitan Tower, where, on the 39th floor, sits the chambers of Senior Judge Morris Sheppard Arnold of the Eighth Circuit. Hard to believe that it is one of the pivot points of the U.S. national security apparatus, but it is. He became the presiding judge of that court in May.

We shared a flight back to Little Rock from St. Louis after argument many years ago. He wasn't on my panel. I asked him about whether he had any interesting cases. With a wry smile, he said: "Well, sometimes the government has to lose." He's a Republican appointee, like Souter. Every once in a while I run into him in restaurants or on the street.

Picture the HBO show "Deadwood," and the FISA applicants are the cowboys and the denizens of Deadwood. He's the sheriff. Way better than what we've had in the past, believe me.


Permalink 06:58:47 am, by fourth, 175 words, 357 views   English (US)
Categories: General "GPS Hijacking Catches Feds, Drone Makers Off Guard" GPS Hijacking Catches Feds, Drone Makers Off Guard by Lorenzo Franceschi-Bicchierai:

On June 19, when University of Texas researchers successfully hijacked a drone by “spoofing” it — giving it bad GPS coordinates – they showed the Department of Homeland Security how civilian drones could fall into the wrong hands, exposing a potentially serious security flaw. It was exactly what Todd Humphreys, the lead researcher, anticipated in a TEDx talk in February: “You can scarcely imagine the kind of havoc you could cause if you knew what you were doing with a GPS spoofer.”

On Thursday, a month after the experiment, the investigations panel of the House Homeland Security Committee held a hearing on how civilian drones could affect the security of the American airspace. “These findings are alarming and have revealed a gaping hole in the security of using unmanned aerial systems domestically,” said Rep. Michael McCall, the panel’s chairman. “Now is the time to ensure these vulnerabilities are mitigated to protect our aviation system as the use of unmanned aerial systems continues to grow.”

Permalink 04:57:39 am, by fourth, 153 words, 398 views   English (US)
Categories: General "Secret surveillance and gag orders highlight weak US data privacy laws" Secret surveillance and gag orders highlight weak US data privacy laws by Joshua Kopsteinon:

From cell phone tower dumps to the NSA's surveillance compound in Utah, the number of tools that government agencies use to obtain and store the communications records of phone and internet subscribers has expanded immensely in the past few years. An article in yesterday's Wall Street Journal focuses on an unnamed phone company in Northern California who, with the help of the EFF, has been fighting since May of 2011 against one method that's particularly alarming in its obscurity. The National Security Letter (NSL), created by statute in the 1980s and expanded greatly in power by the USA Patriot Act in 2001, is a kind of secret subpoena that can give the FBI free reign over an American citizen's cell phone data — including text messages, call logs, location data, and more — without the need for judicial approval or oversight.


Permalink 09:06:30 am, by fourth, 101 words, 418 views   English (US)
Categories: General

CA9: Refusal to empty pockets is not a search under Hodari D.

A forest service officer reasonably suspected defendant of smoking marijuana and he ordered him to empty his pockets. His refusal made it not a search. “Cf. California v. Hodari D., 499 U.S. 621, 629, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (holding no Fourth Amendment seizure occurred when juvenile did not comply with officer's command to halt).” When defendant finally did, it was with probable cause. United States v. Pope, 686 F.3d 1078 (9th Cir. 2012).

Officers who had probable cause to believe the occupants in a car were involved in a crime was sufficient to justify a search. Williams v. State, 316 Ga. App. 821, 730 S.E.2d 541 (2012).*

Permalink 09:05:10 am, by fourth, 116 words, 432 views   English (US)
Categories: General

MA: Where there's justification for a frisk for weapons it might extend to the car as well when none is found on the person

The officer had reasonable suspicion for a “patfrisk” during a traffic stop, and defendant was “agitated” when it was happening. Defendant was put in the patrol car, and a frisk of the car for a weapon was justified by defendant’s demeanor because the officer didn’t want the defendant to later come out of the car and get a hidden weapon. Commonwealth v. Myers, 82 Mass. App. Ct. 172, 971 N.E.2d 815 (2012).

Trial court found consent, but defendant did not raise the scope of consent in the trial court. He asked for remand to settle that, but it was waived by not having raised it in the first place. State v. Bell, 2012 N.C. App. LEXIS 868 (July 17, 2012).*

Permalink 08:15:55 am, by fourth, 276 words, 611 views   English (US)
Categories: General

CA9: Frisk without reasonable suspicion of nervous crime victim unreasonable

Defendant was on probation and he was an assault victim beaten on a bus. When the police arrived, they treated him like the suspect and searched him, and the motion to suppress should have been granted. Inevitable discovery does not apply because the officers did not know that he was on probation, and there was no reasonable suspicion for any search. United States v. Hernandez, 489 Fed. Appx. 157 (9th Cir. 2012):

=> Read more!

Permalink 08:06:48 am, by fourth, 193 words, 481 views   English (US)
Categories: General

N.D.Ohio: Foreigner did not truly consent to opening trailer during stop

Defendant was “asked” to get out of the truck and open the trailer to show whether the contents really was furniture. Because he was a foreigner, he didn’t understand this as a request; rather it was submission to a claim of authority. United States v. Younis, 890 F. Supp. 2d 818 (N.D. Ohio 2012):

The defendant is a foreign national with limited ability to understand and speak English. In all likelihood he, unlike native born citizens. probably had no culturally acquired or even subliminal understanding of his Fourth Amendment rights. On being stopped, he was simply asked, in English, if the trooper could see the furniture. To which his wife responded, "Yeah." This was followed by some conversation in Arabic between the defendant and his wife. The trooper then asked who would be getting out of the truck. The defendant said, "I am" and went to the back of the truck and opened the door.

The Fourth Circuit has previously found a drug dog’s 60% reliability rate to be sufficient, and this one was better than that, so motion to suppress denied. United States v. Green, 2012 U.S. Dist. LEXIS 99220 (W.D. Va. June 28, 2012).*

Permalink 07:51:35 am, by fourth, 209 words, 486 views   English (US)
Categories: General

E.D.Tex.: Search incident of a cell phone is reasonable in the Fifth Circuit

Relying on circuit precedent, a seizure and then search of a cell phone on an arrest with probable cause was reasonable. United States v. Johnson, 2012 U.S. Dist. LEXIS 99099 (E.D. Tex. June 18, 2012).*

The affidavit for the search warrant adequately showed that the defendant ran a drug trafficking organization from his business, and that justified an all records search warrant. “And, given the nature of the crime being investigated, the list of the items to be seized, although broad and covering many categories of items, was sufficiently particular and not over-broad.” United States v. Santiago Villaueva Pineda, 2012 U.S. Dist. LEXIS 98692 (N.D. Ga. June 4, 2012).*

2255 movant’s search claims were already subject to “full and fair litigation.” His claim that “the date stamp on the search warrant application equates with fraud is utterly frivolous, inasmuch as the stamp only indicates the day that the application was received by the clerk's office following the application's approval by the undersigned. His other arguments are also deficient, inasmuch as they rely upon self-serving allegations with no support other than the movant's word. The movant demonstrates neither error by his counsel nor cause and prejudice, and these claims accordingly fail.” Hicks v. United States, 2012 U.S. Dist. LEXIS 99118 (S.D. W.Va. January 12, 2012).*


Permalink 12:37:41 pm, by fourth, 288 words, 1026 views   English (US)
Categories: General

CA1: Failure to renew suppression motion after trial testimony became pertinent precludes use of it on appeal

Defendant’s failure to renew his motion to suppress after trial testimony became pertinent precludes use of the trial testimony to attack the suppression finding. United States v. Howard, 687 F.3d 13 (1st Cir. 2012):

Whether Howard's theorem on the chronology of VanZandt's actions is or is not accurate, we need not say. VanZandt did not testify at the suppression hearing; he only testified at trial. Similarly, the photograph of the cigarette was only introduced at trial. Although Howard acknowledges this point, he nonetheless urges us to consider the testimony and photograph in our review of the district court's denial of his motion to suppress and, in particular, the court's factual finding on the search's timing. While it is true that we may consider evidence adduced at trial when reviewing the denial of a motion to suppress, we may do so only if the defendant renewed his suppression motion at trial. See United States v. Scott, 566 F.3d 242, 245 (1st Cir. 2009); United States v. de Jesus-Rios, 990 F.2d 672, 675 n.2 (1st Cir. 1993). Howard did not renew his motion at trial and so our review does not include VanZandt's testimony or the photograph. Our examination of the propriety of the suppression ruling is limited to the evidence presented at the suppression hearing. See Scott, 566 F.3d at 245. At the suppression hearing, documentary evidence, in the form of the grand jury transcript, Knowles' statement to police, her consent waiver, and photographs of the house, was introduced. Additionally, Knowles and six Springfield police officers testified. The officers were those involved in arresting Howard, obtaining Knowles' consent, searching the house, booking Howard, taking Knowles' statement, or some combination of these things. This evidence, taken as a whole, supports the court's finding that consent preceded the search.

Permalink 12:10:44 pm, by fourth, 137 words, 361 views   English (US)
Categories: General

WaPo: "Outcry erupts after San Francisco mayor considers stop-and-frisk policing amid crime spike"

WaPo: Outcry erupts after San Francisco mayor considers stop-and-frisk policing amid crime spike by AP:

Mayor Ed Lee said he wanted to spark a discussion about a spike in violent crime when he mentioned that he was considering a controversial stop-and-frisk policy used by police in New York, Philadelphia and some other big cities.

Instead, he has heard an outcry from city officials, civil liberties groups and residents who were shocked that the mayor would explore such a strategy in the international tourist mecca known for its uber-liberal outlook.

. . .

Lee recently told a newspaper editorial board that San Francisco police officers need stop-and-frisk authority to get guns off the streets, and he was willing to consider what other cities were doing after his city was wracked by 10 homicides in June — its deadliest month in nearly four years.

Permalink 12:07:20 pm, by fourth, 134 words, 348 views   English (US)
Categories: General "It Isn’t Necessarily Big Brother, But Somebody Is Potentially Watching, Virtually All the Time" It Isn’t Necessarily Big Brother, But Somebody Is Potentially Watching, Virtually All the Time by Martha Neil:

Think your posts on Facebook are private? Think again.

It's only a computer scanning them, under ordinary circumstances, but certain content could flag a post for human review if criminal conduct is suspected, according to Reuters and Slate.

Tempted to say you're hard at work when you're not or for some other reason claim to be in a fictitious location? Government investigators can potentially use either your smartphone, or even an ordinary cellphone to pinpoint where you were at any given time. Although civil rights advocates are arguing that a warrant is required, global positioning system software within smartphones can't be shut off even when the phone isn't live, recent news articles point out.

Permalink 10:17:07 am, by fourth, 124 words, 329 views   English (US)
Categories: General

M.D.Pa.: Identified citizen informant could be relied on

Information from an identified citizen informant was sufficient for a stop for bank robbery, and probable cause developed from there. United States v. Elmore, 2012 U.S. Dist. LEXIS 98269 (M.D. Pa. July 16, 2012).*

The officers reasonably believed the consenter had authority since she was the owner of the property and said that defendant was no longer there. United States v. Deloney, 2012 U.S. Dist. LEXIS 98851 (W.D. Mo. June 20, 2012).*

After a consent search on 2254, the defendant did not show that anything remotely suggested that the consenter did not have authority to so so, so he would have lost on the merits of the Fourth Amendment issue, and his lawyer couldn’t be ineffective. Garrett v. United States, 2012 U.S. Dist. LEXIS 98966 (M.D. Fla. July 17, 2012).*

Permalink 09:45:29 am, by fourth, 214 words, 429 views   English (US)
Categories: General

N.D.Ohio: Officer's deliberate failure to record traffic violation undermines his credibility on that

Officer’s deliberate failure to turn on recording equipment affects the court’s view of his credibility that the defendant’s vehicle hit the fog line three times without hitting the rumble strips next to the fog line. United States v. Younis, 2012 U.S. Dist. LEXIS 98774 (N.D. Ohio July 16, 2012)*:

As I noted in my comments at the conclusion of the evidentiary hearing, the failure, which I deem deliberate, not to activate the record function manually greatly affects my view of the trooper's credibility. Particularly given the fact that recording continued for several minutes as another trooper was driving the truck to the post, the failure to record from the outset, or, at the latest on observing the first lane violation, is inexplicable.

There was ample recording capacity in the unit - indeed, none of the six hours' capacity had been used during the trooper's first six hours on duty. The failure to turn on the recording function when there was no reason not to do so substantially undercuts the credibility of the trooper's testimony.

Unless recorded, allegations of repeated lane violations, especially within a relatively short distance, as the trooper claimed he saw happen, strain credulity. Like the notorious "dropsy" cases of yore, there is something inherently implausible in this sort of contention.

Permalink 05:46:06 am, by fourth, 12 words, 626 views   English (US)
Categories: General

Because of social media, there is more information posted on the Internet every two days than the entirety of information in the world through 2003.

--Through the Wormhole, Science Channel (July 11, 2012)

And 99% of it is utterly meaningless.

Permalink 05:34:48 am, by fourth, 270 words, 669 views   English (US)
Categories: General

CA9: LA ordinance requiring motel records be shown to police did not violate Fourth Amendment

A Los Angeles ordinance requiring motel operators to open their registration records to the police does not violate the Fourth Amendment. Patel v. City of Los Angeles, 686 F.3d 1085 (9th Cir. 2012) (2-1):

Plaintiffs Naranjibhai Patel and Ramilaben Patel are owners and operators of motels in Los Angeles. They challenge the constitutionality of Los Angeles Municipal Code (LAMC) § 41.49, which requires operators of hotels in the City to maintain certain guest registry information and to make that information available to police officers on request. Appellants contend that LAMC § 41.49 is facially unconstitutional under the Fourth Amendment because it authorizes unreasonable invasions of their private business records without a warrant or pursuant to any recognized warrant exception. Following a bench trial on stipulated evidence, the district court held that the ordinance was reasonable and granted judgment in favor of the City, concluding that the hotel operators did not establish that they had a privacy interest in the guest registry information.

