Archives for: August 2012

08/31/12

Permalink 03:14:02 pm, by fourth, 148 words, 444 views   English (US)
Categories: General

E.D.N.C.: Search of iPhone in another jurisdiction under SW not a Fourth Amendment violation

Extra-jurisdictional extraction of data from an iPhone under a search warrant was not a violation of the Fourth Amendment. United States v. Parrish, 2012 U.S. Dist. LEXIS 121165 (E.D. N.C. August 27, 2012).*

In a warrant for thermal imaging, police received an anonymous letter about a grow operation. They corroborated all the obvious information of who had the place and what car he drove, but they then found he had unusual electrical consumption. The warrant was issued with probable cause. [Sounds a lot like Gates.] United States v. Schmidt, 2012 U.S. Dist. LEXIS 120643 (W.D. N.Y. July 9, 2012).*

Defendant was not told that he could refuse consent, but the consent was on video and it appears to be consent. His detention was based on reasonable suspicion. United States v. Binford, 2012 U.S. Dist. LEXIS 121816 (E.D. Tenn. August 28, 2012), R&R 2012 U.S. Dist. LEXIS 121814 (E.D. Tenn. July 20, 2012).*

Permalink 03:03:53 pm, by fourth, 307 words, 453 views   English (US)
Categories: General

CA10: School restraint desk that could be crawled out of was not a seizure

A six year old girl with multiple disabilities caused by being born with cocaine addiction was not subjected to a Fourth Amendment violation by being put in a school restraint desk that she could crawl out of. This was different than other cases from this circuit where the child was physically restrained. Ebonie S. v. Pueblo School District 60, 11-1273 (10th Cir. August 28, 2012):

Plaintiff devotes much effort to arguing that the use of the desk was prohibited under Colorado law and was contrary to well-established educational standards. But it is not our office to decide the lawfulness of the desk under state law or the wisdom of using the desk as a matter of pedagogical policy. We firmly decline to offer any view on those questions. Moreover, we express no view as to the claims under the ADA and the Rehabilitation Act. We hold only that use of the desk under the circumstances presented did not violate the Fourth or the Fourteenth Amendments.

. . .

Finally, we find significant that the restraining mechanisms were not attached to Ebonie’s body. This fact distinguishes Ebonie’s circumstances from the cases the plaintiff cites in which other circuits have found in-school seizures. See Gray v. Bostic, 458 F.3d 1295, 1306 (11th Cir. 2006) (handcuffing student was unreasonable seizure); Doe ex rel. Doe v. Haw. Dep’t of Educ., 334 F.3d 906, 910 (9th Cir. 2003) (taping student’s head to a tree was a seizure). Physically binding a student is a much more significant imposition on her dignity and bodily integrity than the use of the desk in this case.

If one or more of these facts were absent, our conclusion might be different. But in light of these three factors, we conclude that Ebonie was not seized within the meaning of the Fourth Amendment. We affirm the district court’s grant of summary judgment on this claim.

Permalink 01:04:24 pm, by fourth, 142 words, 463 views   English (US)
Categories: General

arstechnica.com: "Court ruling that NSA spying violated 4th Amendment remains secret"

arstechnica.com: Court ruling that NSA spying violated 4th Amendment remains secret / EFF sues US to uncover details of court decision on phone and e-mail spying by Jon Brodkin:

Last month, a letter to Congress noted that “on at least one occasion” a secretive US court ruled that National Security Agency surveillance carried out under a 2008 act of Congress violated the Fourth Amendment’s restriction against unreasonable searches and seizures. But the actual ruling remains secret. Decisions handed down by the US’s Foreign Intelligence Surveillance Court (FISC) are classified “because of the sensitive intelligence matters they concern,” the letter from the Office of the National Intelligence Director to Sen. Ron Wyden (D-OR) states.

The explanation wasn’t good enough for the Electronic Frontier Foundation, which filed a Freedom of Information Act (FOIA) request for details on the FISC ruling or rulings. ...

08/30/12

Permalink 12:19:08 pm, by fourth, 132 words, 357 views   English (US)
Categories: General

Wired.com: "We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena"

Wired.com: We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena by David Kravets:

When Golden Valley Electric Association of rural Alaska got an administrative subpoena from the Drug Enforcement Administration in December 2010 seeking electricity bill information on three customers, the company did what it usually does with subpoenas — it ignored them.

That’s the association’s customer privacy policy, because administrative subpoenas aren’t approved by a judge.

But by law, utilities must hand over customer records — which include any billing and payment information, phone numbers and power consumption data — to the DEA without court warrants if drug agents believe the data is “relevant” to an investigation. So the utility eventually complied, after losing a legal fight earlier this month.

Meet the administrative subpoena (.pdf): ...

08/29/12

Permalink 10:54:09 am, by fourth, 316 words, 448 views   English (US)
Categories: General

WA: SW errors were merely ministerial and there was no prejudice

The procedural rules of search warrants are ministerial and not a ground to suppress without prejudice to the target. Here, even the court where the warrant supposedly issued didn’t exist any more, but that didn’t matter. No substantive violation occurred. State v. Temple, 170 Wn. App. 156, 285 P.3d 149 (2012):

¶7 Temple next argues that the police violated the warrant procedures established by court rules. He identifies the following errors: (1) the search warrant affidavit, the search warrant, the search warrant return, and the search warrant inventory were not filed with the issuing court; (2) the search warrant return was not accompanied by the inventory of property seized; (3) the police did not provide Temple with a copy of the warrant or a receipt for the property seized; and (4) the search warrant inventory was not made in the presence of any other person and falsely states that it was. He concedes insufficiency of any one of these errors alone to invalidate the warrant, absent a showing of prejudice.

¶8 However, Temple contends that the cumulative effect of these procedural deficiencies raises constitutional considerations and requires suppression. However, he does not demonstrate how the alleged errors prejudiced him. Indeed, at oral argument, counsel conceded that nothing in Temple's trial preparation would have changed if these procedures had been followed to the letter. As we noted in State v. Parker, “The rules for the execution and return of a valid search warrant are ministerial in nature. Absent a showing of prejudice to the defendant, procedural noncompliance does not compel invalidation of the warrant or suppression of its fruits.” The courts' ministerial rules for warrant execution and return do not “flow so directly from the Fourth Amendment's proscription upon unreasonable searches that failure to abide by them compels exclusion of evidence obtained in execution of a search warrant.” Temple's constitutional argument fails.

Remember my rules:

1. There are no [longer any] technicalities under the Fourth Amendment.

Permalink 10:13:00 am, by fourth, 176 words, 420 views   English (US)
Categories: General

CA5: Handing back DL and papers and asking for and getting consent not unreasonable; "causal chain" broken

Defendant was told he was free to leave and his papers were handed back to him. Ten seconds later he was asked for consent, and that consent broke any causal chain of what could have been an illegal detention. United States v. Ansourian, 487 Fed. Appx. 155 (5th Cir. 2012):

The second factor of intervening circumstances indicates the consent was an independent act of free will. Prior to asking for consent, Officer Averette communicated to Ansourian that "You're free to go." At this point, Officer Averette also returned Ansourian's license and registration. We have previously identified both of these facts as intervening circumstances. See Jenson, 462 F.3d at 407 (holding that the second factor cut against the government because "there is no evidence that (a) [the defendant] knew he was free to leave or (b) that his license had been returned to him, both of which might be viewed as intervening circumstances"). The knowledge that one is free to leave, accompanied by the return of the license and registration, cuts the causal chain between the unconstitutional detention and the consent. ...

Permalink 10:05:53 am, by fourth, 145 words, 474 views   English (US)
Categories: General

CA8: Search warrant for apartment includes its on premises storage unit

A search warrant for an apartment permitted also the search of the storage unit associated with the apartment. The key to the unit was found on defendant. See United States v. Ware, 890 F.2d 1008, 1011 (8th Cir. 1989). United States v. Thompson, 690 F.3d 977 (8th Cir. 2012).

There is no reasonable expectation of privacy in jail calls. United States v. Shavers, 693 F.3d 363 (3d Cir. 2012).

Defense counsel was ineffective for not challenging defendant’s search of his person that produced keys or his statement. Keys were not probable cause to believe that there were drugs in the house, and there was no independent evidence there were drugs in the house. There were none on his person. People v. Hill, 2012 IL App (1st) 102028, 364 Ill. Dec. 677, 977 N.E.2d 166 (2012),* mod. on denial of rehearing August 24, 2012, Opinion withdrawn by People v. Hill, 2012 Ill. App. LEXIS 708 (Ill. App. Ct. 1st Dist., Aug. 23, 2012).

Permalink 09:54:49 am, by fourth, 191 words, 392 views   English (US)
Categories: General

Volokh Conspiracy: "Can Magistrate Judges Deny Statutory Surveillance Orders Based on Prospective Fourth Amendment Concerns?"

Volokh Conspiracy: Can Magistrate Judges Deny Statutory Surveillance Orders Based on Prospective Fourth Amendment Concerns? by Orin Kerr:

On October 2, the Fifth Circuit will hold oral argument in case No. 11–20884, In Re Applications of the United States for Historical Cell-Site Data. In this case, the United States applied for a court order under the Stored Communications Act to compel cell phone providers to disclose location information about particular phones suspected in criminal investigations. The magistrate judge denied the applications on the ground that he expected that the orders would be executed in ways that will violate the Fourth Amendment. The government has appealed the denial of the orders, arguing that the orders will be executed in ways that comply with the Fourth Amendment. Although the government is the only party to the litigation, several amici have chimed in on the merits to defend the denial of the applications on the ground that the magistrate judge was right to fear that the orders would be implemented in ways that would violate the Fourth Amendment. You can read the various briefs here, and the government’s reply to the amicus briefs is here.

Permalink 09:45:31 am, by fourth, 710 words, 493 views   English (US)
Categories: General

CA7: Niece who was longstanding house and babysitter had common authority to consent

Posner on consent and common authority of a niece who was defendant's longstanding house and baby sitter who had the run of the place. They could examined the extremes and policy considerations and found she fell on the side of being in loco parentis to the child, and, thus, the house. United States v. Garcia, 690 F.3d 860 (7th Cir. 2012):

The question of the authority of someone not the occupant of a home to consent to a search of it arises frequently but has never received a crisp general answer and probably never will. The courts typically ask whether the nonoccupant who consented had “common authority [that is, authority in common with the occupant] over or other sufficient relationship to the premises” to allow the nonoccupant to consent to a search. United States v. Matlock, 415 U.S. 164, 171 (1974); United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008); United States v. Groves, 470 F.3d 311, 318-19 (7th Cir. 2006); United States v. Cos, 498 F.3d 1115, 1124 (10th Cir. 2007). This is a pretty empty formula. It restates the question rather than answering it. A little more helpful, though still vague, is another formulation in Mattock: “mutual use of the property by persons generally having joint access or control for most purposes.” 415 U.S. at 171 n. 7; see, e.g., United States v. Cos, supra, 498 F.3d at 1125. Sharing a home is the clearest example of such joint access and control. See 4 Wayne R. LaFave, Search and Seizure § 8.3(a), pp. 148-49 (4th ed. 2004). But what of the common case in which someone besides the occupant or occupants of a house or an apartment or other premises—someone who does not live there (if it’s a residence rather than an office)—has a key to it: a neighbor, a relative, a cleaning service, a babysitter, a dog walker, the person who feeds the cat when the homeowner is away, the building superintendent, hotel staff (if one is staying at a hotel—and some people live in hotels), or other institutional staff (many people live in retirement or nursing homes).

If anyone with a key can permit police to search a person’s home, office, hotel room, or other place of occupancy, personal privacy would be considerably diminished. Courts understandably refuse to grant the police such carte blanche. It is different, however, if an employee, relative, or neighbor is left in charge of the premises. See United States v. Ayoub, 498 F.3d 532, 539 (6th Cir. 2007); LaFave, supra, § 8.5(e), p. 235; id., § 8.6(c), pp. 248-49. Difficult as it is to draw the line, we can at least mark the extremes—at one extreme a couple married or unmarried (so much cohabitation today is nonmarital) sharing a home. Each spouse or partner has the full run of the house. Each can let anyone in and authorize the visitor to look around—even to look in a closet. At the other extreme are the neighbor who has a key, the babysitter, the hotel staff: their authority over the place of residence is specific and limited; they are not authorized to compromise the resident’s privacy beyond what they have to do to perform their authorized tasks. If such persons could authorize a police search, personal privacy would be gravely compromised because the average person would be afraid to refuse a police officer’s request to let them into a house to which the person had a key, to search.

We think the facts of the present case as found by the district judge place it slightly nearer the cohabitation pole. ...

The defendant’s lawyer describes the niece as a mere babysitter. She was more than that. Although neither she nor her mother lived in the defendant’s apartment, when they were there they were in loco parentis. Had the child’s mother lived there, her authority to allow the search could not have been questioned. The defendant’s aunt and niece together were not quite a surrogate mother, but neither were they just neighbors with a key. That the defendant kept a large quantity of cocaine in a closet of this small apartment suggests that he reposed an unusual degree of trust in his aunt and niece and thus had delegated to them a large measure of authority over the apartment when he was not there.

Permalink 12:46:03 am, by fourth, 112 words, 498 views   English (US)
Categories: General

LA4: No standing to contest search of house defendant fled into from an attempted arrest

When defendant was stopped, he fled on foot into a “gutted and abandoned house” with the arresting officer and backup in pursuit. He had no reasonable expectation of privacy in the house of another he fled into. State v. Dowdell, 99 So. 3d 1015 (La. App. 4 Cir. 2012).

Defendant's stop for a broken taillight led to smell of marijuana coming from the passenger compartment and defendant’s valid arrest. State v. Long, 2012 Tenn. Crim. App. LEXIS 642 (August 22, 2012).*

Defendant’s car was stopped with probable cause of a traffic offense or reasonable suspicion, and search of the car was found to be by consent. United States v. Brown, 2012 U.S. Dist. LEXIS 120847 (D. S.C. August 27, 2012).*

Permalink 12:37:09 am, by fourth, 254 words, 407 views   English (US)
Categories: General

MD: Tasering suspect in back effected an arrest but without PC

Tasering defendant in the back on reasonable suspicion converted the stop into an arrest requiring probable cause, which there wasn’t. The search of defendant’s person was suppressed. Reid v. State, 428 Md. 289, 51 A.3d 597 (2012):

Application of the principles from Terry and in the de facto arrest cases leads us, with respect to the circumstances in the present case, to determine that a person shot in the back with two metal darts, as was Reid, would reasonably believe that he or she was not free to leave the encounter, especially when, as the trial judge found, a medical technician would have to have removed the prongs. These circumstances are very similar to those in Bailey, Grier, and Dixon, in that Reid was subjected to the custody and control of the officer detaining him by the use of physical force. While we recognize that the suspects in Bailey, Grier, and Dixon were not believed to be armed and that Reid was, such belief does not convert a de facto arrest to a Terry stop found in In re David S. and Lee, because the levels of intrusion and control involved in Reid's detention are unquestionably greater than those used to detain either Lee or David S. The use of a Taser in dart mode penetrates the body for an indefinite time period, differentiating it from a "hard take down," the use of handcuffs, and tackling.9 A reasonable person would not feel free, nor even be able, to go under these circumstances: Reid was, thus, arrested.

08/28/12

Permalink 11:53:52 pm, by fourth, 111 words, 551 views   English (US)
Categories: General

IA: Open container arrest supports search incident

Arrest for open container violation found during a traffic stop supported a search incident of the car. (IAC case) Knop v. State, 821 N.W.2d 779 (Iowa App. 2012).

In this IAC case, the stated reason for the stop was pretextual, but there was reasonable suspicion or probable cause based on a report from a fellow officer. Jones v. State, 821 N.W.2d 778 (Iowa App. 2012).*

A search of suitcases by consent was not voluntary where the officers illegally entered the hotel room and then asked for consent to search. “[M]ere acquiescence to the authority asserted by a police officer cannot substitute for free consent.” State v. Hamby, 317 Ga. App. 480, 731 S.E.2d 374 (2012).*

Permalink 10:49:40 am, by fourth, 209 words, 448 views   English (US)
Categories: General

New law review article: "Florence, Atwater & The Erosion of Fourth Amendment Protections for Arrestees"

New law review article: Florence, Atwater & The Erosion of Fourth Amendment Protections for Arrestees by Julian Simcock, Stanford Law Review (Forthcoming) on SSRN. Abstract:

If there is an animating imperative behind the Supreme Court’s 1979 decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip searching arrestees, courts must seek a careful balance. The Fourth Amendment, the Court held, “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Decades later, the Supreme Court appears to have deviated from Bell’s moorings. In Florence v. Chosen Board of Freeholders, the Court examined the constitutionality of blanket search policies, which require that all arrestees be strip searched regardless of individualized suspicion or the nature of the offense. In a 5-4 ruling, the Court upheld such searches as constitutional. For the first time, the Court ruled that prisons seeking to implement strip search policies were free to dispense with any level of reasonable suspicion or tailored justification. I argue in the following analysis that Florence constitutes an unnecessary erosion of Fourth Amendment protections for arrestees. In addition, the most unsettling issues posed by Florence — those which hint at the potential for future abuse — remain unresolved.

08/27/12

Permalink 12:09:48 am, by fourth, 443 words, 552 views   English (US)
Categories: General

CA5: Applying three factors on whether consent was an independent act of free will

Defendant was stopped, and the officer called for backup indicating that he wanted to search the car. When he talked to the defendant, the officer asked for and obtained consent within ten seconds of handing back the DL. This was found to be an independent act of free will. United States v. Ansourian, 2012 U.S. App. LEXIS 17879 (5th Cir. August 23, 2012)*:

We consider three factors to determine whether the consent was an independent act of free will: "(1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct." Jenson, 462 F.3d at 407 (citations omitted).

The first factor weighs in favor of Ansourian. Officer Averette asked for Ansourian's consent just ten seconds after telling Ansourian that he was free to leave and returning his paperwork. Thus, the district court properly concluded that "the first factor supports a finding that defendant's consent was not an independent act of free will."

The second factor of intervening circumstances indicates the consent was an independent act of free will. Prior to asking for consent, Officer Averette communicated to Ansourian that "You're free to go." At this point, Officer Averette also returned Ansourian's license and registration. We have previously identified both of these facts as intervening circumstances. ... The knowledge that one is free to leave, accompanied by the return of the license and registration, cuts the causal chain between the unconstitutional detention and the consent. ...

Finally, although there is some support for both sides, the third factor of flagrancy and purpose of police misconduct leans in favor of the government. On the one hand, Officer Averette said that he wanted to search a vehicle when he radioed for backup, and we have held that if the clear purpose of the detention was to obtain consent to search the vehicles, then that factor weighs against the government. ... However, following an evidentiary hearing, the district court found that the unlawful detention spanned only seven minutes, and the officers did not purposefully use that period of illegal detention to procure the defendant's consent to search the vehicles. In addition, the video clearly shows that the consent was not obtained by any misrepresentations made to the defendants as Officer Averette told Ansourian that he was looking for "anything illegal." Moreover, once the search began, Ansourian never tried to stop it, revoke his consent, or complain about the length of the search. To the contrary, Ansourian offered to remove the trailer fenders to allow the officers to access the car.

We conclude that the district court's determination that Ansourian's consent was voluntary and an independent act of free will was not error. ...

Permalink 12:03:16 am, by fourth, 404 words, 552 views   English (US)
Categories: General

TN: Warrantless arrest in doorway didn't violate Payton; citizen-informant with a prior was still creditable

Just because the citizen-informant had a prior conviction did not make him part of the “criminal milieu” subject to a higher standard of evaluation. He could still be a citizen informant. Defendant’s arrest without a warrant in his doorway was not a violation of Payton. He resisted and turned back after realizing he was being arrested, but that did not make the arrest violate Payton. Stout v. State, 2012 Tenn. Crim. App. LEXIS 657 (August 23, 2012):

We note that, although no evidence was presented about the Petitioner's exact location in relation to the doorway, the Petitioner has the burden to present facts establishing a violation of Payton. See Keven Scott v. State of Tennessee, No. W2010-02515-CCA-R3-PC, at *10 (Tenn. Crim. App., at Jackson, Nov. 22, 2011), Tenn. R. App. P. 11 application denied (Tenn. Apr. 12, 2012) (holding that the petitioner bears the burden of proving the alleged prejudice, so it is incumbent on the petitioner to establish an adequate record at his post-conviction hearing upon which this Court could determine the likelihood of success of a motion to suppress). We believe "it unwise to become preoccupied with the exact location of the individual in relation to the doorway. ... [T]he crucial issues involve the individual's reasonable expectation of privacy and whether the individual came to the doorway voluntarily." Ducan v. Storie, 869 F.2d 110, 1102 (8th Cir. 1989) (citations omitted). The Petitioner has failed to present facts establishing that he did not come to the door voluntarily and that he had an expectation of privacy where he was arrested. Rather, the police officers arrested the Petitioner in a public place, and no warrant was required. See e.g., McKinnon v. Carr, 103 F.3d 934 (10th Cir. 1996) (concluding a warrantless arrest was valid when officers knocked on the door and identified themselves; the defendant opened the door; and the officers told him that he was under arrest).

The police officers in this case did not enter the residence until after the Petitioner was seized. The Petitioner slightly resisted the arrest, and the police officers entered the residence to apprehend him. However, "a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place." Santana, 427 U.S. at 43. Therefore, the police officers' actions in entering the residence to apprehend the Petitioner after he resisted an arrest in a public place did not violate Payton.

08/26/12

Permalink 11:05:05 am, by fourth, 418 words, 595 views   English (US)
Categories: General

TN explains what is a de minimus extension of a stop

Defendant was lawfully ordered out of the car, and it matters not that it was early into the stop or when the papers were returned because the stop is not over until the officer says he can go. Some continuation of stops are minimal intrusions. State v. Donaldson, 380 S.W.3d 86 (Tenn. 2012):

After being stopped for a traffic violation, however, a driver should expect "to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way." Berkemer v. McCarty, 468 U.S. 420, 437 (1984); cf. Muehler, 544 U.S. at 101 (finding that because questioning of the defendant did not prolong the stop, no independent Fourth Amendment justification was needed for the questioning based upon the legitimacy of the initial stop). "[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Prouse, 440 U.S. at 654. Mimms and its progeny permit the intrusion if the officer merely removes a defendant from his vehicle absent undue delay. The question, however, of where a de minimis intrusion ends and an undue delay begins is necessarily a fact-specific inquiry. See United States v. Everett, 601 F.3d 484, 493-94 (6th Cir. 2010) (recognizing that "a fact-bound, context-dependent inquiry" must be conducted in each case to determine whether the duration of the stop was unreasonable). It is impossible to select "an arbitrary quantity of time and proclaim that any prolongation less than that amount is categorically 'de minimis' — as convenient as such a rule might be." Everett, 601 F.3d at 493. A number of cases, including our Berrios opinion, however, illuminate the distinction. There, the officer not only stopped the defendant for speeding and frisked him for weapons but also placed the defendant in the back seat of a locked patrol car before checking his driver's license and vehicle registration. Because the evidence established that the officer had done so to test the anxiety level of the defendant as an investigative technique, we held that the extended detention, under those particular circumstances, did not qualify as "de minimis." Berrios, 235 S.W.3d at 107. The case before us is distinguishable on the facts. Officer Baker described the stop of the Defendant as "normal." Nothing in the record indicates that it lasted more than five minutes. Unlike the circumstances in Berrios, the intrusion was minimal.

