Archives for: May 2013

05/31/13

Permalink 12:51:00 pm, by fourth, 111 words, 606 views   English (US)
Categories: General

PA: Court can't order suspicionless parole searches as condition of sentence

The sentencing court could not order that defendant be subjected to suspicionless parole or probation searches. Statute governs the searches consistent with the Fourth Amendment. Commonwealth v. Wilson, 67 A.3d 736 (Pa. 2013):

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Permalink 12:41:30 pm, by fourth, 145 words, 319 views   English (US)
Categories: General

OH2: Small container removed from defendant could not have a weapon inside

Defendant was subjected to a patdown, and it was unreasonable to open a closed container in his pocket under the specious theory it could have contained razor blades to be used as a weapon. State v. Howard, 2013 Ohio 2123, 2013 Ohio App. LEXIS 2024 (2d Dist. May 24, 2013).*

A motion to suppress that only dealt with the stop and not the interaction between the defendant and officer was a waiver of the latter. Nevertheless, the officer had reasonable suspicion here for a patdown for weapons. State v. Stonier, 2013 Ohio 2188, 2013 Ohio App. LEXIS 2094 (5th Dist. May 24, 2013).

There was probable cause for plaintiff’s indictment based on two witnesses testifying before the grand jury, and that eliminated his claim for false arrest, even though alleged exculpatory evidence was not presented to the grand jury. Rodgers v. City of New York, 2013 NY Slip Op 3826, 2013 N.Y. App. Div. LEXIS 3750 (2d Dept. May 29, 2013).*

Permalink 12:00:21 pm, by fourth, 162 words, 299 views   English (US)
Categories: General

AR: No standing in car rented by another with no proof of permission to drive

Defendant had no standing in a car rented to another who was the only authorized driver. He also could not challenge placement of a GPS on it. (No proof of permission to drive.) Wilson v. State, 2013 Ark. App. 337, 2013 Ark. App. LEXIS 358 (May 22, 2013).

Defendant left his cell phone in a stolen van used in a bank robbery. The search of the cell phone was under the automobile exception, but it was sanitized by a search warrant to look for information about an accomplice. That was an independent source. The accomplice information surfaced months later, and the SW was sought a week later. United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013).*

The officer was legitimately concerned there was a weapon in the car because of the passenger’s furtive movements as the vehicle was pulled over. The gun was finally retrieved 15 minutes into the stop, and this was with reasonable suspicion. United States v. Forney, 2013 U.S. Dist. LEXIS 74624 (W.D. N.C. May 28, 2013).*

Permalink 11:48:50 am, by fourth, 308 words, 526 views   English (US)
Categories: General

E.D.Mich.: Govt fails to show knock-and-talk consent; "we don't need a warrant" statement credited

Officers got an anonymous tip about a marijuana grow, and several came to defendant’s house to talk to him. He asked if they had a warrant, and “According to Schultz, Officer Wetzel said 'that they didn't need one,'” and the court credits that testimony. The government failed to show voluntary consent. United States v. Schultz, 2013 U.S. Dist. LEXIS 75049 (E.D. Mich. May 29, 2013):

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Permalink 11:39:36 am, by fourth, 159 words, 512 views   English (US)
Categories: General

D.Me.: IRS agent didn't violate REP traveling up taxpayer's drive to house past “no trespassing” sign

Defendant owed taxes for a decade, and the IRS came to his house to look for assets. Traveling up his private road the IRS agent saw a forklift which he wanted to seize for taxes. The government agent’s traveling up the road, even past “no trespassing” signs, did not violate any reasonable expectation of privacy. United States v. Doyon, 2013 U.S. Dist. LEXIS 74956 (D. Me. May 29, 2013):

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05/30/13

Permalink 06:55:32 pm, by fourth, 355 words, 729 views   English (US)
Categories: General

CA11: Florida state employee drug testing case: injunction overbroad, but state can't win outright; remanded

In the Florida state employees drug testing case, both sides lose on appeal. The case is remanded for more factfinding to narrow the injunction which included firearms-carrying employees, too. The state sought summary judgment that the testing was constitutional, and it loses because suspicionless drug testing of the rest is unconstitutional. The problem is the lack of a good record. American Federation of State, County and Municipal Employees Council 79 v. Scott, 717 F.3d 851 (11th Cir. 2013):

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Permalink 03:48:00 pm, by fourth, 1240 words, 923 views   English (US)
Categories: General

CA4: Defendant who claimed a truck full of cocaine didn't prove standing to challenge its search

A car was being shipped across the country on a truck, and an officer became suspicions of it and asked the truck driver about it. The paperwork was in the name of Castenada. The officer attempted to call Castenada at the numbers in the paperwork, and nobody knew him. The officer then asked the truck driver for permission to search the car, and, with a fiberoptic scope he found packages floating in the gas tank. One thing led to another, and defendant was arrested for 23 kgs of cocaine in the gas tank. He filed a motion to suppress but didn’t testify, and the district court held he never met his burden on “standing” to show that he was using a fictitious name or whatever. On appeal, the holding he didn’t have standing was affirmed. United States v. Castellanos, 716 F.3d 828 (4th Cir. May 29, 2013) (citing treatise in dissent n.17):

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Permalink 11:59:52 am, by fourth, 149 words, 573 views   English (US)
Categories: General

thewhir.com: The Fixation on Warrantless Data Seizures Makes Prevention of Crime Harder

Permalink 11:32:42 am, by fourth, 167 words, 483 views   English (US)
Categories: General

CA6: Changing counsel after suppression hearing not a ground to reopen the suppression hearing

Getting a new attorney who saw the suppression issue differently is not a ground to reopen the suppression hearing. Defendant may be able to show it if he alleges and attempts to show IAC in the suppression hearing. Here, defendant was found to have consented. United States v. Holland, 522 Fed. Appx. 265 (6th Cir. 2013):

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Permalink 11:22:29 am, by fourth, 96 words, 329 views   English (US)
Categories: General

Tennessee Becomes Latest State To Limit Drone Flights, Citing Fourth Amendment

MintPress: Tennessee Becomes Latest State To Limit Drone Flights, Citing Fourth Amendment:

Last week, Tennessee became the latest state to pass legislation limiting unmanned aerial drone flights in its territory. Governor Bill Haslam signed the Freedom of Unwarranted Surveillance Act into law making it the fifth state to have passed legislation restricting drone surveillance by police and federal agencies.

Citing a tally published by the American Civil Liberties Union, CBS News reports this month that legislation aimed at limiting drone flights by police departments has been proposed in 41 states and enacted into law in five states.

05/29/13

Permalink 02:19:08 pm, by fourth, 144 words, 449 views   English (US)
Categories: General

ABAJ.com: Prosecutors’ use of mobile phone tracking is ‘junk science,’ critics say

ABAJ.com: Prosecutors’ use of mobile phone tracking is ‘junk science,’ critics say by Mark Hansen:

At his trial last year on federal kidnapping and conspiracy charges, prosecutors sought to introduce cell tower evidence purporting to show that calls placed from defendant Antonio Evans’ cellphone could have come from his aunt’s house, where the victim was thought to have been held for ransom.

That’s not unusual. Hardly a day goes by when some prosecutor doesn’t go to court armed with cell tower evidence he or she claims places a defendant in the vicinity of a crime the defendant is accused of committing.

What made the Evans case unusual was the fact that the defense even put up a fight to keep the cell tower evidence out of the trial. Evans’ lawyers said the technique has not been shown to be scientific.

05/28/13

Permalink 11:14:58 am, by fourth, 237 words, 905 views   English (US)
Categories: General

FL2: Holding DL too long made consent invalid; defendant should have been free to leave

Defendant went to a convenience store and was walking home. There were no sidewalks, so she was walking on the grass. She said 6' from the road, the officer said 10'-15'. He could see from her license that she was 15 doors from home. He ran a wants and warrants check and it came up clean. Two other patrol cars arrived by that time. He held her license and asked for consent, and it was invalid consent. The stop should have ended. Horne v. State, 113 So. 3d 158 (Fla. 2d DCA 2013):

=> Read more!

Permalink 08:04:59 am, by fourth, 491 words, 586 views   English (US)
Categories: General

NM: SW for "all persons" at a rave was unreasonable without specific PC

A search warrant to search all persons at a rave party was unreasonable without probable cause as to any specific person swept up in it. State v. Light, 2013-NMCA-075, 306 P.3d 534 (2013):

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Permalink 07:52:46 am, by fourth, 188 words, 526 views   English (US)
Categories: General

KY: Officer completed stop and said "have a good night," but kept talking to passengers; became unreasonable

Defendant was stopped for a traffic offense, but it was completed and defendant was not under the influence, so he told “have a good night,” but the stop didn’t end as the officer kept talking to the passengers. That unreasonably extended the stop. Turley v. Commonwealth, 2013 Ky. LEXIS 231 (May 23, 2013):

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Permalink 12:00:05 am, by fourth, 157 words, 389 views   English (US)
Categories: General

IA: Parole search by child protective services and two police officers invalid

A child protective services official got an anonymous complaint that defendant parolee was growing marijuana in her house, so the CPS official brings along two police officers to conduct a search. The search fails every justification offered: “consent, special needs, exigent circumstances, community caretaking, or a general balancing of the governmental interests served by the search against the privacy interest of the parolee.” The search violated the state constitution. Also, this was not a true parole search. State v. Kern, 2013 Iowa Sup. LEXIS 61 (May 24, 2013).

Ferrier warnings of a right to refuse a search of the home applied to searches where the police were looking for another person in the home and lacked reasonable suspicion he was there. State v. Westvang, 174 Wn. App. 913, 301 P.3d 64 (2013) (decided under state constitution).*

Defendant was found to have voluntarily consented to a search of the premises after having been Mirandized. United States v. Jeronimo-Rodas, 2013 U.S. Dist. LEXIS 72970 (D.S.C. May 23, 2013).*

05/27/13

Permalink 01:00:00 am, by fourth, 64 words, 403 views   English (US)
Categories: General

D.D.C.: All papers with minor redactions of an email SW posted

The entirety of papers for a search warrant for a Yahoo! email account appeared on Lexis yesterday along with an order unsealing in substantial part: Application for Search Warrant for Email Account [Name Redacted by the Court] Maintained on Computer Servers Operated by Yahoo! Headquartered at 701 First Ave., Sunnyvale, CA, 2013 U.S. Dist. LEXIS 73968 (D.D.C. May 22, 2013) (not yet available on court's website).

Permalink 12:24:50 am, by fourth, 57 words, 422 views   English (US)
Categories: General

NYTimes.com: Showdown at the Airport Body Scanner

NYTimes.com: Showdown at the Airport Body Scanner by Nathaniel Rich:

I have never walked through an airport body scanner — or, as I think of it, “the cancer machine.” In the years since these radiation chambers began appearing in airports across the United States, I have developed a variety of tricks to avoid submitting myself to them.

