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Affidavit for medical records that “might” provide evidence that defendant was DUI was constitutionally insufficient as based on an assumption. It was thus “bare bones” for good faith purposes. Willoughby v. State, 2012 Ga. App. LEXIS 378 (April 5, 2012). [Note: Georgia Court of Appeals cases were only available on LexisOne which ceased April 1. This court now has the distinction of being the only court in America without decisions online.]

Defendant was subjected to a full custodial arrest, so removing a .45 bullet from his pocket was not unreasonable under Terry. United States v. Villa, 2011 U.S. Dist. LEXIS 154625 (N.D. Ga. September 20, 2011), adopted, 2012 U.S. Dist. LEXIS 48448 (N.D. Ga. April 5, 2012).*

Whether the cooperating witness had apparent authority to consent was shown to be a factual dispute that required a hearing[, and the court will tell the parties what the law is in advance]. United States v. Wright, 2012 U.S. Dist. LEXIS 47828 (E.D. N.Y. April 2, 2012)* [Why didn’t the court just let the parties do it? This order is saying there’s a factual dispute for hearing, and there’s been no factual development.]

The defendant consented, and that obviated having to decide whether the third-party consent was valid. Inter alia, the undersigned observes that defendant is an adult, has had previous experience with police and is doubtless familiar with his rights.” United States v. Ray, 2012 U.S. Dist. LEXIS 48391 (E.D. Tenn. March 16, 2012).*

Touching the fog line ("as nearly as practicable within" within the lane) is not reasonable suspicion for a stop in Indiana. United States v. Peters, 2012 U.S. Dist. LEXIS 46977 (S.D. Ind. April 3, 2012)*:

To the extent that the Government argues that probable cause existed because, on one occasion, Officer Borgmann might have reasonably believed that the Denali momentarily and slightly touched the fog line, that argument fails as a matter of law. The statute commands only that drivers drive "as nearly as practicable within" the lane. While no Indiana case has addressed whether briefly touching a fog line violates the statute, courts in other jurisdictions have interpreted similarly worded statutes, and have rejected the Government's argument. See United States v. Colin, 314 F.3d 439, 444 (9th Cir. 2002) (collecting cases holding that momentarily touching but not crossing a dividing line does not violate a statute requiring that a driver drive as "nearly as practical entirely within a single lane." (emphasis omitted)). In opposition to those cases, the Government has collected cases of its own. Those cases are, however, irrelevant. They involve fact patterns involving "erratic" driving across one or both fog lines, ...; or "partially swerving off the roadway," .... No such behavior occurred here.

Defendant as stopped for a traffic offense, but it was quickly learned from the police computer terminal in the patrol car that there was an active warrant for him. The officer never bothered to follow up with the traffic offense, but this was not unreasonable. Defendant’s car would have been left on a busy street, so it was reasonable to tow and inventory it. The fact the search started immediately does not prove that the inventory was pretextual. A printout of the computer readout was admissible in lieu of the warrant because good faith is the only question. State v. Sanders, 2012 Ohio 1540, 2012 Ohio App. LEXIS 1357 (8th Dist. April 5, 2012).*

Defendant agreed to probation with a search at any time provision. The PO showed up at his parents place where he was living, and saw him on the back deck with a friend who hurriedly left. Drugs were validly found in a potted plant. State v. Burns, 2012 Ohio 1529, 2012 Ohio App. LEXIS 1342 (4th Dist. March 29, 2012).*

The officer did not violate the Fourth Amendment by knocking on the window of defendant’s car to wake him. When defendant woke up, he was dazed and confused, and that was reasonable suspicion to go further. State v. Jones, 2012 Ohio 1523, 2012 Ohio App. LEXIS 1337 (4th Dist. March 16, 2012).*

Sarah Palin turned in Couric-beating viewership numbers as a guest host on NBC’s Today Show. That must be slightly and secretly satisfying for her.

My dreams have turned to nightmares with folks working for the federal government purloining my wallet and running wild in Vegas.

VIRGINIA BEACH, Va. (AP) — Two Navy pilots ejected from a fighter jet Friday, sending their unmanned plane careening into a Virginia Beach apartment complex and engulfing several buildings in flames.

