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Warrant was vague as to a search for “further analysis” of the digital media, so the subsequent searches were suppressed. The first searches are enough for the case to proceed. United States v. Salceda, 2012 U.S. Dist. LEXIS 28211 (C.D. Cal. February 27, 2012):

The government conducted searches of defendant's digital media in September and October 2011 based on the following language of the original search warrant:

If, after conducting such an initial search [within 60 days from the date of the execution of the search warrant], the case agents determine that a digital device is an item to be seized or contains any data falling within the list of items to be seized pursuant to this warrant, the government will retain the digital device for further analysis; otherwise, the government will return the digital device.

. . .

The Court finds that any evidence discovered during the September and October 2011 forensic searches is inadmissible. The original warrant's "further analysis" language is ambiguous as to whether it permits the government to analyze defendant's digital devices for additional evidence of contraband, or whether it merely permits additional analysis of previously discovered contraband. Given this ambiguity, suppression of the evidence is appropriate. See Transfiguracion, 442 F.3d at 1228 (construing ambiguities in plea agreements in favor of a defendant because the government, as drafter of the agreement, bears the "responsibility for any lack of clarity") (internal quotation marks and citation omitted); Wilhelm, 425 F.3d at 463 (finding fourth amendment violation because officer "recognized the warrant as ambiguous before the execution of the warrant, but failed to immediately stop execution and seek the necessary clarification of a warrant in order to make certain the warrant particularly described the place to be searched. ..."). The Court's decision is informed by the fact that the government sought—and was denied—a new warrant from Judge Zarefsky, and thereafter sought ex parte relief from this Court before conducting the subsequent searches. At the very least, the government's conduct demonstrates its acknowledgment that the "further analysis" language is ambiguous. In denying the government's ex parte application, the Court directed the government to seek clarification from the issuing judge to cure any ambiguities. Because the government chose to proceed with the searches without clarification or without securing a new search warrant, that evidence must be suppressed. See Wilhelm, 425 F.3d at 463.

Arrest of capital murder suspect on an outstanding traffic warrant was valid, and pretext was not a valid argument. Johnson v. State, 2012 OK CR 5, 2012 Okla. Crim. App. LEXIS 4 (March 2, 2012):

[*P12] Appellant first asserts that his arrest on outstanding warrants was illegal because it was solely a pretext to hold him for questioning about the homicides. However, if police have a valid right to arrest an individual for one crime, it does not matter if their subjective intent is in reality to collect information concerning another crime. Bland v. State, 2000 OK CR 11, ¶ 48, 4 P.3d 702, 718. "Whether a Fourth Amendment violation has occurred, 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, ... and not on the officer's actual state of mind at the time the challenged action was taken.'" Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985) quoting Scott v. United States, 436 U.S. 128, 136-39 n. 13, 98 S.Ct. 1717, 1722, 1724 n. 13, 56 L.Ed.2d 168 (1978). See also Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89, 98 (1996) (Supreme Court reiterated its position that it was unwilling to entertain Fourth Amendment challenges based upon the actual motivations of individual officers); Phillips v. State, 1999 OK CR 38, ¶ 41, 989 P.2d 1017, 1031. If the police action could have been taken against an individual "even absent the 'underlying intent or motivation,' there is no conduct which ought to have been deterred and thus no reason to bring the Fourth Amendment exclusionary rule into play for purposes of deterrence." See 1 Wayne R. LaFave, Search and Seizure § 1.4(e) (4th ed. 2004). In other words, if the alleged pretextual arrest could have taken place absent police suspicion of Appellant's involvement in another crime, then the arrest is lawful. In the present case, Appellant was arrested on outstanding warrants which were issued before the murders occurred. The officers legally executed the valid arrest warrants and their subjective intent does not make this otherwise lawful conduct illegal or unconstitutional.

I wouldn't have raised this argument, but it's a capital case and defense counsel has to pursue issues that seem weak anyway. At least in my state we can raise it in trial court and not bother to argue it on appeal, but, by rule and statute, the issue is deemed decided on the merits for post-conviction purposes without cluttering the appeal with seems to be a frivolous issue.

