Archives for: February 2013

02/28/13

Permalink 08:20:53 pm, by fourth, 258 words, 1206 views   English (US)
Categories: General

Arkansas adopts drug dog certification

The Arkansas Governor two days ago signed 2013 Ark. Act 168, An Act Concerning Training Requirements for Canine Law Enforcement Units, specifying training for drug dogs that effectively implements the admonition of Florida v. Harris, noted here (syllabus) and here (LA Daily Journal: Dog sniff ruling doesn’t smell so bad after all by Allison B. Margolin).

The entirety of Act 168:

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Permalink 05:27:29 pm, by fourth, 172 words, 742 views   English (US)
Categories: General

D.Utah: Continued questioning unlawfully continued the stop, even after papers returned

The officer continued the conversation after giving the papers back to the defendant, and that made the detention unlawful. “Finally, at the time when Trooper Sheets engaged Mr. Lopez in additional conversation, Trooper Sheets did not have an articulable suspicion of criminal activity. His additional questions were designed to see if something would turn up or if Mr. Lopez would implicate himself.” Motion to suppress granted. United States v. Lopez, 2013 U.S. Dist. LEXIS 26954 (D. Utah February 26, 2013).*

Defendant’s guilty plea waived the search issue, but it would lose on the merits because defendant didn’t have standing. “It is well settled that there is no ‘co-conspirator exception’ to the rule that a defendant must have standing to contest the constitutionality of a search or seizure.” United States v. Valdez, 2013 U.S. Dist. LEXIS 26420 (W.D. La. February 3, 2013).*

Request to “push open the door and look in the bedroom” was a request to consent to enter the bedroom, not just stand at the door. United States v. Stone, 510 Fed. Appx. 891 (11th Cir. 2013).*

Permalink 08:21:22 am, by fourth, 934 words, 3733 views   English (US)
Categories: General

The Fourth Circuit takes the Charlotte-Mecklenburg PD back to training day on the Terry doctrine

This is a fascinating case on reasonable suspicion calculus and what an appellate court is expected to do in judicial review, rather than rubber stamping the trial court’s conclusion reasonable suspicion existed. Two guys standing around, one with a prior, doesn’t support a stop of both, let alone the other. Seeing a gun is not reasonable suspicion in an open carry state. United States v. Black, 707 F.3d 531 (4th Cir. 2013):

In Terry v. Ohio, Chief Justice Earl Warren recognized that police officers need discretion to perform their investigative duties. 392 U.S. 1 (1968). Since Terry, this discretion has been judicially broadened, giving police wide latitude to fulfill their functions. In some circumstances, however, police abuse this discretion, and we must remind law enforcement that the Fourth Amendment protects against unreasonable searches and seizures. Because in this case, we find the police disregarded the basic tenets of the Fourth Amendment, we reverse.

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Permalink 07:59:56 am, by fourth, 222 words, 1459 views   English (US)
Categories: General

Daily Kos: While Millions Hotly Debate the Second Amendment, the Fourth Amendment is Dying a Quiet Death

02/27/13

Permalink 01:37:29 pm, by fourth, 211 words, 1112 views   English (US)
Categories: General

NYTimes: Justices Wrestle Over Allowing DNA Sampling at Time of Arrest

One of my favorite quotes about the Fourth Amendment is Frankfurter’s 1948 comment “[W]here one comes out on a case depends on where one goes in.” So, too, of DNA testing arrestees. See NYTimes: Justices Wrestle Over Allowing DNA Sampling at Time of Arrest by Adam Liptak:

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Permalink 12:20:02 pm, by fourth, 251 words, 998 views   English (US)
Categories: General

LA Daily Journal: Dog sniff ruling doesn’t smell so bad after all

LA Daily Journal: Dog sniff ruling doesn’t smell so bad after all by Allison B. Margolin (Feb. 22, 2013) (sub. req.):

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Permalink 07:43:34 am, by fourth, 157 words, 952 views   English (US)
Categories: General

CA11: Affidavit for SW for doctor for overprescribing didn't require expert opinion

In an overprescribing case against a doctor, the 39 page affidavit for a search warrant for his house and office did not require an expert’s opinion that he was overprescribing and that he continued to prescribe after being told patients were addicted and some overdosed. United States v. Joseph, 709 F.3d 1082 (11th Cir. 2013)*:

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Permalink 07:37:35 am, by fourth, 165 words, 543 views   English (US)
Categories: General

M.D.Fla.: Questions about whether there is a gun within reach are not subject to Miranda under Quarles

Questions to the defendant about whether there is a gun within reach are not subject to Miranda under Quarles. United States v. Hickman, 2013 U.S. Dist. LEXIS 25247 (M.D. Fla. January 24, 2013), adopted 2013 U.S. Dist. LEXIS 25249 (M.D. Fla. February 25, 2013).*

“Rapid and furtive movements” and a failure to comply with orders was reasonable suspicion for a frisk. United States v. Reyes, 2013 U.S. Dist. LEXIS 25164 (S.D. Tex. February 25, 2013).*

The Fourth Amendment IAC claim for failure to argue an issue in the trial court fails because the issue really was adequately raised and rejected. Hyatt v. United States, 2013 U.S. Dist. LEXIS 25213 (N.D. Ala. January 30, 2013),* adopted 2013 U.S. Dist. LEXIS 24417 (N.D. Ala. February 22, 2013), prior appeal United States v. Hyatt, 383 Fed. Appx. 900 (11th Cir. 2010).*

The specific argument against the search that the taint was not purged was not raised in the district court, so it is waived except for plain error review, which it’s not. United States v. Guzman-Velasquez, 515 Fed. Appx. 286 (5th Cir. 2013).*

02/26/13

Permalink 08:03:04 pm, by fourth, 617 words, 1947 views   English (US)
Categories: General

CA11: Drug testing as a condition of receiving public assistance in Florida violates the Fourth Amendment

Drug testing as a condition of receiving public assistance in Florida violates the Fourth Amendment. The state's proffer on “special needs” exception as justification woefully fails. Lebron v. Secretary, Florida Department of Children and Families, 710 F.3d 1202 (11th Cir. 2013):

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Permalink 01:30:12 pm, by fourth, 122 words, 735 views   English (US)
Categories: General

OR's HB3200 on inspection of assault rifles violates the Fourth Amendment

Oregon's HB3200 on inspection of assault rifles violates the Fourth Amendment. It suffers the same defect as Washington's SB 5737's § 2(5)(a) posted here. That one was later labeled "a mistake" by its author.

HB3200 provides:

SECTION 4. (1) Any person seeking to register an assault weapon or large capacity magazine shall do so as provided in this section within 120 days after the effective date of this 2013 Act.
...
(5) A registered owner of an assault weapon or large capacity magazine is required to:
(a) Securely store the assault weapon or large capacity magazine pursuant to rules and regulations adopted by the department;
(b) Allow an inspector from the department to inspect the storage of assault weapons and large capacity magazines to ensure compliance with this subsection; ...

Permalink 09:10:45 am, by fourth, 201 words, 690 views   English (US)
Categories: General

N.D.Ind.: Defendant's alleged attempt at withdrawal from conspiracy before arrest didn't nullify probable cause

The DEA had probable cause to arrest defendant for attempt to commit drug possession. The fact he didn’t show up for the last piece of the transaction as an alleged attempt to withdraw didn’t nullify the probable cause [that was more a question for trial]. United States v. Jones, 2013 U.S. Dist. LEXIS 25021 (N.D. Ind. February 25, 2013).*

Officers had reasonable suspicion the juvenile on a bicycle was the source of gunfire when they stopped him after two others said he was. When stopped, he found it amusing and said it was firecrackers, and that only added to the reasonable suspicion. T.H. v. State, 2013 Ohio 609, 2013 Ohio App. LEXIS 554 (10th Dist. February 21, 2013).*

The question of whether somebody has a right to be told they can refuse consent was not presented to the trial court so it is waived. [Arkansas wouldn’t adopt that rule anyway.] Kinard v. State, 2013 Ark. App. 103, 2013 Ark. App. LEXIS 124 (February 20, 2013).*

The government showed that the inventory was subject to standard procedures of the Austin PD, and the officers did not have to accede to defendant’s attempt to have his car taken by a passerby. United States v. Rodriguez, 2013 U.S. App. LEXIS 3643 (5th Cir. February 21, 2013).*

Permalink 07:32:53 am, by fourth, 108 words, 835 views   English (US)
Categories: General

KS: Drug tax is likely subject to the exclusionary rule

On summary judgment, assessment of a drug tax is likely subject to the exclusionary rule, too, for the illegal search of claimant’s vehicle. In re Tax Appeal of Burch, 2013 Kan. LEXIS 81 (February 22, 2013).*

The district court did not err in dismissing plaintiff’s complaint that police officers entered his house without exigent circumstances and broke into his bathroom to disarm him. Brown v. Calicchio, 2013 U.S. App. LEXIS 3842 (11th Cir. February 25, 2013).*

Plaintiff’s civil case against officers for allegedly using false information to have a search warrant issued was properly dismissed without comment for the reasons given by the district court. Shepherd v. Sheldon, 515 Fed. Appx. 560 (6th Cir. 2013).*

02/25/13

Permalink 04:33:02 pm, by fourth, 115 words, 744 views   English (US)
Categories: General

ABAJ: Chemerinsky: Does the Fourth Amendment still fit the 21st Century?

ABAJ: Chemerinsky: Does the Fourth Amendment still fit the 21st Century? by Erwin Chemerinsky:

Once more in Maryland v. King, which will be argued tomorrow, the U.S. Supreme Court is asked to apply the Fourth Amendment to the technology of the 21st century. The issue is whether the Fourth Amendment is violated when a state, without a warrant, collects and analyzes DNA taken from a person arrested for a serious crime solely for investigating other crimes for which there is no individualized suspicion. The case powerfully illustrates the deficiencies in traditional approaches to the Fourth Amendment and the need for the court to develop a Fourth Amendment jurisprudence based on protection of informational privacy.

Permalink 08:02:26 am, by fourth, 129 words, 641 views   English (US)
Categories: General

MI: 911 call about open door to house supported emergency entry that found drugs

A report to the police of a residence door swinging in the wind made the officer suspect a burglary, and he rang the doorbell and knocked before entering. Marijuana was found. The fact the door was not damaged when the officer arrived was not determinative. People v. Lemons, 299 Mich. App. 541, 830 N.W.2d 794 (2013).

There is no suggestion in Randolph that the defendant be asked for consent before he is removed from the premises. (quoting United States v. Travis, 311 Fed. Appx 305, 310 (11th Cir. 2009)). United States v. Swilley, 2013 U.S. Dist. LEXIS 24132 (N.D. Ga. February 1, 2013).*

High crime area, nervousness, and object in pocket that could have been a gun were all factors in reasonable suspicion for a patdown. United States v. Felton, 2013 U.S. Dist. LEXIS 22944 (E.D. Wis. February 20, 2013).*

Permalink 07:53:12 am, by fourth, 294 words, 772 views   English (US)
Categories: General

IN: School resource officers LEOs or not? If not, can't be assaulting an officer

Should resisting a school resource officer be a crime? What about the Fourth Amendment implications of what a school resource officer does under T.L.O.? Tough questions that the legislature is invited to answer. K.W. v. State, 984 N.E.2d 610 (Ind. 2013)*:

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Permalink 07:45:46 am, by fourth, 113 words, 476 views   English (US)
Categories: General

GA: SW for documentary evidence in drug case permits seizure of camera and its pictures

A search warrant for documentary evidence of drug dealing and possession includes seizure of a camera and the pictures it may contain. State v. Rogers, 2013 Ga. App. LEXIS 90 (February 21, 2013).

Defendant was in prison on another murder conviction, and seizure of a letter from his cell that was a suicide note mentioning this murder case was not subject to the Fourth Amendment or the plain view doctrine. Bolin v. State, 117 So. 3d 728 (Fla. 2013).*

An order for installation of a GPS device in Pennsylvania requires probable cause, and the officers had it here. The proceedings complied with the state wiretap act, and nothing here was inconsistent with Jones. Commonwealth v. Burgos, 2013 PA Super 26, 64 A.3d 641 (2013).*

02/24/13

Permalink 10:57:53 am, by fourth, 175 words, 488 views   English (US)
Categories: General

CA5: Miranda violation found in SW affidavit doesn't automatically suppress the search

Defendant’s computer was subject to three search warrants and affidavits. The third one had two paragraphs referring to statements later suppressed. Removing the paragraphs does not alter the probable cause finding. [The court went the long way to this via the good faith exception and deterrence instead of cutting to the chase.] United States v. Woerner, 709 F.3d 527 (5th Cir. 2013).*

Where the automobile exception applies, the fact a backpack formerly in the car is outside it at the time of search doesn’t mean it can’t be searched. United States v. Vehikite, 2013 U.S. Dist. LEXIS 24841 (D. Utah February 22, 2013).*

The delay in getting information about defendant from dispatch because “the dispatcher was not the normal dispatcher” [while making no sense] didn’t unreasonably extend the stop to 27 minutes to get basic information about the defendant and allow time for the drug dog to arrive. That makes the detention not unreasonable. [Once again, a trial and appellate court defer to the police our rights]. State v. Williams, 2013 Ohio 594, 2013 Ohio App. LEXIS 528 (4th Dist. January 30, 2013).*

Permalink 10:11:23 am, by fourth, 103 words, 512 views   English (US)
Categories: General

CA5: Admitted Miranda violation didn't void consent after defendant lawyered up

Defendant’s Miranda/Edwards rights were admittedly violated by the government, but that violation did not void defendant’s consent obtained after lawyered up. United States v. Gonzalez-Garcia, 708 F.3d 682 (5th Cir. 2013).

Suit against the county fails in its allegation that the county had a municipal custom of violating the Fourth Amendment from one discrete claim. Ogle v. Hocking County, 2013 Ohio 597, 2013 Ohio App. LEXIS 527 (4th Dist. January 31, 2013).*

Defendant pled guilty thereby waiving his alleged search claim. He can’t show that his guilty plea was a product of objectively unreasonable advice. United States v. Belk, 2013 U.S. Dist. LEXIS 24257 (D. S.C. February 22, 2013).*

Permalink 09:55:06 am, by fourth, 133 words, 407 views   English (US)
Categories: General

E.D.Mo.: Even if search started before SW issued, search would be valid under inevitable discovery

Even if the police entered defendant’s house for a security sweep before the search warrant issued, the issuance of the search warrant supported the plain views under inevitable discovery. United States v. Moore, 2013 U.S. Dist. LEXIS 22830 (E.D. Mo. February 20, 2013).*

A reasonable officer would not have concluded that the arrest of the plaintiffs for breach of the peace here was valid, so they have no qualified immunity. Chimera v. Lockhart, 511 Fed. Appx. 785 (10th Cir. 2013).*

Dog sniff of a hotel hallway to learn about drugs in defendant’s hotel room was reasonable under Florida’s Jardines (pending in SCOTUS) because the curtilage was not entered. The dog alert was otherwise probable cause, and the dog was shown to be certified. United States v. Legall, 2013 U.S. Dist. LEXIS 23328 (E.D. Va. February 15, 2013).*

Permalink 12:10:00 am, by fourth, 2184 words, 3763 views   English (US)
Categories: General

10th Anniversary Note: § 2.1. Understanding Fourth Amendment realities

Today is the Tenth Anniversary of this blog.

What follows are 13 “realities” of Fourth Amendment adjudication that I see from having read so many Fourth Amendment cases for so long. This is § 2.1 of the new edition, forthcoming in late December, with 90 footnotes which are omitted here.

1. There no longer are any “technicalities” under the Fourth Amendment.

a. All alleged errors in the creation (e.g., actual probable cause), issuance (i.e., scrivener’s errors, including particularity), and execution of a search warrant (i.e., excessive search), are subject to a rule of reason [my words, cases don't say it that way, but this book does]; this is the essence of the reasonableness requirement.
b. “Objectively reasonable” or “objective reasonableness” is the second most important phrase in the Fourth Amendment case law after “probable cause.” It is how the “reasonableness” requirement is applied, it defines application of all the totality of circumstances standards, reasonable suspicion, the good faith exception ‒ nearly everything.
c. Thus, all questions regarding the construction of affidavits and warrants must be viewed from the perspective of encouraging the police to seek search warrants. Even fundamental mistakes can be in good faith and not prejudicial on the totality of circumstances.
d. Any alleged error requires that the target of the search was somehow “prejudiced” by what happened. Merely finding incriminating evidence is not prejudice. This is a “No harm, no foul” rule. Without the police finding something, we wouldn’t have a criminal case.
e. The Supreme Court would sometimes strive for “bright line rules” to make the Fourth Amendment easier for police to apply on the street, but that proved impossible in much of Fourth Amendment litigation because many situations defy bright line rules; e.g., “reasonableness” and “totality of the circumstances.” Even Payton, crying out for a bright line rule, ended up with the Fourth Amendment drawing “a firm line at the entrance to the house.” (See also “core values” under No. 4.)

2. Exclusion of evidence for a Fourth Amendment violation is the exception rather than the rule. Ending in the 1970’s, it seemed the rule rather than the exception, and that’s long over.

a. Exclusion has to result in “appreciable deterrence” of police conduct or misconduct to be applied. Where there is only marginal deterrence in a case means the exclusionary rule should not be applied.
b. The system benefits of deterrence must outweigh the costs. What “benefits,” exactly? Presumably adherence to the Fourth Amendment.
c. Therefore, there now is a good faith exception for warrantless searches.

