CBS St. Louis: KC Mo. Catholic "High School To Collect Students’ Hair For Mandatory Drug Testing":
A Kansas City high school will begin collecting hair from students to conduct mandatory drug tests.
KSHB-TV reports that Rockhurst High School will start the random drug testing during the 2013-14 school year.
“Our point is, if we do encounter a student who has made some bad decisions with drugs or alcohol, we will be able to intervene, get the parents involved, get him help if necessary, and then help him get back on a path of better decision making, healthier choices for his life,” Rockhurst Principal Greg Harkness told KSHB-TV.
Remember, drug testing by a Catholic high school is not "state action" governed by the Fourth Amendment.
Reason.com: This Dog Can Send You to Jail; How cops and their canines manufacture probable cause by Jacob Sullum:
Robert J. Burns, a 55-year-old retired nurse who lives in St. Louis, was returning from a trip to the West Coast last October when his white Nissan pickup truck was pulled over on Interstate 40 near Amarillo. Burns was carrying a 12-foot aluminum fishing boat on top of the truck, and he had been struggling against high winds that kept pushing him toward the shoulder. The sheriff’s deputy who stopped him thought he might be drunk.
“He asked me to step out and come back to his car,” Burns says, “and that’s when I noticed the dog in the back seat, a yellowish Lab. I explained that I hadn’t been drinking and my getting on the shoulder of the road was strictly from the wind. He said that he was going to write me a warning, and I said, ‘OK, that’s fine.’ He asked me if I had any drugs in the car. I said, ‘No, sir, I don’t do drugs, and I don’t associate with people who do.’ He asked me would I mind if he searched my vehicle, and I said, ‘Well, yes, I would mind if you searched my vehicle.’ ”
But thanks to the U.S. Supreme Court, the deputy did not have to take no for an answer. In the 2005 case Illinois v. Caballes, the Court declared that “the use of a well-trained narcotics-detection dog…during a lawful traffic stop generally does not implicate legitimate privacy interests.” So the deputy was free to walk his dog around Burns’ truck. “He got out with this dog and went around the car, two or three times,” Burns says. “He came back and said the dog had ‘passively alerted’ on my vehicle.” Burns, who is familiar with drug-detecting dogs from his work as an M.P. at Edwards Air Force Base in the 1970s, was puzzled. Properly trained police dogs are supposed to indicate the presence of drugs with a clear, objectively verifiable signal, such as sitting down in front of an odor’s source or scratching at it. Yet “the dog never sat down, the dog never scratched, the dog never did anything that would indicate to me that it thought there was something in there.”
As Ron White opined: "What's the sign of his alert? A blank stare?"
Remember Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), on exigency for imminent destruction of evidence? Back on April 26th, the Kentucky Supreme Court held on remand that the state still failed to show exigency. (Posted here.) I noted that a petition for cert. was filed July 25, 2012, and it was conferenced December 7th. No action shown.
This suggests to me that a cert. grant is likely. How dare the Kentucky Supreme Court not toe the line...
The search warrant for defendant’s cell phone was sufficiently particular when the particularity clause was limited to evidence of a particular crime. United States v. Juarez, 2013 U.S. Dist. LEXIS 11869 (E.D. N.Y. January 28, 2013):
Thus, George, Bianco, and Rosa teach that a warrant satisfies the particularity requirement when it sufficiently identifies and describes the items to be searched and seized and links that evidence to the specific criminal activity being investigated. When a warrant does so, it "ensures that the search will be carefully tailored to its justifications, and will not take on the character of wide-ranging exploratory searches." Bianco, 998 F.2d at 1122 (internal quotation marks and citations omitted). As applied to electronic devices, this rule similarly guards against a general search of all of the device's records, files and data.
B. Application to this Case
The warrant here meets the particularity requirement of the Fourth Amendment. It identifies the type of evidence to be seized as "numbers assigned to the below-described electronic device, any numbers, digits, letters and symbols stored in the memory of said device, as well as any digital photographs and video recordings," so long as that evidence tends "to demonstrate the commission of Unlawful Surveillance in the Second Degree, P.L. § 250.45(4), in the vicinity of 4th Avenue and 14th Street, New York, New York, and the commission of related crimes, and conspiracy to commit those crimes." (Ex. B to Weil Decl.) First, the evidence sought was described with particularity; it identifies photographs and video recordings as among the types of evidence sought. Second, it "linked that evidence to the criminal activity supported by probable cause." Rosa, 626 F.3d at 62. The warrant authorized a search for "evidence tending to demonstrate the commission of Unlawful Surveillance in the Second Degree" and related crimes, all occurring at a specific location in New York City.
Implied consent of the third party consenter was shown by the police coming to the door and asking her about a gun, and she took them to the bedroom and pointed it out. “Implied consent to enter a home is no less valid than explicit consent.” United States v. White, 508 Fed. Appx. 837 (10th Cir. 2013).
Defendant Flying Tigers, Inc. was the target of a search warrant for installing bogus parts on airplanes. The airplanes were not theirs and the logbooks were in possession of one of the mechanics at FTI who consented to retrieving them from home. FTI had no standing in the logbooks because they weren’t theirs. United States v. Flying Tigers, Inc., 2013 U.S. Dist. LEXIS 12111 (E.D. Pa. January 29, 2013).*
Officers had an arrest warrant for the defendant, and they got a tip he was at a particular house. The owner of the place gave consent to enter to look for him, and that was enough to search the house and look under the air mattress. United States v. Evans, 2013 U.S. Dist. LEXIS 11732 (W.D. Mo. January 22, 2013).*
The government sought an order under § 2703(d) for historical cell-site location information (CSLI) on defendant’s telephone to link her to a drug conspiracy. At the minimum, validity of a § 2703(d) order is governed by the good faith exception, so the order will not be suppressed. United States v. Muniz, 2013 U.S. Dist. LEXIS 12162 (S.D. Tex. January 29, 2013):
To obtain CSLI under 18 U.S.C. § 2703(d), the government must present "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." If getting the information required a probable cause showing, suppression is required unless an exception applies. Davis v. United States, 131 S.Ct. 2419, 2426-27, 180 L. Ed. 2d 285 (2011) ("[T]he exclusionary rule is a prudential doctrine ... created by this Court to compel respect for the constitutional guaranty." (citation omitted)).
Under the "good-faith exception," suppression of evidence obtained without a valid search warrant is not required if law enforcement relies in good faith on a search warrant issued by a judicial officer, or believes in good faith that a warrantless search is authorized. United States v. Leon, 468 U.S. 897, 920, ....
Consent of somebody with authority was voluntary: She had actually an interest in consent, she had 90 minutes to think about it, was advised of the right to refuse, mention of getting a search warrant was not threatening and the police clearly had probable cause. United States v. Moore, 2013 U.S. Dist. LEXIS 11734 (D. Ariz. January 28, 2013).*
Two arguments that were better off being waived: no probable cause that defendant robbed a bank and that a bank bag found from the robbed bank couldn’t be searched. A more plausible staleness argument on a search warrant for evidence of the bank robbery being found seven months later was abandoned by saving it for the reply brief. United States v. Abramski, 706 F.3d 307 (4th Cir. 2013).*
“An application for a wiretap authorization must be supported by the same probable cause necessary for a search warrant. See United States v. Hyde, 574 F.2d 856, 862 (5th Cir. 1978). The issuing magistrate is to make a ‘practical, common-sense decision’ about whether the ‘totality of the circumstances’ indicate that there is probable cause that the sought-for evidence will be obtained. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 233, 76 L.Ed.2d 527 (1983).” United States v. Davis, 2013 U.S. Dist. LEXIS 11803 (M.D. Ala. January 10, 2013).*
Linn State Technical College instituted a drug testing program for students because it teaches heavy equipment operators are people at risk of injury on the job if under the influence. In this circumstance, drug testing is reasonable, and the District Court’s preliminary injunction is dissolved. Barrett v. Claycomb, 705 F.3d 315 (8th Cir. 2013):
If Supreme Court precedent teaches us anything in this area, it certainly makes clear that the public has a "surpassing safety interest" in ensuring that those in "safety-sensitive" positions have uninhibited judgment. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 620, 634 (1989); see also Von Raab, 489 U.S. at 668-70; Chandler, 520 U.S. at 314-17. In Skinner, the Supreme Court held that the government had demonstrated a compelling interest in drug testing certain railroad employees without suspicion because "[e]mployees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." 489 U.S. at 628. Similarly, in Von Raab, the Court highlighted public safety concerns for Customs officials engaged in drug interdiction, and determined that the public had an interest in ensuring that these individuals remain drug-free. 489 U.S. at 670-71. In actions flowing from these Supreme Court decisions, lower courts have allowed drug-testing in other safety-sensitive occupations. See Krieg v. Seybold, 481 F.3d 512, 518 (7th Cir. 2007) (collecting cases that allowed testing of aviation personnel, railroad safety inspectors, highway and motor carrier safety specialists, lock and dam operators, forklift operators, tractor operators, engineering operators, and crane operators).
With instruction from Skinner and Von Raab, we conclude the public has a valid interest in deterring drug use among students engaged in programs posing significant safety risks to others. Indeed, Linn State offers several programs and areas of study, many of which require students to work with potentially dangerous heavy equipment, machines, chemicals, and electricity. Students operating the heavy equipment, for instance, "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences."
Don't you also think that if they get a job after graduation, they might be drug tested on the job for the same reason? If a "weedwacker" handler is subject to drug testing, I'd think a bulldozer operator would have to be.
Defendant was subjected to a patdown, and nothing was found. After he was arrested, he was patted down again, and drugs were found in a sock. Assuming the first patdown was unreasonable, the second wasn’t because of additional facts coming to light. State v. Willette, 2013 Ohio 223, 2013 Ohio App. LEXIS 163 (4th Dist. January 23, 2013).
“We conclude, however, that the officers did not exceed the permissible scope of the traffic stop by briefly questioning Adamson to determine whether he was in compliance with the licensing restriction that required that he have an ignition interlock device installed in his vehicle and, therefore, did not need reasonable suspicion of additional criminal activity to conduct such an inquiry.” State v. Adamson, 2013 UT App 22, 726 Utah Adv. Rep. 5, 295 P.3d 717 (2013).*
The victim of a crime is entitled to more credibility than an anonymous informant or a CI. United States v. Martin, 2012 U.S. Dist. LEXIS 185175 (D. Minn. December 14, 2012).*
Double anonymous informant hearsay is insufficient to base a search. The state misses the mark by arguing that the defendant doesn’t show that they aren’t reliable since the defendant has no way of knowing who they are in the first place. Sutton v. State, 319 Ga. App. 597, 737 S.E.2d 706 (2013). The first anonymous informant’s name was “It”:
While making broad, conclusory statements regarding It's credibility and motivations, however, the affidavit does not say whether It provided the information to the officer over the phone or in person; whether the officer confirmed that It was, in fact, the person he or she claimed to be; whether the officer's conclusions that It was “mature” and employed with no criminal record and no motivation to lie about the defendant was based upon his independent confirmation of those facts or whether he simply relied on It's statements to him; or whether It had previously provided reliable information to the officer or other officers regarding criminal activity by other individuals.
If one anonymous informant almost can never be enough, surely passing one through another can't either.
Officer outside of his jurisdiction was not acting outside his authority for qualified immunity purposes when arresting the plaintiff. Maughon v. City of Covington, 505 Fed. Appx. 818 (11th Cir. 2013):
... [W]hen determining the scope discretionary authority, a court looks to the general nature of a defendant's action, not the specific unconstitutional conduct. See Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998) (providing that "[t]he inquiry is not whether it was within the defendant's authority to commit the allegedly illegal act").
Old information from CIs was shown by current information from wiretaps that defendant was “back in business,” and it did not make it stale. United States v. Davis, 2013 U.S. Dist. LEXIS 10713 (M.D. Ala. January 28, 2013).*
Citing United States v. Skinner, 690 F.3d 772, 785 (6th Cir. 2012) (Donald, J., concurring) (“While this circuit's law is not well developed on this point, numerous courts have held that privacy expectations are not diminished by the criminality of a defendant's activities.”), the Western District of Tennessee concludes that, at least in the Sixth Circuit, use of an alias on a shipped package containing drugs is not an abandonment or a waiver of an expectation of privacy. United States v. Williams, 2012 U.S. Dist. LEXIS 185177 (W.D. Tenn. December 3, 2012):
There are two possible ways to interpret the concurrence. First, because some people employ an alias and use the mail illegally, everyone with a legitimate reason to remain anonymous should lose their expectation of privacy in the post. Alternatively, only people using an alias for legitimate reasons may retain an expectation of privacy in their mailings while those who employ an alias for illicit purposes may not. Both constructions turn the Fourth Amendment on its head.
The first approach assumes that criminals can forfeit the privacy interests of all persons by using a confidential domain for nefarious ends. Any creative means that a person engaging in illegal activity devises to conceal that fact will lead to the end of privacy for persons engaged in wholly legitimate confidential activities. For example, if persons engaged in illegal drug sales often use hotel rooms for their transactions, or commonly employ cellular telephones to communicate the terms of their deals, then under the concurrence's analysis no one would retain a legitimate expectation of privacy in the use of hotel rooms or cellular telephones.
Under the second approach, only criminals forfeit their Fourth Amendment rights. The illegal contents of the package serve as an after-the-fact justification for a search. ...
The plaintiff here had no reasonable expectation of privacy from the tax assessor looking at his house, including the back, purely for tax assessment purposes, just like plaintiff didn’t as to a meter reader or the postal worker. Plaintiff had no reasonable expectation of privacy from the tax assessor doing his job. Covey v. Assessor of Ohio County, 2013 U.S. Dist. LEXIS 10233 (N.D. W.Va. January 25, 2013):
Much like a property owner has no reasonable expectation of privacy with regard to a meter reader or postal worker entering the curtilage of his or her home for the purposes of reading utility meters and delivering mail, neither do the Coveys have a reasonable expectation of privacy with regard to items viewable by the naked eye from the curtilage of their home when a property tax assessor is executing the responsibilities of his employment. There is no evidence to suggest that Mr. Crews did anything beyond executing the normal responsibilities of his employment as a tax assessor, and thus no search was conducted by him under the test delineated in Katz. See Wildgren v. Maple Grove Twp., 429 F.3d 575 (6th Cir. 2005) ("[A] property assessor does not conduct a Fourth Amendment search by entering the curtilage for the tax purpose of naked eye observations of the house's plainly visible exterior attributes and dimension."); Taylor v. Mich. Dep't of Natural Res., 502 F.3d 452, 456-57 (6th Cir. 2007) (Noting the importance of the "methods of observation and purpose of [the entrant's] conduct" in determining whether a search occurred).
(Updated to change case name.)
The protective sweep here was excessive because it was to find evidence, not people. Also, the search for defendant’s cell phone under the guise of protective sweep meant that it was not in “plain view.” Also, Art. 36(1)(b) of Vienna Convention on Consular Relations requires a foreign national’s embassy be notified of his arrest, but failure to do so doesn’t lead to suppression of statements. United States v. Silva, 2013 U.S. Dist. LEXIS 10425 (W.D. Wash. January 25, 2013):
The Court finds government agents exceeded the scope of their lawful entry into the home and the protective sweep. First, Agent Escobar arrested Silva within a minute of their entry into the home. Silva was handcuffed without incident. Yet, government agents remained in the home, failing to depart after the arrest was completed. Instead, without a search warrant and without advising Silva of his Miranda rights, Agent Escobar questioned Silva with the purpose of obtaining incriminating evidence. The Court cannot find a reasonable basis upon which the questions posed by Agent Escobar— the presence of guns, drugs, and money as well as the location of Silva's cell phone—related to his arrest. At oral argument the government contends the delay was justified in order to allow Silva to dress. Given the nature of Agent Escobar's questioning, directed at locating the cell phone, not the Defendant's clothing, the Court finds this argument disingenuous. Agent Escobar did not ask Silva where he kept his pants. Instead, in an apparent effort to skirt the lack of a search warrant, government agents remained in the home to obtain incriminating evidence. In doing so, government agents exceeded the scope of their lawful entry into the residence. The sweep for safety was quickly accomplished and there was no need to go to the bedroom except to locate the phone.
Second, the Court does not believe the discovery of the cell phone was the result of plain view. For the plain view doctrine to apply, "'two requirements must be met: the officers must be lawfully searching the area where the evidence is found and the incriminatory nature of the evidence must be immediately apparent.'" United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted). As discussed in the preceding paragraph, although government agents had authority to enter the Silva home for the purpose of arresting him and to conduct a sweep for their own protection, the scope of that authority was exceeded when after arresting Silva, they remained to conduct a fishing expedition in an effort to locate the cell phone. ...
NCIS was investigating potential criminal activity of Navy personnel in civilian areas of Guam, and that was a proper investigative function. Therefore, the Posse Comitatus Act wasn’t violated, and there was nothing to suppress. (The defense also raised dismissal as a remedy, which case law settles it isn't without a pattern. Here, none.) United States v. Ho, 2013 U.S. Dist. LEXIS 10007 (D. Guam January 22, 2013).
Knowledge of right to refuse a consent search is weighty on voluntariness. “Moreover, a review of the ‘Permissive Authorization for Search and Seizure,’ which was signed by Defendant Ho, shows the following statement, “I have been informed of my constitutional right to refuse to permit this search in the absence of a search warrant. In full understanding of this right, I have nevertheless decided to permit this search to be made.’” United States v. Ho, 2013 U.S. Dist. LEXIS 10010 (D. Guam January 22, 2013).
The search warrant for defendant’s computer was issued the day after it was seized, and this is, of course, [quite] reasonable [considering cases have permitted much longer delays elsewhere]. United States v. Devlin-Bell, 2013 U.S. Dist. LEXIS 9876 (E.D. Pa. January 17, 2013).*
Apparently abandoned rental property was subject to landlord and police entry. If viewed merely as a consent, the landlord could not consent to the police entering, too, because the landlord’s authority to enter is limited. A point in opposition to search raised for the first time at oral argument is waived. Frobouck v. State, 2013 Md. App. LEXIS 6 (January 24, 2013).
Where the defendant shipped a package to a DEA CI, the CI had the ability to consent as would a common tenant. “Assuming (without deciding) that Defendant has standing, the Court holds that the DEA had the consent of the CS to accept delivery of the packages and conduct the warrantless searches of their contents.” United States v. Williams, 2013 U.S. Dist. LEXIS 10051 (W.D. Tenn. January 25, 2013).*
The fact that one of three taillights was out is normally not a basis for a stop in Arizona. Here, the officer also testified that the vehicle posed a potential safety hazard because others approaching from the rear might not be able to judge its speed. That made the stop reasonable. State v. Becerra, 2013 Ariz. App. LEXIS 7 (January 10, 2013).*
A § 2703(d) order to Twitter to disclose information in the Bradley Manning case is not subject to a public right of access and public filing the same as search warrants. The police arguments are significantly different. In Re: Application of the United States of America for an Order Pursuant to 18 U.S.C. Section 2703(d), 11-5151 (4th Cir. January 25, 2013):
Subscribers concede that there is no long tradition of access specifically for § 2703(d) orders, given that the SCA was enacted in 1986. However, they argue that under Press Enterprise, where a relatively new process is at issue, courts focus on the logic prong. Our post-Press Enterprise precedent makes clear that both the experience and logic prongs are required. See Goetz, 886 F.2d at 64 (stating a conjunctive test); see also United States v. Gonzales, 150 F.3d 1246, 1258 (10th Cir. 1998) (citing Goetz for the proposition that some courts adopt the approach that Press-Enterprise requires satisfaction of both prongs).
Even assuming only the logic prong is required, this prong is not met. The logic prong asks whether public access plays a significant role in the process in question. The § 2703(d) process is investigative, and openness of the orders does not play a significant role in the functioning of investigations. Section 2703(d) proceedings consist of the issuance of and compliance with § 2703(d) orders, are ex parte in nature, and occur at the investigative, pre-grand jury, pre-indictment phase of what may or may not mature into an indictment. Pre-indictment investigative processes "where privacy and secrecy are the norm" "are not amenable to the practices and procedures employed in connection with other judicial proceedings." See In re Sealed Case, 199 F.3d 522, 526 (D.C. Cir. 2000).