Permalink 12:12:09 am, by fourth, 391 words, 575 views   English (US)
Categories: General

S.D.N.Y. Insufficient RS shown to justify stop for driving in tandem

Reasonable suspicion can support a stop for driving in tandem, but here it was lacking. United States v. Espino-Urvan, 2013 U.S. Dist. LEXIS 73809 (S.D. N.Y. May 21, 2013):

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Permalink 12:01:03 am, by fourth, 119 words, 291 views   English (US)
Categories: General

E.D.Pa.: No standing in a bedroom rented to do a drug deal

Defendant who rented a basement bedroom from another for the purpose of conducting a drug deal didn’t have standing to contest a search of the room when he holed up there after a bank robbery. He wasn’t an overnight guest or anything like that. United States v. Edwards, 2013 U.S. Dist. LEXIS 72855 (E.D. Pa. May 23, 2013).*

Defendant was an internet traveler who came to town to meet up with a fictitious 13 year old girl, and that was reasonable suspicion for the stop. State v. Vanorsdel, 2013 Mo. App. LEXIS 630 (Mo. App. May 23, 2013).*

There was a basis for plaintiff’s arrest, so his false arrest case fails. Flowers v. City of Diboll, 2013 Tex. App. LEXIS 6350 (Tex. App. – Tyler May 22, 2013).*

05/26/13

Permalink 10:26:56 am, by fourth, 108 words, 449 views   English (US)
Categories: General

D.Ore.: Privileged information in SW application must be disregarded under F.R.E. 1101

Privileged information in a search warrant application must be disregarded under F.R.E. 1101. And here, after a Franks hearing, the motion to suppress is denied. “The Court attributes any differences in the witnesses' testimony to the passage of time and the fallibility of memory.” United States v. Carlson, 946 F. Supp. 2d 1115 (D. Ore. 2013):

[T]he Court reads Federal Rule of Evidence 1101 as directing judicial officers, including magistrate judges, to identify and disregard privileged information when reviewing warrant applications. For judicial officers, including magistrate judges, to follow this instruction, however, law enforcement officers must not withhold material information from the judicial officer regarding a privileged source of evidence.

Permalink 09:57:36 am, by fourth, 363 words, 577 views   English (US)
Categories: General

E.D.La.: Lack of funding doesn't justify NOPD's violating rights of citizens

Motion for stay of order to get out the NOPD consent decree pending appeal denied. The City of New Orleans on behalf of the NOPD entered into a consent decree with USDOJ over “(1) the use of force; (2) investigatory stops and detentions, searches, and arrests; (3) custodial interrogations; (4) photographic lineups; (5) bias-free policing; (6) community engagement; (7) recruitment; (8) training; (9) officer assistance and support; (10) performance evaluations and promotions; (11) supervision; (12) the secondary employment system, also known as the paid detail system; (13) misconduct complaint intake, investigation, and adjudication; and (14) transparency and oversight.” It wants out but can’t do anything for lack of money, and lack of funding doesn’t justify violations of constitutional rights. United States v. City of New Orleans, 2013 U.S. Dist. LEXIS 73863 (E.D. La. May 24, 2013)*:

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Permalink 12:03:29 am, by fourth, 207 words, 337 views   English (US)
Categories: General

D.Neb.: Voluntarily returning home supported finding of consent

Defendant who voluntarily returned to his home in his own car voluntarily consented to a search of the house. United States v. Rodas, 2013 U.S. Dist. LEXIS 72970 (D.S.C. May 23, 2013).*

Officers learned of file sharing of child pornography at a particular IP address. Sharing the wireless router was someone not living in that house. There was no CP in the house. The car next door was registered to a person with the same first name as on the other computers accessing the router. They did a knock-and-talk and let him go to work and got a SW for the house. United States v. Keiter, 2013 U.S. Dist. LEXIS 73233 (D.Neb. April 29, 2013).*

Defendant’s claim of a lack of particularity in the search warrant was not timely made before trial so it is waived. United States v. Kaplan, 526 Fed. Appx. 208 (3d Cir. 2013).*

Defendant was handcuffed and going to be searched, and the officer asked him if he had anything on him that would stab the officer. He said he had a gun. That was not a custodial interrogation designed to elicit an incriminating response about a gun. [Besides, the frisk was going to occur anyway.] United States v. Nagy, 2013 U.S. Dist. LEXIS 73197 (N.D. Ohio May 23, 2013).*

05/25/13

Permalink 04:25:01 pm, by fourth, 64 words, 370 views   English (US)
Categories: General

S.1037: "A bill to ensure adequate protection of the rights under the Fourth Amendment" is presently MIA (Updated with link)

Sen. Rand Paul's bill to ensure adequate protection of the rights under the Fourth Amendment to the Constitution of the United States is not available on the Library of Congress website, perhaps until Tuesday.

A lot of hype in the news and press releases. Too bad they're keeping it from us until they want us to see it.

UPDATE: eff.org has it here.

Permalink 01:43:33 pm, by fourth, 252 words, 281 views   English (US)
Categories: General

D.Utah: No Franks hearing where no specific falsities mentioned

“The Court finds that Defendant has not met his burden and is not entitled to a Franks hearing. As an initial matter, Defendant does not point to specific portions of the affidavit that he claims to be false. However, Defendant does take issue with certain statements in the affidavit, which the Court will discuss.” United States v. Pentz, 2013 U.S. Dist. LEXIS 72640 (D. Utah May 21, 2013).*

The officer here had plenty of reasonable suspicion that defendant was involved in drug dealing based on experience and a four-year snitch. He saw a hand labeled package at FedEx that strongly suggested to him based on experience that it contained drugs. United States v. Beverly, 2013 U.S. Dist. LEXIS 72634 (W.D. Ky. April 15, 2013).*

Defendant was taken down in an illegal arrest, and then the gun on him was found. This is not a situation where there is a new crime before the arrest. There was no reasonable suspicion for the initial patdown. United States v. Evans, 947 F. Supp. 2d 895 (E.D. Tenn. May 22, 2013).*

The court finds credible the testimony of the officers that defendant consented to an entry and search of his apartment. United States v. Paulino, 2013 U.S. Dist. LEXIS 71978 (S.D. N.Y. May 21, 2013).*

The body armor and gun in defendant’s car was lawfully seized because the stop was with probable cause defendant was speeding, driving on the wrong side of the road, running a red light, and evading an officer trying to stop him. United States v. Bogle, 717 F.3d 281 (2d Cir. 2013).*

Permalink 01:21:58 pm, by fourth, 85 words, 303 views   English (US)
Categories: General

Politico.com: Report: Obama admin. fought to keep Rosen warrant secret

Politico.com: Report: Obama admin. fought to keep Rosen warrant secret by Dylan Byers:

Yet another development today in the case of James Rosen, the Fox News reporter who was monitored by the Justice Dept. after receiving classified information from a State Department security adviser.

According to The New Yorker's Ryan Lizza, the Obama administration fought to keep the search warrant for Rosen’s private e-mail account secret on the grounds that they might need to monitor the account for a long period of time.

Permalink 10:43:20 am, by fourth, 223 words, 462 views   English (US)
Categories: General

W.D.Ark.: IP address led to SW that came up empty, so police did knock-and-talk with the neighbors

A child pornography investigation led officers to a house with the IP address, but the search came up empty. There was a wireless router there, so the police went to neighbor’s houses to do a knock-and-talk for child porn. One of the neighbors admitted that she and her husband used the wireless. They saw him driving nearby and stopped him, knowing there was a warrant for his arrest for something else. He consented to a search of the computer which was in his truck. United States v. Harper, 2013 U.S. Dist. LEXIS 71729 (W.D. Ark. April 4, 2013).*

Defendant was not entitled to withdraw her plea for ineffective assistance of counsel for defense counsel not filing a motion to suppress. First, it was in her interest for a better plea deal to not pursue a motion to suppress and she agreed to it. Second, the motion would fail on the merits. State v. Dorado, 2013 Tenn. Crim. App. LEXIS 419 (May 17, 2013).*

Defendant’s stop was lawful and not unreasonably extended. He had no DL on him, and the fact the officer was really investigating drugs was not material because it was otherwise reasonable. State v. Hughes-Mabry, 2013 Tenn. Crim. App. LEXIS 420 (May 16, 2013).*

Trial court’s finding of consent was supported by the evidence. Tucker v. State, 405 S.W.3d 182 (Tex. App. – San Antonio 2013)* (dissenting opinion filed May 29).

Permalink 10:36:10 am, by fourth, 29 words, 288 views   English (US)
Categories: General

WPIX: Cops claim cell phones recording them are deadly weapons to seize them

WPIX: Cops claim cell phones recording them are deadly weapons to seize them (video) (this video is from NJ, but it claims similar occurrences in FL, CA, and AR)

Permalink 10:30:57 am, by fourth, 138 words, 345 views   English (US)
Categories: General

HuffPo: Arizona Sheriff Joe Arpaio Racially Profiled Latinos, Federal Judge Rules

HuffPo: Arizona Sheriff Joe Arpaio Racially Profiled Latinos, Federal Judge Rules:

PHOENIX, May 24 (Reuters) - Arizona lawman Joe Arpaio violated the constitutional rights of Latino drivers in his crackdown on illegal immigration, a federal judge found on Friday, and ordered him to stop using race as a factor in law enforcement decisions.

The ruling against the Maricopa County sheriff came in response to a class-action lawsuit brought by Hispanic drivers that tested whether police can target illegal immigrants without racially profiling U.S. citizens and legal residents of Hispanic origin.

U.S. District Court Judge Murray Snow ruled that the sheriff's policies violated the drivers' constitutional rights and ordered Arpaio's office to cease using race or ancestry as a grounds to stop, detain or hold occupants of vehicles - some of them in crime sweeps dubbed "saturation patrols."

Permalink 10:22:38 am, by fourth, 287 words, 574 views   English (US)
Categories: General

D.Md.: Govt's generalized assertions for continued secrecy of SW affidavit not enough

A two-year-old order just released, the District of Maryland holds that the government’s generalized assertions of needs for secrecy of search warrant materials were insufficient. The investigation seemed over, and the target has a right to know why the government seized his stuff. The government has to provide a redacted affidavit now. In re 14416 Coral Gables Way, 946 F. Supp. 2d 414 (D.Md. 2011):

=> Read more!

Permalink 08:37:51 am, by fourth, 150 words, 249 views   English (US)
Categories: General

OH5: It was "immediately apparent" padded case was for drug paraphernalia for plain view

A padded case was immediately apparent to be a carrier for drug paraphernalia when it fell out of defendant’s glove compartment when he was retrieving his registration. State v. Furniss, 2013 Ohio 2064, 2013 Ohio App. LEXIS 1961 (5th Dist. May 13, 2013).

