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.

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.

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.

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. ...

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.

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.”