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).

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, 2012 U.S. Dist. LEXIS 182432 (W.D. Mich. December 19, 2012).*

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, 2012 U.S. App. LEXIS 26444 (5th Cir. December 27, 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).

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.