Archives for: September 2012


Permalink 12:36:02 pm, by fourth, 82 words, 419 views   English (US)
Categories: General

OH9: State had to prove drug dog was certified

State’s failure to prove that the drug dog was certified was error. State v. Dixon, 2012 Ohio 4428, 2012 Ohio App. LEXIS 3893 (9th Dist. September 28, 2012).*

Defendant’s admission he had a roach in the ashtray was reasonable suspicion to extend the stop. State v. Ruffer, 2012 Ohio 4491, 2012 Ohio App. LEXIS 3927 (6th Dist. September 28, 2012).*

A doctor ordered by the State Medical Board for a mental examination is not a Fourth Amendment claim. Smith v. State Med. Bd. of Ohio, 2012 Ohio 4423, 2012 Ohio App. LEXIS 3874 (10th Dist. September 27, 2012).*

Permalink 10:26:20 am, by fourth, 409 words, 384 views   English (US)
Categories: General

ND: No exigency for a marijuana grow warrantless search

The evidence does not support the state’s contention that a warrantless search of the defendant’s house was required because of exigent circumstances. The timeline shows no exigency because the officers had reports of marijuana plants in the house for days and confirmed the day of the search. State v. Gagnon, 2012 ND 198, 821 N.W.2d 373 (September 25, 2012):

[*P14] The timeline of events in this case does not support the conclusion a warrantless search was necessary to avoid imminent destruction of evidence. Nason observed marijuana in Gagnon's window on May 28 and reported his observation to the BCI on May 29. When Niebuhr traveled to Douglas on June 3, marijuana plants were still in Gagnon's window. Following Niebuhr's initial observation, the plants remained in the window for approximately forty minutes while Niebuhr waited for additional officers. Nothing in the record indicates destruction of the plants became imminent when the additional officers arrived. To the contrary, Gagnon's failure to remove the marijuana from the window and Yellowbird's invitation that the officers "come in," indicate Gagnon and Yellowbird were unaware their residence was being observed by law enforcement until Niebuhr and Huber walked in their door. Finding a warrantless search was justified under these circumstances would permit law enforcement to create an exigency by deciding to approach the residence without a warrant despite ample opportunity to obtain one. In addition, nothing in the record indicates the safety of the officers or any other person was threatened before the officers approached Gagnon's residence. The State argues that after Niebuhr and Huber entered the residence, their safety was a concern because an unidentified person could have been inside. The presence of unidentified persons inside a residence always will be a possibility and that possibility, without more, does not create an exigency sufficient to justify a warrantless search. See United States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005) (holding a protective sweep of an office violated the Fourth Amendment when "there [was] no evidence that the officers had any articulable facts that an unknown individual might be in the office, or anywhere else in the house, ready to launch an attack"). This is especially true when any limitations on law enforcement entry would have and could have been eliminated during the ample time--here days--available to secure a warrant. Under the facts of this case, we conclude that neither the possibility of the destruction of evidence nor the need to protect officer safety were exigent circumstance justifying a warrantless search.

Permalink 10:01:20 am, by fourth, 182 words, 390 views   English (US)
Categories: General

S.D.Ga.: State requirement traffic stops be in marked cars not a Fourth Amendment issue

The fact Georgia law requires traffic stops be made by marked vehicles is not a Fourth Amendment issue. Defendant consented to a search of his person, so the plain feel doctrine does not apply. United States v. Foskey, 2012 U.S. Dist. LEXIS 139541 (S.D. Ga. August 30, 2012).*

Plaintiff contended that AT&T Mobility accidentally released cell phone records to her city employer, and the employer publicized them. The subpoena sought records on a number, and the time predated plaintiff’s possession of the number. She lacks standing as to the time before she had the number, but the case proceeds as to the latter. The city remains as a defendant, but an individual gets qualified immunity in the § 1983 claim. As to AT&T, the arbitration clause in the phone contract is binding. McGreal v. At&T Corp., 2012 U.S. Dist. LEXIS 140686 (N.D. Ill. September 24, 2012).*

The officer had reasonable suspicion for a patdown. Questions unrelated to the stop did not measurably increase the length of the stop. United States v. Brome, 2012 U.S. Dist. LEXIS 139495 (W.D. N.Y. September 5, 2012).*

Permalink 09:18:47 am, by fourth, 328 words, 743 views   English (US)
Categories: General

CA6: Ohio probation ignored court order releasing probationer because they disagreed with it; search was illegal

Ohio probation decided that defendant’s release from probation was legally erroneous, so it continued to attempt to supervise him. State officers never legally sought to keep control over him–they just ignored the court order. Defendant’s probations search was thus illegal. United States v. Starnes, 501 Fed. Appx. 379 (6th Cir. 2012):

=> Read more!

Permalink 09:10:25 am, by fourth, 245 words, 389 views   English (US)
Categories: General

D.V.I.: The fact a car search during a stop with RS comes up empty doesn't end the RS

Defendant was stopped for three minutes after an officer passed by and smelled marijuana, and stopped to talk to him and others. After a search of the trunk revealed nothing, defendant fled and dropped a gun in flight. The reasonable suspicion for the stop didn’t completely dissipate by the time flight occurred just because the search came up empty. United States v. Lima, 2012 U.S. Dist. LEXIS 137001 (D. V.I. September 25, 2012)*:

For the Court to enforce such an arbitrary and artificial end to a brief investigatory encounter that had just begun, as urged by Defendant Lima, and which suffered from no Fourth Amendment infirmity at its inception, would prevent the officers from doing their job—to assess the circumstances in light of their knowledge and experience and determine whether and how they should continue their investigation. The brevity of the Terry stop and the minimally intrusive nature of the investigation confirms that the officers "diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly ...." Sharpe, 470 U.S. at 686. The approximately three minute interaction between the police officers and the three men fits entirely within Terry's admonition that an investigatory stop be brief. Cf. United States v. Frost, 999 F.2d 737, 740-42 (3d Cir. 1993) (holding that a seizure lasting eighty minutes was acceptable under the circumstances, where the police had acted diligently). Defendant's attempt to parse an already brief and entirely legitimate investigatory stop into even smaller segments defies rationality.

Permalink 08:40:18 am, by fourth, 91 words, 357 views   English (US)
Categories: General

WSJ: "New Tracking Frontier: Your License Plates"

WSJ: New Tracking Frontier: Your License Plates by Julia Angwin and Jennifer Valentino-Devries:

Until recently it was far too expensive for police to track the locations of innocent people such as Mr. Katz-Lacabe. But as surveillance technologies decline in cost and grow in sophistication, police are rapidly adopting them. Private companies are joining, too. At least two start-up companies, both founded by 'repo men'—specialists in repossessing cars or property from deadbeats—are currently deploying camera-equipped cars nationwide to photograph people's license plates, hoping to profit from the data they collect.

Permalink 08:29:20 am, by fourth, 183 words, 388 views   English (US)
Categories: General

New law review article: "Property Expanding Fourth Amendment Protections: How the Common Law Doctrines of Ad Coelum and Abandonment Will Impact Fourth Amendment Searches after Jones"

Lance Polivy, Property Expanding Fourth Amendment Protections: How the Common Law Doctrines of Ad Coelum and Abandonment Will Impact Fourth Amendment Searches after Jones, posted on SSRN, September 29, 2012:


This note explores the majority opinion in United States v. Jones, which found that warrantless GPS tracking of a car for 28 days was a search within the meaning of the Fourth Amendment. The holding of Jones says that a physical trespass to a constitutionally enumerated area, with the intent to obtain information, which would have been considered a search at the time of the Founding, is a Fourth Amendment search. This note faithfully applies that holding to fly-over cases (in the context of domestic drones) and trash searches to determine if the majority in Jones implicitly overruled certain areas of Fourth Amendment jurisprudence and expanded Fourth Amendment protections. The note concludes that while Justice Alito’s concurrence feared that the majority opinion would constrict privacy rights, when the Jones holding is applied to certain categories of Fourth Amendment searches — ancient property doctrine will actually increase individual privacy protection from modern law enforcement surveillance techniques.

Permalink 08:26:52 am, by fourth, 253 words, 347 views   English (US)
Categories: General

New law review article: "Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule"

Eugene R. Milhizer, Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule, 211 Military Law Review 211-262 (2012):


In this article, I undertake to debunk five great myths about the Fourth Amendment Exclusionary Rule. First, I debunk the myth that the contemporary exclusionary rule is constitutionally required in order to achieve several objectives, which include but are not limited to deterring future police misconduct. Second, I discredit the assertion that even if the rule is intended only to deter future police misconduct, it is justified because it efficiently accomplishes this objective. Third, I disagree with the contention that even if the present rule is too inefficient in deterring future police to justify its continuation, it can be sufficiently improved by a modification that accounts for the seriousness of the crime or the dangerousness of the criminal. Fourth, I oppose the argument that even if deterrence is insufficient to justify the rule, the rule’s objectives can be expanded to encompass and promote noble aspirations beyond police deterrence, which thereby justify the rule. Fifth and finally, I dispute the moral claim that even if none of the utilitarian justifications for the rule are sufficient, the rule is needed to preserve the integrity of the criminal justice system. Based on all the foregoing, I conclude that the exclusionary rule should be rescinded and replaced with an approach that punishes those who violate the Fourth Amendment while avoiding actions, such as suppression, which can frustrate justice by undermining the efficacy and legitimacy and the criminal trials.


Permalink 04:44:47 pm, by fourth, 94 words, 397 views   English (US)
Categories: General "Phone location data privacy issue hits federal court Tuesday" Phone location data privacy issue hits federal court Tuesday by John P. Mello Jr.:

The U.S. government will be taking a second crack Tuesday at overturning a lower court ruling that's preventing police from obtaining cell phone location records from two wireless carriers without a search warrant.

Now before the U.S. Court of Appeals in New Orleans, the government's attempt to obtain 60 days of records from the carriers as part of a "routine" law enforcement investigation was previously rebuffed by a magistrate judge in a federal district court in Texas.

Permalink 09:42:04 am, by fourth, 172 words, 403 views   English (US)
Categories: General

TX8: Pre-Gant excessive SI not suppressed

Defendant was stopped for not signaling a turn, and outstanding warrants were found. The search incident of the vehicle was unconstitutional, but it was permitted at the time (2007), so it was not suppressed. State v. Elias, 2012 Tex. App. LEXIS 8094 (Tex. App. – El Paso September 26, 2012).*

A mere allegation that defense counsel did not file a motion to suppress is inadequate. It must be shown that it mattered. “The record does not explain why trial counsel did not file a motion to suppress or present to the jury the argument Jane did not have authority to consent to the search. ... Allegations of ineffective assistance of counsel must be firmly founded in the record.” Kane v. State, 2012 Tex. App. LEXIS 8124 (Tex. App. – Amarillo September 26, 2012).*

Defendant was stopped when a game warden saw him fire a deer rifle from his vehicle. The rifle was in plain view at the time of the stop. He was a felon in possession, and the stop was valid. United States v. Lee, 2012 U.S. Dist. LEXIS 139724 (N.D. Okla. September 28, 2012).*

Permalink 09:40:28 am, by fourth, 144 words, 343 views   English (US)
Categories: General

M.D.Fla.: Defendant's mental illness not exploited to get his consent; he was lucid

Officers did not exploit defendant’s mental illness to get him to consent. He was lucid at the time he consented. United States v. Vangasbeck, 2012 U.S. Dist. LEXIS 140005 (M.D. Fla. September 28, 2012):

Further, although the agents were aware of the Defendant's mental illness, either just prior to or during the interview, they clearly satisfied themselves that the Defendant was lucid. During the interview, the agents questioned the Defendant to determine if he was receiving treatment, if he was hearing voices during the interview itself and the last time he heard voices. Put simply, the agents satisfied themselves that the Defendant was not suffering symptoms, was aware of his surroundings, and was answering their questions in an appropriate manner. This is what the Court would expect a reasonable officer to do once the officer became aware that a defendant may have a mental illness.

Permalink 09:16:11 am, by fourth, 172 words, 378 views   English (US)
Categories: General

IN: Defendant abandoned his car and the mobile meth lab inside

Defendant fled from police when they attempted to stop him, so he abandoned his car and the mobile methamphetamine lab inside. Hall v. State, 2012 Ind. App. LEXIS 487 (September 25, 2012)*:

As to the nature of the offenses, Hall led police on a high-speed chase while operating a volatile methamphetamine lab in his vehicle. While Hall points out that no one was injured, that is more attributable to luck and the officers' skill in responding to the situation than anything that Hall did. Hall also argues that his offenses were all part of one series of events, but he does not explain the nexus between his decision to drive with a suspended license and his decision to manufacture methamphetamine. His decision to do both at the same time served only to create a more dangerous situation.

Defendant’s stop for a traffic offense was not unreasonably long where his paperwork was not complete and it took longer because of that. His consent during the stop was valid. State v. Jones, 2012 Tenn. Crim. App. LEXIS 770 (September 26, 2012).*

Permalink 09:03:01 am, by fourth, 164 words, 304 views   English (US)
Categories: General

TX4: Priors for DUI and PC for new one supported warrantless blood draw under TX law

Defendant had two priors for DUI, and he was arrested for a third with probable cause. Under Texas law, refusal of a breath test could require a blood draw, and defendant refused. There was probable cause, and the blood draw was not unreasonable. Aviles v. State, 385 S.W.3d 110 (Tex. App. – San Antonio 2012).*

A radio report of a red Cadillac being involved in an armed robbery led to officers seeing one a few blocks from the robbery, and it was somewhat elusive and stopped and the occupants fled. There was probable cause for the stop. United States v. Bynum, 2012 U.S. Dist. LEXIS 139386 (D. Minn. August 30, 2012).*

The record supports the finding that defendant consented to the search of his car that led to a valid inventory, too. On appeal, the appellate court noted the trial court failed to impose a mandatory DL suspension, so the case is remanded to imposed that in the judgment. State v. Arrazzaq, 2012 Ohio 4365, 2012 Ohio App. LEXIS 3856 (1st Dist. September 26, 2012).*


Permalink 01:32:34 pm, by fourth, 215 words, 407 views   English (US)
Categories: General

Today's privacy news ACLU, Warning of 'Total Surveillance State,' Seeks Access to License Plate Reader Data by Sheri Qualters:

The American Civil Liberties Union of Massachusetts is suing the Justice Department and the Department of Homeland Security, seeking information about the government's use of automatic license plate readers. The ACLU has filed public records requests concerning the readers in more than 30 states, but this is the first lawsuit to emerge, said an ACLU staff attorney.

ABAJ: Federal Warrantless Surveillance Has Increased 60% Since 2009, Says ACLU by Stephanie Francis Ward:

Federal warrantless surveillance using "pen register" and "trap and trace" technology increased by 60 percent between 2009 and 2011, according to a post published today on the American Civil Liberties Union’s Free Future blog.

Using Justice Department documents that the ACLU sued to obtain, the organization focused on federal law enforcement orders for technology that tracks incoming and outgoing phone numbers, emails and other Internet communications.

WaPo: A third of public fears police use of drones in US for surveillance will erode their privacy by AP:

WASHINGTON — More than a third of Americans worry their privacy will suffer if drones like those used to spy on U.S. enemies overseas become the latest police tool for tracking suspected criminals at home, according to an Associated Press-National Constitution Center poll.

Permalink 09:54:54 am, by fourth, 322 words, 536 views   English (US)
Categories: General

OR: Knock-and-talk at defendant’s backdoor violated curtilage and was unreasonable

Knock-and-talk at defendant’s backdoor violated curtilage and was unreasonable. State v. Unger, 252 Ore. App. 478, 287 P.3d 1196 (2012):

In this case, the officers entered defendant's backyard and, after obtaining defendant's consent, entered and searched his house. For the reasons explained below, we conclude that (1) the officers' entry into defendant's backyard violated defendant's Article I, section 9, rights because it was a search and it was not justified by either a warrant or an exception to the warrant requirement, and (2) the officers' entry into and search of defendant's house also violated Article I, section 9, because, although defendant consented to the entry and search, his consent was invalid because it was the product of illegal police conduct, specifically, the illegal entry into his backyard.

We turn first to the officers' entry into defendant's backyard. As described, the officers went into defendant's backyard and knocked at his back door. Under Oregon law, "intrusions onto residential curtilage are deemed to be trespasses unless the entry is 'privileged or [has the occupant's] express or implied consent.'" State v. Somfleth, 168 Ore. App. 414, 424-25, 8 P.3d 221 (2000) (quoting State v. Ohling, 70 Ore. App. 249, 252, 688 P.2d 1384, rev den, 298 Ore. 334 (1984)). "[A]bsent evidence of an intent to exclude, an occupant impliedly consents to people walking to the front door and knocking on it, because of social and legal norms of behavior." State v. Portrey, 134 Ore. App. 460, 464, 896 P.2d 7 (1995); see also Ohling, 70 Ore. App. at 253. However, "[a]pproaches to points * * * other than a front door * * * are generally not regarded as being approaches to which the occupant has implicitly consented." Pierce, 226 Ore. App. at 343. Accordingly, we have held that, as a general matter, an officer may enter a front yard and knock on a front door, but an officer may not enter a backyard and knock on a back door. Ohling, 70 Ore. App. at 253. Such an entry is a trespass and constitutes a search for the purposes of Article I, section 9. Ohling, 70 Ore. App. at 252.

Permalink 09:36:55 am, by fourth, 140 words, 439 views   English (US)
Categories: General

D.Kan.: Search warrant required for government access to email, following Warshak

Under Warshak, a search warrant is required to access email. In re Search Warrants for Info. Associated with Target Email Address, 2012 U.S. Dist. LEXIS 138465 (D. Kan. September 21, 2012):

The Court finds the rationale set forth in Warshak persuasive and therefore holds that an individual has a reasonable expectation of privacy in emails or faxes stored with, sent to, or received thorough an electronic communications service provider. Accordingly, the Fourth Amendment protections, including a warrant "particularly describing" the places to be searched and communications to be seized, apply to a search warrant seeking such communications. A warrant seeking stored electronic communications such as emails or faxes therefore should be subject to the same basic requirements of any search warrant: it must be based on probable cause, meet particularity requirements, be reasonable in nature of breadth, and be supported by the affidavit.

