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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.]

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.]

Oregon’s warrantless eavesdropping requirement to record a CI and his target requires exigency and probable cause. State v. Miskell, 2012 Ore. LEXIS 269 (April 26, 2012),* revg 239 Or. App. 629, 246 P.3d 755 (2010):

Another aspect of the provision's wording supports defendant's contention that the legislature had in mind the well-known constitutional doctrine of exigent circumstances that obviate the need for a warrant. Law enforcement officers who wish to proceed without a court order under ORS 133.726(7)(b) must be able not only to point to "circumstances of such exigency that it would be unreasonable to obtain a court order," but also must have "probable cause to believe that [the person whose communication is to be intercepted] has committed, is engaged in committing or is about to commit" a felony. The phrase "probable cause" inescapably alludes to a specialized legal concept associated with the constitutional prohibition (in both the Oregon and United States constitutions) against unreasonable searches and seizures, and its use in ORS 133.726(7)(b) appears to confirm that the entir provision, including the "exigency" wording, was intended as a reference to the familiar "probable cause plus exigent circumstances" exception to the warrant requirement. See, e.g., State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006) (warrantless search permitted if police could show probable cause and exigent circumstances).

On remand from Kentucky v. King, the Kentucky Supreme Court finds no exigency and suppresses again. The state failed in its burden to show exigency. King v. Commonwealth, 2012 Ky. LEXIS 45 (April 26, 2012):

This case is before this Court on remand from the United States Supreme Court, Kentucky v. King, __ U.S. ___, 131 S. Ct. 1849 (2011), rev'g King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010), to determine whether exigent circumstances existed when police made a warrantless entry into an apartment occupied by Appellant Hollis King. We conclude that the Commonwealth has failed to show circumstances establishing the imminent destruction of evidence. We therefore reverse the original ruling of the circuit court and remand.

. . .

Turning to the question at hand, we conclude that the Commonwealth failed to meet its burden of demonstrating exigent circumstances justifying a warrantless entry. During the suppression hearing, Officer Cobb repeatedly referred to the "possible" destruction of evidence. He stated that he heard people moving inside the apartment, and that this was "the same kind of movements we've heard inside" when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

The police officers' subjective belief that evidence was being (or about to be) destroyed is not supported by the record, and this Court cannot conclude that the belief was objectively reasonable. "[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed[.]" Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (citing Payton, 445 U.S. 573). Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.

Just because the defendant attempted to elude the police before, there was no exigency to enter a hotel room without a warrant because there was no evidence that the defendant knew the police were tailing him. United States v. Ramirez, 2012 U.S. App. LEXIS 8451 (8th Cir. April 26, 2012):

"We review the district court's findings of historical fact for clear error, but the ultimate determination of whether the facts as found constitute exigent circumstances is reviewed de novo." United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003). "The analysis of whether [the exigent circumstance] exception to the warrant requirement has been made out is an objective one 'focusing on what a reasonable, experienced police officer would believe.'" Id. at 1021 (quoting In re Sealed Case 96-3167, 153 F.3d 759, 766, 332 U.S. App. D.C. 84 (D.C. Cir. 1998)). "[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). When the exigency at issue is destruction of evidence, police officers must demonstrate a sufficient basis for an officer to believe that somebody in the residence (or hotel room, in this case) will imminently destroy evidence. United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988).

. . .

Looking then at the remaining two bases for the district court's analysis, the circumstances relied upon by the district court are not exigent. "The urgency that would justify allowing the police officers, rather than a neutral judicial officer, to draw the reasonable inferences supporting this entry is not present in these facts." United States v. Duchi, 906 F.2d 1278, 1282 (8th Cir. 1990). At the time these officers attempted to enter room 220, they reasonably believed that two of the occupants of room 220 possessed heroin in their shoes, and the officers believed that the men had, possibly, attempted to elude the police either to flee themselves, which seems more tenable, or, more tenuously, to destroy the evidence at some point. That the officers tracked the men also does not impact our analysis. There is no evidence supporting the inference that these men knew the police were tracking them at all, which might lend credence to that line of reasoning as it relates to the imminent destruction of evidence. Also, knowledge that drugs were in the room does not suffice to conclude that destruction was imminent.

