WA: Gant applies to all pending cases

Gant is retroactive under the Washington Constitution and applies to all nonfinal cases. State v. Louthan, 2012 Wash. LEXIS 745 (October 25, 2012). Defendant’s postconviction claim of unsworn affidavits for search warrant is shown to be false. Johnson v. State, 2012 Fla. LEXIS 2276 (November 8, 201

D.Neb.: Merely talking to a parked motorist was not a seizure

Officers talking to a motorist parked in a Lexus in a high crime area to watch out was not a seizure. The officer walked around the car and saw the butt of a gun, but it turned out to be a BB gun. United States v. Mahr, 2012 U.S. Dist. LEXIS 161000 (D. Neb. October 22, 2012): Taking the “position t

GA: Cell provider’s voluntarily relinquishing records in a recent double homicide was no ground to suppress

Georgia law limits access to cell phone records, and a double murderer was at large and the police were tying desperately to locate him. There is a statutory suppression remedy, but the telephone company turned them over voluntarily when asked by the police, in good faith. This obviated the suppress

D.Mont.: Defendant had standing in a mailed package even though the return address wasn’t his

Defendant had standing to challenge the search of a mailed package even though the return address was not his name. United States v. Gardenier, 2012 U.S. Dist. LEXIS 160030 (D. Mont. November 7, 2012): The parties do not dispute that Gardenier sent the package, even though the return label read “Je

SCOTUS grants cert in Maryland DNA case

The Supreme Court granted cert in Maryland v. King today. Chief Justice Roberts had previously granted Maryland a stay pending decision on cert. Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.

NJ: While cell phone records were inproperly obtained, that did not lead to the discovery of the victim’s body, so it should not have been suppressed

Defendant’s cell phone records were improperly obtained by a flawed process, but the inevitable discovery doctrine supported the finding of the victim’s body after the finding of the murder weapon, so the body would not be suppressed. State v. Smith, 2012 N.J. LEXIS 1065 (October 25, 2012): We turn

GA: Officer’s discovery seatbelt was buckled did not constitutionally mandate ending stop

Defendant was stopped for a seatbelt violation, but the officer found that the seatbelt was tucked under the arm and was legal. The stop being initially lawful, the officer was not obligated to end the stop and let the defendant go immediately. Davis v. State, 2012 Ga. App. LEXIS 872 (October 23, 20

CO: A pat down solely for officer safety was unreasonable

A pat down solely for officer safety was unreasonable. People v. Berdahl, 2012 COA 179, 2012 Colo. App. LEXIS 1734 (October 25, 2012): [*P27] Nevertheless, the trial court appears to have applied a bright-line rule that an officer can conduct a pat-down search whenever he or she has an obligation

New book: The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin

Boston U. press release: “A celebration of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin, Professor of Law,” Monday, October 29, 2012: Boston University School of Law is delighted to celebrate the publication of The Supreme Court and the Fourth A

Grits for Breakfast: “Houston hearing honed in on use of drones by law enforcement”

Grits for Breakfast: Houston hearing honed in on use of drones by law enforcement: Grits wishes I could have attended yesterday’s hearing in Houston of the US House Judiciary Committee’s Subcommittee on Crime on domestic use of unmanned drones by law enforcement, but James Pinkerton at the Houston

CA7: Strip search of jail employee was reasonable when search of his person and car came up empty and they had reason to believe he would smuggle drugs into the jail

A jailer was reasonable subjected to a strip search at work based on credible reports he would be bringing cannabis into the jail. His car was stopped and it and his person would be searched. Since drugs weren’t found in those searches, reasonable suspicion thus existed for an employee strip search.

N.D.W.Va.: Defendant did not consent to what officer was doing without asking by defendant merely not speaking

Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 2012 U.S. Dist. LEXIS 153511 (N.D. W.Va. October 25, 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W

SeattlePI.com: “Irate crowd greets Seattle Police drone plan”

SeattlePI.com: Irate crowd greets Seattle Police drone plan / Aircraft with cameras get harsh reaction in Central District by Casey McNerthney: Seattle police may use remote control drones during future investigations, and a crowd that gathered Thursday night in the Central District was furious abo