Permalink 09:31:17 am, by fourth, 212 words, 329 views   English (US)
Categories: General

S.D.N.Y.: Pants could be searched incident to arrest when defendant arrested in his underwear

Defendant was arrested in his underwear, and it was reasonable for officers to search his pants before he put them on. A USB drive and his NY DL were found. His iPhone and iPod were also lawfully seized because they were within three feet of him when he was arrested. United States v. Meregildo, 883 F. Supp. 2d 523 (S.D. N.Y. 2012).

Defendant was stopped as matching the description of a burglar who had just left a dwelling and was seen on the street blocks away when the officer found him, matching the description, and having the first name of the burglar who was known to the victim. An object of the theft reported to the police was a bank card. In a search incident, the victim’s bank card was found in his pocket. When the victim was presented with the opportunity to make an ID, he said that the defendant was not the one. There was still probable cause for the search incident to arrest. The victim’s refusal to make an ID didn’t require the questioning end. Southall v. State, 2012 Alas. App. LEXIS 147 (September 26, 2012).*

A supervisor set up this roadblock, not a line officer, and that was sufficient under state law. Williams v. State, 317 Ga. App. 658, 732 S.E.2d 531 (2012).*


Permalink 07:46:08 am, by fourth, 180 words, 427 views   English (US)
Categories: General

LA2: Anonymous tip man was attempting to sell gun and badge wasn't RS

Defendant was stopped on an anonymous tip that he was attempting to sell a gun and police badge. The stop was without reasonable suspicion because the anonymous informant’s tip was not corroborated as to any criminality. Possession of a gun and badge alone is not a crime, and the police had no evidence he was a felon when the stop occurred. State v. Brown, 105 So. 3d 734 (La.App. 2 Cir. 2012)*:

Furthermore, at the time of the incident, the officers had no knowledge that the defendant was a convicted felon; they had no information which might indicate that he did not have a right to possess a gun. Attempting to sell a gun by a private citizen, who has a right to possess a gun, to another person is not illegal. Additionally, at the time of the defendant's arrest, there was no statute in effect which criminalized the mere possession or sale of a badge.2 Accordingly, we find that the trial court did not err in concluding that the anonymous tip did not justify the stop and detention of the defendant.

Permalink 07:26:37 am, by fourth, 135 words, 411 views   English (US)
Categories: General

C.D.Ill.: "Residence" in SW means "premises"

Surveying the cases, the general rule is that “residence” in a search warrant is synonymous with “premises” and includes outbuildings and vehicles on the premises. Defendant’s truck on the street was separately subjected to a dog alert, and that was enough for it. United States v. Hibbs, 905 F. Supp. 2d 862 (C.D. Ill. 2012).

Defendant’s and passenger’s travel plans and history revealed during a general conversation while waiting for his DL information to come back was reasonable suspicion. State v. Stover, 388 S.W.3d 138 (Mo. 2012).*

Defendant filed a motion to suppress GPS and medical records, and the government responded that it would only use the evidence for impeachment if the defendant testified, which it could do. This made the motions moot. United States v. Baumgartner, 2012 U.S. Dist. LEXIS 136949 (E.D. Tenn. August 30, 2012).*

Permalink 12:02:00 am, by fourth, 150 words, 406 views   English (US)
Categories: General

New law review article: "Texting While Driving Meets the Fourth Amendment: Deterring Both Texting and Warrantless Cell Phone Searches"

New law review article: Adam M. Gershowitz, Texting While Driving Meets the Fourth Amendment: Deterring Both Texting and Warrantless Cell Phone Searches, 54 Ariz. L. Rev. 577 (2012):

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. Trading a confession for a search will encourage guilty pleas while reducing invasive, warrantless cell phone searches that are currently authorized under the Fourth Amendment.


Permalink 08:13:15 am, by fourth, 129 words, 447 views   English (US)
Categories: General

N.D.Cal.: Reasonable suspicion not required for border search of ship

Reasonable suspicion is not required for a border search of a ship entering port and just crossing the border. United States v. Rachid, 2012 U.S. Dist. LEXIS 137020 (N.D. Cal. September 24, 2012).*

Customs inspection of a parcel at the post office of the recipient was the functional equivalent of the border where the package was in the same condition as when it crossed the border from Hong Kong. United States v. 100 Counterfeit Cisco GLC SX MM Computer Parts, 2012 U.S. Dist. LEXIS 136782 (D.N.H. September 25, 2012).*

Officers in the area of a drug house where numerous arrests had occurred who smelled marijuana around the defendant had reasonable suspicion to detain him when he was seen leaving the place. United States v. Lima, 2012 U.S. Dist. LEXIS 137001 (D. V.I. September 25, 2012).*

Permalink 07:38:08 am, by fourth, 553 words, 377 views   English (US)
Categories: General

W.D.Ky.: Ex-wife's conclusory statement was insufficient to show PC for child porn, and GFE didn't apply

The affidavit alleging there was child pornography on defendant’s computer was based on almost nonexistent inferences and a conclusory statement from his ex-wife that was adopted by the officer. The court finds that probable cause was lacking and the good faith exception was insufficient to support it because probable cause was wholly lacking and it could not be relied on. United States v. Hicks, 2012 U.S. Dist. LEXIS 137189 (W.D. Ky. September 25, 2012)*:

Viewed through the lens of Gates, Hicks' ex-wife's statement raises questions as to both veracity and basis of knowledge. The affidavit contains no statement or explanation why Detective Carter found Ms. Hicks' statement credible or why he believed the information she provided was reliable. Cf. United States v. Smith, 182 F.3d 473 (6th Cir. 1999) (finding an affiant's statement clearly indicating why an informant was credible satisfied the court's inquiry into the informant's reliability); United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. 2000) (finding that it may be sufficient to establish probable cause if police can independently corroborate information received from an informant whose reliability is not established). The affidavit is also devoid of any statement indicating the basis for Ms. Hicks' knowledge or any information that would corroborate her statement. In short, the affidavit provides no more than an uncorroborated, baseless suggestion by Hicks' ex-wife that "it would be reasonable to believe" Hicks' computer had been exposed to child pornography.

The conclusion not to accord significant weight to Ms. Hicks' tip is consistent with case law in this Circuit. For example, in United States v. McNally, the Sixth Circuit found an informant established a basis for her knowledge regarding information provided to police where she "acquired the information firsthand based on her personal relationship with the defendant and provided substantial and credible detail". 327 F. App'x at 557. Specifically, the informant in McNally had been romantically involved with the defendant for six months immediately prior; had spent considerable time at his residence; had personally seen a pornography file folder title "child kiddie" on his computer (which was the only folder he had locked); and had observed in his possession "numerous photographs of multiple underage females posing in sexual situations, including fondling each other's breasts and genitals." Id. at 555, 557. Further, police independently corroborated much of the information the informant provided. Id. at 557. Therefore, despite that the informant's credibility had not been established, the court found that under the totality of the circumstances, the basis for the informant's knowledge together with independent police corroboration was sufficient to establish probable cause. Id. at 558. Additionally, under these circumstances, the court found that even if the affidavit lacked probable cause, it was not "so lacking in indicia of probable cause" to defeat the Leon's good-faith exception. Id. (referencing Leon, 468 U.S. at 897).

Detective Carter's affidavit offers no connection with or to Hicks' laptop computer other than Ms. Hicks' statement. The affidavit offers no information establishing the reliability of Ms. Hick's suggestions or on what knowledge that suggestion was based. In short, Detective Carter's affidavit fails to indicate "why evidence of illegal activity will be found 'in a particular place'"--Hicks' laptop computer--as well as to establish a "nexus between the place to be searched and the evidence sought." United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)).

Permalink 06:57:10 am, by fourth, 45 words, 635 views   English (US)
Categories: General

Cert grant: Missouri v. McNeeley: Is a warrantless blood draw permissible in DUI cases because of exigency?

Missouri v. McNeeley, 11-1425, SCOTUSBlog here:

Issue: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.


Permalink 07:19:52 am, by fourth, 276 words, 653 views   English (US)
Categories: General

IN: Accessing text messages of seized cell phone was unreasonable where the phone did not relate to the arrest

Police warrantless accessing of defendant’s text messages when he was arrested for neglect of a dependent that revealed text messages about drug dealing was unreasonable. There was also a three month delay in reaccessing them. Kirk v. State, 2012 Ind. App. LEXIS 479 (September 24, 2012):

By requiring the need for a warrant in order to search a cell phone, our court has recognized that the seizing of the contents of such items are deserving of protection and court oversight. See State v. Lucas, 859 N.E.2d 1244, 1251 (Ind. Ct. App. 2007) (officers should have obtained search warrant for locked box just as they had done to investigate contents of cell phone), trans. denied; Smith, 713 N.E.2d at 345 (cell phones and evidence flowing therefrom should not have been admitted into evidence when State failed to justify warrantless search). The State did not make clear the reason for the search of Kirk's private cell phone. Kirk was not seen talking on his phone or even holding his phone prior to his arrest. Here, Kirk was arrested for neglect of a dependent and public intoxication; neither crime of which clearly implicated use of a cell phone.

Although Detective Schwomeyer was within his rights to confiscate the cell phone during the search incident to arrest, there was no real law enforcement need to open the cell phone, press a button to access the inbox, and read six to eight text messages. The State attempts to justify the search of the cell phone under the Indiana constitution by stating that the search intruded only a small amount into Kirk's ordinary activities and that law enforcement needs were great. On balance, we are not persuaded.

Permalink 07:11:57 am, by fourth, 139 words, 349 views   English (US)
Categories: General

PA: Probation officers needed RS to made an investigative detention of a probationer on the street

Two probation officers were patrolling in a high crime area, and they saw defendant probationer. They stopped the car and spoke to him, identifying themselves. He backed away, and they told him not to run. He started to and they Tasered him. That was an investigative detention without reasonable suspicion. Commonwealth v. Chambers, 2012 PA Super 202, 55 A.3d 1208 (2012).*

Defendant’s 2255 claim that defense counsel was ineffective for not filing a motion to suppress was denied because he did and it was heard. Owens v. United States, 2012 U.S. Dist. LEXIS 136351 (C.D. Ill. September 24, 2012).*

Officers complied with the knock and announce requirement of 18 U.S.C. § 3109 by knocking and getting no answer and weapons were reasonably believed to be inside. Some officers went in through a bedroom window. United States v. Cintora-Gonzalez, 2012 U.S. Dist. LEXIS 136323 (N.D. Ga. August 10, 2012).*

Permalink 07:05:13 am, by fourth, 181 words, 452 views   English (US)
Categories: General

E.D.Mo.: Smell of a meth lab coming from defendant’s apartment discovered at a knock-and-talk was exigent circumstances for entry

Smell of a meth lab coming from defendant’s apartment discovered at a knock-and-talk was exigent circumstances for an entry. United States v. Reed, 2012 U.S. Dist. LEXIS 136161 (E.D. Mo. August 14, 2012)*:

Here, the witness and both the testifying Officers smelled the strong ether-like chemical odor, and the fan in defendant's bathroom window was blowing air into the corridor from which the odor emanated. The Officers tried the knock and talk approach discussed above; however, there was no response to the knocking at the front door, the light went off in the bathroom, people were heard talking inside the backdoor but there was still no response to the knocking and announcing "Police" or to the warning that if they did not open the door, the officers would kick it in. It is reasonable that an experienced officer such as Det. Burton would conclude that the residence contained a methamphetamine lab or methamphetamine manufacturing of some sort and that exigent circumstances were present. United States v. Lloyd, 396 F.3d 948, 954 (8th Cir. 2005). The forced entry was lawful under the totality of the circumstances.

Permalink 07:00:52 am, by fourth, 271 words, 377 views   English (US)
Categories: General

N.D.Ill.: Warrant may not have been specific enough, but it was limited at search and inevitable discovery saved it

It appeared that the officer did his due diligence in getting a search warrant for defendant’s property based on an IP address obtaining child pornography. The address the IP address came back to was the second floor of a specific address. At the time the warrant was issued, it wasn’t known that the building was really two residences (although it is suggested by the inclusion of “Floor 2”). On the record before the court, it could not be determined whether the due diligence was sufficient, but the inevitable discovery doctrine was good enough to save the warrant. Also, the officers only searched the place they wanted when they found two residences. United States v. Mejia, 2012 U.S. Dist. LEXIS 135852 (N.D. Ill. September 24, 2012)*:

Not only did probable cause exist for a search of the Canas/Mejia residence, but the magistrate judge had already concluded as much and issued a warrant based on essentially the same information. The new information discovered during the search did nothing to destroy that probable cause—it only made clear that the second floor was the appropriate target of the search. Thus, there is no question that a warrant for that apartment would have been issued had the officers requested an amended warrant. Had the warrant been limited to the second floor, the same area would have been searched and the same evidence seized, and Mejia "would have been no better off." Sims, 553 F.3d at 584. Therefore the government has met its burden to establish by a preponderance of the evidence that the information Mejia seeks to suppress inevitably would have been discovered by lawful means.

Permalink 06:14:27 am, by fourth, 170 words, 311 views   English (US)
Categories: General

Volokh Conspiracy: "Do Users of Wi-Fi Networks Have Fourth Amendment Rights Against Government Interception?"

Volokh Conspiracy: Do Users of Wi-Fi Networks Have Fourth Amendment Rights Against Government Interception? by Orin Kerr:

My earlier post on how the Wiretap Act applies to wireless networks triggered a lot of comments on how the Fourth Amendment might apply, so I thought I would have a post specifically on the matter. Here’s the question: Does governmental interception and analysis of the contents of a person’s wi-fi traffic constitute a Fourth Amendment search? And does it depend on whether the traffic is encrypted or unencrypted?

The answer turns out to be surprisingly murky. Because the Wiretap Act has been thought to protect wireless networks, the Fourth Amendment issue has not come up: There’s a surprising lack of caselaw on it. Second, there are plausible arguments on either side of the debate both for encrypted and unencrypted transmissions. So I wanted to run through the arguments and then ask which side readers find more persuasive. I’ll start with unencrypted communications and then turn to encrypted communications.


Permalink 08:46:51 am, by fourth, 162 words, 464 views   English (US)
Categories: General

NJ: No qualified immunity for arresting documentary filmmaker recording police-gang interaction

Plaintiff is a documentary filmmaker who was filming gang members' interaction with police, and he was arrested by police after conceding to a police demand to move. There was no qualified immunity for arresting a filmmaker recording the police. Ramos v. Flowers, 429 N.J. Super. 13, 56 A.3d 869 (2012):

[W]e conclude that a reasonable police officer in 2006 could not have believed he had the absolute right to preclude Ramos from videotaping any gang activities or any interaction of the police with gang members for the purposes of making a documentary film on that topic. The motion judge erred in holding otherwise.

Defendant’s walking between subway cars justified his stop. United States v. Miles, 2012 U.S. Dist. LEXIS 135055 (S.D. N.Y. September 20, 2012).*

A fraud investigator had probable cause to stop and detain defendant who was using a likely stolen or counterfeit credit card to buy high dollar gift cards in a store. State v. Moore, 2012 Ohio 4315, 2012 Ohio App. LEXIS 3787 (2d Dist. September 21, 2012).*

Permalink 08:33:48 am, by fourth, 239 words, 361 views   English (US)
Categories: General

AR: Use of a drug dog after consent refused while awaiting DL computer check reasonable

Use of a drug dog after the driver refused to consent to a search while they were awaiting the results of the DL check was reasonable. Jackson v. State, 2012 Ark. App. 508, 2012 Ark. App. LEXIS 636 (September 19, 2012):

Here, the purpose of the traffic stop was ongoing. Trooper Behnke testified he was still waiting for the results of a database search on the appellant. While waiting for those results, he asked for consent to search the vehicle, which the appellant refused to give. The trooper then deployed the drug dog. Officers do not need additional suspicion to allow the dog to sniff the exterior of the car. Cain v. State, 2010 Ark. App. 30, __ S.W.3d __. Moreover, our supreme court has found that "a stop is not complete until the warning citation and other documents are delivered back to the driver." Menne v. State, 2012 Ark. 37, at 5-6, __ S.W.3d __, __. Because Trooper Behnke was still waiting for the criminal-history check when the drug dog was deployed, his routine tasks were not concluded. He was also processing the warning citation for the traffic violation. While we are troubled by both the scope and basis of the officer's investigation—as pointed out in the concurring opinion—we find that the legitimate purpose of the stop was ongoing when the drug dog alerted to narcotics in the vehicle. Because we find that the legitimate purpose of the stop was ongoing, additional reasonable suspicion was not required.

Permalink 12:02:01 am, by fourth, 57 words, 347 views   English (US)
Categories: General "N.J. bans big smiles from driver's license photos" N.J. bans big smiles from driver's license photos by The Associated Press:

New Jersey motorists have another reason to frown about their driver's license photos.

The state has banned motorists from making big smiles because such expressions don't work with facial recognition software.

The policy has gone mostly unnoticed since taking effect in January.


Permalink 10:06:55 am, by fourth, 68 words, 367 views   English (US)
Categories: General

MO: Currency could be seized found during SW for drugs

In executing a search warrant for drugs, officers found currency, and they could seize it. State v. Robinson, 2012 Mo. App. LEXIS 1177 (September 20, 2012).

Defendant’s car parked on a commercial parking lot was still “readily moveable” for purposes of the automobile exception. State v. Lundquist, 48 Kan. App. 2d 180, 286 P.3d 232 (2012).*

Statute requires a turn signal before turning, so the stop was valid. Commonwealth v. Fowler, 2012 Ky. App. LEXIS 187 (September 21, 2012).*

Permalink 08:56:53 am, by fourth, 116 words, 437 views   English (US)
Categories: General

NYTimes Editorial: "When GPS Tracking Violates Privacy Rights"

NYTimes Editorial: When GPS Tracking Violates Privacy Rights:

For the right to personal privacy to survive in America in this digital age, courts must be meticulous in applying longstanding privacy protections to new technology. This did not happen in an unfortunate ruling last month by a three-judge panel of the United States Court of Appeals for the Sixth Circuit.

The case concerned a drug conviction based on information about the defendant’s location that the government acquired from a cellphone he carried on a three-day road trip in a motor home. The data, apparently obtained with a phone company’s help, led to a warrantless search of the motor home and the seizure of incriminating evidence.