Los Angeles Times: Pregnant woman hogtied by officers gets $250,000 settlement by Richard Winton:
Tamara Gaglione was pulled over for talking on her cellphone while driving on the freeway. A video captured her being hurled to the ground and tied up.
On the Media: Facebook's New Social Search:
Facebook has introduced a new search tool called social graph search, which lets users search across the Facebook database by users' interests. Privacy advocates aren't pleased with the new feature, arguing that it makes information about users too easy to find. Bob talks to Tom Scott, who has been given early access to the feature and has been publicizing some of his searches.
Yet another diminution of privacy, merely using computer software to reveal what's already there.
Facebook is Exhibit A proving we have created a whole generation of people who have no respect for their own privacy. More importantly, what does that say about the future of the Fourth Amendment? That scares me.
As H.R. "Bob" Haldeman put it on the Nixon White House tapes, "Once the toothpaste is out of the tube, it is hard to put it back in." Once you put something on the Facebook or the Internet, you can't take it back. Even if you delete it, there are websites that can recreate pages at a particular time, and, worse yet, Facebook can provide it by subpoena.
Now, if Facebook would only require a search warrant like Google and Yahoo!. Regretfully, I suspect Mr. Zuckerberg's mentality on this is informed only by his own desire to acquire more information which he knows modern Americans will stupidly give up. We all know it. What does this portend for privacy advocates in the next decade?
WaPo: Accused drug dealer, representing himself, hears prosecutors open their case by Matt Zapotosky. Antoine Jones, the citizen accused in United States v. Jones, started his trial this last week, representing himself:
As prosecutors laid out the case against him, Antoine Jones took copious notes, loudly tearing sheets of paper from a notebook as he filled each page.
Jones, a former nightclub owner and suspected high-level cocaine dealer, is representing himself in what is his third trial on a drug conspiracy charge. If Friday’s brief proceedings in the District’s federal court were any indication, the next several weeks of arguments and testimony will provide several more memorable moments.
NYTimes Editorial: When Police Violate the Constitution:
The federal courts are bearing down on the New York City Police Department’s constitutionally suspect stop-and-frisk program, under which hundreds of thousands of citizens are stopped on the streets each year, often illegally and for no discernible reason. Earlier this month, the federal judge who is presiding over three lawsuits that challenge different parts of the program issued her harshest ruling yet, putting the city on notice that some aspects of stop and frisk are clearly unconstitutional.
The ruling, by Judge Shira Scheindlin of Federal District Court in Manhattan, came in the case of Ligon v. the City of New York. The case was brought on behalf of people who say they were illegally stopped, given tickets or arrested on trespassing charges in private apartment buildings, some of them in buildings where they lived.
The judge excoriated the city for flagrant indifference to the Fourth Amendment. ...
Plaintiff took off his shirt at airport security, and the text of the Fourth Amendment was written on his chest. Wearing only shorts and socks, he cooperated with the screening process, and he was arrested and handcuffed for disorderly conduct. He stated a claim for First Amendment retaliation against the TSA officers and local police who arrested him. Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013):
In anticipation that he might be subjected to enhanced screening, Mr. Tobey had written the text of the Fourth Amendment on his chest as he believed AIT scanning was unconstitutional. Before proceeding through the AIT unit, Mr. Tobey calmly placed his sweatpants and t-shirt on the conveyor belt, leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on his chest. Agent Smith advised Mr. Tobey he need not remove his clothes. Mr. Tobey calmly responded that he wished to express his view that TSA’s enhanced screening procedures were unconstitutional.
At this point, Agent Smith radioed for assistance. As commanded by her supervisor, Appellant-Agent Jones, Agent Smith ordered Mr. Tobey to remain in front of the AIT unit. Agent Jones and unknown Appellant-Agent Doe then asked RIC police for assistance. At no point did Mr. Tobey refuse to undergo the enhanced screening procedures. Nor did he decline to do anything requested of him. In fact, Mr. Tobey alleges that he "remained quiet, composed, polite, cooperative and complied with the requests of agents and officers."
RIC police officers Vann and Mason arrived on the scene and immediately handcuffed and arrested Mr. Tobey. None of the TSA agents informed RIC police of what occurred at the screening station, nor did RIC police ask. Officer Vann escorted Mr. Tobey to a side area and informed him he was under arrest for creating a public disturbance. Agent Doe searched Mr. Tobey’s belongings, removing unidentified items. Officer Mason then collected Mr. Tobey’s belongings with assistance from Agents Smith and Doe.
Mr. Tobey was then taken to the RIC police station where Officer Vann and other officers questioned Mr. Tobey and threatened him with various criminal sanctions. Mr. Tobey was eventually charged with disorderly conduct in a public place. See Va. Code Ann. § 18.2-415. The officers later released Mr. Tobey after consulting with an Air Marshal from the Federal Air Marshal’s Joint Terrorism Task Force. In total, Mr. Tobey was held for over an hour. Mr. Tobey boarded the plane without further incident. The Commonwealth Attorney for Henrico County subsequently dropped the disorderly conduct charge.
He survives qualified immunity analysis:
These legal conclusions are well supported by the facts laid out in Mr. Tobey’s complaint. Mr. Tobey alleges that he removed his sweatpants and t-shirt to reveal the text of the Fourth Amendment on his chest. Appellants told him that he did not have to remove his clothing, but he responded that he wished to express his views that the screening process was unconstitutional. Immediately after this assertion, Appellants engaged RIC police officers to arrest him.
They handcuffed and seized him with no questioning and without telling him why he was being arrested. In short, Mr. Tobey’s complaint satisfies all three elements of a First Amendment claim as he alleges: (1) he engaged in constitutionally protected non-violent protest; (2) he was seized as a result of the protest; and (3) the temporal proximity of his peaceful protest and his arrest, unsupported by probable cause, shows Appellants engaged in impermissible retaliation. Cf. Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (observing that "the timing of the search raises an inference of retaliatory motive"). The factual allegations in the complaint, viewed as a whole, have "facial plausibility" that "allow the court to draw reasonable inference that the defendant[s] [are] liable for misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This is not a case where the complaint is merely "threadbare recitals of a cause of action’s elements supported by mere conclusory statements." Id. These factual allegations, when viewed as accurate, adequately support Mr. Tobey’s legal assertion that he was unlawfully seized in retaliation for exercising his protected First Amendment rights.
Defendant was stopped driving a car with allegedly overtinted windows, and he lowered the windows when asked to talk to the officer and presented his license. There were no articulable facts given at all to support a Long protective sweep of the vehicle for weapons because defendant did or said nothing to suggest he was a danger or armed. Commonwealth v. Cartagena, 2013 PA Super 12, 63 A.3d 294 (2013):
In contrast to the Commonwealth's recitation of the facts, our review of the record in this case reveals that it is significantly lacking in articulable facts that would allow us to reverse the suppression court's decision. The entirety of Officer Johncola's testimony comprises little more than six pages of transcript, with the direct examination conducted by the Commonwealth covering just over three pages. The suppression hearing transcript contains no information about Officer Johncola's level of training or experience in conducting traffic stops (or even years of service) and is devoid of any testimony that Officer Johncola believed, based on his training and experience, that Cartagena possessed a weapon or had access to a weapon in his vehicle. See Terry, 392 U.S. at 30-31; Long, 463 U.S. at 1049-50; see also In re O.J., 958 A.2d at 563 (officer testifying that police "normally" conduct a protective weapons search of a vehicle where they observe furtive hand movements during a stop, as "that behavior creates a fear that a weapon may be located where the movements occurred."). There was also no testimony describing the neighborhood in which this stop occurred, i.e., there is no testimony that it was a high-crime area; only that police stopped Cartagena in the 100 block of Lehigh Avenue in Philadelphia. ... Furthermore, there is no indication that Cartagena did not immediately stop for the police ...; that the police saw any weapons in the vehicle prior to conducting a the protective search (see Long, 463 U.S. at 1051; ...); or that he made any movements that caused Officer Johncola to believe that Cartagena was in possession of a weapon or that Cartagena posed a safety threat ....
A constable had a court order he was serving to have defendant tenant’s gas turned off because others in the apartment building could smell the gas, and it was feared dangerous. When the constable came to the apartment with a gas technician to deal with it, defendant at the door acted like he had a gun in hand, and a gun was seen behind him. His actions accentuated the sense of emergency, and the constable and gas company representative lawfully entered defendant’s house to neutralize the gas issue under exigent circumstances. The civil court order satisfied the warrant requirement of the Fourth Amendment and state constitution. The officers had to call for an experienced firearms tech to neutralize all the guns. In the course of that he found a bomb. Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 982 N.E.2d 52 (2013).
During defendant’s recorded police interview played for the jury, it came out that he refused consent of his cell phone. Agreeing that refusal of consent shouldn’t come before the jury, this was an isolated reference and the court isn’t convinced it was prejudicial. State v. Pellegrini, 2013 Ohio 141, 2013 Ohio App. LEXIS 116 (3d Dist. January 22, 2013).*
Pennsylvania sheriffs do not have the statutory authority to establish sobriety checkpoints on their own because their authority to arrest doesn’t include suspicionless stops. Commonwealth v. Marconi, 64 A.3d 1036 (Pa. 2013), revg 2010 PA Super 83, 996 A. 2d 1070 (2010) (concur here; dissent here):
In terms of such independent authority, we conclude essentially where we began. Again, suspicionless stops are not made based on an in-presence breach of the peace or commission of a felony; rather, they are inherently investigatory. Cf. Commonwealth v. Dobbins, 2005 PA Super 274, 880 A.2d 690, 696 (Pa. Super. 2005) (Del Sole, P.J., dissenting) ("In this case, the sheriffs were conducting an investigation, thus looking for a breach of the peace, not witnessing one."). Since Leet, majority decisions of this Court have repeatedly confined sheriffs' non-statutory arrest powers to those for in-presence breaches of the peace or felonies. See Dobbins, 594 Pa. at 87-89, 934 A.2d at 1180-81; Kopko, 586 Pa. at 183, 892 A.2d at 774. Accordingly, the Leet rationale -- which defines sheriffs' common-law arrest powers for present purposes -- in no way authorizes the independent establishment and conduct of suspicionless roadside checkpoints by sheriffs or sheriffs' deputies. As amply related by the common pleas and intermediate courts, suspicionless stops represent a peculiar -- and highly regulated -- exercise of police powers, which are particularly broad in matters pertaining to highway safety. See Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340-41 (1983).
The members of this Court maintain great respect and express gratitude for sheriffs and their deputies in the performance of indispensable public services within their realm. We reiterate, however, that they are not police officers -- nor are they invested with general police powers beyond the authority to arrest for in-presence breaches of the peace and felonies -- in the absence of express legislative designation.
We hold that the Sheriffs did not have the authority to independently establish and conduct the suspicionless sobriety checkpoint at which Appellee was arrested.
Defendant confessed after an illegal arrest. Miranda warnings and not being treated confrontationally during the illegal arrest by the police did not purge the taint. Suppressing here serves the purposes of the exclusionary rule. Not suppressing evidence on these facts would reward illegal police and likely cause future violations. State v. McDonald-Richards, 2012 Minn. LEXIS 724 (January 23, 2012):
The district court improperly admitted McDonald-Richards' statement because the court did not consider the statement's admissibility "in light of the policies served by the Fourth Amendment exclusionary rule." Weekes I, 312 Minn. at 7, 250 N.W.2d at 594. One of the purposes the exclusionary rule serves is to deter police violations of the Fourth Amendment. Brown, 422 U.S. at 599. There is no dispute in this case that McDonald-Richards' Fourth Amendment rights were violated when the police seized her without probable cause. Indeed, police witnesses at the pre-trial suppression hearing conceded that they had no information regarding McDonald-Richards' participation in the robbery and murder at Avi's and considered her merely a person of interest when they arrested her. Based on the information known to the arresting officers at the time of McDonald-Richards' arrest, there was no objective basis for a reasonable officer to conclude there was probable cause for her arrest. See State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (noting that probable cause is measured objectively). When police arrest someone without probable cause and fail to articulate any other lawful basis for their conduct, the police violation of the Fourth Amendment is flagrant. See Weekes II, 268 N.W.2d at 710 (noting that "[t]he most important factor in the determination that the confession was illegally obtained was the flagrant nature of the police action."); see also Weekes I, 312 Minn. at 7, 250 N.W.2d at 594 (noting that police action is considered flagrant when it is "clear that [the] defendant was taken into custody and confined without a warrant and without probable cause" because "absent probable cause there is not and never has been any lawful basis for holding a person for investigation or on suspicion.") (citation omitted) (internal quotation marks omitted). Such unlawful seizures will not be deterred if, as the district court held, the giving of a Miranda warning, two hours of confinement, and a non-confrontational police interrogation are sufficient to purge the taint from the constitutional violation.
Wired.com: Yahoo, Like Google, Demands Warrants for User E-Mail by David Kravets:
Yahoo demands probable-cause, court-issued warrants to divulge the content of messages inside its popular consumer e-mail brands — Yahoo and Ymail, the web giant said Friday.
The Sunnyvale, California-based internet concern’s exclusive comments came two days after Google revealed to Wired that it demands probable-cause warrants to turn over consumer content stored in its popular Gmail and cloud-storage Google Drive services — despite the Electronic Communications Privacy Act not always requiring warrants.
“Yes, we require a probable cause warrant for e-mail content,” said Yahoo spokeswoman Lauren Armstrong, in an e-mail interview. “That is more than ECPA requires.”
The nation’s other major consumer-facing e-mail provider — Microsoft — which markets the Hotmail and Outlook brands, declined comment for this story.
In short, Yahoo and Google are granting their customers more privacy than the four corners of the ECPA. There’s been a string of conflicting court opinions on whether warrants are required for data stored on third-party servers longer than 180 days.
Defendant was not yet in custody when he was Mirandized and lawyered up. Then the officer asked for and got consent for a DNA sample. “Frazier knew he was not under arrest and was free to leave at any time. We also cannot find any sign that law enforcement's actions were so coercive that Frazier's will was overborn.” Defendant wasn’t in custody so that did not violate the Fifth and Sixth Amendments. State v. Frazier, 2013 Ohio 142, 2013 Ohio App. LEXIS 115 (3d Dist. January 22, 2013).*
Defendant was stopped for an expired LPN in a high crime area. When the officer approached the driver, the officer could see a digital scale in the pocket on the back of the front seat. Defendant was asked to get out of the car, and he refused. He was physically removed. He was asked it he was armed, and he wouldn’t say. He was handcuffed. The smell of marijuana was coming from the car, and he voluntarily consented to a search of the car. United States v. Smalls, 2013 U.S. Dist. LEXIS 9681 (D. S.C. January 24, 2013).*
NY Daily News: NYPD Commissioner says department will begin testing a new high-tech device that scans for concealed weapons | The device, which tests for terahertz radiation, is small enough to be placed in a police vehicle or stationed at a street corner where gunplay is common by Rocco Parascandola:
Get ready for scan-and-frisk.
The NYPD will soon deploy new technology allowing police to detect guns carried by criminals without using the typical pat-down procedure, Police Commissioner Raymond Kelly said Wednesday.
The department just received a machine that reads terahertz — the natural energy emitted by people and inanimate objects — and allows police to view concealed weapons from a distance.
“If something is obstructing the flow of that radiation, for example a weapon, the device will highlight that object,” Kelly said.
On defense summary judgment in a forfeiture case, the defense has to prove a negative, that the officers did not have “a reasonable belief that the property had or would have a substantial connection with illegal activity.” Grant of summary judgment reversed. State v. Ninety Thousand Two Hundred Thirty-five Dollars and No Cents in United States Currency ($90,235), 11-0642 (Tex. January 25, 2013).* This is the gobbledygook of the month:
Bueno’s only summary judgment evidence was his affidavit. We need not address the affidavit’s weight in light of Bueno’s status as an interested witness, because his affidavit was insufficient to support summary judgment regardless of his status. See Tex. R. Civ. P. 166a(c) (stating the specific requirements for when summary judgment may be based on the uncontroverted testimonial evidence of an interested witness). The affidavit states, as relevant to any connection between the seized property and illegal drug dealing activities, that (1) the vehicle and money were “acquired legally and lawfully”; and (2) the money represented a partial payment from the sale of his ranch. But the affidavit wholly fails to address whether the officers had a reasonable belief that the property had or would have a substantial connection with illegal activity as pleaded by the State—even assuming Bueno could address what the officers believed and whether their beliefs were reasonable. The affidavit certainly does not conclusively prove that none of them did. And until Bueno conclusively established that none of them had such a belief, the trial court could not have properly granted summary judgment on Bueno’s second ground. The court of appeals erred by holding otherwise.
h/t Americans for Forfeiture Reform
The court of appeals looks at the photographs of defendant’s car and concludes the window tint justification for the stop was objectively unreasonable, and the motion to suppress should have been granted. Sanders v. State, 981 N.E.2d 616 (Ind. App. 2013).*
Defendant was arrested for OWI, but the officer knew defendant and that he was a suspect in several burglaries. On this record, there was a fair probability defendant had evidence of burglaries in the car. Thus, Gant was no impediment to searching the trunk. State v. Lefler, 2013 WI App 22, 346 Wis. 2d 220, 827 N.W.2d 650 (2013).*
Defendant was carrying a gun in his waistband at a racetrack. Security there was provided by private security and sheriff’s deputies. A tipster told a security officer that defendant had a gun, and defendant was near a bathroom near a large crowd including children. “Mr. Johnson walked by Mayes and intentionally gave him a ‘shoulder bump,’ allowing him to feel a gun in Mayes’s front waistband. Based on his experience searching for weapons at night clubs, Mr. Johnson felt what he believed to be an automatic. He proceeded to move Mayes away from the bathroom, search him, secure the loaded gun, and place Mayes in handcuffs.” Defendant was taken to a sheriff’s deputy and turned over. He was a felon in possession, and this was purely a private search. United States v. Mayes, 2013 U.S. Dist. LEXIS 9471 (D. S.C. January 24, 2013).*
Police reliance on a prosecutor’s legal advice on probable cause to arrest is entitled to qualified immunity. Fiore v. City of Bethlehem, 510 Fed. Appx. 215 (3d Cir. 2013).*
In this § 1983 false arrest case, defendants did not violate plaintiffs’ Fourth Amendment rights by arrest and seizure of a car for a hit-and-run where the car well matched the description given by the victims. There was probable cause. Robinson v. Cook, 706 F.3d 25 (1st Cir. 2013).*
Defendant’s truck was illegally parked near the visitor center of Yosemite National Park, and a park ranger approached to get defendant to move it. The smell of marijuana coming from the truck was probable cause more might be found in the truck. United States v. Parker, 919 F. Supp. 2d 1072 (E.D. Cal. 2013).*
You never know where you can finding sufficient evidence of standing: Here, the CI’s statement to the police showed the defendant had standing. Then defense counsel undermined it in a 404(b) pleading admitting no privacy interest in the premises. United States v. Stanton, 2013 U.S. Dist. LEXIS 8983 (W.D. Pa. January 22, 2013)*:
On the other hand, Officer Wilner's communications with CI support the conclusion that Defendant had an expectation of privacy in 310 Broadway. Officer Wilner testified that CI had seen Defendant at the residence "more than once." (Tr. at 25-26). Although CI reported that Defendant was dealing narcotics out of the residence, (Tr. at 41), Officer Wilner also testified that CI told him that "[Defendant] was staying there." (Tr. at 57, 60). Although no addressed mail, clothing or witness testimony was produced relating to Defendant's status, the evidence does show that Defendant had been staying at the residence for some time. Defendant had not been located at his other listed residences by his probation officer, and CI had seen Defendant multiple times at the residence, stating that he had been staying there. Accordingly, based on the present record, it appears that Defendant was more than just a "short-term guest" and had an expectation of privacy in 310 Broadway. Therefore, he has established standing to challenge the evidence resulting from the September 9, 2010 search of 310 Broadway Avenue.9
9 The Court does recognize defense counsel's argument that 310 Broadway is "a residence to which the Defendant did not even have a privacy interest" in her supplemental brief addressing Rule 404(b) issues. (Docket No. 91, Supplemental Brief to Defendant's Motion to Produce Evidence that the Government Intends to use Under Federal Rules of Evidence 404(b) and 609 and Motion to Sever). If Defendant maintains this statement, then he would lack standing to challenge the evidence found during the September 9, 2010 search of 310 Broadway Avenue. Because the Court concludes there was no Fourth Amendment violation, there is no need to further address the legal effect of Defendant's statement.
