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Officers did a child pornography knock-and-talk after associating defendant’s IP address with downloading child porn. Once in the house, defendant admitted he might have child porn on the computer, but he refused to consent. While defendant was out of the room, the officer clicked on the computer to exit the word processing document on the screen. That was a search in itself. Then, there was no exigency for taking the computer without a warrant that the police did not create. State v. Sachs, 2012 Mo. App. LEXIS 571 (April 24, 2012):

We begin our analysis by stating the obvious. When Detective Anderson began clicking on icons on Appellant's computer screen to view different programs that were not openly visible on the computer screen, he was conducting a search. See United States v. Payton, 573 F.3d 859, 863 (9th Cir. 2009) (holding that an officer moving a mouse, deactivating a screen saver, and opening a file on a computer was a search requiring a warrant). For these purposes, using a mouse and/or keyboard to shuffle between files that are not plainly visible on an active computer screen is just as much of a search as opening and looking through Appellant's filing cabinets or desk drawers. In fact, "the nature of computers makes such searches so intrusive that affidavits seeking warrants for the search of computers often include a limiting search protocol, and judges issuing warrants may place conditions on the manner and extent of such searches to protect privacy and other important constitutional provisions." Id. at 864. Because "it is important to preserve the option of imposing such conditions when they are deemed warranted by judicial officers authorizing the search of computers," the generally accepted practice of law enforcement officers is "to stop and seek an explicit warrant when they encounter a computer that they have reasons to believe should be searched." Id.

Detective Anderson acknowledged that he was looking through the various programs running in the background on the computer in search of evidence. This was, in any sense of the term, a search.

Accordingly, we must next determine whether the trial court could have properly found that a recognized exception to the warrant requirement was applicable in this case. The State contends that the exigent circumstances justified the detective's actions in accessing the active programs because information in the computer's RAM (random access memory) would disappear when the officer unplugged the computer to seize it. In other words, the State argues that the "exigent circumstance" of the officer wanting to seize the computer, unplug it, and remove it from the apartment before obtaining a warrant justified his search of the active files on the computer.

"The justification for the exigency exception is time related, i.e., there is a need that will not brook the delay incident to obtaining a warrant." Cromer, 186 S.W.3d at 344 (internal quotation omitted). "Exigent circumstances exist if the time needed to obtain a warrant would endanger life, allow the suspect to escape, or risk the destruction of evidence." Id. (internal quotation omitted). "The subjective belief of the officer who conducted the [search] is not determinative. ... [W]e look to the circumstances as they would have appeared to a prudent, cautious, and trained officer." State v. Warren, 304 S.W.3d 796, 801-02 (Mo. App. 2010).

The record in this case simply does not establish any pressing need for the officer to unplug the computer prior to obtaining a warrant. Three officers were present in the apartment and had fully secured the scene. The State failed to prove the existence of exigent circumstances that would preclude an officer from remaining with the computer while a warrant was obtained. The State's argument in this regard is based entirely upon a presumption of inconvenience for the officers and Appellant's roommates. Such circumstances are simply not exigent and most certainly do not establish "a need that will not brook the delay incident to obtaining a warrant." Id. Though Detective Anderson's subjective belief is not the standard for determining exigent circumstances, if Detective Anderson truly believed that valuable evidence might be lost through the unplugging of the computer, he should have waited until a warrant was obtained and then conducted his search of the files active on the computer.

Exigency like bull in the china shop. Think about it: If the state's argument was accepted here, there would be no need for search warrants in child pornography or some other types of cases. Just do a knock-and-talk. If the suspect doesn't consent, search for the stuff anybody because you barged in and alerted him he was a target.

A task force of parole officers made up a list of parolees to be searched in the Syracuse area, and defendant was handcuffed and detained for his parole search, with the officers finding cocaine in his car out front of his house. The search was legal. People v. Johnson, 2012 NY Slip Op 3317, 2012 N.Y. App. Div. LEXIS 3336 (4th Dept. April 27, 2012).*

A buy of heroin out of defendant’s truck was probable cause to search it under the automobile exception. United States v. Williams, 2012 U.S. App. LEXIS 8564 (11th Cir. April 27, 2012).*

Defense counsel was not ineffective for not challenging the voluntariness of consent where the search was based on a dog alert. Consent or not was “immaterial.” United States v. Vazquez-Villa, 2012 U.S. Dist. LEXIS 58690 (D. Kan. April 27, 2012),* prior appeal 423 Fed. Appx. 812 (10th Cir. 2011).

The City of Liberty, Kentucky, in a case fraught with irony by the location, cannot conduct checkpoints to stop cars to check whether the car has a affixed a “city sticker” proving that the cars on the street belong to residents. It uttery fails Edmond, Prouse, Sitz, and special needs analysis. This had no valid safety purpose for a checkpoint. Search incident occurred. Singleton v. Commonwealth, 2012 Ky. LEXIS 39 (April 26, 2012):

The Commonwealth argues that Prouse should be read as approving traffic checkpoints designed to verify compliance with vehicle registration and operator licensing laws which have no impact upon highway safety. We must disagree. In Prouse, the checkpoint's purpose was found valid only because the licensing and registration requirements advanced the public interest in highway safety:

We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed. Automobile licenses are issued periodically to evidence that the drivers holding them are sufficiently familiar with the rules of the road and are physically qualified to operate a motor vehicle. The registration requirement and, more pointedly, the related annual inspection requirement in Delaware are designed to keep dangerous automobiles off the road. Unquestionably, these provisions, properly administered, are essential elements in a highway safety program.