This week we’ve gotten a bunch of publicity which has driven our Kickstarting the Butcher Shop project to over 93% funded. Check out the new Cartoon Info-Graphic by our son and daughter Ben & Hope.

If you haven’t been to visit it yet, go to http://smf.me where you can see a video of our farm, photos and description of our project. You can get great rewards including our pastured pork, bacon, hot dogs, sausage, T-shirts, ivory tusks and more.

Please back our project, even if only for a little bit. Help make the butcher shop at Sugar Mountain Farm a reality. We’re almost there!

Thank you!

-Walter

Score one for the family farm:

Under pressure from farming advocates in rural communities, and following a report by The Daily Caller, the Obama administration withdrew a proposed rule Thursday that would have applied child labor laws to family farms.

Critics complained that the regulation would have drastically changed the extent to which children could work on farms owned by family members. The U.S. Department of Labor cited public outcry as the reason for withdrawing the rule.
-DailyCaller.com

Be ever vigilant. Once the government gets their nose under the tent they rarely retreat. Rather they tend to force themselves more and more into control of our private lives. Government’s eyes should be looking outward, not inward at citizens lives.

Warrantless installation of a GPS tracker on defendant’s vehicle violated the Fourth Amendment under Jones, but it wasn’t the cause of defendant’s stop. He was being followed, and committed a traffic offense that led to his stop, and a drug dog was ultimately called in. State v. Adams, 2012 S.C. App. LEXIS 107 (April 25, 2012):

Here, the tracking device was installed while Adams's vehicle was parked in a public parking garage, and the device was used to monitor the vehicle's movements while it was on public streets and highways. Under Jones, the Department's installation of the device on Adams's vehicle and use of that device to monitor the vehicle's movements constituted a "search." Therefore, the Department's failure to obtain a warrant made that search unreasonable and resulted in a violation of Adams's constitutional rights. Nevertheless, we must still determine whether that violation required suppression of the drugs seized from Adams's person. For the reasons below, we find it did not.

. . .

Here, Sergeant Blair had probable cause to stop Adams's vehicle because he witnessed Adams commit two traffic violations. The officers acted reasonably in instructing Adams to step out of the vehicle while they waited for a license and registration report. Sergeant Blair was also permitted to walk his drug dog around the vehicle while waiting for the completion of Adams's license and registration check. The first alert occurred a mere five to six minutes after the traffic stop began, and no evidence in the record indicates the drug sniff extended the duration of the stop. Consequently, the officers' conduct up to that point was within constitutional bounds. Whether the drugs were admissible depends upon whether the resulting pat-down complied with Adams's Fourth Amendment rights.

Applying the “unique” Pennsylvania independence source rule, and pending two years before it was decided, is Commonwealth v. Henderson, 2010 Pa. LEXIS 3074 (April 25, 2010)*:

In the present circumstances, we are unwilling to enforce a "true independence" rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his crimes. In answer to the specific question presented, we hold that suppression is not required on account of Detective Evans' status as a member of the same police department as Detective Johnson. Rather, in light of the factual circumstances before the Court in both Melendez and Mason, we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct. Where such malfeasance is not present, we agree with the Superior Court that the Murray standard strikes the appropriate balance between privacy and law enforcement. See Lloyd, 948 A.2d at 881-82. Ultimately, we believe the "twin aims" of Article I, Section 8 — namely, the safeguarding of privacy and enforcement of the probable-cause requirement — may be vindicated best, and most stably, by taking a more conservative approach to the departure this Court has taken from the established Fourth Amendment jurisprudence.