The plane had dumped loads of fuel before crashing, though it wasn't clear if that was because of a ...

Reason: 7 Rules for Recording Police, Courts are expanding rights but cops are cracking down. Find out how to keep your footage, and yourself, out of trouble by Steve Silverman:

Last week the City of Boston agreed to pay Simon Glik $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his 2007 felony arrest for videotaping police roughing up a suspect. Prior to the settlement, the First Circuit Court of Appeals unanimously ruled that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The Boston Police Department now explicitly instructs its officers not to arrest citizens openly recording them in public.

Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops.

Whit Carter has just pushed us up over the $10,000 funding level at our Kickstart the Butcher Shop project! That means we’re 40% funded at the one week mark! Congrats to Whit who unknowingly won a T-shirt! What other prize levels do I have in mind you might ask… Special numbers, round numbers, spiky numbers, prime numbers… Ah, the possibilities!

Thanks to everyone who has helped get us there. Ben is working on a new cartoon info-graphic to go with these breath taking heights as the graph soars higher.

Meanwhile, back on the ranch, a photographer from the local Times Argus newspaper was here to get pictures for a story they’re running. We had great weather and the pigs were posing out in the pasture for him. Yes, we actually have some green grass starting to show up! Wah-hooie! Or as the pigs are saying, Grunt!

Go check out our project and see the video of our farm and ongoing construction of our butcher shop. Back our project and you can get great rewards from swag like T-shirts to genuine pastured pig ivory tusks (some huge ones!) to the really good stuff: meat such as sausage samplers and Pick of the Pig!

VIRGINIA BEACH, Va. — A Navy jet crashed and set fire to an apartment complex in Virginia Beach on Friday and the two-member crew ejected safely, officials said.

Officials said at least two apartment buildings were on fire but there were no immediate reports of injuries on the ground. TV ...

Consent involuntary after Miranda violation. Defendant sought to ask a lawyer about what he was waiving, and officer kept questioning. Hebron v. State, 2012 Fla. App. LEXIS 5184 (Fla. 4th DCA April 4, 2012):

Defendant: Who can tell me? You got a lawyer here? Can we get a lawyer here that can tell me ... ?
Detective: No, let me ask you this. We don't have any lawyers who work here. Let me ask you this. Was it drug related ...

Seconds later, the defendant consented to police officers searching his apartment which uncovered the physical evidence utilized in the instant case. The defendant raised this issue before the trial court by way of a motion to suppress, arguing that his consent was obtained in violation of his right to counsel.

. . .

In the instant case, the defendant asked a clear question concerning his rights when he asked what his options were, stated that he did not know what the law was and asked "can we get a lawyer here?" The detective merely asserted that there were no lawyers on the staff and failed to provide a "simple and straightforward answer" to the question posed. The officer was required to properly answer the defendant's question regarding his Miranda rights before resuming the interrogation. See Almeida, 737 So. 2d at 525. The failure to stop the interrogation to answer the defendant's question tainted the subsequent consent to search, which, in turn, tainted the evidence seized. Because of this, the evidence discovered during the search of the defendant's apartment should have been suppressed. See Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992) (noting that evidence obtained by the State in contravention of the right to counsel may not be used by the State). Because the physical evidence uncovered in the apartment was so important to the prosecution's case, we cannot find that "there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

Washington rejects the Thornton “exception” to Gant on scope of search incident under state constitution. State v. Snapp, 2012 Wash. LEXIS 293 (April 5, 2012) (dissent here):

In the consolidated cases before us, the issue we must decide is whether an equivalent to Gant's second exception, referred to here as Thornton 1 exception, applies under article I, section 7 of the Washington State Constitution. We conclude that no such exception is permissible under article I, section 7. Accordingly, we reverse the Court of Appeals in both cases, reverse the defendants' convictions, and remand these cases for further proceedings consistent with our decision herein.

. . .

The specific issue raised in the present consolidated cases is whether the Thornton form of the exception will apply under article I, section 7. We conclude that it does not.

First, the underpinnings of the Thornton version of the exception do not justify its existence under article I, section 7. The Court in Gant adopted the Thornton exception given "circumstances unique to the vehicle context."