A facial challenge is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); see Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (“i.e., that the law is unconstitutional in all of its applications”). That the ordinance might operate unconstitutionally under some circumstances is not enough to render it invalid against a facial challenge. The Patels have not satisfied that high standard. As a result, this facial challenge to the ordinance fails. We affirm.

See Orin Kerr on Volokh Conspiracy: Fourth Amendment Facial Challenges and Access to Hotel Guest Lists.

Permalink 05:27:54 am, by fourth, 172 words, 378 views   English (US)
Categories: General

arstechnica: "ACLU: 'reasonable suspicion' not good enough for GPS tracking"

arstechnica: ACLU: "reasonable suspicion" not good enough for GPS tracking; Advocacy group files an amicus brief that could provide a follow-up to Jones by Cyrus Farivar:

If you’re a student of the privacy and tech law worlds (or you just read Ars) then you’re probably familiar with last year’s Supreme Court decision, Jones v. United States. Earlier this year, the nine justices unanimously agreed that placing a GPS tracking device on a suspect’s car without a warrant was unconstitutional. That decision continues to have ripple effects throughout the privacy law world, and likely will for years to come.

However, as we pointed out in our January 2012 coverage, the justices disagreed amongst themselves about why it violated the Fourth Amendment, which protects citizens against unreasonable searches and seizures. One wing of the court found that installing the GPS device was an unwarranted physical trespass on private property and therefore illegal. The minority wing found the practice unconstitutional as it violated the doctrine known as “a reasonable expectation of privacy.”

Permalink 05:22:58 am, by fourth, 149 words, 395 views   English (US)
Categories: General

LawFare: "Whole Body Scanners, the Fourth Amendment, and the Administrative Procedures Act"

LawFare: Whole Body Scanners, the Fourth Amendment, and the Administrative Procedures Act by Paul Rosenzweig:

Whole body scanners (also known as Advanced Imaging Technology or AIT) are those new millimeter wave and backscatter scanners that the Department of Homeland Security is deploying in airports around the country — what some people call the “naked machine.” Today, the efforts of some to have the scanners removed took an interesting turn — with this mandamus petition filed by the Electronic Privacy and Information Center.

DHS began the deployment of AIT scanners in earnest in the aftermath of the failed Christmas bomb plot a couple of years ago. The government asserted that the scanners were safe and that their new imaging technology would assist in detecting bomb threats to aviation. Critics principally challenged the deployment as a violation of privacy and civil liberties — a challenge grounded, ultimately, in the requirements of the Fourth Amendment.


Permalink 04:19:07 pm, by fourth, 370 words, 499 views   English (US)
Categories: General

CA8: Moving records to impair an expected search warrant violates 18 U.S.C. § 1512(c)(1)

Where a suspect in custody was told by his lawyer that a search of his office was imminent, the suspect's call to his wife to move records was an offense under 18 U.S.C. § 1512(c)(1). United States v. Mann, 11-1504 (8th Cir. July 17, 2012):

Mann also was convicted of aiding and abetting tampering with evidence in violation of 18 U.S.C. § 1512(c)(1) by removing from Dr. Mann’s medical office a special power of attorney, a general power of attorney, pre-signed blank checks, and other financial documents related to Sandip Mann, her brother-in-law, before a search warrant was executed there. Section 1512(c)(1) prohibits, inter alia, corruptly “conceal[ing] a record, document, or other object, or attempt[ing] to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.”

An “official proceeding” includes a proceeding before a federal judge, court, or grand jury, 18 U.S.C. § 1515(a)(1)(A), and “an official proceeding need not be pending or about to be instituted at the time of the offense,” 18 U.S.C. § 1512(f)(1). Mann contends first that there was no “official proceeding” within the meaning of the statute because there was no official proceeding focusing on Sandip Mann specifically. She also argues that there is insufficient evidence that her actions were related to any official proceeding or that she corruptly concealed the documents in question.

Mann’s first argument is flawed. Section 1512(f)(1) specifically provides that no “official proceeding need ... be pending or about to be instituted at the time of the offense.” Thus, § 1512(c)(1) requires only that Mann have acted with the intent to impair the documents’ availability to an official proceeding. It does not require the Government to prove the existence of an official proceeding focusing on Sandip Mann. Furthermore, notwithstanding Mann’s protestations to the contrary, the Government never argued that there was an official proceeding to investigate Sandip Mann specifically but rather argued that he was a person of interest in the ongoing federal grand jury investigation into the bombing, which clearly was an official proceeding within the meaning of the statute. See 18 U.S.C. § 1512(c)(1); 18 U.S.C. § 1515(a)(1)(A).

In some jurisdictions, they'd probably indict the lawyer, too.

Permalink 09:32:57 am, by fourth, 164 words, 374 views   English (US)
Categories: General

MA: Stop because of suspicion a man in the car was wanted was not factually supported and it is suppressed

An officer observed two men get in a car and then he stopped it before a turn signal violation. The record supports that there was no reasonable suspicion to believe that one of the men was one Barbosa who was darkskinned, and not one of the two men. Therefore, there was no justification for an exit order under state law, and the motion to suppress should have been granted. [A brick of heroin was found in the console.] Commonwealth v. Damon, 82 Mass. App. Ct. 164, 971 N.E.2d 809 (2012).*

Not a search case, but interesting: Defendant answered the door at a house that the police showed up to search. He said he couldn’t consent to a search because he didn’t live there. The police searched and found drugs. The evidence was insufficient to connect him to the drugs other than spatial proximity. He did not control the premises, so his mere presence infers nothing. Conviction reversed. Garcia v. State, 316 Ga. App. 787, 730 S.E.2d 455 (2012).*

Permalink 09:23:27 am, by fourth, 132 words, 452 views   English (US)
Categories: General

M.D.Pa.: Slight inconsistency in officers' testimony did not undermine RS

Slight inconsistency between the testimony of the officers did not mean that there was no reasonable suspicion. The facts here on the totality of circumstances show probable cause. United States v. Elmore, 2012 U.S. Dist. LEXIS 98269 (M.D. Pa. July 16, 2012).*

Defense counsel can’t be ineffective for not filing a motion to suppress that would have lost. The government clearly had probable cause to stop and arrest. Graham v. United States, 2012 U.S. Dist. LEXIS 97418 (C.D. Ill. July 12, 2012).*

Officers had probable cause based on responding to a man with a gun call and seeing defendant with a gun who fled and discarded the gun in flight. PC could also be based on the plain view before it all started. United States v. Moten, 2012 U.S. Dist. LEXIS 97479 (E.D. Pa. July 12, 2012).*

Permalink 09:17:01 am, by fourth, 187 words, 401 views   English (US)
Categories: General

CA8: Stop for paper plate not visible but seen after stop still permits asking for papers

A stop because a temporary paper license plate was not visible was still valid. The officer couldn’t see the plate until after he was out of the car, but that does not prohibit him from checking the DL of the driver and to be sure it is valid. This case is similar to United States v. Clayborn, 339 F.3d 700 (8th Cir. 2003)[, yet this is published]. United States v. Hollins, 685 F.3d 703 (8th Cir. 2012):

Here, the officer did not see any plates or stickers, so he stopped Hollins' vehicle. Only after shining his spotlight, exiting his car, and approaching the SUV did he see the In Transit sticker. Even then, it was not immediately verifiable as a valid sticker. The officer did not see its expiration date, and his experience taught him that even facially valid stickers are not legally valid (since illegally sold and distributed In Transit stickers are relatively common). He then conducted a reasonable investigation by requesting the driver's license, insurance card, and registration. The initial traffic stop and the officer's limited inquiry—which led to the search and Hollins' arrest—were constitutionally valid.

Permalink 09:08:07 am, by fourth, 203 words, 337 views   English (US)
Categories: General

D.V.I.: A mere late night visitor did not show that he was an overnight guest

Defendant was a mere visitor and not an overnight guest. United States v. Henry, 2012 U.S. Dist. LEXIS 97624 (D. V.I. July 15, 2012):

Defendant Henry claims that he had a reasonable expectation of privacy based on his status [as] an "overnight guest" or "social guest." Defendant Henry identifies several facts in support of his claim that he had a reasonable expectation of privacy at the time of the search: 1) he was in Apartment 195 at a late hour of the night; 2) when police encountered him he was in a "subconscious" state (because he may have been smoking marijuana); 3) he was in the apartment watching a basketball game on television with the permission of the tenants; 4) he "periodically" hangs out at Apartment 195: and 5) he has a friendship with the alleged tenants. (Dkt. No. 77 at 2-3). [¶] When viewed in their totality, these facts establish only that Defendant was a "short-term guest" or a "casual visitor" at Apartment 195, not an overnight guest.

“Pariseau voluntarily consented to the search. After the arresting officer explained that he would be detained while they sought a warrant to search him, he said, ‘You may as well just search me now.’” The record supports consent. United States v. Pariseau, 685 F.3d 1129 (9th Cir. 2012).*

Permalink 07:56:26 am, by fourth, 155 words, 435 views   English (US)
Categories: General

E.D.Mich.: Claim that plaintiff was touched during her strip search stated a Fourth Amendment claim

A claim that plaintiff was touched during her strip search stated a Fourth Amendment claim. There is no distinction between a search of a woman’s breasts and her genital area for invasiveness. Van Beek v. Robinson, 2012 U.S. Dist. LEXIS 98273 (E.D. Mich. July 16, 2012)*.

Defendants have dissected the patdown search into two components, claiming that the search of Plaintiff's genital area is somehow distinct from the search of Plaintiff's breasts. Defendants' argument is not supported by any legal authority. Whether the search of Plaintiff was a reasonable and routine search-as Defendants' contend-"depends upon all of the circumstances surrounding the search." Montoya de Hernandez, 473 U.S. at 537. The search of Plaintiff, therefore, includes the search of her genital area, along with the search of her breasts. Having conceded that the search of Plaintiff's breasts creates a genuine dispute of fact, Plaintiff has established a constitutional violation under the Fourth Amendment by Defendants' own admission.


Permalink 08:09:47 pm, by fourth, 97 words, 396 views   English (US)
Categories: General

CA11: Alleged illegal search and indictment before statement can't suppress statement

Defendant claimed an illegal search caused his statement, but he’d been indicted by this time, and he couldn’t show that it coerced his statement. United States v. Powner, 481 Fed. Appx. 529 (11th Cir. 2012)*:

Similarly, Powner's assertion that when the police questioned him after his arrest on September 28, 2009, they "had at their disposal all of the illegally seized evidence," falls short of demonstrating that the police actually used that tainted evidence to coerce Powner's post-arrest statements. Therefore, we decline to hold that Ceccolini bars the admission of either Powner's statements or the trial testimony of his co-defendants.

Permalink 08:07:40 pm, by fourth, 134 words, 340 views   English (US)
Categories: General

M.D.Pa.: Govt's inevitable discovery argument has to await a hearing because it's fact dependent

Defendant stated enough to get a suppression hearing, and the government’s argument that inevitable discovery applies is fact dependent and a hearing has to be held. United States v. Shabazz, 2012 U.S. Dist. LEXIS 97521 (M.D. Pa. July 12, 2012).*

Defense counsel was not ineffective for not challenging the stop of the car because the officer that stopped him didn’t see anything but relied on another officer’s observation. He was also not ineffective for not challenging the search of the passenger’s purse since defendant had no standing in her purse. Graham v. United States, 2012 U.S. Dist. LEXIS 97418 (C.D. Ill. July 12, 2012).*

There were exigent circumstances for a protective sweep of the premises, and it was alternatively justified by consent. United States v. Moten, 2012 U.S. Dist. LEXIS 97479 (E.D. Pa. July 12, 2012).*

Permalink 08:06:46 pm, by fourth, 173 words, 409 views   English (US)
Categories: General

SD: Detention to get SW was unreasonable, but it wasn't sufficient to suppress the search which was with a warrant

Officers smell burning marijuana and got consent to enter an apartment. An occupant demanded a warrant, so the police took them all in while they got one. As to this defendant, his seizure was unreasonable, but it had nothing to do with the validity of the warrant; the seizure was for only a few hours, and the court would not suppress. State v. Tillman, 2012 SD 57, 817 N.W.2d 812 (2012).

Defense counsel was found not ineffective, and the record supports that finding. Defense counsel made a strategic choice not to call defendant at the suppression hearing [not telling us why or the effect]. After the suppression hearing, defendant pled guilty. [It doesn’t tell us that the guilty plea cured the problem or not.] Defense counsel was accused of not preparing for the suppression hearing, too, but the record shows extensive questioning. Defense counsel had no notes from the examination and testified that he often prepares in his head so he can go with it as it develops. Guerrero v. State, 47 A.3d 289 (R.I. 2012).*


Permalink 09:12:36 am, by fourth, 144 words, 382 views   English (US)
Categories: General

OH8: If you thought Ybarra wouldn't happen again ...

Officers had a restraining order against a bar and frisked all the patrons. As to defendant, the first frisk found nothing, but he was “fidgety,” so they frisked him again finding drugs. The officers detained all the patrons until they could run criminal history checks. The motion to suppress should have been granted. This is like Ybarra. State v. Sweeney, 2012 Ohio 3152, 2012 Ohio App. LEXIS 2783 (8th Dist. July 12, 2012).

