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Law.com: Ohio Court Addresses Text Messages and the Fourth Amendment by Joshua A. Enge:

The question of who can challenge a search of cell phone records was before an Ohio court on Aug. [sic: April] 13. The case, from the Court of Appeals of Ohio, Sixth District, is State v. Young.

This case started with a missing 17-year-old girl. The police began to suspect that the defendant knew where she was. So they obtained his cell phone records from Verizon Wireless, by submitting a single page Emergency Request Form. The police also obtained the 17-year-old girl's cell phone records with the consent of her mother.

DNA testing of arrestees violates the Fourth Amendment, applying a balancing test. King v. State, 2012 Md. LEXIS 211 (April 24, 2012):

Although previously we upheld the constitutionality of the Act, as applied to convicted felons, in State v. Raines, 383 Md. 1, 857 A.2d 19 (2004), the present case presents an extension of the statute, not present in Raines. Thus, we evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable searches and seizures. Under the totality of the circumstances balancing test, see Knights v. United States, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d (2001), we conclude, on the facts of this case, that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State's purported interest in assuring proper identification of him as to the crimes for which he was charged at the time. The State (through local law enforcement), prior to obtaining a DNA sample from King following his arrest on the assault charges, identified King accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges. We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to King. Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately.

Arrest outside the threshold of the home led to invalid protective sweep of the house. The officers failed to articulate any facts or reason to justify going in the house. United States v. Barsoum, 2012 U.S. Dist. LEXIS 56218 (M.D. Fla. April 5, 2012):

Against these standards, the government offers nothing to suggest the Defendant or anyone in the residence (his family) likely posed a danger to the agents, and certainly nothing that a reasonably prudent officer would accept. Instead, the main reason the government seemingly gives is that the agents took the Defendant inside to avoid the rainy morning and to offer him the opportunity to put on some clothes and shoes. Frankly, I find another reason is more obvious. As Agent Zdrojewski admitted, he wanted to secure the Defendant's consent to search his house. Indeed, he specifically chose that location for the Defendant's arrest, as opposed to the pharmacy, to increase his odds that he could search the residence.11 Because I find the government has failed to meet its burden under Buie, I find the agents' entry into the Defendant's house and their subsequent protective sweep illegal.

11 I do not suggest that this tactic is illegal; on the contrary, the approach is commonplace. But as Payton and Buie make clear, an arrest warrant and a search warrant are not synonymous. Without a search warrant, the government must present an exception to the warrant requirement.

Defense counsel was not ineffective for not challenging the length of a stop where the stop was lengthened by the wait for the owner of the car to come to the scene. Defense counsel also was not ineffective for not challenge the stop where the car was indisputably speeding. Owens v. United States, 2012 U.S. Dist. LEXIS 56416 (M.D. Pa. April 23, 2012).*

The same pro se defendant’s motion to suppress was denied where he never, after being invited to do so, said what it was he was trying to suppress. United States v. Goodrich, 2012 U.S. Dist. LEXIS 56472 (W.D. Mo. April 23, 2012),* R&R 2012 U.S. Dist. LEXIS 56470 (W.D. Mo. April 11, 2012).*

Pro se defendant’s claim that a search warrant could not issue without a criminal complaint also being issued is denied as without any legal basis. United States v. Goodrich, 2012 U.S. Dist. LEXIS 56470 (W.D. Mo. April 23, 2012).*

“Quilter raises a hodgepodge of constitutional arguments in support of his motion to suppress.” [Meaning: The court is going to deny them as misguided at best.] As to entry of the hotel room, it was justified by the exigent circumstance of officer safety where one person in the room on a bed wouldn’t show his hands right away. “Entry therefore became a matter of officer safety. Since law enforcement officers must be permitted to secure environments for their own protection, Minnesota v. Olson, 495 U.S. 91, 100 (1990), this situation justified entry for that limited purpose.” United States v. Quilter, 2012 U.S. Dist. LEXIS 56393 (D. Vt. April 23, 2012)*:

The Second Circuit has adopted a non-exhaustive list of six factors to determine existence of exigent circumstances:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect "is reasonably believed to be armed"; (3) "a clear showing of probable cause ... to believe that the suspect committed the crime"; (4) "strong reason to believe that the suspect is in the premises being entered"; (5) "a likelihood that the suspect will escape if not swiftly apprehended"; and (6) the peaceful circumstances of the entry.

United States v. Reed, 572 F.2d 412, 424 (2d Cir. 1978) (quoting Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970)).