1. Whether an organizer has standing in the “office” of this DTO is a close question, and this defendant might actually have it. Moreover, the government makes many contentions of this defendant’s control over and presence at the place then argues he still doesn’t have standing. So, assuming standing, he loses on the merits of staleness, lack of probable cause, and a Franks issue. United States v. Savage, 2013 U.S. Dist. LEXIS 9360 (E.D. Pa. January 24, 2013).* As to standing, which is all dicta:
Defendant's classification of 3510 Palmetto as his "office" also bolsters his claim to standing. See, e.g., United States v. Chaves, 169 F.3d 687, 690-91 (11th Cir. 1999) (defendant had legitimate expectation of privacy in warehouse despite lack of formal ownership and maintenance of a different "principal place of business," because he conducted business and kept personal possessions there). The fact that Defendant was employed in the business of narcotics distribution does not negate the legitimate expectation of privacy in a place of business under his control.
The Government contends that management of a criminal enterprise dedicated to narcotics distribution is not a privacy interest that society is prepared to recognize as legitimate. It is true that an "interest in possessing contraband cannot be deemed 'legitimate.'" Illinois v. Caballes, 543 U.S. 405, 408 (2005). At stake for Defendant here was not merely an interest in possessing contraband that could justify, as in Caballes, a cursory dog sniff of a vehicle. Much of Defendant's business operations were conducted from the 3510 Palmetto warehouse.
We will assume that Defendant has standing to challenge this search, even as we have reservations about 3510 Palmetto's status as an "office." Accordingly, we will proceed to Defendant's substantive Fourth Amendment claims.
2. “Defendant's use of an alias in renting Apartment 46C and registering the Villager does not negate his standing to challenge this search.” Defendant’s car was sufficiently connected to drug activity and was where he was found, and it was named in the warrant. Its search was proper, and, if it wasn’t, the good faith exception clearly applies. United States v. Savage, 2013 U.S. Dist. LEXIS 9354 (E.D. Pa. January 24, 2013):
Defendant's use of an alias in renting Apartment 46C and registering the Villager does not negate his standing to challenge this search. See, e.g., United States v. Watson, 950 F.2d 505, 508 (8th Cir. 1991) (defendant had standing to challenge search when he had rented home under alias); United States v. Pitts, 322 F.3d 449, 459 (7th Cir. 2003) (defendant had standing to challenge search of mail sent to alias); United States v. Newbern, 731 F.2d 744, 748 (11th Cir. 1984) (defendant had standing to challenge search of hotel room rented to alias). Defendant had rented Apartment 46C several weeks prior to his arrest and the subsequent search of the apartment. (Notice of Occupancy.) Defendant was, by all accounts, residing in Apartment 46C at the time of his arrest. Similarly, the Villager was registered to Defendant's alias and was sitting in front of the apartment. Accordingly, Defendant has standing to challenge the search of Apartment 46C and the Villager.
3. Sufficient nexus was shown to search defendant’s storage locker based on the facts and the affiant officer’s assertion of knowledge of where drug traffickers keep their stuff. United States v. Savage, 2013 U.S. Dist. LEXIS 9362 (E.D. Pa. January 24, 2013):
Defendant also argues that "the information provided within the four corners of the affidavit fails to establish a sufficient nexus between the alleged criminal activity and the storage locker." (Def.'s Mot. 20.) Courts may inquire into whether there is probable cause as to "the nexus between the crime and the place to be searched." United States v. Jones, 994 F.2d 1051, 1054 (3d Cir. 1993). Such a nexus can "be established by direct observation or by normal inferences." United States v. Martinson, 811 F. Supp. 1097, 1102 (E.D. Pa. 1993) (citations omitted).
Special Agent Lewis's Affidavit was more than sufficient to establish probable cause to believe that Unit #105 was linked to the drug trafficking crimes in which Defendant was a suspect at the time. The Affidavit notes that the receipt was seized from Defendant's vehicle. (Affidavit ¶ 9.) It notes that the search of Apartment 46C—in front of which the Villager was parked—yielded illicit controlled substances and equipment used for processing cocaine. (Id. at ¶ 8.) It further describes conversations with Anne Ketterer at Devon, which yielded evidence that Defendant, using his alias, had rented Unit #105. Finally, the Affidavit notes, based on Special Agent Lewis's training and experience, that "individuals who distribute controlled substances frequently use storage facilities" for illegal purposes. (Id. at ¶ 13.) The experience of an affiant can assist a magistrate in determining that probable cause exists. See, e.g., United States v. Price, 558 F.3d 270, 282-83 (3d Cir. 2009) (finding probable cause to search defendant's home where the affiant stated in the affidavit that based on his experience, individuals who engage in drug trafficking often keep drugs, money and other contraband in their homes). The Affidavit clearly establishes that Defendant was connected to illegal drug activities, and that Defendant was connected to Unit #105. We are satisfied that Judge Smith had more than a sufficient basis upon which to determine that there existed probable cause to issue the Devon search warrant.
The United States remains far ahead of all governments who request user information from Google, according to the company’s latest Transparency Report (July through December 2012) which was released on Wednesday.
American government agencies (including federal, state, and local authorities) made over 8,400 requests for nearly 15,000 accounts—far exceeding India, the next largest country in terms of information requests. In 88 percent of those queries, Google complied with at least some, if not all, of the requests.
For the first time, the search giant is also breaking down the type of legal requests that were made.
Google said that 22 percent of those requests were made under probable cause driven search warrants delivered via the Electronic Communications Privacy Act (ECPA). Authorities have also been known to request information using ECPA subpoenas, which are much easier to obtain. It's unclear how many of the subpoenas or warrants Google complied with—the company has only said it complied in part or in full to 88 percent of total requests from American authorities.
"In order to compel us to produce content in Gmail we require an ECPA search warrant," said Chris Gaither, Google spokesperson. "If they come for registration information, that's one thing, but if they ask for content of e-mail, that's another thing."
GooglePublicPolicy.blogspot: Transparency Report: What it takes for governments to access personal information by Richard Salgado, Legal Director, Law Enforcement and Information Security
•68 percent of the requests Google received from government entities in the U.S. were through subpoenas. These are requests for user-identifying information, issued under the Electronic Communications Privacy Act (“ECPA”), and are the easiest to get because they typically don’t involve judges.
•22 percent were through ECPA search warrants. These are, generally speaking, orders issued by judges under ECPA, based on a demonstration of “probable cause” to believe that certain information related to a crime is presently in the place to be searched.
•The remaining 10 percent were mostly court orders issued under ECPA by judges or other processes that are difficult to categorize.
It is settled, as of now at least because the issue is in SCOTUS, that a drug dog alert is probable cause. United States v. Salgado, 2013 U.S. Dist. LEXIS 8808 (D. S.D. January 17, 2013).* [Note: This long discussion of what a drug dog does and why, including accuracy, seems almost like a prelude to imposing Davis-type good faith on drug dogs if SCOTUS reverses in its current cases.]
Officers had knowledge of a small drug sale by defendant, and that was probable cause to stop him. United States v. Elliott, 2013 U.S. Dist. LEXIS 8829 (E.D. Mich. January 23, 2013).*
Defendant consented to a search while on state parole. He was a fugitive from supervision, and officers were looking for him. When he was found, he’d put a gym bag in a car. The gym bag was properly searched. United States v. White, 2013 U.S. Dist. LEXIS 9122 (S.D. Ill. January 23, 2013).*
There was clearly probable cause for the automobile exception in this case, and defense counsel was not deficient for not filing a motion to suppress on what would be a frivolous ground. Marin-Vega v. United States, 2013 U.S. Dist. LEXIS 8593 (M.D. Fla. January 22, 2013).*
DigitalCrazyTown: Google Exec: Data Privacy Laws Violate the Fourth Amendment by Cynthia Brumfield:
(Washington, DC) The main existing law that limits the scope of law enforcement electronic snooping violates the Fourth Amendment to the Constitution when it comes to Internet communications, a top Google expert said here today. Speaking at the Congressional Internet Caucus' Annual State of the Internet Conference, Google's Director of Law Enforcement and Information Security Richard Salgado said that "our view is that the statute [the Electronic Communications Privacy Act or ECPA] is out of compliance with the Fourth Amendment because the government can call for the production of your data without a search warrant." The Fourth Amendment guards against unreasonable searches and seizures by the government.
ECPA, drafted in the 1980s when telephones were the primary mode of electronic communications, does not extend to email or other forms of Internet communication. Under ECPA, government authorities can and do request user information records with either commonplace, easy-to-issue subpoenas or with little more than written notices stating that the data are pertinent to an investigation. Telephone wiretaps, on the other hand, are usually subject to more stringent requirements for search warrants, which are issued by courts and judges and are based on the legal standard of probable cause.
(1) Why is this website the first to report this?
(2) Why isn't Google, with more money than the U.S. Government, not litigating this? Or are they waiting for the right opportunity to sue?
This just states the obvious: Technology can overwhelm statute, and that makes it unconstitutional. That's exactly what happened with ECPA.
Atlantic.com: 'Stop and Frisk' May Be Working—But Is It Racist? by Jesse Alejandro Cottrell:
New York's policy might indeed be reducing gun violence. But residents aren't sure it's worth the cost.
"I just got stopped like two blocks ago," said a frustrated Harlem teenager to the two police officers who approached him.
This is the first recorded audio of a New York City "stop and frisk" recorded surreptitiously by a 16-year-old brown-skinned high schooler identified only as "Alvin." Soon after, the encounter escalates into shouting.
"Why are you carrying an empty book bag?" the police ask Alvin.
"Because I had my hoodie in there. It was cold."
"You want me to smack you?"
"Why you gonna smack me?"
"Who the fuck do you think you're talking to? Shut your fucking mouth."
Quick clicks of tightening handcuffs are heard on the recording as Alvin frantically asks, "What am I getting arrested for?"
One of the policemen responds, "For being a fucking mutt."
"That's against the law, being a mutt?" Alvin asks.
"I will break your fucking arm off right now," the policeman answers.
The recording, which surfaced earlier this year on The Nation's website, enraged civil rights activists already demanding the overhaul of Stop and Frisk, a New York City Police Department program that has led to the stops and searches of hundreds of thousands of New Yorkers, most of whom are black or Latino, every year.
Defendant was handcuffed and in a police interrogation room when he asked to talk to his family alone. Police let him, but the recording was still being made. There was no reasonable expectation of privacy in the police interrogation room merely from the intimate family conversation. The police did nothing to make defendant think there was any privacy other than letting them in without a chaperone. Georgia already held that conversations in the back of a police car have no reasonable expectation of privacy. Rashid v. State, 2013 Ga. LEXIS 63 (January 22, 2013).
Exigent circumstances supported police entry into a hotel room with a manager’s key where a “visibly upset woman” reported a rape in the room by a foreign visitor whom the police feared might flee if they took the time to get a warrant, even a telephonic warrant, because they had no information on the man other than a first name. People v Green, 2013 NY Slip Op 295, 104 A.D.3d 12, 958 N.Y.S.2d 138 (1st Dept. 2013):
Finally, we reject defendant's argument that his suppression motion should have been granted. The warrantless entry into his hotel room was justified by exigent circumstances (see People v McBride, 14 NY3d 440, 445-446 , ...). A visibly upset woman informed the police that she had just been raped and that the foreign visitor who had raped her, and whom she knew only by his first name, was staying in the hotel room. The police had probable cause to arrest defendant for a very serious charge, and they had reason to believe that he was still in the hotel room2. [2 At trial, defendant was acquitted of the rape charge.] Regardless of whether defendant was aware that he was about to be arrested, there was a danger that he might choose to flee (see People v Williams, 181 AD2d 474, 476 , lv denied 79 NY2d 1055 ), or might simply check out of the hotel and return to his native country, rendering him nearly impossible to locate given the lack of pedigree information. Similarly, there was reason to believe that a drug used in commission of the alleged rape was in the room, and that defendant might dispose of it either to destroy evidence or for some other reason.
Additionally, the officers entered the hotel room peaceably, using the manager's key, and the record does not establish that it would have been practical for the police to proceed by way of a warrant, by telephone or otherwise (see United States v Malik, 642 F Supp 1009, 1012 [SD NY 1986]). After the police entered, defendant gave his written consent to a search of the room, which yielded evidence relating to the reckless endangerment charge of which defendant was ultimately convicted. The People established the voluntariness of that consent by clear and convincing evidence (see generally People v Gonzalez, 39 NY2d 122, 128-131 ), including evidence that the police informed defendant that he had the right to refuse to consent to a search. The record also supports the hearing court's finding that the consensual search was attenuated from any illegality in the police entry.
NYLJ: Judge Stays Decision Halting Suspicionless Trespass Stops by Mark Hamblett:
A federal judge has stayed, pending appeal, her ruling directing the New York City Police Department to halt suspicionless stops for trespass of people at Bronx buildings whose owners have enlisted in a patrol program. Southern District Judge Shira Scheindlin (See Profile) on Jan. 8 held in the putative class action Ligon v. City of New York, 12 civ. 2274, that officers are violating the Fourth Amendment rights of residents and visitors in buildings that take part in the NYPD's Trespass Affidavit Program (NYLJ Jan. 9). She issued an injunction against the practice but postponed ordering relief, deciding instead to consolidate consideration of relief pending a March trial in a class action alleging widespread violations of the Fourth Amendment in stop-and-frisk policies on city streets in Floyd v. City of New York, 08 Civ. 1034.
Law.com, Fulton Daily Report: City pushes back on suit over public strip search by R. Robin McDonald:
The city of Atlanta has paid more than $750,000 in damages to eight people who since 2007 have been subjected by Atlanta police to public body cavity and strip searches on city streets.
But the city is pushing back against a ninth complaint—a federal suit by a city worker who claims as many as five officers with the police department's disbanded Red Dog unit stopped him without cause on a city street in Atlanta's West End three years ago, yanked down his pants, and groped his genitals in a fruitless search for illegal drugs. ...
But attorneys for Ricky Sampson, who works for the Atlanta Department of Watershed Management, argue that Sampson is just one more victim of heavy-handed, and often unconstitutional, tactics that city police have employed for years and that have shown little sign of abating despite a string of lawsuits that have successfully challenged humiliating police searches of civilians on city streets and other public venues.
CNET.com: Foil face-recognition cameras with Privacy Visor by Tim Hornyak:
These dorky goggles shine near-infrared light to confuse computer vision systems. Are they the shades of the future?
Worried about all those security cameras tracking your every move? Try rocking one of these visors and enjoy anonymity once again.
At least that's what Isao Echizen from Japan's National Institute of Informatics is trying to achieve with the Privacy Visor (PDF).
Developed with Seiichi Gohshi of Kogakuin University, the visor has a near-infrared light source that messes up cameras but doesn't affect the wearer's vision, according to the institute.
NJ grants a petition for certification on whether a suspect's objection to a search is still binding on state after they remove him so they can ask somebody else for consent. That is, can the state overcome Randolph by removing the objector? State v. Lamb, 213 N.J. 531, 65 A.3d 259 (2013):
It is ORDERED that the petition for certification is granted limited to the issue of whether consent by an occupant to search premises is constitutionally effective against a third party when an absent co-tenant has objected to the search.
The appellate court thought so: State v. Lamb, 2012 N.J. Super. Unpub. LEXIS 1521 (June 28, 2012) (unpublished):
Defendant also argues that even if Karen Marcus's consent were knowing and voluntary, it was ineffective because Steven Marcus had already denied police permission to enter. We disagree.
We recognize that a co-occupant's consent is ineffective when it is countered by the contemporaneous refusal of another co-occupant, who is physically present and is the target of the police investigation. Georgia v. Randolph, 547 U.S. 103, 120, 126 S. Ct. 1515, 1526, 164 L. Ed. 2d 208, 226 (2006). "We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." Ibid. (emphasis added). However, the Supreme Court did not address the situation posed here — "the constitutionality of a search as to a third tenant [in this case, defendant Lamb] against whom the government wishes to use evidence seized after a search with consent of one co-tenant subject to the contemporaneous objection of another[.]" Id. at 120 n. 8, 126 S. Ct. at 1526, 164 L. Ed. 2d at 226.
Steven Marcus's objections also did not negate Karen Marcus's consent; he was no longer present, his refusal no longer contemporaneous, and there was no finding that he was removed for the sake of avoiding his objection. See Id. at 121, 126 S. Ct. at 1527, 164 L. Ed. 2d at 226-27 (consent of one co-occupant not ineffective "[s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection"). See also United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249 (1974) ("[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.") (emphasis added).
On remand from the Sixth Circuit, GPS usage was not a Fourth Amendment violation in the Sixth Circuit at the time it was used here. The Sixth Circuit beeper cases show that there would be no Fourth Amendment violation. Therefore, under Davis, the installation of the GPS on defendant’s car was subject to the good faith exception despite Jones. United States v. Fisher, 2012 U.S. Dist. LEXIS 184855 (W.D. Mich. December 12, 2012) (R&R).*
The government raised three alternatives to support the search: automobile exception with probable cause, search incident (although defendant was handcuffed and in a police car), and a protective weapons search under Long. There was probable cause, so the automobile exception applies. United States v. Towns, 2013 U.S. Dist. LEXIS 8069 (D. R.I. January 18, 2013).*
During defendant’s traffic stop, the officer developed reasonable suspicion of drug possession. Crack cocaine was found on the passenger. When defendant driver produced marijuana, the officer was not obliged to end there–he could have believed it was a ploy to distract him from more. A patdown of defendant then produced crack in defendant’s buttocks. State v. Smith, 2013 Ohio 114, 2013 Ohio App. LEXIS 78 (4th Dist. January 11, 2013).*
Smell of burnt marijuana and presence of a large amount of cash in the driver’s pocket was grounds for a search of the trunk of the car under the automobile exception. State v. Price, 2013 Ohio 130, 986 N.E.2d 553 (6th Dist. 2013).*
Defendant was known to carry a gun. Here, he ran into a parked car in a driveway and allegedly hid the gun from the police before they arrived at the accident scene. Police previously received a report he had threatened people with a gun, but a consent search that day did not reveal the gun. A Terry frisk of defendant for a weapon was appropriate on these facts. The officer searched the area and found a gun case and a backpack, and defendant asserted an interest in them. He consented to a search of the gun case revealing an SKS. He did not consent to search of his backpack. A dog was called in and it alerted to the backpack. That was probable cause for a search. United States v. Morrison, 2013 U.S. Dist. LEXIS 7663 (D. Kan. January 18, 2013).*
Defendant abandoned a gun in flight from police where he crashed his moped, threw the gun so far it hit a house, then fled on foot. He claimed an illegal arrest was in the offing, but he can’t flee and claim his abandonment was caused by the police. Hines v. State, 2013 Ind. App. LEXIS 17 (January 18, 2013).*
Officers had reasonable suspicion to stop defendant at 3:00 am in New Orleans who was bleeding from his arm and carrying a toolbox with broken glass on it. The area was known for car burglaries. In his hand was a wallet, and he couldn’t say whose it was. He was put in a police car, unhandcuffed, and transported three blocks to the address in the wallet, and there was a pickup with a window knocked out. The stop and removing him to the address in the wallet in his hand was reasonable. State v. Foster, 2012 La. App. LEXIS 1749 (La.App. 4 Cir. January 16, 2012).*
Defendant was sitting in front of a convenience store and police pulled up to talk to him, and he spontaneously and voluntarily confessed. State v. King, 109 So. 3d 941 (La. App. 4 Cir. 2013).*
One member of a drug trafficking operation was admittedly just a warehouse worker where the drugs were kept, and the court finds that his connection to the property was not enough to have a reasonable expectation of privacy in the warehouse to have standing. Alternative, the search warrant was issued with probable cause. United States v. Filippi, 2013 U.S. Dist. LEXIS 7850 (S.D. N.Y. January 16, 2013):
In an attempt to make the necessary showing, Burke submitted a declaration stating that he "was employed at, and did work in [the Warehouse] ... during the time periods mentioned." (Burke Decl. ¶ 5.) Such employment, he asserts, "consisted of janitorial type work, including the removal of refuse that had been left in the premises," including "lumber, wire cable, broken or unused electrical and lighting equipment, and small plastic bags of garbage." (Burke Decl. ¶¶ 6-7.)