While the officer had information about defendant’s vehicle from earlier in the day, the apparently impaired driving was the basis for the stop. Hymes v. State, 2013 Miss. App. LEXIS 272 (May 21, 2013).*

Defendant passenger in a vehicle was not improperly seized by the officer’s asking the driver for consent, thereby allegedly extending the stop. State v. Ross, 256 Ore. App. 746, 304 P.3d 759 (2013).*

The police were in defendant’s apartment by consent to talk to him and get “his side of the story” about a domestic abuse involving assaulting and handcuffing his girlfriend when he admitted to having handcuffs. This admission was not during an illegal entry. State v. Harrison, 66 A.3d 432 (R.I. 2013).*

05/24/13

Permalink 01:18:56 pm, by fourth, 72 words, 360 views   English (US)
Categories: General

The Hill.com: Paul offers bill to protect privacy of electronic communications

The Hill.com: Paul offers bill to protect privacy of electronic communications by Ramsey Cox:

Sen. Rand Paul (R-Ky.) introduced a bill Thursday that would extend Fourth Amendment rights to electronic communications.

“In today’s high-tech world, we must ensure that all forms of communication are protected,” Paul said. “Yet government has eroded protecting the Fourth Amendment over the past few decades, especially when applied to electronic communications and third party providers.”

Permalink 12:08:16 pm, by fourth, 203 words, 405 views   English (US)
Categories: General

HuffPo: 'Flash-Bang' Searches

HuffPo: 'Flash-Bang' Searches by Bennett L. Gershman:

It's one thing for the U.S. military to raid a compound in Kabul using incendiary grenades to secure and enter the premises. It's quite another thing for U.S. police officers to execute a search warrant by throwing "flash-bang" grenades into a home, raining the place with rubber bullets, and kicking down every door in the house. Is that conduct necessary? Is it reasonable? Does the Fourth Amendment allow it?

That's exactly what happened when police in Portland, Ore., executed a search warrant for a private home where the defendant resided and who was alleged to have physically attacked his girlfriend, and was reported to possess weapons and drugs. The police were informed that several other persons lived in the house, including an infant, and a prison associate of defendant's. The police decided, although the reasons are not clear, that it would be more risky to arrest the defendant outside the house than inside, so they obtained a search warrant and executed it at 5:30 a.m.

Forty-four police officers participated in the raid. Police pounded on the front door yelling "police, search warrant," and a second later broke down the door with a battering ram. ...

Permalink 11:39:58 am, by fourth, 806 words, 735 views   English (US)
Categories: General

FL1: Police entry to the yard to peer in home's windows violated the Fourth Amendment

“Our state and federal constitutions declare that homes—whether castles or cabins, mansions or mobile homes—are protected spaces that require a warrant or other lawful basis to justify a governmental intrusion. At issue in this case is whether police officers entering the property of Russell Powell and Benjamin Wilbourn and peering into a window of their mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment. Because the officers intruded into a constitutionally protected area without a warrant and peered into a window from a part of the property where they had no lawful right to be, an unconstitutional search occurred.” Powell v. State, 2013 Fla. App. LEXIS 8166 (Fla. 1st DCA May 22, 2013):

=> Read more!

Permalink 11:22:31 am, by fourth, 132 words, 305 views   English (US)
Categories: General

NJ: Plain view of firearms cases in car is PC there are firearms there

Plain view of two firearms cases in the backseat is probable cause to believe the defendant is in possession of firearms. State v. Reininger, 2013 N.J. Super. LEXIS 73, 65 A.3d 865 (2013).*

Defendant’s stop was valid based on a hit on license plate recognition software. Hill v. State, 321 Ga. App. 817, 743 S.E.2d 489 (2013).*

The stop here was reasonably extended because the vehicle had Virginia LPN and the driver had an Illinois DL along with the driver’s inconsistencies. Calcaterra v. State, 321 Ga. App. 874, 743 S.E.2d 534 (2013).*

An officer can engage in “small talk” with a motorist while the DL and LPN are checked on computer. Here, defendant’s escalating nervousness extended the stop because he made the officer concerned that he would do something bad. Moore v. State, 321 Ga. App. 813, 743 S.E.2d 486 (2013).*

Permalink 11:11:39 am, by fourth, 161 words, 296 views   English (US)
Categories: General

CA11: Impoundment proper where owner of vehicle was in question

The claim of inventory fails because of possible standing. The vehicle was impounded because it could not be determined who the owner was, and defendant had three names he was using. United States v. Akinlade, 519 Fed. Appx. 529 (11th Cir. 2013).*

Defendant validly consented to a search of his house. A consent is not involuntary just because the police tell the defendant that they will get a search warrant if he doesn’t consent when they have probable cause. United States v. Aguilar, 519 Fed. Appx. 541 (11th Cir. 2013).*

Defendant consented to a search of his truck [with no more findings of fact]. United States v. Molina, 2013 U.S. Dist. LEXIS 72160 (W.D. Tex. May 22, 2013).*

In this anticipatory search warrant case, the package of drugs was on a “sure course” to defendant’s hands [as used in pre-Grubbs] cases, and the triggering event was specified in the warrant, so the search is valid. United States v. Barnett, 2013 U.S. Dist. LEXIS 72365 (E.D. Mich. May 22, 2013).*

05/23/13

Permalink 12:44:22 pm, by fourth, 224 words, 763 views   English (US)
Categories: General

New law review article: Maryland v. King: The Fourth Amendment Spirals down the Double Helix

Permalink 12:06:00 pm, by fourth, 137 words, 579 views   English (US)
Categories: General

BLT: Judge Says [Search Warrant] Filing Errors May Prompt Review of 'Hundreds' of Cases

Permalink 07:21:54 am, by fourth, 111 words, 293 views   English (US)
Categories: General

D.Nev.: Reliance on telephonic search warrant was in good faith

Reliance on a telephonic search warrant looking for evidence of a mugging by defendant was objectively reasonable and would not be suppressed. United States v. Davis, 2013 U.S. Dist. LEXIS 71696 (D. Nev. April 23, 2013).*

Knowledge of a warrant out for defendant is justification for a stop. United States v. Harper, 2013 U.S. Dist. LEXIS 71727 (W.D. Ark. May 21, 2013),* R&R 2013 U.S. Dist. LEXIS 71729 (W.D. Ark. April 4, 2013).*

Defendant’s coerced consent claim fails. United States v. Brown, 2013 U.S. Dist. LEXIS 71336 (S.D. Ga. April 16, 2013).*

Defendant had no standing in what was described as an unlivable crack house. United States v. Anderson, 2013 U.S. Dist. LEXIS 72144 (E.D. Tex. May 10, 2013).*

Permalink 07:10:59 am, by fourth, 1402 words, 1099 views   English (US)
Categories: General

S.D.N.Y.: White collar records warrant failed particularity and good faith

Particularity and overbreadth in white collar crime: a rare granting of suppression in a no-fault insurance scheme search warrant. The particularity requirement protects important values. The good faith exception does not apply here. United States v. Zemlyansky, 2013 U.S. Dist. LEXIS 71818 (S.D.N.Y. May 20, 2013) (Oetken, J.):

=> Read more!

05/22/13

Permalink 08:50:14 am, by fourth, 149 words, 451 views   English (US)
Categories: General

SCOTUS cert grant on scope of Randolph and continuing objections to consent

The Supreme Court granted cert Monday in Fernandez v. California. Issue:

Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.

Opinion below: People v. Fernandez, 208 Cal.App.4th 100, 145 Cal.Rptr.3d 51 (2d Dist. 2012), posted here as Cal.2: Police can remove defendant and ask for consent from co-tenant; rejecting 9th Cir. authority.

For what it is worth, this is on the petition of the citizen accused which suggests, but does not guarantee, a reversal. After all, can the police really just circumvent Randolph by removing the objector then asking around for consent until they find an unaware third party to ask? Come on...

Permalink 08:30:01 am, by fourth, 189 words, 599 views   English (US)
Categories: General

Forbes: Once Reserved For Drug Crimes, Wiretapping Takes Center Stage in White Collar Prosecutions

Forbes: Once Reserved For Drug Crimes, Wiretapping Takes Center Stage in White Collar Prosecutions:

“Today, tomorrow, next week, the week after, privileged Wall Street insiders who are considering breaking the law will have to ask themselves one important question: Is law enforcement listening?”
- Preet Bharara, U.S. Attorney for Southern District of New York

=> Read more!

Permalink 08:09:44 am, by fourth, 232 words, 401 views   English (US)
Categories: General

LA: Where a search incident was legal, pulling up sagging pants was, too

Police saw defendant on a bicycle talking to somebody in a dark SUV. When they stopped, the SUV left, other people scattered, and defendant pedaled away. He was stopped because riding his bicycle on the sidewalk violated city code. His sagging pants were pulled up for a search incident, and a baggie of marijuana was revealed stuck in his sock. Pulling up his pants was legal. State v. Butler, 117 So. 3d 87 (La. 2013).* [As a cop testified here: "When I see sagging pants, I can't tell whether he's holding up his pants, holding a gun, or holding his groin. It was a high crime area, so I thought gun."]

The search warrant affidavit here did in fact show a sufficient connection to defendant and a robbery murder for there to be probable cause. The victim’s blood on his sock was admissible. Commonwealth v. Almonte, 465 Mass. 224, 988 N.E.2d 415 (2013).*

Defendant was standing next to his car with the door open into traffic with a 40 oz bottle in his hand. An unmarked car stopped. The officer had at least PC that defendant had an open container. When he saw it was the police, he made a furtive movement to his waist suggesting a gun. The office moved toward him, and he attempted to flee, getting only three steps before being tackled. His attempted frisk was valid. United States v. Terry, 518 Fed. Appx. 125 (3d Cir. 2013).*

Permalink 07:53:08 am, by fourth, 171 words, 339 views   English (US)
Categories: General

CO: Hiding inside and not answering the door is not refusing consent; wife then consented

“Respondent Kim Maurice Fuerst’s decision to silently remain behind a locked door inside his home did not constitute an express refusal of consent to a police search. Therefore, Fuerst’s wife’s free and voluntary consent to the search of the couple's home was valid as to Fuerst.” People v. Fuerst, 2013 CO 28, 302 P.3d 253 (2013).