3. The good faith exception applies to the finding of probable cause for the warrant. It was not, however, intended to apply to issues regarding the execution of warrant since the good faith exception was originally created to cure good faith probable cause errors in issuance of search warrants.

a. A court should consider probable cause first before considering good faith lest the Fourth Amendment stagnate, and no one would ever know whether a given set of facts constitutes probable cause.
i. It is part of the judicial function to decide probable cause, not decide that the question doesn’t need to be decided. When courts avoid deciding probable cause questions, they have deferred deciding probable cause questions to the police.
ii. Without deciding probable cause, police will continue to be able to arrest or search on similar facts without fear of civil liability because there will always be qualified immunity and no suppression of evidence. Therefore, courts should decide the question of probable cause before moving to the good faith exception.
iii. Deciding good faith without deciding probable cause should be the exception rather than the rule. In some jurisdictions, it’s not, and this is an abdication of the judicial function, exalting form over substance, and making the good faith exception more important than probable cause.
b. If the question of probable cause is difficult, the preference for warrants (see No. 1(b)) should lead a court to conclude that, even if there was no probable cause, there clearly was at least a good faith basis for finding probable cause in the first place and the product of the search warrant should not be suppressed. (This is what happened in Leon.)
c. The conduct of the officers must be “objectively reasonable,” referring back to the Fourth Amendment qualified immunity cases.
d. Of the four exceptions to the good faith exception under Leon, all are based on aggravated situations. Only the Franks “knowing and reckless falsity” has any real current value. The other three are becoming subsumed into the good faith exception in practice by cases that never factually measure up.
e. The Supreme Court says it hasn't yet applied the good faith exception in warrantless search cases. [But what is Davis?]

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Permalink 12:01:04 am, by fourth, 32 words, 573 views   English (US)
Categories: General

252d anniversary of Otis's Writs of Assistance argument in Paxton's Case

Today is the 252d anniversary of James Otis’ argument at the Boston Old State House against the writs of assistance in Paxton’s Case, heard Tuesday, February 24, 1761. (See this prior post from 2006).

Permalink 12:00:38 am, by fourth, 164 words, 409 views   English (US)
Categories: General

WaPo: Md. DNA law at center of SCOTUS case aided 43 convictions; many possible even without new law

WaPo: Md. DNA law at center of SCOTUS case aided 43 convictions; many possible even without new law by Associated Press:

WASHINGTON — A Maryland DNA law being challenged in the U.S. Supreme Court helped lead to 43 convictions over the past four years, but state data shows the majority of the convictions could eventually have happened even without the new law.

For years, Maryland required people convicted of serious crimes to provide a DNA sample. The sample, taken from a swab of saliva, was then compared against a database of DNA evidence from crime scenes, and some old cases were able to be solved. Maryland changed its law in 2009, however, so that people had to provide the saliva sample when they were arrested on charges of committing certain violent crimes — before going to trial.

Note: Maryland v. King is being argued Tuesday, Feb. 26 (ScotusBlog). Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.

02/23/13

Permalink 11:38:08 pm, by fourth, 39 words, 502 views   English (US)
Categories: General

ACLU: Know Your Rights: Constitution Free Zone - Map

ACLU: Know Your Rights: Constitution Free Zone - Map

(Click on your state in the map below to find out how many Americans are currently living without full constitutional protection. Check out additional information about Constitution Free Zones here.)

const free zone

Permalink 01:57:43 am, by fourth, 528 words, 916 views   English (US)
Categories: General

E.D.Mo.: Officer's pressing face against tinted living room window to see in didn't violate curtilage

Officer’s pressing face against defendant’s front window to see through heavily tinted glass did not violate defendant’s curtilage. Defendant testified to his expectation of privacy, which wasn't found. United States v. Glover, 2013 U.S. Dist. LEXIS 23471 (E.D. Mo. February 14, 2013)*:

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Permalink 12:51:39 am, by fourth, 117 words, 637 views   English (US)
Categories: General

OH12: Storekeeper was citizen informant entitled to reliability

Storekeeper who observed defendant’s intoxicated conduct was a citizen informant when he called the police report her condition. State v. Schmidbauer, 2013 Ohio 530, 2013 Ohio App. LEXIS 465 (12th Dist. February 19, 2013).

Even assuming the challenged part of the search warrant affidavit was false, probable cause existed on the remainder, and the warrant would not be suppressed. State v. Johnson, 2013 Ohio 575; 2013 Ohio App. LEXIS 509 (8th Dist. February 21, 2013).

CI’s statement that defendant engaged in drug sales with him showed reliability for issuance of search warrant. State v. Tolbert, 2013 Ohio 577, 2013 Ohio App. LEXIS 508 (8th Dist. February 21, 2013).*

Defendant’s furtive movement like he was hiding something in his waistband was reasonable suspicion. State v. Travis, 2013 Ohio 581, 2013 Ohio App. LEXIS 512 (8th Dist. February 21, 2013).*

Permalink 12:00:26 am, by fourth, 301 words, 830 views   English (US)
Categories: General

OH4: Entry into defendant's house was objectively reasonable where his father was murdered nearby

Entry into defendant’s house under the emergency aid exception was objectively justified because of a murder of his father in the house next door and he couldn’t be found. State v. Markins, 2013 Ohio 602, 2013 Ohio App. LEXIS 530 (4th Dist. February 8, 2013):

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02/22/13

Permalink 02:16:06 pm, by fourth, 377 words, 916 views   English (US)
Categories: General

MA: Furtive movements justified frisking defendant and car for safety reasons

Defendant was stopped in a high crime area of Boston, and he reached for the glove compartment and opened and closed it quickly without reaching inside. Then he reached under the seat. These movements justified getting him out of the car and patting him down. When that turned up empty, the officers were still justified in frisking the car, and a hidden compartment with a gun was validly found. Commonwealth v. Haynes, 83 Mass. App. Ct. 903, 983 N.E.2d 731 (2013):

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Permalink 01:55:33 pm, by fourth, 502 words, 975 views   English (US)
Categories: General

CA6: Raiding wrong house requires suppression

Officers had a warrant for 3171, and found two 3170s, on opposite sides of the street. They picked the 3170 that was occupied and told the occupants they had a warrant, but it was not 3171. The entry found a bunch of cocaine, and it had to be suppressed. This was not in any sense in good faith [my words]. The government argued that the exclusionary rule did not apply. “But so long as there is an exclusionary rule, it seems safe to say that it will apply to officers who enter and remain in a house based on false pretenses.” United States v. Shaw, 707 F.3d 666 (6th Cir. 2013) (2-1):

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Permalink 01:00:00 am, by fourth, 437 words, 1010 views   English (US)
Categories: General

MA: Only men in vicinity of shooting call could be stopped

Two police officers who were cruising the streets during a snow storm had not seen anybody all night, and they passed by two men with hoodies walking who looked away from him as he passed. Just then they heard a radio call of a shooting within 100' of where they were. They turned and went back to them, and when confronted, one of them dropped a dark object to the ground which could have been a gun. A struggle ensued. The stop and use of force was based on reasonable suspicion. Commonwealth v. McKoy, 83 Mass. App. Ct. 309, 983 N.E.2d 719 (2013):

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Permalink 12:00:30 am, by fourth, 105 words, 833 views   English (US)
Categories: General

KS: Public housing employee inspecting apartment was not "government actor" for Fourth Amendment

A public housing employee came to an apartment to check for damage from a sewer back up. She knocked, got no answer, and entered defendant’s apartment. Inside, she found two unconscious persons and “drugs and things.” She called the police. That was a valid private search, following United States v. Couch, 378 F. Supp. 2d 50, 58 (N.D. N.Y. 2005), which held public housing employees in a similar situation were not "government actors" for purposes of the Fourth Amendment (same result under state constitution). State v. Brittingham, 296 Kan. 597, 294 P.3d 263 (2013).

Cracked windshield can support a stop as a defect in equipment. Villanueva v. State, 2013 Ark. 70 (February 21, 2013).*

02/21/13

Permalink 02:02:34 pm, by fourth, 317 words, 835 views   English (US)
Categories: General

Reason.com: SCOTUS Approves Search Warrants Issued by Dogs

Permalink 08:33:10 am, by fourth, 206 words, 972 views   English (US)
Categories: General

WI: Passenger's statement “Got a warrant for that?”, was not objection to driver's consent to briefcase

“Got a warrant for that?” with a laugh is not an unambiguous objection to search of defendant passenger’s briefcase in a car where the driver, defendant’s wife, consented to a search of the whole car. He needed to be more specific because it didn’t even put the officer on notice he was objecting. Defendant could have objected but did not. State v. Wantland, 2013 WI App 36, 346 Wis. 2d 680, 828 N.W.2d 885 (2013):

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Permalink 08:22:21 am, by fourth, 108 words, 741 views   English (US)
Categories: General

CA3: Being pointed out by witnesses to a shooting as being involved is PC for arrest

Plaintiff matched the description of a shooter, and an eyewitness pointed him out. That provided probable cause for arrest and defeats a § 1983 Fourth Amendment claim. Franks v. Temple Univ., 514 Fed. Appx. 117 (3d Cir. 2013).*

Defendant’s nervous demeanor and apparent gun in pocket justified patdown. United States v. Felton, 2013 U.S. Dist. LEXIS 22944 (E.D. Wis. February 20, 2013).*

Defendant’s business was subjected to a search warrant for federal benefits fraud. He consented to a search of his truck while he was not in custody and had been told he was free to leave, yet he didn’t. United States v. Dix, 2013 U.S. Dist. LEXIS 22476 (N.D. Ga. January 29, 2013).*

Permalink 08:06:01 am, by fourth, 219 words, 789 views   English (US)
Categories: General

MO: When RS was quickly dispelled, defendant should have been let go

Defendant was riding a bicycle in circles in an intersection late at night in a high crime area. When they were near him, he said “They went that way.” They saw the handle of a gun and stopped him. They quickly found it was a toy gun, and they should have let him go, even if they suspected he was high. “Because Officers Smith and Fenwick's articulated basis for reasonable suspicion was dispelled prior to the warrant check and no new facts were developed, the continued detention of Mr. Lovelady was unlawful. The handcuffs should have been removed from Mr. Lovelady, thereby releasing him to go home as he had requested.” State v. Lovelady, 2013 Mo. App. LEXIS 204 (February 19, 2013).*

Defendant was arrested on warrants at home, and she was taken to the door. When she wanted to get a jacket and turn off the stove, the officers followed her back in, and they saw things in plain view, and that caused enough concern for a protective sweep finding more in plain view that supported a search warrant. United States v. Moore, 2013 U.S. Dist. LEXIS 22830 (E.D. Mo. February 20, 2013).*

Defense counsel at trial was not ineffective for not challenging defendant’s parole search that would have lost anyway. Foster v. United States, 2013 U.S. Dist. LEXIS 23192 (N.D. Ohio February 20, 2013).*

Permalink 12:00:30 am, by fourth, 277 words, 1009 views   English (US)
Categories: General

ME: No reasonable expectation of privacy against recording sex acts in Kennebuck Zumba Studio case

Maine interprets its invasion of privacy statute involving the alleged recording of sex acts between a prostitute and her customers in the Kennebunk Zumba Studio prostitution case holding that there is no expectation of privacy when one is with a prostitute since it’s a crime. The state argued for a Fourth Amendment reasonable expectation of privacy analysis which the court did not find appropriate. State v. Strong, 2013 ME 21, 60 A.3d 1286 (2013)*:

=> Read more!

02/20/13

Permalink 09:05:52 am, by fourth, 140 words, 816 views   English (US)
Categories: General

CA6: consent wasn't an issue in trial court, so it's waived on appeal

Whether consent was properly given wasn’t addressed in the District Court, so it is not properly before the appellate court. United States v. Fields, 515 Fed. Appx. 363 (6th Cir. 2013).*

Exigent circumstances were presented by defendant’s alleged use of a laser pointer on an aircraft. The government did not have to produce expert testimony on the effects of laser pointers on pilots to show exigency. [There’s a federal law against it for a reason, and it’s not a speculative reason.] United States v. Smith, 2013 U.S. Dist. LEXIS 22100 (D. Neb. February 19, 2013).*

When the owner of a vehicle has a license revoked, and that is determined from reading the LPN, the officer has an objective basis for stopping the car and does not have to ascertain that the owner is actually driving first. State v. Hicks, 2013 NMCA 056, 300 P.3d 1183 (2013).*

Permalink 08:47:09 am, by fourth, 412 words, 1187 views   English (US)
Categories: General

NY: No expectation of privacy from pinging of cell phone

Defendant did not have standing in the place he was found, but he had standing to challenge the search of his backpack that was with him, right up to the time he abandoned it. Defendant was found by pinging his cell phone, and he had no reasonable expectation of privacy in the signal emitted by the phone to the provider, analyzing Jones and Smith and coming down with Smith. People v Moorer, 2013 NY Slip Op 23048, 39 Misc. 3d 603, 959 N.Y.S.2d 868 (Monroe Co. 2013):

=> Read more!

Permalink 08:22:17 am, by fourth, 80 words, 821 views   English (US)
Categories: General

GA: Validity of stop objection didn't preserve the lack of PC argument on appeal

Objection in the trial court to the stop of the car didn’t include lack of probable cause for issuance of the search warrant for the car, so that issue is waived on appeal. Thomas v. State, 292 Ga. 429, 738 S.E.2d 571 (2013).*

LPN reader alert provides probable cause for a stop. Rodriguez v. State, 2013 Ga. App. LEXIS 72 (February 19, 2013).

2255 petitioner’s search and seizure arguments were barred from collateral review. United States v. Larsen, 2013 U.S. Dist. LEXIS 20977 (E.D. Wis. February 14, 2013).*

02/19/13

Permalink 06:25:42 pm, by fourth, 311 words, 894 views   English (US)
Categories: General

Cato: "Clever Hans vs. the Fourth Amendment"; a comment on Harris

Permalink 01:34:51 pm, by fourth, 59 words, 989 views   English (US)
Categories: General

Washington State SB 5737 sponsor claims assault weapon inspection a “mistake”

Washington State SB 5737 (posted here) sponsor claims assault weapon inspection a “mistake” that shouldn’t have been in there. See Dems Sponsor Bill To Violate Fourth Amendment Rights Of Gun Owners.

Mistake as in: Some scribe was supposed to have deleted that before it got submitted? Or, a slip of the keyboard that included it in the first place?

Permalink 10:57:00 am, by fourth, 1218 words, 1500 views   English (US)
Categories: General

SCOTUS: Bailey v. United States: Detentions permitted under Summers have to be in immediate vicinity

Bailey v. United States, 2013 U.S. LEXIS 1075 (Feb. 19, 2013) decided by SCOTUS: Detention of a person during execution of a search warrant has to be in the immediate vicinity of the place to be searched, and Bailey wasn't in the vicinity. If the government can justify it under Terry, they get a shot on remand. Syllabus:

=> Read more!

Permalink 10:50:55 am, by fourth, 802 words, 1062 views   English (US)
Categories: General

SCOTUS: Florida v. Harris: State proved dog was reliable; alert was PC

Florida v. Harris, 2013 U.S. LEXIS 1121 (Feb. 19, 2013), decided by SCOTUS. The state proved the drug dog reliable, so its alert is probable cause. Syllabus:

=> Read more!

Permalink 08:51:00 am, by fourth, 273 words, 545 views   English (US)
Categories: General

E.D.Tenn.: Search of NCIC database not a Fourth Amendment issue

There is no Fourth Amendment right to protection against searching information in NCIC. A warrant on defendant was basis for his stop. United States v. Cobb, 2012 U.S. Dist. LEXIS 186155 (E.D. Tenn. December 27, 2012):

Without providing any legal support for this argument, Defendant Campbell insists that a law enforcement officer must have reasonable suspicion to search the NCIC database for a person's information. Many courts have held that computer database searches are not subject to Fourth Amendment analysis. In fact, "[t]he obvious purpose of maintaining law enforcement databases is to make information, such as the existence of outstanding warrant, readily available to officers carrying out legitimate law enforcement duties." United States v. Ellison, 462 F.3d 557, 562 (6th Cir. 2006) (finding no expectation of privacy in an officer's search of the Law Enforcement Information Network, which revealed an outstanding warrant); see also Eagle v. Morgan, 88 F.3d 620, 628 (8th Cir. 1996) (finding that a NCIC search did not violate the plaintiff's federal constitutional rights); Cincerella v. Egg Harbor Township Police Dept., No. 06-1183 (RBK), 2009 WL 792489, at *3 (D. N.J. Mar. 23, 2009) (stating that "[b]ecause a person has no reasonable expectation of privacy in the information in the NCIC database, searching a person's record through the NCIC database does not violate the federal or state constitution"); United States v. Schmid, No. 3:06-CR-97, 2007 WL 540788, at *5 (E.D. Tenn. Feb. 15, 2007) (finding probable cause after the officer entered the vehicle's license plate number and received a NCIC reporting indicating that the vehicle was associated with the defendants, who had outstanding federal warrants). Therefore, the Court finds that Officer Mattina did not violate the Fourth Amendment when he conducted the computer searches.

