Archives for: October 2012


Permalink 05:10:15 pm, by fourth, 140 words, 396 views   English (US)
Categories: General "Thoughts on the Oral Arguments in the Dog Sniff Cases" Thoughts on the Oral Arguments in the Dog Sniff Cases by Orin Kerr:

This morning I attended the oral arguments at the Supreme Court in the dog sniff cases, Florida v. Jardines and Florida v. Harris. Based on the arguments, my guess is that the state will win one and lose one. The Court will probably agree that the Fourth Amendment was violated in Jardines, in which the officer brought the dog to the front door and the dog sniffed for drugs. On the other hand, the Court will probably rule that the Fourth Amendment was not violated in Harris because the training the dog received was sufficient. Here are some impressions from the argument, as well as my guesses to where the future majorities may be (which of course are worth the electrons you paid for them): ...

Permalink 09:39:06 am, by fourth, 169 words, 375 views   English (US)
Categories: General

Drug dog day in SCOTUS

WaPo: Supreme Court is asked to be skeptical of drug-sniffing dogs by Robert Barnes,

NEW SMYRNA BEACH, Fla. — Aldo the German shepherd and Franky the chocolate Lab are drug-detecting dogs who have been retired to opposite ends of the ultimate retiree state.

But their work is still being evaluated, and on Wednesday it will be before the Supreme Court. The justices must decide whether man’s best friend is an honest broker as blind to prejudice as Lady Justice, or as prone as the rest of us to a bad day at the office or the ma­nipu­la­tion of our partners.


For one thing, no national standard for certification exists. “There’s no such thing as a well-trained narcotics detection dog,” said Jeffrey Weiner, a criminal defense lawyer from Miami. “It means whatever a trial judge or appellate judge or Supreme Court justice wants it to mean.”

ABAJ: Chemerinsky: The Fourth Amendment Goes to the Dogs by Erwin Chemerinsky.

NPR here; NBC News here.

Prior post here.

Permalink 09:33:18 am, by fourth, 114 words, 392 views   English (US)
Categories: General

E.D.Tenn.: PC defendant was in residence justified entry on arrest warrant

Officers with an arrest warrant had probable cause, not just reasonable suspicion which is all that is required, to believe that defendant was in a camper, so they could enter it. United States v. Locke, 2012 U.S. Dist. LEXIS 155207 (E.D. Tenn. October 29, 2012),* R&R 2012 U.S. Dist. LEXIS 156221 (E.D. Tenn. August 29, 2012).*

Defendant’s stop was based on a purported hostage of a smuggler calling 911 and identifying herself. That was entitled to more reliability. United States v. Lagos, 2012 U.S. Dist. LEXIS 155108 (S.D. Tex. October 30, 2012).*

Property owner’s Fourth Amendment administrative warrant claim changed on appeal, so the change was defaulted. Levitt v. City of Oak Ridge, 2012 Tenn. App. LEXIS 753 (October 30, 2012).*

Permalink 09:14:07 am, by fourth, 357 words, 562 views   English (US)
Categories: General

D.N.H.: Omission of information on credibility of informant did not affect PC determination

Court is troubled by officer’s omission of the named informant’s conviction for falsifying prescriptions but weighed against the detail of his report, the omission did not affect the probable cause determination. But, the court doesn’t like how it has to decide the case, so it chides the officer’s omission. United States v. Tanguay, 907 F. Supp. 2d 165 (D. N.H. 2012):

Because the application for the warrant to search Tanguay's computer demonstrates probable cause that it contained child pornography, even when clarified by the facts that Lieutenant Nolet intentionally or recklessly omitted, Tanguay's motion to suppress the evidence allegedly found during that search must be denied. As a result of this ruling, Lieutenant Nolet's intentional or reckless conduct in withholding Wiggin's felony falsification conviction from the magistrate will go "unpunished" in the sense that it will have no effect on Tanguay's prosecution here. The same can be said of her strained efforts to defend that decision through her affidavit to, and testimony before, this court.

But Franks simply does not authorize the use of the exclusionary rule as a deterrent for even intentional misstatements or omissions in a warrant application, unless it was those misstatements that created (or, in the case of omissions, preserved) probable cause. Indeed, prior to Franks, lower courts had held that "'[t]he fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.'" 2 LaFave, supra, § 4.4(c), at 549-50 (quoting United States v. Carmichael, 489 F.2d 983, 989 (7th Cir. 1973) and citing additional cases). Franks has been criticized for the Court's failure to "acknowledge[] the existence of this body of authority," let alone "explain[] in some detail the reasons which justify a rejection of it," id. at 550, and a case of this nature lends a measure of support to such criticism. But criticism is one thing, and controlling law is another.

Under that controlling law, the evidence seized through the search warrant cannot be excluded unless the facts that Lieutenant Nolet intentionally or recklessly omitted would have negated probable cause for the search. They would not have, so Tanguay's motion to suppress must be DENIED.

Permalink 08:46:32 am, by fourth, 82 words, 383 views   English (US)
Categories: General

OR: Opening back hatch when asked for consent shows consent

When the officer asked for consent, the defendant’s walking to the back hatch and opening it was consent. State v. Pickle, 253 Ore. App. 235, 288 P.3d 1039 (2012).

Search was not shown by state to be attenuated from unlawful stop. State v. Knapp, 253 Ore. App. 151, 290 P.3d 816 (2012).*

Where defendant was arrested for criminal trespass and that led to a search incident, the state had to show the trespass. Here, it didn’t, so the search incident fails. State v. Musser, 253 Ore. App. 178, 289 P.3d 340 (2012).*

Permalink 08:15:31 am, by fourth, 132 words, 399 views   English (US)
Categories: General

E.D.Tenn.: Having admitted traffic violation, pretext fails

Defendant admitting that he committed the traffic violation that led to the stop, his pretext argument fails. United States v. Ford, 2012 U.S. Dist. LEXIS 155208 (E.D. Tenn. October 30, 2012),* R&R 2012 U.S. Dist. LEXIS 156222 (E.D. Tenn. August 17, 2012).*

Defendant failed to show IAC of defense counsel in not challenging the search under a warrant for the multi-resident house he lived in where his pleading was not helpful, the cases cited were no help, and he failed to show how the police violated the Fourth Amendment. Ables v. United States, 2012 U.S. Dist. LEXIS 155220 (S.D. Ohio October 30, 2012).*

Defendant raised and lost the search and seizure issue in the direct appeal, and he offers nothing to permit revising it. Smith v. United States, 2012 U.S. Dist. LEXIS 155083 (S.D. Ill. October 30, 2012).*


Permalink 08:54:21 am, by fourth, 163 words, 398 views   English (US)
Categories: General

OH9 seems to confuse RS and PC from furtive gesture in a traffic stop

Defendant was stopped for wandering over the centerline then an abrupt turn. He was seen stuffing something between the seats then jumped out of the car and headed toward the officers. That gave them concern for their safety and they may have pulled their guns. They had probable cause for a search of the car. State v. Whitfield, 2012 Ohio 5019, 2012 Ohio App. LEXIS 4391 (9th Dist. October 29, 2012)* [No they didn’t. They had reasonable suspicion for a search of the seats for a possible weapon, which could have produced the same outcome, but it is NOT probable cause.]

Officers watching a drug house saw a car pull up, the passenger get out and go in, and come back out in five minutes. The car made a u-turn, and officers attempted a stop. Defendant fled from the car and dropped a baggie of crack which he admitted was his. Officers had reasonable suspicion for a stop. State v. Murray, 2012 Ohio 4996, 2012 Ohio App. LEXIS 4381 (6th Dist. October 26, 2012).*

Permalink 08:46:11 am, by fourth, 354 words, 416 views   English (US)
Categories: General

OH3: Defense counsel had a conflict representing both passenger and driver as soon as their defenses diverged at suppression hearing when plea offer made to passenger

Defense counsel representing both the driver and passenger of a car had a conflict of interest because it was obvious they had conflicting defenses to the charge. State v. Smith, 2012 Ohio 5020, 2012 Ohio App. LEXIS 4397 (3d Dist. October 29, 2012):

[*P30] Under these circumstances, we do not see how one attorney could legitimately claim to give effective and impartial advice to serve both Defendants. It may have been different if Smith declined to accept the plea agreement because she professed her innocence, or if she was reluctant to testify against Brooks because of some sense of loyalty or fear of reprisal. However, Smith had already signed a confession admitting her guilt and implicating Brooks.

[*P31] If Smith's counsel would have successfully pursued this plea offer on Smith's behalf, the result would have detrimentally affected Brooks. See Moss, supra. As such, the existence and the terms of this plea offer establish that Smith's counsel "actively represented conflicting interests," and that the conflict "actually affected the adequacy of his representation." See State v. Gillard, 78 Ohio St.3d at 552. Based on the facts in this case, Smith's constitutional rights to effective and conflict-free representation of counsel were denied her at the plea bargaining stage.

[*P32] This Court has also recognized the trial court's duty to conduct an inquiry into a possible conflict of interest to determine whether a defendant would receive the right to conflict free counsel guaranteed him by the Sixth Amendment to the United States Constitution. State v. Johnson, 185 Ohio App.3d 654, 2010 Ohio 315 ¶¶ 3-4 (3d.Dist), citing to Gillard. In Johnson, a review of several seminal United States Supreme Court cases clearly demonstrated that where a trial court knows or reasonably should know of an attorney's possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists. Johnson, at ¶ 3, quoting Gillard, 64 Ohio St.3d at 309-312. When "a trial court breaches its affirmative duty to inquire, a criminal defendant's rights to counsel and to a fair trial are impermissibly imperiled and prejudice or 'adverse effect' will be presumed." Id.

Permalink 08:27:03 am, by fourth, 147 words, 388 views   English (US)
Categories: General

E.D.Wis.: Placing photographic equipment on a grow operation in open fields was not a Fourth Amendment issue

Officers placing photographic equipment on a grow operation in open fields was not a Fourth Amendment issue–there was no reasonable expectation of privacy there. United States v. Mendoza, 2012 U.S. Dist. LEXIS 154750 (E.D. Wis. October 9, 2012). Update: CNET: Court OKs warrantless use of hidden surveillance cameras by Declan McCullagh; ArsTechnica here; Government Technology here.

Defendant stopped at the gate to Fort Campbell to provide ID before entering the base, and the officer on duty at the gate could smell the “pungent odor of alcohol.” That, according to an unpublished Kentucky case, at least, was reasonable suspicion for a stop. United States v. Riley, 2012 U.S. Dist. LEXIS 154672 (W.D. Ky. October 29, 2012).

Defendant voluntarily consented. She had been Mirandized and had time to think about it on the drive back to her apartment before it happened. United States v. Lizarraras-Chacon, 2012 U.S. Dist. LEXIS 154763 (D. Ore. October 29, 2012).*

Permalink 08:13:11 am, by fourth, 94 words, 353 views   English (US)
Categories: General "The Fourth Amendment in the Supreme Court This Week" The Fourth Amendment in the Supreme Court This Week by Jim Harper:

Prior to the development of trade and commerce, movable property was “not esteemed of so high a nature, nor paid so much regard to by the law,” Blackstone tells us in his commentaries on the laws of England. Such property in transit was routinely confiscated by authorities or tariffed at exorbitant rates.

When commercial relations expanded, the quantity and value of personal property increased, and the law “learned to conceive different ideas of it.” Legal protection for movable property increased.

Permalink 07:55:28 am, by fourth, 354 words, 951 views   English (US)
Categories: General

NE: Where the consenter knows that drugs are the object of the search, a general consent includes opening closed containers

Consent to search a car, given knowing that the object of the search is drugs, is consent to open closed packages within the vehicle. Here, it was a gift box. State v. Howell, 284 Neb. 559, 822 N.W.2d 391 (2012):

[7,8] These cases guide our resolution of the instant case. Lewis asked Howell if there were drugs or weapons in the vehicle immediately prior to obtaining consent to search. Thus, a reasonable person would have been on notice that Lewis was looking for drugs or weapons. The scope of a search is generally defined by its expressed object. One could reasonably expect drugs to be hidden in a closed container such as the gift-wrapped box. "A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search." When Howell consented to a search of the vehicle, he did not place any limitation on the search. After Lewis observed the gift-wrapped box, he asked Howell to whom it belonged and whether it was "basically" Howell's. Despite Lewis' interest in the box, Howell did not revoke or limit his consent to search. The general rule is that when a suspect does not limit the scope of a search, and does not object when the search exceeds what he later claims was a more limited consent, an officer is justified in searching the entire vehicle. In the instant case, Lewis used a knife to cut the tape on the gift wrap and created a tear in the box as he tried to peer inside. However, the box and gift wrap were not rendered useless by the search. The tear in the generic cardboard box could be fixed with a piece of tape, and the wrapping paper could be secured to the box with another piece of tape. Under the circumstances, we conclude that the search of the box was within the scope of Howell's consent. Thus, the district court did not err in overruling Howell's motion to suppress the evidence.

Permalink 07:13:54 am, by fourth, 91 words, 378 views   English (US)
Categories: General

D.Vt.: Inmate accepting furlough subject to search

Defendant accepted state furlough: “Lamell's choice was between remaining in his cell or going on furlough. Under such circumstances, this Court cannot conclude that acceptance of certain terms of release rendered his assent involuntary.” Therefore, he was subject to search on furlough. United States v. Lamell, 2012 U.S. Dist. LEXIS 153424 (D. Vt. October 25, 2012).*

Defendant’s stop for turning too wide and going outside the lane was justified. State v. Petty, 2012 Tenn. Crim. App. LEXIS 866 (October 11, 2012).*

No jurisdiction to enjoin TSA’s alleged Fourth Amendment violations. Haka v. United States, 107 Fed. Cl. 111 (2012).*


Permalink 06:31:04 am, by fourth, 328 words, 402 views   English (US)
Categories: General

OH2: Stop with RS of drugs in high crime area justifies patdown

Defendant was stopped in a high crime area with at least reasonable suspicion. The fact there were drugs involved and the stop was a high crime area justified a patdown. The officer also articulated a fear [not facts] that defendant could have procured a weapon from the other person in the car. State v. Bales, 2012 Ohio 4968, 2012 Ohio App. LEXIS 4349 (2d Dist. October 26, 2012):

[*P23] Additionally, it is well recognized that the need for a protective pat down becomes more urgent where drugs are involved. "The very nexus between drugs and guns can create a reasonable suspicion of danger to the officer." State v. Thompson, 1st Dist. Hamilton No. C-050400, 2006 Ohio 4285, ¶11. Further, "[r]ecognizing the prevalence of weapons in places where illegal drugs are sold and used * * * an officer's fear of violence when investigating drug activity is a legitimate concern that will justify a pat-down search for weapons." State v. Oatis, 12th Dist. Butler No. CA2005-03-074, 2005 Ohio 6038, ¶ 23, citing State v. Taylor, 82 Ohio App.3d 434, 612 N.E.2d 728 (2d Dist.1992).

[*P24] We find that, based on the totality of the circumstances, Officer Benge articulated a reasonable basis to believe that appellant may be armed and dangerous. The area in which the officers stopped appellant was known for its high rate of crime and specifically its high rate of drug crimes. Officer Benge testified that, based on her knowledge and experience as an officer, "weapons are synonymous with drugs. They go hand and hand." Moreover, Officer Benge testified that she was concerned appellant may have obtained a weapon from the female passenger while they were in the back of the cruiser unhandcuffed. These factors, taken together and viewed objectively through the eyes of the officer on the scene, warrant a reasonable belief that appellant could be armed. Thus, the totality of the circumstances supports the trial court's finding that Officer Benge's pat down of appellant was proper.

Note: This is virtually a per se rule the way this is written.

Permalink 06:23:26 am, by fourth, 132 words, 457 views   English (US)
Categories: General

CA9: CPS seizure of child was proper under special needs exception

The seizure of plaintiffs’ daughter for medical procedures was completely reasonable and based on medical advice, which plaintiffs virtually admit. Therefore, the special needs exception applies, and the state CPS officials have qualified immunity. Mueller v. Auker, 694 F.3d 989 (9th Cir. 2012).*

While defendant in the house of another logically would have standing to challenge anything seized off his person, defendant did not show a connection to the premises to have standing to challenge seizure of marijuana from the house. United States v. Aldaya, 2012 U.S. Dist. LEXIS 154172 (E.D. N.C. October 26, 2012).*

Defendant’s Fourth Amendment 2255 claim fails for lack of an IAC or actual innocence claim. Thus, it had to be raised in the original proceeding and was defaulted. Parks v. United States, 2012 U.S. Dist. LEXIS 154149 (N.D. Ga. October 1, 2012).*

Permalink 06:13:12 am, by fourth, 305 words, 431 views   English (US)
Categories: General

N.D.W.Va.: Following defendant into house to get DL was illegal entry and without consent

“Officer Ammons therefore did not violate Defendant's rights by requesting his name and date of birth.” Defendant didn’t have his DL on him, saying it was in his “crib.” The officer asked for it, but wouldn’t let defendant go in the house to get it alone for officer safety. Thus, he followed defendant into the house. That was an illegal entry. The consent argument fails, too, because there was no express or implied consent to enter. The court notes similar cases. Marijuana was smelled and a warrant obtained. United States v. Harvey, 901 F. Supp. 2d 681 (N.D. W.Va. 2012), adopted 902 F. Supp. 2d 681 (N.D. W.Va. 2012):

In the case at bar, Defendant was not under arrest and was not believed to have committed any crime. No one was injured or needed assistance in the residence. There was no arrestable "underlying offense" in this case as regards Defendant. The driver of the car was driving without a license and the officers smelled burnt marijuana in the car. The officers found a bong in the trunk. Defendant was a passenger in the car. There was no evidence Defendant had committed any crime. He was not connected to the bong or the marijuana smell. The police did not find any marijuana in the car and did not test the bong for residue or fingerprints. Whether Defendant provided a false name or Officer Ammons heard the name incorrectly, Defendant's offer that his ID was in his "crib" was an insufficient reason for a warrantless entry into his home.

Accordingly, the undersigned concludes on the totality of the facts of this case that the United States has failed to carry its burden of proving that exigent circumstances existed or that an emergency existed which justified the warrantless police entry into Defendant's home on the date in question.

Permalink 06:03:36 am, by fourth, 107 words, 476 views   English (US)
Categories: General

Russia Today: "Fourth Amendment freedom in focus of US Supreme Court today" / SCOTUSBlog link

Russia Today: Fourth Amendment freedom in focus of US Supreme Court today:

The US Supreme Court will hear today arguments against the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA), upon which the government could obtain extended rights to spy on its citizens.

The arguments will be presented by the American Civil Liberties Union (ACLU).

Though the amendments are pursuing national security issues and not targeted at US citizens, they are, as the ACLU claim, violating the Fourth Amendment freedom from unreasonable searches.

The case is Clapper v. Amnesty International USA. [The Executive Branch of government is closed because of the hurricane, but the judicial branch isn't.]

