VoteKansas.org

There was a reasonable certainty that the defendant just crossed the border for the extended border search doctrine where he was seen near the border after having literally been seen on the Mexican side of the border shortly before that. “Proof of the border crossing beyond a reasonable doubt, however, is not the applicable standard. Guzman-Padilla, 573 F.3d at 880.” United States v. Nelson, 2012 U.S. Dist. LEXIS 32249 (D. Ariz. March 12, 2012), R&R 2011 U.S. Dist. LEXIS 154016 (D. Ariz. December 2, 2011).*

Based on the totality of defendant’s nervousness, lack of current logbook, inability to show where he was going on a map compared to where he said he came from and more all added up to reasonable suspicion. United States v. Fraguela-Casanova, 2012 U.S. Dist. LEXIS 32172 (M.D. Pa. March 12, 2012).*

Defendant failed to show false information was included in the affidavit for the search warrant under Franks. United States v. Kearse, 2012 U.S. Dist. LEXIS 32576 (E.D. Tenn. February 21, 2012).*

Just because a motorist is stopped with flashing lights, frisked, and put in a police car, that does not make it a “custodial interrogation” for Miranda purposes under Berkemer. United States v. Hernandez-Rodriguez, 2012 U.S. Dist. LEXIS 31918 (M.D. N.C. March 7, 2012):

When police question a suspect outside of a police station environment, however, “Miranda is not triggered simply because a person detained by the police has reasonable cause to believe that he is not free to leave.” United States v. Streifel, 781 F.2d 953, 961 (1st Cir. 1986); United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995) (“[T]he perception ... that one is not free to leave is insufficient to convert a Terry stop into an arrest.” (second alteration in original) (quoting United States v. Moore, 817 F.2d 1105, 1108 (4th Cir. 1987))). The “free to leave” standard, without more, determines whether an individual is “seized” within the meaning of the Fourth Amendment such that any evidence uncovered during a search conducted without a reasonable suspicion that criminal activity was afoot must be excluded. United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002) (“[A] ‘seizure’ warranting protection of the Fourth Amendment occurs when ... a reasonable person would not feel free to leave or otherwise terminate the encounter.”).

The fact that a person has been seized within the meaning of the Fourth Amendment, therefore, does not necessarily mean that he is “in custody” within the meaning of the Fifth Amendment. United States v. Collins, 972 F.2d 1385, 1405 (5th Cir. 1992) (“[A]lthough a temporary Fourth Amendment seizure may have occurred . . ., a Fifth Amendment custodial situation did not.”). Instead, the court must consider a “host of factors” in deciding whether the suspect’s freedom of action has been curtailed to “a degree associated with formal arrest.” Streifel, 781 F.2d at 961 (citation omitted). Those factors include the location of the questioning, the number of officers present, the degree of physical restraint exercised over the defendant, and the duration and character of the interrogation. United States v. Teemer, 394 F.3d 59, 66 (1st Cir. 2005).

Applying these factors in the context of a traffic stop, the Supreme Court in Berkemer v. McCarty, 468 U.S. 420 (1984), held that an individual subject to a routine traffic stop is not entitled to Miranda warnings prior to police questioning. According to the Court, routine traffic stops are “presumptively temporary and brief,” in contrast to station-house interrogations which can extend indefinitely. Id. at 437-38. In addition, the public nature of most traffic stops, coupled with the small number of police officers typically involved, indicate that “the atmosphere surrounding an ordinary traffic stop is substantially less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.” Id. at 438-39.

Here, Hernandez-Rodriguez’s vehicle was stopped for a clear traffic violation, and there is no indication that the trooper’s questions or the atmosphere of the encounter were coercive. ...

Donald A. Dripps, Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment, 81 Miss. L. J. 133 (2011). SSRN Abstract:

Granting for purposes of argument the general theoretical case for interpreting constitutional text according to some version of the original understanding, this contribution to the University of Mississippi's 2011 Fourth Amendment symposium argues that consulting founding-era practices at the particular level is not a faithful approach to the original understanding. I develop two lines of objection to specific-practices originalism (SPO). I call one the contextual critique and the second the dynamism critique.