2254 petitioner’s search and seizure claim in federal court was the same as his state court, so it was barred by Stone v. Powell. COA denied. Cheeks v. Zupan, 490 Fed. Appx. 110 (10th Cir. 2012).*

Defendant did not submit to a seizure because he was jogging when the police tried to talk to him, and, as he was finally stopped, he admitted he had a gun, and that justified a frisk. United States v. Denson, 488 Fed. Appx. 314 (10th Cir. 2012).*

Permalink 08:45:43 am, by fourth, 219 words, 456 views   English (US)
Categories: General

CA8: Inability to answer basic questions about travel plans and lying about criminal history was RS

Inability to answer basic questions about travel plans and lying about criminal history was reasonable suspicion. United States v. Riley, 684 F.3d 758 (8th Cir. 2012):

Riley's case is distinguishable from Jones and Beck when one considers the combination of Riley's nervous condition, his difficulty in answering basic questions about his itinerary, and his failure to be forthright about his criminal history relating to drugs. In Jones, we noted that an inconsistent answer as to a traveler's destination and purpose "casts suspicion and doubt on the nature and legitimacy of the activity being investigated." 269 F.3d at 928. Likewise, in Beck we recognized that reasonable suspicion could derive from "unusual or suspicious travel plans." 140 F.3d at 1139 ... Unlike the suspects in Jones and Beck, who stated their purpose and destination without difficulty, Riley was hesitant and gave conflicting answers to basic questions about his itinerary. ... Furthermore, Riley's misrepresentation about his criminal history was different from the suspect in Jones because Riley's history involved drugs, which reasonably added to Trooper Rutledge's suspicions that Riley was trying to hide drug-related activity. See Jones, 269 F.3d at 928; United States v. Gill, 513 F.3d 836, 844 (8th Cir. 2008) (weighing in favor of reasonable suspicion the fact that defendants had prior arrests for drugs and weapons but "[n]either of the defendants answered questions about their criminal records forthrightly").

Permalink 08:25:55 am, by fourth, 137 words, 375 views   English (US)
Categories: General

CA8: Where officer has RS for a patdown during stop, he doesn't have to let suspect leave without a frisk

Defendant’s stop was with reasonable suspicion because of the officer’s knowledge of defendant’s prior history with domestic violence and firearms. An officer does not have to let a person walk away from a stop with RS without a frisk. United States v. Preston, 685 F.3d 685 (8th Cir. 2012):

Finally, we recognize that allowing the occupants of the vehicle to walk away unsearched would have posed a further threat to officer safety. As we noted in United States v. Oliver, 550 F.3d 734 (8th Cir. 2008), a person who is allowed to walk away from a stop without a pat-down search could hypothetically turn around and shoot officers remaining at the scene. Id. at 738.

Defense counsel can’t be ineffective for not raising a meritless issue. United States v. Motton, 2012 U.S. Dist. LEXIS 96454 (N.D. Tex. May 25, 2012).*

Permalink 08:18:12 am, by fourth, 468 words, 739 views   English (US)
Categories: General

Cal.1: No REP in a campsite where one can't lawfully be

While there is a reasonable expectation of privacy in a tent while camping, the camping has to be lawful. Here defendant was on land he was not permitted to be on, and that’s a big difference. People v. Nishi, 207 Cal. App. 4th 954, 143 Cal. Rptr. 3d 882 (1st Dist. 2012):

Defendant's unlawful, temporary occupation of the campsite distinguishes the present case from United States v. Gooch (9th Cir. 1993) 6 F.3d 673, 676-677, in which the court concluded that the defendant had an objectively reasonable expectation of privacy in a tent pitched for several days in a public campground where he was "legally permitted to camp." (Id. at p. 677; see also United States v. Basher (9th Cir. 2011) 629 F.3d 1161, 1167-1168.) In United States v. Sandoval (9th Cir. 2000) 200 F.3d 659, 660-661 (Sandoval), the court extended the holding in Gooch to find a legitimate expectation of privacy associated with the seizure of a medicine bottle discovered during a search of a "makeshift tent" "located on Bureau of Land Management" property, (id. at p. 660), where it was "unclear whether Sandoval had permission to be there." (Id. at p. 661.) The defendant's tent in Sandoval was located in an area that was heavily covered by vegetation and virtually impenetrable. In addition, the tent was closed on all four sides, and the medicine bottle was not visible from outside. (Id. at p. 660.) The court in Sandoval concluded: "[W]e do not believe the reasonableness of Sandoval's expectation of privacy turns on whether he had permission to camp on public land. Such a distinction would mean that a camper who overstayed his permit in a public campground would lose his Fourth Amendment rights, while his neighbor, whose permit had not expired, would retain those rights." (Id. at p. 661, fn. omitted.)

. . .

Here, in contrast to Sandoval and Hughston, not only was defendant clearly camped in a prohibited location, the shotgun shells were seized from outside his tent, in a pile of debris under a loose tarp. While a tent located in a public campground may be considered a private area where people sleep and keep valuables, functionally somewhat comparable to a house, apartment, or hotel room, the remainder of defendant's unauthorized, undeveloped campsite was a dispersed, ill-defined site, exposed and open to public view. The area around the tent was not within a defined residential curtilage in which defendant had a reasonable expectation of privacy. (United States v. Basher, supra, 629 F.3d 1161, 1169.) Also, after his repeated removal by officers from campsites he had occupied in the same preserve in the recent past, defendant was conscious of the illegality, which further tends to negate his legitimate expectation of privacy in that location. (People v. Thomas (1995) 38 Cal.App.4th 1331, 1333-1334 [45 Cal.Rptr.2d 610] (Thomas).)

We find the decision in United States v. Ruckman (10th Cir. 1986) 806 F.2d 1471, persuasive in the present case. ...


Permalink 10:11:17 am, by fourth, 186 words, 531 views   English (US)
Categories: General

New law review article: "Making the Most of Jones v. United States in a Surveillance Society: A Statutory Implementation of Mosaic Theory"

New law review article: Making the Most of Jones v. United States in a Surveillance Society: A Statutory Implementation of Mosaic Theory by Christopher Slobogin, Vanderbilt Law School forthcoming in Duke Journal of Constitutional Law & Public Policy. Abstract:

In the Supreme Court’s recent decision in Jones v. United States a majority of the justices appeared to recognize that under some circumstances aggregation of information about an individual through government surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion — sometimes called “mosaic theory” — could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements — the issue raised in Jones — but also with respect to the government’s increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This solicited article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance.

Permalink 09:53:20 am, by fourth, 208 words, 372 views   English (US)
Categories: General

M.D.Pa.: Motion for return of property where the government needs it as evidence denied

Motion for return of property where the government needs it as evidence will be denied. United States v. Donahue, 2012 U.S. Dist. LEXIS 96613 (M.D. Pa. July 12, 2012):

Here, Donahue has not met his burden to prove why he is entitled to the property. As his criminal prosecution is pending, Donahue has the burden to establish that he is entitled to the property. And, while Donahue argues that the property is not contraband, the Government has asserted that the property seized will be used as evidence in this case. As such, the Government's ongoing need for the property as evidence in this case warrants the denial of Donahue's motion. See, e.g., United States v. Stanton, No. 10-800, 2012 WL 2159355, at *6 (E.D. Pa. June 14, 2012).

Plaintiff’s complaint that he was strip searched to his underwear by a female teacher survives summary judgment because there is no qualified immunity. Hotchkiss v. Garbo, 2012 U.S. Dist. LEXIS 96762 (E.D. Mich. July 12, 2012).

A CPS entry of a home to take a child subject to alleged abuse where it was alleged that they reasonably should have known the complaint was unfounded stated a claim under the Fourth Amendment. Ross v. Cecil County Dep't of Soc. Servs., 2012 U.S. Dist. LEXIS 97014 (D. Md. July 11, 2012).*

Permalink 09:06:16 am, by fourth, 1322 words, 2185 views   English (US)
Categories: General

N.D.Cal.: LinkedIn not a remote computing service and does not provide electronic communication services, so it can't be sued under SCA

LinkedIn did not violate the Stored Communications Act in disclosing search histories to third parties. Low v. LinkedIn Corp., 2012 U.S. Dist. LEXIS 97012 (N.D. Cal. July 12, 2012) [Note: Numerous websites, including those of the law firms involved, are following this case, but none has this order as of the time of this posting, so I apologize for the long quote. If I could link it instead, I would have]:

1. Stored Communications Act

Plaintiffs' first cause of action alleges that LinkedIn violated the federal Stored Communications Act, 18 U.S.C. § 2701, et seq. ("SCA"). See AC ¶¶ 65-78. Enacted in 1986 as Section II of the Electronic Communications Protection Act ("ECPA"), the SCA creates criminal and civil liability for certain unauthorized access to stored communications and records. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002). "The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address." Quon v. Arch Wireless Operating Company, Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev'd on other grounds by City of Ontario v. Quon, 130 S.Ct. 2619 (2010). Despite this purpose, the SCA has a narrow scope: "[t]he SCA is not a catch-all statute designed to protect the privacy of stored Internet communications;" instead "there are many problems of Internet privacy that the SCA does not address." Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1214 (2004). Generally, the SCA prohibits providers from (1) "knowingly divulg[ing] to any person or entity the contents of a communication." 18 U.S.C § 2702(a)(1)-(2); see id. § 2707 (creating a private right of action); see also Quon, 529 F.3d at 900 ("[T]he SCA prevents 'providers' of communication services from divulging private communications to certain entities and/or individuals.").

The SCA covers two types of entities: (1) "remote computing services" ("RCS"), and (2) "electronic communication services" ("ECS"). 18 U.S.C § 2702(a)(1)-(2). The non-disclosure obligations depend on the type of provider at issue. See, e.g. Quon, 529 F.3d at 900-902. Plaintiffs contend in their opposition that LinkedIn is an RCS for the purposes of its SCA liability. See Opp'n at 14-15. The SCA prohibits an entity "providing remote computing service to the public" from "knowingly divulge[ing] to any person or entity the contents of any communication which is carried or maintained on that service." 18 U.S.C § 2702(a)(2).

The SCA only creates liability for a provider that is an RCS or an ECS. A provider of email services is an ECS. Quon, 529 F.3d at 901. On the other hand, under the SCA the term "remote computing service" means "the provision to the public of computer storage or processing services by means of an electronic communications system." 18 U.S.C § 2711(2) (emphasis added). A "remote computing service" refers to "the processing or storage of data by an offsite third party." Quon, 529 F.3d at 901. In defining RCS, "Congress appeared to view 'storage' as a virtual filing cabinet." Id. at 902. Indeed, the Ninth Circuit has explained that "[i]n light of the Report's elaboration upon what Congress intended by the term 'Remote Computer Services,' it is clear that, before the advent of advanced computer processing programs such as Microsoft Excel, businesses had to farm out sophisticated processing to a service that would process the information." Id. at 902 citing Kerr, 72 GEO. WASH. L. REV. at 1213-14.

Whether an entity is acting as an RCS or an ECS (or neither) is context dependent, and depends, in part, on the information disclosed. See In re U.S., 665 F. Supp. 2d 1210, 1214 (D. Or. 2009) ("Today, most ISPs provide both ECS and RCS; thus, the distinction serves to define the service that is being provided at a particular time (or as to a particular piece of electronic communication at a particular time), rather than to define the service provider itself. The distinction is still essential, however, because different services have different protections."); Kerr, 72 GEO. WASH. L. REV. at 15-16 ("The classifications of ECS and RCS are context sensitive: the key is the provider's role with respect to a particular copy of a particular communication, rather than the provider's status in the abstract. A provider can act as an RCS with respect to some communications, an ECS with respect to other communications, and neither an RCS nor an ECS with respect to other communications.").

Although many allegations within the Amended Complaint relate to information that third parties would be able to infer, the Amended Complaint limits the information LinkedIn allegedly disclosed to third parties. The Amended Complaint alleges that LinkedIn transmits to third parties the LinkedIn user ID and the URL of the LinkedIn profile page viewed by the internet user. See AC ¶¶ 28, 66-68. Even taking Plaintiffs' allegations as true, it does not appear that LinkedIn was functioning as an RCS when it disclosed the LinkedIn user ID and the URL of the profile pages the user had viewed to third parties. LinkedIn was not acting as a "remote computing service" with respect to the disclosed information because it was not "processing or stor[ing] [] data by an offsite third party [in this case LinkedIn]." Quon, 529 F.3d at 901. LinkedIn IDs are numbers generated by LinkedIn and were not sent by the user for offsite storage or processing. See 18 U.S.C. § 2702(a)(2)(A). LinkedIn was not acting "as a virtual filing cabinet," or as an offsite processor of data with respect to the user IDs it created. Similarly, the URL addresses of viewed pages were not sent to LinkedIn by Plaintiffs for storage or processing. See 18 U.S.C. § 2702(a)(2)(A)-(B). LinkedIn was not functioning as either a "filing cabinet" or "an advanced computer processing program such as Microsoft Excel," that allows businesses to "farm out sophisticated processing to a service that would process the information," with respect to the LinkedIn user IDs or the URLs of users' profile pages. Quon, 529 F.3d at 902.

At least one commentator has seriously doubted the conclusion that a website, such as LinkedIn, provides "processing services" for its customers, qualifying it as an RCS. Kerr, 72 GEO. WASH. L. REV. at 1229-31. This view is supported by the legislative history of the SCA. Congress established liability for "remote computing services to include services that store and process information. S. Rep. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557 ("[C]omputers are used extensively today for the storage and processing of information. With the advent of computerized recordkeeping systems, Americans have lost the ability to lock away a great deal of personal and business information. For example, physicians and hospitals maintain medical files in offsite data banks, businesses of all sizes transmit their records to remote computers to obtain sophisticated data processing services."). Therefore, the Court finds that Plaintiffs have not stated a claim for relief pursuant to the SCA because Plaintiffs have not established that LinkedIn was acting as an RCS when it disclosed LinkedIn IDs and URLs of viewed pages to third parties. Therefore, Defendants' motion to dismiss the SCA claim is GRANTED.