Permalink 08:38:53 am, by fourth, 181 words, 527 views   English (US)
Categories: General

CA11: Borrower of vehicle can challenge GPS tracking of his use of vehicle

Following the analogous United States v. Hernandez, 647 F.3d 216, 219-20 (5th Cir. 2011), defendant has standing to challenge GPS tracking of a vehicle he legitimately borrowed when he was in control, but not otherwise. United States v. Gibson, 708 F.3d 1256 (11th Cir. 2013):

Contrary to the assertion of the dissent, we do not hold that only the person with legal ownership has a reasonable expectation of privacy at the time a tracking device is installed on a vehicle. If we had so held, we could not have concluded, as we do, that James Gibson has standing to challenge the installation of the tracking device on the Avalanche when it was in his possession and control. Instead, we conclude that James Gibson has not established that he had a reasonable expectation of privacy in the Avalanche only when it was searched on February 20, 2009, because he was not the legal owner of the Avalanche, he has not established that he had exclusive custody and control of the Avalanche, and he was neither a driver of, nor a passenger in, the Avalanche when it was searched.

Permalink 08:28:24 am, by fourth, 176 words, 493 views   English (US)
Categories: General

D.Ore.: FISA’s “significant purpose” requirement satisfies Fourth Amendment

FISA’s “significant purpose” requirement has been upheld by several circuits under the Fourth Amendment. The PATRIOT Act amendments have also been upheld. This court doesn’t disagree. United States v. Mohamud, 2012 U.S. Dist. LEXIS 186093 (D. Ore. May 7, 2012).*

A commercial building that was the subject of an arson was reasonably searched under Tyler and Clifford. The owner’s interest is less in a commercial property than in a home. No effort had been made to secure the property after the fire. United States v. Cromer, 2012 U.S. Dist. LEXIS 186153 (E.D. Mo. July 11, 2012).*

2255 petitioner “supplies a laundry list of criticisms relating to his counsel's pretrial investigation and management of a motion to suppress” that was litigated and lost, and then petitioner pled guilty. That was a waiver. Petitioner claims defense counsel didn’t address the Fourth Amendment in the motion to suppress, but he clearly and effectively did. “Counsel was not ineffective merely because the Court ruled against him on the motion.” Leggette v. United States, 2013 U.S. Dist. LEXIS 21569 (S.D. W.Va. January 7, 2013).*

Permalink 08:15:22 am, by fourth, 304 words, 657 views   English (US)
Categories: General

E.D.N.C.: Rifle case, a “single purpose container” that revealed its contents, could be searched without warrant

Defendant had a reasonable expectation of privacy in zipped and closed duffle bags stored by permission at a friend’s house. This was reasonable under our societal understandings. See United States v. Waller, 426 F.3d 828 (6th Cir. 2005). The closed and locked nature of the containers showed his expectation of privacy, and that was enough for him to prove it, even without testifying. A search of the rifle case was valid without a warrant because it was a “single purpose container” that revealed its contents. United States v. Gardner, 2013 U.S. Dist. LEXIS 20527 (E.D. N.C. January 30, 2013):

"[A]lthough the plain view doctrine may support the warrantless seizure of a container believed to contain contraband, any subsequent search of its concealed contents must either be accompanied by a search warrant or justified by one of the exceptions to the warrant requirement. United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994). One such exception is the so-called single-purpose container exception. This doctrine instructs that search of a container seized pursuant to the plain view doctrine is permissible when "the contents of the seized container are a foregone conclusion." Davis, 690 F.3d at 235. The Supreme Court has specifically held that a gun case is such a container. See Arkansas v. Sanders, 442 U.S. 753, 765 n.13 (1979) (specifically noting that the contents of a gun case "can be inferred from [it's] outward appearance" obviating the need for a warrant to search it), overruled on other grounds, California v. Acevedo, 500 U.S. 565 (1991).

In this case, the rifle case was found in plain view. As it was a gun case, it falls within the single-purpose container exception. Since the contents of the case were a foregone conclusion, no warrant was needed to search this case found in plain view. Accordingly, the court denies the motion to suppress as to the rifle case.

02/18/13

Permalink 02:29:30 pm, by fourth, 220 words, 489 views   English (US)
Categories: General

Am.Crim.L.Rev. Blog: “So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees”

Am.Crim.L.Rev. Blog: So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees by Regan Gibson, ACLR Featured Blogger:

On February 26, 2013, the Supreme Court will hear argument in Maryland v. King, and will determine the constitutionality of a Maryland statute that authorizes the collection of DNA from individuals arrested for certain felonies. In brief, the case concerns Alonzo King, who was arrested in 2009 on first and second-degree assault charges, and was subjected to DNA collection under the 2008 amendments to the Maryland DNA Collection Act. The Act authorizes authorities to collect DNA samples from those arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary. Samples taken from arrestees are analyzed and profiles are uploaded in the FBI’s Combined DNA Index System (“CODIS”), where they can be compared against samples taken from crime scenes.[1] King’s profile was uploaded into the system and a few months later (but before his trial on the assault charges) was matched with an unknown sample collected after an unsolved sexual assault. The CODIS match was used as probable cause for a search warrant to collect a new sample from King and he was subsequently indicted and convicted for first-degree rape. King was sentenced to life in prison.

Permalink 09:00:36 am, by fourth, 118 words, 552 views   English (US)
Categories: General

FL5: Defendant not entitled to be Mirandized before consent to search his person was sought during a traffic stop

Defendant was not entitled to be Mirandized before consent to search his person was sought during a traffic stop. State v. Thomas, 109 So. 3d 814 (Fla. 5th DCA 2013).*

Defendant was detained for consuming alcohol in public. His admission he was armed justified a patfrisk for the gun because the officers were unfamiliar with him and whether he would do something unpredictable. Commonwealth v. Jones, 83 Mass. App. Ct. 296, 983 N.E.2d 253 (2013).

The government’s affidavit that they had information defendant was a felon in possession on supervision justified the search of his house for the gun. Defendant doesn’t even get a hearing; motion to suppress denied. United States v. Patterson, 2013 U.S. Dist. LEXIS 21203 (S.D. N.Y. February 14, 2013).*

Permalink 08:49:49 am, by fourth, 137 words, 485 views   English (US)
Categories: General

OH8: USMs did not show reasonable basis to believe fleeing fugitive in defendant's home

The USMs were looking for a fleeing violent fugitive who cut off an ankle monitor, and they ended up at defendant’s house. There was no showing at all of a reasonable belief that the fugitive was even in defendant’s residence (Steagald). There was allegedly “a tip,” but no factual basis at all was given for it. The state also argued exigency because the USMs claimed to hear a window open and cocaine be thrown, but no facts support that because, admittedly, it was speculation, and not based on an observation. State v. Rodriguez, 2013 Ohio 491, 2013 Ohio App. LEXIS 435 (8th Dist. February 14, 2013).

Where defendant was unlawfully still on “post-release control,” he could not be lawfully subject to a search condition. The good faith exception does not permit that. State v. Fleming, 2013 Ohio 503, 990 N.E.2d 145 (2d Dist. 2013).*

Permalink 08:42:27 am, by fourth, 792 words, 835 views   English (US)
Categories: General

OH2: Precedent permitting hot pursuit entry into home for fleeing mere traffic stop should be overruled

Hot pursuit into a home of somebody fleeing a mere traffic offense is permitted by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 2002 Ohio 1625, 765 N.E.2d 330, but this court sure doesn’t like it. State v. Lam, 2013 Ohio 505, 2013 Ohio App. LEXIS 442 (2d Dist. February 15, 2013):

[*P20] The supreme court's opinion in Flinchum contains a strongly-worded dissent in which Justice Pfeifer distinguishes Santana from Flinchum, based on the seriousness of the offense and the "realistic expectation" in Santana that delay in executing a search would result in the destruction of evidence (heroin and marked money), a concern which was not present in Flinchum. It also emphasizes that "the circumstances of a particular situation must be grave * * * to merit a lifting of [Fourth Amendment] protections." Flinchum, 95 Ohio St.3d at 47 (Pfeifer, J., dissenting), citing Welsh, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (involving exigent circumstances). Justice Pfeifer observed that, when warrantless arrests in the home are at issue, hesitation in finding a basis for acting without a warrant "is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. * * * When the government's interest is only to arrest for a minor offense, th[e] presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Id., citing Welsh at 750. The dissent concluded that the government had not successfully rebutted the presumption of unreasonableness in Flinchum, because only a minor traffic offense was at issue, and that the arrest of "a mere tire spinner" did not justify the chipping away of a well-established Fourth Amendment right.

[*P21] We share the concerns expressed in the Flinchum dissent. Although we are bound by supreme court precedent, we have reservations about permitting police officers to chase a suspect who is known to have committed only a minor traffic violation and to forcibly enter into his house, in the absence of exigent circumstances. This is a circumstance where a potential traffic violation developed into a chase of the driver, which led to the forcible entry of that person's home, which turned into a protective sweep of the home, which resulted in the plain view of contraband, which generated a search warrant, which resulted in the arrest of a second person, which resulted in the discovery of drugs. This may be the unusual situation where legal reasoning has plunged off the slippery slope or where the exceptions have swallowed the rule.

[*P22] We see no reason why, in Jeffrey Lam's case, the officers could not have waited outside the house while they obtained a search warrant or checked for outstanding warrants for Jeffrey. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the U.S. Supreme Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect's house in order to make a routine felony arrest. As discussed above, Payton and other decisions have recognized an exception for "exigent circumstances." Id. at 1386. Similarly, R.C. 2935.12 only permits entry by force to make a warrantless arrest if exigent circumstances exist. State v. Boyd, 2d Dist. Montgomery No. 13425, 1993 WL 169104 (May 21, 1993).

[*P23] However, the principle from which any exceptions to the warrant requirement emanate is reflected in the oft-quoted remarks of William Pitt in 1763: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it, the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!" Payton at 1388, fn. 54, citing Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Indeed, President John Adams traced the origins of our independence from England to James Otis's 1791 argument against British writs of assistance, where he declared that a "man's house is his castle." United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1072, 108 L.Ed.2d 222, fn. 8 (1990) (Brennan, J., dissenting). It may be that Jeffrey would have temporarily "defeated" his citation for the traffic offense by "escaping to a private place," but weighing the immediate serving of a citation for a non-jailable minor misdemeanor against the Fourth Amendment's protection of the home, we would make what should be the obvious choice.

[*P24] However, the facts surrounding the chase of Jeffrey Lam are not legally distinguishable from the facts in Flinchum. Thus, we are obligated to follow our understanding of the majority's opinion in Flinchum, as the trial court did, and to conclude that the police officers lawfully entered into the house. We hope that the Ohio Supreme Court will reconsider or clarify its position.

Permalink 12:00:08 am, by fourth, 193 words, 514 views   English (US)
Categories: General

IA: People in apartment talking loud about drugs and what to do with the cops outside was exigency

People inside the apartment “discuss[ing] their concern about police presence in the building” including one saying he had drugs on him was exigency for entry. State v. Floyd, 829 N.W.2d 191 (Iowa App. 2013):

Here, in contrast, the information relayed to police officers indicated a large amount of foot traffic and drugs, an officer heard several individuals inside the apartment discuss their concern about police presence in the building, and one individual stated he had drugs on him and needed to leave the apartment. Given the specific, articulable facts known to Officer Nice regarding the scenario unfolding behind the apartment door, along with the rational inferences that could be made therefrom, a reasonable officer in his position could have feared either the escape of a subject or the destruction of evidence.

A vehicle parked at the owner’s house is immobile for the purposes of Oregon’s automobile exception. State v. Pirtle, 255 Ore. App. 195, 296 P.3d 625 (2013).*

Landlord’s standing in the premises that burned in a fire was limited, and here gave him no standing to challenge the fire scene search. United States v. Cromer, 2013 U.S. Dist. LEXIS 20738 (E.D. Mo. February 15, 2013).*

02/17/13

Permalink 08:15:39 am, by fourth, 175 words, 550 views   English (US)
Categories: General

TN: Matching description of car fleeing burglary was RS for stop

Officers had reasonable suspicion to stop defendant in a car that matched one reported in a burglary near the time of the burglary speeding away from the area of the burglary. State v. Rogers, 2013 Tenn. Crim. App. LEXIS 124 (February 13, 2013).*

Defendant was stopped for speeding, and the odor of marijuana coming from his car was strong, and that gave probable cause to search it. State v. Bashir, 2013 Tenn. Crim. App. LEXIS 136 (February 14, 2013).*

Where defendant would lose on the nexus argument he raised in an ineffectiveness claim, his lawyer couldn’t be ineffective. Kratochvil v. State, 2013 Tenn. Crim. App. LEXIS 142 (February 15, 2013).*

Despite procedural bars to raising attorney ineffectiveness in defendant’s state court proceeding for failure to raise issues in state court, defendant’s arrest was lawful, so defense counsel was not ineffective for not challenging it. The certificate of appealability is denied. Hyatt v. Rudek, 511 Fed. Appx. 723 (10th Cir. 2013).*

Defendant was properly stopped because his LPN was blocked by snow, and it turned out he was under the influence. State v. Haldane, 2013 MT 32, 2013 Mont. LEXIS 33 (February 12, 2013).*

Permalink 07:55:35 am, by fourth, 376 words, 719 views   English (US)
Categories: General

CA4: Report of live grenade in house still wasn't exigency without knowing more

The mere presence of an alleged live grenade, without more, did not justify exigency for a police entry into defendant’s house. In fact, it turned out that the grenade was last seen by defendant’s wife, the reporter to them, two years earlier, although the police didn't know that at the time. See United States v. Bonitz, 826 F.2d 954, 957 (10th Cir. 1987) (concluding no exigency existed where officers found cans of gun powder because "[s]tanding undisturbed, cans of gun powder are inert"). United States v. Yengel, 711 F.3d 392 (4th Cir. 2013):

=> Read more!

Permalink 07:47:20 am, by fourth, 195 words, 528 views   English (US)
Categories: General

D.Ariz.: One doesn't need to be a police target for a search warrant to issue for evidence

Defendant contended that he was not a suspect in a crime, but a witness, therefore a search warrant could not issue for his place. To the contrary, a person can be innocent of crime but have evidence subject to a search warrant (Zurcher). United States v. Kelly, 2013 U.S. Dist. LEXIS 20949 (D. Ariz. February 14, 2013).*

While defendant did not testify, the circumstances showed his reasonable expectation of privacy in the two containers searched. Keeping the containers closed and locked manifested his expectation of privacy. United States v. Gardner, 2013 U.S. Dist. LEXIS 20527 (E.D. N.C. January 30, 2013).*

The search of defendant’s car was with probable cause. Officers observed a hand-to-hand transaction with defendant standing next to the car, and he drove off and stopped at a business. They followed and talked to defendant, and the odor of marijuana was coming from the car. United States v. Farmer, 2013 U.S. Dist. LEXIS 20933 (E.D. Mo. January 2, 2013).*

While this is a close case, the anonymous CI provided his basis of knowledge to the officer, and that supported credibility for the stop based on reasonable suspicion. United States v. Aviles-Vega, 2013 U.S. Dist. LEXIS 20220 (D. P.R. January 8, 2013).*

Permalink 07:26:51 am, by fourth, 223 words, 486 views   English (US)
Categories: General

N.D.Ga.: Search warrant for drugs and records at a business includes owner's attache case

Search warrant for drugs and records of a business included defendant’s attache case that was there when the warrant arrived. The warrant was conceded to be otherwise valid. United States v. Votrobek, 2012 U.S. Dist. LEXIS 185962 (N.D. Ga. June 25, 2012).*

Defendant’s stop on a motorcycle was for speeding. A drug dog alerted on the saddlebag, and that was probable cause. United States v. Gunnell, 2012 U.S. Dist. LEXIS 185931 (W.D. Mo. December 17, 2012).*

The prosecution put on evidence of the drug dog’s training and experience. “In short, it is difficult to contemplate a more complete and compelling record that could be before the court regarding this drug dog's abilities.” The extra time of conversation with the defendant was de minimus. United States v. Givens, 923 F. Supp. 2d 803 (E.D. Va. 2013).*

The entry into the house was with the consent of defendant’s parents. The search of his room was with his consent. A shotgun was in plain view. United States v. Carter, 2012 U.S. Dist. LEXIS 186034 (D. Me. November 30, 2012).*

When the registered owner of a vehicle is shown to have a suspended DL, a stop of the vehicle is justified if the officer cannot tell that the operator is a different person (such as different gender, much different age). United States v. Barber, 2013 U.S. Dist. LEXIS 19596 (N.D. Iowa January 25, 2013).*

Permalink 07:10:10 am, by fourth, 244 words, 432 views   English (US)
Categories: General

W.D.Va.: No reasonable expectation of privacy in an unlocked vehicle parked off one's property

Because the defendant’s truck was not on the property when the warrant for the property was issued, it wasn’t subject to the warrant. However, the truck was left unlocked and with the key in the ignition, and the court finds that shows a lack of a “reasonable expectation of privacy” in the truck. United States v. Conrad, 923 F. Supp. 2d 843 (W.D. Va. 2013).*

Defendant kept drugs in a camper on another’s property. He agrees he doesn’t have standing in the curtilage there, and he argues just in the camper, a “place of business.” There was no Fourth Amendment protection from surveillance of the camper. There was probable cause for the search in the two affidavits. A GPS device had also been placed with a warrant. United States v. Belisle, 2013 U.S. Dist. LEXIS 17805 (D. Me. February 11, 2013).*