Defendant’s girlfriend was a cousin of a police officer investigating defendant, and she freely and voluntarily consented to search of her place finding stuff to use against defendant. State v. Blevins, 2013 W. Va. LEXIS 503 (May 20, 2013).*

The credibility on consent goes to the officers stopping defendant because the stop was based on a burned out brake light, something disprovable by a cell phone picture that anybody could take (but nobody did). If they wanted to come up with a bogus reason for the stop, it would have been something not provable at all, like crossing the centerline or not coming to a complete stop. United States v. Kelley, 2013 U.S. Dist. LEXIS 71785 (E.D. Ark. May 21, 2013).*

Permalink 06:57:52 am, by fourth, 126 words, 336 views   English (US)
Categories: General

D.Colo.: Just being drunk and disoriented didn't justify frisk for weapons

Defendant was reported to the police as “suspicious and disoriented.” When they found him, he was intoxicated. There was nothing to suggest he was dangerous. “[T]he information the Officers possessed about Defendant did not indicate that he was armed and dangerous.” The frisk could not be justified by that. The officers felt, however, that defendant was a danger to himself or others, and the court finds probable cause for a frisk before taking him“into protective custody under Colorado's Emergency Commitment statute.” United States v. Gilmore, 945 F. Supp. 2d 1211 (D. Colo. 2013).*

Co-defendant passenger had standing to challenge the stop (which was valid) but not the search of the vehicle owned and driven by another. United States v. Desjardin, 2013 U.S. Dist. LEXIS 70770 (D. Nev. May 17, 2013).*

05/21/13

Permalink 03:55:09 pm, by fourth, 61 words, 332 views   English (US)
Categories: General

ABAJ.com: Feds secretly got warrant for Fox reporter’s email, claimed news-gathering was likely a crime

ABAJ.com: Feds secretly got warrant for Fox reporter’s email, claimed news-gathering was likely a crime by Martha Neil:

News that federal authorities had apparently looked at the personal email of the chief Washington correspondent for Fox News under a search warrant secretly obtained in a criminal investigation of his 2009 news-gathering activities elicited outrage Monday from media organizations and others,

Permalink 03:52:25 pm, by fourth, 101 words, 331 views   English (US)
Categories: General

NYTimes: Judge Criticizes ‘High Error Rate’ of New York Police Stops

NYTimes: Judge Criticizes ‘High Error Rate’ of New York Police Stops by Joseph Goldstein:

After listening to two months of testimony on the New York Police Department’s stop-and-frisk practices, Judge Shira A. Scheindlin left little doubt about her views of their effectiveness in helping detect criminal behavior.

“A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun,” Judge Scheindlin, of Federal District Court in Manhattan, said on Monday during closing arguments in the trial. “So the point is: the suspicion turns out to be wrong in most of the cases.”

05/20/13

Permalink 05:15:38 pm, by fourth, 92 words, 603 views   English (US)
Categories: General

Michigan Lawyers Weekly: Class action certified for tax debtors’ Fourth Amendment claims against state treasury

Michigan Lawyers Weekly: Class action certified for tax debtors’ Fourth Amendment claims against state treasury by Ed Wesoloski

A restaurateur who was trying to work out his tax problems with the Michigan Department of Treasury is the lead plaintiff in a class action suit that alleges treasury agents routinely searched premises and seized assets without judicially authorized warrants.

. . .

Miri alleges that from Dec. 1, 2008 to Dec. 1, 2011, the treasury department violated the Fourth Amendment in 162 instances where agents made nonconsensual searches and seizures under the authority of warrants issued and executed without judicial authority.

Permalink 10:41:23 am, by fourth, 57 words, 401 views   English (US)
Categories: General

NYTimes Editorial: Eavesdropping on Internet Communications

NYTimes Editorial: Eavesdropping on Internet Communications:

The Federal Bureau of Investigation has a new plan to intercept Internet messages, calls and video chats. Instead of requiring companies like Skype and Google to build surveillance capabilities into their services as it suggested in 2010, the F.B.I. now proposes fining companies that fail to comply with court-ordered wiretaps.

Permalink 08:07:33 am, by fourth, 137 words, 353 views   English (US)
Categories: General

NE: Search of student's truck across the street and off school grounds was unreasonable

The juvenile left the school grounds and went to his truck across the street and came back to the school. He was searched when he came back on the school grounds, and nothing was found. School officials then searched his truck across the street. That search exceeded their authority, and drug paraphernalia was found. The student’s 19 day suspension was reversed (already served) and ordered purged from his record. J.P. v. Mlllard Pub. Schs, 285 Neb. 890, 830 N.W.2d 453 (2013).

Defendant’s stop was not prolonged to get consent, particularly because defendant consented within about four minutes of the stop. Powell v. State, 2013 Ark. App. 322, 2013 Ark. App. LEXIS 335 (May 15, 2013).*

The district court disbelieved that defendant effectively withdrew his consent to search his computer for child pornography. The evidence supports that. United States v. Schaefer, 519 Fed. Appx. 71 (2d Cir. 2013).*

Permalink 01:00:22 am, by fourth, 194 words, 379 views   English (US)
Categories: General

TN: Erroneous dispatch report on LPN did not nullify consent during the stop

Defendant was stopped in his blue Buick because dispatch reported the license plate belonged to a red pickup truck. That was legal cause for the stop. During the stop, the officer always had defendants’ DL in hand, and defendant consented to a search of the car. After the search, the officer learned that dispatch was mistaken, and the vehicle was lawfully registered. The consent search was still valid because the stop was valid, and the stop was not too long. State v. Elkins, 2013 Tenn. Crim. App. LEXIS 406 (May 16, 2013).

Defendant’s non-conditional plea was a waiver of the denial of the motion to suppress. United States v. Jackson, 524 Fed. Appx. 44 (4th Cir. 2013).*

There was reasonable suspicion to stop the defendant after a detailed call from a CI. When following him, he pulled over like he was trying to lose his tail. He took off again and went to an address known for drug dealing. State v. Harrison, 2013 Iowa App. LEXIS 524 (May 15, 2013).*

Defendant was stopped in front of his house, and he was roaming around freely until the officers asked him for a frisk, which he objectively agreed to. State v. Pierce, 2013 Iowa App. LEXIS 541 (May 15, 2013).*

Permalink 12:30:50 am, by fourth, 371 words, 344 views   English (US)
Categories: General

Four from OH4 5/17

Defendant’s car was parked “oddly” and an officer stopped to probably issue a parking ticket. When he got up to the car, he found people in it. Talking to two girls, he found they were out in violation of curfew, and he ordered them out of the car. A gun was revealed and defendant was charged with it. The situation escalated to probable cause. State v. Choice, 2013 Ohio 2013, 2013 Ohio App. LEXIS 1915 (2d Dist. May 17, 2013).*

A report of occupants of a car asleep on the median of I-75 brought a police officer. Just before he got there, the car was reported to have moved on, so he went looking for them to see if they were under the influence of something, considering the unusual place they were stopped. When they found the car stopped again, one of the occupants was reaching down, and they feared a gun. A passenger was concealing his hands, too. “Once the officers drew their weapons and ordered Cook to show his hands, an investigative stop had occurred.” Defendant was handcuffed and put in the backseat of the police car. There, his feet wouldn’t stop moving. The officer got him out and searched his feet finding drugs in his sock. The search of the sock was valid. State v. Cook, 2013 Ohio 2014, 2013 Ohio App. LEXIS 1913 (2d Dist. May 17, 2013).*

Police were called to an assault, and they were told that an orange Avalanche truck had left the seen with the assailant. An officer on the way saw an orange Avalanche truck coming from that direction. What are the odds of two such trucks at that hour? Also he couldn’t be sure the truck stopped at an intersection. There was reasonable suspicion for the stop. State v. Johnson, 2013 Ohio 2017, 2013 Ohio App. LEXIS 1918 (2d Dist. May 17, 2013).*

During his stop, defendant first reached for his waistband and refused to put his hands on the wheel and he was ordered out of the car. Once out, he stiffened up and turned sideways. The officer feared a weapon and frisked him feeling gelcaps, which he “100% believed” contained heroin, so it was “immediately apparent” to him for plain feel purposes defendant had drugs. State v. Price, 2013 Ohio 2020, 2013 Ohio App. LEXIS 1920 (2d Dist. May 17, 2013).*

Permalink 12:00:41 am, by fourth, 386 words, 566 views   English (US)
Categories: General

CA10: Def's subjective belief of officers' tribal authority irrelevant to objective facts of consent

Defendant was an American Indian, and he thought that the tribal governor had authorized the police to investigate his killing of eagles. His subjective belief as to the officers’ actions was not relevant to the Fourth Amendment inquiry as to what the officers believed from the objective facts. [So, boiled down to its essence: this is an example of a good faith warrantless search.] United States v. Aguilar, 527 Fed. Appx. 808 (10th Cir. 2013):

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05/19/13

Permalink 09:34:48 am, by fourth, 290 words, 17357 views   English (US)
Categories: General

AR: Prior false alert rate of 14% of drug dog did not undermine the PC

The question of reliability of the drug dog was for the trial court, and the court decided that past false alerts did not undermine the probable cause. Jackson v. State, 2013 Ark. 201, 2013 Ark. LEXIS 243 (May 16, 2013):

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Permalink 07:14:48 am, by fourth, 169 words, 392 views   English (US)
Categories: General

LA4: SW for gun permits search of duffle bag in house

A search warrant for firearms and its accessories permitted a search of a duffle bag. State v. Bentley, 116 So. 3d 891 (La. App. 4 Cir. 2013).*

Defendant was on a bicycle and committed a misdemeanor offense for which he was arrested. His search incident to that arrest was valid. The state’s alternative argument was not made in the trial court, so it is rejected as waived. State v. Butler, 2013 La. LEXIS 1147 (La. May 17, 2013).*

The smell of marijuana coming from defendant’s car justified handcuffing him without escalating the stop into an arrest. “ To show that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, the State must show some fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing the law enforcement officers, the public, or the suspect himself to an undue risk of harm.” State v. Turner, 2013 La. App. LEXIS 980 (La. App. 5 Cir. May 16, 2013).*

Permalink 06:20:33 am, by fourth, 1024 words, 1051 views   English (US)
Categories: General

CA1 decides cell phone can't be searched incident to arrest

Invoking James Otis's concerns about "plac[ing] the liberty of every man in the hands of every petty officer," the First Circuit joins Ohio and Florida in holding a cell phone is a computer and not subject to search incident. [There is now a circuit split, too, and the issue should be taken by SCOTUS.] United States v. Wurie, 2013 U.S. App. LEXIS 9937 (1st Cir. May 17, 2013):

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05/18/13

Permalink 10:48:22 pm, by fourth, 131 words, 381 views   English (US)
Categories: General

D.S.C.: Officer's state law violation irrelevant in federal prosecution

Alleged violations of state law by the officer in making defendant’s stop and arrest are irrelevant under the Fourth Amendment when the case is brought in federal court. The sole question is Fourth Amendment reasonableness. United States v. Riley, 2013 U.S. Dist. LEXIS 69508 (D. S.C. May 16, 2013).*

Defendant arrested at home had the house subjected to a protective sweep, and cell phones were seized in plain view. The pre-raid briefing showed that they intended to seize them if they were seen, but that does not make it invalid. Search warrants were obtained for the cell phones. United States v. Hamad, 2013 U.S. Dist. LEXIS 68920 (E.D. Mich. May 15, 2013).*

In this death penalty case, there was probable cause for issuance of defendant’s arrest warrant. Batiste v. State, 2013 Miss. LEXIS 295 (May 16, 2013).*

05/17/13

Permalink 02:51:19 pm, by fourth, 746 words, 1039 views   English (US)
Categories: General

KS: Taking a DL to run wants and warrants was unreasonable; RS needed

Holding a motorist's DL longer than necessary "to know who they're dealing with" and then running warrants for curiosity was unreasonable because it extended the stop. State v. Moralez, 297 Kan. 397, 300 P.3d 1090 (2013):

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Permalink 02:17:33 pm, by fourth, 197 words, 325 views   English (US)
Categories: General

Sen. Paul, please quit bitching and do something

One can always count on the Washington Times to get the Constitution wrong. This reports on Sen. Rand Paul, and he's wrong, too. See PAUL: A staggering abuse of power / Obama acts as though we no longer have a Constitution by Rand Paul:

From the cover-up in Benghazi to letting the Internal Revenue Service (IRS) target the Tea Party to First and Fourth Amendment violations in obtaining records from the press, Mr. Obama has shown disregard for the Bill of Rights and his responsibilities as commander in chief.