Plaintiff Low also alleged a violation of the SCA in the original complaint. Compl. ¶¶ 41-53. Plaintiff's original complaint did not articulate a coherent theory regarding its SCA claim. Specifically, the original complaint's SCA claim failed to identify what information was transmitted to third parties. Plaintiffs' Amended Complaint now identifies what information was transmitted to third parties and how, theoretically, a LinkedIn user's information can be de-anonymized. However, the additional factual allegations in the Amended Complaint establish that Plaintiffs' SCA claim fails to establish a cause of action. This defect is based on a failure of theory and not on a failure of pleading. Additional factual allegations are unlikely to establish that Defendant was an RCS in light of the legislative history of the SCA. Because further amendment would be futile, Defendant's motion to dismiss the SCA claim is granted with prejudice.

Update Sunday: Still nothing posted elsewhere.

Permalink 08:50:17 am, by fourth, 206 words, 343 views   English (US)
Categories: General

IA: Stop for weaving not justified where the video didn't support it

Where the video of defendant’s driving did not show anything other than normal driving, the officer’s testimony was not supported and the motion to suppress the stop should have been granted. State v. Wilkerson, 2012 Iowa App. LEXIS 551 (July 11, 2012).*

Defendant was detained for a murder and complained that he wasn’t under arrest, and he “actually complains that he was advised of his Miranda rights too many times.” The intervening fact that precipitated his confession was that his alibi blew up on him. The confession was of a free will. Delhall v. State, 95 So. 3d 134 (Fla. 2012):

In the instant case, Delhall went voluntarily to the police station without handcuffs and spoke to several officers at length. No threat or force was used. He was not handcuffed during the interview. The intervening event which could reasonably have precipitated his confession was learning that Marcia Berry, his alibi witness, did not support his claim that he was with her when McCrae was killed. Thus, under Brown, the totality of the circumstances tends to show that even if at some point in the consensual interview Delhall was "arrested," his confession was still voluntary and sufficiently an act of free will to purge any taint of an illegal arrest.

Permalink 08:40:48 am, by fourth, 201 words, 304 views   English (US)
Categories: General

OR: Asking for consent to a patdown does not unlawfully extend a stop

Asking for consent to a patdown does not unlawfully extend a stop. State v. Morfin-Estrada, 251 Ore. App. 158, 283 P.3d 378 (2012).*

Visiting an apartment suspected of drug activity, staying a short time, accompanied by a suspected drug user, and just being off probation for drugs was not reasonable suspicion. State v. Bertsch, 251 Ore. App. 128, 284 P.3d 502 (2012):

Here, the state points to the following facts: (1) defendant was observed visiting an apartment suspected of drug activity; (2) defendant left the apartment after only a short time; and (3) defendant was accompanied by a person who was known to associate with drug users and dealers. At the hearing on defendant's motion to suppress, [the officer] testified that he had also relied on the fact that defendant had recently completed probation for a drug offense because, based on his "training and experience," he believed that "subjects who are just off probation for a controlled substance offense * * * will continue to use controlled substances."

Those facts do not give rise to reasonable suspicion that defendant possessed drugs. We have repeatedly said that a person's presence in a location associated with drug activity is insufficient to support an objectively reasonable belief that that person is himself or herself engaged in drug activity.

Permalink 08:19:28 am, by fourth, 50 words, 389 views   English (US)
Categories: General "That’s No Phone. That’s My Tracker" That’s No Phone. That’s My Tracker by Peter Maass and Megha Rajagopalan:

THE device in your purse or jeans that you think is a cellphone — guess again. It is a tracking device that happens to make calls. Let’s stop calling them phones. They are trackers.


Permalink 03:17:43 pm, by fourth, 50 words, 510 views   English (US)
Categories: General "Philadelphia Defends Policy on Frisking, With Limits" Philadelphia Defends Policy on Frisking, With Limits by Erica Goode:

PHILADELPHIA — Mayor Michael R. Bloomberg of New York was dismissive when asked if his police department, under siege for the way it uses the stop-and-frisk tactic, might take a lesson from Philadelphia’s response to a similar challenge.

Permalink 02:10:30 pm, by fourth, 116 words, 337 views   English (US)
Categories: General

Popular Science: "FYI: How Can I Protect My Cell Phone Data Records From Law Enforcement Subpoenas?"

Popular Science: FYI: How Can I Protect My Cell Phone Data Records From Law Enforcement Subpoenas? Our wireless carriers hand over data from millions of users per year. How can we protect ourselves? by Dan Nosowitz:

When it came to light that law enforcement has issued millions of annual requests/demands to the wireless carriers (AT&T, Verizon, etc) to hand over user data, we all got a little concerned. Our carriers know everything about us, and according to findings by Rep. Markey (D-MA), "Information shared with law enforcement includes data such as geolocation information, content of text messages, wiretaps, among others."

But! We have weapons. Here are some tricks to help protect your privacy.

Permalink 09:05:50 am, by fourth, 608 words, 530 views   English (US)
Categories: General

TX7: Cell phone could not be searched on booking; REP remains in phone

Search of a cell phone taken at booking into a jail was unreasonable. There was no security need for the search. State v. Granville, 373 S.W.3d 218 (Tex. App. – Amarillo 2012):

We are looking at a privacy interest in data hidden within electrical components contained in the device as well as potential information not in the phone but accessible through its manipulation, that is, data saved on the internet. The State cited us to no evidence suggesting that such data can be scraped off the phone surfaces or components, like blood or DNA affixed to clothes. Nor is there evidence of record that the picture found by the officer was somehow playing or appearing upon the phone's screen. Quite the contrary. The cell phone had to be activated, or turned on, by the officer, and he had to pull up or scroll through the information imprinted on electronic chips to uncover the photo. It was not exposed to anyone happening to touch the item, which differentiates it from the miscellaneous things accessible on a prisoner's pants.

Evidence of the phone being off has other import, as well. That evinces some precautionary measure being taken to secure the data from curious eyes. The power button can be likened to the front door of a house. When on, the door is open and some things become readily visible. When off, the door is closed, thereby preventing others from seeing anything inside. And though some cell phones may require the input of a password before it can be used, no evidence suggests that Granville's was of that type. So, the officer's ability to venture into the phone's informational recesses by merely pressing the power button does not suggest that Granville's interest in assuring the privacy of his information was minimal. Whether the phone was locked or not via a password, a closed door is sufficient to illustrate an expectation of privacy. See Rodriguez v. State, 653 S.W.2d 305, 307 (Tex. Crim. App. 1983).

Now we turn to the subject of society recognizing (or not) an arrestee's privacy interest in a cell phone impounded during the booking process.1 It must be remembered that Granville was simply a pretrial detainee. This is of import since detainees, in some ways, are accorded greater constitutional protection than a convicted individual. Ex parte Green, 688 S.W.2d 555, 556 (Tex. Crim. App. 1985) (punishment); Rocha v. Potter County, No. 07-09-001-2-CV, 2010 Tex. App. Lexis 2859, at *10-11 (Tex. App.—Amarillo Apr. 20, 2010, no pet.) (due process). They also have a greater chance of being freed soon after their detention through posting bond or other measure. In fact, if the officer who took the cell phone is to be believed, Granville was subject to being released quickly, given that he was arrested for a class C misdemeanor. It also lessens the duration of any control law enforcement officials may exercise over the instrument.

. . .

Due to the potential invasiveness of the search, Granville's status as a pretrial detainee, the fact that his stay in jail for a class C misdemeanor would be of short duration, the utter lack of any nexus between the cell phone and the crime for which appellant was jailed, and the lack of evidence suggesting that the phone and its contents posed any risk to the jail's penalogical interests, we conclude that society would recognize his continued, and reasonable, privacy interest in the instrument despite his temporary detention. Indeed, holding that the mere impoundment of property does not vitiate all reasonable expectation of privacy in the item confiscated is nothing new. Law enforcement officials have long been barred from searching impounded vehicles in any manner that they may care to.

Permalink 08:51:04 am, by fourth, 124 words, 342 views   English (US)
Categories: General

S.D.N.Y.: Arrested cooperating drug courier delivering to defendant was RS

Defendant was on the receiving end of a drug courier’s delivery. The courier had already been arrested and agreed to continue on the trip for the government. After the delivery, there was reasonable suspicion as to defendant. United States v. Torres, 2012 U.S. Dist. LEXIS 96036 (S.D. N.Y. July 3, 2012).*

The corroboration of the CI’s really detailed information down to the lump hidden in the groin during a patdown as the hiding place of drugs all was probable cause. United States v. Williams, 2012 U.S. Dist. LEXIS 95992 (D. Vt. July 10, 2012).*

Officers were investigating a check cashing scheme. The independent source doctrine supports the seizure of brass knuckles found in the car. United States v. Maxwell, 2012 U.S. Dist. LEXIS 96375 (D. Minn. July 11, 2012).*

Permalink 08:27:53 am, by fourth, 153 words, 397 views   English (US)
Categories: General

CA11: PC for arrest moots legality of patdown

Defendant’s stop was with probable cause, and the following search was incident to the arrest, so the patdown is moot. United States v. Smith, 2012 U.S. App. LEXIS 14268 (11th Cir. July 12, 2012).*

Failing to file a futile motion to suppress is not IAC. United States v. Lohrman, 2012 U.S. Dist. LEXIS 95474 (S.D. Tex. July 10, 2012).*

Defense counsel was not ineffective for not arguing that a trash search was unreasonable considering Greenwood. Defense counsel did argue that the search of a cell phone was unreasonable, but it was held harmless on the direct appeal if error at all. Therefore, no prejudice. United States v. Roberts, 2012 U.S. Dist. LEXIS 95306 (D. Nev. July 9, 2012).*

Defendant’s version of the facts amounts to an abandonment; the government’s version of the facts is a plain view of a firearm in a car visible to anyone. United States v. Contreras-Espinal, 2012 U.S. Dist. LEXIS 95577 (D. P.R. May 18, 2012).*

Permalink 07:56:18 am, by fourth, 567 words, 511 views   English (US)
Categories: General

CA2: SW for first floor apt. could not be construed to permit search of second floor apt. too; suppression required for officer's misconduct

In a child pornography search involving an IP address at an apartment building, the officers obtained a search warrant for a specific apartment on the first floor that supposedly belonged to the defendant, whose name was omitted from the affidavit. In fact, the defendant had moved out a couple of years earlier. The officers searched the first floor apartment, realized that defendant didn’t live there, and then went to the second floor and searched his apartment based on the warrant for the first floor apartment. When they realized the mistake, Rule 41 permitted them to call the magistrate for guidance and even possible amendment of the search warrant, but they didn’t do that. Suppression was required to deter the police from doing this again. United States v. Voustianiouk, 685 F.3d 206 (2d Cir. 2012):

In determining the permissible scope of a search that has been authorized by a search warrant, however, we must look to the place that the magistrate judge who issued the warrant intended to be searched, not to the place that the police intended to search when they applied for the warrant. See Groh v. Ramirez, 540 U.S. 551, 561 (2004) ("The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant's request."); Ybarra v. Illinois, 444 U.S. 85, 90 n.2 (1979) ("Had the issuing judge intended that the warrant would or could authorize a search of every person found within the tavern, he would hardly have specifically authorized the search of 'Greg' alone."); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.5 (4th ed. 2004) ("One of the specific commands of the Fourth Amendment is that no warrants shall issue except those 'particularly describing the place to be searched.' Quite obviously, the primary purpose of this limitation is to minimize the risk that officers executing search warrants will by mistake search a place other than the place intended by the magistrate." (emphasis added)).

We conclude that these agents searched an apartment other than the one that the magistrate intended to authorize them to search. Indeed, we have no reason to believe that the magistrate judge who signed the warrant at issue intended for the scope of the search to cover any apartment in the building other than the one on the first floor. The search warrant and accompanying affidavit explicitly authorize the search of the first-floor apartment and make no mention of the second-floor apartment or even of Voustianiouk's name. The government concedes as much on appeal, acknowledging that "Agent Raab did not disclose Voustianiouk's name to the judge who issued the warrant." Indeed, the affidavit submitted by Raab in support of his application for a search warrant would not have provided probable cause to search Voustianiouk's apartment on the second floor, because the information in the affidavit, by omitting any mention of Voustianiouk, does not provide any basis for concluding that he may have been involved in a crime.

. . .

Accordingly, given the specific facts of this case, we conclude that the evidence seized as a result of this unconstitutional search must be suppressed in order "to deter police misconduct in these circumstances." Davis v. United States, 131 S. Ct. 2419, 2423 (2011). Indeed, we believe that suppression is necessary in this case "to compel respect for the constitutional guaranty." Id. at 2426 (quoting Elkins v. United States, 264 U.S. 206, 217 (1960)) (internal quotation marks omitted).

Permalink 07:27:56 am, by fourth, 137 words, 347 views   English (US)
Categories: General

E.D.Tenn.: Court not bound by another judge's finding in another case this LEO was not believeable

Prior findings that an officer was unbelievable on the stand were not binding in this case. United States v. Lopez-Urquiza, 2012 U.S. Dist. LEXIS 95970 (E.D. Tenn. May 15, 2012):

The undersigned is certainly in no position to second guess another court in another case, even if it involves the same witness in the case currently before the undersigned. Neither, however, is the undersigned bound by the other court's evaluation of that witness. See United States v. Atkins, 1999 WL 1045942 *3 (6th Cir. Nov. 8, 1998) (the district court did not err in refusing to admit past judicial decisions of an officer's untruthfulness.).

One of the benefits of Lexis and Westlaw is running the names of the law enforcement officers involved to see what happened elsewhere. Every once in a while the officer was not believed and it ends up in an opinion.


