VoteKansas.org

NYT: Police Officer Guilty of Falsifying Information by Russ Buettner:

A New York City police officer was convicted on Thursday of lying under oath and filing false information to obtain a search warrant, the second conviction in what prosecutors described as a scheme to cover up illegal searches of vehicles.

The officer, Michael Carsey, 31, was acquitted in September of other charges. His prior supervisor, William Eiseman, a former sergeant, pleaded guilty in June to performing illegal searches of cars and an apartment of people he had stopped, and then lying in court about why he had performed the searches.

The stop was justified and the questioning not so prolonged that the stop was unreasonably extended. The officers were not acting pursuant to SB 1070 or the part enjoined in United States v. Arizona, 641 F.3d 339 (9th Cir. 2011). United States v. Paramo-Villasana, 2012 U.S. Dist. LEXIS 31075 (D. Ariz. March 8, 2012).*

Defendant’s broad attack on a long affidavit based on wiretaps and investigation for lack of a substantial basis for finding probable cause failed. There was such a basis and it was not stale. United States v. Bussell, 2011 U.S. Dist. LEXIS 153965 (E.D. Tenn. December 16, 2011).*

Plaintiffs’ complaint that the police could not come to their house after they called for the police after a prowler call and then attempted to terminate the encounter didn’t state a claim. Plaintiff was ordered to produce his gun because he was a felon. That, too, didn’t state a claim. Plaintiffs were also sanctioned attorney’s fees but didn’t properly appeal that order. Smith v. Bd. of County Comm'rs for Chaves, 2012 U.S. App. LEXIS 4953 (10th Cir. March 9, 2012) (unpublished).*

Hartford Courant: Feel Like You're Being Watched? It's Because You Are by David McGuire:

Imagine a government that can track everyone, all the time, with license plate scanners, cellphone signals and networks of cameras mounted on buildings, traffic lights — even flying drones.

You don't have to imagine. Law enforcement agencies in the United States already use these technologies and are starting to collect, indiscriminately and on a massive scale, data on the movements and associations of innocent Americans. It's happening everywhere, including Connecticut.

As the surveillance state expands, it is rapidly developing the capacity to expose your whole life, the way an airport scanner exposes your body. The damage to privacy and constitutional protections is incalculable. The potential for abuse is staggering.

Arrival of the police at defendant’s house led to likely destruction of evidence, and that was exigency for an entry by the police. United States v. Boney, 2012 U.S. Dist. LEXIS 30947 (D. Del. March 8, 2012)*:

31. Having found probable cause, the issue becomes whether the record establishes that exigent circumstances were present to support the warrantless, forcible entry into the residence. In finding that exigent circumstances warranted the entry of the residence, the court recognizes that the events unfolded very rapidly, increasing an already precarious undercover investigation. This fluid chain of events began when Hughes surmised that Gonzalez had discovered the police presence and was warning the people inside the house, ostensibly, to destroy evidence and/or arm themselves. The decision to arrest Gonzalez further heightened the danger through the noise and attention drawn to the area. In fact, defendant averred that the sounds of screeching tires drew him to the window to open the curtains and that he saw people running toward the residence. During those split seconds that the curtains were open, Collins, at very close proximity, observed an individual place something in the couch before the curtains were quickly closed. Defendant's own affidavit corroborates the observation. Further, while standing in front of the residence, Hughes heard loud noises and movement coming from inside. With officers stationed in vulnerable positions, Hughes made the decision to forcibly enter the residence to protect themselves and prevent the destruction of evidence.

32. The record does not support defendant's contention that officers created the exigency. Rather, the quickly unfolding events satisfactory demonstrate that officers acted reasonably. There was nothing of record to suggest that officers' conduct caused or manipulated the events to create the need to forcibly enter the residence.

Then what is a police created exigency? The police just show up, and exigency is a self-fulfilling prophecy in Delaware?

Inventory law requires that there be a standardized policy which need not be in writing. The policy has to include inventorying containers within containers, and this one doesn’t, so that part would be invalid, if it applied here. State v. Goss, 2012 Ohio 857, 2012 Ohio App. LEXIS 747 (9th Dist. March 5, 2012).

