The Supreme Court granted cert in Maryland v. King today. Chief Justice Roberts had previously granted Maryland a stay pending decision on cert.

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

There is no time limit for motions to suppress in a forfeiture case under the forfeiture rules, so they must be governed by local rule. Here, the motion should have been filed far earlier after discovery started than it did, and there is no excuse not to because the essential facts were known. United States v. $33,330.00 in United States Currency & Ten Pieces of Jewelry Valued at $27,750.00, 2012 U.S. Dist. LEXIS 159081 (N.D. Ga. September 4, 2012)*:

Rule G(8) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions provides, in pertinent part, the following:

Motion to Suppress Use of the Property as Evidence. If the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeiture of the property based on independently derived evidence.

Rule G(8)(a). As such, a motion to suppress is a specific motion allowed in civil forfeiture matters.

. . .

Assuming, without accepting, that practical considerations would have made it difficult for Claimant to depose the law enforcement officers he had identified at the beginning of the discovery period, there are still other actions Claimant could have taken to preserve the Fourth Amendment issue for review by the Court. As is often done in criminal proceedings, Claimant could have filed in a timely manner a preliminary motion to suppress and sought leave to perfect the motion upon Claimant's receipt of all of the evidence supporting the motion. At the very least, Claimant could have stated in the Joint Preliminary Report that he intended to file a motion to suppress after conducting sufficient discovery and could have sought permission from the Court to do the same. Claimant took none of these actions. Instead, Claimant agreed to the deadlines adopted in the Court 's Scheduling Order and then made no mention of the Fourth Amendment issue until he filed his Motion to Suppress on November 2, 2009.

In addition to neglecting the deadline for filing the Motion to Suppress, Claimant still did not act diligently in raising the Fourth Amendment issue once he learned the information that he maintains forms the basis for the Motion to Suppress. ...

Defendant was on a Greyhound bus stopped at the permanent checkpoint south of Falfurrias, Texas, and she was suspected of having on a “body suit” carrying drugs. However, she was wearing Mandenform body shaping clothing. The stop became excessive and without reasonable suspicion. United States v. Diaz, 2012 U.S. Dist. LEXIS 159415 (S.D. Tex. November 7, 2012)*:

At the hearing on the motion to suppress, testimony and exhibits demonstrated that the beige piece of clothing that Defendant was wearing was not in fact a "body suit." What Agent Cavazos saw was actually one of two articles of clothing, each with brassiere-like straps attached to material covering the torso area. According to testimony, these two camisoles, one with an attached brief and built-in brassiere, are commonly used by women as body shapers. Evidence also showed that these common articles of clothes were made by Maidenform, a popular manufacturer of women's underwear. These styles of undergarment can be purchased at major retail stores, such as JCPenny and Walmart, and are advertised online.

. . .

Agent Cavazos relied heavily on Defendant's undergarment as an indicator that Defendant was a body carrier. Agent Cavazos, however, testified that only a small and commonly exposed portion of this undergarment was visible at the time of the immigration inspection. In fact, he was only able to see a strip of a beige article of clothing on Defendant's left shoulder that he believed to be made of spandex. Based on this evidence, the undergarment that Agent Cavazos saw peeking out from under Defendant's blouse could have been any type of women's undergarment, ranging from a brassiere to a full body suit. The commonality of such articles of clothing does not lend itself to creating individualized suspicion of wrongdoing merely by its use. And, though drugs may be stashed inside women's underwear, if the mere use of underwear was used to justify search or seizure of an individual, agents may have free rein over half the population passing through a checkpoint. See Portillo-Aguirre, 311 F.3d at 657 ("In short, neither the bag nor its location suggested that criminal activity was afoot. If such common circumstances qualified as reasonable suspicion, then most interstate travelers would be subject to prolonged detention, for virtually any item of luggage, from a handbag to a suitcase, is capable of housing illegal narcotics."). This undergarment, even when viewed with Defendant's northward travel as a single, heavy-set female, does not give rise to reasonable suspicion. Defendant was not nervous and Agent Cavazos did not articulate any other suspicious facts that may be used to build sufficient justification.