The constitutional text was situated in the context of eighteenth-century institutions and doctrines that disappeared in the nineteenth century. The utter disappearance of the context means that we just don’t know what the founders expected the Fourth Amendment to prohibit, or permit, in a radically different legal and technological environment. The degree of privacy and liberty in 1791 were a product of the contemporary criminal justice system, the economic and technological social circumstances, and the legal regime that limited search-and-arrest powers. The rules of 1791 would have different consequences for liberty and security in a society like today’s, with full-time proactive police and modern technology.

The dynamism critique points out that the 1791 rules of search-and-seizure were not static. Tort law was the legal regime regulating search-and-arrest powers. Illegal detention gave rise to actions for false arrest or false imprisonment. Illegal entries of private premises gave rise to trespass suits. But common law can change. Precedents can be overruled, and new factual contexts require debatable applications of old principles. Most dramatically, common law rules can be trumped by statutes.

If the reasonableness clause perpetuates all the specific 1791 tort rules, the force of the contextual critique becomes overwhelming. If, however, the clause incorporates common law rules subject to plenary statutory revision, the constitutional provision is nugatory. Either the Fourth Amendment freezes search-and-seizure law in the form it had before the advent of modern police and modern technology, or it permits any search or arrest authorized by statute. Some search for principled middle ground seems in order. The interpretive mode most faithful to the original understanding is “aspirational balance of advantage originalism,” a mode practically very similar indeed to competing approaches such as common-law constitutionalism or legal process theory.

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Defendant took his computer to a friend who was going to do a software and hardware upgrade on it. While the friend was working on the computer, defendant volunteered there was child pornography on the computer and asked him to destroy it. Instead, he copied it for the police. If anything, defendant had a reasonable expectation that it would be disclosed to the police rather than destroyed when he gave the computer to another. State v. Ballard, 2012 N.M. App. LEXIS 10 (March 8, 2012).*

Defendant admitted he was speeding, so the officer had probable cause for a stop, and it ripened into reasonable suspicion for a longer stop based on what was observed and from information from other officers. United States v. Mudgett, 2012 U.S. Dist. LEXIS 31720 (D. Minn. February 22, 2012).*

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Use of defendant’s husband’s probation status to conduct a “probation search” led by the police was unreasonable and violated Griffin and Knights. Hensley v. State, 2012 Ind. App. LEXIS 89 (March 8, 2012):

This evidence reveals that the search was not conducted as a probation search, nor was it truly conducted for probation reasons. Instead, the police were pursuing their own agenda and conducted an investigatory search under the guise that it was a probationary search. The search was prompted by the police officers, not by the probation officer. Stuckey agreed that the police could join her in the search, as officers often do for the reason of safety. Instead of acting as Stuckey's backup, however, the police entered the home and left Stuckey alone with Hensley, without conducting a safety sweep of the home that purportedly contained a firearm. The police did not ask Hensley about the ownership of the home and failed to follow the lead of Stuckey, from whom they could have learned that Robert slept in the living room and not the bedroom. This search did not meet the guidelines for a valid search under Griffin.

. . .

To qualify as a constitutional search under Knights, the police would have needed to have reasonable suspicion that Robert had engaged in criminal activity. In the State's response to Hensley's motion to suppress, the State makes no mention of the reasoning in Knights, nor does it contend that these unsubstantiated tips provided "reasonable suspicion" to believe that Robert was engaging in criminal activity. Furthermore, the evidence found in Hensley's home was discovered under her bed and in her dresser drawer. Hensley was not on probation nor was she the person suspected of criminal activity. The search by Officer Tharp, which uncovered the marijuana and generic Xanax violated her Fourth Amendment right against unreasonable search and seizure under Knights.

