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WBIR.com: Lawmakers continue to push plan to drug test welfare recipients:

It's an idea in Nashville that just won't die.

Certain state lawmakers say they're not ready to give up on their plan to drug test welfare recipients, even though the attorney general says it's unconstitutional.

Lawmakers say they want to make sure those who receive public assistance are using the money as intended, and not for illegal drugs.

The plan is already moving ahead in both chambers even though the attorney general says drug testing those on benefits violates the Fourth Amendment.

Memphis Commercial Appeal: Sheriff's Office will no longer hold prisoners for 48-hour detention | Practice violates Tenn. constitution, court finds by Lawrence Buser, Daniel Connolly, Kevin McKenzie:

Local authorities have suspended the practice of detaining people in jail for up to 48 hours without charging them with a crime.

The move follows a scathing opinion by the Tennessee Court of Criminal Appeals at Jackson, which said the Memphis Police Department was routinely violating the Fourth Amendment of the U.S. Constitution. That amendment says authorities can't make arrests or search and seize property without probable cause. The opinion also said the policy violates Tennessee's constitution.

The appeals court had ordered that convicted murderer Courtney Bishop must get a new trial because the detention that led to his confession of shooting a man in a robbery was illegal.

It was the third time since 2001 the court had issued a harshly worded opinion criticizing the 48-hour detentions.

The case is here.

Bad search where officer’s testimony was clearly designed to skirt the constitution was not attenuated from a later search. United States v. Roberts, 2012 U.S. Dist. LEXIS 42752 (E.D. Pa. March 28, 2012):

The Fourth Amendment protects "against unreasonable searches and seizures." Faced with a motion to suppress, the Government bears the burden of demonstrating the reasonableness of a warrantless search or seizure. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). Here, the Government relied only on the testimony of Officer Kostick to meet its burden as to the October 7th search of Roberts and his van. As discussed supra, we do not believe Kostick's story. The objective physical facts, which are not subject to the biases of humans, prove his testimony to be false. We find his entire sequence of events (excessively tinted windows -> traffic stop -> failure to comply with commands -> drugs in plain view on the door -> gun in plain view on the floor) a fabrication, carefully constructed to stay just within the constraints of the Fourth Amendment. As such, the Government has not demonstrated the reasonableness of the October 7, 2010 traffic stop and subsequent search. This stop and search violated James Roberts' Fourth Amendment rights, and we have suppressed the evidence recovered during that search accordingly. (See Doc. No. 41).

Now we must tackle the difficult question of whether this Fourth Amendment violation taints the fruits of the December 21st search to which Roberts consented. Roberts contends it does, while the Government argues that time and intervening events have purged the taint. Because of the flagrancy of the constitutional violation that occurred here, we must agree with Roberts. Time cannot heal all wounds, and it cannot heal this one.

Attenuation proved: First search October 7th, second search December 21st; Davis must be considered. United States v. Roberts, 2012 U.S. Dist. LEXIS 42752 (E.D. Pa. March 28, 2012)*:

Not all Fourth Amendment violations warrant the suppression of evidence. The Amendment itself says nothing about suppression; rather, the exclusionary rule is a "prudential" doctrine with a singular purpose — to deter future Fourth Amendment violations. Davis v. United States, 131 S. Ct. 2419, 2426 (2011) (citation omitted). And as the Supreme Court recently reiterated, "real deterrent value" is a necessary, but not sufficient, condition for exclusion. Id. at 2427. Instead, we balance the hard-to-quantify social costs of exclusion (suppressing the truth) against its benefits (deterring police misconduct) and exclude the challenged evidence only when the latter outweighs the former. See id. at 2427-28 (cautioning that "[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield 'meaningful' deterrence, and culpable enough to be 'worth the price paid by the justice system.'") (citation omitted). Since we, as a society, have a compelling interest in deterring flagrant police misconduct, the more egregious the violation, the more likely it justifies exclusion. See id. (recognizing that "the deterrence benefits of exclusion 'vary with the culpability of the law enforcement conduct' at issue."). Importantly, our exclusionary rule analysis must account for the conduct of all the officers involved. See Herring v. United States, 555 U.S. 135, 140 (2009) ("In analyzing the applicability of the [exclusionary] rule, Leon admonished that we must consider the actions of all the police officers involved.").

. . .