Permalink 08:04:14 am, by fourth, 159 words, 588 views   English (US)
Categories: General

CA10: Furtive movements getting police attention and avoidance of contact added to RS; no stop until he was actually detained

Police saw defendant acting furtively in a high crime area, and he avoided contact with the police while they tried to apprehend him. He was not seized until the police got him on a porch, and that was with reasonable suspicion by the time it happened. His actions avoiding the police further added to the reasonable suspicion. United States v. Denson, 2012 U.S. App. LEXIS 14143 (10th Cir. July 11, 2012).*

Police received a 911 call from defendant’s girlfriend who was moving out, and she showed them a firearm and ammunition of defendant who was a convicted felon. Her consent was voluntary. The findings supported a later search warrant. United States v. Franco, 2012 U.S. Dist. LEXIS 95569 (D. Mass. July 10, 2012).*

Defendant agreed with defense counsel that the best course was to forego a motion to suppress that was a loser and negotiate a better deal. Defense counsel was not ineffective. Villareal v. United States, 2012 U.S. Dist. LEXIS 95086 (E.D. Tex. June 12, 2012).*

Permalink 07:49:58 am, by fourth, 285 words, 919 views   English (US)
Categories: General

N.D.Miss.: Warrantless cell phone "dump" by DEA was unreasonable

Aside from pre-Jones placement of a GPS device on defendant’s vehicle to track it for six days, there was probable cause for stop and search of the vehicle, so the motion to suppress is denied. A cell phone “dump” by the DEA and returning the phone was an unreasonable search. The fact a cell phone is a tool of the trade of drug traffickers was not enough. United States v. Lujan, 2012 U.S. Dist. LEXIS 95804 (N.D. Miss. July 10, 2012):

The Government has not, at either the hearing or through briefing, established that Lujan's cell phone contained evidence of a crime, or that there was probable cause to believe such evidence existed on his cell phone. The Government asserts that cell phones have been recognized as tools of the narcotics trade, and that is enough to justify its warrantless search. The Fifth Circuit has recognized that "cell phones contain a wealth of private information, including emails, text messages, call histories, address books, and subscriber numbers." United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008). Indeed, a cell phone is "similar to a personal computer that is carried on one's person. Id. Thus, there is a reasonable expectation of privacy in this information. Id. Because cell phones contain such a wealth of private information, in this situation, where no probable cause has been established as to Lujan's cell phone, the evidence must be suppressed. Indeed, requiring the government to secure a warrant prior to searching the contents of a properly seized cell phone is typically not overly burdensome in light of the privacy interests at stake. See United States v. Burgess, 576 F.3d 1078, 1090 (10th Cir. 2009) (noting the "vast amounts of diverse personal information" contained in electronic devices).

Permalink 07:32:33 am, by fourth, 236 words, 420 views   English (US)
Categories: General

N.D.Ga.: Defendant hiding in a house didn't show REP in the premises

Defendant hiding in a house failed to show that he had a reasonable expectation of privacy in it where it was attempted to be proved by one sentence in a police report and he did not testify. United Sates v. Manson, 2012 U.S. Dist. LEXIS 95799 (N.D. Ga. July 11, 2012)*:

Defendant would have no reasonable expectation of privacy for purposes of Fourth Amendment protection unless he could show that he had a reasonable expectation of privacy in the particular quarters of the house where he stayed over night and that those specific rooms were subject to the challenged search. In the absence of such a showing, the Defendant would not have standing to challenge the search and seizure. United States v. Rackley, 742 F.2d 1266, 1270 (11th Cir. 1984). The Defendant's showing here relied on a slim reed of evidence - his own statement to one of the officers, as reflected in a police report, made after he was caught hiding out in the house. No affirmative evidence was presented as to how long the Defendant purportedly had stayed in the house or in what room(s) he stayed. Ms. Caja's statements to the police lend no support for the Defendant's assertion. Under these circumstances, the Court finds insufficient credible, specific evidence to sustain Plaintiff's contention that he had a reasonable expectation of privacy in some portion of the house where the search was conducted and where contraband was discovered.

Permalink 07:24:37 am, by fourth, 140 words, 360 views   English (US)
Categories: General

OH12: Failure to include CI's info time frame for SW mooted by confirming trash pull

The CI’s information for the search warrant was not given a time frame, but there was a confirming trash pull within 72 hours of the search warrant, and that mooted the time problem. Also, there is no higher constitutional right in trash in Ohio. An “all persons” warrant was valid. State v. Quinn, 2012 Ohio 3123, 2012 Ohio App. LEXIS 2751 (12th Dist. July 9, 2012).*

Validity of consent to search a backpack in a vehicle was moot where there was probable cause for search of the whole vehicle. State v. Young, 2012 Ohio 3131, 2012 Ohio App. LEXIS 2752 (12th Dist. July 9, 2012).*

Where the IRS was on the premises with a warrant and they found syringes while looking for flashdrives, state officials did not need a separate warrant to come in and take what the IRS was not taking. State v. Lorenzo, 2012 Ohio 3145, 2012 Ohio App. LEXIS 2774 (9th Dist. July 5, 2012).*

Permalink 07:11:31 am, by fourth, 164 words, 436 views   English (US)
Categories: General

OH12: PC of danger needed to detain a person for mental difficulties

To detain a person who appears to be a danger to himself or others because of mental difficulties, there must be probable cause. State v. Standifer, 2012 Ohio 3132, 2012 Ohio App. LEXIS 2758 (12th Dist. July 9, 2012):

[*P17] We find that based on the Ohio Supreme Court's language in Miller and the constitutional requirements regarding criminal arrests and exigent circumstances, police officers must possess probable cause that a person "represents a substantial risk of physical harm to [her]self as manifested by evidence of threats of, attempts at, suicide or serious self-inflicted bodily harm" to seize that person pursuant to R.C. 5122.10. Probable cause exists when the officer has sufficient information, derived from his own knowledge or a trustworthy source, which would lead a prudent person to believe the person did certain acts. State v. Cearley, 12th Dist. No. CA2003-08-213, 2004 Ohio 4837, ¶ 8. When determining whether probable cause exists, a court reviews the totality of facts and circumstances. State v. Gargaris, 12th Dist. No. CA2007-06-142, 2008 Ohio 5418, ¶ 13.


Permalink 08:09:50 pm, by fourth, 139 words, 409 views   English (US)
Categories: General "Is The U.S. Government Planning To Implement Secret Scanners That Can Detect Anything?" Is The U.S. Government Planning To Implement Secret Scanners That Can Detect Anything? by Allie Compton:

The debate over the government's use of technology that may infringe on privacy is about to be blown out of the water.

Gizmodo has published a report from an anonymous contributor alleging that the government plans on implementing laser-based molecular scanners as soon as 2013. These scanners have the ability to detect even trace amounts of substances.

"From specks of gunpowder to your adrenaline levels to a sugar-sized grain of cannabis to what you had for breakfast," said the report.

The Picosecond Programmable Laser scanners — developed by Genia Photonics and In-Q-Tel — have a reach of 50 meters (164 feet). The machine fires a laser in picoseconds (trillionths of a second), detecting the tiniest traces of substances in an instant, according to the report.

Permalink 11:45:39 am, by fourth, 145 words, 443 views   English (US)
Categories: General

E.D.Pa.: One month old info not stale in gun possession case

One month old information that defendant had possession of a firearm stolen during the burglary of a DEA agent’s house was not too stale for issuance of a search warrant. Guns have enduring value to the holder. United States v. Sanchez, 2012 U.S. Dist. LEXIS 95055 (E.D. Pa. July 10, 2012).*

The stop was valid for a traffic offense, and the prompt use and alert of a drug dog created probable cause to search. United States v. Irons, 2012 U.S. Dist. LEXIS 93935 (N.D. W.Va. July 9, 2012),* adopted 2012 U.S. Dist. LEXIS 103708 (N.D. W.Va. July 26, 2012).*

Defendant did not show that his attorney was ineffective for not moving to suppress where the attorney considered that the defendant’s stop was valid and the search was by consent. Defendant’s claims otherwise are conclusory. Villareal v. United States, 2012 U.S. Dist. LEXIS 95086 (E.D. Tex. June 12, 2012).*

Permalink 11:16:14 am, by fourth, 272 words, 382 views   English (US)
Categories: General

E.D.N.C.: Omission of details doesn't mean officer is trying to mislead under Franks

Omission of information from an officer-created affidavit for a search warrant does not mean that the officer was trying to mislead for Franks purposes. It is expected that some details will be left out, and that’s normal. United States v. Marion, 2012 U.S. Dist. LEXIS 94931 (E.D. N.C. June 5, 2012):

Indeed, the Fourth Circuit has recognized that an affidavit drafted by non-lawyers submitted in support of a search warrant application "cannot be expected to include ... every piece of information gathered in the course of an investigation." Tate, 524 F.3d at 455 (quoting Colkley, 899 F.2d at 300). Moreover, "because every piece of information cannot be expected to be included, the very process of selecting facts to include for the demonstration of probable cause must also be a deliberate process of omitting pieces of information. Certainly, such intentional omissions do not satisfy the requirement of Franks." fd. at 455; Colkley, 899 F.2d at 300-01 (a showing of intentional omission is not enough to merit a Franks hearing; rather, a defendant must show the omission was designed to mislead or was made with reckless disregard whether it had a misleading effect); see Clenney, 631 F.3d at 664 (merely identifying factual omissions from warrant affidavit not sufficient). Likewise, the information omitted from the warrant affidavit must be material. See Colkley, 899 F.2d at 301 ("[T]o be material under Franks, an omission must do more than potentially affect the probable cause determination; it must be 'necessary to the finding of probable cause"') (quoting Franks, 438 U.S. at 156). "Omitted information that is potentially relevant but not dispositive [of probable cause] is not enough to warrant a Franks hearing." Id.


Permalink 08:27:38 am, by fourth, 153 words, 496 views   English (US)
Categories: General

GA: Failure to prove inventory policy made it unreasonable; "pursuant to impoundment" not good enough

The inventory search here was unreasonable under the Fourth Amendment because of a lack of evidence of police policy. The officers simply testified that their searches of the wrecker, van, and its contents were inventory searches pursuant to the impoundment. Capellan v. State, 729 S.E.2d 602 (Ga. App. 2012).

Defendant’s consent to a search of her blood for BAC mooted application of the implied consent statute. McMullen v. State, 316 Ga. App. 684, 730 S.E.2d 151 (2012).*

Officers received a report of a reckless driver, and defendant was seen weaving 20 mph under the speed limit. He was stopped and was found under the influence. After the suppression hearing, he raised invalid inventory, but that was after the evidence closed and the trial court wouldn’t hear it. He reraised it in a motion for new trial and it was denied on the merits, and the record supports it. State v. Harvey, 2012 Tenn. Crim. App. LEXIS 486 (June 22, 2011).*

Permalink 07:48:09 am, by fourth, 213 words, 660 views   English (US)
Categories: General

W.D.Mo.: Police entering a computer running P2P was not an unreasonable search

Investigator’s use of E-Phex (“undercover investigative software”) to enter defendant’s computer when it was available for peer-to-peer file sharing was not an unreasonable search. United States v. Hill, 2012 U.S. Dist. LEXIS 94505 (W.D. Mo. June 18, 2012), adopted 2012 U.S. Dist. LEXIS 94506 (W.D. Mo. July 9, 2012).*

Defendant was stopped based on a CI’s report, but the officers also ran defendant’s name and found he had a revoked license, and that justified the stop. United States v. Irons, 2012 U.S. Dist. LEXIS 93935 (N.D. W.Va. July 9, 2012).*

CI’s information was corroborated by the officers as to how they were dressed and where they were located, and the officer immediately recognized one of the men as a convicted felon. The officers made a “soft approach” without lights and did not order them to stop. They got out of their car and asked to talk to them. “None of the traditional factors used to assess the presence of police coercion were present, and there was no objective indication that Shaw and Teixeira were not free to disregard Detective Almeida's request and leave the area. Such an encounter does not trigger Fourth Amendment scrutiny until and "unless it loses its consensual nature." United States v. Shaw, 2010 U.S. Dist. LEXIS 144672 (D. Mass. April 7, 2010).*

Permalink 07:37:03 am, by fourth, 409 words, 1063 views   English (US)
Categories: General

N.D.Cal.: When TSA officer realized screen did not reveal explosives or a threat to security, he couldn't search

TSA search of defendant’s bag at Oakland airport was not for explosives or other threat to airline security, and the motion to suppress is granted. The TSA officer’s report said that he concluded the dark mass on the screen was not an explosive before the search; he just didn’t know what it was. To be a valid administrative search, it has to be consistent with TSA’s mission; otherwise, it’s just a general search. United States v. Fulgham, 2012 U.S. Dist. LEXIS 93909 (N.D. Cal. July 5, 2012):

In McCarty, the Ninth Circuit recently explained the scope of a lawful airport administrative search. "[U]nder federal law, TSA agents could legally search [Defendant's] entire bag for explosives or other safety hazards." 648 F.3d at 831 (citing 49 U.S.C. § 44901; 49 C.F.R. § 1540.111(c)). "However, because warrantless, suspicionless administrative searches remain subject to the Fourth Amendment, a particular search is constitutionally reasonable only where it is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives and where it is confined in good faith to that purpose." Id. (internal quotations and citations omitted). See also United States v. Doe, 61 F.3d 107, 110 (1st Cir. 1995) ("lawful airline security searches of carry-on luggage may not be enlarged or tailored systemically to detect contraband (e.g., narcotics) unrelated to airline security").

"In other words, an airport search remains a valid administrative search only so long as the scope of the administrative search exception is not exceeded; 'once a search is conducted for a criminal investigatory purpose, it can no longer be justified under an administrative search rationale.'" McCarty, 648 F.3d at 831 (quoting United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1246 n.5 (9th Cir. 1989)). "Thus, because TSA screeners are limited to the single administrative goal of searching for possible safety threats related to explosives, the constitutional bounds of an airport administrative search require that the individual screener's actions be no more intrusive than necessary to determine the existence or absence of explosives that could result in harm to the passengers and aircraft." Id. at 831 (citing $124,570 U.S. Currency, 873 F.2d at 1245). However, the mere fact that an airport screening procedure reveals contraband other than weapons or explosives does not automatically "'alter the essentially administrative nature of the screening process ... or render the searches unconstitutional.'" United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)).


