Archives for: December 2012

12/31/12

Permalink 10:36:33 am, by fourth, 237 words, 425 views   English (US)
Categories: General

Notes on 2012

U.S. District Courts have about 32,000 more opinions on Lexis in 2012 than 2011, and they doubled since 2007. The rough numbers (because I can only estimate):

2012 184,000
2011 142,000
2009 122,000
2008 106,000
2007 95,000

An increasing number are search and seizure cases, so lawyers have not stopped litigating the issues.

I don't know that the U.S. District Courts are putting out more written opinions, but I do know that Lexis has a lot more, including USMJ R&R's that maybe used to be overlooked. Still, I'm avoiding civil cases because of time constraints. A lot of Fourth Amendment law is made in civil cases, so, if you know of one worth mentioning here, let me know.

Number of posts here passed the 10,000 mark long ago. There were 1,669 in 2012. This site has been on two platforms. The first is gone, and the cases worth citing integrated into the book supplement. Everything without an * following the citation through summer 2012 is in the supplement. There have been 8100+ postings on this platform, so probably 10,500 total? This blog is ten years old in 7½ weeks.

Coming: On the 10th Anniversary I hope to remember and post my "8 rules" of Fourth Amendment reality. So much has changed since I became a lawyer. Some rules from 40 years ago are on their heads, but the Fourth Amendment cases are becoming more predictable for the police with "bright line rules" and courts way more often than not defaulting to the police testimony as the truth.

Permalink 12:20:44 am, by fourth, 439 words, 1601 views   English (US)
Categories: General

W.D.Pa.: Reasonable suspicion is the standard for a vehicle stop, not probable cause

Reasonable suspicion is the standard for a vehicle stop, not probable cause. United States v. Gooch, 915 F. Supp. 2d 690 n. 7 (W.D. Pa. December 28, 2012):

Defendant Gooch argues that the appropriate standard for assessing the legality of a traffic stop based on an observed motor vehicle code violation is probable cause. (See Doc. No. 176 at 2-3). Indeed, in Whren v. United States, 517 U.S. 806, 810 (1996), the Supreme Court stated that "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." As explained in United States v. Delfin-Colina, 464 F.3d 392, 396-97 (3rd Cir. 2006), however, the phrase "probable cause" was used in response to the situation before the Supreme Court and did not alter "the longstanding reasonable suspicion standard recognized in the traffic-stop setting." The Third Circuit subsequently held that "the Terry reasonable suspicion standard applies to routine traffic stops." Id. Brendlin v. California, 551 U.S. 249 (2007), which Defendant Gooch cites in support of his argument that the probable cause standard applies, does not alter this standard. In Brendlin, the Court held that when a police officer makes a traffic stop, a passenger is seized within the meaning of the Fourth Amendment and may challenge the constitutionality of the stop. Id. at 251. In explaining its decision, the Court, citing Whren, compared precedent stating that at least articulable and reasonable suspicion is required to support random, investigative traffic stops and that an automobile stop is reasonable where the police have probable cause to believe that a traffic violation has occurred. Id. at 263 n.7. The Court did not, however, draw a distinction between the two types of stops, establish that different standards apply for different types of stops, or suggest that the probable cause language quoted from Whren represented the minimum standard that must be met to render lawful a stop based on a belief that a traffic violation has occurred. See id. Additionally, the Third Circuit has continued to apply the reasonable suspicion standard to stops premised on motor vehicle code violations since Brendlin. See, e.g., United States v. Comegys, No. 11-3630, 2012 U.S. App. LEXIS 23364, at *8 (3d Cir. Nov. 14, 2012); United States v. Lewis, 672 F.3d 232, 237 (3rd Cir. 2012); Johnson, 452 Fed. Appx. at 225; United States v. Johnson, 434 Fed. Appx. 159, 162 (3rd Cir. 2011). Nonetheless, for the same reasons that support the Court's conclusion that Corporal Johnson's decision to stop Defendants' vehicle was supported by reasonable suspicion, the Court also finds that Corporal Johnson's decision to stop Defendants' vehicle was supported by probable cause. Therefore, the traffic stop here was reasonable and did not violate the Fourth Amendment even under the more demanding probable cause standard.

Permalink 12:14:56 am, by fourth, 166 words, 487 views   English (US)
Categories: General

NY2: Searching a purse during a protective sweep is excessive

Defendant’s motion to suppress the gun found in his girlfriend’s purse was granted because it was found during a protective sweep, and the state appealed. Defendant had standing to challenge the search of the apartment. “[T]he order is affirmed insofar as appealed from,” suggesting what? That the defendant didn’t have standing in her purse even though he had standing in the apartment? Is this like Brendlin and the stop v. search of a car? If he had standing as to the whole apartment, is the entire excessive protective sweep invalid. What? People v Isaacs, 2012 NY Slip Op 9086, 101 A.D.3d 1152, 956 N.Y.S.2d 510 (2d Dept. 2012).*

Reasonable suspicion existed for defendant’s stop based on a 911 call that there was a man in black on a street with a gun. Officers came to the street and saw one man in black, and they saw a bulge looking like a gun. That was reasonable suspicion. United States v. Johnson, 509 Fed. Appx. 487 (6th Cir. 2012).*

Permalink 12:01:43 am, by fourth, 294 words, 445 views   English (US)
Categories: General

Two Ohio cases on the general motion to suppress: One bad, one good

Defendant’s claim that his teenage son was not able to legitimately consent to a police entry into the house was not in the motion to suppress nor specifically raised at the hearing, so it is waived. State v. Preston, 2012 Ohio 6176, 2012 Ohio App. LEXIS 5323 (12th Dist. December 28, 2012).

While the “motion to suppress was the sort of ‘shotgun,’ unfocused motion that courts disfavor,” the state was still on notice as to the issue. Defendant prevailed on the motion to suppress, and it’s affirmed. “[T]his judgment entry is not an opinion of the court.” State v. Gottesman, 2012 Ohio App. LEXIS 5325 (1st Dist. December 26, 2012):

While we agree that Gottesman's motion to suppress was the sort of "shotgun," unfocused motion that courts disfavor, we need not reach the issue of whether it was specific enough. The record indicates that the state was aware that Gottesman was raising the issue of probable cause to arrest. Further, without the testimony of the arresting officer, the state could not prove that the officer had had probable cause to arrest Gottesman, and numerous other issues related to the search and seizure. The trial court had little choice but to grant the motion to suppress.

The state further argues that Gottesman failed to meet his initial burden of showing that he was arrested without a warrant. See Xenia at paragraphs one and two of the syllabus. But this court has stated that while Xenia places the burden on the defendant to show the absence of a warrant, "this requirement should not be given a hypertechnical construction." State v. Petrosky, 1st Dist. Nos. C-900264 and C-900265, 1991 Ohio App. LEXIS 1257, *5 (Mar. 27, 1991). The record as a whole shows that the arresting officer did not have a warrant to arrest Gottesman. See id. at *5-6.

12/30/12

Permalink 12:11:17 am, by fourth, 387 words, 501 views   English (US)
Categories: General

N.D.Ill.: Walking away can still be interpreted as flight and, thus, furtiveness

Defendant’s claim he didn’t flee–he merely walked away to a porch and sat down. That was flight enough for reasonable suspicion. United States v. Colbert, 2012 U.S. Dist. LEXIS 182322 (N.D. Ill. December 27, 2012):

Defendant nevertheless argues that the officers lacked reasonable suspicion because Defendant did not "flee" from the police but simply ran onto a porch and sat down. (Def.'s Mot. Quash & Suppress 6.) But Defendant began running away from the officers when the man on the corner appeared to have alerted Defendant of their presence. Running upon noticing the police is highly evasive behavior. See Wardlow, 528 U.S. 119 at 124 ("Headlong flight — wherever it occurs — is the consummate act of evasion"). Furthermore, courts regularly find evasive behavior short of the type at issue here sufficient to warrant a Terry stop. See, e.g., Oglesby, 597 F.3d at 894 (finding defendant's actions in slowly taking a few steps away from a group while looking from side to side and angling his body away from the police officers were pertinent factors in determining reasonable suspicion); U.S. v. Harris, 188 Fed. Appx. 498, 501-02 (7th Cir. 2006) ("We have held that walking away quickly in the face of commands by police officers to stop is evasive behavior that contributes to the reasonableness of an officer's suspicion."); U.S. v. Baskin, 401 F.3d 788, 793 (7th Cir. 2005) (holding that the officer had reasonable suspicion to conduct a Terry stop and concluding that "[i]t was also reasonable for [the officer] to interpret the [defendant's] vehicle's sudden acceleration as evidence of unprovoked flight"); U.S. v. Mays, 643 F.3d 537 (6th Cir. 2011) ("flight is not the only type of 'nervous evasive behavior.' Furtive movements made in response to a police presence may also properly contribute to an officer's suspicions.") (internal citations omitted); U.S. v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004) (noting that courts can consider "evasive conduct that falls short of headlong flight" and holding that defendant's "evasive conduct" included "immediately walk[ing] away as the officers approached, and although [defendant] did not run, he walked away at a quick pace, ignoring the officer's commands to stop.") Thus, Defendant's actions, coupled with the circumstances already described, provided the officers with reasonable suspicion to stop and investigate him pursuant to Terry. See Wardlow, 528 U.S. at 124-25; U.S. v. Lenoir, 318 F.3d at 729.

Permalink 12:02:35 am, by fourth, 246 words, 390 views   English (US)
Categories: General

OH9: "I'm gonna check the car real quick and get you on your way, alright?" is not a search by consent

"I'm gonna check the car real quick and get you on your way, alright?" is not a search by consent. State v. Ross, 2012 Ohio 6111, 2012 Ohio App. LEXIS 5274 (9th Dist. December 26, 2012):

[*P19] As soon as Officer Perez completed his pat down search, he indicated that he wanted to search Ross' car. Specifically, he stated, "I'm gonna check the car real quick and get you on your way, alright?" Ross repeatedly stated during the exchange that he did not understand why it was necessary for Officer Perez to search the car. Each time, Officer Perez indicated that the search was something that needed to be done and simply ended his statements with "alright?" Officer Perez also told Ross: (1) "well, it's not even really your car," (2) there was concern due to the fact that Ross had just left a high crime area, and (3) after Ross had just left a motel, "people leaving the motel, this is kind of what we do." When Ross finally assented to the search, he stated in the same sentence "but there's no need for this." Officer Perez never clarified Ross' statement. Instead, he stated that the search would only take a few minutes and proceeded to search the car.

Consent was found purely on a question of credibility of the witnesses. Since defendant admitting lying twice to the officer about his identity, it wasn’t error for the trial court to believe the officer. State v. Jones, 2012 Ohio 6150, 2012 Ohio App. LEXIS 5313 (9th Dist. December 28, 2012).*

12/29/12

Permalink 10:27:39 am, by fourth, 229 words, 452 views   English (US)
Categories: General

NY4: Police did not have to question live-in girlfriend's apparent authority where they confirmed all they needed to know

Police responded to a domestic battery call, and defendant’s live-in girlfriend was outside but afraid to go in to retrieve her things to get out. She told the police he kept a gun inside. When the police went in with her, they could see in the closet men’s and women’s clothes. Based on the situation presented to them, they had a reasonable belief in her authority and did not have to question her further about it. People v. Smith, 2012 NY Slip Op 927, 2012 N.Y. App. Div. LEXIS 9155 (4th Dept. December 28, 2012):

Thus, "the record establishes that the searching officer[s] relied in good faith on the apparent authority of [the complainant] to consent to the search, and the circumstances reasonably indicated that [she] had the requisite authority to consent to the search" (People v Fontaine, 27 AD3d 1144, 1145, lv denied 6 NY3d 847; see People v Frankline, 87 AD3d 831, 833, lv denied 19 NY3d 973; People v Littleton, 62 AD3d 1267, 1269, lv denied 12 NY3d 926). Contrary to defendant's contention, the searching officers were "not required to make some inquiry into the actual state of authority'" of complainant to consent to a search because they were not "faced with a situation which would cause a reasonable person to question the consenting part[y's] power or control over the premises or property to be inspected'" (Fontaine, 27 AD3d at 1145, quoting Adams, 53 NY2d at 10).

Permalink 09:13:29 am, by fourth, 137 words, 525 views   English (US)
Categories: General

E.D.Ill.: Two questions of third party consent: Actual authority or apparent authority?

The woman who consented here testified that she did not have authority to consent, but was impeached with statements at the time of the search that she lived there and had a key. The court finds that she had actual authority, and, alternatively, apparent authority as far as the officers could ascertain at the time of the search. United States v. Brandon, 2012 U.S. Dist. LEXIS 182091 (E.D. Ill. December 27, 2012).

The officer's failure to tell the judge issuing the search warrant that he had a medical marijuana authorization under Michigan law was not a false statement or omission under Franks because it was still a crime to cultivate marijuana in Michigan (see People v. Brown, No. 303371) and federal law. Probable cause was shown for the search warrant. United States v. Ellis, 910 F. Supp. 2d 1008 (W.D. Mich. 2012).*

Permalink 08:48:02 am, by fourth, 171 words, 425 views   English (US)
Categories: General

CA5: State GJ indictment shows PC for case to go forward precluding false arrest claim

Plaintiff was a police officer for the RTA charged with falsifying reports about an altercation with a passenger. She sued for false arrest as a Fourth Amendment claim, but her indictment by a state grand jury precludes this claim, even when plaintiff alleges malice. Craig v. Dallas Area RTA, 504 Fed. Appx. 328 (5th Cir. 2012)*:

Precedent clearly establishes that, "if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation for false arrest, insulating the initiating party." Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). For our purposes, this means that "even an officer [in Craig's case] who acted with malice in procuring the warrant or the indictment will not be liable if the facts supporting the warrant or indictment are put before an impartial intermediary such as a magistrate or a grand jury." Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988) (internal quotation marks omitted).

Permalink 08:23:53 am, by fourth, 486 words, 430 views   English (US)
Categories: General

SSRN: "Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment"

SSRN: Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment by Ric Simmons IN Harvard Journal of Law and Public Policy, Vol. 36: Abstract:

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance. The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt. Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost. And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative sum game. Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.

The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally. Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.

12/28/12

Permalink 12:25:32 pm, by fourth, 361 words, 776 views   English (US)
Categories: General

Atlantic.com: "This Week's Senate Scandal: Scorn for the 4th Amendment"

Atlantic.com: This Week's Senate Scandal: Scorn for the 4th Amendment by Conor Friedersdor:

I haven't passed the bar, but I know a little bit about the 4th Amendment. Have you read it lately? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," it states in plain English, "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."

That's all of it.

The landline in your house? The government needs a warrant to tap it. The letters in your mailbox? The government needs a warrant to read 'em. It's like the Framers said: probable cause is required.

Yet a text or an email, even one sent from your bed, is treated differently -- it's afforded much less protection from government snoops, even though we're increasingly going all digital in our communication.

Why?

Senator Rand Paul raised that question Thursday on the Senate floor. "We became lazy and haphazard in our vigilance," he told his colleagues during a debate about government surveillance. ....

Salon.com: Senate FISA vote inspiring display of bipartisan commitment to ignoring Fourth Amendment | Fiscal calamity? Who cares! Congress shows that they can still band together and vote for horrible things, by Alex Pareene:

Congressional dysfunction and extremism may yet plunge the nation into an entirely avoidable recession, but at least Americans will likely be able to sleep at night secure in the knowledge that our lawmakers at least sprang into action, at the last possible minute, to preserve the government’s right to constantly spy on everyone without telling anyone about it.

In all likelihood, the Senate will vote today to reauthorize the FISA Amendments Act for a few years, just before it was scheduled to expire. The House reauthorized it all the way back in September, but the world’s most deliberative body likes to take its time (plus Ron Wyden placed a hold on the bill until Senate leaders agreed to at least have a debate on proposed amendments to the Amendments).

Permalink 12:23:02 pm, by fourth, 59 words, 368 views   English (US)
Categories: General

TheHill.com: "Senate approves bill to reauthorize foreign surveillance programs"

TheHill.com: Senate approves bill to reauthorize foreign surveillance programs by Ramsey Cox :

The Senate on Friday approved a bill reauthorizing the Foreign Intelligence Surveillance Act (FISA) in a 73-23 vote.

The bill will extend for five years the ability of U.S. intelligence authorities to conduct surveillance of suspected terrorists overseas without first getting permission from a court.

Permalink 12:19:43 pm, by fourth, 91 words, 390 views   English (US)
Categories: General

Law.com: "Toyota settlement shines light on agency's proposed 'black box' rule"

Law.com: Toyota settlement shines light on agency's proposed 'black box' rule by Jenna Greene:

In the wake of Toyota Motor Corp.'s estimated $1.3 billion settlement involving claims of unintended acceleration, the National Highway Traffic Safety Administration continues to push for a rule that would require manufacturers to install "black boxes" in all new cars to record accident data.

The NHTSA points to its investigation of Toyota claims as one justification for the rule, which has triggered concerns about privacy, ownership of recorder data, and how the data will be used.

Permalink 12:17:40 am, by fourth, 165 words, 461 views   English (US)
Categories: General

IN: Second stop shortly after first was valid because of traffic offense

Defendant was stopped by an officer who was curious because defendant was towing a trailer, not the type normally towed by a large tractor trailer truck. Defendant didn’t have answers about all his travel. An EPIC query showed defendant was once involved in a large cash seizure in Michigan. The officer asked for consent, it was denied, and defendant was allowed to go. The officer radioed to other officers who followed defendant again and stopped him for two traffic offenses. Further reasonable suspicion developed, and a drug dog was called which alerted. Cocaine was found during the search, which was valid. The second stop was justified, and defendant doesn’t contest it. Austin v. State, 980 N.E.2d 429 (Ind. App. 2012).*

Stop based on the fact the high center brake light had one of two bulbs out was not illegal as a matter of law. During the stop, the officer could smell burnt marijuana in the car. Otey v. Commonwealth, 61 Va. App. 346, 735 S.E.2d 255 (2012).*

Permalink 12:11:21 am, by fourth, 506 words, 514 views   English (US)
Categories: General

FL1 disagrees with FL4: Color change of vehicle is not RS

In Florida, there is no way for an innocent owner to report a color change of a vehicle. The fact of a color change is innocent and alone cannot be reasonable suspicion. "We reverse the trial court's denial of appellant's motion to suppress and certify conflict with the Fourth District's opinion Aders v. State, 67 So. 3d 368 (Fla. 4th DCA 2011)." Van Teamer v. State, 108 So. 3d 664 (Fla. 1st DCA 2012):

=> Read more!

Permalink 12:03:31 am, by fourth, 144 words, 448 views   English (US)
Categories: General

IN: DUI supported search incident that produced beer bottles

Search incident of a car in a DUI case was justified by defendant’s furtive gesture as he was stopping, which turned out to be beer bottles. (Decided under Fourth Amendment and state constitution.) Smith v. State, 980 N.E.2d 346 (Ind. App. 2012).

“The Government has proved the taint of the illegal stop in January 2010 had dissipated before the confession in October 2010. While the agents did not apprise the Defendant of her Miranda rights between these events, the illegal stop is both temporally distant and causally distinct from the confession.” United States v. Ramos, 2012 U.S. Dist. LEXIS 181716 (D. Vt. December 26, 2012).*

Jones not retroactive for a 2254 habeas petitioner as a new rule of law, even if Fourth Amendment claims could be considered on habeas. Successor habeas denied. In re Kubacki, 2012 U.S. App. LEXIS 26319 (10th Cir. December 20, 2012). [Not on opinions page of Tenth Circuit's website.]

12/27/12

Permalink 08:16:23 am, by fourth, 132 words, 2253 views   English (US)
Categories: General

Cato.org: "Don’t Renters Have Fourth Amendment Rights?"

Cato.org: Don’t Renters Have Fourth Amendment Rights? by Ilya Shapiro:

A person’s home is his castle and thus affords certain protections and immunities—including the right to exclude unwanted visitors—that apply whether you own or rent. Unfortunately, ordinances authorizing general administrative searches of rental properties have been increasingly adopted by local authorities with little protection for property rights or privacy interests.

These inspections cover the whole of the buildings and all of the activity that occurs within, opening every aspect of people’s lives to the government: political and religious affiliations, intimate relationships, and even all those Justin Bieber posters and Fifty Shades of Gray books you hide when people come over. They take place even if both the landlord and tenant believe them not to be necessary!

Permalink 07:53:07 am, by fourth, 206 words, 411 views   English (US)
Categories: General

Wired.com: "Feds Requiring ‘Black Boxes’ in All Motor Vehicles"

Wired.com: Feds Requiring ‘Black Boxes’ in All Motor Vehicles by David Kravets:

Federal regulators are proposing that new automobiles sold in the United States after September 2014 come equipped with black boxes, so-called “event data recorders” that chronicle everything from how fast a vehicle was traveling, the number of passengers and even a car’s location.

While many automakers have voluntarily installed the devices already, the National Transportation Safety Agency wants to hear your comments by February 11 on its proposal mandating them in all vehicles. Congress has empowered the agency to set motor-vehicle-safety rules.

Clearly, regulators’ intentions are about safety, as the devices would trigger — for about 30 seconds — during so-called “events” such as during sudden breaking, acceleration, swerving or other types of driving that might lead to an accident. The data, which can either be downloaded remotely or by a physical connection, depending upon a vehicle’s model, is to be used by manufacturers and regulators “primarily for the purpose of post-crash assessment of vehicle safety system performance,” according to an announcement in the Federal Register. (.pdf)

But privacy advocates are raising the alarm bells, and want the agency to require data safeguards, including demands that data be anonymized, and to prohibit the marketing of it.

Permalink 07:49:55 am, by fourth, 203 words, 392 views   English (US)
Categories: General

Atlantic.com: "Senate Drops Effort to Prevent Warrantless Email Monitoring"

Atlantic.com: Senate Drops Effort to Prevent Warrantless Email Monitoring by Rebecca J. Rosen:

As the week wound down before the holiday break, the senate sent President Obama a bill that gives sites like Netflix the option of allowing users to automatically share their viewing history with their social networks on Facebook.

This was relatively uncontroversial, making video sites no different from other services (like Spotify, say) that already have this kind of easy sharing. In fact, the prohibition only existed in the first place because Congress singled out video-rental history as particularly private following an incident in 1987 when then-Supreme Court nominee Robert Bork's video-rental history was leaked to the Washington City Paper.