Permalink 12:02:09 am, by fourth, 451 words, 840 views   English (US)
Categories: General

N.D.Ga.: Odor of burning marijuana supports a SW for a house

Odor of burning marijuana coming from a house is enough to justify a search warrant for the house for the marijuana, even in the face of a claim that only a small amount of marijuana would be found. United States v. Kilgore, 2012 U.S. Dist. LEXIS 154148 (N.D. Ga. September 13, 2012):

Kilgore contends that the information provided by Rawlings and the odor of burnt marijuana did not establish probable cause to search his residence, asserting that "it only tends to indicate the recent presence of a small amount of marijuana." [Doc. 50 at 4-5]. Kilgore's arguments, however, ignore the fact that the basis for the warrant for which probable cause was established was possession under O.C.G.A. § 16-13-30(a), see (Gov. Ex. 1), and courts have routinely found probable cause existed to search a residence based on a marijuana odor detected by law enforcement officers, see United States v. Yarbrough, 272 F. App'x 438, 443 (6th Cir. 2007) (per curiam) (unpublished) (citations omitted) ("[A]n officer's detection of the smell of marijuana in a home may by itself establish probable cause," and "[w]hen the smell of marijuana is coupled with [a] [ ] tip of drug activity, probable cause exists for a search warrant."); United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (citation omitted) ("There is no doubt that the agent's suspicions rose to the level of probable cause when, as the door stood open, he detected what he knew from his law enforcement experience to be the odor of marijuana.") ; United States v. Harwell, 426 F. Supp. 2d 1189, 1196 (D. Kan. 2006) (citation omitted) ("The odor of burning marijuana emanating from the open front door of a single home would lead a reasonable officer to believe that marijuana was probably present in the residence."); see also Johnson v. United States, 333 U.S. 10, 13 (1948); United States v. Noriega, 676 F.3d 1252, 1261 (11th Cir. 2012); United States v. Cephas, 254 F.3d 488, 495 (4th Cir. 2001); United States v. Kittrell, No. CR 10-2903-TUC-RCC (JCG), 2011 WL 2746252, at *9 (D. Ariz. May 20, 2011), adopted by 2011 WL 2784618, at *1 (D. Ariz. July 13, 2011) (citation omitted); United States v. Neth, No. 6:09-cr-210-Orl-19GJK, 2010 WL 1257695, at *7-8 (M.D. Fla. Mar. 30, 2010); Floyd v. United States, Civil Action No. 3:08cv133-MEF, 2010 WL 1052839, at *7 (M.D. Ala. Feb. 18, 2010), adopted by 2010 WL 1197707, at *1 (M.D. Ala. Mar. 23, 2010); United States v. Murat, No. 08-20479-CR, 2008 WL 4394788, at *13 (S.D. Fla. Sept. 26, 2008), adopted at *1; United States v. Correa, No. 1:07-cr-00011-MP-AK, 2008 WL 1804309, at *12 (N.D. Fla. Apr. 18, 2008). In short, the totality of the circumstances presented in the affidavit, when taking a "realistic and commonsense approach" and not viewing the affidavit in a "hypertechnical manner," established probable cause for the search warrant for Kilgore's residence for the crime of unlawful possession of marijuana. Miller, 24 F.3d at 1361 (citation omitted).


Permalink 12:55:55 pm, by fourth, 137 words, 424 views   English (US)
Categories: General

SC: Failure to specify place to be searched was cured by attached affidavit

Where the warrant failed to describe the place to be searched but the affidavit did and was attached, the papers as a whole properly described the place to be searched. State v. Cheeks, 400 S.C. 329, 733 S.E.2d 611 (2012).

The trial court held that the officer failed to show that a traffic violation occurred and suppressed the search based on that stop. The video of the stop did not contradict the trial court’s findings, so they are affirmed. State v. Houghton, 384 S.W.3d 441 (Tex. App. – Ft. Worth 2012).

Defendant argued that the inventory policy for no insurance was too discretionary with the officer. Here, however, the vehicle was parked so it impeded traffic, so the inventory was proper because the vehicle was towed for that without regard to possible pretext. State v. Penney, 252 Ore. App. 677, 288 P.3d 989 (2012).*

Permalink 12:34:25 pm, by fourth, 174 words, 376 views   English (US)
Categories: General

N.D.Iowa: Impoundment policy used "suspicion," but court requires reasonable suspicion to control discretion

Where an impoundment policy mentions “suspicion,” the court requires that the suspicion be reasonable so the inventory search will be reasonable and less subject to the whim of the officer. United States v. Eckholt, 2012 U.S. Dist. LEXIS 153614 (N.D. Iowa October 24, 2012):

The impoundment policy itself does not state that an officer's "suspicion" must be "reasonable." The policy simply states that to justify impoundment, an officer must "suspect" the vehicle was used to commit a public offense. If the policy does not require an officer's suspicion be reasonable, however, then any suspicion at all would justify the search, giving an officer unfettered discretion to search any vehicle. The Court believes a "reasonableness standard" may be inferred. The issue before the Court, then, is whether Lt. Klunder had a "reasonable suspicion" that Defendant's vehicle was "used in the commission of a public offense." The Government argues that because Defendant had drug paraphernalia on his person, Lt. Klunder had a reasonable suspicion that the vehicle was used in the commission of drug or drug paraphernalia possession.

Permalink 12:12:00 am, by fourth, 409 words, 609 views   English (US)
Categories: General

TX7: Officer reasonably relied on landlord's representation of defendant's eviction

The officer reasonably relied on information that defendant had been evicted for the landlord’s consent to search. Later information was to the contrary, but “reasonableness is not assessed through the lens of hindsight. Rodriguez, 497 U.S. at 188.” Biera v. State, 391 S.W.3d 204 (Tex. App. – Amarillo 2012):

=> Read more!

Permalink 12:02:00 am, by fourth, 448 words, 449 views   English (US)
Categories: General

D.S.C.: Owner of vehicle showing at scene of search wanting to take the car voided the inventory

Where the owner of the vehicle showed up at the scene before the decision to inventory and tow the vehicle was made, the inventory was improper because she wanted the car and they refused to give it over [apparently because they were bound and determined to search it]. United States v. Derrick, 2012 U.S. Dist. LEXIS 153809 (D. S.C. October 26, 2012):

Because it finds that Ms. Stover was present at the time of McIlwain's arrest and before the inventory search occurred, the Court must conclude that the inventory search in this case violated the Fourth Amendment. As explained above, police must have lawful custody of a vehicle before an inventory search is proper. Here, however, at the time they arrested the defendant, the police could have turned the vehicle over to its rightful owner rather than impounding it. Cf. United States v. Fort, 313 Fed. App'x 665 (4th Cir. 2009) (finding that police had lawful custody of vehicle and that inventory search was valid where police made the decision to have vehicle towed and to subject it to inventory search prior to the time defendant's wife arrived at the scene). The governmental interests discussed above in preventing theft, forestalling claims, and protecting the police are not implicated where the owner of the car is present at the time of the defendant's arrest. Indeed, Ms. Stover could have taken the Accord and the police would have had no responsibility for the property therein.

Moreover, the officers' decision to impound the Accord and subject it to inventory violated Lancaster City Police Department regulations. Specifically, the Lancaster City Police Department's policy regarding "traffic ancillary services" performed by police officers states that officers "may cause a vehicle to be towed" under one of several limited circumstances, including "[a]ny vehicle from which an officer makes an arrest and there is no responsible party to whom the arrestee can turn over the possession of the vehicle." Def.'s Ex. 1, at p. 3. Then, "[w]henever a vehicle is towed, the inventory and impoundment record will be completed by an officer and processed through normal administrative channels as a permanent record." Id. at p. 4. In other words, where a "responsible party," such as the vehicle's owner, is present, an officer does not have a basis for impounding the vehicle and subjecting it to inventory search. See Bertine, 479 U.S. at 375 (noting that decision to impound must be based on "standard criteria and on the basis of something other than suspicion of evidence of criminal activity").

Based on the above, the Accord was not in the lawful custody of the officers at the time of the inventory search. Consequently, the inventory search violated the defendant's rights under the Fourth Amendment.


Permalink 12:44:51 pm, by fourth, 522 words, 575 views   English (US)
Categories: General

NJ: While cell phone records were inproperly obtained, that did not lead to the discovery of the victim's body, so it should not have been suppressed

Defendant’s cell phone records were improperly obtained by a flawed process, but the inevitable discovery doctrine supported the finding of the victim’s body after the finding of the murder weapon, so the body would not be suppressed. State v. Smith, 212 N.J. 365, 54 A.3d 772 (2012):

We turn then to the question whether the State did establish, by clear and convincing evidence, that it had sufficient probable cause to obtain these telephone records without regard to the improperly-obtained information they gleaned from reviewing those records. That inquiry, in turn, requires consideration of whether it would have obtained those records in the ordinary course, and whether it originally obtained the tainted information through flagrant police misconduct. In analyzing these questions, it is important to recognize that we are dealing with three separate sets of telephone records: those of Roberts, obtained through Holt's deficient affidavit; those of defendant, obtained through an error on the part of his service provider; and those of Bellinger, obtained as a result of error both on the part of the police and his service provider.

The initial question is whether the record supports a finding that the police would have, through a source independent of Holt's defective affidavit, sought and obtained Roberts's telephone records. We are satisfied that it does. We previously laid out in chronological detail the manner in which this investigation unfolded. That record permits us to isolate what the police knew and when they learned it.

Although Holt prepared and submitted his affidavit seeking Roberts's telephone records on January 14, the trial court found the records were not received until at least January 21. By that date, the police knew that serious discrepancies existed with respect to the information provided by Roberts's alibi witnesses. They also knew that several of those alibi witnesses said they had spoken to Roberts on his cell phone while he was at the barber shop. We are satisfied that those discrepancies, which were significant both in terms of their nature and their quantity, when combined with the knowledge of the ongoing, violent dispute between Roberts and Priester, would have permitted the police to demonstrate the existence of probable cause for an examination of Roberts's telephone records, entirely untainted by the initially deficient affidavit.

Further, normal police investigative procedures would have led them to seek a communications data warrant to review Roberts's telephone records to determine if they could lend support to Roberts's alibi or indicate that it might be concocted. That they would have sought such a warrant as part of their normal investigation is indicated by the fact that they did, in fact, seek such a warrant, even though the application itself was flawed.

. . .

In sum, the question of suppression of the telephone records and the evidence developed from those records involves a two-step analysis, involving both the inevitable discovery doctrine and the independent source rule. The independent source here is the murder weapon; once that was recovered, the police would, through their normal investigatory steps, have inevitably been led to Bellinger and to defendant. The Appellate Division concluded correctly that the trial court should not have granted the motion to suppress.

Permalink 12:24:17 pm, by fourth, 268 words, 555 views   English (US)
Categories: General

GA: Officer's discovery seatbelt was buckled did not constitutionally mandate ending stop

Defendant was stopped for a seatbelt violation, but the officer found that the seatbelt was tucked under the arm and was legal. The stop being initially lawful, the officer was not obligated to end the stop and let the defendant go immediately. Davis v. State, 318 Ga. App. 166, 733 S.E.2d 453 (2012):

Similarly, Davis's argument that the traffic stop was impermissibly prolonged when the officer failed to walk away immediately after noticing that the shoulder strap safety belt was tucked under Davis's arm is without merit. This is so because once a legal stop is made, an officer “may request and examine a driver's license and vehicle registration and run a computer check on the documents.” Such a routine inquiry does not impermissibly prolong the traffic stop. Officer Starling's testimony is clear that he noticed Davis attempting to hide the marijuana at essentially the same time he noticed that Davis had the shoulder strap safety belt under his arm and as Davis was complying with the officer's request for driver's license and proof of insurance. Thus, we find that the initial stop, as well as the brief detention, was authorized.

Officer’s testimony he saw the defendant pull a bag of cocaine out of his pocket was sufficient to support the arrest. Horne v. State, 318 Ga. App. 484, 733 S.E.2d 487 (2012).*

A parolee’s signing of a consent to search as a condition of parole is not unreasonable or unconstitutional, just because the inmate must choose between getting out early or staying in jail to be free from parole searches. United States v. Lamell, 2012 U.S. Dist. LEXIS 153424 (D. Vt. October 25, 2012).*

Permalink 12:10:11 pm, by fourth, 288 words, 662 views   English (US)
Categories: General

CO: A pat down solely for officer safety was unreasonable

A pat down solely for officer safety was unreasonable. People v. Berdahl, 2012 COA 179, 2012 Colo. App. LEXIS 1734 (October 25, 2012):

[*P27] Nevertheless, the trial court appears to have applied a bright-line rule that an officer can conduct a pat-down search whenever he or she has an obligation to transport a person in a patrol car. The court found that the trooper had no real choice but to transport defendant, and "[t]he fact that defendant was not intoxicated did not eliminate or diminish a danger to [the trooper] if in fact the defendant was armed with a weapon." The court concluded that requiring the trooper to transport defendant without first verifying that defendant was not armed would require the trooper to take unnecessary risks in performing his duties and, therefore, the search was reasonable.

[*P28] While we recognize that the trooper faces risks in performing his duties, we fail to see how such risks justify the search in this case. The trooper did not know if defendant or defendant's girlfriend was armed with a weapon. Thus, the trooper faced the same risk transporting defendant as he did transporting defendant's girlfriend. Despite this, the trooper subjected defendant to a pat-down search for weapons but did not search defendant's girlfriend. Furthermore, as noted, the trooper had no reasonable and articulable suspicion to believe defendant was intoxicated or otherwise a threat and there was no departmental policy requiring the pat down.

[*P29] Under these circumstances — and where Colorado law has not recognized an officer safety exception absent a reasonable and articulable suspicion that an individual may be armed and dangerous or intoxicated — we conclude that the trooper's pat-down search of defendant, conducted under his own "officer safety practice," was not a constitutionally reasonable search.

Permalink 12:02:27 pm, by fourth, 243 words, 667 views   English (US)
Categories: General

New book: The Supreme Court and the Fourth Amendment's Exclusionary Rule by Tracey Maclin

Boston U. press release: "A celebration of the publication of The Supreme Court and the Fourth Amendment's Exclusionary Rule by Tracey Maclin, Professor of Law," Monday, October 29, 2012:

Boston University School of Law is delighted to celebrate the publication of The Supreme Court and the Fourth Amendment's Exclusionary Rule by Tracey Maclin, Professor of Law& Joseph Lipsitt Faculty Research Scholar.

The application of the Fourth Amendment's Exclusionary Rule has divided the Justices of the Supreme Court for nearly a century. As the legal remedy for when police violate the Fourth Amendment rights of a person and discover criminal evidence through illegal search and seizure, it is the most frequently litigated constitutional issue in the nation’s courts. Tracey Maclin’s The Supreme Court and the Fourth Amendment's Exclusionary Rule traces the rise and fall of the exclusionary rule using insight and behind-the-scenes access into the Court's thinking. Based on original archival research into the private papers of retired Justices, Professor Maclin's analysis clarifies the motivations and thoughts that explain the Court's exclusionary rule jurisprudence. He includes a comprehensive scholarly and objective discussion of the reasoning behind the Court decisions, and demonstrates that like other constitutional doctrines, the exclusionary rule is a political mechanism that expands and contracts as the times and Justices change. Ultimately, this book will help readers understand how constitutional law is constructed by judges with diverse political perspectives.

Flyer here; Amazon here; Barnes & Noble here. I ordered it today.

Permalink 10:41:36 am, by fourth, 190 words, 462 views   English (US)
Categories: General

Grits for Breakfast: "Houston hearing honed in on use of drones by law enforcement"

Grits for Breakfast: Houston hearing honed in on use of drones by law enforcement:

Grits wishes I could have attended yesterday's hearing in Houston of the US House Judiciary Committee's Subcommittee on Crime on domestic use of unmanned drones by law enforcement, but James Pinkerton at the Houston Chronicle offered up a good report that began thusly ("Use of drones in community policing 'uncharted territory'," Oct. 25):

Privacy concerns about an airborne armada of government drones recording the actions of Americans was at the forefront of a congressional hearing Thursday in Houston, but so far Texas law enforcement has had limited experience with the new technology.

U.S. Rep. Ted Poe, R-Humble, chaired the hearing to discuss his proposed law that would ensure the unmanned aerial vehicles will not be used by government agents to illegally spy on Americans or let people stalk their neighbors.

The Texas Department of Public Safety employed drones from 2008 to 2010, but halted their use due to operational costs and federal regulations that limited both flight areas and radio frequencies to control the aircraft, said regional DPS Commander Duane Steen.

[I always have trouble with Grits's links]


Permalink 05:39:07 pm, by fourth, 252 words, 551 views   English (US)
Categories: General

CA7: Strip search of jail employee was reasonable when search of his person and car came up empty and they had reason to believe he would smuggle drugs into the jail

A jailer was reasonable subjected to a strip search at work based on credible reports he would be bringing cannabis into the jail. His car was stopped and it and his person would be searched. Since drugs weren’t found in those searches, reasonable suspicion thus existed for an employee strip search. King v. Schieferdecker, 2012 U.S. App. LEXIS 22161 (7th Cir. October 25, 2012):

Nor could King successfully challenge the court's conclusion that the sheriff had reasonable suspicion to strip-search him. Before conducting a strip search, the officers needed a reasonable suspicion that King was concealing drugs. See Bell v. Wolfish, 441 U.S. 520, 558-60 (1979); Campbell v. Miller, 499 F.3d 711, 717 (7th Cir. 2007); Kraushaar v. Flanigan, 45 F.3d 1040, 1045-46 (7th Cir. 1995); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). That standard was met here. Multiple people informed the sheriff that King had an outstanding arrest warrant and was planning to take drugs into his work facility. Some of this information came from a co-worker close to King who had previously reported credible information about a different employee involved in illegal drug activity. Based on this information, the sheriff directed officers to stop King's car. The officers then patted down King and searched his vehicle with his consent. Because the sheriff was told specifically that King was planning to bring drugs to work, and neither the pat down or search of the car revealed any evidence, the sheriff had reasonable suspicion to search King's body further, which led to the strip-search at the jail.

Permalink 04:34:50 pm, by fourth, 510 words, 1380 views   English (US)
Categories: General

N.D.W.Va.: Defendant did not consent to what officer was doing without asking by defendant merely not speaking

Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 902 F. Supp. 2d 681 (N.D. W.Va. 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W.Va. September 28, 2012):

In the absence of any gestures or conduct that could reasonably be construed as consent, Harvey's implied consent would have to be premised exclusively on his silence and lack of resistence to Officer Ammons' actions. Notably, the government has cited to no case stating that consent to search can, in the first instance, be inferred solely from the silence of a defendant who was never asked. Rather, the weight of authority holds that "'the government may not show consent to enter from the defendant's failure to object to the entry. To do so would be to justify entry by consent and consent by entry.'" United State v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996) (quoting Shaibu, 920 F.2d at 1427), overruled on other grounds by Arizona v. Gant, 556 U.S. 332 (2009); see also United States v. Little, 431 F. App'x 417, 420-421, 2011 WL 2518674, *3 (6th Cir. 2011) (no implied consent where officer "merely followed Defendant into the house when Defendant went in to get additional clothing"); Roe v. Texas Dept. of Protective and Regulatory Services, 299 F.3d 395, 402 (5th Cir. 2002) ("Silence or passivity cannot form the basis for consent to enter.").

