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In a probation search, the government must first have probable cause to believe the home is the defendant’s, a fact not in dispute in this case. This search was based on a CI saying that defendant as involved in a homicide, but the CI’s track record and information was clearly lacking. A shotgun was found at defendant’s house. A California probation search, however, can be suspicionless, so the gun was not suppressed after all. United States v. King, 2012 U.S. App. LEXIS 5262 (9th Cir. March 13, 2012).

Where defendant’s father signed a consent to search form, his mother’s refusal to sign because she disagreed with the search was not binding on the police. Brunetti v. Comm'r of Corr., 2012 Conn. App. LEXIS 125 (March 13, 2012).*

A “road closed” sign is a traffic control device, and disobeying it justified a stop. State v. Morrissey, 2012 Neb. App. LEXIS 52 (March 13, 2012).*

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Today's Pastors are 'Lip Service' Pastors, 3-15-12

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Andrew Guthrie Ferguson, Virtual Curtilage: A Theory of Fourth Amendment Privacy in Public. SSRN Abstract:

This article proposes a new theory of Fourth Amendment privacy in public that builds off the legal construct of curtilage around private homes. Curtilage involves a publicly observable area defined as a protected space outside the home in which intimate activity associated with the sanctity of the home and the privacies of life are conducted. Arising from principles of property law and privacy conceptions that pre-date the Fourth Amendment, the idea is a well-grounded legal fiction that protects individuals beyond the four walls of the home.

This article takes the principle of curtilage applied to property, and applies it to the rest of the Fourth Amendment protections covering “persons,” “papers,” and “effects.” The “virtual curtilage” theory has been developed in response to growing surveillance techniques in public spaces, as well as difficulties in protecting thoughts and writings in the digital realm. The theory looks at the development of an historic legal concept that expanded privacy protections based on fundamental principles of property and privacy – a concept based not on what could be searched, but what should be searched consistent with societal rules. That limiting principle of protecting a zone outside the literal four walls of a home has renewed urgency as surveillance technologies increase on our streets and in our digital lives. In addition, building off the Supreme Court’s decision in United States v. Jones and other cases that have refocused interest on the property based-nature of the Fourth Amendment, the idea of curtilage remerges as a central organizing principle for redefining a reasonable expectation of privacy under the Fourth Amendment.

“Espada was the resident of the searched premises, while Cruz was a temporary guest who admitted that he had no control over the residence. In leaving the residence with his belongings still in the bedroom, unlocked and exposed in a doorless closet, Cruz assumed the risk that Espada would consent to a search of her residence.” United States v. Cruz, 2012 U.S. App. LEXIS 4986 (3d Cir. March 9, 2012) (unpublished). [This is tenuous at best, and it deserved a better, more detailed analysis than brushing it off without much in a per curiam. A guest has standing, but are their personal belongings subject to the whim of the host? Not usually. Why would the police even think that the host had apparent authority over the guest's stuff? This is just wrong as written. Hopefully the defense will ask for rehearing or try for cert.]

Defendant being a known drug dealer in an area where there might have been a drug deal 2-3 hours earlier in a vehicle that only might have matched the color of the one they were looking for wasn’t probable cause. United States v. Allen, 2012 U.S. Dist. LEXIS 32707 (M.D. La. March 12, 2012).*

Following CA7 (United States v. Reed, 539 F.3d 595 (7th Cir. 2008)) and CA8 (United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc)) and not CA9 (United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008)), CA5 finds that an absent cotenant who refuses to consent is not what was contemplated in Randolph. Defendant was in jail and refused to consent, so officers went to his house and got it anyway. [There is also a curtilage issue under Dunn.] United States v. Cooke, 2012 U.S. App. LEXIS 5269 (5th Cir. March 13, 2012):

We agree with the Seventh and Eighth Circuits that the objection of an absent cotenant does not vitiate the consent of a physically present cotenant under Randolph. First, as both courts noted, Randolph self-consciously emphasized the importance of Randolph's presence by repeatedly noting it when declaring and reiterating the holding. See Randolph, 547 U.S. at 106, 114, 121, 122, 123. Justice Breyer's concurrence confirms the importance of physical presence. Id. at 126 (Breyer, J., concurring). Second, the Randolph Court seemed to have structured the holding as an exception to the general rule of Rodriguez and Matlock that a cotenant may consent to the search of a residence, id. at 106, and that this exception was narrowly drawn along a "fine line." Id. at 121-22. Third, although it is a close question, social convention normally allows for a visitor to feel invited into a home when invited by a physically-present resident, even if an absent cotenant objects to it, rather than the visitor's assuming he is verboten forever until the objector consents.

Defendant was indicted for mail fraud for sending threatening letters. Investigators found threads under a stamp on the envelope. That and other things showed a nexus for a search warrant for defendant’s house. The fact that there had been a prior consent search did not mean that the police could not seek to come back if something had been overlooked. United States v. Carlson, 2012 U.S. Dist. LEXIS 32734 (D. Minn. March 12, 2012), R&R 2012 U.S. Dist. LEXIS 32727 (D. Minn. February 7, 2012):

The prior consent search — during which no evidence was seized — is irrelevant. First, there is nothing to suggest the scope of the prior search was exactly the same as the search authorized by the warrant. Second, failure to find items during a prior search does not destroy probable cause for a subsequent search, if there is reason to believe the evidence could have been overlooked. See United States v. Blom, 242 F.3d 799, 807 (8th Cir. 2001). Here, the affidavit indicated that the home was extremely cluttered, making it likely that relevant evidence was overlooked. Third, even if the evidence was not in Carlson's home at the time of the prior search, that absence is immaterial. See United States v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993) (holding that evidence does not need to be at the location to be searched at the time the warrant issues, so long as there was probable cause to support a belief that it will be there when the warrant is executed). The Court finds that the affidavit as a whole supported a conclusion that the items listed were likely to be in Carlson's home at the time the warrant was executed, and the warrant was, therefore, supported by probable cause.

