NYTimes Op-Ed Columnist: Erasing History by Bill Keller:
Lorraine Martin, a nurse in Greenwich, was arrested in 2010 with her two grown sons when police raided her home and found a small stash of marijuana, scales and plastic bags. The case against her was tossed out when she agreed to take some drug classes, and the official record was automatically purged. It was, the law seemed to assure her, as if it had never happened.
But Martin found that when she applied for jobs that should have been well within her reach, she got the cold shoulder. She Googled herself and discovered what any vigilant employer would have seen: stories still sitting in online news archives with headlines like “Mother and sons charged with drug offenses.”
NACDL opens its Domestic Drone Information Center. From its press release (online later today):
Washington, DC (April 30, 2013) – NACDL is today excited to announce the launch of its online Domestic Drone Information Center (DDIC). While drones (or Unmanned Aerial Vehicles) are most commonly known for their use in U.S. counterterrorism strategy, their presence inside the U.S. has become an important and growing concern in recent months.
NACDL President Steven D. Benjamin said, “NACDL’s Domestic Drone Information Center will serve as a comprehensive source of cutting-edge information on the proliferation of drones.” Benjamin sees the DDIC as filling a critical public need: “At the moment, people’s concerns about how drones will be used domestically are increasing, but information online remains scattered. The Domestic Drone Information Center aims to put everything in one place.”
To that end, the Domestic Drone Information Center aggregates news from leading publications across the nation. It features a comprehensive listing of legislative developments – federally, in each of the 50 states, and in select municipalities. It contains sections devoted to relevant case law, scholarship, upcoming events, and data on drone usage. The DDIC also aggregates existing material, providing the public with a launching pad to additional information on domestic drones. For example, the DDIC features links to other leaders in this field, such as the Electronic Frontier Foundation and the documents it has compiled through an aggressive Freedom of Information Act lawsuit. As the status of domestic drones in America changes and new resources become available, the DDIC will continually offer the latest updates.
Defendant was stopped for driving on a cancelled DL. A patdown found a bullet in his pocket, a violation of 18 U.S.C. § 922(g). The bullet meant a gun was likely in the car, and that justified a search of the car. United States v. Rousseau, 2013 U.S. Dist. LEXIS 60821 (D. Minn. April 3, 2013).*
Tinted license plate that was clearly readable did not justify stop. State v. Tyler, 830 N.W.2d 288 (Iowa 2013).*
The officer developed reasonable suspicion that the occupants of an RV were engaged in some sort of criminal offense. He got consent. When he found a new cooler, it apparently had been tampered with, and he knew that drug couriers often used new coolers to hide drugs in the insulation. The more intensive search of the cooler was thus justified. United States v. Gaxiola, 2013 U.S. Dist. LEXIS 60350 (D. Kan. April 29, 2013).*
Officers were not obliged to take defendant on arrest right to jail. Taking him to the scene of another event in the case was permissible. United States v. Dixon, 2013 U.S. Dist. LEXIS 60627 (D. Mass. April 29, 2013).*
Comment by government through witness that defendant refused to consent to a search would have been reversible error but for the other substantial evidence of guilt. Therefore, it was harmless error. United States v. Cooper, 714 F.3d 873 (5th Cir. 2013).*
Nexus here is shown by the CI’s statement that defendant admitted to him that there was child pornography in the home. United States v. Saffell, 526 Fed. Appx. 470 (6th Cir. 2013).*
All things considered, officers who encountered defendants ended up with reasonable suspicion then probable cause during the encounter. Finding a speedloader means that a revolver is nearby. The police reports referred to the patdown as a search incident but it wasn’t, and the USMJ dealt with that at the suppression hearing criticizing the officer’s use of words, and that supports the credibility determination. United States v. Royal, 2013 U.S. App. LEXIS 8581, 2013 FED App. 0421N (6th Cir. April 26, 2013).*
Defendant owed parking tickets, and the PD issued an order to stop and arrest people with unpaid parking tickets. That does not justify a stop and detention under Ohio law, and “the protections guaranteed by the Fourth Amendment cannot be altered by means of an Executive Order issued to police department personnel.” Motion to suppress granted. State v. Dukes, 2013 Ohio 1691, 2013 Ohio App. LEXIS 1578 (2d Dist. April 26, 2013).
Defendant was arrested in Dayton by officers from an adjoining city, and his car was impounded. A search warrant was obtained for the car, and that cured any jurisdictional ills there might have been. State v. Walker, 2013 Ohio 1687, 2013 Ohio App. LEXIS 1580 (2d Dist. April 26, 2013)
The police had probable cause, and the search of his car was justified either by the automobile exception or the search incident doctrine. United States v. Rousseau, 2013 U.S. Dist. LEXIS 60176 (D. Minn. April 26, 2013).*
Swabbing defendant’s face for GSR 16 hours after shooting was reasonable warrantless search considering the evanescent nature of GSR. Sen v. State, 2013 WY 47, 301 P.3d 106 (2013):
All the claimants lack standing to challenge the breaking into a safe that they claimed no interest in or even knew about until the money was found. United States v. $2,599.00 in United States Currency, 2013 U.S. Dist. LEXIS 59227 (E.D. N.C. April 25, 2013).*
The information in the affidavit provided “‘a fair probability that contraband or evidence of crime [would] be found in a particular place.’ Gates, 462 U.S. at 238.” United States v. Applewhite, 2013 U.S. Dist. LEXIS 59396 (E.D. Mo. April 8, 2013).*
Defense counsel not ineffective for not challenging police entry into defendant's house to question him about child pornography. Defendant acknowledged throughout, until now, that he was cooperative and talked to them about it, now claiming that the officers got entry by subterfuge. That is a fact dispute, and the court finds any suppression motion would have been denied. United States v. Smith, 2012 U.S. Dist. LEXIS 187819 (N.D. Fla. October 30, 2012).*
“No trespassing” signs alone not enough to create any protection against a knock-and-talk at the front porch. United States v. Dry, 2013 U.S. Dist. LEXIS 59406 (E.D. Okla. March 21, 2013):
A school resource officer sheriff's deputy taking a student out of class to the principal's office to question him about drugs was enough to invoke Miranda. N.C. v. Commonwealth, 396 S.W.3d 852 (Ky. 2013):
A man near a food truck was “uttering threats,” and police were called. They found defendant sitting on the curb and they asked if he “had any weapons or drugs on him.” Defendant said he had “some blow.” He was not in custody until he made the admission, which is admissible. State v. Janusheske, 111 So. 3d 967 (Fla. 5th DCA 2013).
Defendant was arrested and placed in a police car. They went in the house to get a rifle, and the entry was without consent or exigent circumstances. It was, however, harmless error with multiple witnesses seeing the shooting. State v. White, 2013 Tenn. Crim. App. LEXIS 351 (April 25, 2013).*
14 day old information in an ongoing drug trafficking operation was not stale. United States v. Vernon, 2013 U.S. Dist. LEXIS 59539 (M.D. Fla. April 25, 2013).*
Ancillary jurisdiction for return of property under Rule 41(g) is exercised with great restraint. Here, there is a remedy in the criminal case. United States v. Huggins, 2013 U.S. Dist. LEXIS 59773 (S.D. N.Y. March 22, 2013):
Officers were called to a domestic disturbance that involved only yelling and nobody hurt. In the time they were there, they got around to conducting a “protective sweep” of the entire apartment. The last place to look was a closet, and inside were six marijuana plants under a growlight. The sweep was unreasonable. State v. Maddix, 2013 WI App 64, 348 Wis. 2d 179, 831 N.W.2d 778 (2013):
Defendant was stopped for a turn signal violation after the officer saw a hand-to-hand transaction of some kind. Instead of performing a patdown, the officer went right to a pants pocket and searched it. That violated Terry, and there was no reasonable suspicion based on what little the officer saw. People v. Trisby, 2013 IL App (1st) 112552, 2013 Ill. App. LEXIS 250 (April 24, 2013).*
Defendant’s stop was justified because he was driving on the wrong side of the road. State v. Keck, 2013 Ind. App. LEXIS 188 (April 24, 2013).*
Defendant did not have standing in another person’s cell phone records, and even his own that were obtained by a court order from the provider. State v. Crawford, 2013 Ohio 1659, 2013 Ohio App. LEXIS 1550 (8th Dist. April 25, 2013).*
Window tint and weaving justified the stop, and the officer could smell marijuana. State v. Knox, 2013 Ohio 1662, 2013 Ohio App. LEXIS 1561 (8th Dist. April 25, 2013).*
A random license plate check justified the stop of defendant’s car for failure to transfer tag. Defendant was a passenger. When the officer ran his name, a felony no-contact violation warrant came back. The arrest was justified. State v. Bonds, 174 Wn. App. 553, 299 P.3d 663 (2013).*
There is no requirement for a warning for a second test for blood after the warned first test. Defendant consented. Commonwealth v. Gorbea-Lespier, 2013 PA Super 96, 66 A.3d 382 (2013).*
Officers came to do a knock-and-talk and encountered people outside. Before knocking, there was a strong odor of marijuana around the trailer. Based on this, they could detain the people outside so they couldn’t warn the people inside. Commonwealth v. Johnson, 2013 PA Super 95, 68 A.3d 930 (2013).*
Odor of marijuana coming from defendant’s car was probable cause, even if defendant denied smoking it. United States v. Richmond, 2013 U.S. Dist. LEXIS 59021 (S.D. Ind. April 25, 2013).*
The Mine Safety & Health Review Commission sought personnel and medical records of mine workers. Mines are clearly regulated industries. The record demands were within the power of the agency granted by Congress. Viewing them as administrative subpoenas, the court finds the subpoenas reasonable under the Fourth Amendment as to the miners’ privacy and the companies. Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm'n, 715 F.3d 631 (7th Cir. 2013):
An alert from Atlanta’s automatic license plate recognition (LPR) system that the owner of a car had an arrest warrant justifies a stop. Defendant was found to have consented thereafter. Rodriguez v. State, 321 Ga. App. 619, 746 S.E.2d 366 (2013).
Officers had an anonymous complaint that people were smoking marijuana in an apartment, so they [apparently having nothing better do to with their time] decided to do a knock-and-talk. When the door was opened, a cloud of marijuana smoke came out. The police entered and found marijuana on the coffee table. The trial court suppressed because it clearly didn’t like knock-and-talks, but the procedure is clearly constitutional. State v. Able, 321 Ga. App. 632, 742 S.E.2d 149 (2013).*
The adult half-sister of a mute and autistic girl who was suspected of being sexually abused by her grandfather had vicarious and implied authority to plant a video recorder in the bedroom to record the girl’s interaction with others. Defendant clearly had a reasonable expectation of privacy in the bedroom he was using for Fourth Amendment purposes [not that this is anything but a private search; for REP is important for the eavesdropping statute] but vicarious consent is recognized under the eavesdropping statute. Commonwealth v. F.W., 465 Mass. 1, 986 N.E.2d 868 (2013).