CA2: Violation of state jurisdictional law not Fourth Amendment issue

Violation of state jurisdictional law and federal policy re customs officers and state law was irrelevant under the Fourth Amendment. United States v. Wilson, 2012 U.S. App. LEXIS 22212 (2d Cir. October 25, 2012): The district court concluded that the vehicle stop violated the Fourth Amendment bec

Volokh.com: “Magistrate Judge Denies Court Order Application for Cell Tower Dumps”

Volokh.com: Magistrate Judge Denies Court Order Application for Cell Tower Dumps by Orin Kerr: The decision is In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 2012 WL 4717778 (S.D. Tex. September 26, 2012) (Owlsey, M.J),, and it rejects an application under the Stored Communications

OH12: Informant communicating with cop during drug transaction with defendant was RS

Reliable informant who was communicating with defendant about drugs provided reasonable suspicion. State v. Dennis, 2012 Ohio 4877, 2012 Ohio App. LEXIS 4278 (12th Dist. October 22, 2012).* Driving too slow and not staying in one’s lane justified a stop. State v. Roetzel, 2012 Ohio 4898, 2012 Ohio

computerworld.com: “Fighting unconstitutional stingray phone surveillance that tracks innocent people”

computerworld.com: Fighting unconstitutional stingray phone surveillance that tracks innocent people by Darlene Storm: Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime … but hey your

NJ.com: “N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case”

NJ.com: N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case by Anthony Campisi: Justices of the state Supreme Court wrestled Monday with drawing new privacy protections in a world where police can engage in the sophisticated tracking of suspects using the most ubiquitous of devic

NACDL at the National Press Club for the Florida dog sniff cases is on C-SPAN

From NACDL: NACDL’s October 23 Program (this morning) at the National Press Club — Entrusting the Fourth Amendment to the Dogs: Canine Evidence and the Constitution (Introductory Remarks, NACDL President Steven D. Benjamin; Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Mar

CA11: Handcuffing on the ground at gunpoint not necessarily an arrest

Taking defendant from his car at gunpoint and handcuffing him on the ground was reasonable under the circumstances, and it did not rise to the level of an arrest. United States v. Salas-Garcia, 2012 U.S. App. LEXIS 21995 (10th Cir. October 22, 2012): By contrast, the officers in this case acted rea

GA: Evading DUI roadblock with abrupt movement RS

Defendant’s dodging a DUI roadblock with an abrupt furtive movement was reasonable suspicion for a stop. Stinson v. State, 2012 Ga. App. LEXIS 856 (October 18, 2012).* Defendant’s father gave his name to the FBI as possibly radicalized in Yemen, and what the FBI learned about him through that inves

E.D.Mo.: Pre-Jones GPS was not suppressed because of the officers’ good faith

Pre-Jones GPS was not suppressed because of the officers’ good faith. United States v. Robinson, 2012 U.S. Dist. LEXIS 151257 (E.D. Mo. May 24, 2012): In light of the Supreme Court’s opinions in Knotts and Karo, as interpreted and applied by the Ninth Circuit in Pineda-Moreno, the Seventh Circuit i

Reason.com: “Little-Known Device Raises Big Fourth Amendment Implications”

Reason.com: Little-Known Device Raises Big Fourth Amendment Implications: On Friday, EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden, a closely-followed case that has enormous consequences for individuals’ Fourth Amendment rights in their home and on their cell phone. As t

IN: Leaving turn signal on alone not evidence of impairment

Accidentally leaving one’s turn signal on is not evidence of impairment, without more. Killebrew v. State, 2012 Ind. App. LEXIS 528 (October 19, 2012).* Failure to argue to the trial court that the lineup was based on unlawful detention waived the argument for appeal. State v. Rucker, 2012 Ohio 486

Cal.6: Defendant’s detention was unreasonable; his only matching characteristic of the assailant was being the same race and in same public place a week later

Defendant was stopped at the San Jose light rail station around midnight for allegedly resembling one of two Black males who were suspected of committing a sexual battery a week earlier at noon. After he provided a false ID, he was arrested and cocaine base was found. The court finds that the descr

NC: No answer at front door knock and talk doesn’t justify going to back door

Officers conducting a knock and talk got no answer at the front door, and they went around to the back where there was no path. There was no justification for going to the back door, and the view of marijuana plants in the back is suppressed. State v. Pasour, 2012 N.C. App. LEXIS 1201 (October 16, 2

VI: Unlawful arrest doesn’t deprive court of jurisdiction to try the case

Defendant’s stop was valid but arrest for a misdemeanor that didn’t happen in the presence of the officer was invalid, but that does not require suppression of the observations he was under the influence nor prevent the prosecution. People v. Norton, 2012 V.I. LEXIS 49 (Super. Ct. October 15, 2012).