Permalink 07:36:15 am, by fourth, 147 words, 361 views   English (US)
Categories: General

HuffPo: "ACLU Police App Lets People Police The Police (VIDEO)"

HuffPo: ACLU Police App Lets People Police The Police (VIDEO) by David Moye:

Smartphones allow people to check email, Facebook and Twitter accounts, and now keep an eye on the police -- at least in New Jersey.

The New Jersey chapter of the American Civil Liberties Union (ACLU-NJ) has just released “Police Tape,” an Android phone app that allows people to securely and discreetly record and store their interactions with police, as well as provide legal information about citizens’ rights when interacting with law officers.

The story points out that there is only such a constitutional right recognized in NJ. Elsewhere too. No case has held that a person does not have a constitutional right to record the police. Assertions to the contrary are just police paranoia, like arrests for the undefinable crime of videorecording the police under any statute they can come up with, like harassment.

Permalink 07:28:29 am, by fourth, 100 words, 360 views   English (US)
Categories: General "More Demands on Cell Carriers in Surveillance" More Demands on Cell Carriers in Surveillance by Eric Lichtblau

In the first public accounting of its kind, cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber information last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The cellphone carriers’ reports, which come in response to a Congressional inquiry, document an explosion in cellphone surveillance in the last five years, with the companies turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

Permalink 12:01:40 am, by fourth, 129 words, 436 views   English (US)
Categories: General

OH2: Break-ins in area in past no justification for this stop without RS

The justification for defendant’s stop was break-ins in the area, but there was no call of a break-in that day, no description of a suspect or a vehicle involved. The stop was without reasonable suspicion. State v. Lindsey, 2012 Ohio 3105, 2012 Ohio App. LEXIS 2731 (2d Dist. July 6, 2012).*

Defendant’s stop was justified by excessive noise from revving his engine in a parking lot. He was found under the influence, and the stop was valid. His complaint of a frisk is moot because nothing was found to be suppressed. State v. Brown, 2012 Ohio 3099, 2012 Ohio App. LEXIS 2726 (2d Dist. July 6, 2012).*

Heck didn’t bar a § 1983 action where the criminal defendant was fined and had no habeas review. Embassy Realty Invs. v. City of Cleveland, 2012 U.S. Dist. LEXIS 93053 (N.D. Ohio July 5, 2012).*


Permalink 10:13:29 am, by fourth, 211 words, 419 views   English (US)
Categories: General

NC: Defendant wasn't stopped, but he was still seized when ordered out at gunpoint without justification

Defendant was not stopped by the police, but he was certainly seized when he was ordered out of the car at gunpoint. Since the officers lacked a sufficient basis for the seizure, suppression should have been granted. State v. Harwood, 2012 N.C. App. LEXIS 812 (July 3, 2012):

As the trial court found in denying Defendant's suppression motion, the investigating officers, after following Defendant's vehicle, parked their vehicle directly behind Defendant's vehicle, drew their firearms, and ordered Defendant and his passenger to exit Defendant's vehicle. After Defendant got out of his vehicle, Agent McAbee placed Defendant on the ground and handcuffed him, thereby restraining Defendant's freedom of movement "'by means of physical force [and] ... authority'" and creating a situation in which a reasonable person would not have felt free to terminate the encounter. Brendlin, 551 U.S. at 254, 127 S. Ct. at 2405, 168 L. Ed. 2d at 138 (quoting Bostick, 501 U.S. at 434, 111 S. Ct. at 2386, 115 L. Ed. 2d at 398). Thus, although the officers did not, in fact, initiate a traffic stop, Defendant was "seized" by the agents. As a result, "in order [for the agents] to conduct [such] a warrantless, investigatory stop [of Defendant, they] must have [had] a reasonable and articulable suspicion of criminal activity." State v. Hughes, 353 N.C. 200, 206-07, 539 S.E.2d 625, 630 (2000) (citation omitted).

Permalink 09:53:36 am, by fourth, 261 words, 389 views   English (US)
Categories: General

FL2: Anders brief rejected; stop not over when consent occurred and state failed burden of proof of consent

Defendant stopped on a bicycle was issued a citation and the officer asked for consent to search without telling him the stop was effectively over. The state failed in its “heavy burden” of proof that the search was voluntary. Crist v. State, 98 So. 3d 81 (Fla. 2d DCA 2012):

Upon issuing the citation and without acknowledging to him that the stop was over, the officer asked if he could search Crist. Even if we could assume that Crist voluntarily agreed to the search at that point, the officer's subsequent actions in waiting for a second patrol officer to arrive before conducting the search is the antithesis of a clear and convincing indication that a reasonable person would feel free to revoke consent and leave during that delayed waiting period. See Summerall v. State, 777 So. 2d 1060, 1061 (Fla. 2d DCA 2001) ("[A]fter the deputy issued appellant the traffic citation, he engaged appellant in further conversation in an attempt to delay him; requested to search appellant's vehicle; and after this request was denied, told appellant that he still was going to have a canine walk around the vehicle. Under these circumstances, no reasonable person would have believed himself 'free to leave.'"); cf. Sosa, 932 So. 2d at 584 ("No evidence was presented ... indicating that any officer attempted to prolong the traffic stop. Nor was any evidence presented ... that [the deputy] blocked her from leaving the scene, threatened her, held on to her license, or asked her to step out of her car.").

Defense counsel first filed a no-merit Anders brief, and the court ordered rebriefing. Id. n. 1.

Permalink 09:46:24 am, by fourth, 534 words, 767 views   English (US)
Categories: General

TN: A general appellate brief saying the search was illegal without specifying how justified dismissing the appeal

Like a general motion to suppress, an appeal brief that only generally stated the certified search and seizure question for appeal was insufficient to bring the question up for appeal. State v. Simmons, 2012 Tenn. Crim. App. LEXIS 472 (June 26, 2012):

Here, we conclude that the certified question presented by Simmons fails to precisely identify the scope and limits of the legal issue reserved. See Tenn. R. Crim. P. 37(b)(2)(A)(ii). In attempting to reserve the question of "[w]hether the cocaine and oxycodone should have been suppressed by the Circuit Court for an illegal stop and search of Andre Jon Simmons," he asks this court to conduct a complete overview of search and seizure law as applied to the facts of this case. This court has repeatedly declined to engage in or conduct such an overview. See Nicholas J. Johnson, 2001 WL 1356369, at *2; State v. Randal L. Cheek, No. M2000-00203-CCA-R3-CD, 2000 WL 1838584, at *4 (Tenn. Crim. App., at Nashville, Dec. 14, 2000) (dismissing appeal because certified question, "whether there was a lawful or unlawful search of [the defendant's] residence by police officers," was overly broad question in violation of Preston), overruled on other grounds by State v. Sigifredo Ruiz, No. M2000-03221-CCA-R3-CD, 2001 WL 1246397, at *4 (Tenn. Crim. App., at Nashville, Oct. 17, 2001).

Simmons's certified question is overly broad for several reasons. First, the certified question does not adequately set forth the legal basis for Simmons's claim. It is unclear whether the police action is allegedly illegal under the United States Constitution, the Tennessee Constitution, or both. Additionally, assuming he alleges a constitutional violation, he fails to mention any of the exceptions to the warrant requirement that potentially apply. See State v. Tobias Toby Horton, No. W2008-01170-CCA-R3-CD, 2009 WL 2486173, at *6 (Tenn. Crim. App., at Jackson, Aug. 13, 2009) ("In light of the facts of this case and the trial court's ruling at the suppression hearing, the failure to mention the exigency exception to the warrant requirement in the certified question of law is fatal to this appeal."), perm. app. denied (Tenn. Dec. 14, 2009). In particular, the question does not mention reasonable suspicion, probable cause, search incident to arrest, or the automobile exception to the warrant requirement. All of these concepts would presumably be central to Simmons's claim. As framed, the question is patently non-specific because it fails to identify the scope and limits of the legal issue raised and the reasons relied upon by Simmons at the suppression hearing. Moreover, the broad terms of the certified question are not cured by Simmons's narrower assertions in his appellate brief. See id.; Kale J. Sandusky, 2009 WL 537526, at *3. Because Simmons has failed to properly identify the scope and limits of the legal issue reserved, we are without jurisdiction to consider this appeal.

You can't expect an appeals court to do your work for you if you can't do it yourself.

[One would hope that the appellate court at least read the record enough to tell that the case would have been affirmed on the merits so as to know at least that a post-conviction petition would fail for lack of prejudice. Whether or not it did, the court's finding is law of the case on the performance prong of ineffectiveness under Strickland.]


Permalink 07:37:27 am, by fourth, 476 words, 591 views   English (US)
Categories: General

CA6 sanctions police created exigency to seize computer in CP case

The Sixth Circuit sustains a police created exigency, without admitting it, by condoning the police telling the defendant they know he has child pornography on his computer so they could seize it to protect it from destruction. United States v. Bradley, 488 Fed. Appx. 99 (6th Cir. 2012):

=> Read more!

Permalink 07:28:20 am, by fourth, 274 words, 438 views   English (US)
Categories: General

W.D.Ky.: CI not shown to be creditable, and there was no RS for stop; defendant without standing still gains suppression

Defendant was a passenger and lacked standing to challenge the search of the car he was in, but he still prevails. He can only challenge the stop. Here, the stop was not consensual, and the driver was not free to leave when a police car pulled in front of it and the officer walked back. While the fellow officer rule allows one officer to credit another’s informant, the informant’s tale still has to have indicia of reliability or trustworthiness, and here it didn’t. United States v. Oliver, 2012 U.S. Dist. LEXIS 92988 (W.D. Ky. July 5, 2012):

Even though the suspicion level necessary for an investigative stop is minimal, the Government has not shown there was reasonable suspicion to believe Oliver and Woodson were engaged in criminal activity. The Government failed to offer any background on the informant. The tip lacked verifiable information for the officers. No specifics were offered on Oliver's connection to the apartment. The Government did not elicit statements from Pearson explaining what he knew about Oliver's criminal record before the detention. Taken in the aggregate, the Government failed to carry its burden and prove the police acted with reasonable suspicion.

. . .

Despite its best efforts, the Court cannot conceive of a scenario whereby the police would have gathered this inculpatory evidence through the inevitable-discovery doctrine or the independent-source rule. See id. As the Government bears the burden to prove the appropriateness of these doctrines, its silence forecloses their application. See United States v. Fofana, 666 F.3d 985, 992 n. 1 (6th Cir. 2012). Judging from the clear implications of the evidence, the pistol and Oliver's statement are unaffected by either of these legal rules.


Permalink 01:51:30 pm, by fourth, 241 words, 444 views   English (US)
Categories: General

CA9: Bruising while handcuffing qualifiedly immune based on plaintiff's refusal to submit to handcuffing

Two 911 calls of men on a roof with a rifle and a case of beer1 justified a protective sweep. One plaintiff’s excessive force claim was a result of his refusing to submit. Vernon v. Santa Barbara, 2012 U.S. App. LEXIS 13689 (9th Cir. July 5, 2012).*

When evaluating the officers' objective reasonableness in exerting force, we consider "(1) the severity of the crime at issue; (2) whether [Vernon] posed an immediate threat to the safety of the officers or others; and (3) whether [Vernon] actively resisted arrest." Gregory v. Cnty. of Maui, 523 F.3d 1103, 1106 (9th Cir. 2008).

The amount of force exercised by Officers Ruiz and Van Eyck to detain and handcuff Vernon was objectively reasonable. As indicated above, the officers had reason to believe that at least one occupant of the house posed an immediate threat to their safety and that a certain amount of force was necessary to confront him. In addition, Vernon's refusal to comply with Officer Ruiz's repeated, verbal requests and his physical resistance to handcuffing increased the perceived danger of the situation the officers confronted while in his unsecured bedroom. See id. at 1106-07. The contusions and abrasions that Vernon alleged as injuries were only occasioned by his refusal to accept reasonable directions, which were clearly intended for his safety and that of others. See Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1096-98 (9th Cir. 2006); Forrester v. City of San Diego, 25 F.3d 804, 806-07 (9th Cir. 1994).


1. Cue the banjos.

Permalink 01:42:43 pm, by fourth, 138 words, 401 views   English (US)
Categories: General

D.P.R.: PR gun dealers highly regulated under Burger

Plaintiff was a Puerto Rico gun dealer who lost its license due to missing firearms, and an administrative search by the PRPD was within the Burger highly regulated business exception. B&B Target Ctr. v. Figueroa-Sancha, 2012 U.S. Dist. LEXIS 92208 (D. P.R. July 3, 2012).

Seizure of stuff possibly outside the search warrant in a child exploitation case was not unreasonable when it was immediately apparent that the items seized could have been used for grooming child victims. United States v. Young, 2012 U.S. Dist. LEXIS 92048 (D. Neb. July 3, 2012), R&R 2012 U.S. Dist. LEXIS 83198 (D. Neb. June 15, 2012).*

Defendant who fled from a frisk “for officer safety” when confronted by three officers after a traffic stop could not complain of a frisk that never occurred. United States v. Grinage, 2012 U.S. Dist. LEXIS 92959 (W.D. Pa. July 5, 2012).*

Permalink 09:04:57 am, by fourth, 223 words, 328 views   English (US)
Categories: General

N.D.W.Va.: "Any and all material evidence of a crime" in a search warrant is not per se overly broad

"Any and all material evidence of a crime" in a search warrant is not per se overly broad. United States v. Lipscomb, 2012 U.S. Dist. LEXIS 91494 (N.D. W.Va. July 3, 2012):

The Court finds that the sentence "Any and all material evidence of a crime" by itself is overly broad and could be seen as authorizing a general exploratory rummaging in a person's belongings." The Court also finds, however, that the inclusion of that one sentence does not invalidate the entire search warrant. In fact, Defendants do not point to any materials that were seized that would not be covered by the particular terms of the search warrant, with the exception of the methamphetamine instruction sheet, which shall be discussed later. See United States v. Washington, 852 F.2d 803 (4th Cir. 1088) (upholding a warrant which authorized a search for "heroin, a quantity of drug paraphernalia, papers, notes, bank records, identification documents and other items of evidence...."), and United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999)(upholding a warrant that was claimed overbroad, noting, expressly, the fact that the items actually seized were all related to the crime at issue.) Tpr. Kessel testified all the items on the property receipt were related to the manufacture of methamphetamine, and a review of the Property receipt indicates to the Court that his testimony regarding this was correct.