Defendant was arrested for drug offenses, and a jailer told him “he needed ‘to submit to a UA.’ As Jennings was getting the cup for the urine sample out, and without any Miranda advisement, Brown said, ‘My piss is going to melt right through that cup.’ ... Brown provided a sample and it tested positive for methamphetamine, amphetamine and cannabinoids.” The UA was valid as a search incident. United States v. Brown, 2013 U.S. Dist. LEXIS 58791 (D. S.D. February 15, 2013):
A railroad and the City of Fond de Lac were engaged in negotiations to replace a crossing with an overpass. The Wisconsin DOT wanted a soil sample off the right of way as part of its due diligence to construct the overpass. Relocating crossings and railroad right of way is subject to state law, always has been, and it’s clearly highly regulated. The court even cites the railroad drug testing case of Skinner. [Not even mentioned is implied consent from agreeing to a study and open fields because how does a railroad have a right of privacy on a railroad track?] Wisconsin Central Ltd v. Gottlieb, 2013 WI App 61, 348 Wis. 2d 141, 832 N.W.2d 359 (2013):
The court rejects a broad search term on defendant’s supervised release because of his multiple arrests for driving on a suspended license. The search term doesn’t serve any governmental interest. United States v. Postell, 917 F. Supp. 2d 687 (S.D. Ohio 2012).*
The color of the vehicle the officers were looking for was close enough to the one stopped when they had reasonable suspicion; teal or green? Under the circumstances, they “would be remiss” if they didn’t stop it. United States v. Stile, 2013 U.S. Dist. LEXIS 58266 (D. Me. January 2, 2013)*:
In criminal investigations parlance, reasonable suspicion lies between "inarticulate hunches," Terry, 392 U.S. at 22, which cannot justify investigatory stops, and probable cause, which can justify searches and arrests. Delaware v. Prouse, 440 U.S. 648, 661-63 (1979); Arvizu, 534 U.S. at 273-74. "Reasonable suspicion, then, is an intermediate standard—and one that defies precise definition." Jones, 700 F.3d at 621 (quoting United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001)). Much like the color teal, reasonable suspicion is best understood in reference to the more easily recognized standards it rests between.
Defendant ignored police commands and was walking away from them when he was told to put his hands up. Instead, he reached into his waistband and tossed the gun he had. Even if the prior search of his backpack was illegal, that was an intervening act and he wasn’t seized when he threw the gun. United States v. McClendon, 713 F.3d 1211 (9th Cir. 2013).*
The stop was based in part on information from a CI, traveling in tandem and following too close, and that was reasonable suspicion which led to a plain view of heroin. United States v. Espino-Urvan, 2013 U.S. Dist. LEXIS 58470 (S.D. N.Y. April 23, 2013).*
The claim that plaintiff’s children were not allowed to attend his federal criminal trial except with state DHS workers is not a constitutional claim, including a Fourth Amendment claim. Santos v. Sec'y of D.H.S., 532 Fed. Appx. 29 (3d Cir. 2013).*
Defendant’s search at CBP at ATL was a border search, and the cocaine found in his suitcase was lawfully seized. United States v. Wallace, 2013 U.S. Dist. LEXIS 58319 (N.D. Ga. March 21, 2013).*
Officers had a no-knock warrant based on defendant’s firearms in the house. The use of a flash-bang device indoors was not objectively unreasonable on these facts. State v. Rockford, 213 N.J. 424, 64 A.3d 514 (2013):
The government sought a search warrant to hack a computer believed to be used to commit bank fraud. The USMJ concludes that the proposed search would violate the particularity requirement of the Fourth Amendment. In re Warrant to Search a Target Computer at Premises Unknown, 958 F. Supp. 2d 753 (S.D. Tex. 2013):
Protective sweep (over)broadly held to include looking for a murder weapon. Commonwealth v. Harrell, 2013 PA Super 82, 65 A.3d 420 (2013):
Here, officers arrested appellant on the front porch of his residence. (Trial court opinion, 7/13/11 at 29.) However, they did not recover the weapon used to kill the two victims. (Id.) A female, described as frantic, exited the residence and informed officers that there were children inside. (Id.) Officers did not know at that time if there was anyone else involved in the shooting, if the murder weapon was inside the house, or if the children were in danger. (Id.) Under these circumstances, the officers were justified in performing a protective sweep of the residence.
Buie protective sweep is limited to looking for other people. Here, the court's conclusion should have been "the gun probably was in the house and children were in the house so exigency (or public safety, see New York v. Quarles) justified locating the gun under exigent circumstances. As to the other person, a protective sweep was permissible, although protective sweep only justifies a plain view."
Indiana requires a warrant to seize evidence from property in safekeeping when a defendant is awaiting trial. Seizure of DNA from defendant’s shoe when he was in custody in violation of the Indiana Constitution was harmless error where the state put on four witnesses that defendant admitted murder by a baseball bat. Guilmette v. State, 986 N.E.2d 335 (Ind. App. 2013).*
State officers had reasonable suspicion to detain defendant for violation of an order of protection based on statements from the protectees. That supported the finding of the red dye stained money on his person that linked him to a bank robbery. United States v. Douglas, 522 Fed. Appx. 125 (3d Cir. 2013).*
Defendant’s stepson had authority to consent to a search of a shed for weapons where he kept his own there and had a key. The consent was not coerced because he was told he did not have to talk to the police. United States v. Ervin, 517 Fed. Appx. 734, 2013-1 U.S. Tax Cas. (CCH) P50,288, 111 A.F.T.R.2d (RIA) 1717 (11th Cir. 2013).*
In a case of destruction of a building without notice, the Fourth Amendment reasonableness claim parallels the Fourteenth Amendment claim. The jury instructions were erroneous because they allowed the jury to find a Fourth Amendment violation only if an emergency justified tearing down the building. RBIII, L.P. v. City of San Antonio, 713 F.3d 840 (5th Cir. 2013).*
There was a robbery of a cab driver outside a hotel, and the suspect fled into the hotel. Hotel security could see him go to the fifth floor and followed. On the fifth floor, he wasn’t seen, but two men were talking loudly in a room and hotel security knocked. Nobody came to the door and it got quiet. The security person returned to the lobby. When police arrived, he took them to the room. The police entry into the room, while a close question, was with exigent circumstances because of the possibility that he holed up in a room of somebody else and had them hostage. He wasn’t the renter of the room. Finally, to be an abandonment, disclaiming ownership of property seized by the government has to occur before the search not after. United States v. Ojonugwa, 2013 U.S. Dist. LEXIS 57777 (N.D. Tex. April 23, 2013):
One defendant subjected to a government recording of his call with a consenting person has standing to challenge the voluntariness of consent of the other person. United States v. Hawkins, 2012 U.S. Dist. LEXIS 187767 (W.D. Mo. October 18, 2012):
While the Corona-Chavez case does not address the issues of standing or the voluntariness of a consent, numerous other cases have found that defendants, such as defendant Hawkins, do have standing to challenge the voluntariness of another's consent to the recording of a phone conversation with them. In United States v. Hodge, 539 F.2d 898, 900 (6th Cir. 1976), cert. denied, 429 U.S. 1091, 97 S. Ct. 1100, 51 L. Ed. 2d 536 (1977), a government informant (Mondaine) consented to the recording of telephone conversations between himself and defendant Hodge. Defendant Hodge argued that admission of the conversations into evidence violated the Fourth and Fifth Amendments of the United States Constitution and 18 U.S.C. § 2511. Id. The court found: [¶] ... A person may challenge government evidence on the ground that it was seized by electronic surveillance violative of his Fourth Amendment right to be free of unreasonable searches and seizures if the person was a party to the conversation ....
Putting video camera over bathroom stalls of the Iowa Civil Commitment Unit for Sex Offenders violated the inmates' reasonable expectation of privacy. The recordings were not monitored in real time. Arnzen v. Palmer, 713 F.3d 369 (8th Cir. 2013):
While the Eighth Circuit hasn’t ruled, the significant weight of authority says that a search incident of a cell phone is permissible in a search incident (citing lots of cases), particularly where the phone is directly linked to the offense. Here, it was soliciting a 15 year old prostitute and the meeting was arranged by text message and calls to and from cell phones. United States v. Nyuon, 2013 U.S. Dist. LEXIS 56916 (D. S.D. March 7, 2013).*
A notebook was seized from defendant’s vehicle in a credit card fraud case, and there was probable cause to believe it contained evidence of the crime. United States v. Harris, 2013 U.S. Dist. LEXIS 56130 (N.D. Ind. April 18, 2013).*
Defendant is accused of campaign finance violations in a Senate race in Nevada. His company fired him, and 81 boxes of information was turned over to its lawyers. The lawyers searched the boxes and found sufficient evidence to turn over to the FBI. This was a private search because there was no prior or contemporaneous government involvement. United States v. Whittemore, 2013 U.S. Dist. LEXIS 57198 (D. Nev. April 18, 2013).*
When a police officer told defendant that child protective services needed to come in and talk to him, his saying “okay” was not a consent to enter; it is mere acknowledgment of the request. The lack of consent is bolstered by the fact defendant did not move and tried to shut the door on the officer. United States v. Aguirre, 2013 U.S. Dist. LEXIS 57352 (W.D. Tex. April 19, 2013).*
Arrest of defendant at his door was not a Payton violation. When he asked to get his shoes and tell his daughter he was going, the police had to follow under Chrisman, and that was reasonable. He was told they’d follow if he went in. United States v. Allen, 2013 U.S. Dist. LEXIS 57010 (D. Vt. April 22, 2013).*
The district court’s finding that exigent circumstances for the entry was based on presence of accomplices was supported by the record. United States v. Eikelboom, 2013 U.S. App. LEXIS 8088 (5th Cir. April 22, 2013).*
Reason.com: 3 Reasons the Boston Bombing Case Should Not Change Our Attitudes About Privacy / And one reason why it should by Brian Doherty:
The rapid identification and tracking of the Boston bombing suspects has made many Americans contemplate the benefits of a world where everything and everyone is watched and recorded, every electronic signal analyzed and traced. Figures ranging from Rep. Peter King to Tom Brokaw have called for more surveillance. New York Mayor Bloomberg, always eager to make himself a walking caricature of modern managerial liberalism, is urging us to change "our laws and our interpretation of the Constitution."
When defendant answered his door, the police said they were there to arrest him, and he stepped back, the police did not have a right to enter under Payton. The plain view on the sweep thereafter was suppressed. State v. Maddox, 2013 Ohio 1544, 2013 Ohio App. LEXIS 1424 (8th Dist. April 18, 2013):
The CI’s statement was enough against penal interest to have more credibility. He was not just currying favor with the police. State v. Shipman, 987 N.E.2d 1122 (Ind. App. 2013).*
The officer developed enough information to have reasonable suspicion of DUI in keeping the defendant at the side of the road from his breath mints, nervousness, a pill bottle, mild odor of alcohol and denials of alcohol use. Richardson v. State, 422 S.W.3d 272 (Tex. App. – Ft. Worth April 18, 2013)* (dissent).
Defendant’s wife thought he was manufacturing meth, so she left the house and called the police. They came and consent to enter was given by his wife and mother. The mother was suffering from Alzheimer’s, but that doesn’t matter because she wasn’t shown to be incompetent at the time [obviously the judges have never dealt with an Alzheimer’s sufferer]. The wife’s consent was enough. Walker v. State, 986 N.E.2d 328 (Ind. App. 2013).*
The Eighth Circuit doesn’t follow Ninth on bad faith equaling an “egregious” Fourth Amendment violation warranting the exclusionary remedy in an alien removal case. They have a damages remedy [ha!]. Carcamo v. Holder, 2013 U.S. App. LEXIS 7841 (8th Cir. April 19, 2013):
Google Scholar's home page changed today. Click on "Legal Documents" and a button comes up for "Federal Cases" and your state cases or select court. One can do a significant amount of research on Google Scholar, still not as good as Westlaw or Lexis, but it will now be more focused.
