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FoxNews.com: Taking Liberties: Cab driver isn't paranoid, the government IS watching him by Douglas Kennedy:

Just because taxi driver Andre Olczak believes he’s being watched, doesn’t mean he’s paranoid

In fact, he’s not only being watched, he’s being monitored every second while he’s at work.

“It’s terrible,” he says as he drives his yellow cab on W. 48th St. in midtown Manhattan.

“They are constantly watching me.”

“They” are the TLC, or Taxi and Limousine Commission, the government body that licenses taxi drivers in New York City. In 2007, the TLC required all cabbies to install GPS or Global Positioning System devices to monitor their locations, speed and meters while they’re driving.

My last post about TLC's GPS monitoring was back in September 2010. Are taxicabs “highly regulated” for fare ripoffs? FoxNews being FoxNews, it probably does not have a sense of history on this.

Defendant’s consent to a computer search for child pornography was voluntary. He was seemingly gregarious when talking with the officers explaining his obtaining child pornography. [For staleness cases, note that defendant admitted eight years worth of stuff.] United States v. Schaefer, 2012 U.S. Dist. LEXIS 60977 (E.D. N.Y. May 1, 2012):

First, the circumstances surrounding the consent to search were non-coercive. In particular, the Court finds that (1) the defendant was approached at his own residence during the early evening; (2) the two agents and detective who came to his home to speak with him were in plain clothes, and their weapons were not drawn; (3) the agents asked the defendant for permission to enter his home, which he granted; (4) the agents introduced themselves and stated that the reason for the visit related to child pornography; (5) the defendant was never handcuffed or placed in custody by the agents; (6) the entire interview and search took one-half hour; and (7) no threats or promises were made to the defendant during the interview or search.

Second, the defendant orally consented to the search and also signed a written consent form which (1) specifically advised him of his right to refuse consent, (2) stated that he understood that information obtained by the search could be used against him, and (3) stated that no threats or promises had been made in exchange for consent.

Third, with respect to the characteristics of the defendant, the Court notes that the defendant is a 53-year old who graduated high school, reads English, manages a deli department, and is familiar with computers. Thus, his personal characteristics also favor a finding that he voluntarily consented to the search.

Greg Palast from the oil soaked heart of America, Houston TX. Greg Palast live DVD - Coming Soon.

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Massachusetts engages in a sensitive analysis of abandonment and subjective reasonable expectation of privacy and concludes that a fleeing suspect who stashes a backpack under a bush in a neighbor’s yard really didn’t have one. (Alternatively, there were exigent circumstances.) Commonwealth v. Carnes, 2012 Mass. App. LEXIS 182 (May 2, 2012):

A search in the constitutional sense requires that the defendant must have had a subjective expectation of privacy in the item or place searched, and that such expectation must have been one that society recognizes as reasonable. See, e.g., Commonwealth v. Pina, 406 Mass. 540, 544, cert. denied, 498 U.S. 832 (1990); Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). "The defendant bears the burden of establishing both elements." Commonwealth v. Montanez, 410 Mass. at 301. Here, the judge's conclusion of abandonment requires us to consider whether the defendant manifested a subjective expectation of privacy in the place searched, and in the contents of his backpack, which "could be considered objectively reasonable or legitimate." Commonwealth v. Straw, 422 Mass. 756, 759 (1996). More particularly, abandonment is a question of intent, which may be inferred from words, behavior, and other objective facts. See generally Commonwealth v. Paszko, 391 Mass. 164, 184 (1984).

Because we conclude that the defendant's actions in discarding the backpack in the back yard of his best friend suggest a subjective expectation of privacy, we focus on whether the defendant's subjective expectation of privacy "could be considered objectively reasonable or legitimate." Commonwealth v. Straw, 422 Mass. at 759. First, we consider that the defendant concealed his backpack outside, in a back yard in which "by law, he ... had no reasonable expectation of privacy." Id. at 761. He was neither the owner nor did he establish any right of control over the property. See Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (defendant put drugs in friend's purse over which he had no control or right to exclude others); United States v. Hershenow, 680 F.2d 847, 855-856 (lst Cir. 1982) (defendant had "no legal interest or even access rights" to the storage barn where he directed another to hide a box of incriminating evidence). See also Commonwealth v. Williams, 453 Mass. at 207-209 ("defendant lacked a reasonable expectation of privacy in the basement area [of her mother's apartment building] in which she had deposited some possessions"); United States v. Soto, 779 F. Supp. 2d 208, 219 (D. Mass. 2011) (defendant had no legitimate expectation of privacy in computer's hard drive left in vehicle defendant obtained by fraud and turned over to third party; hard drive deemed abandoned). Contrast Commonwealth v. Mubdi, 456 Mass. 385, 391-394 (2010), citing with approval Commonwealth v. Williams, supra.

