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 LATimes.com: 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.

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.

OnTheMedia.org: 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.

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.

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.

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). ...

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).*