Here, the sole evidence is that, after the defendant mentioned the location of his identification, he was either led or escorted into his home by law enforcement. It is undisputed that he was "detained" and "not free to leave" pursuant to the ongoing investigation centered around the original traffic stop. (Dkt. No. 44 at 46-47). There is no evidence that Harvey said or did anything which would give rise to a reasonable inference of consent, or that Officer Ammons said or did anything which would give rise to a reasonable inference that consent was requested. A reasonable person under these circumstances would have believed that the Officer was legally authorized to either lead or escort him into the home.

As such, the Court concludes that, under the circumstances of this case, Harvey's silence and lack of resistence in response to Officer Ammons' accompaniment evinces, at most, a mere acquiescence to a show of lawful authority. See, e.g., Cole, 195 F.R.D. at 634 (suspect told that police "needed" his identification simply acquiesced to lawful authority); see also United States v. Vasquez, 638 F.2d 507, 526-27 (2d Cir. 1980) (when police told defendant they were going to take him home to arrest his wife, defendant did not consent to entry, as the matter was "presented to him as a fait accompli"); United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973) (when police told woman at her apartment that "we want the package" consent was not voluntary, in part because this "was an outright demand-without ifs, ands or buts"); United States v. Gwinn, 46 F.Supp.2d 479, 484 (S.D. W. Va. 1999) (defendant's "mere acquiescence to the search was not enough to constitute implied consent").

Permalink 04:17:59 pm, by fourth, 93 words, 415 views   English (US)
Categories: General "Irate crowd greets Seattle Police drone plan" Irate crowd greets Seattle Police drone plan / Aircraft with cameras get harsh reaction in Central District by Casey McNerthney:

Seattle police may use remote control drones during future investigations, and a crowd that gathered Thursday night in the Central District was furious about it.

The 6 p.m. meeting at the Garfield Community Center had far more shouting and swearing than civil discourse. Protesters launched insults complaining about invasions of privacy, yelled that the drones were tools of capitalism and political suppression, called officers murderers, and demanded charges be brought against them.

Permalink 04:04:59 pm, by fourth, 148 words, 472 views   English (US)
Categories: General

CA2: Violation of state jurisdictional law not Fourth Amendment issue

Violation of state jurisdictional law and federal policy re customs officers and state law was irrelevant under the Fourth Amendment. United States v. Wilson, 699 F.3d 235 (2d Cir. 2012):

The district court concluded that the vehicle stop violated the Fourth Amendment because the officers acted without valid law enforcement authority, having stopped the vehicle in breach of jurisdictional boundaries set by state law and without having obtained prior authorization to exercise customs authority as required by federal policy governing designated customs officers. On appeal, the government does not dispute that the officers stopped Wilson in violation of state law and federal policy but argues that neither breach violates the Fourth Amendment. We hold that the violation of the federal policy governing designated customs officers did not violate the Fourth Amendment, and that the stop and subsequent search comported with the Fourth Amendment because they were justified by probable cause.

Permalink 03:58:42 pm, by fourth, 116 words, 583 views   English (US)
Categories: General "Magistrate Judge Denies Court Order Application for Cell Tower Dumps" Magistrate Judge Denies Court Order Application for Cell Tower Dumps by Orin Kerr:

The decision is In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 2012 WL 4717778 (S.D. Tex. September 26, 2012) (Owlsey, M.J),, and it rejects an application under the Stored Communications Act for records of all of the cell phone numbers in communication with four different cell towers used around the time and place of a specific crime under investigation. The decision relies primarily on Magistrate Judge Smith’s decision now on appeal before the Fifth Circuit that held that cell-site data is protected under the Fourth Amendment and compelling it therefore requires a warrant. The opinion adds: ...

Permalink 03:56:42 pm, by fourth, 74 words, 423 views   English (US)
Categories: General

OH12: Informant communicating with cop during drug transaction with defendant was RS

Reliable informant who was communicating with defendant about drugs provided reasonable suspicion. State v. Dennis, 2012 Ohio 4877, 2012 Ohio App. LEXIS 4278 (12th Dist. October 22, 2012).*

Driving too slow and not staying in one’s lane justified a stop. State v. Roetzel, 2012 Ohio 4898, 2012 Ohio App. LEXIS 4289 (5th Dist. October 15, 2012).*

Crossing the fog line justified a stop. That didn't show the fact the vehicle was not being driven unsafely. State v. Brandenburg, 2012 Ohio 4926, 2012 Ohio App. LEXIS 4308 (4th Dist. October 16, 2012).*


Permalink 04:58:14 pm, by fourth, 198 words, 755 views   English (US)
Categories: General

Sail Magazine: "Coast Guard Boardings and Your Fourth Amendment Rights, Part 1"

Sail Magazine: Coast Guard Boardings and Your Fourth Amendment Rights, Part 1 by Clark Beek:

Sorry, but when it comes to Coast Guard boardings, you don’t have any rights.

I’m surprised how many boaters don’t know this. The US Coast Guard can board your boat any time they want, and look anywhere they want, without probable cause or a warrant. They can do this on the open sea, or while you’re asleep aboard in your marina at midnight. They can look through your bedsheets, in your lockers, in your bilges, in your jewelry box, or in your pockets. They can do it carrying just their sidearms, or they can do it carrying assault rifles. They can be polite about it or they can be rude, but mostly they’re polite.

If you’re an avid boater you can expect to be boarded every year or two.

I explain this to my guests aboard Condesa, some of whom are lawyers, and I’m met with disbelief: “But that’s a blatant violation of your constitutional rights! They need probable cause, or a warrant from a judge!”

“Not on a boat, my friend, not on a boat.”

Permalink 02:50:04 pm, by fourth, 172 words, 349 views   English (US)
Categories: General

OH5: Reasonable mistake of law for stop permissible in OH

Reasonable mistake of law in Ohio not a reason to suppress. State v. Reedy, 2012 Ohio 4899, 2012 Ohio App. LEXIS 4290 (5th Dist. October 17, 2012):

[*P15] In the instant case, the facts are not in dispute. Instead, appellant challenges the trial court's application of the legal standard to those facts. Appellant argues the issue before us is whether appellant's failure to signal upon turning left from a private parking lot is a violation of the law. We find, though, that answering this question is not central to the analysis. Instead, the issue we must resolve is whether a police officer may stop an individual when the officer reasonably but mistakenly believes the conduct is a violation of the law; the answer to this question is "yes." State v. Garnett, 10th Dist. No. 09AP-1149, 2010 Ohio 5865, ¶ 13, appeal not allowed, 128 Ohio St. 3d 1447, 2011 Ohio 1618, 944 N.E.2d 696, reconsideration denied, 128 Ohio St. 3d 1504, 2011 Ohio 2420, 947 N.E.2d 685, citing State v. Gunzenhauser, 5th Dist. No. 09-CA-21, 2010 Ohio 761, ¶ 16.

Note: But not many other jurisdictions. This is a conflict between states and circuits.

Permalink 02:40:52 pm, by fourth, 152 words, 387 views   English (US)
Categories: General

D.Mont.: Citizens' complaints of animal cruelty supported SW where MJ grow found

Citizens’ complaints of animal cruelty supported the search warrant for defendant’s property where growing marijuana was found. Also, defendant showed one officer around by consent. Minor inaccuracies in the affidavit for the warrant were not enough to satisfy Franks. Even so, without it there was still probable cause. United States v. Chilinski, 2012 U.S. Dist. LEXIS 152415 (D. Mont. October 23, 2012).*

Defendant’s stop was justified because his license plate was attached upside down. State law required the license plate be “clearly legible,” and it was for the officer to call it in. Nevertheless, that qualifies. United States v. Dealba, 2012 U.S. Dist. LEXIS 152708 (D. Nev. September 14, 2012), adopted 2012 U.S. Dist. LEXIS 152707 (D. Nev. October 24, 2012).*

The state trooper’s search warrant application saying that they had found marijuana grows based on smell 108 times when it was really 128 didn’t matter to the finding of probable cause. McGowen v. State, 2012 Alas. App. LEXIS 160 (October 24, 2012).*

Permalink 02:31:21 pm, by fourth, 252 words, 516 views   English (US)
Categories: General

VA: Defendant bound by his testimony there was no consent at all

Defendant’s suppression hearing testimony that he did not consent to his search and that he refused to consent barred his argument that his consent was involuntary. Elliott v. Commonwealth, 2012 Va. App. LEXIS 335 (October 23, 2012)*:

In essence, Elliott asks us to hold the trial court erred (as a matter of law) by not finding (as a matter of fact) that he involuntarily consented to the search, even though he swore under oath that he voluntarily refused to consent to the search. In other words — lest we appear to be splitting hairs — for Elliott to prevail on appeal he must first prove that he perjured himself in the trial court. Such a self-defeating argument ordinarily brings appellate review to a standstill. A criminal defendant, no less than any other litigant, "is bound by [his] testimony on appeal." Waters v. Commonwealth, 39 Va. App. 72, 79, 569 S.E.2d 763, 766 (2002) (citing Delawder v. Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915 (1973)). We need not rest our holding solely on this ground, however, because the other circumstances of this case confirm the trial court's finding that Elliott was not coerced into consenting to the search.

Note: Unacceptable. The trial court held that he consented. Therefore, the defendant should have the complete right to argue that the trial court was wrong in finding consent, at least as an alternative argument, no matter that the defendant testified to. How does the defendant attack the findings then if his testimony is just rejected? Apparently this court is staffed with former lawyers who never tried a case.

Permalink 05:23:21 am, by fourth, 101 words, 4427 views   English (US)
Categories: General

Volokh: "Thirty-Six Circuit Splits in Fourth Amendment Law"

Volokh: Thirty-Six Circuit Splits in Fourth Amendment Law by Orin Kerr:

That’s according to Wayne Logan’s new article, Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment, and I know of several more just off the top of my head. Wayne argues in his article that circuit splits are harmful because the law needs to be uniform. He therefore proposes ways that the Supreme Court can be forced to hear more cases where a split exists. In particular, Wayne joins the group of scholars that have argued in favor of appellate court certification of cases to the Supreme Court.

Permalink 12:02:38 am, by fourth, 134 words, 378 views   English (US)
Categories: General

ACLU: "Next Monday at the Supreme Court: Trying to Stop the NSA’s Unconstitutional Overreach"

ACLU: Next Monday at the Supreme Court: Trying to Stop the NSA’s Unconstitutional Overreach by Josh Bell:

The next time you send an email or make a phone call to a friend outside the country, consider this: the National Security Agency could be making a copy of your communication and storing it. What about the Fourth Amendment? According to the government, not only is this practice constitutional, but ordinary federal courts should not even be allowed to rule on it.

On October 29th, the ACLU will be at the Supreme Court to argue this very issue in our lawsuit challenging the NSA’s warrantless wiretapping program, which Congress authorized in the FISA Amendments Act of 2008. This unprecedented law allows the NSA to engage in dragnet surveillance of Americans’ international emails and phone calls.


Permalink 07:45:52 am, by fourth, 139 words, 539 views   English (US)
Categories: General

OH11: Slight smell of MJ doesn't justify search of trunk, but stronger smell does

Under Ohio law, the smell of marijuana justifies a search of the interior but not necessarily a search of the trunk. Here it was a stronger smell, and the lack of any real quantity of marijuana in the passenger compartment justified a search of the trunk. State v. Perry, 2012 Ohio 4888, 2012 Ohio App. LEXIS 4275 (11th Dist. October 22, 2012). [Note: This is one of those justifications that the officer can make up to overcome, so what's the point?]

“[U]nlike a physical stop to check the vehicle's license plate, a computerized license-plate check is not a seizure that implicates the Fourth Amendment.” The LPN was checked without stopping the car. State v. Setinich, 822 N.W.2d 9 (Minn. App. 2012).

The burden shifting of warrantless seizures and searches is applied here to identification procedures. State v. Withrow, 2012 Ohio 4887, 2012 Ohio App. LEXIS 4276 (11th Dist. October 22, 2012).*

Permalink 07:28:56 am, by fourth, 163 words, 386 views   English (US)
Categories: General

OH3: Seizure of a handwritten journal was improper under a SW for computer entries

In a murder case, the police justified a search warrant for computers and computer records, and the police seized a written journal, too. The seizure of the written journal was outside the terms of the warrant, and it could not be justified by the plain view doctrine. It ultimately was found, however, to be harmless beyond a reasonable doubt. While there was evidence of motive in there, the defendant used other parts of the journal in defense to show that there was not motive. State v. Wangler, 2012 Ohio 4878, 2012 Ohio App. LEXIS 4267 (3d Dist. October 22, 2012).

Every circuit to have considered private actors under Monell has concluded that they are not governed by it. In Las Vegas, however, the symbiotic relationship between casino security and LVMPD for a summons in lieu of arrest of “trespassed” professional gamblers was state action. Here, plaintiff was ejected five times before this one, and the claim against the casino under § 1983 fails. Tsao v. Desert Palace, 698 F.3d 1128 (9th Cir. 2012).*


Permalink 06:09:25 pm, by fourth, 170 words, 600 views   English (US)
Categories: General "Fighting unconstitutional stingray phone surveillance that tracks innocent people" Fighting unconstitutional stingray phone surveillance that tracks innocent people by Darlene Storm:

Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime ... but hey your privacy can be invaded as if you have no Fourth Amendment rights at all. A portable device known as an IMSI catcher, also known by the generic term stingray, acts like a fake cell tower and tricks your mobile device into connecting to it even if you are not on a call. It is used for real time location tracking; some can pinpoint you within two meters as well as eavesdrop and capture the contents of your communications. There’s been a stink about them for a little more than a year, but three big privacy and civil liberty groups, the ACLU, EPIC and the EFF have all warned that the secretive devices threaten your rights and that the invasive technology is unconstitutional.

Permalink 01:53:04 pm, by fourth, 51 words, 492 views   English (US)
Categories: General "N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case" N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case by Anthony Campisi:

Justices of the state Supreme Court wrestled Monday with drawing new privacy protections in a world where police can engage in the sophisticated tracking of suspects using the most ubiquitous of devices: the cellphone.

Permalink 11:35:54 am, by fourth, 119 words, 589 views   English (US)
Categories: General

NACDL at the National Press Club for the Florida dog sniff cases is on C-SPAN


NACDL's October 23 Program (this morning) at the National Press Club -- Entrusting the Fourth Amendment to the Dogs: Canine Evidence and the Constitution (Introductory Remarks, NACDL President Steven D. Benjamin; Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Marc Rotenberg, Executive Director, Electronic Privacy Information Center (EPIC); Professor of Information Privacy Law, Georgetown University Law Center; Danielle Spinelli, Partner and Supreme Court Litigator, WilmerHale; former clerk to The Hon. Stephen Breyer, U.S. Supreme Court, 2000-01; Jeffrey S. Weiner, Criminal Defense Lawyer and Dog Sniff Expert, Miami, Florida; Past President of NACDL (1991-92); David G. Savage (moderator), Supreme Court Reoprter for the Los Angeles Times and Chicago Tribune.) Video available here (see right rail for player).

Permalink 09:04:35 am, by fourth, 251 words, 711 views   English (US)
Categories: General

CA11: Handcuffing on the ground at gunpoint not necessarily an arrest

Taking defendant from his car at gunpoint and handcuffing him on the ground was reasonable under the circumstances, and it did not rise to the level of an arrest. United States v. Salas-Garcia, 698 F.3d 1242 (10th Cir. 2012):

By contrast, the officers in this case acted reasonably under the totality of circumstances. The "quantum of force" used to detain Salas-Garcia was reasonable under the circumstances. The officers in this case did not conduct a felony arrest of Salas-Garcia. As Agent Davis explained in his testimony, a felony stop is "a very heightened state of readiness" by the police, where the officers arrive in "several units with guns drawn, giving specific orders to an occupant of a vehicle to do certain things." Aplee. Supp. App. at 96. But in this case, the patrol officers were only given instructions "to stop the car." Id. As the district court noted, there is nothing in the record that suggests that the patrol officer who stopped Salas-Garcia "drew or displayed his weapon, forced Defendant to the ground, or employed restraints other than handcuffs." Aplt. App. at 16-17.

Given the limited amount of information that the Task Force agents and uniformed patrol officers had regarding Salas-Garcia, placing him in handcuffs was reasonable under the circumstances to ensure both officer and public safety. We have noted that ""[a]n officer in today's reality has an objective, reasonable basis to fear for his or her life every time a motorist is stopped.'" United States v. Albert, 579 F.3d 1188, 1194 (10th Cir. 2009) ...

Permalink 09:00:34 am, by fourth, 192 words, 706 views   English (US)
Categories: General

GA: Evading DUI roadblock with abrupt movement RS

Defendant’s dodging a DUI roadblock with an abrupt furtive movement was reasonable suspicion for a stop. Stinson v. State, 318 Ga. App. 351, 733 S.E.2d 390 (2012).*

Defendant’s father gave his name to the FBI as possibly radicalized in Yemen, and what the FBI learned about him through that investigation was an independent source for much of the investigation. A second search of defendant’s computer by the government was denied. That would be addressed in a classified opinion. United States v. Mohamud, 2012 U.S. Dist. LEXIS 151430 (D. Ore. October 22, 2012).*

“ Although the circumstances of Young's arrest were likely to have been intimidating, the record demonstrates that after he was taken into custody, Woeppel and Hanley holstered their guns, spoke to Young in a conversational tone and explained that they were with the DEA and were there to execute an arrest warrant. It was only after this explanation that the agents asked Young whether they could search the residence. The credible testimony demonstrates that Young agreed to the search and assisted the agents in identifying the key to the front door.” United States v. Young, 2012 U.S. Dist. LEXIS 151160 (W.D. N.Y. October 19, 2012).*

Permalink 08:57:30 am, by fourth, 339 words, 807 views   English (US)
Categories: General

E.D.Mo.: Pre-Jones GPS was not suppressed because of the officers’ good faith

Pre-Jones GPS was not suppressed because of the officers' good faith. United States v. Robinson, 903 F. Supp. 2d 766 (E.D. Mo. 2012):

=> Read more!

Permalink 07:58:28 am, by fourth, 151 words, 970 views   English (US)
Categories: General "Little-Known Device Raises Big Fourth Amendment Implications" Little-Known Device Raises Big Fourth Amendment Implications:

On Friday, EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden, a closely-followed case that has enormous consequences for individuals' Fourth Amendment rights in their home and on their cell phone. As the Wall Street Journal explained today, the technology at the heart of the case invades the privacy of countless innocent people that have never even been suspected of a crime.