Under the framework set forth above, Burke's averments are clearly insufficient to establish standing. Burke's responsibilities at the premises, as he describes them, ring of occasional or sporadic, rather than continuous, use.8 He claims no ownership interest in the Warehouse and makes no representation that he exercised exclusive use or control over any specific area; indeed, he mentions no area other than the premises themselves. As such, Burke's suppression motion may be denied on this basis alone.
Defendant had four guns seized by ATF. His criminal case was pending, but one count was dismissed without prejudice. A civil forfeiture action was filed, too. He filed a Rule 41(g) motion for return of property. The pending civil forfeiture requires him to pursue it there, not in the criminal case. Alternatively, the ATF agent’s affidavit shows the government still might need it for the dismissed count. United States v. Robinson, 2013 U.S. Dist. LEXIS 7887 (S.D. Ohio January 17, 2013).
The officer had reasonable suspicion besides from defendant’s refusal to consent to one of two items in his possession, his backpack. A dog was called and alerted on has backpack, and that was probable cause. United States v. Morrison, 2013 U.S. Dist. LEXIS 7663 (D. Kan. January 18, 2013).*
A CI told the police there was a brick of cocaine in defendant’s house, and police decided to do a knock-and-talk because it was at risk of leaving the premises if they waited much longer. The court finds, despite defendant’s claim of limited language skills in English, that he consented to a search and knew what he was doing when he consented. United States v. Garcia, 2013 U.S. Dist. LEXIS 6946 (E.D. Tenn. January 11, 2013).*
While the issue is pending in SCOTUS, the taking of DNA in a pending alleged sex offense is a reasonable search. The court declines to stay the order pending the case in SCOTUS. United States v. Robinette, 2013 U.S. Dist. LEXIS 7903 (E.D. Cal. January 18, 2013):
Obtaining and analyzing DNA is a search or seizure which implicates Fourth Amendment concerns. But such procedure is reasonable in these certain circumstances, given the minimal intrusion which it entails and the legitimate government interest in the identification of the individual and the investigation and prosecution of unsolved and future criminal acts by the use of DNA. The manner in which the DNA is used is not significantly different from the use of fingerprints. The court also considers the nature of the crimes charged against Robinette for which probable cause has issued. The court finds that while obtaining and analyzing the DNA or saliva of Robinette based on probable cause for committing sex offense is a search and seizure implicating Fourth Amendment concerns, it is a reasonable search and seizure.
In this identity theft case, inventory of defendant’s wallet was reasonable and it would have occurred in any event on booking. United States v. Bell, 2013 U.S. Dist. LEXIS 7766 (S.D. Fla. January 18, 2013):
The Court finds Detective St. Fort's inventory search of Bell's property was conducted in accordance with his department's established booking procedures requiring an arrestee's personal property to be "seized" and "documented." The removal and documentation of the items found in the defendant's wallet is similarly consistent with the descriptors solicited on the arresting agency's personal property form. Additionally, the Court finds that this policy to be consistent with the recognized administrative purposes of the inventory search. Sammons v. Taylor, 967 F.2d 1533, 1543 (11th Cir. 1992). The Miramar Police Department's policy is clearly designed to identify each item taken from an arrestee.
In practice, Detective St. Fort's scan of Bell's property was just thorough enough to allow for a specific description of each item. This is especially important for the kinds of property contained in a person's wallet: valuable items such as money, debit and credit cards. St. Fort's scan also enabled him to detect several obvious irregularities on two of the debit cards in the defendant's possession. To the extent this review of the items contained in the defendant's wallet constituted a search, it was well within the scope of the inventory exception to the Fourth Amendment's warrant requirement. ...
Defendant refused to tell the officer his cell phone number, and the officer ordered him to put it on the dash. This was not by consent, and the cell phone is suppressed. United States v. Claude, 2013 U.S. Dist. LEXIS 7350 (E.D. Pa. January 16, 2013)*:
In this case, defendant did not give consent to search for his cellphone. As defendant sat in his vehicle, Officer Walter stood over him and questioned him about his cellphone. Officer Walter did not advise defendant of his constitutional rights before or during this questioning. Officer Walter initially asked defendant for his cellphone number, and defendant declined to provide the number. This refusal demonstrates that defendant had no desire to voluntarily give Officer Walter information about his cellphone. In response to this refusal, Officer Walter ordered defendant to "[p]lace [his] cellphone on the dashboard," and he complied. (Tr. at 45-46.) This mere "acquiescence to a claim of lawful authority" does not constitute voluntary consent. See Bumper, 391 U.S. at 548-49.
Without consent, the action of Officer Walter was the equivalent of an unlawful search. The cellphone in this case was not in plain view, and defendant did not agree to produce it until ordered to do so. Thus, Officer Walter's directive to defendant to "[p]lace [his] cellphone on the dashboard" amounted to an unlawful search in violation of the Fourth Amendment.
Defendant was subjected to a state probation search in 2005 for child pornography on a computer and it was suppressed because of a lack of a search warrant for the computers. The same happened here again. He was subject to probation searches of his person, vehicle, and residence, but he was never told that his computers were subject to probation searches. While there was reasonable suspicion for a probation search, the computer required a warrant, and the motion to suppress is granted. While the court is loath to suppress because the suppression should be the exception rather than the rule, it has to here because they violated his Fourth Amendment rights again. United States v. Swearingen, 2013 U.S. Dist. LEXIS 7473 (D. Mont. January 8, 2013). [Note: At least in my federal district, the J&C in federal sex offenses includes a provision for supervised release that the computer is, in fact, subject to warrantless search by the USPO.]
Manner and place of travel can be suspicious very near the border, for instance, on a road only locals should be on. “Although there were no objective measures offered to evaluate these assertions, this factor does deserve significant weight given Sasabe's proximity to the border and the amount and frequency of alien and drug smuggling activity in the area.” United States v. Rodriguez, 2012 U.S. Dist. LEXIS 184699 (D. Ariz. October 18, 2012).
Where two of three bulbs in a taillight were working, it was “in good working order” and the stop was unjustified. Post-conviction relief granted. State v. Brown, 2013 WI App 17, 346 Wis. 2d 98, 827 N.W.2d 903 (2013).*
Withdrawing the motion to suppress makes it moot. United States v. Forrest, 2012 U.S. Dist. LEXIS 184615 (D. Nev. October 31, 2012).*
On a OUI2, a condition of bail of alcohol testing and treatment was a reasonable condition of bail and did not violate the Fourth Amendment under the special needs doctrine. State v. Wilcenski, 2013 WI App 21, 346 Wis. 2d 145, 827 N.W.2d 642 (2013):
Wired.com: School Kicks Out Sophomore in RFID Student-ID Flap by David Kravets:
A Texas high school on Friday barred a girl from attending class as part of the fallout from a legal flap that began when the sophomore refused to wear around her neck an RFID-chip student ID she claims is the “Mark of the Beast,” lawyers connected to the brouhaha said.
The Northside Independent School District in San Antonio began issuing the RFID-laden student-body cards when the semester began in the fall. The ID badge has a bar code associated with a student’s Social Security number. The chip monitors pupils’ movements on campus, from when they arrive until when they leave.
Reason.com: Albuquerque's Solution for School Safety: Total Surveillance by J.D. Tuccille:
Rare though they are, horrific events like the Newtown shooting inevitably provoke a variety of responses. The intent is to head off a recurrence of the sort of crime that, truth be told, very likely can't be completely prevented, if for no other reason than that so many of the perpetrators seemingly have little interest in surviving their deeds. But some of the responses, like encouraging people to take responsibility for defending themselves and those around them, offer the possibility of reducing the damage done by rampage killers. Some responses, like gun restrictions and video-game censorship, put widespread civil liberties at the mercy of opportunistic control freaks. And some responses seem designed to turn public schools into replica prisons. On that last point, I'm talking about Albuquerque's scheme for multi-school surveillance, centrally monitored at the Albuquerque Public Schools Police headquarters dispatch center.
NYTimes: Unpopular Full-Body Scanners to Be Removed From Airports by Ron Nixon:
After years of complaints by passengers and members of Congress, the Transportation Security Administration said Friday that it would begin removing the controversial full-body scanners that produce revealing images of airline travelers beginning this summer.
Now much did former DHS Chief Chertoff's scanner consulting company make of this deal?
The officer stopped defendant for a license plate issue, and the conflicting information he gave about the driver didn’t support calling a drug dog. The continued detention for that violated the state constitution. State v. Maciel, 254 Ore. App. 530, 295 P.3d 145 (2013).
Defendant’s girlfriend had apparent authority to consent to a search of his locked briefcase which he left with her. “That finding was supported by the evidence that, inter alia, Gonzales had been living at Duran's apartment for about a month, keeping clothes and receiving mail there; that he kept the briefcase in a shared bedroom; that he had given Duran the combination to the briefcase; and that he left the briefcase at the apartment when he spent time away.” United States v. Gonzales, 508 Fed. Appx. 288 (5th Cir. 2013).*
Defendant consented to a search of his house when confronted on the street for drug trafficking. The only show of force was the officer holding a gun in his hand behind him when first encountering defendant. United States v. Garcia, 2013 U.S. Dist. LEXIS 6946 (E.D. Tenn. January 10, 2013).*
The fact defendant had previously connected to Limewire did not show no reasonable expectation of privacy in defendant’s computer files. His connection to a wireless router was also not a waiver of his reasonable expectation of privacy in the files on his computer. The government engaged in a search in getting someone to enter defendant’s computer and open a file because it was not publicly accessible. Suppressing that image leaves the affidavit without probable cause. United States v. Ahrndt, 2013 U.S. Dist. LEXIS 7223 (D. Ore. January 17, 2013), on remand from United States v. Ahrndt, 475 Fed. Appx. 656, 657 (9th Cir. 2012), for additional fact finding.
There was probable cause to arrest defendants for a drug conspiracy. The CI was fully corroborated. United States v. Johnson, 2013 U.S. Dist. LEXIS 6026 (S.D. N.Y. January 10, 2013).*
Questions of the driver during the “unavoidable lull” of the wait for information back on the DL were permissible and not a “second stop.” State v. Wiener, 254 Ore. App. 582, 295 P.3d 152 (2013).
Defendant in his rental car was stopped, and the car was overdue. The renter wanted it impounded, and the officer did and inventoried it, not for arresting defendant for a crime. “Defendant points to nothing that requires law enforcement to release an overdue vehicle to a rental customer who has no continuing legitimate claim to the car, has been overdue in returning the car for nine days, has had payment for extra days declined by her credit card, and has personalized the vehicle by adding tint to the windows, when the legitimate owner — the rental company — has requested that the car be impounded. [¶] And, once Detective Wagenmann agreed to impound the car for Advantage, he was subject to the City of Miami Gardens Police Department's inventory Policy. Nor does the fact that Detective Wagenmann did not impound the car in connection with a crime affect the analysis.” United States v. Handy, 2013 U.S. Dist. LEXIS 6517 (S.D. Fla. January 15, 2013).
The stop of the car defendant was in was valid because it had been involved in a controlled buy that day. The court finds the traffic stop also valid, arresting defendant for a cracked windshield was not improper, and the subsequent inventory was valid under department policy. The stop and search was also valid under the automobile exception. United States v. Baldenegro-Valdez, 703 F.3d 1117 (8th Cir. 2013).*
NYTimes: Web Hunt for DNA Sequences Leaves Privacy Compromised by Gina Kolata:
The genetic data posted online seemed perfectly anonymous — strings of billions of DNA letters from more than 1,000 people. But all it took was some clever sleuthing on the Web for a genetics researcher to identify five people he randomly selected from the study group. Not only that, he found their entire families, even though the relatives had no part in the study — identifying nearly 50 people.
The researcher did not reveal the names of the people he found, but the exercise, published Thursday in the journal Science, illustrates the difficulty of protecting the privacy of volunteers involved in medical research when the genetic information they provide needs to be public so scientists can use it.
Other reports have identified people whose genetic data was online, but none had done so using such limited information: the long strings of DNA letters, an age and, because the study focused on only American subjects, a state.
Defendant posted threats to kill police to his Facebook page, and the government got a warrant for all his postings and other data about him ("likes," "friends," "pokes"). He claimed that the scope of the warrant exceeded the probable cause, but the court disagreed. The nature of the threat permitted breadth here. United States v. Wheeler, 2013 U.S. Dist. LEXIS 6497 (D. Colo. January 16, 2013):
As the Government points out, at the time the Warrant was issued, Agent Kavanaugh was investigating an ongoing threat to the safety of Grand Junction residents. He did not know whether there was an actual plan to bomb the daycare and kill police officers or whether the comments on Defendant's Facebook page were idle threats. The fact that Defendant was ultimately charged only with making threats does not dictate the limits of the scope of the Warrant at the time it was issued. United States v. Eisner, 297 F.2d 595, 597 (6th Cir. 1962). Instead, the Court must determine whether the Affidavit established probable cause to issue the warrant, considering the totality of the circumstances at the time the Warrant was issued.
. . .
Defendant contends that the Affidavit did not establish probable cause to search for the vast majority of the information that was permitted under the Warrant. (ECF No. 75 at 4.) For example, Defendant contends that there is no probable cause to search for his "Friends" list, what pages he "liked" or became a fan of, who he may have "poked", or what items he sold on Facebook's Marketplace. (Id. at 4-5.) In essence, Defendant is not arguing about whether there was probable cause to issue the Warrant at all; rather, Defendant is challenging the scope of the warrant and whether the Affidavit established probable cause for such a warrant.
The Court finds that the Warrant was not overbroad and that the Affidavit established probable cause to search for all of the aspects covered by the Warrant. The comments posted on Defendant's Facebook page repeatedly referred to Defendant's "religious operatives and followers" and instructed them to kill cops (generally and a particular list of officers) and to "commit a massacre in the stepping stones preschool and daycare, just walk in and kill everyone". (Aff. ¶ 7.) The comments also said that "nobody in america knows who i have been associating with outside america, we are ready, we are coming back, and we are doing this. and just like i told them, when the cuffs go on the bombs go off." (Id. ¶ 9.) Thus, the comments on Defendant's Facebook page plainly indicated that Wheeler was not acting alone, but it failed to provide any insight into with whom he may have been conspiring.
The Affidavit, in turn, states that the purpose of the Warrant is to seize "conspiratorial communications with others" regarding "[t]hreats and threatening communications, incitements to violence, [and] threats to use destructive devices", as well as obtaining "[r]ecords relating to who created, used, or communicated with the user ID, including records about their identities and whereabouts." (Id. att. B.) Given the comments on Defendant's Facebook page about the involvement of others in his plans, Agent Kavanaugh could have reasonably believed that information obtained from Facebook, such as who Defendant's "friends" were, what pages he "liked", and who he "poked", would provide insight into who these other actors were and where they may have been located. The identity and location of these other actors is evidence related to the crime for which Plaintiff was being investigated. Accordingly, Agent Kavanaugh's Affidavit established probable cause for the search of Defendant's Facebook account. Roach, 582 F.3d at 1200 (probable cause exists where the totality of the information establishes the fair probability that contraband or evidence of a crime will be found in a particular place).
"The touchstone of the Fourth Amendment analysis is reasonableness." United States v. Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). Given the totality of the circumstances facing Agent Kavanaugh at the time he applied for the Warrant, the Court finds that the scope of the Warrant was reasonable. The Court further finds that the Affidavit upon which the Warrant was issued sufficiently established probable cause to believe that the search would lead to evidence of a crime. Accordingly, Defendant's Motion to Suppress Fruits of an Illegal Search is denied.
Note: The word "standing" never appears in the opinion. Apparently the court assumed defendant's standing to challenge a search of his Facebook account in Facebook's servers. Some courts wouldn't be so kind, I don't think, and would apply Smith v. Maryland to it. (I'm kind of surprised a First Amendment free association claim wasn't made because the warrant sought information about his friends.)
The court finds discrepancies in the officer’s version of how defendant allegedly consented to a search of his apartment. The AUSA simply asking “did he consent” doesn’t show voluntariness. What else happened? Nothing is explained, and the court refuses to find it voluntary. United States v. Franco-Felix, 2013 U.S. Dist. LEXIS 6489 (D. N.J. January 16, 2013)*:
Here, Officer Valentin has not testified about what was said by Mr. Franco-Felix beyond short responses to the questions of where he lived and was coming from and one-word assents to the critical question of consent to search the apartment. In particular, Officer Valentin testified that he asked Mr. Franco-Felix if they could search his apartment to see if he had any more throw pillows. He claims that Mr. Franco-Felix simply said yes to this request without asking a single question, despite the fact that he was on his way to work at the time and the apartment was several miles away, in the opposite direction of his place of employment. The Court finds this implausible and notes that Officer Valentin's testimony is directly contradicted by that of Mr. Franco-Felix. In any event, Mr. Franco-Felix is not college-educated and does not speak English and the Court is not convinced that he understood what he was being asked. Put another way, what Mr. Franco-Felix did and how he appeared do not square with that to which he purportedly consented.
When seeing a coming confrontation by officers, reaching into pocket, removing a gun, and tossing it in the nearby bushes is a waiver of any expectation of privacy. [He’s lucky he didn’t get shot.] United States v. Davis, 2013 U.S. Dist. LEXIS 6420 (E.D. Mich. January 16, 2013):
Because the Court finds that Defendant possessed the handgun and discarded it before complying with Officer West's orders, Defendant was not seized prior to abandoning the handgun. Defendant's actions are similar to the defendants in Martin and Thomas, who did not comply with officers' orders, discarded firearms, and then were seized, in that order. Martin, 399 F.3d at 752; Thomas, 77 F. App'x at 863. Here, Officer West first ordered Defendant to stop. After Defendant did not comply and passed through the front gate, Officer West exited his vehicle and again ordered Defendant to stop when he saw that Defendant had reached for something on his person. Before compliance with Officer West's second order, Defendant abandoned his handgun. As the authorities cited above explain, the abandoned handgun was not the fruit of an illegal seizure because the seizure had not yet occurred. Hodari D., 499 U.S. at 629.
The Arkansas Senate proposes drug testing those seeking unemployment benefits. The bill, SB58, has 15 Senate sponsors, so there's a good chance it will pass:
(a) “Physically and mentally able to perform suitable work” includes passing a United States Department of Transportation-qualified drug screen or a drug screen approved by the Department of Workforce Services as specified in subdivision (3)(A)(ii)(c) of this section.
(b) An applicant for unemployment benefits shall submit to a drug screen to be tested for illegal drugs through a program established by the Department of Workforce Services.
(c) A drug screen under this subdivision (3)(A)(ii) shall be administered to a random sampling of applicants before the first weekly benefits payment and before the thirteenth week of weekly benefits payments.
(d) A person who refuses to submit to a drug screen required under subdivision (3)(A)(ii)(b) of this section or who has tested positive for illegal drugs in a drug screen required under subdivision (3)(A)(ii)(b) of this section is not eligible to receive benefits.
It looks like it will be a good year at my law firm when I sue the state, if this is actually enacted. The primary sponsor is considered by his cohorts to be a constitutional oracle, at least he was at the last session, for some unfathomable reason (tells them what they want to hear), but he only recognizes two of the Bill of Rights: The Second and Tenth Amendments. The rest are white noise.
Remember: (1) every similar provision around the country has either been struck down or withdrawn when the legislature came to their senses; (2) Arkansas passed its creation science statute back in 1981, and it cost the state about half a million in attorney's fees in 1982 dollars, and they knew it when they passed it what they were getting into. McLean v. Arkansas Bd. of Education, 529 F. Supp. 1255 (E.D. Ark. 1982); meaning: (3) the Arkansas legislature still, 32 years later, doesn't care if it is violating the constitution when it passes stuff.
Perhaps Gov. Mike Beebe will veto it and give SB58 the constitutional burial it deserves, putting it out of its misery.