E.D.Pa.: PC as to car overcomes Gant

Probable cause for defendant’s arrest for drugs justified a search of the car under the automobile exception, an exception to Gant. United States v. Davidson, 2012 U.S. Dist. LEXIS 150513 (E.D. Pa. October 19, 2012).* Substantially corroborated information from a citizen informant provided probable

CA11: No standing in another person’s drug house

Defendant’s asserted standing in the house searched was because he had drug money in the safe. It was somebody else’s place used for cocaine production. This was governed by Carter. United States v. Rivera-Pabon, 2012 U.S. App. LEXIS 21725 (11th Cir. October 18, 2012).* Defendant was stopped for a

NE: Defendant’s succeeds in showing IAC on failure to move to suppress

Defendant succeeds in showing that the justification for the traffic stop, a cracked windshield, did not support it. A mere cracked windshield is not a traffic offense because the driver’s view is not obstructed. Also, it did not indicate that the vehicle had been involved in an accident. Therefore,

LATimes: Manson follower lawyer-client recordings from 1969 subject of search warrant or court order now stayed

LATimes.com: Manson follower’s tape recordings off limits to LAPD for now (posted 10/18): A federal judge in Texas has blocked a request by the Los Angeles Police Department to review recordings of a key Charles Manson follower and an attorney made decades ago. The tapes are of Manson follower Ch

CA4: Officers had reasonable cause to believe defendant at home for entry under Payton

Officers had reasonable cause under Payton to believe that defendant was hiding in his own house. The SWAT team showed up for a misdemeanor arrest because of defendant’s 100 prior arrests and numerous convictions for violent crime. After a lot of looking, he was found hiding in a return air duct und

D.S.D.: No reasonable expectation of privacy in the cell phone of another in the defendant’s possession

There is no reasonable expectation of privacy in the cell phone of another in the defendant’s possession. United States v. Clinton, 2012 U.S. Dist. LEXIS 150171 (D. S.D. October 4, 2012): Clinton’s mere possession of the cell phone, without more, is insufficient to establish a Fourth Amendment rig

E.D.Mo.: Gang officers can conduct a traffic stop; pretext argument fails

The fact the Chicago police officers were gang officers and not working traffic did not mean that they were constitutionally prohibited from conducting a traffic stop. Therefore, the pretext argument fails on that ground. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25,

S.D.Fla.: Lesson about specificity motions to suppress; inspecific motion held against defendant’s credibility on the search

The court finds the defendant consented after an illegal search of his luggage. (Why is important, and this is an important lesson.) United States v. Jimenez, 2012 U.S. Dist. LEXIS 148699 (S.D. N.Y. October 10, 2012) (Judge Swain): Jimenez admitted at the hearing that he assented to Veloz’s request

S.D.Ill.: Threat to get a warrant was not spurious, so consent valid

Defendant’s consent to entry after repeated efforts to get consent during a knock-and-talk at a hotel room was still valid. They had probable cause, and the threat to get a search warrant was not spurious. United States v. Taylor, 2012 U.S. Dist. LEXIS 148244 (S.D. Ill. October 16, 2012).* Courts s

CA2: Rare federal habeas win on Fourth Amendment

The state court’s upholding a lineup as not a product of a Fourth Amendment violation was found to be an unreasonable application of Supreme Court precedent justifying habeas relief. The case cites and credits a wealth of material about the vagaries of eyewitness identification. Young v. Conway, 201

New Law Review Article: “‘Eyephones’: A Fourth Amendment Inquiry into Mobile Iris Scanning”

New Law Review Article: “‘Eyephones’: A Fourth Amendment Inquiry into Mobile Iris Scanning” by Christopher Rutledge Jones, 63 S.C. L.Rev. 925 (2012): MORIS, or Mobile Offender Recognition and Information System, is a small device that attaches to a standard iPhone and allows a user to perform mobil

CA6: Violation of state S&S law irrelevant to Fourth Amendment analysis

Any failure of state officials to comply with state search and seizure of arrest law is meaningless in federal court under the Fourth Amendment. Here, Tennessee law required an original and two copies. One was missing. United States v. Beals, 2012 U.S. App. LEXIS 21389, 2012 FED App. 0360P (6th Cir.