Rigmaiden centers around a secretive device that federal law enforcement and local police have been using with increased frequency: an International Mobile Subscriber Identity locator, or “IMSI catcher.” These devices allow the government to electronically search large areas for a particular cell phone's signal—sucking down data on potentially thousands of innocent people along the way—while attempting to avoid many of the traditional limitations set forth in the Constitution.

Source: EFF. Read full article. (link)

Permalink 12:10:44 am, by fourth, 92 words, 653 views   English (US)
Categories: General

IN: Leaving turn signal on alone not evidence of impairment

Accidentally leaving one’s turn signal on is not evidence of impairment, without more. Killebrew v. State, 2012 Ind. App. LEXIS 528 (October 19, 2012).*

Failure to argue to the trial court that the lineup was based on unlawful detention waived the argument for appeal. State v. Rucker, 2012 Ohio 4860, 2012 Ohio App. LEXIS 4254 (2d Dist. October 19, 2012).*

The officers’ entry into defendant’s motel room for a protective sweep was unjustified. Excising those observations from the search warrant affidavit, however, still left probable cause for the search warrant. State v. Bell, 2012 Ohio 4853, 2012 Ohio App. LEXIS 4244 (2d Dist. October 19, 2012).*


Permalink 07:51:49 am, by fourth, 156 words, 529 views   English (US)
Categories: General

Cal.6: Defendant's detention was unreasonable; his only matching characteristic of the assailant was being the same race and in same public place a week later

Defendant was stopped at the San Jose light rail station around midnight for allegedly resembling one of two Black males who were suspected of committing a sexual battery a week earlier at noon. After he provided a false ID, he was arrested and cocaine base was found. The court finds that the description of the assailants a week earlier did not match defendant, and there was no justification for his detention in the first place. People v. Walker, 210 Cal. App. 4th 165, 148 Cal. Rptr. 3d 271 (6th Dist. 2012).*

Third party consent justified the police entry. Their view of the premises from open fields first was not unlawful. City of Mansfield v. Studer, 2012 Ohio 4840, 2012 Ohio App. LEXIS 4242 (5th Dist. October 17, 2012).*

The traffic stop was justified by an unsignaled lane change, and reasonable suspicion existed from defendant having been followed from a drug house. The wait for the drug dog was minimal. Wilson v. State, 318 Ga. App. 59, 733 S.E.2d 365 (2012).*

Permalink 12:20:52 am, by fourth, 570 words, 1034 views   English (US)
Categories: General

NC: No answer at front door knock and talk doesn't justify going to back door

Officers conducting a knock and talk got no answer at the front door, and they went around to the back where there was no path. There was no justification for going to the back door, and the view of marijuana plants in the back is suppressed. State v. Pasour, 2012 N.C. App. LEXIS 1201 (October 16, 2012):

Here, the officers were within the curtilage of the home when they viewed the plants, regardless of whether they were in the back or side yards. See Rhodes, 151 N.C. App. at 214, 565 S.E.2d at 270 (2002). There is no indication from the record that the plants were visible from the front or from the road. The trial court found that there was a "no trespassing" sign that was "plainly visible" on the side of the residence where the officers walked. Even though the officers claim they did not see the sign, such a sign is evidence of the homeowner's intent that the side and back of the home were not open to the public. Unlike in Garcia, there is no evidence here to suggest that there was a path of any kind or anything else to suggest a visitor's use of the rear door; instead, all visitor traffic appeared to be kept to the front door and traffic to the rear was discouraged as a result of the posted sign. See Garcia, 997 F.2d at 1279-80.

Further, similar to the circumstances in Pena, there is no evidence in the record that suggests that the officers had reason to believe that knocking at Defendant's back door would produce a response after knocking multiple times at his front and side doors had not. At the suppression hearing, the officers testified that they went into Defendant's backyard as part of "standard procedure" to see if anyone was in the backyard or in the residence. The State argues that one of the police officers heard a sound within the dwelling, and as such, it was reasonable to believe that there was someone home who was simply unaware of the officers' presence, and so the officers were justified in entering the backyard. The officers admit that they never saw anyone come out of the house, nor did they hear noises coming from the back of the house. It is also unclear from the hearing transcript as to whether the officers started around back before or after they became aware that the officer knocking at the door had even heard a noise, as one testified that they started back after the initial knock and the other testified they started back after their fellow officer heard a noise. The officer that heard the noise was not able to identify when in time he heard it, what the noise sounded like, where it came from, or even if it sounded like a person moving around. Furthermore, the trial court made no finding of fact on this point; instead it only found that the officers went around back as was "standard procedure" "to observe anyone leaving the house" and for officer safety. Neither this finding nor the underlying facts is sufficient to support the officers' movement toward the back of the house.

Given the circumstances of this case, there was no justification for the officers to enter Defendant's backyard and so their actions were violative of the Fourth Amendment. Accordingly, we reverse the trial court's denial of Defendant's motion to suppress.

There are cases contra.

Permalink 12:14:46 am, by fourth, 110 words, 562 views   English (US)
Categories: General

VI: Unlawful arrest doesn't deprive court of jurisdiction to try the case

Defendant’s stop was valid but arrest for a misdemeanor that didn’t happen in the presence of the officer was invalid, but that does not require suppression of the observations he was under the influence nor prevent the prosecution. People v. Norton, 59 V.I. 121 (Super. Ct. 2012).

The police search of defendant’s car after his allegedly unlawful arrest was with independent probable cause from the arrest. The police already knew everything. State v. Moreno, __ Wn. App. __, 286 P.3d 725 (2012).*

Respondents showed that the money seized was taken from them so they had standing. State ex rel. Mashburn v. $18,007.00 in United States Currency, 2012 OK CIV APP 75, 2012 Okla. Civ. App. LEXIS 76 (October 11, 2012).*

Permalink 12:08:13 am, by fourth, 127 words, 587 views   English (US)
Categories: General

E.D.Pa.: PC as to car overcomes Gant

Probable cause for defendant’s arrest for drugs justified a search of the car under the automobile exception, an exception to Gant. United States v. Davidson, 2012 U.S. Dist. LEXIS 150513 (E.D. Pa. October 19, 2012).*

Substantially corroborated information from a citizen informant provided probable cause to issue a search warrant. Plaintiff’s claim of false statements in the statement of probable cause was not material because, even if it was assumed, there was probable cause on the remainder. Samadian v. Meade, 494 Fed. Appx. 490 (5th Cir. 2012).*

Officers had a shots fired domestic disturbance call. At the scene, the apartment seemed abandoned, and officers were justified in entering it. Defense counsel was not ineffective for not raising it. Colón-Díaz v. United States, 899 F. Supp. 2d 119 (D. P.R. 2012).*

Permalink 12:02:40 am, by fourth, 154 words, 558 views   English (US)
Categories: General

CA11: No standing in another person's drug house

Defendant’s asserted standing in the house searched was because he had drug money in the safe. It was somebody else’s place used for cocaine production. This was governed by Carter. United States v. Rivera-Pabon, 493 Fed. Appx. 15 (11th Cir. 2012).*

Defendant was stopped for a lane change violation after the officer already noted that the windows were too dark. The stop was lawful on the second traffic offense, too. The length of the stop to complete the paperwork was only seven minutes, and that’s reasonable. United States v. Whitlock, 493 Fed. Appx. 27 (11th Cir. 2012).*

Defendant was the target of a search warrant for taking artifacts from protected lands in Alaska which he even revealed on a website photograph. When officers got there, they found child pornography on the walls. They left and got another search warrant for that, and it was proper. United States v. Franz, 2012 U.S. Dist. LEXIS 149882 (E.D. Pa. October 18, 2012).*


Permalink 12:49:34 pm, by fourth, 115 words, 367 views   English (US)
Categories: General

The affidavit says that the informant has provided information several times and proved reliable. Tennessee applies Aguilar-Spinelli but guards against hypertechnical application of its prongs. The state is not required to actually specify the number of times. State v. Sales, 393 S.W.3d 236 (Tenn. Crim. App. 2012).

The fact the affidavit for visible child pornography in defendant’s house said that children were “nude” or “naked” or was sufficient to show that child porn was present. State v. Jones, 384 S.W.3d 357 (Mo. App. 2012).*

Defendant did not abandon clothing in the car that was searched, but there was probable cause to search from his actions. United States v. Bonds, 2012 U.S. Dist. LEXIS 150597 (D. Ariz. August 31, 2012).*

Permalink 10:21:32 am, by fourth, 198 words, 473 views   English (US)
Categories: General

NE: Defendant succeeds in showing IAC on failure to move to suppress

Defendant succeeds in showing that the justification for the traffic stop, a cracked windshield, did not support it. A mere cracked windshield is not a traffic offense because the driver’s view is not obstructed. Also, it did not indicate that the vehicle had been involved in an accident. Therefore, the community caretaking function did not justify the stop. Since there was no motion to suppress, the defendant showed that if a motion had been filed, it likely would have been successful. State v. Moser, 20 Neb. App. 209, 822 N.W.2d 424 (2012). [Caution: If the record is undeveloped on this, the state could still win the motion to suppress on remand when it gets to make a complete record.]

After defendant was told he was free to leave, the officer asked for consent which was denied. Then the officer asked if defendant would consent to a drug dog going around the car, and he did. It took 22 minutes for the dog to arrive. The district court suppressed, but the Eighth Circuit reversed. United States v. Grant, 696 F.3d 780 (8th Cir. 2012) (Senior Judge Bright dissented; he was on my first oral argument there over 35 years ago; he was appointed by LBJ).*

Permalink 10:07:13 am, by fourth, 299 words, 501 views   English (US)
Categories: General

LATimes: Manson follower lawyer-client recordings from 1969 subject of search warrant or court order now stayed Manson follower's tape recordings off limits to LAPD for now (posted 10/18):

A federal judge in Texas has blocked a request by the Los Angeles Police Department to review recordings of a key Charles Manson follower and an attorney made decades ago.

The tapes are of Manson follower Charles "Tex" Watson, who has said the recordings won't provide any new evidence about the infamous murders.

Among Manson murder experts, there is much debate about what new revelations the Watson tapes might yield. At least three deaths have been considered as possible murders by those involved in the Manson investigations. ...

A U.S. Bankruptcy Court judge in Texas this spring granted a request from the Los Angeles Police Department to review eight cassette tapes containing hours of conversations between Watson and his late attorney after the LAPD argued that it might shed light on unsolved murders. The lawyer made the recordings while interviewing Watson after he and other Manson family members were arrested in 1969. New Manson murder probe could bring closure for families (posted 10/19):

Los Angeles police officials said they hope to bring closure to the families of victims in a dozen unsolved homicides that occurred near places where the Manson family operated during its slew of murders four decades ago.

Officials revealed Thursday that they have 12 open cases and that they hope audiotapes recorded in 1969 between Charles Manson follower Charles “Tex” Watson and his attorney could provide some answers.

What isn't mentioned clearly here is that the recordings were made by Watson and his attorney in 1969, and they remain privileged unless Watson is willing to reveal them.

Two days ago, I started looking on Lexis and Westlaw and I haven't been able to find either the Bankruptcy or District Judge's orders. Maybe they will show later.

Permalink 09:45:10 am, by fourth, 176 words, 632 views   English (US)
Categories: General

CA4: Officers had reasonable cause to believe defendant at home for entry under Payton

Officers had reasonable cause under Payton to believe that defendant was hiding in his own house. The SWAT team showed up for a misdemeanor arrest because of defendant’s 100 prior arrests and numerous convictions for violent crime. After a lot of looking, he was found hiding in a return air duct under the house. A gun was found similarly hidden. United States v. Hall, 495 Fed. Appx. 319 (4th Cir. 2012):

=> Read more!

Permalink 09:35:21 am, by fourth, 442 words, 908 views   English (US)
Categories: General

D.S.D.: No reasonable expectation of privacy in the cell phone of another in the defendant’s possession

There is no reasonable expectation of privacy in the cell phone of another in the defendant’s possession. United States v. Clinton, 2012 U.S. Dist. LEXIS 150171 (D. S.D. October 4, 2012):

Clinton's mere possession of the cell phone, without more, is insufficient to establish a Fourth Amendment right to privacy in its contents. Salvucci, id., 448 U.S. at 91-92. In United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) the Fifth Circuit held that the defendant had a privacy interest in a cell phone which was subscribed to his employer but which was issued to him and which his employer allowed him to use. The Court reasoned that "although [the defendant's] employer issued the phone, [the defendant] maintained a property interest in the phone, had a right to exclude others from using the phone, exhibited a subjective expectation of privacy in the phone, and took normal precautions to maintain his privacy in the phone." Id.

The Courts hold that persons who merely possess a cell phone subscribed to a third person, however, do not have a Fourth Amendment privacy interest sufficient to challenge a warrantless search. See United States v. Skinner, 2007 WL 1556596 (E.D. Tenn.) [*9] (Defendant lacked standing to challenge use of cell phone information because the cell phone in question was subscribed to a third person); United States v. Davis, 2011 WL 2036463 (D. Or.) (sex trafficking case; "defendant's mere use of the telephone number is insufficient to create a legitimate privacy interest in the cell phone records. Defendant was not the registered owner or subscriber of the phone, and he was not registered as a permissible user. Defendant has presented no evidence that he had the permission of the subscriber ..."); United States v. Suarez-Blanca, 2008 WL 4200156 at * 7 (N.D. Ga.) (Defendant failed to demonstrate an expectation of privacy in cell phone found on his person, but to which he was not the subscriber "society is not prepared to recognize a privacy interest for individuals who hold cell phones that are not linked to the subscribers of those cell phones."). See also, Christensen v. County of Boone, Illinois, 483 F.3d 454, 461 (7th Cir. 2007) ("[Defendant] had no legitimate expectation of privacy in a cell phone belonging to someone else."). The only record evidence indicates the cell phone seized from Clinton upon his arrest belonged to a third party. Clinton presented no evidence that he possessed or used the cell phone with permission of the third party. Because Fourth Amendment rights are personal and cannot be asserted vicariously, therefore, Clinton failed to carry his burden "of proving he had a legitimate expectation of privacy that was violated by the challenged search." United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995).

Permalink 09:07:48 am, by fourth, 145 words, 448 views   English (US)
Categories: General

E.D.Mo.: Gang officers can conduct a traffic stop; pretext argument fails

The fact the Chicago police officers were gang officers and not working traffic did not mean that they were constitutionally prohibited from conducting a traffic stop. Therefore, the pretext argument fails on that ground. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25, 2012).*

Even if the continued interrogation of the truck driver, on the appeal of the truck passenger, was overlong, there was justification for the initial stop, and the paperwork of the truck raised a reasonable suspicion that something else was going on, and that justified the continued detention. Finally, the record supports the finding that the search was with consent. United States v. Narcisse, 501 Fed. Appx. 142 (3d Cir. 2012).*

“Defendant's claim that ‘trial counsel made no attempt to challenge the search warrants or warrantless searches,’ is contradicted by the record.” United States v. Martinez, 2012 U.S. Dist. LEXIS 149739 (D. Minn. October 18, 2012).*


Permalink 10:15:38 am, by fourth, 270 words, 436 views   English (US)
Categories: General

S.D.Fla.: Lesson about specificity motions to suppress; inspecific motion held against defendant's credibility on the search

The court finds the defendant consented after an illegal search of his luggage. (Why is important, and this is an important lesson.) United States v. Jimenez, 2012 U.S. Dist. LEXIS 148699 (S.D. N.Y. October 10, 2012) (Judge Swain):

Jimenez admitted at the hearing that he assented to Veloz's request to search the luggage after signing the Miranda waiver form. However, he asserts that he was detained by the Miami-Dade law enforcement officers and consented to the search against his will. He testified as to the following at the hearing in support of his claim of coercion: (1) he was approached in the airport by officers with guns drawn; (2) he was made to sit on the floor until other officers arrived; (3) Veloz asked him "firmly" to accompany him to a room for questioning; (4) he was not told he could get a lawyer at that moment; (5) he was not told that he could withhold consent; and (6) he did not understand the Miranda warnings. Jimenez also asserts that he "really didn't have any other choice" but to consent to the search because it was apparent from Detective Veloz's questions about the money in the luggage that he had already executed a search and knew what the luggage contained. The Government and Detective Veloz dispute each of these claims.

As noted above, the Court does not find credible Jimenez's assertions at the hearing — which are glaringly absent from his moving papers — that he was held at gun point or otherwise prevented from leaving, and that Detective Veloz revealed that he already knew what was in the luggage prior to obtaining Jimenez's consent to conduct a search.

Permalink 09:36:57 am, by fourth, 128 words, 514 views   English (US)
Categories: General

S.D.Ill.: Threat to get a warrant was not spurious, so consent valid

Defendant’s consent to entry after repeated efforts to get consent during a knock-and-talk at a hotel room was still valid. They had probable cause, and the threat to get a search warrant was not spurious. United States v. Taylor, 2012 U.S. Dist. LEXIS 148244 (S.D. Ill. October 16, 2012).*

Courts should be reluctant to reopen a suppression hearing after a ruling. Here, it was well after the new information was found. Crediting the new information, the court doesn’t find that it will change the result, so the motion is denied. United States v. Norris, 2012 U.S. Dist. LEXIS 148409 (W.D. Ky. October 16, 2012).*

The CI was known and reliable, and then his information was well corroborated. United States v. Hands, 2012 U.S. Dist. LEXIS 149423 (E.D. N.C. October 15, 2012).*

Permalink 08:15:56 am, by fourth, 118 words, 563 views   English (US)
Categories: General

CA2: Rare federal habeas win on Fourth Amendment

The state court’s upholding a lineup as not a product of a Fourth Amendment violation was found to be an unreasonable application of Supreme Court precedent justifying habeas relief. The case cites and credits a wealth of material about the vagaries of eyewitness identification. Young v. Conway, 698 F.3d 69 (2d Cir. 2012).*

After the traffic stop, reasonable suspicion developed to believe that the defendants were in a methamphetamine conspiracy, and that justified extending the stop. United States v. Castleman, 2012 U.S. Dist. LEXIS 149226 (E.D. Ark. October 17, 2012).*

Search warrant to search a car on the premises is specific enough. It doesn’t have to say where. United States v. Vanderkinter, 2012 U.S. Dist. LEXIS 149253 (E.D. Wis. October 17, 2012).*


Permalink 06:17:00 am, by fourth, 141 words, 553 views   English (US)
Categories: General

New Law Review Article: "'Eyephones': A Fourth Amendment Inquiry into Mobile Iris Scanning"

New Law Review Article: "'Eyephones': A Fourth Amendment Inquiry into Mobile Iris Scanning" by Christopher Rutledge Jones, 63 S.C. L.Rev. 925 (2012):

MORIS, or Mobile Offender Recognition and Information System, is a small device that attaches to a standard iPhone and allows a user to perform mobile iris scanning, fingerprinting, and facial recognition. Developed by BI2 Technologies, this device was recently made available to law enforcement agencies in America.