Permalink 07:31:10 am, by fourth, 340 words, 590 views   English (US)
Categories: General

M.D.Pa.: Elementary school teacher could be subjected to Breathalyzer because of a reduced REP at work

An elementary school teacher who showed up at work with the smell of alcohol about her person was reasonable suspicion not probable cause. Under the reasonableness special needs standard, a Breathalyzer test was reasonable because elementary school teachers have a reduced expectation of privacy at work. Donegan v. Livingston, 2012 U.S. Dist. LEXIS 91884 (M.D. Pa. July 3, 2012):

Administration of a Breathalyzer test to an elementary school employee passes this reasonableness test. The Supreme Court has specifically recognized the school environment as one which "presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements." Skinner, 489 U.S. at 620 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987)). Moreover, an analysis of the above factors demonstrates that an elementary school employee in Donegan's position could be properly subjected to a Breathalyzer test.

Like the corrections officer in Majewski, Donegan's profession subjected her to a reduced expectation of privacy in her sobriety while at work. Similar to railroad workers, teachers' privacy to ingest substances at work is "diminished by reasons of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees." Skinner, 489 U.S. at 627; see also Knox County Educ. Ass'n v. Knox County Bd. of Educ., 158 F.3d 361, 384 (6th Cir. 1998) (noting that teachers play a unique role in their influence and access to children and "should not be surprised if their own use of drugs is subject to regulation and testing and, as such, their expectation of privacy, at least with respect to drugs and drug usage, might be diminished."); but see Am. Fed'n of Teachers-W. Virginia, AFL-CIO v. Kanawha County Bd. of Educ., 592 F. Supp. 2d 883, 904 (S.D.W. Va. 2009) (declining to find teacher positions as safety sensitive on the record before that court). As teachers inhabit a highly regulated environment which is particularly sensitive to alcohol and drug abuse, I find that teachers have a reduced expectation of privacy in the use of such substances while at work.

Permalink 07:20:04 am, by fourth, 140 words, 377 views   English (US)
Categories: General

WA: SI of person derives from common law and remains the same

Search incident to arrest of the person pretty much remains the same and comes from the common law, but search incident of vehicles has changed. State v. Salinas, 169 Wn. App. 210, 279 P.3d 917 (2012).

Not a Fourth Amendment case on appeal, but interesting nonetheless, and one that may reappear as SORNA registrants are polygraphed on release: Defendant was convicted of sexual abuse of his two minor sisters in 1990. While on parole, he had to submit to polygraph examinations as a condition of release over his objection, and he was asked about and admitted viewing child pornography. ICE agents were called by state parole, and they did a knock-and-talk and defendant consented to a search of his computers [not an issue on appeal], and made statements to them which came in at his trial. United States v. Ramos, 685 F.3d 120 (2d Cir. July 2, 2012).*

Permalink 07:15:18 am, by fourth, 335 words, 358 views   English (US)
Categories: General

IL: Multiple shots fired 911 call plus facts at scene created emergency aid exception

Multiple 911 calls of shots fired with facts observed at the scene created a reasonable belief that a person was injured inside. (Critical factual findings of the trial court on the motion to suppress were unsupported by the record, so the court reviewed all de novo.) People v. Lomax, 2012 IL App (1st) 103016, 975 N.E.2d 115 (June 29, 2012):

[**P39] Multiple calls to 911 complaining that people overheard gunshots being fired created a reasonable belief that an emergency situation existed at the first-floor rear unit of the South Wells building and that someone was in need of aid. Defendant's arguments to the contrary, which are that the police could not be sure whether or not the sounds were in fact gunshots and that none of the calls were made by anyone who had physically observed a gun, if accepted, would frustrate the purpose of the 911 emergency system. As the Seventh Circuit found in Hanson, multiple reasons exist as to why no one who had observed a gun had called 911. Hanson, 608 F.3d at 337. If someone had been shot and was in need of medical attention, he or she might not be able to operate a phone. Hanson, 608 F.3d at 337. Furthermore, anyone else in the apartment might have been afraid to call 911 because of threats of physical violence from the person holding the gun. Hanson, 608 F.3d at 337.

[**P40] The reasonableness prong of the test is determined by the totality of the circumstances known to the officer at the time of entry. Ferral, 397 Ill. App. 3d at 705 (citing Griffin, 158 Ill. App. 3d at 51). The United States Supreme Court has cautioned courts against second-guessing the police's assessment of the situation. Ryburn v. Huff, __ U.S. __, ___, 132 S. Ct. 987, 992 (2012) (per curiam). Police officers often must make split-second decisions, without the benefit of immediate hindsight, in situations that are often "'tense, uncertain, and rapidly evolving.'" Ryburn, __ U.S. at ___, 132 S. Ct. at 992 (quoting Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 1872 (1989)).

Hanson is Hanson v. Dane County, 608 F.3d 335 (7th Cir. 2010), posted here.

Permalink 12:10:21 am, by fourth, 360 words, 350 views   English (US)
Categories: General

NY1: Lack of objective evidence of weapon made frisk unreasonable

Officers lack objective evidence that this 14 year old defendant had a weapon when he stopped to remove something from his waistband and put it in his backpack. Matter of Jaquan M., 2012 NY Slip Op 05334 (1st Dept. July 3, 2012)* (3-2):

Reasonable suspicion could not be formed in this case based strictly on the officers' observation of appellant removing an object from his waistband, because they conceded that the object bore no obvious hallmarks of a weapon. Further, there were no other objective indicia of criminality because there were plausible, non-criminal reasons for appellant's behavior. For example, the fact that the backpack sagged at the bottom could have been the result of any number of things which it would have been legal for appellant to possess. Nor did appellant's actions in pacing back and forth and peering up and down the street and sidewalk, and then kneeling down to transfer something into the backpack exclude the reasonable possibility that he was engaged in innocent behavior. The fact that appellant was in a high-crime area and on his way to another high-crime area does not, without more, constitute a factor sufficient to create reasonable suspicion (Powell, 246 AD2d at 369-370). Nor do we believe that all of these factors, taken together, reasonably lead to the conclusion that appellant was in the process of committing a crime.

Even if the seizure of appellant was legal, we find that appellant's denials that there was anything inside the bag did not justify an increase in the level of suspicion such that the police properly searched his bag. In the cases on which the presentment agency and the dissent rely in arguing that similar lies can create probable cause, People v Febus (11 AD3d 554 [2004] lv dismissed 7 NY3d 743 [2004]) and People v Scott-Heron, 11 AD3d 364 [2004], lv denied 4 NY2d 804 [2004]), the police had already developed strong reason to believe that the defendants had secreted drugs, and the defendants' denials were found to have buttressed that belief. Here, as discussed above, the police had no basis to believe that there was a gun in appellant's backpack, other than their hunch. Appellant's denials were insufficient, on their own, to create probable cause.

Permalink 12:04:24 am, by fourth, 95 words, 393 views   English (US)
Categories: General

CA3: 30-45 second wait after knock-and-announce was reasonable

A 30-45 second wait after knocking and entering was reasonable, per Banks. Walke v. Cullen, 491 Fed. Appx. 273 (3d Cir. 2012).

A DEA administrative subpoena under 21 U.S.C. § 876(a) for Sprint cell phone records was a proper use of the subpoena power and violated no right of privacy. Thereafter, pinging the cell phone with a search warrant did not violate the Fourth Amendment. United States v. Jones, 2012 U.S. Dist. LEXIS 92129 (M.D. Ala. June 15, 2012).

Defendant lacked standing as to a vehicle and a place searched. State v. Cumberledge, 2012 Ohio 3012, 2012 Ohio App. LEXIS 2660 (11th Dist. June 29, 2012).*


Permalink 10:30:03 am, by fourth, 159 words, 363 views   English (US)
Categories: General

OH12: Consent to DNA in a current investigation doesn't preclude use in a cold case

Defendant consented to the taking of his DNA in a sex investigation, and CODIS matched him to a robbery. The consent was voluntary. State v. Oberding, 2012 Ohio 3047, 2012 Ohio App. LEXIS 2650 (12th Dist. July 2, 2012):

[*P17] Based on the totality of the circumstances, Oberding gave his consent voluntarily, as his consent was not the result of duress or coercion. Oberding was told that his DNA sample would be tested and used by the crime laboratory, and the sample was in fact tested and used by the crime laboratory. The fact that Oberding's sample matched that of the John Doe sample from the bakery robbery did not render his consent involuntary.

. . .

[*P20] While other Ohio courts have not analyzed this issue at length, courts outside this state have determined that once a suspect's DNA sample is obtained lawfully by police, that sample can be used for other purposes separate from an investigation of the crime for which the sample was first procured.

Permalink 10:19:15 am, by fourth, 159 words, 651 views   English (US)
Categories: General

CA11: Altering state search warrant after issuance voids it

Defense lawyers: How many times have you heard about a warrant allegedly being forged? Here's one: Altering a search warrant to include the address of the place to be searched that had been omitted [which the issuing magistrate didn’t notice until after it was added] and reprinting the page stated a claim for § 1983 liability, and partial summary judgment was properly granted. No qualified immunity for the factual disputes that remain. Gordon v. Chattooga County, 2012 U.S. App. LEXIS 13554 (11th Cir. July 3, 2012). [Typical: The magistrate didn't closely read the search warrant.]

Blue halogen headlights were at least reasonable suspicion for a stop. After the stop, RS and then PC developed. One passenger consented to a search of a coat for a weapon, and then to a wallet found for ID, and that produced counterfeit credit cards. There was PC for everybody’s arrest under the common scheme or plan theory of Pringle. Ray v. State, 206 Md. App. 309, 47 A.3d 1113 (2012).*

Permalink 09:53:54 am, by fourth, 6 words, 405 views   English (US)
Categories: General "Andy Griffith Vs. the Partiot Act"

Permalink 09:02:28 am, by fourth, 182 words, 326 views   English (US)
Categories: General

N.D.W.Va.: SW's use of overbroad phrase doesn't void whole warrant or seizure

"Any and all material evidence of a crime" by itself is overly broad, but the defendant has to show that something was seized under that provision to challenge that seizure. United States v. Lipscomb, 2012 U.S. Dist. LEXIS 91494 (N.D. W.Va. July 3, 2012):

The Court finds that the sentence "Any and all material evidence of a crime" by itself is overly broad and could be seen as authorizing a general exploratory rummaging in a person's belongings." The Court also finds, however, that the inclusion of that one sentence does not invalidate the entire search warrant. In fact, Defendants do not point to any materials that were seized that would not be covered by the particular terms of the search warrant, with the exception of the methamphetamine instruction sheet, which shall be discussed later. ...

When defendant was stopped at a bus station and asked for his ID, that was a stop that no person would feel free to ignore, and it went downhill from there. His consent was not freely given. United States v. Otero-Figueroa, 2012 U.S. Dist. LEXIS 91169 (W.D. Mo. June 19, 2012).*

Permalink 08:36:05 am, by fourth, 158 words, 374 views   English (US)
Categories: General

Cato: "Fourth Amendment Gone to the Dogs—and to Lasers?!" Fourth Amendment Gone to the Dogs—and to Lasers?! by Jim Harper:

For all their use by law enforcement across the country, drug-sniffing dogs haven’t gotten a lot of consideration in the Supreme Court. In a pair of cases next fall, though, the Court seems likely to give them some attention. Florida v. Harris is one of the cases it has taken. Harris will examine “[w]hether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.”

This week, we filed an amicus brief in the other drug-sniffing dog case, coming out of the same state. Florida v. Jardines asks whether the Fourth Amendment would be implicated if the government brought a drug-sniffing dog to the front door of your home seeking the scent of illegality.

What the Court has done with drug-sniffing dogs so far is not very good. ...

Permalink 07:55:49 am, by fourth, 3 words, 518 views   English (US)
Categories: General

"America was neither founded, nor freed, by the well-behaved."


Permalink 09:43:36 am, by fourth, 139 words, 412 views   English (US)
Categories: General

OH5: Reasonable but mistaken suspicion still justified stop

Defendant was stopped because of a reasonable mistake that he was a robbery suspect for whom there was an arrest warrant. When the stop occurred, defendant reached for his waistband, and the officer did, too, retrieving a gun. The stop was with reasonable, albeit mistaken, suspicion. State v. Pickens, 2012 Ohio 2901, 2012 Ohio App. LEXIS 2543 (5th Dist. June 22, 2012).