Sen. Paul: It is NOT a violation of the Fourth Amendment to subpoena records like this. Smith v. Maryland, ECPA which is at least 20 years out of date. There is no federal press shield law.

You are a U.S. Senator, for God's sake. Spare us your faux BS moral indignation and do something to create a third party privacy interest by legislation. Strike while the iron is hot, as it were.

I know, that didn't work for new gun legislation, but hey, everybody knows the only section of the Bill of Rights that Republicans care about is the Second Amendment. The rest are ancient history. Prove me wrong.

Permalink 07:57:19 am, by fourth, 756 words, 817 views   English (US)
Categories: General

D.C.Cir.: Rule 41(g) can't be used for strategic gain for possible trial

A Rule 41(g) motion for return of property that was really sought to disclose what the grand jury might be looking at. "The question is more fundamental than whether the movant seeks only to suppress evidence. The question is whether a Rule 41(g) motion is being used for strategic gain at a future hearing or trial." Here it was. Movant's preoccupation with disclosure v. return was evident. In re Sealed Case, 2013 U.S. App. LEXIS 9787 (D.C. Cir. March 5, 2013), reissued May 16, 2013):

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Permalink 07:24:39 am, by fourth, 177 words, 348 views   English (US)
Categories: General

GA: Stopping on own and police pulling in behind is not a "stop"

Defendant pulled into a hotel parking lot behind the defendant and defendant was already stopped when the officer got out to encounter him. Defendant had all the usual signs of being under the influence. Daniels v. State, 321 Ga. App. 748, 743 S.E.2d 440 (2013).*

Officers did a knock-and-talk on an apartment, and defendant let the officers in. He was acting nervous and kept putting his hands in his pockets. The officers told him to empty his pockets and he did, including drugs. This was all voluntary. State v. Reyes, 114 So. 3d 547 (La. App. 2 Cir. May 15, 2013).*

Pro se argument on appeal that the state failed to produce a consent form when that issue wasn’t addressed in the suppression motion was waived by lack of objection at the hearing. State v. Bailey, 115 So. 3d 739 (La. App. 2 Cir. 2013).*

The informant in this case was not a CI but was a citizen informant reporting a crime, naming himself, and being willing to be accountable for the report. That was entitled to more credence. State v. T.S., 114 So. 3d 343 (Fla. 3d DCA 2013).*

Permalink 07:19:23 am, by fourth, 180 words, 603 views   English (US)
Categories: General

RT USA: Cell phone users ‘have no legitimate expectation of privacy’ – judge

05/16/13

Permalink 09:04:31 pm, by fourth, 605 words, 886 views   English (US)
Categories: General

N.D.Ga.: Midnight knock-and-talk troublesome but not involuntary on totality

The nighttime (11:45pm) knock-and-talk is troublesome, but the defendants were up and the rest of the encounter shows that it was voluntary. United States v. Bearden, 2013 U.S. Dist. LEXIS 67975 (N.D. Ga. April 17, 2013):

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Permalink 08:47:34 pm, by fourth, 190 words, 465 views   English (US)
Categories: General

D.Ariz.: Defendant's refusal to tell his name or admit any link to the car he was in meant no standing

Defendant was stopped and his vehicle had the back seat removed and there were burlap fibers and marijuana stems and leaves where the seat was. He was handcuffed and refused to identify himself. He had no proof of ownership or control of the car. Bundles of marijuana were found nearby in the desert. Defendant did not show standing in the car; he put nothing on to attempt to show any link to the car. United States v. Buchanan, 2013 U.S. Dist. LEXIS 69107 (D. Ariz. May 15, 2013), R&R 2013 U.S. Dist. LEXIS 69108 (D. Ariz. March 7, 2013).

Defendant's house was searched, and a gun was found and unloaded. It was reasonable for the police to control the gun to prevent its use. When defendant’s immigration status was learned, it was a felony for him to possess the firearm, and the seizure was lawful. United States v. Menjivar, 2013 U.S. Dist. LEXIS 68661 (N.D. Ga. May 14, 2013).*

Defendant pled guilty and his PSR was prepared. Five days later he filed a motion to suppress. After his guilty plea was not timely. United States v. Montes, 2013 U.S. Dist. LEXIS 68497 (E.D. Tex. April 23, 2013).

Permalink 08:26:01 pm, by fourth, 476 words, 1123 views   English (US)
Categories: General

S.D.W.Va.: Officer entering car to roll up windows and turn on fan to aid drug dog sniff was trespass under Jones

Defendant was stopped for a traffic offense, and the officer thought it suspicious that he insisted on calling his lawyer on his cell phone. (Never before in 1,000 stops.) The officer told him not to and he did anyway. Defendant also wouldn’t look at the officer and his breathing escalated. All this added up to reasonable suspicion. By this time, bystanders were accumulating and talking to the officers. “Another individual complained that law enforcement was ‘“always bothering people”’” or words to that effect. They called in a drug dog, and that was “a moment of truth” because, if the dog alerted, a search would occur, but if it didn’t, defendant would be let go. The officer entered the car over defendant’s objection to turn on the fan and roll up the windows to make it more likely that the dog would alert, and the dog did alert. That entry violated the Fourth Amendment under Jones because it trespassed on the interior of the car. United States v. Taylor, 963 F. Supp. 2d 595 (S.D. W.Va. 2013):

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05/15/13

Permalink 07:51:43 am, by fourth, 186 words, 393 views   English (US)
Categories: General

D.Neb.: Questions about drugs during traffic stop de minimus

Defendant exited I-80 at a ruse checkpoint and failed to signal, so he was stopped. The questions about drugs were de minimus. After the stop, reasonable suspicion developed to extend the stop based on his travel plans. The ultimate consent was voluntary. United States v. Valimont, 2013 U.S. Dist. LEXIS 68322 (D. Neb. May 13, 2013):

Here, from the time of the initial stop to when Jacobsen asked for and received Valimont's consent to search, approximately 18 minutes had passed. This was not unreasonable under the circumstances. See, e.g., Bowman, 660 F.3d at 343-44. Any extension of the stop that resulted from Jacobsen's questions or statements regarding drug activity was de minimis, and did not transform the stop into an unlawful seizure. United States v. Coleman, 700 F.3d 329, 335-36 (8th Cir. 2012).

Defendant’s showing up for a drug deal after being called by a snitch who rolled on him was PC. United States v. German, 2013 U.S. Dist. LEXIS 67347 (E.D. Pa. May 9, 2013).*

Defendant’s husband invited the officers onto their property and consented to a search. United States v. Bearden, 2013 U.S. Dist. LEXIS 67487 (N.D. Ky. May 13, 2013).*

05/14/13

Permalink 03:25:47 pm, by fourth, 57 words, 599 views   English (US)
Categories: General

Hate the third-party doctrine? WaPo Blog: In AP surveillance case, the real scandal is what’s legal

WaPo Blog: In AP surveillance case, the real scandal is what’s legal by Timothy Lee:

On Monday the Associated Press reported that the Justice Department “secretly obtained two months of telephone records of reporters and editors for The Associated Press.” But here’s what’s really scary: The Justice Department’s actions are likely perfectly legal.

Permalink 08:42:38 am, by fourth, 225 words, 588 views   English (US)
Categories: General

CA6: Defendant was not in custody and validly consented by handing over keys

Defendant was stopped for an equipment violation on his way home from being a bouncer in an adult entertainment club. There had been a serious crime in the vicinity. Nine patrol cars converged, but defendant wasn’t under arrest or handcuffed and no guns were on him. He’d consented to a search of his car and nothing was found. The officer asked for consent to search the glove box, and defendant handed over the keys. That was consent, and a gun was found. Defendant was a FIPF, and the consent was valid. United States v. Thurman, 525 Fed. Appx. 401 (6th Cir. 2013):

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Permalink 08:30:15 am, by fourth, 154 words, 512 views   English (US)
Categories: General

E.D.Ky.: Failure to put car in own name showed no standing

Presented as an IAC claim, defendant had no standing to challenge the search of the car he allegedly drove to a bank burglary because he couldn’t show it was his. He claimed to have bought it 11 months earlier, but he never put it in his own name. United States v. Robinson, 2013 U.S. Dist. LEXIS 67246 (E.D. Ky. January 7, 2013):

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Permalink 08:25:43 am, by fourth, 153 words, 801 views   English (US)
Categories: General

CA6: Defendant got out of car but his actions belied his being seized

A motorist who had three police cars stop him but who got out of the car and was making moves like he was going to flee was not seized until he actually submitted to the detention when the officers put their hands on him. His own actions gave reasonable suspicion for a further detention. United States v. Logan, 526 Fed. Appx. 498 (6th Cir. 2013):

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Permalink 08:08:51 am, by fourth, 209 words, 334 views   English (US)
Categories: General

SD: When reason for stop dispelled, officer doesn't have to leave without contacting motorist

The stop was based on not being able to see the LPN, but the officer could by the time he got out of the car. While the reason for the stop was dispelled, it would be impractical to require the officer to turn on his heel and go back to his patrol car and drive away without talking to the motorist to at least tell him what’s going on. When he got to the window, he saw an open container, and within seconds developed reasonable suspicion defendant was under the influence. The trial court erred in granting the motion to suppress. State v. Amick, 2013 SD 37, 831 N.W.2d 59 (2013).

Cotenant’s third-party consent was valid. United States v. Ortiz, 2013 U.S. Dist. LEXIS 67020 (S.D.N.Y. May 8, 2013).*

The Ohio legislature dictates that a meth lab is exigent circumstances for a search. Reading that statute and others together, the court concludes a meth lab fire supports a conviction for aggravated arson. State v. Grasso, 2013 Ohio 1894, 2013 Ohio App. LEXIS 1782 (8th Dist. May 9, 2013).