The warrant for the cell phone was properly issued. United States v. Satchell, 2013 U.S. Dist. LEXIS 19725 (E.D. Mo. February 14, 2013).*

Pro se defendant does not argue the application of the good faith exception in the USMJ R&R, and the motion to suppress is denied. United States v. Hunter, 2013 U.S. Dist. LEXIS 19751 (D. Minn. February 14, 2013).*

Defendant’s ineffective assistance claim that defense counsel did not present some important evidence at the hearing on the motion to suppress is denied. That which wasn’t presented wouldn’t change the outcome. United States v. Harris, 2013 U.S. Dist. LEXIS 19672 (W.D. Pa. February 14, 2013).*

02/16/13

Permalink 10:31:10 am, by fourth, 170 words, 558 views   English (US)
Categories: General

IL: 15 sec. in-person interview with anonymous informant allowed officer to assess credibility

15 second in-person interview between officer and anonymous informant about a machine gun being put in a car and the direction of the car was sufficient to establish reasonable suspicion. The officer could assess her credibility. People v. Sanders, 2013 IL App (1st) 102696, 986 N.E.2d 114 (2013).*

The defendant clearly consented to the search of the apartment, and the threat to get a search warrant was not trickery or false. United States v. Todd, 2013 U.S. Dist. LEXIS 19455 (S.D. N.Y. January 28, 2013).*

2255 petitioner claimed that he would not have pled guilty if he knew that Jones was pending at the time. The court finds the credible evidence shows that he knew and waived it. United States v. Jesus-Nunez, 2013 U.S. Dist. LEXIS 19104 (M.D. Pa. January 25, 2013).*

Whether there was a gate across the road at the time of the entry, the court finds the credible evidence was that there was not. The photographs showing a gate were taken long after. United States v. White, 2012 U.S. Dist. LEXIS 185938 (W.D. Mo. November 30, 2012).*

Permalink 08:38:34 am, by fourth, 484 words, 685 views   English (US)
Categories: General

DC: “Post-and-forfeit” provision of the DC Code doesn't violate Fourth Amendment

The “post-and-forfeit” provision of the DC Code that permits a defendant to post bond and forfeit it rather than contest does not violate the Fourth Amendment. Fox v. District of Columbia, 2013 U.S. Dist. LEXIS 20524 (D. D.C. February 15, 2013):

Count 4A of Fox’s second amended complaint alleges that the post-and-forfeit procedure violates the Fourth Amendment on its face: “The policy of charging arrestees money under the ‘post and forfeit’ procedure constitutes an unreasonable seizure under the Fourth Amendment and so D.C. Code § 5-335.01 is unconstitutional.” Sec. Am. Compl. ¶ 246. The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. Amend. IV.

To establish an unlawful seizure under the Fourth Amendment, Fox must demonstrate that payment of collateral under the District’s post-and-forfeit procedure (1) constitutes a seizure, and (2) that the seizure is unreasonable. Soldal v. Cook County, Ill., 506 U.S. 56, 61–71 (1992). Fox has failed to meet both requirements. A payment under the post-and-forfeit procedure does not constitute a seizure nor is it unreasonable. “A ‘seizure’ of property ... occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’” Id. at 61, quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984). Further, a “seizure” is not unreasonable if it occurs with the non-coercive, voluntary consent of the owner. See Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973) (“[I]f under all the circumstances it has appeared that the consent was not given voluntarily – that it was coerced by threats or force, or granted only in submission to a claim of lawful authority – then we have found the consent invalid and the search unreasonable.”). Here, the Court has already determined that the post-and-forfeit payment is voluntary:

The fundamental flaw at the heart of plaintiff’s case is that while his papers are generously seasoned with strong language connoting wrongdoing – “force,” “coerce,” “exact,” “deprive,” and “take,” and the allegations all turn upon the city’s alleged policy of “making” arrestees pay money, there simply was no coercion, taking, or deprivation inherent in the voluntary exchange that was offered and accepted in this case.

Mem. Op. at 2–3. The Court added that “the payment was a bargained for exchange whereby both parties obtain a benefit: the arrestee gains both his release and complete finality.” Mem. Op. at 18. Moreover, the reasonableness of the procedure is bolstered by the fact that the statute also provides the arrestee with ninety days to reconsider the decision to pay the collateral and ask for his money back. See D.C. Code § 5-335.01(d)(6). So the District does not meaningfully or unreasonably interfere with arrestees’ possessory interests in property when it accepts their voluntarily tendered collateral.

Fox’s Fourth Amendment facial challenge is further undermined by the Court’s prior determination that “the city has asserted legitimate interests” in the post-and-forfeit procedure, Mem. Op. at 18. ...

02/15/13

Permalink 01:44:44 pm, by fourth, 247 words, 920 views   English (US)
Categories: General

WA's SB 5737's § 2(5)(a) on inspection of assault weapons in the home violates Fourth Amendment

examiner.com: Washington gun control proposal said to violate Fourth Amendment to Constitution, referring to an assault weapon limit in SB 5737. Section 2(5)(a) provides:

(5) In order to continue to possess an assault weapon that was legally possessed on the effective date of this section, the person possessing the assault weapon shall do all of the following:
(a) Safely and securely store the assault weapon. The sheriff of the county may, no more than once per year, conduct an inspection to ensure compliance with this subsection; ...

I suspect the "no more than once a year" is taken from the federal firearm's licensee law that permits ATF to inspect sales records no more than once a year. An FFL is a highly regulated business by definition, with a history of regulation as stated in United States v. Biswell, 406 U.S. 311 (1972).

Can it be said that possession of an assault weapon is per se to become a highly regulated activity? I don't think so. Therefore, § 2(5)(a) violates the Fourth Amendment by requiring the homeowner to submit to an inspection of the home from the Sheriff as to whether the gun is safely stored. I don't even think the Sheriffs would want to be involved. (But query: Is is possible for something new to become highly regulated in short order? We may get to see with this if it passes.)

When some headline screams "Fourth Amendment violated by ...," I have to look. Usually they are wrong or exaggerating. This one isn't.

Permalink 01:31:40 pm, by fourth, 552 words, 703 views   English (US)
Categories: General

S.D.Cal.: Kozinski's concurrence in CDT on computer searches not binding

Defendant was indicted for conspiracy to ship high tech medical imaging equipment to Iran in violation of the embargo. His overbroad computer search argument under United States v. Comprehensive Drug Testing is rejected, and Kozinski's concurrence isn't binding. Safe harbor, yes, but not binding. United States v. Nazemzadeh, 2013 U.S. Dist. LEXIS 18983 (S.D. Cal. February 11, 2013):

In addition to being sufficiently clear, a warrant must also be "legal, that is not overbroad." SDI Future Health, 568 F.3d at 702. "[T]his means that 'there [must] be probable cause to seize the particular thing[s] named in the warrant.'" Id. (quoting In re Grand Jury Subpoenas, 926 F.2d at 857). Therefore, "breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based." Id. Probable cause means a fair probability, not certainty or even a preponderance of the evidence. Id. (internal citations and quotations omitted.).

A. The Warrant Appropriately Granted Permission to Seize Data and Limited Officers' Discretion as they Conducted the Offsite Search

Nazemzadeh argues the warrant was overbroad because it failed to set forth specific guidelines regarding the search protocol and allowed officers to seize "vast amounts" of data and keep it indefinitely. He claims that the warrant should have included a specific search methodology or listed a specific word search. Nazemzadeh's arguments are framed as breadth arguments. However, cases analyzing whether search protocols are required frame the question as one of particularity. See, e.g., United States v. Adjani, 452 F.3d 1140, 1147-50 (9th Cir. 2006) (discussing particularity in response to overbreadth argument).

The parties agree, and are correct, that United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) as applied by United States v. Comprehensive Drug Testing, is the governing standard, 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam) ("CDT") ("we have updated Tamura to apply to the daunting realities of electronic searches."). Tamura, provides when probable cause exists, "all items in a set of files may be inspected during a search, provided that sufficiently specific guidelines for identifying the documents sought are provided in the search warrant and are followed by the officers conducting the search. Tamura, at 595. It further provides, "[i]f the need for transporting the documents is known to the officers prior to the search, they may apply for specific authorization for large-scale removal of material, which should be granted by the magistrate issuing the warrant only where on-site sorting is infeasible and no other practical alternative exists." Id. Even where documents not covered by the warrant are seized and retained by the government, suppression is not necessarily required. See Tamura, at 597.

Although evidence was suppressed in CDT, that case's application of Tamura does not mandate suppression here. CDT cautioned that "because over-seizing is an inherent part" of the process of searching electronic records, greater vigilance is called for on the part of judicial officers to strike the correct balance between the government's interest in law enforcement and the right to be free from unlawful searches. CDT at 1177. While compliance with Justice Kozinski's concurrence in CDT would provide a "safe harbor" for agents, it is not required, as Defendant asserts. CDT, at 1183 (Callahan, J., dissenting) ("The concurrence is not joined by a majority of the en banc panel and accordingly the suggested guidelines are not Ninth Circuit law.").

Permalink 11:23:12 am, by fourth, 449 words, 869 views   English (US)
Categories: General

CA9: Detaining shooting witnesses for five hours and keeping ambulance from leaving stated Fourth Amendment claim

Plaintiffs were detained for five hours and interrogated as witnesses after a shooting, and they stated a claim that the detention was unreasonable. The decedent’s estate also had a claim under the “danger creation” doctrine because the officers at the scene refused to let the ambulance leave timely, and that led to the death from lack of hospital care. Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013) (on rehearing from 697 F.3d 941):

=> Read more!

Permalink 10:57:18 am, by fourth, 252 words, 645 views   English (US)
Categories: General

IA: Runaway drunk suicidal teenager tracked to house was exigent circumstance when no answer at door

Police tracked a suicidal and intoxicated runaway teenager to defendant’s house via the cell phone’s GPS. At the house, nobody responded to the door, but the officers could hear the TV on upstairs. The door opened with a touch, and the lock was broken. The entry was justified by exigent circumstances. State v. York, 829 N.W.2d 191 (Iowa App. 2013):

Guiding our Fourth Amendment analysis is the fundamental question of "whether the search and seizure were reasonable in light of the facts and circumstances of the case." Crawford, 659 N.W.2d at 542. We must ask whether under the facts known to officers at the time, "a reasonable person would have thought than an emergency existed." Carlson, 548 N.W.2d at 143. An intoxicated and suicidal teenager led police to a home where they discovered signs of a forced entry and unresponsive residents. Given the juvenile's suicidal threats following a physical and verbal confrontation with his parents, police officers were justified in fearing for the juvenile's life. Officers on the scene were not privy to the innocent explanation for the broken door handle nor did they have the benefit of hindsight with the time to make a calculated and technical review of the evidence. While a concerned mother watched as police searched for her intoxicated and suicidal son in near-freezing temperatures, a reasonable person under the circumstances would have thought an emergency existed sufficient to require immediate action. We find the police officers exercised their role as community caretakers in entering the home.

Permalink 09:55:39 am, by fourth, 268 words, 741 views   English (US)
Categories: General

WA: Stop near gang shooting was with reasonable suspicion on totality

An officer responding to a call of shots fired in a gang dispute stopped a car “hurriedly” leaving the scene a block away when the occupants had rival gang colors to the area they were in. This was reasonable suspicion on the totality because of the officer's knowledge of the local gangs. The stop was to see what they knew. State v. Moreno, 173 Wn. App. 479, 294 P.3d 812 (2013) ( dissent):

A police officer may rely on his experience to evaluate apparently innocuous facts. Martinez, 135 Wn. App. at 180 (citing State v. Samsel, 39 Wn. App. 564, 570-71, 694 P.2d 670 (1985)). Facts “which appear innocuous to the average person may appear incriminating to a police officer in light of past experience.” Samsel, 39 Wn. App. at 570. Police officers are not required to set aside that experience. Id. at 570-71. Mr. Moreno argues the stop here was based on nothing more than a hunch. But here, officers were essentially responding to a crime in progress. See Thompson, 93 Wn.2d at 842; Martinez, 135 Wn. App. at 181-82. Multiple reports of gunfire had been reported one block away just moments before the stop. Sergeant Salinas had considerable experience with gangs in this specific area. He knew the shots came in a Sureño neighborhood. He saw Mr. Bojorquez was wearing a red shirt, associated with the rival Norteño gang. He knew people would not be expected to wear red in a Sureño neighborhood. He saw the car hurriedly leaving the alley given the poor alleyway conditions. Given all, Sergeant Salinas reasonably believed “this car is somehow involved or … they can tell me more about what's happened.” RP at 57.

Permalink 09:44:24 am, by fourth, 160 words, 617 views   English (US)
Categories: General

IL: Stop after reasonable suspicion dissipated suppressed

Defendant was stopped because he was driving the van of a friend of his for whom there was a warrant out. Before the stop, however, the officer saw that the driver was not the wanted person, but stopped him anyway. The stop was without reasonable suspicion because it dissipated between first observation of the vehicle and seeing the driver was not the wanted person. People v. Cummings, 2013 IL App (3d) 120128, 984 N.E.2d 1162 (2013), affd People v. Derrick, 2014 IL 115769, 2014 Ill. LEXIS 106 (March 20, 2014).

Defendant’s stop and its justification were videotaped, and he was weaving. That was at least reasonable suspicion. Acree v. State, 319 Ga. App. 854, 737 S.E.2d 103 (2013).*

Defendant was not seized when an officer came up to her asleep in her car with the engine running and told her to roll down the window. Pierce v. State, 2013 Ga. App. LEXIS 59 (February 8, 2013).*

Defendant’s weaving was reasonable suspicion for a stop. State v. Littlefield, 2013 Ohio 481, 2013 Ohio App. LEXIS 418 (4th Dist. February 7, 2013).*

02/14/13

Permalink 02:30:18 pm, by fourth, 106 words, 1006 views   English (US)
Categories: General

Law.com/NYLJ: "Class Action Granted in Second of Three Stop-and-Frisk Cases"

Law.com/NYLJ: Class Action Granted in Second of Three Stop-and-Frisk Cases by Mark Hamblett:

The second of three major cases alleging the New York City Police Department engages in an unconstitutional pattern of stopping and frisking people without a reasonable suspicion that they are engaged in criminal activity has been deemed a class action.

Southern District Judge Shira Scheindlin on Feb. 11 certified a class in Ligon v. City of New York, 12-2274, a case where black and Latino citizens in the Bronx allege police have been illegally stopping and frisking them as they enter and exit buildings that take part in a police crime-fighting program.

Permalink 09:05:57 am, by fourth, 169 words, 511 views   English (US)
Categories: General

CA7 joins states: Color difference on car registration alone can be no basis for stop

Defendant was driving normally, arousing no suspicion, but he was stopped on I-70 in Indiana because his blue Nissan with Utah plates came back to a white Nissan. Considering the law from various circuits and states, the court concludes that a color difference alone is not reasonable suspicion of anything, and the stop had to be suppressed as was the pound of heroin found in defendant’s car. United States v. Uribe, 709 F.3d 646 (7th Cir. 2013):

Uribe's motion to suppress presents an issue of first impression in this circuit and, apparently, in the federal courts: whether a discrepancy between the observed color of a car and the color listed on its registration alone is sufficient to give rise to reasonable suspicion of criminal activity. Where our sister circuits have considered color discrepancies, they have relied on the discrepancy as only one of several factors establishing reasonable suspicion.

Although it appears that no federal court has addressed the exact issue presented in this case, several state courts have done so. ...

Permalink 08:46:53 am, by fourth, 137 words, 373 views   English (US)
Categories: General

OH5: Landlord's limited entry to basement was valid private search

Defendant’s basement was subjected to a valid private search by his landlord where the landlord could access the basement at will. Stolen air conditioners were hidden there, and the landlord photographed them and told the police who got a search warrant. State v. Hughes, 2013 Ohio 459, 2013 Ohio App. LEXIS 398 (5th Dist. February 8, 2013);* State v. Hughes, 2013 Ohio 458, 2013 Ohio App. LEXIS 397 (5th Dist. February 8, 2013).*

A GPS placed at the border pre-Jones was valid under Davis. United States v. Williams, 507 Fed. Appx. 728 (9th Cir. 2013).*

Defendant was accused with others of running a meth lab out of a shed that the police thought was abandoned. He claimed it was family property, but he failed to show an expectation of privacy in it and he fares no better than the drug operation in Carter. United States v. Skoda, 705 F.3d 834 (8th Cir. 2013).*

02/13/13

Permalink 11:16:29 am, by fourth, 71 words, 643 views   English (US)
Categories: General

NE: LPN clerical error led to stop; no exclusion because not law enforcement mistake

County Treasurers issue LPNs in Nebraska, and their error that led to defendant’s stop is not chargeable to law enforcement, and the exclusionary rule would not be applied. State v. Bromm, 285 Neb. 193, 826 N.W.2d 270 (2013).*

The Michigan Supreme Court denies review of a cell phone search incident case because of the apparent likelihood of the judgment being affirmed by harmless error. People v. Crowell, 493 Mich. 937, 825 N.W.2d 585 (2013)* (per curiam).