Permalink 08:26:20 am, by fourth, 117 words, 400 views   English (US)
Categories: General

S.D.Ga.: Drug deal was reasonable suspicion for pat down

The fact defendant was involved in a drug deal was reasonable suspicion for a patdown for weapons because of the likelihood a drug dealer will be armed, in the officer’s experience. United States v. Collins, 2012 U.S. Dist. LEXIS 134899 (S.D. Ga. August 30, 2012).*

Defendant contended that he was not subjected to a patdown before the officer reached into his pocket retrieving ammunition, but the video did not contradict the officer’s testimony, so the finding of the district court is affirmed. United States v. Wiley, 493 Fed. Appx. 481 (5th Cir. 2012).*

Towing bankruptcy debtor’s car by a private towing company did not involve the Fourth Amendment. In re Guancione, 2012 U.S. Dist. LEXIS 135613 (N.D. Cal. September 21, 2012).*


Permalink 10:04:40 am, by fourth, 115 words, 430 views   English (US)
Categories: General

CA3: Protective sweep can extend to looking under a mattress because it is a common hiding place

A protective sweep can extend to looking under a mattress because it is a common hiding place. United States v. Snard, 497 Fed. Appx. 228 (3d Cir. 2012).

Officers had sufficient reason to believe that defendant was at his house and it was his based on the address in the arrest warrant confirmed by another officer. Although it was 12:30 am, there were lights on and cars in the driveway and people could be heard inside. The arrest was thus reasonable. Carpenter v. State, 974 N.E.2d 569 (Ind. App. 2012).*

Officers had a description of man fleeing from a shooting and defendant met that description, so that was reasonable suspicion. State v. Hodge, 2012 Ohio 4306, 2012 Ohio App. LEXIS 3777 (10th Dist. September 20, 2012).*

Permalink 09:42:38 am, by fourth, 150 words, 345 views   English (US)
Categories: General

MN: Stairway of a duplex is a common area, not curtilage

Defendant had no reasonable expectation of privacy in the stairwell of his duplex because it was a common area, not curtilage. Shell casings seen there were in plain view. State v. Milton, 821 N.W.2d 789 (Minn. 2012).

Defendant had no standing to challenge the search of the place and cell phones found there because he had no legitimate connection to it. He did, however, have standing to contest the search of four bags he left there when the police were on notice that they were his bags such that the owner of the place could not consent to them. United States v. Hollister, 2012 U.S. Dist. LEXIS 134091 (D. Minn. July 23, 2012).*

When officers knocked on the door, they were told “this is a house of peace” and were invited in. Once inside, she consented to a search of the premises. United States v. Sroufe, 2012 U.S. Dist. LEXIS 134619 (N.D. Ga. July 16, 2012).*


Permalink 11:44:47 am, by fourth, 169 words, 509 views   English (US)
Categories: General

N.D.Ind.: FTA arrest justified SI that produced counterfeit money in an envelope

Defendant’s arrest for FTA justified a search incident of an envelope in which counterfeit currency was found. “This case is indistinguishable from Robinson. The Court can find no fault with West's search of Scott and seizure of the suspected counterfeit currency. Because the search and seizure involved no violation of Scott's constitutional rights, the evidence seized from him will not be suppressed. How far Scott's possession of the counterfeit currency goes to prove he produced it with the intent to defraud is a question for trial.” United States v. Scott, 2012 U.S. Dist. LEXIS 133901 (N.D. Ind. September 18, 2012).*

Stop of a car in the vicinity of gunshots heard by the officer and reported to 911 was with reasonable suspicion because it matched the description in the 911 call. United States v. Cusick, 2012 U.S. Dist. LEXIS 133688 (M.D. Fla. May 10, 2012), adopted 2012 U.S. Dist. LEXIS 133687 (M.D. Fla. September 19, 2012).*

Corroborated predictive facts from the CI was reasonable suspicion. United States v. La Fleur, 2012 U.S. Dist. LEXIS 134461 (D. Ariz. September 20, 2012).*

Permalink 09:46:05 am, by fourth, 196 words, 370 views   English (US)
Categories: General

D.N.H.: Officers had PC for automobile exception but sought a warrant seven days later; still reasonable

Officers had probable cause for an automobile search, but they towed the car and searched it seven days later. The delay was not unreasonable. United States v. Silva, 2012 DNH 164, 2012 U.S. Dist. LEXIS 134151 (D. N.H. September 19, 2012)*:

But the police officers did not search defendant's car pursuant to the automobile exception. Instead, they towed the car to a secure lot and applied for a search warrant. The warrant application was presented to the court four days later, on July 23, 2010, a warrant issued, and it was executed on July 26, 2010. That seven (7) day delay in obtaining and executing a search warrant was reasonable under all the circumstances and provides defendant with no grounds upon which to seek suppression of the evidence found during the search. See United States v. McHugh, 769 F.2d 860 (1st Cir. 1985) (seven day delay between car's seizure and search not unreasonable).

The PC would not get stale. Either the suspected stuff is still in the car or not. If it were left on the street unlocked for seven days, that’s different. Should the prosecution be penalized for seeking the extra protection of a search warrant for the citizen? I personally don’t think so.

Permalink 12:42:09 am, by fourth, 85 words, 483 views   English (US)
Categories: General

Forbes: "Will 'Drones' Outflank the Fourth Amendment?"

Forbes: Will "Drones" Outflank the Fourth Amendment? by John Villasenor:

In a word, no. The Fourth Amendment, which provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” has been a cornerstone of privacy from government intrusion since 1791. It has served us well across more than two centuries of technology advances, and there is no reason to expect that it will suddenly lose its protective power when domestic use of unmanned aircraft becomes common.

Permalink 12:37:48 am, by fourth, 103 words, 414 views   English (US)
Categories: General "LAPD Joins Feds In Skirting Fourth Amendment With Cell Phone Tracking Devices" LAPD Joins Feds In Skirting Fourth Amendment With Cell Phone Tracking Devices:

from the rules-are-for-the-people-on-the-other-side-of-the-thin-blue-line dept

About this time last year, details emerged on a new cell phone tracking device being used by the FBI to triangulate suspects' locations via their cell phone signals. One of these, the StingRay, mimics mobile phone towers, allowing the feds to triangulate someone's position using signal strength. It had been used successfully to bring Daniel Rigmaiden, wanted for fraud, into custody.

Rigmaiden (who is representing himself) was curious as to how he was located and a question on due process was posed by the judge: ...


Permalink 08:03:33 am, by fourth, 118 words, 538 views   English (US)
Categories: General

CA4: No standing re GPS in cargo van belonging to no defendant

None of the defendants had standing to challenge placement of a GPS device on a cargo van that belonged to none of them. United States v. Martinez-Turcio, 494 Fed. Appx. 354 (4th Cir. 2012).*

An isolated comment that the defendant might want to talk to an attorney before consenting to a search of his computer did not justify a mistrial. (It was also inherent in the defense questioning.) State v. Abraham, 2012 Ohio 4248, 2012 Ohio App. LEXIS 3732 (9th Dist. September 19, 2012).*

Defendant’s furtive movements in the car and then hesitancy in getting out of the car and putting his hands on his head justified a protective frisk. The trial court erred in suppressing. State v. Wade, 2012 Ohio 4255, 2012 Ohio App. LEXIS 3737 (9th Dist. September 19, 2012).*

Permalink 07:38:57 am, by fourth, 198 words, 327 views   English (US)
Categories: General

M.D.Fla.: Consent was spontaneous, but where DL was not clear

While the record is not clear that the defendant’s DL remained with the officer when consent was granted, it was seemingly spontaneous and that supported voluntariness. United States v. Cusick, 2012 U.S. Dist. LEXIS 133687 (M.D. Fla. September 19, 2012).* Note: The court minimizes the factual issue of the DL being in the officer’s hand on the question of “free to leave.” With the PATRIOT Act and everybody seemingly requiring a driver’s license to conduct everyday business, one simply is not free to leave when his DL is in the officer’s hand. This is as much or more a seizure of the person as seizure of the suitcase of a traveler in Place interferes with travel. Indeed, if you asked officers what they would do if the motorist drove off without the license, it is a virtual certainty that they would stop the motorist for driving without a license or for just being suspicious. This is important. Watch for it.

“A novel [Fourth Amendment] issue alone cannot be the basis of finding complexity” for excess compensation for appointed counsel under the Criminal Justice Act. United States v. Brandwein, 2012 U.S. Dist. LEXIS 133926 (W.D. Mo. September 19, 2012).*

Permalink 07:22:11 am, by fourth, 318 words, 387 views   English (US)
Categories: General

CA11: Slight delay at a toll booth to record LPN of vehicles paying with $100 bills was not a "seizure"

Florida once required the LPN of vehicles paid with large denomination bills at toll booths, and the motorist wasn’t released until the number was recorded. This was not a Fourth Amendment seizure. That procedure has since been discontinued. Chandler v. Sec'y of the Fla. DOT, 695 F.3d 1194 (11th Cir. 2012)*:

The Chandlers' assertions of delay in their release from the toll booth are insufficient to allege a Fourth Amendment seizure. There are no allegations in the complaint that allow us to conclude that the Chandlers were "forced" to submit to the allegedly unconstitutional delay. They do not allege that they were forced to drive on the turnpike. They chose to drive on the turnpike. They do not allege that they had no notice they would have to stop at toll booths and pay tolls. In choosing to drive on a toll road, they implicitly consented to stopping at toll booths (which stops they concede are not unconstitutional detentions) and paying tolls to enjoy the privilege of using the toll road.

The Chandlers have not alleged that they were forced to pay their tolls with large-denomination bills, thereby subjecting themselves to whatever delay was caused by completion of the Bill Detection Report. They chose to pay their toll with large-denomination bills. Nor have they alleged that they asked to withdraw the large report-triggering bill in favor of a smaller delay-free bill and were denied that opportunity.

Ultimately, the Chandlers merely allege that their choice to pay their toll with a large-denomination bill occasioned an unspecified delay in their ability to proceed through the toll booth. The delay was caused by the toll booth operator's completion of the Bill Detection Report. The claim that this delay is an unconstitutional detention is predicated upon the Chandlers' assumption that they have an absolute right to immediately proceed through the toll booth upon tendering the toll in any denomination. This assumption is unfounded.

Permalink 07:11:38 am, by fourth, 103 words, 391 views   English (US)
Categories: General

WA: Retroactive reasonable suspicion for a strip search rejected

Defendant’s arrest for disorderly conduct was valid. While she was at the police station, the police contended that her nervousness justified a strip search under state statute, but the court found that this was essentially retroactive reasonable suspicion, and refused to find that it justified the strip search. State v. Barron, __ Wash. App. __, 284 P.3d 231 (2012).*

Defendant’s allegedly giving a false identity when he was stopped was reasonable suspicion for a detention and then probable cause for arrest. State v. Matthews, 100 So. 3d 890 (La. App. 4 Cir. 2012).*

Crossing the fog line twice justified a stop. State v. McGee, 2012 Tenn. Crim. App. LEXIS 724 (September 13, 2012).*

Permalink 12:02:38 am, by fourth, 96 words, 477 views   English (US)
Categories: General

Ron Paul's "Statement on HR 5949, the FISA Amendments Reauthorization Act"

The Moral Liberal: Statement on HR 5949, the FISA Amendments Reauthorization Act by Congressman Ron Paul

Mr. Speaker: I rise in strong opposition to the reauthorization of the 2008 FISA Amendments Act, as it violates the Fourth Amendment of our Constitution. Supporters of this reauthorization claim that the United States will be more vulnerable if the government is not allowed to monitor citizens without a warrant. I would argue that we are more vulnerable if we do allow the government to monitor Americans without a warrant. Nothing makes us more vulnerable than allowing the Constitution to be violated.


Permalink 08:01:00 am, by fourth, 85 words, 562 views   English (US)
Categories: General

NYTimes Editorial: "California and the Fourth Amendment"

NYTimes Editorial: California and the Fourth Amendment:

On Wednesday, the United States Court of Appeals for the Ninth Circuit is scheduled to reconsider whether California violates the Fourth Amendment’s prohibition against searches and seizures by requiring police to take DNA samples from people arrested but not yet convicted of felonies. California’s law is ostensibly aimed at accurately identifying those arrested, solving crimes and exonerating the innocent. It is also, unfortunately, unconstitutional.

The Ninth Circuit has a link on its homepage for this case.

Permalink 07:57:37 am, by fourth, 121 words, 374 views   English (US)
Categories: General "Cops Can Use Your Friends on Facebook – for Now" Cops Can Use Your Friends on Facebook – for Now by Michele Bowman:

Law enforcement pulled another surprising move recently in the case of Melvin Colon, an alleged gangster from the Bronx, when cops convinced one of his Facebook friends to let them have access to Colon’s page. As a result, cops secured photos and posts that helped to indict him for gang-related racketeering, murder, and drug charges.

Colon fought the indictment, brandishing his Fourth Amendment right to privacy and arguing that he had a legitimate expectation that his friends would keep his posts about rival gang members and threats of violence to themselves.

Wrong, said U.S. District Judge William H. Pauley III in an order dated August 10. ...

Permalink 07:45:16 am, by fourth, 166 words, 376 views   English (US)
Categories: General

E.D.Tenn.: Presence of another person likely with firearms justified protective sweep

Information to the arresting officers that there were likely guns and another person on the premises justified a protective sweep along with the arrest. United States v. Cody, 2012 U.S. Dist. LEXIS 132914 (E.D. Tenn. August 9, 2012).

Defendant waived his argument regarding the admissibility of his cell phone records because he failed to file a pretrial motion to suppress the evidence, Rule 12(b)(3)(c). Also, he never asked the district court or the court of appeals to relieve him from the waiver, and he had not provided any explanation for why he failed to file a motion to suppress the evidence from his cell phone. The court declined to consider his ineffective assistance challenge on direct appeal, and he was relegated to a 2255 for that. United States v. Saucedo, 489 Fed. Appx. 3902 (11th Cir. 2012).*

In a search warrant for harboring illegal aliens for purposes of commercial sex, the government showed probable cause for the search warrant. United States v. Delarosa, 2012 U.S. Dist. LEXIS 132470 (N.D. Ga. August 27, 2012).*

Permalink 07:29:54 am, by fourth, 168 words, 391 views   English (US)
Categories: General

D.Mass.: GPS cases went both ways, so GFE applies to pre-Jones GPS use

The law of GPS was developing before Jones, and it can’t be said that officers were reckless pre-Jones to justify the exclusionary rule. Therefore, no exclusion. United States v. Rose, 914 F. Supp. 2d 15 (D. Mass. 2012)*:

Under that standard [Davis], the last resort of suppression is not warranted here because the agents did not "exhibit deliberate, reckless, or grossly negligent disregard" for the constitutional rights of the defendants. At the time agents installed three of the four GPS devices, circuit courts were unanimous in holding that GPS tracking did not so much as implicate, never mind violate, the Fourth Amendment. They installed the fourth GPS device in November 2010, one week after another Session of this Court rejected Maynard as contrary to precedent and unappealing as a matter of principle. Sparks, 750 F. Supp. 2d at 393-96. In relying on the consensus of lower courts and a common-sense reading of Supreme Court doctrine, the agents here acted in good faith and, as a result, the exclusionary rule does not apply.

Permalink 07:26:37 am, by fourth, 71 words, 391 views   English (US)
Categories: General

NYLJ: "Wiretaps and Fourth Amendment: Lessons From the Galleon Prosecutions"

NYLJ: Wiretaps and Fourth Amendment: Lessons From the Galleon Prosecutions by Robert C. Gottlieb and Derrelle M. Janey

Robert C. Gottlieb, a founding member of Gottlieb & Gordon, and Derrelle M. Janey, an associate with the firm, write that law enforcement seems committed to employing electronic surveillance to develop evidence within the hedge fund and hedge fund-related community; therefore, there are several key points for the criminal defense bar to consider.


Permalink 11:49:43 am, by fourth, 154 words, 1869 views   English (US)
Categories: General "Big Brother is in your car" Big Brother is in your car / If you're on the road, the government likely knows where. Surveillance of drivers is increasing, and appears legal by Jon Campbell:

If you’re traveling on public roadways in 2012, there’s a very good chance you’re being watched, by one government agency or another. License plate readers (LPRs) are proliferating at a rapid clip, and they’re being used by law enforcement at virtually every level of government.

Once used mostly by local cops to catch car thieves and unregistered drivers, LPR systems have morphed into what privacy activists call an increasingly pervasive network of mass surveillance. Databases all over the country maintained by local police departments – and now federal agencies too — contain hundreds of millions of location scans, and provide a searchable record of the movements of all kinds of drivers, from murderers to pizza delivery guys, and from soccer moms to serial rapists.

Permalink 06:57:01 am, by fourth, 153 words, 1733 views   English (US)
Categories: General

AR: PO can permit LEO to conduct parole search

Defendant was stopped in a car and subjected to a parole search after his parole officer was called. She did not perform the search, and PO’s can permit LEO’s to conduct the search. Johnson v. State, 2012 Ark. App. 476, 2012 Ark. App. LEXIS 604 (September 12, 2012).

Defendant who spent most weeknights with his girlfriend and kept clothes there had standing to challenge a search of her apartment. Her consent was invalid based on 14 officers in the lobby and a threat of prosecution if she didn’t consent. People v Perez, 2012 NY Slip Op 22256, 37 Misc. 3d 734, 951 N.Y.S.2d 335 (Kings. Co. 2012).*

Assuming, without deciding, that the search warrant was issued without probable cause, the warrant was executed in good faith under Leon because of the breadth of the investigation they conducted which corroborated the CIs [and isn’t that part of PC?]. United States v. Miller, 2012 U.S. Dist. LEXIS 131567 (M.D. N.C. September 14, 2012).*

Permalink 06:37:48 am, by fourth, 222 words, 1806 views   English (US)
Categories: General

D.Utah: Brother shows REP in his brother's apartment because of "familial ties"

Defendant had a reasonable expectation of privacy in his brother’s basement apartment because of their family ties. “[U]nder the totality of the circumstances, Carlos has a similar expectation of privacy in his brother Eduardo's basement apartment because the court finds sufficient indications of Carlos' acceptance into the household of Eduardo in addition to the fact that their familial tie as brothers ‘is clearly a relationship which pre-dates the apartment's use for illegal conduct.’ Heath, 259 F.3d at 533.” United States v. Miranda-Cortez, 2012 U.S. Dist. LEXIS 131560 (D. Utah September 14, 2012).*

Standing for return of property under Rule 41(g) is low. Wiebe v. National Security Agency, 2012 U.S. Dist. LEXIS 131708 (D. Md. September 14, 2012):

Initially, the Government contends that Petitioners lack standing to pursue their claims because they have no possessory interest in government property. That argument is unavailing. Rule 41(g) petitioners have standing if they are able to show a "sufficient interest" in the seized items. Matthews v. United States, 917 F. Supp. 1090, 1104 (E.D. Va. 1996). This is a "comparatively low" threshold, merely requiring the movants to allege ownership and to provide some evidence of ownership. Id.; see also United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1057 (9th Cir. 1994) (stating that although a party need not have an "ownership" interest in seized property to have standing, mere unexplained possession of property is insufficient).