But the bill was only so uncontroversial because the Senate stripped it of a much more significant proposal: amendments offered by Senator Patrick Leahy of Vermont, which would have required a warrant for law-enforcement agents to access the contents or metadata of emails that have been stored remotely for more than 180 days. Current law only requires a warrant for obtaining more recent communications. Once emails are older, government agents can obtain them with mere subpoenas, which require only a demonstration that the information would be useful to an ongoing investigation.

Permalink 12:11:08 am, by fourth, 89 words, 477 views   English (US)
Categories: General

OH2: The SW for cell phone requirement of Ohio's Smith doesn't apply to abandoned ones

While a search warrant is required for a search of a cell phone in Ohio under State v. Smith, 124 Ohio St.3d 163, 2009 Ohio 6426, 920 N.E.2d 949 (2009), a warrant is not required if the cell phone is abandoned. State v. Moten, 2012 Ohio 6046, 2012 Ohio App. LEXIS 5204 (2d Dist. December 21, 2012).

A pre-Gant search that was valid under Belton but not Gant was still valid under Davis v. United States’s good faith exception. State v. Brown, 401 S.C. 82, 736 S.E.2d 263 (2012), revg State v. Brown, 389 S.C. 473, 698 S.E.2d 811 (Ct. App. 2010).

Permalink 12:02:42 am, by fourth, 181 words, 321 views   English (US)
Categories: General

OH1: Arrest of defendant from vehicle for robberies permitted inventory of contents of vehicle

Defendant was suspected of robbing casino patrons after they won in Lawrenceburg, IN and drove to Cincinnati. After a lengthy investigation using GPS and recording telephone conversations, the police moved in and arrested defendant in his pickup truck. The police had probable cause to arrest defendant and the vehicle, left without a possible driver, was subject to inventory when it was towed in. The inventory was proper in all respects and not a ruse for a criminal investigation. State v. Ojile, 2012 Ohio 6015, 2012 Ohio App. LEXIS 5223 (1st Dist. December 21, 2012).* [If they had PC to arrest, they almost certainly had it to search the vehicle for evidence, weapons, or proceeds of crime because it was used in more than one of the robberies. Instead of taking the easiest to prove, the state apparently wanted to rely on inventory which has more for it to prove to show reasonableness.]

The Quarles public safety exception applies to a meth lab in a backpack voluntarily revealed by defendant and then with follow up questions. United States v. Noonan, 2012 U.S. Dist. LEXIS 181190 (N.D. Iowa December 20, 2012).

12/26/12

Permalink 05:46:37 pm, by fourth, 145 words, 384 views   English (US)
Categories: General

NTY Editorial: "The Dawning of Domestic Drones; The drones are coming to a neighborhood near you"

NTY Editorial: The Dawning of Domestic Drones; The drones are coming to a neighborhood near you:

The unmanned aircraft that most people associate with hunting terrorists and striking targets in Pakistan are on the brink of evolving into a big domestic industry. It is not a question of whether drones will appear in the skies above the United States but how soon.

Congress has ordered the Federal Aviation Administration to quickly select six domestic sites to test the safety of drones, which can vary in size from remote-controlled planes as big as jetliners to camera-toting hoverers called Nano Hummingbirds that weigh 19 grams.

The drone go-ahead, signed in February by President Obama in the F.A.A. reauthorization law, envisions a $5 billion-plus industry of camera drones being used for all sorts of purposes from real estate advertising to crop dusting to environmental monitoring and police work.

Permalink 04:46:21 pm, by fourth, 284 words, 562 views   English (US)
Categories: General

Wired.com: "The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say)"

Wired.com: The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say) by James Bamford

The spring air in the small, sand-dusted town has a soft haze to it, and clumps of green-gray sagebrush rustle in the breeze. Bluffdale sits in a bowl-shaped valley in the shadow of Utah’s Wasatch Range to the east and the Oquirrh Mountains to the west. It’s the heart of Mormon country, where religious pioneers first arrived more than 160 years ago. They came to escape the rest of the world, to understand the mysterious words sent down from their god as revealed on buried golden plates, and to practice what has become known as “the principle,” marriage to multiple wives.

. . .

But new pioneers have quietly begun moving into the area, secretive outsiders who say little and keep to themselves. Like the pious polygamists, they are focused on deciphering cryptic messages that only they have the power to understand. Just off Beef Hollow Road, less than a mile from brethren headquarters, thousands of hard-hatted construction workers in sweat-soaked T-shirts are laying the groundwork for the newcomers’ own temple and archive, a massive complex so large that it necessitated expanding the town’s boundaries. Once built, it will be more than five times the size of the US Capitol.

Rather than Bibles, prophets, and worshippers, this temple will be filled with servers, computer intelligence experts, and armed guards. And instead of listening for words flowing down from heaven, these newcomers will be secretly capturing, storing, and analyzing vast quantities of words and images hurtling through the world’s telecommunications networks. In the little town of Bluffdale, Big Love and Big Brother have become uneasy neighbors.

Permalink 12:13:41 am, by fourth, 339 words, 440 views   English (US)
Categories: General

S.D.N.Y.: Exigency was lacking to recover a gun in a locked room where defendant had the only key

Defendant rented his room in his sister’s house from her, and he locked the door. She thus lacked common or apparent authority to consent to the search. Police were called to the house because he allegedly threatened his sister with a gun, and he admitted having one in his room. Exigent circumstances to enter his locked room did not exist where he was handcuffed in a patrol car and the key was in his pocket. The unMirandized statement was taken under Quarles that he had a gun. United States v. Wilson, 914 F. Supp. 2d 550 (S.D. N.Y. 2012):

Here, at the time of the unwarned questioning, the Defendant, who was handcuffed and seated in the back of the patrol car, presented no threat to the complainant or the officers. Moreover, at the time the officers returned downstairs to continue their unwarned questioning of the Defendant, they already understood from the complainant that the gun was most likely located in the Defendant's bedroom, (Hernandez Tr. at 20-21 ("if he don't have the gun with him, he probably left it in his room")), which Officer Hernandez knew was locked and that no one besides the Defendant had a key. (Hernandez Tr. at 20-21.) The parties agree that Officer Hernandez then returned downstairs to question the Defendant about whether he possessed a weapon in his room and, if so, where it was located. (Id. at 22; Wilson Decl. ¶ 7; Gov't Ex. 13 at 20:19:20-20:20:20.) The parties also agree that the Defendant answered the officer's first question about the location of the gun ("I asked the defendant, your sister told me that you pulled a gun on her, and we need to know where is the gun") by admitting that he had one or more "fake" guns in his room. (Hernandez Tr. at 22; Wilson Decl. ¶ 7; Gov't Ex. 13 at 20:18:45-20:20:45.) Given that Officer Hernandez knew that the bedroom was locked and that only the handcuffed Defendant had a key to it, the Defendant's answer eliminated any reasonable concern that the gun presented a public safety danger.

Permalink 12:07:14 am, by fourth, 283 words, 435 views   English (US)
Categories: General

N.D.Cal.: Furtive movements like checking a gun at waist, bulge in coat, then flight into nearby building justified hot pursuit entry

Defendant showed standing from staying at his sister’s apartment a lot. He kept clothes and toiletries there, and he had a key and could come and go as he pleased. Defendant saw an unmarked police car and pulled at his pants indicating a gun in his waistband. He also ducked behind a car for a few seconds. Officers pulled to him and addressed him, and he had a bulge in his coat. At this point, officers had more than reasonable suspicion. Then defendant fled into a building , and the officers gave chase. The entry was with exigent circumstances. United States v. McGregor, 2012 U.S. Dist. LEXIS 181318 (N.D. Cal. December 21, 2012):

Defendant bolted through the front door as if it were unlocked or slightly ajar. He did not use a key. The officers did not know defendant, or whether he had a connection to the apartment. As far as the officers could tell, defendant had bolted into a random, close-by home of a stranger to seek escape from the officers, hide contraband, or endanger the occupants. Based on the foregoing information known to the officers, it was objectively reasonable for the officers to conclude that defendant's frenzied escape into the apartment posed a random and serious risk to the safety of the occupants or the officers. There was no particular indication that defendant lived there or knew the occupants. He did not say, for example, "Go away. This is my home." He did not enter using a key. Nor did the sister, who was standing inside near the door communicate in some manner to the police that defendant belonged there.

The opinion doesn't use the phrase "hot pursuit," but that's what it is.

Permalink 12:01:00 am, by fourth, 351 words, 1062 views   English (US)
Categories: General

WA: State failed to defend search issue on appeal relying on harmless error and lost

The state contended that the search issue was of no consequence because the defendant admitted possession and growing of marijuana, but this was a medical marijuana case. The search should have been suppressed, and defendant made out his MMJ defense. Case reversed and dismissed. State v. Shupe, 172 Wn. App. 341, 289 P.3d 741 (2012)*:

=> Read more!

12/25/12

Permalink 04:49:37 pm, by fourth, 408 words, 566 views   English (US)
Categories: General

D.D.C.: CSLI information doesn't require showing PC; Smith applies

CSLI information is not protected by the probable cause requirement of the Fourth Amendment. The government sought the information by court order and the USMJ denied it, and the government appealed to the District Judge who granted it. CLSI information is subject to the Smith v. Maryland no reasonable expectation of privacy standard. In the Matter of the Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Site Information for Telephone Number [Text Redacted by the Court], 2011 U.S. Dist. LEXIS 156744 (D. D.C. October 3, 2011):

This Court agrees with the government that the text of the SCA permits the government to apply for compelled disclosure of CSLI records relating to a customer's past use of a cellular telephone company's phone services without meeting the probable cause requirement for a warrant. See, e.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S. Ct. 494, 90 L. Ed. 614 (1946) (holding that the probable cause requirement does not apply to compulsory process).

The Court of Appeals' opinion in United States v. Maynard does not compel a contrary result. The Court in Maynard determined that law enforcement installation of a GPS tracking device on a suspect's car that continuously registers the car's location constitutes a "search" under the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 555-56, 392 U.S. App. D.C. 291 (D.C. Cir. 2010). In so holding, the Court did not address compelled disclosure under Section 2703(d) -indeed, the law enforcement officers in Maynard sought no official process sanctioning their conduct before installing the GPS device at issue. See id. at 555. Maynard thus does not bear on the relevant evidentiary standard under Section 2703(d).

In finding that Maynard applied to this case, Magistrate Judge Facciola presumably concluded that obtaining CSLI is tantamount to the sort of continuous GPS surveillance at issue in Maynard. If the analogy holds, collection of historical CSLI may constitute a "search" that requires a warrant under the Fourth Amendment, the SCA notwithstanding. Cf. In re Application of the United States, 620 F.3d at 308-09 (describing magistrate judge's opinion comparing collection of historical CSLI to installation of a tracking device); In re United States Order, 736 F. Supp. 2d 578, 595 & n.6 (E.D.N.Y. 2010) (arguing that "[s]tatutory authority ... is not sufficient if such authority purports to allow, without a showing of probable cause, a search or seizure that must be considered unreasonable under the Fourth Amendment").

Unsealed and posted to Lexis this week.

Permalink 12:16:41 am, by fourth, 213 words, 1212 views   English (US)
Categories: General

E.D.Mo.: Unprovoked flight in a high-crime area is RS

Defendant refused to stop when the patrol car’s lights and siren came on, and that was not a seizure until he was actually stopped. His flight was reasonable suspicion, and the movement of his hands in flight added to it. United States v. Rhone, 2012 U.S. Dist. LEXIS 181135 (E.D. Mo. September 19, 2012):

The Supreme Court has held that presence in an area with a high rate of crime with unprovoked flight can satisfy the reasonable suspicion standard for a Terry stop. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Here, prior to the seizure and search of defendant, the officers found him in the Jeff Vanderlou area, an area with a high rate of crime, and defendant fled from the officers with no provocation. Additionally, while in pursuit of defendant, Officer Anderson observed defendant's hands moving around his jacket pocket. See United States v. Cornelius, 391 F.3d 965, 968 (8th Cir. 2004) (placing hands in jacket pocket and failure to remove hands upon direction by an officer sufficiently justifies a frisk); United States v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000) (placing hands in jacket pocket and moving to officer's backside upon witnessing the frisk of a companion sufficiently justifies a frisk); see also United States v. Roggeman, 279 F.3d 573, 579 (2002) (bulge in the clothing alone can establish a reasonable suspicion).

Permalink 12:08:02 am, by fourth, 130 words, 424 views   English (US)
Categories: General

TN: Fleeing burglar with a screwdriver showing from pockets could be frisked for weapon

Defendant was seen leaving the scene of a burglary wearing all black and carrying a large black bag. When a man matching all that was seen by the officer, he had reasonable suspicion for a frisk when he saw a screwdriver sticking out of a pocket. Defendant then acquiesced in a consent search of the bag which produced evidence of the burglary. State v. Watkins, 2012 Tenn. Crim. App. LEXIS 1053 (December 19, 2012).*

Defendant in a blocked-in car with three officers with flashlights shining in windows was subjected to a stop governed by Terry. “[T]he police officers had only three justifications: the recent high-crime history of this lot, pat-downs of Julian's patrons, and Young's reclined position in the passenger seat of a parked car.” United States v. Young, 707 F.3d 598 (6th Cir. 2012).*

Permalink 12:01:08 am, by fourth, 147 words, 395 views   English (US)
Categories: General

W.D.N.Y.: To remedy three years of pretrial detention, the defendant is ordered released including a condition of home searches

Defendant was in pretrial detention for three years, and both sides were responsible for delay, the government superceding the indictment multiple times, and the defendant for requesting extensions for filing pretrial motions, and only recently got the search warrant materials from the government. The defendant is ordered released on conditions, including cash deposit, third party custodians, drug testing, and searches of his home by USPO. [The opinion doesn’t tell us whether the defendant offered this condition. A home search as a condition of release is extremely hard to justify, and the court makes no effort to do so.] United States v. Rodriguez, 2012 U.S. Dist. LEXIS 181111 (W.D. N.Y. December 21, 2012).

The discrepancies noted by the defense between the search warrant affidavit and the discovery were not material enough to justify an evidentiary hearing. United States v. Dixon, 2012 U.S. Dist. LEXIS 180431 (N.D. Ohio December 17, 2012).*

12/24/12

Permalink 03:50:15 pm, by fourth, 182 words, 1453 views   English (US)
Categories: General

NYT Editorial: "Sneaky Apps That Track Cellphones"

NYT Editorial: Sneaky Apps That Track Cellphones:

A perversion of smartphone technology called “stalking apps” — precise, secretive trackings of the movements of cellphone users — is increasingly a matter of national concern, particularly for domestic abuse victims. No less threatening is the routine monitoring of children’s locales and phone habits for commercial purposes while parents are kept in the dark. Stealth apps even stoop to cyber-leering through the now notorious app called Girls Around Me, which allows men to search out women, unbeknown to them, by cross-matching GPS technology with information and photo sites like Facebook.

With these abuses proliferating, the Senate Judiciary Committee this month took a big step to protect the privacy of all cellphone users and close legal loopholes that enable stalking apps. The committee approved a worthy measure sponsored by Senator Al Franken, Democrat of Minnesota, that for the first time would require cellphone companies to obtain a user’s permission to collect location data and sell it or share it with third parties. It also would flatly outlaw creation of stalking apps, applying criminal and civil penalties.

Permalink 07:59:46 am, by fourth, 504 words, 800 views   English (US)
Categories: General

CA6 is troubled by 3 weeks of constant video surveillance of backyard under Jones but finds it harmless

The Sixth Circuit is troubled by three weeks of constant video surveillance of defendant’s backyard by a pole camera in light of Jones and its trespass holdings. “We are inclined to agree with the Fifth Circuit that ‘[t]his type of surveillance provokes an immediate negative visceral reaction.’” Nevertheless, the court finds the error, possible error harmless and doesn’t have to decide it. United States v. Anderson-Bagshaw, 509 Fed.Appx. 396 (6th Cir. 2012):

=> Read more!

Permalink 12:20:54 am, by fourth, 626 words, 1279 views   English (US)
Categories: General

TN: DNA profile in John Doe arrest warrant was particular for Fourth Amendment and tolled SOL

A woman lawyer was the target of a home invasion and aggravated attempted rape in 1994 in Nashville. She struggled with the assailant who beat her head, and she bit off a piece of skin on his finger, spitting it under the bed. He left. In 2000, a DNA profile was run on the piece of the finger, and the DHA description was included in a John Doe warrant as a specific identifier. In 2006, the grand jury indicted John Doe. In 2008, a likely fingerprint match was made off the piece of the finger with defendant who had applied for a job at the DOC. Once police had a likely candidate for a suspect, a match on a palm print was made and the police then sought a DNA sample, and that matched the defendant. He was charged, tried, and convicted. A John Doe warrant with a DNA description was sufficiently particular under the Fourth Amendment, and the statute of limitations was properly tolled. State v. Burdick, 395 S.W.3d 120 (Tenn. 2012), aff’g State v. Burdick, 2011 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 2, 2011):

Several jurisdictions have addressed the issue since [Wisconsin] in Dabney [State v. Dabney, 2003 WI App 108, 264 Wis. 2d 843, 663 N.W.2d 366 (2003)], and most have concluded that inclusion or reference to a unique DNA profile in a "John Doe" arrest warrant or indictment sufficiently describes a person to satisfy statutory requirements. In State v. Danley, the Ohio Court of Common Pleas cited Dabney with approval and held that an affidavit of complaint and arrest warrant against "John Doe," which identified the suspect by gender and a DNA profile, was sufficient to commence the criminal action, thereby tolling the statute of limitations. 2006 Ohio 3585, 853 N.E.2d 1224, 1226-28 (Ohio Ct. Com. Pl. 2006). More recently, in People v. Robinson, the California Supreme Court ruled that an arrest warrant that described the suspect only as "John Doe, unknown male" with a unique 13-loci DNA profile adequately identified the defendant under both the Fourth Amendment and California's statutory scheme, thus timely commencing the prosecution. 47 Cal. 4th 1104, 104 Cal. Rptr. 3d 727, 224 P.3d 55, 75-76 (Cal. 2010). Finally, in Dixon, the Massachusetts Supreme Court observed that a DNA profile is more than a description; "it is, metaphorically, an indelible 'bar code' that labels an individual's identity with nearly irrefutable precision." 938 N.E.2d at 885 (citing NRC at 2, 7, 9). Consequently, that court held that a "John Doe" indictment incorporating the suspect's unique DNA profile and additional physical description "unassailably fulfil[led] the constitutional requirement that an indictment provide 'words of description which have particular reference to the person whom the Commonwealth seeks to convict,'" sufficiently identified the defendant, and tolled the statute of limitations. Id. at 885-86.

. . .

We are persuaded that a DNA profile exclusively identifies an accused with nearly irrefutable precision and, as a general rule, satisfies the particularity requirements of the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution. In our view, the "John Doe" designation in the warrant at issue, coupled with the detailed DNA profile of the assailant, identified the Defendant with "reasonable certainty," as is required by both constitution and statute. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7; Tenn. Code Ann. § 40-6-208; Tenn. R. Crim. P. 4(c)(1)(B). As a result, the prosecution was properly and timely commenced within the eight-year statute of limitations by the filing of the "John Doe" arrest warrant on February 2, 2000.

. . .

IV. Conclusion

A criminal prosecution is commenced if, within the statute of limitations for a particular offense, a warrant is issued identifying the defendant by gender and his or her unique DNA profile. Furthermore, a superseding indictment in the defendant's proper name provides the requisite notice of the charge. The judgment of conviction is, therefore, affirmed.

Permalink 12:10:20 am, by fourth, 190 words, 509 views   English (US)
Categories: General

E.D.Pa.: Even disregarding a misleading paragraph in the SW application there was still PC

Officers conducted a protective sweep and saw ammunition in plain view. They also had enough to seek a search warrant, and they did, including the reference to the ammunition. There was a misleading paragraph in the affidavit. Excising it and the reference to the ammunition, there was still probable cause for issuance of the search warrant, and the motion to suppress is denied. United States v. Torres, 2012 U.S. Dist. LEXIS 179774 (E.D. Pa. December 19, 2012).*

Defendant’s 2255 claim that his criminal defense lawyer failed to object to the search of the car he was in was vague and conclusory. From the court’s own review of the record, defendant likely lacked standing to challenge the search of the car which was with probable cause based on the testimony at trial. Therefore, the lawyer couldn’t be ineffective. United States v. McIntyre, 2012 U.S. Dist. LEXIS 179957 (D. Kan. December 17, 2012).*

Defense counsel fully argued the Fourth Amendment in the District Court and then appealed it to the Fifth Circuit, so there he is barred from relitigating it by collateral estoppel. Castille v. United States, 2012 U.S. Dist. LEXIS 180871 (W.D. Tex. December 20, 2012).

Permalink 12:02:26 am, by fourth, 179 words, 508 views   English (US)
Categories: General

E.D.Pa.: Car subject to search for PC could be moved before the search for safety purposes

The search of defendant’s car was justified by the automobile exception with probable cause or the search incident doctrine although the car was moved before the search to the police station. Defendant was stopped on a street, and a crowd had begun to form. It was within the officers’ discretion to move the car for the search for officer safety. United States v. Thompson, 2012 U.S. Dist. LEXIS 179981 (E.D. Pa. December 20, 2012).

Defendant was stopped for not wearing a seatbelt, and the officer took his DL back to the patrol car for a computer check which took eight minutes. By then backup arrived, and the officer got out and asked about drugs. That additional questioning was supported by furtive movements in the car and defendant’s brother being a known gang member. On review by the District Court, the stop was broken down into five parts, and each supported the next and overall was reasonable. United States v. Marin-Sanchez, 2012 U.S. Dist. LEXIS 180226 (E.D. Wis. December 20, 2012), R&R 2012 U.S. Dist. LEXIS 180224 (E.D. Wis. November 27, 2012).*

12/23/12

Permalink 09:46:58 am, by fourth, 125 words, 618 views   English (US)
Categories: General

CA6: Fourth Amendment does not require question about DL before asking about drugs

There is no constitutional requirement that the officer ask for DL before asking about drugs. Defendant here was found to have consented to a search of his vehicle. United States v. Cochrane, 702 F.3d 334 (6th Cir. 2012)*:

To the extent that Defendant objects to the fact that the officers asked for his driver's license and registration only after asking about the presence of contraband, we find no rule that officers must ask questions in a certain order when the totality of the circumstances indicates that the scope and duration of the stop were reasonable. See Everett, 601 F.3d at 493-94 ("[T]he touchstone of any Fourth Amendment analysis is reasonableness."). Under these circumstances, we find that the officer's extraneous questioning did not constitute an unreasonable seizure.