NYTimes: Philadelphia "Police Accused of Retaliatory Arrests" for videorecording them by AP:
The Philadelphia police have shown a pattern of wrongfully arresting people who videotaped officers in public, according to a federal lawsuit filed Wednesday. The complaint by the American Civil Liberties Union was drawn up on behalf of a Temple University photojournalism student, Chris Montgomery, 24, who was charged with disorderly conduct for using his cellphone to record the police during a large altercation.
NYTimes: Felony Charges for Officer Accused of False Arrest by Russ Buettner
A New York City police officer was charged with 10 felony counts of filing a false document in connection with what prosecutors said was an unwarranted arrest of a man in a Harlem housing project last year.
The officer, Isaias Alicea, was arraigned on Wednesday in State Supreme Court in Manhattan on the felony counts and on two misdemeanor counts of official misconduct. The felony charge carries a maximum sentence of four years in prison.
Defendant was being investigated by the ATF. He was followed to the Atlanta airport, and he checked a gun through luggage with Spirit Airlines. The airline didn’t ask if the gun was unloaded, but, even if they did, they take a passenger’s denial at face valid. Defendant filled out all the proper paperwork to fly with a gun, and noted it was checked unloaded. TSA’s Air Marshals were called to deal with the situation. They decided to search the bag at the behest of the ATF officers there. The search of the bag was not a proper administrative search, and TSA has no criminal investigative purpose. Defendant’s bag had already been cleared by TSA on an x-ray inspection. United States v. Muhammad, 2013 U.S. Dist. LEXIS 5677 (N.D. Ga. January 14, 2013):
While airport and air travel safety is a major concern, the Court finds that the Government has not met its burden of showing a valid administrative search occurred. Based on the evidence presented, or lack thereof, the Court must agree with Muhammad that it appears the search of his luggage was not for an administrative purpose, but rather was for an investigatory purpose. This is not the type of case in which during the course of a search a "second, subjective motive" was developed. Instead, the desire to investigate Muhammad for alleged criminal conduct spurred and shaped the ensuing search, and the totality of the events and circumstances on December 23, 2010 undermine the Government's argument to the contrary.
. . .
Instead, the search was spurred by Agent Southall's involvement—again, an ATF agent who was only present at the airport to investigate a criminal suspect. 9 While Agent Southall's own experience may have been that his own guns were physically checked when he declared them, this does not show that proper protocol was not followed with Muhammad's bag and thus there was a need to perform the search at issue. Again, the search occurred after Muhammad's bag had already been cleared by TSA screeners. McCarty, 648 F.3d at 835 ("[W]here an action is taken that cannot serve the administrative purpose—either because the threat necessitating the administrative search has been dismissed, or because the action is simply unrelated to the administrative goal—the action clearly exceeds the scope of the permissible search.").
. . .
3. Investigation Shaped the Search
Third, while Air Marshal Barber testified that he conducted the search due to safety concerns, the oddities and occurrences on the date in question take this search out of the realm of a valid administrative search. For example, if the purpose of the search was really to allay safety concerns, Air Marshal Barber or other TSA agents could have stopped Muhammad at the oversized baggage checkpoint and had the weapons physically inspected then. Instead, all parties involved waited until after Muhammad left this screening area. The only reason the Court can see for why this "need" for an inspection of the declared gun was not brought to the screeners' attention at the time Muhammad was present, was out of concern for damaging the underlying investigation.
R&R: United States v. Muhammad, 2012 U.S. Dist. LEXIS 184741 (N.D. Ga. October 16, 2012).
Officers arrived at a known drug house with a search warrant, and they saw the defendant in the front yard. His hesitation in getting on the ground was an indication of a possible attempt to flee or look to escape, and that justified a stop and frisk. United States v. Lucas, 2012 U.S. Dist. LEXIS 184488 (N.D. Ga. December 14, 2012):
Here, the Court finds that the officers possessed reasonable suspicion of criminal activity. As the warrant established, the officers arrived at the house with probable cause to believe that it was the site of drug trafficking activity. The officers saw the Defendant on the front lawn of this known drug dealing location. When they instructed him to get on the ground, he hesitated. According to one officer, he made a movement that suggested he was about to flee. The other witness did not recall seeing movement but recalled that the Defendant looked around as if trying to find an avenue of escape. Either way, he did not immediately comply. The officers also explained that it is common for drug dealers to post look-outs or guards outside of drug dealing locations. All of these facts combined to establish reasonable suspicion that the Defendant was participating in criminal activity.
The court added "looking around" as if to find an avenue of escape as a critical fact, and it was. Just standing in the yard should mean nothing if he can't be otherwise connected to the drug house. High crime area alone is not enough, and I recall other cases actually holding merely being outside a house during a drug raid isn't enough. Moral: Just let them arrest you and deal with it later. It never helps to run, or, as here, even try to run. If he hadn't flinched, the suppression motion might have had to be granted. Sometimes criminal defendants are their own worse enemies.
It was not an improper threat to get consent for a police officer to stay in the home until a search warrant was obtained. They had enough information to get a search warrant, and they could stay in his house a reasonable time until a search warrant had been obtained. Consent was otherwise voluntary. State v. Mullien, 140 Conn. App. 299, 58 A.3d 383 (2013).*
Defendant’s 2255 motion for defense counsel’s failure to raise a search incident issue is denied. That issue came up during trial when defendant said he was dissatisfied with defense counsel for the same reason, and the court heard argument and determined that the facts don’t support a valid search incident claim. That opinion hasn’t changed. United States v. Gee, 2012 U.S. Dist. LEXIS 184449 (N.D. Fla. November 28, 2012).*
Police received a 911 call about potential credit card fraud from a known person. When they arrived, the stop was reasonable in length to investigate the circumstances. One defendant’s disavowing ownership of a laptop computer seized during a roadside investigation is a disavowing of standing to challenge its search when it was seized. United States v. Phillips, 2013 U.S. Dist. LEXIS 5562 (M.D. Tenn. January 14, 2013).*
Defendant’s patdown led to finding drugs before the actual arrest. The fact it preceded the arrest is not error here because he was going to be arrested. Also, the officer making the stop did it pretextually, but validly, because they were hiding the fact of an ongoing wiretap from him and others who might be aware of the stop and search. United States v. Welch, 2013 U.S. Dist. LEXIS 5938 (D. Me. January 15, 2013).*
A 22 month old child was taken to the ER with a report of injuries caused in the home, likely at the hands of the mother’s boyfriend. There was a newborn in the house, too. Police went to the house to check on the child, and, while people were inside, nobody would come to the door, and then defendant tried to go out the window. Officers also discovered defendant was under investigation for another battery. Based on all this, an entry was justified, and defendant was found to be a FIPF. United States v. Duhon, 503 Fed. Appx. 874 (11th Cir. 2013).*
The stop for hitting the fogline was valid despite defendant’s arguments. His consent thereafter was otherwise voluntary. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012).*
Looking at news stories last night, I had some questions about the mechanics of firearm surrender under NYS’s Secure Ammunition and Firearms Enforcement Act signed into law yesterday. I found that New York law already is replete with provisions for surrender of firearms or licenses on the occurrence of particular events. The Act uses "surrender" 42 times. The first, for example:
§ 2-a. Firearm, rifle or shotgun surrender order. Upon entry of a verdict of not responsible by reason of mental disease or defect, or upon the acceptance of a plea of not responsible by reason of mental disease or defect, or upon a finding that the defendant is an incapacitated person pursuant to article seven hundred thirty of this chapter, the court shall revoke the defendant's firearm license, if any, inquire of the defendant as to the existence and location of any firearm, rifle or shotgun owned or possessed by such defendant and direct the surrender of such firearm, rifle or shotgun pursuant to subparagraph (f) of paragraph one of subdivision a of section 265.20 and subdivision six of section 400.05 of the penal law.
There are several others, such as for conviction of a crime, or believed to be mentally impaired, with a psychotherapist reporting privilege, all protected by judicial review.
What if the owner of a firearm refuses to give it up when ordered to by a court? A search warrant issues. People v. Degiorgio, 36 A.D.3d 1007, 827 N.Y.S.2d 342, 343 (3d Dept. 2007). Because it is a compelled act of production, however, it can't be used against the gun owner under the Fifth Amendment. People v. Havrish, 8 N.Y.3d 389, 834 N.Y.S.2d 681, 866 N.E.2d 1009 (2007). As for a search warrant, it could be viewed as an administrative warrant, but it is still issued by a judicial officer and subject to review for sufficiency.
GSR test doesn’t need a separate warrant if it is done incident to arrest. United States v. Williams, 2013 U.S. Dist. LEXIS 5943 (N.D. Va. January 15, 2013) (adopting R&R):
Although the defendant feels that [United States v. Simmons, 380 Fed. Appx. 323 (4th Cir. 2010),] only provided qualified approval regarding conducting a GSR search without a warrant incident to arrest, this Court believes that the only qualification the Fourth Circuit indicated was the requirement that it be conducted pursuant to a lawful arrest. As indicated, this Court finds that such arrest was in fact lawful, as the officers had probable cause to make the arrest and, therefore, the magistrate judge's report and recommendation concerning the motion to suppress evidence is affirmed and adopted.
... The Fourth Circuit stated in Simmons, "the GSR test, a 'very limited search,' was appropriate as a search incident to arrest" after it found that Simmons did not contest the lawfulness of the arrest. 380 F. App'x at 330; see United States v. Allen, 358 F. App'x 697, 699 (7th Cir. 2009) (finding no Fourth Amendment violation concerning a GSR test conducted without a warrant as "the delicate nature of the gunshot residue required law enforcement to administer the test quickly before the evidence could be wiped off or destroyed"); see United States v. Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006) (finding no Fourth Amendment violation concerning a GSR test so long as the arrest was valid, as the "presence of gun powder on his hands was relevant" and the defendant "could have eventually removed or destroyed" the evidence).
Officers forcibly arrested defendant and took him to the DEA office to obtain his consent, which is found invalid, as was his statement. “And as noted above, the evidence suggests the agents' unlawful actions, including the forcible manner of arrest and transporting defendant to the DEA, had an investigatory purpose and were designed to surprise or confuse defendant and thereby obtain information from him, rather than to secure his voluntary cooperation.” Ultimately, however, a search warrant was obtained free of the taint of the consent and statement, and that warrant is not suppressed, but the rest is. United States v. Lindgren, 2013 U.S. Dist. LEXIS 4912 (D. Kan. January 11, 2013).
GPS on defendant’s car before Jones was valid under Davis. Alternatively, the government had a ping tracking warrant for his cell phone which is not contested. United States v. Orbegoso, 2013 U.S. Dist. LEXIS 5881 (D. Ariz. January 15, 2013).*
The search warrant for defendants’ motel room was based on probable cause. Part of that was from a plain view of the contents of their car parked outside, which is not challenged. United States v. Medina, 2012 U.S. Dist. LEXIS 184369 (D. Minn. October 31, 2012) (R&R).*
When a family member calls 911 about an overdose and emergency responders know that the person they called about is a heroin user, the responders have exigent circumstances to enter. Here, the occupants rebuffed the police saying an RN in the house checked him out, but they could see he was still in need of treatment. Under prior case law, that did not dissipate the exigency. The responders could also check for the source of the overdose and do a protective sweep. Stricker v. Twp. of Cambridge, 710 F.3d 350 (6th Cir. 2013):
Federal officers arresting defendant were alleged to have used excessive force. Plaintiff was arrested as he was planning a violent felony, and taking the proof most favorably to him, the force here was not unreasonable considering what the officers knew when he was arrested. Williams v. Bauer, 503 Fed. Appx. 858 (11th Cir. 2013)*:
Even viewing the facts alleged by Williams in the light most favorable to him, Defendants' use of force was not excessive and did not violate the Fourth Amendment. Defendants arrested Williams on the day they believed he intended to commit a serious crime. They also had reason to believe that Williams would harm them and others. Williams had informed Zayas, who was working undercover, that he was going to rob a stash house and "the plan was to kill everyone present in the stash house." Williams said that police in the area would not be able to "handle" him. Shortly before the arrest, Zayas saw that the man in the passenger seat of Williams's car, Mercutio Stokes, had a rifle. Zayas informed the arresting agents that Stokes had a gun in the car. Stokes admitted that he had a rifle "between the seat."
Information from the anonymous informant was not verified, except for one piece of personal information that was obvious. Therefore, issuance of the search warrant lacked probable cause. This was a fundamental violation of state law, therefore the Fourth Amendment, and suppression was required. Defense counsel was thus ineffective for not challenging the search. State v. Humphrey, 2013 Ohio 40, 2013 Ohio App. LEXIS 21 (2d Dist. January 11, 2013).
Possession of a reencoded (fraudulent) credit card was pretty much probable cause in itself, aside from all the false statements and the statements of the suspects connecting themselves. United States v. Robinson, 2013 U.S. Dist. LEXIS 5128 (S.D. Ind. January 14, 2013).*
Law enforcement is not prohibited from recording a conversation between a CI and the defendant. United States v. Houston, 2013 U.S. Dist. LEXIS 5320 (E.D. N.Y. January 12, 2013).*
The government bore the burden of proof on consent to search defendant’s house, and it failed. While the officers were otherwise credible, the discrepancies in their versions was too much to tolerate when a search of the home is an issue. United States v. Starks, 2013 U.S. Dist. LEXIS 4985 (N.D. Okla. January 14, 2013)*:
While discrepancies in the testimony of the officers could be the result of the passage of time (here, more than one year), where the government bears the burden of proof, and the discrepancies are material to the issue of consent, the Court should not turn a blind eye to even minor discrepancies.²
2 The Court does not find that any officer was not credible or that an officer intentionally falsified testimony or otherwise was intentionally deceptive. Instead, the discrepancies in the officers' testimonies, when balanced with other credibility findings, are especially important where, as here, the government bears the burden.
A state livestock inspector's entry into an open field to inspect defendant’s cattle was into an open field and did not violate any rights of trespass under Jones. State v. Lamb, 2013 UT App 5, 725 Utah Adv. Rep. 15, 294 P.3d 639 (2013):
The Memphis P.D.’s practice of a “48 hour hold” for investigation is an arrest requiring probable cause. This court has criticized it before. Here, they had probable cause for defendant’s arrest, and his confession to murder was otherwise voluntary. State v. Cox, 2013 Tenn. Crim. App. LEXIS 18 (January 9, 2013).*
Call about shots fired in a house justified a warrantless entry when the officer got there. State v. Hopkins, 2013 Ohio 48, 2013 Ohio App. LEXIS 32 (6th Dist. January 11, 2013).*
The motion to suppress never raised the issue presented for appeal, and, while it was discussed in argument, nothing in the trial court's findings and conclusions even mentions this issue, so it wasn’t raised or preserved below. State v. Fry, 828 N.W.2d 325 (Iowa App. 2013).*
Catherine W. Kimel, DNA Profiles, Computer Searches, and the Fourth Amendment, 62 Duke Law Journal 933-973 (2013). Abstract:
Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled a database containing the DNA profiles of over eleven million citizens. Without judicial authorization, the government searches each of these profiles one-hundred thousand times every day, seeking to link database subjects to crimes they are not suspected of committing. Yet, courts and scholars that have addressed DNA databasing have focused their attention almost exclusively on the constitutionality of the government's seizure of the biological samples from which the profiles are generated. This Note fills a gap in the scholarship by examining the Fourth Amendment problems that arise when the government searches its vast DNA database. This Note argues that each attempt to match two DNA profiles constitutes a Fourth Amendment search because each attempted match infringes upon database subjects' expectations of privacy in their biological relationships and physical movements. The Note further argues that database searches are unreasonable as they are currently conducted, and it suggests an adaptation of computer-search procedures to remedy the constitutional deficiency.
Defendant’s truck was stopped at a border patrol checkpoint, and a drug dog there alerted before defendant even produced his driver’s license. The Fifth Circuit has held that the use of dogs at border patrol checkpoints is not unreasonable if they do not prolong the stop, and this one didn’t. United States v. Washington, 2012 U.S. Dist. LEXIS 184188 (S.D. Tex. October 16, 2012).*
Among appellant’s post-conviction issues, there appeared to be a genuine issue of fact on consent, whether it was valid, and whether defense counsel was ineffective for not objecting. Logan v. State, 2013 OK CR 2, 293 P.3d 969 (2013).*
Defendant’s stop for failure to dim headlights was justified, although it appeared after the stop that the headlights might have been unusually bright. Nevertheless, the stop was objectively reasonable, and the conviction for driving on a suspended license is affirmed. This is not a situation where the reasonable suspicion was dispelled before interaction with the driver, as sometimes happens with LPN stops. State v. Bonacker, 2013 SD 3, 825 N.W.2d 916 (2013).*
Defendant was suspected of a bank robbery. While the vehicle searched was in another person’s name, defendant regularly drove it, and that gave him standing to contest the search by consent the other person gave. Her consent was free and voluntary after reading a consent form. Defendant never negated the consent at the scene. Moreover, the officers had probable cause to search the car because they believed it was involved in the bank robbery. United States v. Lopez, 2012 U.S. Dist. LEXIS 184211 (E.D. Tenn. August 22, 2012).*
In a Rule 41(g) motion for return of property, the government showed that it may use most of the things seized from defendant for trial, but some it offered to return. Essentially, as long as the things may reasonably be used at trial, the government doesn’t have to return them. As to the things being returned, defendant is in custody, so it’s up to the BOP what happens with it. United States v. White, 2013 U.S. Dist. LEXIS 4627 (S.D. Fla. January 11, 2013).*
“Applying the relevant principles, the Court concludes that the search warrant affidavits are replete with probable cause.” Motion to suppress for lack of probable cause denied. United States v. Winfrey, 2013 U.S. Dist. LEXIS 4585 (D. Neb. January 10, 2013).*
Defendant was stopped for a traffic offense, and he reeked of smoked marijuana. He was ordered out of the car, and the officer saw a bulge in the pocket, felt it, and knew it was not a weapon. He told defendant to empty his pockets thinking it was a baggy of marijuana, and it was. Cash also was produced. This was excessive under Terry. The government’s argument it was valid as a search incident is rejected since it argued that defendant was not arrested to claim the benefits of Terry. United States v. Mitchell, 2012 U.S. Dist. LEXIS 184187 (W.D. N.Y. November 27, 2012):
Applying the foregoing constitutional standards to the evidence adduced at the suppression hearing I conclude that Officer Funderburk's post-frisk order to Mitchell to "empty his pockets" was not reasonable under the Fourth Amendment. Funderburk never testified that the bulks felt like weapons or even that he suspected that they contained weapons. Indeed, Officer Funderburk testified that before commencing the frisk he "had a suspicion" that the bulk was a baggie of marijuana based on the odor coming from the Van (see 4/27/12 Tr. at p. 55) and after the frisk never suspected that the bulge was a weapon. The Government did not present evidence that the contour or mass of the bulge made its identity as contraband immediately apparent to Officer Funderburk. Accordingly, I find that the seizure of the currency after the Terry frisk was improper. See United States v. Owens, No. 07-20568-CR, 2008 WL 151978, at *5 (S.D. Fla. Jan. 15, 2008) (Officer's "failure to state any reason for suspecting that the bulge in the defendant's pocket was a weapon or contraband made the removal of the object impermissible under Terry."); United States v. Thornton, 493 F. Supp. 2d 1024, 1034 (S.D. Ohio 2007) (In the absence of "testimony that either the cellphones or the cash felt like a weapon" the government "failed to show that the frisking/searching officer stayed within the bounds marked by Terry.").
A trial court issued an injunction against a strip club requiring searches of employees' bags coming to work and video recording those searches as well as any public area of the club. The court held that the club lacked standing to complain of the searches and recording that it was being ordered to conduct invasions of privacy by injunction and make the recordings available to the government. Nabilco Inc. v. State, 2013 Tex. App. LEXIS 157 (Tex. App. – Houston (14th Dist.) January 10, 2013) (memorandum opinion):
The provisions at issue in this appeal require appellants to thoroughly check all bags of independent contractors and employees each time they enter appellants' premises and videotape those checks, enforce a dress code for all patrons on the premises requiring shirts to be tucked in, enforce a dress code for dancers to cover their buttocks, and use existing video cameras to record activity at all times that the premises are open.