Permalink 11:12:02 am, by fourth, 291 words, 425 views   English (US)
Categories: General

W.D.Mo.: Particularity argument fails; no allegation of how it was not particular

If you are going to allege a failure to particularity, you should also say how and why. Without how and why, the court often has nothing to go on [which is true], and it often is easily remedied by the government, as here. United States v. White, 2012 U.S. Dist. LEXIS 185938 (W.D. Mo. November 30, 2012), adopted 2013 U.S. Dist. LEXIS 18006 (W.D. Mo. February 11, 2013):

Both defendants also contend that the search warrants were invalid because they did not describe the properties in question with sufficient particularity. They do not specifically allege, however, in what manner the descriptions of the places to be searched was deficient.

The test for determining the sufficiency of the description of the place to be searched is whether the place is described with sufficient particularity so as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched. United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.) (citations omitted), cert. denied, 444 U.S. 871 (1979). Thus, where a search warrant contained information that particularly identified the place to be searched, the court has found the description to be sufficient even though it listed the wrong address. United States v. McCain, 677 F.2d 657, 660-61 (8th Cir.1982). Moreover, where the same officer both applied for and executed the warrant, a mistaken search is unlikely. McCain, 677 F.2d at 661.

In this case, there was ample testimony from Officer Carpenter, the affiant, regarding his efforts to sufficiently identify each property in the affidavits in support of the search warrants. There was also considerable testimony from other officers that would establish the location and description of each property, which were located in a very rural and secluded area. ...

Permalink 10:27:19 am, by fourth, 144 words, 667 views   English (US)
Categories: General

N.D.Ala.: Two minute wait before entering after knock-and-announce was reasonable

Defendants argued a failure of knock-and-announce. The court finds the officers knocked for two minutes and got no answer, even though they could see food on the stove through the window, suggesting somebody was home and not responding. The entry was not unreasonable. United States v. Acton, 2013 U.S. Dist. LEXIS 18591 (N.D. Ala. January 23, 2013),* [clearly reasonable; not even close; SCOTUS has approved of 15 seconds], R&R 2013 U.S. Dist. LEXIS 18591 (N.D. Ala. January 23, 2013).*

Undercover officers invited in the house corroborated the CI’s information. United States v. Slaton, 2013 U.S. Dist. LEXIS 18662 (E.D. Ky. February 12, 2013).*

Defendant claimed that there was no probable cause for the search under the warrant, but the court concludes that there is and the affidavit is far more than “bare bones” in its detail. United States v. Greninger, 2013 U.S. Dist. LEXIS 17911 (E.D. Tex. January 17, 2013).*

Permalink 09:30:09 am, by fourth, 346 words, 440 views   English (US)
Categories: General

N.D.Ill.: Motion to suppress work computer requires showing personal privacy interest in it; no hearing without it

Defendant is a deputy U.S. Marshal, and he was indicted for abusing arrestees and covering it up. When he was arrested, his Blackberry and work laptop were seized. He did not provide an affidavit with the motion to suppress showing that he had a privacy interest in the hard drive that connected to the USM network. United States v. Linder, 2013 U.S. Dist. LEXIS 18346 (N.D. Ill. February 12, 2013):

The facts set forth in Linder's affidavit do not change this Court's conclusion that Linder cannot credibly claim to have had a subjective expectation of privacy in the data stored on his Blackberry device and network drives. Linder's affidavit does not set forth facts sufficient to establish a material dispute warranting an evidentiary hearing on the issue. While he explains his use of the devices, he does not present details necessary to show there is a dispute of material fact regarding his subjective beliefs about the use of those devices. For example, Linder does not assert that a supervisor at the U.S. Marshal Service informed him the files on his Blackberry and H drive were inaccessible to others, nor does he claim that a trainer at his Computer Security Awareness Training classes suggested to him that files stored on his devices would remain private. In fact, he does not point to a single individual in the U.S. Marshal Service whose statement or conduct could conceivably have brought him to believe he had a privacy interest in the files stored on his Blackberry and H drive. The Court finds that without these or similar representations, a suppression hearing would serve no purpose.

For example, had Linder presented evidence that a supervisor, trainer, or fellow Deputy U.S. Marshal communicated to him that files stored on his government-issued Blackberry and the corresponding network drives were private, an evidentiary hearing would give the Court an opportunity to make credibility determinations regarding the individuals who made those statements. ...

Later, the court dismissed the indictment for prosecutorial misconduct. United States v. Linder, 2013 U.S. Dist. LEXIS 29641 (N.D. Ill. March 5, 2013).

02/12/13

Permalink 04:13:49 pm, by fourth, 354 words, 1014 views   English (US)
Categories: General

New law review article: "Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs"

Leslie A. Shoebotham, Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs on SSRN. Abstract:

After United States v. Place and Illinois v. Caballes, the central concern for courts asked to determine the admissibility of positive, canine drug-detection sniffs was whether the sniff was performed by a “well-trained” detection dog - which most courts equated with “reliability” for purposes of establishing probable cause. Florida v. Harris asks the U.S. Supreme Court to resolve the dispute concerning what evidence trial courts are permitted to consider in determining whether a drug-detection dog is well trained. This Article responds to the State of Florida’s assertions in Harris that trial courts must defer to law enforcement determinations of canine-reliability, and should be prohibited from performing independent determinations of reliability by examining detection-dog field performance records. The Article argues that clear incentives exist for law enforcement to use unreliable drug-detection dogs (or dogs with only marginal reliability) in the field: (1) financial self-interest, based on civil forfeiture statutes that authorize police to seize cash discovered during a physical search (which, pursuant to statute, may be placed into local, law-enforcement coffers to supplement law enforcement budgets) based on the money’s connection to a drug crime — which is often established by a positive canine alert to the cash, and (2) targeting of certain groups, such as racial or ethnic minorities, for police investigation. Additionally, the State of Florida’s argument that law enforcement is deterred from using unreliable drug-detection dogs because “inaccurate” dogs “put an officer in harm’s way” is a red herring. While traffic stops are dangerous encounters for law enforcement, those dangers are produced by the officer’s decision to stop a particular vehicle — presumably on the basis of probable cause for a traffic violation or other criminal wrongdoing — not a driver’s apprehension upon being stopped that his or her vehicle might eventually be subjected to a canine drug-detection sniff. Therefore, trial court consideration of detection-dog field performance records as part of a court’s canine-reliability determination is an essential firewall to preventing police use of marginal, or even unreliable, drug-detection dogs.

Permalink 07:46:41 am, by fourth, 335 words, 1265 views   English (US)
Categories: General

N.D.Iowa: “Public safety exception” applies to asking defendant about a possible meth lab

“Public safety exception” applies to asking defendant about a possible meth lab in the car. It isn’t just limited to questions about guns. United States v. Noonan, 2013 U.S. Dist. LEXIS 17794 (N.D. Iowa February 11, 2013):

First, the court finds that Defendant's argument that the public safety exception is limited to the context of firearms is without merit. In United States v. Luker, 395 F.3d 830 (8th Cir. 2005), the Eighth Circuit held that the public safety exception was applicable where an officer, without first advising the defendant of his Miranda rights, asked the defendant "if there was anything in [the defendant's] vehicle that shouldn't be there or that [the officers] should know about." Id. at 832. The Eighth Circuit held that the defendant's response was admissible because "[t]he officers were aware of [the defendant's] methamphetamine use and were concerned about needles or substances associated with such use in the car." Id. at 833-34. ... Thus, the Eighth Circuit has extended the public safety exception beyond the context of firearms.

Moreover, the Eighth Circuit has recognized the public safety hazard posed by the manufacture of methamphetamine. See United States v. Ellefson, 419 F.3d 859, 866 n.4 (8th Cir. 2005) ("[T]he manufacture of methamphetamine is an inherently dangerous activity that creates substantial risks to public health and safety."); United States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002) (holding that there were exigent circumstances justifying the officers' warrantless search of a storage shed where an officer smelled ether and saw equipment that "suggested an on-going manufacture in the shed" and noting that "[t]he potential hazards of methamphetamine manufacture are well documented"); .... Given these dangers, the court finds that the public safety exception is applicable where an officer is concerned about a possible methamphetamine lab. See United States v. King, 182 F. App'x 88, 91 (3d Cir. 2006) (holding that there was no Miranda violation where officers' questions were aimed at "obtain[ing] safety information ... before law enforcement personnel entered the potentially dangerous clandestine methamphetamine laboratory" (quoting United States v. King, 366 F. Supp. 2d 265, 274 (E.D. Pa. 2005)).

Permalink 07:40:13 am, by fourth, 145 words, 919 views   English (US)
Categories: General

D.Me.: No standing for gun stashed on apartment's shared back porch

Stashing a gun in the rafters of a back porch of an apartment with another apartment door there was a waiver of a reasonable expectation of privacy. Also, removing the defendant was for interrogation and because the police felt he didn’t have standing to object to a search anyway. The court finds Randolph not violated. United States v. Constant, 2013 U.S. Dist. LEXIS 15524 (D. Me. February 5, 2013).*

Probable cause existed for search of defendant’s house for evidence of social security and passport fraud. United States v. Cadet, 2013 U.S. Dist. LEXIS 17436 (N.D. Ga. January 16, 2013).*

Based on reports, defendant’s parole officer had reasonable suspicion to believe he was involved in guns and drugs, so a search of his house was justified. Guns and drugs were in plain view, so a more intense search was permitted. State v. Edwards, 107 So. 3d 883 (La.App. 3 Cir. 2013).*

Permalink 07:21:51 am, by fourth, 425 words, 1366 views   English (US)
Categories: General

NM: Violation of knock-and-announce requires exclusion under state constitution

“The police entry into defendant's home after waiting only one to five seconds after knocking and announcing violated her right to be free of unreasonable searches under the New Mexico Constitution.” Violation of the knock-and-announce requirement is fundamental and requires exclusion under the state constitution. (Hudson is cited, but not discussed.) State v. Jean-Paul, 2013 NMCA 032, 2013 N.M. App. LEXIS 13 (January 22, 2013):

P18 The State also contends that the futility exception applies because Dickson knew of the police officers' presence. Again, however, it is not sufficient that occupants know of the police's presence; they must also know of the police's purpose and authority for being there. We recognize that in this case the officers could have reasonably believed that what Dickson saw when he was facing the direction of the window was six uniformed officers carrying a battering ram and approaching the house. While these facts might come closer to providing a reasonable suspicion that Dickson knew that the officers were there to execute a warrant than those cases in which the occupant of a home simply sees an officer outside of the door, we nevertheless conclude that these facts do not support a reasonable suspicion that Dickson knew that the officers were there to search the home pursuant to a warrant. This is not a case in which occupants of a home engaged in any conduct evincing a consciousness of guilt or some other action that would demonstrate that they knew why the police were there.

P19 Furthermore, even if these facts did give rise to such a reasonable suspicion, we would nevertheless conclude that the futility exception does not apply. New Mexico has only applied the exception when there has been an affirmative act of refusal by an occupant of the premises because such action more clearly demonstrates that an occupant does not intend to voluntarily permit the police to enter than does a mere brief period of inaction. ...

P26 The State argues that the fact that Dickson was seen by the police in the window and then not seen provides a reasonable suspicion that either he or Defendant was destroying evidence. Although the record is somewhat ambiguous as to when Dickson was seen and not seen, if his movement away from the window occurred prior to the officers' announcement of their presence and purpose, we cannot reasonably conclude that the fact that someone moves about a residence knowing that the police are outside, but not knowing that they are there to execute a warrant, gives rise to the inference that he is destroying evidence. ...

Permalink 07:18:45 am, by fourth, 171 words, 797 views   English (US)
Categories: General

TX6: Failure to object to search is waiver

When defendant makes no objection to a search and seizure, the presumption remains that the issuing magistrate did his duty. Davidson v. State, 2013 Tex. App. LEXIS 1224 (Tex. App. – Texarkana February 8, 2013).*

The warrant for defendant’s DNA was properly issued. Although there were inconsistent statements, defendant had sex with the mother of the child from age 10 to 15, and the child was born during that time. PC still existed. Rhodes v. State, 2013 Ga. App. LEXIS 44 (February 5, 2013).*

During surveillance of a downstairs apartment, people would sometimes leave it and go upstairs for a minute. When the police came with a warrant for the downstairs apartment, they had reasonable suspicion to go to the upstairs apartment, too, here for officer protection while on the scene. Once there, the crack in defendant’s shoe was in plain view. State v. McAllister, 2013 Tenn. Crim. App. LEXIS 108 (February 7, 2013).*

Since officers had probable cause for defendant’s arrest, removing him to the police station for interrogation was not a constitutional violation. United States v. Slaughter, 708 F.3d 1208 (11th Cir. 2013).*

Permalink 12:00:19 am, by fourth, 315 words, 808 views   English (US)
Categories: General

WI: Warrant for GPS issued on PC permitted moving vehicle to install it

A GPS device was placed on defendant’s vehicle with a warrant, and the vehicle was moved to install it when the vehicle was once stopped. That was reasonable under the warrant and the Fourth Amendment, given the probable cause. State v. Brereton, 2013 WI 17, 345 Wis. 2d 563, 826 N.W.2d 369 (2013), affg State v. Brereton, 2011 WI App 127, 337 Wis. 2d 145, 804 N.W.2d 243:

[*P41] Moreover, the probable cause that the officers had at the time of the stop of Brereton's vehicle was sufficient to justify the officers' decision to continue the seizure of the vehicle and move it to a location where a GPS device could be installed more safely and effectively. See Ross, 456 U.S. at 807 n.9 (reaffirming that where officers have probable cause to justify the warrantless seizure of an automobile, they may conduct an immediate search of the vehicle, and if an immediate, warrantless search on the street is justified, moving the vehicle for a search at another location is equally permissible).

[*P42] Indeed, the Supreme Court's decisions in Ross, Chambers, and White provide explicit support for the methods chosen by the officers in this case. After seizing Brereton's vehicle pursuant to probable cause that the vehicle was or contained evidence of the rash of local burglaries, the officers elected to move the vehicle from its location along Highway 51 to the impound lot, where officers awaited judicial authorization prior to installing the GPS device. Cf. Chambers, 399 U.S. at 51-52. After receiving such authorization, officers installed the GPS device. Accordingly, under the relevant Supreme Court precedent, with probable cause for the seizure, neither the fact that officers moved the vehicle to install the GPS, nor the amount of time that officers held the vehicle can be said to be unreasonable in light of law enforcement's substantial interests in safety and in the effective installation of the GPS device that was used to search the vehicle.

02/11/13

Permalink 08:07:41 am, by fourth, 146 words, 885 views   English (US)
Categories: General

E.D.Wis.: Going home after drug deals creates nexus to house for SW

Where defendant was followed home after his alleged drug deals, nexus was shown for a warrant for his house. United States v. Toniolo, 2013 U.S. Dist. LEXIS 17305 (E.D. Wis. February 8, 2013), R&R 2013 U.S. Dist. LEXIS 17307 (E.D. Wis. January 14, 2013).*

Defendant’s stop near the border was valid and with reasonable suspicion. “Under the totality of the circumstances in this case, Border Patrol Agent DeBaun possessed reasonable suspicion to stop Defendant. Although each fact in the circumstances previously described, taken individually, may appear innocent, it had significance to a trained law enforcement officer.” United States v. Valencia, 2013 U.S. Dist. LEXIS 17402 (D. Ariz. February 8, 2013).*

The City moves to stay the 2012 consent decree against it barring use of excessive force in violation of the Fourth Amendment. The motion is denied. United States v. City of New Orleans, 2013 U.S. Dist. LEXIS 17249 (E.D. La. February 8, 2013).*

Permalink 07:48:51 am, by fourth, 255 words, 1576 views   English (US)
Categories: General

CA9: Contempt of cop arrest here violated First Amendment

Plaintiff was stopped for violation of a noise ordinance but he was arrested because he argued some with the officer on video. The Court of Appeals found it was protected speech, and plaintiff was retaliated against under the First Amendment, even if there was probable cause. Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013):

Ford invoked his right to free speech. Urlacher replied:

I have the freedom to take you to jail, too. And that's what's going to happen. . . . You exercise [your freedom of speech] all you want, okay? If you just cooperate and treat the police like humans, we'll treat you like that. But when you act like that, like an animal, you've got to get treated that way, you know.

You're going to jail for numerous reasons. The crime you're going to jail for is the city noise ordinance. A lot of times we tend to cite and release people for that or we give warnings. However ... you acted a fool ... and we have discretion whether we can book or release you. You talked yourself—your mouth and your attitude talked you into jail. Yes, it did.

Urlacher later testified that he booked Ford (1) because he violated the city noise ordinance, which gives him discretion to book a person "if I feel like it," and (2) because he "failed to listen[,] ... failed to act civil, ... failed to take responsibility for his actions, [and because of] his rageful [and disrespectful] behavior towards the law enforcement," which put public safety at risk. (emphasis in original)

Permalink 07:42:25 am, by fourth, 150 words, 499 views   English (US)
Categories: General

IN: Dog sniff of car within five minutes of stop is reasonable

Because the dog sniff happened quickly, the stop was not unreasonable in its length. Smith v. State, 981 N.E.2d 1262 (Ind. App. 2013).* [Cases like this should scare us all. Do they mean that law enforcement can sniff any car as long as a drug dog can get there in five minutes? What does that say about us as a nation? Even those of us not carrying dope would be grossly offended if the police could use a drug dog on all of us.]