This article discusses the Fourth Amendment implications that arise from use of such a device, and asks whether a reasonable expectation of privacy exists in one's irises while in public spaces. The article explores past Supreme Court Fourth Amendment jurisprudence regarding the use of technology to enhance senses, abandonment, and the plain view doctrine in an attempt to determine when mobile iris scans would and would not be allowed by the Fourth Amendment.


Permalink 09:55:46 am, by fourth, 246 words, 498 views   English (US)
Categories: General

CA6: Violation of state S&S law irrelevant to Fourth Amendment analysis

Any failure of state officials to comply with state search and seizure or arrest law is meaningless in federal court under the Fourth Amendment. Here, Tennessee law required an original and two copies. One was missing. United States v. Beals, 698 F.3d 248 (6th Cir. 2012):

Although no court to our knowledge has before addressed the precise question raised here, we find that the answer is squarely governed by the rule that only the Fourth Amendment (to the exclusion of state law) applies in federal prosecutions involving evidence seized by state officials. So long as the Fourth Amendment is satisfied, there is no basis for suppression. Accordingly, we turn to the Fourth Amendment, which requires "only three things" with respect to search warrants. Dalia v. United States, 441 U.S. 238, 255 (1979). The first is that they be issued only by "neutral and detached" magistrates "capable of determining whether probable cause exists for the requested arrest or search." Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972); see Johnson v. United States, 333 U.S. 10, 14 (1948) ("[The Fourth Amendment's] protection consists in requiring that ... inferences [of probable cause] 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."). There is no dispute that Judge Cupp satisfied these criteria when he authorized the search of Ambrose's garage.

Note: This means, of course, that state officials can avoid suppression in state court by handing the case over to the U.S. Attorney.

Permalink 09:47:05 am, by fourth, 127 words, 469 views   English (US)
Categories: General

HI follows minority rule on inevitable discovery

Hawai’i reaffirms it follows the minority view of inevitable discovery and concludes that an unlawful search incident could not be justified as inevitable discovery of a coming jail inventory search of the person because it was speculative that the contraband would have been found then. State v. Rodrigues, 128 Haw. 200, 286 P.3d 809 (2012).

Defendant’s 2255 claim that drugs seized outside his apartment were unlawfully attributed to him fails without a minimal showing of an expectation of privacy in the first place. Beatty v. United States, 2012 U.S. Dist. LEXIS 147967 (D. Mass. October 15, 2012).*

Defendant doesn’t make a “substantial preliminary showing” of falsity for a Franks violation. Even if he could, the rest is still probable cause. United States v. Lopez, 2012 U.S. Dist. LEXIS 148042 (E.D. Ky. September 13, 2012).*

Permalink 09:43:06 am, by fourth, 432 words, 689 views   English (US)
Categories: General

E.D.La. avoids PC on CSLI warrant, deciding only GFE applies

Without determining the merits of probable cause for cell site location information, the court applies the good faith exception alone. United States v. Hardrick, 2012 U.S. Dist. LEXIS 147940 (E.D. La. October 15, 2012):

Because this Court holds that the good-faith exception to the exclusionary rule applies, see discussion infra, this Court need not reach the issue of whether the obtaining of CSLI is a Fourth Amendment search. See United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010) ("First, we ask whether the seizure falls within the good-faith exception to the exclusionary rule ... [i]f the good-faith exception applies, this court affirms the district court's decision denying the motion to suppress."); United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988)("Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of Leon will resolve the matter."); United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999) ("If the good-faith exception applies, we need not reach the question of probable cause."); see also United States v. Webb, 255 F.3d 890, 904-05 (D.C. Cir. 2001) (holding that the good-faith exception applied no matter "what may be said of the search warrant affidavit in this case"); Ferguson, 508 F. Supp. 2d at 10 (declining to address a Fourth Amendment challenge after holding that the good-faith exception applied); United States v. Koch, 625 F.3d 470, 476-77 (8th Cir. 2010) ("We need not address [whether there was a Fourth Amendment violation] because we conclude that the agents had an objective good faith belief ... that their search was legal.").

Despite this practice, courts should address the Fourth Amendment issue when "the resolution of a novel question of law ... is necessary to guide future action by law enforcement officers and magistrates." Craig, 861 F.2d at 820-21 (quoting Illinois v. Gates, 462 U.S. 213, 264 (1983) (White, J., concurring in the judgment). Resolution of the Fourth Amendment issue in this case is not necessary to guide law enforcement because the issue is under consideration by the Fifth Circuit. See In re Application of the U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 844-46 (S.D. Tex. 2010), appeal docketed, No. 11-20884 (5th Cir. Dec. 14, 2011) (oral argument held on Oct. 2, 2012).

This Court holds that the good-faith exception applies and is dispositive of this motion to suppress. By declining to reach the Fourth Amendment issue this Court is applying the "sound judicial practice of refusing to decide or address issues whose resolution is not necessary to dispose of a case, unless there are compelling reasons to do otherwise." Craig, 861 F.2d at 820-21.


Permalink 04:34:15 pm, by fourth, 65 words, 487 views   English (US)
Categories: General

Business Insider: "Two Supreme Court Cases About Dogs May Profoundly Impact Americans' Privacy"

Business Insider: Two Supreme Court Cases About Dogs May Profoundly Impact Americans' Privacy by Michael Kelley:

On Oct. 31, the U.S. Supreme Court will hear two cases from Florida about drug-sniffing dogs that will either affirm or weaken the constitutional privacy rights of Americans.

Rulings favorable to the government would allow law enforcement to conduct warrantless searches and surveillance on an even more routine basis.

Permalink 02:59:02 pm, by fourth, 141 words, 560 views   English (US)
Categories: General "First Plaintiffs Testify in Federal Challenge to Police Stop-and-Frisk Policy" First Plaintiffs Testify in Federal Challenge to Police Stop-and-Frisk Policy by Joseph Goldstein:

Charles E. Bradley stood outside his fiancée’s fifth-floor apartment at about 5 p.m., the agreed-upon time, and began drumming on the door, he testified Tuesday, re-creating the sound in Federal District Court in Manhattan, his knuckles rat-a-tatting on the witness stand. She did not respond, he said, and so after waiting a moment — she is deaf in one ear — he left.

Mr. Bradley, who is in his early 50s, said he reached the sidewalk on that May evening last year and looked up toward his fiancée’s window. “We were expecting to get together,” he said. “Where is she?”

It was then that a police van pulled up, he said, and within moments an officer was questioning Mr. Bradley and searching his pockets.

Permalink 01:12:20 pm, by fourth, 83 words, 432 views   English (US)
Categories: General

The Columbia Science and Technology Law Review: The Fourth Amendment in the Digital Age

The Columbia Science and Technology Law Review: The Fourth Amendment in the Digital Age by Min Choi:

In the old days – and even now, as Occupy Wall Street exemplifies – people took to the streets to protest. But as technology evolved, new forms of demonstrations appeared. One such form is hacking to pursue political ends – hack-activism, or hactivism. A famous example of a hactivist group is Anonymous, whose attacks on government and major corporation websites to protest online surveillance and censorship were widely publicized.

Permalink 08:41:48 am, by fourth, 129 words, 436 views   English (US)
Categories: General

E.D.Mo.: Wiretap provided RS for continuing stop

Officers had reasonable suspicion for defendant’s stop and continuing it based on wiretap information well before the stop. His consent thereafter was voluntary. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25, 2012).*

Defendant’s Franks challenge fails–there were two officers involved in the affidavit, and, as a whole, it doesn’t show material falsity by an officer. Inconsistencies alone don’t show reckless or intentional falsity. United States v. Lopez, 2012 U.S. Dist. LEXIS 148042 (E.D. Ky. September 13, 2012).*

On defendant’s 2255, he failed to show he had a reasonable expectation of privacy in the place searched to have standing to challenge the search. So, his lawyer was not ineffective for not pursuing it. Beatty v. United States, 2012 U.S. Dist. LEXIS 147967 (D. Mass. October 15, 2012).

Permalink 08:26:42 am, by fourth, 111 words, 416 views   English (US)
Categories: General

OH2 reverses three

Officers did a knock-and-talk at defendant’s girlfriend’s house where defendant was spending the night. The trial court erred in holding the defendant lacked standing as an overnight guest, and the case is remanded for reconsideration of the motion to suppress. State v. Winston, 2012 Ohio 4743, 2012 Ohio App. LEXIS 4156 (2d Dist. October 12, 2012).*

The state planted a GPS device pre-Jones, and the defendant moved to suppress. The state failed to properly raise a Davis good faith exception argument and forfeited it. State v. Henry, 2012 Ohio 4748, 2012 Ohio App. LEXIS 4161 (2d Dist. October 12, 2012).*

Defendant’s continued detention became unreasonable, and his consent was tainted. State v. Rogers, 2012 Ohio 4753, 2012 Ohio App. LEXIS 4163 (2d Dist. October 12, 2012).*

Permalink 08:03:43 am, by fourth, 144 words, 457 views   English (US)
Categories: General

M.D.La.: Consent to search of driver doesn't extend to passenger's luggage

Defendant was in a car with another that was stopped by the police, and the driver gave consent to search. The driver’s consent did not apply to separate luggage in the car that belonged to the passenger, and the officer told defendant that the driver consented so he was searching. The passenger’s silence is not consent. United States v. Blas, 2012 U.S. Dist. LEXIS 147486 (M.D. La. October 11, 2012).

Because of the complete lack of factual allegations from the defendant supporting the motion to suppress, the motion is denied. The government’s response shows justification, and defendant raised no question for a hearing. United States v. Carter, 2012 U.S. Dist. LEXIS 147010 (W.D. N.Y. September 11, 2012).*

No standing in installation of GPS in a car in which defendant was only a passenger. United States v. Merritte, 2012 U.S. Dist. LEXIS 147962 (D. Nev. October 15, 2012).*

Permalink 07:58:23 am, by fourth, 496 words, 702 views   English (US)
Categories: General

E.D.Mo. declines to follow majority rule: No Davis good faith for GPS

Disagreeing with the majority of cases and following the minority view, the Davis good faith exception is not applied to pre-Jones GPS use. United States v. Robinson, 903 F. Supp. 2d 766 (E.D. Mo. 2012):

=> Read more!

Permalink 07:31:26 am, by fourth, 190 words, 461 views   English (US)
Categories: General

D.Neb.: No right to be arrested at the earliest possible time

Defendant has no right to be arrested only at the earliest possible time. Officers can watch and let the situation develop to see what else happens. United States v. Davis, 2012 U.S. Dist. LEXIS 145849 (D. Neb. September 21, 2012)*:

Law enforcement officers had informant information indicating the defendant was engaged in illegal drug activity during the summer and fall of 2011, and they had probable cause to arrest the defendant when they smelled marijuana and saw drug paraphernalia within his apartment in October of 2011. But the law does not require officers to initiate an arrest when they first have a basis to do so. They may choose to monitor a situation and further investigate, particularly when, based on their education and experience, they believe the magnitude of defendant's criminal activity exceeds their current basis for arrest.

Defendant calls the affidavit for search warrant bare bones, but the argument picks out pieces and doesn’t consider the affidavit as a whole which does, in fact, show probable cause. United States v. Gumula, 2012 U.S. Dist. LEXIS 146967 (W.D. N.C. June 29, 2012), R&R adopted 2012 U.S. Dist. LEXIS 143697 (W.D. N.C. October 3, 2012).*


Permalink 03:04:25 pm, by fourth, 102 words, 496 views   English (US)
Categories: General

S.D.Ga. adopts Fourth Amendment de minimus standard

Extending a stop by a minute for other questions was not a Fourth Amendment violation (adopting the de minimus standard, without calling it that). United States v. Burrows, 2012 U.S. Dist. LEXIS 146695 (S.D. Ga. October 11, 2012).

A brief handcuffing during a stop just for the frisk and then unhandcuffing defendant was reasonable. Defendant’s consent thereafter was voluntary on the totality. United States v. Quinones-Ortiz, 2012 U.S. Dist. LEXIS 147004 (N.D. Iowa October 11, 2012).*

Defendant has no standing to challenge the seizure of a shotgun thrown from a vehicle fleeing police. United States v. Stanton, 2012 U.S. Dist. LEXIS 145932 (W.D. Pa. October 10, 2012).*

Permalink 02:46:19 pm, by fourth, 115 words, 487 views   English (US)
Categories: General

D.Nev.: No standing to challenge GPS on car

Defendant did not own or was driving the vehicle on which the GPS device was placed, so he lacked standing to challenge the GPS placement. United States v. Smith, 2012 U.S. Dist. LEXIS 147866 (D. Nev. July 24, 2012).

Defendant’s house was subjected to a search warrant for multiple burglaries, and all kinds of property belonging to others was found there. The claim that the defendant’s arrest was without probable cause was frivolous. Kanda v. State, 2012 Del. LEXIS 534 (October 12, 2012).*

The truant juvenile was stopped for violation of the school day curfew after he was told multiple times to go home, so there was reasonable suspicion for a stop. State v. JS , 2012 Del. Fam. Ct. LEXIS 63 (March 28, 2012).*

Permalink 01:47:53 pm, by fourth, 269 words, 427 views   English (US)
Categories: General

GA: Thermal imaging is not a proper basis for a search warrant under state law, but PC otherwise exists

A thermal imaging warrant violated Georgia state law because search warrants can only be for “tangible evidence.” There was, however, plenty of probable cause for a search of the house based on everything else known before that, so the search would not be suppressed. Brundige v. State, 291 Ga. 677, 735 S.E.2d 583 (2012):

Nor do we believe that the term “tangible evidence” as used in the statute otherwise embraces the “amorphous heat loss” captured by the thermal imaging used here. Rather, the word “tangible” must be given some effect, or become mere surplusage. See Slakman, supra. Although the Court of Appeals noted that heat radiating from a building is “real and substantial, rather than imaginary[,]” such a formulation would cause “tangible” to become superfluous in the wording of OCGA § 17-5-21 (a) (5); there is no such thing as imaginary evidence.

Giving the word “tangible” full effect, it appears that the General Assembly intended “tangible evidence” to mean evidence that is essentially an object with material form that could be touched by a person. See New Shorter Oxford English Dictionary (Clarendon Press 1993) (defining “tangible” as “[a]ble to be touched; discernible or perceptible by touch; having material form”; from Latin tangere, “to touch”); Webster’s Third New International Dictionary, (G. & C. Merriam Co., 1971) (“tangible” means “capable of being touched: able to be perceived as materially existent, esp. by the sense of touch”); American Heritage Dictionary of the English Language (Houghton Mifflin Co., 1992) (“tangible” is that which is “[d]iscernible by the touch; palpable ... [p]ossible to touch ... real or concrete”). That meaning does not include the remotely-sensed heat at issue here.


Permalink 06:51:59 am, by fourth, 95 words, 493 views   English (US)
Categories: General

KY: No REP in LPN information

There is no reasonable expectation of privacy in a license plate, and a check of the license plate violates no law. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (October 12, 2012).

The informant in this case is not revealed by the record to be a citizen informant [she was] but there was probable cause as a whole for defendant’s arrest as a whole. State v. Echols, 382 S.W.3d 266 (Tenn. 2012).*

The officer had reasonable suspicion for the stop from driving over the centerline. DL revocation denial reversed. Brewer v. Dir. of Revenue, 386 S.W.3d 831 (Mo. App. 2012).*

Permalink 06:39:26 am, by fourth, 147 words, 433 views   English (US)
Categories: General

D.V.I.: High crime area plus smell of MJ from group was RS

High crime area with several reported drug deals a month and smell of marijuana coming from defendant’s group justified stop. United States v. Elmes, 2012 U.S. Dist. LEXIS 147256 (D. V.I. October 12, 2012).*

Officers came to defendant with a search warrant for child pornography after an investigation revealed it coming from his IP address. A sweep of the premises was appropriate after the warrant was issued for see if there was an additional person there after they learned others would be present. Nothing suggests defendant’s talking to the officers wasn’t voluntary. United States v. Brashear, 2012 U.S. Dist. LEXIS 147158 (M.D. Pa. October 12, 2012).*

The officer had reasonable suspicion for a traffic stop for a cracked windshield and lane changes. The questioning during the stop was not intrusive and was reasonable. Consent was valid. United States v. Johnston, 2012 U.S. Dist. LEXIS 147207 (S.D. Ohio October 12, 2012).*


Permalink 09:18:23 am, by fourth, 290 words, 688 views   English (US)
Categories: General

TN: Independent probable cause for vehicle and SW overcame illegal seizure of the keys

The trial court concluded that the seizure of the keys to a pickup truck should be suppressed, and the record supports that finding. Seizure of evidence from the bed of the pickup truck, however, is not a product of the illegal seizure of the keys. Also, a search warrant had been issued for the truck on separate probable case. State v. Ostein, 2012 Tenn. Crim. App. LEXIS 833 (October 9, 2012)*:

The evidence at the suppression hearing was that the Ford F-150's location and its registration to Dean were confirmed entirely independently of the key and remote seized from Ostein. The uncontradicted testimony was that the keys and remote were not used to locate the truck. Furthermore the truck bed where the evidence was found was locked and had to be pried open because no key on the key ring and remote unlocked the lid. A drug canine "hit" on the bed of the truck, and a confidential informant stated Ostein's "stash" was in the truck. The Ford F-150 was not searched until after the search warrant had been issued, and the search warrant authorized the officers to search any vehicle, found in proximity to 1314 Acklen Avenue, with a nexus to persons present at 1314 Acklen Avenue. As discussed above, Ostein did not challenge issuance of the search warrant or the search conducted pursuant to the warrant except to allege the search was a fruit of the illegally seized keys and remote. Based upon this evidence and the above-cited law, we conclude that the trial court erred by suppressing the cocaine and money found in the bed of the F-150 pickup truck. The search of the bed of the Ford F-150 was not the fruit of the seizure of keys and remote from Ostein.

Permalink 09:00:45 am, by fourth, 255 words, 505 views   English (US)
Categories: General

CA2: Third-party consent still possible with professed inability to open a safe that one admits having stuff in

In the no good deed goes unpunished category:

One defendant was an attorney called to the scene at plaintiff’s request to help defuse a standoff. The attorney wasn’t known to plaintiff and he had no prior attorney-client relationship. After the arrest, the attorney and police were sued for conspiring to violate his rights to arrest on a warrant under Payton. On a third-party consent to search a locked safe inside a refrigerator, the officers get qualified immunity for the wife’s purported consent. She admitted she might have property inside the safe but she professed not knowing how to open it. Profession of inability to open is not determinative based on all they knew. Maloney v. County of Nassau, 500 Fed. Appx. 30 (2d Cir. 2012)*:

Thus, we cannot conclude that no reasonable officer would have thought that (1) Comer's status as Maloney's wife; (2) the couple's joint residence in the home where the refrigerator and safe were located; (3) Comer's ownership of that home; and (4) Comer's statement that some of her personal property, i.e., her jewelry, might be stored within the safe, were sufficient to support a conclusion that Comer had both the requisite access and interest to permit her lawfully to consent to a search of these items notwithstanding her professed personal inability to unlock them. See Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (holding that officer is "entitled to qualified immunity [where] officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context" (internal quotation marks omitted)).