Defendant was detained too far from the place of search for the arrest to be valid, but he threw his drugs away, and the abandonment supports the conviction. State v. Cruz, 2013 Ohio 1889, 2013 Ohio App. LEXIS 1774 (8th Dist. May 9, 2013).*

Permalink 07:24:49 am, by fourth, 78 words, 307 views   English (US)
Categories: General

SFBay Guardian: Here’s which tech companies won’t turn your emails over to the feds

SFBay Guardian: Here’s which tech companies won’t turn your emails over to the feds by Rebecca Bowe:

When you write a letter, seal it in an envelope, and drop it in the mail, federal law is clear that it’s a private document. No government agent can legally open it up and read it without a warrant demonstrating probable cause under the Fourth Amendment. But really, when was the last time you sent anybody a letter?

05/13/13

Permalink 09:09:42 am, by fourth, 467 words, 1199 views   English (US)
Categories: General

50th Anniversary of Brady v. Maryland

Today is the 50th Anniversary of Brady v. Maryland, 373 U.S. 83 (1963), the case with so much promise, yet so willfully ignored by police and prosecutors nationwide, and courts often let them get away with it.

NACDL Press Release:

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Permalink 05:18:08 am, by fourth, 219 words, 655 views   English (US)
Categories: General

NACDL CLE NYC May 17-18, Suppression of Evidence

NACDL CLE NYC May 17-18, Suppression of Evidence. Agenda here; faculty here. And you don't have to enroll at Georgetown law to see Orin Kerr:

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05/12/13

Permalink 01:10:50 pm, by fourth, 252 words, 376 views   English (US)
Categories: General

S.D.W.Va.: State GPS warrant valid under Fourth Amendment, state issues irrelevant

State officers obtained a GPS tracking warrant in state court on probable cause. The affidavit refers to one officer, but another officer presented it and was put under oath by the judge and the judge directed the signature line be changed. That was not a Fourth Amendment violation. It did not, as defendant claims, make the warrant “totally invalid.” The state warrant is governed by the Fourth Amendment in federal court, and this one even satisfied Rule 41(d). Also, the argument that the state trial judge was not authorized by state law to issue this tracking warrant, even if true, which is not decided, the Fourth Amendment governs, not state law. Defendant also raised the question of whether the judge existed at all, but that wasn’t seriously pursued at the suppression hearing in light of the tape recording of the ex parte hearing where the warrant was issued. United States v. Hersman, 2013 U.S. Dist. LEXIS 66746 (S.D. W.Va. May 10, 2013), reconsideration denied 2013 U.S. Dist. LEXIS 174831 (S.D. W.Va. December 12, 2013).

Defendant was stopped on reasonable suspicion while a search warrant for his place was in progress, and it was a valid stop. Whether the stop was valid or not under Michigan v. Summers was not presented to the trial court, and it’s waived. United States v. Riggins, 524 Fed. Appx. 123 (5th Cir. 2013).*

Defense counsel did, in fact, challenge the CI for the search warrant, so 2255 petitioner cannot prevail. United States v. Bourgeois, 2013 U.S. Dist. LEXIS 67128 (D. Minn. May 10, 2013).

05/11/13

Permalink 08:43:05 am, by fourth, 160 words, 419 views   English (US)
Categories: General

TX: Dog/housesitter had apparent authority to search computer after she found CP

Defendant hired a woman who stayed in his house to take care of his dog. There were no restrictions on the use of his computer, and she went into his bedroom and moved the mouse and tried to copy a song to her phone. She copied the song to the computer then tried to remove it, and she found child pornography which she reported. There were no restrictions on her use of the unpassword protected computer. It never came up. She had apparent authority as far as the police were concerned with her private search. Baird v. State, 398 S.W.3d 220 (Tex. Crim. App. 2013) (concur) (dissent).

Two trash seizures yielded drug residue, and the second confirmed the first and kept it from being stale. Common sense, contrary to the trial court’s finding of none, dictated that the mail found in the trash bin was related to the drug residue. State v. York, 404 S.W.3d 681 (Tex. App. – Ft. Worth 2013).*

Permalink 08:30:06 am, by fourth, 106 words, 333 views   English (US)
Categories: General

ME: Defendant was not seized just because an officer followed his car into a parking lot

Defendant was not seized just because an officer followed his car into a parking lot, and the trial court erred in so finding. State v. Collier, 2013 ME 44, 66 A.3d 563 (2013).

Defense counsel was not ineffective for not making a Franks challenge or not moving to suppress firearms seized during a drug raid on a warrant for drugs. He would lose on both issues, so defense counsel can’t be ineffective. Akens v. United States, 2013 U.S. Dist. LEXIS 66179 (E.D. Mo. May 9, 2013).*

Defendant didn’t show that his being a diabetic made his consent involuntary. United States v. Harrison, 2013 U.S. Dist. LEXIS 65737 (M.D. Ala. April 5, 2013).*

Permalink 08:27:17 am, by fourth, 125 words, 289 views   English (US)
Categories: General

CA8: Vehicle could be towed and not just left on a parking lot

While the officer exercised some discretion in deciding to tow and inventory the vehicle, the inventory complied with departmental procedure put in evidence at the hearing. Defendant argues that the vehicle was parked on a parking lot and could be left, but the Fourth Amendment does not require that. United States v. Arrocha, 713 F.3d 1159 (8th Cir. 2013).

After defendant’s traffic stop, reasonable suspicion developed because defendant lied about where he’d been around that night when the officer had already seen him. United States v. Hayes, 544 Fed. Appx. 361 (5th Cir. 2013).*

Defendant’s consent to a search after a traffic stop came within the ten minutes it takes to fill out the ticket. The video confirms it. United States v. Peguero, 518 Fed. Appx. 792 (11th Cir. 2013).*

05/10/13

Permalink 03:02:50 pm, by fourth, 141 words, 543 views   English (US)
Categories: General

ACLU: VIDEO: Is Law Enforcement Reading Your Email Without a Warrant?

Permalink 02:58:20 pm, by fourth, 96 words, 388 views   English (US)
Categories: General

REP in text messages before Washington S.Ct.

The Washington Supreme Court heard oral argument in a case on reasonable expectation of privacy in text messages on May 7th. IT-Lex: Text Messages Under The Fourth Amendment – The Debate Continues by IT-Lex Intern Joey Chindamo:

Is there an expectation of privacy in text messages? The Washington State Supreme Court will tomorrow hear oral arguments in two very similar cases that both asked that same question. As Courthouse News Service reported, both cases involved texting and drug deals:

Both cases involve men who were arrested after police intercepted text messages meant for an alleged heroin dealer. ...

Permalink 02:45:24 pm, by fourth, 193 words, 508 views   English (US)
Categories: General

Guardian (UK): Are all telephone calls recorded and accessible to the US government?

Guardian (UK): Are all telephone calls recorded and accessible to the US government? / A former FBI counterterrorism agent claims on CNN that this is the case by Glenn Greenwald:

=> Read more!

Permalink 06:43:56 am, by fourth, 1718 words, 1208 views   English (US)
Categories: General

D.Ariz.: Govt's use of a stingray device with a tracking warrant to locate defendant’s aircard was not unreasonable

The government’s use of a stingray device with a tracking warrant to locate defendant’s aircard was not unreasonable. United States v. Rigmaiden, 2013 U.S. Dist. LEXIS 65633 (D. Ariz. May 8, 2013), motion to reconsider denied 2013 U.S. Dist. LEXIS 121886 (D. Ariz. August 27, 2013):

=> Read more!

Permalink 06:18:29 am, by fourth, 667 words, 652 views   English (US)
Categories: General

TX: Georgia v. Randolph on the co-owner’s veto of co-occupant consent does not apply to vehicles

Georgia v. Randolph on the co-owner’s veto of co-occupant consent does not apply to vehicles. State v. Copeland, 399 S.W.3d 159 (Tex. Crim. App. 2013) (dissent):

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Permalink 06:10:16 am, by fourth, 99 words, 561 views   English (US)
Categories: General

NC: Telling a person to empty her pockets is the same as a frisk

Telling a person to empty her pockets is the same as a frisk. Here, the reasonable suspicion had dissipated by the time it happened. In re V.C.R., 2013 N.C. App. LEXIS 484 (May 7, 2013).*

There was a warrant for placing a GPS on defendant’s vehicle and it was done in his driveway near the street without trespass. State v. Harrington, 2013 Ohio 1864, 990 N.E.2d 667 (5th Dist. 2013).

Defendants were convicted of running a meth lab, and the third party consent had apparent, if not actual, authority to consent to the search. State v. Bustamonte, 2013 Tenn. Crim. App. LEXIS 384 (May 7, 2013).*

Permalink 05:57:40 am, by fourth, 106 words, 383 views   English (US)
Categories: General

CA7: Where computer played no role in sex offense, computer search condition needs justification by district court

Defendant was convicted in federal court of failure to register as a sex offender, and the special condition of searches of his computer has to be justified by the district court because computers played no role in his offense. United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013).

Defendant was arrested on probable cause and interrogated. After he gave a statement, he was brought before a judicial officer for his first appearance. The delay was short and did not violate state statute which is more onerous than the requirements of Riverside or Gerstein which were also thus not violated. State v. Caudill, 2013 N.C. App. LEXIS 476 (May 7, 2013).*

Permalink 05:44:36 am, by fourth, 133 words, 472 views   English (US)
Categories: General

AR: Def's appearance and smell at sobriety checkpoint was RS for stop, admission PC for PBT

Defendant was stopped at a sobriety checkpoint. His watery, bloodshot eyes, and smell of alcohol was reasonable suspicion. His admission he had consumed alcohol earlier was probable cause for administering a PBT and then taking him in for a BAC test. Fisher v. State, 2013 Ark. App. 301, 2013 Ark. App. LEXIS 319 (May 8, 2013).*

Officers observed defendant sell sawed off shotgun to a CI, and they got a search warrant for his garage and person. When they arrived and told him of the warrant, he volunteered where the gun was, and it was in his apartment, not the garage, and in plain view there. The search of the apartment was by his consent, and the record supports the trial court’s finding of consent, not a false claim of authority. State v. Santiago, 142 Conn. App. 582, 64 A.3d 832 (2013).*

05/09/13

Permalink 08:51:25 pm, by fourth, 120 words, 324 views   English (US)
Categories: General

ABC7 Denver: Driver gets $35K after being searched for 'pot smell,' nothing found

ABC7 Denver: Driver gets $35K after being searched for 'pot smell,' nothing found by Deb Stanley:

LOVELAND, Colo. - A man who says he was put in handcuffs for an hour because he allegedly smelled of marijuana is getting $35,000 from the city of Loveland, according to the ACLU.

David Kramer said he was stopped for a minor traffic issue on July 4, 2011.