. . .

However, although the automobile exception is recognized for purposes of the Fourth Amendment, it is not recognized under article I, section 7. See Patton, 167 Wn.2d at 386 n.4; State v. Tibbles, 169 Wn.2d 364, 369, 236 P.2d 885 (2010) (in context of automobile search where suspect was not arrested; probable cause to search did not justify search of vehicle--"the existence of probable cause, standing alone, does not justify a warrantless search"); Ringer, 100 Wn.2d at 700-01. Although the Thornton exception is consistent with the rationale underlying the federal automobile exception under the Fourth Amendment, it lacks similar support under article I, section 7.

. . .

We also reject the State's proposal made at oral argument that a modified form of the Thornton exception, so to speak, be applied. The State proposed a vehicle search incident to arrest exception that would permit a warrantless search based on probable cause to believe that evidence of the crime of arrest might be found in the vehicle, rather than a reasonable belief as stated in Gant. As we said in Buelna Valdez, "when a search can be delayed to obtain a warrant without running afoul of" concerns for the safety of the officer or to preserve evidence of the crime of arrest from concealment or destruction by the arrestee "(and does not fall within another applicable exception), the warrant must be obtained. A warrantless search of an automobile is permissible under the search incident to arrest exception when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest." Id. (emphasis added). We emphasized that "time is of the essence" because in "some circumstances, a delay to obtain a search warrant might be shown to provide the opportunity for the arrestee to procure a weapon or destroy evidence of the crime." Buelna Valdez, 167 Wn.2d at 773 (emphasis added).

President Obama, commander-in-chief of post-racial America, was unavailable for comment.

The search incident of defendant’s car for evidence of child enticement would be saved by Davis in any event, so the search is not suppressed. As to the search of his house, the good faith exception would apply there, too. [The court never goes to the merits of the searches.] United States v. Lebowitz, 2012 U.S. App. LEXIS 6859 (11th Cir. April 5, 2012).* [Note: The 11th Cir. condones the stagnation of the Fourth Amendment since the merits go undecided. There is a perpetual gray area where searches are possibly unconstitutional, but we'll never know. I think it's really just judicial laziness or complete lack of judicial curiosity to decide real legal issues. GFE is easy and requires no thought because one's politics and constitutional apathy decides GFE questions.]

Officers had reasonable suspicion for defendant’s stop based on collective knowledge of intercepted phone conversations with drug slang. United States v. Donaldson, 2012 U.S. Dist. LEXIS 48083 (S.D. Ga. February 23, 2012).*

Search warrant for an apartment’s address was particular and with probable cause based on the address being in a Backpage.com ad. United States v. Latham, 2012 U.S. Dist. LEXIS 48397 (D. Minn. April 5, 2012)* [Based on the opinion, this wasn’t remotely arguable.]

Plaintiff’s claims include a Fourth Amendment claim, but no facts suggest a seizure or a search so no Fourth Amendment violation, and that is dismissed. Wilfong v. State Bd. of Ethics, 2012 U.S. Dist. LEXIS 47436 (M.D. La. March 5, 2012).*

Sixteen hour warrantless seizure of a FedEx package in transit for a dog sniff was unreasonable. The government directed FedEx to hold it, and that made FedEx its agent. (The government stipulated to one defendant’s standing, but it certainly appears to the court that she doesn’t have any. (n.1)) United States v. Poor, 2012 U.S. Dist. LEXIS 48292 (E.D. Ky. March 9, 2012):

Here, law enforcement directed FedEx to act by holding the parcels on March 2. The question then becomes whether FedEx's intent in complying was "entirely independent of the government's intent to collect evidence for use in a criminal prosecution." Howard, 752 F.2d at 227-28, vacated on other grounds, 770 F.2d 57, 62 (6th Cir. 1985)); see United States v. Jones, 2011 WL 5967230, at *2 (W.D. Tenn.) (identifying factors as whether police "'instigated, encouraged, or participated'" in search and whether "'individual ... engaged in the search with the intent of assisting the police'" (quoting United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985))). The Fourth Amendment does not apply if a private actor is "not acting as an agent of the Government or with the participation or knowledge of any government official." United States v. Jacobsen, 104 S. Ct. at 1652, 1656 (1984) (citation and internal quotation marks omitted). The burden of proving agency generally falls on the defendant. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citation omitted). Here, Hart's own testimony clearly establishes the agency relationship.

