The Nation: Checking Big Brother by David Cole:

What if the government was tapping your phone unconstitutionally, and there was nothing you could do about it? That’s just life in the United States of America, at least according to the Justice Department. On Monday, October 29, Solicitor General Donald Verrilli Jr. argued in the Supreme Court that, for all practical purposes, the most expansive authority Congress has ever given the government to intercept Americans’ international phone calls and e-mails could not be challenged in court, even by the very people most likely to be harmed by it.

Defendant was arrested in his own house for aggravated DWI on a warrantless entry. Defendant made a prima facie case of IAC getting a hearing on defense counsel’s failure to move to suppress. State v. Crocco, 2013 NMCA 033, 296 P.3d 1224 (2012), Certiorari Granted, March 1, 2013, No. 33,938*:

[*1] Following a warrantless police entry into a private residence, Defendant Gregg Crocco was arrested and charged with aggravated driving while intoxicated, contrary to NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). His trial counsel did not move to suppress evidence that resulted from the warrantless entry. Defendant was convicted and he appeals, arguing, among other things, that the police made an unconstitutional warrantless entry into the residence and that his counsel was ineffective for failing to move to suppress the evidence obtained as a result. We hold that Defendant has made a prima facie showing of ineffective assistance of counsel based on his counsel's failure to move to suppress evidence gained from the warrantless entry. We reverse Defendant's conviction and remand for a new trial.

The officer allegedly extended the stop and defense counsel at trial didn’t move to suppress. Because the facts aren’t clear that the motion probably would have been granted, defense counsel wasn’t ineffective. State v. Walker, 824 N.W.2d 561 (Iowa App. 2012).*

Knock-and-talk entries could still lead to an entry on exigent circumstances. The failure of the defense to mention exigency in the motions below means that the certified question for appeal might not be dispositive of the case. Therefore, appeal dismissed under state law. State v. Ward, 2012 Tenn. Crim. App. LEXIS 907 (November 2, 2012).*

The same for State v. Finney, 2012 Tenn. Crim. App. LEXIS 908 (October 29, 2012):

In the instant appeal, the defendant's certified question is overbroad and non-specific. The defendant challenges the validity of an alleged search and an ensuing seizure but does not state the reasons she relied upon in the trial court. From our review of the defendant's brief and relevant transcripts we discover that the defendant argued in the trial court that: (1) the State did not have the authority to search the defendant's vehicle simply because it had entered State property, and (2) the consent given by the defendant to the search of her purse was involuntary because no reasonable person [*9] would have felt free to leave or to decline such consent after having been ordered to exit the vehicle. These claims are not frivolous on their face.

However, the certified question reserved by the defendant in the trial court, as phrased, does not include the "reasons relied upon by defendant in the trial court at the suppression hearing" as required by Preston. ...

The authorized driver of a rental car has standing. The stop was prolonged unreasonably because the officer for some reason refused to listen to the occupants that he was looking at the wrong rental agreement and questioning them about it. The consent thereafter was not voluntary. United States v. Ma, 2012 U.S. Dist. LEXIS 157247 (D. Mont. November 1, 2012).*

Plaintiff’s suit against the government is barred by his guilty plea which admits probable cause. Rankin v. United States, 2012 U.S. Dist. LEXIS 156034 (S.D. Miss. October 31, 2012).*

Plaintiff was on probation and had his person and car searched when he made a report. His § 1983 case was subject to Delaware’s two year SOL, and he filed outside the time. He knew that he was subjected to the search and what was taken, so it accrued then. Woodson v. Payton, 2012 U.S. App. LEXIS 22579 (3d Cir. November 2, 2012).*

Defendant was excluded from the house searched by an ex parte order of the domestic relations court and the locks had been changed. The fact he had a deed giving him an interest in the property was not determinative, and he had no standing to challenge the search of the house. State v. Cannon, 2012 Tenn. Crim. App. LEXIS 900 (October 30, 2012)

The defendant's first challenge to the trial court's conclusion that she had no standing to challenge the searches is that the pending divorce action between the parties, and the accompanying ex parte order granting the victim exclusive possession of their former marital residence, abated with his death. However, even assuming the defendant is correct in this assertion, the operation of civil law is not dispositive of the Fourth Amendment inquiry. As our Supreme Court has explained, "[i]n defining the scope of [Fourth Amendment protections], we adhere to the view expressed in [prior] cases that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas, 439 U.S. at 143. Rather, "'(n)o one circumstance is talismanic to the Rakas inquiry.'" Turnbill, 640 S.W.2d at 46 (quoting United States v. Haydel, 649 F.2d 1152, 1154-1155 (5th Cir. 1981)).