Four guys came from Florida to Arkansas to pass counterfeit checks. Three got arrested fleeing from the police when called by a bank, and one had a hotel receipt on him. Police went to the hotel looking for confederates. The police saw defendant dispose of a bag with counterfeit checks in the parking lot, and he had luggage on a hotel cart about to flee. The checks matched those from the arrested three. The police went to prepare a search warrant for the hotel room he was in, but the clerk called to say he was checking out. They came back and arrested the defendant and searched the luggage finding blank check stock and a computer. On top of the luggage was a printer. The police claimed search incident or inventory because the luggage would have been left on the baggage cart, so they took it. The arrest was clearly with probable cause. The search of the luggage was justified either as inventory or inevitable discovery. “Since the evidence showed that all the items on the luggage cart would have inevitably been discovered and the officers were pursuing an alternative line of investigation, Nix, 467 U.S. at 433, the district court did not err in denying Allen’s motion to suppress.” United States v. Allen, 713 F.3d 382 (8th Cir. 2013). [Note: I was CJA appointed to one of the guys arrested passing the checks. They drove off from a bank when the police showed up, and were arrested at gunpoint. The "from Florida" in the first line was my own knowledge of the case; they all admitted to coming to Arkansas to pass counterfeit checks and then run back to Florida before anybody knew, they hoped. My guy wouldn't have standing in that luggage.]
Defendant was an airman who was believed by his landlord to have skipped out on rent and abandoned the premises. He wasn’t around and couldn’t be found. The landlord entered and found it needed a lot of repairs and appeared abandoned. He called defendant’s NCOs who came to the apartment as Air Force representatives to the community to see what was going on. The landlord unquestionably had a right of entry under the lease, and this extended to making the NCOs his “representative.” They did not enter for any regulatory or law enforcement function. In the apartment, they found a piece of a B-1 bomber that was missing from the air base. The entry was valid. United States v. Irizarry, 72 M.J. 100 (C.A. A.F. 2013):
Iowa concludes that a parole agreement with a consent provision is not true consent under the state constitution. The case has a complete analysis of consent of probationers v. parolees and concludes there is no bargaining power for the parolee. [Not that anybody truly has that much bargaining power.] State v. Baldon, 829 N.W.2d 785 (Iowa 2013):
The Heck bar to § 1983 relief doesn’t apply if the plaintiff loses his habeas remedy because of release without a decision on the merits. Here, he pled to a lesser, but that may not bar the claim. Poventud v. City of New York, 715 F.3d 57 (2d Cir. 2013):
Since Jenkins and Leather, we have repeatedly affirmed that Heck's favorable-termination requirement applies only to plaintiffs who are in custody, and that all other claimants—those who have no remedy in habeas—may pursue their claims under § 1983. See McKithen v. Brown, 481 F.3d 89, 101 (2d Cir. 2007) ("Over time, [Heck's] implicit exception [to § 1983's otherwise broad coverage] has been carefully circumscribed."); Huang ex rel. Yu v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001) ("In light of our holding in Leather, and in light of ... the fact that the Spencer concurrences and dissent 'revealed that five justices hold the view that, where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be,' we conclude that Huang's Section 1983 claim must be allowed to proceed.") (quoting Jenkins, 179 F.3d at 26); Green v. Montgomery, 219 F.3d 52, 60 n.3 (2d Cir. 2000) ("We have held ... that Heck acts only to bar § 1983 suits when the plaintiff has a habeas corpus remedy available to him (i.e., when he is in state custody). Because it does not appear that Green is presently in state custody, his § 1983 action is not barred by Heck." (internal citations omitted)).
The facts in this case differ somewhat from the facts in the cases just cited, but not in a way that is material to the issue before us. After Poventud's original conviction was vacated, but before that vacatur was affirmed on appeal, Poventud pled guilty to a lesser, related offense.2 This fact, however, does not alter the underlying principle that a claimant who cannot seek relief under habeas must be able to seek it under § 1983. Poventud's guilty plea may (or may not) supply defendants with a defense that no § 1983 violation occurred. But it does not entitle them to summary judgment under Heck.
Answering door at a knock-and-talk smoking a joint creates cause for entry. State v. Walker, 2013 N.J. LEXIS 355 (April 10, 2013).
A cursory visual search through the windows of a car does not dissipate probable cause. A judge issuing a search warrant doesn’t need to know that already happened, and failure to put it in the affidavit is not a Franks violation. United States v. Johnson, 2013 U.S. Dist. LEXIS 55907 (W.D. Pa. April 15, 2013).*
After the hearing on the motions to suppress, the court asked for briefing, and the defendants didn’t file any. That means the motions are withdrawn. “In addition to be subject to denial for having been withdrawn, the motions lack merit.” United States v. Gutierrez-Martinez, 2013 U.S. Dist. LEXIS 55323 (N.D. Ga. March 22, 2013).*
Defendant was stopped for a traffic violation and the officer was going to give a warning. After the computer checks came back clean and a drug dog who had been immediately called for went around the vehicle and did not alert, the officers were stymied and conversed about how to get consent. The stop was unreasonably long [and only by two minutes] because the officers didn’t let him go. Instead, they sought consent which was coerced “to make sure there were no drugs in the van.” United States v. Rodriguez, 2013 U.S. Dist. LEXIS 56456 (D. Utah April 15, 2013):
After telling Defendants he wanted to make sure there were no drugs or weapons in the van and asking Defendants to exit the van, Nazer asked for consent to search. At that time, Defendants were moved away from the van and each placed with one of the other officers. There were three officers total and a canine at the scene. It was the middle of the night on a dark and secluded street. The officers were all in uniform, armed, and providing the only real light at the scene by holding flashlights. The officer gave no indication that Defendants could refuse consent and, in fact, had prefaced his request by stating that he wanted to make sure Herrada had given a truthful response. Under the circumstances, the court finds that no reasonable person would have felt free to refuse the officer's request to search. Therefore, the court concludes that Herrada's consent to the search was not freely given and the search violated Defendants' Fourth Amendment rights. Accordingly, the court suppresses all evidence seized in the search.
Officers seeing a bullet in plain view triggers justification for a Long protective weapons search. It is enough for an officer to reasonably suspect the presence of a gun. People v. Colyar, 2012 IL 111835, 996 N.E.2d 575 (2013), rev'g People v. Colyar, 407 Ill. App. 3d 294, 346 Ill. Dec. 921, 941 N.E.2d 479 (2010) (posted here).
Defendant was driving a vehicle loaned to him, but it was stolen. He claimed he had no idea it was stolen. The government claimed no standing from “wrongful presence.” The court concluded that he showed no reasonable expectation based on all the facts, none of which helped him. United States v. Singletary, 2013 U.S. Dist. LEXIS 55940 (N.D. Cal. April 17, 2013)*:
Here, Singletary fails to demonstrate any factors to support a reasonable expectation of privacy in the vehicle. He does not allege that he had permission to drive the vehicle from the registered owner, Bherlyn Saballos. He does not allege that he had a key to the vehicle. In fact, the officer had to use a screwdriver to turn off the vehicle because the ignition was totally destroyed. Singletary does not even allege that he had permission from anyone to drive the vehicle. When asked to whom the vehicle belonged, his only reply was "Some wetback." Based on these facts, Singletary has failed to assert a legitimate privacy interest in the vehicle.
A probationer’s computer is subject to search on reasonable suspicion of wrongdoing. If necessary, it includes moving it elsewhere for forensic testing. United States v. Miller, 2013 U.S. Dist. LEXIS 55906 (D. Mont. April 17, 2013):
PoliticoPro: Boston frames surveillance debate by Steve Friess and Jessica Meyers:
Americans hate Big Brother — until moments like this.
Police state paranoia has long stoked angst and outrage, until an incident like the Boston Marathon bombings takes place and the nation heaves a sigh of relief that security cameras gazed unblinkingly upon Beantown’s streets and sidewalks.
CantonRep.com: Fourth Amendment: No unreasonable searches by Tim Botos:
How much do I track thee? Let me count the ways.
With a GPS-equipped smart phone in your pocket, you drive to work in downtown Canton; click. You zip by a traffic camera along I-77; click. You exit the highway, and pass a city crime control camera; click. You fill up at a gas station, where a security camera catches you paying with a credit card at the pump; click and click. Then, a quick stop at the ATM; click. You arrive in the office parking lot, where a security camera records you; click. You swipe a key card to enter the building; click.
Finally, out of the public eye.
Until that is, you log on to your computer.
. . .
Hall, the defense lawyer, and a former president of the National Association of Criminal Defense Lawyers, said it’s long overdue.
“All those old farts on the Supreme Court don’t even understand how a cellphone works,” he said, referring to the 2010 Ontario v. Quon case. “When you read [the oral argument], it’s clear that (Justice) Roberts didn’t understand that cellphones don’t talk directly to each other ... they go to towers first.”
Defendant was charged with manslaughter under the influence. His attorney showed up before the chemical test could be performed and the police failed to tell him. There is a limited right to counsel in this situation in New York, and it was constitutional error for the police to not tell the defendant the lawyer was there before the test. People v Washington, 2013 NY Slip Op 2600, 107 A.D.3d 4, 964 N.Y.S.2d 176 (2d Dept. 2013).*
The court first was inclined to grant the suppression motion based on a lack of probable cause, but thinking about it more, the court concludes the government adequately showed probable cause and preserved it, but it could have done a better job fleshing out the argument. United States v. Harris, 2013 U.S. Dist. LEXIS 56130 (N.D. Ind. April 18, 2013).*
The tip to the officer was completely corroborated. When defendant got out of his car to buy drugs, he left his child unattended and that gave reasonable suspicion to approach. State v. Guillot, 115 So. 3d 624 (La.App. 4 Cir. 2013).*
Defendant’s Franks motion requires there be a specific showing of what the misrepresentation is, and that means including the affidavit and how it’s a misrepresentation. It’s easy to make an allegation; the court requires more. United States v. Gutierrez, 2013 U.S. Dist. LEXIS 55323 (N.D. Ga. March 22, 2013) (“Defendant's Motion makes allegations, but the record does not include the warrant application or any investigative memoranda, testimony or other evidence showing a discrepancy.”)
Defendant’s stop was reasonably extended because defendant didn’t remember her address, she admitted travel that likely violated parole, and she didn’t have the paperwork on the car allegedly just rented. United States v. Cornelius, 2013 U.S. Dist. LEXIS 54693 (D. Ore. April 11, 2013).*
Defendant had standing to challenge the stop but loses because the stop was justified for a seat belt violation, despite the alleged ulterior motive. He doesn’t have standing to contest the search of the car. United States v. Davis, 2013 U.S. Dist. LEXIS 54513 (N.D. Ill. April 15, 2013).*
Defendant had standing to challenge the police entry into his aunt’s backyard. He used to live with her, but he moved out, and she let him keep his dogs in her back yard, and he came everyday with her permission to water and feed the dogs. The yard was fenced by a two wire fence on three sides and a neighbor’s privacy fence on the fourth. It was in her back yard. State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013).