Permalink 10:55:57 am, by fourth, 212 words, 358 views   English (US)
Categories: General

OH last week

The marijuana residue on defendant’s shirt when he was ordered out of the car during a stop was in plain view. The court requires exigent circumstances, too, to search the car, and it found it from the stop being at 2:30 am. State v. Willette, 2012 Ohio 3836, 2012 Ohio App. LEXIS 3386 (4th Dist. August 22, 2012).*

When the car was stopped, the defendant’s movements in the car justified a frisk of him and the car for weapons. This was not a Gant search incident. City of Euclid v. Hull, 2012 Ohio 3801, 2012 Ohio App. LEXIS 3359 (8th Dist. August 23, 2012).*

Officers investigating a home invasion went to the basement to find a cage for a small dog that would be left behind when they left the house. They found marijuana. The entry to the basement was reasonable and not a pretext for further search. State v. Rivera, 2012 Ohio 3755, 2012 Ohio App. LEXIS 3313 (12th Dist. August 20, 2012).*

A motion to suppress a search warrant tolls speedy trial. State v. Hoang, 2012 Ohio 3741, 2012 Ohio App. LEXIS 3308 (9th Dist. August 20, 2012).*

Crossing the centerline is reason for a traffic stop. State v. McCandlish, 2012 Ohio 3765, 2012 Ohio App. LEXIS 3337 (10th Dist. August 21, 2012).*

Defendant was stopped for matching the clothing description after an aggravated burglary, and it was reasonable. State v. Garrison, 2012 Ohio 3846, 2012 Ohio App. LEXIS 3397 (2d Dist. August 24, 2012).*

Permalink 10:25:27 am, by fourth, 176 words, 377 views   English (US)
Categories: General

S.D.W.Va.: No IAC in waiving appeal of search issue that couldn't be won

While defendant might have been misled concerning the fact he was waiving his suppression issue in a guilty plea, he wouldn’t have won the appeal anyway, so there was no prejudice. Martin v. United States, 2012 U.S. Dist. LEXIS 119416 (S.D. W.Va. August 23, 2012).*

The officers lacked reasonable suspicion that defendant was involved in any crime when they stopped him. It was just a generalized suspicion. The gun found on him was suppressed. United States v. Dapolito, 2012 U.S. Dist. LEXIS 119810 (D. Me. August 21, 2012).*

There was no reasonable expectation of privacy in jail calls, and a wiretap warrant was not required. United States v. Anderson, 2012 U.S. Dist. LEXIS 120074 (W.D. N.Y. May 29, 2012),* adopted 2012 U.S. Dist. LEXIS 119853 (W.D. N.Y. August 23, 2012).*

Reasonable suspicion defendant was armed came from his stopping at a drug house, being nervous, sweating like he was on drugs, being on federal supervised release from a gun charge (which he later admitted), and being a known gang member. United States v. Amaya, 2012 U.S. Dist. LEXIS 120160 (D. Utah August 23, 2012).*

Permalink 10:10:23 am, by fourth, 211 words, 348 views   English (US)
Categories: General

D.Ore.: State proceedings over same search established PC for federal warrant

Probable cause for a federal child pornography warrant was established during state proceedings. The search protocol was sufficient. Failure to apprise the U.S. Magistrate Judge that a state child pornography case had venue problems was not a Franks issue for federal court. Federal court had jurisdiction over child pornography too. United States v. Storm, 2012 U.S. Dist. LEXIS 119480 (D. Ore. August 23, 2012)*:

Probable cause for the federal search warrants was established by the state investigation conducted before the state search warrant was issued, by the execution of the state search warrant, and by examination of the seized digital storage media. The search protocol in the federal warrants is almost identical to that approved in Adjani. Compare 452 F.3d 1140, 1144 (9th Cir. 2006) ("In searching the data, the computer personnel will examine all of the data contained in the computer equipment and storage devices to view their precise contents and determine whether the data falls within the items to be seized as set forth herein." (quoting the search warrant)) with Def.'s Ex. 9 at 7 (containing identical language). Finally, the federal search warrants expressly state both the criminal conduct suspected and the relevant statutes, and the federal search warrants were sufficiently particular. Accordingly, the federal search was lawful, and Defendant's motion to suppress is denied.

Permalink 09:17:57 am, by fourth, 198 words, 332 views   English (US)
Categories: General

Salt Lake Trib: Snoop-wary Texans rebel against new ‘smart meters’

Salt Lake Trib: Snoop-wary Texans rebel against new ‘smart meters’ by Sarah Kuta of AP:

Thelma Taormina keeps a pistol at her Houston-area home to protect against intruders. But one of the last times she used it, she said, was to run off a persistent utility company worker who was trying to replace her old electricity meter with a new digital unit.

"This is Texas." she declared at a recent public hearing on the new meters. "We have rights to choose what appliances we want in our home."

A nationwide effort to upgrade local power systems with modern equipment has run into growing resistance in Texas, where suspicion of government and fear of electronic snooping have made a humble household device the center of a politically charged showdown over personal liberty.

Some angry residents are building steel cages around their electric meters, threatening installers who show up with new ones and brandishing Texas flags at boisterous hearings about the utility conversion. At a recent hearing at the state Capitol in Austin, protesters insisted everyone present recite the Pledge of Allegiance before the meeting could begin.

h/t: PogoWasRight.org

Monitoring usage won't even require a home visit anymore.

08/25/12

Permalink 01:19:04 pm, by fourth, 456 words, 553 views   English (US)
Categories: General

N-M: Four hour search incident in sex assault investigation unreasonable

Four hour search incident for a sexual assault investigation was unreasonable. Consent was also rejected. Trial judge ruled against government, and this was an interlocutory appeal. United States v. Murray, 2012 CCA LEXIS 308 (N.-M. Ct. Crim. App. August 21, 2012):

Although the military judge placed undue weight on the safety concerns of the SILA [search incident to lawful apprension] exception over the evidentiary concerns, he nevertheless also discussed the risk that evidence might disappear, and that those circumstances could justify a search, citing to Schmerber v. California, 384 U.S. 757 (1966). He concluded that those considerations do not apply to this situation in which the appellee was subjected to a four-hour SANE [sexual assault nurse examination] exam conducted by a nurse hours after apprehension under a dubious consent pretext, and that such a search was well-outside the scope of Mil. R. Evid. 314(g)'s exception to the warrant requirement. The trial judge perhaps should have discussed more thoroughly the "destructible evidence" justification for the SILA exception to the warrant requirement, and articulated more careful consideration of whether the evidence seized during the SANE exam was "destructible evidence" within the meaning of Mil. R. Evid. 314(g). Nonetheless, we do not find his conclusion of law that the SANE exam was outside the scope of the SILA exception to be incorrect. Ayala, 43 M.J. at 298.

Nothing in the record indicates that, at the time the SANE examination was conducted, law enforcement personnel believed that the physical examination of the appellee was actually being conducted as a search incident to his apprehension. Special Agent (SA) Harris, the NCIS agent waiting at the hospital for the completion of the exam, believed that it was a consent search, with the consent to be obtained by the SANE nurse conducting the exam. AE I, Attachment 4 at 14-15. Likewise, the SANE nurse testified at the motions hearing that it was a consent exam, and that she was "required to have either the suspect's consent or ... [the] equivalent to a warrant from NCIS to gather the evidence." Record at 23. If the appellee had not consented, LCDR McMullen would have "stepped out of the room, and ... gone to NCIS and said, "I cannot proceed without that search order." Id. at 30, 64-65.

Obviously, the nurse's understanding of the basis for the search is in no way dispositive of its admissibility. For that matter, the NCIS agent's understanding of the basis of the search is not necessarily dispositive. The fact that the SANE exam was conducted with the nurse and the agent believing they had the appellee's consent does not necessarily preclude its admissibility as a search incident to the appellee's apprehension. Nevertheless, what the military judge was faced with, and what we are now faced with, is a two-fold problem.

08/24/12

Permalink 08:31:28 am, by fourth, 169 words, 356 views   English (US)
Categories: General

M.D.Fla.: Being ordered out of one’s car to sign a traffic ticket is not unreasonable

Being ordered out of one’s car to sign a traffic ticket is not unreasonable. United States v. Monroe, 2012 U.S. Dist. LEXIS 119542 (M.D. Fla. May 15, 2012):

[T]he Supreme Court has held that "once a motor vehicle has been lawfully stopped for a traffic violation, a police officer may order the driver to get out of the vehicle without violating the Fourth Amendment." United States v. Francis, 140 F.App'x. 184, 186 (11th Cir. 2005) (citing Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S.Ct. 330, 333 (1977)). Accordingly, the fact that Defendant was required to exit the vehicle in order to sign the citation did not violate Defendant's Constitutional rights.

Returning papers and saying “You’re free to go” and handing back papers is an intervening act showing voluntariness. United States v. Ansourian, 2012 U.S. App. LEXIS 17879 (5th Cir. August 23, 2012).*

The warrant was issued with probable cause. Even if not, it was supported by good faith [in one sentence with utterly no discussion]. United States v. Townsend, 2012 U.S. Dist. LEXIS 119581 (E.D. Mo. July 6, 2012).*

Permalink 08:26:32 am, by fourth, 178 words, 325 views   English (US)
Categories: General

SC: After-the-fact justification of effectiveness of roadblock good enough

After-the-fact DL roadblock empirical data was good enough to support the roadblock under Brown and Sitz. Each stop lasted under a minute. Here, defendant had methamphetamine in plain view when stopped. State v. Vickery, 399 S.C. 507, 732 S.E.2d 218 (App. 2012):

The purpose of the empirical data on the effectiveness is to be able to balance the effectiveness of the checkpoint with the other two prongs set forth in Brown, (1) the gravity of the public interest served by the seizure and (3) the severity of the interference with individual liberty. Here, the point of the checkpoint was to prevent traffic offenses and people driving without a license. This serves the public interest in that traffic violations and people driving without a license can cause injury to others. The severity with individual liberty was low in that the stops were marked so drivers could anticipate it and each stop lasted under a minute, if there was no violation. Weighing those two factors with the data provided as to the second factor, effectiveness, the license checkpoint did not violate the Fourth Amendment.

Permalink 08:11:47 am, by fourth, 263 words, 428 views   English (US)
Categories: General

D.Utah: Mexican driver's license no reason to impound a car

Defendant was the driver and sole occupant of the car searched. Without knowing more, the defendant had standing, and the government didn’t challenge standing. Without a government challenge, possession is enough. United States v. Angulo-Fernandez, 53 F.3d 1177 (10th Cir. 1995). Impounding defendant’s car and inventorying it because of a Mexican driver’s license was unreasonable. United States v. Garcia-Medina, 2012 U.S. Dist. LEXIS 80620 (D. Utah June 8, 2012):

But Trooper Sheets had no legitimate basis for concluding that the Mexican license was invalid and so he had no basis for impounding the car. He was not an expert on Mexican driver's licenses. He had approximately two days of training on the validity of driver's licenses in general, and that training focused on licenses issued by states in the United States of America with a smattering amount of information on Canadian and Mexican licenses. He also admitted that he had no way of knowing whether states within Mexico vary in their rules about glowing holograms on licenses. Apart from the black light test (and the record is not clear whether the test was conducted before or after the search), Trooper Sheets did not articulate a specific reason why he believed the license was counterfeit. After he determined that the license plate, insurance, and registration were valid, he had no legitimate basis to detain Mr. Garcia-Medina or impound the car, much less to search the car. The Government does not cite to any law in Utah that prohibits a person from driving a car in the State of Utah with only a valid Mexican driver's license.

Permalink 07:51:37 am, by fourth, 126 words, 490 views   English (US)
Categories: General

E.D.Pa.: No REP in nonlegal prison mail

There is no reasonable expectation of privacy from search and reading of nonlegal prison mail. United States v. Ligambi, 886 F. Supp. 2d 492 (E.D. Pa. 2012):

=> Read more!

Permalink 07:46:14 am, by fourth, 237 words, 375 views   English (US)
Categories: General

E.D.Cal.: Govt bears burden of proving scope of search within warrant

As officers approached defendant’s property with a search warrant, he saw them and fled out of the back of the house into the yard and through a jacket over the fence. The jacket was properly seized and could have qualified as abandoned property. Defendant did not have an expectation of privacy where he threw it. The government bears the burden of showing that the scope of search under a search warrant is reasonable. United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005). The government satisfies its burden here. There was also probable cause for the warrant. United States v. Washington, 2012 U.S. Dist. LEXIS 119203 (E.D. Cal. August 22, 2012).*

CI called the officer from a cell phone thereby giving the number, so the CI was not truly anonymous. The CI’s information related to defendant’s drug possession in his home, and the defendant was on parole, and the information was reasonable suspicion for a parole search. “Although the general rule in Samson is easily discernible, its application is somewhat more difficult.” Broad searches only possible if state law permits it. This was permitted under Knights. United States v. Dillard, 2012 U.S. Dist. LEXIS 119124 (D. Kan. August 23, 2012).*

The 2255 hearing established that defendant knew pleading guilty was a waiver of appeal of the suppression issue, and he can’t show that he was harmed by it. Martin v. United States, 2012 U.S. Dist. LEXIS 119416 (S.D. W.Va. August 23, 2012).*

08/23/12

Permalink 09:43:41 am, by fourth, 276 words, 977 views   English (US)
Categories: General

MD: Surreptitious DNA collection from abandoned straw not unreasonable under Fourth Amendment

Defendant’s DNA was taken from a straw left at the probation office, and this was not unreasonable under the Fourth Amendment. He was connected to a manslaughter. Corbin v. State, 428 Md. 488, 52 A.3d 946 (2012):

We again examine the evolving law regarding the scope of Fourth Amendment protections in the context of the collection and analysis of DNA by police. Unlike in earlier Maryland cases, the Maryland DNA Collection Act does not apply here because Petitioner Tonto Corbin was not arrested for any of the Act's predicate offenses. Rather, Corbin was on probation for a drunken driving offense when his DNA was collected. The DNA was taken from saliva that Corbin left on a straw in the course of complying with an alcohol monitoring program mandated by the terms of his probation. Corbin challenges the use of that saliva in connection with a separate murder investigation that resulted in incriminating evidence against him.

We granted certiorari to address the following questions, as Corbin phrased them:

1. Does a DWI probationer, who had previously declined police requests to seize and test his DNA, voluntarily surrender his breath for DNA testing where State officers seize his DNA on the false pretense of seizing and testing only his blood alcohol?

2. In an entirely circumstantial case, was the evidence of Petitioner's criminal agency legally insufficient because the State failed to establish that it was any stronger than evidence implicating two or three other suspects?

We shall hold that Corbin's Fourth Amendment rights were not violated when the State recovered his DNA from the straw utilized for this mandatory test. We shall also hold that the evidence was sufficient to sustain Corbin's conviction.

Permalink 09:36:13 am, by fourth, 95 words, 380 views   English (US)
Categories: General

D.Haw.: Officers approaching car with guns pointing down was not unreasonable

Officers approaching defendant’s vehicle with guns out but pointing down was not an arrest or unreasonable. United States v. Silva, 2012 U.S. Dist. LEXIS 118880 (D. Haw. August 21, 2012).*

Defendant’s IAC claim in his child pornography case does not identify any issue his lawyers were deficient in, and the warrants were presumptively valid and subject to the good faith exception. With this high burden, he fails. Hinkley v. United States, 2012 U.S. Dist. LEXIS 118676 (D. Me. July 26, 2012).*

Defendant’s crossing the centerline was reason for a stop. State v. Osterhoudt, 2012 N.C. App. LEXIS 1022 (August 21, 2012).*

Permalink 07:12:14 am, by fourth, 142 words, 455 views   English (US)
Categories: General

D.R.I.: Binding circuit precedent not required for Davis to save pre-Jones GPS

Binding circuit precedent not really required for pre-Jones GPS monitoring to be valid under the good faith exception. A substantial consensus of lower courts is enough for good faith to apply. United States v. Oladosu, 887 F. Supp. 2d 437 (D. R.I. 2012).

The affiant officer’s “statement of the frequent existence of electronic records kept on drug dealers' cell phones” coupled with other probable cause to arrest was probable cause to search defendant’s telephone. United States v. Sias, 2012 U.S. Dist. LEXIS 116841 (D. Neb. August 20, 2012).*

Probable cause was shown for the search of defendant’s computer, even though the warrant was issued nine days after seizure. Defendant was in custody in the interim, too, and he didn’t argue detention of the computer was unreasonable under United States v. Place. United States v. Farmer, 2012 U.S. Dist. LEXIS 117843 (N.D. Ind. August 20, 2012).*

08/22/12

Permalink 07:49:20 am, by fourth, 218 words, 4291 views   English (US)
Categories: General

WMUF Radio: "Henry Board approves K9 program, part time help for office"

A reader sends this story about a drug dog as a revenue raiser. The local PD wants to use a drug dog in every traffic stop. WMUF Radio: Henry Board approves K9 program, part time help for office:

Henry, Tenn.- At the Henry Mayor and Board of Alderman meeting on Tuesday, board members decided to allow police chief David Andrews to institute a K9 program for the Henry Police Department.

Andrews told board members that the city is missing out on possible revenues that a K9 would bring. He said when you make traffic stops and the driver refuses to allow a search, their hands are tied. If a drug dog alerts on a vehicle, its gives officers probable cause to search a vehicle for drugs or illegal proceeds from drugs. More drug arrests and drug, cash, and vehicle seizures lead to more revenues coming in for the police department and city.

So, the City states that they will detain every motorist for a drug dog check without any suspicion other than refusing to consent to a search, which the Police Chief equates with wrongdoing. In those states recognizing de minimus detentions within a detention, the people are being subjected to additional seizures without any cause other than asserting a constitutional right to refuse a warrantless search.

Permalink 06:04:27 am, by fourth, 123 words, 362 views   English (US)
Categories: General

Fulton Co. Daily Report: "DA asks for GBI probe of Murray ex-judge"

Fulton Co. Daily Report: DA asks for GBI probe of Murray ex-judge by R. Robin McDonald:

A district attorney has asked the Georgia Bureau of Investigation to open a criminal probe of Murray County's chief magistrate judge, who resigned Aug. 15 to end a state ethics investigation.

District Attorney Bert Poston of the Conasauga Circuit said Friday that he has asked the GBI to investigate former Chief Magistrate Bryant Cochran's distribution of pre-signed, blank warrants to local law enforcement officers. In a statement Cochran released after Governor Nathan Deal accepted his resignation, the former judge said he accepted "full responsibility" for the pre-signed warrants. Poston would not comment on how many pre-signed warrants were issued or how they could affect cases his office handled.

Permalink 12:04:42 am, by fourth, 220 words, 1867 views   English (US)
Categories: General

New law review article: "Introduction: Symposium – William Rehnquist's Fourth Amendment"

Thomas K. Clancy, Introduction: Symposium–-William Rehnquist's Fourth Amendment on SSRN. Abstract:

William Rehnquist served as Chief Justice of the Supreme Court from September 26, 1986 to September 3, 2005. During that period, he wrote an astonishing number of majority opinions on the Fourth Amendment, totaling in all 25. The list includes many of the most important cases of that time. In addition, the Rehnquist Court issued numerous per curiam decisions and it is fair to say that Rehnquist had something to do with them, given that he dissented in none of those cases. Indeed, Justice “Per Curiam” wrote more majority opinions when Rehnquist was Chief Justice than has any of the current Justices of the Court (excepting only Justice Scalia). During his tenure as Chief Justice, Rehnquist also wrote four dissenting opinions but no concurring opinions. Rehnquist served as an Associate Justice of the Supreme Court from January 7, 1972 to the date of his elevation as Chief Justice. During that earlier period, he wrote 23 majority opinions, five concurring opinions, and eleven dissenting opinions. In total, he wrote 68 opinions in his 33 years on the bench. In only a handful of those opinions did he side with the individual. Regardless of whether one agrees with his views, Chief Justice Rehnquist’s impact on Fourth Amendment analysis – and his legacy – is substantial and the symposium addresses that legacy.

08/21/12

Permalink 11:12:26 am, by fourth, 94 words, 476 views   English (US)
Categories: General

WestLaw Insider: "Is Fourth Amendment jurisprudence out of date?"

WestLaw Insider: Is Fourth Amendment jurisprudence out of date? by Jeremy Byellin:

Law enforcement obtain an order authorizing the phone company to release subscriber information, cell site information, GPS real-time location, and “ping” data on one of its subscribers’ cellular phones.

Using this information, law enforcement electronically trailed a suspected drug dealer by “pinging” the suspect’s cellular phone repeatedly over a three-day period.

Law enforcement caught up with him at a truck stop (using information to identify his vehicle from intercepted phone calls collected from another phone authorized by a separate court order).

Permalink 08:42:23 am, by fourth, 181 words, 384 views   English (US)
Categories: General

OH4: Controlled buys were probable cause, even though the state didn't file charges on them

The CI repeatedly reported defendant for selling drugs from his house. Four controlled buys were conducted, and, while they might have been deficient to make a separate criminal case for each, they were still sufficient to show probable cause. (Also, Ohio amended its version of Rule 41, and the version at the time of the search applies. [n.2]) State v. Eldridge, 2012 Ohio 3747, 2012 Ohio App. LEXIS 3309 (4th Dist. August 10, 2012)* [Note: The state logically could have declined to pursue the delivery charges to avoid having to out their snitch which they would have to do under Roviaro.]

Where defendant was arrested for no valid DL and his car would be left on the highway, his car was subject to impoundment. The officer was not required to formally arrest defendant before conducting the inventory if it is otherwise valid. United States v. Johnson, 492 Fed. Appx. 437 (4th Cir. 2012).

The automobile exception applies with probable cause and the vehicle being “readily moveable.” The vehicle here was parked on his property but was still readily movable even with him in custody. State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).*

Permalink 08:20:09 am, by fourth, 181 words, 367 views   English (US)
Categories: General

D.Mass.: Use of handcuffs during a stop and frisk does not necessarily convert the stop into an arrest

Use of handcuffs during a stop and frisk does not necessarily convert the stop into an arrest. United States v. Teah, 2012 U.S. Dist. LEXIS 116652 (D. Mass. August 20, 2012)*:

To show that the use of handcuffs in a Terry stop does not exceed Terry's limits and convert the stop into a de facto arrest, officers "must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm." United States v. Acosta-Colon, 157 F.3d 9, 18-19 (1st Cir. 1998) (emphasis omitted). That showing has been made here.

Defense counsel withdrew the claim that a failure of knock-and-announce voided the arrest because the officers didn’t tell the defendant what he was being arrested for, but defendant persisted. Even if that was violation of knock-and-announce, which isn’t conceded, it isn’t suppressible under Hudson. United States v. Bartlett, 2012 U.S. Dist. LEXIS 116990 (D. Me. July 31, 2012).*

Permalink 07:59:04 am, by fourth, 262 words, 375 views   English (US)
Categories: General

M.D.Fla.: Arresting defendant in his doorway without a warrant at gunpoint and pulling him out violated Payton

While there was probable cause for defendant’s arrest, arresting him in his doorway at gunpoint and pulling him out violated Payton. Consent after that was void. United States v. Hernandez-Penaloza, 899 F. Supp. 2d 1269 (M.D. Fla. 2012):

While I find probable cause for the arrest, I conclude that the warrantless arrest of Defendant and the detention of Moreno nonetheless violated the Fourth Amendment. Here, Woods' testimony reveals that the deputies intentionally sought to side-step Payton and the warrant requirement by confronting Defendant outside his home so that he could be arrested consistent with Payton and Watson. While the arrest of Defendant was made on the front doorstep of his residence and not inside, the rationale of Payton nonetheless dictates the same legal conclusion where, as here, the Defendant, while inside his house, was confronted by deputies, some wearing masks, all bearing guns and told to come outside with his hands up or where they could be seen. This was no mere consensual encounter with a suspect in a public place. On the contrary, this was an armed confrontation of the occupants of a residence who were ordered to exit their house at gunpoint. While I can find no case in this Circuit addressing similar circumstances, I find persuasive the decisions in the four circuits cited above. In these circumstances, the forceable removal of Defendant from his home to effectuate an arrest outside the house violates the Fourth Amendment. While not formally arrested, Moreno too was forcibly removed from her residence without legal justification and detained in violation of her Fourth Amendment rights.