On this particular point, we agree with the Government. As discussed supra, the point of the exclusionary rule is to deter police misconduct. The attenuation factors, including "temporal proximity" and "intervening circumstances," are really just clues that help us determine whether the benefits of suppressing certain evidence outweigh the costs. Here, the conduct we wish to deter is Officer Kostick's, not that of the agents who ultimately arrested Roberts on December 21st. Therefore, our purging-the-taint inquiry must center on the events of October 7th. The Defendant implicitly recognizes this, focusing entirely on Officer Kostick's conduct in discussing the "purpose and flagrancy" prong of the attenuation analysis. ...

Using October 7th as the starting point, the "temporal proximity" and "intervening circumstances" attenuation factors weigh against suppressing the fruits of the consensual December 21st search, but only slightly. As the Government points out, over two (2) months elapsed between Officer Kostick's search and Roberts' consent. Apparently, Roberts was not in police custody during this time. In addition, the agents who obtained Roberts' consent are different from the officer who committed the earlier illegality. All of this distances the December 21st search from the October 7th violation.

The affidavit twice used “recently” to describe when the officer learned of information from the CI. Coupled with a showing that this was an ongoing drug operation, that was enough to overcome staleness. Jones v. State, 2012 Tex. Crim. App. LEXIS 500 (March 28, 2012):

We have suggested that time is a less important consideration when an affidavit recites observations that are consistent with ongoing drug activity at a defendant's residence.33 We quoted from United States v. Johnson, in which the Tenth Circuit explained: "Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant."34 Other federal circuits have held that the nature of the activity must be considered, and that, in appropriate circumstances, years could pass without information becoming stale.35 In United States v. Greene, the Sixth Circuit explained that "[e]vidence of ongoing criminal activity will generally defeat a claim of staleness."36 And, according to that court, "where the criminal activity occurred in a 'secure operational base,' the passage of time becomes less significant."37

Greene was a case in which drugs were being sold out of a residence.38 Narcotics had been purchased at the residence at least twelve times, but the last reported time was twenty-three months before a warrant was sought.39 The Sixth Circuit found that the information was not stale.40 The Sixth Circuit has subsequently suggested that information about narcotics tends to go stale quickly but only "in the absence of information indicating an ongoing and continuing narcotics operation."41

The trial court properly denied a Franks hearing because the defense provided no offer of proof as to what was false and how it affected probable cause. State v. Pargo, 2012 Iowa App. LEXIS 228 (March 28, 2012).*

Taillight violation supported stop that revealed defendant was an “habitual” driving without a DL violator. State v. Hughes, 2012 Iowa App. LEXIS 266 (March 28, 2012).*

The trial court erred in not considering the defendant’s offer of proof of the 911 call and other things on the question of reliability of an anonymous tip, but, on de novo review, the court of appeals considers it and finds that it does not change the outcome. State v. Kooima, 2012 Iowa App. LEXIS 231 (March 28, 2012).*

Defendant took a pretrial application for writ to this court on a Gant issue denied by the trial court, and that order was law of the case and could not be appealed again on the direct appeal from the conviction. State v. Massey, 2012 La. App. LEXIS 413 (La. App. 5th Cir. March 27, 2012).

There was no proof that the officer’s challenged statements was anything more than negligent. One was a reasonable assumption based on the facts known to the officer at the time. United States v. Wyatt, 2012 U.S. Dist. LEXIS 42725 (W.D. Ky. March 28, 2012)*:

Just because there is no Fourth Amendment rights in prison does not mean that an inmate has no rights at all. Here, the inmate’s drinking mug was bought with his own money, and it was arbitrarily confiscated. He stated a claim under the takings clause of the state constitution. Johnson v. King, 2012 Miss. App. LEXIS 169 (Miss. App. March 27, 2012).*

BLT: Lacking GPS Data, Prosecutors Turn To Cell Tower Information:

Earlier this year the U.S. Supreme Court said federal prosecutors in Washington will not be able to use global positioning system information in an upcoming drug conspiracy trial here.

...

The Jones case is back in Washington federal district court, and it now turns out that the authorities may not need the GPS data to try to link Jones to the drug house.

Prosecutors said they intend to use cell tower data in place of the GPS information, court records show. Cell tower data was not used in either of the first two trials involving Jones.

Jones’ attorney, A. Eduardo Balarezo, late Thursday filed court papers (PDF) in the case challenging the prosecution’s planned use of tower data to show Jones’ movement in the Washington metropolitan area.

Cell tower information is less reliable than GPS because of the ability of a cell phone to leapfrog over cell towers to others less close, but most persons who claim to be experts on this will admit the failings.