Permalink 06:08:26 am, by fourth, 459 words, 1815 views   English (US)
Categories: General

N.D.Ind.: Long protective weapons search can be based on reasonable suspicion and without an arrest

The officer had probable cause to believe defendant wasn’t staying in his own lane, and the officer also had reasonable suspicion of drugs based on a CI’s statement. After the stop, a “protective sweep” of the car was justified under Long. United States v. Sellers, 897 F. Supp. 2d 754 (N.D. Ind. 2012):

There appears to be some ambiguity in circumstances, like the case at hand, where the suspect has been removed from the car (like the defendant in Long), but has not been handcuffed or arrested (like the defendant in Gant). The Sixth Circuit discussed this issue in United States v. Lurry:

During a Terry stop, Long allows officers to search an automobile's passenger compartment for weapons if the officers have a reasonable belief—"based on 'specific and articulable facts' "—that the suspect is dangerous and may "gain immediate control of weapons." Long, 463 U.S. at 1049 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). This rule recognizes that "investigative detentions involving suspects in vehicles are especially fraught with danger to police officers." Id. at 1047. Although Long does not apply where the suspect is handcuffed and under arrest, see Arizona v. Gant, 556 U.S. 332, 351 (2009), it applies where the suspect is not secured and might imminently reenter the car. Long, 463 U.S. at 1051.

No. 11-5604, 2012 WL 2337329, at *2 (6th Cir. June 20, 2012) (emphasis added). Additionally, the Sixth Circuit, in Lurry, and other circuits have held that Gant does not apply when a suspect has not been arrested. See id. at 3 ("Gant does not apply to cases where the suspect has not yet been arrested."); see also United States v. Hagins, 452 F. App'x 141, 145-46 (3d. Cir. 2011) (concluding that Gant did not apply in factual situation similar to the case at hand, with the exception that the defendant in Hagins had been handcuffed outside the vehicle); United States v. Griffin, 589 F.3d 148, 154 n.8 (4th Cir. 2009).

In this case, defendant was not handcuffed, was not under arrest, and was not in the back of the squad car when the search for the gun took place. The officers knew that defendant was the target of a DEA drug investigation and that defendant had a gun in his car. Defendant could have broken away from police and grabbed the gun out of the car. Officer Geyer knew exactly where the gun was, and retrieved the gun from that location. Under the totality of the circumstances, the officers in this case had reasonable suspicion that defendant may have been able to gain immediate control of a weapon, King, 332 F. App'x at 336-37, and thus were justified in carrying out this minimally invasive search to ensure their own safety.

Note: The phrase "protective sweep" came from Buie and premises. Over time, the phrase evolved to encompass Long protective searches of cars.


Permalink 07:34:41 am, by fourth, 137 words, 1838 views   English (US)
Categories: General

AZ: No standing in GPS placed in employer's van defendant drove

Under Jones, defendant had no standing to challenge placement of a GPS device on his employer’s vehicle to track him. Failure to argue below a Jones trespass on installation of a GPS transmitter on defendant’s employer’s van was waiver for appeal. State v. Estrella, 230 Ariz. 401, 286 P.3d 150 (App. 2012).*

There was reasonable suspicion for a defendant’s stop for showing up at a house at 3 am and yelling for somebody unknown to come out, and the homeowner came out and the defendant left “like a bat out of hell,” and defendant had done this before. State v. Rissley, 2012 WI App 112, 344 Wis. 2d 422, 824 N.W.2d 853 (Ct. App. 2012).*

Defendant was neither a tenant nor an overnight guest, so he did not have standing in the apartment searched. Windom v. State, 379 S.W.3d 463 (Tex. App. – Beaumont 2012).*

Permalink 07:24:25 am, by fourth, 340 words, 728 views   English (US)
Categories: General

ID: Dog's failure to alert when there is already PC does not per se show dissipation of the PC

Defendant admitted in his motion to suppress that the officers had probable cause when he was stopped after a dog alert, and that was binding on appeal. The preserved issue is whether probable cause dissipated with the failure of the dog to alert, and the court finds that it did not. That is only a factor in the totality of circumstances. State v. Anderson, 154 Idaho 703, 302 P.3d 328 (2012):

=> Read more!

Permalink 06:16:28 am, by fourth, 139 words, 458 views   English (US)
Categories: General

OH8: Defendant shoving something into boot before frisk justified frisk of boot

Defendant’s patdown was justified, and something was shoved into defendant’s boot which justified the officer feeling it, too, and it was drugs by plain feel. State v. Hall, 2012 Ohio 4155, 2012 Ohio App. LEXIS 3658 (8th Cir. September 13, 2012).*

Defendant matched the description of a person flashing a gun. When officers saw defendant, they didn’t see a gun. When finally stopped, defendant had no gun, but they retraced his steps finding the gun. Defendant’s unprovoked flight was a factor. Commonwealth v. Walls, 2012 PA Super 197, 53 A.3d 889 (2012).* [Opinion mentions but doesn’t rely on the fact the gun was discarded in flight and not during a stop.]

Defendant’s patdown was justified by his matching the description of one of two men trying to break into apartments in the 911 caller victim’s building. Commonwealth v. Guess, 2012 PA Super 196, 53 A.3d 895 (2012).*

Permalink 05:57:18 am, by fourth, 137 words, 398 views   English (US)
Categories: General

IN: Odor of marijuana from car and chewing was PC

Odor of marijuana and defendant’s chewing when the car door was opened was probable cause for a warrantless search because he might be destroying drugs. Gaines v. State, 973 N.E.2d 1239 (Ind. App. 2012).*

Defendant was a police officer who had an accident in a patrol car killing two motorcyclists. Drawing his blood under the implied consent statute by medical personnel at the hospital was not contrary to protocol or unreliable. State v. Bisard, 973 N.E.2d 1229 (Ind. App. 2012).*

Defendant’s car was searched with probable cause for threats on the Governor when it was found near the Governor’s Mansion. Text messages sent by the defendant were incriminating. Once the car was found nearby, there was a reasonable probability the car contained evidence of crime. United States v. Baker, 2012 U.S. Dist. LEXIS 130108 (D. Utah September 11, 2012).*

Permalink 05:44:32 am, by fourth, 104 words, 360 views   English (US)
Categories: General

LA5: SDT for defendant's cell phone records was not a search requiring PC or a SW

Access to defendant’s cell phone records by subpoena duces tecum was not a search under Smith v. Maryland. As to the Stored Communications Act, suppression is not a statutory remedy, even if it was violated. State v. Bone, 107 So. 3d 49 (La. App. 5 Cir. 2012).*

The informant’s credibility issues were adequately explained to the magistrate. State v. Clement, 101 So. 3d 460 (La. App. 5 Cir. 2012).*

Defendant was walking in the street, and the officer stopped to tell him to walk on the sidewalk, and defendant ran, so he gave chase. Defendant abandoned a baseball size baggie of cocaine. Barber v. State, 317 Ga. App. 600, 732 S.E.2d 125 (2012).*

Permalink 05:18:31 am, by fourth, 139 words, 337 views   English (US)
Categories: General

OR: That defendant was a likely meth user was not PC he was in possession at the time he was stopped

Defendant’s nervousness and signs of bruxism (grinding of teeth) that he was a methamphetamine user was not justification for a search of the car for evidence he was in possession at that time. State v. Farrar, 2012 Ore. App. LEXIS 1126 (September 12, 2012).*

The fact that defendant's roommate had displayed suicidal behavior before being handcuffed outside did not justify an emergency aid entry into the apartment under the Oregon Constitution because the officer had no specific information that the roommate had hurt someone or that defendant was injured or in some kind of danger. The illegal entry into defendant's apartment by reaching in and knocking on his bedroom door was causally connected to defendant's consent to search because the officer was able to contact defendant and seek consent only by effecting the warrantless entry. State v. Lorenzo, 252 Ore. App. 256, 287 P.3d 1124 (2012).*

Permalink 05:10:03 am, by fourth, 158 words, 294 views   English (US)
Categories: General

W.D.La.: Lack of video goes to credibility, but it's not determinative

The lack of a video goes to the officer’s credibility, but here there wasn’t enough to undermine his credibility. The length of the stop was reasonable. “In sum, the court finds that the troopers' actions demonstrated a ‘graduated response to emerging facts, [which] were reasonable under the totality of the circumstances, and did not unconstitutionally extend [Platt's] detention.’” United States v. Platt, 2012 U.S. Dist. LEXIS 130141 (W.D. La. August 6, 2012).*

“The court finds that the inventory search in this case was conducted according to standardized procedures that sufficiently limited Aikens' discretion in order to prevent the search from becoming a general investigatory search for incriminating evidence.” This is even though the officer started off asking for consent, which was denied, and he said he was going to search the car for anything illegal, and then he corrected himself and said for things of value. United States v. Carroll, 2012 U.S. Dist. LEXIS 131000 (W.D. Va. September 12, 2012).*


Permalink 11:47:19 am, by fourth, 176 words, 538 views   English (US)
Categories: General "Texas Congressman pushing restrictions on law enforcement's use of drones without warrant" Texas Congressman pushing restrictions on law enforcement's use of drones without warrant,

A Texas Congressman has introduced legislation to restrict the use of aerial drones by federal law enforcement without a warrant:

Here's a description of the legislation from a recent report (pdf) by the Congressional Research Service:

Representative Ted Poe’s Preserving American Privacy Act of 2012 (H.R. 6199) would restrict the domestic use of drones. It would only permit use of drones by law enforcement pursuant to a warrant and in the investigation of a felony. Any search would be subject to the same limitations and exceptions as apply in the jurisdiction where the search is conducted. There is an express exclusionary provision so that evidence obtained in violation of the act would be inadmissible in a federal criminal prosecution. Such evidence would also be excluded from administrative hearings. Additionally, no federal agency may permit a private entity from [sic] monitoring an individual. The bill has an exception for searches conducted within 25 miles of the national border.

Permalink 08:52:37 am, by fourth, 299 words, 467 views   English (US)
Categories: General

D.Minn.: Consent to seizure wouldn't be valid, either

The USMJ’s recommendation that the court suppress search and seizure of four bags based on somebody else’s consent is sustained. The government’s argument that a seizure first was valid isn’t sustained either. United States v. Hollister, 2012 U.S. Dist. LEXIS 131098 (D. Minn. September 14, 2012):

Judge Leung recommends suppressing the contents of the bags because "officers could not reasonably assume that L.M. had authority to consent to the opening of the four bags." R&R at 35. In its objection, the government argues that L.M. had authority to consent to the seizure of the bags, relying mainly on United States v. Wiest, 596 F.3d 906 (8th Cir. 2010). But whether L.M. had authority to consent to the seizure of the bags is not the issue; the issue is whether L.M. had authority to consent to a search of the bags.4 As the Eighth Circuit has recently observed, courts must be careful to distinguish between searches and seizures:

"Although our Fourth Amendment cases sometimes refer indiscriminately to searches and seizures, there are important differences between the two .... The Amendment protects two different interests of the citizen — the interest in retaining possession of property and the interest in maintaining personal privacy. A seizure threatens the former, a search the latter. As a matter of timing, a seizure is usually preceded by a search, but when a container is involved the converse is often true. Significantly, the two protected interests are not always present to the same extent; for example, the seizure of a locked suitcase does not necessarily compromise the secrecy of its contents, and the search of a stopped vehicle does not necessarily deprive its owner of possession."

United States v. Clutter, 674 F.3d 980, 984 (8th Cir. 2012) (quoting Texas v. Brown, 460 U.S. 730, 747-48 (1983) (Stevens, J., concurring)).


Permalink 09:42:52 am, by fourth, 122 words, 501 views   English (US)
Categories: General

FL4: With PC, car search can occur before or after arrest

During a traffic stop, the officer smelled marijuana and called for backup. When backup arrived, they searched the car. It didn’t matter whether the search occurred before or after the arrest. State v. Sarria, 2012 Fla. App. LEXIS 15323 (Fla. App. 4th DCA September 12, 2012) (on rehearing).

There were questions of fact for trial on due process and Fourth Amendment claims for delaying departure of an ambulance after an accidental shooting that led to a death for delaying medical treatment and unreasonable detention and force at the scene with the witnesses to the occurrence, including pepper spraying and assault with a baton. (Interesting case on qualified immunity.) Maxwell v. County of San Diego, 697 F.3d 941 (9th Cir. 2012),* withdrawn and substituted opinion here posted February 15, 2013.

Permalink 08:58:21 am, by fourth, 218 words, 328 views   English (US)
Categories: General

S.D.N.Y.: Even if warrant was required for access to CSLI, exigent circumstances here

In a case of a missing teenager alleged to have hooked up with the defendant and suspected to be forced to work as a prostitute in NYC, a warrant was not required for access to defendant’s cell phone location records. Moreover, exigent circumstances justified access to the location records. United States v. Gilliam, 2012 U.S. Dist. LEXIS 130248 (S.D. N.Y. September 12, 2012):

MSP's actions were instead justified under the Stored Communications Act, 18 U.S.C. § 1701 et seq. The statute permits a service provider to disclose customer records "to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." 18 U.S.C. § 2702(c)(4).

Under the Fourth Amendment, warrantless government searches and seizures are reasonable and, thus, do not violate the Amendment, when they are required by exigent circumstances. See Kentucky v. King, 131 S. Ct. 1849, 1856-57, 179 L. Ed. 2d 865 (2011); United States v. Klump, 536 F.3d 113, 117 (2d Cir. 2008).

The exigent circumstances exception applies where a reasonable and experienced officer would have had reason to believe that there was an urgent need to act. It is an objective test requiring an evaluation of the circumstances in their totality. United States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008).

Permalink 08:49:06 am, by fourth, 413 words, 557 views   English (US)
Categories: General

CA3: The exclusionary rule can apply to deportation cases where there is a widespread or egregious violation of the Fourth Amendment

The exclusionary rule can apply to deportation cases where there is widespread or an egregious violation of the Fourth Amendment. “Lopez-Mendoza sanctions the application of the exclusionary rule in cases where constitutional violations by immigration officers are ‘widespread’ or evidence has been obtained as a result of ‘egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.’ Lopez-Mendoza, 468 U.S. at 1050-51.” Appellant should have been able to prove it. Oliva-Ramos v. Attorney General of the United States, 694 F.3d 259 (3d Cir. 2012):

The BIA rejected Oliva-Ramos's reliance on Lopez-Mendoza because it regarded the "comments from a plurality of the Supreme Court [to be] obiter dictum." The BIA explained that the Court had not yet found circumstances sufficient to apply the exclusionary rule in removal proceedings, and the Board's "own precedents ... recognize no such exception to the inapplicability of the exclusionary rule premised on widespread Fourth Amendment violations." There are several flaws in the BIA's approach.

The BIA leapfrogged over the serious concerns it should have addressed under Lopez-Mendoza about the manner in which the evidence was obtained here. See Almeida-Amaral v. Gonzales, 461 F.3d 231, 234-35 (2d Cir. 2006); United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th Cir. 2005); Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994); cf United States v. Stabile, 633 F.3d 219, 243 (3d Cir. 2011) ("Typically, the exclusionary rule requires that we suppress evidence obtained as a result of an illegal search.").

We must reject the BIA's reading of Lopez-Mendoza that would only permit suppression of evidence based on "fundamentally unfair" circumstances in violation of the due process clause of the Fifth Amendment. The BIA's analysis of Lopez-Mendoza views that opinion only as a plurality. In doing so, the BIA ignored the fact that almost all of the Justices on the Court agreed that the exclusionary rule should apply to some extent in removal hearings. As we explained above, eight of the nine Justices agreed with that proposition. Four would have limited the rule to instances of widespread or egregious violations of law by Government officials, and four others would apply the rule without that condition. See Puc-Ruiz v. Holder, 629 F.3d 771, 778 n.2 (8th Cir. 2010) (citing Lopez-Mendoza, 468 U.S. at 1051-61 (Brennan, White, Marshall, and Stevens, JJ., dissenting)); see also Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 n.2 (9th Cir. 1994) (same).

Moreover, even if the pronouncement in Lopez-Mendoza was dicta as the BIA labeled it, Supreme Court dicta should not be so cavalierly cast aside. ...

Permalink 08:17:28 am, by fourth, 143 words, 339 views   English (US)
Categories: General

PCWorld: "FBI rolling out high-tech 'Big Brother' monitoring system"

PCWorld: FBI rolling out high-tech 'Big Brother' monitoring system by David Jeffers:

Thanks to the FBI, the United States government will soon have a nationwide system in place capable of monitoring and identifying “persons of interest” virtually anywhere. The Next Generation Identification (NGI) system is designed to aid the FBI in tracking down and capturing criminals.

Fingerprints have been the primary unique identifier for law enforcement agencies of all levels for a century. Even with billions of samples on record, no two fingerprints have ever been found to be alike.

Fingerprints are just one unique identifier, though, and much of the accumulated fingerprint data is not merged and easily accessible. NGI will include voice recognition, iris and retina scan data, facial recognition, DNA analysis, and more in an automated system designed to help law enforcement identify and capture suspects more efficiently and effectively.

Permalink 12:08:19 am, by fourth, 131 words, 422 views   English (US)
Categories: General

TX1: Attic was subject to protective sweep where there was information about attic and defendant was arrested at attic stairs

Where defendant had been hiding in the attic before the police arrived, and his wife told the police that he said he’d hide there and likely kept firearms and contraband there, a protective sweep of the attic was proper where defendant was arrested at the attic stairs. It was thus an “immediately adjoining” area subject to protective sweep. Richert v. State, 2012 Tex. App. LEXIS 7719 (Tex. App. – Houston (1st Dist.) August 30, 2012).