Permalink 07:36:54 am, by fourth, 215 words, 348 views   English (US)
Categories: General

D.Neb.: “I don’t care” and “It’s okay” amounted to consent

Defendants consented to removing the truck from the scene of the stop for a more intensive search by saying “I don’t care” and “It’s okay.” United States v. Sias, 2012 U.S. Dist. LEXIS 116841 (D. Neb. August 20, 2012).*

Officers responded to a shooting call at defendant’s address. They saw the front door off its hinges with a bullet hole in it and blood leading inside. They were told defendant was taken to the hospital. They obtained consent from defendant’s wife to enter [the government did not rely on exigent circumstances]. When the police were following a blood trail through the house they saw some marijuana, cardboard boxes smelling of marijuana, and guns. They retreated and sought a search warrant to search more. The consent was valid. Defendant’s wife claimed it was not voluntary, but admitted that she did not limit consent and that there was blood on the floor in several rooms. United States v. Williams, 2012 U.S. Dist. LEXIS 116293 (E.D. Pa. August 17, 2012).*

The officer had reasonable suspicion to frisk defendant for a weapon when defendant was stopped in a high crime area, he was known to be violent and was even out on bail on an attempted murder charge. United States v. Teah, 2012 U.S. Dist. LEXIS 116945 (D. Mass. August 20, 2012).*

08/20/12

Permalink 07:45:10 am, by fourth, 226 words, 448 views   English (US)
Categories: General

OH6: Violation of state strip search statute did not justify exclusion where no exclusionary remedy in statute

Defendant was twice stopped for blocking the street. On the second one, a month or so later, the officer conducted a patdown and felt a baggy of crack in his groin. The manipulation of his genitals arguably violated a state statute on strip searches, even though there was no strip search per se because the baggy was retrieved without pulling down his pants. A violation of the strip search statute has no exclusionary remedy, and the court declines to impose one. State v. Purley, 2012 Ohio 3734, 2012 Ohio App. LEXIS 3304 (6th Dist. August 17, 2012):

[*P27] The strip search statute includes a manual inspection of the proscribed areas, so there is an arguable violation. This is not, however, dispositive of the issue before us. The exclusionary rule articulated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), mandates the exclusion of evidence obtained in violation of constitutional rights. In Ohio, the rule has not been applied to violations of statutory rights that fall short of constitutional violations unless there is a legislative mandate requiring application of the exclusionary rule. Kettering v. Hollen, 64 Ohio St.2d 232, 234, 416 N.E.2d 598 (1980). No such mandate exists with respect to a violation of R.C. 2933.32. As a result the exclusionary rule will not be applied. State v. Wesley, 5th Dist. No. 1999CA00226, 2000 WL 329938 (Mar. 27, 2000). Accordingly, appellant's first assignment of error is not well-taken.

Permalink 12:18:15 am, by fourth, 95 words, 560 views   English (US)
Categories: General

S.D.Ohio: Articulable facts needed for protective sweep

The officers had articulable facts that others might be present when they were executing an arrest warrant for defendant justifying a protective sweep. United States v. Crail, 2012 U.S. Dist. LEXIS 115540 (S.D. Ohio August 16, 2012).*

In a federal civil rights criminal prosecution of a police officer, it was well established that a strip search of a female arrestee on the side of the road would violate the Fourth Amendment despite the lack of a specific case in point. Something would be required, and here there was nothing. United States v. Morris, 494 Fed. Appx. 574 (6th Cir. 2012).*

Permalink 12:09:30 am, by fourth, 147 words, 415 views   English (US)
Categories: General

D.Utah: Request for shoes after arrest outside motel room was implied consent to enter; plain view sustained

Defendant’s request for shoes after he was arrested and removed from his hotel room was implied consent for the officer to return to the room to get them. Plain view on that entry sustained. United States v. Chapman, 2012 U.S. Dist. LEXIS 116074 (D. Utah August 16, 2012).*

Defendant’s motion to suppress is granted. His consent was shortly after, and came as result of, a prior illegal entry by the police and cannot be distinguished from it in time or context. Indeed, the officers involved in the consent thought they were part of the same operation. United States v. Roberts, 888 F. Supp. 2d 1316 (N.D. Ga. 2012),* rejecting R&R 2012 U.S. Dist. LEXIS 115638 (N.D. Ga. June 28, 2012).*

Defendant hiding behind a pillar and his hands to avoid the police in a high crime area was reasonable suspicion. State v. Allen, 2012 Ohio 3709, 2012 Ohio App. LEXIS 3282 (2d Dist. August 17, 2012).*

Permalink 12:02:24 am, by fourth, 283 words, 344 views   English (US)
Categories: General

E.D.La.: "Clear possibility" co-conspirator inside not enough for exigent circumstances; actual knowledge required

Inference (here, "clear possibility") there was a co-conspirator inside capable of destruction of evidence is not exigent circumstances for a warrantless entry. It is established that actual knowledge is required. United States v. Glover, 2012 U.S. Dist. LEXIS 115461 (E.D. La. August 16, 2012)*:

Based on these observations alone, the Government contends that there was a "clear possibility" that a co-conspirator was inside the residence and capable of destroying the evidence absent immediate action from the agents. But in order to demonstrate exigent circumstances, the Government must point to more than a mere possibility of the presence of persons in a residence. Id. at 295-96 ("A finding of exigent circumstances ... must be based on an officer's reasonable belief that the delay necessary to obtain a warrant will facilitate the destruction or removal of evidence or put officers or bystanders in danger."). Rather, the Fifth Circuit finds exigent circumstances present when the Government demonstrates that agents had actual knowledge of other persons inside a residence. See Mata, 517 F.3d at 289 (before warrantless entry, agents "knew with absolute certainty" that contraband was in the building and witnessed several people running in different directions around the building); Riley, 968 F.2d at 425 (warrantless entry was reasonable when accomplice told agents that "there was a large sum of money, a handgun and another individual at the residence he had just left"); United States v. Maldonado, 472 F.3d 388, 392 (5th Cir. 2006) (agents observed "someone open the trailer door, peek out, and then quickly close the door" before they initiated the protective sweep). Or, in the absence of actual knowledge, the Government may demonstrate the exigency by showing that agents heard or saw movement suggesting the presence of other persons in the residence.

08/19/12

Permalink 02:12:03 pm, by fourth, 478 words, 502 views   English (US)
Categories: General

NYT: "Judge Bars Testimony by Expert in Frisk Suit"

NYT: Judge Bars Testimony by Expert in Frisk Suit by Russ Buettner:

Mayor Michael R. Bloomberg has repeatedly said that the small number of guns found by police officers during stop-and-frisk encounters shows that the program is working as a deterrent, and not that the police are exercising poor judgment in deciding whom to stop, as critics have argued.

But a federal judge said on Friday said that the city had “no evidence” to make the deterrence claim, and called the argument “too speculative” to be admitted in court by New York City’s expert witness in a class-action lawsuit challenging the constitutionality of the city’s use of stop-and-frisk tactics.

The city’s expert appeared to be trying “to justify stops on the basis of their deterrent impact, regardless of their legality,” Judge Shira A. Scheindlin of Federal District Court in Manhattan wrote.

It's a Daubert challenge. Floyd v. City of New York, 08 Civ. 1034 (SAS) (S.D.N.Y. August 17, 2012), at 14-15:

Plaintiffs argue that “Smith’s crime reduction opinions” should be excluded because they “are irrelevant to the questions posed by Plaintiffs’ Fourth and Fourteenth Amendment claims: (1) Do NYPD officers conduct stops-and-frisks without reasonable suspicion?; (2) Do they stop civilians on the basis of their race?” Defendants respond by arguing that Smith’s opinion on the crime deterrent effects of these programs “are indeed relevant, as they represent alternative, race-neutral explanations for the racial patterns in [stops and frisks] which Fagan failed to consider in his analysis of the data” and that “[e]xcluding Smith's opinions would be highly prejudicial by forcing the jury to accept Fagan’s word unchallenged ... when such strong evidence of methodological problems exists.”

Defendants are conflating two different aspects of Smith’s report: his benchmarking critique and his separate conclusion that the NYPD’s programs are a proven strategy to combat crime and increase safety, particularly in minority neighborhoods. As I explained above, Smith’s benchmarking critique challenges Fagan’s finding that Blacks and Hispanics are stopped at disproportionately higher rates; it is a descriptive claim about the nature of racial disparities that is probative of the truth or falsity of plaintiffs’ Fourteenth Amendment claim, and it is therefore admissible.

However, Smith’s opinions about the deterrence and crime reduction impacts of the NYPD’s programs are inadmissible. Defendants argue that “Smith’s opinion that increased [stop and frisk] activity reduces neighborhood crime provides further evidence for his alternative hypothesis that [stops and frisks] are driven by where the crime occurs rather than by racial discrimination.” ...

Floyd v. City of New York, 283 F.R.D. 153 (S.D. N.Y. May 16, 2012), granted in part, denied in part, 2012 U.S. Dist. LEXIS 116540 (S.D.N.Y. Aug. 17, 2012). See also Floyd v. City of New York, 861 F. Supp. 2d 274 (S.D. N.Y. 2012), Class certification granted 2012 U.S. Dist. LEXIS 68676 (S.D.N.Y., May 16, 2012).

Permalink 09:16:47 am, by fourth, 223 words, 569 views   English (US)
Categories: General

MA: Without furtive movement, no RS for car frisk

Defendants’ car was stopped for a traffic offense, and the driver wouldn’t look the officers in the eye and was nervous. His hands were on the steering wheel, and there were no furtive movements. A “protective sweep” of the car producing a gun hidden in the back seat was unreasonable because of a lack of furtive movements. The others were not abnormal. “[N]ervous or anxious behavior in combination with factors that add nothing to the equation will not support a reasonable suspicion that an officer's safety may be compromised.’ ... See Commonwealth v. Cardoso, 46 Mass. App. Ct. 901, 901, 702 N.E.2d 398 (1998) (officer may not conduct patfrisk just because nervous defendant does not maintain eye contact).” Commonwealth v. Johnson, 82 Mass. App. Ct. 336, 973 N.E.2d 146 (2012). [There was also an arrest warrant outstanding for a traffic offense, but that adds nothing, either.]

There was probable cause for plaintiff’s arrest, so a Fourth Amendment false arrest case fails. Ghaith v. Rauschenberger, 493 Fed. Appx. 731 (6th Cir. 2012).*

In a federal DP case, defense counsel’s alleged failures on a motion to suppress which included challenging the search warrant under the state nighttime search law [not a Fourth Amendment issue] were not ineffective assistance and those issues were tried in the original proceeding and already appealed. Barrett v. United States, 2012 U.S. Dist. LEXIS 115360 (E.D. Okla. August 16, 2012).*

Permalink 08:18:07 am, by fourth, 45 words, 383 views   English (US)
Categories: General

DailyReport.com (Law.com): "Embattled N. Georgia magistrate resigns" for pre-signing arrest and search warrants

DailyReport.com (Law.com): Embattled N. Georgia magistrate resigns by R. Robin McDonald:

Murray County Chief Magistrate Judge Bryant Cochran has resigned, ending a judicial ethics investigation that included the judge's practice of distributing pre-signed, blank arrest and search warrants to local law enforcement officers.

Permalink 12:23:01 am, by fourth, 122 words, 342 views   English (US)
Categories: General

FL1: Defense affidavits at suppression hearing on merits improper hearsay

The trial court improperly considered hearsay affidavits offered by the defense from witnesses not called at the suppression hearing that the officers were incorrect in how the search went down. State v. Crofoot, 97 So. 3d 866 (Fla. 1st DCA 2012).

Police came to a DV call and found a naked bloody, beaten and shaking woman covered with only a blanket. She said her assailant wasn’t there, but they didn’t believe her and came in. They found defendant in the closet and arrested him. The entry was valid under the emergency aid exception of Gallmeyer v. State, 640 P.2d 837, 841 (Alaska App. 1982), because there might have been other victims or it could happen again when they leave. Ahvakana v. State, 2012 Alas. App. LEXIS 125 (August 17, 2012).

Permalink 12:11:10 am, by fourth, 494 words, 498 views   English (US)
Categories: General

CA3: “[T]he Government must do more than establish the possibility that the evidence would have been discovered”; search of suitcase before dog alert invalid

Warrantless search of suitcase in a car where the car was searched by consent was invalid. The dog sniffed the bag after the heroin was found. The fact they might have done it lawfully another way doesn’t make this search legal. United States v. Carrion-Soto, 493 Fed. Appx. 340 (3d Cir. 2012):

=> Read more!

Permalink 12:01:11 am, by fourth, 166 words, 432 views   English (US)
Categories: General

NJ: DV weapons seizure warrant did not bar collateral prosecution for weapons found

Officers entered defendant’s premises under a domestic violence warrant authorized by statute to seize weapons which defendant didn’t challenge. His challenge instead was to the collateral use of the seized weapons, and the court found no bar to prosecution for any crime revealed by the seizure. State v. Harris, 211 N.J. 566, 50 A.3d 15 (2012).*

“In applying the totality of the circumstances test, courts look to numerous factors including the time, place and purpose of the encounter, United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002); the overall context of the traffic stop, United States v. Digiovanni, 650 F.3d 498, 514 (4th Cir. 2011); Defendant's nervous, evasive demeanor, Branch, 537 F.3d at 338; Defendant's delay in complying with the Officer's command to place his hands in plain view, United States v. Mayo, 361 F.3d 802, 807 (4th Cir. 2004) and contradictory and inconsistent statements obtained from the driver of the vehicle, Powell, 666 F.3d at 188.” All those factors were present here. United States v. George, 2012 U.S. Dist. LEXIS 114940 (E.D. N.C. August 13, 2012).*

08/18/12

Permalink 10:03:18 am, by fourth, 410 words, 533 views   English (US)
Categories: General

E.D.Cal.: Not owning or possessing vehicle GPS was placed on denies standing

Defendant’s not owning or possessing vehicle on which GPS was installed cost him standing. United States v. Tan, 2012 U.S. Dist. LEXIS 115258 (E.D. Cal. August 14, 2012):

Here, it is undisputed that defendant did not own or possess the van to which agents attached the GPS and defendant does not explain how he had any expectation of privacy in the van or its whereabouts. Although Jones is a recent decision, numerous courts have already rejected similar motions to suppress based on a defendant's lack of standing to challenge the installation of a GPS on a third party's vehicle. See United States v. Shephard, No. 11-6037, 2012 U.S. App. LEXIS 16163, 2012 WL 3117513, at *5 (6th Cir. Aug. 1, 2012) (defendant lacked standing to challenge placement of GPS on his co-conspirators' vehicles because he did not own, drive, or occupy the vehicles and thus "failed to show he had any legitimate expectation of privacy in his co-conspirators' vehicles"); United States v. Barraza-Maldonado, 879 F. Supp. 2d 1022, __, 2012 U.S. Dist. LEXIS 99992 at *2, 2012 WL 2952312, at *5 (D. Minn. July 19, 2012) (defendant lacked standing to challenge the installation of a GPS on a vehicle because the defendant had only "temporary, nonexclusive possession of the vehicle"); United States v. Johnson, __ F. Supp. 2d __, __, 2012 U.S. Dist. LEXIS 67294 at *4-5, 2012 WL 1680786, at *8-9 (W.D. La. May 14, 2012) (police officer defendant lacked standing to challenge placement of GPS on the patrol vehicle assigned to him because he did not own it, possess it at the time the GPS was placed, or have a reasonable expectation of privacy in it); United States v. Luna-Santillanes, No. 11-20492, 2012 U.S. Dist. LEXIS 40532, 2012 WL 1019601, at *7 (E.D. Mich. Mar. 26, 2012) (rejecting defendants' argument that they had standing to challenge the placement of a GPS on their co-defendant's vehicles because they did not present "evidence showing either an ownership or contractual interest in any of the[] vehicles or exclusivity of use such that would give rise to a legitimate expectation of privacy"); United States v. Hanna, No. 11-20678, 2012 U.S. Dist. LEXIS 11385, 2012 WL 279435, at *3-5 (S.D. Fla. Jan. 30, 2012) (defendants lacked standing to challenge placement of GPS on co-conspirator's vehicle because defendants did not own the vehicle, possess it at the time the GPS was placed, or have a reasonable expectation of privacy in it). Accordingly, defendant lacks standing to challenge the warrantless installation of the GPS on San's van and thus the Supreme Court's decision is Jones does not merit reconsideration of the court's denial of his motion to suppress.

Permalink 09:45:19 am, by fourth, 116 words, 371 views   English (US)
Categories: General

W.D.Tenn.: Not unreasonable to put defendant in back of patrol car unhandcuffed while DL was checked

Defendant’s stop was based on collective knowledge and was with reasonable suspicion of drug activity. It was not unreasonable to put defendant in the back of the police car unhandcufffed while a records check was run. United States v. Braden, 2012 U.S. Dist. LEXIS 115755 (W.D. Tenn. July 6, 2012).*

Officers had reasonable suspicion of drug trafficking to extend the stop. A dog alert was probable cause. United States v. Morrison, 2012 U.S. Dist. LEXIS 115574 (E.D. Tenn. August 16, 2012).*

Defendant’s stop and vehicle search were based on probable cause and the “vehicle exception.” United States v. Morrison, 2012 U.S. Dist. LEXIS 115574 (E.D. Tenn. July 27, 2012),* R&R 2012 U.S. Dist. LEXIS 115573 (E.D. Tenn. May 30, 2012).*

Permalink 09:10:37 am, by fourth, 295 words, 688 views   English (US)
Categories: General

N.D.Cal.: Hotel mgr couldn't consent to entry; officer in full uniform hardly a private citizen

Sensing that the officer’s entry into a hotel room without consent of the occupant but the consent of the hotel manager was really bad [since Stoner in 1964, nearly 50 years ago], the government argued that the officer, in full uniform, was acting as a private citizen. No. United States v. Roberts, 2012 U.S. Dist. LEXIS 115638 (N.D. Ga. June 28, 2012)*:

Officer Funderbrik was in full police uniform, carrying a weapon, and investigating a possible crime, all of which were authorized by state law. He did not tell Defendant that he was acting as a private citizen, and there was no reason for Defendant to believe that Officer Funderbrik was acting as anything other than a police officer. After his entry, Officer Funderbrik questioned Defendant about drugs and used his authority as a police officer to handcuff and detain the Defendant. The officer presumably used police equipment to handcuff the Defendant and to radio for assistance from other officers. Based on these facts and the applicable authorities, I find that Officer Funderbrik was acting under color of law, and not as a purely private person when he entered Defendant's hotel room.

It has long been established that hotel management does not have authority to allow law enforcement agents to enter a guest's hotel room without a search warrant. Stoner v. State of California, 376 U.S. 483, 489, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Because there was no search warrant, consent, or exception to the warrant requirement, Officer Funderbrik's entry into Defendant's hotel room was in violation of the Fourth Amendment. The government did not argue or prove that there was any intervening factor that attenuated the connection between Officer Funderbrik's entry and his obtaining of evidence and statements. Thus, any evidence or statements obtained by Officer Funderbrik should be suppressed.

Permalink 08:41:18 am, by fourth, 202 words, 542 views   English (US)
Categories: General

CA2: SPCA workers who seized and spayed and neutered plaintiffs' animals were acting under state law, but had qualified immunity

“Appeal from a grant of summary judgment for defendants on plaintiff-appellant Jody Fabrikant's federal constitutional claims, which arose from a search of her property, her arrest on animal abuse charges, and the seizure, spaying and neutering, and fostering of her dogs during the pendency of state criminal proceedings. We conclude that (1) defendants acted under color of state law when they sterilized Fabrikant's dogs and fostered them out to temporary homes following the animals' seizure; (2) defendants are nevertheless entitled to qualified immunity on Fabrikant's due process claims, as their actions did not violate any "clearly established" constitutional or statutory right; and (3) defendants involved in the search and arrest are entitled to summary judgment on Fabrikant's malicious prosecution, unreasonable search and seizure, and First Amendment retaliation claims because their actions were supported by probable cause. We therefore affirm the district court's judgment.” Fabrikant v. French, 691 F.3d 193 (2d Cir. 2012).*

After defendant was arrested for child pornography, his computer was left with his girlfriend who the officer questioned to determine her relationship to the computer. Satisfied that she had complete access and had personal files on the computer, too, he obtained her valid consent to search it. United States v. Stanley, 481 Fed. Appx. 335 (9th Cir. 2012).*

Permalink 08:31:12 am, by fourth, 1060 words, 548 views   English (US)
Categories: General

CA4: DNA testing of blood clothing from a murder suspect was a Fourth Amendment violation but was in good faith

This was a armored car robbery with the killing of the guard and a car jacking to escape. Defendant was wounded and ended up in the hospital. A police officer was with him and saw his clothing in a bag under his bed. The seizure of the bag was not unreasonable. Defendant was considered a shooting victim until the police knew more. The DNA testing of the clothing, however, was unreasonable because DNA testing is a significant invasion of privacy. Because the police were all operating in good faith reliance on a statute that says that DNA is retained, the good faith exception applies to the testing of the DNA. United States v. Davis, 690 F.3d 226 (4th Cir. 2012) (2-1) [this is a thoughtful and educational opinion]:

Nevertheless, we are persuaded by the Supreme Court's analysis in Skinner, as applied in Mitchell and other cases in the context of DNA, that the extraction of DNA and the creation of a DNA profile result in a sufficiently separate invasion of privacy that such acts must be considered a separate search under the Fourth Amendment even when there is no issue concerning the collection of the DNA sample. See Mitchell, 652 F.3d at 407 (citing United States v. Sczubelek, 402 F.3d 175, 182 (3d Cir. 2005) (citing Skinner, 489 U.S. at 616)).

Based on the foregoing, we conclude that the holding in Edwards does not give a law enforcement agency carte blanche to perform DNA extraction and analysis derived from clothing lawfully obtained from the victim of a crime in relation to the investigation of other crimes. Instead, a victim retains a privacy interest in his or her DNA material, even if it is lawfully in police custody. Therefore, we conclude that the extraction of Davis' DNA sample from his clothing and the creation of his DNA profile constituted a search for Fourth Amendment purposes.

We turn to consider whether a separate search occurred when the PGCPD retained Davis' DNA profile in the local CODIS database after the profile did not implicate him in the Neal murder. Our sister circuits do not appear to be uniformly settled on the question whether such entry of a DNA profile into this type of database is a search entitled to Fourth Amendment protection. Compare, e.g., Boroian v. Mueller, 616 F.3d 60, 67-68 (1st Cir. 2010) (concluding that the retention and later matching of a lawfully obtained DNA profile is not a search for Fourth Amendment purposes and collecting authority for the same) with United States v. Amerson, 483 F.3d 73, 85 (2d Cir. 2007) (in addition to the collection of the DNA sample from a probationer, determining that "[t]here is ... a second and potentially much more serious invasion of privacy occasioned by the DNA Act" because the "analysis and maintenance of [offenders'] information in CODIS ... is, in itself, a significant intrusion") (citation omitted) and Kincade, 379 F.3d at 841-42 (en banc) (Gould, J., concurring) (suggesting the retention of a lawfully obtained DNA profile once a person has "fully paid his or her debt to society" and "left the penal system" would implicate the person's privacy interest).

These differing conclusions illustrate the fact that at least some courts have concluded that once a DNA profile has been lawfully obtained and entered into CODIS, the retention of that profile and "periodic matching of the profile against other profiles in CODIS for the purpose of identification[,]" is not a search because it does not intrude upon an offender's legitimate expectation of privacy. Boroian, 616 F.3d at 67-68 (so holding and citing other authority for the same). Other courts, at least in principle, have left open the possibility that an unrelated examination after DNA retention could be a separate search for Fourth Amendment purposes. See, e.g., Amerson, 483 F.3d at 85 n.12.

. . .

We need not choose among these competing principles in this case because, as discussed in the next section, we conclude that the extraction and initial testing of Davis' profile was an unreasonable Fourth Amendment search. Accordingly, for purposes of this opinion, we will assume, without deciding, that Davis had a continuing right of privacy in his DNA profile, and that a search occurred in the retention of that profile. We now turn to consider the issue whether the two searches were reasonable.

. . .

In balancing these competing interests to determine the reasonableness of the searches at issue, we are guided by the weighty reasons underlying the warrant requirement: to allow a detached judicial officer to decide "[w]hen the right of privacy must reasonably yield to the right of search," and not "a policeman or Government enforcement agent." Johnson v. United States, 333 U.S. 10, 13-14 (1948) (quoted in Davis, 657 F. Supp. 2d at 653.) The right protected is "a right of personal security against arbitrary intrusions by official power." Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971). The importance of the judge or magistrate in the process is why the exceptions to the warrant requirement are "jealously and carefully drawn." Id.