Use of a metal detector to enter a building does not limit consent to just that. If it alerts, there is implied consent to a further search. Otherwise, don’t try to go in. Here, defendant was trying to carry drugs into a homeless shelter, and the metal detector went off. Here, it all ripened to reasonable suspicion. People v. Hurt, 2012 NY Slip Op 02408, 2012 N.Y. App. Div. LEXIS 2333 (1st Dept. March 29, 2012):

We reject defendant's argument that his implied consent was limited to the magnetometer search. When a person sets off a magnetometer by passing through it, the person can reasonably expect that security personnel will not permit entry into the restricted premises without taking whatever measures are necessary to find out what triggered the magnetometer. Otherwise, the magnetometer would have little value.

Since defendant never abandoned his attempt to enter the shelter, he implicitly consented to an expanded search. Defendant was free to cut off the search by turning around and walking out. The officer did nothing to suggest otherwise, and defendant never indicated that he no longer wished to enter.

Plaintiff was a part of the Bradley Manning/Wikileaks support network, and his computer was seized in Chicago by DHS after he passed through Customs and was waiting for a flight to Boston and he was questioned about his connection to Manning. The court concludes the seizure was valid, but the 49 day detention stated a claim for unreasonableness of the seizure. Also, his First Amendment claim survives a motion to dismiss. House v. Napolitano, 2012 U.S. Dist. LEXIS 42297 (D. Mass. March 28, 2012):

Considering these factors in light of Supreme Court precedent, it cannot be said that the search and seizure of House's laptop and other electronic devices was so intrusive as to require any particularized suspicion. House contends that the search of a laptop and electronic devices implicates one's "dignity and privacy interests," not because there was any disrobing, physical search of his person, force used or exposure to pain or danger, but because such devices contain information concerning one's thoughts, ideas and communications and associations with others. However, such a search of a laptop computer or other electronic devices does not involve the same "dignity and privacy interests" as the "highly intrusive searches of the person" found to require some level of suspicion such as strip searches or body cavity searches. Flores-Montano, 541 U.S. at 152. The Supreme Court has not explicitly held that all property searches are routine or that such searches are categorically incapable of implicating the "dignity and privacy interests of the person being searched," Id., but the search of one's personal information on a laptop computer, a container that stores information, even personal information, does not invade one's dignity and privacy in the same way as an involuntary x-ray, body cavity or strip search of person's body or the type of search that have been held to be non-routine and require the government to assert some level of suspicion.

ACLU’s page on case; ACLU press release on order.

Motion to suppress computer searches denied without prejudice, and the government is ordered to provide the computer search protocol to the defense so it can be determined whether the search was overbroad. United States v. Fu-Tain Lu, 2010 U.S. Dist. LEXIS 144395 (N.D. Cal. September 16, 2010):

The defense argues, however, that Agent Zaborowski's search was improper because the mirror images should have been turned over to a magistrate or third party to monitor any off site search. By engaging a third party to monitor the search of intermingled documents, the defendants contend that their Fourth Amendment rights could have been adequately protected. See id. at 595-96. The court finds, however, that Agent Zaborowski's method of searching adequately protected defendants' rights. By using software and word searches, the government avoided looking at documents that were likely to be outside the scope of the warrant. In a search of hard copy documents at a site, agents necessarily look at many documents that they do not seize because they are outside the scope of the warrant. With the method used by Agent Zaborowski, assuming he made appropriately narrow word searches, only those documents that had a likelihood of being within the scope of the warrant were examined by human eyes. Thus, potential Fourth Amendment concerns were minimized. Although Tamura and United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 997-9 (2009) suggest that when documents within the scope of a warrant are intermingled with documents not covered by the warrant and the documents are removed from the site for later review, the further search should be with the approval of a magistrate. However, Tamura did not consider the Government's utilization of a word search that would avoid looking at most, if not all, documents outside the scope of the warrant. It is doubtful that the method used by Zaborowski for searching electronically stored documents even existed at the time of Tamura. In Comprehensive Drug Testing the searching agents were exposed to drug testing records of non-parties whose privacy rights were clearly violated, a very different situation than that in the present case.

For the reasons stated, the court orders as follows:

1. Defendants' motion to suppress evidence is denied without prejudice to reconsideration if the defense discovers that the Government did a search of the mirror images that was not reasonably designed to find only documents, files or data described in the warrant;

2. The Government is to turn over the mirror images of the hard drives and thumb drives in its possession to the defense;

3. The mirror images of the hard drives and thumb drives are to be maintained in their present state by defense counsel or a third party escrow;

4. The Government is to return the eight 1.44MB floppy disks to defendants without reviewing them, is not to use them against defendants at trial and must destroy the CD onto which the floppy disks were copied;

5. The Government is to provide the defense with the word searches it used as best they can be reconstructed; and

6. The Government is to provide the defense with copies of any documents, files or data from the mirror images it book marked or otherwise selected or copied.