In a high crime area, officers observed defendant dropping a cell phone and car keys into brush. That was reasonable suspicion. They did not violate the Fourth Amendment by pressing the key fob to find the car. United States v. Cowan, 2012 U.S. App. LEXIS 6051 (8th Cir. March 23, 2012). United States v. Figures, 2012 U.S. Dist. LEXIS 55641 (D. Neb. April 20, 2012).*

Motion for return of property under Rule 41(g) was denied without prejudice where the
claimant likely had no property interest in the place where it was seized. He needed to show more and still can. United States v. Return of Property of Fawcett, 2012 U.S. Dist. LEXIS 55620 (N.D. Ohio April 20, 2012)*:

In this matter, Mr. Fawcett has not yet shown a sufficient property interest in the jewelry listed in his Declaration. The Defendant avers the jewelry, consisting largely of vintage watches, was taken from a residence in which, at the time of the exercise of the warrant, Mr. Fawcett no longer had any property interest and in which he no longer resided. Mr. Fawcett has yet to offer any evidence to demonstrate his lawful possession of the jewelry listed in his Declaration. Further, Mr. Fawcett has failed to specify with any certainty the items he seeks to have returned. Instead, the description offered in his Declaration is generic by type (watch), and brand (Rolex), and general year (vintage 1978).

BLT: Does Gant prohibit search incident in DUI cases? D.C. Appeals Court Weighs Warrantless Car Searches:

The District of Columbia Court of Appeals heard arguments this morning on when it's still lawful for local police to search a car without a warrant after making a lawful arrest.

The U.S. Supreme Court tried to limit those types of searches in its 2009 decision in Arizona v. Gant. The high court did carve out some exceptions, though, which included searches where police have "reason to believe" they might find evidence of the crime.

Almost all the precedent since Gant says yes.

WebProneNews: Judge: Your Tweets Aren’t Yours, And Even Your Deleted Tweets Can Be Obtained Without A Warrant; #OWS protestor loses motion to quash subpoena by Josh Wolford:

“While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet.”

That’s the crux of a decision from New York Criminal Court judge Matthew Sciarrino Jr. Not only that, but when you tweet, you’re giving Twitter the right to distribute all of you information however they please.

cnet.com: Wireless providers side with cops over users on location privacy by Declan McCullagh:

The trade association representing AT&T, Verizon, and Sprint opposes a California proposal for search warrants to track mobile devices, claiming it will cause "confusion."

Petitions to watch | Conference of April 27, 2012:

Virginia v. Banks
Docket: 11-1071
Issue(s): Whether the Fourth Amendment requires suppression of a pistol in a coat belonging to a suspect properly arrested for a felony, when the officers took control of the coat solely for the purpose of giving it to the suspect to protect him from the elements, and when the trial court expressly found that the officers acted in good faith, and that the search of the coat was conducted for the officers’ safety and not for the purpose of obtaining evidence of criminal activity.

Have a dozen issue appellate argument this afternoon in a murder case.

The legislature did not clearly overrule the common law that a homeowner may resist an unlawful entry into his home. Defendant was charged with obstruction after struggling with police officers who entered his house. The state carries the burden of showing that the officers entered legally. People v. Moreno, 2012 Mich. LEXIS 463 (April 20, 2012):

In this case, we review whether defendant was properly charged with resisting and obstructing a police officer under MCL 750.81d after defendant struggled with officers who had entered his home unlawfully. To resolve this issue, we must address whether MCL 750.81d abrogates the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas. We conclude that the statute did not abrogate this right.

While the Legislature has the authority to modify the common law, it must do so by speaking in "no uncertain terms." Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule People v Ventura, 262 Mich App 370, 686 NW2d 748 (2004), to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest. Because the Court of Appeals in this case relied on Ventura and extended its holding to the context of illegal entries of the home, we reverse the judgment of the Court of Appeals and remand this matter to the trial court. On remand, we instruct the trial court to grant defendant's motion to quash the charges on the basis of its ruling that the officers' conduct was unlawful.

. . .

In this case, the Court of Appeals held that "[t]he fact that defendant refused entry to the officers unless they obtained a search warrant is indicative of defendant's knowledge of their status as police officers and that they were engaged in the performance of their official duties." There is no question that defendant knew that the men at his door were police officers. However, the officers wanted to enter defendant's home without a warrant, and one of the officers physically prevented defendant from closing the door to his home. Accordingly, defendant's refusal to allow the officers into his home is not conclusive of whether defendant had reasonable cause to know that the officers were "engaged in the performance of their official duties." Consistently with the common-law rule, we conclude that the prosecution must establish that the officers' actions were lawful.

. . .

IV. CONCLUSION

While the Legislature has the authority to modify the common law, it must do so by speaking in "no uncertain terms." Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other unlawful invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule Ventura to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest.

There is a lot to be said for making the police think twice before a spurious entry into somebody's house, and that's what the common law does.

A suppression motion that says that defendant was subjected to a warrantless search is not enough to get a suppression hearing. What are the disputed facts? The motion is denied on the papers. United States v. Brissey, 2012 U.S. Dist. LEXIS 55739 (S.D. Ind. April 20, 2012).