. . .

In short, the obtaining and testing of Davis' DNA from his bloody clothing, and the subsequent inclusion of his DNA profile in the database were, at best, "isolated negligence attenuated from the arrest" [for the Schwindler murder]. See Herring, 555 U.S. at 137. We have no proof before us showing that victims' DNA profiles or individuals cleared of suspicion in an investigation are routinely entered into the local database by PGCPD, or have been entered into the database in any other instance. There is nothing in the record to suggest that the acts here are likely to reoccur. Moreover, the particularly unusual facts of this case—where a victim, with a dual status as an arrestee, later becomes a suspect in an unrelated crime, and there is DNA evidence available as a result of the crime in which the person was a victim—diminish further the likelihood of reoccurrence. The price to society of application of the exclusionary rule here, especially since the DNA evidence against Davis was compelling, would be to allow a person convicted of a deliberate murder to go free. The deterrent effect, if any, would be minimal, especially considering the lack of culpable conduct on the part of the police. Exclusion, therefore, would not "pay its way." See Davis, 131 S. Ct. at 2428.

For the foregoing reasons, the good faith exception to the exclusionary rule applies and we affirm the district court's denial of Davis' motion to suppress.

08/17/12

Permalink 11:56:45 am, by fourth, 676 words, 561 views   English (US)
Categories: General

CA9: Suppression not the remedy for a Wilson v. Layne violation

In a big drug and stolen property raid in Guam, the search scene turned into a real clusterf, and it was admittedly almost completely mismanaged with the press camped out in front of the house and victims of the thefts coming by to claim their property. Ultimately, the press was invited to the back of the property onto the curtilage to look at a marijuana patch. Assuming a Wilson v. Layne violation occurred by inviting the press back there, the court decides that suppression was not the remedy. United States v. Duenas, 691 F.3d 1070 (9th Cir. 2012):

Assuming that a Fourth Amendment violation occurred, we, like the district court, reject the Duenases' contention that suppression is the appropriate remedy. Because Wilson was a Bivens action, the Supreme Court was not required to address the application of the exclusionary rule. 526 U.S. at 608. The Court expressly declined to decide "whether the exclusionary rule would apply to any evidence discovered or developed by the media representatives." Id. at 614 n.2. We, similarly, have not previously decided whether the exclusionary rule applies to evidence obtained by police who have violated the Fourth Amendment by allowing the media to intrude into the location of the search.

A Fourth Amendment violation does not automatically trigger the exclusionary rule. Rather, the rule applies only where the benefit of deterrence outweighs the rule's "'substantial social costs.'" Davis v. United States, 131 S. Ct. 2419, 2427 (2011) (quoting United States v. Leon, 468 U.S. 897, 907 (1984)). Application of the exclusionary rule is a fact-intensive inquiry. See United States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 950 (9th Cir. 2010) (citation omitted). "To apply the exclusionary rule to [a] unique set of facts ... we must consider the rule's dual purposes: to deter similar police misconduct in the future and to preserve the integrity of the courts." Id. (citing Dunaway v. New York, 442 U.S. 200, 217-18 (1979)).

The Eleventh Circuit has weighed the benefits and costs of applying the exclusionary rule in an analogous context. See United States v. Hendrixson, 234 F.3d 494, 496-97 (11th Cir. 2000). In Hendrixson, police were accompanied by a television reporter while searching a defendant's residence for methamphetamine. Id. at 496. The reporter "arrived after the search was in progress and did not move, touch or handle anything in the residence." Id. Although the Eleventh Circuit found that the media's presence violated the Fourth Amendment, it declined to suppress the evidence found during the search. Id. The court emphasized that the purpose of the warrant clause of the Fourth Amendment is to prevent the police from conducting "general searches" that go beyond the scope of the warrant. Id. at 497 (citing Maryland v. Garrison, 480 U.S. 79, 84 (1987)). In Hendrixson, the police did not exceed the parameters of the warrant, because the "media presence did not expand the scope of the search," the search was "actually carried out by the police themselves," and there was "no allegation that the reporter aided the search; he did not touch, move, or handle anything in the residence." Id. at 497. The court suggested that the deterrence goals of the exclusionary rule in such circumstances could be better served through 42 U.S.C. § 1983 or Bivens actions. Id. at 497 n.4.

We agree with the Eleventh Circuit that where the media were present, but did not discover or develop any of the evidence later used at trial, the evidence need not be excluded. Here, the media did not expand the scope of the search beyond the warrant's dictates; nor did the media assist the police, or touch, move, handle or taint the admitted evidence in any way. Because the GPD complied with the terms of the warrant and the media did not disturb any evidence later admitted, the more appropriate remedy here, as the Eleventh Circuit concluded in Hendrixson, is a Bivens or a 42 U.S.C. § 1983 action.

Well, if Hudson doesn't permit exclusion for a knock-and-announce violation, why should this? Yes, the Fourth Amendment was violated, but how did it aid the police in the search beyond good PR? Bad form, clearly. Fourth Amendment violated, clearly. Yet no suppression required. Thank you SCOTUS.

Permalink 11:31:48 am, by fourth, 154 words, 404 views   English (US)
Categories: General

N.D.Ga.: Consent after illegal entry was fruit of the poisonous tree, but the govt might get another bite at the apple

Consent after an illegal entry was a consequence of the entry and would be suppressed. One of the critical officers involved and the defendant didn’t testify at the suppression hearing, and the court will give the parties an opportunity to say what else they would do and how it would change the outcome [“Given the serious consequences of the Court's findings and analysis, the Court will provide the parties an opportunity to request a further hearing before this Order shall be deemed final.”] United States v. Roberts, 2012 U.S. Dist. LEXIS 115642 (N.D. Ga. August 15, 2012).*

A protective sweep on serving an arrest warrant was justified by officers knowing that there was a car foreign to the premises there, someone other than defendant and his wife was getting mail there, and the defendant was known for violence because of his prior arrests. United States v. Crail, 2012 U.S. Dist. LEXIS 115540 (S.D. Ohio August 16, 2012).*

Permalink 08:12:36 am, by fourth, 87 words, 429 views   English (US)
Categories: General

NYTimes.com: "Pockets of City See Higher Use of Force During Police Stops"

NYTimes.com: Pockets of City See Higher Use of Force During Police Stops by Ray Rivera:

The crowded neighborhoods of the West Bronx come alive at night. Residents, young and old, cluster around door stoops. Teenagers fill playground basketball courts. Police officers from the nearby 44th and 46th Precincts patrol the streets, from time to time stopping and frisking young men, mostly black and Latino. And when they do, statistics show, they use physical force far more often than the police do anywhere else in the city.

Permalink 07:34:42 am, by fourth, 206 words, 355 views   English (US)
Categories: General

D.D.C.: The DEA merely watching an arrest in Colombia is not "directly effect[ing] an arrest" in violation of 22 U.S.C. § 2291(c)(1)

The DEA merely watching an arrest in Colombia is not "directly effect[ing] an arrest" in violation of 22 U.S.C. § 2291(c)(1). United States v. Larrahondo, 885 F. Supp. 2d 209 (D. D.C. 2012):

The Court is likewise not persuaded by the argument that the Mansfield Amendment supports suppression of this evidence. Anturi has presented no persuasive argument as to how an agent's participation in an arrest actually made by Colombian law enforcement falls under the statute's prohibition on U.S. officers' "directly effect[ing] an arrest," 22 U.S.C. § 2291(c)(1). Anturi's interpretation would read the word "directly" out of the statute. See United States v. Bourdet, 477 F. Supp. 2d 164, 174-76 (D.D.C. 2007) (Bates, J.) ("A United States agent providing assistance to a foreign official or merely being present as a foreign official makes an arrest is more accurately described, at most, as indirectly effecting the arrest ...."). Furthermore, even if the Court were to agree that the DEA's behavior here violated the Mansfield Amendment, it is far from clear that suppression of evidence would be the appropriate remedy. See id. ("[T]he Mansfield Amendment is far removed from the concerns of a defendant's Fourth and Fifth Amendment rights."). But in any event, no violation has been shown.

Permalink 07:22:55 am, by fourth, 198 words, 362 views   English (US)
Categories: General

E.D.La.: Protective sweep before warrant was sought was violation of the Fourth Amendment, but the SW was saved by independent PC of informant hearsay

A protective sweep of premises in anticipation of a search warrant being sought was unreasonable where there were no facts supporting even an inference that there was another person inside after officers surveilled the premises watching its comings and goings. Observations in the protective sweep were included in the search warrant. The government, however, satisfied its burden of showing probable cause in the remaining information in the affidavit on informant hearsay. United States v. Glover, 2012 U.S. Dist. LEXIS 115461 (E.D. La. August 16, 2012).*

Walking in the street in a high crime area where there are sidewalks is a traffic offense in Missouri, and a search incident was permitted. This is the same as United States v. Pratt, 355 F.3d 1119 (8th Cir. 2004). United States v. Moore, 2012 U.S. Dist. LEXIS 114645 (W.D. Mo. July 24, 2012).*

Officers were investigating a drug trafficking organization and they had at least reasonable suspicion to stop defendant when he was leaving a suspected warehouse of the drugs, but defendant committed a traffic offense. He was removed to the back of a police car, and a dog alerted within 1½ minutes. The stop was reasonable. United States v. Braden, 2012 U.S. Dist. LEXIS 115275 (W.D. Tenn. August 16, 2012).*

Permalink 12:02:00 am, by fourth, 354 words, 643 views   English (US)
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OH2: Lack of facts in affidavit for arrest warrant inadequate and no GFE; affidavit merely tracked statute

An affidavit for an arrest warrant that merely tracked the statutory language without alleging any facts was insufficient as a matter of law. An assistant DA helped prepare it, but there still were no facts. State v. Mendell, 2012 Ohio 3178, 2012 Ohio App. LEXIS 3250 (2d Dist. July 13, 2012):

[*P12] ... And the affidavit attached to the complaint states:

Detective W.N. Ring, being first duly sworn according to law, deposes and says that the probable cause that defendant committed the offense set forth in the Complaint is as follows: Defendant was identified as the perpetrator of the offense by Amanda A. Mendell who was an eyewitness to the offense.

[*P13] The complaint describes the offense in the statutory language and does not allege any specific facts about what Mendell did. Because the information in the complaint amounts to an unsupported conclusion that Mendell committed domestic violence, it is insufficient to support the issuance of the arrest warrant.

. . .

[*P18] Here, the complaint and affidavit are so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. As we explained above, the complaint and affidavit are totally devoid of facts to demonstrate how Mendell committed a domestic violence offense. A reasonably well-trained officer would have known that these documents could not establish probable cause. See State v. Jones, 72 Ohio App.3d 522, 528, 595 N.E.2d 485 (6th Dist.1991).

[*P19] We recognize that to a certain extent, Detective Ring enlisted the assistance of the prosecutor's office prior to seeking the arrest warrant. Ring testified that he met with an assistant prosecutor, he gave her information from his investigation, and the prosecutor's office approved a charge. Ring testified that once the charges are approved, normally he goes to the intake office at the prosecutor's office. An employee there prepares the complaint and warrant for the issuing official's approval. However, Ring testified that he also completes a "statement of facts," i.e., an affidavit, to give to the issuing official. Ring testified that he filled out the affidavit in this case. Ring did not testify that the prosecutor's office assisted or advised him on how to prepare this affidavit. ...

08/16/12

Permalink 02:51:05 pm, by fourth, 359 words, 362 views   English (US)
Categories: General

W.D.N.Y.: Where PC was a close call, good faith exception applied

Where the question of PC was a close call and could have gone either way, the affidavit was “not so lacking” in probable cause that it could not be still relied on in good faith under Leon. Therefore, the product of the search warrant would not be suppressed. United States v. Anderson, 2012 U.S. Dist. LEXIS 114528 (W.D. N.Y. April 19, 2012)*:

During oral argument, the Government acknowledged that had the same facts been presented to this Court it would be a reasonable judicial response to say "there's not enough here" to connect the 2978 Upton Road residence to the murders being investigated. That I might agree with the Government is not the litmus test in my analysis. For I also conclude that in the present case there is no evidence that the issuing judge abandoned his independent role as a neutral and detached finder of probable cause or that the judge issued the warrant in reliance on a deliberately or recklessly false affidavit. Nor do I find that the warrant was based on an affidavit so lacking in facts amounting to "probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. at 923. It would be easy for this Court to second guess whether these facts amounted to only "mere suspicion" that evidence of the Rochester murders would be present in Anderson's residence in Columbus or whether these facts rose to the level of probable cause. But the bottom line is that such an inquiry is not necessary. The court's "good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of 'all of the circumstances.'" Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (quoting United States v. Leon, 468 U.S. at 922 n.23) (internal quotation mark omitted). Based on the totality of the record before me, I conclude that neither the affiant or the officers executing the search would have any objective reason to question the issuing judge's determination that probable cause existed. Accordingly, I find that the "good faith" exception applies to this case.

Permalink 11:20:33 am, by fourth, 150 words, 431 views   English (US)
Categories: General

D.Conn.: Defendant’s prompt offer to be frisked was voluntary consent

Defendant’s prompt offer to be frisked was voluntary consent. United States v. Lopez, 2012 U.S. Dist. LEXIS 115074 (D. Conn. August 6, 2012):

Here, it could be logically argued that defendant lacked knowledge of his right to refuse the frisk because consent to a pat-down was extremely likely to result in his arrest. In other words, no rational gun-toting-felon would consent to a search if they understood their consent to be optional. However, this argument is called into question by the fact that defendant, absent any prompt or direction, offered himself up to be frisked immediately upon exiting his vehicle. That is to say, no rational gun-toting-felon would offer himself up for search without prompt – but defendant did so.

Civil forfeiture is governed by a specific statutory scheme and the state’s Rule 41 on criminal search warrants does not apply to return of the property. Harmon v. Jones, 2012 Tenn. App. LEXIS 560 (August 14, 2012).

Permalink 11:05:32 am, by fourth, 174 words, 299 views   English (US)
Categories: General

E.D.N.C.: Refusal to show hands justifies patdown

Having to tell the defendant repeatedly to keep his hands visible is reasonable suspicion for a patdown for weapons. United States v. George, 2012 U.S. Dist. LEXIS 114940 (E.D. N.C. August 15, 2012)*:

In applying the totality of the circumstances test, courts look to numerous factors including the time, place and purpose of the encounter, United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002); the overall context of the traffic stop, United States v. Digiovanni, 650 F.3d 498, 514 (4th Cir. 2011); Defendant's nervous, evasive demeanor, Branch, 537 F.3d at 338; Defendant's delay in complying with the Officer's command to place his hands in plain view, United States v. Mayo, 361 F.3d 802, 807 (4th Cir. 2004) and contradictory and inconsistent statements obtained from the driver of the vehicle, Powell, 666 F.3d at 188.

The defendant failed to show that the U.S. government was not so involved with this Colombian wiretap that it was a U.S. operation or would “shock the conscience,” and the motion to suppress it is denied. United States v. Larrahondo, 2012 U.S. Dist. LEXIS 114640 (D. D.C. August 15, 2012).*

Permalink 06:31:02 am, by fourth, 101 words, 295 views   English (US)
Categories: General

ACLU: "ACLU Sues FBI for New GPS Tracking Memos"

ACLU: ACLU Sues FBI for New GPS Tracking Memos by Adrienne Lucas:

Today the ACLU filed a lawsuit under the Freedom of Information Act to force the FBI to release two memos guiding the bureau’s policy on GPS tracking. The memos were written in the wake of the Supreme Court’s January decision in U.S. v. Jones, which held that the Fourth Amendment applies when the government secretly attaches a GPS device to a car and tracks its movements. (See today’s legal complaint, our original FOIA request (made July 18), and a blog post we wrote about that request).

Permalink 06:29:56 am, by fourth, 87 words, 283 views   English (US)
Categories: General

NewAmerican.com: "The Fourth Amendment and the Drones: How Will it Apply?"

NewAmerican.com: The Fourth Amendment and the Drones: How Will it Apply? by Joe Wolverton, II:

On a near daily basis, The New American chronicles the approach of the day when squadrons of drones will fill the skies of the United States. Scores of these unmanned aerial vehicles (UAV) will be deployed by state and local law enforcement, adding to the many already deployed by the federal government.

With the rise of the drones comes the rise of several critical questions of Constitutionality of their potential uses. ...

08/15/12

Permalink 02:40:50 pm, by fourth, 154 words, 418 views   English (US)
Categories: General

NextGov.com: "Finally, a new bill requires police get a judge's approval before they see your texts or location"

NextGov.com: Finally, a new bill requires police get a judge's approval before they see your texts or location By Robinson Meyer, The Atlantic:

A month ago, we learned that more (and maybe many, many more) than 1.3 million people's cell phone data were handed over to US law enforcement agencies in 2011 alone. Text messages, caller locations, and records of who called whom and for how long had all been shared without a judges' approval -- because, according to current law, no approval is needed.

Last week, the Congressman who helped reveal how rampant and unregulated that sharing is introduced legislation to start restraining it. Called the "Wireless Surveillance Act of 2012," the new bill, in the words of its Massachusetts's Edward Markey, attempts to "update the 4th amendment for the 21st century."

The discussion draft of the Surveillance Act, according to Markey, would immediately limit how and why enforcement agencies can ask for "tower dumps."

Permalink 07:58:17 am, by fourth, 812 words, 477 views   English (US)
Categories: General

MA: Two entries a day apart were still justified under emergency aid exception

Officers entered defendant’s home looking for his missing wife and daughter and only performed a cursory walk through. The next day they came back to look for anything that might tell them where they were, and then they smelled decomposing bodies. The entries were valid, and the second entry was still justified under the emergency aid exception. Defendant was arrested in the U.K. and extradited, having flown there after the murders. Commonwealth v. Entwistle, 463 Mass. 205, 973 N.E.2d 115 (2012):

An objective analyst who knew what Sergeant Sutton knew -- that he had taken only one or two steps into the master bedroom, that he did not have an unobstructed view of the entire bedroom from that vantage point, and that he had not entered the bathroom off the master bedroom -- would conclude that the search conducted after the first entry had not reasonably eliminated the risk that a missing person was in need of assistance inside the home. Because the risk that the Entwistle family had suffered serious harm had grown more acute with another day having passed with no sign of the family and no word as to their whereabouts, there continued to be an objectively reasonable basis to enter the home again to search for them in areas that had not yet been searched, including the bathroom adjoining the master bedroom and the unexamined portion of the master bedroom. Contrast Peters, supra at 825 ("once three officers had swept through every room and saw nothing suspicious, it was extraordinarily unlikely that a dead or injured victim was within the house" [emphasis added]). Therefore, even though this was not the subjective basis relied on by the officers in making this second entry, we conclude that the second entry was justified under the emergency aid exception based on this separate and objectively reasonable basis for the entry.

The entry on January 22. When the police next entered the house on Sunday, January 22, there was an even greater objective basis to fear for the health and safety of the Entwistle family. Nearly twenty-four hours had passed since the first entry, and there was still no word from the defendant or his wife. Inquiries to local area hospitals in the previous twenty-four hours had yielded no results. The police knew from the first entry that the Entwistle automobile was not in the garage, but no relevant law enforcement query had been made regarding the vehicle and no police department had located the vehicle in response to the Hopkinton police broadcast. The family and friends of the defendant's wife were so concerned that they wished to report the family as missing persons.

Previously, as to turning on a camera to see if the pictures would tell them anything:

In contrast, Officer O'Neil's observation of the dates of the last photographs taken on the digital camera was not in plain view because he had to "turn on" the camera in order to determine the dates of the photographs. See id. ("Under Hicks, [supra,] it is clear that the Fourth Amendment forbids handling an item to expose something hidden"). We recognize that something more than a search for victims or suspects may be appropriate under the emergency aid exception where entry was made to search for a missing person, the missing person was not found within the house, and there is an objectively reasonable basis to believe that information in the home might shed light on her whereabouts. But we need not reach that issue here because, even if the officer's search of the camera were unconstitutional, it proved harmless. All that was learned from the inspection of the camera was that photographs had last been taken on Thursday, January 19, and this evidence was cumulative of other testimony that the defendant's wife was alive on that day. Having carefully reviewed the record, we conclude "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Commonwealth v. Vasquez, 456 Mass. 350, 355 (2010), quoting Commonwealth v. Peixoto, 430 Mass. 654, 660 (2000).

As to the camera search, is it logical to look at the camera to see if the pictures shed any light on the missing persons? Why not? But, the court doesn't even decide it. Apparently nothing remotely incriminating was found. The pictures would potentially show when the missing were last seen.

Defendant told the police that he saw the bodies and left the U.S. to go back to England, where he was a citizen and originally met his wife when she was a student, without calling the police to report the murders. He bought a one way ticket. Could it be reasonably concluded that defendant abandoned his house and any reasonable expectation of privacy in it because, sooner or later, the decomp would become overwhelming and be smelled from outside by anybody in the area? This is never discussed by the court, but it is completely plausible.

Permalink 07:45:04 am, by fourth, 391 words, 2216 views   English (US)
Categories: General

S.D.N.Y.: Facebook "friend" became a CI, and defendant's postings became PC for SW for whole account; no REP in Facebook postings not being disclosed to police

Defendant has no reasonable expectation of privacy in his Facebook postings that others could see. An online "friend" reported him to the police, and that led to a search warrant with probable cause for all his Facebook content. United States v. Meregildon, 2012 U.S. Dist. LEXIS 115085 (S.D.N.Y. August 10, 2012):

Colon does not contest the magistrate judge's finding of probable cause [for a search warrant for his Facebook account]. Instead, he attacks the propriety of the Government's method of collecting evidence to support that probable cause determination. More specifically, Colon presents a Fourth Amendment challenge to the Government's use of a cooperating witness who was one of Colon's Facebook "friends" and gave the Government access to Colon's Facebook profile.

Facebook-and social media generally-present novel questions regarding their users' expectations of privacy. Facebook users may decide to keep their profiles completely private, share them only with "friends" or more expansively with "friends of friends," or disseminate them to the public at large. (See Facebook Help Center, http://www.facebook.comJhelp/privacy (last visited Aug. 10,2012).) ...

...

Where Facebook privacy settings allow viewership of postings by "friends," the Government may access them through a cooperating witness who is a "friend" without violating the Fourth Amendment. Cf. United States v. Barone, 913 F.2d 46,49 (2d Cir. 1990) (finding that a person does not have a legitimate privacy expectation in telephone calls recorded by the Government with the consent of at least one party on the call). While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his "friends" would keep his profile private. Cf. Barone, 913 F.2d at 49. And the wider his circle of "friends," the more likely Colon's posts would be viewed by someone he never expected to see them. Colon's legitimate expectation of privacy ended when he disseminated posts to his "friends" because those "friends" were free to use the information however they wanted-including sharing it with the Government. Cf. Guest, 255 F.3d at 333 (finding that an e-mail sender-like a letter writer-loses their expectation of privacy upon delivery). When Colon posted to his Facebook profile and then shared those posts with his "friends," he did so at his peril. Because Colon surrendered his expectation of privacy, the Government did not violate the Fourth Amendment when it accessed Colon's Facebook profile through a cooperating witness.

Permalink 07:40:12 am, by fourth, 140 words, 589 views   English (US)
Categories: General

N.D.Okla.: Defendant's furtive movements justified officer drawing gun

Defendant was washing his car and approached by an officer in a high crime area because he matched the description of somebody involved in a robbery. On seeing the officer, defendant moved furtively to attempt to apparently hide, and that gave the officer concern for his safety that defendant might be arming himself. The stop was reasonable. United States v. Anderson, 2012 U.S. Dist. LEXIS 113827 (N.D. Okla. August 10, 2012).*

The government had two arguments to support the search of one defendant’s person. The court decides both, finding them both sufficient. The first was probable cause to arrest and the second was probable cause drugs would be on the person. There was also probable cause for search of the car of the other defendant based on what had transpired. United States v. Moustrouphis, 2012 U.S. Dist. LEXIS 113490 (D. Maine May 30, 2012).*

Permalink 07:35:09 am, by fourth, 128 words, 323 views   English (US)
Categories: General

CA3: Dist.Ct. had discretion to recognize defendant's admitted legal research tailored his suppression hearing testimony

The district court was within its discretion in determining that defendant’s admitted legal research made his testimony tailored to the law. United States v. Frisby, 474 Fed. Appx. 865 (3d Cir. 2012):

We also reject Frisby's argument that the District Court discredited his testimony simply because he conducted independent legal research. Rather, a review of the hearing transcript reveals that the District Court recognized that, given Frisby's prior research and the specific use of the word "seized" during his testimony, Frisby may have tailored his testimony to favor his legal position.