The placement of a GPS on defendant’s vehicle was authorized by binding precedent at the time, so Jones being decided after the fact requires Davis’s good faith exception be invoked. United States v. Leon, 2012 U.S. Dist. LEXIS 42737 (D. Haw. March 28, 2012):

The United States now concedes that Jones renders the placement and subsequent use of the GPS device unconstitutional. And so, the sole remaining issue in this case is whether the exclusionary rule applies, focusing on whether the agents acted with objective reasonable reliance on then-existing precedent permitting the attachment and subsequent use of a GPS tracking device. Based on the following, the court agrees with the Government that the exclusionary rule does not apply.

...

Unlike the placement of a GPS tracking device on the exterior of a vehicle in an area where a defendant has no legitimate expectation of privacy, neither Supreme Court nor Ninth Circuit binding precedent [United States v. McIver, 186 F.3d 1119 (9th Cir. 1999)] in 2009 authorized the agents to continuously monitor the location of the vehicle in public places for a prolonged period of time. Davis therefore is not directly controlling on this issue. Instead, the court must determine whether the agents exhibited "deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights" or whether they acted "with an objectively reasonable good-faith belief that their conduct [was] lawful." Davis, 131 S. Ct. at 2427. And after examining precedent as of 2009, the court finds that the agents' conduct in the use of the GPS tracking device was objectively reasonable.

Ohio distinguishes between “light” and “strong” odor of marijuana to determine whether smell is enough to search the trunk. Here, it was “strong.” State v. Ivery, 2012 Ohio 1270, 2012 Ohio App. LEXIS 1120 (11th Dist. March 26, 2012):

[*P25] However, the Ohio Supreme Court has also held that"[t]he odor of burnt marijuana in the passenger compartment of a vehicle does not, standing alone, establish probable cause for a warrantless search of the trunk of the vehicle." State v. Farris, 109 Ohio St.3d 519, 2006 Ohio 3255, 849 N.E.2d 985, ¶ 52 (where the officer detected only a "light" odor of marijuana and no contraband was found in the passenger compartment of the vehicle, a search of the trunk was improper).

[*P26] We hold that the search in this case falls under the automobile exception and that Shum did have probable cause to extend the search to include the vehicle's trunk. Many courts have found cases with similar circumstances to be distinguishable from Farris, such that a search into the trunk of the vehicle is proper under the automobile exception. ...

[*P27] In the present case, Shum testified that he smelled a "very strong" odor of marijuana upon approaching the car. In addition, after searching the interior of the car, he saw what he described as little "bits of marijuana." Upon speaking with Ivery, Shum was also informed that Ivery had been smoking marijuana that day. When considering all of these factors together, this case is distinguishable from Farris, and Shum had sufficient probable cause to search the trunk of the vehicle in addition to the interior.

"The US government can listen to my phone calls and read my emails, detain me indefinitely without charge, and incinerate me with a drone while I am abroad -- but to force me to buy health insurance would be to shred the Constitution and take away my freedom."
-- From Facebook

The state constitution does not impose a reasonable suspicion standard before a drug dog can be used on a vehicle. People v. Esparza, 2012 CO 22, 2012 Colo. LEXIS 224 (March 26, 2012).

Sobriety roadblock was set up by a supervisory officer two days earlier by surveying in the area. The fact only two officers manned the roadblock was not an issue to make it unreasonable. State v. Brown, 2012 Ga. App. LEXIS 337 (March 26, 2012).*

The district court didn’t find probable cause for arrest, but the appellate court does, so the false arrest claim is foreclosed. “In this case there was certainly arguable probable cause. The undisputed evidence showed that within seven minutes of being informed of a possible break-in and assault, Turner spotted Fleming in an alleyway approximately one-half block from the crime scene. Fleming was the only person in the area and he substantially matched the description of the intruder that one of the victims had given to Turner—he was wearing a baseball cap, t-shirt, and camouflage cargo shorts. From this evidence, a police officer could have reasonably, if mistakenly, believed that probable cause existed to arrest Fleming. This is true even if Haleigh had described Turner's t-shirt as ‘light-colored’ because witnesses often have minor details incorrect.” Fleming v. Livingston County, 2012 U.S. App. LEXIS 6268 (7th Cir. March 28, 2012).*

WNYC News Blog: NYPD Conducts Suspicionless Stops in Private Buildings: Suit by Ailsa Chang:

A federal class action was filed against New York City and Police Commissioner Ray Kelly on Wednesday for what plaintiffs allege are suspicionless stops within private residential buildings.