. . .

In sum, the defendant's act of hiding his backpack in the bushes in his best friend's yard without establishing that he placed the backpack in someone else's control, while he was trying to avoid apprehension, and in particular, while he was in possession of a handgun, fails to evoke an expectation of privacy that society is willing to recognize as reasonable. See Commonwealth v. Carter, 424 Mass. 409, 412 (1997) (art. 14 "does not relieve a defendant who unlawfully intruded on someone else's reasonable expectation of privacy from establishing that he had a reasonable expectation of privacy himself"). The motion judge properly concluded that the backpack had been abandoned. See generally United States v. Morgan, 936 F.2d at 1570-1571, cited with approval in Commonwealth v. Straw, 422 Mass. at 760-761; United States v. Soto, 779 F. Supp. 2d at 219.

One could wish that all courts would do this analysis. Few would. Still, the defendant loses, but he can't complain he wasn't adequately heard.

John Yoo gets immunity under Ashcroft v. al-Kidd for the “Torture Memo.” Padilla v. Yoo, 2012 U.S. App. LEXIS 8934 (9th Cir. May 2, 2012):

After the September 11, 2011 attacks on the United States, the government detained Jose Padilla, an American citizen, as an enemy combatant. Padilla alleges that he was held incommunicado in military detention, subjected to coercive interrogation techniques and detained under harsh conditions of confinement, all in violation of his constitutional and statutory rights. In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice's Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was not "sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]" the plaintiffs' rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo's tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not "beyond debate" at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla's alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

Defendant was found to have consented to a search of his car after the stop was based on knowledge of a warrant. He was at least twice told he could refuse consent. And “[h]e did not interview with the Pretrial Services Officer so the amount of his education is not available; he appears intelligent enough making a practice of not consenting to a search or refusing to speak to the Pretrial Services Officer; there was no problem with his language ability.” United States v. Capps, 2012 U.S. Dist. LEXIS 60054 (E.D. Mo. February 24, 2012).*

Defendant was found to have consented. Even if he hadn’t, the drugs would inevitably have been found by an inventory search on impoundment because the officers already knew that the LPN didn’t belong with the car. United States v. Capps, 2012 U.S. Dist. LEXIS 60055 (E.D. Mo. April 30, 2012).*

Defendant’s statutory argument that a city could not impose its city speed limit on unimproved land near the border is rejected. Peck v. State, 2012 Ida. App. LEXIS 31 (April 30, 2012).*

Defendant was detained for Miranda and Fourth Amendment purposes when he was found nearly dying in the desert and Border Patrol EMT’s questioned him. United States v. Vasquez-Corrales, 2012 U.S. Dist. LEXIS 59818 (D. Ariz. April 5, 2012).*

Second frisk by another officer was still reasonable because the first was “was hardly comprehensive,” and defendant’s actions strongly indicated he was hiding something. United States v. Roach, 2012 U.S. App. LEXIS 8768 (4th Cir. April 30, 2012):

Roach's conduct during the stop only heightened the officers' suspicion that he possessed a weapon. Roach was seen contorting his body, sitting "upright" and "half off the [front passenger's] seat." J.A. 74-75. While in that strange posture, he repeatedly thrust both hands behind him toward his pants and waistband area, all the while watching Officer Burnem, who was at the time preoccupied with the driver. Roach persisted in these movements, moreover, even after Officer Kruger opened the back door of the car and ordered Roach to put his hands up. Those movements, consistent with concealing or retrieving a weapon, would have led a reasonably prudent officer to fear for his or her safety. See United States v. Hamlin, 319 F.3d 666, 671-672 (4th Cir. 2003) (defendant's "repeated attempts to reach toward his groin area gave [the officer] reason to believe that [the defendant] was armed and dangerous"). Meanwhile, the driver's odd behavior upon being stopped — namely, exiting the vehicle rapidly while leaving the car door ajar — reinforced the officers' apprehension.

