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.

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, 2012 U.S. Dist. LEXIS 185666 (D. Ore. December 7, 2012).

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.

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.

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, 2013 U.S. App. LEXIS 2427 (9th Cir. February 4, 2013):

The district court did not engage in an analysis of each of these five factors, but it nonetheless found the consent given by the driver of Perez's truck, Garcia, to have been voluntarily given. An analysis of these factors makes clear, however, that Garcia's consent was involuntary and the search was, therefore, illegal.

As to the first factor, Garcia may not have been under arrest in all respects, but he was de facto in custody because he was ordered out of the vehicle, frisked, seated, and forbidden to rise. He was told, "You can't stand up because we[']re ordering you to sit down." See United States v. Curtis, 568 F.2d 643, 646 (9th Cir. 1978) ("If the person reasonably believes that he cannot leave freely, he is considered in custody[.]") (quoting United States v. Luther, 521 F.2d 408, 410 (9th Cir. 1975)). As to the second factor, Garcia testified that when he was asked to step out of the vehicle, he saw "guns drawn by uniform[ed] police officers." The third and fourth factors favor a finding of involuntariness because Garcia was not advised of his right to refuse to consent or given a Miranda warning. He was also denied his right to call his lawyer, despite his repeatedly asking to do so. Perez's case meets four of the five factors. In Reid, this court found consent to be involuntary on facts very similar to this case: "the officers ordered [the individual] up against the sliding glass door, placed him in a spread eagle position, frisked him, and then handcuffed him[,] ... at least one officer had his gun drawn[,] ... [and] the officers neither read [the individual] his Miranda rights nor informed him that he had the right not to consent to the search." 226 F.3d at 1027. In light of Reid and the totality of the circumstances, Garcia's consent was involuntary and the resulting search of Perez's truck illegal. The district court clearly erred in concluding otherwise.

How often does a court find consent clearly erroneous? Not much. Hardly ever.