HI follows minority rule on inevitable discovery

Hawai’i reaffirms it follows the minority view of inevitable discovery and concludes that an unlawful search incident could not be justified as inevitable discovery of a coming jail inventory search of the person because it was speculative that the contraband would have been found then. State v. Rod

E.D.La. avoids PC on CSLI warrant, deciding only GFE applies

Without determining the merits of probable cause for cell site location information, the court applies the good faith exception alone. United States v. Hardrick, 2012 U.S. Dist. LEXIS 147940 (E.D. La. October 15, 2012): Because this Court holds that the good-faith exception to the exclusionary rule

Business Insider: “Two Supreme Court Cases About Dogs May Profoundly Impact Americans’ Privacy”

Business Insider: Two Supreme Court Cases About Dogs May Profoundly Impact Americans’ Privacy by Michael Kelley: On Oct. 31, the U.S. Supreme Court will hear two cases from Florida about drug-sniffing dogs that will either affirm or weaken the constitutional privacy rights of Americans. Rulings f

NYTimes.com: “First Plaintiffs Testify in Federal Challenge to Police Stop-and-Frisk Policy”

NYTimes.com: First Plaintiffs Testify in Federal Challenge to Police Stop-and-Frisk Policy by Joseph Goldstein: Charles E. Bradley stood outside his fiancée’s fifth-floor apartment at about 5 p.m., the agreed-upon time, and began drumming on the door, he testified Tuesday, re-creating the sound in

The Columbia Science and Technology Law Review: The Fourth Amendment in the Digital Age

The Columbia Science and Technology Law Review: The Fourth Amendment in the Digital Age by Min Choi: In the old days – and even now, as Occupy Wall Street exemplifies – people took to the streets to protest. But as technology evolved, new forms of demonstrations appeared. One such form is hacking t

E.D.Mo.: Wiretap provided RS for continuing stop

Officers had reasonable suspicion for defendant’s stop and continuing it based on wiretap information well before the stop. His consent thereafter was voluntary. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25, 2012).* Defendant’s Franks challenge fails–there were two o

OH2 reverses three

Officers did a knock-and-talk at defendant’s girlfriend’s house where defendant was spending the night. The trial court erred in holding the defendant lacked standing as an overnight guest, and the case is remanded for reconsideration of the motion to suppress. State v. Winston, 2012 Ohio 4743, 2012

M.D.La.: Consent to search of driver doesn’t extend to passenger’s luggage

Defendant was in a car with another that was stopped by the police, and the driver gave consent to search. The driver’s consent did not apply to separate luggage in the car that belonged to the passenger, and the officer told defendant that the driver consented so he was searching. The passenger’s s

E.D.Mo. declines to follow majority rule: No Davis good faith for GPS

Disagreeing with the majority of cases and following the minority view, the Davis good faith exception is not applied to pre-Jones GPS use. United States v. Robinson, 2012 U.S. Dist. LEXIS 147793 (E.D. Mo. October 15, 2012): But I do not read Davis that broadly, and do not agree that the Davis good

D.Neb.: No right to be arrested at the earliest possible time

Defendant has no right to be arrested only at the earliest possible time. Officers can watch and let the situation develop to see what else happens. United States v. Davis, 2012 U.S. Dist. LEXIS 145849 (D. Neb. September 21, 2012)*: Law enforcement officers had informant information indicating the

S.D.Ga. adopts Fourth Amendment de minimus standard

Extending a stop by a minute for other questions was not a Fourth Amendment violation (adopting the de minimus standard, without calling it that). United States v. Burrows, 2012 U.S. Dist. LEXIS 146695 (S.D. Ga. October 11, 2012). A brief handcuffing during a stop just for the frisk and then unhand

D.Nev.: No standing to challenge GPS on car

Defendant did not own or was driving the vehicle on which the GPS device was placed, so he lacked standing to challenge the GPS placement. United States v. Smith, 2012 U.S. Dist. LEXIS 147866 (D. Nev. July 24, 2012). Defendant’s house was subjected to a search warrant for multiple burglaries, and a

GA: Thermal imaging is not a proper basis for a search warrant under state law, but PC otherwise exists

A thermal imaging warrant violated Georgia state law because search warrants can only be for “tangible evidence.” There was, however, plenty of probable cause for a search of the house based on everything else known before that, so the search would not be suppressed. Brundige v. State, S11G1821 (Ga.