“The tip, the suspects' location, Detective Almeida's knowledge of Teixeira's ineligibility to possess a firearm, and the suspects' movements [“blading”] once Detective Almeida approached combined to provide a basis for Detective Almeida's reasonable suspicion that Teixeira and Shaw were engaged in criminal activity.” United States v. Shaw, 874 F. Supp. 2d 13 (D. Mass. 2012).*

Defendant’s car was lawfully impounded; the officer did not need to leave it on an exit ramp where it was a hazard. Scott v. State, 316 Ga. App. 341, 729 S.E.2d 481 (2012).*

Permalink 09:18:25 am, by fourth, 223 words, 332 views   English (US)
Categories: General

E.D.Okla.: Knock-and-talk with RS here led to valid warrantless entry

Officers did a knock-and-talk with reasonable suspicion of a place with known felons and then smelled drugs. Noises came from inside that were apparently inconsistent with somebody just coming to the door [“The officers knocked on the door, whereupon they heard ‘scurrying and shuffling’ within the residence, which caused the officers concern.”], and that justified their entry. United States v. Moore, 2012 U.S. Dist. LEXIS 90579 (E.D. Okla. May 17, 2012)* [I can’t believe that’s all it takes, and it never says that the officers identified themselves.]:

Certainly, in this case, law enforcement had a reasonable suspicion of criminal activity at the time of the "knock and talk" encounter. Based upon the heightened traffic at the residence, the known prior criminal activity at the residence, the presence of Defendant Moore at the residence -- a known felon who had previously engaged in a drug selling enterprise, officers were justified in inquiring at the residence through the "knock and talk" procedure. Upon hearing the activity within the residence upon announcing their presence and the smell of illegal drugs once the door was opened and the presence of known or suspected felons on the premises, officers were justified in entering the residence to secure evidence and for their own safety. Officers did not seize any observed contraband until signed consents were obtained from the residents.

Permalink 09:00:14 am, by fourth, 121 words, 373 views   English (US)
Categories: General

AL: Lack of plan for DUI roadblock made it unreasonable

The lack of a plan for this DUI roadblock made it unreasonable and a stop with unfettered discretion. Ogburn v. State, 104 So. 3d 267 (Ala. Crim. App. 2012).

A search warrant for a cell phone in a money forfeiture trial was issued without probable cause where it was “based on [only] (1) the money found in Bolden's vehicle and (2) Officer Kendrick's personal knowledge that Bolden had sold illegal drugs in the past.” Bolden v. State, 127 So. 3d 1195 (Ala. Civ. App. 2012).

Defendant was removed to the back of a police car while a search warrant was sought for child pornography. He was seized for Fourth Amendment purposes and in custody for Miranda purposes. United States v. Wooten, 2012 U.S. Dist. LEXIS 90627 (E.D. Mich. June 29, 2012).*

Permalink 08:11:56 am, by fourth, 80 words, 334 views   English (US)
Categories: General "DA Gets to See Occupy Tweets" DA Gets to See Occupy Tweets by Pervaiz Shallwani:

Twitter Inc. must turn over messages posted by an Occupy Wall Street protester, a Manhattan judge ruled on Monday, another move toward giving law-enforcement agencies broad access to comments made on social media.

Monday's order was the second time Manhattan Criminal Court Judge Matthew Sciarrino Jr. has ruled that law-enforcement agencies can subpoena messages posted on Twitter.

Twitter is the most protective of any Internet service of customer privacy.


Permalink 09:24:17 am, by fourth, 133 words, 417 views   English (US)
Categories: General

TN: Blue lights behind an already stopped car not a seizure

Use of blue lights when a police car stops behind an already parked car as a part of the community caretaking function is not a stop. It is for safety. State v. Vandergriff, 2012 Tenn. Crim. App. LEXIS 452 (June 28, 2012).

Defendant’s cotton mouth and slurred speech and seeing a corner of a clear plastic sandwich bag was not reasonable suspicion of drugs. DUI? Likely, but that was not the focus of this investigation, and the continuation of this stop was unreasonable. State v. Jones, 47 Kan. App. 2d 866, 280 P.3d 824 (2012).

Defendant’s almost nonsensical answers to basic questions were enough to make reasonable suspicion. (Something like “where’s your luggage?” “In the back seat?” “There’s no luggage in the back seat.” “I’m wearing it all.”) State v. Dow, 375 S.W.3d 845 (Mo. App. 2012).*

Permalink 08:54:48 am, by fourth, 115 words, 322 views   English (US)
Categories: General

CA1: Franks not violated by not disclosing CI not strip searched before controlled buy

Not disclosing there was no strip search of the CI before the controlled buy did not undermine probable cause under Franks. United States v. Rigaud, 684 F.3d 169 (1st Cir. 2012).*

Defendant was accused of sex with a minor and production of child pornography with that minor. The fact the early information was partially years old did not make it stale because the sexual relationship just ended and its continuing utility to the defendant. Cochran v. State, 2012 Ala. Crim. App. LEXIS 45 (June 29, 2012).*

Driving the wrong way on an interstate highway was reasonable suspicion for a stop. During the stop defendant admitted to a gun, and it was not suppressed. State v. Taylor, 97 So. 3d 522 (La. App. 5 Cir. 2012).*

Permalink 08:22:52 am, by fourth, 324 words, 1027 views   English (US)
Categories: General

MD: RS all that's required with a parolee retake warrant

“In light of the appellant's status not simply as a parolee generally but as a parolee for whom a parole retake arrest warrant was outstanding, we hold, pursuant to the balancing test of United States v. Knights, that the search of Room 133 of the Days Inn, based on reasonable suspicion to believe that the appellant was engaged in criminal activity, was not unreasonable under the Fourth Amendment.” The state didn’t argue a lack of standing in somebody else’s motel room, so they waived it. Feaster v. State, 206 Md. App. 202, 47 A.3d 1051 (2012). This is a Moylan opinion, always entertaining, sometimes overdone. But always entertaining.

In 1945 in Animal Farm, George Orwell told us, "All animals are equal, but some animals are more equal than others." A similar relativism prevails with respect to the protections of the Fourth Amendment. The people are protected from unreasonable searches and seizures, but probationers and parolees are less protected than other people. More precisely, searches that would be unreasonable with respect to other people would not be unreasonable with respect to them. The key to the puzzle now before us is that the appellant, when searched, was a parolee.

. . .

This case would have presented no Fourth Amendment problem if the appellant, who, if challenged, would have borne the burden of proof on standing, Rakas v. Illinois, 439 U.S. 128, 130-31 n.1, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), Fitzgerald v. State, 153 Md. App. 601, 662, 837 A.2d 989 (2003), aff'd. 383 Md. 484, 864 A.2d 1006 (2004); Burks v. State, 96 Md. App. 173, 195, 624 A.2d 1257, cert. denied, 322 Md. 381, 631 A.2d 451 (1993), had not been able to show a Fourth Amendment interest in Room 133. Such a threshold challenge, it would seem, ought to be an automatic prosecutorial instinct when dealing with hotels and motels.

There is no point in locking the barn door, however, once the horse is out. A failure of the State to raise a challenge to a defendant's standing at the suppression hearing operates as a waiver of the challenge. ...

Permalink 08:09:47 am, by fourth, 256 words, 320 views   English (US)
Categories: General

GA: Generalized assertions can't support no-knock

No-knock provision in this search warrant was supported only by generalizations about drug dealers, and the accused here was only suspected of being a user. Entry was unreasonable. State v. Cash, 316 Ga. App. 324, 728 S.E.2d 918 (2012):

The affidavit and evidence presented in this case are remarkably similar to that presented in our recent decision in Barnett, supra, 314 Ga. App. at 17-20, where we held that the blanket provisions based on the agent's generalized experience in drug investigations were insufficient to justify a “no-knock” provision in a search warrant. Here, as in Barnett, the affidavit requested a “no-knock” search warrant based upon the agent's general experience that drug evidence can be easily destroyed and that drug suspects commonly possess firearms. See Barnett, supra, 314 Ga. App. at 19. While the affidavit stated that the drug suspect had been in the military and likely had “knowledge” regarding firearms, there was no indication that the drug suspect or any occupant of the residence possessed a firearm. The affidavit also failed to set forth any information indicating that the drug suspect had packaged or located the drugs in the residence for quick disposal. In sum, the affidavit and evidence in this case failed to present any particular facts and circumstances justifying a “no-knock” provision, and instead, was based entirely upon generalizations. Consequently, the “no-knock” provision was invalid, which rendered the execution of the warrant without knocking and announcing illegal and supported the trial court's decision granting the motion to suppress. See Barnett, supra, 314 Ga. App. at 20; Poole, supra, 266 Ga. App. at 114-119 (1).

Permalink 07:56:15 am, by fourth, 359 words, 580 views   English (US)
Categories: General

E.D.Pa.: Fourth Amendment and a public employee's work e-mail

In a Title VII case, plaintiff claimed the defendant school district violated her Fourth Amendment rights by looking at e-mails on the school district’s computers. It wasn’t her computer and she signed off on a technology policy that she didn’t own anything on the computer system. Dombrowski v. Governor Mifflin Sch. Dist., 2012 U.S. Dist. LEXIS 90674 (E.D. Pa. June 29, 2012):

Plaintiff claims that GMSD violated her right to privacy when (1) it ordered an outside forensic investigator to search Plaintiff's work computer (which Plaintiff had turned over when she was suspended); (2) the forensic investigator produced Plaintiff's personal e-mails (including e-mails between Plaintiff and her attorney) which were found on her computer and a network server; and (3) it introduced many of the produced e-mails into evidence during Plaintiff's Loudermill and public School Board hearings. The Court must consider whether Plaintiff has a reasonable expectation of privacy in e-mails (including e-mails between Plaintiff and her counsel) that could be accessed by the forensic investigator solely by searching property owned by GMSD.

Courts have considered the confidentiality of e-mails and documents sent from work computers, including e-mails between attorneys and clients. In re Asia Global Crossing,
Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005), cogently sets forth four critical factors that a court should consider with respect to an employee's expectation of privacy in computer files and e-mail:

(1) [D]oes the corporation maintain a policy banning personal or other objectionable use,
(2) does the company monitor the use of the employee's computer or e-mail,
(3) do third parties have a right of access to the computer or e-mails, and
(4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Id. at 257 (footnote omitted); see also United States v. Nagle, No. 1:09-CR-384, 2010 WL 3896200, at *4 (M.D. Pa. Sept. 30, 2010). The Asia Global court then discussed numerous
federal cases from which these factors were derived. Asia Global, 322 B.R. at 257-58. The conclusion often turned on whether there was a company policy respecting the privacy of work computers; whether the employee was aware of the policy; and whether the company actually implemented its policy. Id. (describing collected cases).


Permalink 09:18:09 am, by fourth, 189 words, 356 views   English (US)
Categories: General

OH5: Reasonable mistake of fact that a wanted person was in the car justified stop

Officer’s reasonable mistake of fact that a passenger in defendant’s car had a warrant out for him made the stop reasonable and with good faith. The trial court’s finding of reasonableness is supported by the record. State v. Butler, 2012 Ohio 2902, 2012 Ohio App. LEXIS 2544 (5th Dist. June 22, 2012):

[*P46] The United States Supreme Court has held that a police officer's mistake of fact will not lead to the suppression of evidence where the mistake was "understandable" and a reasonable response to the situation facing the police officer. Hill v. California, 401 U.S. 797, 804, 91 S.Ct.1106, 28 L.Ed.2d 484 (1971). Here, the trial court's finding that Doty's misidentification was reasonable is supported by competent, credible evidence in the record: ...

The state had the burden of proving that the consent to frisk occurred during an “unavoidable lull” in a stop when dispatch was queried for wants or warrants. State v. Dennis, 250 Ore. App. 732, 282 P.3d 955 (2012).*

Defendant discarded the cocaine he was indicted for when he was approached by officers, so his attorney was not ineffective for not moving to suppress. United States v. Calhoun, 2012 U.S. Dist. LEXIS 90110 (E.D. Pa. June 28, 2012).*

Permalink 08:53:37 am, by fourth, 465 words, 644 views   English (US)
Categories: General

S.D.N.Y.: Breath testing of NYPD officers involved in shootings reasonable under “special needs” doctrine

NYPD’s policy of giving a breath test to officers involved in shooting incidents is reasonable under the “special needs” doctrine. Palladino v. City of New York, 870 F. Supp. 2d 350 (S.D. N.Y. 2012) (prior history: preliminary injunction denied, Palladino v. The City of New York, 07 CV 9246 (S.D.N. Y. Sep. 30, 2008), aff’d Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009), cert, denied, 131 S. Ct. 415 (2010)):

Plaintiffs argue that the breathalyzer test is unreasonable in light of the emotional trauma NYPD officers might experience after discharging their weapons. NYPD officers are without question a category of the bravest and finest public servants, and often must face the consequences of difficult and even potentially life-threatening situations. But the breathalyzer test—even with its immediate post-shooting application—is not an unreasonably traumatic intrusion when viewed in the context of the thorough post-shooting investigation protocol already in place. Officers understand that there will be an administrative investigation into each instance in which they must discharge their firearms. Officers also understand that they will be subject to a five minute breathalyzer test every time they discharge their weapons and someone is injured as a result. It is a brief, mandatory process. The breathalyzer test is uniformly conducted and is neither arbitrary nor oppressive. The test is conducted immediately to quickly lift the cloud of any suspicion that an officer has acted improperly.

The final balancing factor of the special needs test requires the Court to consider "the nature and immediacy of the government's needs" and "the efficacy of its policy in addressing those needs." Cassidy, 471 F.3d at 75. As the Second Circuit articulated in Lynch, "the NYPD's regulations involving alcohol and firearms are vital to public safety, and the NYPD has a substantial interest in detecting and disciplining officers who violate these policies... [and] in deterring its officers from using their firearms while intoxicated." 589 F.3d at 104. The NYPD has a very practical and important interest in managing its personnel and ensuring that officers comply with the Patrolman's Guide regulations concerning officer fitness for duty. Officers are prohibited from possessing a firearm if they are overly intoxicated. The breathalyzer test deters officers from violating this important rule, and serves to identify those officers who do discharge their weapons while under the influence of alcohol. Accordingly, IO 52 is narrowly tailored to accomplish the NYPD's goals of ensuring compliance with its policies regarding personnel management. See id. ("By quickly and unequivocally determining whether alcohol was involved in an NYPD officer's use of his or her firearm, the breathalyzer policy will assist the NYPD in disciplining officers who use their firearms while intoxicated and will provide an incentive to officers to stow their firearms before drinking alcohol").

Under Von Raab and Skinner, this really was not even a close question.

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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2013-14 Term:
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  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

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

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

2009-10 Term:

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

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

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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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