Officers had reasonable suspicion to believe defendant was in possession of a weapon when they arrived at a shots fired call and heard shots from behind defendant’s house and then saw defendant there. United States v. Huebner, 2012 U.S. Dist. LEXIS 55821 (E.D. Tenn. February 13, 2012).*

Defendant was stopped by the police after they saw him in a high-crime area with his compatriots flagging down cars for drug deals, and, when he saw the police, he dropped something. That was reasonable suspicion. United States v. Johnson, 2011 U.S. Dist. LEXIS 154810 (E.D. Mo. December 15, 2011), adopted 2012 U.S. Dist. LEXIS 55837 (E.D. Mo. April 20, 2012).*

Following the Eighth Circuit, avoiding a DUI checkpoint alone is not enough to make reasonable suspicion. Here, however, there was more. State v. Rademaker, 2012 SD 28, 2012 S.D. LEXIS 28 (April 18, 2012).

2255 inventory claim fails on the merits. “I find no evidence in the record that the impoundment was unlawful or that officers conducted the inventory search before deciding to impound the vehicle.” Brunick v. United States, 2012 U.S. Dist. LEXIS 55096 (D. Or. April 19, 2012).*

A young man brought defendant’s laptop to the police claiming there was teen gay pornography on the screen from websites defendant visited. The officer touched the mousepad and the screen came on showing what he said. The officer’s viewing of the computer went no further than the private search. Then a state search warrant was sought. United States v. Goodale, 2012 U.S. Dist. LEXIS 55554 (N.D. Ga. April 19, 2012).*

Defendant’s arguments in the trial court were not the same ones made on appeal, so his appeal is governed by the plain error standard, and he doesn’t succeed for lack of a record supporting his argument. He was shot during what was found to be a Terry stop with guns drawn. Under Graham v. Connor, it appeared, on this record, it was justified enough to support the district court's conclusion. United States v. Hill, 2012 U.S. App. LEXIS 8072 (4th Cir. April 19, 2012)*:

Hill argues that when we weigh the three factors enumerated in Graham — the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest or attempting to evade arrest by flight — it is apparent the officers "did not have an objectively reasonable ground to shoot Hill." Appellant's Br. at 25. As to the severity of the crime, he argues it weighs in his favor because at no point did the officers suspect Hill of having committed a crime; other than knowing that Bennett had written "help" on the receipt and herself carried a gun, all their information came from their observations of Hill inside the car. As to the third factor, he argues, Hill was not actively resisting arrest or attempting to flee.

The reasonableness of the officers' actions thus comes down to whether Hill's movements inside the car rendered reasonable the officers' belief that Hill posed an imminent threat to them, justifying the use of deadly force. The government argues the officers were justified in interpreting Hill's movements as evidence that he was reaching for a gun. Hill argues that belief was unreasonable because "the movement of a suspect's hands, without more, while he is under arrest is insufficient to give rise to an objectively reasonable basis for the police to use deadly force." Appellant's Br. at 26. Only if "the police had seen him with a gun, or had reliable and specific information that he was known to be armed," might this have been a "significant factor," he argues. Id. He also points out that the officers' descriptions of Hill's precise movements were inconsistent, and that it was Bennett, not Hill, whom the officers knew was armed.

Here again, our problem is the absence of adequate information to find that it was "obvious" that Hill did not pose an imminent threat of serious physical harm to the officers. Had Hill raised these issues in the district court, the risk of non-persuasion on these issues would have been cast upon the government to justify a warrantless seizure. See, e.g., United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000); United States v. Burke, 605 F. Supp. 2d 688, 693-94 (D. Md. 2009). But under the plain error standard we apply here, Hill must shoulder the burden to prove the contrary. Without findings by the district court on these and related issues, and particularly inasmuch as the surveillance video does not show Hill's movements in the car, we may not plausibly notice plain error on this record and we decline to do so.

HuffPo: The Supreme Court's Decision on Strip Searches Will Make Jails More Dangerous by Lovisa Stannow, Executive Director, Just Detention International:

The practice of strip searching all jail inmates, just because they are detainees, is a violation of basic human rights and unnecessary. It is also a recipe for sexual abuse. Sadly, earlier this month, five U.S. Supreme Court justices, a bare majority, found that policies that require strip searches of all inmates upon entry at a jail to be constitutional. In so doing, the Court has helped pave the way for more -- not less -- dangerous jails.

In Florence v. Burlington County, Albert Florence challenged the constitutionality of two strip searches he was forced to undergo in 2005 after he was wrongly arrested due to a records error. "After that all happened, I cried, and I hadn't cried since I was a child. I just had so much emotion from being scared, humiliated," Mr. Florence said at a press conference.