KY: No REP in LPN information

There is no reasonable expectation of privacy in a license plate, and a check of the license plate violates no law. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (October 12, 2012). The informant in this case is not revealed by the record to be a citizen informant [she was] but there was probable

D.V.I.: High crime area plus smell of MJ from group was RS

High crime area with several reported drug deals a month and smell of marijuana coming from defendant’s group justified stop. United States v. Elmes, 2012 U.S. Dist. LEXIS 147256 (D. V.I. October 12, 2012).* Officers came to defendant with a search warrant for child pornography after an investigati

TN: Independent probable cause for vehicle and SW overcame illegal seizure of the keys

The trial court concluded that the seizure of the keys to a pickup truck should be suppressed, and the record supports that finding. Seizure of evidence from the bed of the pickup truck, however, is not a product of the illegal seizure of the keys. Also, a search warrant had been issued for the truc

CA2: Third-party consent still possible with professed inability to open a safe that one admits having stuff in

In the no good deed goes unpunished category: One defendant was an attorney called to the scene at plaintiff’s request to help defuse a standoff. The attorney wasn’t known to plaintiff and he had no prior attorney-client relationship. After the arrest, the attorney and police were sued for conspiri

New law review article: “GPS Tracking Out of Fourth Amendment Dead Ends: United States v. Jones and the Katz Conundrum”

New law review article: GPS Tracking Out of Fourth Amendment Dead Ends: United States v. Jones and the Katz Conundrum, 91 N.C. L. Rev. (forthcoming 2012), by Fabio Arcila, Jr.: United States v. Jones, which reviewed the Fourth Amendment constitutionality of warrantless GPS tracking, may be the most

WA: SI after handcuffing of computer bag and rolling duffle bag for armed robbery was valid

Defendant was leaving a hotel room with a laptop bag and a rolling duffle bag when he was subjected to a felony arrest at gunpoint for armed robbery. After he was handcuffed, his laptop bag and dufflebag were pushed about a car length away and searched. The search was valid under the state constitut

NPR: “Who Feels The Scars Of ‘Stop And Frisk’?” & The Nation: “Stopped-and-Frisked: ‘For Being a F**king Mutt’”

NPR: Who Feels The Scars Of ‘Stop And Frisk’?: The New York City council Wednesday held a hearing about blocking the controversial “stop and frisk” policy. That allows police to stop, search, and question people suspected of carrying weapons or drugs. It’s also the subject of a New York Times short

MS: Suspended DL justifies frisk of person and inventory of car

When defendant was found to be driving on a suspended DL, a frisk of his person and inventory of his car was permissible. Melton v. State, 2012 Miss. App. LEXIS 618 (October 9, 2012).* Officers were called to defendant’s house on a complaint of possible animal cruelty. Defendant was found to have c

The Republic: “Critics call for ‘no’ vote vs. Ind. high court justice; say ruling denied 4th Amendment right”

The Republic: Critics call for ‘no’ vote vs. Ind. high court justice; say ruling denied 4th Amendment right by Charles Wilson: INDIANAPOLIS — An Indiana Supreme Court justice who wrote a ruling that set off a public uproar and provoked legislators into passing a new state law faces rare opposition

Lexis book sale: “K9 Officer’s Legal Handbook; Know and understand the unique legal issues faced by dog handlers”

Lexis book sale: K9 Officer’s Legal Handbook; Know and understand the unique legal issues faced by dog handlers

SC: Under SCA, an email read and kept on the email server is no longer in “electronic storage”

An email read and kept on the email server is no longer in “electronic storage” for SCA purposes (splitting with the Ninth Circuit). Jennings v. Jennings, No. 27177 (S.C. October 10, 2012) (2-2-1): The court of appeals agreed with Jennings and held the e-mails were in “electronic storage” because t

W.D.Pa.: Momentary compliance with police with a brief show of hands and then flight is not a Fourth Amendment seizure