The magistrate heard testimony from the CI on the probable cause, and there was PC for issuance of the warrant. United States v. Peoples, 2012 U.S. Dist. LEXIS 129276 (W.D. N.Y. August 7, 2012).*

Officers had probable cause to arrest for attempted bank robbery because the defendants matched the description. United States v. DeVincenzi, 2012 U.S. Dist. LEXIS 129216 (D. Mass. July 19, 2012).*

Permalink 12:01:24 am, by fourth, 89 words, 409 views   English (US)
Categories: General

dailykos: "The Intrusion On A Mentally Ill Individual's Fourth Amendment Rights Is Substantial..."

dailykos: The Intrusion On A Mentally Ill Individual's Fourth Amendment Rights Is Substantial... by jpmassar:

"The intrusion on a mentally ill individual's Fourth Amendment rights is substantial..."

So says the US Department of Justice, in a just-issued report criticizing the Portland, Oregon Police Department's use of force as it revolves around the mentally ill. A number of incidents are cited in detail in the document, describing police actions taken after officers knew or could reasonably determine that their target was mentally ill.

Here are excerpts from the detailed cases: ...


Permalink 04:04:05 pm, by fourth, 469 words, 514 views   English (US)
Categories: General

D.Minn.: School officials forcing student to give up password to Facebook account violated First and Fourth Amendment

A Minnesota school district violated the First and Fourth Amendment by forcing a student to give up the student’s Facebook password so the school officials could search the Facebook account for messages they didn’t like. The right was clearly established, and there is no qualified immunity. R.S. v. Minnewaska Area Sch. Dist. No. 2149, MINNESOTA, 894 F. Supp. 2d 1128 (D. Minn. 2012):

Such cases demonstrate that the existence of the narrow exceptions recognized in D.J.M. does not render unclear the established general rule against school regulation of merely inappropriate or offensive out-of-school speech.

The standard for showing a clearly established right is certainly stringent, but that standard has been met here thus far. Several high-profile Supreme Court cases have distinguished between regulation of in-school speech and out-of-school speech. Recent cases approving of school regulation of particularly violent and threatening out-of-school speech have little applicability here and do not cast doubt on the general rule which, assuming the veracity of the facts alleged in the complaint, controls here. The facts alleged in Plaintiffs' complaint place R.S.'s speech in the heartland of protected nonviolent and nondisruptive out-of-school speech. The Court concludes that a reasonable official would understand that punishing such speech would transgress R.S.'s right to free speech. As R.S.'s right to speak as alleged without school interference was clearly established, the Court will deny the school defendants' motion for qualified immunity at this early stage.

. . .

Based on Plaintiffs' complaint, at least some of the information and messages accessed by the school officials were in R.S.'s exclusive possession, protected by her Facebook password. R.S. controlled those items until she involuntarily relinquished her password. As with a private letter, the content of R.S.'s electronic correspondence was available only to her and her correspondent. The Court concludes, based on established Fourth Amendment precedent, that R.S. had a reasonable expectation of privacy to her private Facebook information and messages.

ii. Nature of the Search

The facts in the complaint allege that the school officials conducted an exhaustive search of R.S.'s Facebook account, and possibly her personal email account. There is no indication at this stage that they tailored their search in any way. It would have been difficult for them to tailor their search in pursuit of a legitimate government interest because, as discussed below, such an interest appears to have been lacking.

iii. Government Interest in the Search

The school defendants assert that since the reasonable search analysis requires a complicated and fact-intensive balancing of interests, the Court cannot conclude that their alleged behavior violated R.S.'s clearly established rights. Plaintiffs respond that the search was clearly unreasonable because one of the interests to be balanced—a legitimate school interest motivating the search—is completely absent.

Permalink 07:55:04 am, by fourth, 165 words, 426 views   English (US)
Categories: General

CA3: Govt wins on RS, but the court chides the USAO for misstating the record in appellate brief

The district court’s finding of reasonable suspicion is supported by the evidence, albeit thin, but the government discredits itself by arguing for the stop on information not known at the time presented as a fact. United States v. Abney, 496 Fed. Appx. 248 (3d Cir. 2012)*:

We find that the government's conduct is, at the very least, troubling. We expressly disapprove of its attempt in its appellate brief to put forth a justification for the stop based on information that it knew was actually unknown to the police at the time of the stop itself. It likewise can take little refuge in the fact that the Assistant United States Attorney who presented its case at oral argument was not the author of its own appellate brief. The government's obligation, especially in a criminal proceeding, is one of frankness, fairness, and doing justice to all. Although it ultimately prevails in this matter, we give the government little credit here for the integrity that we expect and usually receive.

Permalink 07:52:28 am, by fourth, 307 words, 1464 views   English (US)
Categories: General

CA3: Unprovoked flight alone is not probable cause

Unprovoked flight alone is not probable cause. It adds to reasonable suspicion, but it cannot be probable cause under Wardlow. United States v. Navedo, 694 F.3d 463 (3d Cir. 2012):

Our holding today reiterates that unprovoked flight, without more, can not elevate reasonable suspicion to detain and investigate into the probable cause required for an arrest. Rather, a person whom police approach is free to avoid a potential encounter with police by leaving the scene, and the rate of acceleration of the person's gate as s/he leaves away is far too ephemeral a gauge to support a finding of probable cause, absent some other indicia of involvement in criminal activity. See Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); Royer, 460 U.S. at 497-98 ("The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds." (citations omitted)). Unprovoked flight can only elevate reasonable suspicion to probable cause if police have "reasonably trustworthy information or circumstances" to believe that an individual is engaged in criminal activity, as was the case in Laville. 480 F.3d at 194.

As discussed at length above, none of those circumstances are present here. The police had no reason to suspect that Navedo was himself involved in criminal activity, and even if they had appropriately formed such a suspicion, they would only have been entitled to detain and investigate, not arrest. We conclude, therefore, that the police lacked probable cause to arrest Navedo under the circumstances here and that the District Court erred in denying his motion to suppress the physical evidence that was seized following that arrest.

Permalink 07:22:35 am, by fourth, 37 words, 418 views   English (US)
Categories: General

Buy your own drone for $300

Advertised on the NYTimes website today: A $300 drone to "Fly and Record in HD."

One of my local police departments has a $50,000 grant for one, and it hasn't flown yet, probably because government needs an FAA permit.

Permalink 07:19:01 am, by fourth, 422 words, 345 views   English (US)
Categories: General

TX: Failure to corroborate anything of substance from CI inadequate

Conclusorily stating the informant is reliable without backing it up is wholly inadequate. The CI here was corroborated only to the extent of where the defendant lived. State v. Duarte, 389 S.W.3d 349 (Tex. Crim. App. 2012):

We agree with appellee that there was no substantial basis for crediting the first-time informant's hearsay statement. Officers failed to corroborate the informant's tip except to confirm appellee's address. The tip was not a statement against interest, nor repeated by other informants. There was no accurate prediction of future behavior. This tip was a first-hand observation, but it contained no particular level of detail regarding appellee's premises or his criminal activity. The tip was: "The credible individual stated that he/she had observed Gilbert Duarte 08-17-87 in possession of cocaine within the past twenty-four hours at 10919 Indigo Creek." That is it. How much cocaine did he possess? A couple of lines worth, laid out at a party and fully consumed? A kilo? Where did Mr. Duarte have the cocaine? In the pocket of his jeans? Hidden in the attic? Was it piled on the kitchen table being weighed and packaged for sale? This is not a case where there is a tip about a methamphetamine lab, or marijuana-growing operation, or crack-cocaine dealing. In those cases, the tip supports an inference that the criminal activity is ongoing. Here, as the State acknowledged at oral argument, there is nothing in the affidavit that suggests Mr. Duarte was engaged in drug-dealing. Indeed, one could plausibly conclude from this affidavit that it was the confidential informer who delivered the cocaine to Mr. Duarte's house. All we know is that the informant saw some amount of cocaine "in the possession" of Mr. Duarte.

On the one hand, the informant gave a timely, first-hand tip. On the other hand, the police failed to corroborate the tip except to confirm Mr. Duarte's address. But the fact that Mr. Duarte lives where the informant says he lives does not make his assertion that Mr. Duarte possessed cocaine more reliable. Further, the tip was vague, not an "explicit and detailed description of alleged wrongdoing" that the Gates court referenced. There were no facts from which to draw an inference that the referenced "credible individual" actually was a "credible individual." The affiant's ipse dixit does not make it so. Under the totality-of-the-circumstances analysis—balancing the relative weights of all the various indicia of reliability (and unreliability) attending the informant's tip—the magistrate here did not have a substantial basis upon which to find probable cause.

Permalink 07:11:59 am, by fourth, 124 words, 279 views   English (US)
Categories: General

OH9: Stop because the officer wanted to see what defendant "was up to" was unreasonable

Defendant was stopped essentially because the officer wanted to see what he was doing. There was no crime report, no suspicious activity. The stop was unreasonable. State v. Browning, 2012 Ohio 4026, 2012 Ohio App. LEXIS 3543 (9th Dist. September 5, 2012).*

Officers had reasonable suspicion to stop a red sedan with four men in it after a report of four men in a red sedan allegedly committing a burglary. It was the only vehicle matching the description. State v. Pressley, 2012 Ohio 4083, 2012 Ohio App. LEXIS 3591 (2d Dist. September 7, 2012).*

In a detailed analysis of the issues, a pre-Jones installation of a GPS device would not be suppressed because it was installed in good faith reliance on the lack of law against it. United States v. Lopez, 895 F. Supp. 2d 592 (D. Del. 2012).*

Permalink 12:03:42 am, by fourth, 137 words, 476 views   English (US)
Categories: General

n+1: "Leave Your Cellphone at Home" on the NSA's coming Utah databank Leave Your Cellphone at Home by Sarah Resnick and an interview with Jacob Applebaum:

Earlier this year in Wired, writer and intelligence expert James Bamford described the National Security Agency’s plans for the Utah Data Center. A nondescript name, but it has another: the First Intelligence Community Comprehensive National Cyber-security Initiative Data Center. The $2 billion facility, scheduled to open in September 2013, will be used to intercept, decipher, analyze, and store the agency’s intercepted communications—everything from emails, cell phone calls, Google searches, and Tweets, to retail transactions. How will all this data be stored? Imagine, if you can, 100,000 square-feet filled with row upon row of servers, stacked neatly on racks. Bamford projects that its processing-capacity may aspire to yottabytes, or 1024 bytes, and for which no neologism of higher magnitude has yet been coined.


Permalink 07:56:44 am, by fourth, 278 words, 429 views   English (US)
Categories: General

E.D.Wis.: Consent on the whole was coerced by denying a really important telephone call while police were on the premises 40 minutes before seeking consent

Defendant’s consent was involuntary. The crux here was an important telephone call about her future educational goals that the agents told her she couldn’t take unless she consented. She was also pregnant and kneeling while the police were there, and she'd been kicked and told to lie down and she couldn't. The police were there 40 minutes before they asked for consent. The court finds her credible, as were the officers, and finds that this telephone call was vitally important to her personal long term goals and it was unreasonable pressure on her. She was also separated from her children and she testified that she was threatened with the kids. All things considered, the consent was found coerced, and the independent source doctrine was not sufficient here to overcome the denial of consent just because the officers had probable cause; otherwise the warrant requirement would cease to exist. United States v. Dessart, 2012 U.S. Dist. LEXIS 128911 (E.D. Wis. September 10, 2012).*

Defendant’s cell phone was seized at the time of arrest, and a search warrant was issued for the phone’s contents which were admitted at trial. A motion to suppress wasn’t filed, and the appellate court refuses to consider it on appeal because of clear waiver and no good cause shown for not moving to suppress. United States v. Saucedo, 2012 U.S. App. LEXIS 19062 (11th Cir. September 11, 2012).*

The trial court denied a motion to suppress that was not appealed. Appellate counsel was not ineffective for not appealing the search issue because it wouldn’t have prevailed on appeal. There was reasonable suspicion to search for a weapon. Gray v. State, 378 S.W.3d 376 (Mo. App. 2012).*

Permalink 07:33:08 am, by fourth, 270 words, 372 views   English (US)
Categories: General

N.D.Ind.: Jones's trespass reminder doesn't overrule Greenwood trash search case

The Jones trespass prong doesn’t affect the Greenwood trash search case. Greenwood isn’t even mentioned, so it wasn’t overruled. United States v. Weston, 2012 U.S. Dist. LEXIS 129201 (N.D. Ind. September 10, 2012):

Relying on United States v. Jones, 132 S.Ct. 945 (2012), which held that a Fourth Amendment "search" occurred where law enforcement attached a global-positioning-system device to a vehicle and used the device to track the vehicle's location on public streets, Defendant argues Greenwood is no longer good law. It's a tough sell-none of the three Supreme Court opinions in Jones even mentions Greenwood. Surely if the Jones Court had intended to overrule a decision as influential as Greenwood, it would have said so.

A passage from Justice Sotomayor's concurrence provides the strongest support for Defendant's interpretation, but it's nowhere near strong enough. In it, Justice Sotomayor expresses openness to reconsidering "the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Jones, 132 S.Ct. at 957. To be sure, the Greenwood majority reaffirmed precisely that premise, which it traced to Smith v. Maryland, 442 U.S. 735, 743-44 (1979). Greenwood, 486 U.S. at 41. But no other justice joined Justice Sotomayor's opinion. (This is no critique of Justice Sotomayor's opinion, only a demonstration of the absence of any reason to think another justice shares her view.) Moreover, Justice Sotomayor's apparent willingness to reexamine the third-party principle was not essential to her decision to join the Jones majority. See Jones, 132 S.Ct. at 957 ("Resolution of these difficult questions in this case is unnecessary, ... because the Government's physical intrusion on Jones' Jeep supplies a narrower basis for decision.").

Permalink 04:36:22 am, by fourth, 161 words, 463 views   English (US)
Categories: General

D.S.C.: No standing in a kid's book bag in the car that had drugs stashed in it

Defendant had no standing to contest the search of the book bag of an elementary school student in his car. The student was in the car when it was stopped, and he was getting a ride from somebody else, and he asked for the book bag and an officer retrieved it, but looked in it before handing it over. The book bag wasn’t under his control that afternoon, and inside was cocaine. Apparently the drugs were stashed there then. United States v. Magwood, 2012 U.S. Dist. LEXIS 128697 (D. S.C. September 11, 2012).*

Defendant was repeatedly told he was free to leave and he still kept talking to the officers, and that was by consent. United States v. Hernandez, 2012 U.S. Dist. LEXIS 128078 (E.D. N.C. September 10, 2012).*

The court credits the officers’ testimony on the defendant’s consent. Compared to theirs, the defendant’s testimony was contradictory and confusing. United States v. Benitez-Vergara, 2012 U.S. Dist. LEXIS 129097 (N.D. Tex. September 11, 2012).*

Permalink 12:21:06 am, by fourth, 108 words, 532 views   English (US)
Categories: General "House approves another five years of warrantless wiretapping"; FISA re-upped in House House approves another five years of warrantless wiretapping / Reauthorization of the FISA Amendments Act must still be passed by the Senate by Timothy B. Lee:

The House of Representatives easily passed legislation on Wednesday to re-authorize the FISA Amendments Act, the 2008 law that allows the federal government to intercept the international communications of Americans with minimal judicial oversight. The vote was 301 to 118.

"I think that the government needs to comply with the Fourth Amendment to the Constitution all the time," said Rep. Zoe Lofgren (D-CA) in a floor speech opposing the bill. "We can be safe while still complying with the Constitution of the United States."

Permalink 12:14:17 am, by fourth, 21 words, 486 views   English (US)
Categories: General

SCOTUS: Two FL dog sniff cases arguments set for 10/31

The two dog sniff cases, Florida v. Jardines and Florida v. Harris, are set for argument on October 31st in SCOTUS.

Permalink 12:02:00 am, by fourth, 51 words, 359 views   English (US)
Categories: General

The Atlantic: "Is Antonin Scalia Still Relevant?"

The Atlantic: Is Antonin Scalia Still Relevant? by Garrett Epps:

The Reagan appointee has been perhaps the most significant influence on law in the past three decades. But the start of the new Term looks likely to mark the end of the Scalia Court and the beginning of the Roberts one.


Permalink 08:02:07 pm, by fourth, 89 words, 401 views   English (US)
Categories: General

Lawfare: "Drone Lost in Skies Over Washington D.C. Neighborhood"; a private drone

Lawfare: Drone Lost in Skies Over Washington D.C. Neighborhood by Ritika Singh

A drone has gone missing in Washington. No, not a Predator or a Reaper—and not one of the drones that is gearing up for the Lawfare Drone Smackdown. And no, not @drunkenpredator on his latest binge. It’s just some guy’s drone—and he’s done just what you would do if you lost your pride and joy: He’s posted a flier.

No, this is not a joke. It is real. I promise.

Permalink 07:23:01 am, by fourth, 195 words, 399 views   English (US)
Categories: General

CA6: Because Davis followed DC decision suppressing the search, the govt gets remand for DC to consider it

The government perfunctorily defended the search and lost on Fourth Amendment grounds and failed to fully address the good faith exception in the district court, instead briefing it on appeal. The case is remanded to the district court to give the government another bite at the apple only because Davis came along after the district court ruled. United States v. Fugate, 499 Fed. Appx. 514, 2012 FED App. 0994N (6th Cir. 2012):

Here, the district court did not have the benefit of the parties' briefing and argument on this issue. Likewise, the Supreme Court issued Davis after the district court granted Fugate's motion to suppress. As we explained in Master, "the Supreme Court has effectively created a balancing test by requiring that in order for a court to suppress evidence following the finding of a Fourth Amendment violation, the benefits of deterrence must outweigh the costs." In Master, we remanded to allow the district court to consider whether the officers' conduct was deliberate, reckless, or grossly negligent. 614 F.3d at 243 (citation and alterations omitted). As in Master, the district court has not had this opportunity, and we therefore remand the case for further proceedings not inconsistent with this opinion.

Permalink 07:15:47 am, by fourth, 194 words, 368 views   English (US)
Categories: General

W.D.Okla.: Defendant consented to stay and talk to the officer after the paperwork was returned after a traffic stop

Defendant consented to stay and talk to the officer after the paperwork was returned after a traffic stop. United States v. Santana-Gomez, 2012 U.S. Dist. LEXIS 128147 (W.D. Okla. September 10, 2012)*:

Upon careful review of the parties' submissions and the testimony presented at the hearing, the Court finds that Lt. Glass' further questioning unrelated to the initial stop occurred after Lt. Glass returned defendant's license and registration and informed defendant that he was "good to go." Although Lt. Glass posed further questions to defendant within seconds of saying defendant was "good to go," Lt. Glass did nothing to reasonably indicate that defendant was not free to leave. In fact, a review of Lt. Glass' in-car video of defendant's stop shows that Lt. Glass did not coerce the defendant by raising his voice, brandishing his weapon, removing his canine from the back seat, or calling for another officer.