Defendant denied he had a connection to the house at the time of the search, and that indicated that he had no standing. United States v. Sayles, 2012 U.S. Dist. LEXIS 57596 (S.D. Ind. April 25, 2012).*

Police officers sought a search warrant for defendant’s house to attempt to corroborate an allegation of sexual assault there. They were there to photograph the interior. Once inside, they found marijuana and guns in plain view. They got a second search warrant to seize them, and it was valid. United States v. Bogie, 2012 U.S. Dist. LEXIS 57831 (D. Vt. April 25, 2012).*

The trial court did not err in crediting defendant’s statement to the officer that he consented and a search warrant was not required. State v. Wright, 2012 Ohio 1809, 2012 Ohio App. LEXIS 1587 (5th Dist. April 23, 2012).*

Recognizing the right of access to search warrant papers by the target of a search and the press, the state sought impoundment of the records for a brief time until indictment, and this was reasonable under the circumstances. [The case also contains a summary of the law on access to materials.] New England Internet Café v. Clerk of the Superior Court for Criminal Business in Suffolk County, 2012 Mass. LEXIS 343 (April 25, 2012):

In sum, we do not agree with the plaintiffs that the Fourth Amendment requires that the target of government searches be given access to the materials supporting them prior to indictment or that an analysis separate from our recognized "good cause" analysis is required whenever a Fourth Amendment interest is asserted. On the other hand, we do not agree with the Commonwealth that the privacy and property interests protected by the Fourth Amendment's constraint on unreasonable searches are irrelevant to a judge's balancing of the interests of the parties in the circumstances presented here.

With this in mind, we turn to the manner in which the judge balanced the respective interests of the parties before us. After reviewing both the warrant affidavits and the assistant attorney general's affidavit on good cause, the judge concluded that "the contents of the affidavits are unexceptional." As he explained, and we so conclude after our own review of the impounded materials, the affidavits portray a generic gaming experience at a public place of business; they are innocuous and do not expose any secretive investigative techniques or clandestine operations. In light of the judge's findings, and the opportunity he properly extended to the Commonwealth to suggest the redaction of information that it believed was particularly sensitive, the Commonwealth's interest in preserving the secrecy of its ongoing investigation as described in the affidavits, while ordinarily compelling, was considerably diminished. See In re Search Warrants Issued August 29, 1994, 889 F. Supp. 296, 302 (S.D. Ohio 1995) ("redaction of the original affidavit is feasible and would meet the government's concerns regarding any ongoing criminal investigation"). Contrary to the Commonwealth's contention that the judge overlooked critical information pertinent to the good cause analysis, his acknowledgment of potentially sensitive information worthy of redaction reflects an appreciation of the Commonwealth's purported needs, as well as his conclusion that the Commonwealth had failed to demonstrate good cause to shield the documents in their entirety.

On the other side of the scale, the judge properly considered the extent of the materials seized from the plaintiffs, the closure of the plaintiffs' businesses, and the fact that, nearly two and one-half months after the searches had been executed, the plaintiffs had not yet been charged with a crime. There was no abuse of discretion. The judge's order allowing the plaintiffs' emergency motion to modify or terminate the impoundment order is affirmed.

Just because defendant had a state ID card with the address of the place searched doesn’t mean that he had standing. It is a factor, but it isn’t determinative. Here, the USMJ’s conclusion of no standing was supported by the record. United States v. Langford, 2012 U.S. Dist. LEXIS 57894 (N.D. Ga. April 24, 2012).

Stop of bus at a border checkpoint also involved a stop of a Jeep following the bus. They were suspected to be traveling together, and a few facts were confirmed which drew that reasonable conclusion, and there was reasonable suspicion. United States v. Finley, 2012 U.S. Dist. LEXIS 57926 (S.D. Tex. April 25, 2012).*

An IP address was associated with accessing child pornography, and it tied to an address. The police investigated the address and linked defendant to it. There was a substantial basis for issuance of the search warrant for the premises by the link of the IP address. United States v. Wunderli, 2012 U.S. Dist. LEXIS 57964 (E.D. Mo. March 27, 2012).*

Richmond Times Dispatch: Police to end 'wake-up calls' effort by Reed Williams:

One day after a civil liberties group blasted the Richmond Police Department for knocking on doors late at night to tell residents they are at risk of car break-ins, the department said it's ending the practice next week.

Since when has any police group cared what any "civil liberties group" thinks? This is more fundamental a realization.