Under the NYPD's enforcement of a program known as Operation Clean Halls, a landlord enters into an agreement with the NYPD, which grants officers permission to patrol inside the building at any time they choose.

Defendant was the subject of a wiretap, and he was confronted on the street about having a gun in his possession. He allowed a frisk and no gun was found. Officers went to his house and knocked. When the door was opened, a gun was seen through the open door. Entry without a warrant was justified by exigent circumstances that the gun would disappear if it was not seized. Officers did not arrest on the spot to keep the wiretap viable. "Conversations subsequently monitored contained a statement by Shingles that 'I'm glad they didn't find that sawed off.'" United States v. Rodgers, 924 F.2d 219 (11th Cir. 1991); United States v. Smalls, 617 F. Supp.2d 1240 (S.D. Fla. 2008). United States v. Shingles, 2012 U.S. Dist. LEXIS 41130 (S.D. Fla. March 2, 2012).

Because no suspicion was required to search Asprilla and because probable cause existed that he was residing at his girlfriend’s Ingalls Street apartment, we need not consider whether the search was alternately justified by exigent circumstances.” United States v. Asprilla, 2012 U.S. App. LEXIS 6232 (9th Cir. March 27, 2012) (unpublished).*

Defendant allegedly threatened a neighbor with a gun, and the neighbor called the police. An officer ran defendant’s name finding a PV warrant out for a prior offense of FIPF. The officer went to defendant’s house, and his wife had apparent authority to consent to a search for the gun. United States v. Schmitz, 2012 U.S. App. LEXIS 6211 (11th Cir. March 27, 2012) (unpublished).*

Claim that officers made up the allegations of the affidavit for the search warrant still did not warrant a Franks hearing. He at least needs to make a proffer of the falsity and what rebuts. United States v. Wade, 2012 U.S. Dist. LEXIS 40754 (W.D. Pa. March 26, 2012):

7. Defendant did not, however, present a sufficient preliminary showing that the affidavit contained a false statement. He is, therefore, not entitled to a Franks hearing, and the court must deny the Motion for a Franks Hearing (ECF No. 57). Defendant presented no evidence to contradict any of the averments made in the application for the warrant. His attempt to eliminate the potential callers (and by process of elimination present testimony that no confidential informant called defendant at the appropriate time) failed. The warrant application contains a statement that the CI called Wade's phone sometime after 6:30 p.m. and before 6:55 p.m., which is when Churilla and the CI departed the police station heading to Wade's residence. There are at least five telephone calls from unidentified callers (Callers A, B, C, D, and E) in that time period which were answered, any of which could be attributable to the CI.

The government’s warrantless use of GPS on vehicles in violation of Jones does not lead to suppression. On the vehicle search, there was consent of the operator and no standing of the others. “Neither of these Defendants has presented evidence showing either an ownership or contractual interest in any of these vehicles or exclusivity of use such that would give rise to a legitimate expectation of privacy.” On a dwelling search, the evidence showed that a search warrant would have issued anyway under the independent source doctrine when the GPS information was removed from the warrant. On another vehicle search, there was independent probable cause for its search apart from the GPS monitoring. United States v. Luna-Santillanes, 2012 U.S. Dist. LEXIS 40532 (E.D. Mich. March 26, 2012).

GPB News: Welfare Drug Testing Bill Moves Forward by Jeanne Bonner:

ATLANTA—Georgia lawmakers have passed a bill that would require welfare recipients to take a drug test before receiving benefits. GOP supporters of the measure say it would save taxpayers money but opponents say it’s unconstitutional and uncharitable.
Georgia lawmakers have passed a bill that would require welfare recipients to take a drug test before receiving benefits. GOP supporters of the measure say it would save taxpayers money but opponents say it’s unconstitutional and uncharitable.

The bill would target what supporters call abuse of a government benefit, namely the federal welfare program.

It’s similar to a Florida law a federal judge has blocked because it violates the Fourth Amendment’s protection from unlawful search.

I hope when the Arkansas legislature comes back into session they will adopt such a law. I can use the money after suing them for adopting something so fundamentally unconstitutional.