Officers went to defendant’s property to conduct a knock-and-talk suspecting a commercial marijuana grow operation. After smelling growing marijuana and actually seeing it, one officer left to get a search warrant. While they were waiting, defendant came home and seemingly but equivocally consented, but the consent came into dispute. In the meantime, the search warrant issued, and this was an independent basis for the search. Starkey v. State, 2012 Alas. App. LEXIS 38 (March 9, 2012):

This distinction is explained by Professor LaFave: "[T]he inevitable discovery [doctrine] is hypothetical in nature, [and] it does not apply if [an] alternative, legitimate source is actually used to seize the evidence". Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 11.4(a), Vol. 6, p. 265, n. 55. 1 This distinction was also addressed by the Alaska Supreme Court in Smith v. State, 948 P.2d 473 (Alaska 1997):

[P]roperly applied, the "independent source" exception [to the exclusionary rule] allows the prosecution to use evidence only if it was, in fact, obtained by fully lawful means. ... The "inevitable discovery" exception ... differs in one key respect[:] ... the [challenged] evidence ... [was] not actually ... obtained from an independent source, but rather would have been discovered as a matter of course if independent investigations [had been] allowed to proceed.

Smith, 948 P.2d at 479-480 (emphasis added, and citations omitted).

One further aspect of the "independent source" doctrine must be emphasized: the doctrine applies to situations like the one in Starkey's case — situations where the police initially discover the evidence unlawfully, but ultimately take possession of the evidence through a lawful means that is untainted by the prior illegality. ...

Search incident of defendant’s vehicle was invalid because it was for a traffic offense and there was no evidence of the crime. Since this arrest was custodial, the vehicle was improperly impounded because it was lawfully parked and the officer made no effort to see if the passenger would drive the vehicle, thus obviating impoundment. Canino v. State, 2012 Ga. App. LEXIS 252 (March 7, 2012).*

A visitor to a house ran the risk that the host would consent to admitting the police who came in and saw the visitor’s suitcase and seized it. The police got a search warrant for the seized suitcase on probable cause. United States v. Cruz, 2012 U.S. App. LEXIS 4986 (3d Cir. March 9, 2012) (unpublished).*

The officer’s seeing defendant cross the center line was credited as the basis for the OVI stop, and the fact the video didn’t catch it didn’t make the stop unreasonable. State v. Lemaster, 2012 Ohio 971, 2012 Ohio App. LEXIS 846 (4th Dist. March 2, 2012).*

Grabbing defendant’s arm to remove him from a store during an investigative detention was not unreasonable. Some force or threat of force is implicit in a Terry stop and frisk. State v. Dewitt, 2012 Iowa Sup. LEXIS 23 (March 9, 2012):

At the outset, we reject the adoption of a per se rule prohibiting police from grabbing the arm of a suspect to stop and briefly detain the person to obtain an explanation for suspicious circumstances surrounding the stop. The right to make an investigatory stop "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455. Thus, it is necessary to assess every fact and circumstance of the situation in applying the constitutional standard of reasonableness. See Scott v. Harris, 550 U.S. 372, 383, 127 S. Ct. 1769, 1777-78, 167 L. Ed. 2d 686, 696 (2007) (indicating no easy-to-apply legal test exists to determine reasonableness of force under the Fourth Amendment).

A Bronx motel room search was found to be without exigent circumstances, as much as the government tried, but sustained on a strained reading of inevitable discovery because defendant's arrest made the room searchable. Defendant was wanted for a murder two weeks earlier upstate, and his hotel room was staked out, but the police got impatient, twice considering search warrants. United States v. Stokes, 2012 U.S. Dist. LEXIS 31513 (S.D. N.Y. March 7, 2012)*:

This is a tale of nine guns, a misguided prosecutor whose poor judgment jeopardized the safety of the public he is tasked to protect, and a motel clerk, who, by simply doing his job, has prevented the Fourth Amendment and its exclusionary rule from becoming a suicide pact.

. . .

Defendant makes much of the fact that the officers made a strategic decision not to obtain a warrant in order to evade Defendant's right to counsel. The officers' subjective reason for proceeding without a warrant is not relevant to MacDonald's objective test. However, the surrounding facts do bear on the exigent circumstances determination. For instance, Detective Perrotta had time to make two separate attempts to secure a warrant prior to entering room 57; there were no exigencies between the time the Marshals located the Defendant and the time of the warrant requests, and nothing happened after Detective Perrotta's second conversation with ADA Chase to create a newfound urgency in apprehending the Defendant. Moreover, when Detective Perrotta decided to approach Defendant without a warrant, his mission shifted from effecting a quick arrest to reasoning with the Defendant and trying to convince him to cooperate. The Court cannot see any urgent need to enter the motel room where the officer's goal was to talk first and then detain. Ultimately, the officers had nothing more than probable cause to arrest a murder suspect. That probable cause, standing alone, is not enough get the officers into the motel room and, as a result, is not enough to sustain the Government's burden of proof with respect to the exigent circumstances exception to the exclusionary rule.