TSA screeners are not law enforcement officers for purposes of the Federal Tort Claims Act. Weinraub v. United States, 2012 U.S. Dist. LEXIS 113480 (E.D. N.C. August 13, 2012), recognizing Pellegrino v. United States, 2012 WL 661773 (E.D. Pa. 2012) is contra.*

Permalink 07:16:36 am, by fourth, 203 words, 333 views   English (US)
Categories: General

CA11: If the search was harmless to the case, the merits of the search won't be decided

The court discusses nexus between the items should and the defendants’ home for a search warrant, but never decides the merits. Instead, even if the search were invalid, it was harmless beyond a reasonable doubt and, alternatively, the officers acted in good faith. The prelude to all this was “We may affirm the denial of a motion to suppress on any ground supported by the record. United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).” Also noted in dicta: If the product of the search doesn’t affect the Guidelines or sentence, no harm. United States v. Schulz, 486 Fed. Appx. 838 (11th Cir. 2012).* [So much for the continued development of the body of law of the Fourth Amendment.]

The first search warrant for defendant’s property looked for clothing to attempt to link defendant to a robbery. Instead, probable evidence of another crime was seen, so the officers applied for a second search warrant for that, and it was valid based on the first observation. Good faith would apply anyway. United States v. Morris, 2012 U.S. Dist. LEXIS 113631 (S.D. W.Va. August 13, 2012).* [Note: Indeed, the officers did exactly what was expected of them. I wouldn’t have bothered to file a motion to suppress.]

08/14/12

Permalink 04:07:42 pm, by fourth, 552 words, 381 views   English (US)
Categories: General

CA6: No REP in cell phone location data coming from phone

Real time capturing data to trace a "pay-as-you-go cell phone" was not a Fourth Amendment violation because there no reasonable expectation of privacy in that data coming from the phone to the provider. This is no different that just tailing the defendant. United States v. Skinner, 690 F.3d 772, 2012 FED App. 0864P (6th Cir. 2012):

When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. This is not a case in which the government secretly placed a tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross country shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.

The government used data emanating from Melvin Skinner’s pay-as-you-go cell phone to determine its real-time location. This information was used to establish Skinner’s location as he transported drugs along public thoroughfares between Arizona and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and his son at a rest stop near Abilene, Texas, with a motorhome filled with over 1,100 pounds of marijuana. The district court denied Skinner’s motion to suppress all evidence obtained as a result of the search of his vehicle, and Skinner was later convicted of two counts related to drug trafficking and one count of conspiracy to commit money laundering. The convictions must be upheld as there was no Fourth Amendment violation, and Skinner’s other arguments on appeal lack merit. In short, Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location.

. . .

No such extreme comprehensive tracking is present in this case. Justice Alito’s concurrence and the majority in Jones both recognized that there is little precedent for what constitutes a level of comprehensive tracking that would violate the Fourth Amendment. Id. at 954, 964. Skinner’s case, however, comes nowhere near that line. While Jones involved intensive monitoring over a 28-day period, here the DEA agents only tracked Skinner’s cell phone for three days. Such “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” Id. at 964 (Alito, J., concurring) (citing Knotts, 460 U.S. at 281–82). Here, the monitoring of the location of the contraband-carrying vehicle as it crossed the country is no more of a comprehensively invasive search than if instead the car was identified in Arizona and then tracked visually and the search handed off from one local authority to another as the vehicles progressed. That the officers were able to use less expensive and more efficient means to track the vehicles is only to their credit.

WSJ: Sixth Circuit: No Expectation of Privacy in Cell Phone GPS Data; Skinning the Fourth Amendment: The Sixth Circuit’s Awful GPS Tracking Decision by Julian Sanchez, Volokh Conspiracy: Sixth Circuit Rules That Pinging a Cell Phone to Determine Its Location is Not a Fourth Amendment “Search” by Orin Kerr.

Permalink 07:31:19 am, by fourth, 303 words, 470 views   English (US)
Categories: General

CA7: Inevitable discovery overcame claim of bad consent and no warrant

Police were looking for defendant’s gun because of his alleged “reckless use” of it, and they clearly had probable cause to get a search warrant, and would have except defendant consented. Inevitable discovery was sufficient and the question of consent didn’t have to be decided by the trial court. United States v. Bennett, 491 Fed. Appx. 760 (7th Cir. 2012):

On appeal Bennett argues generally that the gun was obtained through an illegal search and that the evidence is thus permanently tainted and the inevitable-discovery doctrine does not apply. But the district court correctly concluded that the gun was admissible based on inevitable discovery. Even an illegally seized item need not be suppressed if officers would have inevitably discovered it through lawful means. United States v. Stotler, 591 F.3d 935, 940 (7th Cir. 2010). Here the government showed that, even without the challenged search, officers would have obtained a search warrant and recovered the gun. United States v. Marrocco, 578 F.3d 627, 637-38 (7th Cir. 2009); United States v. Tejada, 524 F.3d 809, 813 (7th Cir. 2008). Ealing had probable cause to believe that Bennett committed felony criminal recklessness when he fired a gun in the air in a residential neighborhood, IND. CODE § 35-42-2-2(c)(2)(A), and he saw Bennett enter the house with the gun but return to the porch without it. As the district court noted, it is reasonable to conclude that the police would have continued their efforts to locate the missing gun by obtaining a search warrant, which would have been issued given the "fair probability" that evidence of a crime would be found in the house. See United States v. Miller, 673 F.3d 688, 692 (7th Cir. 2012). Ealing thus could have, and testified that he would have, obtained a search warrant to recover the gun had he not thought that Bennett's mother validly consented to the search.

Permalink 07:25:09 am, by fourth, 134 words, 372 views   English (US)
Categories: General

CA10: No IAC for advising defendant not to testify at suppression hearing

Defense counsel was not ineffective for advising defendant to not testify at the suppression hearing because of the possibility of false testimony leading to an obstruction enhancement on the Sentencing Guidelines. United States v. Taylor, 492 Fed. Appx. 941 (10th Cir. 2012).*

Inventory of a closed compartment in the door was reasonable when it was discovered during the inventory and no tools were needed to open it. United States v. Cervantes-Perez, 2012 U.S. Dist. LEXIS 113028 (D. Minn. July 21, 2012).

Taking all of the facts offered by the government, there was no probable cause to believe that defendant’s vehicle was involved in a crime. Omitted facts would have been helpful, and the affidavit was not devoid of probable cause that the good faith exception should not apply. United States v. Stately, 2012 U.S. Dist. LEXIS 112782 (D. Minn. July 2, 2012).*

Permalink 07:01:09 am, by fourth, 173 words, 318 views   English (US)
Categories: General

CA5: Alleged illegal gov't-induced private search of doctor's records was not referred to in SW affidavit, so warrant not suppressed

A doctor was convicted of health care fraud. His patient records were first removed by a nurse who was “acting as a whistleblower of sorts,” but later he was found to be acting as a government agent. Removal of records from a mobile lab likely was not a Fourth Amendment violation because the doctor had no reasonable expectation of privacy in the mobile lab shared with others because he made no effort to keep others from the lab. He kept records there three days a week. Nevertheless, that information did not make it into the search warrant application, and there was probable cause from before so there was an independent source from the alleged illegal entry. United States v. Patel, 485 Fed. Appx. 702 (5th Cir. 2012).*

Defendant’s IAC claim against defense counsel on the probable cause question is insufficient as a matter of law because it was preserved for appeal. In any event, defendant never said he’d go to trial instead. United States v. Cox, 2012 U.S. Dist. LEXIS 113190 (D. N.J. July 30, 2012).*

08/13/12

Permalink 03:18:53 pm, by fourth, 75 words, 309 views   English (US)
Categories: General

Cato: "TSA Profiling, Security Theater, and the Fourth Amendment"

Cato: TSA Profiling, Security Theater, and the Fourth Amendment by Julian Sanchez:

This weekend, The New York Times reported that the Transportation Security Administration’s “behavioral detection” program at Logan Airport has devolved into a racial profiling program, according to complaints from 32 federal officers who’ve seen up-close how it works. And yet to my eye, racial profiling isn’t the only constitutionally problematic aspect of the program revealed in the article (emphasis mine below): ...

Permalink 07:21:57 am, by fourth, 113 words, 388 views   English (US)
Categories: General

NC: Abandonment after illegal arrest suppressed

Abandonment after an illegal arrest is to be suppressed. State v. Joe, 213 N.C. App. 148, 730 S.E.2d 779 (2012).*

Defense counsel was not ineffective in an OVI case for stipulating the officer’s testimony. “ We fail to see how stipulating to the facts, when both parties agree the facts were uncontested, prejudiced appellant. Nor do we see how requiring the trooper to testify would have resulted in a different outcome for the suppression.” The stipulation showed reasonable suspicion for the stop. State v. Hammen, 2012 Ohio 3628, 2012 Ohio App. LEXIS 3206 (5th Dist. August 6, 2012).*

The officer had reasonable suspicion that defendant was under the influence to continue the stop. State v. Shutt, 2012 Tenn. Crim. App. LEXIS 615 (August 10, 2012).*

Permalink 06:59:17 am, by fourth, 144 words, 444 views   English (US)
Categories: General

KS: Exigent circumstances justified taking DNA swabs from handcuffed defendant

Exigent circumstances justified DNA swabs from the defendant at the time of his arrest with probable cause for rape, even though he was handcuffed behind his back. State v. Parker, 48 Kan. App. 2d 68, 282 P.3d 643 (2012):

An officer testified that even though Parker was handcuffed, he could have wiped his hand on his pants before officers could get a warrant, potentially destroying fragile DNA evidence. Parker suggests that officers instead could have monitored him for however long it took to locate a judge and get a search warrant. But even a momentary slipup might result in the destruction of evidence. The district court properly concluded that the officer reasonably believed there was a threat of imminent loss or destruction of evidence if the swabs weren't taken immediately. The district court thus properly denied the motion to suppress the DNA evidence and properly admitted that evidence.

Permalink 06:53:03 am, by fourth, 82 words, 281 views   English (US)
Categories: General

OR: Defendant who saw police and dropped drugs was not seized

Officers staked out a drug deal going down and defendant dropped drugs when he saw the police. He had not been seized at the time he dropped them. State v. Moats, 251 Ore. App. 568, 284 P.3d 568 (2012).*

USMJ’s finding of consent to search is supported by the evidence. United States v. Jackson, 474 Fed. Appx. 454, 2012 FED App. 0851N (6th Cir. 2012).*

Exigent circumstances justified seizure of the defendant’s urine for testing in a DUI case. State v. Walker, 251 Ore. App. 651, 284 P.3d 576 (2012) (per curiam).*

Permalink 06:28:51 am, by fourth, 255 words, 292 views   English (US)
Categories: General

OR: Three factors of RS still did not add up to it; past drug use doesn't equate with present drug use

Three factors of reasonable suspicion collectively still did not add up to reasonable suspicion: furtive movement toward a cosmetics case on the floor, nervousness, and gray rotting teeth. The latter shows nothing about time. State v. Kentopp, 251 Ore. App. 527 (2012):

We begin with the first three circumstances. As to defendant's furtive movements, those movements—viz., leaning down as he was being pulled over—do not, by themselves, amount to reasonable suspicion. ... The other two facts—defendant's nervous demeanor and gray, rotting teeth—could arguably have led Jeter to believe that defendant had used drugs in the past. However, an officer's observation of signs of a person's past drug use does not, by itself, give rise to reasonable suspicion that the person currently possesses drugs. ... Specifically, as to defendant's nervous demeanor, it could be ascribed to "any number of things"—especially in light of the fact that Jeter did not testify that defendant's nervousness during the stop suggested to him that defendant had recently used drugs—thereby further undermining the value of that circumstance as support for reasonable suspicion of drug possession. ... As to defendant's gray, rotting teeth, we have previously concluded that physical indications that were far more consistent with past drug use—for example, in ... track marks on the defendant's arms—failed to give rise to reasonable suspicion of drug possession.

Not only do those circumstances individually not amount to the relevant reasonable suspicion, we also conclude that, even considering them together, they are insufficient to give rise to reasonable suspicion that defendant possessed drugs.

Permalink 12:10:04 am, by fourth, 158 words, 339 views   English (US)
Categories: General

TX13: Common law marriage to owner of car gave standing to contest its search

Common law marriage to owner of car gave standing to contest its search. State v. Copeland, 380 S.W.3d 214 (Tex. App. – Corpus Christi & Edinburgh 2012), Petition for discretionary review granted by Shirley Tex. v. Copeland, 2012 Tex. Crim. App. LEXIS 1502 (Tex. Crim. App., Nov. 5, 2012).

Utah declines to follow a “but for” test and requires the “exploitation” test of Wong Sun. State v. Vit, 2012 UT App 219, 285 P.3d 17, 714 Utah Adv. Rep. 30 (2012).

Reasonable suspicion: “(1) Mubdi took an excessive amount of time to pull over; (2) he was exceedingly nervous; (3) he kept his foot on the car brake instead of shifting the transmission into park; (4) he could not provide details as to his destination or the family member he intended to visit; (5) he did not rent the car, contrary to what he told York; (6) he was not authorized to drive the rental car; and (7) the car was beyond the bounds authorized by the rental contract.” United States v. Mubdi, 691 F.3d 334 (4th Cir. 2012).*

Permalink 12:02:14 am, by fourth, 412 words, 352 views   English (US)
Categories: General

N.D.Ill.: DUSM had no REP in his work cell phone nor computer because he was warned about lack of privacy

A deputy U.S. Marshal was indicted for a civil rights violation for excessive force on an arrestee and then seeking to cover it up with witnesses. He had no reasonable expectation of privacy in his work-issued Blackberry nor in the hard drives on his office computer because he was repeatedly warned of lack of privacy in them. He argued for a subjective expectation of privacy. Alternatively, even if he did, it was reasonable under the special needs exception for a government workplace search. United States v. Linder, 2012 U.S. Dist. LEXIS 112134 (N.D. Ill. August 9, 2012).* The concluding paragraph of this issue:

Linder did not have a reasonable expectation of privacy in his government-issued Blackberry or in his computer files stored on the government server. Linder was aware of the DOJ's and USMS's clear policies regarding the lack of a reasonable expectation of privacy in using both his Blackberry and the government information system. Furthermore, Linder was warned many times about these policies. Indeed, his computer displayed a banner and his Blackberry displayed a disclaimer every time he accessed them. Banners and policies generally eliminate an employee's reasonable expectation of privacy in a government users' network account. Furthermore, policies that authorize the employer to access the employee's workplace diminish any reasonable expectation of privacy that the employee may have in their workplace. In addition, an employee cannot maintain a reasonable expectation of privacy in his electronic data when he is notified that his employer has reserved the right to access or inspect the information stored on his computer. For these reasons, Linder did not have a reasonable expectation of privacy in his Blackberry and the files he stored on the government server. Even if Linder's subjective belief that he did have a reasonable expectation of privacy in these things were to be credited, such an expectation is not one that society is prepared to recognize as reasonable. And in the unlikely event that the search of Linder's Blackberry and computer files did trigger Fourth Amendment protections, no warrant was required because the search falls within two well-recognized exceptions to the warrant requirement. First, the search was a reasonable government search regarding work-related misconduct, and therefore falls within the "special needs" exception to the warrant requirement. Second, Linder consented to the search by using the Blackberry and the government server aware that he was waiving his right to be free from government searches. For the foregoing reasons, Linder's Motion to Suppress is denied.

08/12/12

Permalink 11:10:39 am, by fourth, 445 words, 376 views   English (US)
Categories: General

CADC: Admin search warrant did not authorize seizures, but limited seizure didn't void the rest of the search

Seizure of a notebook under an administrative search warrant that did not authorize seizure of anything was unreasonable. The officers relying on the direction of others are entitled to qualified immunity, but the ones directing them are not. Partial invalidity of the seizure doesn't affect legality of the warranted search. Elkins v. D.C., 690 F.3d 554 (D.C. Cir. 2012):

But Groh cannot mean that every search warrant that fails to describe items to be seized is invalid. The requirements for a warrant vary based on the purpose for which it is sought, Michigan v. Clifford, 464 U.S. 287, 294-95 (1984) (plurality opinion), and the purpose of the search determines the requisite level of particularity, cf. Groh, 540 U.S. at 557 (finding the warrant invalid because it "provided no description of the type of evidence sought"). Not all searches have seizures in mind. For example, the law has long accepted the use of search warrants to conduct "a routine inspection of the physical condition of private property" in order to ensure compliance with building codes, rather than to seize items. See Camara v. Mun. Court of San Francisco, 387 U.S. 523, 530 (1967). It would make no sense to require a warrant to list items to be seized when the sole purpose of the search is to conduct an inspection, without seizing anything.

The Court followed these principles in Groh, holding the search to seize firearms unlawful because the warrant said nothing about them. See Groh, 540 U.S. at 563 (explaining that the defendant could be held liable for the search because he "did not have in his possession a warrant particularly describing the things he intended to seize" (emphasis added)). Here, the District officials sought only to gain entry to Elkins's home to see whether unlicensed construction work was being performed. The warrant listed her address and explained that the search was for "unlicensed construction work which is in violation of the Construction Codes." Defs.' Mot. to Dismiss Ex. 10. There is no indication that the officials envisioned seizing any documents when they sought the warrant. Instead, as explained in more detail below, the record shows the seizure of documents was a spur-of-the-moment response to the instructions of an MPD officer made during the search. See, e.g., Elkins Decl. ¶ 24; Noble Dep. 39:7-41:9, 101:15-104:16, June 10, 2008. Given this context, the warrant's language was sufficiently particular. An administrative search warrant need not describe things to be seized when none are meant to be seized. Of course, any seizures made during the search that do not fall within an exception to the warrant requirement are unconstitutional. But such missteps do not render the entire search illegal.

This is an interesting case on qualified immunity, too.

Permalink 10:32:39 am, by fourth, 474 words, 468 views   English (US)
Categories: General

NC adopts CA8's de minimus standard for extending dog stops

NC adopts the de minimus seizure standard of the Eighth Circuit’s Alexander in traffic stops extended for the drug dog to arrive. State v. Sellars, 2012 N.C. App. LEXIS 949 (August 7, 2012):

There are two lines of cases from the North Carolina Court of Appeals which appear to reach contradictory conclusions on the question of whether a de minimis delay implicates a defendant's Fourth Amendment rights. Upon closer examination of the facts and timing of these decisions, we hold that they are reconcilable.

. . .

In United States v. Alexander, 448 F.3d 1014 (8th Cir. 2006), the 8th circuit expanded upon the reasoning in Caballes and embraced the de minimis approach to traffic stops. Defendant, Alexander, was stopped due to his car having only one of the required two California license plates. After the officer indicated that he was only going to issue him a warning, the officer then asked for permission to search the vehicle. Alexander declined. Id. at 1017. The officer then told Alexander that he would be conducting a dog sniff test on the car and if nothing was detected he would be free to leave. Id. The drug dog alerted to the car and a subsequent search revealed drugs in the vehicle. The drug sniff test was completed approximately four minutes after Alexander was told he would be receiving a warning ticket. Id. The court held that this four-minute detention was de minimis:

Once an officer has decided to permit a routine traffic offender to depart with a ticket, a warning, or an all clear, the Fourth Amendment applies to limit any subsequent detention or search. United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 648 (8th Cir.1999). We recognize, however, that this dividing line is artificial and that dog sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions on the defendant's Fourth Amendment rights. Id. at 649; see also Martin, 411 F.3d at 1002.

448 F.3d at 1016. The court went on to hold that the artificial line marking the end of a traffic stop does not foreclose the momentary extension of the detention for the purpose of conducting a canine sniff of the vehicle's exterior. Id. at 1017.

We conclude that the Falana line of cases did not consider the de minimis analysis created by Caballas and Alexander. However, the latter case of Brimmer allowed police to extend a traffic stop for the purpose of a dog sniff for a de minimis amount of time. Under Brimmer this de minimis rule applies in North Carolina.

Get used to it because this is the wave of the future. From my rules:

4. A seizure and a search are separate constitutional events. (Soldal)

5. Both recognize de minimus intrusions as being unreasonable (seizures (Delgado); searches (Hicks)), but lower courts like finding seizures de minimus more than searches.

Permalink 10:09:58 am, by fourth, 169 words, 283 views   English (US)
Categories: General

CA9: PC needed to believe parolee lives in place to be searched, and residents' lies about parolee don't undermine that

Parole officers need probable cause to believe that the parolee lives in a particular place before they can search it. If confronted with information that mitigates that probable cause, they should stop the search. Here, occupants previously lied about him being there and then gave inconsistent stories about when the parolee left for good. That didn’t require them to leave. United States v. Romero, 491 Fed. Appx. 809 (9th Cir. 2012):

The authorities "were entitled to maintain that belief until presented with convincing evidence that the information they had relied upon was incorrect." Motley, 432 F.3d at 1082 (internal quotation marks omitted). Defendant argues that, on the day of the search, Gonzalez and the occupants of the house told the authorities that Gonzalez had moved. But Gonzalez and the occupants reported inconsistent dates for his departure, and the occupants had previously misled the authorities regarding Gonzalez' residence at the house. The inconsistent reports of less-than-disinterested" sources were insufficient to undermine the authorities' reasonable belief that Gonzalez lived at the house. See id.

Permalink 09:51:20 am, by fourth, 480 words, 355 views   English (US)
Categories: General

CA6: Deferring suppression motion for successful 403 objection was valid strategic decision and not IAC

Defense counsel made an [exceedingly] valid strategic decision in not as aggressively pursuing a suppression motion and successfully arguing Rule 403 prejudice. Tankesly v. Mills, 491 Fed. Appx. 649 (6th Cir. 2012):

To the extent that any doubt remains about whether trial counsel sought an oral hearing on the motion, we find two other deficiencies in Petitioner's claim. First, counsel made a valid strategic choice in his method of challenging the introduction of the undergarments. In the course of deciding whether counsel performed deficiently, we take care not to "second-guess" defensible strategic decisions that ultimately fail. Strickland, 466 U.S. at 688. A defensible strategic choice "made after thorough investigation of law and facts relevant to plausible options" is rarely a basis for habeas relief. Id. at 690. Without derogating the importance of Petitioner's Fourth Amendment rights, the practical harm resulting from the collection of the undergarments was not their seizure outside the scope of the warrant but their admission into evidence during his trial. Counsel made the decision to challenge the state's attempt to introduce the undergarments under Tennessee Rule of Evidence 404(b). He did so by vigorously arguing that the undergarments were unduly prejudicial. See Tenn. R. Evid. 403. The fact that the Tennessee Court of Criminal Appeals agreed with defense counsel's argument demonstrates its strength. See Tanksley, 2000 Tenn. Crim. App. LEXIS 803, 2000 WL 1521475, at *7. We have explained that a defense attorney may have "several possible arguments available" and may be forced to pursue the one "most likely to succeed or [that] offers the greatest possible return" for the defendant. See Cowans v. Bagley, 639 F.3d 241, 250 (6th Cir. 2011). The record demonstrates that counsel surveyed the options available for excluding the undergarments and decided that the Rule 403 challenge was the strongest line of argument. A valid decision of this sort is "virtually unchallengeable." Strickland, 466 U.S. at 690. Had the Fourth Amendment argument been the only avenue available to counsel, and had counsel failed to explore that avenue for suppressing the evidence, our analysis would be different. But even if Petitioner's Fourth Amendment argument was strong, counsel's decision to pursue another strong argument was a decision "within the wide range of reasonable professional" competence. Id. at 689.

