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): ...

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

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.

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).*

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.

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).*

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.