Permalink 09:23:59 am, by fourth, 160 words, 523 views   English (US)
Categories: General

OR: State can't rely on standing on appeal if it doesn't raise it at suppression hearing

The state could not rely on lack of standing to support admission of the product of the search where it did not raise it at the suppression hearing. State v. Jepson, 2012 Ore. App. LEXIS 1525 (December 19, 2012).*

Defendant was on probation and in custody, and his consent was not coerced even though there were several police officers around. He’d been on probation with this PO before, and he knew that he was subject to home inspection searches as a condition. State v. Brock, 254 Ore. App. 273, 295 P.3d 89 (2012).*

Because “‘[A]ny person of ordinary intelligence, who had a reasonable opportunity to observe a vehicle in motion and judge its speed may testify as to his estimation of the speed of that vehicle.’ State v. Barnhill, ...”, the officer’s testimony, if credited, is enough for a stop. Here, the officer testified defendant was speeding, going in the opposite direction, speed observed for four seconds. State v. Royster, 737 S.E.2d 400 (N.C. App. 2012).*

12/22/12

Permalink 12:08:06 am, by fourth, 407 words, 466 views   English (US)
Categories: General

D.D.C.: Even suppression of GPS information in Jones doesn't prevent inevitable discovery

In another Jones on remand case, the district court held that suppressing the GPS data would not lead to suppression of the police determining that 9509 Potomac Drive was the stash house because they figured that out the day before the GPS was installed on his Jeep. United States v. Jones, 1:05-cr-00386 (D. D.C. December 20, 2012):

5. Here, the Court concludes that defendant has not met his burden of establishing that, “but for the illegal [GPS search], the officers likely would not have discovered [the stash house and the evidence contained therein].” Holmes, 505 F.3d at 1292. To the contrary, on September 26, 2005, a day before the GPS device was even attached to Jones’ car, law enforcement officials had determined that 9508 Potomac Drive was the likely stash house based on: (1) the GPS coordinates from the “ping” to the 678 cell phone; (2) property records confirming that only 9508 and 9509 Potomac Drive were not owner-occupied; and (3) the physical appearance of 9508 Potomac Drive as compared to the other houses on the street. (See supra Findings of Fact ¶¶ 7-13.) They had also initiated the process of installing a stationary camera at 9509 Potomac Drive before they began accessing data from the GPS device. (See supra Findings of Fact ¶¶ 15-17.)

6. The Court further concludes that even if defendant could demonstrate a causal nexus between the GPS data and the location of the stash house, the evidence would be admissible under the inevitable discovery doctrine. After the GPS device was installed on Jones’ Jeep, law enforcement officers continued to obtain information from independent—and lawful—sources that confirmed that 9508 Potomac Drive was in fact the stash house. For example, they continued to monitor the Title III wiretap and on October 4, 2005, they observed Jones and his associate Roel Bermea driving to and from the Potomac Drive area. (See supra Findings of Fact ¶ 19.) They also succeeded in installing a stationary camera at 9509 Potomac Drive and obtained visual confirmation that Jones and Bermea frequented the 9508 address. (See supra Findings of Fact ¶ 20.) Thus, even if the Court were not convinced that law enforcement officers had in fact identified 9508 Potomac Drive as the stash house prior to the installation of the GPS device on defendant’s Jeep, the government has met its burden of showing that, absent the constitutional violation, it would inevitably have confirmed the location of the stash house using entirely lawful.

h/t reader. Also, many of the D.D.C. opinions are available on its website, but this one isn't yet.

Permalink 12:01:09 am, by fourth, 145 words, 384 views   English (US)
Categories: General

OR: Officer said “we’re going to have to take the firearms,” so failure to object was not implied consent

Defendant’s failure to object to the officer stating “we’re going to have to take the firearms” was not implicit consent. That was a statement they were taking property. State v. Jepson, 2012 Ore. App. LEXIS 1525 (December 19, 2012).

Defendant’s vehicle was already stopped when the officer came up to it and asked him out. When he got out, the officer saw drugs in plain view. The vehicle was not stopped by the officer, and that did not implicate the Fourth Amendment. Plain view supported the seizure. State v. Morales, 125 So. 3d 1141 (La. App. 5 Cir. 2012).*

Only a judge of a court of record can issue search warrants in Ohio, and the state showed that the judge’s appointment for a three month term by the Chief Justice was regular, so the search warrant was not suppressed. State v. Nurse, 2012 Ohio 6000, 2012 Ohio App. LEXIS 5172 (9th Dist. December 19, 2012).*

12/21/12

Permalink 10:13:50 am, by fourth, 163 words, 1141 views   English (US)
Categories: General

WA: While Washington recognizes pretext stops, a mixed motive is not unconstitutional

While Washington recognizes pretext stops, a mixed motive is not unconstitutional. State v. Arreola, 176 Wn.2d 284, 290 P.3d 983 (2012), rev’g State v. Arreola, 163 Wn. App. 787, 260 P.3d 985 (2011):

¶1 The issue in this case is whether a traffic stop motivated primarily by an uncorroborated tip, but also independently motivated by a reasonable articulable suspicion of a traffic infraction, is unconstitutionally pretextual under article I, section 7 of the Washington State Constitution and State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).

¶2 We hold that a mixed-motive traffic stop is not pretextual so long as the desire to address a suspected traffic infraction (or criminal activity) for which the officer has a reasonable articulable suspicion is an actual, conscious, and independent cause of the traffic stop. So long as a police officer actually, consciously, and independently determines that a traffic stop is reasonably necessary in order to address a suspected traffic infraction, the stop is not pretextual in violation of article I, section 7, despite other motivations for the stop.

Permalink 10:02:51 am, by fourth, 154 words, 426 views   English (US)
Categories: General

D.Utah: Argument that state trooper caused traffic infraction didn't undermine PC for stop

Defendant’s argument that the Utah state trooper caused him to commit the traffic violation that led to his stop was rejected. There was still reason for the stop. United States v. McCoy, 2012 U.S. Dist. LEXIS 178936 (D. Utah December 18, 2012).

“Based on these facts, we agree with the district court's conclusion that the officers were in the home for a legitimate law enforcement purpose, and, given the violent nature of the drug cartel, that the officers possessed a reasonable, articulable suspicion that the house posed a danger to them.” United States v. Gutierrez, 503 Fed. Appx. 261 (5th Cir. 2012).*

The search of defendant’s vehicle was valid by inevitable discovery, the court not having to decide probable cause, because the defendant committed felony fleeing attempting to elude the officer, and the vehicle was subject to forfeiture because of a prior heroin find in the vehicle. United States v. Jordan, 2012 U.S. Dist. LEXIS 178972 (D. Kan. December 17, 2012).*

Permalink 09:42:02 am, by fourth, 417 words, 359 views   English (US)
Categories: General

E.D.Wis.: General consent to search includes hidden compartments that might be found with tools

A general consent to search a vehicle for “weapons, drugs, or money” permitted the officers to use tools to take the dashboard apart and find a hidden compartment. It was expected that compartments would be searched, and that had to include hidden compartments. United States v. Locke, 2012 U.S. Dist. LEXIS 179425 (E.D. Wis. October 9, 2012) adopted 2012 U.S. Dist. LEXIS 179420 (E.D. Wis. December 19, 2012):

Here, Trooper Taylor asked Locke whether he had any weapons, drugs, or money in the vehicle, and Locke answered "no." Trooper Taylor specifically asked if he could search Locke's Expedition, and Locke answered "yes." So, Locke was well aware that Trooper Taylor was searching for weapons, drugs, and money. While suspects may limit the scope of their consent, Locke placed no limit on the extent of the search. Thus, a reasonable person in the officer's position would have understood that, by consenting to search the Expedition and all of its contents, Locke agreed to permit a search of any compartments or containers that could contain contraband, including the hidden compartment that was ultimately discovered.

Locke argues, however, that Trooper Taylor's search exceeded the scope of his consent because he used tools to access the hidden compartment. Locke cites no case law to support his argument. Indeed, and quite to the contrary, cases suggest that, in the absence of intentional damage "to the places or things to be searched," using tools to access hidden compartments is not per se unreasonable. See Saucedo, 688 F.3d at 866-67. In Saucedo, the court upheld as reasonable an officer's use of a flashlight and screwdriver to look behind a TV, unscrew the molding, and remove the hidden compartment from an alcove. See id. at 866. Additionally, in United States v. Torres, 32 F.3d 225 (7th Cir. 1994), an officer used a screwdriver to remove six screws that secured the cover of a wooden compartment in a trailer. The court found it to be objectively reasonable for the officer to believe that the scope of consent allowed him to open the compartment in such a manner. Id. at 231-32.

Locke makes no claim that Trooper Taylor, or any other officer on the scene, intentionally damaged the Expedition or any personal property inside. At one point, Locke accused Trooper Taylor of "tearing the truck up." However, it appears Locke's concern stemmed from a general rummaging of contents, as opposed to destruction of the contents in the vehicle. Further, Trooper Taylor assured Locke that the officers would put everything back the way it was. ...

Permalink 08:28:06 am, by fourth, 187 words, 403 views   English (US)
Categories: General

NYLJ.com: "Ruling Revives Claims Against City Over Stop-and-Frisk Data"

NYLJ.com: Ruling Revives Claims Against City Over Stop-and-Frisk Data by John Caher:

Information gleaned from stop-and-frisk targets must be sealed and cannot be used for subsequent police investigations, an appellate panel has held while finding that individuals whose information was disclosed or utilized have a private right of action against New York City.

In an opinion addressing the ongoing debate over the New York City Police Department's stop-and-frisk policies, a unanimous panel of the Appellate Division, First Department, yesterday reversed a trial court and delivered a victory to civil rights activists who have criticized and legally challenged police procedures.

The panel in an unsigned opinion flatly rejected the city's position and, significantly, held that targets need not await a "readily apparent prospective injury" before seeking relief under a state privacy law.

NYT: Suit on Police Stops Is Reinstated by Joseph Goldstein:

In a further blow to the Police Department’s database of stop-and-frisk interactions, a state appellate court on Thursday reinstated a lawsuit challenging the police’s authority to retain information about people who were arrested after a street stop, but later cleared of criminal charges.

Permalink 06:12:00 am, by fourth, 572 words, 802 views   English (US)
Categories: General

CA10: State troopers' crossing state line was not a Fourth Amendment violation

The Missouri Highway Patrol followed defendant from Kansas City MO to Kansas City KS, and their actions in Kansas allegedly in violation of Kansas law are not pertinent to the Fourth Amendment reasonableness inquiry. “In sum, for all of the foregoing reasons, we reject Mr. Jones's argument that the Missouri officers' seizure of him in Kansas effected a Fourth Amendment violation simply because they were acting outside of their jurisdiction and without authority under Kansas law.” United States v. Jones, 701 F.3d 1300 (10th Cir. 2012):

It is "well established in this circuit that in federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers." United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999) (emphasis added) (quoting United States v. Le, 173 F.3d 1258, 1264 (10th Cir. 1999)) (internal quotation marks omitted); ...; see also Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (holding that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections"); California v. Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) ("We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs."); ... More specifically, "officers' violation of state law is not, without more, necessarily a federal constitutional violation." United States v. Mikulski, 317 F.3d 1228, 1232 (10th Cir. 2003); accord Pasiewicz v. Lake Cnty. Forest Pres. Dist., 270 F.3d 520, 526 (7th Cir. 2001) ("A violation of a state statute is not a per se violation of the federal Constitution. The federal government is not the enforcer of state law."); .... Accordingly, Mr. Jones's argument that the Missouri officers' actions effected a Fourth Amendment violation simply because they were acting outside of their jurisdiction and without authority under Kansas law is mistaken.

. . .

While "compliance with state law may be relevant to our Fourth Amendment reasonableness analysis" in some circumstances, "we have never held it to be determinative of the constitutionality of police conduct." Gonzales, 535 F.3d at 1182; see Sawyer, 441 F.3d at 899 ("State law is not determinative of the federal question, but rather may or may not be relevant to the determination of the federal question."). In Gonzales, we explained that "compliance with state law is 'highly determinative' only when the constitutional test requires an examination of the relevant state law or interests." 535 F.3d at 1182 (quoting Sawyer, 441 F.3d at 896-97). No such examination was required in Gonzales:

[W]e need not examine state law or interests. The federal test for determining the validity of a traffic stop simply requires us to determine whether a traffic violation has occurred .... It does not require an examination of a state's law or interests, but focuses instead on whether the stop was reasonable under the circumstances.

Id. at 1183 (citation omitted). We do not perceive such an examination of state-law interests to be required here either. The Missouri officers' encounter with Mr. Jones principally implicates federal legal standards related to the reasonableness of a Fourth Amendment seizure and, at least under the circumstances of this case, we see no need to assess state-law interests.

Written 12/20, and set to post at 6:11 am EST, 11:11 UTC, the time the "world is supposed to end."

Permalink 12:20:12 am, by fourth, 200 words, 477 views   English (US)
Categories: General

VA: Curiosity is not enough to justify the community caretaking function

The search of defendant’s backpack was because the officer was “curious” because of its weight and not because of any concern about it. Therefore, the search of the backpack was not justified under the community caretaking exception. “The record lacks evidence that gives rise to an objectively reasonable belief that Officer Lancaster's searching appellant's backpack was necessary to protect the backpack or its contents from theft or damage; to protect Deputy Hayes or Officer Lancaster from appellant's claims of stolen property; or to protect the police or public from danger.” Knight v. Commonwealth, 61 Va. App. 297, 734 S.E.2d 716 (2012).

Defendant’s search incident was justified because officers had information that he was armed, and he fled from the police in the hallway of an apartment building under circumstances that justifies the inference that he had hidden evidence. State v. Sanders, 2013 WI App 4, 345 Wis. 2d 754, 826 N.W.2d 394 (2012).*

Defendant was driving 13 mph below the speed limit in the left lane, but there was nothing that showed why, like that cars in front of him may be going too slow. Therefore, the trial court abused its discretion in crediting this finding. Delafuente v. State, 389 S.W.3d 616 (Tex. App. – Houston (14th Dist.) 2012).*

Permalink 12:05:45 am, by fourth, 231 words, 517 views   English (US)
Categories: General

PA: A combination of innocent facts can add up to RS

The officer had reasonable suspicion because of the owner not being present with the car, the occupants were inconsistent in describing their travel plans, they were nervous, and they had multiple types of air fresheners. “[E]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Caban, 2012 PA Super 278, 60 A.3d 120 (2012).*

The CI here was named and was the next door neighbor relating observations and what he heard from occupants of the house, and that was enough to give the officers probable cause for a search warrant for marijuana plants in the basement. Yet, the officer had PC without the information from the CI, so that is academic. Here, defendant was verified to be a medical marijuana cardholder, and he consented to the search of his basement and showed the officers around. State v. Deshaw, 2012 MT 284, 367 Mont. 218, 291 P.3d 561 (2012).*

The stop was reasonable in duration, and the passenger has standing to challenge the length of the stop. Since it was reasonable, he lacks standing to challenge the search of the car. State v. Franklin, __ N.C. App. __, 736 S.E.2d 218 (2012).*

A lost and final suppression motion is collateral estoppel to the basis for the seizure in a forfeiture. Three Hundred Eighty-Nine Thousand Nine Hundred Five & No/100 Dollars v. State, No. 04-11-00666-CV, 2012 Tex. App. LEXIS 10453 (Tex. App. – San Antonio December 19, 2012).

12/20/12

Permalink 06:54:00 pm, by fourth, 435 words, 670 views   English (US)
Categories: General

EFF: "Newly Released Drone Records Reveal Extensive Military Flights in US"

EFF: Newly Released Drone Records Reveal Extensive Military Flights in US:

View EFF's new Map of Domestic Drone Authorizations in a larger window.

Today [12/5] EFF posted several thousand pages of new drone license records and a new map that tracks the location of drone flights across the United States.

These records, received as a result of EFF’s Freedom of Information Act (FOIA) lawsuit against the Federal Aviation Administration (FAA), come from state and local law enforcement agencies, universities and—for the first time—three branches of the U.S. military: the Air Force, Marine Corps, and DARPA (Defense Advanced Research Projects Agency).

For the one in Arkansas, I copied this:

Governmental Body/Entity: North Little Rock Police Dept

Type of Drone: Rotomotion SR30 UAS helicopter

Status: Active

General Location of Drone Activity: Little Rock, AR

Stated objective/purpose of COA: Operation of the Rotomotion SR30 UAS helicopter in the National Airspace System over unpopulated areas of Lonoke County, Arkansas. The objective is to gather data regarding operation of UAS helicopters in the National Airspace System for future UAS helicopter operations in support of local law enforcement. Operation of the Rotomotion SR30 UAS helicopter below 400' AGL. All flight operations will be conducted south of Interstate 40. This is an unpopulated area of a company owned park consisting of parking areas and recreational areas. The operation will launch/recover from a fenced recreational area. Operations will be conducted only when the recreational areas are not in use. Flights will be conducted during daylight hours during optimal weather conditions. Flights will be limited to line of sight distances. Flight durations will not exceed sixty minutes in length. Flight crews will demonstrate flight planning, flight plan execution, change in flight path upon command by the observer to avoid simulated aircraft traffic, and recovery of the aircraft to the planned landing point. Emergency proceedures including manual control of the aircraft, recovery to a pre-planned emergency recovery point, and loss link proceedures will also be demonstrated.

Effective Dates: May 17, 2011-May 16, 2012 (COAs from 2008-2012)

Comments: "The Rotomotion SR30 is a small, economical, short endurance UA. Utilizing a helicopter platform, the SR30 houses one or two cameras in a pan/tilt camera mount. The system is designed to track objects of interest even when the helicopter nose is pointed away from the object. The SR30 can carry day zoom cameras, infrared cameras, or both simultaneously. As purchased, the aircraft is equipped with both day and infrared cameras. The aircraft is capable of fully autonomous flight with auto-takeoff and landing. Manual control is provided by a 2.4 GHz safety controller." ("North-Little-Rock-PD-2011_AIRCRAFT_SYSTEM.DOC")

Permalink 08:49:59 am, by fourth, 130 words, 800 views   English (US)
Categories: General

NC: Claim that officer sensed nervousness in driver while driving next to him was rejected

Stop was without justification; how could officer tell occupants of a car were nervous along side of them? This is no more than an "unparticularized suspicion or hunch." State v. Canty, __ N.C. App. __, 736 S.E.2d 532 (2012).*

Based on the testimony at the suppression hearing, a handyman had been given apparent authority to consent to an entry so that the police could enter on a knock-and-talk. Defendant then consented to a search. Briggs v. State, 2012 Ark. App. 692, 2012 Ark. App. LEXIS 812 (December 12, 2012).*

The officer stopping defendant’s car saw marijuana seeds and stems and a cut open cigar. He asked if there was more and it was produced. This was probable cause for a more intensive search under the automobile exception. State v. Carmichael, 2012 Ohio 5923, 2012 Ohio App. LEXIS 5103 (9th Dist. December 17, 2012).*

Permalink 08:36:13 am, by fourth, 124 words, 668 views   English (US)
Categories: General

OH12: Factor in consent here was defendant was not a “newcomer to the law”

Defendant’s consent was found valid on the totality, and factor to consider is that the defendant is not a “newcomer to the law.” State v. Smith, 2012 Ohio 5962, 2012 Ohio App. LEXIS 5112 (12th Dist. December 17, 2012).*

Defendant’s stop for reckless driving was justified on the facts, so his identity as an illegal is not suppressed. United States v. Rosas-Herrera, 499 Fed. Appx. 249 (4th Cir. 2012).*

There was probable cause on the totality for the seizure of cash from the front seat of defendant’s car. He was on a known drug corridor driving a rental car he was not authorized to drive, with a prior drug conviction, going to a town where he had no address to meet somebody. United States v. Julian, 501 Fed. Appx. 869 (11th Cir. 2012).*

Permalink 08:18:08 am, by fourth, 673 words, 1137 views   English (US)
Categories: General

CA5: Burning a dead man's car to coverup murder was Fourth Amendment violation

Aside from other crimes, a NOPD officer’s burning a dead man’s car to cover up murder during the aftermath of Katrina was a civil rights violation, too. United States v. McRae, 702 F.3d 806 (5th Cir. 2012):

This case tells one of the nightmarish stories that arose from Hurricane Katrina in 2005—the physical devastation, human diaspora, and struggle of the City to maintain some semblance of law and order, and, in the chaos, a horrific failure of law enforcement. The case also demonstrates again the axiom that a cover-up, with its domino effect, begets more tragedy than the crime. It indeed presents a grim vignette within the larger Katrina story, told here in terms of legal consequences.

The three appellant former policemen were convicted in the same trial—conducted from November 8 to December 9, 2010—largely on separate facts but all arising from the death of one citizen, Henry Glover. Thus, this opinion will set out the facts and the issues raised on appeal in three separate parts.

. . .

Importantly, the second superseding indictment charged McRae with seizing Tanner's car by burning it. McRae contends that he cannot have seized the car by burning it because the car had already been seized at that point: the car had been moved twice on the school property, and driven away from the school before it was burned. He argues that Tanner's possessory interest in the car had therefore already suffered meaningful interference. The government responds that the burning was merely the culmination of a course of conduct, all of which constitutes an unreasonable seizure. [This is reviewed for plain error.]

Although McRae's position is eminently logical, we do not think that the district court, in entering judgment based on this conviction, committed any error that is beyond reasonable dispute. Assuming that it is error to regard the burning of the car as a seizure, the error is not plain because the law neither clearly nor obviously limits the meaning of seizure to the initial moment of dispossession.

McRae correctly observes that some circuits, with respect to the seizure of property, limit the meaning of seizure to initial dispossession. See Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999); United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992). But at least one other circuit defines the seizure of property more broadly, to include a course of conduct that interferes with possessory interests. See Presley v. City of Charlottesville, 464 F.3d 480, 487-89 (4th Cir. 2006). McRae does not point to any precedent in this circuit staking a position in this split, and we are not aware of any. "Because this circuit's law remains unsettled and the other federal circuits have reached divergent conclusions on this issue . . . [McRae] cannot satisfy the second prong of the plain error test—that the error be clear under existing law." United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007).

With respect to seizures of the person, rather than property, the law is equally unclear, and the lack of clarity further undermines a contention of plain error in this case. We know that seizures of the person do not end at the initial moment of seizure. See Graham v. Connor, 490 U.S. 386, 394-96, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). How long the seizure of the person goes on, however, is not defined with precision in our circuit, and it is a question that divides other circuits. See Brothers v. Klevenhagen, 28 F.3d 452, 455-57 (5th Cir. 1994); Valencia v. Wiggins, 981 F.2d 1440, 1443-44 (5th Cir. 1993). The imprecision in describing the temporal quality of seizure in the context of seizures of the person discredits any argument that it is clear or obvious that a seizure is over at the moment of initial dispossession in this context—that is, seizure of property.