"Kramer was held in handcuffs for more than an hour and was subjected, in violation of his Fourth Amendment rights, to a search of his body, his wallet, and his vehicle by Loveland police, who gave no justification other than a claim they smelled marijuana," according to a letter that ACLU attorneys sent to the city of Loveland.

Permalink 09:16:04 am, by fourth, 177 words, 341 views   English (US)
Categories: General

DC Cir.: Failure to renew suppression motion at trial not IAC because of no prejudice

At the suppression hearing over defendant’s statement, he conceded he wasn’t even in custody, so that made his statement problematic anyway. However, the testimony of an officer changed between the suppression hearing (spontaneous statement) and trial (in a back-and-forth conversation) and defense counsel failed to renew it. Since the thing admitted to involved an acquitted count, defendant can’t show Strickland prejudice, so no error. United States v. Branson-Scott, 714 F.3d 616 (D.C. Cir. 2013).*

Defendant was in a rented car stopped for a traffic violation, and he was “overly communicative.” The officer contacted others and found out that defendant’s prior car rentals had dog alerts for drugs but no drugs in the car. A dog alerted on this car, and defendant had white residue in his nose. At that point he was handcuffed, and it was reasonable. The stop was not extended too long. United States v. Foreste, 2013 U.S. Dist. LEXIS 64962 (D. Vt. May 7, 2013).

Driving on a suspended DL justified a search incident. State v. Smith, 2013 Ohio 1873, 2013 Ohio App. LEXIS 1753 (10th Dist. May 7, 2013).*

Permalink 07:27:18 am, by fourth, 509 words, 760 views   English (US)
Categories: General

D.N.M.: SW not required to read magnetic strip in CC fraud case

A search warrant is not required to read the magnetic strip on a credit card in a suspected credit card fraud case. There is no reasonable expectation of privacy in the information on the card because it is exposed to the credit card reader every time it is used, as the credit card holder intends. United States v. Alabi, 943 F. Supp. 2d 1201 (D. N.M. 2013) (a long, interesting, and well-written opinion; Judge Browning's opinions are all far too long, but this one is worth reading):

=> Read more!

Permalink 07:16:27 am, by fourth, 1141 words, 1228 views   English (US)
Categories: General

E.D.Mich.: Long-term cell phone tracking warrants require probable cause, but good faith applies here

Long-term cell phone tracking warrants require probable cause, but good faith applies here. “[W]hen the government requests authorization to engage in long-term, real-time tracking of an individual’s movements via his or her cell phone, the situation reaches past the law set forth in Skinner, and Fourth Amendment concerns are implicated.” The court analyzes nearly all the cases to date. United States v. Powell, 943 F. Supp. 2d 759 (E.D. Mich. 2013) (not on court's website):

=> Read more!

Permalink 06:18:58 am, by fourth, 254 words, 575 views   English (US)
Categories: General

Volokh: District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment

05/08/13

Permalink 01:37:56 pm, by fourth, 140 words, 374 views   English (US)
Categories: General

CNET: DOJ: We don't need warrants for e-mail, Facebook chats

CNET: DOJ: We don't need warrants for e-mail, Facebook chats by Declan McCullagh:

An FBI investigation manual updated last year, obtained by the ACLU, says it's possible to warrantlessly obtain Americans' e-mail "without running afoul" of the Fourth Amendment.

The U.S. Department of Justice and the FBI believe they don't need a search warrant to review Americans' e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.

Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they're not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.

Permalink 11:48:47 am, by fourth, 224 words, 652 views   English (US)
Categories: General

New law review article: Suspicionless DNA Collection from Arrestees Violates the Fourth Amendment ...

Permalink 11:39:21 am, by fourth, 67 words, 329 views   English (US)
Categories: General

NYTimes: U.S. Is Weighing Wide Overhaul of Wiretap Laws

NYTimes: U.S. Is Weighing Wide Overhaul of Wiretap Laws by Charlie Savage:

WASHINGTON — The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations.

Permalink 05:40:29 am, by fourth, 175 words, 324 views   English (US)
Categories: General

IL: Marijuana in passenger's pocket justified search of whole car

Defendant was a passenger in a car stopped for speeding. He got out of the car and started to walk away. The officer told him to stop, and he refused and kept walking. He was arrested for failing to follow the commands of the officer. When he was searched, marijuana was found in his pocket. That gave probable cause to search the whole car and more was found, and it was all lawful. People v. Brannon, 2013 IL App (2d) 111084, 990 N.E.2d 1170 (2013).*

Parole officers had sufficient cause to conduct a parole search of defendant’s place without a search warrant. The fact they had time to get one doesn’t matter because this is an exception to the warrant requirement. They had probable cause to believe that he’d be found there. United States v. Pressley, 2013 U.S. Dist. LEXIS 63841 (W.D. Wash. May 3, 2013).*

The stop was justified by speeding, and the nervousness of the occupants and their inconsistent stories was reasonable suspicion to extend the stop. State v. Sayles, 2013 Tenn. Crim. App. LEXIS 374 (May 3, 2013).*

Permalink 05:30:15 am, by fourth, 130 words, 307 views   English (US)
Categories: General

D.Ariz.: Placing GPS after Jones cert. grant not bad faith

GPS device placed after cert grant in Jones was still subject to the Davis good faith exception. United States v. Valles, 2013 U.S. Dist. LEXIS 62907 (D. Ariz. January 23, 2013),* adopted 2013 U.S. Dist. LEXIS 63732 (D. Ariz. May 1, 2013).*

Where defendant was arrested on a Wal-Mart parking lot, his car did not have to be left there. The city’s impoundment policy permitted it and was followed. The fact there was a potential motive for criminal search did not render this inventory unreasonable. United States v. Contreras, 2013 U.S. Dist. LEXIS 64431 (D. Neb. April 8, 2013).*

The lane usage statute, requiring one drive in one lane “as nearly as practicable” is inconsistent with the trial court’s findings. It does not require “absolute adherence.” The stop was unjustified. State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013).*

05/06/13

Permalink 02:01:44 pm, by fourth, 277 words, 721 views   English (US)
Categories: General

Atlantic: What the Framing of a Terror Suspect Says About GOP Attacks on Due Process

Atlantic: What the Framing of a Terror Suspect Says About GOP Attacks on Due Process by Conor Friedersdorf.

Paul Kevin Curtis was falsely accused in the ricin plot -- and the legal requirement to bring him before a judge helped set him free.

On the requirement that the government show its probable cause, which the GOP wants to end for terrorism suspects, apparently not accounting for the framed ones.

=> Read more!

Permalink 05:52:22 am, by fourth, 158 words, 294 views   English (US)
Categories: General

D.Mont.: Suspicionless searches on supervised release of convicted child porn possessor reasonable

Suspicionless searches of a convicted child pornography possessor while on supervised release is reasonable and related to the offense of conviction. The motion to modify the condition is denied. A search on supervised release is like a parole search, not a probation search. United States v. Tafelmeyer, 2013 U.S. Dist. LEXIS 63796 (D. Mont. May 3, 2013).

Defendant was seized by the officer’s partially blocking him in. The stop was based on reasonable suspicion, however, because the car was parked near others where the officer suspected vehicle break-ins. When the officer shined his flashlight in the car, he could see stereo equipment with loose wires. That was cause for a search. United States v. Williams, 525 Fed. Appx. 330 (6th Cir. 2013).*

Defendant’s consent to search a storage locker was a rational reasoned choice and was voluntary. United States v. Navarro-Gonzalez, 2013 U.S. Dist. LEXIS 63088 (W.D. N.Y. May 2, 2013), R&R 2013 U.S. Dist. LEXIS 63328 (W.D. N.Y. February 8, 2013).*

Permalink 05:40:16 am, by fourth, 176 words, 292 views   English (US)
Categories: General

M.D.Pa.: Parolee's threat on Facebook to kill a man justified parole search

Defendant parolee was suspected of threatening another man on Facebook for killing his brother, and parole officers heard that he was “next.” Parole officers went to conduct a parole search and found an assault rifle bullet on the TV stand. They applied for a search warrant. The officers had reasonable suspicion for the initial entry. United States v. Britton, 2013 U.S. Dist. LEXIS 62779 (M.D. Pa. May 2, 2013).*

Defendant was on a parking lot of an apartment complex with no trespassing signs, and officers approached to talk to him. Merely being there wasn’t shown to be a crime, but defendant fled and that gave cause to chase him. United States v. Chambers, 2012 U.S. Dist. LEXIS 187893 (D. Nev. November 21, 2012).*

The Arizona and California probation systems are legally similar, so the court applies federal cases involving California probation searches and finds this one reasonable. It was founded on reasonable suspicion, and it was not for harassment. United States v. Hankes, 2013 U.S. Dist. LEXIS 63631 (D. Ariz. May 3, 2013),* R&R 2013 U.S. Dist. LEXIS 66475 (D. Ariz. January 9, 2013).*

Permalink 05:24:25 am, by fourth, 163 words, 278 views   English (US)
Categories: General

OH10: DNA can't be taken by search incident, but inevitable discovery saves it

Defendant was arrested for gross sexual imposition for attempting sex with an infant girl. DNA was taken from him incident to his arrest. The search incident doctrine didn’t support the search, but inevitable discovery did because the police were well into the investigation and would have otherwise obtained a warrant if they didn’t already have it. State v. Cundiff, 2013 Ohio 1806, 2013 Ohio App. LEXIS 1683 (10th Dist. May 2, 2013).*

Officers were looking for a gold car suspected of being involved in a burglary where women’s purses were stolen. The car was seen parked in another motel parking lot and purses were in plain view. The plain view was valid and the police had the right to be on the parking lot. Myers v. State, 321 Ga. App. 676, 742 S.E.2d 494 (2013).*

A man staggering on the sidewalk with blood coming from his head was subject to stop either for investigative detention or rendering emergency aid. State v. Engle, 2013 Ohio 1818, 2013 Ohio App. LEXIS 1695 (2d Dist. May 3, 2013).*

05/05/13

Permalink 09:59:19 am, by fourth, 126 words, 668 views   English (US)
Categories: General

KS: Knock-and-talk with gun in hand unreasonable

Officer conducting knock-and-talk with a gun in hand acted unreasonably in blocking the door when defendant tried to shut it on seeing the gun. State v. Campbell, 297 Kan. 273, 300 P.3d 72 (2013).

Defendant came into a Wichita DUI checkpoint with bad driving and looking under the influence. He consented to a breath test, so the proffered need for a warrant and a judge on call would be unnecessary in this case. State v. Johnson, 297 Kan. 210, 301 P.3d 287 (2013).*

911 call from a mother that her daughter was being held in a mobile home against her will and had been beaten brought police. Looking through the window, the inside was in disarray. That was enough for an emergency entry. United States v. Coffelt, 2013 U.S. Dist. LEXIS 63025 (E.D. Tenn. April 2, 2013).*

Permalink 09:54:40 am, by fourth, 180 words, 493 views   English (US)
Categories: General

KS: Person on premises when SW arrived could be searched

Objective facts supported search of person found on the premises during execution of a search warrant, even though the officer did not intend to arrest him. State v. Beltran, 48 Kan. App. 2d 857, 300 P.3d 92 (2013):

=> Read more!