Permalink 08:45:01 am, by fourth, 169 words, 519 views   English (US)
Categories: General

New law review article: "GPS Tracking Out of Fourth Amendment Dead Ends: United States v. Jones and the Katz Conundrum"

New law review article: GPS Tracking Out of Fourth Amendment Dead Ends: United States v. Jones and the Katz Conundrum, 91 N.C. L. Rev. (forthcoming 2012), by Fabio Arcila, Jr.:

United States v. Jones, which reviewed the Fourth Amendment constitutionality of warrantless GPS tracking, may be the most important Fourth Amendment opinion since the Supreme Court decided Katz v. United States over four decades ago. Though Katz has dominated Fourth Amendment jurisprudence, it introduced significant ambiguities, such as the conundrum concerning whether a privacy or property model is controlling. Jones was a highly anticipated decision because it was widely understood that it might have ramifications for numerous core Fourth Amendment doctrines, including the Katz conundrum, and in turn for many governmental activities either currently or potentially subject to the Fourth Amendment. Examples include routine criminal law enforcement investigations, technological surveillance for either criminal or civil purposes (through GPS but also other means, such as location tracking capabilities embedded in individuals’ cellular telephones), and national security, to name but a few.


Permalink 11:10:03 am, by fourth, 217 words, 506 views   English (US)
Categories: General

WA: SI after handcuffing of computer bag and rolling duffle bag for armed robbery was valid

Defendant was leaving a hotel room with a laptop bag and a rolling duffle bag when he was subjected to a felony arrest at gunpoint for armed robbery. After he was handcuffed, his laptop bag and dufflebag were pushed about a car length away and searched. The search was valid under the state constitution as incident to an arrest because defendant was wanted for a violent crime and there were others around in a public place. State v. MacDicken, 171 Wn. App. 169, 286 P.3d 413 (2012), affd State v. Macdicken, 2014 Wash. LEXIS 161 (February 27, 2014) (posted here)

The officer stopping defendant already had probable cause to believe that he was involved in drugs but used a traffic stop as a cover (“whisper stop”). Defendant refused to consent to a search, but the officer used a drug dog which alerted on the car. Since the officer already had at least reasonable suspicion, the detention for the sniff was reasonable. United States v. Son, 2012 U.S. Dist. LEXIS 146107 (N.D. Ga. August 15, 2012)*:

n. 3 A "whisper stop" is used in investigations to avoid disclosure of the underlying drug investigation and, in this case, to protect the role of the confidential informant. Although the trooper is aware of facts related to the drug investigation, a traffic stop based on a violation of traffic laws is conducted.

Permalink 10:57:34 am, by fourth, 178 words, 455 views   English (US)
Categories: General

NPR: "Who Feels The Scars Of 'Stop And Frisk'?" & The Nation: "Stopped-and-Frisked: 'For Being a F**king Mutt'"

NPR: Who Feels The Scars Of 'Stop And Frisk'?:

The New York City council Wednesday held a hearing about blocking the controversial "stop and frisk" policy. That allows police to stop, search, and question people suspected of carrying weapons or drugs. It's also the subject of a New York Times short film. Host Michel Martin speaks with a producer and a young man featured in the film.

See also The Nation: Stopped-and-Frisked: 'For Being a F**king Mutt' [VIDEO] by Ross Tuttle and Erin Schneider:

Exclusive audio obtained by The Nation of a stop-and-frisk carried out by the New York Police Department freshly reveals the discriminatory and unprofessional way in which this controversial policy is being implemented on the city’s streets.

On June 3, 2011, three plainclothes New York City Police officers stopped a Harlem teenager named Alvin and two of the officers questioned and frisked him while the third remained in their unmarked car. Alvin secretly captured the interaction on his cell phone, and the resulting audio is one of the only known recordings of stop-and-frisk in action.


Permalink 06:28:34 am, by fourth, 114 words, 498 views   English (US)
Categories: General

MS: Suspended DL justifies frisk of person and inventory of car

When defendant was found to be driving on a suspended DL, a frisk of his person and inventory of his car was permissible. Melton v. State, 118 So. 3d 605 (Miss. App. 2012).*

Officers were called to defendant’s house on a complaint of possible animal cruelty. Defendant was found to have consented to their entry into her home, and it is supported by the record. State v. Hartman, 2012 Ohio 4694, 2012 Ohio App. LEXIS 4113 (9th Dist. October 10, 2012).*

There was a factual basis for the trial court’s conclusion the defendant was following too close behind a truck and then failed to pull over for a parked emergency vehicle. State v. Payne, 2012 Ohio 4696, 2012 Ohio App. LEXIS 4114 (4th Dist. September 25, 2012).*

Permalink 12:15:18 am, by fourth, 147 words, 494 views   English (US)
Categories: General

The Republic: "Critics call for 'no' vote vs. Ind. high court justice; say ruling denied 4th Amendment right"

The Republic: Critics call for 'no' vote vs. Ind. high court justice; say ruling denied 4th Amendment right by Charles Wilson:

INDIANAPOLIS — An Indiana Supreme Court justice who wrote a ruling that set off a public uproar and provoked legislators into passing a new state law faces rare opposition in a routine retention vote.

Justice Steven David must pass a simple yes-or-no vote in the Nov. 6 election to keep his seat on the state's highest court. Experts say Indiana judges survive them more often than not.

But opponents, from tea party activists to Libertarians, want David ousted over a 2011 decision he wrote asserting Indiana residents didn't have the right to resist the police, even if the officers illegally enter their homes. Critics said the 3-2 decision contradicted the Fourth Amendment, which requires police to obtain a court warrant, and violated citizens' centuries-old right to defend their homes.

Permalink 12:05:27 am, by fourth, 18 words, 531 views   English (US)
Categories: General

Lexis book sale: "K9 Officer's Legal Handbook; Know and understand the unique legal issues faced by dog handlers"


Permalink 03:53:52 pm, by fourth, 453 words, 495 views   English (US)
Categories: General

SC: Under SCA, an email read and kept on the email server is no longer in "electronic storage"

An email read and kept on the email server is no longer in "electronic storage" for SCA purposes (splitting with the Ninth Circuit). Jennings v. Jennings, No. 27177 (S.C. October 10, 2012) (2-2-1):

The court of appeals agreed with Jennings and held the e-mails were in "electronic storage" because they were stored for backup protection pursuant to subsection (B). Broome argues this conclusion was based upon an improper interpretation of section 2510(17), asserting that the definition of "electronic storage" within the SCA requires that it must be both temporary and intermediate storage incident to transmission of the communication and storage for the purposes of backup protection. She therefore contends that an e-mail must meet both subsection (A) and subsection (B) to be covered by the SCA. We acknowledge that this reading is the interpretation espoused by the Department of Justice as the "traditional interpretation" of section 2510(17). However, it has been rejected by the majority of courts in favor of a construction that an e-mail can be in electronic storage if it meets either (A) or (B). See, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004); ...

Because Jennings has only argued his e-mails were in electronic storage pursuant to subsection (B), it is unnecessary for us to determine whether to adopt the traditional interpretation advocated by the Department of Justice or the interpretation recognized by these cases. ...

After opening them, Jennings left the single copies of his e-mails on the Yahoo! server and apparently did not download them or save another copy of them in any other location. We decline to hold that retaining an opened e-mail constitutes storing it for backup protection under the Act. The ordinary meaning of the word "backup" is "one that serves as a substitute or support." Merriam-Webster Dictionary, Thus, Congress's use of "backup" necessarily presupposes the existence of another copy to which this e-mail would serve as a substitute or support. We see no reason to deviate from the plain, everyday meaning of the word "backup," and conclude that as the single copy of the communication, Jennings' e-mails could not have been stored for backup protection.

Accordingly, we find these e-mails were not in electronic storage. We emphasize that although we reject the contention that Broome's actions give rise to a claim under the SCA, this should in no way be read as condoning her behavior. Instead, we only hold that she is not liable under the SCA because the e-mails in question do not meet the definition of "electronic storage" under the Act.

HT and see Orin Kerr, South Carolina Supreme Court Creates Split With Ninth Circuit on Privacy in Stored E-Mails — and Divides 2-2-1 on the Rationale on Volokh Conspiracy.

Permalink 08:28:35 am, by fourth, 214 words, 513 views   English (US)
Categories: General

W.D.Pa.: Momentary compliance with police with a brief show of hands and then flight is not a Fourth Amendment seizure

Momentary compliance with police with a brief show of hands and then flight is not a Fourth Amendment seizure. Abandoning a shotgun in flight showed a lack of standing. United States v. Stanton, 2012 U.S. Dist. LEXIS 145932 (W.D. Pa. October 10, 2012):

A defendant's momentary compliance with police directions does not rise to the level of a Fourth Amendment seizure if he "did not submit in any realistic sense to the officers' show of authority." Valentine, 232 F.3d at 359; see also United States v. Grant, 459 F. App'x 154, 156 (3d Cir. 2012) (unpublished) (defendant who momentarily raised his hands when police ordered him to "show your hands" for no more than a few seconds before fleeing was not seized); United States v. Samuels, 131 F. App'x 859, 862 (3d Cir. 2005) (unpublished) (defendant who raised one hand in response to officers' request to raise both his hands did not submit to police authority because he continued to make hand movements toward his waist). In explaining this caveat, the Third Circuit in Valentine cited with approval the D.C. Circuit case, United States v. Washington, which found that the defendant had not yet been seized when he temporarily stopped his car at the curb in response to police commands but sped away when the officer approached on foot. 12 F.3d 1128, 1132 (D.C. Cir. 1994).

Permalink 08:03:50 am, by fourth, 139 words, 583 views   English (US)
Categories: General

D.Kan.: Residential search warrant that did not mention vehicles still authorized a search of all vehicles parked on the curtilage belonging there

A residential search warrant that did not mention vehicles still authorized a search of all vehicles parked on the curtilage belonging there. United States v. Hickman, 2012 U.S. Dist. LEXIS 144962 (D. Kan. October 9, 2012).*

Defendant was stopped for a headlight violation, and a drug dog was immediately called to the scene. While the DL was being checked, which took 17 minutes, the dog alerted on the passenger door and passenger’s purse on the hood. This was all reasonable. State v. Wilcox, 2012 Ohio 4582, 2012 Ohio App. LEXIS 4028 (5th Dist. September 25, 2012).*

Defendant’s consent to search a validly stopped bus was not during an unreasonably prolonged stop. Rocha v. State, 317 Ga. App. 863, 733 S.E.2d 38 (2012).*

The police can stop drivers who engage in erratic driving behavior, even if it is simply weaving within a lane. McRae v. Hogan, 317 Ga. App. 813, 732 S.E.2d 853 (2012).*

Permalink 07:42:10 am, by fourth, 140 words, 476 views   English (US)
Categories: General

CA6: Suspect must complain to officer handcuffs were too tight to sue

“This court has stated that in order to reach a jury on a claim of tight handcuffing, ‘a plaintiff must offer sufficient evidence ... that: (1) he or she complained the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff experienced “some physical injury” resulting from the handcuffing.’ Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401 (6th Cir. 2009).” Frodge v. City of Newport, 501 Fed. Appx. 519 (6th Cir. 2012).*

Officers had probable cause to approach a car for a completed drug deal after overhearing a cell phone conversation. United States v. Black, 2012 U.S. Dist. LEXIS 145234 (W.D. Pa. October 9, 2012).*

Officers watching a murder suspect had reasonable suspicion to stop him when they did because they feared he was following a detective with the intent to harm. United States v. Humphrey, 2012 U.S. Dist. LEXIS 145336 (E.D. Mo. September 11, 2012).*


Permalink 05:52:17 pm, by fourth, 255 words, 455 views   English (US)
Categories: General

M.D.Fla.: A safe in a vehicle subject to inventory can be forced opened

A safe in a vehicle that was lawfully impounded and subject to towing and inventory could be forcibly opened at the resting place of the vehicle. United States v. Falsey, 2012 U.S. Dist. LEXIS 145230 (M.D. Fla. October 9, 2012):

Third, the motion to suppress objects that, because the vehicle was towed to the impoundment facility at Joe's Towing and because the vehicle resided — safe and sound — at Joe's Towing before the visit by Sgt. Trebino and the three detectives to complete the inventory search (by forcing open the safe in the trunk of the vehicle), the inventory search that revealed the narcotics was entirely unnecessary and outside the permitted purposes of an inventory. However, the applicable law permits the search of a container, package, or compartment within an impounded vehicle if the police department's regulations require the search, and the Largo police department's regulations require the search of a container, package, or compartment in an impounded vehicle. Falsey's argument — that the vehicle was safely situated at Joe's Towing and that a search of the safe in the trunk was unnecessary — is absolutely wrong. The Largo police department's regulations govern the inventory search and (wisely) require the inspection of a container, package, or compartment. Whether during the second inventory the police's failing to search the safe in the trunk of the vehicle would have been an acceptable risk to the police is a superfluous question; if the impoundment was proper, the inventory was proper. 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 7.4(a).


Permalink 09:11:51 am, by fourth, 123 words, 511 views   English (US)
Categories: General

CA5: PC for defendant's car led to PC for his house

The traffic stop was valid, despite claims of pretext, and that led to probable cause to search defendant’s car which also provided probable cause as to his house. United States v. Charles, 482 Fed. Appx. 948 (5th Cir. 2012).*

Defendant disclaimed any connection to a motel room that the police wanted to search, so they got consent from a woman inside. Aside from lacking standing, defendant’s claim that defense counsel was ineffective for not calling the motel manager as a witness fails because it wouldn’t add anything. Goodloe v. United States, 2012 U.S. Dist. LEXIS 144916 (W.D. Ky. August 1, 2012).*

Defendant’s detention was with reasonable suspicion, and the refusal to consent, of course, can’t be considered. Dimino v. State, 2012 WY 131, 286 P.3d 739 (2012).*

Permalink 08:55:02 am, by fourth, 307 words, 460 views   English (US)
Categories: General

TN: Specific date not required in affidavit for SW as long as recency can be ascertained from affidavit as a whole

A specific reference to a date is not required in an affidavit for a search warrant as long as the time period showing no staleness can be ascertained from the affidavit as a whole. Here, the affidavit referred to the product of a subpoena just issued, and that was sufficient to show time. State v. Graves, 2012 Tenn. Crim. App. LEXIS 819 (October 4, 2012):

Therefore, in this case, we conclude that the McCormick decision does not support the Defendant's argument. Additionally, to the extent the Defendant relies upon Welchance and the cases that relied upon it, we conclude that the Tennessee Supreme Court's analysis of Welchance in Longstreet clarifies that a specific date is not necessarily required in the affidavit, but the proper inquiry is whether the facts contained in the affidavit were stale at the time the affiant applied for a search warrant. We note that the certified question in this case does not encompass the issue of whether the information contained in the affidavit was stale; therefore, any argument to that effect is not properly before this Court for review.

In summary, the affidavit submitted in support of the search warrant in this case described the Defendant, the residence to be searched, the computers and other electronic devices believed to contain illegal material, and provided a time period during which the illegal activity occurred. We note that the trial court found that the affidavit specified that Detective Shanks "issued a subpoena on March 31, '08, at 1:57," which established the time period of the illegal activity. The trial court, in examining the four corners of the affidavit, properly found that the affidavit provided probable cause to issue the search warrant. Therefore, we conclude that the trial court did not err in denying the Defendant's motion to suppress, and we affirm the Defendant's conviction. The Defendant is not entitled to relief.

Permalink 08:41:33 am, by fourth, 131 words, 483 views   English (US)
Categories: General

GA: Search of shoes not permitted during a pat down for weapons

Search of shoes is not permitted during a pat down for weapons. State v. Cleveland, 319 Ga. App. 225, 733 S.E.2d 12 (2012).*

Defense counsel not ineffective for not filing a motion to suppress a search of a house admittedly abandoned in an effort to distance defendant from it. [The court also found a business letter and divorce decree not “private papers,” which is ridiculous, as an alternative ground for why a motion to suppress wouldn’t be granted.] Flemister v. State, 317 Ga. App. 749, 732 S.E.2d 810 (2012).*

Officers responded to a fireworks complaint, and ended up detaining a juvenile. The nature of the report without specifics and finding a car with no reasonable suspicion didn’t help. The stop of the juvenile was without reasonable suspicion. In re Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).*


Permalink 12:22:05 am, by fourth, 445 words, 528 views   English (US)
Categories: General

NH: Immediate discovery that the factual basis for a warrant was wrong requires the search to stop

Officers came to defendant’s house to serve his mother with a notice for trespass and harassment, and they saw what they thought were long guns in house, and she was a convicted felon. They got a search warrant for firearms and went back, discovering that the expected long guns were actually BB guns. They continued to a lockbox and wanted to search it for a possible handgun, and the occupants at first refused, and the officers said they would open it by force if they didn’t open it. They admitted there was cocaine in the lockbox, and another warrant was obtained for the lockbox. Garrison applies, and when the officers discovered that the long guns weren’t firearms, they were required to discontinue the search. State v. Schulz, 55 A.3d 933 (N.H. 2012):

Suppression is therefore the appropriate remedy under the circumstances. Had the magistrate known that Officer Alling observed BB guns, rather than firearms, and given that the affidavit did not provide any information as to how the BB guns were "used, intended to be used, or threatened to be used" so as to constitute a deadly weapon, RSA 625:11, V (2007), no warrant would have been authorized because there would have been no probable cause to believe the defendant's mother was committing, or had committed, the crime of being a felon in possession of a firearm or other deadly weapon, see RSA 159:3 (2002).

It bears emphasizing that both the standard we have employed and the conclusion that we reach are compelled under the well-established constitutional precedents recited above. Even more so than in Garrison, where the police were required to discontinue searching after they "were put on notice of the risk that they might be" in the wrong apartment, Garrison, 480 U.S. at 87 (emphasis added), here the police were required to discontinue searching when they learned that the three guns that formed the sole factual basis for the warrant were not, in fact, firearms. In so concluding, we are not imposing a new constitutional burden on the police; as was recognized in Garrison, police officers have a duty to reassess probable cause based upon information acquired after the warrant issues but before or during a search. The police must, of course, have some latitude to conduct searches pursuant to warrants. What the police cannot do, however, is treat the search warrant as an authorization for a full-scale search irrespective of developments subsequent to the warrant's issuance. While it may be the rare case in which facts discovered during the search clearly and unambiguously dispel probable cause, this is such a case. Accordingly, the execution of the warrant violated Part I, Article 19 of the State Constitution.