The defendant also directs our attention to the fact that the victim had surrendered his interest in the marital home to the defendant via a quit claim deed in 2005, and consequently, the defendant was the sole title holder of record of the home at the time of the searches. The defendant further directs our attention to evidence in the record that the defendant and the victim were engaged in an "on-again, off-again" relationship during the months preceding the murder, that they were attempting to reconcile at the time of the victim's death, and that the defendant stored some of her clothing at the house. While these facts standing alone might tend to favor the defendant, they are insufficient to establish a reasonable expectation of privacy in the residence when viewed in the context of the record as a whole. At most, they establish that the defendant had an ownership interest in the property searched and a subjective expectation of privacy. However, mere title "does not establish a privacy interest in property, State v. Smith, 656 S.W.2d 882, 887 (Tenn. Crim. App. 1983), and these two factors must be balanced against the remaining Turnbull and other relevant factors.

A person who does not live at a residence and who has no key to a residence usually has no reasonable expectation of privacy in that residence. See State v. Transou, 928 S.W.2d 949, 958 (Tenn. Crim. App. 1996). It is undisputed that the defendant lived in a separate location—an apartment located approximately one-half of a mile from the residence at issue. Moreover, the defendant has failed to direct our attention to any clear evidence in the record that supports her claim that she still had a key to the residence that functioned after (as record testimony reflects) the victim had the locks changed following her departure on May 5, 2008.

Jonathan Turley: The Watering Down of the Fourth Amendment by Lawrence E. Rafferty (guest blogger):

We all know or should know the Fourth Amendment and how it protects all citizens from an illegal search and seizure of our property and person. “‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’" Cornell Law

Over the years, this valuable right has been watered down. Recently, the Roberts Court heard arguments in a case that did not get much media attention. That case involved a man who was arrested and detained after a traffic stop just because he had been in an apartment that the police had just exercised a search warrant. The name of the case is Bailey v. United States and oral arguments in front of the Supreme Court were heard on November 1st, 2012. Bailey v. United States. The narrow issue that the Supreme Court is deciding is whether an individual can be detained by the police merely because he recently left a residence before the police executed a search warrant at that location. Sounds like a no brainer, doesn’t it?

Police were investigating regular interstate shipment of drugs, and defendant was suspected of picking up one of the packages. Defendant fled from a traffic stop, and the officer was able to confront him with a Taser, ordering him to the ground. That was not unreasonable. United States v. Clement, 2012 U.S. Dist. LEXIS 157814 (W.D. La. October 11, 2012)*:

Using some force on a subject, pointing a weapon at a suspect and handcuffing a suspect, whether singly or in combination, does not automatically convert an investigatory detention into an arrest requiring probable cause. Campbell, 178 F.3d at 349 citing Sanders, 994 F.2d at 206. This is particularly the case when officers are investigating drug transactions where safety may be a concern, as drugs and firearms are commonly found in connection with each other. See United States v. Majors, 328 F.3d 791, 795 (5th Cir. 2003) ("[F]irearms are tools of the trade for those engaged in illegal drug activities." (internal citations and quotation marks omitted); United States v. Coleman, 969 F.2d 126, 132 fn. 20 (5th Cir. 1992).

The fact the U.S. Marshals transferred plaintiff from one jail to another in pretrial detention did not state a Fourth Amendment claim for an unreasonable seizure without alleging a lot more not even present. Vega v. United States, 2012 U.S. Dist. LEXIS 157102 (W.D. Wash. November 1, 2012).*

Defense counsel was not ineffective for not moving to suppress the stop in this case because there was at least a technical violation of the traffic code, and that justified the stop. “In light of the holding of Mosley, the stop was lawful because a traffic infraction can be used as a pretext for investigation into the drug activity. Mosley, 454 F.3d at 252. ... ‘[C]ounsel cannot be deemed ineffective for failing to raise a meritless claim.’ ...” Ferguson v. United States, 2012 U.S. Dist. LEXIS 157341 (W.D. Pa. November 2, 2012).*

That defendant had pictures of a naked child not his own was PC for child pornography at least under Pennslyvania law. The fact a parent might have an innocent picture of his or her own child is different. United States v. Kofalt, 2012 U.S. Dist. LEXIS 157349 (W.D. Pa. November 2, 2012).*