Defendant’s appellate argument only presents the defendant’s version of the evidence which the district court rejected. Appellate review grants deference to the trial court’s findings of fact which are essentially overlooked, and they are not clearly erroneous. United States v. Snellgrove, 488 Fed. Appx. 827 (5th Cir. 2012).*

Permalink 07:06:10 am, by fourth, 226 words, 494 views   English (US)
Categories: General

D.Haw.: SI of bag in defendant's possession at time of arrest was valid, as was later re-search at police station

Search of a black bag in defendant’s possession at the time of his arrest was valid as a search incident because it could have contained evidence or weapons. A later search of the bag was valid. United States v. Gordon, 895 F. Supp. 2d 1011 (D. Haw. 2012):

=> Read more!

Permalink 06:41:53 am, by fourth, 167 words, 340 views   English (US)
Categories: General

CA8: Reasonable suspicion of possible forged paper tags explained

A lengthy explanation of reasonable suspicion and suspected forged paper tags is United States v. Mendoza, 691 F.3d 954 (8th Cir. 2012).* Was it a genuine suspicion or not?

Separation of an agitated parent and her child in an ER for treatment was not a Fourth Amendment violation. Mueller v. Auker, 2012 U.S. App. LEXIS 18972 (9th Cir. September 10, 2012) (prior appeal Mueller v. Auker, 576 F.3d 979 (9th Cir. 2009)):

The Fourth Amendment usually requires an officer to have a warrant issued upon probable cause before seizing someone, but "neither probable cause nor a warrant is required when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" Yin v. California, 95 F.3d 864, 869 (9th Cir. 1996) (quoting Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 653, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995)). In these "special needs" cases, we "dispense[ ] with the probable cause and warrant requirements and simply appl[y] a balancing test to determine if a search or seizure is reasonable and thus constitutional." Yin, 95 F.3d at 869.


Permalink 12:03:00 am, by fourth, 370 words, 455 views   English (US)
Categories: General

CA6: Qualified immunity for use of force during drug and firearms search and scope of search

Officers pointing of weapons and use of physical force during execution of a drug and firearms search warrant was not subject to qualified immunity. The warrant was supported with probable cause. The claim of unreasonableness of the search itself was essentially waived in the district court, and the court would not undertake it on appeal. The officers were also entitled to qualified immunity on the scope of seizure based on the scope of the search warrant. Marcilis v. Twp. of Redford, 693 F.3d 589(6th Cir. 2012)*:

The money, the jewelry, and the personal effects, are all valuable items or proceeds which fall within the scope of the warrant. See, e.g., United States v. Blair, 214 F.3d 690, 697 (6th Cir. 2000) (finding that vehicles, jewelry, and money are "items related to narcotics transactions or the proceeds of narcotics transactions"). Likewise, the police officers may have reasonably believed that any bills seized and photographs taken, as well as the weapons permit, marriage license, and property deed, contained information reasonably related to the sale and the possession of narcotics, possession and ownership of firearms, the depiction of controlled substances and proceeds from controlled substances, and the ownership of the searched homes. See United States v. Savoy, 280 F. App'x 504, 511 (6th Cir. 2008). Moreover, a search does not become invalid merely because some items not covered by a warrant are seized. Rather, an otherwise valid search becomes an impermissible general search only where the searching officers demonstrate a flagrant disregard for the limitations of a search warrant. United States v. Lambert, 771 F.2d 83, 93 (6th Cir. 1985). Though the officers might have been mistaken as to whether the photographs seized were within the scope of the warrant, we cannot conclude that it was a "flagrant disregard" of the warrant limitation to seize photographs pursuant to a warrant that expressly provided for the seizure of "all photographs ... depict[ing] controlled substances and/or proceeds from controlled substances." See, e.g., United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988) (finding that the improper seizure of 667 pieces of property grossly exceeded the scope of the warrant and required suppression of all evidence under the warrant). We find that the district court correctly concluded that police officers are due qualified immunity on this claim.


Permalink 02:13:11 pm, by fourth, 123 words, 645 views   English (US)
Categories: General "FBI to roll out $1 billion public facial recognition system in 2014, will be on to your evildoing everywhere" FBI to roll out $1 billion public facial recognition system in 2014, will be on to your evildoing everywhere by Jason Hidalgo:

They're watching you -- or at least will be in a couple of years. That's when the FBI is gearing up for a nationwide launch of a $1 billion project designed to identify people of interest, according to the New Scientist. Dubbed the Next Generation Identification (NGI) program, the high-tech endeavor uses biometric data such as DNA analysis, iris scans and voice identification to track down folks with a criminal history. The FBI also plans to take NGI on the road literally by using public cameras to pick faces from the crowd and cross check them with its national repository of images.

Permalink 06:25:00 am, by fourth, 262 words, 471 views   English (US)
Categories: General

TN: Defendant couldn't overcome officer's testimony he was going faster than the officer and speeding

The trial court did not err in accepting the officer’s testimony that the defendant was going faster than he was, so he stopped him. Defendant’s argument that he was actually going slower than the officer projected was based on a land surveyor’s opinion from the video, but the land surveyor wasn’t called as a witness. State v. White, 2012 Tenn. Crim. App. LEXIS 690 (August 31, 2012).* [If you’re challenging the officer’s testimony that the defendant wasn’t committing a traffic violation, you can only win if the officer’s testimony is really, really vague or just plain incredible to the point it would be error to accept it (I’ve seen only one here). On the clearly erroneous standard, if there’s anything for the trial court to attach to, the defendant loses on appeal. This is not a trade secret–the police already know it. That’s why they can testify so vaguely as “he said, she said” and the factfinding is virtually unchallengable.]

Where a motion to suppress would not have been granted had it been made, defense counsel could not be ineffective for not making it. People v. Brock, 2012 IL App (4th) 100945, 2012 Ill. App. LEXIS 737 (September 7, 2012).*

In a dissent from a denial of certiorari, the dissenter opines there was no probable cause shown in the thin attempt to support the CI and a failure from the affidavit itself in Alabama is a failure of the good faith exception. (The decision cert was sought from is not reported.) Lane v. State, 2012 Ala. LEXIS 113 (September 7, 2012) (Malone, J., dissenting).*

Permalink 05:53:11 am, by fourth, 171 words, 356 views   English (US)
Categories: General

IL: Defendant was "stopped" for approaching a checkpoint too fast, and it was valid

Defendant likely would not have been stopped at a safety checkpoint, but he was approaching at an unsafe speed, and an officer shouted at him to slow down, and he stopped. Three to five minutes later, the officer approached the car after processing another, and he smelled alcohol on defendant’s breath. The further detention was valid, and the trial court erred in suppressing. People v. Clements, 2012 Ill. App. LEXIS 734, 2012 IL App (3d) 110213 (September 5, 2012).*

“Officer McCoy, using an application on his smartphone, read the defendant the Miranda warnings.” United States v. Jones, 2012 U.S. Dist. LEXIS 127268 (N.D. Ohio September 7, 2012). [Not a Fourth Amendment case; I just hadn’t heard of that yet. Sensing some importance here, I memorized the Miranda warning in law school, five years after it was decided. Every person in America with a television has heard it hundreds of times, thanks to pop culture. Cf. Dickerson v. United States, 530 U.S. 428 (2000). I imagine the only people who don't know it after 46 years are the unarrested without television.]*

Permalink 05:43:41 am, by fourth, 161 words, 350 views   English (US)
Categories: General

CA11: USDJ can adopt argument on R&R not presented to USMJ; no waiver

When a USDJ reviews a USMJ’s R&R, the court does not abuse its discretion in accepting an argument not presented to the USMJ to sustain the search. Waiver doesn't work that way. United States v. Franklin, 694 F.3d 1 (11th Cir. 2012):

A district court does not abuse its discretion by accepting an argument not raised before the magistrate judge. Id. at 1176-77. In Tolbert, this Court held that "[w]e reject the notion that, in its review of the report and recommendation, the district court performed an appellate function and was barred, outside of exceptional circumstances, from considering an argument not raised before the magistrate judge." Id. The district court did not abuse its discretion in allowing the Government to argue in its objection to the magistrate judge's report and recommendation that the entry and seizure of the firearms did not violate the Fourth Amendment because the record demonstrated that probable cause and exigent circumstances justified the officer's conduct.


Permalink 12:17:58 am, by fourth, 645 words, 978 views   English (US)
Categories: General

D.Md.: No REP under Fourth Amendment in medical records

There is no Fourth Amendment reasonable expectation of privacy in medical records held by a doctor. The third-party doctrine and consent also must apply. United States v. Mitchell, 2012 U.S. Dist. LEXIS 126651 (D. Md. September 5, 2012):

1. The inquiry into whether an individual has a Fourth Amendment reasonable expectation of privacy in her medical records is distinct and separate from whether an individual has a Fourteenth Amendment privacy right against compelled disclosure of medical information to the government.

Before embarking on an analysis of the reasonableness of Bellosi-Mitchell's expectation of privacy in certain medical records, it is important to focus on the constitutional basis for the right asserted. The inquiry into whether an individual has a reasonable expectation of privacy in her medical records under the Fourth Amendment is distinct and separate from whether an individual has a Fourteenth Amendment privacy right against compelled disclosure of medical information. See Katz v. United States, 389 U.S. 347, 350-51 (1967) (Fourth Amendment privacy right "cannot be translated into a general constitutional right to privacy" under the Fourteenth Amendment). The Supreme Court emphasized this point in the seminal case of Whalen v. Roe, 429 U.S. 589 (1977). There, the Court addressed the question of whether a New York statute, which required prescriptions for drugs that had been classified "Schedule II" to be forwarded to the New York State Department of Health, invaded a constitutionally protected zone of privacy. Id. at 598. In holding that the New York statute was constitutional, the Court reasoned that, although the Fourth Amendment forbids government searches in areas where an individual has a reasonable expectation [*9] of privacy, the Fourth Amendment privacy interest was not at issue; rather, the only privacy right at issue was the Fourteenth Amendment's individual privacy right against compelled disclosure to the state. Id. at 604. n.32 Unlike the Fourth Amendment analysis where one either has or does not have a reasonable expectation of privacy in the places searched during a criminal investigation, the Fourteenth Amendment analysis involves a balancing test in which courts weigh the individual's privacy interest against the rationale underlying the compelled disclosure of information to the government. Id. In Whalen, the court found that individuals had a Fourteenth Amendment privacy interest in health information but weighed this interest against the state's interest in monitoring and enforcing the laws against misuse of Schedule II drugs. Id. at 603. Because the statute mandated the capture of certain medical information but not necessarily the disclosure by the state of that information, the Court concluded that the statute did not "pose a sufficiently grievous threat to either interest to establish a constitutional violation." Id. at 603-04.

Indeed, lower courts have generally declined to extend Whalen to hold that patients have a Fourth Amendment expectation of privacy in their medical records. See Douglas v. Dobbs, 419 F.3d 1097, 1102 (10th Cir. 2005) (finding that an Assistant District Attorney did not violate a pharmacy customer's Fourth Amendment right to be free from unreasonable search of her prescription records despite the fact that Whalen creates a Fourteenth Amendment right to be free from governmental disclosure of medical information); State v. Skinner, 10 So.3d 1212, 1218 (La. 2009) ("We are not prepared to extend Whalen, which balanced the individual's privacy interest against the state's reasonable exercise of its regulatory power, to ... [Fourth Amendment] searches and seizures of its citizens' medical and pharmacy records for criminal investigative purposes"). But see United States v. Lievertz, 247 F.Supp. 2d 1052, 1063 (S.D. Ind. 2002) (applying Whalen to conclude that a patients' Fourth Amendment privacy rights were not violated by warrant-authorized search of medical records because the government's compelling interest in deterring criminal misconduct outweighed any of patients' privacy rights.). Because this Court believes that the better-reasoned cases segregate an individual's Fourteenth Amendment right to privacy—i.e. state actors who compel the disclosure of a patient's medical information— from an individual's Fourth Amendment reasonable expectation of privacy, this Court will employ a similar approach.

Permalink 12:11:14 am, by fourth, 190 words, 315 views   English (US)
Categories: General

DE: SW for doctor's files and videos of young female patients he was alleged to have assaulted was issued with PC and was not general

The search warrant for defendant’s pediatric practice was issued with probable cause and was not overbroad authorizing a general search. The doctor was being investigated for inappropriate vaginal exams of girls during routine medical visits. A search warrant was issued for his medical records and for potential videos of the examinations because the police had information that he had video cameras in each examination room and had viewed videos of what he was doing with the girls. Bradley v. State, 51 A.3d 423 (Del. 2012).*

The search of defendant’s car after the stop was with probable cause, so Gant does not apply. United States v. Sicking, 2012 U.S. Dist. LEXIS 126641 (E.D. Tex. August 8, 2012).*

The stop and detention of the vehicle was with reasonable suspicion. The defendant lacked standing to challenge its search. United States v. Lee, 2012 U.S. Dist. LEXIS 126783 (E.D. N.C. July 30, 2012),* adopted 2012 U.S. Dist. LEXIS 127613 (E.D. N.C. September 6, 2012).*

The officer’s parking in front of defendant’s car blocking him was not a seizure, but, even if it was, it was with reasonble suspicion. United States v. Anthony, 487 Fed. Appx. 921 (5th Cir. 2012).*

Permalink 12:02:18 am, by fourth, 137 words, 421 views   English (US)
Categories: General

TX1: Use of key fob alarm to locate defendant's car was not a search

Defendant was lawfully arrested, and his keys lawfully removed from him. The officer’s use of the key fob alarm to find his car was not a search. Wiley v. State, 388 S.W.3d 807 (Tex. App. – Houston (1st Dist.) 2012).

Trial counsel was not ineffective for not filing a motion to suppress cell site location information because of an alleged violation of statute or the Fourth Amendment. The CSLI was obtained by court order, and the later Skinner case from the Sixth Circuit shows no Fourth Amendment violation. Smarr v. State, 317 Ga. App. 584, 732 S.E.2d 110 (2012).

Defendant signed an acknowledgment that he was subject to searches while on post-prison release, and his probation officer had reasonable suspicion to search his computers when he found child pornography. United States v. Denton, 2012 U.S. Dist. LEXIS 126762 (N.D. Ga. June 19, 2012).*


Permalink 12:27:12 pm, by fourth, 95 words, 523 views   English (US)
Categories: General

Computerworld: "Reasonable expectation of privacy in a world where Big Brother is WWWatching?"

Computerworld: Reasonable expectation of privacy in a world where Big Brother is WWWatching?
By Darlene Storm

Whether it's revealed through a hack, leak or investigative reporting, a week rarely passes without hearing something unpleasant in regards to surveillance vs Fourth Amendment protections. Juice Rap News 15 has a new video, showing both sides, those who are for and against surveillance. It’s called Big Brother is WWWatching You.

This video had me pondering civil liberties clashing with technology; it led to deep thoughts about what is a “reasonable expectation of privacy” in this world of surveillance?

Permalink 11:53:49 am, by fourth, 150 words, 352 views   English (US)
Categories: General

N.D.Ind.: Defendant's girlfriend did purely private search of his unpassword protected computer

A search of defendant’s computer by his girlfriend after she found pictures of naked minors on it, after the police told her not to do anything on her own, was purely a private search. United States v. Alter, 2012 U.S. Dist. LEXIS 127305 (N.D. Ind. September 7, 2012).*

During a traffic stop, the officer saw the passenger shove something in a child’s school bag at her feet. The mother of the child could consent to the search of the bag, not that anybody would have standing in the bag [sounds like Rawlings]. United States v. Santa, 2012 U.S. Dist. LEXIS 127308 (E.D. Pa. September 7, 2012).*

Officers were in sort of hot pursuit of a fleeing felon who went to defendant’s house. They consented to entry to look for the felon and guns were found in plain view. United States v. King, 2012 U.S. Dist. LEXIS 127359 (S.D. W.Va. September 7, 2012).*

Permalink 11:35:27 am, by fourth, 598 words, 480 views   English (US)
Categories: General

CA6: SW for safe that was a target of burglars and left behind was reasonable

Defendant’s house was the subject of a burglary, and an unopened safe was abandoned in his yard when the burglars fled. The police wanted the safe ostensibly to fingerprint it [safes can seldom be fingerprinted] but then opened to see what the burglars wanted, and defendant refused. The police then got a search warrant for the safe, and it was issued with probable cause [of what?]. Inside were firearms, and defendant was a convicted felon. United States v. Saddler, 498 Fed. Appx. 524 (6th Cir. 2012).* I’m not buying any of this:

=> Read more!

Permalink 11:15:50 am, by fourth, 203 words, 320 views   English (US)
Categories: General

MA: Confirmed CI statement supported inference drugs in house

Massachusetts still applies Aguilar-Spinneli, and it was satisfied here. The issuing magistrate had probable cause to issue the search warrant for defendants’ house where they left the house to go to a drug deal. The CI also described a drug operation in the house. Commonwealth v. Mendes, 463 Mass. 353, 974 N.E.2d 606 (2012):

The affidavit in this case informed the magistrate that the police separately observed each defendant leaving the shared residence and traveling directly to a prearranged location to sell cocaine to CSB. These observations, when considered along with CSA's detailed description of the drug distribution enterprise operating from the defendants' residence and CSB's corroborating information regarding defendants' modus operandi of delivering the drugs to prearranged locations near that residence, readily establish that this is not a case where the magistrate's probable cause determination was simply inferred from "the fact that the defendant lives there." Contrast Commonwealth v. Pina, 453 Mass. 438, 441, 902 N.E.2d 917 (2009). The two "controlled buys" and the particularized information of two credible informants provided the magistrate with a substantial basis for finding probable cause to believe that a search of the defendants' residence would uncover evidence of illegal drug distribution. See Commonwealth v. Escalera, supra at 644. The search warrant was constitutionally valid.