Permalink 12:13:21 am, by fourth, 334 words, 462 views   English (US)
Categories: General

FL5: Protective sweep of locked bedroom after consent entry was invalid

Protective sweep of locked bedroom after consent entry was invalid. Hernandez v. State, 98 So. 3d 702 (Fla. 5th DCA 2012):

Courts that have recognized the validity of protective sweeps not incident to an arrest have generally required the State, at a minimum, to prove the following elements:

1. The police must not have entered (or remained in) the home illegally and their presence within it must have been for a legitimate law enforcement purpose;

2. The protective sweep must have been supported by a reasonable, articulable suspicion that the area to be swept harbored an individual posing a danger to those on the scene;

3. The protective sweep must not have been "a full search" but rather a cursory inspection of those spaces where a person may be found;

4. The protective sweep must have lasted no longer than was necessary to dispel the reasonable suspicion of danger and no longer than the police were justified in remaining on the premises.

Gould, 364 F.3d at 587-88, see also Miller, 430 F.3d at 98-100; State v. Davila, 999 A.2d 1116, 1118-19 (N.J. 2010).

In the instant case, the aforementioned elements were met. However, when the police entry into a house is based on consent, and the consent is limited in scope, additional Fourth Amendment concerns arise that are not present in cases where the initial entry is pursuant to a warrant.

For example, concerns might arise respecting a consent to entry requested for a stated common purpose but actually intended not for that purpose but rather for the purpose of gaining access in order to then make a protective sweep of the entire home for unrelated reasons and thus circumvent the warrant requirement. Concerns of a similar character might also arguably arise where the consent to entry is given expressly or implicitly only as to a limited area but the protective sweep extends clearly beyond that area without anything having developed since entry suggestive of greater or more imminent danger than that initially apparent just prior to entry.

Gould, 364 F.3d at 589.

Permalink 12:07:55 am, by fourth, 126 words, 414 views   English (US)
Categories: General

CA10: Where there is good faith, actual PC irrelevant and won't be decided

The search warrant for defendant’s car was at least relied on in good faith, so the court does not have to decide the question of whether probable cause even exists (n.2). United States v. Gutierrez, 498 Fed. Appx. 786 (10th Cir. 2012).* [So much for development of the law. You already know how I feel about leaving PC undecided--it makes all the following similar searches valid without PC too.]

Defendant said he was the sergeant-at-arms of a motorcycle club, and that gave officers reasonable suspicion for a pat down for weapons, which were found. United States v. Durham, 491 Fed. Appx. 169 (11th Cir. 2012).

A gun abandoned in a drainage ditch in flight is not illegally seized because abandonment shows no standing. Fisher v. State, 317 Ga. App. 761, 732 S.E.2d 821 (2012).*


Permalink 11:03:30 am, by fourth, 430 words, 452 views   English (US)
Categories: General

LA4: Stop was without justification, as was pat down

Defendant was talking to somebody in an SUV who fled when the police appeared. Defendant got on a bicycle and rode away. He was stopped by the officers and was told to assume the position with his hands on the car. There was no justification for a pat down, and the officers really acted like they don’t know what the constitution requires. State v. Butler, 101 So. 3d 121 (La.App. 4 Cir. 2012)*:

Thus, according to the explicit testimony of the police officers, they exited their police car, ordered the defendant to stop and put his hands on the police vehicle to be patted down. There is no evidence that the defendant was involved in any suspicious or illegal activity prior to the pat-down. In fact, the police officers specifically testified that they had a clear view of the defendant from a short distance and saw no interchange between the defendant and the occupants of the vehicle. Thus, the record before us bears no indicia of any particularized suspicion that this defendant was involved with drugs or drug transactions except for the rationale underlying the proactive patrol, i.e. the area around Danneel and Seventh Streets is considered (like many areas of New Orleans) a high crime area.

Thus, this case appears to exemplify the concern expressed by the Justice Department (and ultimately conceded by the city in the Consent Decree) pertaining to inadequate training of NOPD officers with regard to the constitutional [Pg 10] parameters of search and seizure. See United States Department of Justice, Investigation of the New Orleans Police Department (3/16/2011), pp. 30-31 (NOPD's lack of adequate policy and training regarding search and seizure have left officers without basic foundation to perform their duties within constitutional boundaries).

. . .


The police actions and testimony in this case exemplify concerns expressed by the Justice Department, and conceded by the City, as to whether officers of the New Orleans Police Department have been adequately trained regarding the constitutional boundaries of search and seizure. See United States Department Of Justice, Investigation of the New Orleans Police Department (3/16/2011), pp. 30-31; see also United States of America v. The City of New Orleans, 2:12-01924 (E.D. La. 7/24/12), pp. 12, 38-44. Thus, the trial court clearly erred in denying the defendant's motion to suppress the evidence and statement. Accordingly, the defendant's conviction is vacated and the matter is remanded back to the trial court. Although our review of the record reveals two errors patent pertaining to the defendant's sentencing, because we reverse the judgment of the trial court and vacate the defendant's conviction, we pretermit discussion of those errors.

Permalink 10:30:51 am, by fourth, 81 words, 498 views   English (US)
Categories: General

NYTimes: "Student IDs That Track the Students" on school grounds

NYTimes: Student IDs That Track the Students by Maurice Chammah and Nick Swartsell

SAN ANTONIO — For Tira Starr, an eighth grader at Anson Jones Middle School, the plastic nametag hanging around her neck that she has decorated with a smiley face and a purple bat sticker offers a way to reflect her personal flair. For administrators, it is something else entirely: a device that lets them use radio frequency technology — with scanners tucked behind walls and ceilings — to track her whereabouts.

Permalink 10:05:25 am, by fourth, 207 words, 441 views   English (US)
Categories: General

D.Kan.: When is a knock-and-talk not consensual?

When is a knock-and-talk not consensual? This one was because it was in the daytime and the officers were not overbearing. United States v. Barrios, 2012 U.S. Dist. LEXIS 144047 (D. Kan. October 4, 2012)*:

Circumstances which may be pertinent include the time of day when the officers knock on the door, the manner in which the officers try to get the occupant's attention (e.g. whether the officers knock, pound or yell; whether they do so for an extended period of time), whether one or more officers is/are present, whether officers display their authority (e.g. by carrying a weapon or touching the person at the door), the behavior of the officers (e.g. whether officers shine a flashlight into the home, whether officers are persistent in the face of no response) and the language or tone of voice used (whether it conveys that compliance with the officers' request is compelled). Id. at 1168; see also United States v. Flowers, 336 F.2d 1222 (10th Cir. 2003). If the occupant is compelled to open the door, an encounter on the threshold of a person's home amounts to a seizure of the occupant. Such seizure requires a warrant unless officers have probable cause to arrest and exigent circumstances exist. Reeves, 524 F.3d at 1169.

Permalink 09:26:16 am, by fourth, 135 words, 391 views   English (US)
Categories: General

NM: Guesthouse on premises required a separate warrant from main residence

“The question in this case is whether a warrant authorizing the search of a residence also authorizes the search of an independently occupied guesthouse located in the backyard of that residence. Agreeing with the district court that the warrant did not state with sufficient particularity that the separate residence of Defendant was a place to be searched, we affirm.” The officers did not know that the described residence also had the guesthouse. It was a separate dwelling with its own curtilage. State v. Hamilton, 2012 NMCA 115, 290 P.3d 271 (App. 2012).

A search warrant for a computer case in defendant’s car produced 23 fictitious driver's licenses, 12 counterfeit checks, and a laptop computer which were properly seized and admissible at trial. Six cell phones, however, were suppressed. United States v. Shabazz, 2012 U.S. Dist. LEXIS 144453 (M.D. Fla. October 5, 2012).*

Permalink 09:02:00 am, by fourth, 167 words, 420 views   English (US)
Categories: General

CA9: Arbitrary local rule in D. Ariz. delaying first appearances unreasonable

The District of Arizona at Tucson’s 10:30 am notification rule, not well publicized and not subject to judicial notice, was invalid where the defendant was arrested at 7:30 am ten miles from the courthouse but a Spanish speaking agent could not be located before 10:30. The delay in his arraignment until the next day was unreasonable under McNabb-Malloy. United States v. Valenzuela-Espinoza, 697 F.3d 742 (9th Cir. 2012):

Here, Valenzuela-Espinoza was arrested just ten miles from the courthouse almost three hours before the scheduled arraignment calendar. The delay here was not reasonable "given the means of transportation and the distance to be traveled to the nearest available magistrate." Corley, 129 S. Ct. at 1571. The 10:30 a.m. notification policy cannot by itself create a reasonable delay. To hold otherwise would stand the McNabb-Mallory rule on its head. It is not the longstanding principle embodied in McNabb-Mallory that must give way to local paperwork needs, but the local paperwork policy that must be tailored to the requirements of McNabb-Mallory, its implementing statute, and rule.

Permalink 12:30:49 am, by fourth, 116 words, 575 views   English (US)
Categories: General

MA: Anticipatory search warrant with controlled buy as a triggering condition valid

Anticipatory search warrant with controlled buy as a triggering condition is valid. Commonwealth v. Mora, 82 Mass. App. Ct. 575, 976 N.E.2d 196 (2012).

Defendant was involved in a three year identity theft operation and he was arrested with seven cell phones. They were searched for everything with a warrant. “Bell argues that the search warrant was overbroad because there was no justification in the affidavits supporting the warrant application to permit the government to search photos, videos, or the internet browsing history stored on the seven mobile phones found in his automobile.” He didn’t raise this argument in the district court and offers no explanation for the waiver. Affirmed. United States v. Bell, 500 Fed. Appx. 133 (3d Cir. 2012).*


Permalink 11:20:44 am, by fourth, 166 words, 705 views   English (US)
Categories: General

CA9: Promptly withdrawn subpoena for cell phone GPS information was not a violation of the Fourth Amendment

A subpoena had been issued for GPS data from a cell phone, and then it was withdrawn hours later. There was no violation of the Fourth Amendment. The fact call information was obtained was not a violation of the Fourth Amendment. Jayne v. Blunk, 502 Fed. Appx. 641 (9th Cir. 2012)*:

Jayne attests that he saw a document listing telephone numbers obtained from his call records. But there is no reasonable expectation of privacy in the phone numbers dialed or from which calls are received, so the acquisition of such information does not constitute a search under the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 745-46 (1979).

Defendant was convicted by guilty plea of a sex offense against a child, and a condition of his release thereafter was searches of his home and computer. He twice avoided computer searches, and probation finally searched it finding child pornography. The search condition was reasonable and specific enough. People v. Wheeler, 2012 NY Slip Op 06661, 2012 N.Y. App. Div. LEXIS 6649 (4th Dept. October 5, 2012).*

Permalink 11:03:10 am, by fourth, 123 words, 404 views   English (US)
Categories: General

IA: Where search valid in any event, fact defense counsel did raise alternative ground doesn't matter

No IAC for not challenging search: Based on the record, “assuming without deciding that Martin had a legitimate expectation of privacy, we agree with the State that there was a valid search incident to arrest.” State v. Martin, 2012 Iowa App. LEXIS 832 (October 3, 2012).*

Whether defense counsel was ineffective for not challenging the search could not be reached on direct appeal because of inadequacy of the record on the search on any ground. Defendant has to go to post-conviction proceedings to make his record. State v. Armstrong, 2012 Iowa App. LEXIS 834 (October 3, 2012).*

There was probable cause for defendant’s stop. State v. Quigley, 2012 Iowa App. LEXIS 842 (October 3, 2012).*

Defendant’s consent here was not shown to be clearly erroneous. United States v. Vaghari, 500 Fed. Appx. 139 (3d Cir. 2012).*

Permalink 11:00:48 am, by fourth, 272 words, 743 views   English (US)
Categories: General

IN: Warrantless entry and arrest violated Fourth Amendment and confession was invalid

The police entry into defendant’s house and his arrest violated the Fourth Amendment, so his statement could not be attenuated from the illegal arrest because it was continuous, even though he was twice Mirandized. Joseph v. State, 975 N.E.2d 420 (Ind. App. 2012):

The record indicates that while Joseph was given his Miranda advisements at least two times and was transported to the police station prior to making his statements to Detective Brown, it also indicates that Joseph was in constant police custody from the time that Officers Winters and Hoehn initiated the illegal search of his apartment and was aware that their search had resulted in the discovery of potentially relevant evidence. Joseph was questioned about this evidence by both the officers at the scene and Detective Brown at the police station. In addition, nothing in the record indicates that Joseph had any way of knowing that the potential evidence found in his apartment and his statements to Officers Winters and Hoehn would later be suppressed from trial when he spoke to Detective Brown. Based on these facts, especially the fact that Joseph was in constant police custody from the time of their illegal entry into and search of his apartment, knew what potential evidence had been discovered in his apartment, and had made prior potentially incriminating statements to Officers Winters and Hoehn, we cannot conclude that Joseph's comments to Detective Brown were sufficiently attenuated from the illegal search of his apartment to dissipate any taint of the illegal police conduct. As such, we conclude that the trial court abused its discretion in admitting Joseph's statements to Detective Brown at trial.

Permalink 10:47:36 am, by fourth, 300 words, 646 views   English (US)
Categories: General

AR: Pros'r subpoena appeared reasonable; Fourth Amendment argument not preserved

Defendant changed his argument on appeal that the prosecutor subpoenaed text messages in violation of the Fourth Amendment. On what the court had, the subpoena appeared reasonable under Walling. Gulley v. State, 2012 Ark. 368, 2012 Ark. LEXIS 393 (October 4, 2012)*:

As the State correctly points out, Gulley has not alleged that the prosecutor in this case abused his subpoena power. Rather, Gulley simply argues that he had an expectation of privacy in his text messages and that the procurement of his text messages without a search warrant violated his right to be secure in his communications. Notably, however, "the search and seizure clause of the [Fourth] Amendment was not intended to interfere with the power of courts to compel, through a subpoena duces tecum, the production, upon a trial in court, of documentary evidence." Hale v. Henkel, 201 U.S. 43, 73 (1906). In regard to pretrial subpoenas duces tecum, the Fourth Amendment, "if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' .... The gist of the protection is in the requirement ... that the disclosure sought shall not be unreasonable." Okla. Press Publ'g Co. v. Walling, 327 U.S. 186, 208 (1946). The Supreme Court of the United States has specifically required only that "the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome." See v. City of Seattle, 387 U.S. 541, 544 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984); see also Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark. 1968) (holding that statute authorizing prosecutor's subpoena power was constitutional and limited only by reasonableness as articulated in Oklahoma Press Publishing Co. v. Walling).

In the instant case, Gulley made no argument before the trial court-and makes no argument on appeal-that the prosecutor abused the subpoena power. ...

Permalink 10:16:36 am, by fourth, 133 words, 1912 views   English (US)
Categories: General "Hacker Case Could Test Limits on Electronic Searches" Hacker Case Could Test Limits on Electronic Searches by Vanessa Blum:

SAN FRANCISCO — More than a year after federal agents arrested 14 people accused in a cyberattack on PayPal, the high-profile prosecution has ground to a standstill over the handling of computers seized in the investigation.

Searches carried out in a dozen states targeted computers, hard drives and other digital devices, resulting in an avalanche of electronic material for investigators to sift through.

But intermingled with potential evidence of a crime were millions of irrelevant files, like emails, photographs, medical records, downloaded articles, Internet search histories and old tax returns.

Just how far prosecutors must go to segregate and purge such extraneous material is a question that could derail the federal hacking case and test the limits judges place on electronic searches.

Permalink 10:07:33 am, by fourth, 184 words, 425 views   English (US)
Categories: General

N.D.Ga.: PC for computer search for child prostitution doesn't prevent officers looking for pictures on computer

Probable cause for a search for child prostitution on defendant’s computer did not limit the ability of officers to look at pictures. United States v. Skow, 2012 U.S. Dist. LEXIS 142668 (N.D. Ga. September 13, 2012).*

“‘Let's go back to my apartment and get my license. It's in my wallet,’ or words of similar import” was consent to enter defendant’s apartment. In plain view was paperwork and credit cards suggesting stolen credit cards. A search warrant would be reasonable based on these observations in an entry by consent. State v. Mangum, 153 Idaho 705, 291 P.3d 44 (App. 2012).*

The officer stopped defendant for expired tags. There was reasonable suspicion to expand the scope of the traffic stop into an investigation of prostitution solicitation, because: (1) the officer saw prostitutes working the area; (2) defendant backed out of the alley after seeing the officer; (3) he avoided eye contact with the officer; and (4) the officer suspected the passenger was working as a prostitute based on her clothing and heavy make-up. Defendant’s consent to search his fanny pack was not based on an unreasonable stop. State v. Olson, 2012 NMSC 35, 285 P.3d 1066 (2012).*


Permalink 03:52:50 pm, by fourth, 77 words, 1342 views   English (US)
Categories: General "Privacy Evaporates in Twitter Cloud, OWS Says" Privacy Evaporates in Twitter Cloud, OWS Says by Adam Klasfeld:

MANHATTAN (CN) - The subpoena of an Occupy Wall Street activist's Twitter account means "your First and Fourth Amendment rights have vanished" in the age of cloud computing, a lawyer claims in a motion to reverse the ruling.

Malcolm Harris, a 23-year-old writer, was among the more than 700 people arrested for disorderly conduct on Oct. 1, 2011, as Occupy Wall Street protesters marched across the Brooklyn Bridge.

Permalink 11:47:35 am, by fourth, 136 words, 471 views   English (US)
Categories: General "Warrantless Spying Skyrockets Under Obama" Warrantless Spying Skyrockets Under Obama, And the news is being met with the equivalent of crickets chirping by A. Barton Hinkle:

Is it fascism yet?

That was the snarky question glued to the bumper of every self-respecting progressive’s gas/electric hybrid back during the Bush-Cheney administration. It now must be asked again.

Back then, liberals were raising the alarm about impending fascism because of post-9/11 policies such as warrantless wiretapping, wars of choice, military commissions, indefinite detention and so on.

Warrantless surveillance, for instance, drew intense scrutiny and saturation media coverage from the time it was discovered until approximately 12:05 p.m. EST January 20, 2009. Interest then dropped off markedly. After all, Barack Obama had promised “no more illegal wiretapping of American citizens.” So, problem solved.

Except it wasn’t. In fact, it got worse.

Permalink 10:47:44 am, by fourth, 383 words, 698 views   English (US)
Categories: General

CA10: Several "red flags" were reasonable suspicion barring § 1983 suit

There was reasonable suspicion for plaintiff’s detention, so the officer had a defense, and at least qualified immunity, to any § 1983 suit against him for the allegedly overlong stop. Arencibia v. Barta, 498 Fed. Appx. 773 (10th Cir. 2012)*:

Reasonable suspicion is based on the "totality of the circumstances." United States v. Arvizu, 534 U.S. 266, 273 (2002). We do not evaluate factors, such as the "red flags" identified by Deputy Trammel, in a vacuum. Instead, we look at them as a whole, combined with the officer's experience and training, to determine if he had a "particularized and objective basis" for suspecting illegal activity. Id. at 273. For example, in Bradford, we held that an officer had reasonable suspicion to detain a driver based on a set of factors, any one of which could have had an innocuous connotation: the presence of a cellular phone, luggage, and food wrappers; the driver's nervousness; inconsistencies and improbabilities in the driver's answers; and the driver's one-way car rental. 423 F.3d at 1157.