By not securing the occupants of a rental car that was subject to impoundment for lack of an authorized driver, the need for a search incident was akin to the situation in Belton rather than Gant. United States v. Harmon, 2011 U.S. Dist. LEXIS 153996 (M.D. Fla. November 4, 2011).* [So, the officer can simply not secure the persons arrested and use that as an excuse for search incident? Better yet, the car was subject to impoundment for lack of a licensed driver. Period. This was deciding something that didn't need to be decided. Don't count on this case being good law.]

Defendant’s suppression motion was denied in 1998 and he appealed. He since had post-conviction hearings. “His repetitive frivolous motions and appeals will not change this court's ruling on the issue. It was determined more than a decade ago that the January 2, 1998, search of Claude Bellamy's house was by consent.” Bellamy v. United States, 2012 U.S. Dist. LEXIS 32458 (E.D. N.C. March 12, 2012)

Defendant was arrested in Belize for immigration violations and child pornography was found. He makes no showing whatsoever that American authorities had anything to do with it. United States v. McVicker, 2012 U.S. Dist. LEXIS 33164 (D. Ore. March 13, 2012).*

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The Queering of Our Military and God's Wrath, 12-21-10

Defendant conceded his cell phones were properly seized, but the government’s 90 day delay in getting a search warrant for the cell phones were unreasonable and required suppression. United States v. Shaw, 2012 U.S. Dist. LEXIS 32624 (N.D. Ga. February 10, 2012):

The facts of the instant case are not materially distinguishable from Mitchell [United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009),] and dictate the same result. In Mitchell, the computer hard drive was seized without Defendant's consent based upon the officers' belief it might contain child pornography. Likewise, in the instant case, the three cell phones were seized without Defendant's consent, incident to arrest and based upon probable cause to believe the phones may have been used in furtherance of the indicted drug conspiracy offenses. Like a computer hard drive, cell phones contain personal information, contacts, text messages, photographs, and other data maintained in electronic form. Also as in Mitchell, the government in the instant case has offered no substantial justification for its failure to obtain the warrants for more than ninety days, well in excess of the twenty-one days in Mitchell. Indeed, the government has offered no justification at all for the delay. Rather, the government relies primarily on the argument that Defendant did not ask for the return of his property and on the contention that the cell phones could be detained because they possessed evidentiary value in and of themselves, regardless of any information contained within them. Govt. Brief at 7, [Doc. 485].

. . .

With regard to the absence of any request for return of the property, there is no evidence that such a request was made in this case, or, for that matter, in Mitchell. Because this fact was not discussed or noted in Mitchell, the failure to request return would not appear to have figured significantly, if at all, in the Court's analysis. Likewise, the failure by Defendant to request return of his cell phones in this case should not change the result here.

As for the argument that the phones were evidence "in and of themselves" warranting indefinite detention, the government does not explain exactly how the phones would fall into such a category, or cite any authority for such a proposition. The phones were not in and of themselves contraband, nor was their evidentiary value readily apparent without regard to other information to be obtained from the phones. By extension of the government's logic, the hard drive in Mitchell could be considered evidence "in and of itself" subject to indefinite detention without a warrant because there was probable cause to believe it was used to facilitate the possession of child pornography.

Defendant certainly had a possessory interest in his personal property – his cell phones – that was significantly interfered with for more than ninety days, without Defendant's consent, before the government got around to obtaining a warrant. The fact that the Defendant was detained without bond and could not, himself, have accepted the return of the property does not equate with the government's right to exclude him or his designee from his property indefinitely without a warrant. Furthermore, the government has offered no justification or rationale for the delay. In short, the undersigned, applying the rule of reasonableness announced in Mitchell, concludes that the government's delay in the instant case was certainly as unreasonable, if not more unreasonable, than was the delay in Mitchell under substantially similar circumstances.

Accordingly, the undersigned RECOMMENDS that the motions to suppress, [Docs. 362, 338], be GRANTED and that the evidence obtained from the cell phones be suppressed.

The suspicious nature of defendant’s trip was apparent from his not really knowing where he was coming from or going or what he was carrying in his tractor-trailer. All this was developed after a stop for a frayed hose to the trailer. The questions were all unrelated to the stop, but still legitimate. United States v. Lopez-Merida, 2012 U.S. App. LEXIS 5081 (10th Cir. March 12, 2012) (unpublished)*:

But during a traffic stop an officer can request the documents concerning the travel-such as driver's license, registration, rental contract, or, as here, the driver's log and shipping documents. See id.; United States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004). The officer can also inquire about the trip being taken, see United States v. Vazquez, 555 F.3d 923, 928-29 (10th Cir. 2009), and can ask questions on any subject so long as the questioning does not prolong the detention beyond what is otherwise necessary to perform such routine tasks as computer checks and preparing reports and citations, see Karam, 496 F.3d at 1161. Moreover, if information obtained by such inquiries and other observations during the stop create reasonable suspicion to believe that a crime has been or is being committed, the officer can take reasonable steps to investigate. See Vazquez, 555 F.3d at 929.