[Because of plain error review:] We hold that it is neither clear nor obvious that McRae's burning of Tanner's car could not constitute an unreasonable seizure under the Fourth Amendment, and we therefore affirm his conviction under count four of the second superseding indictment.

Permalink 07:58:32 am, by fourth, 215 words, 965 views   English (US)
Categories: General

NC: Even a mistake of law can be reasonable without violating the Fourth Amendment

Even a mistake of law can be reasonable without violating the Fourth Amendment, following United States v. Martin, 411 F.3d 998 (8th Cir. 2005). State v. Heien, 366 N.C. 271, 737 S.E.2d 351 (2012):

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Permalink 07:34:27 am, by fourth, 273 words, 1340 views   English (US)
Categories: General

PoliceOne:com: "Video: Women file suit over 'painful' roadside cavity search"

PoliceOne:com: Video: Women file suit over 'painful' roadside cavity search | Officers stated the women were acting strange and suspected marijuana was involved by Eric Nicholson, The Dallas Observer

DALLAS, Texas — On July 13, Angel Dobbs was driving her boyfriend's car north down the George Bush Turnpike when they were pulled over by state troopers. The troopers said they had spotted Dobbs throw a cigarette butt out the window.

According to a lawsuit filed by the Dobbs yesterday in federal court, the traffic stop soon took a different turn. One of the troopers, David Ferrell, took Angel Dobbs to a roadside field, where he peppered her with questions that quickly transitioned from general queries about where the pair was headed and to more pointed questions about whether they were transporting marijuana. He did the same with Ashley Dobbs. Both denied having any weed.

. . .

According to the lawsuit, Hellson's gloved hands went inside Dobbs' sweatpants and probed both front and back. Dobbs suffers from a skin condition called hidradenitis suppurativa that made the whole thing particularly painful. Without changing her gloves, Hellson performed an identical search on Ashley Dobbs, the suit claims.

When Angel Dobbs told Farrell she felt violated by the search, which had happened on a public roadway in full view of passersby, he told her it was justified by the odor of marijuana, which made it clear that "someone is a daily smoker in that car," according to the suit.

I filed a suit like this about 20 years ago in Arkansas involving a male strip searched on the side of a U.S. highway. The answer was a reasonable offer of judgment.

Permalink 12:12:39 am, by fourth, 233 words, 1326 views   English (US)
Categories: General

NY: Police can't query for guns without RS there might be one

During a traffic or pedestrian stop, an officer in New York must have reasonable suspicion to ask about whether a weapon is possessed. Officers already have the power to order occupants out of a car. People v. Garcia, 2012 NY Slip Op 08670, 20 N.Y.3d 317, 983 N.E.2d 259, 959 N.Y.S.2d 464 (2012):

... Moreover, the rule of Mimms and Robinson already guards against the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements. Indeed, Mimms and Robinson place automobile occupants in the same position as pedestrians vis-à-vis police officers; the People's proposed rule, on the other hand, would create disparate degrees of constitutional protections based on an individual's mode of transport. Finally, by sanctioning, in the interest of safety, a suspicionless inquiry into whether the ocupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.

See Court Limits Questioning of Motorists by the Police in the NYT.

Permalink 12:02:17 am, by fourth, 172 words, 1182 views   English (US)
Categories: General

TN: Exigency for warrantless entry can't be based on speculation

The police made a warrantless entry based on speculation of exigency. Their knowledge of actions in the home showed nothing out of the ordinary, too. State v. Tate, 2012 Tenn. Crim. App. LEXIS 1035 (December 17, 2012).

“Upon consideration of all which, the undersigned finds that from a totality of the evidence presented to Magistrate Elbon, there was ‘a fair probability that contraband or evidence of a crime’ would be found in the residence and attached building.” Accordingly, the SW affidavit was not so lacking that the good faith exception did not apply. United States v. Collins, 2012 U.S. Dist. LEXIS 178068 (N.D. W.Va. December 17, 2012).*

The occupants were suspected of being involved in a robbery from information from a CI. Their stop was for a loud exhaust, and the occupants had differing explanations of where they were going, they were nervous, and one had a knife. One was a convicted felon, and that was probable cause to search the glove compartment for a weapon. United States v. Hendrickson, 2012 U.S. Dist. LEXIS 178167 (D. Vt. December 17, 2012).*

12/19/12

Permalink 08:58:52 am, by fourth, 1343 words, 2143 views   English (US)
Categories: General

VT: CDTI followed: Issuing magistrate can impose preconditions on execution of a computer search warrant

The judicial officer issuing a computer search warrant can impose preconditions ("ex ante conditions") like in CDT on execution. Here, the conditions are upheld except for the state’s ability to discover things by a valid plain view which is a question of law that should not be abrogated by the warrant. In re Appeal of Application for Search Warrant, 2012 VT 102, 193 Vt. 51, 71 A.3d 1158 (2012):

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Permalink 08:39:04 am, by fourth, 326 words, 805 views   English (US)
Categories: General

E.D.N.Y.: Sharing CP with "friends" on a P2P network creates no reasonable expectation of privacy

The fact the defendant only shared his child pornography with "friends" on the GigaTribe peer-to-peer network does not create a reasonable expectation of privacy. After all, he never otherwise communicated with the officer he was chatting with who requested child porn that he sent. United States v. Brooks, 2012 U.S. Dist. LEXIS 178453 (E.D. N.Y. December 17, 2012)*:

Brooks contends that he "maintained a reasonable expectation of privacy" in his GigaTribe files because the peer-to-peer network was open only to "friends." (Def. Br. (Doc. No. 23-5) at 12.) Even accepting that proposition as true, the Supreme Court has "consistently [ ] held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith v. Maryland, 442 U.S. 735, 743-44 (1979). In applying this principle to emerging internet technologies, courts have uniformly held that a user of a private or "closed" peer-to-peer network such as GigaTribe who makes available files to his "friends" does not have an objectively reasonable expectation of privacy in those files he shared. See United States v. Soderholm, 11-cr-3050, 2011 WL 5444053, at *7 (D. Neb. Nov. 9, 2011) (holding that the "defendant did not have an objectively reasonable expectation of privacy in the files stored on his computer once he designated those files for sharing with the 'friends' on his private network"); United States v. Sawyer, 786 F. Supp. 2d 1352, 1356 (N.D. Ohio 2011) (holding that the "[d]efendant did not have an objectively reasonable expectation of privacy in the information that he shared over GigaTribe"); United States v. Ladeau, 09-cr-40021, 2010 WL 1427523, at *5 (D. Mass. Apr. 7, 2010) (holding that once the defendant "turned over the information about how to access the network to a third party, his expectation of privacy in the network became objectively unreasonable"). This Court joins in so holding, and finds that once Brooks accepted the undercover agent as a "friend" and designated as shared certain files to which the undercover could gain access, Brooks had no legitimate expectation of privacy in those shared files.

Permalink 08:11:21 am, by fourth, 563 words, 1078 views   English (US)
Categories: General

E.D.Wis.: Defendant kicked live-in girlfriend out, and police were aware of most of it; no apparent authority shown

Defendant leased the property and he and his live-in girlfriend got in a serious argument and he kicked her out, pulling her clothes out of the closets. He tried getting her keys from her and that led to an assault charge when they fought over the keys. Defendant adequately revoked his apparent authority to her for her otherwise having an ability to consent. The police were aware of enough of these circumstances to have to inquire further and didn’t. Therefore, she lacked apparent authority. United States v. Jackson, 910 F. Supp. 2d 1146 (E.D. Wis. 2012):

... Thus, before they commenced their search, the police knew that defendant had ordered King out and that she possessed a key only because she had fought off defendant's effort to retrieve it. These facts do not suggest that King was authorized to consent to a search of defendant's home.

The officers were also aware of other facts raising red flags. When Knight called King to ask her to look for the gun, she was not at defendant's home. Nor did she find the gun. Likewise, when Johnson called King to set up a search, King was not at the residence. And when Johnson met King she did not come from inside the house; rather, she, Jamauri and Presha arrived in a car suggesting that the three of them were residing elsewhere. Cf. Ryerson, 545 F.3d at 485 (finding actual and apparent authority when the defendant's girlfriend left their daughter and her belongings behind after she left). Further, the officers found boxes and bags on the porch and virtually nothing in the living room, indicating that someone had or was moving out.

Finally, it is important to note what the police did not know at the time King consented: they did not know how long King had lived at the residence, whether she was a co-owner or co-lessee, whether she paid any portion of the rent, or whether she performed any household chores. And they didn't ask. Nor did they check King's driver's license or mailing address. Despite the many signs that King no longer lived at the residence, the police made no serious inquiry into her authority. Had they made such an inquiry, they would have discovered that defendant was the sole lessee and that he had a right to revoke her shared authority over the premises. King said nothing suggesting the contrary.

. . .

In the present case, conversely, the officers asked only if King lived at the residence. Despite the red flags raised by the circumstances leading to defendant's arrest and the officers' own observations, they asked King nothing about her connection to the premises. Nor did they conduct any independent investigation such as, for example, contacting the landlord or checking utility records. It is also worth noting that no exigency required the police to proceed as they did. The police could easily have obtained a warrant to search the house as they did for the Jeep parked outside. Cf. Ladell, 127 F.3d at 624 (noting that the officers obtained consent during an ongoing domestic violence incident in which the defendant's sister and mother feared he would shoot someone). In sum, the government fails to meet its burden of showing by a preponderance of evidence that the facts were such that a person of reasonable caution would believe that King had authority to consent to a search of defendant's residence.

Permalink 08:02:41 am, by fourth, 180 words, 886 views   English (US)
Categories: General

N.D.Ala.: Pole camera on utility pole on utility's easement virtually on defendant's property not a trespass

The government put a pole camera on a pole on defendant’s property but the pole was on an easement belonging to the utility company, and this was not a Jones trespass. United States v. Nowka, 2012 U.S. Dist. LEXIS 178025 (N.D. Ala. December 17, 2012)*:

The 50-foot right-of-way was dedicated, without restriction or reservation, to the public. Thus, although the use of the utility pole for surveillance purposes, as opposed to for the provision of utilities, is a change in kind that might support a theory of trespass if the dedication had been only for utilities, those simply are not the facts of this case. As the utility pole was on a publicly-dedicated space, and as the use of the pole was not shown to have been subject to any restriction, Nowka has failed to show any constitutional violation under his trespass theory.

Officers knew that a drug deal was going down with a guy named “D” in the vehicle. They didn’t need a name to have probable cause. United States v. Williams, 2012 U.S. Dist. LEXIS 177894 (D. Vt. December 17, 2012).*

Permalink 07:31:49 am, by fourth, 171 words, 1121 views   English (US)
Categories: General

AL: Dried blood on hands subject to warrantless seizure under Cupp

Defendant was questioned for having sex with a developmentally disabled teenager who could not talk. The officer noticed dried blood on his hands, and swabbed it with distilled water. It proved to be the victim’s. The taking of the blood sample was reasonable under Cupp v. Murphy. Dardy v. State, 123 So. 3d 543 (Ala. Crim. App. 2012):

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12/18/12

Permalink 12:47:02 pm, by fourth, 227 words, 1282 views   English (US)
Categories: General

Paragould.com: "Armed task force to patrol streets / Police chief says citizens could be subject to ID checks"

Paragould.com: Armed task force to patrol streets / Police chief says citizens could be subject to ID checks by Ryan Saylor:

In response to a recent increase in crime, Paragould Mayor Mike Gaskill and Police Chief Todd Stovall offered residents at a town hall meeting Thursday night at West View Baptist Church what could be considered an extreme solution — armed officers patrolling the streets on foot.

Stovall told the group of almost 40 residents that beginning in 2013, the department would deploy a new street crimes unit to high crime areas on foot to take back the streets.

"[Police are] going to be in SWAT gear and have AR-15s around their neck," Stovall said. "If you're out walking, we're going to stop you, ask why you're out walking, check for your ID."

Stovall said while some people may be offended by the actions of his department, they should not be.

"We're going to do it to everybody," he said. "Criminals don't like being talked to."

The police chief is a fool who is obviously so untrained in the Fourth Amendment he has no qualified immunity. See Malley v. Briggs, 475 U.S. 335, 341 (1986): "As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law."

See also ArkansasTimes Blog late Tuesday.

Update: Clarification from the Paragould P.D.

Permalink 07:01:38 am, by fourth, 583 words, 2297 views   English (US)
Categories: General

CA4: Police officers get qualified immunity in Duke lacrosse civil case

In the Duke lacrosse case, on the Fourth Amendment malicious prosecution issue, police officers who told the prosecutor that the case was weak and presented him what exculpatory evidence they had were entitled to qualified immunity. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012):

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Permalink 06:46:15 am, by fourth, 313 words, 1362 views   English (US)
Categories: General

C.D.Cal.: Just because e-mail SW was overbroad doesn't mean whole search is suppressed

Search warrant for e-mail was overbroad because non-searchable information was subject to search, too. Nevertheless, it was done in good faith so there is no suppression. United States v. Roy, 2012 U.S. Dist. LEXIS 177674 (C.D. Cal. December 13, 2012):

Defendant also moves to suppress the e-mail search warrant in this case, arguing that the search and seizure was unreasonable because the warrant was a general warrant and overbroad in scope. Few cases in the Ninth Circuit or elsewhere have addressed the standard of particularity that should be applied with respect to an e-mail search warrant. The cases that have addressed the issue, however, have held that the burden remains on the government to prove how the warrant application will segregate information regarding third parties from information relating to the defendant.

In this case, the Court holds that the government has not met its burden of setting forth the items to be seized with particularity. The information sought by the warrant lacks protocol that would affirmatively segregate the target information from information outside the scope of the warrant. The warrant is therefore overbroad.

The inquiry does not end there, however. Where the police did not act in bad faith, and as such, suppression of the evidence would not deter police misconduct, the district court, may, in its discretion, admit the evidence over the objection of the defendant. Illinois v. Gates, 462 U.S. 213 (1983). In fact, exclusion of the evidence is a last resort. Hudson v. Michigan, 547 U.S. 586 (2006).

In this case, the court finds that exclusion of the evidence would not be warranted. The seizure was reasonably conducted, and the evidence of criminal activity was properly seized. In executing the warrant, the investigating agents aptly followed the contours of the warrant. Consequently, the underlying justification for the exclusionary rule would not be served by excluding the e-mails, and accordingly, the Court denies defendant's motion to suppress.

Permalink 06:37:08 am, by fourth, 330 words, 1205 views   English (US)
Categories: General

TN: State showed compelling interest for DL roadblock

Defendant was stopped at a driver’s license check roadblock which found him DWI, and he was indicted as an habitual DWI offender. The state proved a compelling state interest in setting up this DL roadblock because nearly 14% of all fatal crashes in the state involved drivers with no valid DL. State v. Monk, 2012 Tenn. Crim. App. LEXIS 1022 (December 12, 2012):

The Hicks Court held that the "presence of a sufficiently compelling interest is necessary under Article I, section 7 before an examination of the other aspects of a roadblock may proceed." Hicks, 55 S.W.3d at 527. As we earlier noted, the State may not merely rely on its general interest in maintaining highway safety. Id. at 530. It must produce "some proof of the need to curb a substantial and imminent threat to the safety of motorists on public roads distinctly resulting from the conduct of unlicensed drivers."

The State provided statistics indicating that 13.9% of all fatal crashes statewide in 2008 involved drivers with revoked licenses, suspended licenses, or no license. Additional statistics revealed that 25.8% of the drivers involved in accidents between 2005 and 2009 in Sullivan County were charged with driver's license related charges. The Defendant complains that the State did not break down the charges to categories indicating if the driver was cited for driving on a revoked license, driving on a suspended license, or, as is the case here, driving after being declared a Habitual Motor Vehicle Offender. We do not think this distinction undermines the proof that approximately one fourth of the accidents in Sullivan County involved unlicensed drivers. The State has provided statistics in support of its contention that the roadblock is related to maintaining highway safety. These statistics provide individualized suspicion and support the conclusion that unlicensed drivers are an imminent threat to the safety of motorists on the public roads in Tennessee and, specifically, in Sullivan County. We conclude that the record does not preponderate against the trial court's finding that the State demonstrated a sufficiently grave public concern.

Permalink 06:30:49 am, by fourth, 77 words, 1122 views   English (US)
Categories: General

NPR: "Teenager's Faith At Odds With Locator Tags In School IDs"

NPR: Teenager's Faith At Odds With Locator Tags In School IDs by Wade Goodwyn:

A federal court in Texas on Monday will take up the case of a high-school student who refuses to wear her location-tracking school ID.

The 15-year-old sophomore says the ID badge, which has an embedded radio frequency identification tag, is a violation of her rights. The student, Andrea Hernandez, believes the ID is "the mark of the beast" from the Book of Revelation.

Permalink 06:20:36 am, by fourth, 125 words, 1272 views   English (US)
Categories: General

ABAJ: "Kagan Sees Privacy as One of Most Important Future Issues for Court"

ABAJ: Kagan Sees Privacy as One of Most Important Future Issues for Court by Debra Cassens Weiss:

Justice Elena Kagan highlighted a future important issue for the U.S. Supreme Court and reflected on a past high-profile remark in a speech on Thursday evening.

Kagan said privacy in a changing world is a big issue likely to come before the court, Politico reports. She spoke in a question and answer session at a Washington, D.C., synagogue.

Kagan said former Justice Louis Brandeis was aware of the importance of the issue, according to the Politico account. He “understood how new technologies interfere with privacy, which I think will be one of the most important issues before the court in the decades to come,” Kagan said.

Permalink 06:06:56 am, by fourth, 226 words, 937 views   English (US)
Categories: General

LA4: Tugging at one's pants belies a gun and can justify a frisk

The juvenile was with three others three minutes before curfew walking in the middle of the street. The officer told them to come over toward the police car so he could tell them to walk on the sidewalk, and he was also curious about where they lived since curfew was in minutes. The juvenile tugged at his pants like a gun was weighing them down, in the officer’s experience. That justified a patdown for the weapon that was found. State in the Interest of T.H., 2012 La. App. LEXIS 1645 (La.App. 4 Cir. December 12, 2012).

“Here, the officers did no more than they were authorized to do by Terry. The approach of the defendant, on a public street, by officers who wore no uniforms and therefore identified themselves by displaying their badges, and who neither displayed any weapons nor engaged in hostile or aggressive actions towards the defendant, did not impinge upon any constitutionally protected interest of the defendant.” Commonwealth v. Damelio, 83 Mass. App. Ct. 32 (December 14, 2012).*

Defendant was stopped for a traffic offense, and the officer asked for his DL and papers. Sitting on the seat next to the driver was a crumpled brown paper bag. The officer asked for the bag, and in it was cocaine. The turning over the bag was by consent, not a response to a command. State v. Milton, 104 So. 3d 414 (La. 2012).*

12/17/12

Permalink 07:39:19 am, by fourth, 569 words, 877 views   English (US)
Categories: General

NJ: Stop of man merely for being same race as a wanted man was unreasonable; PV warrant found led to search which was suppressed

Defendant was stopped coming out of an apartment building because he was the same race as a man wanted in an arrest warrant who was thought to be there. Defendant refused to give his name. Parole officers came to the scene and recognized defendant, not as the man wanted, but as a PV. He was searched and drugs were found. The stop of the defendant was for merely being the same race as a wanted man, with no other sign of criminality. Under the Brown v. Illinois attenuation factors, this was not attenuated. Applying the exclusionary rule is necessary to protect privacy of the people. The search incident to the PV warrant is suppressed. State v. Shaw, 213 N.J. 398, 64 A.3d 499 (2012):

Although the exclusionary rule "may vindicate the Fourth Amendment rights of a particular defendant, and more generally the privacy rights of all persons," it also may "depriv[e] the jury or judge of reliable evidence that may point the way to the truth." Id. [State v. Williams, 192 N.J. 1, 16, 926 A.2d 340 (2007)] at 14-15, 926 A.2d 340 (citations omitted). Because of the high price exacted by suppressing evidence, "the exclusionary rule is applied to those circumstances where its remedial objectives can best be achieved." Id. at 15, 926 A.2d 340 (citing Calandra, supra, 414 U.S. at 348, 94 S. Ct. at 620, 38 L. Ed. 2d at 571). Thus, when law enforcement officials secure evidence that is sufficiently independent of the illegal conduct -- evidence that is not tainted by the misdeed -- then withholding evidence from the trier of fact is a cost that may not be justified by the exclusionary rule. Badessa, supra, 185 N.J. at 311, 885 A.2d 430.

. . .

Significantly, two of the courts cited above suggested that the random stopping of people in the hope of picking up some on outstanding warrants is the type of flagrant or purposeful conduct that would weigh against a warrant serving as a determinative intervening circumstance. See Brendlin, supra, 195 P.3d at 1082; McBath, supra, 108 P.3d at 249. In Brendlin, supra, the California Supreme Court indicated that where a seizure is "undertaken as a fishing expedition, the third Brown factor will make it unlikely that the [State] would be able to demonstrate an attenuation of the taint of the initial unlawful seizure." 195 P.3d at 1082. The Brendlin court contrasted the "fishing expedition" scenario with "a chance discovery of an outstanding arrest warrant in the course of a seizure that is later determined to be invalid." Ibid. (internal quotation marks and citations omitted).

Similarly, the Alaska appellate court in McBath, supra, observed that an arrest warrant may not constitute a determinative intervening circumstance "where the police conducted an unjustifiable 'dragnet' investigative stop of many people, hoping to find some for whom there were outstanding arrest warrants." 108 P.3d at 249. In such a case, "the flagrance of the police misconduct may still require suppression of the evidence." Ibid.

There is a difference between an unlawful motor vehicle or investigatory stop in which, incidental to the stop, the police learn about an outstanding warrant and, as here, an unlawful stop executed for the specific purpose of ascertaining whether a suspect is the subject of an arrest warrant. That is a point clearly made in People v. Mitchell, 355 Ill. App. 3d 1030, 824 N.E.2d 642, 291 Ill. Dec. 786 (Ill. App. 2005) (cited with approval in Brendlin, supra, 195 P.3d at 1082).