Defendant’s standing is tenuous at best, but he loses on the merits of the automobile exception anyway. United States v. Campbell, 2013 U.S. Dist. LEXIS 16535 (N.D. Ala. January 4, 2013), adopted 2013 U.S. Dist. LEXIS 15805 (N.D. Ala., Feb. 6, 2013).*

Defendant was a mere visitor to the apartment searched, so she doesn’t have standing. United States v. Clements, 2012 U.S. Dist. LEXIS 185740 (W.D. N.Y. November 30, 2012).*

Permalink 07:18:38 am, by fourth, 158 words, 419 views   English (US)
Categories: General

E.D.Mich.: Defendant's hesitation not a seizure

When confronted by the police, defendant hesitated and then bolted. His hesitation wasn’t a seizure. United States v. Brown, 2013 U.S. Dist. LEXIS 17246 (E.D. Mich. February 8, 2013):

fn2 To the extent there was any momentary hesitation by Defendant after he was ordered to put his hands on the hood of Van Buskirk's cruiser, before he took off running, such hesitation would be insufficient to transform the encounter into a Fourth Amendment seizure. See United States v. Hernandez, 27 F.3d 1403, 1405, 1407 (9th Cir. 1994) ("We decline to adopt a rule whereby momentary hesitation and direct eye contact prior to flight constitute submission to a show of authority. Such a rule would encourage suspects to flee after the slightest contact with an officer in order to discard evidence, and yet still maintain Fourth Amendment protections.").

Such a rule could never be judicially enforced. We’d be arguing over whether a hesitation was one second or five and whether one was enough.

Permalink 07:02:30 am, by fourth, 145 words, 397 views   English (US)
Categories: General

OR: Defendant’s “No Trespassing” sign alone was not determinative of complete privacy

Defendant’s “No Trespassing” sign alone was not determinative of complete privacy. More was required. He otherwise consented to entry into the house. State v. Cam, 255 Ore. App. 1, 296 P.3d 578 (2013):

We agree with the state that, under the circumstances, defendant's intent to exclude visitors from his property was not manifest. The state correctly notes that the posting of a sign indicating that property is private does not in and of itself suggest that visitors to the property are excluded. As we said in Gabbard, in order to exclude the casual visitor from approaching a residence, "a person must make a greater showing than that which would be required to exclude individuals who would use the property for their own purpose, such as hiking." ...

Threat to issue further traffic citations if defendant didn’t consent makes his consent involuntary. State v. Beaudreau, 255 Ore. App. 175, 296 P.3d 623 (2013).*

Permalink 06:54:00 am, by fourth, 158 words, 518 views   English (US)
Categories: General

PA: State chose to stand on lack of "standing" and lost

The state relied on defendant having no standing and refused to put on proof that the search was legal. The trial judge ruled against the state on the merits, and it’s affirmed. Commonwealth v. Enimpah, 2013 PA Super 20, 62 A.3d 1028 (2013).*

Plaintiff, likely inebriated, accidentally called the police and made suicidal statements. Police arrived and forcibly entered her home and she fought with them, and her arm got broken. The entry into the home was valid on exigent circumstances, as was the use of force. Fitzgerald v. Santoro, 707 F.3d 725 (7th Cir. 2013), affg 842 F. Supp. 2d 1064 (N.D. Ill. 2012).

The police came because a neighbor called police that defendant was missing and hadn’t been seen for a while. The police knocked and got no answer. “[W]e conclude that the community caretaker exception to the warrant requirement was implicated upon consideration of all of the surrounding circumstances taken in unison.” People v. Hill, 299 Mich. App. 402, 829 N.W.2d 908 (2013).*

Permalink 06:39:36 am, by fourth, 238 words, 688 views   English (US)
Categories: General

IN: Dog sniff at front door not Fourth Amendment violation

Even though this issue has already been argued in SCOTUS, something not even mentioned by this court, a dog sniff at defendant’s front door is not unreasonable. The dog's alert was PC for a search warrant. Perez v. State, 981 N.E.2d 1242 (Ind. App. 2013):

=> Read more!

02/10/13

Permalink 09:07:04 am, by fourth, 211 words, 460 views   English (US)
Categories: General

WI: No suppression for excessive force in a seizure not causally related to finding evidence

Excessive force in a seizure shouldn’t lead to suppression of evidence not causally related to it. State v. Herr, 2013 WI App 37, 346 Wis. 2d 603, 828 N.W.2d 896 (2013):

P11 As there is no causal relationship between the alleged use of unreasonable force and the evidence sought to be suppressed, Herr's suggested remedy would ill serve our legal system. Deterring police misconduct is an important goal, but not one that should necessarily be pursued at the expense of bringing criminals to justice. See Felix, 339 Wis. 2d 670, ¶39. The exclusionary rule is an extraordinary remedy that exacts "substantial social costs," including potentially releasing guilty and dangerous criminals into our communities and impairing the truth-seeking objectives of our legal system. See Hudson, 547 U.S. at 591. "Suppression of evidence ... has always been our last resort, not our first impulse." Id. Even though the threat that evidence may be suppressed may deter some police officers from using unreasonable force in carrying out otherwise lawful seizures, "[t]he Fourth Amendment does not require courts to exclude all evidence or forgo prosecuting a defendant following unlawful police conduct." Felix, 339 Wis. 2d 670, ¶40. As the evidence Herr seeks to suppress was not causally related to the alleged use of unreasonable force, we affirm the decision of the circuit court and Herr's conviction.

Permalink 08:59:40 am, by fourth, 516 words, 820 views   English (US)
Categories: General

S.D.N.Y.: Search incident of cell phone six hours later invalid

Search incident of a cell phone requires a narrow view. The search here was six hours after the arrest, so it was not “incident.” United States v. Dimarco, 2013 U.S. Dist. LEXIS 16279 (S.D. N.Y. February 5, 2013) (good analysis of the history of search incident as it would apply):

First, the timing of Agent Morales's search of DiMarco's cell phone makes it unreasonable to conclude that the search was performed incident to or contemporaneous with his arrest. Even the Government admits that more than six hours passed between DiMarco's arrest and the search of his cell phone. (See generally Gov't Post Hr'g Opp'n Mem. at 15 (chart establishing timing and events on February 2, 2012); see also Tr. at 69-70, 91-94; Gov't Exs. 3, 8.) By comparison, almost all of the courts of authority that have upheld the search of a cell phone under the search incident to arrest exception, contemplated searches that occurred as, or soon after, a suspect was arrested. See, e.g., Murphy, 552 F.3d at 411-12 (initial search of cell phone occurred when arrestee handed phone to arresting officer); Curry, 2008 U.S. Dist. LEXIS 5438, 2008 WL 219966, at *10 (search occurred "within less than a half hour of defendant's arrest"); Santillan, 571 F. Supp. 2d at 1102 (search occurred "mere minutes after the arrest and seizure" of phone).

Even in Finley, the case upon which the Government relies, the cell phone search was contemporaneous to Finley's arrest because the DEA Agent searched the phone during the course of investigative activities in the field and well before the police took him to the police station to begin processing the arrest and inventorying the items seized. See 477 F.3d at 254-55, 260. In addition, multiple courts have determined that cell phone searches occurring within much fewer than six hours were not sufficiently contemporaneous to be considered an incident of an arrest. ...

. . .

Although the Government asserts that it is relying on the search incident to arrest exception as discussed in Edwards, and not the inventorying procedure exception, for the proposition that a search may be incident to a lawful custodial arrest so long as the administrative procedures inherent to the arrest are ongoing, (Gov't Post Hr'g Opp'n Mem. at 14), this is too simplistic a reading of Edwards. ...

Second, the delayed search of DiMarco's cell phone was unreasonable because the reasons that Agent Morales stated for conducting the search are not relevant to the justifications underlying the search incident to arrest exception. DiMarco's cell phone presented no threat to the officers. Cf. Chimel, 395 U.S. 752 at 773, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (justifying warrantless search incident to arrest because "[t]here is always a danger that the suspect will try to escape, seizing concealed weapons with which to overpower and injure the arresting officers"). Nor has the Government, which has the burden of proof to show reasonableness, shown that DiMarco would have been able to destroy the evidence on his cell phone once the phone was placed under the exclusive authority of the NYPD. See id. (justifying warrantless search incident to arrest because "there is [also] a danger that [a suspect] may destroy evidence vital to the prosecution").

Permalink 08:19:33 am, by fourth, 156 words, 419 views   English (US)
Categories: General

E.D.Mich.: Defendant's excuse for his conduct does not undermine initial probable cause

An illegal power connection outside the house led to a search warrant for the house for proof of electricity theft. The defendant’s excuse for his conduct that arguably made it legal, at least in his mind, did not undermine the initial probable cause. Contraband was found. United States v. Lewis, 2013 U.S. Dist. LEXIS 15277 (E.D. Mich. February 5, 2013).

Officers had reasonable suspicion defendant was under the influence for an FST. He left a bar at 2:15 am and drove erratically. When stopped, he fumbled with his wallet looking for his DL, he smelled of alcohol, and admitted having consumed alcohol. State v. Dillehay, 2013 Ohio 327, 2013 Ohio App. LEXIS 295 (3d Dist. February 4, 2013).*

Defendant did not show “standing” to challenge the search of the house he was visiting when the raid occurred. He presented no witnesses and asked no questions of government witnesses that even suggested standing. United States v. Rose, 2013 U.S. Dist. LEXIS 16366 (W.D. Pa. February 7, 2013).*

Permalink 08:09:02 am, by fourth, 305 words, 508 views   English (US)
Categories: General

NC: Roadside strip search was conducted reasonably

Defendant’s roadside “strip search” was reasonable in its justification and how it was conducted. There was a lump in his groin area found during a patdown that was apparently the source of marijuana odor coming from his person. State v. Johnson, 2013 N.C. App. LEXIS 136 (February 5, 2013):

Having concluded that there was a specific basis for believing that contraband was present in defendant's undergarments, the next question is whether the searching officers took reasonable steps to protect defendant's privacy. See Robinson, __ N.C. App. at __, 727 S.E.2d at 723. Here, the troopers placed defendant on the side of Trooper Hicks's vehicle so that the vehicle blocked them from the travel lanes of the highway and formed a wall around defendant as he was being searched so that he could not be seen by passers-by. The troopers never actually removed or pulled down his pants and never examined any of his "private parts". Defendant was wearing two layers of clothing underneath his pants. The first layer was a pair of boxer-briefs of the type found in the passenger compartment of his car. Underneath the boxer-briefs, defendant was wearing athletic-style compression shorts with a compartment for a protective cup. The only private areas subjected to search by the troopers remained covered by defendant's compression shorts and they did not remove his pants or outer underwear to retrieve the package from his pants.

We hold that these facts, as found by the trial court, support the trial court's conclusion that "[t]he troopers took necessary and reasonable precautions to guard against any public exposure of defendant's private areas during the search of his person, and the search of his private areas was not constitutionally intolerable in its intensity or scope." Therefore, we affirm the trial court's order denying defendant's motion to suppress the evidence seized from his person.

Permalink 12:00:27 am, by fourth, 57 words, 429 views   English (US)
Categories: General

ScienceFriday.com: Tracking Privacy and Ownership in an Online World

ScienceFriday.com: Tracking Privacy and Ownership in an Online (Audio):

Your phone knows where you are. Social networks know who your friends are, and what you ate last night. How much of your personal data is really yours to control? Khaliah Barnes of the Electronic Privacy Information Center helps sort out the politics and policies of privacy.

02/09/13

Permalink 04:00:00 pm, by fourth, 81 words, 446 views   English (US)
Categories: General

NYTimes.com: Number of Frisks Fell in ’12, Police Data Show

NYTimes.com: Number of Frisks Fell in ’12, Police Data Show by Wendy Ruderman:

The number of times New York City police officers stopped, questioned and frisked people in 2012 dropped by 22 percent from the previous year, according to statistics the Police Department released on Friday.

The decrease — 533,042 in 2012, compared with about 685,000 in 2011 — came amid mounting criticism from civil-rights advocates who have argued that the practice of stop and frisk unfairly targeted minorities — the vast majority of whom were released without any charges.

Permalink 03:00:00 pm, by fourth, 108 words, 497 views   English (US)
Categories: General

NYTimes.com: Debating a Court to Vet Drone Strikes

NYTimes.com: Debating a Court to Vet Drone Strikes by Scott Shane:

WASHINGTON — Since 1978, a secret court in Washington has approved national security eavesdropping on American soil — operations that for decades had been conducted based on presidential authority alone.

Now, in response to broad dissatisfaction with the hidden bureaucracy directing lethal drone strikes, there is an interest in applying the model of the Foreign Intelligence Surveillance Act court — created by Congress so that surveillance had to be justified to a federal judge — to the targeted killing of suspected terrorists, or at least of American suspects.

WaPo: Lawmakers propose giving federal judges role in drone strikes, but hurdles await.

Permalink 02:34:10 pm, by fourth, 146 words, 388 views   English (US)
Categories: General

Wired.com: DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border

Wired.com: DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border by David Kravets:

The Department of Homeland Security’s civil rights watchdog has concluded that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security.

The DHS, which secures the nation’s border, in 2009 announced that it would conduct a “Civil Liberties Impact Assessment” of its suspicionless search-and-seizure policy pertaining to electronic devices “within 120 days.” More than three years later, the DHS office of Civil Rights and Civil Liberties published a two-page executive summary of its findings.

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” the executive summary said.

Permalink 10:00:05 am, by fourth, 284 words, 600 views   English (US)
Categories: General

GA: License plate reader alert is probable cause for stop

License-plate reader (LPR) system alert of a wanted person in a police car is probable cause for a stop. Defendant wasn’t the wanted person, but he was without a DL, and his arrest for that was valid. Hernandez-Lopez v. State, 2013 Ga. App. LEXIS 41 (February 5, 2013):

The information retrieved via the LPR system is not unlike that an officer retrieves by way of running vehicle-tag numbers through GCIC, which we have previously held provides justification for an initial stop. Moreover, in an unpublished opinion, the Eleventh Circuit recently addressed use of the LPR system in the context of a case invoking the right to be free from an unreasonable search, noting that the Supreme Court of the United States has “concluded in similar contexts that visual surveillance of vehicles in plain view does not constitute an unreasonable search for Fourth Amendment purposes,” and that “[t]his is true even if the surveillance is aided by the use of technology to augment the officers' sensory faculties.” Similarly, the LPR system at issue in the case sub judice merely aided the officer by augmenting his sensory faculties, providing an enhanced ability to process tag information through a law-enforcement database rather than requiring the officer to manually conduct random checks. And the information retrieved by the system's recognition of the license-plate numbers—i.e., identifying information of a wanted person, the offense allegedly committed by the wanted person, and a photograph of the relevant license plate and vehicle—gave the officer reasonable, articulable suspicion to justify a traffic stop of the vehicle driven by Hernandez-Lopez. Thereafter, the officer had probable cause to arrest Hernandez-Lopez for driving without a license.

See United States v. Wilcox, 415 Fed. Appx. 990 (11th Cir. 2011).

Permalink 09:14:05 am, by fourth, 251 words, 532 views   English (US)
Categories: General

NY: Cursing police officer didn't justify disorderly conduct arrest and finding 25 bags of crack

Defendant with 25 bags of crack on him cursed a police officer for about 15 seconds for “harassing” him, and that led to an arrest for disorderly conduct and discovery of the drugs. Defendant was not legally disorderly justifying the arrest. People v Baker, 2013 NY Slip Op 00782 (N.Y. February 7, 2013):

Finally, this case includes one more factor worthy of consideration. Here, both at its inception and conclusion, the verbal exchange was between a single civilian and a police officer. The fact that defendant's abusive statements were directed exclusively at a police officer — a party trained to diffuse situations involving angry or emotionally distraught persons — further undermines any inference that there was a threat of public harm, particularly since the police officer was in a position of safety and could have closed his windows and ignored defendant. We do not suggest that the public harm element can never be present in such encounters; Tichenor demonstrates that this is not the case. But isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the "public harm" mens rea necessary to support a disorderly conduct charge.

After consideration of all relevant factors, we conclude that defendant's arrest for disorderly conduct was not supported by probable cause due to insufficient proof on the public harm element. Because the arrest was unlawful under our long-standing precedent, we have no occasion to address defendant's First Amendment arguments.

Permalink 09:03:22 am, by fourth, 446 words, 744 views   English (US)
Categories: General

Cal.4: Vehicle "black box" could be searched without a warrant in vehicular manslaughter case

The “black box” in a vehicle was a part of the “instrumentality of crime” in this vehicle manslaughter case, and it could be seized and searched without a search warrant. Also, there was no reasonable expectation of privacy in the information. People v. Diaz, 213 Cal. App. 4th 743, 153 Cal. Rptr. 3d 90 (4th Dist. 2013):

=> Read more!