Permalink 09:28:50 am, by fourth, 111 words, 291 views   English (US)
Categories: General

TX4: Consent before illegal detention valid

Defendant was stopped for not having a motorcycle held down in the back of a pickup truck. Another officer believed defendant was dealing in stolen motorcycles. He consented to a search of his place for stolen motorcycles before he was placed in handcuffs and the back of a police car for safekeeping. The officers testified they always handcuff somebody going into the back of a police car. The consent was before the illegal detention. Marsh v. State, 405 S.W.3d 163 (Tex. App. – San Antonio 2013).*

White powder on defendant’s nostrils and slurred speech was reasonable suspicion. People v Boler, 2013 NY Slip Op 3126, 106 A.D.3d 1119, 964 N.Y.S.2d 688 (3d Dept. 2013).*

Permalink 09:27:04 am, by fourth, 203 words, 522 views   English (US)
Categories: General

PA: Officer's experience alone can't save a lack of PC

The evidence supporting alleged probable cause in this case was weak, and the officer’s experience doesn’t fill in the blanks of what was already weak. The search of defendant’s porch was suppressed by the trial court and affirmed. Commonwealth v. Whitlock, 2013 PA Super 105, 69 A.3d 635 (2013)*:

=> Read more!

Permalink 08:26:16 am, by fourth, 520 words, 690 views   English (US)
Categories: General

RI: Protective sweep of car valid despite handcuffing

A protective weapons search under Long is not limited like Gant where defendant not yet arrested yet handcuffed. His furtive movements, hiding his hands, loose bullets in the car, and saying he had no weapons when he had a knife was reasonable suspicion. Long permits this protective weapons search. State v. Santos, 64 A.3d 314 (R.I. 2013):

=> Read more!

05/04/13

Permalink 09:37:55 am, by fourth, 252 words, 501 views   English (US)
Categories: General

OK: Driver of rental vehicle not on contract still shown to have standing

Driver of a rented van who was not on the rental contract was still found to have a reasonable expectation of privacy in the van. State v. Bass, 2013 OK CR 7, 300 P.3d 1193 (2013):

=> Read more!

Permalink 09:05:50 am, by fourth, 203 words, 277 views   English (US)
Categories: General

GA: Three controlled buys corroborated CI

CI’s claim he bought drugs from defendant was an admission against penal interest, confirmed by three controlled buys. Reid v. State, 321 Ga. App. 653, 742 S.E.2d 166 (2013).

Officers tailed a domestic violence suspect to defendant’s house with a dog, and they told the defendant they wanted to capture him. Defendant consented to the entry. The entry was strictly limited to finding the suspect, and a plain view was sustained. State v. Dancer, 174 Wn. App. 666, 300 P.3d 475 (2013).

Officers had reasonable suspicion to take defendant into custody as a parole violator. Defendant’s argument is noted that he was a potential crime victim, not a suspect, but it was reasonable to conclude that defendant might arm himself. “His desire to search Defendant was based on his experience and recognition that parolees who are threatened with violent crimes are more likely to obtain firearms to protect themselves. In light of the agent's knowing that Defendant's brother was shot and killed two days prior, and Agent Welsh's receiving a call indicating that Defendant ‘would be next,’ it was reasonable, under the circumstances, to conclude that Defendant would likely have a firearm to protect himself.” United States v. Britton, 2013 U.S. Dist. LEXIS 62779 (M.D. Pa. May 2, 2013).*

05/03/13

Permalink 10:44:45 am, by fourth, 1285 words, 1556 views   English (US)
Categories: General

FL: Cell phone a computer and not subject to search incident

Florida holds that a cell phone cannot be searched incident to an arrest, rejecting Robinson on its facts because that involved searching a cigarette pack, not a computer. Smallwood v. State, 113 So. 3d 724 (Fla. 2013). This is the minority rule, but it is clearly correct, if Gant has any meaning at all. Opinion below: Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011).

=> Read more!

Permalink 08:15:58 am, by fourth, 152 words, 758 views   English (US)
Categories: General

FL3: Officer violated Payton by entering to arrest without an arrest warrant when defendant answered door

Officer violated Payton by entering to arrest without an arrest warrant when defendant answered the door. State v. Ojeda, 2013 Fla. App. LEXIS 6904 (Fla. 3d DCA May 1, 2013).

Omission from the affidavit for search warrant that the CI had sold drugs in the past was neither material nor necessary to the finding of probable cause for Franks purposes. United States v. Harris, 2013 U.S. Dist. LEXIS 61069 (W.D. Pa. April 29, 2013).*

Nervousness and conflicting stories justified continuing the stop with questions after warning ticket was issued. United States v. Quintero-Felix, 714 F.3d 563 (8th Cir. 2013).*

A motion to suppress something and motion in limine over other evidence. United States v. Rosberg, 2013 U.S. Dist. LEXIS 60613 (D. Neb. April 29, 2013).*

Year old information in a child pornography case was not stale. Defendant had been taking pictures of the victim for a year before stopping, too. United States v. Puskas, 2013 U.S. Dist. LEXIS 62259 (S.D. W.Va. May 1, 2013).*

Permalink 08:07:15 am, by fourth, 212 words, 485 views   English (US)
Categories: General

D.Minn.: One person saying another suspect is inside justifies a protective sweep

A protective sweep is based on reasonable suspicion, and a person who came out of the building they were looking for suspects in said that there was another inside. That’s all it takes. The defendant’s arrest outside the apartment didn’t nullify the ability to perform the protective sweep. United States v. Troy, 2013 U.S. Dist. LEXIS 62299 (D. Minn. April 11, 2013):

=> Read more!

Permalink 07:35:38 am, by fourth, 218 words, 901 views   English (US)
Categories: General

E.D.N.Y.: Geolocation data warrant for cell phone issued on PC for fleeing drug defendant

The government sought a warrant to locate a doctor on the run from arrest. There is no reasonable expectation of privacy in cell phone location data given its ubiquity and common knowledge of its existence. All the doctor had to do was turn off the phone. (The court granted the application then followed it up with an order [not yet on court’s opinion page].) In re Smartphone Geolocation Data Application, 2013 U.S. Dist. LEXIS 62605 (E.D. N.Y. May 1, 2013):

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Permalink 05:45:53 am, by fourth, 322 words, 526 views   English (US)
Categories: General

N.D.Cal.: Insufficient information for parole search of apartment; being seen there not enough

Officers’ invalid parole search of apartment attributed to defendant made the consent void. The officers had no bona fide reason to believe that the place searched was defendant’s place where he was registered with parole elsewhere. Just being seen there isn't probable cause to believe he's living there. United States v. Alexander, 2013 U.S. Dist. LEXIS 61812 (N.D. Cal. April 30, 2013):

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Permalink 05:34:10 am, by fourth, 746 words, 1114 views   English (US)
Categories: General

D.Utah: Cell phone pinging to locate violent felon with PC was with exigent circumstances

Emergency cell phone pinging to locate defendant by officers investigating a shooting did not violate the Stored Communications Act or the Fourth Amendment. Historical cell site location data treated different than emergency disclosure of present location. United States v. Takai, 943 F. Supp. 2d 1315 (D. Utah. 2013):

=> Read more!

05/02/13

Permalink 12:33:22 pm, by fourth, 115 words, 417 views   English (US)
Categories: General

BLT: Man in Landmark Supreme Court GPS Case Pleads Guilty

BLT: Man in Landmark Supreme Court GPS Case Pleads Guilty:

Facing his fourth trial, the man at the center of a landmark U.S. Supreme Court ruling on GPS tracking pled guilty today to a drug conspiracy charge and was sentenced to serve 15 years in prison.

Antoine Jones was arrested in 2005 and charged with participating in a drug trafficking ring in the Washington area. Jones will receive credit for time already served, meaning he'll spend an additional seven years in jail. After he is released, U.S. District Judge Ellen Segal Huvelle sentenced him to five years of supervised release and 200 hours of community service.

United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012)

Permalink 05:41:00 am, by fourth, 341 words, 659 views   English (US)
Categories: General

OR: Illegal stop hardly ever leads to valid consent

Clarifying prior case law, the police here did not exploit any prior illegality in getting defendant’s consent. An illegal stop will hardly ever lead to valid consent. State v. Hemenway, 353 Or 129, 2011 Ore. LEXIS 1029 (April 25, 2013) (Lexis miscite):

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Permalink 05:25:27 am, by fourth, 176 words, 449 views   English (US)
Categories: General

D.Nev.: Hot pursuit into house justified by misdemeanor battery on officer

Defendant began his flight as officers got out of their car. They pursued him to an apartment door where he assaulted the first officer with his hands on defendant. That gave justification to enter the apartment in hot pursuit for the misdemeanor battery on an officer. United States v. Chambers, 2012 U.S. Dist. LEXIS 187893 (D. Nev. November 21, 2012).

There is no Fourth Amendment requirement in child pornography cases for the issuing magistrate to actually see the material to determine probable cause. Four circuits are in accord. United States v. Wilson, 2012 U.S. Dist. LEXIS 187876 (N.D. Ga. November 28, 2012).*

Defendant was placed in a patrol car because he was arrested, not to thwart veto of consent under Randolph v. Georgia. United States v. Espinoza, 2012 U.S. Dist. LEXIS 187875 (N.D. Ga. May 8, 2012).*

The frisk was justified during this traffic stop because of excessive nervousness of the driver and passenger. No claim is made that the patdown was too intrusive, and it turned up baggies of meth. United States v. Brooks, 2013 U.S. Dist. LEXIS 61414 (E.D. Ky. April 30, 2013).*

05/01/13

Permalink 04:10:23 pm, by fourth, 190 words, 721 views   English (US)
Categories: General

CNN/Time Poll: Cutback civil liberties to fight terror?

Permalink 08:37:22 am, by fourth, 110 words, 522 views   English (US)
Categories: General

IA: Dog alert did not become stale before search of vehicle

After a dog alert, the probable cause for a search of the vehicle does not necessarily become stale by delay. Here, the time between the sniff and the search was relatively short and the vehicle had been moved for the search. State v. Bounyalath, 2013 Iowa App. LEXIS 454 (April 24, 2013).

Old information was redundant to new information, so it was not stale. On appellate review of denial of a motion to suppress, the trial evidence may be considered, too. State v. Newsome, 2013 Iowa App. LEXIS 455 (April 24, 2013).*

In a knock-and-talk, defendant’s backing away from the door is an implied offer to the police to enter. State v. Hunt, 2013 Iowa App. LEXIS 483 (April 24, 2013)

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
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www.johnwesleyhall.com

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

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

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

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

2009-10 Term:

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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