Second, while we are not bound by the Tennessee Court of Criminal Appeals' harmlessness conclusion, we agree with that court that Petitioner was not prejudiced by the undergarments because the other evidence against him was strong. Petitioner contends that the admission of the undergarments prejudiced his defense, because, in the words of trial counsel, the undergarments "had a chilling [e]ffect on the jury" and undercut the strategic benefit he gained when the victim did not verbally identify Petitioner as her assailant in court. We conclude differently.

Petitioner's trial was not reasonably likely to turn out better for him if counsel had argued his motion to suppress at a separate hearing and if the undergarments had been suppressed. See Strickland, 466 U.S. at 694. ...

Permalink 08:13:44 am, by fourth, 215 words, 336 views   English (US)
Categories: General

M.D.La.: "Plain feel" of suspected drugs wasn't justified

Defendant was subjected to a patdown because of the smell of marijuana coming from his vehicle. No weapon was found, and the officer manipulated a bulge thinking it was drugs. The officer searched for it as a “plain feel.” This was an “evidentiary search” in violation of Dickerson. United States v. Banks, 2012 U.S. Dist. LEXIS 111762 (M.D. La. August 8, 2012):

Once Officer Collins determined that the item was not contraband, a further search of Defendant's person must have been justified by a warrant or some other exception to the warrant requirement. At the hearing, Officer Collins was unable to articulate any independent reasons for the search and subsequent seizure of the oxycodone. For instance, no testimony was provided: (1) suggesting Officer Collins smelled marijuana on Defendant's person (thus creating a "plain smell" exception to the warrant requirement), (2) indicating that a reliable source may have informed Officer Collins that Defendant had contraband on his person, or (3) indicating that Defendant's independent action that may have led Officer Collins to believe drugs that were on his person. Thus, in seizing the oxycodone from Defendant's person, under the circumstances presented here, officers conducted the type of search that "amounted to the sort of evidentiary search that Terry expressly refused to authorize." Accordingly, the Court orders the suppression of the oxycodone.

Permalink 12:01:20 am, by fourth, 127 words, 323 views   English (US)
Categories: General

Cato: "The Fourth Amendment Doesn’t Allow Roving Licenses to Detain People Without Probable Cause"

Cato: The Fourth Amendment Doesn’t Allow Roving Licenses to Detain People Without Probable Cause by Ilya Shapiro and David Scott.

Searches and seizures have long been held to be unreasonable under the Fourth Amendment unless supported by probable cause. There are only a few narrow exceptions to that probable cause requirement.

The Supreme Court found one such exception in the 1981 case of Michigan v. Summers, which gave police a limited authority to detain the occupants of premises that were lawfully being searched. The Court justified this limited detention by invoking the need for officers to have “unquestioned command” of the premises and prevent flight should incriminating evidence be found, thus “minimizing the risk of harm to the officers” and facilitating “the orderly completion of the search.”

08/11/12

Permalink 09:37:00 am, by fourth, 129 words, 541 views   English (US)
Categories: General

CA3: Rental unit inspection ordinance didn't violate Fourth Amendment

City rental property license ordinance required an inspection from the city or a licensed private inspector or architect, and it did not violate Fourth Amendment rights because there was no criminal penalty for refusing other than denying a license. Marcavage v. Borough of Lansdowne, 493 Fed. Appx. 301 (3d Cir. 012).*

Defendant consented to a search of his car, and there was no need to unhandcuff him after a toy gun was found before asking for consent. United States v. Correa, 881 F. Supp. 2d 272 (D. R.I. 2012).*

The officer’s waiting for backup before searching defendant was not proof that the officer was not credible that he feared a gun. He didn’t act immediately, but that didn’t undermine credibility. United States v. Velazquez, 2012 U.S. Dist. LEXIS 111430 (D. Utah August 3, 2012).*

Permalink 08:40:57 am, by fourth, 555 words, 420 views   English (US)
Categories: General

Cal.1: Assuming putting a key in the door to test it is a "search," it was reasonable

Struggling with whether putting a key in the door is a search, the court determines that it doesn’t have to decide that question. Assuming that it is a search, it was reasonable and virtually de minimus. People v. Robinson, 208 Cal. App. 4th 232, 145 Cal. Rptr. 3d 364 (1st Dist. 2012):

Ultimately, we need not determine whether testing the key in the lock was a search because, even assuming it was a search, the search was not unreasonable. “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ [Citation.]” (United States v. Knights (2001) 534 U.S. 112, 118–119 [151 L. Ed. 2d 497, 122 S. Ct. 587] (Knights); People v. Sanders (2003) 31 Cal.4th 318, 333 [2 Cal. Rptr. 3d 630, 73 P.3d 496] (Sanders); see also People v. Boulter (2011) 199 Cal.App.4th 761, 768 [131 Cal. Rptr. 3d 185] (Boulter).) “Whether an officer's conduct was reasonable is evaluated on a case-by-case basis in light of the totality of the circumstances.” (In re Raymond C. (2008) 45 Cal.4th 303, 307 [86 Cal. Rptr. 3d 110, 196 P.3d 810]; see also Knights, at p. 118; Sanders, at p. 333; Boulter, at p. 768.)

a. The Minimal Intrusion Exception to Warrant Requirement

“[I]n most criminal cases,” the balance between an individual's Fourth Amendment interests and the promotion of legitimate governmental interests “is struck in favor of the procedure described by the warrant clause (viewing a search as reasonable if conducted pursuant to a warrant that has been issued by a neutral magistrate upon a showing of probable cause) ….” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 867–868 [59 Cal. Rptr. 2d 696, 927 P.2d 1200].) Nevertheless, the United States Supreme Court has “made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, [it] has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” (Illinois v. McArthur (2001) 531 U.S. 326, 330 [148 L. Ed. 2d 838, 121 S. Ct. 946], italics added.) In the present case, we focus on the minimal nature of the intrusion involved in testing the key, because “even if the challenged action triggers the protections of the Fourth Amendment, a ‘minimally intrusive’ action ‘may be reasonable in view of the government interests it serves.’” (U.S. v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3d 1080, 1087, fn. omitted; see also, e.g., New York v. Class (1986) 475 U.S. 106, 117 [89 L. Ed. 2d 81, 106 S. Ct. 960] [officer's search of car dashboard for vehicle identification number obscured by papers was a “minimal” intrusion]; Hayes v. Florida (1985) 470 U.S. 811, 816–817 [84 L. Ed. 2d 705, 105 S. Ct. 1643] (Hayes) [suggesting in dicta that officers could seize and fingerprint a suspect in the field, a procedure the high court characterized as a nonintrusive search, on the basis of reasonable suspicion]; Pennsylvania v. Mimms (1977) 434 U.S. 106, 111 [54 L. Ed. 2d 331, 98 S. Ct. 330] (Mimms) [order that driver of properly detained vehicle get out of car was “de minimis” intrusion]; Arizona v. Johnson (2009) 555 U.S. 323, 331 [172 L. Ed. 2d 694, 129 S. Ct. 781] [citing Mimms with approval]; United States v. White (9th Cir. 1985) 766 F.2d 1328, 1332 (White) [border patrol agent's act of pushing down on the trunk of an automobile to determine whether the trunk contained heavy objects requiring further investigation, if a search, was a reasonable minimal intrusion].)

Permalink 07:46:28 am, by fourth, 266 words, 412 views   English (US)
Categories: General

NC: Dog alert on car no PC as to removed passenger's person

A dog alert on a car where the occupants are removed does not give probable cause to search their persons, at least the passenger. State v. Smith, 2012 N.C. App. LEXIS 943 (August 7, 2012):

We note that in Whitehead [v. Commonwealth, 278 Va. 300, 683 S.E.2d 299 (2009)], the Commonwealth had a stronger case for probable cause to search the passengers than was present in the instant case. In Whitehead, the drug dog "hit" on the vehicle while defendant was inside of the vehicle, whereas in the instant case, the drug dog "hit" on the vehicle while no one was inside. We also note that the drug dog hit at the driver's door, and that defendant was a passenger.

"The textual touchstone of the Fourth Amendment is reasonableness. When applying this basic principle, the Supreme Court has consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry." State v. Shearin, 170 N.C. App. 222, 240, 612 S.E.2d 371, 384 (2005) (quoting Alvarez v. Montgomery County, 147 F.3d 354, 358 (4th Cir. 1998)). Given the specific facts of this case, we hold that it is factually more similar to Anderson and Whitehead then to Anchondo. We note that the rationale of Anchondo has been specifically rejected by Anderson, Gibson, Wallace, and Fondia. Further, we hold the logic of Anderson and Whitehead to be more compelling than that of Anchondo. The fact that defendant was formerly a passenger in a motor vehicle as to which a drug dog alerted, and a subsequent search of the vehicle found no contraband, is not sufficient, without probable cause more particularized to defendant, to conduct a warrantless search of defendant's person.

Permalink 07:36:49 am, by fourth, 132 words, 384 views   English (US)
Categories: General

WV: Search invalid where stop based on mistake of law

Defendant was stopped because of missing passenger side mirror which was not required by state law or the law of the state where the vehicle was registered. That was a mistake of law, and the stop was invalid. State v. Dunbar, 229 W. Va. 293, 728 S.E.2d 539 (2012).

An FTCA complaint about a search is not barred by the discretionary function exception. Muhammad v. United States, 884 F. Supp. 2d 306 (E.D. Pa. 2012).

Defendant gets to voir dire on consent searches in a drug case. United States v. Goxcon-Chagal, 2012 U.S. Dist. LEXIS 110769 (D. N.M. August 5, 2012).*

Officer’s statement in SW application that furniture was not visible through the front window was not a Franks violation because furniture was actually found inside. United States v. Sullivan, 2012 U.S. Dist. LEXIS 110793 (S.D. Ga. July 16, 2012).*

Permalink 07:09:44 am, by fourth, 307 words, 443 views   English (US)
Categories: General

DC: Reasonable suspicion evidence will be found required under Gant

Defendant rear-ended a vehicle with three U.S. Marshals, and he was arrested for DUI. His vehicle was searched for evidence of the DUI. This search violated Arizona v. Gant, and the court determines a reasonable suspicion standard is required to determine whether a search incident is proper, not the per se rule sought by the government. United States v. Taylor, 12-CO-5 (August 9, 2012):

As some of these courts have emphasized, practical considerations also counsel in favor of concluding that Gant’s reasonable belief standard is analogous to reasonable suspicion. Both the police and the courts are already familiar with the reasonable suspicion standard. Mbacke, 721 S.E.2d at 222. In addition, applying the well-established Terry doctrine would limit the proliferation of Fourth Amendment standards and prevent the associated confusion that such profusion would sow.

In this case, the government has not asked us to hold that Gant created a per se rule, and we decline to do so sua sponte. For the reasons just described, and in the absence of further guidance from the Supreme Court, we hold that officers must have reasonable, articulable suspicion to conduct a vehicle search under the second prong of Gant.

This case underscores the dominance of the reasonable suspicion standard. If one looks, threads of the reasonable suspicion standard can be found all around the Fourth Amendment landscape. Where probable cause is not mandated, reasonable suspicion for police action at least supports reasonableness by definition. When I was briefing knock and announce for SCOTUS back in the mid-90's, what was to be the standard for applying the exceptions? I concluded that reasonable suspicion had to be the standard, and found support in a couple of places for making the argument. It seemed logical, was a good fit, and it removed discretion from "the officer in the field." This holding is, too.

Permalink 07:03:30 am, by fourth, 146 words, 294 views   English (US)
Categories: General

VA: SW after a consent search was based on PC

The search of defendant’s bedroom was valid by his mother’s consent while he was present and not objecting, and the seizure of bomb-making materials was valid. While officers were there, he admitted to blowing up pipe bombs in the woods. It was reasonable to issue a search warrant for the room after that for plans and other documents about how to make bombs. Bay v. Commonwealth, 60 Va. App. 520, 729 S.E.2d 768 (2012).*

Defendant litigated his suppression issue through direct appeal, so it can’t be religitated in his § 2255. Sims v. United States, 2012 U.S. Dist. LEXIS 109478 (W.D. N.C. August 6, 2012).*

“Failure to raise a losing argument is not ineffective assistance of counsel.” Here, the facts of the search were in the plea agreement, and that alone was sufficient to sustain the search. United States v. Hayes, 2012 U.S. Dist. LEXIS 111165 (E.D. Wis. August 8, 2012).*

Permalink 06:58:25 am, by fourth, 11 words, 318 views   English (US)
Categories: General

SCOTUSBlog: Orin Kerr, Reviewing the Fourth Amendment cases of OT2011

08/10/12

Permalink 04:39:10 pm, by fourth, 542 words, 658 views   English (US)
Categories: General

CA9: DEA admin. subpoena not overbroad nor violation of Fourth Amendment

The Fourth Amendment's third party records rule permits the use of a DEA administrative subpoena rather than a grand jury subpoena for electric records. The subpoena was not too broad for the Fourth Amendment under Walling, and it was relevant to an inquiry. United States v. Golden Valley Electric Assn., 11-35195 (9th Cir. August 7, 2012):

[6] An administrative subpoena may not be “too indefinite or broad.” Peters v. United States, 853 F.2d 692, 699 (9th Cir. 1988). “The critical questions are: (1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation.” EEOC v. Children’s Hosp. Med. Ctr. of N. Cal., 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc), overruled on other grounds as recognized in Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299 (9th Cir. 1994). Even if other criteria are satisfied, “a Fourth Amendment ‘reasonableness’ inquiry must also be satisfied.” See Reich v. Mont. Sulphur & Chem. Co., 32 F.3d 440, 444 n.5 (9th Cir. 1994). The scope of judicial review in an administrative subpoena enforcement proceeding is “quite narrow.” Children’s Hosp. Med. Ctr., 719 F.2d at 1428.

Golden Valley makes four principal arguments on appeal. First, it argues that the subpoenaed records are irrelevant to the DEA’s investigation. Second, it argues that the Attorney General did not verify the existence of a pending drug investigation involving the three residences prior to issuing the subpoena. Third, it argues that the subpoena was an overly broad “John Doe” subpoena. Fourth, it argues that issuance of the subpoena violated the Fourth Amendment because the government should have obtained a search warrant or a grand jury subpoena. We take each argument in turn.

. . .

[11] “[I]n the context of an administrative [subpoena], the Fourth Amendment’s restrictions are limited.” Mont. Sulphur, 32 F.3d at 448. We have described the scope of protection:

[I]t is sufficient [for Fourth Amendment purposes] if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.

Id. (quoting United States v. Morton Salt Co., 338 U.S. 632, 652-53 (1950)) (internal quotation marks omitted; alterations in original). An administrative subpoena is consistent with the Fourth Amendment if “the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry.” Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 209 (1946). “Beyond this[,] the requirement of reasonableness ... comes down to [whether] specification of the documents to be produced [is] adequate, but not excessive, for the purposes of the relevant inquiry.” Id. A “subpoena should be enforced unless the party being investigated proves the inquiry is unreasonable because it is overbroad or unduly burdensome.” Children’s Hosp., 719 F.2d at 1428 (citing Okla. Press, 327 U.S. at 217; Morton Salt Co., 338 U.S. at 653).

Golden Valley contends that the Government should have to meet a higher standard than that just described. Golden Valley notes that the government normally obtains evidence in a criminal investigation through a search warrant, which requires probable cause and prior judicial review, or a grand jury subpoena, which requires the presentation of evidence and grand jury approval.

Permalink 04:18:02 pm, by fourth, 131 words, 329 views   English (US)
Categories: General

PoliceOne.com: "Cell phones, privacy, and the Fourth Amendment"

PoliceOne.com: Cell phones, privacy, and the Fourth Amendment by Terrence P. Dwyer:

A police officer arrests a drug suspect, confiscates his cell phone, and casually scrolls through the call log and text messages.

While in possession of the phone, the arresting officer receives either an incoming call or text message from the drug suspect’s connection. Pretending to be the drug suspect the police officer makes arrangements with the person at the other end of the call or text message to meet and purchase drugs. The drug dealer shows up at the pre-arranged location and the rest of the story plays out as you might expect, the dealer is in possession of a quantity of drugs, arrested and now the officer has two in custody for the price of one.

08/09/12

Permalink 07:49:20 am, by fourth, 201 words, 651 views   English (US)
Categories: General

WV: Exclusionary rule doesn't apply to DL suspension

State law permitted safety check roadblocks until the court wised up and declared them unconstitutional. Defendant was stopped under the influence in the interim, and his DUI was dismissed. His driver’s license was administratively suspended, however, and the exclusionary rule does not apply to civil proceedings [even where the state is a party]. Miller v. Toler, 229 W. Va. 302, 729 S.E.2d 137 (2012) (dissent):

This Court agrees that if the exclusionary rule is extended to civil license revocation or suspension proceedings there would be minimal likelihood of deterring police misconduct because the real punishment to law enforcement for misconduct is derived by excluding unlawfully seized evidence in the criminal proceeding. When this minimal deterrent benefit is compared to the societal cost of applying the exclusionary rule in a civil, administrative driver's license revocation or suspension proceeding that was designed to protect innocent persons, the cost to society outweighs any benefit of extending the exclusionary rule to the civil proceeding.

Furthermore, at the time the safety equipment checkpoint occurred in this case, the state troopers were acting lawfully under the decision of this Court in State v. Davis, 195 W. Va. 79, 464 S.E.2d 598 (1995), overruled by State v. Sigler, 224 W. Va. 608, 687 S.E.2d 391 (2009). ...

Permalink 07:16:59 am, by fourth, 171 words, 366 views   English (US)
Categories: General

CA4: Reasonable mistaken identity was qualified immunity for three months detention as the wrong guy

“In a case of mistaken identity, Michael Dwayne Durham was charged and jailed in southwest Virginia for more than three months before the prosecutor realized and rectified the error. As a result, Durham initiated this civil action in the Western District of Virginia against, inter alia, officer David L. Horner, alleging a Fourth Amendment claim under 42 U.S.C. § 1983, plus a state law claim for malicious prosecution. The district court awarded summary judgment to Horner on the basis of qualified immunity, and Durham appeals. See Durham v. Horner, No. 2:09-cv-00012 (W.D. Va. Dec. 7, 2010) (the ‘Opinion’). As explained below, we affirm.” Here, there was no showing of malice or ill-will against the plaintiff. Durham v. Horner, 690 F.3d 183 (4th Cir. 2012), affg Durham v. Horner, 759 F. Supp. 2d 810 (W.D. Va. 2010). [Note: Try explaining this to a citizen. It can't be done. I get a call a week from somebody who wants to sue when charges were dropped or they were acquitted. It takes considerably more than just getting out of it.]

Permalink 07:04:28 am, by fourth, 136 words, 309 views   English (US)
Categories: General

E.D.Tex.: Defendant under protective order to stay away from house had no standing when found there

Defendant was under a protective order barring him from the property where he was found, and that denied him a reasonable expectation of privacy in the premises, despite the fact the person to benefit from the protective order let him in. This is "wrongful presence"; therefore, no REP. United States v. Conshafter, 2012 U.S. Dist. LEXIS 110501 (E.D. Tex. July 24, 2012).

Hiding in a house from the police does not give one standing under Olson. United States v. Pate, 2012 U.S. Dist. LEXIS 109088 (D. Minn. August 3, 2012), R&R 2012 U.S. Dist. LEXIS 110574 (D. Minn. July 18, 2012).

Defendant was the passenger in a car stopped after a shooting on an Indian reservation. He lacked standing. United States v. Allman, 2012 U.S. Dist. LEXIS 108803 (D. S.D. August 3, 2012), R&R 2012 U.S. Dist. LEXIS 108817 (D. S.D. June 29, 2012).*

Permalink 06:54:37 am, by fourth, 250 words, 292 views   English (US)
Categories: General

D.Nev.: Defendant made a sufficient showing to get the CI’s identity under Roviaro on the question of his standing

Defendant made a sufficient showing to get the CI’s identity under Roviaro on the question of defendant’s standing. The government argued there was an alternative ground to sustain the search without it which the court did not yet decide. United States v. Johnson, 2012 U.S. Dist. LEXIS 111085 (D. Nev. August 7, 2012):

Based on the foregoing, the Court finds that Defendant has made the required threshold showing for an in camera hearing regarding the identity of the informant, the substance of the information that the informant provided to the police officers, and whether the informant was reliable. An in camera hearing is also justified to determine whether the informant has any knowledge relating to whether Defendant was a trespasser or was lawfully present on the subject premises at the time of the officer's entry and subsequent search. The Government states that "[i]f the Court feels that an in camera review of the CI file is necessary to make this determination, the Government will provide the file upon the Court's request." Opposition to Motion to Compel (#27), pg. 9. In view of the foregoing, the Court directs the Government to provide a copy of the CI file under seal to the Court's chambers for in camera review. This does not mean, however, that production of the CI file for in camera review will alone be sufficient to satisfy the requirement for an in camera hearing. The Court will entertain further oral argument on this issue at the hearing presently scheduled for August 13, 2012.

Permalink 06:26:10 am, by fourth, 390 words, 303 views   English (US)
Categories: General

S.D.N.Y.: Mistaken but reasonable stop of a NYC livery cab under anti-robbery program was valid

NYC has a program where livery cabs opt to be stopped for protection of the driver from robbery. The livery cab owner has to opt in and there are decals for the police to see. This livery cab had a decal from its prior owner but this owner had not opted in. The stop was still objectively reasonable because the mistake was reasonable, and the officer's plain view of a gun between the feet of the passenger was sustained. The failure to comply with some program details was not sufficient to suppress the search. United States v. Edwards, 2012 U.S. Dist. LEXIS 110344 (S.D. N.Y. August 6, 2012).* Describing the program: “In People v. Abad, 98 N.Y.2d 12, 17, 771 N.E.2d 235, 744 N.Y.S.2d 353 (2002), the New York Court of Appeals held that TRIP ‘properly balances the competing interests under Brown.’”

Even if Officer 1 had failed to ask the driver to open the passenger door, the fact that he had seen the portion of a gun in plain view at Edwards' feet provided "independent reason to detain [him]." Abad, 98 N.Y.2d at 18. Furthermore, the fact that Officer 1 may not have specifically inquired about the driver's safety is insufficient to suggest that the stop was unlawful, particularly in light of the fact that the officer had already identified the potential danger when he observed the gun's hammer while approaching the vehicle and pointing his flashlight into the interior of the car.

. . .

Finally, Edwards contends that the stop is unlawful because the officers failed to record the stop in an activity log, as required by the TRIP protocol. The officer's failure in this instance to complete a separate TRIP log is not sufficient to invalidate the stop. The purpose of the requirement is "to afford[] the possibility of post-stop judicial review to the extent questions are raised as to the actual operation of the program," Abad, 98 N.Y.2d at 18 (internal quotation marks omitted). In this case, Edwards was afforded considerable post-stop judicial review, including the opportunity to cross-examine the officers who arrested him. The Government also provided, at the evidentiary hearing, Officer 1's contemporaneous record of the stop in his regular notebook. The absence of an official activity log thus did not deprive the Court of the ability to review the facts of the stop as recorded by the arresting officer.