People v. Brendlin, 45 Cal. 4th 262, 85 Cal. Rptr. 3d 496, 195 P.3d 1074 (2008)
McBath v. State, 108 P.3d 241, 242, 248 (Alaska App. 2005)

Permalink 12:13:59 am, by fourth, 121 words, 920 views   English (US)
Categories: General

N.D.Ala.: Defendant volunteered consent before he was asked

In the dashcam video, defendant consented to a search of his vehicle without even being asked, and it was voluntary. United States v. McGowan, 2012 U.S. Dist. LEXIS 177630 (N.D. Ala. October 30, 2012).*

The stop of the vehicle was with probable cause, and the officer developed reasonable suspicion that defendant was not legally in the country. The stop was not overlong and was reasonable. United States v. Munoz, 2012 U.S. Dist. LEXIS 177633 (D. S.D. October 10, 2012).*

An officer unexpectedly ran into defendant and asked defendant whether he had a gun. It was not in an accusatory tone, and defendant fled. He was not seized at the point the question was asked. United States v. Sanchez, 2012 U.S. Dist. LEXIS 177623 (D. Mass. December 14, 2012).*

Permalink 12:02:57 am, by fourth, 196 words, 1781 views   English (US)
Categories: General

D.S.C.: Under Randolph the police can wait for defendant to leave and ask a joint occupant for consent

Defendant was not prejudiced by defense counsel’s failure to move to suppress his girlfriend’s written consent. He was removed from the premises on arrest, and the police had no duty under Randolph to seek consent from him. United States v. Swain, 2012 U.S. Dist. LEXIS 177193 (D. S.C. December 14, 2012). [Yes, the police can wait for their suspect to leave and then seek consent from somebody with apparent authority.]

The officer stopped defendants walking on the street because they matched the description of two men who robbed a cell phone store. His lights were on and he commanded them to stop and show their hands with his hand on his gun. That was a seizure, and it was with reasonable suspicion. United States v. Brown, 2012 U.S. Dist. LEXIS 176658 (D. Mass. December 12, 2012).*

Defendant consented to a time-limited search of his cell phone. He was asked for consent, and he said he would except that he wanted the phone back that day so he could use it as an alarm clock the next morning. When asked for clarification, he reaffirmed. The search was by consent. United States v. Weisinger, 2012 U.S. Dist. LEXIS 177129 (D. Vt. December 11, 2012).*

12/16/12

Permalink 01:11:32 pm, by fourth, 148 words, 1388 views   English (US)
Categories: General

D.D.C.: Jones on remand: no suppression of GPS because good faith exception applies

Antoine Jones won his landmark case holding GPS tracking requires a warrant, but he loses on remand to the good faith exception. United States v. Jones, 908 F. Supp. 2d 203 (D. D.C. 2012):

Defendant, with the support of an amici curiae brief filed by Electronic Frontier Foundation and Center for Democracy & Technology (Brief Amici Curiae in Support of Defendant Jones' Motion to Suppress, Aug. 13, 2012 [ECF No. 644] ("Amicus Br.")), argues that under the Fourth Amendment, the government was required to obtain a warrant based on probable cause prior to tracking Jones' location based on cell-site data provided by a third party provider for a four-month period of time. The Court, however, need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies.

Such is the nature of Fourth Amendment litigation in the modern era. Get used to it.

Permalink 12:17:22 pm, by fourth, 313 words, 728 views   English (US)
Categories: General

D.Kan.: Uncorroborated tip for school strip search doesn't overcome qualified immunity; it's plaintiff's burden

An uncorroborated tip led to a strip search of a female student in school. Nothing was found, and the student was threatened with trouble if she talked about it. The question is close, but the court finds that plaintiff did not show sufficient precedent that an uncorroborated tip is not enough for a school search to overcome qualified immunity. S.S. v. Turner Unified School District No. 202, 2012 U.S. Dist. LEXIS 177180 (D. Kan. December 14, 2012)*:

The court recognizes in that responding to a qualified immunity challenge, plaintiff is not required to find Supreme Court or Tenth Circuit cases with precisely the same facts. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). But plaintiff must demonstrate that the right allegedly violated is clearly established in a more particularized and relevant sense:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in light of the pre-existing law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted).

As one example, plaintiff could have identified Supreme Court or Tenth Circuit case law discussing whether an informant's tip justified a finding of reasonable suspicion in the school setting or in other circumstances. See, e.g., United States v. Chavez, 660 F.3d 1215, 1222 (10th Cir. 2011) (discussing relevant factors in determining whether a tip provides reasonable suspicion). But plaintiff did not make this showing or engage in this analysis. And it is not the court's job to search the case law and create arguments on plaintiff's behalf. Accordingly, plaintiff has not carried her burden and demonstrated that the right allegedly violated was clearly established. Hillidard v. City & Cnty. of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991); ...

Permalink 12:10:09 pm, by fourth, 138 words, 603 views   English (US)
Categories: General

IL: Officer's own testimony didn't support that defendant was evading

There was no indication from the officer's testimony that defendant saw the police car and continued to drive, was attempting to evade the police, or otherwise acted in a furtive manner. Therefore, the motion to suppress should have been granted. People v. Petty, 2012 IL App (2d) 110974, 981 N.E.2d 1157 (2012).*

The trial court’s findings of consent are supported by the record. Defense counsel’s state constitutional argument would fail if it had been made. State v. Kiche, 826 N.W.2d 516 (Iowa App. 2012).*

Defendant was charged with false pretenses and false identity for holding himself out as a lawyer to get money from somebody to represent them in a criminal case. He was pro se at trial, and his Fourth Amendment claim is waived for not presenting it to the circuit court first. Patton v. State, 109 So. 3d 66 (Miss. 2012).*

Permalink 11:56:04 am, by fourth, 393 words, 643 views   English (US)
Categories: General

D.Neb.: Search of defendant's car for officer safety was too intense, a de facto search incident, and unreasonable

The search of defendant’s car was not based on officer safety; it was a de facto search incident without probable cause under the guise of officer safety, and the motion to suppress is granted. A search of a closed container was unreasonable. United States v. Morgan, 2012 U.S. Dist. LEXIS 175192 (D. Neb. December 11, 2012):

By his own admission, Officer Normandin searched the vehicle immediately after removing the occupants from the car. Importantly, this case does not involve a traffic stop, where the violation of a traffic law would support a suspicion of criminal activity. The defendant was sitting with two other people in the well-lit parking lot of an open business. Although it was 12:45 a.m., the late hour alone and the fact that people were in a car does not automatically signal an inherently dangerous situation. Any suspicion of illegal activity prompted by the occupants' behavior in ducking down and reaching under the seat would have been explained by the officers' observation of open containers in the vehicle. The officers herein did not conduct a limited Terry-type inquiry in order to confirm or dispel their suspicions; they proceeded to immediately search the vehicle as if the search were "a police entitlement," rather than an exception justified by the twin rationales of officer safety and evidence preservation.

Moreover, the officers' conduct with respect to the closed container found in the search of the vehicle requires a separate analysis. The government has not argued or shown that the detention of the box was so minimally invasive that strong countervailing governmental interests justified a seizure based on specific articulable facts that the lockbox contained contraband or evidence of a crime. The court finds the removal of the lockbox from the car was a meaningful interference with the defendant's possessory interests and finds the lockbox was seized when it was removed from the vehicle. The later investigative procedure—opening the box—was a search itself requiring probable cause, so the initial seizure cannot be justified on less than probable cause.

The officers did not have probable cause to believe that the vehicle contained contraband or other evidence of a crime to support the seizure and subsequent search of the lockbox found under the seat of the defendant's car. Officer Normandin explicitly disavowed any suspicion of drug trafficking. He stated that his only concern was officer safety. ...

Permalink 10:22:23 am, by fourth, 161 words, 560 views   English (US)
Categories: General

OH9: Acquittal on basis for stop doesn't mean motion to suppress stop would have been granted

Defendant was acquitted of a weaving offense, but convicted of DUI for driving on the wrong side of the road. Defense counsel was not ineffective for not moving to suppress the stop because the acquittal of the weaving charge doesn’t mean anything on the DUI and the basis for the stop. State v. Arnold, 2012 Ohio 5809, 2012 Ohio App. LEXIS 5002 (9th Dist. December 10, 2012).

A traffic stop requires reasonable suspicion, not probable cause, and the trial court erred in so finding. State v. Liebling, 2012 Ohio 5818, 2012 Ohio App. LEXIS 5011 (9th Dist. December 10, 2012).

Defendants were pulled over on suspicion of being involved in a robbery and got out of the car with hands up. That was a seizure, but it was with reasonable suspicion. The description of the robbers was not all that generic, and they fit it under the totality of circumstances, including location and dress. The detention was also reasonable in scope. United States v. Brown, 2012 U.S. Dist. LEXIS 176658 (D. Mass. December 12, 2012).*

Permalink 10:01:16 am, by fourth, 193 words, 1085 views   English (US)
Categories: General

Matt Taibbi: Too Big To Prosecute? "Outrageous HSBC Settlement Proves the Drug War is a Joke"

Rolling Stone: Outrageous HSBC Settlement Proves the Drug War is a Joke by Matt Taibbi:

If you've ever been arrested on a drug charge, if you've ever spent even a day in jail for having a stem of marijuana in your pocket or "drug paraphernalia" in your gym bag, Assistant Attorney General and longtime Bill Clinton pal Lanny Breuer has a message for you: Bite me.

Breuer this week signed off on a settlement deal with the British banking giant HSBC that is the ultimate insult to every ordinary person who's ever had his life altered by a narcotics charge. Despite the fact that HSBC admitted to laundering billions of dollars for Colombian and Mexican drug cartels (among others) and violating a host of important banking laws (from the Bank Secrecy Act to the Trading With the Enemy Act), Breuer and his Justice Department elected not to pursue criminal prosecutions of the bank, opting instead for a "record" financial settlement of $1.9 billion, which as one analyst noted is about five weeks of income for the bank.

The banks' laundering transactions were so brazen that the NSA probably could have spotted them from space. ...

Permalink 12:02:52 am, by fourth, 123 words, 1240 views   English (US)
Categories: General

PA: Defendant's front driveway not protected curtilage where his damaged car was parked and anyone could walk up

The police did not violate curtilage by walking up to defendant’s car parked in his front driveway that had been damaged in a hit-and-run, was missing a bumper, and had its airbags deployed. Commonwealth v. Simmen, 2012 PA Super 268, 58 A.3d 811 (2012).

Defendant had no standing to challenge the search of her murder victim’s car parked in the victim’s driveway. State v. Jackson, 2012 Tenn. Crim. App. LEXIS 1003 (December 10, 2012).

The trial court erred in concluding that the police, on answering a domestic dispute, were required to ask for consent from the defendant, too, under Randolph, after his girlfriend consented to a search of a drawer revealing three guns. People v Watson, 2012 NY Slip Op 8562, 101 A.D.3d 913, 955 N.Y.S.2d 411 (2d Dept. 2012).

12/15/12

Permalink 04:07:10 pm, by fourth, 511 words, 1002 views   English (US)
Categories: General

N.D.Ala.: Police entry 22 minutes before SW issued was reasonable because of exigent circumstances

A warrant was being sought, and the officers waiting for the warrant reasonably figured that their cover had been blown and it was time to secure the premises before the warrant arrived. The seizure of the house and protective sweep 22 minutes before the warrant arrived wasn’t unreasonable. United States v. Figueroa-Cruz, 914 F. Supp. 2d 1250 (N.D. Ala. 2012):

Unlike the officers entry into the apartment of Santa [United States v. Santa, 236 F.3d 662 (11th Cir. 2000)] agents at the Skyline Drive house had every reason to believe that the occupants of the house would soon be alerted to the presence of the agents. Stephens ordered an entry to "secure the scene." That stated purpose alone does not alter the fact that the entry was not authorized by a warrant. " Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency." Kentucky v. King, __ U.S. __, __, 131 S.Ct. 1849, 1862, __ L.Ed.2d __, __ (2011) citing Brigham City v. Stuart, 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Stephens stated purpose, however is relevant to the inquiry into whether he "created" exigency as they Eleventh Circuit found was the case in Santa. "A warrantless search is allowed,[], where both probable cause and exigent circumstances exist." United States v. Tobin, 923 F.2d at 1510 . Exigent circumstances exist "where the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action." United States v. Morales, 868 F.2d 1562, 1575 (11th Cir.1989). Here there was a warrantless entry and protective sweep of the house. Assuming without deciding that agents seized the drugs and money once they were seen on the counter the Supreme Court has clearly approved the warrantless seizure of property to maintain the status quo while a warrant is obtained where they would or did hold a warrantless search to be invalid. Rowlings [sic] v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). In the present case Stephens did not commence the actual search until warrant had been obtained. (Tr.7/19/12 p.39)

The agents watching the Skyline Drive location had reasonable grounds to believe that whoever was in the house would soon be alerted that some form of investigation was on going. With such knowledge the individuals may have been able to flee without detection because agents had only a limited view of the scene. The Eleventh Circuit has long expressed acceptance of the fact that the possibility of destruction of evidence is acute in narcotics cases. Tobin, 923 F.2d at 1511 (This Court has held that the need to invoke the exigent circumstances exception to the warrant requirement is "particularly compelling in narcotics cases" because narcotics can be so quickly destroyed. United States v. Young, 909 F.2d 442, 446 (11th Cir.1990)). Because both probable cause and exigent circumstances existed at the time of the warrantless seizure of the evidence which was in plain view following that entry was consistent with the requirements of the Fourth Amendment. Suppression is due to be denied.

Permalink 11:57:21 am, by fourth, 154 words, 503 views   English (US)
Categories: General

E.D.Tenn.: Defendant fails to show part of affidavit false; even it if was, it was immaterial

The USMJ granted a Franks hearing and concluded that the statements were not materially false and removing them still left probable cause. Therefore, no suppression. United States v. Houston, 2012 U.S. Dist. LEXIS 175955 (E.D. Tenn. November 21, 2012)*, R&R 2012 U.S. Dist. LEXIS 176812 (E.D. Tenn. May 29, 2012).*

In this internet traveler case, defendant twice consented to a search of his computer when he was arrested, and the hard drive was copied. After the defense raised the defense of entrapment, the police could search the copy of the hard drive they made for other chat sessions that belied his entrapment defense, showing that he chatted with four other young girls before this one. Commonwealth v. Buswell, 83 Mass. App. Ct. 1, 979 N.E.2d 768 (2012).*

The pro se appellant changed his argument between the trial court and the court of appeals, so his Fourth Amendment argument on appeal is waived. Ivy v. State, 103 So. 3d 766 (Miss. App. 2012).*

Permalink 11:30:34 am, by fourth, 223 words, 673 views   English (US)
Categories: General

IL: No exigency for warrantless entry after controlled delivery

Police were delivering marijuana to defendant’s house. They planned it for 11 hours, and they had no exigent circumstances. Worse, they never even argued exigent circumstances. People v. Krinitsky, 2012 IL App (1st) 120016, 367 Ill. Dec. 698, 982 N.E.2d 848 (2012)*:

[**P30] In this case, the State failed to argue that any exigent circumstances existed to justify the warrantless entry into defendant's apartment. Id. ("The State bears the burden of demonstrating exigent need for a warrantless search or arrest."). The police knew cannabis would be at the apartment because they were delivering it. They knew the amount of cannabis and defendant's address. Officer Graham testified that he first knew of the informant at approximately 10 in the morning on the day of the incident. Tardona did not deliver the cannabis, according to Officer Graham's testimony, until at least an hour after he met with defendant at either 9:30 or 10 p.m. that evening. The police had all day to secure an anticipatory search warrant. Accordingly, the State has not satisfied its burden in proving that exigent circumstances existed to justify the police's warrantless entry into defendant's apartment. Under the facts of this case, it was unreasonable for the police to not even attempt to get a warrant when they knew the time, place, quantity, and price of the arranged transaction and had at least 11 hours to secure a warrant.

Permalink 10:20:27 am, by fourth, 240 words, 808 views   English (US)
Categories: General

CA3: Anders brief rejected; the Fourth Amendment claim here is at least arguable and must be discussed more fully

Anders brief rejected; the Fourth Amendment claim here is at least arguable and must be discussed more fully. The court won't reject it out of hand. United States v. Telfair, 507 Fed. Appx. 164 (3d Cir. 2012)*:

In addition, the importance of the evidence seized from 185 Parker Street to the Government's case, and the circumstances of its discovery, should have alerted Mr. Azzarello that he must address the issue. The heroin found at 185 Parker Street was the source of the investigation of Telfair; if this evidence is tainted, it is not "fruit of the poisonous tree," but rather is the root of the poisonous tree. This evidence provided the foundation for the investigation and prosecution of Telfair. Without that foundation, the case collapses. Furthermore, because this quintessential evidence was discovered during a warrantless search—which is per se unreasonable, subject to a few, narrow exceptions, Katz v. United States, 389 U.S. 347, 356 (1967)—Mr. Azzarello was obligated to discuss the issue in his brief and explain why it would be frivolous to seek a reversal of the District Court's order.

Given the foregoing, Mr. Azzarello's Anders brief does not satisfy this Court that he has conducted a thorough examination of the record in search of appealable issues. Finding that his Anders brief is inadequate, we proceed to step two of the analysis, and conduct an independent review of the record to determine whether any nonfrivolous issues exist. Coleman, 575 F.3d at 321; Youla, 241 F.3d at 301.

Permalink 10:14:23 am, by fourth, 309 words, 794 views   English (US)
Categories: General

D.Minn.: Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there

Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there after a crime elsewhere. United States v. Morris, 2012 U.S. Dist. LEXIS 175977 (D. Minn. December 12, 2012):

Morris argues that there was insufficient evidence of a nexus between Morris's home and the evidence expected to be found. The Eighth Circuit has noted:

Although there must be evidence of a nexus between the contraband and the place to be searched before a warrant may properly issue, we have held that an officer executing a search warrant may rely in the permissibility of the issuing judge's inference that such a nexus exists when that inference has common sense appeal.

United States v. Houston, 665 F.3d 991, 995 (8th Cir. 2012) (citations and internal quotation marks omitted) (emphasis added). The Court concludes that, here, there was common sense appeal to the inference that evidence related to the shooting would be found in Morris's home. Connor detained Morris between the shooting site and his home, "directly on the opposite side" of his home, making it reasonable to assume his home was where he came from on his way to the shooting and where he was going. Under these circumstances, it was reasonable to infer that evidence related to the crime existed in Morris's home. See United States v. Summage, 481 F.3d 1075, 1078 (8th Cir. 2007) (finding it reasonable to infer that the defendant would have a video and photographs at his new residence where "it could be presumed that [the defendant] would maintain in his possession the video and photographs"). Specifically, the warrant sought latex gloves, firearms/ammunition, and evidence of gang affiliation, which were items that could be reasonably expected to be found in his home and not left at the scene of the crime. Accordingly, the Court will deny Morris's motion to suppress evidence stemming from the warrants.

Permalink 09:58:07 am, by fourth, 331 words, 637 views   English (US)
Categories: General

CA11: The way cash is packaged can add to probable cause

Probable cause existed for seizure of money from a car by the way it was bundled and packaged, among other things. Legitimate businesses do not transport their cash in cardboard boxes. United States v. Julian, 2012 U.S. App. LEXIS 25356 (11th Cir. December 12, 2012)*:

In determining whether probable cause existed at the time of a seizure of alleged drug proceeds, we evaluate whether, given a commonsense view of "the realities of normal life" and the totality of the circumstances, there is "probable cause to believe that the money is the proceeds of, or is otherwise connected to, any illegal drug transaction." Id. Even where the evidence presented by the government would support an alternative hypothesis for the source of funds, this does not prevent the evidence from being probative on the issue of probable cause. Id. ...

. . .

Here, under the totality of the circumstances, we conclude that probable cause existed for the seizure of $21,015 in cash from the car Julian was driving. Although all seven factors identified by the district court, taken together, support a finding of probable cause, the most probative of these factors are the condition of the funds and their substantial value. At the time of the traffic stop, Julian was in possession of a significant amount of cash, the vast majority of which had been rubber-banded into 20 separate bundles of $1,000 each and concealed inside of a cardboard box, and "[a] common sense reality of everyday life is that legitimate businesses do not transport large quantities of cash rubber-banded into bundles and stuffed into packages." $242,484.00, 389 F.3d at 1161. Julian had no paperwork, bank receipts, or any documentation whatsoever concerning the source of the funds. Although Julian provided an explanation for the cash's origin, the fact that his explanation could support an alternative hypothesis does not prevent the lack of documentation from being probative on the issue of probable cause. See id.

In addition, unlike in Boyce, the video of the traffic stop in the present case did not belie Woolard's testimony. ...

12/14/12

Permalink 03:10:13 pm, by fourth, 254 words, 340 views   English (US)
Categories: General

Two articles on drones

The Hill: Drone-makers push feds on test flights by Kevin Bogardus and Keith Laing:

Lobbyists for the booming drone industry are pushing the Federal Aviation Administration (FAA) to stop delaying action on a plan that will open up U.S. skies to unmanned vehicles.

The agency has yet to select six test sites that will be used to gauge the safety of drone flights, despite a mandate to do just that under the FAA reauthorization bill that passed earlier this year. That has led to pressure from the Association of Unmanned Vehicles Systems International (AUVSI) and lawmakers on Capitol Hill to get the process moving.

ComputerWorld: Tendency of law enforcement to adopt new technology without considering its impact on privacy and civil liberties 'unacceptable' to one expert by Taylor Armerding:

Drones are not just for spying and targeted assassinations in Iraq, Afghanistan and other war zones. They are also being used extensively for surveillance in the U.S.

The fact of domestic drone surveillance is not new. There have been numerous reports of Customs and Border Protection using Predator drones to monitor the nation's borders, and that multiple branches of the military are authorized to fly drones in the U.S.

But the Electronic Frontier Foundation (EFF) provided evidence last week of how extensive that use is, not only by the federal government but by local law enforcement as well, with a posting of several thousand pages of drone license records, along with a new map that tracks the location of those domestic flights.