Permalink 08:40:00 am, by fourth, 118 words, 441 views   English (US)
Categories: General

Cal.2: Stop for texting while driving was reasonable

Defendant’s stop for texting while driving was reasonable. People v. Corrales, 213 Cal. App. 4th 696, 152 Cal. Rptr. 3d 667 (2d Dist. 2013).*

The trial court suppressed a search of defendant’s house, but the appellate court held that the CI’s statement about drugs being sold there was corroborated by a visitor exiting who had drugs on him and lied about where he’d been. State v. Holden, 60 A.3d 1110 (Del. 2013).*

Defendant was walking away from officers ignoring them at first, so he was not seized (Hodari D.). Finally, he stopped and turned and made an exaggerated motion with his arms tossing the gun. It was lawfully seized. United States v. Davis, 2013 U.S. Dist. LEXIS 6420 (E.D. Mich. January 16, 2013).*

Permalink 08:30:42 am, by fourth, 151 words, 371 views   English (US)
Categories: General

NC: State's claim of inevitable discovery requires proof, not just argument

The trial court held that inevitable discovery led to defendant’s computer getting seized, but there was no evidence that supported that, just argument. Defendant did not consent to a search of his laptop merely by telling the police where it was when they asked. That proves nothing of voluntariness. State v. Wells, __ N.C. App. __, 737 S.E.2d 179 (2013):

The State's final argument is that discovery of the laptop computer was inevitable because the laptop computer was known to be in existence and was the focal point of the investigation. We do not doubt either of the State's assertions; however, having knowledge that the laptop computer exists is entirely different than knowing where the laptop computer may be found. At the hearing on defendant's motions to suppress, no evidence was presented to the trial court to show how or when the laptop computer would have been discovered by independent lawful means.

02/08/13

Permalink 06:14:05 pm, by fourth, 106 words, 432 views   English (US)
Categories: General

CA6: slight inaccuracy in color of car in "man with gun" report doesn't void stop

Slight inaccuracy in the color of a vehicle wanted for a “man with a gun” report did not make the stop invalid. Greater inaccuracies have survived in case law before. United States v. Atkins, 513 Fed. Appx. 577 (6th Cir. 2013).*

Nexus to gun in house for a search warrant was shown from the officer’s knowledge of defendant’s keeping gun in car, and the general knowledge of the utility of guns. United States v. Pando, 2013 U.S. Dist. LEXIS 14602 (W.D. Okla. February 4, 2013).*

Smell of burned and raw marijuana coming from a car is probable cause to search the trunk. Jones v. State, 2013 Ga. App. LEXIS 42 (February 5, 2013).*

Permalink 06:00:24 pm, by fourth, 540 words, 539 views   English (US)
Categories: General

CA10: Brady claim and newly discovered evidence of a possible Fourth Amendment violation fails

Defendant claimed newly discovery evidence of a possible Fourth Amendment violation after the suppression hearing was denied. Brady doesn’t require the government to disclose every shred of evidence as to a Fourth Amendment claim on the chance it will somehow develop into impeachment. United States v. Vang Lor, 706 F.3d 1252 (10th Cir. 2013):

We agree with the Seventh Circuit's decision in Brock. A defendant is not deprived of a full and fair opportunity to litigate simply because he does not discover all potentially relevant evidence until after his suppression hearing. Under Stone, habeas corpus relief is unavailable as long as the Government afforded "an opportunity for full and fair litigation of a Fourth Amendment claim." Stone, 428 U.S. at 482 (emphasis added). Absent ineffective assistance of counsel or government concealment, a defendant cannot claim that the mere existence of undiscovered material evidence deprived him of an opportunity to litigate his claim. ...

Defendant says this case differs from Stone and Brock because the Government withheld the impeaching evidence. Whether or not Brady applies at the suppression stage, we can at least assume that Defendant might be deprived of a "full and fair evidentiary hearing" if the Government withholds material evidence. Cook, 997 F.2d at 1318. But nothing suggests the Government covered up evidence. The Wyoming Highway Patrol did not put Trooper Peech on paid leave until October 2007, four months after Defendant's suppression hearing. No one involved in this case, other than Peech himself, apparently knew about the false dispatch report at the time of Defendant's suppression hearing.

Defendant cites our cases indicating that "[f]or purposes of Brady, knowledge by police or investigators is imputed to the prosecution." Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 824 (10th Cir. 1995) (internal quotation marks and alterations omitted). But, even if this Brady authority applies, Trooper Peech's knowledge of his own false dispatch report can hardly be imputed to the Government. The Supreme Court has explained that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). But Brady "does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant." Smith, 50 F.3d at 823. We do not think prosecutors have a duty to investigate officers' actions in entirely unrelated cases just in case some impeaching evidence may show up. See Giglio v. United States, 405 U.S. 150, 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (saying prosecutors should establish procedures "to insure communication of all relevant information on each case to every lawyer who deals with it" (emphasis added)). Nor would Trooper Peech have thought he had a duty to disclose the information at the time since it was part of an unrelated, secret DEA investigation. Of course, things might have been different if the Wyoming Highway Patrol had begun investigating Peech for possible misconduct before the suppression hearing. But nothing indicates that was the case. So even assuming the Government has a Brady-like duty to disclose all material evidence prior to a suppression hearing, that duty does not extend to discovering every tidbit of information that is, or could ripen into, impeachment evidence.

Permalink 07:42:15 am, by fourth, 140 words, 479 views   English (US)
Categories: General

CA5: Inventory invalid because government failed to put policy in evidence at hearing

Defendant was arrested at a Mississippi casino on a warrant from Arizona for child pornography. He refused to consent to a search of his car, and the casino wanted it off their lot. The car was searched under somebody’s impoundment policy, but the impoundment policy was never offered at the hearing. The court concludes that the inventory search was never justified by the government, and reverses. The district court conflated the valid seizure off the lot with the power to inventory, and that is incorrect. United States v. Vernon, 511 Fed. Appx. 318 (5th Cir. 2013).

Defendant had a reasonable expectation of privacy in the apartment he rented with his girlfriend. He hid a gun outside in a common area, and he did not have a reasonable expectation of privacy there. United States v. Constant, 2013 U.S. Dist. LEXIS 15524 (D. Me. February 5, 2013).*

02/07/13

Permalink 08:00:50 pm, by fourth, 414 words, 561 views   English (US)
Categories: General

AR: Suspicionless stop of a boat for safety inspection was unreasonable

A Sheriff’s deputy stopped defendant’s boat for a safety check at 11 pm on an otherwise busy recreational lake. There was nothing remarkable about defendant’s operation of the boat to call attention to it. During the stop, the deputy determined defendant was under the influence. The stop was without reasonable suspicion and unreasonable. State v. Allen, 2013 Ark. 35, 2013 Ark. LEXIS 54 (February 7, 2013) (4-3):

At issue is a brief stop by a law-enforcement officer to assure that a vessel complies with applicable safety requirements. It is a stop at the order of a law-enforcement officer and constitutes a seizure that is certainly less intrusive than a traditional arrest; however, it is a seizure and means that the law-enforcement officer is “lawfully present” and under a duty to act where the law enforcement officer reasonably suspects a crime has been or is about to be committed. See Ark. R. Crim. P. 3.1 (2012). A seizure under the Fourth Amendment must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual or that the seizure must be carried out under a plan embodying explicit, neutral limitations on the conduct of individual officers. See Brown, 443 U.S. at 51. Regardless of how brief or slight the intrusion, or how weighty the public interest, “an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” Id.

Sergeant Tucker testified that, while he tried to stop and perform a safety check on as many vessels as he could in a given day, there was no plan and nothing to determine which boats he stopped. There were no specific, objective facts about Allen’s vessel to indicate that society’s legitimate interests required the seizure of Allen and his particular vessel. As the circuit court found, Allen’s vessel was being legally operated in an unremarkable fashion. Sergeant Tucker testified that he did not believe that he had “the unfettered discretion to pull over any boat at any time for any reason that [he desired],” but only to perform a safety check. However, this means that whether the stop is proper depends only on the law enforcement officer’s subjective assertion of his or her purpose when the Fourth Amendment requires objective facts supporting the stop or a plan embodying explicit, neutral limitations. As the circuit court found, the practice of safety-check stops by law-enforcement officers in this case violates the Fourth Amendment.

Permalink 08:56:38 am, by fourth, 125 words, 510 views   English (US)
Categories: General

CA3: Factors for informant hearsay as a basis for a stop

There was reasonable suspicion for defendant’s arrest after a stop on information from a CI. United States v. Stallings, 513 Fed. Appx. 161 (3d Cir. 2013):

The following factors are relevant to this inquiry:

(1) [whether] the information was provided to the police in a face-to-face interaction, allowing an officer to assess directly the informant's credibility;
(2) [whether] the informant can be held responsible if her allegations are untrue;
(3) [whether] the information would not be available to the ordinary observer;
(4) [whether] the informant has recently witnessed the criminal activity at issue; and
(5) [whether] the witness's information accurately predicts future activity.

Johnson, 592 F.3d at 449. However, "a tip need not bear all of the indicia-or even any particular indicium-to supply reasonable suspicion." United States v. Torres, 534 F.3d 207, 213 (3d Cir. 2008).

Permalink 08:37:29 am, by fourth, 237 words, 628 views   English (US)
Categories: General

CA11: Lack of even arguable probable cause denies qualified immunity in § 1983 case

“Nevertheless, in cases involving arrests or warrantless searches or seizures, law enforcement officers are entitled to qualified immunity if they had even arguable probable cause. See Swint v. City of Wadley, Ala., 51 F.3d 988, 996 (11th Cir. 1995); Eubanks v. Gerwen, 40 F.3d 1157, 1160 (11th Cir. 1994). Arguable probable cause exists if ‘reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed.’ Swint, 51 F.3d at 996 (quotation marks omitted).” “[W]e conclude that, given the facts as we must view them for purposes of summary judgment, the officers lacked even arguable probable cause or exigent circumstances justifying their entry into Feliciano's apartment without a warrant or her consent.” Feliciano v. City of Miami Beach, 707 F.3d 1244 (11th Cir. 2013).

“In view of the overwhelming authority and limited information obtained during the officers' cursory investigation, reasonable officers would conclude that entering Nelms's apartment without a warrant violated the Fourth Amendment. Fleming and Whitt are not entitled to summary judgment on their defense of qualified immunity.” Nelms v. Wellington Way Apts., 513 Fed. Appx. 541 (6th Cir. 2013).

Probable cause for arrest grants qualified immunity to arresting officers. Abbott v. Oller, 497 Fed. Appx. 683 (8th Cir. 4, 2013).*

“‘[T]he existence of probable cause will defeat a claim of malicious prosecution and unreasonable search and seizure.’” Fahie v. Rivera, 510 Fed. Appx. 93 (2d Cir. 2013).*

Factual dispute on basis for arrest denies summary judgment. Pane v. Gramaglia, 509 Fed. Appx. 101 (2d Cir. 2013).*

02/06/13

Permalink 01:21:51 pm, by fourth, 54 words, 452 views   English (US)
Categories: General

NYTimes: "Police Stops Are Down; So Is Murder"

NYTimes: Police Stops Are Down; So Is Murder by Jim Dwyer:

Last June, speaking at a church in Brooklyn, Mayor Michael R. Bloomberg said that the police had been cutting back on the number of people stopped, questioned and frisked.

This marked the official beginning of the end of the world in New York.

Permalink 09:00:36 am, by fourth, 100 words, 534 views   English (US)
Categories: General

E.D.Mich.: Wrong legal address, right house not a Fourth Amendment violation

Address wrong only by the city the house was located in was not sufficient to void the search. There was only one possible place, and the police had been there before. United States v. Gordon, 2013 U.S. Dist. LEXIS 15272 (E.D. Mich. February 5, 2013).

The defendant’s premises were the subject of a search warrant and guns for sale were seized. Defendant here seeks a Rule 41(g) return of the guns, but the government claims them via a coming civil forfeiture. Therefore, defendant’s remedy will be there. United States v. Premises of 2nd Amendment Guns, 917 F. Supp. 2d 1120 (D. Ore. 2012).

Permalink 08:51:54 am, by fourth, 413 words, 396 views   English (US)
Categories: General

N.D.Miss.: Officers with a warrant searched truck parked next door and violated Fourth Amendment; claim of telephone warrant fails

Officers had a state search warrant for 320 CR 401. While there, they saw a truck 200 yards away on the lot of 320A CR 401, owned by defendant, not the target of the search. Officers claimed during the hearing to have called the state judge for clarification, but the judge wasn’t called as a witness, so that gets no credibility. A telephone call would have worked, if they followed Rule 41(d)(3). United States v. Rogers, 2013 U.S. Dist. LEXIS 14770 (N.D. Miss. January 4, 2013):

Though Fourth Amendment issues can sometimes be thorny, there is nothing difficult about the decision in this case because, by any rational measure, the law enforcement officers' search of Rogers' truck was unreasonable. Neither the truck nor the building by which it was parked were within the scope of the search warrant, and the officers' purported telephone call neither expanded the scope of the warrant, nor constituted a new warrant.

Though obtaining a warrant by requesting it from a judge over the telephone is permissible under Fed. R. Crim. P. 41, the officers followed not one of the strictures of the rule that protect a defendant's rights under the Fourth Amendment. Rule 4.1 requires that: (1) the request be given "under oath or affirmation"; (2) the testimony be recorded verbatim by an electronic recording device or in writing; (3) the testimony be transcribed, certified as accurate, and placed in the record; (4) the judge issuing the telephonic warrant sign it; and (5) the person seeking the warrant prepare a proposed duplicate original of it – and read or transmit its contents to the judge.

These requirements make the electronic procurement of a warrant reasonable. Without such protections in place, "telephonic warrants" are rife with the possibility of abuse by the government, as there would be no sworn record reduced to writing for a defendant (or a court) to review. In addition, without careful sworn documentation of law enforcement's representations to the court, such "telephonic warrants" would permit nearly any search to expand without practical limit. Officers could repeatedly call the issuing judge with unsworn descriptions of the scene to obtain authority to search an ever-expanding area. This is the circumstance in which Rogers found himself in the present case – a circumstance against which he could not raise a substantive challenge, as the critical facts were nowhere to be found in the record. Further, as the court conducted no evidentiary hearing, he had no chance to expose the warrant's deficiencies. The actions of the law enforcement officers violated the Fourth Amendment.

Permalink 08:03:05 am, by fourth, 375 words, 488 views   English (US)
Categories: General

Volokh: Does Kyllo v. United States Apply to A Scan of A Person? And What is the Standard for A “Terry Scan”?

Volokh: Does Kyllo v. United States Apply to A Scan of A Person? And What is the Standard for A “Terry Scan”? by Orin Kerr:

New technologies often prompt new and interesting Fourth Amendment issues. Here’s the latest:

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.

A video image aired at a Police Foundation breakfast Wednesday showed an officer, clad in a New York Jets jersey and jeans, with the shape of a hidden gun clearly visible under his clothing when viewed through the device.

The department will begin testing the high-tech device for use on the street. The device is small enough to be placed in a police vehicle or stationed at a street corner where gunplay has occurred in the past.

. . . [Kelly said:] “We still have a number of trials to run before we can determine how best to deploy this technology. We’re also talking to our legal staff about this. But we’re very pleased with the progress we’ve made over the past year.”

Use of this technology raises two primary Fourth Amendment questions. First, does it constitute a search under Kyllo v. United States? More specifically, does Kyllo apply when the device is used to obtain details from inside a person’s clothes rather than inside a home? And second, if use of the device is a “search” under Kyllo, what is the standard for when such a search is reasonable? Do you match the Fourth Amendment standard for a “virtual frisk” with the existing standard for a physical frisk? Or is the virtual frisk more or less invasive than the physical frisk in a way that would require more or less cause? Interesting questions.

See New York Daily News: NYPD Commissioner says department will begin testing a new high-tech device that scans for concealed weapons.

Permalink 12:00:05 am, by fourth, 366 words, 720 views   English (US)
Categories: General

CA9: Lower court clearly erred in finding consent to search truck

District Court clearly erred in finding that defendant voluntarily consented to a search of his truck. On this record, it wasn’t voluntary. United States v. Perez, 506 Fed. Appx. 672 (9th Cir. 2013):

=> Read more!

02/05/13

Permalink 08:46:32 am, by fourth, 100 words, 526 views   English (US)
Categories: General

KS: A stop cannot be continued on a mere hunch

A stop or continuation of a stop cannot be based on a mere hunch, and this one was. State v. Martinez, 296 Kan. 482, 293 P.3d 718 (2013).*

The officers’ testimony that they observed plaintiff engaged in a drug transaction was probable cause for arrest foreclosing his § 1983 claim. Fahie v. Rivera, 2013 U.S. App. LEXIS 2368 (2d Cir. February 4, 2013).*

A Syracuse police officer was working off duty at an athletic event in the Town of Dewitt, and he lacked police authority there. His search of defendant’s car was thus unlawful. People v McGrew, 2013 NY Slip Op 637, 2013 N.Y. App. Div. LEXIS 673 (4th Dept. February 1, 2013).*

Permalink 08:33:14 am, by fourth, 129 words, 538 views   English (US)
Categories: General

D.Mont.: A polygraph test is not a search

A polygraph test is not a search. United States v. Alvarez, 2013 U.S. Dist. LEXIS 14813 (D. Mont. February 4, 2013).*

A UPS supervisor was suspicious of several packages going to defendant’s address, so he opened it finding drugs. The first search was a private search, and the anticipatory warrant was valid. United States v. Adams, 2013 U.S. Dist. LEXIS 14853 (D. Mont. January 14, 2013).*

A court order was obtained to track defendants’ phones, and their argument is foreclosed by a later decision of the Sixth Circuit in United States v. Skinner, 690 F.3d 772 (6th Cir. 2012) (they’re just preserving it if Skinner is reversed, anyway). United States v. Money, 2013 U.S. Dist. LEXIS 14172 (E.D. Ky. February 1, 2013),* R&R United States v. Money, 2013 U.S. Dist. LEXIS 14811 (E.D. Ky. January 14, 2013).*

Permalink 08:28:18 am, by fourth, 49 words, 403 views   English (US)
Categories: General

DOJ White Paper: Use of Lethal Force Against U.S. Citizens as Terrorists is Lawful and Reasonable Under Fourth Amendment

DOJ White Paper: Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Leader of Al-Qa’ida or An Associated Force on NBC News website.