Defendant was free to go when she consented to a search of her purse, despite her language difficulties and she was outnumbered by the police. The “asked” “rather than commaned[ed].” United States v. Nieto-Rojas, 2012 U.S. App. LEXIS 4500 (9th Cir. March 5, 2012) (unpublished)*:

The district court held that Appellant was not in custody when her purse was searched, reasoning that the officers were deferential and protective rather than commanding, that they asked rather than demanded to search her purse, that they did not physically control her at any time or display their weapons, and that they told her multiple times that she was free to go when her ride arrived. Appellant argues she was in custody because there were three officers on the scene, she was cited for traffic violations, English was not her native language, she watched the officers conduct an inventory search of the car, her passenger was searched in front of her, and she was told that she could leave when her ride came but she was not told she could leave before. We agree with the district court that Appellant was not in custody. Appellant was told several times she would be free to leave when her ride came. She did not ask to leave before her ride came. It was not unreasonable for the officer to stay with Appellant and her passengers while she waited for a ride, given the dangers of the busy highway.

If the district court had found consent involuntary, likely that would have been affirmed on appeal, given the standard of review.

In what is a footnote to the GPS case, Jones’s claim previously barred by Heck can conceivably be resurrected by F.R.C.P. 60(b)(5), not by mandamus, but qualified immunity may be a problem [it will]. In re Jones, 2012 U.S. App. LEXIS 4575 (D.C. Cir. March 6, 2012)*:

Two years after the district court dismissed Jones’ civil case¸ this Court reversed Jones’ conviction. See United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). The Supreme Court recently affirmed that ruling. See United States v. Jones, 132 S. Ct. 945 (2012). Because Jones can now show that the dismissal of his civil suit was “based on an earlier judgment that has been reversed or vacated,” he might consider filing a motion in district court under Fed. R. Civ. P. 60(b)(5). See Robinson v. Connell, No. 9:05-CV-1428 (GLS/ATB), 2010 WL 6268444, at *2 (N.D.N.Y. Sept. 8, 2010) (magistrate report and recommendation) (Second Circuit remanded civil claim, which had been dismissed under Heck, to district court to consider motion under Rue 60(b)(5) after criminal sentence was allegedly vacated), on remand from No. 08-1992-pr (2d Cir. Aug. 25, 2009). In the alternative, Jones might consider re-filing his complaint. Although Jones expresses concern that re-filing might raise “statute of limitations issues,” Pet. Br. 13–14 n.3, the Supreme Court has implied that, even if Jones’ claims had accrued before the district court dismissed them under Heck, the statutes of limitations should be tolled as long as the bar of Heck prevented Jones’ suit from going forward. See Wallace v. Kato, 549 U.S. 384, 395 n.4 (2007) (“Had petitioner filed suit upon his arrest and had his suit then been dismissed under Heck, the statute of limitations, absent tolling, would have run by the time he obtained reversal of his conviction. If under those circumstances he were not allowed to refile his suit, Heck would produce immunity from § 1983 liability, a result surely not intended.”).

Plaintiff’s claims for the wrongful towing of his car after his arrest were shown to be Heck barred. Dismissals for Heck bars are without prejudice. Rowell v. Ewing Bros. Towing Co., 2012 U.S. App. LEXIS 4625 (9th Cir. March 6, 2012) (unpublished).*

Defendant’s stop was justified for reasonable suspicion, and that is all the standard is; not proof beyond a reasonable doubt. United States v. Turrentine, 2012 U.S. Dist. LEXIS 28511 (W.D. Okla. March 5, 2012)*:

While the defendant's evidence might well be sufficient to raise a reasonable doubt as to whether defendant committed the traffic violation, that is not the standard here. For present purposes, the question is whether the government has established by a preponderance of the evidence that the violation occurred, hence justifying the trooper's action. The court concludes it has. Trooper Painter testified that he observed the violation and the court found his testimony to be generally credible. Defendant's suggestion that the trooper's smile shown on the video is inconsistent with observing a traffic violation is speculative and ultimately unpersuasive.

Changing information from the CI served to enhance his credibility. The CI was believable and supported the stop, as did only the information that the police knew. United States v. Pete, 2012 U.S. App. LEXIS 4501 (3d Cir. March 5, 2012) (unpublished).*

John McCain's Attack On Liberty 8-24-10

Senator Durbin and the FDA Viciously Attack Dietary Supplements, 7-26-11

Gizmodo: Police Drone Crashes into Police:

The Montgomery County (Texas) Sheriff's Office had a big day planned. After becoming the first department in the country with its own aerial drone ($300,000!), they were ready for a nice photo op. And then the drone crashed into a SWAT team.

. . .

Not only did the drone fail [at 18' altitude], and not only did it crash, it literally crashed into the police. It's no wonder we're not able to find a video of this spectacular publicity failure. Luckily, the SWAT boys were safe in their Bearcat.