Permalink 06:08:11 am, by fourth, 556 words, 1355 views   English (US)
Categories: General

DC: Window tint stop and movement at dashboard didn't add up to RS for Long frisk of car

Defendant’s car was stopped for too much tint, and the officer noted the car was rocking as he approached and there was movement toward the dashboard. When he got to the window he saw that the driver and passenger had switched, which they ultimately admitted because the original driver had no license. The officer got them out and handcuffed them and then did a Long frisk of the car finding cocaine in the steering wheel. The court finds the Long frisk without factual justification because, as dangerous as a traffic stop can be, this one showed all along that it wasn’t risky and reasonable suspicion did not develop. Jackson v. United States, 56 A.3d 1206 (D.C. 2012):

The same is true here: there is a logical gap between Mr. Jackson’s movement of his hands along the dashboard and the conclusion that police were confronting someone dangerous, and under our case law, “the ambiguous movement in this case cannot be the decisive fact justifying a frisk that was otherwise unwarranted.” Powell, 649 A.2d at 1091 (Farrell, J., concurring); see also Page, 298 A.2d at 237 (“Furtive movements standing alone would hardly warrant a search[.]”). The overall calculus of factors in this case unquestionably varies from that in Spinner, and Spinner’s holding that the search there violated the Fourth Amendment by no means dictates a like conclusion here. ... Yet our view that the predominant factor in the trial court's analysis in this case suffers from the same flaw as the gesture at issue in Spinner--namely, that it lacked specific indicia that it had something to do with grabbing or concealing a weapon--nevertheless becomes dispositive where the additional circumstances do not “reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Long, 463 U.S. 1032, 1049-50 (citation and internal quotation marks omitted).

...

Officer Norris’s observation that the van was rocking when he pulled it over was the other factor besides the movement of Mr. Jackson’s hands on the dash that the trial court mentioned as having heightened the officer's suspicion. ... [W]e cannot ignore the reality that Officer Norris’s concerns about the rocking van were largely dispelled when he immediately saw that the occupants had switched places and understood why the van had been rocking. Given these circumstances, and given that there is nothing about people switching places in a car that inherently suggests these people are armed and dangerous, we do not view this factor as meaningfully reinforcing the lawfulness of the search for weapons under Terry.

It is beyond question that police officers face untold dangers when they conduct traffic stops. Our task, however, is to evaluate the individualized articulable facts supporting reasonable suspicion in this case, and we would fail in that task if we were to quote Stanfield’s unbridled language and perfunctorily conclude that the van’s window tinting gave rise to reasonable suspicion in this case without checking that impulse against the facts of this case. ...

The stop in this case lacked many of the hallmarks of a particularly dangerous situation. The offense for which the officer stopped the van—illegal window tinting—was a minor one that prompted Officer Nelson to give Mr. Jackson only a verbal warning and to explain the law to him. ...

There is a dissent.

12/13/12

Permalink 04:35:35 am, by fourth, 145 words, 369 views   English (US)
Categories: General

Cal.3d: Hearsay from dispatch that defendant had DWI priors didn't make arrest for felony DWI violate the Fourth Amendment

Defendant’s arrest was based on his driving and BAC. It was raised to a felony by the officer after dispatch reported priors. This isn’t improper as reliance on hearsay under the Fourth Amendment. People v. Conley, 211 Cal. App. 4th 953, 150 Cal. Rptr. 3d 334 (3d Dist. November 8, 2012), Rehearing granted, Depublished by, Vacated by People v. Conley, 2013 Cal. App. LEXIS 96 (Cal. App. 3d Dist., Jan. 2, 2013).

Illegal tint led to strong smell of air freshener, nervousness and implausible story and a drug dog also led to a federal fugitive being found. The stop was not too long. Mordica v. State, 319 Ga. App. 149, 736 S.E.2d 153 (2012).*

Suppression of the stop here might have been on a misinterpretation of the statute requiring a turn signal, so the case is remanded to the trial court to specify what’s going on. People v. Tramble, 2012 IL App (3d) 110867, 980 N.E.2d 1254 (2012).*

Permalink 04:19:59 am, by fourth, 325 words, 389 views   English (US)
Categories: General

D.Neb.: Unspecific report of robberies in the area didn't support this stop; furtive movement alone didn't justify arrest

Defendant’s detention, frisk, and search was without reasonable suspicion. It quickly evolved into a de facto arrest. There were general reports of robberies in the area, but nothing related to this stop. The officers’ heavy handedness was also a factor in finding a Fourth Amendment violation. United States v. Morgan, 2012 U.S. Dist. LEXIS 175192 (D. Neb. December 11, 2012)*:

The factors that courts consider in determining whether an investigative detention has become an arrest weigh in favor of finding an arrest. This is not the case of a lone law enforcement officer-two officers were involved from the outset and more officers arrived on the scene shortly thereafter. At least two squad cars were present. The nature of the crime under investigation was ostensible robbery, but there was no testimony with respect to number or locations of the robberies, whether the alleged robbers were armed, and no description of either suspects or vehicles involved. The officers' articulable suspicions were weak. The only suspicious behavior was reaching under the automobile seat. Pat-downs of the defendant and his companions yielded no weapons or contraband. There is no evidence that the defendant was violent, uncooperative or aggressive. Other than the defendant's gesture of reaching under the seat, there was no reason to suspect the defendant was armed and dangerous. There was no need for immediate action by the officer.

Also, there was an opportunity for the officer to have conducted himself in a less threatening manner. Officer Normandin did not testify as to any facts indicating a need to handcuff the defendant and the two young women once they were removed from the vehicle.

The government's reliance on "officer safety" concerns to justify their actions in this case are perplexing. The court finds the officers have not shown a reasonable belief based on specific articulable facts that the defendant posed a threat of harm or danger once the defendants and passengers had been removed from the vehicle and patted down. ...

Permalink 04:18:22 am, by fourth, 192 words, 561 views   English (US)
Categories: General

D.Kan.: Frequenting a grow supply store plus MJ in a trash pull justifies a SW for a grow operation

Officers had probable cause to believe defendant had a grow operation based on his buying stuff at a store specializing in that and a trash pull finding marijuana leaves. An email in the trash pull that referred to the drug operation justified a search of his computer. Child pornography was stumbled upon in that search. Alternatively, the search warrant was valid under the good faith exception. United States v. Ellis, 2012 U.S. Dist. LEXIS 174367 (D. Kan. December 10, 2012).*

A 2255 can’t relitigate a denied motion to suppress. United States v. Brown, 2012 U.S. Dist. LEXIS 174515 (N.D. Ohio December 7, 2012).*

Defendant’s arrest was justified by probable cause, so the search of her person was valid incident to the arrest. United States v. Ortiz, 2012 U.S. Dist. LEXIS 174514 (D. Minn. November 20, 2012).*

This knock-and-talk was valid. Three LEOs were clearly identified and no guns were drawn. United States v. Poom-Medina, 2012 U.S. Dist. LEXIS 175222 (D. Ariz. December 11, 2012).*

Defendant was stopped for an expired tag, which was a valid stop. After he was out of the car, he fled, and that was another crime. United States v. Holifield, 2012 U.S. Dist. LEXIS 174597 (E.D. Tenn. September 27, 2012).*

Permalink 03:49:39 am, by fourth, 170 words, 343 views   English (US)
Categories: General

D.S.D.: While the affidavit for the search warrant was conclusory and lacking PC, it wasn't so lacking that the GFE shouldn't apply

The court concludes that the affidavit was lacking in probable cause for the search because it was conclusory. Nevertheless, the issuing magistrate did not abandon her judicial role, and the good faith exception would be applied to sustain the search. United States v. Farlee, 2012 U.S. Dist. LEXIS 175351 (D. S.D. October 9, 2012) (R&R), adopted 910 F. Supp. 2d 1174 (D. S.D. 2012)*:

Here, the issuing judge signed both warrants after she read the affidavits submitted by Detective LeBeau. Although probable cause did not exist based on the terse and conclusory nature of the affidavits, this Court cannot conclude Judge Jeffries abandoned her judicial role. ...

[T]his is not one of those "unusual cases in which exclusion will further the purposes of the exclusionary rule" because the judge did not completely abandon her judicial role and the search was not objectively unconstitutional. Leon, 468 U.S. at 918. This Court adopts Judge Moreno's Report and Recommendation in refusing to suppress the physical evidence because the good faith exception to the warrant requirement applies.

12/12/12

Permalink 06:22:37 pm, by fourth, 261 words, 386 views   English (US)
Categories: General

N.D.Ohio: It's hard to show an omission of disputed fact shows a Franks violation; remainder here showed PC

Defendant failed to show that omission of disputed facts from the affidavit for the search warrant constituted a Franks violation. What was there showed probable cause, and including what was omitted wouldn’t have changed anything. United States v. Miller, 2012 U.S. Dist. LEXIS 174509 (N.D. Ohio December 10, 2012):

While "false information" can include material omissions, the Sixth Circuit has "repeatedly held that there is a higher bar for obtaining a Franks hearing on the basis of an allegedly material omission as opposed to an allegedly false affirmative statement." United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008) ("Allegations of material omission are held to a higher standard because of the 'potential for endless rounds of Franks hearings' due to potentially 'endless conjecture about investigative leads, fragments of information, or other matter[s] that might, if included, have rebounded to defendant's benefit.'" (quoting United States v. Martin, 920 F.2d 393, 398 (6th Cir. 1990)). The Sixth Circuit has reiterated that "except in the very rare case where the defendant makes a strong preliminary showing that the affiant with an intention to mislead excluded critical information from the affidavit, and that omission is critical to the finding of probable cause, Franks is inapplicable to the omission of disputed facts." Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998) (emphasis in original). Thus, "an affidavit which omits potentially exculpatory information is less likely to present a question of impermissible official conduct than one which affirmatively includes false information." United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997).

P.S.: Defendant's street name in the indictment is "Jesus Penis."

Permalink 07:04:26 am, by fourth, 285 words, 1237 views   English (US)
Categories: General

CA1: Even a small gas explosion in a house with injury justifies firefighter entry

Defendant called 911 because of a small propane tank exploding, severing the tip of his finger and cutting him. The 911 dispatcher did not limit the size of the tank, and firefighters responded. Through a window they could see blood and heard the sound of running water. Defendant had cuts on his chest, too, and he explained the explosion. While the explosion was not great, based on all the firefighters knew, an entry was justified, and marijuana plants and pipe bombs were in plain view. United States v. Infante, 701 F.3d 386 (1st Cir. 2012):

Based on these facts, the firefighters had a reasonable basis, approximating probable cause, both to believe that there was an emergency and to associate the emergency with the inside of Infante's residence. Infante's reports of an explosion involving volatile gas, whether propane or butane, coupled with his significant wounds that were consistent with the occurrence of an explosion, caused the firefighters to reasonably perceive an emergency -- the prospect of a secondary explosion resulting from escaping gas. Under these circumstances, the danger of a secondary explosion is akin to that of a rekindling fire that the Supreme Court identified in Tyler as a continuing danger that justified fire officials' remaining in a building for a reasonable time after extinguishing a fire in order to promptly investigate its cause. See Tyler, 436 U.S. at 510; see also Michigan v. Clifford, 464 U.S. 287, 293 (1984) ("Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases."). Indeed, relying in part on the Court's reasoning in Tyler, a number of our circuits have held that the presence of potentially explosive chemicals can justify warrantless entry into a home. ...

Permalink 07:00:57 am, by fourth, 551 words, 324 views   English (US)
Categories: General

CA11: 25 day delay in getting SW after revo of consent was not unreasonable here

Defendant was the subject of a child pornography knock-and-talk, and he consented to the government seizing his computers to look for child porn which he admitted was on his computers. He asked to copy files he needed for school work, and they let him. The next day, his attorney wrote the FBI and revoked his consent to the search and seizure of the computers, and 25 days later, the FBI submitted a search warrant request to a USMJ who sat on it for another six days because he was in a habeas hearing. On the totality, the 25 days was not an unreasonable seizure. This was a small FBI office, and their delay was not unreasonable considering defendant was given access to the files he needed, and he didn’t ask for me. While his possessory interest was interfered with, it wasn’t unreasonably interfered with. United States v. Laist, 702 F.3d 608 (11th Cir. 2012):

Since there is no "per se rule of unreasonableness," McArthur, 531 U.S. at 331, the devil, as always, is in the details. The essential question boils down to this: whether the 25-day delay in this case was unreasonable. We hold that it was not. Initially, there is no doubt that Laist retained a significant possessory interest in his computer and his hard drives. See Mitchell, 565 F.3d at 1351. The interference with Laist's possessory interest was not insubstantial, inasmuch as the FBI held his computer and hard drives for 25 days without his consent.

However, Laist's possessory interest in the contents of these possessions was diminished for several reasons. First, the district court found that Laist was afforded the opportunity to remove "whatever he wanted to download" from the computer and hard drives, and, notably, Laist did in fact remove files he needed for school. As the district court put it, "It is my understanding from the evidence that there was no limitation about this ... . [I]t [i]s clear from the record that if he wanted to take other things off at the time he also could have done that." Since the possessory interest in a computer derives from its highly personal contents, the fact that Laist had a real opportunity to copy or remove personal documents reduces the significance of his interest. Indeed, although Laist revoked consent on March 12, 2009, he did not request any additional files prior to the time the FBI obtained the search warrant on April 13, 2009, and there is no indication in this record that the FBI would have denied a request to retrieve additional non-contraband material on the computer. In the second place, Laist not only admitted to the presence of illicit images on the computer, which standing alone already diminishes his possessory interest, see Mitchell, 565 F.3d at 1351, he actually showed an image of child pornography to the FBI agents during the course of the interview. This fact both diminishes Laist's interest further while also enhancing the government's legitimate interest in maintaining custody of the computer and hard drives as substantial evidence of a serious federal crime.

Nevertheless, since Laist retained a possessory interest, albeit a diminished one in his computer, the Fourth Amendment still obligated the United States to "diligently obtain[] a warrant." McArthur, 531 U.S. at 334. On this record, we are convinced the government acted diligently, and thus reasonably, based on several critical facts. ...

12/11/12

Permalink 06:32:04 pm, by fourth, 155 words, 1191 views   English (US)
Categories: General

Wired: "Public Buses Across Country Quietly Adding Microphones to Record Passenger Conversations"

Wired: Public Buses Across Country Quietly Adding Microphones to Record Passenger Conversations by Kim Zetter:

Transit authorities in cities across the country are quietly installing microphone-enabled surveillance systems on public buses that would give them the ability to record and store private conversations, according to documents obtained by a news outlet.

The systems are being installed in San Francisco, Baltimore, and other cities with funding from the Department of Homeland Security in some cases, according to the Daily, which obtained copies of contracts, procurement requests, specs and other documents.

The use of the equipment raises serious questions about eavesdropping without a warrant, particularly since recordings of passengers could be obtained and used by law enforcement agencies.

It also raises questions about security, since the IP audio-video systems can be accessed remotely via a built-in web server (.pdf), and can be combined with GPS data to track the movement of buses and passengers throughout the city.

12/10/12

Permalink 06:36:48 am, by fourth, 143 words, 507 views   English (US)
Categories: General

WA: Confronting students about skipping school to smoke dope was a stop

An officer confronting students allegedly skipping school to question them about smoking marijuana was not a mere “social contact” and became a detention. State v. Guevara, 172 Wn. App. 184, 288 P.3d 1167 (December 6, 2012).*

The officer was given consent to look in the car. While the officer was looking at the bumper, he could tell the defendant’s stress level went “through the roof.” He noticed that the screws around the inside of the trunk were worn from being removed repeatedly, and plastic push pins were broken. That led to reasonable suspicion to detain for a drug dog. State v. Ochoa, 2012 Tenn. Crim. App. LEXIS 999 (December 7, 2012).*

Because defendant’s backup lights came on when he hit the brakes, the officer was justified in concluding that the brake lights were not in working order, and that justified the stop. State v. Gonzalez, 2012 Tenn. Crim. App. LEXIS 990 (December 5, 2012).*

Permalink 06:14:52 am, by fourth, 204 words, 1326 views   English (US)
Categories: General

OH's three exigent entry cases in two days

There was no justification for a warrantless entry into defendant’s house to check on her welfare after an accident. The only information the police had was that she was not injured. There was no exigency because this was not a hot pursuit under Welsh; the police didn’t even see the accident. City of Cleveland v. Lynch, 2012 Ohio 5740, 2012 Ohio App. LEXIS 4942 (8th Dist. December 6, 2012).

There was a warrantless entry into defendant’s house based on a shots fired call and the police arrived there three minutes after the call. No evidence from that entry was admitted at trial, so there could be no error. State v. Cowan, 2012 Ohio 5723, 2012 Ohio App. LEXIS 4927 (8th Dist. December 6, 2012).*

The officer was sent to the house on a welfare check, and it was dark and remote. Cars were in the driveway, but there was no answer at the door which was unlocked and ajar. The officer pushed open the door, and the room looked ransacked like the place had been burglarized. Drugs were seen in plain view. While this was a “close call,” the court decides that this was a valid welfare check entry based on the totality. State v. Hallam, 2012 Ohio 5793, 2012 Ohio App. LEXIS 4981 (2d Dist. December 7, 2012).*

12/09/12

Permalink 09:20:59 am, by fourth, 107 words, 540 views   English (US)
Categories: General

TX4: Erroneous NCIC report was still PC

Officers have a right to rely on NCIC information about priors, and the fact it later turned out to be inaccurate did not deprive it of being probable cause at the time of the stop. State v. Flores, 392 S.W.3d 229 (Tex. App. – San Antonio 2012).

A passenger producing a “blunt” is probable cause that there is other contraband in the vehicle. State v. Mitchell, 2012 N.C. App. LEXIS 1374 (December 4, 2012).*

The totality of circumstances provided the police with reasonable suspicion that defendant had drugs in his vehicle because of good information about an earlier meth buy. United States v. Valencia, 2012 U.S. Dist. LEXIS 173269 (W.D. Ky. September 14, 2012).*

Permalink 09:08:43 am, by fourth, 140 words, 1507 views   English (US)
Categories: General

E.D.Cal.: SW for MMJ dispensary's employee's home for MJ was issued without PC

The search warrant for defendant’s house was issued without probable cause. The fact somebody worked in a medical marijuana operation in a state recognizing it is hardly indicative of criminality at his home. When undercover officers tried to buy from the dispensary, they were turned down because their “recommendations” could not be verified. United States v. Franklin, 2012 U.S. Dist. LEXIS 172808 (E.D. Cal. December 4, 2012).

The affidavit for search warrant was not based on stale information. While part of it was years old, it contained current information which showed it to be an ongoing drug operation. State v. Thomas, 2012 Ohio 5577, 2012 Ohio App. LEXIS 4855 (3d Dist. December 3, 2012).*

The search of defendant’s house was not incident to the arrest warrant; it was based on defendant’s parole agreement. United States v. Johnson, 2012 U.S. Dist. LEXIS 172163 (N.D. Ga. April 24, 2012).*

Permalink 09:02:03 am, by fourth, 279 words, 1110 views   English (US)
Categories: General

OH11: Motion in limine v. motion to suppress

A motion to suppress the Intoxilyzer 8000 test result for lack of scientific basis was not proper; it should have been a motion in limine. State v. Miller, 2012 Ohio 5585, 983 N.E.2d 837 (11th Dist. 2012):

[*P14] The purpose and effect of a motion to suppress and a motion in limine are distinct. A "motion to suppress" is defined as a "[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation etc.), of U.S. Constitution." Black's Law Dictionary (6 Ed. 1990) 1014. Thus, a motion to suppress is the proper vehicle for raising constitutional challenges based on the exclusionary rule first enunciated by the United States Supreme Court in Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, T.D. 1964, and made applicable to the states in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513. Further, this court has held that the exclusionary rule will not ordinarily be applied to suppress evidence which is the product of police conduct that violates a statute but falls short of a constitutional violation, unless specifically required by the legislature. Kettering v. Hollen (1980), 64 Ohio St.2d 232, 235, 18 O.O.3d 435, 437, 416 N.E.2d 598, 600. An important characteristic of a motion to suppress is that finality attaches so that the ruling of the court at the suppression hearing prevails at trial and is, therefore, automatically appealable by the state. R.C. 2945.67(A); [former] Crim.R. 12(J); see, also, State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477 N.E.2d 1141.

Permalink 08:17:15 am, by fourth, 129 words, 392 views   English (US)
Categories: General

W.D.Ky.: Officers can rely on experience and training in totality of circumstances

Under the totality of circumstances, “[o]fficers in conducting such an investigation are fully entitled to rely upon their professional experience and specialized training to draw inferences from and make deductions about the cumulative information available to them, information that might well seem entirely innocuous to the untrained eye.” United States v. Valencia, 2012 U.S. Dist. LEXIS 173269 (W.D. Ky. September 13, 2012).*

In a combined suppression hearing and bench trial, the defense properly preserved the objection to the admission of the evidence for appeal. The search of the defendant’s person was invalid because the consent was coerced. State v. Spagnola, 295 Kan. 1098, 289 P.3d 68 (2012).*

Defense counsel was not ineffective for not raising a suppression issue that was a loser. United States v. Altamirano-Quintero, 2012 U.S. App. LEXIS 25127 (10th Cir. December 6, 2012).*

Permalink 07:51:12 am, by fourth, 149 words, 350 views   English (US)
Categories: General

N.D.Ohio: Alleged false statements in SW affidavit were just inartful drafting

Keeping mind that affidavits for search warrants are usually drafted in the haste of a criminal investigation, this alleged false statement was just in artful drafting. United States v. Bradley, 2012 U.S. Dist. LEXIS 173827 (N.D. Ohio December 7, 2012):

Taking a commonsense approach, and keeping in mind that search warrant affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation," United States v. Ventresca, 380 U.S. 102, 108 (1965), the Court is satisfied that the affiant, Detective Susan Barker, did not intentionally misstate the facts. ... The challenged language in the affidavit may be lacking in precision, but the Court concludes that, if anything, this was a result of inartful drafting rather than an intent to deceive. The defendants have failed to prove that the police intentionally or with reckless disregard for the truth misstated the facts when they included the words "present" or "met" in the warrant affidavit.