Alaska requires a warrant for a two-party recording, not one party consent. A warrant that was shown to anticipate a drug deal was not overbroad because the police also learned about felon in possession of a firearm. Bearden v. State, 2013 Alas. App. LEXIS 44 (April 10, 2013).*
The mere fact defendant was in a psychiatric ward on a 72 hour hold did not show that he couldn’t consent. Based on the totality of the circumstances, the court credits the FBI agent that defendant knew what he was talking about and wasn’t psychotic at the time. United States v. Greer, 2013 U.S. Dist. LEXIS 54009 (D. Mass. March 26, 2013):
Law.com: Judge, Counsel Tempers Flare at Stop-and-Frisk Trial by Mark Hamblett, New York Law Journal:
Defendant would lose the search issue in his IAC claim on the merits of the search, as he should on all issues in it. As to the 2255 petition as a whole, it is rife with false statements, omissions, and documents of questionable origin, a recurring theme. “At the outset, the undersigned notes that the movant, a proactive litigant, has filed numerous pleadings and exhibits, some of questionable origin and authenticity, making allegations and representations that, when viewed in light of the entire evidence of record, are fraught with misrepresentations and/or omissions. The undersigned, however, takes no position on whether the information that has come to light in this proceeding should be subject to further investigation by the United States Attorney's Office, or whether the district court would recommend referral for further perjury and/or fraud proceedings.” Oh, and attorney-client privilege is waived. Garcon v. United States, 2012 U.S. Dist. LEXIS 187686 (S.D. Fla. April 26, 2012):
Questioning about drugs beyond the traffic infraction “d[id] not measurably extend the stop's duration” under Arizona v. Johnson. United States v. Wiggins, 2013 U.S. Dist. LEXIS 55151 (W.D. N.Y. April 16, 2013).*
Stop was justified by alleged speeding, despite the subjective reason of drug investigation. Reasonable suspicion developed. United States v. Garreau, 2013 U.S. Dist. LEXIS 55395 (D. S.D. April 18, 2013).*
Broken taillight justified defendant’s stop. Reasonable suspicion developed. United States v. Poole, 2013 U.S. Dist. LEXIS 55554 (N.D. Ill. April 18, 2013).*
Defense counsel can’t be ineffective for not filing a motion to suppress that would lose. State v. Massey, 2013 Ohio 1521, 2013 Ohio App. LEXIS 1412 (10th Dist. April 16, 2013).*
“[F]ailure to file a frivolous motion to suppress can never constitute ineffective assistance of counsel.” Aguirre v. United States, 2013 U.S. Dist. LEXIS 55652 (D. S.D. April 18, 2013).*
Volokh Conspiracy: House-to-House Searches and the Fourth Amendment by Orin Kerr:
Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way. Fortunately there aren’t a lot of cases on anything like we’re seeing in Boston, at least as far as I could find. ...
Kerr notes that the suspect wouldn't have standing to contest the entry and arrest because of wrongful presence, and any civil case against the government by a homeowner would be lost on qualified immunity.
I thought the same thing watching it on TV yesterday. Add this: What would the founders have thought about a house to house search for a wanted terrorist? I don't think it would bother them at all on "reasonableness" because it's something that might happen once in a lifetime. Balancing need against scope of intrusion (akin to a protective sweep and then quickly gone to the next house), it would be reasonable. If they happened on a little dope in their house to house sweep would the police even care? No; they certainly don't have time to seize it and write a report. The homeowner gets a pass.
Kerr doesn't mention this memorable phrase from Justice Jackson in 1949 from Brinegar v. United States, 338 U.S. 160, 182-83, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949) (Jackson, J., dissenting), which pretty much sums it up:
With this prologue I come to the case of Brinegar. His automobile was one of his "effects" and hence within the express protection of the Fourth Amendment. Undoubtedly the automobile presents peculiar problems for enforcement agencies, is frequently a facility for the perpetration of crime and an aid in the escape of criminals. But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.
ZDNet: CISPA passes U.S. House: Death of the Fourth Amendment? by Zack Whittaker for Zero Day:
The controversial Cyber Intelligence Sharing and Protection Act (CISPA) just passed the U.S. House, and will now head to the upper Senate chamber for further deliberation.
Rinse and repeat. This isn't the first time that this has happened, but it still poses a major threat to Fourth Amendment rights, according to civil liberties campaigners.
The search warrant target’s name over the doorbell of a house isn’t enough to link him to it. While there may be reason to believe defendant had drugs in his bedroom, the affidavit doesn’t link that address to the offense and the probability of evidence being found. Still, the good faith exception applies because it was not bare bones. United States v. Rose, 714 F.3d 362, 2013 FED App. 0108P (6th Cir. 2013):
“Given that Mr. Scott was arrested outside of his home, the officer's subsequent protective sweep of his home was not justified under Buie absent reasonable suspicion that there were dangerous individuals in the home.” United States v. Scott, 517 Fed. Appx. 647 (11th Cir. 2013).*
One defendant did not show any standing to challenge the search of the car he was in. He claimed no interest in anything in the car, so the court concludes he has no standing. United States v. Lemay, 2013 U.S. Dist. LEXIS 55021 (D. R.I. April 17, 2013).*
Defendant had standing to challenge the stop, but not the search. The stop was valid for a traffic offense. United States v. Davis, 2013 U.S. Dist. LEXIS 54513 (N.D. Ill. April 15, 2013).*
The dog sniff at defendant’s apartment door was valid under Eighth Circuit precedent, so, despite Jardines, Davis good faith validates this sniff. United States v. Davis, 2013 U.S. Dist. LEXIS 54130 (N.D. Iowa April 16, 2013):
The failure to get a warrant on probable cause for defendant’s historical cell site location data was harmless error in a bank robbery case where eyewitnesses and other evidence put defendant in the bank. United States v. Johnson, 516 Fed. Appx. 845 (11th Cir. 2013).*
Telling defendant to stand up and turn around for a patdown was an investigative detention, and there was reasonable suspicion for it. Commonwealth v. Clemens, 2013 PA Super 85, 66 A.3d 373 (2013).*
While the motion to suppress statements made in a criminal investigation in a prison was couched in terms of the Fourth, Fifth, and Sixth Amendments, the Fourth did not apply. United States v. White Feather, 2013 U.S. Dist. LEXIS 54920 (S.D. Ill. April 16, 2013).*
Eyewitness’s anonymous 911 call about a fight he was watching in a parking lot was entitled to credibility because it was based on first hand knowledge of what was being observed as the call was made, not inside knowledge as from a snitch. United States v. Madrid, 2013 U.S. App. LEXIS 7755 (10th Cir. April 17, 2013):
OrlandoSentinel.com: Florida to be among first states to regulate drones by Jennifer Curington:
A bill to limit law enforcement's use of drone aircraft is headed to Gov. Rick Scott, who has said he will sign it. When he does, Florida will be among the first states to regulate the unmanned aircraft.
On Wednesday, the House unanimously passed SB 92, which would allow law-enforcement to launch camera-carrying surveillance drones only if they first obtain a warrant from a judge or if a person's life or property is believed to be in imminent danger, or if the Department of Homeland Security has declared a terrorist threat.
A Public Defender: In CT: Argument Recap: Guilt by association because we’re all criminals:
It didn’t occur to me until earlier today, but there is a pattern here. The State has been trying for years to get great police powers at the expense of individual rights. But two things that happened in the last two days have really crystallized the extent to which they’re willing to go: 1. The absurd and frightening position staked out by the State of Connecticut at oral arguments yesterday, and; 2. Their repeated requests for vast investigative subpoena powers. I will take them up in turn.
The State of Connecticut thinks that everyone on the street is a suspect and the police should be able to detain anyone they feel like.
I wrote two days ago about the stunning argument the State is making in State v. Jeremy Kelly, where they are seeking to justify the detention of Kelly where he was only known to police officers as the guy standing next to someone they were looking for. Briefly, the police were looking for Gomez. They saw Burgos and Kelly. They thought Burgos was Gomez. They had no idea who Kelly was and were not interested in him. They ordered both men to stop. Both questioned that authority. The police repeated their commands. They both did not acquiesce and ran off. Kelly was eventually apprehended and charged with possession of cocaine.
Constitution Daily: CISPA, the Fourth Amendment, and you by Scott Bomboy
Overshadowed by congressional action on guns and immigration is an Internet privacy bill that could affect most Americans, without them knowing it, on a daily basis.
Cyber Intelligence Sharing and Protection Act (or CISPA) is making its way through Congress, and it’s passed a House vote on Thursday.
Plaintiff was a yoga instructor who was dating a San Diego County Deputy Sheriff. They weren’t married, but they lived together, had children together, and their finances were completely intermingled, with her a stay-at-home mom. After the relationship soured and they split, defendant had her arrested for credit card fraud because she still had one. There was probable cause for her arrest and the search of her house and an ADA signed off on the search warrant. After the arrest, the DA refused to prosecute. There was enough probable cause to avoid liability for false arrest and the search warrant, even though plaintiff’s expert testified in a deposition that it was “neglect of duty” not to have interviewed her before the arrest, not after. Plaintiff gets to go to the jury, however, on her excessive force claim that deputies arrested her for credit card fraud at gunpoint and were as intimidating as possible with personal animus, when she had their children. Cameron v. Craig, 713 F.3d 1012 (9th Cir. 2013)*:
A home study had been ordered of defendant’s house. A social worker arrived to do it with two officers watching from a car. Defendant refused to permit the social worker to enter, and, from the officers’ perspective, he was getting agitated talking about it and would not let her enter. The police entry could not be justified on any exigency or community caretaking function. Ross v. Commonwealth, 61 Va. App. 752, 739 S.E.2d 910 (2013):
Whether a handcuffing was necessary is a question of fact for trial, and it was on video. “More importantly, Officer Lynch had already frisked Brown for weapons, finding none. The officers characterize the frisk as ‘quick’ and ‘restricted,’ but the videotape evidences a pat-down lasting an entire minute and covering much of Brown's body. The reasonableness of the officer's belief that Brown posed a threat depends on the scope of the pat-down and whether a concealed weapon might actually have gone undetected. Summary judgment is inappropriate in light of these disputed issues of material fact.” The audio also does not support a need for handcuffing. Brown v. Lynch, 524 Fed. Appx. 69 (5th Cir. 2013).*
Defendant’s guilty plea waived all nonjurisdictional defects, including whether defense counsel properly investigated a suppression issue. Powell v. United States, 2013 U.S. Dist. LEXIS 53610 (S.D. Ala. March 13, 2013).*
The fellow officer rule provided collective probable cause there was drugs in defendant’s car for when it was stopped. Defendant was already under investigation as a part of a DTO where there were wiretaps. United States v. Cabral, 2013 U.S. Dist. LEXIS 53890 (D. Mass. April 16, 2013).*
Something one doesn’t see often: Officers couldn’t support need for a protective sweep, so the entry is suppressed. United States v. Anyanwu, 2013 U.S. Dist. LEXIS 53582 (N.D. Ga. March 18, 2013):
Evading a DL checkpoint is reasonable suspicion for a traffic stop. Defendant stopped in the middle of the road and made a three-point turn around, and officers went after him and stopped him. The court of appeals reversed and suppressed in an unpublished opinion. State v. Griffin, 366 N.C. 473 (April 12, 2013).
Compare (search "avoiding + checkpoint"):
Posted 3/17/13: Avoidance of an immigration checkpoint by turning around was not illegal nor reasonable suspicion. Articulable facts for reasonable suspicion must also be present. Motion to suppress granted. United States v. Castro, 929 F. Supp. 2d 1140 (D. N.M. 2013).
Posted 4/23/12: Following the Eighth Circuit, avoiding a DUI checkpoint alone is not enough to make reasonable suspicion. Here, however, there was more. State v. Rademaker, 2012 SD 28, 813 N.W.2d 174 (2012).