The White Paper concludes on page 9 that such a use of deadly force is reasonable under the Fourth Amendment.

02/04/13

Permalink 04:02:53 pm, by fourth, 198 words, 514 views   English (US)
Categories: General

CA8: Two rental cars in tandem could be reasonable suspicion

Defendant was paced driving 75 in a 70 zone. The officer noticed that he was likely driving in tandem with another new, untinted vehicle, also likely a rental vehicle licensed in the same state. When the officer stopped the first car for speeding, he could smell an overpowering odor of green marijuana. The stop was reasonable and the search was with apparent probable cause. United States v. Allen, 12-1663 (8th Cir. February 4, 2013).

The officer came up to defendant’s tractor-trailer, engine running, apparently unoccupied, and parked on a truckstop parking lot. He knocked on the door twice, and defendant opened the sleeper curtain. The officer motioned for him to come out, and he did. First, that was not a seizure, and second it was reasonable to have him get out. “However, the ‘encounter did not become a seizure simply because [the Defendant] may have felt inherent social pressure to cooperate with’ [the officer.]” State v. Mendenhall, 2013 Tenn. Crim. App. LEXIS 75 (January 30, 2013).

The stop was reasonable in its length, and there was no show of force or aggressive conduct or words by the officer. Defendant’s consent was valid. State v. Murphy, 296 Kan. 490, 293 P.3d 703 (2013), affg 42 Kan. App. 2d 933, 219 P.3d 1223 (2009).

Permalink 03:11:33 pm, by fourth, 346 words, 947 views   English (US)
Categories: General

KS: A portable breath test is a search

A portable breath test is a search governed by the reasonableness clause of the Fourth Amendment. Telling the motorist he has to take the PBT renders it void; he has a choice. Also, passing the field sobriety test does not negate other evidence of intoxication. State v. Edgar, 296 Kan. 513, 294 P.3d 251 (2013), affg in part, revg in part 45 Kan. App. 2d 340, 246 P.3d 1013 (2011):

=> Read more!

Permalink 12:59:59 am, by fourth, 118 words, 491 views   English (US)
Categories: General

WI: Police admitted to house by brother's consent could enter bedroom to check on defendant's well-being after accident

Defendant was involved in a two-vehicle accident and left the scene. Police came to his house to talk to him to inquire about the accident, and they were reasonably concerned about his injuries. He lived with his brother, and his brother let the police into the house. When they told him what was up, on his own, he broke into defendant’s bedroom without prompting by the police. Overall, the police were still objectively reasonable on entering the bedroom. State v. Gracia, 2013 WI 15, 345 Wis. 2d 488, 826 N.W.2d 87 (2013) (interesting dissents).

Defendant was in possession of a stolen GPS device, and he lacked “standing” to challenge its seizure and search. Henderson v. State, 395 S.W.3d 304 (Tex. App. – Eastland 2013).

Permalink 12:00:01 am, by fourth, 401 words, 889 views   English (US)
Categories: General

OH6: Defendant transported 15 miles to police station for interrogation was seized without probable cause

Defendant was transported from the scene of his stop 15 miles to the police station, and the state actually argued that he was not under arrest, probably because there was no probable cause. His detention was unreasonable under the Fourth Amendment. State v. Massenburg, 2013 Ohio 324, 2013 Ohio App. LEXIS 250 (6th Dist. February 1, 2013):

[*P19] The same conclusion must be reached in this case. Here, appellant was placed in the back of Myerholtz's cruiser, and then transferred to the back of Santibanez's cruiser. Neither deputy told him that he was free to leave. During that time, a search of the vehicle was conducted, but no drugs were found. At that point, probable cause did not exist to arrest appellant. Nevertheless, he was detained in the back of Santibanez's cruiser for an indeterminate amount of time between when the roadside search was concluded and when the tow truck arrived. Appellant was then transported approximately 15 miles to the sheriff's station, where he was placed in an interrogation room in the interior of the police station. Although the state maintains he was not arrested, appellant remained in the interrogation room, with a jail staff member standing outside in the hallway, for approximately another 15 to 20 minutes before Myerholtz and Santibanez entered following the inventory search.

[*P20] Like the court in Royer, we conclude that the officers' conduct in this case was more intrusive than reasonably necessary to effectuate an investigative detention as contemplated by Terry; rather, it constituted a de facto arrest. ... Our conclusion is further bolstered by the United States Supreme Court's comments, following Royer, that,

There is no doubt that at some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect's freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments. *** And our view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes. We adhere to the view that such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause. Hayes v. Florida, 470 U.S. 811, 815-816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985).

02/03/13

Permalink 12:20:22 pm, by fourth, 116 words, 578 views   English (US)
Categories: General

NYTimes: "Lawmakers Aim to Limit Drones and Safeguard Privacy"

NYTimes: Texas Lawmakers Aim to Limit Drones and Safeguard Privacy by Emily Ramshaw:

A drone, no bigger than a toy airplane, hovered north of the Texas Capitol, floating over the heads of lawmakers who were momentarily distracted from their morning meetings. Several of them gathered beneath it, faces tilted skyward, marveling over a pair of goggles that allowed them to watch live video of the craft’s panoramic bird’s-eye view.

But when the conversation turned to the reason for the demonstration, the tone shifted. Representative Lance Gooden, Republican of Terrell, said he was sponsoring legislation to prevent this futuristic technology — increasingly used by everyone from aviation hobbyists to law enforcement authorities — from capturing “indiscriminate surveillance.”

Permalink 12:16:20 pm, by fourth, 174 words, 465 views   English (US)
Categories: General

NYTimes Opinion: "Why Police Lie Under Oath"

NYTimes Opinion: Why Police Lie Under Oath by Michele Alexander:

THOUSANDS of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. ...

Permalink 09:36:22 am, by fourth, 123 words, 525 views   English (US)
Categories: General

E.D.Tex.: Identity not suppressable even if illegally obtained

Defendant’s identity as one who was in the country illegally after previously being deported would not be suppressed, “even if the Court were to find something unconstitutional about the search of the home or Defendant’s detention.” United States v. Segundo, 2012 U.S. Dist. LEXIS 185484 (E.D. Tex. December 13, 2012).

Defendant's stop for blocking the street was valid, and the officer could reasonably suspect further evidence of crime because defendant dropped a pill bottle into the car when he got out. State v. Reed, 107 So. 3d 1262 (La.App. 4 Cir. 2013).*

“The affidavit was detailed and replete with information from which probable cause could be found” in his trucks parked at his house. United States v. Brown, 2013 U.S. Dist. LEXIS 13256 (D. S.D. January 31, 2013).*

Permalink 09:06:52 am, by fourth, 162 words, 434 views   English (US)
Categories: General

E.D.Pa.: Background information in a SW affidavit doesn't make it stale

In a RICO case, nearly decade old background information in the affidavit for a search warrant doesn’t make it stale. “The mere mention of background information does not render that information stale. Moreover, even if one were to disregard this information, the Affidavit provided more than sufficient information to establish probable cause for the issuance of the warrant.” United States v. Savage, 2013 U.S. Dist. LEXIS 13713 (E.D. Pa. February 1, 2013).*

Defendant was suspected of attempting to buy a large gift card at a Home Depot with a fraudulent credit card. The store had been victimized by the same fraud before. When her driver’s license was asked for, she left without completing the transaction and was followed to the parking lot. A car came in and she jumped in the car and took off. The stop was justified by reasonable suspicion. They consented to a search of the car producing multiple gift cards. United States v. Wilson, 510 Fed. Appx. 339 (5th Cir. 2013).*

02/02/13

Permalink 05:17:49 pm, by fourth, 150 words, 621 views   English (US)
Categories: General

E.D.Tenn.: Officer could ask about big screen TV in back seat in traffic stop in a residential area subject to burglary

Defendant and three others were stopped for speeding in a residential area known for its recent burglaries. In the back seat was a big screen TV. “The Court finds that Deputy Braden’s initial questions about the television did not extend the duration of the traffic stop.” The drug dog was used on the car in three minutes. United States v. Robinson, 2012 U.S. Dist. LEXIS 185389 (E.D. Tenn. December 26, 2012).*

Defendant was pacing back and forth around the dumpster behind a closed business in a high crime area. The officer approached, and asked him what he was doing, asking whether he was armed. He said he was and he pulled out the gun. With it came a baggie of drugs. The finding of the drugs was not unlawful because defendant’s producing the gun was by consent and reasonable suspicion wasn’t required. Carter v. State, 2013 Ga. App. LEXIS 30 (January 31, 2013).*

Permalink 04:48:07 pm, by fourth, 150 words, 478 views   English (US)
Categories: General

E.D.Tenn.: Gun in possession of known felon justifies plain view seizure

If the officer knows the defendant is a felon, then the incriminating nature of a gun in his possession is “immediately apparent” for plain view. United States v. Walker, 2012 U.S. Dist. LEXIS 185388 (E.D. Tenn. December 27, 2012).

Defendant was arrested for FIPF. Officers with an arrest warrant went to a house in the early morning hours and saw two men in chairs in the yard, apparently asleep. In defendant’s lap was a gun. Officers took the gun and handcuffed him. The gun’s serial number and defendant’s identity would have been run in any event, and that was inevitable discovery, even if the gun was illegally seized. United States v. Mohammed, 512 Fed. Appx. 583 (6th Cir. 2013).*

Questions to a stopped motorist about the purpose of their trip all occurred within four minutes and did not unreasonably extend the stop. United States v. Santellana, 920 F. Supp. 2d 712 (W.D. La. 2013).*

Permalink 10:41:02 am, by fourth, 169 words, 569 views   English (US)
Categories: General

Slate.com: "New Report Warns That Drones Could Be Used for Stalking, Voyeurism" and Eavesdropping

Slate.com: New Report Warns That Drones Could Be Used for Stalking, Voyeurism by Ryan Gallagher:

The sight of a drone in flight is likely to become a regular occurrence in the United States within the next few years. But the rise of unmanned technology could lead to new crimes like “drone stalking” and “drone trespassing,” lawmakers are being told.

A Congressional Research Service report published Wednesday, Integration of Drones Into Domestic Airspace: Selected Legal Issues, sets out the many contentious areas around unmanned aircraft. It cautions that in the future, as drones become more easily available to private citizens, we may see the technology used to commit various offences. This could mean neighbors using drones to infiltrate one another’s gardens as a means of harassment, or a voyeur using one strapped with a camera and microphone to photograph women and listen in on people’s conversations.

http://www.slate.com/blogs/future_tense/2013/02/01/drones_could_be_used_for_stalking_voyeurism_says_congressional_research.html
No sh**, Sherlock.

Permalink 09:56:32 am, by fourth, 284 words, 390 views   English (US)
Categories: General

OR: Suspected gun in school backpack permits its search, even after removed from student for good

Allegations of a gun in a backpack at school permit a search of the backpack, even if the backpack was removed from the possession of the student. “[T]he scope of a permissible school-safety search is determined by what is reasonable under the perceived circumstances, which, in turn, depends on the nature of the safety threat. [T.L.O.] at 392 n 5.’ For example, a ‘reasonable suspicion that the person searched is carrying a rifle’ would ‘not ordinarily be sufficient to justify a strip search of the person or a search of the person’s wallet.’ Id.” In re A. J. C., 2013 Ore. App. LEXIS 122 (January 30, 2013):

Here, Smith was confronted with an immediate threat both to a named student and to the general safety of the school. As noted, Glader told Smith that, in addition to V, youth might have threatened other, unidentified students. Smith did not know the type or size of the gun that youth reportedly had brought to school or the manner in which youth possessed it. That is, Smith did not know whether youth was carrying the gun on his person, had the gun in his backpack, or had concealed it somewhere else inside the school. Thus, Smith was faced with the choice of returning the unopened backpack to youth, his mother, or the family friend, searching elsewhere in the school, or searching youth's person. Smith chose to search the backpack, and, in light of the other options, that choice was reasonable; it was the most likely to reveal a gun and dissipate the safety threat without further intrusions or delay. For those reasons, in light of the nature of the safety threat, Smith's decision to search youth's backpack was reasonable.

Permalink 08:51:16 am, by fourth, 392 words, 1345 views   English (US)
Categories: General

theverge.com: "DARPA's 1.8 gigapixel drone camera is a high-res Fourth Amendment lawsuit waiting to happen"

See DARPA's 1.8 gigapixel drone camera is a high-res Fourth Amendment lawsuit waiting to happen by Joshua Kopstein. A lawsuit may happen, but will it win?

Can an analogy be drawn between Kyllo’s thermal imaging technology and a 1.8 gigapixel camera? (1,800 megapixel; an iPhone 5 has an 8 megapixel camera.) Tough question. A camera like that only shows the curtilage, and that's visible from any low-flying airplane. Kyllo showed something inside the house.

In the three fly-over cases in SCOTUS, Ciraolo and Riley involved “naked eye” observations at 1,000' from an airplane and 400' from a helicopter. Neither bothered the Court. Dow Chemical, on the other hand, involved “a standard floor-mounted, precision aerial mapping camera, to take photographs of the facility from altitudes of 12,000, 3,000, and 1,200 feet.”

Has technology overridden the reasonable expectation of privacy with a 1.8 gp camera, or does it fall within Dow Chemical's “precision aerial mapping camera” yet even beyond exotic thermal imaging of the home? But, remember, it's the curtilage being shown, not the interior of the house. How long has satellite imaging been around? How long has Google Maps shown our backyard to the world? See Kyllo, at 33-34:

The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found "it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened," 476 U. S., at 237, n. 4 (emphasis in original).

It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.

Kyllo was 12 years ago. Since activities inside of a house aren't shown, I don't think it's unconstitutional under the three cases already decided.

Permalink 08:17:58 am, by fourth, 129 words, 397 views   English (US)
Categories: General

splc.org: "School cellphone searches test boundaries of students’ Fourth Amendment rights"

Student Press Law Center: School cellphone searches test boundaries of students’ Fourth Amendment rights by Frank LoMonte:

It happened last week at an upstate New York high school, where a 14-year-old boy and his girlfriend are now under criminal investigation after a school principal discovered “inappropriate” photos of the girl while searching the boy’s cellphone.

Is this legal? Are there limits to how deeply a school can intrude into a student’s electronic notes, messages and photos?

Despite what many school and law-enforcement officials may insist, the Fourth Amendment very much exists on school grounds. The Supreme Court reaffirmed as recently as 2009 that it’s possible for a school search to go too far, if a search is highly intrusive and is unsupported by reasonable grounds for suspicion.

02/01/13

Permalink 09:27:18 am, by fourth, 143 words, 865 views   English (US)
Categories: General

LA5: Miranda warning before consent helped show voluntariness

Based on all the totality of circumstances, the facts support the trial court’s findings of consent. It was significant here that defendant was Mirandized before consent. State v. Lemonte, 108 So. 3d 1271 (La. App. 5 Cir. 2013).*

Defendant was driving a rental car but wasn’t an authorized driver. She was excessively nervous when stopped, and there was an overwhelming odor of raw marijuana coming from the car. That was justification to continue the stop longer. State v. Cooks, 108 So. 3d 1257 (La. App. 5 Cir. 2013).*

The statute of limitations on plaintiff’s § 1983 case had long passed by the time this case was filed. Labeling it a “continuing wrong” because relief hasn’t been granted doesn’t work. Voneida v. Stoehr, 512 Fed. Appx. 219 (3d Cir. 2013).*

Chewed baggie with white powder seen during a traffic stop was probable cause. State v. Simons, 2013 UT 3, 726 Utah Adv. Rep. 32, 296 P.3d 721 (2013).*

Permalink 09:25:22 am, by fourth, 154 words, 850 views   English (US)
Categories: General

CA6: Allegations of excessive and unnecessary prison strip search stated claim

Allegations of a punitive strip search in a women’s prison where other inmates could see it stated a claim. “But it is settled that the law demands an adequate need for a strip search, and, depending on the circumstances and context, restricts the scope, manner, and place of the search. ... Here, the excessively invasive nature of the search outweighed any need to conduct it in such a fashion.” This overcomes the otherwise broad power to search inside a prison. Stoudemire v. Mich. Dep't of Corr., 705 F.3d 560 (6th Cir. 2013).

“The claimant has alleged a colorable interest in the defendant currency and satisfied the threshold burden to establish standing.” United States v. $1,074,900.00 in United States Currency, 2013 U.S. Dist. LEXIS 11545 (D. Neb. January 3, 2013).*

There was a fact dispute on plaintiff’s arrest sitting in a car allegedly smoking marijuana, and that denied qualified immunity. Pane v. Gramaglia, 2013 U.S. App. LEXIS 2049 (2d Cir. January 30, 2013).*

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Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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