12/08/12

Permalink 07:31:23 am, by fourth, 127 words, 486 views   English (US)
Categories: General

IN: Drawing gun during stop until backup arrived was still not an arrest

Drawing a gun during a traffic stop until backup could arrive to freeze the situation was still not an arrest, and it’s governed by Terry. Billingsley v. State, 980 N.E.2d 402 (Ind. App. 2012).*

Following Fifth Circuit precedent, the search incident of defendant’s cell phone was reasonable. It was found on his person at the time of the arrest. United States v. Rodriguez, 702 F.3d 206 (5th Cir. 2012).*

After an apparent drug buy from a house, the police followed the buyer and arrested him. With that information they did a knock and talk with seven officers of the house. A purse in the basement with no people around was not subject to search because nothing suggested a safety risk. Commonwealth v. Brooks, 388 S.W.3d 131 (Ky. App. 2012).*

Permalink 07:05:34 am, by fourth, 162 words, 317 views   English (US)
Categories: General

N.D.Ohio: Nexus to house shown from defendant going to drug deal from house and then back

The information from the CI was not stale when the police corroborated the CI with information that the defendant was dealing drugs that day. Nexus to the house was shown by defendant leaving his place to go to a drug deal and coming back. It’s a reasonable inference the stash is in the house. United States v. Bradley, 2012 U.S. Dist. LEXIS 173827 (N.D. Ohio December 7, 2012).*

Defendant’s description and being involved in a shots fired incident was more than mere suspicion. They had the car, street name, and two people said he was in the car (one as shooter, one as driver). United States v. Roper, 2012 U.S. Dist. LEXIS 173402 (W.D. Wash. December 6, 2012).*

Defendant’s 2255 claim of illegal search and seizure was waived by not presenting it to the district court before conviction. United States v. Dantzler, 2012 U.S. Dist. LEXIS 173495 (W.D. La. September 25, 2012) [if had been raised as an IAC claim, it would at least be considered].*

12/07/12

Permalink 03:29:17 pm, by fourth, 137 words, 426 views   English (US)
Categories: General

AOL AutoBlog: "White House clears way for NHTSA to mandate vehicle black boxes"

AOL AutoBlog: White House clears way for NHTSA to mandate vehicle black boxes by Jeremy Korzeniewski:

At present, over 90 percent of all new vehicles sold in the United States today are equipped with event data recorders, more commonly known as black boxes. If the National Highway Traffic Safety Administration gets its way, that already high figure will swell to a full 100 percent in short order.

Such automotive black boxes have been in existence since the 1990s, and all current Ford, General Motors, Mazda and Toyota vehicles are so equipped. NHTSA has been attempting to make these data recorders mandatory for automakers, and according to The Detroit News, the White House Office of Management Budget has just finished reviewing the proposal, clearing the way. Now NHTSA is expected to draft new legislation to make the boxes a requirement.

Permalink 09:12:39 am, by fourth, 573 words, 1956 views   English (US)
Categories: General

OH: An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest

An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest. State v. Gardner, 2012 Ohio 5683, 135 Ohio St. 3d 99, 984 N.E.2d 1025 (2012):

=> Read more!

Permalink 08:43:39 am, by fourth, 199 words, 416 views   English (US)
Categories: General

CA4: Where there's PC, officers telling the defendant they believed he had child pornography on his computer was exigency to seize it

Telling a person that he’s the target of a child pornography investigation creates exigency to seize his work computer so he won’t destroy what’s on it. Here, the officers told defendant they had probable cause against him. United States v. Brown, 701 F.3d 120 (4th Cir. 2012):

Based on their investigation, the detectives had probable cause to believe that any computer used by either Brown or Yarboro during their work shifts at Medical Transport harbored evidence of child pornography. Accordingly, when the Charlottesville detectives informed Brown that they were investigating internet crimes against children, they had probable cause to believe that Brown's laptop, which he possessed during his work shift, contained evidence of child pornography. See United States v. Place, 462 U.S. 696, 701 (1983) (recognizing that the Fourth Amendment permits a warrantless seizure of property "[w]here law enforcement authorities have probable cause to believe that [the property] holds contraband or evidence of a crime ..., if the exigencies of the circumstances demand it."). Following up on Brown's response, it was entirely reasonable for the officers to seize Brown's laptop – as they did – to prevent either it or its contents from being damaged or destroyed. See King at 1862.

Police created exigency?

Permalink 08:35:53 am, by fourth, 96 words, 512 views   English (US)
Categories: General

DE: Criminal impersonation arrest during traffic stop supports SI

Defendant was arrested for criminal impersonation for giving false name, address, and DOB to officer during a traffic stop, and that supported his search incident. Stafford v. State, 59 A.3d 1223 (Del. 2012).

Validity of consent issue is not one normally appealable by the state in Arkansas. State v. Myers, 2012 Ark. 453, 2012 Ark. LEXIS 486 (December 6, 2012)*; Same; consent in advance for parole search. State v. Jones, 2012 Ark. 454, 2012 Ark. LEXIS 484 (December 6, 2012).*

Trial court’s crediting officer’s testimony that defendant failed to stop at a red light was sufficient to justify a stop. State v. Turk, 2012 Tenn. Crim. App. LEXIS 985 (December 5, 2012).*

Permalink 08:15:02 am, by fourth, 134 words, 415 views   English (US)
Categories: General

MI: Defendant’s revocation of his consent did not make the officers’ presence unlawful

Defendant’s revocation of his consent did not make the officers’ presence unlawful for purposes of his resisting arrest prosecution. People v. Kodlowski, 298 Mich. App. 647, 828 N.W.2d 67 (2012).*

There was [apparently] probable cause for plaintiff’s arrest and the impoundment of his car, so his Fourth Amendment claim fails. Philpott v. Weaver, 497 Fed. Appx. 667 (8th Cir. 2012).*

A Kansas ruse checkpoint led to a stop. The government argued that the defendants were not seized at the time of the stop, but the district court didn’t believe the trooper’s testimony because it was contradictory. Substantial evidence supported the district court’s findings of fact leading to suppression of the search. The stop was in Kansas and the indictment was in the Northern District of New York. United States v. Murphy, 703 F.3d 182 (2d Cir. 2012).*

Permalink 08:00:34 am, by fourth, 146 words, 427 views   English (US)
Categories: General

E.D.N.C.: Defendant staying at friend's house on house arrest had no REP in their storage room

Defendant was staying at a house on house arrest, and he did not have a reasonable expectation of privacy as to its storage room to which he had a key. He did not have exclusive access to it, and others came and went. United States v. Gardner, 2012 U.S. Dist. LEXIS 171927 (E.D. N.C. August 9, 2012).*

Inability to name what defendant did what makes it impossible to hold them responsible for a failure to intervene or forced consent search. Bark v. Chacon, 504 Fed. Appx. 741 (10th Cir. 2012).*

Defendant in a car seen seven blocks from a shots fired call matching the description of the car involved was reasonable suspicion. Statements of counsel alone are insufficient to make a question of fact in this district for a hearing; there must be an affidavit of fact. United States v. Russell, 2012 U.S. Dist. LEXIS 172206 (S.D. N.Y. November 14, 2012).*

Permalink 07:37:51 am, by fourth, 149 words, 424 views   English (US)
Categories: General

D.S.D.: Wrong house number on SW was a correctable error where right house was searched

The wrong number for the address of defendant’s place (“34” not “32”) was not a constitutional error. The correct color was shown, and the officers made certain that they entered the correct house when they got there by rechecking with other sources. United States v. Running Shield, 2012 U.S. Dist. LEXIS 172245 (D. S.D. December 4, 2012).

In an interstate transportation for prostitution case, a search warrant was validly issued for evidence to corroborate the victim’s version of events. A search warrant for sealed evidence bags coming from another state was as particular as it could get. United States v. Campbell, 2012 U.S. Dist. LEXIS 172246 (D. S.C. December 5, 2012).*

Any errors in the officers’ “smell statistic” of the number of times the smell of marijuana bore fruit at a grow operation were not so material or beyond reckless that they undermined the probable cause. Hamilton v. State, 2012 Alas. App. LEXIS 173 (December 5, 2012).*

12/06/12

Permalink 05:09:06 pm, by fourth, 368 words, 3343 views   English (US)
Categories: General

SSRN: "To Be Secure: The Forgotten Words of the Fourth Amendment"

SSRN: To Be Secure: The Forgotten Words of the Fourth Amendment by Luke M. Milligan:

The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...” For over two hundred years the text “to be secure” has been neglected by courts and constitutional historians.

As currently interpreted, the Fourth Amendment is limited to the protection of persons against actual searches and seizures. If such a limitation had been the design of the framers, then the “to be secure” text must be acknowledged as superfluous. The prohibition of actual searches and seizures would have been sufficiently conveyed by a Fourth Amendment that read: “The right of the people, in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The framers’ inclusion of the “to be secure” language therefore suggests an intent to create a different, somewhat broader, right against searches and seizures.

The intended scope of this broader Fourth Amendment right depends upon the meaning of the term “secure” at the time of drafting and ratification. From my review of relevant historical materials, there appear to have been two contending meanings of “to be secure”: (1) “to be free of fear”; and (2) “to be protected.” Either definition expands the reach of the literal Fourth Amendment to new and important forms of government action. Currently the Amendment does not prohibit government (1) threats of unreasonable searches or seizures; (2) acts leaving persons unsure about the use of unconstitutional (or potentially unconstitutional) surveillance techniques; or (3) restrictions on home or personal security measures. These forms of government action, permissible under modern doctrine, would fall within the purview of the Fourth Amendment if the “to be secure” text were taken seriously. Its first plausible meaning (“to be free of fear”) renders all three acts described above (i.e., threats of search/seizure, creation of confusion about the use of unconstitutional surveillance techniques, and restrictions on home/personal security) vulnerable to Fourth Amendment challenges. The alternative plausible meaning (“to be protected”) calls into question the constitutionality of, at the very least, government restrictions on private security measures.

Permalink 07:38:44 am, by fourth, 463 words, 353 views   English (US)
Categories: General

MA: SI of cell phone for recent call list with PC was reasonable

Search of defendants’ recent call list off a cell phone was reasonable as a part of search incident where there was probable cause to connect the phone to the offense of arrest. Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210 (2012):

This case falls squarely within the scope of Madera [and basic SI law]. The evidence at issue here consists of the contents of the recent call list on the defendant's cellular telephone. The defendant does not appear to dispute that the cellular telephone itself -- the physical object -- was seized properly during a permissible search incident to his lawful arrest. More to the point, like the police in Madera, 402 Mass. at 158, 160-161, the officers here had probable cause to believe the telephone's recent call list would contain evidence relating to the crime for which he was arrested: Officer Fontanez had seen the defendant using the cellular telephone just before the observed drug transaction between the defendant and Claiborne took place; the police recognized Claiborne as a drug user and recovered cocaine from Claiborne; and Detective McCarthy testified that based on his experience, telephones are commonly used in the drug trade. Thus, the search of the call list in this case was a valid search incident to arrest.

We do not suggest that the assessment necessarily would be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device. Determination of the reasonableness of a search "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). As other courts have noted, see, e.g., United States v. Flores-Lopez, 670 F.3d 803, 805-806 (7th Cir. 2012); State v. Smith, 124 Ohio St. 3d 163, 167-169 (2009), today's cellular telephones are essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms. They present novel and important questions about the relationship between the modern doctrine of search incident to arrest and individual privacy rights. Although an individual's reasonable expectation of privacy is diminished concerning his or her physical person when subject to a lawful arrest and taken into custody, the same may not necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that he or she is carrying at the time of arrest. See People v. Diaz, 51 Cal. 4th 84, 110 (Werdegar, J., dissenting), cert. denied, 132 S. Ct. 94 (2011). However, we do not need to consider these questions in the present case.

Accord: Commonwealth v. Berry, 463 Mass. 800, 979 N.E.2d 218 (2012).

Permalink 07:17:40 am, by fourth, 179 words, 310 views   English (US)
Categories: General

CO: Gant doesn't apply to backpacks in hand when first arrested

Defendant’s backpack was lawfully searched incident to his arrest. Arizona v. Gant applies to vehicles, and it does not change the rules of search incident of the person. People v. Marshall, 2012 CO 72, 289 P.3d 27 (2012):

[*P14] In contrast to the search of a vehicle, the arrest of a person necessarily involves greater officer safety concerns because, unlike items in the compartment of a vehicle, the arrested individual might still be able to access those items on his person even after arrest. Similarly, because the items remain in close proximity to an arrested individual, he might still be able to access that evidence. In brief, there is a factual distinction between searches of cars and persons. This Court's Fourth Amendment jurisprudence reflects this distinction and, accordingly, indicates that the trial court's extension of Gant without additional guidance from the United States Supreme Court was error. Compare Gant, 556 U.S. at 337-38, with United States v. Robinson, 414 U.S. 218, 226, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). As such, we turn to this Court's precedent addressing the search of a person incident to arrest.

Permalink 07:09:42 am, by fourth, 170 words, 1422 views   English (US)
Categories: General

CA3: Drawing of weapons on a perceived potentially violent arrestee was not unreasonable

The center brake light wasn’t working, and that justified defendant’s stop under state law (at least there was reasonable suspicion for it). The officer recognized defendant as a recent arrestee and shooting victim, and saw furtive movements. The officer went where the movements were and recovered a machine pistol. The search there was reasonable, and the drawing of guns was not excessive. United States v. Jones, 506 Fed. Appx. 128 (3d Cir. 2012).*

Defendant was stopped with reasonable suspicion where the vehicle and driver matched the description of a vehicle involved in a bank robbery. The defendant was cooperative, and, when he smiled, the officer could see a chipped tooth which was described by the robbery victims. The stop and its continuation was all with reasonable suspicion ripening to probable cause. United States v. Farnell, 701 F.3d 256 (8th Cir. 2012).*

The CI’s reliability for this search warrant was shown by officer corroboration of information, not by his past performance. United States v. Johnson, 2012 U.S. Dist. LEXIS 171552 (E.D. Mich. November 28, 2012).*

Permalink 06:59:09 am, by fourth, 171 words, 336 views   English (US)
Categories: General

TX7: Youth of victim does not per se undermine probable cause from her statement

The affidavit for search warrant provided probable cause on the totality of information. While the reporting victim was young, that did not undermine her statement that her father had sex with her because of some limited corroboration from statements of the father. The search warrant also was not stale. “When the affidavit recites facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant.” The victim’s statements supported a request in the warrant for writings and pictures. Jarnagin v. State, 392 S.W.3d 223 (Tex. App. – Amarillo 2012).*

Defendant’s 2255 claim that defense counsel was ineffective for not challenging the search warrant was denied because there was no search warrant. Defense counsel did challenge a warrantless search. United States v. Anderson, 2012 U.S. Dist. LEXIS 171275 (E.D. Va. December 3, 2012).*

Claimant’s stop was reasonable based on a traffic offense, and it was not so long before consent was given that it was unreasonable. United States v. $89,980.00 United States Currency, 2012 U.S. Dist. LEXIS 171893 (S.D. Tex. November 9, 2012).*

12/05/12

Permalink 08:01:46 am, by fourth, 355 words, 678 views   English (US)
Categories: General

CA9: Gated front yard clearly curtilage by common experience and applying Dunn

Plaintiffs’ gated front yard was curtilage, and the officer had to know it. Kicking open the gate hitting plaintiff was unreasonable. Sims v. Stanton, 706 F.3d 954 (9th Cir. 2012), amended January 16, 2012:

Sims's small, enclosed, residential yard is quintessential curtilage. "[A] small, enclosed yard adjacent to a home in a residential neighborhood [] is unquestionably such a 'clearly marked' area 'to which the activity of home life extends,' and so is 'curtilage' subject to the Fourth Amendment protection." Struckman, 603 F.3d at 739 (quoting Oliver, 466 U.S. at 182 n.12). Because Sims's front yard obviously meets the definition of curtilage, the district court did not need to analyze it under the factors announced by the Supreme Court in United States v. Dunn. 480 U.S. at 294. These factors serve as "useful analytical tools" to ensure that Fourth Amendment protections extend to areas that are much further from the house but that still should be "treated as the home itself." Id. at 300-01. Here, however, the factors are unnecessary because it is "easily understood from our daily experience" that Sims's yard is curtilage.4 Oliver, 466 U.S. at 182 n.12; see also Struckman, 603 F.3d at 739.

4 Of course, applying the Dunn factors to Sims's yard leads to the same result. The first factor, "the proximity of the area claimed to be curtilage to the home," id. at 301, is met because her front yard is adjacent to her home and extends only a short distance. The second factor, whether the area is "included within an enclosure surrounding the home," id., is met because a tall wooden fence encloses both her front yard and her home. Sims meets the third factor, "the nature of the uses to which the area is put," id., because Sims stated that she enjoyed a high degree of privacy in her front yard, that she used it to store her wheelchair, and that she entertains guests there. The final factor, "steps taken by the resident to protect the area from observation by people passing by," id., is met because the gate that Stanton kicked in was a "sturdy, solid wood," six-foot-high fence with narrow slats between the planks of wood.

Permalink 07:54:51 am, by fourth, 525 words, 1595 views   English (US)
Categories: General

CA6: Fourth Amendment does not recognize de minimus intrusions of the home

One defendant in this § 1983 case argued that his entry into plaintiffs’ home was de minimus and, therefore, reasonable. The Sixth Circuit disagreed that a de minimus entry is reasonable, finding support in Payton and Steagald. Andrews v. Hickman County, 700 F.3d 845 (6th Cir. 2012):

Finally, Wade argues that his actions were de minimis and thus qualify for an exception where conduct that technically qualifies as a warrantless search or seizure may be found reasonable and thus excused due to the minor nature of the violation. The de minimis rationale has been recognized in limited circumstances. See, e.g., United States v. Jacobsen, 466 U.S. 109, 125, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Wade cites Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001), to support his claim that his intrusion was de minimis and reasonable. However, McArthur is clearly distinguishable from Wade's alleged conduct. McArthur involved the temporary seizure of an individual and a trailer while law enforcement officers obtained a search warrant. The officers had been told by the individual's wife that she had just seen the individual in question hide drugs in the trailer in which he lived. Id. at 329. An officer then proceeded to prevent the individual from reentering the trailer for the two hours it took another officer to obtain a warrant. Id. Unlike the officer in McArthur, Wade and Chessor did not enter the Andrews' home to preserve the status quo while a warrant was sought. Wade had no intention of seeking a warrant or preserving evidence when he stepped into the Andrews' home. In addition, Wade's entry into the home was not de minimis. Under either his account or that of the Plaintiffs, he fully entered the Andrews' home, unlike the officer in McArthur who remained in the doorway observing the individual when he was allowed to reenter the trailer for cigarettes and to use the phone. See id. Further, Wade cannot rely on cases such as United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984), which held that the destruction of a small amount of cocaine during a field test of the substance was a de minimis seizure, because his violation is an invasion of a different degree. Indeed, even in Jacobsen the Supreme Court emphasized that, despite its holding, "where more substantial invasions of constitutionally protected interests are involved, a warrantless search or seizure is unreasonable in the absence of exigent circumstances." 466 U.S. at 125 n.28. The Court cited Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), and Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981), to support the proposition, suggesting that cases implicating warrantless in-home searches and arrests are not appropriate for de minimis arguments. See id.

Wade carried out a warrantless, non-consensual entry into the Andrews' home. As Payton instructs, "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." 445 U.S. at 590. Viewing the record in the light most favorable to the Andrews, a violation of the Andrews's Fourth Amendment right to be free from unreasonable searches and seizures has been shown.

Permalink 07:38:26 am, by fourth, 176 words, 337 views   English (US)
Categories: General

LA: Entry through open door of unoccupied house to extinguish candles reasonable; plain view sustained

Defendant was Tasered and arrested outside his own house at night in an area known for burglaries and trespasses. He said the house was his, and the door was ajar. The officers acted reasonably by going to the open door and calling out for anyone inside. They pushed the door open and saw lit candles. It was reasonable to enter to extinguish them because of the risk of fire if left unattended too long. Cocaine was in plain view, and the entry was reasonable under all the circumstances. State v. Washington, 2012 La. LEXIS 3083 (La. November 16, 2012).*

Use of a PBT to determine a minor in possession case was waived where not presented to the trial court. In re J.J.M., 2012 Ohio 5605, 2012 Ohio App. LEXIS 4844 (7th Dist. December 3, 2012).*

The evidence supported the trial court’s finding that defendant consented to a search of her person for drugs during a stop. City of Ashland v. Zehner, 2012 Ohio 5545, 2012 Ohio App. LEXIS 4826 (5th Dist. November 29, 2012).* Same; search of a house. State v. Jackson, 2012 Ohio 5548, 2012 Ohio App. LEXIS 4827 (5th Dist. November 29, 2012).*

Permalink 07:16:18 am, by fourth, 200 words, 309 views   English (US)
Categories: General

CT: Error in time on issuance of SW a "mere technicality" that can be overcome by state

Incorrect time of issuance on the search warrant was a “mere technicality” and a scrivener’s error that could be overlooked by the state proving the correct time. State v. Thompson, 307 Conn. 567, 57 A.3d 323 (2012); State v. Jevarjian, 307 Conn. 559, 58 A.3d 243 (2012) (Also, parking an RV at the house of another did not give one standing to contest the search of the entire house as an overnight guest. It presented a moot question on the RV which still supported the guilty plea.):

Turning first to the defendant's claim that the trial court improperly relied on parol evidence to determine whether a scrivener's error was made, we previously have observed that, "although probable cause must be determined from the four corners of the warrant, we are not confined to the four corners of the warrant in determining whether the affidavit in support of probable cause has been validly executed." State v. Colon, supra, 230 Conn. 34. Mere technical defects are likewise insufficient to invalidate an otherwise valid search warrant. See, e.g., State v. Browne, 291 Conn. 720, 743-44, 970 A.2d 81 (2009). Accordingly, we do not agree with the defendant that the trial court's reliance on parol evidence to determine the timing of the warrant's execution was improper.

Permalink 06:54:47 am, by fourth, 178 words, 1443 views   English (US)
Categories: General

Cal.: Parole search of car extends anywhere parolee could keep his stuff

Parole search of a car extends where the parolee could keep his stuff. People v. Schmitz, 55 Cal. 4th 909, 149 Cal. Rptr. 3d 640, 288 P.3d 1259 (2012):

This case involves the constitutional limits of a vehicle search based on a passenger's parole status. Here, an officer, aware that the front seat passenger was on parole, searched the backseat of defendant's car and recovered drugs and drug paraphernalia from a chips bag and a pair of shoes. Defendant, the driver, sought to suppress that evidence. We conclude that the search was reasonable under the Fourth Amendment to the United States Constitution. We hold that the Constitution permits a search of those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity. Additionally, the officer may search personal property located in those areas if the officer reasonably believes that the parolee owns those items or has the ability to exert control over them.

Court of Appeals reversed. People v. Schmitz, 187 Cal. App. 4th 722, 114 Cal. Rptr. 3d 490 (4th Dist. 2010).