Appellants argue that bag checks and video cameras, with tapes submitted to the State, violate the Fourth Amendment protections against unreasonable searches and seizures. This contention fails because the rights invoked by Treasures belong to the individual employees, contractors, and patrons — not to Treasures. "HN15Fourth Amendment Rights are personal rights which . . . may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 428, 58 L. Ed. 2d 387 (1978); see also United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010) ("Fourth Amendment rights are personal rights, which may be enforced only by the person whose rights were infringed."). A party lacks standing to complain about the invasion of someone else's personal rights. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). Therefore, appellants have no standing to assert a Fourth Amendment claim on behalf of Treasures' dancers and customers. See Club Retro, LLC v. Hilton, 568 F.3d 181, 195 n. 5 (5th Cir. 2009) (club owner had no standing to assert Fourth Amendment rights on behalf of its patrons).
In Skinner, the railroad companies had to conduct the searches of employees by federal regulation. That didn't bother SCOTUS.
Oregon explains consent after illegal police conduct and purging the taint. State v. Hemenway, 353 Ore. 129, 295 P.3d 617 (2013):
Properly considered, then, a voluntary consent to search that is prompted by an officer's request can be sufficient to purge the taint of illegal police conduct. Whether the voluntary consent is sufficient to purge the taint — or whether the police exploited their illegal conduct to obtain consent — will depend on the totality of the circumstances. We reject the state's position that voluntary consent during an unlawful stop necessarily breaks the causal chain and makes the evidence admissible, as we do defendant's argument that such consent will rarely, if ever, break the causal chain.
In an effort to clarify this complicated area of law, we again review the basic principles at issue. As noted, the overarching inquiry is whether the evidence that the state seeks to introduce must be suppressed because that evidence was obtained in violation of the defendant's constitutional rights. In the context of Hall and this case, where an illegal stop preceded a consent to search, that inquiry has two prongs. First, the court must assess whether the consent was voluntary. If the consent to search was not voluntary, then the evidence must be suppressed, because only a voluntary consent to search provides an exception in this context to the warrant requirement of Article I, section 9. Second, even if the consent was voluntary, the court must address whether the police exploited their prior illegal conduct to obtain the evidence. Evidence may be tainted directly by the illegal police conduct, if, for example, the police illegally stop a vehicle, allowing them to view contraband that otherwise would not have been visible, and then request the driver's consent to search the vehicle as a result of what they saw. The consent in that example does not "purge the taint" of the prior illegal stop, because the evidence has a direct causal connection to the illegal conduct.
Defendant stopped and talked to a couple that police saw pacing on a parking lot. Police stopped him, and he was nervous. It was not reasonable suspicion that a drug deal was going to go down. Commonwealth v. Walton, 2013 PA Super 3, 63 A.3d 253 (2013).*
The stop was not overlong and unreasonable because reasonable suspicion developed. [The court uses unfortunate language that suggests the burden is on defendant: “Campbell has not provided sufficient evidence to support the conclusion that the duration of the stop was excessive.” The burden is on the government, and the appellate review is de novo. What is his burden on appeal? To show legal error.] United States v. Campbell, 511 Fed. Appx. 424 (6th Cir. 2013).*
The conversation after defendant’s papers were returned to him was consensual, and there was nothing that indicated that the conversation couldn’t be terminated. United States v. Chung Dam, 2012 U.S. Dist. LEXIS 184139 (M.D. Fla. November 16, 2012).*
Defendant’s house was searched under a state search warrant starting at 9:05 pm. Officers came back and searched again early the next morning. In these circumstances, the second search was a continuation of the first. United States v. Pape, 917 F. Supp. 2d 888 (D. Minn. 2012):
Power Down: Tasers, The Fourth Amendment, and Police Accountability in the Fourth Circuit by Ian A. Mance, 91 N.C. L. Rev. (forthcoming 2013):
This Comment focuses its attention on the phenomenon of taser abuse in the states that comprise the Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West Virginia. It assesses the state of the law as presented to genuine victims of police abuse who wish to vindicate their right to be free of excessive force under 42 U.S.C. § 1983, the federal statute under which plaintiffs can seek relief for violations of their constitutional rights by state actors.
A false promise of immunity (a “bait-and-switch”) to get defendant to consent invalidated the consent. State v. Marshall, 254 Ore. App. 419, 295 P.3d 128 (2013):
The touchstone of three of those "consent-to-search" genres (all except "authority") is autonomous choice: The lawfulness of the warrantless search derives from, and is innately circumscribed by, the unimpaired autonomous choice of the person giving consent. Here, defendant posits that his "consent" was elicited by "bait-and-switch" tactics of the investigating officer—viz., the giving of an illusory promise of immunity—and, thus, was not the product of autonomous choice. That is, his "consent" was not consent at all.
While defendant forthrightly acknowledges that there is no Oregon appellate decision holding that an illusory inducement abrogates an ostensible consent to search, he invokes our precedents addressing the effect of promises of leniency on the voluntariness of admissions elicited during police interviews. We agree with defendant that those cases are highly instructive in that they are grounded substantively, albeit not exclusively, on the imperatives of autonomous choice.
. . .
In sum, as in Pollard, 132 Ore. App. at 549, "[t]he quid pro quo was apparent": But for Wilson's promise that he would not be held responsible for the contents of the RV, defendant would never have consented to the search of the RV. That promise proved to be false, as defendant was charged with evidence discovered during that search. Under those circumstances, defendant's "capacity for self-determination was critically impaired," Tanner, 236 Ore. App. at 431, abrogating his purported consent. The warrantless search of the RV did not fall within the consent exception.
The defendant is a California registered medical marijuana user, and she was relieved of the MMJ at a border checkpoint in Yuma. She was originally charged with possession, but it was dismissed because Arizona recognized out-of-state registered MMJ users. She sought return of the MMJ, and the state resisted, claiming that federal law preempted and it would constitute a federal crime of delivery to return it. The court disagreed, finding no preemption because the Sheriff was immune under federal law to comply with state law. 21 U.S.C. § 885(d). Without an actual threat of her federal prosecution, the question of her being prosecuted for receiving is not ripe for review. State v. Okun, 2013 Ariz. App. LEXIS 6 (January 10, 2013):
P17 In the absence of any actual or threatened prosecution of Okun under federal law, and given the immunity that federal law affords the Sheriff for complying with the return order, the question is not ripe. See Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1137 (9th Cir. 2000) (if no enforcement action or prosecution is threatened or imminent, the dispute is premature). By the same token, on the facts of this case, the State lacks standing to argue that federal law prohibits Okun from possessing the marijuana. Although Arizona's constitution does not contain a case or controversy requirement, a party must demonstrate a distinct and palpable injury caused by the complained-of conduct. Karbal v. Ariz. Dep't of Revenue, 215 Ariz. 114, 116, ¶ 7, 158 P.3d 243, 245 (App. 2007). Here, in the language of Karbal, the Sheriff has no "personal stake" in whether the federal Controlled Substances Act might invalidate Okun's right under the AMMA to possess an allowable amount of marijuana. See id. The requirement of standing "is consistent with notions of judicial restraint and ensures that courts refrain from issuing advisory opinions, that cases be ripe for decision and not moot, and that issues be fully developed between true adversaries." Bennett v. Brownlow, 211 Ariz. 193, 196, ¶ 16, 119 P.3d 460, 463 (2005); see also County of San Diego v. San Diego NORML, 81 Cal. Rptr. 3d 461, 472-73 (App. 2008) (county has no standing to raise hypothetical constitutional infirmities of a statute when statute did not cause it injury).
Where the statute is silent, there is no constitutional impediment to swearing to the affidavit for a search warrant over the telephone. After all, federal Rule 41 permits it, and so do several states. Clay v. State, 391 S.W.3d 94 (Tex. Crim. App. 2013) (dissent):
A tennis ball in defendant’s pocket found during a patdown could be removed because the officer couldn’t tell what it was. When it was removed, a plastic bag could be seen though a cut in it. This is different than Dickerson. State v. Taylor, 401 S.C. 104, 736 S.E.2d 663 (2013).
Defendant was a police officer living in a rental house owned by his parents, and he had a computer in the commonly used basement. His mother had access to it and turned it on finding child pornography, which she reported. She had common authority to consent to a search of the basement. Extra hard drives in a box were in plain view, and the officers’ knowledge gave them reason to believe the incriminating nature was immediately apparent. The hard drives could be seized for a later search with a warrant. State v. Reinpold, 284 Neb. 950, 824 N.W.2d 713 (January 4, 2013).
The officer had reasonable suspicion for a continued stop based on excessive nervousness and inability to say where she had come from or was going. United States v. Fajardo-Guevara, 507 Fed. Appx. 365 (5th Cir. 2013).*
Defendant’s wife and daughter sparingly used the family computer, but that didn’t mean that the wife didn’t have actual authority to consent to a search of it. She found child pornography on the computer and called the police and consented to a search of the computer. It was password protected, but the password wasn't working at the time in question. United States v. Marandola, 489 Fed. Appx. 522 (2d Cir. 2013)*:
While Lisa Marandola admitted to using the Apple computer sparingly, she still had access to it, as did her daughter. The computer was located in a common area and was purchased using joint funds. Mrs. Marandola paid for internet out of her own personal account. Moreover, Mrs. Marandola testified that her husband never told her that she was prohibited from using the computer, and that password protection was not enabled on the day in question. These facts provide compelling evidence that Lisa Marandola had common authority over the area, a substantial interest in the area, and even tacit permission to gain access to the area.
The evidence in the record supports consent to search. Three witnesses testified that defendant did, and other evidence pointed to wasn’t conclusive of anything. United States v. Perry, 703 F.3d 906 (6th Cir. 2013).*
A federal judge has ruled that New York City police are not allowed to routinely stop pedestrians outside of private residential buildings in the Bronx. The stops are part of the so-called Clean Halls program, which has prompted allegations of police harassment by some residents who say they are being accosted outside of the buildings in which they live. Previous data on the New York Police Department’s "stop-and-frisk" policy has shown African-American and Latino men make up a hugely disproportionate share of those stopped. We’re joined by Molly Kovel, staff attorney with the Bronx Defenders and part of the legal team in the case, and by Abdullah Turner, a Bronx resident whose building is enrolled in the Clean Halls program and who says he was unfairly arrested while waiting for a friend inside. [includes rush transcript]
Police were called to a domestic disturbance and arrested the defendant in possession of a backpack. Even though he was handcuffed, he was not secured in the back seat of a police car, and a search incident of the backpack was reasonable because of the violent nature of the arrest. State v. Ellison, 172 Wn. App. 710, 291 P.3d 921 (2013):
A child pornography investigator’s use of the “Wyoming Tool Kit” that searches for and finds child porn on a computer connected peer-to-peer by locating hash (SHA) values of known child porn images does not violate some other expectation of privacy. State v. Dunham, 111 So. 3d 1095 (La. App. 1 Cir. 2012):
The issues presented in the defendant's brief were recently addressed by the Third Circuit in a factually similar case, State v. Daigle, 2011-1209 (La. App. 3d Cir. 5/2/12), 93 So.3d 657. In Daigle, Louisiana State Police detectives conducted an investigation using the Wyoming Tool Kit and discovered the defendant's IP address was seen with SHA values consistent with child pornography. At trial, the detectives explained that the Wyoming Tool Kit was designed by the Wyoming Department of Justice and ran on the Gnutella network. According to the detectives, software such as LimeWire and BearShare also ran on the Gnutella network. The Wyoming Tool Kit identified IP addresses that had SHA values matching images previously identified as child pornography. Daigle, 93 So.3d at 659-60. The detectives used GNU Watch in addition to the Wyoming Tool Kit, and testified that both programs only ran on the Gnutella network. Id. at 663. Citing several recent federal court decisions, the court found that in applying for a search warrant, the detective did not violate any reasonable expectation of privacy on defendant's part by using software available only to law enforcement to identify defendant's IP address as having SHA values that might be associated with images of child pornography. It explained:
Federal courts have examined the issues presented in Defendant's appeal and have determined that defendants have no Fourth Amendment privacy rights in computer files that they have shared on file sharing networks such as Gnutella regardless of whether the defendants have logged onto the Gnutella network through clients such as Lime[W]ire, Morpheus, BearShare, or Shareaza. .... This is equally true if the investigating law enforcement officer uses software specially modified to screen for child pornography, such as ShareazaLE or the Wyoming Tool Kit, provided that the software has no greater access to the defendants' computer files than that available to any other Gnutella client. Gabel, 2010 U.S. Dist. LEXIS 107131, 2010 WL 3927697; United States v. Borowy, 595 F.3d 1045 (9th Cir. 2010) [per curiam], ...
Daigle, 93 So.3d at 665.
We agree with third circuit's reasoning and find that Tpr. Sandifer did not violate the defendant's right to privacy by using GNU Watch to examine the SHA values for files the defendant had already elected to freely share with other LimeWire users. Moreover, the defendant offered no evidence at trial in support of his assertion that publicly available programs are unable to obtain the SHA values of files on LimeWire, and the record does not support that argument. Therefore, the defendant's arguments related to the alleged violation of his right of privacy are without merit.
Officers lacked reasonable suspicion for a continued detention based on a belief that defendant was a different person who was wanted. The initial detention was reasonable, but, as soon as it was determined that defendant didn’t even look like the person wanted and another officer said he wasn’t the guy, the detention should have stopped. Instead, one of the officers insisted on him. “Agent Stanko, nevertheless, continued to detain De La Cruz and obtained his identification ‘just to be safe ... because I still wasn’t a hundred percent sure.’ ... The existence of reasonable suspicion, however, is measured from the perspective of an objectively reasonable officer, not from the subjective perspective of the particular officer on scene. See al-Kidd, 131 S. Ct. at 2082;...” Then, the flight of one of a group was not reasonable suspicion as to the others. United States v. De La Cruz, 2013 U.S. App. LEXIS 561 (10th Cir. January 9, 2013).
Defendant was found in a house after police were permitted entry by the person in control. The contents of a cell phone found on him was admitted into evidence. The entry and arrest were valid. The court does not decide[, but should have because the validity of the search of the cell phone is not discussed] the question of standing because the defendant disavowed the cell phone as his when he was arrested [n2]. United States v. Lindsey, 702 F.3d 1092 (8th Cir. 2013)* [Note: All in all, a really unsatisfactory opinion: too big an unanswered question. And I have an oral argument with one of the members of this panel on Jan. 18.]
It was reasonable for the officer to tell the occupants of a stopped car at night to put their hands on the dashboard. As he approached, one was shuffling his feet, and that was a furtive movement justifying a frisk of the car. Commonwealth v. Obiora, 83 Mass. App. Ct. 55 (January 8, 2013).
The product of two trash pulls provided probable cause for the search warrant for defendant’s house. The warrant permissibly allowed a search of the cars found on the curtilage that belonged at the premises. United States v. Mitchell, 503 Fed. Appx. 751 (11th Cir. 2013).*
The officer approached a car sitting in a driveway with the engine running when he was responding to a burglary call. The occupants’ responses made no sense, and he ordered them out of the car. Instead, the car was put in gear and they tried to flee. They crashed the car and fled from it. Flight, at least at that point, gave reasonable suspicion [sounds like the officer certainly had it from the answers to questions]. United States v. Hopkins, 2013 U.S. Dist. LEXIS 3392 (S.D. W.Va. January 9, 2013).*
Defendant lived on a building on a relative’s property, and he argued it violated curtilage to even come to his door. A path in the grass from a dirt road was enough to show that the front door could be approached. State v. Robertson, 2013 Tenn. Crim. App. LEXIS 12 (January 7, 2013):
The Defendant's main contention with regards to whether the police officers executed a valid "knock and talk" is that there was no "pathway" from Grinnell Drive to the Defendant's building. Likewise, the Defendant argues that there was no "pathway" from the dirt road to the door of the building. However, the validity of an attempted "knock and talk" does not depend on the existence of a cobblestone pathway or a set of ornate stepping stones leading from the road directly to a defendant's front door. Nor is the procedure limited only to buildings that the police can reach by major public thoroughfares. Instead, the operative question is whether the defendant has an expectation of privacy in the area between the roadway and the defendant's front door. This principle applies regardless of whether the police are approaching a one-room shack off of a dirt road or a residence off of Old Hickory Boulevard.
NYLJ: Federal Judge Orders NYPD to Limit Trespass Searches by Mark Hamblett:
In the latest in a series of rulings in hotly contested litigation over New York City Police Department stop-and-frisk policies, a federal judge has found that police officers are violating the Fourth Amendment rights of people stopped on suspicion of trespass as they walk into and out of privately owned buildings that participate in a Bronx anti-crime program.
Supreme Court signals blood tests protected by Fourth Amendment by M. Alex Johnson, staff writer, NBC News:
Justices indicated Wednesday that the dangers of drunken driving don't trump the Fourth Amendment, peppering lawyers for the state of Missouri with objections to their request that the Supreme Court allow law enforcement to order blood tests for DUI without suspects' consent.
The case, Missouri v. McNeely, is seen as a landmark that could clear up almost 50 years of uncertainty over the constitutionality of blood tests that are conducted without a warrant. Legal scholars say it could rewrite drunken-driving laws in all 50 states.
The case hinges on how you interpret a 1966 opinion by then-Chief Justice William Brennan, who wrote (.pdf) that law enforcement should get a warrant before taking a blood draw without a suspect's consent, except in a few very limited circumstances that rise to the level of an emergency.
See also ScotusBlog: Argument recap: Compromise on DUI blood tests? by Lyle Denniston:
Even allowing for the reality that what is said at a Supreme Court hearing does not necessarily dictate the outcome, now and then a case comes along where the Justices join so obviously in a common pursuit of a compromise that little suspense remains. That happened on Wednesday, in the case of Missouri v. McNeely (docket 11-1425), when it seemed quite predictable that the Court is not going to let police across the nation order — on their own authority — the taking of blood samples from those suspected of drunk driving. Police, it would appear, are at least going to have to try to get a search warrant, even though they sometimes will be allowed to do without one.
The Eighth Circuit assumed a Fourth Amendment violation in police entry into the back room of a car dealership during a routine fire inspection that revealed what the fire marshal thought was a child pornography production facility. Without deciding whether the police violated the Fourth Amendment in the entry [a tough question], the court instead decided whether the good faith exception applied based on how the investigation started, the entry into the area, and the obtaining of the search warrant. The court concluded that the good faith exception applied, and the search would not be suppressed. Defendant’s computer was seized and child pornography was found. The police conduct was objectively reasonable. United States v. Cannon, 703 F.3d 407 (8th Cir. 2013):
Defendant was seen at a gun show in possession of a rifle slung over his back with a box of ammunition in hand by his PO, and he was photographed. That was used to get an arrest warrant from a state court judge. When an arrest was sought with a multiagency task force, the officers heard a woman say “your probation officer is here” and sounds of a gun being readied to fire. Backup was sought. They finally came out, and officers went in to conduct a protective sweep “for the protection of the officers.” Aside from a duffle bag of “AK-47s,” suspicious chemicals were seen, and they called for the ATF to come and check for bombmaking materials, and that was justified by exigent circumstances. Then a search warrant was sought. The evidence shows that officers had an objectively reasonable belief that defendant was residing at the third party’s residence (Steagald). United States v. Yarbrough, 2013 U.S. Dist. LEXIS 2571 (S.D. Tex. January 8, 2013)*:
Applying these principles to this firearm case, the Court concludes that exigent circumstances continued to exist from the time the agents and officers heard the sound of guns being racked through the time the search warrant was obtained. The quantity of people and firearms, as well as the chemicals and other explosive precursors justified the entry of ATF agents for purposes of inspecting the premises for danger and indications of criminal activity. Defendants did not supply any authority on which to base a conclusion that the exigent circumstances had come to rest and no further danger was present. And the facts in this case would not support such a conclusion.