. . .

Even if Defendant left the bag in his room, a proposition the Court finds highly unlikely considering his demonstrated concern about protection from retaliation for Kareem Porter's stabbing, then cleaning staff would have found the open bag of firearms along with the ammunition, ring, and documents that were in fact recovered when they went into the room to prepare it for another guest. Just as he did with the ammunition, ring, and documents, the Court has no doubt that Mr. Patel, in the ordinary course of business, would have turned the firearms over to law enforcement. In other words, the fact that additional ammunition was inevitably discovered in room 57 gives the Court a high level of confidence that the firearms would have been inevitably discovered as well. Defendant makes two points in opposition. First, Defendant argues that his arrest did not terminate his rental of room 57, which was paid through July 13, 2010, and therefore he had a reasonable expectation of privacy in the room post-arrest such that police could not search property recovered by motel cleaning staff without a warrant. However, Defendant cites no authority in this Circuit in support of his argument, and at least one court had made findings to the contrary. See United States v. Wyche, 307 F. Supp. 2d 453, 460-61 (E.D.N.Y. 2004) ("Wyche having been taken into custody on the basis of the witness identification, the police would have seized his luggage from his motel room. (It is unlikely that the motel owner would allow Wyche to indefinitely keep his belongings there.) ... Wyche's three weapons would have inevitably, and lawfully, been discovered in his duffel bag when the bag was later inventoried at the Fifth Precinct after Wyche's arrest."). Thus, if cleaning staff entered room 57 after Defendant's arrest but prior to the expiration of the rental period, found the bag of firearms, and turned it over to the police, there is no authority in this Circuit preventing law enforcement from searching the bag. Indeed, it is not at all clear that Defendant's expectation of privacy in a pre-paid motel room survives his arrest such that police could not enter the room or search items recovered from that room. See United States v. Rahme, 813 F.2d 31, 34-35 (2d Cir. 1987) (holding that "when a hotel guest's rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy" in the room or articles therein (emphasis added)); see also Patel Decl. ¶ 2 (noting motel policy of entering rooms to clean after tenants "check out or otherwise cease their stay").

Another self-fulfilling prophecy: We arrest you, then we can search your hotel room because you're not going back to it. That borders on the absurd, and is a clear manipulation of the Fourth Amendment. Let's just call this the "9-guns-in-a-motel-room exception to the Fourth Amendment."

An anonymous caller could be credited in a call about flight from a robbery where the facts of the call were corroborated by license number matching a vehicle with the same description of the getaway car and the excited nature of the event. In addition, “the anonymous call here may be comparable to an excited utterance. If a person wants to harass an enemy by providing false information to the police that would trigger an investigative stop, the person is unlikely to wait until the caller has just seen someone flee a crime scene.” Commonwealth v. Anderson, 2012 Mass. LEXIS 131 (March 9, 2012).

Standing with a group of other young man in a high crime area, having no gang colors, walking away when the officers approached, and being out of breath when the officer stopped him was not reasonable suspicion. In Interest of J. B., 2012 Ga. App. LEXIS 269 (March 9, 2012).*

A parent who does not know the child’s computer password doesn’t have apparent authority it consent to a search of the computer; rejecting United States v. Andrus, 483 F.3d 711 (10th Cir. 2007), as illogical and unwarranted. United States v. Griswold, 2011 U.S. Dist. LEXIS 153943 (W.D. N.Y. June 2, 2011) (just now on Lexis):