Posted 1/10/10: Defendant pulled off I-70 in Kansas after coming upon a ruse checkpoint. At that exit were only a few houses. He was followed and he pulled into a driveway, saw the police, and was startled. The officer could conclude that there was either reasonable suspicion the car was carrying drugs or they were casing houses for a burglary. [This is a stretch to find reasonable suspicion, which it does.] United States v. Neff, 2010 U.S. Dist. LEXIS 623 (D. Kan. January 5, 2010)
Defendant had no reasonable expectation of privacy in his computer from police accessing it via Limewire when he was hooked up to the Internet. He did not create an expectation of privacy from his efforts to hide files on his computer. Warshak has no application to this situation. United States v. Conner, 521 Fed. Appx. 493 (6th Cir. 2013):
There were three people in the car stopped on a long road trip. The driver consented to a search of the car. The trunk had multiple dufflebags. It was unreasonable for the officers to think that they all belonged to the driver, and most didn’t. He couldn’t consent to them, and their search is suppressed. (Also, judicial notice taken of distance between points off Google maps.) United States v. Iraheta, 2013 U.S. Dist. LEXIS 53283 (W.D. La. March 18, 2013), adopted 2013 U.S. Dist. LEXIS 53321 (W.D. La. April 11, 2013).
“In this case, while the search warrant describes certain broad categories of items to be searched for and seized, such as ‘documents related to fraudulent activities; photographs; any other stolen property;’ it also lists two North Carolina crimes: possession of stolen property, and obtaining property by false pretense, in violation of N.C. Gen. Stat. §§ 14-71.1 and 14-100. Thus officers were instructed to look only for items related to those particular crimes.” Thus, it was not overbroad. [Still, however, a lot is left to the discretion of the officer, so the defense has to show that something, anything was seized that should not have been seized. But that’s not enough if just a few things were seized that shouldn’t have been because that won’t lead to suppression of the other stuff properly seized.] United States v. Davis, 939 F. Supp. 2d 535 (E.D. N.C. April 12, 2013), R&R 939 F. Supp. 2d 535 (E.D. N.C. November 16, 2012).*
apublicdefender.com: The guilt by association exception to the Fourth Amendment:
Defendant was stopped at night, and he made a furtive movement below his seat. He was nervous when talked to. The officer got him out and frisked him finding nothing. The officer then searched the area defendant was sitting in, and a gun was found. Furtive movements alone are not reasonable suspicion. Add nervousness, and it is. The trial court’s order suppressing the gun was reversed. Commonwealth v. Buchert, 2013 PA Super 81, 68 A.3d 911 (2013).
Officers properly conducted a protective sweep when responding to a shooting call. A later search warrant for the premises was not based on stale information about the gun just because a picture had been seen with defendant holding the gun from two years earlier. “Again, appellant's argument is patently meritless. The July 18, 2008 affidavit was more than sufficient for a search warrant to issue regardless of the allegation concerning the October 2006 photograph. Police did not recover the murder weapon and they had new information that it may be stashed under the floor boards in the attic. The trial court did not err in denying appellant's motion to suppress physical evidence.” Commonwealth v. Harrell, 2013 PA Super 82, 2013 Pa. Super. LEXIS 222 (April 12, 2013).*
“Frost’s statement to the police that they ‘could search his house all [they] want[ed]’ indicated unqualified and unequivocal consent that was not undermined by his refusal to sign a written consent form.” United States v. Frost, 521 Fed. Appx. 484 (6th Cir. 2013).*
The search of plaintiff’s home was arguably overbroad in his allegation that stuff was taken, but plaintiff can pinpoint (1) nothing that was seized from the house (2) by any person to impose liability. Alford v. Vernier, 524 Fed. Appx. 157 (6th Cir. 2013).*
Police came to a church because of a noise complaint, and they entered and took information. During the course of the litigation, the individual plaintiffs dropped out. The church has no remaining Fourth Amendment standing. “Faith Baptist Church does not assert that any violations of its Fourth Amendment rights occurred. All plaintiffs entitled to assert the Fourth Amendment rights at issue, and all of their claims, were dismissed without prejudice pursuant to the Stipulation and Order entered by the district court on March 25, 2009.” Faith Baptist Church v. Waterford Twp., 522 Fed. Appx. 322 (6th Cir. 2013).*
An oil and gas investment business went under, and the SEC moved in and got a receiver appointed. The receiver turned over evidence to the FBI. A similar case is United States v. Setser, 568 F.3d 482 (5th Cir. 2009), which favors the government. A TRO for the receiver is not a search warrant. United States v. Coughlin, 2013 U.S. Dist. LEXIS 52576 (E.D. Tex. February 4, 2013).
Admission of historical cell site location data was harmless error here, even if unconstitutional, because defendant’s co-defendant in the bank robbery testified they did it together and because of the eyewitnesses who put him there. United States v. Johnson, 2013 U.S. App. LEXIS 7406 (11th Cir. April 12, 2013).*
Defense counsel had no duty to file a meritless motion to suppress, so he couldn’t be ineffective for not filing it. State v. Khouanmany, 832 N.W.2d 385 (Iowa App. 2013).*
There was no justification for a warrantless entry into defendant’s house after a knock-and-talk. While the officers were found credible on the question of whether a document entitled “consent to search” was signed, they omitted the critical facts of alleged exigency from their reports, and that was important. They needed a warrant and elected to proceed without one. United States v. Whisenton, 2013 U.S. Dist. LEXIS 52667 (E.D. Mo. March 8, 2013)*:
Going to the back door to do a knock-and-talk was reasonable where it appeared that the front gate had not been opened in a long time, and the normal route of going in and out was the back door. United States v. Shuck, 713 F.3d 563 (10th Cir. 2013).
While the warrant was issued without probable cause, the USMJ recommended the good faith exception sustain the warrant. On de novo review, the court finds that only the good faith exception issue need be addressed, and it agrees that the officers were objectively reasonable in relying on it. United States v. Davis, 2013 U.S. Dist. LEXIS 52635 (E.D. N.C. April 12, 2013).*
“[A]ppellant failed to include in the appellate record a transcript of the hearing on the motion to suppress.” Based on what little the court has, the motion to suppress is affirmed. State v. Grasty, 2013 Tenn. Crim. App. LEXIS 320 (April 10, 2013).*
A general inventory policy that the contents of vehicles be inventoried but that does not specify that closed containers be inventoried does not permit specifically opening the closed containers. One officer testified to “inventorying thousands of vehicles” and always interpreting it that way. State v. Hullum, 2013 Ohio 1448, 2013 Ohio App. LEXIS 1360 (8th Dist. April 11, 2013):
New American: Idaho Supports Fourth Amendment, Enacts Drone Restrictions by Joe Wolverton, II:
Another state is stepping in and shielding its citizens from constant surveillance by the government or law enforcement.
On April 11, Idaho Governor C.L. “Butch” Otter signed into law the “Preserving Freedom From Unwanted Surveillance Act,” an act reinforcing the Fourth Amendment’s guarantee of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
The law amends the Idaho code, placing new restrictions on the use of drones by government or law enforcement, particularly when it comes to the gathering of evidence and surveillance of private property.
wired.com: Secrets of FBI Smartphone Surveillance Tool Revealed in Court Fight by Kim Zetter:
Texas Court of Criminal Appeals refuses to assume exigency that the occupant will destroy marijuana just because an officer smelled it during a knock and talk. Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013) (dissent here):
Defendant was charged with vehicle manslaughter under federal law. His blood and urine were tested at a hospital based on the hospital’s consent form. There’s nothing that indicates that the consent was not voluntary. United States v. Johnson, 2013 U.S. Dist. LEXIS 52078 (D. Minn. March 7, 2013).* (The blood and urine were sought by the police, so this is not a private search issue.)
“While it is a close call, considering the factors in combination, I FIND Officer Duggan had an articulable and reasonable suspicion that criminal activity was afoot to warrant a brief investigation by deploying the readily-available [drug dog] Red.” United States v. Winters, 2013 U.S. Dist. LEXIS 52374 (E.D. Tenn. January 22, 2013).*
The encounter was consensual, not requiring reasonable suspicion, and reasonable suspicion developed during the encounter. United States v. Senator, 2013 U.S. Dist. LEXIS 52689 (D. Ore. April 11, 2013).*
The driver’s nervousness and not inconsistent versions of travel plans was reasonable suspicion for getting the drug dog out. United States v. Winters, 2013 U.S. Dist. LEXIS 52374 (E.D. Tenn. January 22, 2013).*
It was clearly established law that officers could not use gratuitous violence against a mentally unstable unarmed arrestee. Martin v. City of Broadview Heights, 2013 U.S. App. LEXIS 7094, 2013 FED App. 0101P (6th Cir. April 9, 2013):
Defendant was not seized when the officer rapped on the window to get defendant to roll it down and defendant ignored him and tried to dispose of evidence. United States v. Brissey, 520 Fed. Appx. 481 (7th Cir. 2013):
Three officers went to defendant’s mobile home for a knock-and-talk about his overpurchase of pseudoephedrine. Three went because they suspected a meth lab and they didn’t know what to expect. One officer went to the rear and called the others on the cell phone. When the knock and talk occurred, he could see scrambling inside hiding stuff in the kitchen. The unmistakable smell of the meth lab was exigency. [The court doesn’t mention the potential violation of curtilage, but it didn’t seem to matter anyway. They had exigency no matter what.] United States v. Richardson, 2013 U.S. Dist. LEXIS 52349 (N.D. W.Va. April 11, 2013), adopted 2013 U.S. Dist. LEXIS 75946 (N.D. W.Va. May 30, 2013).
Defendant was on supervised release, and he posted a naked picture of himself online portraying in a Santa hat. Five POs, local deputies, and a forensic examiner did a warrantless “parole search” (supervised release, actually) of his place and found pictures on his phone. The PO had reason to conduct the search, and it wasn’t arbitrary. United States v. Hilton, 2013 U.S. Dist. LEXIS 51777 (E.D. Mich. April 10, 2013).*
The consent to search here was limited to entering to retrieve a .410 shotgun. The officer also seized a 20 gauge shotgun, and that violated the terms of the consent and was not otherwise justified. United States v. Gillotti, 2013 U.S. Dist. LEXIS 52402 (D. Me. March 21, 2013).*
Defendant’s allegedly being delusional did not prevent him from being able to grant effective consent. He seemed perfectly fine when he was talking to the officers about his child pornography collection which he then consented to a search of. United States v. Smith, 2013 U.S. Dist. LEXIS 51841 (M.D. Tenn. April 10, 2013):
Officers entered a motel room with probable cause and exigent circumstances that a 16 year old girl was inside working as a prostitute for defendant. It was the ongoing crime of sexual abuse and prostitution of a child. Defendant, her alleged pimp, wasn’t there. Closed bags were found. The entry was legal, but the contents of the bags were not in plain view. Also, the fact it took 25 minutes for them to leave with the girl didn’t make it unreasonable. The motion to suppress is denied as to the entry and observations, but granted as to the closed bags defendant left in the room. “Defendant has not cited and the Court has not found any case requiring officers to make an instantaneous retreat from premises they entered based on exigent circumstances. Here the Court concludes the officers were still legally present in the room when they observed the bags in plain view during the period in which they were still dealing with N.B.” United States v. Wilmer, 2013 U.S. Dist. LEXIS 52350 (D. Ore. April 11, 2013).*
Note: A really interesting question not discussed at all is standing. Defendant rented the room for the girl to work as a prostitute, and he wasn’t there when the search went down. The court assumed defendant had standing as the renter of the room, and the government apparently never raised it. All may believe that defendant’s bags in the room was standing enough. Some courts would not be so solicitous.