Defendant was a passenger without standing. Moreover, he wasn’t even in the car when it was searched hours later. “In any event, this case did not involve a traffic stop, Defendant's stint as a passenger in the vehicle had ended hours before he was arrested, and he was standing outside the vehicle when confronted by Officer Stewart.” United States v. Spencer, 2012 U.S. Dist. LEXIS 183866 (D. Minn. December 14, 2012).*
The motion to suppress is denied because the defendant consented. The defendant’s motion to dismiss for outrageous governmental conduct in the consent search is denied, and the government’s motion for sanctions against defense counsel for being so far off the mark here is held in abeyance. United States v. Amar, 2013 U.S. Dist. LEXIS 2653 (W.D. Okla. January 8, 2013). [Pursue the motion to suppress if you can, but don’t seek sanctions unless you win easily. Just because the police violated the Fourth Amendment, the defense hardly is justified in seeking sanctions. If the search was that bad, presumably the government wouldn’t have sought the indictment.]
“But whether law enforcement officers had probable cause to believe the truck contained contraband, they had probable cause to believe it contained evidence of a crime. The totality of the circumstances – the wire intercepts, observations from the pole camera outside Mr. Davis's home, and the agents' knowledge and experience – allowed a reasonable officer to deduce with fair probability that the truck contained a secret compartment.” United States v. Reese, 2013 U.S. Dist. LEXIS 2422 (M.D. Ala. January 8, 2013).*
The consent to search defendant’s car was voluntary; she offered to let the officer search without being asked. United States v. Rodriguez, 2013 U.S. Dist. LEXIS 2566 (S.D. Tex. January 8, 2013).*
There was no reasonable suspicion for defendant’s stop for allegedly being nervous and only allegedly walking away from the officers after making eye contact with one and saying “shit.” One of them said he had a suspicious bulge in his clothing like a gun. This was around a gas station in Detroit so it was “high crime,” so they said. This is like United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011), and there is no reasonable suspicion. United States v. Davis, 2013 U.S. Dist. LEXIS 1862 (E.D. Mich. January 7, 2013).*
Defendants asserted a Franks challenge, and the court had a hearing to find out what was the deliberate omission, and it didn’t undermine the existing probable cause or really even amount to anything. United States v. Kistner, 2013 U.S. Dist. LEXIS 2128 (S.D. Ohio January 4, 2013).*
Probable cause supported both the search warrant and the vehicle tracking order in this case (sought 11 days before Jones came down) issued under both federal and state statute. United States v. Ponce, 2012 U.S. Dist. LEXIS 183671 (D. Minn. December 10, 2012).*
Nervousness alone is not reasonable suspicion, but it is a valid factor to consider with other things, and other things were present here [and they are thin]. Defendant's 39 minute detention was not unreasonable. United States v. Bueno, 703 F.3d 1053 (7th Cir. 2013):
Some nervousness around law enforcement officials is to be expected, however, and we have expressed skepticism regarding the value of such observations. See United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005). Nevertheless, while "the appearance of anxiety may not by itself form an objective basis for suspecting criminal activity," McBride, 635 F.3d at 882 (citation omitted), we consider such behavior as a factor in the totality of circumstances, United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999) (citation omitted).
Even assuming a Fourth Amendment violation occurred, exclusion didn’t apply in civil removal proceedings. The record supports the BIA and IJ determination that the conduct of the agents was not egregious (which would support exclusion). Santos v. Holder, 506 Fed. Appx. 263 (5th Cir. 2013).*
Defendant was at the end of parole and his final release papers had been sought on September 27, 2011. On October 7th, he was subjected to a parole search. The final papers issued October 14th. He was still on parole at the time of the search. State v. Bevington, 2012 Ohio 6285, 2012 Ohio App. LEXIS 5459 (5th Dist. December 31, 2012).*
In a 2254 appeal, defense counsel did not act ineffectively in not contesting the ability of defendant’s mother to consent to a search of a place he infrequently went to and then sought to disassociate defendant from. Peterson v. Smith, 510 Fed. Appx. 356 (6th Cir. 2013).*
Arrest of a gay man in a public park by a police gay man patrol looking to arrest men for public indecency led to dismissal of the case. Nevertheless, the arrest was with probable cause. Even if it wasn’t, the officer had qualified immunity. Alman v. Reed, 703 F.3d 887 (6th Cir. 2013).*
There was an inventory policy, and it was followed. The police here even offered to defendant for somebody to come to get the car, and he declined. Partial noncompliance with the inventory process does not make it void, as long as it was otherwise a true inventory. United States v. Shaw, 2013 U.S. Dist. LEXIS 1754 (N.D. Tex. January 7, 2013):
In Rowland the officers failed to comply with procedures requiring a listing of all items in the vehicle. Rowland, 341 F.3d at 779-80. The court held that this noncompliance was not dispositive, and it examined whether other evidence demonstrated that the inventory search was pretextual. Id. at 780. One officer testified that he had only recorded items he considered possible evidence. The court found that this indicated that the search was pretextual because, if the search had actually been for the legitimate purpose of protecting the vehicle owner's property, the officer should have recorded all the property. Id. at 781. An officer also testified that the search was partly conducted to investigate whether the vehicle contained drugs, and the officer called for a drug-sniffing dog to examine the vehicle. Id. at 780. The court pointed out that the officers had failed to follow the standardized procedures and that this failure was coupled with evidence indicating that the officers "sifted through the vehicle's contents searching only for and recording only incriminating evidence; something law enforcement may not do." Id. at 782.
So, how much is enough?
After clearing the house where there was a suspected meth lab from the strong smell of anhydrous ammonia and starter fluid, the police lacked exigency for a warrantless entry again. There was no evidence of what dangers there were from the pill soak or the odor. State v. Hawks, 2013 Tenn. Crim. App. LEXIS 2 (January 2, 2013):
The facts in this case are significantly different from the facts in Meeks. Granted, the odor of anhydrous ammonia and starter fluid was strong and could be smelled from a significant distance. However, by the time Captain Uselton arrived at the scene, police officers had removed the appellant's family from the home, had determined that the appellant was not present, and were waiting "a distance" away. Captain Uselton arrived and searched the home again but did not find anyone inside. It was the State's burden to show the existence of exigent circumstances. However, unlike Meeks, the State did not present any evidence about the dangers the strong odor or the soaking Sudafed posed to Captain Uselton, other officers at the scene, the appellant's neighbors, or anyone in the surrounding vicinity. Therefore, we conclude that the proof fails to show the existence of exigent circumstances that exempted law enforcement from searching the residence without a warrant.
A reasonably conducted foreclosure sale doesn’t violate the Fourth Amendment, even it if applies (relying on a case making such an assumption). Citimortgage, Inc. v. Kraetzner, 2013 U.S. Dist. LEXIS 1416 (D. Minn. January 4, 2013).*
Handcuffing and frisking did not extend the stop, and they were reasonable under the circumstances. United States v. Newman, 2012 U.S. Dist. LEXIS 183516 (W.D. Mo. November 15, 2012) (R&R).*
Following what it says is the better rule, there is no requirement for probable cause to each person on a wiretap as long as there is PC as to one. United States v. Tn, 2012 U.S. Dist. LEXIS 183606 (W.D. Tex. September 25, 2012).*
While statute requires a blood draw from a “qualified technician,” there is no statutory exclusionary remedy for a failure. Alternatively, this blood draw was not otherwise unreasonable to justify exclusion. State v. Coxwell, 2012 Ohio 6215, 2012 Ohio App. LEXIS 5428 (11th Dist. December 31, 2012).*
The suppression motion wasn’t timely, and the state was offered a continuance to prepare, which it declined. It can’t claim prejudice merely from the untimely motion that was granted. There was a violation of state statute in the taking of urine for a BAC, but the statute does not provide for suppression as a remedy. Under state law, if the statutory violation equates with a constitutional violation, suppression would be a valid remedy. Here there was also consent. The trial court found that the defendant consented, but there was no finding on voluntariness of consent. The judgment is reversed and remanded for a new suppression hearing where the trial court will make findings on voluntariness. State v. Starkey, 2012 Ohio 6219, 985 N.E.2d 295 (11th Dist. 2012).*
Defendant’s detention was held in a prior appeal in 2010 to be valid, so it couldn’t be relitigated. The affidavit for the search warrant was not deceptively false under Franks. The statement was a reasonable conclusion based on the evidence available to the officer, which is permitted. State v. Mendenhall, 2013 Tenn. Crim. App. LEXIS 1 (January 2, 2013).* [Not yet on court's website]
On cross, the officer admitted the inventory search was a search for evidence. (“Q. And in your concern, your focus in searching that vehicle was, in large part, to find items that police could use in their investigation, true? A. That was correct.”) After the court suppressed the search, the government moved for reconsideration and this time offered the inventory search policy, which it failed to put into evidence the first time. The court didn’t like it, but considered it anyway, and still suppressed the search. If relying on inventory, the government has a duty to support it with the policy. Even on reconsideration, the motion to suppress is not set aside because government did not show the search was a true inventory. What and how it was seized was important here, and the search of the car was treated like an evidentiary search. United States v. Caskey, 2013 U.S. Dist. LEXIS 1167 (D. Minn. January 3, 2013):
6 The United States seems to argue that it was not required at the evidentiary hearing to define the inventory search policy or demonstrate Officer Bobo's compliance with it. Instead, the United States argues, the limited issue before the Court and raised by Caskey was whether Officer Bobo had an "investigatory purpose" or motive in conducting the search. The Court disagrees. When Caskey argued there was an improper purpose for the search, the United States had the burden to produce evidence that the search was instead conducted pursuant to established inventory search procedures or pursuant to another exemption from the warrant requirement. See Kennedy, 427 F.3d at 1144 ("As with any warrantless search, the Government bears the burden of demonstrating the need for an exemption from the warrant requirement and that its conduct fell within the bounds of the exception."). The United States could not meet its burden through a bald assertion that Officer Bobo complied with a largely undefined policy and thus did not have an improper purpose. Officer Bobo testified that his concern when searching the vehicle was in large part to find items that the police could use in their investigation, and he admitted that he gathered items of value only to the police. As will be further explained below, under these circumstances, the United States had the burden to prove that the gathering of evidence was conducted pursuant to a valid inventory search and not due to an investigatory purpose.
. . .
7 Normally, an investigatory motive alone does not sour an inventory search. Rowland, 341 F.3d at 780. The Court notes, however, that the NBPD inventory search policy states that "examination of the contents of a motor vehicle pursuant to a criminal investigation or with the intent of discovering evidence of a crime is a search, not an administrative inventory" and is thus subject to an entirely separate policy. (United States Ex. 1 at 1, Aug. 15, 2012, Docket No. 77; see also id. at 3.) It is thus possible that Officer Bobo's admission of an at least partially investigative intent might cause his search to fall outside of the NBPD inventory search policy. (See Tr. 20:4-15.) For the purposes of this Order, however, the Court will assume without deciding that the evidence of Officer Bobo's investigatory motive does not render the inventory search policy inapplicable.
. . .
The Court finds that the United States has not shown that Officer Bobo's search fell under either the inventory search or plain view exceptions to the warrant requirement. First, the United States has not established that the requirements of the plain view exception are satisfied in the present case. Officer Bobo seized the majority, if not all, of the items from the vehicle because of their criminal nature, thus relying on the plain view exception and the inventory search policy's requirement that items of evidentiary value be seized. Officer Bobo did not testify with specificity, however, how he was able to view each of the items he seized. See Beasley, 688 F.3d at 530. For example, the United States did not demonstrate that the Taco Bell cups and straws were in plain view because Officer Bobo provided no testimony about them.
NYT Editorial: Is the Driver Drunk? by Lincoln Caplan:
The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.
In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.
Dancers working at the GoGo Girls Cabaret in Austintown, OH were arrested for prostitution with patrons in a back room. There was no written motion to suppress, but there was an oral motion from some of the dancers. That was sufficient when they were adopted by the others. On the merits, the police got a search warrant for the computers storing video from security cameras to prove the state’s case. There was no valid Fourth Amendment objection to seizure of the videos. The making the videos was a private search, and the police could attempt to take advantage of those videos if they prove anything. The cases were improperly dismissed. State v. Wallace, 2012 Ohio 6270, 986 N.E.2d 498 (7th Dist. 2012):
[*P31] Appellees also claim that the warrants were facially invalid because they allowed for the confiscation of security videos that were allegedly made in violation of privacy interests protected by the Fourth Amendment. Appellees' argument here also fails, because the security videos were recorded by a private entity, i.e., the Cabaret, and not by a state entity or agent of the state. A search or seizure conducted by a private citizen is not a "search or seizure" within the meaning of the Fourth Amendment. State v. Morris, 42 Ohio St.2d 307, 316, 329 N.E.2d 85 (1975), citing Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); ... For a search by a private person to trigger Fourth Amendment protection, the government must have known about the search in advance, and the private party must be acting in furtherance of law enforcement purposes. Morris at 316-317; see also, United States v. Pierce, 893 F.2d 669 (5th Cir.1990). There is certainly nothing in the search warrant or accompanying affidavit suggesting that the Cabaret was an agent of the police in producing the security videos. Because the Cabaret is a private entity, Appellees had no basis on which to raise a facial challenge of the search warrant centered on the actions of the Cabaret in creating security videos.
[*P32] Appellees further argue that the search warrant did not allow for the police to actually search through the files on the computer. Appellees submit that the search warrant only allowed the police to seize the computer itself, rather than the files on the computer. Appellees conclude that if the police sought to search the files in the computer, the search warrant failed to satisfy the Fourth Amendment requirement that a warrant "particularly" describe the things to be searched and seized. Pursuant to the Fourth Amendment, only warrants "particularly describing the place to be searched and the person or things to be seized" may issue. "The manifest purpose of this particularity requirement was to prevent general searches. * * * [T]he requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987).
[*P33] Appellees' argument regarding the search of computer files is baseless. The warrant affidavits refer to the security cameras and the images included on the security camera videos. The warrants describe in detail the computers and the hard drives on the computers, and note that there would be security camera recordings on the computers. The evidence sought in the warrants is stated with sufficient particularity to satisfy the Fourth Amendment.
[*P34] In summary, even assuming Appellees had standing to make a Fourth Amendment challenge, they failed to demonstrate any facial errors in the warrant and they failed to submit any other evidence challenging the warrants or search. Therefore, there was no basis to grant the motion to suppress pursuant to the Fourth Amendment.
The affidavit for search warrant showed probable cause for a search and was not stale. The information included involved drug trafficking over a period of months from the house. That also shows nexus. Defendant’s argument that he was attempting to obtain drugs but did not have drugs fails. In any event, it all showed a fair probability drugs would be found in the house. United States v. Figueroa, 2013 U.S. Dist. LEXIS 1426 (N.D. Ohio January 4, 2013):
The Affidavit does illustrate cocaine discussions and/or narcotics transactions between Figueroa and CS-3 on July 12, 2012, July 31, 2012, August 9, 2012, and August 28, 2012. According to the Affidavit, Figueroa admits to possessing marijuana, and further admits his efforts to obtain cocaine for CS-3 from his suppliers at the significant price of $35,000.00 per kilogram. In light of these continuing conversations, up to the day before the execution of the Search Warrant, there is "a fair probability that contraband or evidence of a crime [would] be found in [that] particular place," i.e., 144 Hall Street, Akron, Ohio. United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009) (quoting Gates, 462 U.S. at 236).
Defendant was stopped for a traffic offense, and a gun was in plain view in the back seat. The officer was justified in reaching in and securing the keys to the car. United States v. Huff, 2013 U.S. Dist. LEXIS 1331 (D. Kan. January 4, 2013).*
Defendant argued a “snapshot” of facts, but “[t]he probable cause calculation is made based on the totality of the circumstances, rather than just a limited set of facts as argued by defendant. When all the facts associated with this investigation are considered they ‘... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed ... an offense.’ Michigan v. DeFillippo, 443 U.S. at 37.” United States v. Martin, 2012 U.S. Dist. LEXIS 183511 (E.D. Mich. November 9, 2012)* (R&R).
There was reasonable suspicion for the stop of this vehicle for either a drug deal or an expired license. United States v. Newman, 2012 U.S. Dist. LEXIS 183516 (W.D. Mo. June 5, 2012)* (R&R).
There was a strong odor of marijuana coming from defendant’s car when it was stopped, and the officer got him out, and the odor was still on defendant’s person. A search of defendant’s person for drugs was justified. This was not a Terry search for weapons. State v. Abu-Enjeela, 2012 Ohio 6275, 2012 Ohio App. LEXIS 5445 (7th Dist. December 18, 2012).*
Pre-Jones GPS surveillance is saved by the Davis good faith exception. (The court engages in a long discussion of the rationale for those interested.) United States v. Guyton, 2013 U.S. Dist. LEXIS 817 (E.D. La. January 3, 2013).*
Defendant was stopped for crossing the street in the middle in a high crime area and then turning away when he saw police. The stop was valid with reasonable suspicion for avoiding the police, and the ensuing finding a warrant and then frisk producing a gun was valid, too. United States v. Boyles, 2012 U.S. Dist. LEXIS 183383 (W.D. Mo. November 21, 2012).*
Our Privacy Delusions (On the Media, "We all claim to want privacy online, but that desire is rarely reflected in our online behavior. OTM producer Sarah Abdurrahman looks into the futile attempts we make to protect our digital identities.")
The NCTC: Obama's "Pre-Crime Squad"? (On the Media, "Last March, the National Counterterrorism Center (NCTC) was granted unprecedented power to collect data on ordinary U.S. citizens, data like flight records or lists of casino employees. Critics have likened the NCTC to the 'Pre-Crime Squad' in the movie 'Minority Report.' Wall Street Journal reporter Julia Angwin talks with Bob about this dramatic shift in the intelligence community's power over US citizens.")
"If You’ve Got Nothing to Hide, You’ve Got Nothing to Fear" (On the Media, "Here's a common refrain in privacy discussions: 'If you’ve got nothing to hide, you’ve got nothing to fear.' There's also Google’s then-CEO Eric Schmidt famously saying: 'If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place.' Brooke speaks with George Washington University law professor Daniel Solove who says those types of arguments misunderstand privacy entirely.")
National Security Letters and Gag Orders (On the Media, "The most serious kind of subpoena - called a 'National Security Letter' - used to have a lifetime gag-order automatically attached. That is until Nicholas Merrill appealed his and won the right to talk about it. Despite 50,000 national security letters a year, there are only three organizations that have ever won the right to say they got one. In a segment that originally aired in January of 2011, Nick Merrill tells Bob why he's the exception and the rule.")
License Plate Readers and Your Privacy (On the Media, "Police car mounted license plate readers collect date, time and location information and are used by law enforcement around the country to help catch criminals. But when Minneapolis Star Tribune reporter Eric Roper filed a Freedom of Information request for information on his own car, he got a lot more than he bargained for. In a segment that originally aired in August of 2012, Bob talks to Roper about how Minneapolis police and agencies across the country deal with this potentially sensitive location information.")
The Art of Self-Surveillance (On the Media, "In 2002, artist and professor Hasan Elahi spent six months being interrogated off and on by the FBI as a suspected terrorist. In response to this experience, he created Tracking Transience, a website that makes his every move available to the FBI - and everybody else. In a segment that originally aired in November of 2011, Brooke talks to Elahi about the project.")
h/t Ivan G. Dominguez, NACDL Director of Public Affairs and Communications
Where there is probable cause as to a house, there is no reason to limit the search as to parts of it. Here, it was argued a bedroom should have been excluded. United States v. Pule, 2012 U.S. Dist. LEXIS 183316 (E.D. Tenn. July 5, 2012):
As argued by the government, when there is reliable information that drug trafficking is being conducted at or from a residence, "there is no reason for the warrant not to authorize a search of the entire house." United States v. Elder, Nos. 91-5605, 91-5606, 1992 WL 42346, at *3 (6th Cir. Mar. 3, 1992). If, however, officers knew or should have known that a building contains multiple "separate dwelling units," the officers are obligated to exclude from the warrant any units for which they lack probable cause to conduct a search. Maryland v. Garrison, 480 U.S. 79, 84-85 (1987). Here, however, Defendant has made no argument that his bedroom should have been excluded from the warrant when it was issued, so I FIND the warrant was properly issued and will turn to the issue of execution of the warrant.