08/08/12

Permalink 07:51:02 am, by fourth, 197 words, 383 views   English (US)
Categories: General

NE: DMV record error did not support GFE for stop

Defendant was stopped because the color of the vehicle did not match the DMV record, which turned out to be erroneous. This was chargeable to the state, and the good faith exception did not apply. State v. Bromm, 20 Neb. App. 76, 819 N.W.2d 231 (2012).*

The officer was uncontradicted, and the evidence supports the trial court’s conclusion there was reasonable suspicion for the stop. Cocaine was found in defendant’s mouth during the stop. State v. Harris, 98 So. 3d 903 (La. App. 4 Cir. 2012).*

“[A]t the time S made the investigatory stop of the defendant, he had a reasonable suspicion that the defendant had just committed the burglary reported by police dispatch, and the totality of the circumstances, including the defendant's lone presence, close in temporal and physical proximity to the scene of the burglary and his behavior and demeanor immediately before S stopped him, supported the court's finding of reasonable suspicion to stop the defendant, and because this court determined that S's stop of the defendant was not unlawful, it was not necessary to address the issue of whether it tainted the defendant's consent to the search of his car.” (Syllabus) State v. Miller, 2012 Conn. App. LEXIS 383 (August 14, 2012).*

Permalink 07:28:40 am, by fourth, 337 words, 373 views   English (US)
Categories: General

CA3: Police were objectively reasonable in entering a house they thought was abandoned but it wasn't

Defendant was in a house that the police reasonably thought was abandoned. He had a reasonable expectation of privacy in the house, but the police acted reasonably under the circumstances, and the search was valid. United States v. Harrison, 689 F.3d 301 (3d Cir. 2012):

The same logic applies to a person's abandonment of his house. A person can, through his own acts or omissions, manifest an intent to relinquish his legitimate expectation of privacy in his real property, as the same test applies regardless of the nature of the property. This is, however, a difficult standard to meet, and one that requires a careful analysis of all the facts and circumstances of a particular case. Before the government may cross the threshold of a home without a warrant, there must be clear, unequivocal and unmistakable evidence that the property has been abandoned. Only then will such a search be permitted.

In this case, it is undisputed that the house was not actually abandoned and that Harrison, as a renter, possessed a reasonable expectation of privacy in the property. Therefore, the only issue before us is whether the police officers' belief that the house was abandoned justified their warrantless entry.

The law does not require that police officers always be factually correct; it does demand, however, that they always be reasonable. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). "Consequently, a reasonable mistake of fact does not violate the Fourth Amendment." United States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006) (internal quotation marks omitted); see also United States v. Elliott, 50 F.3d 180, 185-86 (2d Cir. 1995). In deciding what is reasonable, a court is to apply an objective standard, looking at whether "the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief" that the search was permissible. Rodriguez, 497 U.S. at 188 (internal quotation marks omitted).

So, while a warrantless entry into the home is the "chief evil" the Fourth Amendment was designed to protect (Payton), an objectively reasonable belief it isn't a home makes it ok?

Permalink 07:18:49 am, by fourth, 180 words, 319 views   English (US)
Categories: General

W.D.Pa.: Address particular enough for SW

A search warrant for an address is particular enough. Defendant challenged it in the suppression hearing without any citation of authority, and thus essentially waived the argument, but would lose on the merits anyway. There was also probable cause to connect the address to the robbery as a place where evidence would likely be found. United States v. Harris, 884 F. Supp. 2d 383 (W.D. Pa. 2012).

The FTCA does not apply to discretionary government functions, like the decision to investigate, but it does apply to illegal searches conducted after the decision to investigate. Muhammad v. United States, 2012 U.S. Dist. LEXIS 110617 (E.D. Pa. August 6, 2012).

“Finally, Movants' argument that the subpoenas violate the Fourth Amendment lacks merit. In United States v. Miller, 425 U.S. 435, 442-443 (1967), the Supreme Court held that bank customers have no legitimate expectation of privacy in their bank records. Therefore, when a federal agency issues a subpoena for customer records from a bank, the customer cannot successfully challenge the subpoena on Fourth Amendment grounds. Id.” Tabet v. United States SEC, 2012 U.S. Dist. LEXIS 110048 (S.D. Cal. August 6, 2012).*

Permalink 06:56:13 am, by fourth, 167 words, 329 views   English (US)
Categories: General

E.D.Wis.: Drawing weapon and order to show hands a seizure

Drawing weapon and order to show hands a seizure. United States v. Griffin, 884 F. Supp. 2d 767 (E.D. Wis. 2012). The officer:

effected a seizure when, after identifying himself as an officer, he drew his weapon and ordered defendant to show his hands. See Gentry v. Sevier, 597 F.3d 838, 844 (7th Cir. 2010) ("When the officers pulled up in their patrol car and one officer exited the car and told Gentry to keep [his] hands up,' the officer executed a Terry stop."); see also Carlson v. Bukovic, 621 F.3d 610, 619 (7th Cir. 2010) (listing "the display of a weapon and the police officers' language and tone of voice suggesting compulsion" as relevant factors in determining whether a seizure occurred) ...

Defendant’s coresident consented to a police entry to check on her welfare, and whatever was seen was based on her consent. Her voluntary statement about where defendant’s gun was was not a violation of his Fourth Amendment rights. United States v. Napolitan, 2012 U.S. Dist. LEXIS 108983 (W.D. Pa. August 3, 2012).*

Permalink 12:01:17 am, by fourth, 190 words, 289 views   English (US)
Categories: General

New law review article: "Low Expectations: How Changing Expectations of Privacy Can Erode Fourth Amendment Protection and a Proposed Solution"

Teri Dobbins Baxter, Low Expectations: How Changing Expectations of Privacy Can Erode Fourth Amendment Protection and a Proposed Solution, 84 Temp.L.Rev. 599 (2012):

Technology has changed the lives of every American, but it has revolutionized the way that young people socialize and become socialized. The increasing use of technology to interact with their peers and shape their identities has led to a change in the way personal information is shared and the privacy expectations that are held with respect to that information. Various studies have found that, in general, younger generations have lower privacy expectations than their older counterparts. This Article considers how these changing attitudes towards privacy among youth have the potential to erode Fourth Amendment protection for everyone. The Article then proposes changes to the current test for Fourth Amendment protection that take into consideration the changes in society brought about by rapidly developing technology. Specifically, the Article proposes a test that asks: (1) whether a person has taken steps to reasonably limit access to the information or place targeted for search or seizure; and (2) if so, whether society is prepared to protect the information or space from government intrusion.

08/07/12

Permalink 08:49:43 am, by fourth, 278 words, 475 views   English (US)
Categories: General

CA10: A foot in a shutting house door is an entry into the home

A foot in a shutting house door is an entry into the home, and qualified immunity was properly denied. Dalcour v. City of Lakewood, 492 Fed. Appx. 924 (10th Cir. 2012):

The Supreme Court has clearly established that Fourth Amendment protection starts at the physical limits of a home. See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (warning that “officials can still be on notice that their conduct violates established law even in novel factual circumstances”). The Court has “shifted the qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts toward the more relevant inquiry of whether the law put officials on fair notice that the described conduct was unconstitutional.” Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006) (internal quotation marks and citation omitted). “[A] general constitutional rule ... can apply with obvious clarity to the specific conduct in question, even though [such conduct] has not previously been held unlawful.” Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006) (internal quotation marks and alteration omitted). In sum, the qualified immunity analysis requires that we determine whether a reasonable officer would have known that the conduct at issue was unconstitutional.

In the present case, based on the extensive Supreme Court and Tenth Circuit precedent emphasizing the significance of any physical intrusion into a home, a reasonable officer should have known that placing a foot into the doorway amounted to an entry of the home for Fourth Amendment purposes. Because the facts presented do not establish an objectively reasonable basis for believing anyone in the home needed immediate aid or that there was any other exigent circumstance which would justify a warrantless entry, the district court erred in granting Agent Gillespie qualified immunity.

Permalink 08:22:33 am, by fourth, 167 words, 435 views   English (US)
Categories: General

CA8: Car rental co. could consent to search of car they were taking back

Defendant was in a Budget rental car that was days overdue, which Budget told officers. When the car rental manager showed up, once there, he validly consented to a search of the car which vitiated defendant’s lack of valid consent argument. United States v. Lumpkins, 687 F.3d 1011 (8th Cir. 2012). [Note, some cases hold that there is no REP in an overdue rental car, which isn’t right. This is a far better approach because somebody with an ownership interest who has already revoked consent to the rental can consent to the search.]

Defendant’s search issue was decided on direct appeal and can’t be relitigated in a 2255. Sims v. United States, 2012 U.S. Dist. LEXIS 109478 (W.D. N.C. August 6, 2012).*

It was not a Fourth Amendment violation to threaten to release a dog into a building to make defendant come out. In any event, defendant had no standing in the place he was hiding. United States v. Pate, 2012 U.S. Dist. LEXIS 109088 (D. Minn. August 3, 2012).*

Permalink 08:08:32 am, by fourth, 220 words, 337 views   English (US)
Categories: General

CA7: Use of screwdriver didn't exceed consent

“Here, Trooper Miller asked Saucedo if he had any weapons, cannabis or cocaine in his truck or trailer, and Saucedo answered ‘no.’ At that point, Saucedo volunteered that Miller could search, even before Miller requested permission. Trooper Miller specifically asked Saucedo if he could search his truck and trailer, and Saucedo answered, ‘yes.’ So Saucedo was well aware that Miller was looking for drugs.” The officer used a screwdriver to open the back of a TV and found drugs there. The search was valid. United States v. Saucedo, 688 F.3d 863 (7th Cir. 2012). [The Eighth Circuit is contra on this.]

Defendant, represented by an attorney, requested leave to file a pro se supplemental motion to suppress, which was granted, and it was 291 pages long. It only served to “muddy the water” and produce a 100 page opinion. There were multiple individual seizures and searches of luggage, a motel room, computers, and a storage unit. A delay of five days in getting a search warrant was “unfortunate” but not unreasonable considering New Years Day came in between. The case started as a fraud case with identity theft information on the computer, but child pornography was found in files with unsuspecting names, and another search warrant was sought. The searches were all reasonable. United States v. Kowalczyk, 2012 U.S. Dist. LEXIS 108879 (D. Ore. August 3, 2012).*

Permalink 07:48:05 am, by fourth, 190 words, 431 views   English (US)
Categories: General

CA9: Pineda-Moreno on remand post-Jones: Good faith enough

ACLU: Bad News On Warrantless GPS Tracking by Catherine Crump:

Today the U.S. Court of Appeals for the Ninth Circuit issued a disappointing but fortunately narrow decision in a case involving warrantless tracking of a vehicle with a GPS device. The three-judge panel refused to exclude GPS tracking evidence under what’s known as the “good faith” exception, ruling that when the tracking took place, law enforcement agents reasonably relied on binding circuit court precedent in concluding that no warrant was necessary. The tracking happened before the Supreme Court issued its decision in United States v. Jones that GPS device tracking triggers Fourth Amendment protections.

In the case, [United States v. Pineda-Moreno, 688 F.3d 1087 (9th Cir. 2012)] law enforcement agents attached GPS tracking devices to Mr. Pineda-Moreno’s vehicle. They did not get a warrant, and the Ninth Circuit initially ruled they didn’t need one because of its view that the Fourth Amendment provides no protections against warrantless GPS tracking.

Defendant lacked standing to challenge placement of a GPS device pre-Jones on his brother’s Porsche. United States v. Coleman, 2012 U.S. Dist. LEXIS 109480 (W.D. N.C. August 6, 2012).*

Permalink 07:42:37 am, by fourth, 183 words, 382 views   English (US)
Categories: General

U.Chi.Underg.L.Rev.: "A Technologically Sensitive Amendment: A Historical Analysis of the Fourth Amendment and the Development of Technology"

U.Chi.Underg.L.Rev.: A Technologically Sensitive Amendment: A Historical Analysis of the Fourth Amendment and the Development of Technology by Aglaia Ovtchinnikova:

The original Constitution, drafted in 1787, did not contain a Bill of Rights. The Fourth Amendment contains just fifty-four words, and, while on the surface they seem reasonably clear, one must note that it does not forbid all searches; nor does it forbid all searches without a warrant granted by a court. The Amendment undoubtedly forbids “unreasonable searches and seizures,” but in practical application, we rely so heavily on the facts of each case that any sense of grounding in neutrality or standard procedure is heavily shaken. With each case that is brought forth, the courts grapple with the drafters’ intention, while balancing the needs of the people in the modern era. The introduction of various technologies that the drafters could have never even imagined begs the question: what types of searches enabled by these novel devices should be permitted as constitutional, and which others should be deemed so intrusive that they violate the protections offered by the Fourth Amendment?

08/06/12

Permalink 02:18:56 pm, by fourth, 179 words, 1728 views   English (US)
Categories: General

Reason.com: "NYPD Stops Drop As Officers Learn About This Fourth Amendment Thingie"

Reason.com: NYPD Stops Drop As Officers Learn About This Fourth Amendment Thingie by Jacob Sullum:

The number of street stops by the NYPD, which has increased every year of the Bloomberg administration but one and hit a record 684,330 last year, fell by 25 percent in the second quarter of this year compared to the same period in 2011. The New York Times suggests the drop is largely the result of uncertainty about political support for the city's stop-and-frisk program, which involves detaining, questioning, and (about half the time) searching supposedly suspicious people, overwhelmingly black or Hispanic men. Citing unnamed police sources, the Times says sergeants conducting roll calls no longer push officers to make such stops, which have been widely criticized and are the target of a recently certified federal class action. The lawsuit argues that the NYPD routinely violates the Fourth Amendment because its stops and searches are not justified by reasonable suspicion and that the program is racially biased, violating the 14th Amendment's Equal Protection Clause. "Cops are nervous, and supervisors are nervous," one supervisor told the Times.

Permalink 09:31:15 am, by fourth, 63 words, 276 views   English (US)
Categories: General

ProPublica: "How Do You Feel About Smartphone Surveillance? Our Readers Respond"

ProPublica: How Do You Feel About Smartphone Surveillance? Our Readers Respond:

Your cell phone tracks where you go and what you do, revealing details about your life that can prove quite valuable to the government and companies. Last week, we asked you to sound off on whether or not this smartphone surveillance bothers you – and what, if anything, we should do about it.

Permalink 08:01:20 am, by fourth, 135 words, 411 views   English (US)
Categories: General

TX2: Community caretaking function couldn't justify stop without a showing of motorist distress

There was no reasonable suspicion for detaining defendant who was on a parking lot in a BMW at night with a door open in a supposedly high crime area. There was no indication that it was a high crime area, and defendant was doing nothing wrong. The state’s alternative argument that the stop was justified under the community caretaking function fails, too, because there is no indication that the defendant was in distress needing help. The fact it was possible he might be in distress isn't enough. Hernandez v. State, 376 S.W.3d 863 (Tex. App. – Ft. Worth 2012).

As a “mere passenger,” defendant had no standing in the car he was in. United States v. Allman, 2012 U.S. Dist. LEXIS 108803 (D. S.D. August 3, 2012),* R&R 2012 U.S. Dist. LEXIS 108817 (D. S.D. June 29, 2012).*

Permalink 07:58:53 am, by fourth, 394 words, 383 views   English (US)
Categories: General

IL: Burden on defendant to show his warrantless arrest was unjustified

Illinois once again holds, contrary to the law in the rest of the country, that the defendant has the burden of showing that his arrest was unjustified. Apparently Illinois believes that all arrests are presumptively valid. People v. Liekis, 2012 IL App (2d) 100774, 362 Ill. Dec. 669, 973 N.E.2d 1065 (2012)*:

[P20] On appeal from a trial court's ruling on a motion to quash and suppress, the reviewing court "will accord great deference to the trial court's factual findings and will reverse those findings only if they are against the manifest weight of the evidence." People v. Close, 238 Ill. 2d 497, 504 (2010). However, the trial court's ultimate decision to grant or deny the motion is subject to de novo review. Id. A defendant moving to quash and suppress bears the burden of establishing a prima facie case that she was doing nothing unusual to justify the intrusion of a warrantless search or seizure. People v. Linley, 388 Ill. App. 3d 747, 749 (2009). "If the defendant makes the required showing, the burden shifts to the State to present evidence to justify the search or seizure." Id.

[P21] In this case, defendant failed to establish a prima facie case that would have shifted the burden to the State. At the hearing on defendant's motion to quash and suppress, defense counsel called defendant to testify. Defendant testified only that she recalled being pulled over by the Antioch police on December 20, 2009, at about 9:30 p.m., "by the Advertiser in Antioch"; that there was no warrant for her arrest; and that she was arrested after she took field sobriety tests. After defendant provided this testimony, defense counsel asked the trial court to shift the burden to the State and, after argument, the trial court stated that the burden had shifted.

[P22] Ordinarily, a trial court should find that a defendant has made a prima facie case after the defendant has established that he or she was doing nothing unusual to justify the seizure. See People v. Matous, 381 Ill. App. 3d 918, 923 (2008). Because defendant failed to establish that she was doing nothing unusual to justify the stop, she failed to establish a prima facie case. Thus, the trial court's determination that the burden shifted to the State was erroneous.

This holding violates the Fourth Amendment. Warrantless arrests presumptively valid with the burden on the defendant to show it was unreasonable? Impossible. Sounds like a third world country. Or the KGB.

Permalink 07:33:03 am, by fourth, 130 words, 361 views   English (US)
Categories: General

WA: School resource officer was acting as a LEO and not school official when he searched backpack in boys bathroom

A school resource officer was acting as a police officer enforcing the law when he arrested defendant in the boys bathroom holding a bag of marijuana. A search incident of his backpack was otherwise unreasonable under Washington law, and it was suppressed. State v. Meneese, 174 Wn.2d 937, 282 P.3d 83 (2012) (dissent).*

The record supports the conclusion that defendant consented to a search of his duffle bag for evidence of shoplifting. The encounter was recorded on audio, and defendant did not audibly respond to the officer’s statement he needed to search the duffle bag, and the consent was unrestricted. Defendant did not testify. The officers suspected defendant of being an airport shoplifter after a store owner identified him as stealing something the day before. Berezyuk v. State, 282 P.3d 386 (Alas. App. 2012).*

Permalink 07:10:53 am, by fourth, 146 words, 316 views   English (US)
Categories: General

OH8: Patdown for walking on the roadway was unreasonable; no fear of weapon

Defendant was stopped for walking on the roadway, and his patdown was unreasonable because there was no fear of weapons and defendant was completely cooperative. The state's alternative argument that a patdown was needed before putting defendant in the police car was also rejected. State v. Baber, 2012 Ohio 3467, 2012 Ohio App. LEXIS 3045 (8th Dist. August 2, 2012).

The officer responded to a 911 call of an overdose, and he entered [with what appeared to be clear consent from defendant’s mother] to see what was going on, and defendant assaulted him. The separate crime against the officer is not suppressible because her assault is an intervening circumstance. State v. Hammer, 2012 Ohio 3497, 2012 Ohio App. LEXIS 3083 (2d Dist. August 3, 2012).*

The facts and circumstances showed reasonable suspicion for a stop and then probable cause for defendant’s arrest for OVI. City of Parma Heights v. Dedejczyk, 2012 Ohio 3458, 2012 Ohio App. LEXIS 3049 (8th Dist. August 2, 2012).*

Permalink 06:11:01 am, by fourth, 97 words, 346 views   English (US)
Categories: General

NYTimes.com Editorial: "DNA and the Fourth Amendment"

NYTimes.com Editorial: DNA and the Fourth Amendment:

Earlier this year, Maryland’s highest court held that collection of DNA samples from people arrested but not yet convicted violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. Last week, Chief Justice John Roberts Jr. stayed that ruling while the Supreme Court decides whether to hear Maryland’s appeal of the state court decision. The Supreme Court should take up this case, but there was no good reason for the chief justice to allow the police to continue collecting DNA while the case is on appeal.

08/05/12

Permalink 08:41:13 am, by fourth, 279 words, 1109 views   English (US)
Categories: General

D.Ariz.: Use of emergency lights may make driver of stopped car think he can't leave, but that wasn't the intention of the officer

An officer was tailing two vehicles heading north from the border apparently in tandem, which was suspicious to the officer. An immigration checkpoint was ahead, so he didn’t intend to stop them. One pulled off when a “checkpoint ahead” sign was seen, and the officer stopped too. The emergency lights were turned on, and it was reasonable for the driver to believe he’d been stopped, but it was still consensual up to the point the officer saw marijuana. United States v. Holley, 2012 U.S. Dist. LEXIS 107882 (D. Ariz. June 13, 2012), adopted 2012 U.S. Dist. LEXIS 107983 (D. Ariz. August 2, 2012):*

Although the Government's case here is arguably not as strong as it was in Al Nasser, it is similar to facts of Chan-Jimenez, but without the determinative retention of the license and registration. Though a closer case than either of those, the outcome is dictated by the application of the Ninth Circuit instruction that "[a] person is seized when he is 'meant to be stopped by [a particular law enforcement action] ... and [is] so stopped.'" Al Nasser, 555 F.3d at 731. Here, Holley voluntarily stopped and there is no evidence that indicates Agent Alvarenga activated his lights meaning to stop him. While the lights may have caused Holley, or any reasonable person, to believe he was seized, that was not the will of Agent Alvarenga and therefore the encounter was consensual and no seizure occurred until the agent saw the marijuana in the vehicle.

So this was consensual stop or not? Since the officer didn't mean to "stop" him and he was already stopped, it was consensual even though the driver thought he couldn't leave. I don't quite get it.

Permalink 08:24:46 am, by fourth, 181 words, 395 views   English (US)
Categories: General

CA7: Reasonably complete private search was not exceeded by the officers

Defendant was convicted of a child pornography offense in state court and sought habeas which was denied by the district court which granted a COA. The court reached the merits of the Fourth Amendment claim before turning to the AEDPA standard of review and found the evidence supported the conclusion that the private search before the police received it was reasonably complete so the police did not exceed the private search without a warrant. Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012).

Plaintiff’s decedent was in a one-car crash that required the “jaws of life” to extricate him, but he was hogtied and allegedly physically abused by officers while unconscious. He ultimately died. There was no qualified immunity for the officers, but there was as to the EMTs for lack of a settled constitutional right as to them. Brown v. Jenne, 122 So. 3d 866 (Fla. 4th DCA 2012), on rehearing from 2011 Fla. App. LEXIS 17766 (Fla. 4th DCA Nov. 9, 2011).*

The alleged Franks error, if it was, was not remotely material to the finding of probable cause. United States v. Gordon, 493 Fed. Appx. 617 (6th Cir. 2012).*

Permalink 08:00:56 am, by fourth, 145 words, 327 views   English (US)
Categories: General

D.Ariz.: Use of emergency lights behind an already parked car not necessarily a stop

Pulling up to an already stopped vehicle and turning on the emergency lights is not per se a stop. United States v. Holley, 2012 U.S. Dist. LEXIS 107983 (D. Ariz. August 2, 2012).*

Collective knowledge supported reasonable suspicion and probable cause for a stop and search in an alien smuggling case. A cell phone was recovered and a search warrant obtained. A mistake in the application as whether the passenger or driver was on the phone was not material for Franks purposes. United States v. Cruz-Grijalva, 2012 U.S. Dist. LEXIS 107940 (D. Ariz. July 13, 2012).*

While the initial robbery report did not have a description of the car, police found a car with occupants matching their description and observed it, ultimately getting probable cause to believe that the car was involved, thus permitting a search of the car. United States v. Burnett, 2012 U.S. Dist. LEXIS 107341 (E.D. Pa. August 1, 2012).*

Permalink 07:40:06 am, by fourth, 154 words, 280 views   English (US)
Categories: General

Zwillgen: "Twitter to Appeal Ruling That the Fourth Amendment Does Not Protect Public Tweets"

Zwillgen.com: Law Across the Wire and Into the Cloud: Twitter to Appeal Ruling That the Fourth Amendment Does Not Protect Public Tweets by Melissa Maalouf:

A lawyer for Twitter recently announced through a tweet that the company intends to appeal the recent decision of a New York criminal court that an Occupy Wall Street protester’s tweets are not protected by the Fourth Amendment.

In State v. Harris, the issue was whether Twitter must comply with a subpoena requesting all user information for the protester and tweets on his account between September and December 2011, including tweets that were no longer visible because new ones had crowded them out. In April, the court denied the protester’s motion to quash the subpoena, holding that he did not have standing because the subpoena was issued to Twitter. Following the ruling, Twitter filed its own motion to quash the subpoena.

Of course it's through a tweet.