Prouse, 440 U.S. at 658 (footnotes omitted).

This point was expressly confirmed in Edmond, "Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control." Edmond, at 40.

As the trial court found, the City of Liberty's sticker ordinance "does not have as its purpose anything remotely connected to border patrol or highway safety." We find nothing in the record to refute that finding. It is also apparent that the checkpoint had no information-seeking function of the sort approved in Lidster. The checkpoint's only purpose was to enforce a revenue-raising tax upon vehicles in the city. Thus, the checkpoint to enforce the sticker ordinance comports with none of the purposes which the United States Supreme Court has found to be important enough to override the individual liberty interests secured by the Fourth Amendment.

[Note: They should be thankful this was resolved in a criminal case rather than an expensive civil rights case like Edmond was.]

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Defendant was stopped for parking over a line, which was not even a violation of law. Because defendant appeared nervous, the officer frisked him for officer safety. The frisk was unlawful for a stop for something that wasn’t even an offense. Mistake of law will not support a stop. Gilmore v. State, 2012 Md. App. LEXIS 42 (April 25, 2012).

Plaintiff’s claim that her arrest was without probable cause or qualified immunity is sustained, and the district court properly granted summary judgment for her. That an arrest without probable cause is unconstitutional is well established. Merchant v. Bauer, 2012 U.S. App. LEXIS 8469 (4th Cir. April 26, 2012).*

Shooting the unarmed plaintiff drunk driver six times in the legs with SL6 polyurethane bullets for not getting out of her car fast enough was excessive force as a matter of law, and the jury verdict for the defendants is reversed. Phillips v. Community Ins. Corp., 2012 U.S. App. LEXIS 8582 (7th Cir. April 27, 2012) (2-1):

To determine whether a constitutional violation has occurred, we first evaluate the level of force used to arrest Phillips. The record establishes that the force exerted by an SL6 bullet is roughly comparable to a projectile from a bean-bag shotgun. Other courts of appeals have observed that baton launchers and similar "impact weapons" employ a substantially greater degree of force than other weapons categorized as "less lethal," such as pepper spray, tasers, or pain compliance techniques. In Deorle v. Rutherford, the Ninth Circuit considered a bean-bag shotgun projectile as "something akin to a rubber bullet." 272 F.3d 1272, 1280 (9th Cir. 2001). Deorle concluded that "the cloth-cased shot constitutes force which has the capability of causing serious injury, and in some instances does so." An officer provided expert testimony that a "Use of Force Continuum ... would list an impact weapon high on the schedule of force" and that "[i]t would be unreasonable for an officer to use an impact weapon on an unarmed person." Id. at 1280 & n.17 "Such force is much greater than that applied through the use of pepper spray ... or a painful compliance hold ...." Id. at 1279-80 (citations omitted); see also Thompson v. City of Chicago, 472 F.3d 444, 451 & nn.18-19 (7th Cir. 2006) (officer testimony regarding Chicago Police Department policies limiting use of "impact weapons" to "high-level, high-risk assailants" and describing such weapons as "unwarranted against a suspect resisting arrest" by punching and struggling); Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir. 2005) (observing that the SL6 weapon "is classified as a 'less lethal' munition, [but that local] police regulations recognize that it can be used as a deadly weapon.").

Defendant's companion did not have the authority to consent to a search of his van after he gave her the keys for the limited purpose of checking on the dog and locking the van. State v. Kurokawa-Lasciak, 2012 Ore. App. LEXIS 521 (April 25, 2012), on remand from State v. Kurokawa-Lasciak, 351 Ore. 179, 263 P.3d 336 (2011):

Under these precepts, the consent issue in this case reduces to the question of whether defendant and Campbell had an understanding that Campbell had common access to and control of the van when she gave Bennett consent to search it. The trial court, relying on a federal case under the Fourth Amendment (United States v. Morales, 861 F2d 396 (3rd Cir 1988)), ruled that Campbell had authority to consent (although, as noted, the court also ruled that that consent was superseded by defendant's refusal). We do not find Morales helpful. The only issue in that case was whether a person who is the driver, but not the lessee, of a rental car, can consent to a search of the entire car, and the court based its decision on the fact that Morales, as the nonlessee driver, had immediate possession of and control over the car: "By giving Morales control over the car, [the actual lessee] conferred on Morales power to consent to a reasonable search of it." Id. at 399. No such delegation of control exists on the facts of this case. The only evidence that Campbell had control of defendant's van was the fact that he had given her the key. However, as we have previously held, mere possession of the key to premises does not necessarily indicate complete access or control. Fuller, 158 Ore. App at 506 (consenting co-occupant had key, but nonetheless lacked authority to consent to search of nightstand).

[Note: No cases on the Oregon court's website since February.]