[Note: As a functional matter, the defendant's argument would be impossible to enforce short of saying "only [suspect's] bedroom and common areas can be searched under this warrant." How can the police be expected to know the layout of the house? They can't. Also, for what it's worth, I've had drug cases were the drugs were kept in guest and kid's bedroom closets and those bedrooms were occupied at the time of the search. It just can't work in practice.]
Officers had a search warrant for the house, and it was not so objectively lacking in its basis that the good faith exception would not apply. The parties didn’t put the affidavit and warrant into evidence, so the court takes judicial notice of the warrant. n.10. United States v. Daniels, 2012 U.S. Dist. LEXIS 183305 (M.D. Ala. December 12, 2012) (R&R).* [Note: The court spends several paragraphs discussing the GFE, but nary a word about the factual basis to see if it is correct that it was not “bare bones.” This is what the good faith exception is getting to: we never know whether a warrant was issued with probable cause or not. “[A]nd no Warrants shall issue, but upon probable cause, ...” In my experience, there is probable cause about 98% of the time. So why not tell us instead of spending your time telling us that the affidavit isn’t bare bones but without one fact in support?]
Officers surveilling an SUV with drugs in it in NYC saw a man in a black coat get a duffle bag out of the SUV and get into a BMW. When the BMW was stopped, the driver consented to a search. The man in the black coat, the defendant, was the passenger. The defendant did not show standing to challenge the search of the BMW. United States v. Anthis, 2013 U.S. Dist. LEXIS 784 (D. Mass. January 3, 2013).*
Does the exclusionary rule apply in pure civil forfeiture? Not sure. Let's assume it does. Here, defendant orally consented to the search of his tractor trailer. He wrote "under protest" on the consent form. United States v. $304,980 in United States Currency, 2013 U.S. Dist. LEXIS 650 (S.D. Ill. January 3, 2013):
One issue not briefed by the parties but bearing mention is the preliminary question of whether a Fourth Amendment-based suppression motion is proper in an in rem civil forfeiture proceeding like the case at bar. The federal courts have not answered this question uniformly. Some Courts of Appeal have held that since civil forfeiture proceedings are quasi-criminal in nature, the exclusionary rule applies, and suppression motions may be filed. See, e.g., U.S. v. $291,828.00 in U.S. Currency, 536 F.3d 1234, 1236-38 (11th Cir. 2008) ("The Fourth Amendment exclusionary rule applies to civil forfeiture actions."); U.S. v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1164 (9th Cir. 2008) ("The exclusionary rule applies in civil forfeiture cases.... It bars the admission of evidence obtained in violation of the U.S. Constitution, as well as 'fruits of the poisonous tree.'"). Other courts have voiced uncertainty about the use of suppression motions in civil forfeiture actions. A 2009 Seventh Circuit case furnishes an example.
In United States v. Marrocco, 578 F.3d 627, 631 n.5 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit sidestepped the potential obstacle, because the Government had not argued that the remedy of suppression is unavailable in forfeiture proceedings under 21 U.S.C. 881. However, in his concurring opinion, Judge Easterbrook expressed concern with the assumption that suppression motions are appropriate in civil forfeitures:
All parties assume that the exclusionary rule applies to forfeiture, so that the res must be returned if it was improperly seized. Yet the Supreme Court has twice held that the exclusionary rule is not used in civil proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032 ... (1984) (deportation); United States v. Janis, 428 U.S. 433 ... (1976) (taxation). See also Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 ... (1998) (rule inapplicable to probation revocation). Although One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), suppressed evidence in a forfeiture, Janis stated that this was because that forfeiture was intended as a criminal punishment. 428 U.S. at 447 n. 17.... The forfeiture in our case is civil. It is farther from a criminal prosecution than is a probation-revocation proceeding.
Suppressing the res in a civil proceeding, even though the property is subject to forfeiture, would be like dismissing the indictment in a criminal proceeding whenever the defendant was arrested without probable cause. The Supreme Court has been unwilling to use the exclusionary rule to "suppress" the body of an improperly arrested defendant.... Why then would it be sensible to suppress the res?
Marrocco, 578 F.3d at 642 (emphasis added).
Defendant was on parole, and parole officers saw him involved in an apparent hand-to-hand drug transaction. A warrant was issued for his arrest. By the time they got to serve it, they discovered he was living at an unapproved address. That was reasonable suspicion for a parole search. The court declines to engage in determining whether they were “cajoled” into the search by the police since there was a basis. United States v. Marcano, 508 Fed. Appx. 119 (3d Cir. 2013).*
Defendant did not object to the GPS at his December 2009 suppression hearing, so it is reviewed for plain error, which it is not under Davis. United States v. Andres, 703 F.3d 828 (5th Cir. 2013).*
Defendant’s 2255 argument that the operator of a rental car had the authority of the actual renter, although not on the rental agreement, was the better way to argue the standing issue was a loser. Therefore, defense counsel wasn’t ineffective. United States v. Hunter, 2013 U.S. Dist. LEXIS 519 (D. Kan. January 3, 2013).*
The following is a series of questions posed by Orin Kerr to Tracey Maclin on the occasion of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule (Oxford University Press, 2012).
Welcome, Tracey. Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your book.
What inspired you to write a book on the exclusionary rule?
Often lawyers and law students ask me to explain what the Justices were thinking when they decided a particular Fourth Amendment case. Before I started the book, I would provide an answer based on the Court’s opinion. After having taught constitutional law and criminal procedure for over twenty-five years, I have learned, however, that although a Court opinion might provide the justification for a particular result, that opinion may not reveal the motivations for the decision. I decided it was time to read the Justices’ private papers to determine the motivations behind their exclusionary rule decisions.
. . .
An anonymous CI provided information that the defendant was coming from New York to North Carolina to get away from the police, and he was bring drugs. He was going to a specific house. While an anonymous CI doesn’t have a track record, this one’s information all panned out and proved to be accurate. A search warrant is for the place where things may be found, not necessarily for persons, and probable cause and nexus was shown to defendant’s house. State v. Oates, __ N.C. App. __, 736 S.E.2d 228 (2012).*
POs did a home compliance check of various probationers, and this one was because two probationers came up in the system with the same address, and they both were to have no contact with other probationers. When they knocked at the door and announced “probation and parole,” the woman answering the door opened it all the way, implying they could enter. They did a quick walk through and found cocaine on a table. The probation entry was justified under Knights. Wallace v. State, 62 A.3d 1192 (Del. 2012).*
The owner of the house consented to a protective sweep of the premises, then a search of the premises. There are booking and public safety exceptions to Miranda. Asking about aliases and a gun here were not within the exceptions. United States v. Chavez-Maciel, 2012 U.S. Dist. LEXIS 183038 (N.D. Ga. December 7, 2012).*
“Giving the finger” to a police officer is not disorderly conduct as a matter of law, and it violated the Fourth Amendment to arrest the plaintiff for it. There was no reasonable suspicion for plaintiff's arrest. Swart v. Insogna, 2013 U.S. App. LEXIS 186 (2d Cir. January 3, 2013):
An irate automobile passenger’s act of “giving the finger,” a gesture of insult known for centuries,1 to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal.
1 See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1415 (2008).
. . .
Even with the wide range of conduct subsumed under New York’s expansive definition of disorderly conduct, John’s conduct, on the Plaintiffs’ version of the facts, could not create a reasonable suspicion that a disorderly conduct violation had been or was being committed. Neither Collins, whom John says arrested him, nor Insogna, whose report says he made the arrest, had observed any disruptive conduct, any threatening conduct, any shouting, or anything that risked a public disturbance. Whether or not giving the finger is properly considered an obscene gesture, neither Collins, who had not observed the gesture, nor Insogna, who had observed it and was likely piqued by having seen it, makes any claim on appeal that the gesture was disorderly conduct. Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred. “The disorderly conduct statute at issue here does not circumscribe pure speech directed at an individual. Rather, it is directed at words and utterances coupled with an intent to create a risk of public disorder ....” People v. Tichenor, 89 N.Y.2d 769, 775 (1997) (citations omitted). On the Plaintiffs’ version, probable cause did not exist for an arrest for disorderly conduct. And because an objectively reasonable police officer would not have believed that probable cause existed, neither Defendant was entitled to the defense of qualified immunity on a motion for summary judgment. Of course, the defense of qualified immunity and the lawfulness of the arrest itself will appropriately be in issue at trial, where both versions of the episode will be presented.
Note: Read the opinion for the officer's rationalization for the arrest to the District Court, which the court found utterly fantastic and incredible: “giving the finger” was a distress call for a stop. Just admit it: you stopped him for contempt of cop.
The three hour detention of defendant in a building while waiting for a search warrant to arrive where there was no probable cause to believe that the defendant committed any crime or was going to destroy any evidence was unreasonable. His statement during the detention is suppressed. United States v. Watson, 703 F.3d 684 (4th Cir. 2013):
The search under the search warrant in this case is not suppressed. While there was a traffic stop that could not be justified, it is excised from the affidavit for the search warrant, and the remainder still shows probable cause. While there was information that was over three months old, “the evidence was not stale because it described a firmly entrenched, widespread, and continuing narcotics trafficking organization.” There is nexus to the home of those involved in drug trafficking as a place where the drugs would be kept. Furthermore, GPS tracking on a cell phone used in drug trafficking put it regularly at the home, and there were officer observations of comings and goings to the home. United States v. Silva, 2012 U.S. Dist. LEXIS 183043 (W.D. Wash. December 31, 2012):
The Ninth Circuit has recognized that "[i]n the case of drug dealers, evidence is likely to be found where the dealers live." United States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990) (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986)). Under the law of this Circuit, the Affidavit's details regarding Palacios-Rodriguez's lengthy involvement in the DTO, including supplying cocaine to others in the conspiracy and participating in other narcotics transactions while living at the Edmonds Apartment, was sufficient basis to believe that contraband might be found at the residence. ...
Lack of a written policy does not make an inventory invalid. Bertine requires a “standard criteria” and following it is all that is required. Leaving defendant’s car in a Wal-Mart parking lot is not required by the police. United States v. Cartrette, 502 Fed. Appx. 311 (4th Cir. 2012):
In the instant case, no one was immediately available to take custody of Cartrette's vehicle, and a reasonable officer could have concluded that it constituted a nuisance where it was parked, in a Wal-Mart parking lot. Even if we credit Cartrette's testimony that his brother was nearby – testimony the district court did not find credible, see J.A. 353 – the police were not required to stay on the scene and wait for the brother to return. See Brown, 787 F.2d at 932 (impoundment reasonable when no known individual is "immediately available to take custody of the car").
Furthermore, we are not persuaded by Cartrette's argument that the Conway Police Department's lack of a written impoundment policy renders the impoundment unlawful. Bertine requires standard criteria for impounding vehicles, 479 U.S. at 375, but it does not require the criteria to be in writing. Here, the testimony of Officers Ridgeway and Hardee indicates there was a standard procedure to impound vehicles when no one is immediately available to take custody of the vehicle, and that they understood and followed that procedure. The district court was entitled to credit that testimony.
Notes: (1) Wal-Mart allows people with RVs to park on store parking lots overnight, but that does not by any means mean that a vehicle can be left there for days on end. Here, the police were not required to wait for the brother at all. If he were coming that day, what would be the harm in leaving the car on the Wal-Mart parking lot for a half day or even a day? Wal-Mart would clearly not care. But, there is something else more obviously at work: The allegedly non-pretextual search of the trunk of the car that turned up the shotgun. If there was no inventory, well, then, the police could not have found it and this case would not exist.
(2) Bertine requires a “standard criteria,” and a lack of a writing is an open invitation to abuse. Any police department larger than two officers ought to have a written inventory policy by now. Inventory has been recognized over 35 years since South Dakota v. Opperman, probably since before this searching officer was born. It's not that hard to come up with a policy since almost all departments of any repute have one.
New law review article: Stephen E. Henderson, After United States v. Jones, After the Fourth Amendment Third Party Doctrine, __ N.C. J.L. & Tech. __ (2013):
United States v. Jones, in which the Court unanimously held that month-long Global Positioning System (GPS) tracking of a vehicle constitutes a Fourth Amendment search, did not in itself tell us too much. The government took an egregious position, and therefore lost nine to zero. We now apply a resurrected trespass-based conception of search, but we know extremely little about how to do so and what results it will alter. We know five Justices believe long-term location tracking is typically a search because it invades a reasonable, seemingly empirical, expectation of privacy. And we know one Justice is willing to reconsider the entire third party doctrine, which holds that one typically retains no Fourth Amendment expectation of privacy in information conveyed to another.
But when we take a broader view, it is not merely one Justice who will not apply the third party doctrine in a strong form, and thus I have previously written the doctrine’s obituary. Jones fits nicely within a string of cases in which the Court is cautiously developing new standards of Fourth Amendment protections, rather than declaring generally applicable categorical rules. Given that it was a grand pronouncement of an allegedly categorical rule in United States v. Miller that has caused much of the trouble, this strikes me as a sensible way to proceed. I expect the road will not be smooth, but we are used to zigs and zags in the Fourth Amendment. It is hard to imagine anything less when the High Court is attempting to ferret out what is reasonable, which requires balancing private and law enforcement interests, and when technology, policing, crime, and social norms are constantly in flux.
Much of the ground has been plowed before, both by myself and others dating back many years, which calls for brevity. Indeed, Jones will surely spark a new crop of Fourth Amendment papers, the authors of some of which will read what has gone before and some of whom will not. But Jones provides a nice hinge around which to discuss where the Fourth Amendment has been and where it might be going – and more generally where citizens’ protections against unreasonable searches and seizures, which do not depend solely upon the Fourth Amendment, might be going. Here I will content myself with that relatively high level, and like many others I will begin in other fora to drill down into specifics of how the Fourth Amendment should apply to the particular techniques of location tracking.
Defendant was stopped for a traffic offense, and he admitted that he had no DL. That was probable cause to arrest him right there. The city tow policy was put into evidence, and there was no evidence that the inventory of the vehicle was a pretext for an evidentiary search. Defendant blurted out that there was a gun in the glove compartment, and that was cause to search it. [Although it would have been valid under the inventory anyway.] State v. Shipp, 2012 Ohio 6189, 2012 Ohio App. LEXIS 5390 (2d Dist. December 28, 2012).
Police observed defendant’s girlfriend get out of his vehicle and they were yelling at each other. They came up to her to see what was going on, and she said the two of them had been drinking all day and were “working on [their] relationship.” She seemed intoxicated. He came back and stopped, and they talked to him, and he seemed intoxicated. The detention was valid. Bowers v. State, 980 N.E.2d 911 (Ind. App. 2012).*
The court finds a valid basis for a traffic stop to check a paper temporary tag in the back window that just wasn’t visible at night. It was valid, but it led to a dog sniff and finding drugs. United States v. Givens, 2012 U.S. Dist. LEXIS 182909 (N.D. Iowa December 31, 2012).*
During a traffic stop for speeding, the officer saw numerous indications of possible drug trafficking from defendant’s story and looking at his vehicle which apparently had a hidden compartment. Parts of the reasonable suspicion came from a tip relayed by another trooper, heavy masking odors, a recently registered vehicle, nervousness, vague and inconsistent answers to travel questions, and a criminal history that included drug convictions and an open investigation. The detention was reasonable and led to valid consent. Moreover, the dog alert gave probable cause. United States v. Urias, 2012 U.S. Dist. LEXIS 182879 (D. Utah December 7, 2012).*
Officer went to defendant’s door for a knock-and-talk and saw things in plain view that were subject to seizure. When defendant didn’t answer, the officer went to another door, this one on the side which was also visible from the street. Going to the back door would have been more troubling, but that’s not the case. State v. Ronewicz, 2012 Tenn. Crim. App. LEXIS 1085 (December 26, 2012):
The officer's decision to move from the front door to the "back" door of the defendant's residence while conducting the "knock and talk" is more troubling. This court has cautioned on numerous occasions that the "knock and talk" exception is not an open license for police officers to prowl through the yards of private citizens or peer through their windows. "Any substantial and unreasonable departure from an area where the public is impliedly invited exceeds the scope of the implied invitation and intrudes upon a constitutionally protected expectation of privacy." Harris, 919 S.W.2d at 624 (internal quotation omitted). When Detective Howell stepped off the presumably well-worn path from the street to the defendant's front door, he began treading on constitutionally-dangerous turf.
However, it is plain from the testimony and exhibits we have reviewed in this case that what the parties refer to as the "back" door of the defendant's residence was actually more akin to a side door, as it was visible from the public street (because the defendant's house was located on a corner lot), there was a path leading to it, and it was not fenced-in. ...
Defendant was convicted of running a ponzi scheme from his house, and a search warrant had been executed on the records there. There was no motion to suppress filed, and he raised that in a 2255 petition claiming that his private journal had religious sentiment in it. He argued that this was a violation of self-incrimination, and apparently a violation of the First Amendment. As to self-incrimination, that’s a dead argument since Fisher v. United States. The argument is meritless, and defense counsel can’t be ineffective for raising a meritless claim. Johnson v. United States, 2012 U.S. Dist. LEXIS 182843 (W.D. Va. December 28, 2012).*
The trial court’s credibility determination that defendant consented to a search during a traffic stop was affirmed on appeal. State v. Scott, 2012 Tenn. Crim. App. LEXIS 1087 (December 28, 2012).*
A face-to-face report from a confidential informant is entitled to more weight by law enforcement because they can better judge the informant’s credibility. United States v. Lawing, 703 F.3d 229 (4th Cir. 2012):
Law.com: PA: Technology Was 'Topic A' for Superior Court-Until Lynn by Max Mitchell:
Defendant failed to show how disclosure of the CI’s identity would have helped in his motion to suppress. Defendant was involved in a controlled buy the CI three days before the search warrant was issued for his house, and the product of the search was the basis of the case against him. It was speculation that disclosing the CI would prove anything relevant. United States v. Murel, 502 Fed. Appx. 291 (4th Cir. 2012):
Below, Murel offered the district court no explanation as to how disclosure of the identity of the confidential informant would be relevant to any defense he sought to present at trial. Instead, Murel merely speculated in a conclusory manner that such confidential informant "could potentially provide relevant and helpful testimony for the defense concerning what occurred and what the CI observed, if anything, at [his residence] in connection with the alleged controlled buy on Jun[e] 10, 2009." (J.A. 148-49) (Murel's Motion to Compel Disclosure of Confidential Informant Information).
After reviewing Murel's arguments, the record, and the relevant legal authorities, we conclude Murel failed to carry his burden of establishing an actual basis for disclosure of the identity of the confidential informant who conducted the controlled purchase from Murel on June 10, 2009. Accordingly, the district court did not abuse its discretion in denying Murel's motion to compel disclosure of such confidential informant's identity. Of significant importance to our conclusion is the fact that although the confidential informant participated in the controlled purchase which resulted in Murel's arrest and issuance of the search warrant for his residence, Murel's participation in the controlled purchase is not the subject of his instant offenses. Smith, 780 F.2d at 1108 (in determining whether defendant carried his burden of establishing entitlement to disclosure of identity of confidential informant, "[o]ne of the most important factors to be considered is the materiality of the evidence to the defendant's particular defense"). Rather, Murel was charged with three criminal offenses stemming from evidence recovered three days after the controlled purchase at issue. In sum, Murel has offered nothing more than rank speculation as to how disclosure of the identity of the confidential informant would have been relevant to his defense; therefore, he has failed to carry his burden on this issue. See id. (disclosure of confidential informant's identity only required after court has determined such informant's "testimony is highly relevant").
An unconditional plea is a waiver of one’s denied suppression motion. In the Seventh Circuit, the court notes apparent disagreement in the law but distinguishes the cases, and, if the government objects based on waiver, the court will find waiver. United States v. Adigun, 703 F.3d 1014 (7th Cir. 2012).
Defendant alleged that virtually everything defense counsel did was ineffective assistance, including his failure to object to evidence seized in places other than defendant’s place. “To say that Defendant has utilized the kitchen sink defense in this portion of his motion would be a dramatic understatement. Defendant appears to claim error in every act taken by his counsel and in every aspect in which he allegedly failed to act.” Defendant, however, failed to support anything with a fact claim. No IAC. United States v. Ugochukwu, 2012 U.S. Dist. LEXIS 182708 (N.D. Ohio December 28, 2012).*
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—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
—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."
"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)