Momentary compliance with police with a brief show of hands and then flight is not a Fourth Amendment seizure. Abandoning a shotgun in flight showed a lack of standing. United States v. Stanton, 2012 U.S. Dist. LEXIS 145932 (W.D. Pa. October 10, 2012): A defendant’s momentary compliance with police

D.Kan.: Residential search warrant that did not mention vehicles still authorized a search of all vehicles parked on the curtilage belonging there

A residential search warrant that did not mention vehicles still authorized a search of all vehicles parked on the curtilage belonging there. United States v. Hickman, 2012 U.S. Dist. LEXIS 144962 (D. Kan. October 9, 2012).* Defendant was stopped for a headlight violation, and a drug dog was immedi

CA6: Suspect must complain to officer handcuffs were too tight to sue

“This court has stated that in order to reach a jury on a claim of tight handcuffing, ‘a plaintiff must offer sufficient evidence … that: (1) he or she complained the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff experienced “some physical injury” result

M.D.Fla.: A safe in a vehicle subject to inventory can be forced opened

A safe in a vehicle that was lawfully impounded and subject to towing and inventory could be forcibly opened at the resting place of the vehicle. United States v. Falsey, 2012 U.S. Dist. LEXIS 145230 (M.D. Fla. October 9, 2012): Third, the motion to suppress objects that, because the vehicle was to

CA5: PC for defendant’s car led to PC for his house

The traffic stop was valid, despite claims of pretext, and that led to probable cause to search defendant’s car which also provided probable cause as to his house. United States v. Charles, 2012 U.S. App. LEXIS 20892 (5th Cir. October 8, 2012).* Defendant disclaimed any connection to a motel room t

TN: Specific date not required in affidavit for SW as long as recency can be ascertained from affidavit as a whole

A specific reference to a date is not required in an affidavit for a search warrant as long as the time period showing no staleness can be ascertained from the affidavit as a whole. Here, the affidavit referred to the product of a subpoena just issued, and that was sufficient to show time. State v.

GA: Search of shoes not permitted during a pat down for weapons

Search of shoes is not permitted during a pat down for weapons. State v. Cleveland, 2012 Ga. App. LEXIS 821 (October 5, 2012).* Defense counsel not ineffective for not filing a motion to suppress a search of a house admittedly abandoned in an effort to distance defendant from it. [The court also fo

NH: Immediate discovery that the factual basis for a warrant was wrong requires the search to stop

Officers came to defendant’s house to serve his mother with a notice for trespass and harassment, and they saw what they thought were long guns in house, and she was a convicted felon. They got a search warrant for firearms and went back, discovering that the expected long guns were actually BB guns

FL5: Protective sweep of locked bedroom after consent entry was invalid

Protective sweep of locked bedroom after consent entry was invalid. Hernandez v. State, 2012 Fla. App. LEXIS 16943 (Fla. App. 5th DCA October 5, 2012): Courts that have recognized the validity of protective sweeps not incident to an arrest have generally required the State, at a minimum, to prove t

CA10: Where there is good faith, actual PC irrelevant and won’t be decided

The search warrant for defendant’s car was at least relied on in good faith, so the court does not have to decide the question of whether probable cause even exists (n.2). United States v. Gutierrez, 2012 U.S. App. LEXIS 20798 (10th Cir. October 5, 2012).* [So much for development of the law. You a

LA4: Stop was without justification, as was pat down

Defendant was talking to somebody in an SUV who fled when the police appeared. Defendant got on a bicycle and rode away. He was stopped by the officers and was told to assume the position with his hands on the car. There was no justification for a pat down, and the officers really acted like they do

NYTimes: “Student IDs That Track the Students” on school grounds

NYTimes: Student IDs That Track the Students by Maurice Chammah and Nick Swartsell SAN ANTONIO — For Tira Starr, an eighth grader at Anson Jones Middle School, the plastic nametag hanging around her neck that she has decorated with a smiley face and a purple bat sticker offers a way to reflect her

D.Kan.: When is a knock-and-talk not consensual?