The smell of marijuana was an exigent circumstance for an entry coupled with the defendant’s knowledge the officers smelled it. United States v. Staley, 2013 U.S. Dist. LEXIS 50901 (M.D. Ala. March 15, 2013).*
Reasonable suspicion was present to extend the stop to get a drug dog to the scene. Defendant’s refusal to consent (albeit vague and ambiguous and sometimes a partial consent), is not considered at all, and the police couldn’t. United States v. Williams, 2013 U.S. Dist. LEXIS 50782 (M.D. N.C. April 9, 2013).*
Any failure to properly announce before entry is not a ground to suppress under Michigan v. Hudson. The search of defendant’s trash at the curb was reasonable. Any failure to comply with the inventory requirement (something not really proved) would not be a constitutional error without prejudice to the accused, and there can’t be any. United States v. Barker, 2013 U.S. Dist. LEXIS 50376 (D. Minn. March 25, 2013).*
Protective sweep justified as a virtual “health and welfare argument.” There was a prior home invasion, and people were unaccounted for. United States v. Shephard, 2013 U.S. Dist. LEXIS 51427 (E.D. Ky. March 15, 2013):
Defendant has standing as “an aggrieved person” to challenge the initial consent of one recording a conversation with him. United States v. Hawkins, 2013 U.S. Dist. LEXIS 50952 (W.D. Mo. April 9, 2013).
Officers interrupted a burglary in progress and had reasonable suspicion that a nearby car was involved to be able to stop it. Waldron v. State, 321 Ga. App. 246, 741 S.E.2d 301 (2013).*
Petitioner’s search issue should have been raised on direct appeal, so it can’t be raised in post-conviction. State v. Allen, 2013 Ohio 1409, 2013 Ohio App. LEXIS 1314 (5th Dist. March 25, 2013).*
Defendant rousted from bed by officers in his house with a search warrant, patted down, taken outside to a police car barefooted, and questioned in a patrol car front seat with an officer next to him and behind him was “in custody” for Miranda purposes. United States v. Lee, 2013 U.S. Dist. LEXIS 51657 (M.D. Fla. April 10, 2013).*
ProPublica: No Warrant, No Problem: How The Government Can Still Get Your Digital Data by Theodoric Meyer and Peter Maass:
The U.S. government isn’t allowed to wiretap American citizens without a warrant from a judge. But there are plenty of legal ways for law enforcement, from the local sheriff to the FBI to the Internal Revenue Service, to snoop on the digital trails you create every day. Authorities can often obtain your emails and texts by going to Google or AT&T with a simple subpoena. Usually you won’t even be notified.
Two senators introduced legislation last month to update privacy protection for emails, but the bill remains in committee. Meantime, here’s how law enforcement can track you without a warrant now: ...
The Hill: IRS: We can read emails without warrant by Brendan Sasso.
The IRS believes that it can ignore United States v. Warshak outside the Sixth Circuit, even though every district court to consider the issue since Warshak has followed it.
Defense counsel was not ineffective for not moving to suppress a thumb drive taken off his person during execution of the search warrant in this case for computer media in the house since he was in the house at the time. It was fairly within the warrant. United States v. Orr, 2013 U.S. Dist. LEXIS 51686 (S.D. Ala. January 23, 2013).*
Officers had reasonable suspicion to stop defendant’s vehicle for resembling one involved in a cluster of bank robberies in the area. When stopped, defendant consented to a search of the vehicle more than once. Search warrants for his house were based on probable cause. Defendant’s later confession he robbed banks sealed the deal. United States v. Wetsch, 2013 U.S. Dist. LEXIS 51682 (D. Minn. February 8, 2013).*
The search incident of defendant’s car in this forfeiture case was based on probable cause contraband was in the car [sounds more like automobile exception]. United States v. Cunningham, 520 Fed. Appx. 413 (6th Cir. 2013).*
Affidavit for the search warrant for a gang bandana in a house was issued with probable cause and wasn’t stale. United States v. Garcia, 2013 U.S. Dist. LEXIS 51339 (D. Kan. April 10, 2013).*
Defendant’s stop escalated to full arrest without reasonable suspicion just because the officers couldn’t find him in a government database, wrongly concluding this made him a fugitive. On the totality, the government showed really nothing for the continued detention. The fact defendant did not show up in a database they expected him in proved nothing. “It simply cannot be that reasonable suspicion of a person being a wanted fugitive is created by the failure to find the name, given by a person, in a government database. Ironically, had Dapolito's name been found, the information would not have shown he was wanted on a warrant.” Under all the facts, it was clear he was not free to leave or avoid further police contact. United States v. Dapolito, 713 F.3d 141 (1st Cir. 2013).*
Defense counsel was not ineffective for not preserving defendant’s search issue for appeal because defendant had no standing. This was a motel room, and he wasn’t a registered guest or spending the night. Ex parte Moore, 395 S.W.3d 152 (Tex. Crim. App. 2013).*
“This appeal presents the question whether three officials in a rural county of Georgia are entitled to a summary judgment against a complaint that they violated the civil rights of a father and son who had been involved in an aborted exchange of property between a previously engaged couple. When Dustin Myers and Kelley Bowman ended their engagement to be married, Dustin attempted to retrieve the diamond ring he had given Kelley and other personal property, but that attempt prompted allegations that Dustin had stolen Kelley's dog, followed by a police chase on rural roadways and a brief arrest of Dustin and his father, Rodney Myers. The end of the police chase, which resembles a scene from a rerun of the 1980s television show, The Dukes of Hazzard, fittingly was captured on a video camera on the dashboard of a police car. ... After our review of the videotape and other evidence, we agree with the district court that the Myers' effort to make a federal case out of these events fails: Murry and Evans did not subject the Myers to excessive force; Evans had probable cause to arrest the Myers; Murry did not act under color of law; and the Myers failed to present any evidence that Murry, Evans, and Hutchins conspired to commit a false arrest.” Also, as for the engagement ring: “Dustin agreed to return the dog in exchange for the engagement ring and some money that he said Kelley owed him.” Myers v. Bowman, 713 F.3d 1319 (11th Cir. 2013).*
A § 1983 case over a search cannot be based on a violation of state law alone. The claim that the judge did not read the search warrant affidavit is speculative without more, aside from the question of judicial immunity for signing a search warrant. Avery v. Kratz, 522 Fed. Appx. 361 (7th Cir. 2013).
Defendant was under investigation starting in October 2009 for obtaining child pornography via a peer to peer network. Months later, a state subpoena was used to get subscriber information, allegedly in violation of state law. Months after that, defendant was stopped and consented to a search for drugs. The officer involved in that stop knew nothing of the CP investigation. Defendant consented to a computer search for drug transaction evidence, and the officer stumbled on the CP, shut the computer down, and acquired a search warrant. The search of the computer is similar to and governed by United States v. Hudspeth, 459 F.3d 922 (8th Cir. 2006), rev'd in part on other grounds, 518 F.3d 954 (8th Cir. 2008) (en banc). The alleged violation of state law in the issuance of the subpoena does not govern the Fourth Amendment analysis, and it was done reasonably. United States v. Suing, 712 F.3d 1209 (8th Cir. 2013).*
Defendant got a Franks hearing, and he did not prevail. “Consequently, the Court finds no evidence that the transcript or the affidavit contained statements that were deliberately false or made with reckless disregard for the truth.” Even if the challenged information were excised, there still is probable cause. United States v. Serrano, 2013 U.S. Dist. LEXIS 50996 (E.D. N.Y. April 8, 2013).*
“In this case, the record establishes that Agent Jackson entered the apartment only after the facts and circumstances would have led a reasonable person to conclude that the apartment contained contraband or evidence that was imminently likely to be destroyed. Therefore, his entry into the apartment was objectively justified. Agent Jackson's subjective expectation that a search would be fruitful has no bearing on the inquiry. See King, 131 S. Ct. at 1859 ...” United States v. Staley, 2013 U.S. Dist. LEXIS 50901 (M.D. Ala. March 15, 2013).*
Where there was no binding circuit precedent, pre-Jones placement of a GPS could not be protected by Davis. There were, however, court orders for cell phone tracking. The court finds that these orders were not sufficient to provide an independent source for the detailed tracking information the GPS provided. United States v. German, 2013 U.S. Dist. LEXIS 50462 (D. Md. April 8, 2013):
The Government has not met its burden of proving that the independent source or inevitable discovery doctrines apply. As to the independent source doctrine, the Government has not shown by a preponderance of the evidence that they obtained the same surveillance evidence through use of authorized cell phone tracking. As to the inevitable discovery doctrine, the Court is not persuaded that law enforcement "inevitably" would have obtained the same evidence, particularly given the duration and scope of the surveillance and the officers' necessarily limited resources.
911 shots fired call coupled with a reasonable belief the shooter went into the house justified a hot pursuit into the house. Opening a basement door and finding the gun was not unreasonable. United States v. Barclay, 2013 U.S. Dist. LEXIS 50914 (N.D. Ohio April 9, 2013).*
While the trial court expressly didn’t believe the officer that he could smell marijuana and suppressed, there was other evidence of marijuana in the passenger compartment of the car that supported a search under the automobile exception. State v. Jackson, 2013 WI App 66, 348 Wis. 2d 103, 831 N.W.2d 426 (2013).*
Officers did a knock-and-talk to investigate a photograph of an alien in possession of a firearm under 18 U.S.C. § 922(g)(5), and it was initially consensual. Because one person locked the door and there was concern of an assault rifle inside, officers could position themselves for safety purposes without making the knock-and-talk become coercive. United States v. Lara-Mondragon, 516 Fed. Appx. 771 (11th Cir. 2013).*
The stop was for speeding. “Defendants point specifically to Sergeant Soles' direction to Deputy Russell to ‘see if you can get a violation on your own, and if not we'll use one of mine.’ (Gov't Ex. 2 (Video from Sergeant Soles' Patrol Car), 1:15.)” The officer with the speeding stop is credited. Reasonable suspicion then developed. United States v. Williams, 2013 U.S. Dist. LEXIS 50782 (M.D. N.C. April 9, 2013).*
Defendant cannot show standing merely by relying on the government’s theory of the case. Defendant failed to show standing by some clothes in the closet that the government thought were his. The place was rented by him but subrented to somebody else. United States v. Henry, 2013 U.S. Dist. LEXIS 50324 (N.D. Ga. January 30, 2013):
Defendant’s six arguments to suppress all rejected. Since the search warrant was issued by a state court judge and executed by state officers it did not need to comply with Rule 41, and the federal knock-and-announce statute, 18 U.S.C. § 3109, did not apply. There was probable cause, and five day old information was not stale. United States v. Dodson, 2013 U.S. Dist. LEXIS 49966 (N.D. Ind. April 4, 2013).*
The encounter started as a “motorist assist” and reasonable suspicion developed. “At his initial contact with Defendants, Trooper Schmiedt became suspicious. To begin, it was obvious to Trooper Schmiedt that Defendants wanted him gone. This was the first time that Trooper Schmiedt had initiated a motorist assist and the motorist was not open to assistance.” United States v. Salgado, 2013 U.S. Dist. LEXIS 48696 (D. S.D. April 1, 2013).*
Trash left at the curb was treated as abandoned and is seizable. United States v. Barker, 2013 U.S. Dist. LEXIS 50376 (D. Minn. March 25, 2013).*
New Law Review Article: Wayne A. Logan, Dirty Silver Platters, 99 Iowa L. Rev. __ (2013). Abstract from SSRN:
This article addresses a longstanding concern in American criminal justice: the risk that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper “working arrangements.” Judicial vigilance, however, has long since waned, a problematic development assuming added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature.