Permalink 06:53:44 am, by fourth, 117 words, 326 views   English (US)
Categories: General

OH9: SW didn't permit search of persons outside of house

The trial court correctly determined that the search of defendant was outside the specific terms of the search warrant because he was not inside the house at the time of the search. The warrant was otherwise issued with probable cause. State v. Stambaugh, 2012 Ohio 5568, 2012 Ohio App. LEXIS 4832 (9th Dist. December 3, 2012).*

The trial court’s finding on credibility is almost unassailable, and here it was against the officer on consent. Affirmed. State v. Evans, 2012 Ohio 5485, 2012 Ohio App. LEXIS 4763 (9th Dist. November 28, 2012).*

State court pen registers were valid because they said they were to be conducted within the jurisdiction of the state court that authorized them. 18 U.S.C. § 3123(b)(1)(B). United States v. Mamalis, 498 Fed. Appx. 240 (4th Cir. 2012).*

12/04/12

Permalink 08:19:21 am, by fourth, 134 words, 1414 views   English (US)
Categories: General

S.D.Tex.: Officer's assertion LPN was so obscured it couldn't be read and that justified stop rejected; he called it in before the stop

Officers failed to articulate a factual basis for stopping defendant for an obscured license plate number or obstructed windshield. As to the former, the dispatch tape has the officer reading the license plate number off before the stop. United States v. Lozoya-Izaguirre, 2012 U.S. Dist. LEXIS 170816 (S.D. Tex. November 30, 2012).*

The defendant is allowed to supplement his motion to suppress to preserve additional grounds for appeal, since it doesn’t require an additional hearing. These matters were discussed at the suppression hearing. United States v. Rodriguez, 2012 U.S. Dist. LEXIS 170879 (D. N.M. November 30, 2012).*

Drugs and guns found during a protective sweep were validly found. The court finds as a fact that the officers did not search before the search warrant arrived. United States v. Hammer, 2012 U.S. Dist. LEXIS 171220 (W.D. Tenn. October 24, 2012).*

Permalink 07:54:39 am, by fourth, 223 words, 318 views   English (US)
Categories: General

W.D.Pa.: Damaged mail parcel led to RS of MJ and a valid SW and controlled delivery

A damaged package in a mail sorting center obviously contained marijuana, so the USPS Postal Inspection Service got a search warrant and opened it, finding marijuana. A controlled delivery was arranged. The package went from a house to a car, and the car was stopped. The brief detention of the package to get a search warrant was valid under Van Leeuwen, even though it went over a weekend. This defendant’s challenge of the stop of the car was without standing. United States v. Hayes, 2012 U.S. Dist. LEXIS 170915 (W.D. Pa. December 3, 2012).*

Statement at guilty plea that defense counsel did everything requested (“Boyd's solemn pronouncement made under oath at his guilty plea hearing-that Evatt had done everything that he had asked her to do for him-forecloses any argument at this time that Evatt failed to respond to Boyd's requests.”) precluded an IAC claim for not appealing a suppression motion that was denied. United States v. Boyd, 2012 U.S. Dist. LEXIS 171123 (D. S.C. December 3, 2012).*

Defendant’s stop was based on specific and detailed information from a CI that heroin was being carried in the air vent of defendant’s car. The conflicting information given after the stop added to it. One defendant conceded no standing in the car as a passenger. United States v. Genao, 2012 U.S. Dist. LEXIS 170941 (D. Me. December 3, 2012).*

12/03/12

Permalink 06:23:15 pm, by fourth, 139 words, 1112 views   English (US)
Categories: General

NYT: "Border Searches Face New Challenges in Digital Age"

NYT: Border Searches Face New Challenges in Digital Age by Susan Stellin:

The government has historically had broad power to search travelers and their property at the border. But that prerogative is being challenged as more people travel with extensive personal and business information on devices that would typically require a warrant to examine.

Several court cases seek to limit the ability of border agents to search, copy and even seize travelers’ laptops, cameras and phones without suspicion of illegal activity.

“What we are asking is for a court to rule that the government must have a good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices,” said Catherine Crump, a lawyer for the American Civil Liberties Union who is representing plaintiffs in two lawsuits challenging digital border searches.

Permalink 07:39:22 am, by fourth, 158 words, 360 views   English (US)
Categories: General

S.D.N.Y.: Slight exaggerations in officer's testimony about seeing defendants smoking MJ in car did not make it unbelievable

While the officer’s testimony seemed slightly exaggerated at times, it still showed probable cause to believe the defendants were smoking marijuana in the car stopped at an intersection. Another in the car admitted to smoking marijuana, and that undermined the defense theory that it was planted by the first officer. United States v. McCrimmon, 2012 U.S. Dist. LEXIS 170592 (S.D. N.Y. November 26, 2012).*

Officers had highly specific information from a CI who obviously saw what he was reporting, and that was sufficient for probable cause and nexus for a stop of the defendant’s car. State v. Vasquez, 2012 Tenn. Crim. App. LEXIS 971 (November 28, 2012).*

Defendant’s successor habeas was denied. The first petition alleged IAC for not challenging a search of a videotape in defendant’s house consented to by his live-in girlfriend, where the tape showed defendant having sex with her minor daughter. She had the ability to consent. Thompson v. Ballard, 2012 W. Va. LEXIS 951 (November 30, 2012) (memorandum).*

Permalink 07:19:58 am, by fourth, 181 words, 1540 views   English (US)
Categories: General

N.D.Iowa: Dog sniff at apartment door validly supported search warrant

A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead following United States v. Scott, 610 F.3d 1009 (8th Cir. 2010), where such a sniff was not unlawful. United States v. Givens, 2012 U.S. Dist. LEXIS 170649 (N.D. Iowa November 30, 2012).* [Note: Davis would support this search because of Scott even if Jardines is reversed by SCOTUS. Scott was decided in July 2010, and this search was the following December.]

Defendant’s stop was based on an apparent drug deal going down in it. The use of a drug dog after that was with reasonable suspicion. The search of his hotel room wasn’t invalid as a fruit of the poisonous tree since there wasn’t any illegality. United States v. Jackson-Forsythe, 498 Fed. Appx. 224 (4th Cir. 2012).*

Defendant’s arrest was reasonable, so his statements come in. United States v. Foster, 2012 U.S. Dist. LEXIS 169794 (D. Md. November 28, 2012).*

Permalink 07:02:24 am, by fourth, 164 words, 630 views   English (US)
Categories: General

CA6: Clearly erroneous explained again

Crediting the officers’ testimony that defendant consented to a patdown that produced a sawed-off shotgun was not clearly erroneous. United States v. Oldham, 506 Fed. Appx. 465 (6th Cir. 2012). Clearly erroneous explained:

=> Read more!

Permalink 06:54:23 am, by fourth, 169 words, 431 views   English (US)
Categories: General

FL2: Search of school bookbag without reasonable suspicion of anything unreasonable

The juvenile had an early meeting with her school counselor, and, after the meeting, she had to leave her bookbag because of a school rule against bookbags in the hallway. Four times during the day she came and asked for access to the bookbag which was denied. Based on that, the counselor decided to search the bookbag, and marijuana and paraphernalia was found. The search was without reasonable suspicion of any violation of law or rule, and was unconstitutional. T.S. v. State, 100 So. 3d 1289 (Fla. 2d DCA 2012).

Defendant was stopped on a bicycle for having no light. It should have been viewed the same as a traffic stop with basic questioning. Defendant was asked if he had a weapon and he volunteered he did. That was not unconstitutional. State v. Brown, 2012 Ohio 5532, 2012 Ohio App. LEXIS 4806 (2d Dist. November 30, 2012).

Fleeing from a car stopped for a traffic violation is not being “stopped” for Fourth Amendment purposes. United States v. Sebbern, 2012 U.S. Dist. LEXIS 170550 (E.D. N.Y. November 30, 2012).*

12/02/12

Permalink 11:49:00 am, by fourth, 166 words, 538 views   English (US)
Categories: General

Ohio Plain Dealer: "Keep DNA evidence private"

Ohio Plain Dealer: Keep DNA evidence private by Jonathan Witmer-Rich and Brendan Heil:

On Nov. 1, the Ohio Supreme Court issued a startling -- and unnecessary -- opinion eroding DNA privacy for Ohio citizens. The court held that the Fourth Amendment does not protect an individual's personal DNA profile. In the court's words, "[a] person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample."

The case, State v. Emerson, originally involved DNA evidence legally obtained from Emerson through a valid warrant in a rape investigation. Emerson was acquitted of the rape charge, but his DNA profile was kept in the Ohio DNA database. His DNA profile could then be searched again and again, anytime law enforcement compared a sample from a new crime scene with the DNA profiles in the database. Emerson was later convicted of murder, mostly due to a DNA match with a sample found at the scene of that crime.

The case is here.

Permalink 11:46:02 am, by fourth, 167 words, 601 views   English (US)
Categories: General

CA9: Govt failed to prove exigency for warrantless entry

The box delivered to defendant had a beeper inside that was supposed to emit a continuous tone when it was opened. It malfunctioned and continued to emit a continuous tone before it left police custody. There were no exigent circumstances justifying a warrantless entry into defendant’s dwelling to secure the package because the police had no information of imminent destruction of evidence. United States v. Lawson, 499 Fed. Appx. 711 (9th Cir. 2012).*

Defense counsel was not ineffective for not moving to suppress a photograph in a camera that was already lawfully subject to search under a warrant. In it was a picture of defendant wearing the same shirt described by the witnesses to this shooting. People v. Marshall, 298 Mich. App. 607, 830 N.W.2d 414 (2012).

Defendant was allowed free access to a storage room in the house searched, but he had no key to it. Consequently he had no reasonable expectation of privacy and, thus, no standing. United States v. Gardner, 2012 U.S. Dist. LEXIS 170258 (E.D. N.C. November 30, 2012).*

Permalink 12:16:47 am, by fourth, 608 words, 597 views   English (US)
Categories: General

CA7: Govt failed to prove exigency; its theory was speculative

Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judge is binding on remand–no new hearing for it. United States v. Delgado, 701 F.3d 1161 (7th Cir. 2012):

For the government's theory to be reasonable under these circumstances, one would have to believe that the shooter (lethally armed and bent on killing Aviles), Delgado (potentially lethally armed and bent on protecting Aviles), and Aviles rushed into the sole-occupant apartment and were poised for a fatal showdown, but that the officers happened to knock on Delgado's door at the precise climactic moment before anyone could pull a trigger or throw a punch, causing the parties to immediately suspend all hostilities while the shooter scrambled into a hiding position and Aviles and Delgado left acting as if nothing had happened. The presumption of unconstitutionality that attaches to warrantless searches requires the government to point to something that would lead a reasonable officer to think that this improbable scenario actually transpired, but the government simply has not done so.

The government argues that Aviles's and Delgado's silence when they came out of the apartment does not mean that the shooter was not in the apartment, because victims of violence sometimes choose to remain silent to prevent an investigation into their own criminal activity or to prevent their wounded foe from receiving aid. But this argument erroneously suggests that the defendant carries the burden of proving a lack of exigent circumstances, when it is actually incumbent upon the government to point to some affirmative sign of exigency. Silence in this context cannot be that sign, as it could have easily meant any number of things having nothing to do with exigent circumstances. Cf., e.g., Ellis, 499 F.3d at 691 (finding no exigent circumstances because general movement noises in response to officer's knocking do not automatically mean that evidence is about to be destroyed, when they could simply signal someone getting up to answer the door). The government notes that in other cases, police officers have validly entered homes without a warrant upon suspicion of domestic violence even when the victim remains silent upon answering the door, but in those cases, silence or an indication that everything was fine was not in and of itself an affirmative indication of exigent circumstances. The victim's silence simply failed to vitiate other affirmative indications that something dangerous was happening inside the home. ... Absent such other affirmative indications here, Aviles's and Delgado's silence adds nothing to the exigent circumstances equation.

The government's failure to carry its burden compels us to find that the officers violated Delgado's Fourth Amendment rights when conducting a warrantless search of his apartment. So we reverse the denial of Delgado's suppression motion, vacate his conviction, and remand for additional proceedings consistent with this decision. In remanding, we also instruct the district court to grant Delgado's suppression motion. After the magistrate judge found a lack of exigent circumstances based on a set of stipulated facts, the government could have asked the district court to supplement the record and could have requested an evidentiary hearing. See 28 U.S.C. § 636(b)(1); Hynes v. Squillace, 143 F.3d 653, 656 (7th Cir. 1998); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). It did not. Though the government has not suggested that it is now entitled to an evidentiary hearing at this late stage, our instructions to grant the suppression motion do not include providing an evidentiary hearing. It is too late for that.

Permalink 12:09:12 am, by fourth, 401 words, 730 views   English (US)
Categories: General

MD: Suppression judges act like appellate judges and shouldn't second guess PC

A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, __ Md. App. __, 56 A.3d 830 (2012) (Moylan, J.):

What A Reviewing Judge Must Not Do:

Determine Probable Cause De Novo

[Query: Isn’t that exactly what appellate courts do under Ornelas? Come on; you’re going too far in your rhetoric.]

What A Reviewing Judge Should Do: Be Content With A Substantial Basis

In Fitzgerald v. State, 153 Md. App. 601, 627, 837 A.2d 989 (2003), aff'd, 384 Md. 484, 864 A.2d 1006 (2004), this Court switched to affirmative terms to praise a suppression hearing judge for doing what a reviewing judge should do:

Once again [the suppression hearing judge] commendably recognized the constraints on her reviewing role. She did not presume to find probable cause. That was not her job. What she found was that [the warrant-issuing judge] had had a "substantial basis" for finding probable cause. That was her job. .

The relatively lower hurdle that must be cleared by an application for a search warrant is that it must provide a "substantial basis" for the issuance of the warrant. Illinois v. Gates described that lower hurdle, 462 U.S. at 236: ...

. . .

"Substantial Basis" Is Less Than "Probable Cause"

Terms such as "substantial basis" and "probable cause" can be, however, frustratingly slippery. The one thing we can be certain about is their relative weight when compared with each other. A substantial basis is less weighty and less logically probative than probable cause. A tightly reasoned examination, for instance, might reveal a subtle logical flaw in the posited probable cause, but the substantial basis test would not subject the warrant application to so rigorous an analysis. The preference for the warrant and the resulting presumptive validity of the warrant will be able to cover over flaws that might be more compromising if one were examining probable cause in a warrantless setting. Fine points in the arguable nexus between the street criminality of the suspect and the police entitlement to search his home for evidence might well constitute such a case wherein the relative intensities of the examinations might produce very different conclusions. What we know for certain is that some warrant applications will past muster under the lesser test that would not pass muster under the more demanding test.

. . .

A Prima Facie Case Is Not Required

Permalink 12:03:26 am, by fourth, 106 words, 436 views   English (US)
Categories: General

GA: Arrest for obstruction didn't support SI under Gant

Defendant was arrested for obstruction, and the search of his truck after he was handcuffed was invalid under Gant. Hargis v. State, 319 Ga. App. 432, 735 S.E.2d 91 (2012).

The court credits the officers’ testimony that defendant spontaneously admitted to having a gun on him after a brief encounter that was not a confrontation and involved “exchanging pleasantries.” United States v. Pankey, 2012 U.S. Dist. LEXIS 169276 (D. Ore. November 29, 2012).*

Defendant’s stop was for a broken taillight, and the officer saw furtive movements under the seat, and there was a cigarette pack with glass tubes sticking out in plain view. State v. Bridges, 104 So. 3d 657 (La. App. 4 Cir. 2012).*

12/01/12

Permalink 11:55:03 am, by fourth, 200 words, 527 views   English (US)
Categories: General

D.D.C.: SW for robbery proceeds not stale just because a wily robber might dispose of the proceeds

Defendant’s claim that the AUSA’s signature on warrant papers is constitutionally meaningless even if it was true. Similarly, the fact the affidavit was signed on one day before one judge and the warrant issued on another day before another judge does mean anything. The information about a robbery in this case wasn’t stale; just because the robber could have disposed of the proceeds doesn’t mean that he would. It was within a really short time after the robbery. United States v. Burroughs, 2012 U.S. Dist. LEXIS 169066 (D. D.C. November 29, 2012).*

Probable cause existed for defendant’s arrest, and it was more than mere propinquity (Ybarra). He was known to have driven the co-defendant to a drug deal, and the CI said that more than one person would be coming. The DEA also had prior information about defendant dealing heroin. United States v. Nunez, 2012 U.S. Dist. LEXIS 169893 (W.D. N.Y. February 9, 2012).*

Nervousness and four cell phones, two of which were prepaid, and conflicting travel plans between the passenger and driver was reasonable suspicion to detain for 13 minutes for a drug dog to arrive which was also reasonable. United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012).*

Permalink 11:09:37 am, by fourth, 159 words, 463 views   English (US)
Categories: General

CA2: Motorcycle checkpoint shown justified by special needs

A motorcycle checkpoint program in New York State was shown to be justified by special needs. Wagner v. Sprague, 489 Fed. Appx. 500 (2d Cir. 2012) [but this is a memorandum opinion with no facts].

The government justified a protective sweep of defendant’s house by showing his history of violence. This one took less than two minutes. United States v. Davis, 906 F. Supp. 2d 545 (S.D. W.Va. 2012)*:

The officers' check of the rooms was prudent, cursory, and over and done with in about two minutes. Given the Defendant's past history of violence, his evasive behavior upon the officers' arrival at the home, and the presence of a fully loaded assault weapon fitted with a large, unsheathed bayonet that was within easy reach of a potential hidden attacker, the officers had every reason to be concerned for their safety. In light of these facts, the officers' limited precautionary check of the spaces immediately adjoining the point of arrest was constitutionally reasonable.

Permalink 10:58:10 am, by fourth, 126 words, 455 views   English (US)
Categories: General

OR: Automobile exception only applies to vehicles, not the occupants

The automobile exception applies to vehicles, not their occupants, and the state confesses error based on United States v. Di Re, 332 U.S. 581, 586-87 (1948). State v. Freeman, 253 Ore. App. 472, 290 P.3d 908 (2012).

Defendant was seized by being ordered by loudspeaker to come out of the house, but there was probable cause to believe that he was involved in crime because the house was a murder scene, police knew an unidentified man was in there, and he wasn’t answering the telephone when they called the house. State v. Hudson, 253 Ore. App. 327, 290 P.3d 868 (2012).*

Defendant was lawfully stopped for blocking the street, and the officer could order defendant out of the vehicle, and that revealed a gun in plain view. State v. Kinard, 105 So. 3d 974 (La. App. 5 Cir. 2012).*

Permalink 08:49:25 am, by fourth, 155 words, 549 views   English (US)
Categories: General

MD: Violation of state SCA not subject to exclusion for lack of standing in provider information

The state violated the Maryland Stored Communications Act, similar to the federal Stored Communications Act, in obtaining cell phone provider created information about his account by a state subpoena served out of state. He has no reasonable expectation of privacy in that information, so the evidence is not excluded. While the state did not explicitly raise standing in the trial court, the trial court found a lack of standing. Defendant’s argument that he did not have an opportunity to provide standing fails because he wouldn’t have standing as a matter of law, and this is harmless error if error at all. Upshur v. State, 208 Md. App. 383, 56 A.3d 620 (2012).

Defendant was stopped because he was suspected of being a hack taxi and threatening his passenger. He denied everything. In a patdown, the car keys in his pocket were subject to “plain feel” connecting him to the hack taxi. McCracken v. State, 429 Md. 507, 56 A.3d 242 (2012).*

Permalink 08:33:16 am, by fourth, 336 words, 464 views   English (US)
Categories: General

W.D.Wash.: Franks reckless disregard shown

Franks “reckless disregard” was shown in a wiretapping case. Here, the issue was the government’s claim they could not use additional GPS devices in exhausting other investigative techniques, and then actually did after that. United States v. Hamilton, 2012 U.S. Dist. LEXIS 169290 (W.D. Wash. November 16, 2012). Examples of Franks reckless disregard from the Ninth Circuit used to aid the analysis:

In Stanert, the Ninth Circuit held that an affiant acted with reckless disregard for the truth when he stated that a suspect had been arrested without mentioning that the suspect was not convicted, and stated that he investigated a lab blowup at the suspect's residence a year before without mentioning the suspect had purchased and moved into the residence after the explosion. 762 F.2d at 782. Similarly, in U.S. v. Chesher, the Ninth Circuit held that the affiant acted with reckless disregard for the truth by representing that a suspect was a current member of the Hell's Angels when affiant had been conducting an investigation for some time which would have apprised him that was untrue. 678 F.2d 1353, 1361 (9th Cir. 1982). In U.S. v. Davis, the Ninth Circuit held that an affiant acted with reckless disregard for the truth when he signed an affidavit written in the first person knowing that it would mislead the magistrate judge into believing he had first-hand knowledge of the facts therein. 714 F.2d 896, 899-901 (9th Cir. 1983). By contrast, in U.S. v. Dozier, the Ninth Circuit held that the trial court's finding that an affiant acted with negligence, rather than reckless disregard for the truth, was "not clearly erroneous." 844 F.2d 701, 705 (9th Cir. 1988). In that case, the affiant misrepresented the defendant's prior criminal history because he did not know how to read the rap sheets. He also falsely stated that another agent had told him that he had seen two vehicles on the defendant's property registered to drug suspects, when in fact, the affiant had conducted a registration check and knew this was not true. See id. at 705-06.

Permalink 08:21:06 am, by fourth, 283 words, 721 views   English (US)
Categories: General

D.Ariz.: Use of a pole camera for surveillance from off property not a violation of REP

Surveillance of comings and goings to defendant’s apartment with a pole camera does not constitute a “trespass” under Jones. United States v. Brooks, 911 F. Supp. 2d 836 (D. Ariz. 2012):

Additionally, as argued by the Government, despite a block wall that could potentially act as an enclosure or barrier that could obstruct the view of a person standing on the outside of the Westgate complex, the typical focal point of the pole camera was visible to any passerby inside the complex or to any person in the arena parking lot. In fact, Detective Kinsey testified that the complex's outer wall also had iron openings that allowed for easy visibility of Building "L" for someone standing outside of the complex. Defendant presented no evidence to rebut Detective Kinsey's testimony that he could simply walk into the complex from the street, leaving Defendant's assertions about the apartment community's keypad access as insufficient to show that there were special features or activities associated with the Westgate complex parking lot to support a reasonable expectation of privacy in the parking lot.

The evidence points to the fact that a person would not be required to be a complex resident to see the "comings and goings" at the Glendale Apartment, and any expectation of privacy by Defendant in the complex parking lot in front of Building "L" from surveillance was unreasonable. Therefore, law enforcement's use of the pole camera did not violate the Fourth Amendment and, thus, there was no need for law enforcement to seek a warrant before using the camera.

Defendant had been Mirandized and told he could refuse consent, so his consent is found voluntary. United States v. Brooks, 2012 U.S. Dist. LEXIS 168734 (D. Ariz. November 28, 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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)
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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)

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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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