Given these circumstances, Roach appears to concede that Officer Kruger had sufficient justification to perform an initial Terry frisk for the presence of weapons. See Brief of Appellant at 13 ("Officer Kruger may have developed a reasonable suspicion to search Roach"). Roach argues, however, that any authority to frisk him under Terry vanished as soon as Officer Kruger's patdown uncovered no weapon. In Roach's view, any subsequent patdown was unlawful because Officer Kruger's failure to detect a weapon on him allayed any reasonable suspicion.

The perception of danger, however, did not dissipate with Officer Kruger's frisk. As an initial matter, Roach impeded Officer Kruger's patdown by defying his instructions. He repeatedly brought his hands and elbows down to his waistband area, sought to remain close to the car, and resisted spreading his feet apart. Those movements indicated that Roach was concerned about something Officer Kruger might find. Indeed, Officer Kruger testified that he was compelled to handcuff Roach during the frisk because Roach's movements caused him to be concerned "for officer safety." J.A. 82.

The state had jurisdiction to try an offense against state law that occurred on fee land located on an Indian reservation, and state officers could execute a search warrant there. Nevada v. Hicks recognizes that states can prosecute state crimes on fee land. State v. Clark, 2012 Wash. App. LEXIS 861 (April 12, 2012)*:

¶14 This case is neither Baker nor Mathews. Unlike Colorado in the Baker case, Washington had jurisdiction over the crime it was prosecuting. Mathews is a little closer factually, but even if the quoted observation is treated as a rule of law, it has been superseded by Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001).

¶15 In Hicks, the court faced the question of whether a tribe could assert jurisdiction over state officers serving a state warrant on reservation trust land. The court answered the question in the negative, noting that states typically have jurisdiction over reservation lands unless a competing policy interest prohibited it. 533 U.S. at 361-65. The court specifically ruled that state officers could enter the reservation and serve a search warrant for a crime committed within the state's jurisdiction. Id. at 363-64.

L. Song Richardson, Police Efficiency and the Fourth Amendment, 87 Indiana Law Journal 1143 (Summer, 2012):

This Article argues that provocative new research in the mind and behavioral sciences can transform our understanding of core Fourth Amendment principles. Recent research in the field of implicit social cognition-a combination of social psychology, cognitive psychology, and cognitive neuroscience -demonstrates that individuals have implicit (nonconscious) biases that can perniciously affect the perceptions, judgments, and behaviors that are integral to core Fourth Amendment principles. Drawing from recent implicit social cognition research and prior work, this Article attempts to solve a conceptual puzzle that continues to stymie courts and Fourth Amendment scholars. How can the reasonable suspicion standard promote efficient policing-policing that protects liberty against arbitrary intrusion while simultaneously promoting effective law enforcement?

The reasonable suspicion standard attempts to strike a delicate balance between individual privacy rights and law enforcement needs. This standard serves law enforcement interests by permitting officers to act on their suspicions of criminal activity even in the absence of probable cause. However, in order to prevent arbitrary police actions, courts impose an articulation requirement that obliges officers to justify the intrusion by stating the facts-not mere hunches-that led them to feel suspicious of the individual's ambiguous behaviors. Courts then review these facts to determine whether they give rise to a reasonable inference of criminality.

Ultimately, the standard fails to protect against unjustified encroachments upon individual liberty because it treats suspicion as an objective concept. Courts assume that it is possible to objectively determine whether people are acting suspiciously. They also assume that only people who are behaving suspiciously will be accosted by the police and restrained in their freedom to walk away. This assumption is crucial to the efficacy of the safeguards against arbitrary policing offered by the reasonable suspicion standard.

This Article makes the case, however, that the assumptions driving Fourth Amendment stop-and-frisk jurisprudence are flawed; they are based upon a critical misunderstanding of the nature of suspicion. Implicit social cognition research demonstrates that implicit biases can affect whether police interpret an individual's ambiguous behaviors as suspicious. For instance, studies repeatedly reveal that people evaluate ambiguous actions performed by non-Whites as suspicious and criminal while identical actions performed by Whites go unnoticed. The current operation of the articulation requirement does not ameliorate the problem because an officer will likely be unaware that nonconscious biases affected his or her interpretation of ambiguous behavior. Thus, an officer who acts on his suspicions can easily point to the specific facts that he believes made him feel suspicious without even realizing that implicit biases affected how he interpreted the behavior.

. . .

My argument unfolds in three parts. Part I introduces the science of implicit social cognition and examines its relevance to core Fourth Amendment principles. Part II scrutinizes the reasonable suspicion standard and exposes its weaknesses. Part III draws from implicit social cognition research to reconceptualize the reasonable suspicion standard. It ends by considering some of the benefits and shortcomings of this new approach.