When is a knock-and-talk not consensual? This one was because it was in the daytime and the officers were not overbearing. United States v. Barrios, 2012 U.S. Dist. LEXIS 144047 (D. Kan. October 4, 2012)*: Circumstances which may be pertinent include the time of day when the officers knock on the d

NM: Guesthouse on premises required a separate warrant from main residence

“The question in this case is whether a warrant authorizing the search of a residence also authorizes the search of an independently occupied guesthouse located in the backyard of that residence. Agreeing with the district court that the warrant did not state with sufficient particularity that the s

CA9: Arbitrary local rule in D. Ariz. delaying first appearances unreasonable

The District of Arizona at Tucson’s 10:30 am notification rule, not well publicized and not subject to judicial notice, was invalid where the defendant was arrested at 7:30 am ten miles from the courthouse but a Spanish speaking agent could not be located before 10:30. The delay in his arraignment u

MA: Anticipatory search warrant with controlled buy as a triggering condition valid

Anticipatory search warrant with controlled buy as a triggering condition is valid. Commonwealth v. Mora, 2012 Mass. App. LEXIS 260 (October 4, 2012). Defendant was involved in a three year identity theft operation and he was arrested with seven cell phones. They were searched for everything with a

CA9: Promptly withdrawn subpoena for cell phone GPS information was not a violation of the Fourth Amendment

A subpoena had been issued for GPS data from a cell phone, and then it was withdrawn hours later. There was no violation of the Fourth Amendment. The fact call information was obtained was not a violation of the Fourth Amendment. Jayne v. Blunk, 2012 U.S. App. LEXIS 20724 (9th Cir. October 4, 2012)*

IA: Where search valid in any event, fact defense counsel did raise alternative ground doesn’t matter

No IAC for not challenging search: Based on the record, “assuming without deciding that Martin had a legitimate expectation of privacy, we agree with the State that there was a valid search incident to arrest.” State v. Martin, 2012 Iowa App. LEXIS 832 (October 3, 2012).* Whether defense counsel wa

IN: Warrantless entry and arrest violated Fourth Amendment and confession was invalid

The police entry into defendant’s house and his arrest violated the Fourth Amendment, so his statement could not be attenuated from the illegal arrest because it was continuous, even though he was twice Mirandized. Joseph v. State, 2012 Ind. App. LEXIS 494 (October 2, 2012): The record indicates th

AR: Pros’r subpoena appeared reasonable; Fourth Amendment argument not preserved

Defendant changed his argument on appeal that the prosecutor subpoenaed text messages in violation of the Fourth Amendment. On what the court had, the subpoena appeared reasonable under Walling. Gulley v. State, 2012 Ark. 368, 2012 Ark. LEXIS 393 (October 4, 2012)*: As the State correctly points ou

Law.com: “Hacker Case Could Test Limits on Electronic Searches”

Law.com: Hacker Case Could Test Limits on Electronic Searches by Vanessa Blum: SAN FRANCISCO — More than a year after federal agents arrested 14 people accused in a cyberattack on PayPal, the high-profile prosecution has ground to a standstill over the handling of computers seized in the investigat

N.D.Ga.: PC for computer search for child prostitution doesn’t prevent officers looking for pictures on computer

Probable cause for a search for child prostitution on defendant’s computer did not limit the ability of officers to look at pictures. United States v. Skow, 2012 U.S. Dist. LEXIS 142668 (N.D. Ga. September 13, 2012).* “‘Let’s go back to my apartment and get my license. It’s in my wallet,’ o

CNS.com: “Privacy Evaporates in Twitter Cloud, OWS Says”

CNS.com: Privacy Evaporates in Twitter Cloud, OWS Says by Adam Klasfeld: MANHATTAN (CN) – The subpoena of an Occupy Wall Street activist’s Twitter account means “your First and Fourth Amendment rights have vanished” in the age of cloud computing, a lawyer claims in a motion to reverse the ruling.

Reason.com: “Warrantless Spying Skyrockets Under Obama”

Reason.com: Warrantless Spying Skyrockets Under Obama, And the news is being met with the equivalent of crickets chirping by A. Barton Hinkle: Is it fascism yet? That was the snarky question glued to the bumper of every self-respecting progressive’s gas/electric hybrid back during the Bush-Cheney

CA10: Several “red flags” were reasonable suspicion barring § 1983 suit

There was reasonable suspicion for plaintiff’s detention, so the officer had a defense, and at least qualified immunity, to any § 1983 suit against him for the allegedly overlong stop. Arencibia v. Barta, 2012 U.S. App. LEXIS 20601 (10th Cir. October 3, 2012)*: Reasonable suspicion is based on the