Defendant’s MySpace page came into evidence, and he only challenged it as a search on appeal, for which he cited no law. That argument was waived. State v. Yates, 2012 Ohio 919, 2012 Ohio App. LEXIS 809 (8th Dist. March 8, 2012).*

Search claim not raised in original case procedurally barred in § 2255. Grose v. United States, 2011 U.S. Dist. LEXIS 153875 (S.D. W.Va. December 19, 2011).*

Defendant conceded his traffic stop was lawful, and that led to a plain view of a gun. Since defendant was known to be a felon, that was probable cause for an arrest. United States v. Chivers, 2012 U.S. Dist. LEXIS 30123 (W.D. Mo. February 10, 2012).*

A search warrant that named defendant at his house did not permit a general search of defendant wherever he was found; a frisk yes. United States v. Andrews, 2012 U.S. Dist. LEXIS 30523 (D. Mass. March 8, 2012):

I find that the warrant in this case did not permit a general search of the defendant away from the premises, 452 Kempton Street, although the pat-frisk of him was reasonable. The Massachusetts Supreme Judicial Court decision in Commonwealth v. Santiago, 410 Mass. 737, 741-742 (1991), and Professor LaFave indicate that, in the context of the language in the search warrant in this case, the officers were authorized by the warrant to search Andrews only at 452 Kempton Street. See 2 LaFave, Search and Seizure, §4.9(a) ("Sometimes the search warrant which is being executed will describe not only certain premises but also a person. There is no inherent defect in a single warrant which authorizes the search of a place and also a person, and thus a search of the named person when he is found at the place will be a valid search under the warrant.").

The warrant was for contraband, not for mere evidence of a crime. Andrews was a felon and known to be a felon. It was a federal crime for him to possess a gun. See 18 U.S.C. §922(g). In addition, he did not have an FID card. See M.G.L. c. 140, §129C. The search for guns at 452 Kempton Street was a search for contraband in the circumstances of this case.

The police got an anonymous and unverifiable tip that a suspicious man had a gun in a car. Finally, defendant’s car is stopped parked, and officers see the defendant move a rifle from the trunk of his car to another. This was not reasonable suspicion. Numerous police officers arrived and defendant and others were held at gunpoint, on their knees, and handcuffed. Defendant was Mirandized and incriminated himself. There was no break in the causal chain for the statement. State v. Charpentier, 2012 La. App. LEXIS 264 (La. App. 3d Cir. March 7, 2012).

Dispatch told the officer that there was an active warrant on defendant, and the officer arrested him on the warrant and searched his person. Herring governs, and the good faith exception applies. State v. Brock, 2012 La. App. LEXIS 248 (La. App. 2d Cir. March 7, 2012).

Defendant had no expectation of privacy in his clothes seized from him at the jail on his arrest for a sex offense. The day after his arrest, the clothes went to forensics. What was taken from them was of such limited value in the case, it didn’t matter anyway. People v Woodard, 2012 N.Y. App. Div. LEXIS 1700, 2012 NY Slip Op 1694 (3d Dept. March 8, 2012).

In a nighttime search case, the safety of children on the premises with a meth lab could be considered by the police and courts in issuing a nighttime search warrant. While all the prior case law deals with officer safety and a nighttime search, here it needed to mean that the children were generally at risk and the warrant happened to be sought at nighttime. That is not a valid reason for a nighttime search warrant. However, the officers were acting in good faith, and this nighttime search would not be suppressed. [Presumably the next one would? The dissenters seem to think not.] State v. Tyson, 2012 Ark. 107, 2012 Ark. LEXIS 124 (March 8, 2012) (4-3):

Additionally, as evidenced by this split opinion, this court cannot unanimously agree in the exact interpretation of the language in Rule 13.2(c)(iii). Therefore, we cannot hold that an officer should have known that the threat of immediate harm to the children inside a trailer with an active methamphetamine lab was not the type of reasonable cause covered by Rule 13.2(c)(iii) to execute the search warrant in hand that had been considered and signed by a judge. Accordingly, we hold that the Leon good-faith exception applies under these circumstances and that the circuit court erred in suppressing the evidence from the nighttime search and seizure.

One curious part of this case is the fact that Arkansas as a rule-made good faith exception that it did not even discuss. So why have it?

Driver’s arrest for reckless driving in a shopping mall parking lot did not support a search incident of the passenger compartment. Canino v. State, 2012 Ga. App. LEXIS 252 (March 7, 2012).

A controlled buy was probable cause for a search warrant that produced more drugs; § 1983 case fails on the merits. Abreu v. Romero, 2012 U.S. App. LEXIS 4703 (2d Cir. March 7, 2012) (unpublished).*

Officers went to defendant’s place for a knock-and-talk and could smell marijuana coming from around the door. One looked through a gap between the blinds and the window frame. Even if this look was excluded from the application, there would still be probable cause. Also, defendant saw the officers and fled the premises. That added to the probable cause. United States v. Newton, 2012 U.S. App. LEXIS 4871 (5th Cir. March 8, 2012) (unpublished).*

Based on representations from defendant’s wife and all the police officers knew, she had apparent authority to consent to a search of what they believed was the family computer. It was not locked with a password, and she had full access to it. The after-acquired facts were not enough to undermine what they knew at the time. United States v. Schuler, 2012 U.S. Dist. LEXIS 30512 (D. Kan. March 8, 2012):

The court heard the testimony of Mrs. Schuler and Officer Crawford. The court also heard the testimony of defendant. The court has reviewed the parties' briefs and the applicable law. The court does not believe that Officer Crawford was presented with an ambiguous situation here, nor was he required to make further inquiry. Mrs. Schuler had retrieved her husband's laptop from their home, had it in her possession, and provided it to officers–on and unlocked–explaining that she believed it was used to write the letters and/or that it contained the letters, although she was not able to find them on it. The computer was in her care, custody, and control when she provided it to officers and consented to their search of it.

