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).*
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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)