This would be a fine one-off blooper story if it weren't for some upsetting implications. This is exactly why we have reason to raise multiple eyebrows at Congress, which wants to allow hundreds of similar drones to fly over US airspace. These drones are still a relatively young technology, relatively unproven, and relatively crash-prone. The odds of being hit by one are low, of course, but should a Texas-style UAV plummet ever happen in, say, a dense urban area, nobody would be laughing. Not all of us are driving around in Bearcats. [Examiner]

Defendant used a buddy’s work computer to do internet searches on “how to kill a baby, how to have a miscarriage, and how to find a missing person.” He was told before the search that the company could see it. The computer was password protected but the search history was available to IT. He was convicted of arranging the murder a 14 year old he impregnated. He had no reasonable expectation of privacy in the internet search history after the computer was turned over the police after the murder. State v. Robinson, 2012 Kan. LEXIS 149 (March 2, 2012). [The court did not have to go this far to show a lack of REP in the search history. It was somebody else's computer, and he assumed the risk it would be found and turned over to the police. That's all it had to say.]

An officer approached a van parked too long in a McDonald’s parking lot and he saw the occupants “moving frantically as if they were trying to hide something or retrieve something.” He yelled, “‘Show me your hands,’ and moved toward the front of the van; neither individual complied.” He pulled his gun, and ordered them from the vehicle and then searched for a weapon. This did not constitute an arrest, and was for officer safety. State v. Walker, 2012 Ohio 847, 2012 Ohio App. LEXIS 739 (2d Dist. March 2, 2012).*

The fact that defendant was a little slow in responding to an officer’s command to put his hands on the steering wheel does not justify a protective weapons search of the car. The officer first called him "reluctant," then qualified it. In addition, the government used every innocuous fact to attempt to show reasonable suspicion and came up short [damaging its credibility in the meantime; like a lawnmower and weedeater in the trunk must have meant the defendant was trading for drugs]. United States v. James, 2012 U.S. Dist. LEXIS 28355 (E.D. N.C. January 19, 2012).*

Trash pulls and a records check of the resident showing a drug history was probable cause for issuance of a search warrant for drugs in the house. State v. Mooney, 2012 Ohio 852; 2012 Ohio App. LEXIS 745 (5th Dist. February 23, 2012).*

Police responded to a shooting call and asked for permission to look in defendant’s house to see if anyone was shot. Defendant let them in. The officer could see marijuana and scales in plain view in the kitchen and, through a floor heating vent, he saw marijuana in baggies. The officer removed the vent grill and pulled out what he could. Then he went to the basement to get the rest by removing the ductwork. All this was reasonable. State v. Smith, 2012 Ohio 845, 2012 Ohio App. LEXIS 737 (2d Dist. March 2, 2012).*

Based on a CI’s tip, the details of which had panned out completely, as soon as defendant was stopped, the officer reached for the center console and found a gun where the CI said it would be. Also, there was cocaine there. Defendant was not secured at the time it happened, and it “cleanly” fit within the Michigan v. Long protective weapons search exception. United States v. Ware, 2012 U.S. App. LEXIS 4425, 2012 FED App. 0244N (6th Cir. March 1, 2012) (unpublished).

It was a reasonable condition of supervised release in a child pornography case to submit to searches of any computers or devices which may access the internet. United States v. Grigsby, 2012 U.S. App. LEXIS 4423 (9th Cir. February 27, 2012) (unpublished)*:

The district court did not abuse its discretion by imposing a condition of supervised release pursuant to 18 U.S.C. § 3583(d) requiring that Grigsby submit to searches and seizures of computers and related devices. "Subjecting computers and other devices able to access the Internet to monitoring, search and seizure is critical to preventing [Grigsby] from viewing or obtaining child pornography." United States v. Goddard, 537 F.3d 1087, 1090 (9th Cir. 2008). This condition of supervised release is sufficiently narrow because it applies only to those devices connected to the Internet. See United States v. Quinzon, 643 F.3d 1266, 1272-74 (9th Cir. 2011) (analyzing an identically-worded condition of supervised release).

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The Power Elite and the Muslim Brotherhood, Part 9, 3-5-12

Setting the stage for America's degraded future, Part 1, 12-13-10

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The Craziness of Humans Worldwide 7-25-11

Volokh: Are Historical Cell-Site Data Protected Under the Fourth Amendment After United States v. Jones? by Orin Kerr:

No, concludes Judge Bennett in United States v. Graham (District of Maryland, March 1, 2012). Judge Bennett concludes that historical cell-site records are not protected because they fall under the third-party doctrine: ...

[posted here, too].

The American tragedy of Joe Paterno 11-14-11

Teaming wreckage of humanity: immigration's ultimate path, 3-5-12