Deputy Trammel identified multiple bases for his suspicion, which he told to Sergeant Metz before continuing his detention of Mr. Arencibia. These "red flags" included Mr. Arencibia's excessive nervousness, see United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007); United States v. Williams, 271 F.3d 1262, 1269 (10th Cir. 2001); the ghosting on the trailer; Mr. Arencibia's decisions to haul a locked, empty trailer attached to a truck with known mechanical problems across the country; unusual circumstances surrounding the purchase of the truck; the EPIC report on Mr. Arencibia's prior drug involvement, see United States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994) (noting that prior criminal activity can give rise to reasonable suspicion if combined with other factors); and inconsistencies in the logbook, bill of lading, and weigh station tickets, see, e.g., United States v. Soto, 988 F.2d 1548, 1555-56 (10th Cir. 1993); United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990)). While any one of these "red flags," if evaluated on its own, might not give rise to reasonable suspicion, the confluence of so many factors could give rise to suspicion that is "particularized and objective." Arvizu, 534 U.S. at 273 (explaining that the combination of multiple, seemingly harmless, factors could create reasonable suspicion).

Having identified multiple factors pointing to reasonable suspicion, Deputy Trammel could not have been on notice that he was violating a clearly established constitutional right. ...

Permalink 09:12:50 am, by fourth, 125 words, 405 views   English (US)
Categories: General

OH12: Fireman had exigency to open window to check for gas

Defendant’s neighbors called to complain of a strange odor coming from his house. The fire department inserted a gas detection device by moving an air conditioner. In the course of that, they saw marijuana spread out on a table. The exigencies of the situation justified that entry. State v. Luong, 2012 Ohio 4519, 977 N.E.2d 1075 (12th Dist. October 1, 2012),*

There was probable cause to stop the car for either a traffic offense or possession of cocaine based on collective knowledge. United States v. Lincoln, 2012 U.S. Dist. LEXIS 142836 (N.D. Ga. October 2, 2012).*

Defendant was not deprived of effective assistance of counsel by defense counsel withdrawing part of the motion to suppress that would have lost anyway. State v. Dominguez, 2012 Ohio 4542, 2012 Ohio App. LEXIS 3996 (12th Dist. October 1, 2012).*


Permalink 09:23:42 am, by fourth, 100 words, 549 views   English (US)
Categories: General

D.Nev.: Where arrest invalid, fingerprints at jail suppressed

Defendant’s arrest for trespass was invalid, so the taking of his fingerprints at the jail is suppressed as fruit of the poisonous tree. United States v. Eppenger, 2012 U.S. Dist. LEXIS 142483 (D. Nev. July 24, 2012).

The inventory of defendant’s vehicle was appropriate. United States v. Abram, 2012 U.S. Dist. LEXIS 142479 (W.D. Mo. June 26, 2012).*

The appeal is based on the asserted incredibility of the officer’s testimony, but it wasn’t “contrary to the laws of nature or so inconsistent or improbable on its face that no factfinder could accept it.” United States v. Dixon, 491 Fed. Appx. 120 (11th Cir. 2012).*

Permalink 09:19:24 am, by fourth, 156 words, 530 views   English (US)
Categories: General

D.Kan.: “Evidence of a hidden compartment can alone give rise to probable cause to search a vehicle for contraband or arrest the driver of the vehicle.”

“Evidence of a hidden compartment can alone give rise to probable cause to search a vehicle for contraband or arrest the driver of the vehicle.” United States v. Ramirez, 2012 U.S. Dist. LEXIS 142697 (D. Kan. October 2, 2012):

Evidence of a hidden compartment can alone give rise to probable cause to search a vehicle for contraband or arrest the driver of the vehicle. See United States v. Stephenson, 452 F.3d 1173, 1177-78 (10th Cir. 2006). Whether evidence of a hidden compartment can alone create probable cause depends on two factors: (1) the likelihood that there really is a hidden compartment and (2) the likelihood that a vehicle with a hidden compartment would, in the circumstances, be secreting contraband. Id. The first factor can be met when the police officer has training and experience with hidden compartments. Id. at 1177. Furthermore, the Tenth Circuit does not require an officer to verify or confirm conclusively the existence of a hidden compartment before searching or arresting.


Permalink 08:13:08 am, by fourth, 91 words, 487 views   English (US)
Categories: General

CO: Custodial arrest for contempt at direction of judge justified SI

Arrest of defendant and detention for contempt at direction of judge that was subject to appeal did not make the search incident or inventory invalid. People v. Guthrie, 2012 CO 59, 286 P.3d 530 (Colo. 2012).*

On the totality, defendant’s encounter with the police was not involuntary and the answer to questions and defendant’s actions were by consent. United States v. Eppenger, 2012 U.S. Dist. LEXIS 142483 (D. Nev. July 24, 2012).*

The inventory of defendant’s motorcycle was valid and followed department policy. United States v. Abram, 2012 U.S. Dist. LEXIS 142479 (W.D. Mo. March 21, 2012).*

Permalink 08:00:45 am, by fourth, 503 words, 448 views   English (US)
Categories: General

CA11 follows all other circuits: Brief questioning unrelated to the stop not unreasonable; questioning not a search

Brief questioning unrelated to the reason for the stop did not themselves constitute a search or offend Terry. United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012):

So how do cases like Mena and Johnson affect, if at all, the "reasonably related in scope" prong of Terry? This is a matter of first impression for us, but a number of our sister circuits have directly confronted the question, and they have all answered it the same way. See United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011) ("Both Mena and Johnson make clear that unrelated questioning during an investigative stop ... does not run afoul of the scope component of Terry's second prong."); United States v. Everett, 601 F.3d 484, 494 n.10 (6th Cir. 2010) ("[Mena] and Johnson ... stand for the proposition that mere questioning—on any subject—cannot violate the scope prong of Terry[,]" and "[t]herefore, where Terry's duration prong is not at issue ... the subject of the questioning" is irrelevant); United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007) (Mena overruled cases holding that unrelated questions during a Terry stop must be supported by independent reasonable suspicion); United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir. 2006) (Mena "limited" the "reasonably related in scope" prong of Terry so that, as long as the unrelated questioning does not extend the length of the detention, "there is no Fourth Amendment issue with respect to the content of the questions"). See also United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (en banc) ("questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable or require suppression of evidence found as a result of the answers"). We concur with the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, and hold—consistent with Mena and Johnson—that unrelated questions posed during a valid Terry stop do not create a Fourth Amendment problem unless they "measurably extend the duration of the stop." Johnson, 555 U.S. at 333. This is because such questions, absent a prolonged detention, do not constitute a "discrete Fourth Amendment event." Mena, 544 U.S. at 101.

. . .

To the extent that it believed that Officer Edwards' questions constituted a search under the Fourth Amendment, the district court was mistaken. Whatever else they might be, questions posed by a police officer to a suspect about what he has in his pocket and whether he has been to prison are not, in the Fourth Amendment sense, a search. "In context, these sorts of questions are not the verbal equivalent of reaching into a suspect's pockets to remove the contents, or the same as ordering a suspect to 'empty his pockets' in the midst of a protective frisk." United States v. Street, 614 F.3d 228, 234 (6th Cir. 2010) (internal citations omitted). See also Childs, 277 F.3d at 954 ("Nor do the questions forcibly invade any privacy interest or extract information without the suspect's consent."). "Sometimes a question is just a question—and an eminently reasonable question at that. That is all that happened here." Street, 614 F.3d at 234.

Permalink 07:49:42 am, by fourth, 125 words, 445 views   English (US)
Categories: General

CA11: Alleged IAC for not putting defendant on to deny consent irrelevant where there was PC

2255 petitioner’s IAC claim that his counsel was ineffective for not putting him on the stand to deny that he consented was not IAC because it had no effect on the outcome–the officer had probable cause to stop and search, and consent was irrelevant. Lewis v. United States, 491 Fed. Appx. 84 (11th Cir. 2012).*

Arrest warrant from another state justified defendant’s arrest after a traffic stop. United States v. Barbary, 2012 U.S. Dist. LEXIS 141833 (S.D. Fla. September 6, 2012),* adopted 2012 U.S. Dist. LEXIS 145758 (S.D. Fla. October 10, 2012).*

There was probable cause for the search of defendant’s car. Moreover, because both occupants were being arrested, it was appropriate to tow and inventory it. United States v. Jones, 2012 U.S. Dist. LEXIS 142143 (S.D. Ind. October 2, 2012).*


Permalink 09:18:04 pm, by fourth, 157 words, 376 views   English (US)
Categories: General

NYTimes: "Judge Rules That Mass Arrests at a 2004 Protest Were Illegal"

NYTimes: Judge Rules That Mass Arrests at a 2004 Protest Were Illegal by Ruth Fremson:

A federal judge has ruled that the New York Police Department illegally arrested large numbers of demonstrators at a protest in Lower Manhattan during the 2004 Republican National Convention. But the judge upheld aspects of how the city had handled the protesters’ arrests.

The judge, Richard J. Sullivan of Federal District Court, said that the city had lacked the required probable cause because the police were unaware of whether each individual protester had broken the law.

“An individual’s participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual’s own illegal conduct,” the judge wrote in a 32-page opinion. “But, no matter the circumstances,” he added, “an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association.”

Permalink 08:36:04 pm, by fourth, 487 words, 481 views   English (US)
Categories: General

Army CCA: Roommate's search of computer was accidental and private search, but later warrantless search was invalid; nevertheless, inevitable discovery lets it in

Defendant was serving in the Army in Iraq during Operation Iraqi Freedom and was stationed at a forward base. He lived in a rucksack with a roommate. His roommate got on his computer to look for a movie to download and watch, but he found child pornography telling their superiors what he found. That was a private search, but a second “unauthorized” search wasn’t and was unreasonable. Nevertheless, the inevitable discovery doctrine saves the search. United States v. Spiess, 71 M.J. 636 (Army Ct. Crim. App. 2012):

=> Read more!

Permalink 05:25:55 pm, by fourth, 158 words, 551 views   English (US)
Categories: General "In Brief: GPS, Cell Records and Warrants, Oh My!" In Brief: GPS, Cell Records and Warrants, Oh My! by Margaret Rock:

Can your phone's location data be used as evidence in court trials? The Supreme Court and the Obama administration are wrangling over the issue, and the fallout will shape the legal landscape for years to come.

When the Supreme Court made the highly-anticipated ruling earlier this year that law enforcement's placement of a GPS tracking device on a suspect's vehicle violated the Fourth Amendment's protection against unreasonable search and seizure, nobody, much less the average person, was sure of the far-reaching ramifications.

During the case's subsequent re-trial briefings, both the federal government and the defense team brought issues to light, forcing the courts and the wireless industry to re-examine what information and records -- like GPS data and cell phone records -- constitute a "search," and establish when law enforcement needs a warrant to access the data as the courts navigate the digital frontier.

Permalink 08:12:43 am, by fourth, 202 words, 612 views   English (US)
Categories: General

New law review article: "The Curious History of Fourth Amendment Searches"

Orin S. Kerr, The Curious History of Fourth Amendment Searches, Supreme Court Review, Forthcoming. Abstract:

In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court restored the trespass test of Fourth Amendment law: Any government conduct that is a trespass onto persons, houses, papers, or effects is a Fourth Amendment 'search.' According to the Court, the trespass test had controlled the search inquiry before the reasonable expectation of privacy test was introduced in Katz v. United States, 389 U.S. 347 (1967). Although Katz had rejected the trespass test, Jones restored it. This essay examines the history of the Fourth Amendment search doctrine and reaches the surprising conclusion that the trespass test never existed. Pre-Katz decisions did not adopt a trespass test, and instead grappled with many of the same questions that the Court has focused on when applying the reasonable expectation of privacy test. The idea that trespass controlled before Katz turns out to be a myth of the Katz Court: Katz mischaracterized Fourth Amendment history to justify a break from prior precedent. Jones thus restores a test that never actually existed. The essay concludes by considering both the doctrinal and theoretical implications of the surprising history of the Fourth Amendment search doctrine.


Permalink 11:57:11 am, by fourth, 217 words, 429 views   English (US)
Categories: General

New law review article: Colloquy Essays, "The Bin Laden Exception"

Erik Luna, Colloquy Essays, The Bin Laden Exception:

ABSTRACT—Osama bin Laden’s demise provides an opportune moment to reevaluate the extraordinary measures taken by the U.S. government in the “war on terror,” with any reassessment incorporating the threat posed by al Qaeda and other terrorist organizations. Some modest analysis suggests that terrorism remains a miniscule risk for the average American, and it hardly poses an existential threat to the United States. Nonetheless, terrorism related fears have distorted the people’s risk perception and facilitated dubious public policies, exemplified here by a series of programs implemented by the Transportation Security Administration (TSA). Among other things, this agency has adopted costly technology and intrusive pat downs to screen airline passengers with little evidence that the terrorist risk has been meaningfully and efficiently reduced as a result. The TSA regime also clashes with core constitutional values and decent understandings of the Fourth Amendment. To date, however, the courts have been deferential to the government. Although the decisions rehearse established exceptions, they are indicative of an entirely new constitutional exception grounded in irrational fears of terrorism.

An earlier version of this Essay was published in the Northwestern Uniersity Law Review Colloquy on February 21, 2012, 106 NW. U. L. REV. COLLOQUY 230 (2012),

Permalink 07:37:30 am, by fourth, 259 words, 472 views   English (US)
Categories: General

IL: Piece of plastic bag protruding from pocket is RS, not PC; search not justified without more

Defendant’s car was stopped for littering from the passenger side, and the passenger made a “snide” comment to the officer denying littering. The officer ordered him out of the car, and then could see a bit of a plastic bag protruding from his front pocket. That was reasonable suspicion and not probable cause. People v. Garcia, 2012 IL App (1st) 102940, 978 N.E.2d 366 (September 28, 2012):

[**P13] Nevertheless, even if Officer Romano had observed a clear knotted plastic baggie protruding from defendant's front pants pocket, this observation may have created a reasonable suspicion justifying further investigation, but such an observation standing alone generally does not rise to the level of probable cause. See, e.g., Cauls v. Commonwealth, 683 S.E.2d 847, 852 (Va. Ct. App. 2009) (deputy's observation of knotted and frayed end of plastic baggie protruding from defendant's pants pocket, standing alone, not sufficient to provide probable cause under the plain-view exception because the baggie's incriminating character was not immediately apparent).

[**P14] Suspicion is not a substitute for probable cause. See Hunter v. Bryant, 502 U.S. 224, 232 (1991) (Stevens, J., dissenting); see also People v. Symmonds, 18 Ill. App. 3d 587, 595 (1974) ("[t]he Illinois Supreme Court has said that the subjective belief of a police officer that an envelope contained in the pocket of a traffic offender contained gambling devices was an insufficient basis for a search of the envelope where it was not predicated upon other objective facts, such as something about the envelope itself or its visible contents which gave the police an indication of their illicit nature") (citing People v. Tate, 38 Ill. 2d 184, 187 (1967))).

Permalink 07:28:25 am, by fourth, 380 words, 451 views   English (US)
Categories: General

CA6: Officer's trial contradiction of SW affidavit and suppression testimony was Brady and Franks information

Where the officer at trial contradicted the affidavit for search warrant and suppression hearing testimony, and the prosecutor knew it was going to happen shortly after the jury was sworn, there was [arguably] a Brady violation, and defense counsel could have immediately moved for a continuance to develop the issue and potentially move for a mistrial because of Franks. (On this record, however, both the Brady and Franks issue fail on appeal because they are fully developed. At trial, the defense got full cross-examination of the contradictions.) United States v. Wilson, 501 Fed. Appx. 416 (6th Cir. 2012):

Because the government learned during trial that Officer Petrich's testimony would not be consistent with the search warrant affidavit he signed under oath or with his report, the government violated Rule 16(c) by failing to disclose this development to the defense immediately. See United States v. Hardy, 586 F.3d 1040, 1043 (6th Cir. 2009). Two of the Zuern factors favor Wilson's motion for a mistrial because the government solicited Officer Petrich's trial testimony and the government's line of questioning was not reasonable where the defense was not given previous notification of the changed testimony. The remaining three factors, however, favor the government. Wilson did not contemporaneously object or seek other relief, he did not prove that the government acted in bad faith, and the details concerning Wilson's walk with the informant was only a small part of the trial evidence presented against Wilson.

Defense counsel did not ask to approach the bench when the changed testimony first came to light. Had counsel objected and asked for a sidebar, the district court might have granted Wilson a continuance to prepare to meet the changed testimony, or the court might have interrupted the trial to allow Wilson an opportunity to make a motion to suppress and challenge the search warrant and affidavit under Franks v. Delaware, 438 U.S. 154 (1978). See Fed. R. Crim. P. 16(d). If the district court had found a violation under Rule 16(c), Brady, or Giglio, the court might have excluded the evidence seized from 613 Thomson Apartment 2 as a sanction for the violation. But defense counsel did not object, ask for a continuance or sanctions, or request a Franks hearing.

Even if defense counsel had asked for a Franks hearing during trial, however, Wilson would not have prevailed. ...

Permalink 12:13:16 am, by fourth, 155 words, 359 views   English (US)
Categories: General

Letters To My Country: "The White Fourth Amendment"

Letters To My Country: The White Fourth Amendment:

In 2010, Paul Butler published a law review article entitled The White Fourth Amendment, (citation is [43 Tex. Tech. L. Rev 245 [not online for free]], for those of you with access to Westlaw or Lexis). In the article, Butler explains how legal rules established by the Supreme Court over the past fifty years have created a substantive body of law for police conduct that leads inextricably to racially disparate policing. What follows is an excerpt from the article in which Butler describes the facts from a case called Immigration & Naturalization Service v. Delgado, in which mostly Mexican factory workers were searched based on a hunch by INS agents that the factory was populated by illegal immigrants. What occurred in that factory provides an excellent case study of how exactly a “White” Fourth Amendment works in practice: ...

( (sorry, I can't embed the link)

Permalink 12:06:12 am, by fourth, 159 words, 305 views   English (US)
Categories: General

S.D.Tex.: No standing in search of other car driving in tandem

Defendant lacked standing to challenge the search of a car driving in tandem with him. The stop was not overlong. The government conceded that turning on the cell phone was excessive and agreed not to use the contents. United States v. Robles, 2012 U.S. Dist. LEXIS 140381 (S.D. Tex. September 28, 2012).*

A call from a mail carrier that there was a suspicious car in the area of recent burglaries did not provide reasonable suspicion for a stop of a car the day after the last burglaries. The car was also there the day before. State v. Wolf, 317 Ga. App. 706, 732 S.E.2d 782 (2012).*

Defendant was validly stopped for walking in the center of an alley because it technically violated a city ordinance. Her consent being under duress, however, was validly raised as a target of regular stops, and the case is remanded to the trial court for further findings on that. State v. Limoli, 2012 Ohio 4502, 2012 Ohio App. LEXIS 3960 (10th Dist. September 28, 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

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

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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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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