Permalink 10:37:00 am, by fourth, 245 words, 311 views   English (US)
Categories: General

D.D.C.: Drug deal supported inference defendant kept it at home to support SW for home

Arranged and completed drug deal was probable cause for issuance of a search warrant for defendant’s house because it was a logical inference that he would keep the drugs there. United States v. Savoy, 883 F. Supp. 2d 101 (D. D.C. 2012)*:

Based on a totality of the circumstances, the magistrate's approval of a search warrant for Hudson's home was reasonable. The affidavit supporting the warrant application was based on a combination of factors, including information from two cooperating witnesses previously determined reliable by the FBI, interpretations of coded conversations by SA Ray, the prior narcotics involvement of both men, two unexplained meetings between Hudson and Savoy in parking lots, and the seizure of five bags of cocaine from Hudson shortly after he had discussed meeting with Savoy to get "five." These were sufficient to support a finding of probable cause that Hudson was engaged in narcotics trafficking with Savoy.

Furthermore, D.C. Circuit precedent supports the inference that evidence of narcotics trafficking would be found in Hudson's home, despite the fact that most evidence of it was derived from activity that may have taken place elsewhere. See United States v. Johnson, 437 F.3d 69, 71-72, 369 U.S. App. D.C. 321 (D.C. Cir. 2006); Spencer, 530 F.3d at 1007 ("Common experience suggests that drug dealers must mix and measure the merchandise, protect it from competitors, and conceal evidence of their trade ... in secure locations. For the vast majority ... the most convenient location to secure items is the home.").

Permalink 10:32:50 am, by fourth, 119 words, 317 views   English (US)
Categories: General

N.D.Ohio: No issue preclusion from dismissed state traffic ticket in federal case

Issue preclusion doesn’t apply to a federal charge from dismissal of a state traffic ticket that formed the basis of a stop. Here, the officer just didn’t show in traffic court. There was probable cause for the stop. United States v. Wilkins, 2012 U.S. Dist. LEXIS 126528 (N.D. Ohio September 6, 2012).

A probationer’s positive drug test is reasonable suspicion for an immediate probation search of his home. United States v. Crews, 494 Fed. Appx. 240 (3d Cir. 2012).

The defendant’s dispute that one fact finding was illogical really wasn’t reason to find that the magistrate clearly erred in concluding there was a basis for the stop. United States v. Love, 2012 U.S. Dist. LEXIS 126385 (W.D. Tenn. September 6, 2012).*

Permalink 10:23:33 am, by fourth, 118 words, 301 views   English (US)
Categories: General

Volokh Conspiracy: "Two District Court Rulings That Cell-Site Data Not Protected Under the Fourth Amendment"

Volokh Conspiracy: Two District Court Rulings That Cell-Site Data Not Protected Under the Fourth Amendment by Orin Kerr:

On Tuesday, DOJ filed a brief in the United States District Court for the District of Columbia in United States v. Antoine Jones, on remand from the Supreme Court, on the question of whether cell-site location information is protected under the Fourth Amendment. It’s a good brief, I think, and I was particularly intrigued by the appendices. The appendices included two recent unpublished federal district court decisions on Fourth Amendment protection for cell-site data. To my knowledge, neither opinion has been public before — or if they were public, they are not on Westlaw. Here they are for those interested: ...


Permalink 09:28:23 pm, by fourth, 74 words, 456 views   English (US)
Categories: General

Bloomberg: "NRA-Backed Law Spells Out When Indianans May Open Fire on Police"

Remember the Barnes case? My summary: Common law right to resist what the homeowner reasonably believes to be an unlawful police entry into the home, dating from the Magna Carta, has been abrogated by modern law. Barnes v. State, 82S05-1007-CR-343 (Ind. May 12, 2011) (3-2).

See NRA-Backed Law Spells Out When Indianans May Open Fire on Police by Mark Niquette. This hit the intertubes in June, but I just stumbled on it.

Permalink 04:53:05 pm, by fourth, 100 words, 333 views   English (US)
Categories: General "ACLU Sues Police for Seizing Man’s Phone After Recording Alleged Misconduct" ACLU Sues Police for Seizing Man’s Phone After Recording Alleged Misconduct by Kim Zetter:

The ACLU has sued the District of Columbia and two police officers for allegedly seizing the cellphone of a man who photographed a police officer allegedly mistreating a citizen, and for then stealing his memory card.

The suit, filed in federal court (.pdf) in Washington, D.C., alleges that the police officer violated Earl Staley, Jr.’s First Amendment and Fourth Amendment rights by improperly searching and seizing his property while he was exercising his right to photograph the police performing their duty.

Permalink 04:12:26 pm, by fourth, 349 words, 594 views   English (US)
Categories: General

Congressional Research Service: "Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses"

Congressional Research Service: Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses by Richard M. Thompson II, Legislative Attorney (September 6, 2012):

The prospect of drone use inside the United States raises far-reaching issues concerning the extent of government surveillance authority, the value of privacy in the digital age, and the role of Congress in reconciling these issues.

Drones, or unmanned aerial vehicles (UAVs), are aircraft that can fly without an onboard human operator. An unmanned aircraft system (UAS) is the entire system, including the aircraft, digital network, and personnel on the ground. Drones can fly either by remote control or on a predetermined flight path; can be as small as an insect and as large as a traditional jet; can be produced more cheaply than traditional aircraft; and can keep operators out of harm’s way. These unmanned aircraft are most commonly known for their operations overseas in tracking down and killing suspected members of Al Qaeda and related organizations. In addition to these missions abroad, drones are being considered for use in domestic surveillance operations, which might include in furtherance of homeland security, crime fighting, disaster relief, immigration control, and environmental monitoring.

Although relatively few drones are currently flown over U.S. soil, the Federal Aviation Administration (FAA) predicts that 30,000 drones will fill the nation’s skies in less than 20 years. Congress has played a large role in this expansion. In February 2012, Congress enacted the FAA Modernization and Reform Act (P.L. 112-95), which calls for the FAA to accelerate the integration of unmanned aircraft into the national airspace system by 2015. However, some Members of Congress and the public fear there are insufficient safeguards in place to ensure that drones are not used to spy on American citizens and unduly infringe upon their fundamental privacy. These observers caution that the FAA is primarily charged with ensuring air traffic safety, and is not adequately prepared to handle the issues of privacy and civil liberties raised by drone use.

This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. ...


Permalink 07:36:23 am, by fourth, 94 words, 377 views   English (US)
Categories: General

OH: Parole condition of access to e-mail account was valid

Defendant’s parole condition that he submit to searches of his e-mail account was valid. Sullivan v. Bunting, 2012 Ohio 3923, 133 Ohio St. 3d 81, 975 N.E.2d 999 (2012) (per curiam).

Plaintiff was shot during a no-knock raid on his house. Factual disputes remained on whether the officer procuring the warrant made false statements in obtaining the warrant, and, thus, qualified immunity was denied. Betker v. Gomez, 692 F.3d 854 (7th Cir. 2012).*

Movant outside of a criminal case file a motion for return of money seized, but it was without jurisdiction. Brown v. United States, 692 F.3d 550 (6th Cir. 2012).*

Permalink 07:19:25 am, by fourth, 150 words, 328 views   English (US)
Categories: General

GA: Search of RV parked next to house in warrant for house and vehicles was valid

A search warrant for a computer with child pornography at defendant’s address included searching an RV on the premises using a wireless router. The RV was being used as a residence, and the warrant included the house and vehicles on the premises. Hines v. State, 317 Ga. App. 541, 731 S.E.2d 782 (2012).*

Petitioner’s vague allegation that defense counsel talked to an uncalled “somebody” about his arrest wasn’t shown to have an effect on the outcome of the litigation about the arrest. Dunston v. United States, 2012 U.S. Dist. LEXIS 125865 (N.D. Tex. September 4, 2012).

Defendant lacked standing in a rental car when it was searched. It was rented by another person’s mother so he could go to work, and the other person loaned it to defendant who used it and returned it. It was searched thereafter when he gave it up. State v. Brown, 382 S.W.3d 147 (Mo. App. 2012).*

Permalink 06:59:38 am, by fourth, 132 words, 657 views   English (US)
Categories: General

S.D.Ohio: Firemen could enter a car responding to a call of a passed out man

Firemen responding to a call of an unresponsive man found defendant passed out at the wheel of a parked car and finally awoke him, also seeing a firearm between his legs. The “search” and entry into the car was reasonable. Also, the car was stolen, and there’s no standing in a stolen car. United States v. Overton, 2012 U.S. Dist. LEXIS 125043 (S.D. Ohio September 4, 2012).*

The trial court’s findings were equivocal about driving over the centerline, and the appellate court erred in making its own factfinding. Remanded for real factfinding. State v. Garza, 295 Kan. 326, 286 P.3d 554 (2012).*

Smell of raw marijuana coming from a car when it was stopped and seeing a “marijuana ‘shake’” was probable cause to search the trunk. State v. Bonham, 2012 Ohio 3982, 2012 Ohio App. LEXIS 3513 (5th Dist. August 28, 2012).*

Permalink 06:53:37 am, by fourth, 156 words, 1317 views   English (US)
Categories: General

E.D.La.: Motion for buccal swabs for DNA a search, and warrant required

Government’s motion to compel buccal swabs is seeking a search, and reasonableness should be presented by the government through a search warrant application, not a motion for samples. United States v. Hardrick, 2012 U.S. Dist. LEXIS 125559 (E.D. La. September 5, 2012):

Because obtaining a saliva sample is a search, the Government must first request a search warrant. See Terry v. Ohio, 392 U.S. 1, 20 (1968)("[T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure."); Schmerber v. California, 384 U.S. 757, 770 (1966) ("Search warrants are ordinarily required for searches of dwellings, and, absent emergency, no less could be required where intrusions into the human body are concerned."). The Government has not identified any exigency that would permit dispensing with the warrant requirement. A warrant is therefore required before the Government may obtain saliva samples from the defendant. Accordingly, Government's motion to compel is premature and will not be granted by this Court.

Permalink 12:01:59 am, by fourth, 552 words, 4476 views   English (US)
Categories: General

CA9: LA's “Skid Row” plaintiffs' injunction against police seizures of their property is affirmed

The City of LA can't arbitrarily seize unabandoned property of the denizens of the City's “Skid Row” district without affording due process. The appeal from the preliminary injunction granted by the District Court is denied. “The City has ... asked us to declare that the unattended property of homeless persons is uniquely beyond the reach of the Constitution, so that the government may seize and destroy with impunity the worldly possessions of a vulnerable group in our society. Because even the most basic reading of our Constitution prohibits such a result, the City’s appeal is DENIED.” Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012):

Appellees, nine homeless individuals living in the “Skid Row” district of Los Angeles, charge that the City of Los Angeles (the “City”) violated their Fourth and Fourteenth Amendment rights by seizing and immediately destroying their unabandoned personal possessions, temporarily left on public sidewalks while Appellees attended to necessary tasks such as eating, showering, and using restrooms. Finding a strong likelihood of success on the merits of these claims, the district court enjoined the City from confiscating and summarily destroying unabandoned property in Skid Row. The narrow injunction bars the City from:

1. Seizing property in Skid Row absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, or is evidence of a crime, or contraband; and

2. Absent an immediate threat to public health or safety, destruction of said seized property without maintaining it in a secure location for a period of less than 90 days.

Lavan v. City of Los Angeles, 797 F. Supp. 2d 1005, 1020 (C.D. Cal. 2011).

The district court expanded upon the great leeway the City retains to protect public health and safety, noting: “The City [is] able to lawfully seize and detain property, as well as remove hazardous debris and other trash; issuance of the injunction ... merely prevent[s the City] from unlawfully seizing and destroying personal property that is not abandoned without providing any meaningful notice and opportunity to be heard.” Id. at 1019.

In this appeal, the City does not challenge the scope of the injunction, nor does it ask us to modify its terms; instead, the City argues only that the district court applied the wrong legal standard in evaluating Appellees’ claims.

We conclude that the Fourth and Fourteenth Amendments protect homeless persons from government seizure and summary destruction of their unabandoned, but momentarily unattended, personal property.

. . .

This appeal does not concern the power of the federal courts to constrain municipal governments from addressing the deep and pressing problem of mass homelessness or to otherwise fulfill their obligations to maintain public health and safety. In fact, this court would urge Los Angeles to do more to resolve that problem and to fulfill that obligation. Nor does this appeal concern any purported right to use public sidewalks as personal storage facilities. The City has instead asked us to declare that the unattended property of homeless persons is uniquely beyond the reach of the Constitution, so that the government may seize and destroy with impunity the worldly possessions of a vulnerable group in our society. Because even the most basic reading of our Constitution prohibits such a result, the City’s appeal is DENIED.

Courthouse News Service: Homeless Still Have Rights to Property Left Unattended by Tim Hull.


Permalink 03:42:09 pm, by fourth, 164 words, 372 views   English (US)
Categories: General

ACLU seeks rehearing in Skinner

ACLU Asks Appeals Court to Reconsider Cell Phone Tracking Decision by Catherine Crump:

Yesterday we asked the full Sixth Circuit Court of Appeals to consider the arguments in our amicus brief that it should rehear a case decided by a three-judge panel in a ruling last month that undermined the privacy rights of everyone who carries a cell phone.

In the case, law enforcement agents required Melvin Skinner’s cell phone company to provide them with his GPS coordinates continuously for three days as he drove across the country. The agents did not get a warrant or demonstrate probable cause. Using the data, the agents tracked Skinner down, searched his motor home, and arrested him for his alleged role as a drug courier. On appeal, Skinner argued that the warrantless GPS phone tracking violated his Fourth Amendment rights.

Update: Groups seek to overturn ruling allowing warrantless phone tracking / ACLU says decision misunderstands cell technology and Supreme Court precedent by Timothy B. Lee.

Permalink 02:52:46 pm, by fourth, 322 words, 14107 views   English (US)
Categories: General "RI court: Texts can't be used in child murder case" (Updated with case link) RI court: Texts can't be used in child murder case by Michelle R. Smith, AP:

Incriminating text messages about a man accused of killing his girlfriend's 6-year-old son can't be used at trial because the police search that found them was illegal and violated the man's Fourth Amendment right against unreasonable searches and seizures, a state Superior Court judge ruled Tuesday.

Superior Court Judge Judith Savage ruled that Michael Patino had a reasonable expectation of privacy in his text messages and that evidence from his cellphone was collected illegally, before police obtained search warrants. She also ruled that because of the illegal search, almost all the evidence obtained by police was tainted and couldn't be used at trial.

Update: State v. Patino, 2012 R.I. Super. LEXIS 139 (R.I. Super. September 4, 2012):

When the precious rights of individuals to keep private the expression of their innermost thoughts collides with the desire of law enforcement to know all at all costs, this Court must take special care to ensure that what it says today is fair game for police conduct does not sacrifice on the altar of tomorrow the rights that we hold most dear under our state and federal constitutions.

In this criminal case, the State indicted Defendant Michael Patino for the alleged murder of Marco Nieves, the six-year-old son of Defendant‘s girlfriend, Trisha Oliver. The case against the Defendant is built largely on cell phone text messages that the State claims were sent by the Defendant to his girlfriend and that the Defendant claims were illegally obtained by the Cranston Police Department, without a warrant, in violation of his privacy rights. Defendant protests not only the way in which the police have attempted to build a case against him, but the charge of murder itself; he contends that he at no time intended to hurt, much less kill, Marco, and that the text messages at issue do not prove otherwise.

Permalink 08:53:09 am, by fourth, 340 words, 442 views   English (US)
Categories: General

E.D.N.C.: Stale SW not subject to GFE

The complete absence of a reference to time in the affidavit for this search warrant rendered it stale, and a stale warrant is not subject to the good faith exception. United States v. Carroll, 2012 U.S. Dist. LEXIS 124728 (E.D. N.C. August 31, 2012):

As already noted, [officer] Doyle's affidavit provides no information as to when the informants actually observed the criminal activity at 405 New River Dr. Pursuant to [U.S. v.] Doyle, the court concludes that the good faith exception to the exclusionary rule therefore does not apply. The Fourth Circuit has made clear that a reasonable police officer will not rely on warrants containing no information as to when the criminal activity actually occurred at the place to be searched. Doyle, 650 F.3d at 474-75. Thus, the officers' reliance on the warrant and affidavit was not reasonable and the Leon good faith exception cannot save the officer's search.

The court notes that in cases in which an affidavit provides evidence of an ongoing criminal enterprise, evidence that otherwise would be "stale" can provide a sufficient basis for a finding of probable cause. See, e.g., United States v. Minis, 666 F.2d 134, 140 (5th Cir. 1982) (holding that four-month-old evidence was not stale because investigation involved ongoing marijuana cultivation operation); United States v. McCall, 740 F.2d 1331, 1336-37 (4th Cir. 1984) (describing multiple cases allowing longer time periods between observation of the alleged criminal activity and issuance of the warrant when police have evidence of an ongoing criminal enterprise). These cases are distinguishable: the affidavits included information regarding when the criminal activity was purportedly observed. The affidavit supporting the search of Carroll's home provided no dates on which any of the alleged criminal activity occurred. Thus, the court is unable to determine, even allowing for the wider time frame permissible when evidence of ongoing criminal activity is documented, whether the observations reported in the affidavit were sufficiently temporally proximate.

Note: Doyle is both the name of the officer and the case that the court relies on: United States v. Doyle, 650 F.3d 460, 474 (4th Cir. 2011).


Permalink 08:15:31 am, by fourth, 142 words, 356 views   English (US)
Categories: General

N.D.Iowa: If warrant for car was invalid, govt could rely on automobile exception

Defendant was stopped and detained a little long, but it was with reasonable suspicion. Defendant’s car was seen at a hotel parking lot, and it was subjected to a dog sniff when it was parked, and the dog alerted. That justified a search under the automobile exception. An invalid warrant had been obtained, but that does not prevent the government from relying on an exception to the warrant requirement. United States v. Holleman, 2012 U.S. Dist. LEXIS 124443 (N.D. Iowa August 30, 2012).