WASHINGTON — Maryland's highest court is poised to hear arguments in a precedent-setting case involving two women who married in California but were denied a divorce in Maryland, which does not currently allow same-sex weddings.

The Court of Appeals of Maryland in Annapolis was set to hear arguments Friday from ...

The Puerto Rican coffee importing business his sufficiently regulated that Burger applies. The beans here were seized after an administrative inspection under PR law. United States v. 323 "Quintales" of Green Coffee Beans, 2012 U.S. Dist. LEXIS 47775 (D. P.R. March 30, 2012), R&R 2012 U.S. Dist. LEXIS 47765 (D. P.R. March 9, 2012):

The Supreme Court stated in Burger that an administrative search qualifies as an exception if: (1) the state has a substantial interest in regulating the industry (2), the inspection is necessary to further the regulatory scheme, and (3) the inspection is properly limited in scope and puts the business owner on notice that the search is being made. Burger, 482 U.S. at 702-703. The second part of this last requirement is satisfied if the regulatory scheme is "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Id. at 703 (quoting Donovan v. Dewey, 452 U.S. 594, 600 (1981)).

The laws of Puerto Rico contain a comprehensive set of provisions pertaining to the regulation of the coffee industry. P.R. Laws Ann. Tit. 5, § 320 et. seq.; Tit. 13, §§ 2201-2205. The laws relating to coffee production express the need to protect the local coffee industry and eradicate plant pests and diseases on coffee plantations. P.R. Laws Ann. Tit. 5, §§ 319-319g. The Court agrees with the Magistrate's determination that these provisions evince a substantial government interest in regulating the coffee industry in order to meet local consumption needs and promote the economic health of the industry.

(Lorenzo J. Palomares-Starbuck appeared for the beans.)

"Unprecedented"? Judicial review has been the centerpiece of the American constitutional system since Marbury v. Madison in 1803.

“[W]e adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix's home in violation of Payton requires neither the suppression of statements made outside of the home after Felix was given and waived his Miranda rights, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix's warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of his home is admissible: Felix's signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix's clothing seized at the jail, as well as any derivative evidence.” The court declines to adopt a separate rule under the state constitution. State v. Felix, 2012 WI 36, 2012 Wisc. LEXIS 29 (April 3, 2012).*

Petitioner’s Fourth Amendment claim was decided on the merits in state court, so it could not be considered on habeas. Rashad v. Lafler, 2012 U.S. App. LEXIS 6765, 2012 FED App. 0093P (6th Cir. April 5, 2012).

Seizure of defendant’s cell phone at the end of his interrogation was reasonable and based on exigent circumstances. Officers has probable cause to believe that the phone contained evidence and that it should be seized. United States v. Robison, 2012 U.S. Dist. LEXIS 47092 (D. Minn. March 16, 2012).*

The court finds defendant was free to leave when his papers were handed back to him, but he agreed to stay when the officer asked if he could ask a few questions. Defendant said that consent had to come from the other person which was agreeing to continue the encounter. United States v. Quintero-Felix, 2012 U.S. Dist. LEXIS 46377 (N.D. Iowa April 3, 2012).*

“Prior to conducting a warrantless probation search, an officer must have probable cause to believe the probationer lives in the residence to be searched.” United States v. Gibson, 2012 U.S. Dist. LEXIS 47138 (N.D. Cal. April 3, 2012).*

Defendant’s IAC claim was that it somehow violated the Fourth Amendment for police to continue to keep records lawfully seized for several years was rejected. No case even suggests that was unlawful, so how could defense counsel be ineffective? United States v. Lecroy, 2012 U.S. Dist. LEXIS 47030 (N.D. Ga. March 30, 2012).*

For a man who held himself out as a model of bipartisanship, this president manages to insinuate himself into every imaginable issue on which he has a strong opinion.