08/04/12

Permalink 11:12:18 am, by fourth, 320 words, 477 views   English (US)
Categories: General

CA7: Excessive force jury instruction on damages and liability was error

Where this § 1983 trial was only about damages for excessive force during the entry of the wrong apartment based on inaccurate informant information, the district court erred in accepting the defense jury instructions that combined damages and liability for the jury. Plaintiff got a nominal damages verdict and appealed. Guzman v. City of Chicago, 689 F.3d 740 (7th Cir. 2012),* prior appeal Guzman v. City of Chicago, 565 F.3d 393 (7th Cir. 2009). The introductory paragraph telegraphs the seriousness of this case:

Maira Guzman will likely never forget June 14, 2005. She was seven-and-a-half months pregnant. Her husband went to work early that morning, leaving her home alone. As she lay in bed, undressed and talking on the phone, she heard the doorbell ring and the sound of someone knocking on her front door. She slipped on a loose-fitting t-shirt, and began walking toward the door. Sergeant Marvin Bonnstetter of the Chicago Police Department burst through the door as Guzman approached it. Up to ten officers wearing body armor rushed into the apartment, many with their guns drawn. Guzman, fearful and crying, was ordered to lie face down on the floor. When she tried to position herself more comfortably, Officer Danilo Rojas grabbed her and forced her down, pressing her pregnant belly firmly against the floor. The entire team of approximately seventeen Chicago police officers and FBI agents—members of a Joint Gang Task Force—then executed a search warrant, searching the apartment for up to an hour. Guzman sued the City of Chicago, Sergeant Bonnstetter, and Officer Rojas, claiming that the search and seizure were illegal. The district court agreed and entered summary judgment in her favor, finding Bonnstetter and Rojas liable and leaving only the question of damages to be resolved.

They searched the apartment after it was obvious that they were in the wrong apartment. He who lives by the informant, dies by the informant. That's why the Fourth Amendment requires corroboration of snitches.

Permalink 10:24:02 am, by fourth, 224 words, 846 views   English (US)
Categories: General

TN: Merely staying overnight confers no standing

Merely being an “overnight guest” confers no standing. A party guest who spent the night was not entitled to standing because of no luggage or stuff. State v. Jeffries, 2012 Tenn. Crim. App. LEXIS 570 (July 31, 2012):

The items in appellant's possession on the night of January 4th were typical items that an individual would carry on a regular basis: a cellular telephone, cigarettes, a lighter, and a jacket. The purpose of appellant's visit to Ms. Albright's apartment was to "play some cards, drink some beers, and relax...." Appellant's reliance on the fact that he moved freely about the apartment, storing and retrieving his beer from the refrigerator and using the bathroom, is unpersuasive to our determination of whether he had a reasonable expectation of privacy in the apartment. Appellant's leaving his jacket behind is also not pertinent. A party guest who spends the night at a residence does not clothe himself with an expectation of privacy therein. State v. Patterson, 966 S.W.2d 435, 441 n.5 (Tenn. Crim. App. 1997); State v. Transou, 928 S.W.2d at 957-58 (Tenn. Crim. App. 1996). Appellant failed to establish that he resided at her apartment or was an overnight guest rather than a "party" guest. Patterson, 966 S.W.2d at 441 n.5. Appellant did not have a reasonable expectation of privacy that would confer standing to challenge law enforcement's search of Ms. Albright's apartment.

Permalink 10:09:21 am, by fourth, 338 words, 431 views   English (US)
Categories: General

Cal.2: Police can remove defendant and ask for consent from co-tenant; rejecting 9th Cir. authority

Defendant was removed from the premises and then his co-tenant was asked for consent. The court disagrees with the Ninth Circuit in United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008), as have most other courts. People v. Fernandez, 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51 (2d Dist. 2012):

We believe that the line we draw is consistent with that drawn by the Supreme Court in Randolph. As in Randolph, the line we draw is a clear one, distinguishing between cases in which a defendant is present and objecting to a search, and those in which a defendant has been lawfully arrested and thus is no longer present when a cotenant consents to a search of a shared residence. It thus preserves the “simple clarity of complementary rules” established by Randolph. (Randolph, supra, 547 U.S. at p. 121.)

Further, our rule preserves the law enforcement prerogatives recognized by Randolph. As we have said, Randolph expressly reaffirmed the holdings of Matlock and Rodriguez, noting that “it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received.” (Randolph, supra, 547 U.S. at p. 122.) We believe that requiring officers who have already secured the consent of a defendant's cotenant to also secure the consent of an absent defendant would similarly and needlessly limit the capacity of law enforcement to respond to “ostensibly legitimate opportunities in the field.” (Ibid.)

We note, as the Seventh Circuit did in Henderson, that the rule advocated by defendant and adopted by the Ninth Circuit in Murphy permits “a one-time objection” by one cotenant to “permanently disable the other [co-tenant] from ever validly consenting to a search of their shared premises.” (Henderson, supra, 536 F.3d at p. 783.) Like Henderson, we think such a rule “extends Randolph too far.” (Ibid.)

Every circuit seems to have rejected Murphy, so the Ninth Circuit en banc may overrule it.

Permalink 09:23:47 am, by fourth, 225 words, 505 views   English (US)
Categories: General

OR: Being told to assume the position for a search and then being told he was free to leave was not unreasonable

Just writing down a detainee’s name and DOB does not mean he is not free to leave. Further, being required to assume the position for a search adds nothing to it when the defendant is told he is free to leave after that. State v. Canfield, 251 Ore. App. 442, 283 P.3d 438 (2012).* Update: Reversed: Defendant’s consent came during the unlawful stop, not after, so reconsideration of the prior opinion is granted and the judgment reversed. State v. Canfield, 251 Ore. App. 442, 283 P3d 438 (2012), reversed. State v. Canfield, 2012 Ore. App. LEXIS 1344 (November 21, 2012).

The Portland inventory policy required that inventories occur before the defendant is placed in the police car, but here was after, so inventory doesn’t work. Here, a laptop bag was unreasonably searched under the state constitution. Still, the court is required to determine whether suppression is warranted, and it is [although not a Herring inquiry]. State v. Rowell, 251 Ore. App. 463, 283 P.3d 454 (2012).*

The government got tracking information for defendant’s Sprint cell phone to locate him to arrest him for a bank robbery in 2009. His defense counsel could not be ineffective for not moving to suppress it because it was a novel claim at the time. And, even if it wasn’t, the court can’t see how it would change the result. United States v. Reaves, 2012 U.S. Dist. LEXIS 107278 (D. Neb. August 1, 2012).*

Permalink 08:35:50 am, by fourth, 115 words, 290 views   English (US)
Categories: General

ABAJ.com: "Kansas City Police Say 7M License Plate Shots Showing Date, Time and Location Are a Public Record"

ABAJ.com: Kansas City Police Say 7M License Plate Shots Showing Date, Time and Location Are a Public Record by Martha Neil:

In the wake of an American Civil Liberties Union campaign launched this week to determine how much information from automatic vehicle license plate readers is being stored by law enforcement agencies nationally and how the database is being used, police statistics are starting to hit the headlines.

In Kansas City, police have stored about 7 million plate numbers over the past two years. The records show the date, time and the vehicle's exact location when the plate snapshot was taken, reports the Kansas City Star.

Almost as good as GPS but without the trespass.

Permalink 08:31:22 am, by fourth, 35 words, 325 views   English (US)
Categories: General

New law review article on the excessive force injury requirement

08/03/12

Permalink 11:15:45 am, by fourth, 267 words, 375 views   English (US)
Categories: General

CA10: Facially overbroad SW gave no qualified immunity in § 1983 case

The search warrant in this case was not supported by probable cause, and it was so deficient that the good faith exception did not apply. Accordingly, there was no qualified immunity for the search in a § 1983 case. Armijo v. Perales, 688 F.3d 685 (10th Cir. 2012):

We conclude a reasonably well-trained officer would have known a search pursuant to such a facially overbroad warrant was illegal under clearly established law. As discussed earlier, the search warrant affidavit did not provide details of any crime other than the alleged larceny of the two firearms. Nothing in the affidavit linked Plaintiff to any impropriety regarding money or drugs. Yet the warrant inexplicably authorized a broad search for financial transaction documents, drugs, and other firearms. A reasonably well-trained officer would have known the affidavit failed to establish probable cause for crimes not even identified. Under the circumstances of this case, a reasonable officer would have known his actions were unlawful because, as the district court stated, "the search warrant was so facially overbroad and the affidavit so lacking in probable cause to support the broad search that the warrant purported to authorize that it could not be reasonably relied upon." (Appellants' App. at 470.)

Consider this: The government already gets all the breaks under the good faith exception. Remember Warren Burger's wish in Bivens that we don't need an exclusionary rule because there can be civil rights suits against the officers? If so, they have to have teeth. This shows it. Of course there still is the question of damages: How much damages can somebody who also might be a criminal really expect?

Permalink 09:42:48 am, by fourth, 156 words, 293 views   English (US)
Categories: General

E.D.Tex.: Slowing down for a cop on your bumper is not RS

A Texas DPS officer pulled up behind defendant and defendant slowed down. This did not create reasonable suspicion that he was impeding traffic. United States v. Coleman, 2012 U.S. Dist. LEXIS 107614 (E.D. Tex. July 10, 2012).*

The fact the DEA officer was not found credible during a prior state proceeding on a search when he was a Texas DPS officer did not amount to a Brady issue because he was not found to have lied or perjured himself. Besides the guilty plea waived the Brady claim. Brewer v. United States, 2012 U.S. Dist. LEXIS 107569 (N.D. Tex. July 20, 2012).*

The officer at defendant’s door could see crack cocaine on the table behind him in the house, and that justified a warrantless entry to preserve the evidence when it became apparent that defendant knew the officer’s intention. Alternatively, this was justified as a parole search. United States v. Patterson, 2012 U.S. Dist. LEXIS 106568 (W.D. Tenn. March 30, 2012).*

Permalink 09:13:19 am, by fourth, 228 words, 349 views   English (US)
Categories: General

FL3: Subsequent unlawful code enforcement entry after SW execution didn't void search under warrant

The Sheriff’s Office executed a drug search warrant and saw code violations. They called the code enforcement officers who came and entered illegally. The code enforcement entry didn’t vitiate the search warrant entry. State v. Marr, 95 So. 3d 394 (Fla. App. 3d DCA 2012):

The defendant moved to suppress all of the evidence seized by the Sherriff's Officers claiming that the search conducted was invalid due to the subsequent presence of Code Enforcement Officers on the scene. The trial court granted the motion and suppressed all of the evidence. We are in agreement with the State's position that, because the code enforcement inspection took place after the search warrant had been fully executed by the Sheriff's Officers and because the code enforcement inspection did not directly lead to the seizure of the contraband, the evidence seized by the Sheriff's Officers should not have been suppressed. ... See State v. Vargas, 667 So. 2d 175 (Fla. 1995); ... cf. Wilson v. Layne, 526 U.S. 603, 614, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999) (holding that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of execution of the warrant; not addressing whether the exclusionary rule would apply to any evidence discovered by the media).

Permalink 08:54:49 am, by fourth, 149 words, 304 views   English (US)
Categories: General

FL3: Defendant lost his REP in an object he gave to another to hide

Defendant waived his reasonable expectation of privacy in a closed container he gave to another to control and hide. J.W. v. State, 95 So. 3d 372 (Fla. App. 3d DCA 2012). [Note: This is a lot like Rawlings where the defendant gave his drugs to another when the police came in.]

Defendant’s 2255 contention that defense counsel was ineffective for not challenging the PC in the search warrant was way off the mark. The 2255 petition omitted plenty that the search warrant was based on, and there clearly was PC. United States v. Jeffery, 2012 U.S. Dist. LEXIS 105637 (E.D. La. July 30, 2012).*

On the totality of circumstances, the court finds that defendant voluntarily consented to a search of his house. He was warned of his right to refuse, and he apparently believed that what he had wouldn’t be found. United States v. Fernandez, 2012 U.S. Dist. LEXIS 107182 (S.D. Fla. July 24, 2012).*

Permalink 08:46:20 am, by fourth, 145 words, 427 views   English (US)
Categories: General

CA8: Officers probably could have relied on hot pursuit, but they had third-party consent to enter

Officers were conducting a buy/bust in Kansas City to arrest the seller, but he got into an apartment building before they could move in on him and ran to an upstairs apartment. The officers encountered the renter of the apartment who told them the only person who should be in there was her boyfriend, Anderson. She permitted them to enter, and it was valid. United States v. Anderson, 688 F.3d 339 (8th Cir. 2012).*

When defendant went on state parole, he signed a consent to parole search at anytime by any officer, and it was valid. The finding of drugs was in plain view. United States v. Patterson, 2012 U.S. Dist. LEXIS 105914 (W.D. Tenn. March 30, 2012).*

The evidence supported the trial court’s conclusion defendant consented to a blood draw against his attorney’s advice. State v. Jacobs, 2012 WI App 104, 344 Wis. 2d 142, 822 N.W.2d 885 (App. 2012).*

Permalink 08:31:28 am, by fourth, 219 words, 493 views   English (US)
Categories: General

D.Neb.: Boilerplate info in SW affidavit could be disregarded, but the remainder still showed PC

In a child pornography investigation, the government had information that specific CP files were downloaded from a “host computer” with a specific IP address. The government was able to link defendant to the host computer, and obtained a search warrant for it. While there were three pages of boilerplate about how P2P worked that could be disregarded, the meat of the affidavit clearly showed probable cause as to defendant’s computer. United States v. Gozola, 2012 U.S. Dist. LEXIS 106000 (D. Neb. July 10, 2012), adopted 2012 U.S. Dist. LEXIS 103925 (D. Minn. July 26, 2012):

Further, boilerplate language concerning previous investigations serves no purpose toward establishing probable cause and must be disregarded. Ybarra v. Illinois, 444 U.S. 85, 90, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (search must be supported by probable cause particularized to defendant); see also United States v. Weber, 923 F.2d 1338, 1345-46 (9th Cir. 1991) (boilerplate statements "may have added fat to the affidavit, but certainly no muscle").

Boilerplate will always be there because the affiant will always justifiably fear not giving enough for the search warrant. How many affidavits for search warrants have you read where the PC was in one or two sentences? The boilerplate is just prelude, but ultimately necessary to show the context. It can lead to cut and paste errors, but they will almost always be disregarded unless prejudice shown.

08/02/12

Permalink 10:10:18 am, by fourth, 246 words, 307 views   English (US)
Categories: General

D.Neb.: Defense counsel was not ineffective for not raising Jones GPS issues in 2009

Defense counsel was not ineffective for not raising Jones GPS issues in 2009 because it was novel at the time. United States v. Reaves, 2012 U.S. Dist. LEXIS 107278 (D. Neb. August 1, 2012):

Reaves cannot show that counsel's actions were unreasonable. Counsel is not deficient for raising an argument that may have had merit, but was "a wholly novel claim at the time." Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005).Reaves was arrested and went to trial in 2009. In 2009, neither the United States Supreme Court nor the Eighth Circuit had addressed whether GPS tracking of a cell phone constituted a search or seizure within the meaning of the Fourth Amendment. In 2012, four Justices of the United States Supreme Court noted that the availability of cell phones and other forms of technology that provide GPS information "will continue to shape the average person's expectations about the privacy of his or her daily movements" but the Court did not, in that case, have the opportunity to consider whether GPS tracking on such technology was a search or seizure. United States v. Jones, 132 S. Ct. 945, 963 (2012) (Alito, J. concurring in judgment). In 2009, raising GPS tracking of cell phones as a search or seizure was a novel claim, and counsel was not deficient for not raising it.

Defendant’s guilty plea waived the search issue for appeal, and defendant can’t show that he would have won it if was appealed. United States v. Chandler, 2012 U.S. Dist. LEXIS 107123 (E.D. Ark. August 1, 2012).*

Permalink 10:00:56 am, by fourth, 166 words, 338 views   English (US)
Categories: General

N.D.Mich.: Silhouette of a gun in pocket justifies frisk

A valid stop led to a plain view of the silhouette of a gun, and that justified seizing the gun. United States v. Schuett, 2012 U.S. Dist. LEXIS 106610 (N.D. Mich. July 31, 2012).*

Officers arriving at the scene saw defendant choking a woman who was calling for help. The entry was justified. After police were in the house, she consented to a search while defendant was in the police car. His request that they “secure the house” was not a sufficient statement under Randolph to be an objection to the search. United States v. Oakes, 2012 U.S. Dist. LEXIS 107023 (W.D. N.Y. May 15, 2012), adopted 2012 U.S. Dist. LEXIS 107035 (W.D. N.Y. July 31, 2012).

Nobody in the borrowed car had standing except the defendant who borrowed it from his girlfriend. The information in the radio call from the crime victims was generally consistent with the description of the vehicle and occupants when it was stopped. United States v. Burnett, 2012 U.S. Dist. LEXIS 107341 (E.D. Pa. August 1, 2012).*

Permalink 09:39:54 am, by fourth, 135 words, 334 views   English (US)
Categories: General

CA8: Third party consent seizure for later search was valid

Officers validly used third party consent to seize defendant’s computer for time to get a search warrant to search it. The seizure did not meaningly interfere with defendant’s possessory interest in the computer at the time. The computer was at the third party’s home and defendant didn’t have standing in the house. United States v. Beasley, 688 F.3d 523 (8th Cir. 2012).*

Officers had cause to stop defendant walking down the centerline of a sidewalk lined street. United States v. Schuett, 2012 U.S. Dist. LEXIS 106610 (E.D. July 31, 2012).*

Considering the deference required of a magistrate judge’s finding of probable cause, combined with the incomplete version of facts provided in the 2255, defense counsel was not ineffective for not challenging the search. United States v. Jeffery, 2012 U.S. Dist. LEXIS 105637 (E.D. La. July 30, 2012).*

08/01/12

Permalink 09:05:26 am, by fourth, 523 words, 369 views   English (US)
Categories: General

CA1: Length of trip adds nothing to standing

The long duration of a trip does not give the passenger any enhanced reasonable expectation of privacy in car, akin to an overnight guest. United States v. Symonevich, 688 F.3d 12 (1st Cir. 2012):

Symonevich argues in the alternative that the particular circumstances in this case gave him a reasonable expectation of privacy in the vehicle. Relying on our decision in United States v. Lochan, 674 F.2d 960, 963-65 (1st Cir. 1982), Symonevich argues that the duration of the trip between Maine and Massachusetts — a nearly six hour round-trip drive — was long enough that he had a reasonable expectation of privacy in the vehicle. We did say in Lochan that the fact of a long trip "would engender a slightly greater privacy expectation than would a short trip." Id. at 965. Symonevich says that vehicle passengers on long rides are akin to overnight guests and thus have a reasonable expectation of privacy in the vehicle. As he puts it, "[s]ociety would consider it reasonable to bring personal items along on such a lengthy car ride ... and recognize that this long of a trip would give rise to some expectation of privacy on the part of a passenger within the vehicle."

We are skeptical about the continued relevance of the type of duration argument that Symonevich makes.5 Since we decided Lochan, the Supreme Court has developed extensive case law on the automobile exception, circumscribing the amount of privacy one can expect in a vehicle and further differentiating searches of automobiles from searches of homes. Compare, e.g., New York v. Class, 475 U.S. 106, 112-113 (1986) ("One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view." (quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion) (internal quotation marks omitted)), and St. Hilaire v. City of Laconia, 71 F.3d 20, 28 n.6 (1st Cir. 1995) ("Fourth Amendment law ... recognizes a distinction between a person's home and a person's car. For example, the Fourth Amendment permits a slightly broader search pursuant to the arrest of the occupant of a vehicle and some warrantless searches of vehicles are permitted even if there are not emergency circumstances."), with Carter, 525 U.S. at 99 (Kennedy, J., concurring) ("The Fourth Amendment protects '[t]he right of the people to be secure in their ... houses,' and it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people." (alteration in original) (quoting U.S. Const. amend. IV)). Thus, any analogy between an automobile and a house is suspect. In any event, without categorically rejecting the relevance of the duration of a trip in an automobile to the reasonable expectation of privacy analysis, we conclude that the duration of the trip here, under all of the circumstances, did nothing to enhance Symonevich's expectation of privacy.

I applaud defense counsel for the ingenuity of this argument. We need more creative defense lawyers to keep Fourth Amendment rights viable.

Permalink 08:55:39 am, by fourth, 324 words, 470 views   English (US)
Categories: General

D.Neb.: “The Section 2703(d) standard is lower than that of probable cause.”

“The Section 2703(d) standard [for cell phone records data] is lower than that of probable cause.” “This Court agrees that the time may indeed have arrived to reevaluate the Fourth Amendment framework as it applies to new technologies. Nevertheless, under the existing Fourth Amendment jurisprudence, this Court finds Smith to require the result set forth in this opinion.” United States v. Valencia, 2012 U.S. Dist. LEXIS 105553 (D. Neb. July 30, 2012):

The Section 2703(d) standard is lower than that of probable cause. In re Application, 620 F.3d 304, 313 (3d Cir. 2010); United States v. Warshak, 631 F.3d 266, 291 (6th Cir. 2010). As the Third Circuit has described this standard, the Government must state "specific facts in its application[] that provide[] a basis for believing that [the person whose cell phone records are being sought] [is] a suspect and that cell phone records [are] relevant to solving the case." United States v. Powell, 444 F. App'x 517, 520 n.4 (3d Cir. 2011). Similarly, in a case involving an order under Section 2703(d) requiring an Internet service provider to reveal the Internet protocol address assigned to a particular screen name as well as other attendant information, the Tenth Circuit upheld the issuance of the order where it found that the details set forth in the application were specific and "certainly would lead to a reasonable suspicion" that [the person using the screen name for which the information was sought] was involved in [a crime]." United States v. Perrine, 518 F.3d 1196, 1203 (10th Cir. 2008).

The Application at issue in this matter crosses the Section 2703(d) bar. First, the Application includes numerous specific and articulable facts surrounding the armed robbery that occurred on October 1, 2010; the preparations made for that robbery; Defendant's alleged ties to the one known participant in the robbery (at the time of the cell-site Application); and Defendant's alleged skill set and modus operandi for stealing cars like the ones involved in the robbery.

United States v. Madison, 2012 U.S. Dist. LEXIS 105527 (S.D. Fla. July 30, 2012) (same).

Permalink 08:23:58 am, by fourth, 160 words, 359 views   English (US)
Categories: General

D.Neb.: Defendant's unrebutted testimony he was a bailee gave him standing

Defendant passenger’s unrebutted testimony he was a bailee of a car gave him standing. However, the driver also had a possessory interest and he had apparent authority to consent. United States v. Valencia, 2012 U.S. Dist. LEXIS 105554 (D. Neb. June 29, 2012).

Probable cause here is viewed through the lens of the good faith exception rather than free standing, and it is not so deficient that the warrant should not be sustained. Defendant fails in his burden of proof in showing that the good faith exception does not apply. United States v. Hurst, 2012 U.S. Dist. LEXIS 105168 (N.D. W.Va. June 22, 2012).*

Defendant argues that the district court’s ruling was too inspecific. It was valid either as a search or inventory. United States v. Kalu, 485 Fed. Appx. 366 (11th Cir. July 30, 2012).*

Defendant could only have understood that the officer wanted to search him for both drugs and weapons, and he consented. People v. Tully, 54 Cal. 4th 952, 282 P.3d 173, 145 Cal. Rptr. 3d 146 (2012).*

Permalink 07:56:47 am, by fourth, 175 words, 493 views   English (US)
Categories: General

CA6: Exigency argument here was factually tenuous and rejected

Defendant was arrested four blocks from his home and the officers had probable cause for his house but no search warrant. The government’s contention that somebody in the neighborhood would possibly give a “heads up” and evidence could be destroyed was too tenuous on the facts. “How would a person who witnessed a traffic stop a few blocks away know that it was a result of a controlled buy which occurred a few minutes earlier at that address?” [The court does not mention that this is a classic “police created exigency” argument.] United States v. Watson, 489 Fed. Appx. 922 (6th Cir. 2012).

Three officers testified they could smell marijuana coming from defendant’s car during the stop, and they were credited. That justified a dog sniff, alert, and search. United States v. Gardner, 2012 U.S. Dist. LEXIS 105024 (M.D. Ala. June 27, 2012), adopted 2012 U.S. Dist. LEXIS 104498 (M.D. Ala. July 27, 2012).*

An issue in the motion but not briefed is waived in the district court. United States v. Laughlin, 2012 U.S. Dist. LEXIS 104921 (N.D. Ga. July 6, 2012).*

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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:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

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

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)

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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  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)
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  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."
—Me

"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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