Dirty Silver Platters offers the first comprehensive examination of this phenomenon and its many negative consequences, highlighting the need for more exacting judicial scrutiny of intergovernmental investigations. Without such scrutiny, modern silver platter doctrine, which allows admission of evidence illegally secured by non-forum agents found to be acting independently of agents of the forum court, is permitted to reign supreme. The article therefore seeks to pick up where mid-twentieth century courts left off, providing a reinvigorated framework to smoke out forum government agent involvement in investigations and condemn the legal evasion that it allows. In doing so, the article shines a spotlight on a critically important matter, implicating core rule of law and governmental transparency values, which will assume ever-greater importance in coming years as governments accelerate their combined investigative efforts in the battle against crime and domestic terrorism.
NTImes Editorial: When ICE Ran Amok:
In a series of raids in suburban New York in 2006 and 2007, agents of Immigration and Customs Enforcement burst into private homes in the dead of night, without warrants, looking for undocumented immigrants, often in the wrong houses. They pounded on doors, terrorized innocent residents, ineptly drew guns on police officers who were supposed to be their partners, and found hardly any of the gang members they were hunting. It was a stunning display of aggression and incompetence.
Law.com: Emails Detail Northern District's Use of Controversial Surveillance by Vanessa Blum:
SAN FRANCISCO — In 2011 federal prosecutors were working with magistrate judges in the Northern District to resolve concerns about the government's use of sophisticated surveillance technology known as a stingray to track people using their cellphone signals.
The problem, as described in an email from Criminal Division chief Miranda Kane, involved agents' use of stingray devices, also known as WIT or triggerfish, without obtaining specific permission from the court. Such devices, which simulate a cell tower, can be placed in a van and driven anywhere in order to pinpoint the location of wireless devices like cellphones or broadband Internet cards.
Officer could conduct a protective sweep of a recreational vehicle full of people where the driver admitted there was a gun inside and there was a strong (“overwhelming”) odor of marijuana coming from the vehicle. Commonwealth v. Stevenson, 2013 PA Super 73, 64 A.3d 715 (2013)* (The court doesn't call it a protective sweep; I do.).
Defendant was arrested for disorderly conduct for telling an 11 year old boy he could make his penis grow. That led to a consent to search his computer for child pornography which the court finds voluntary, listening to the tape. State v. Videen, 2013 Ohio 1364, 990 N.E.2d 173 (2d Dist. 2013).*
License plate light stop was valid. Porter v. State, 985 N.E.2d 348 (Ind. App. 2013).*
In dicta, the court notes that a compelled physical examination of an alleged victim of crime would raise potential Fourth Amendment issues, but it was limited to a less intrusive visual examination. State v. Gomez, 430 N.J. Super. 175, 62 A.3d 933 (2013).*
The search warrant here authorized seizure of things not remotely related to a completed crime, and they were suppressed and were severable from the whole warrant. Thus, the parts lawfully seized under the rest of the warrant were not suppressed. A state law issue to the conduct of searches is irrelevant under Virginia v. Moore. United States v. Khan, 2013 U.S. Dist. LEXIS 49171 (E.D. Cal. April 3, 2013):
There was probable cause for plaintiff's arrest, so the police couldn’t be sued for false arrest. The police don’t have to put in the affidavit for arrest and search warrant everything in the investigation. Their unreasonable search claim of unnecessary destruction of property fails for not being specific enough. Badillo v. Stopko, 519 Fed. Appx. 100 (3d Cir. 2013):
NYTimes: At Trial Over Police Tactic, Judge’s Focus Shifts From Stopping to Frisking by Joseph Goldstein:
The young man was testifying about how the police had stopped him on his way to the bodega to buy milk. As he described being frisked, Judge Shira A. Scheindlin turned to him with a familiar question: Had the police officer put his hands in the man’s pockets?
Parked in a store parking lot with the motor running and lights on but apparently asleep justified police contact. Telling the driver to roll down the window did not convert it to a stop. At that point the officer smelled marijuana. Dermio v. State, 2013 Fla. App. LEXIS 5553 (Fla. 2d DCA April 5, 2013).*
Defendant was close enough to the description from an officer in pursuit of a suspect to justify his stop when another officer saw him. State v. Robinson, 2013 Ohio 1345, 2013 Ohio App. LEXIS 1253 (8th Dist. April 4, 2013).*
The search here produced a dead body in defendant’s trunk. The denial of the motion to suppress has no findings, so there is nothing for appeal. Remanded for findings. State v. Bruce, 402 S.C. 621, 741 S.E.2d 590 (App. 2013).*
There was still probable cause for the search of defendant’s car: “We further hold the alleged inconsistencies between the police report and the officers' testimony do not necessarily warrant reversal of the trial court's finding that the search of the vehicle was lawful.” State v. Tynes, 402 S.C. 211, 740 S.E.2d 512 (2013).*
Encryption used in Apple's iMessage chat service has stymied attempts by federal drug enforcement agents to eavesdrop on suspects' conversations, an internal government document reveals.
An internal Drug Enforcement Administration document seen by CNET discusses a February 2013 criminal investigation and warns that because of the use of encryption, "it is impossible to intercept iMessages between two Apple devices" even with a court order approved by a federal judge.
A product of decriminalization:
Defendants’ car was stopped for not using a turn signal, and the officer could smell marijuana coming from the car. Questioning and searching one produced two small bags, only enough for a civil infraction and not enough for a criminal offense, and that small amount did not justify a search of the whole car. The state’s proffered justification of officer safety was rejected as not being based in fact. Commonwealth v. Daniel, 464 Mass. 746, 985 N.E.2d 843 (2013)*:
Here, Tayetto surrendered two small bags of marijuana at the request of the officer. Possession of the amount contained therein constituted a civil infraction, not a criminal offense. "As citizens, we expect that if we commit a civil infraction we will pay a fine; we do not expect a significant intrusion into our privacy and liberty." Cruz, supra at 469 n.16. Absent articulable facts supporting a belief that either occupant of the vehicle possessed a criminal amount of marijuana, the search was not justified by the need to search for contraband.
“We conclude that the search was not a lawful search incident to arrest, because the officers had no basis to arrest the defendant before searching him. The officers' observation of the defendant and two others passing what appeared to be a marijuana cigarette back and forth did not provide probable cause to believe the defendant was committing a crime. Therefore, the defendant's motion to suppress should have been allowed.” Commonwealth v. Jackson, 464 Mass. 758, 985 N.E.2d 853 (2013)*.
A small bag of marijuana on the floorboard doesn't justify a search of the trunk in Massachusetts. Commonwealth v. Pacheco, 464 Mass. 768, 985 N.E.2d 839 (2013).*
Plaintiff was arrested on a warrant for being a horse thief that was later proved not to be appropriately issued. Nevertheless, the police couldn’t be sued for arresting her on the facially valid warrant. When a plaintiff includes arrest reports and other documents with her complaint, it is appropriate to consider them on a motion for judgment on the pleadings. Williamson v. Curran, 714 F.3d 432 (7th Cir. 2013).*
Defendant’s stop was based on reasonable suspicion for stopping over the stop line of a stop sign and crossing the fog line twice. State v. Epps, 2013 Tenn. Crim. App. LEXIS 308 (April 2, 2013).*
Officers entered the house arguable illegally, but written consent came, and there were intervening circumstances that showed the consent purged of any taint. United States v. Whisenton, 2013 U.S. Dist. LEXIS 49322 (E.D. Mo. April 5, 2013).*
Firing a Taser at somebody doesn’t make a constitutional violation without hitting him. The shooting of plaintiff’s decedent during a dynamic entry was entitled to qualified immunity. The planning session before the entry showed that the police considered alternatives. “The aim of the plan was to surprise and subdue Gandy before he could harm himself or others. There was nothing before the district court to suggest that Sergeant Pittman knew or should have known that the course of action he chose would in fact lead to the use of deadly force against Gandy. In sum, we conclude that this theory was properly rejected at the summary judgment stage.” Gandy v. Robey, 520 Fed. Appx. 134 (4th Cir. 2013).*
[Note: Twice I've seen files over SWAT team assaults on buildings. Both were rejected. One led to a near mortal wounding when the sniper's target shot a hostage when the target wasn't killed because the bullet deflected going through a window. The other led to the almost new house burning down from a teargas cannister left inside when the police never moved in to clear the house after firing it inside, and they weren't even sure the suspect was still there. It is almost impossible to make a case against a SWAT Team that is merely negligent, even if they were. In the examples above, the sniper wasn't negligent. In the second, who ever decided to fire in the teargas cannister, knowing it could burn down the house without intending to go in after it, was negligent. But negligence doesn't state a § 1983 claim.]
While the trial court erred in determining the probable cause question, the appellate court did not. Any error that allegedly qualified as a denial of a full and fair hearing for Stone v. Powell purposes was corrected by the appellate court. This case is an interesting attempt at explaining the law on denial of a full and fair hearing. Monroe v. Davis, 712 F.3d 1106 (7th Cir. 2013):
CNET.com: Google fights FBI's warrantless data requests in federal court by Declan McCullagh
It's the first major company to openly challenge FBI's warrantless data-gathering known as national security letters, which authorize a gag order ruled unconstitutional by a federal judge.
When a landowner takes residential property subject to a deed restriction showing that it is subject to the N.J. Freshwater Wetlands Protection Act, there is a reduced expectation of privacy to entries onto the land by regulators. It is not highly regulated, just regulated, and entries are still subject to reasonableness. N.J. Dep't of Envtl. Prot. v. Huber, 213 N.J. 338, 63 A.3d 197 (2013):
Atwater v. Lago Vista is not contrary to “long-standing state history and traditions,” and it is followed in Illinois. People v. Fitzpatrick, 2013 IL 113449, 369 Ill. Dec. 527, 986 N.E.2d 1163 (2013):
[*P24] In light of the above, we are not persuaded by defendant's argument that long-standing state history and traditions conflict with the analysis in Atwater. For this reason, we will construe article I, section 6, of the Illinois Constitution of 1970 in the same manner as the fourth amendment. The circuit court therefore correctly denied defendant's motion to suppress.