Via Race, Racism, and the Law.

WaPo: Profiled at airport? There's an app for that:

A Sikh advocacy group launched a free mobile application Monday that allows travelers to complain immediately to the government if they feel they’ve been treated unfairly by airport screeners. Launched at midnight Monday by the Sikh Coalition, the FlyRights app had fielded two complaints by 10 a.m.

ACLU news release: Government Settles Charity’s Lawsuit Over Unconstitutional Terrorism Probe:

The U.S. Treasury Department has settled a lawsuit brought by KindHearts for Charitable Humanitarian Development, an Ohio-based charity that was under investigation for alleged ties to terrorism.

After a string of legal victories for the group, including court findings that the government’s actions violated its due process and Fourth Amendment rights, the government has agreed to remove it from a blacklist and let it distribute funds raised for humanitarian causes consistent with the intent of donors. Details of the agreement were announced today.

This is the first time the government has agreed to de-list a frozen organization as a result of a lawsuit, and to then allow it to distribute its assets.

The last Kindhearts case is here.

Defendant lacked standing to challenge the stop of a vehicle that he was two blocks away from at the time of the stop and did not argue that he had an expectation of privacy. Art. III standing does not apply. [Like this court had any choice?] United States v. Ruiz-Zarate, 2012 U.S. App. LEXIS 8682 (8th Cir. April 30, 2012):

Ruiz does not argue that he had a reasonable expectation of privacy in Morales's truck at the time of the stop. Rather, he contends that he has "standing" to raise a Fourth Amendment challenge because he suffered an injury-in-fact "that is fairly traceable to the challenged action of the defendant, and likely to be redressed by a favorable decision." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009) (quotation, citation, and alteration omitted). Our court has previously rejected Ruiz's argument, concluding that this "concept of 'standing' has not had any place in Fourth Amendment jurisprudence ... since the Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), indicated that matters of standing in the context of searches and seizures actually involved substantive Fourth Amendment law." United States v. Green, 275 F.3d 694, 698 n.3 (8th Cir. 2001) (quotation, alteration, and citation omitted). "Fourth Amendment rights are personal and may not be vicariously asserted." United States v. Randolph, 628 F.3d 1022, 1026 (8th Cir. 2011) (quotation and citation omitted). Thus, to challenge a search or seizure under the Fourth Amendment, "the defendant must show that (1) he has a reasonable expectation of privacy in the areas searched or the items seized, and (2) society is prepared to accept the expectation of privacy as objectively reasonable." United States v. Stults, 575 F.3d 834, 842 (8th Cir. 2009) (quotation and citation omitted). Here, Ruiz-Zarate had no reasonable expectation of privacy in Morales's vehicle, which he neither owned nor was near at the time of the traffic stop. Consequently, Ruiz-Zarate cannot raise a Fourth Amendment claim.

A bailbondsman sued for assault and trespass was not entitled to a qualified immunity defense when he came into plaintiff’s home. He was sued under § 1983 because he had police officers with him. Gregg v. Ham, 2012 U.S. App. LEXIS 8696 (4th Cir. April 30, 2012)*:

Applying the test articulated in Richardson [Richardson v. McKnight, 521 U.S. 399, 404 (1997)], we conclude that the history and policy behind the qualified immunity defense do not support extending it to bail bondsmen. First, there is no evidence that bail bondsmen have historically been afforded immunity for their actions. In fact, courts have rejected the notion that bail bondsmen act as an arm of the court or perform a public function. See, e.g., Ouzts v. Md. Nat'l Ins. Co., 505 F.2d 547, 554-55 (9th Cir. 1974) (rejecting the "strange thesis" that a bail bondsman is "an arm of the court"); Fitzpatrick v. Williams, 46 F.2d 40, 40 (5th Cir. 1931) ("The right of the surety to recapture his principal is not a matter of criminal procedure, but arises from the private undertaking implied in the furnishing of the bond.").