The government does not argue that the Second Circuit has yet adopted the Andrus holding on apparent authority as to password protected computers and the reasoning behind the Andrus decision has been questioned by both a leading Fourth Amendment scholar and several law review student commentators. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(g) at 180 (4th ed. 2004, 2010-11 Supplement) (“Remarkably, the majority in Andrus, on these facts, upheld the search on an apparent authority basis.”); David D. Thomas, Note, Dangerously Sidestepping the Fourth Amendment: How Courts Are Allowing Third-Party Consent To Bypass Warrants for Searching Password-Protected Computers, 57 Clev. St. L. Rev. 279, 304-05 (2009) (It is constitutionally wrong to “allow police officers to skate around the Fourth Amendment by intentionally avoiding asking questions of third parties while obtaining consent, as well as allowing them to ignore password “locks” on computers that, as shown, courts have held to be analogous to locks on physical items.”); Michael J. Ticcioni, Comment, United States v. Andrus: Does the Apparent Authority Doctrine Allow Circumvention of Fourth Amendment Protection in the Warrantless Search of a Password-Protected Computer, 43 New Eng. L. Rev. 339, 355 (Winter 2009) (“The Tenth Circuit erred in its holding that law enforcement agents were reasonable in relying on the apparent authority of a ninety-one year old man to consent to a search of his son’s password-protected computer.”); Michael Smith, Survey, The Fourth Amendment, Password-Protected Computer Files and Third Party Consent Searches: The Tenth Circuit Broadens the Scope of Warrantless Searches, 85 Denv. U. L. Rev 701, 723 (2008) (“The Andrus rule essentially does three things: first, it removes the requirement for a third party consenter to have a key to a locked container; second, it replaces the key requirement with a government actor’s reasonable belief that there is no need for a key; and third, it allows the use of technology to bypass a key (or password) without first determining whether the container (or computer) is locked.”); Noah Stacy, Comments and Casenotes, Apparent Third Party Authority and Computers: Ignorance of the Lock is No Excuse, 76 U. Cin. L. Rev. 1431 (Summer 2008) (“The court’s holding sets a dangerous precedent under which law enforcement may evade the Fourth Amendment requirement of either a warrant or valid consent by claiming ignorance of any password protection and relying upon the apparent authority of a third party.”); Sarah M. Knight, Casenote, United States v. Andrus: Password Protect Your Roommate, Not Your Computer, 26 J. Marshall J. Computer & Info. L. 183, 184 (Fall 2008) (“As a consequence of this holding, third-parties can consent to searches beyond their authority, and individuals’ efforts to secure their data are rendered useless.”); John-Robert Skrabanek, Note, Apparent Authority in Computer Searches: Sidestepping the Fourth Amendment, 97 Ky. L.J. 721, 728-29 (2008-09) (“By allowing such searches, these courts have created the incentive for law enforcement not to ask questions.”). In addition, in responding to a petition for rehearing, the Tenth Circuit panel in Andrus issued a decision limiting its holding to the “narrow question” presented by the facts and was not controlling authority on facts not presented such as a situation where “law enforcement confronts password protection or user profiles on home computers.” United States v. Andrus, 499 F.3d 1162 (10th Cir. 2007) (rehearing denied).

But aside from doubts as to its constitutional logic, the facts in Andrus are distinguishable in an important way from the search of Griswold’s laptop. In Andrus the court specifically relied on the fact that when the officers began opening files on the computer they were not aware (and did not inquire about) whether the computer was locked or password protected. “Even if [the defendant’s] computer was protected with a user name and password, there is no indication in the record that the officers knew or had reason to believe such protections were in place.” 483 F.3d at 721. Here, however, the proof is the opposite. Investigator Becker testified that before commencing the search he noted that “[t]he laptop was on and it showed a screen and it said Bryan on the screen and it said locked.” (Tr. at p. 67) (emphasis added). Instead of inquiring further about the fact that the computer was locked, Becker testified he then shut down the computer, inserted his special forensic software disk, booted up the computer, and then was able to “browse the hard drive without a password.” (Tr. at p. 67). The need for a password to enter an otherwise locked computer, known to Investigator Becker prior to opening any files and commencing his search, clearly indicated that Griswold had taken steps to protect his privacy and exclude others from looking at files on his laptop computer. At that point, without more information, it was unreasonable for the Investigators to assume that Mrs. Williamee had actual authority to consent to the search of her son’s laptop.

In sum, based on the totality of circumstances present here, I find that the government has failed to meet its burden of demonstrating that it was objectively reasonable for the Investigators to believe that Mrs. Williamee had the authority to consent to a search of a password protected laptop computer belonging to her eighteen year old son and retrieved from her son’s bedroom.

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