Plaintiff’s claim that parole searches occurred in retaliation for suing another parole officer failed. Haynes v. Zaporowski, 521 Fed. Appx. 24 (2d Cir. 2013).*
The collective knowledge of officers justified the stop of defendant’s van and drug dog sniff. United States v. Rivera, 2013 U.S. Dist. LEXIS 47562 (D. Ariz. March 5, 2013).*
Once reasonable suspicion arose in a motorist assist, the officer called for drug dog, but the closest was an hour away. The detention was still reasonable under all the circumstances despite that delay. United States v. Salgado, 2013 U.S. Dist. LEXIS 48696 (D. S.D. April 1, 2013).*
An undercover officer saw defendant remove a gun from his waistband and put it in the trunk of the car. The officer had a uniformed officer make a stop, which was valid based on an observed traffic offense, despite other subjective motives. The driver consented to a search of the car, and the record supports that finding. United States v. Gonzales, 520 Fed. Appx. 720 (10th Cir. 2013).*
Officers invited into the home can conduct a protective sweep, too. It was quick and to the point, and officers retreated as soon as it was complete. United States v. Gastelum-Castro, 2013 U.S. Dist. LEXIS 49058 (W.D. Mo. February 25, 2013).*
Grits for Breakfast: Momentum gaining for cell-phone privacy bill
The CI was identified and told the truth about his own criminality before he gave information about defendant’s, so he was credible enough for the search warrant to issue. State v. Stotridge, 2013 Ark. 1325, 2013 Ohio App. LEXIS 1239 (4th Dist. February 5, 2013).*
Defendant was told to “stay put” while the officer ran his information, so he was seized [the officer had the license, too], and then he was ordered out of the car and the officer saw what he thought was marijuana visible in his pocket. The smell of marijuana in the car and the driver’s apparent impairment justified the search of defendant’s backpack for marijuana under the automobile exception. State v. Tovar, 299 P.3d 580 (Ore. App. 2013).*
The stop of plaintiff’s car in Big Bend TX based on a BOLO that proved incorrect was still with sufficient reasonable suspicion to provide qualified immunity for a protective sweep of the car for a fugitive. Davila v. United States, 713 F.3d 248 (5th Cir. 2013).*
Defendant was a suspect in a cold case based on a DNA hit. When the police came to him for a new DNA sample to confirm, he refused, so a court order was obtained. It was constitutional error to cross-examine him about his prior refusal to consent as evidence of guilt. State v. Gauthier, 174 Wn. App. 257, 298 P.3d 126 (2013):
Defendant California State Highway Patrol officers were involved in a high-speed chase with decedent. The car was stopped, and the jury could reasonably conclude, and obviously did, there was no further threat to safety when one of the officers emptied his gun into decedent, killing her. The force was excessive under the Fourth and Fourteenth Amendment. “Plaintiffs alleged that police officer Stephen Markgraf violated federal and state law when he shot and killed their mother Karen Eklund at the end of a high-speed chase. The panel held that it was clearly established that a police officer violates the Fourteenth Amendment due process clause if he kills a suspect when acting with the purpose to harm, unrelated to a legitimate law enforcement objective. Determining that the jury reasonably found that Markgraf shot Eklund with a purpose to harm unrelated to a legitimate law enforcement objective, the panel held that Markgraf could not assert qualified immunity in a post-verdict motion for judgment as a matter of law.” A. D. v. State of California Highway Patrol, 712 F.3d 446 (9th Cir. 2013).*
Defendant counsel was not ineffective for not objecting to third parties consent to search that was clearly voluntary and with apparent authority. Van Nguyen v. United States, 2013 U.S. Dist. LEXIS 47766 (E.D. Tex. February 27, 2013).*
The plaintiff was caught texting on his cell phone in class and disciplined for it. School officials unreasonably searched the phone’s text messages and voicemail because there was no justification. This was the Sixth Circuit's first foray into T.L.O. and school searches. G.C. v. Owensboro Pub. Sch., No. 11-6476 (6th Cir. March 28, 2013):
ACLU.org: Court Agrees to Consider ACLU Arguments That Fourth Amendment Requires Warrant For Access to Prescription Database by Nathan Freed Wessler:
A federal judge has granted the ACLU’s motion to intervene in an Oregon case that raises the question of whether the Fourth Amendment allows Drug Enforcement Administration agents to obtain confidential prescription records without a judge’s prior approval. (We’ve previously written about the case here).
Like most states, Oregon operates a Prescription Drug Monitoring Program (PDMP), which tracks prescriptions for certain drugs dispensed in the state.
Salon.com: Antonin Scalia, civil libertarian? The Supreme Court justice has forged an unlikely alliance with Sonia Sotomayor on matters of criminal procedure by Caleb Mason:
(This article originally appeared on The Crime Report, the nation's largest criminal justice news source.)
BLT: Justice Dept. Asks Court to Dismiss Suit over Secret Court’s Opinions by Mike Scarcella. The FISA court found the government violated the law, but the government doesn't want it ever released:
Defendant not entitled to a Miranda warning before asking him “What’s in your pocket?” during a patdown because it was not a custodial interrogation. The District Court conflated the Fourth and Fifth Amendment analyses. United States v. Woods, 11-2429 (6th Cir. April 3, 2013):
Defendant was known by his victims, and he committed a home invasion robbery where he threatened to kill his victims if they called police. When they quickly found him, a warrantless entry was justified. United States v. Daws, 711 F.3d 725 (6th Cir. 2013):
A beating and torture victim was left at a hospital ER. As best as the police could determine, there were others in the house where this happened, so they went back without lights and siren and entered the house for a protective sweep. Under the emergency aid exception, this was a reasonable entry. On the totality, swift action was required, and that made the entry reasonable. United States v. Shephard, 2013 U.S. Dist. LEXIS 45287 (E.D. Ky. March 29, 2013):
Defendant’s girlfriend saw child pornography on his computer and called the police. She showed it to them, and it was reasonable for the police to seize the computer at that point without a warrant. They got a warrant to search it. United States v. Benoit, 713 F.3d 1 (10th Cir. 2013):
On a 2255 IAC claim, where defendant refused to testify at this suppression hearing or trial, his affidavit in support of the IAC claim is rejected. On the merits of the search claim, there was reasonable suspicion and probable cause. As to the Franks claim, even removing the offending information left probable cause. Therefore, the Fourth Amendment wasn’t violated, so defense counsel couldn’t be ineffective. Simpson v. United States, 2013 U.S. Dist. LEXIS 45248 (E.D. Tenn. March 29, 2013).*
Collective knowledge of officers from DEA to traffic cop was probable cause drugs would be in the car, so whether a traffic stop was valid doesn’t matter. United States v. Sharp, 2013 U.S. Dist. LEXIS 46507 (E.D. Mich. April 1, 2013).*
Collective knowledge of officers justified stop and use of dog. United States v. Rivera, 2013 U.S. Dist. LEXIS 47562 (D. Ariz. March 5, 2013).*
The contact between defendant and the police was justified by probable cause he was involved in a drug deal, so he could be gotten out of the car and the car searched under the automobile exception. United States v. Beckstrom, 2013 U.S. Dist. LEXIS 46756 (D. Neb. March 18, 2013).*
Indiana’s new immigration statute that gives discretion to law enforcement to arrest a person because of a prior conviction without any removal proceeding even pending against them violates the Fourth Amendment and due process. Buquer v. City of Indianapolis, 2013 U.S. Dist. LEXIS 45084 (S.D. Ind. March 28, 2013):
DEA inventory policy did not apply to luggage that the DEA unlawfully seized. Here, there was somebody readily available to take custody of the luggage, and the DEA wouldn’t let them because they wanted to inventory. United States v. Papraniku, 2013 U.S. Dist. LEXIS 46343 (E.D. N.Y. March 29, 2013):
Julian Simcock, Note: Florence, Atwater, and the Erosion of Fourth Amendment Protections for Arrestees, 65 Stan. L. Rev. 599 (2013):
If there is an animating imperative behind the Supreme Court’s decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip searching arrestees, courts must seek a careful balance. Decades later, the Court appears to have deviated from Bell’s moorings. Last Term, in Florence v. Board of Chosen Freeholders, the Court examined the constitutionality of blanket search policies that require that all arrestees be strip-searched regardless of individualized suspicion or the nature of the offense. I argue in the following analysis that Florence constitutes an unnecessary erosion of Fourth Amendment protections for arrestees.
The record supports the conclusion that there was a bona fide emergency justifying the entry into the house. The defendants weren’t under investigation for drugs before the entry. [Truly applying good faith to a warrantless entry.] United States v. Brandwein, 2012 U.S. Dist. LEXIS 187273 (W.D. Mo. May 24, 2012):
Defendant voluntarily consented to the searches. Counsel’s attempt to be candid about the lack of strength of his argument was seized on by the appellate court as a near waiver, which it wasn’t. [Sometimes you just can’t trust appellate courts.] State v. Pugh, 2013 Ohio 1238, 2013 Ohio App. LEXIS 1126 (2d Dist. March 29, 2013):
As an initial matter Pugh came close to conceding the validity of the second search during the suppression hearing. After arguing that Selmon's consent to the first search was involuntary, defense counsel added: "Candidly, Your Honor, on the second search I don't feel my argument is as strong as in the first case. And I'll leave it at that." (Tr. Vol. I at 86). In any event, the trial court correctly found that Selmon validly consented to the second search and that Pugh's consent was unnecessary.
The officer had a reasonable, articulable suspicion to further detain defendant based on the contents of the vehicle, defendant’s nervousness, the inconsistent factual accounts given by defendant and the passenger, and, most importantly, the fact that neither defendant’s nor the passenger’s name appeared on the rental agreement. Defendant finally voluntarily consented to the search of his vehicle, without reserve or hesitation. State v. Calimeno, 2013 Ohio 1177, 2013 Ohio App. LEXIS 1066 (8th Dist. March 28, 2013).*
A warrant for a computer implies that its contents were subject to seizure. “The search of the contents of the computer is implied by the use of the phrase ‘computers and all related electronic storage devices.’ This makes sense, since oftentimes a computer is of little or no evidentiary value apart from an examination of its contents.” State v. Bates, 2013 Ohio 1270, 2013 Ohio App. LEXIS 1172 (6th Dist. March 29, 2013).
The record supports the trial court’s finding that defendant consented, so the search must be sustained. State v. Vaughn, 2013 Tenn. Crim. App. LEXIS 303 (March 28, 2013).*
The claim that the warrant was based on false or misleading information was not shown by the defense. One big alleged mistake proved to be completely immaterial. Therefore, the motion for a Franks hearing was denied. United States v. Harris, 2013 U.S. Dist. LEXIS 43375 (D. Vt. March 27, 2013).*
WaPo.com: Fourth Amendment creates new fault lines by Robert Barnes:
The oral arguments last week on same-sex marriage showed clearly the Supreme Court’s familiar fault line between liberal justices nominated by Democratic presidents and conservatives named by Republicans.
But a decision that got a little lost in the shuffle displayed a different kind of split on the court. And it may become more noticeable as the term continues and the justices dig deep on a part of the Constitution that has divided and vexed their predecessors as well.
The question is how to balance law enforcement interests against the right that the Fourth Amendment gives citizens to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
In last week’s takedown of a legendary drug-sniffing police dog named Franky, it was an unlikely sounding coalition of conservatives and liberals unwilling to defer to law enforcement.
The search incident of the car defendant was a passenger in was invalid under Gant. The search was valid, however, under inevitable discovery because the officer also testified that he smelled marijuana coming from the car, and that independently supported the search. Foster v. State, 321 Ga. App. 118, 741 S.E.2d 240 (2013).*
The stop was based on reasonable suspicion the temporary paper tag had been altered. Hinton v. State, 321 Ga. App. 445, 740 S.E.2d 394 (2013).*
Defendant consented to a patdown. State v. Andrews, 320 Ga. App. 792, 740 S.E.2d 748 (2013).*
“When the officers approached defendant, asking if they could speak with him, defendant said in response, ‘Let me show you what I got.’” That was consent. People v. Ellison, 2013 IL App (1st) 101261, 987 N.E.2d 837 (2013).*
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Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)
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)
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Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)
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)
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)
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)