OH12: Fireman had exigency to open window to check for gas

Defendant’s neighbors called to complain of a strange odor coming from his house. The fire department inserted a gas detection device by moving an air conditioner. In the course of that, they saw marijuana spread out on a table. The exigencies of the situation justified that entry. State v. Luong, 2

D.Nev.: Where arrest invalid, fingerprints at jail suppressed

Defendant’s arrest for trespass was invalid, so the taking of his fingerprints at the jail is suppressed as fruit of the poisonous tree. United States v. Eppenger, 2012 U.S. Dist. LEXIS 142483 (D. Nev. July 24, 2012). The inventory of defendant’s vehicle was appropriate. United States v. Abram, 201

D.Kan.: “Evidence of a hidden compartment can alone give rise to probable cause to search a vehicle for contraband or arrest the driver of the vehicle.”

“Evidence of a hidden compartment can alone give rise to probable cause to search a vehicle for contraband or arrest the driver of the vehicle.” United States v. Ramirez, 2012 U.S. Dist. LEXIS 142697 (D. Kan. September 24, 2012): Evidence of a hidden compartment can alone give rise to probable cause

CO: Custodial arrest for contempt at direction of judge justified SI

Arrest of defendant and detention for contempt at direction of judge that was subject to appeal did not make the search incident or inventory invalid. People v. Guthrie, 2012 CO 59, 2012 Colo. LEXIS 731 (October 1, 2012).* On the totality, defendant’s encounter with the police was not involuntary a

CA11 follows all other circuits: Brief questioning unrelated to the stop not unreasonable; questioning not a search

Brief questioning unrelated to the reason for the stop did not themselves constitute a search or offend Terry. United States v. Griffin, 2012 U.S. App. LEXIS 20543 (11th Cir. October 2, 2012): So how do cases like Mena and Johnson affect, if at all, the “reasonably related in scope” prong

CA11: Alleged IAC for not putting defendant on to deny consent irrelevant where there was PC

2255 petitioner’s IAC claim that his counsel was ineffective for not putting him on the stand to deny that he consented was not IAC because it had no effect on the outcome–the officer had probable cause to stop and search, and consent was irrelevant. Lewis v. United States, 2012 U.S. App. LEXIS 2044

NYTimes: “Judge Rules That Mass Arrests at a 2004 Protest Were Illegal”

NYTimes: Judge Rules That Mass Arrests at a 2004 Protest Were Illegal by Ruth Fremson: A federal judge has ruled that the New York Police Department illegally arrested large numbers of demonstrators at a protest in Lower Manhattan during the 2004 Republican National Convention. But the judge upheld

Army CCA: Roommate’s search of computer was accidental and private search, but later warrantless search was invalid; nevertheless, inevitable discovery lets it in

Defendant was serving in the Army in Iraq during Operation Iraqi Freedom and was stationed at a forward base. He lived in a rucksack with a roommate. His roommate got on his computer to look for a movie to download and watch, but he found child pornography telling their superiors what he found. That

Mobiledia.com: “In Brief: GPS, Cell Records and Warrants, Oh My!”

Mobiledia.com: In Brief: GPS, Cell Records and Warrants, Oh My! by Margaret Rock: Can your phone’s location data be used as evidence in court trials? The Supreme Court and the Obama administration are wrangling over the issue, and the fallout will shape the legal landscape for years to come. When

New law review article: “The Curious History of Fourth Amendment Searches”

Orin S. Kerr, The Curious History of Fourth Amendment Searches, Supreme Court Review, Forthcoming. Abstract: In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court restored the trespass test of Fourth Amendment law: Any government conduct that is a trespass onto persons, houses, p

New law review article: Colloquy Essays, “The Bin Laden Exception”

Erik Luna, Colloquy Essays, The Bin Laden Exception: ABSTRACT—Osama bin Laden’s demise provides an opportune moment to reevaluate the extraordinary measures taken by the U.S. government in the “war on terror,” with any reassessment incorporating the threat posed by al Qaeda and other terrorist orga

IL: Piece of plastic bag protruding from pocket is RS, not PC; search not justified without more

Defendant’s car was stopped for littering from the passenger side, and the passenger made a “snide” comment to the officer denying littering. The officer ordered him out of the car, and then could see a bit of a plastic bag protruding from his front pocket. That was reasonable suspicion and not prob

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