Second, the policy justifications underlying qualified immunity do not apply to bail bondsmen. See generally Bailey v. Kenney, 791 F. Supp. 1511, 1523-25 (D. Kan. 1992) (concluding that "[w]ith respect to bail bondsmen, the court finds none of the compelling policy reasons that traditionally justify the availability of qualified immunity to state actors performing discretionary functions"). Courts have traditionally afforded qualified immunity to public officials because susceptibility to suit would distract them from performing their public functions, inhibit discretionary action, and deter desirable candidates from performing public service. See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). There is no need, however, for qualified immunity to shield bondsmen from suit, as they are not entrusted with a public function. To the contrary, while the law certainly allows a bail bondsman to apprehend a fugitive, that right is exercised in tandem with the obligation of law enforcement to accomplish the same objective. See Bailey, 791 F. Supp. at 1524.

Moreover, rather than operating in the interest of public service, the work of a bail bondsman is fueled primarily by a strong profit motive. See Richardson, 521 U.S. at 409-10 (highlighting the importance of "ordinary marketplace pressures"). Accordingly, even if bail bondsmen are entrusted with a public function, the economic incentives inherent in the system would "ensure an ample number of qualified persons willing to assume the occupational risks of apprehending fugitives." Bailey, 791 F. Supp. at 1524.

In sum, neither history nor policy support extending the qualified immunity defense to bail bondsmen. Ham is therefore unable to show error, plain or otherwise, based on the district court's jury instruction on a defense to which he was not entitled.

Officers responding to a shooting call were validly in the defendant’s residence. They did a protective sweep that extended into the attic, and it was valid. Guns and drugs were in plain view in the attic and seized. United States v. Cruz, 2012 U.S. Dist. LEXIS 59708 (N.D. Ga. March 19, 2012).

The inventory of defendant’s car was proper because it was being towed because it would have been left blocking traffic. Defendant’s mother arrived after the inventory started, and the officer was not obliged to let her have it. [Although, I’m sure he could have, but the inventory would still have been valid up until then, like the withdrawn consent after something found.] State v. Pullen, 2012 Ohio 1858, 2012 Ohio App. LEXIS 1631 (2d Dist. April 27, 2012).*

In a search warrant for child sexual exploitation with photographs on a camera, cell phone, or computer, the fact that the victim was referred to as a “juvenile” was enough for probable cause. It would have been better to have listed the DOB of the juvenile, but close enough for government work. The court also chides defense counsel for the lateness of the motion to suppress, but doesn’t rely on that because it invites an IAC claim. [Not to mention the government may not have quickly provided the search warrant materials; try getting them around here sometimes, especially if a state court issued the warrant and the feds are using it.] United States v. Gleaves, 2012 U.S. Dist. LEXIS 59508 (N.D. Iowa April 27, 2012).*

The trial court found a lack of consent in part because the officer yelled at the motorist to stay with the car, but the appellate court was not persuaded. Safety reasons need to be considered. State v. Miller, 2012 Ohio 1901, 2012 Ohio App. LEXIS 1659 (4th Dist. April 17, 2012)*:

[*P28] After our review of the stipulated evidence submitted in the case sub juice, we disagree with the trial court's conclusion that the appellee did not voluntarily consent to the search. The trial court relied upon the following factors to determine that appellee did not consent: (1) the trooper ordered appellee to remain in the vehicle; (2) the trooper removed appellee from the vehicle; and (3) the trooper did not advise appellee of his right to refuse. With respect to the first of these factors, the trooper was entirely justified to order appellee to remain in the vehicle. As the United States Supreme Court has recognized, traffic stops carry inherent dangers and law enforcement officers are entitled to exercise authority over the driver and any passengers in order to maintain a sense of safety. See Arizona v. Johnson (2009), 555 U.S. 323, 330, 129 S.Ct. 781, 172 L.Ed.2d 694 (recognizing that "traffic stops are 'especially fraught with danger to police officers" and that "'"[t]he risk of harm to both the police and the occupants [of a stopped vehicle] is minimized *** if the officers routinely exercise unquestioned command of the situation."'") (internal quotations and citations omitted). Thus, the trooper's command that appellee remain in the vehicle does not constitute a coercive or threatening act.

If you're a law professor, you probably already have seen this call for papers for a symposium: CrimProfBlog: AALS call for papers on Technology and Crime: The Future of the Fourth Amendment in Public:

The AALS Section on Criminal Justice will hold a panel during the AALS 2013 Annual Meeting in New Orleans entitled: Technology and Crime: The Future of the Fourth Amendment in Public.

We are soliciting papers to consider for presentation in conjunction with this panel. Current confirmed speakers on this distinguished panel include Christopher Slobogin, Vanderbilt University Law School, Tracy Meares, Yale Law School, and Orin Kerr, George Washington University School of Law. The panel will be moderated by Andrew G. Ferguson, UDC David A. Clarke School of Law.