The request for consent came with returning the paperwork to the driver, and that did not prolong the stop. White v. State, 319 Ga. App. 540, 732 S.E.2d 107 (2012).*

“Video and/or audio recording devices” and storage devices in a child pornography search warrant includes DVDs, VHS tapes, and 8mm tapes. United States v. Csanadi, 2012 U.S. Dist. LEXIS 124130 (D. Conn. August 31, 2012).*

Permalink 07:44:07 am, by fourth, 204 words, 365 views   English (US)
Categories: General

S.D.N.Y.: Remedy for over-seizure is excluding the excess, but this hasn't been shown invalid or flagrant

Cell phone site data warrant was issued on probable cause. The court took an in camera submission of what the probable cause was at the government’s request because it involved a hit on a witness. The search warrant for defendant’s house was not a general warrant. While there might have been an over-seizure of things, the government supports the seizure as being with probable cause of drug trafficking and murder. The remedy for over-seizure is excluding that part, not suppressing the whole search unless it is flagrant and here it isn’t. United States v. Meregildo, 2012 U.S. Dist. LEXIS 123879 (S.D. N.Y. August 28, 2012).*

Stop for swerving was valid. “The magistrate judge found, and this court agrees, that the total elapsed time is similar to the times found constitutional by the Eighth Circuit. The magistrate judge concluded that the initial stop of 19 minutes, plus the 7 to 10 minutes for the dog to alert thereafter, was not of constitutional significance.” United States v. Rodriguez, 2012 U.S. Dist. LEXIS 123426 (D. Neb. August 30, 2012).*

Defendants’ stop was justified by reasonable suspicion of credit card fraud trying to buy gift cards with stolen credit cards. United States v. Antoine, 2012 U.S. Dist. LEXIS 123591 (W.D. Pa. August 30, 2012).*

Permalink 07:29:10 am, by fourth, 189 words, 372 views   English (US)
Categories: General

TN: RS for DUI stop dissipated by passing six field sobriety tests

The officer had reason for stopping defendant based on a report from another officer about his alleged driving. When defendant passed six field sobriety tests, the totality of the circumstances, in the trial court’s view, did not support probable cause, and that finding is not against the weight of the evidence. State v. Bell, 2012 Tenn. Crim. App. LEXIS 679 (August 31, 2012),* rev'd State v. Bell, 2014 Tenn. LEXIS 121 (February 20, 2014).

Defendant consented to a patdown but expressly said he didn’t consent to the officer “digging through my pockets,” which the officer did. There was no probable cause to believe that there was another weapon on him besides the knife he admitted having. Finding of drug paraphernalia was suppressed. State v. Tyler, 153 Idaho 623, 288 P.3d 840 (App. 2012).*

This case was briefed on the question of whether defendant could insulate his winter coat from a search incident by taking it off and throwing it in his car before his arrest. The court doesn’t have to decide that question because it finds that the automobile exception also applied. State v. Loman, 153 Idaho 573, 287 P.3d 210 (2012), Review denied by State v. Loman, 2012 Ida. LEXIS 201 (Idaho, Nov. 2, 2012).*


Permalink 08:55:22 am, by fourth, 150 words, 435 views   English (US)
Categories: General

C.D.Ill.: CI's affidavit he lied to officer didn't support Franks issue, but it wasn't even believable

Defendant’s Franks hearing fails to produce evidence of any material misstatement by the police officer. The CI provided an affidavit that he lied about buying drugs from defendant saying instead that it came from an encounter outside. That part of the affidavit was belied by video surveillance of the scene that showed no encounter outside. United States v. Wallace, 2012 U.S. Dist. LEXIS 122346 (C.D. Ill. June 18, 2012).*

Overruling a 2011 case, the Motor Vehicle Division has to affirmatively determine that an operator’s stop was constitutional before a DL could be suspended. Here, it was based on an officer seeing the motorist’s motorcycle go down and going to assist and finding the driver smelled of alcohol. Schuster v. State Dep't of Taxation & Revenue, 2012 NMSC 25, 283 P.3d 288 (2012).*

Crossing both sides of lines of the highway was reasonable suspicion for a stop. State v. Womble, 2012 Tenn. Crim. App. LEXIS 668 (August 24, 2012).*

Permalink 06:59:19 am, by fourth, 203 words, 332 views   English (US)
Categories: General

OR: Getting defendant out of car a second time to ask about omitted arrests was "a mere conversation" and not a detention

Defendant was stopped for a traffic offense, and the officer found that she had a suspended DL. He asked about prior arrests, and she related some but left out prior drug arrests. The officer got back her prior arrests for drugs after she’d been allowed back in the car in the passenger seat. He got her out of the car again and asked why she’d lied about the prior drug arrests, and she started to cry. He asked for consent and got it. It was all a valid consent, even though she was retrieved from the car a second time. This was characterized as “mere conversation” and not a part of the detention [even though it should have been apparent that the reason was to confront her and ask for consent]. State v. Mazzucchi, 252 Ore. App. 122, 284 P.3d 1263 (2012).*

Officers had reasonable suspicion for stopping defendant for an apparent drug deal in a high crime area. He’d been followed, and a collection of innocent facts added up to reasonable suspicion, particularly looking to see if people were looking, an apparent drug deal in the car from somebody getting in and right out, and more. State v. Holt, 206 Md. App. 539, 51 A.3d 1 (2012).*

Permalink 06:44:55 am, by fourth, 531 words, 345 views   English (US)
Categories: General

Utah applies attenuation to find a SI to a warrant found on an illegal stop was not unreasonable.

Defendant was stopped as a potential drug buyer leaving a house occasionally surveilled for apparent drug dealing. He was asked for his ID, and that led to finding a warrant for his arrest and he was searched incident to that arrest, not the original stop. The court finds that the stop was a Fourth Amendment violation, but attenuation analysis favored the state, and the search incident was not suppressed. State v. Strieff, 2012 UT App 245, 716 Utah Adv. Rep. 26, 286 P.3d 317 (2012). The court gives a lengthy expose of Utah and Supreme Court case law on attenuation. Valuable reading for litigators, and maybe LEOs too. Just a paragraph:

[*P27] The court's conclusion that Officer Fackrell's conduct was neither purposeful nor flagrant is further supported by the circumstances of the encounter as a whole. The officer's misconduct amounted to a misjudgment, one of constitutional proportion certainly, but a single misstep over the constitutional boundary rather than a deliberate transgression. See generally Rawlings v. Kentucky, 448 U.S. 98, 110 (1990) (stating that conduct premised on an error about the officer's authority "does not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion" of evidence); People v. Brendlin, 195 P.3d 1074, 1080 (Cal. 2008) ("[A] mere 'mistake' with respect to the... law[] does not establish that the... stop was pretextual or in bad faith."). Moreover, from Strieff's perspective, the degree of intrusion upon his rights, though real, was relatively minor. Even without reasonable, articulable suspicion, Officer Fackrell could legally have stopped Strieff and asked to see his identification, noted his name and date of birth, and then run a warrants check while Strieff remained free to leave. See, e.g., State v. Hansen, 2002 UT 125, ¶ 34, 63 P.3d 650 (stating that there is no Fourth Amendment seizure when an encounter is consensual, as evidenced by a person voluntarily responding to noncoercive police questioning); State v. Deitman, 739 P.2d 616, 618 (Utah 1984) (per curiam) (concluding that no detention occurs when an officer merely asks a defendant for identification and for an explanation of his or her activities). Had a warrant then turned up, the officer would have had a constitutional basis for detaining Strieff as well as a professional obligation to arrest him. The situation that actually developed in this case is not so different as to suggest that the detention was either a deliberate or glaring violation of Strieff's constitutional rights or the result of official indifference to them. And, although we accept the State's concession that Strieff was not free to leave because Officer Fackrell retained his identification, we note that the furthest Officer Fackrell may have taken Strieff's identification was to the officer's nearby vehicle. Recognizing that such a minimal encroachment does not justify a Fourth Amendment violation, we nevertheless view the relatively slight intrusion as support for the district court's conclusion that Officer Fackrell was not acting purposefully or flagrantly in detaining Strieff. See generally State v. Martin, 179 P.3d 457, 463-64 (Kan. 2008) (taking into account all the circumstances surrounding the officers' encounter with the defendant, including the relatively minimal intrusion upon the defendant's privacy by engaging him in a brief conversation about his activities, to conclude that the officer's conduct was not purposeful). The purpose and flagrancy factor therefore weighs against suppression.


Permalink 03:22:09 pm, by fourth, 372 words, 486 views   English (US)
Categories: General

Labor Day Special: SCOTUS Lurking

Missouri v. McNealy, scheduled for conference on September 24. SCOTUSBlog here.

Issue: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

Maryland v. King, conference not yet set. SCOTUSBlog here and here:

Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.

Chief Justice Roberts granting a stay July 31st telling us how he's voting, Maryland v. King, Roberts, Ch.J. in chambers:

To begin, there is a reasonable probability this Court will grant certiorari. Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act. See United States v. Mitchell, 652 F.3d 387 (CA3 2011), cert. denied, 566 U.S. ___ (2012); Haskell v. Harris, 669 F.3d 1049 (CA9 2012), reh’g en banc granted, 2012 WL 3038593 (July 25, 2012); Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702 (2007), cert. denied, 553 U. S. 1054 (2008); see also Mario W. v. Kaipio, 2012 WL 2401343 (Ariz. 2012) (holding that seizure of a juvenile’s buccal cells does not violate the Fourth Amendment but that extracting a DNA profile before the juvenile is convicted does).

The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government. Reply to Memorandum in Opposition 3; see 114 Stat. 2728, as amended, 42 U.S.C. §14135a(a)(1)(A) (authorizing the Attorney General to “collect DNA samples from individuals who are arrested, facing charges, or convicted”). Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government. These factors make it reasonably probable that the Court will grant certiorari to resolve the split on the question presented. In addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.

Finally, the decision below subjects Maryland to ongoing irreparable harm. ...


Permalink 08:38:12 am, by fourth, 552 words, 1954 views   English (US)
Categories: General

W.D.Pa.: “All persons” warrant was overbroad here, but officers get qualified immunity

This “all persons” warrant was overbroad, but the executing officers get qualified immunity. Church Of Universal Love & Music v. Fayette County, 2012 U.S. Dist. LEXIS 124359 (W.D. Pa. August 31, 2012):

On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them.

A majority of state and federal courts addressing the issue have followed DeSimone's pronouncement that an "all persons" warrant is constitutional if the information given the issuer established probable cause to believe that all persons on the premises at the time of the search are involved in the criminal activity. See, e.g., Owens v. Lott, 372 F.3d 267, 276 (4th Cir. 2004). Otherwise stated, such a warrant is authorized only if "the supporting affidavit establishes probable cause that evidence of illegal activity will be found upon every person likely to fall within the warrant's scope at the time of execution." United States v. Swift, 720 F. Supp. 2d 1048, 1056 (E.D. Ark. 2010).

Decisions of the United States Court of Appeals for the Third Circuit are in accord with DeSimone's approach. See United States v. Guadarrama, 128 F. Supp. 2d 1202, 1208 n. 6 (E.D. Wis. 2001) (citing Baker v. Monroe Twp., 50 F.3d 1186 (3d Cir. 1995)). Consistent with DeSimone, in United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), our Court of Appeals stated that "a warrant may authorize the search of all persons present if there is probable cause to believe that a premises is dedicated to criminal activity." Id. at 212 (citing Lott, 372 F. 3d at 276). In doing so, the Court of Appeals cited, with approval, the following recitation of situations in which an "all persons" warrant might be appropriate: "a building or apartment used as a crack house, a barn used as a methamphetamine lab, or a warehouse used exclusively as a storage place for arms." Id. (quoting Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1997)). Thus, Abbott reflects DeSimone's suggestion that an "all persons" warrant may be suitable with reference to a limited space, used for a limited purpose.

In this case, the affidavit tendered to the issuing judge did not set forth reasonable grounds to believe that all persons on the premises at the time were engaged in criminal activity, or that the premises were dedicated to criminal activity. The information contained in the affidavit did not suggest a limited space such as a building, barn, or warehouse - instead, it described a variety of apparently open, broadly delineated locations - such as "vendors row," a grassy dirt road running between the stage and camping areas, or the camping sites themselves.

Permalink 08:28:03 am, by fourth, 95 words, 1834 views   English (US)
Categories: General

M.D.Ala.: 19 month delay for forensic eval of seized computer not unreasonable under Fourth Amendment

A 19 month delay between seizure of a computer and its forensic evaluation because of a backlog of cases in state crime lab was not an unreasonable seizure. United States v. Lovvorn, 2012 U.S. Dist. LEXIS 123677 (M.D. Ala. April 24, 2012).

“Video and/or audio recording devices” in a search warrant included DVDs, VHS tapes or 8mm tapes. United States v. Csanadi, 2012 U.S. Dist. LEXIS 124130 (D. Conn. August 31, 2012).*

The existence of an arrest warrant justified defendant’s stop, no matter what the CI said. United States v. Heflin, 2012 U.S. Dist. LEXIS 123008 (N.D. Ohio August 14, 2012).*

Permalink 08:07:27 am, by fourth, 141 words, 1787 views   English (US)
Categories: General

GA: "DVDs of pornography" probably inspecific, but searching everything isn't

Doubletalk of the week: “DVDs of pornography” probably insufficient, but “‘records’ and ‘information’ encompassed ‘all the foregoing items of evidence in whatever form and by whatever means they may have been created, duplicated, transferred, or stored, including any electrical, electronic, or magnetic form’ to include ‘floppy diskettes, hard disks, CD, CD-ROM, DVD, DVD-Rom,’ other methods of documentation, and ‘[a]ny records or information related to Internet based pornography …’” is not. Womack v. State, 317 Ga. App. 496, 731 S.E.2d 387 (2012).* [So, they can’t search DVDs because it’s too inspecific, but they can search everything electronic or paper. Try and make sense of this because I can’t. This makes absolutely no sense that DVDs alone is not specific. How are they labeled? It was plenty specific and limited the search. Right outcome, but still a general search condoned by sloppy writing.]

Permalink 07:54:52 am, by fourth, 248 words, 1841 views   English (US)
Categories: General

IN: School security officer wasn't acting as a LEO, so student pulling away from handcuffing wasn't a crime

A school security officer, a local police officer working on a contract basis, started to handcuff the student when he stopped a fight about to start when the student pulled away. He wasn’t acting as a law enforcement officer, so the crime of resisting a law enforcement officer “cannot stand.” K.W. v. State, 976 N.E.2d 61 (Ind. App. 2012)*:

In the context of searches and seizures in a school setting, our courts have recognized a clear distinction between a search and seizure for the purpose of furthering "educationally related goals" and for the purpose of a criminal investigation. ...

We conclude that the factors which distinguish between law enforcement officers investigating crimes and those serving as school security officers promoting a safe school environment, as set out in Myers, T.S., and C.D., apply here. Officer Smith testified that, as a liaison officer for Ben Davis High School, his duties included serving "as security for all staff [and] students, and enforc[ing] some dress code policies and all other rules and procedures." Transcript at 2. On August 30, 2011, Officer Smith had observed K.W. and another student "facing off" in the hallway before a teacher intervened. Id. As Officer Smith approached K.W., he asked K.W. to turn around, and he "handcuffed him for his safety[.]" Transcript at 3. Officer Smith further testified that that was "a normal procedure [he] normally do[es]" in such a situation "so neither student would attempt to strike the other one[.]" Id. at 3, 6.

Permalink 07:25:23 am, by fourth, 179 words, 1749 views   English (US)
Categories: General

E.D.Ky.: No standing in search of defendant's bail money turned over to court clerk

Defendant had no standing that the cash he turned over to court clerk for bail money wouldn’t be examined by the authorities. United States v. Donald, 2012 U.S. Dist. LEXIS 122537 (E.D. Ky. August 6, 2012).*

Defense counsel was not ineffective for not moving to suppress letters received by defendant’s co-defendant in jail that were used to impeach the co-defendant. Robinson v. United States, 2012 U.S. Dist. LEXIS 123901 (N.D. W.Va. July 10, 2012),*

The warrant for defendant’s place and smartphone was issued with probable cause, and the alleged reckless disregard defendant seized on wasn’t. United States v. Kraeger, 2012 U.S. Dist. LEXIS 122673 (M.D. Pa. August 29, 2012).*

Nineteen month old information is not stale in a child pornography case. The court cites one case with three year old information. United States v. Vaskas, 2012 U.S. Dist. LEXIS 122792 (E.D. Pa. August 29, 2012).*

On the government’s unrebuted evidence that defendant signed the consent form and appeared to understand it, the search was found to be by consent. United States v. Young, 2012 U.S. Dist. LEXIS 122699 (E.D. Tenn. August 7, 2012).*

Permalink 06:29:49 am, by fourth, 183 words, 1804 views   English (US)
Categories: General

D.Utah: Twenty minutes for stop without ticket was unreasonable here

The officer detained defendant for 20 minutes without deciding what he was going to do about the alleged traffic offense, and the entire stop just lasted too long. The government’s asserted reasonable suspicion fails. United States v. Prado, 2012 U.S. Dist. LEXIS 122558 (D. Utah August 28, 2012)*:

The government has not met its burden here. Trooper Berrie stopped Ms. Prado for her failure to signal, a minor traffic violation. And yet he testified that twenty minutes into the stop, he was still unsure whether he was going to give Ms. Prado a ticket. (Tr. at 40.) After determining that neither Ms. Prado nor her passenger had any outstanding warrants, there was no reason for Trooper Berrie to detain Ms. Prado further. The government's "general interest in criminal investigation, without more, is generally insufficient to outweigh the individual interest in ending the detention." United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc).

The government claims that Trooper Berrie had reasonable suspicion to continue the search for a number of reasons. ... Given the language barrier, these small inconsistencies do not amount to reasonable suspicion of criminal activity.

Permalink 06:07:31 am, by fourth, 172 words, 1718 views   English (US)
Categories: General

W.D.Mo.: Walking into a house being searched under a SW justified frisk

Defendant walked into a house while a search warrant was being executed there for drugs. Apparently the officers were too busy conducting the search to stop him. Once inside, he was subject to a frisk for weapons without more. United States v. Ward, 2012 U.S. Dist. LEXIS 122051 (W.D. Mo. August 14, 2012):

The Court finds that the officers were justified in conducting the frisk of defendant Ward for safety reasons without regard to any particularized suspicion. As set forth in United States v. Patterson, 885 F.2d 483, 485 (8th Cir. 1989), "The possible danger presented by an individual approaching and entering a structure housing a drug operation is obvious. In fact, it would have been foolhardy for an objectively reasonable officer not to conduct a security frisk under the circumstances." There was no violation of defendant's constitutional rights.

Victims of an internet Ponzi scheme lacked standing to raise a Fourth Amendment challenge to the government’s effort to forfeit the money from the scam. Disner v. United States, 2012 U.S. Dist. LEXIS 122425 (D. D.C. August 29, 2012).*

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by John Wesley Hall
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  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)
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"If it was easy, everybody would be doing it. It isn't, and they don't."

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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