Here's what we know about the link between strip searches and sexual abuse. Just Detention International (JDI) receives thousands of letters every year from survivors of sexual violence behind bars. They describe horrific abuse, often at the hands of staff. In countless cases, the abuse began during a search. Their stories are borne out by Department of Justice data. According to the government's own studies, more than 40 percent of survivors of sexual abuse in detention were abused during a strip or pat down search. Many victims of staff abuse, including a shocking 30 percent of men, were abused within the first 24 hours of entering jail -- precisely the timeframe under consideration in Mr. Florence's case.

Defendant’s identity is is not suppressible as the product of an unconstitutional arrest. United States v. Medina-Meraz, 2012 U.S. Dist. LEXIS 55030 (E.D. Mich. April 19, 2012).

Because the vehicle was stolen, officers had probable cause to search it under the automobile exception. United States v. Smith, 2012 U.S. Dist. LEXIS 55476 (M.D. Ala. April 2, 2012).*

Officers did not violate any expectation of privacy by conducting surveillance of a marijuana patch from open fields on defendant’s own property under Oliver and Dunn. United States v. Hardin, 2012 U.S. Dist. LEXIS 55364 (S.D. Ga. March 26, 2012).*

Patdown of passenger was without reasonable suspicion to believe he was armed. Search suppressed. Westmoreland v. State, 2012 Ind. App. LEXIS 180 (April 17, 2012).

A minor delay in the length of the stop did not make it unreasonable. The conversation while waiting did not extend it. United States v. Ghoston, 2012 U.S. Dist. LEXIS 55526 (W.D. Tenn. April 20, 2012)*:

So long as the questions do not extend the time of the stop, "an officer may ask unrelated questions to his heart's content, provided he does so during the supposedly dead time while he or another officer is completing a task related to the traffic violation." Everett, 601 F.3d at 492. Agent James asked questions while Trooper Fuller verified the licenses and conducted background checks. This was reasonable under Everett.

Any illegality in the initial traffic detention was attenuated by defendant's probation search condition. Although the patdown search and discovery of the gun occurred shortly after the traffic detention, they did not occur until after the officer had recognized defendant as a person subject to a search condition. The search condition supplied legal authorization to search that was completely independent of the circumstances leading to the traffic stop. Nor was there any flagrancy or purposefulness to the alleged unlawful conduct by the officer. While the trial court found that the stop was made without reasonable suspicion, it specifically found the officer did not act in an arbitrary, capricious, or harassing manner. The officer was aware of defendant's probation condition before the search, and the existence of that probation condition dissipated any taint that might flow from the detention. People v. Durant, 2012 Cal. App. LEXIS 442 (1st Dist. April 19, 2012).

Defendant was a corrections officer, and that helps show he voluntarily consented. United States v. Francis, 2012 U.S. Dist. LEXIS 54244 (W.D. Ark. March 29, 2012).

The stop should have ended when the officer gave a warning ticket, and he was made to stand in the rain while the office continued on his investigative mission. United States v. Culp, 2012 U.S. Dist. LEXIS 55494 (W.D. Mo. April 20, 2012)*:

Here, the unfolding of the circumstances makes the detention much more akin to a prolonged investigatory expedition with the singular mission of searching Defendant's vehicle than a permissible course of action reasonably directed toward the proper ends of the stop. The parties agree that the purpose of the traffic stop was concluded, at the latest, once Gillespie made the decision to only give Defendant a warning and not issue him a ticket, and so informed Defendant, returning his belongings, and asked Defendant if he had any questions. It was only after that point, that Gillespie embarked on an extensive course of investigation and questions aimed at conducting a search. ...

Although Gillespie testified that he had already decided not to issue Defendant a ticket for "following too closely" and only give him a warning, he nonetheless returned to the driver's side of Defendant's vehicle, directed Defendant to get out of the car and had him move to the back of the vehicle, where he was further detained while Gillespie pursued a mission entirely separate from the underlying traffic violation. It is clear from the video recording that Defendant remained there, standing in the rain, at Gillespie's behest, and would not have thought he was free to leave. Certainly, had Defendant believed that this was a mere consensual encounter at this point, he would not have remained in the pouring rain, in his shirt sleeves, while Gillespie ambled on with questions.

As the Sixth Circuit noted in Everett, "the touchstone of any Fourth Amendment analysis is reasonableness." 601 F.3d at 494. The Court "must conduct a fact-bound, context-dependent inquiry in each case." Id. Having fully considered the circumstances as they unfolded during the stop, as viewed on the video recordings, in conjunction with Gillespie's testimony, the Court finds no acceptable purpose for Gillespie's extended detention and prolonged questioning of Defendant, pat-down, and persistent requests to search the vehicle, all after the purpose of the traffic stop had undisputedly ended.