Panel: Technology and Crime: The Future of the Fourth Amendment in Public

New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.

Use the comments of this post during this month if you have things you would like to bring to people’s attention and are not sure where else to post them. I’ll make a new Bulletin Board each month for free posting.

Have at it, communicate and keep up the good fight!

Cheers,

-WalterJ

Requesting identification of everybody in a parked car was not an investigative detention under Hiibel. Commonwealth v. Au, 2012 Pa. LEXIS 982 (April 26, 2012) (dissent).

Error in the body of the affidavit that included another person [apparently from the computer cut and paste] was a mere “scrivener’s error.” One could tell who was the target of the search from the totality of the affidavit. United States v. De La Torre, 2012 U.S. Dist. LEXIS 58884 (E.D. Okla. February 16, 2012).

There was a swearing match as to whether a particular controlled buy occurred before a search warrant was issued, and the district court found that it did. That was enough for a search warrant to issue, and the district court’s determination was binding. The officer omitted some information from the affidavit about the CI’s credibility, but, if it was included, the warrant would have issued anyway. Finally, there was probable cause and the good faith exception applied. United States v. Richardson, 2012 U.S. App. LEXIS 8629 (5th Cir. April 27, 2012).*

Anticipatory search warrant failed here because there was no probability that the drugs would be found in a particular place. Commonwealth v. Wallace, 2012 Pa. LEXIS 981 (April 26, 2012):

As the parties recognize, the United States Supreme Court, in Grubbs, established two requirements which an affidavit of probable cause in support of an anticipatory search warrant must meet under the Fourth Amendment: (1) "there is probable cause to believe the triggering condition will occur;" and (2) "if the triggering condition occurs 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Grubbs, 547 U.S. at 96-97 (emphasis omitted). The high Court also held that "[t]he supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination." Id. at 97.

The high Court has made abundantly plain that the triggering event itself must be probable, and thus that an anticipatory search warrant for a search of a person's home may not be issued solely upon a claim that fruits of a crime will be found inside if a triggering event, such as delivery of contraband to the home, takes place and the warrant is executed. Justice Scalia, writing for the majority in Grubbs, explicitly and aptly cautioned in this regard: "If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered — though for any single location there is no likelihood that contraband will be delivered." Id. at 96 (parentheses and emphasis omitted).

. . .

Likewise, this affidavit of probable cause contained a paucity of information concerning the basis of knowledge for the informant's assertion that he could purchase drugs at Appellant's home at the time and date specified in the affidavit. The means by which the confidential informant learned of "Greg's" cocaine sales and the use of his car to deliver narcotics was not set forth in the affidavit, and there was no other evidence provided in the affidavit which would tend to corroborate the truth of these allegations. There was no factual basis in the affidavit which established that the confidential informant had any past relationship with "Greg," ever witnessed "Greg" in possession of drugs, or, critically, had been inside of Appellant's home recently and observed drugs stored there. Furthermore, there were no facts in the affidavit which suggested that the confidential informant had, at any time, personally purchased drugs from "Greg," or witnessed "Greg" selling drugs at any location, let alone at Appellant's home. In short, the affidavit contained only the informant's bare assertion that he could effectuate a controlled purchase at Appellant's home at a particular time.

The CI contacted the police within the previous 48 hours to say that he saw that the defendant had a marijuana grow operation, but didn’t specify when it was that he saw it. This was stale under the state constitution, and the court refuses to apply the totality of circumstances test to this situation. State v. Lyons, 2012 Wash. LEXIS 328 (April 26, 2012), revg State v. Lyons, 160 Wn. App. 100, 247 P.3d 797 (2011).

Defendant was stopped for a traffic violation, and the smell of marijuana came from the car when the window was opened. A drug dog went into the car and alerted on the console, producing roach. The smell of marijuana was reasonable suspicion; the dog alert was probable cause. State v. Chinn, 2012 La. App. LEXIS 552 (La. App. 5th Cir. April 24, 2012).*

A child sex abuse victim’s story that defendant supplied him with alcohol and had a camera out was sufficient to show probable cause to search for the camera to see if there were pictures on it. The police also had an allegation from 2002 of defendant in possession of naked children in pictures. United States v. Westerlund, 2012 U.S. App. LEXIS 8392, 2012 FED App. 0440N (6th Cir. April 25, 2012).*