It is true that police only later learned more facts that would either support or undermine Mrs. Schuler's authority to consent to the search, such as where the laptop was kept; whether Mrs. Schumer had previously been provided a password (or whether any password was actually required); and whether she occasionally used the laptop. However, the critical inquiry is what police knew at the time consent was given. Sanchez, 608 F.3d at 689, n.1 (noting that reasonableness of officer's belief that a third party has authority to consent is an objective inquiry, "based on the 'facts available to the officer at the moment,'" quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)); United States v. Andrus, 483 F.3d 711, 722 (10th Cir. 2007) (noting that "[a]ny after-acquired factual knowledge that 'might undermine the initial reasonable conclusion of third-party apparent authority [is] generally immaterial,'" (quotation omitted)). The court need not resolve contradictions in the hearing testimony because these additional facts are not relevant to the inquiry. The court agrees with the government that, at the time and under the circumstances in which Mrs. Schuler gave consent to search, it was reasonable for Officer Crawford to believe that she had authority to do so.

Former defense counsel waived the suppression motion and hearing on the ground that it was done by private action. Second successor counsel wants to raise the issue anew on the eve of trial, and it is denied. United States v. Onyekaba, 2011 U.S. Dist. LEXIS 153919 (N.D. Ga. October 21, 2011). Even the “good cause” claim in Rule 12(e) that former defense counsel would be ineffective for waiving wasn’t good enough, and led to footnote 8:

8 To the extent defendant is arguing ineffective assistance of counsel as "good cause" to "hear these motions now, rather than in a future 28 U.S.C. § 2255 proceeding," [Doc. 148 at 4], this argument is misplaced. Indeed, ineffective assistance claims raised for the purpose of showing "good cause" under Rule 12(e) are "not ripe for review" and "are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the issue." United States v. Jones, No. 3:07-CR-162, 2009 WL 1471807, at *4 (E.D. Tenn. May 27, 2009) (rejecting defendant's argument that he has shown good cause to excuse the waiver due to the alleged ineffective assistance of his prior attorney); see also United States v. Lopez-Medina, 461 F.3d 724, 738-39 (6th Cir. 2006) (finding defendant's "ineffective assistance claim is not ripe for review, and [defendant] therefore, cannot, at this point, demonstrate 'good cause' to excuse his waiver under Rule 12(e)").

Reading between the lines in this case, I’d think that the defendant was insisting on raising this search issue despite the court’s summary which shows it woefully inadequate. Defendant was arrested for shoplifting in a Macy’s store by store security. On him were three credit cards that didn’t belong to him. They called police who stopped the car he was in for a traffic stop, and the codefendants were arrested. The full details aren’t given, but it appears that something came from the traffic stop and there’s at least the appearance that the vehicle was not his; hence a standing problem. Therefore, one might conclude that this was the USMJ’s way of brushing off a motion to suppress that was doomed anyway. We all know clients know more about the Fourth Amendment from their friends than from us.

ars technica: Obama admin wants warrantless access to cell phone location data by Timothy B. Lee:

A Maryland court last week ruled that the government does not need a warrant to force a cell phone provider to disclose more than six months of data on the movements of one of its customers. Two defendants had been accused of armed robbery, and a key piece of evidence against them was data about the movements of the pair's cell phones. The defendants had sought to suppress this location evidence because the government did not get a warrant before seeking the data from network providers. But last Thursday, Judge Richard D. Bennett ruled that a warrant is not required to obtain cell-site location records (CSLR) from a wireless carrier.

Courts all over the country have been wrestling with this question, and the government has been on something of a winning streak. While one court ruled last year that such information requests violate the Fourth Amendment, most others have reached the opposite conclusion.

The Obama administration laid out its position in a legal brief last month, arguing that customers have "no privacy interest" in CSLR held by a network provider. Under a legal principle known as the "third-party doctrine," information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection. The government contends that this rule applies to cell phone location data collected by a network provider.

Volokh: Concurring Opinions in Jones Lead FBI To Turn Off 3,000 GPS Devices, Considered a “Sea Change” Within the Bureau by Orin Kerr:

Earlier today, I sent off to law reviews a new draft article on the implications of the mosaic theory of the Fourth Amendment introduced in the GPS case, United States v. Jones — and specifically the majority opinion for the DC Circuit (under the name United States v. Maynard ) and the concurring opinions of Justice Alito and Sotomayor. A recent speech by the general counsel of the FBI suggests that I’m not the only one who thinks that the mosaic theory is a really big deal — and a lot more complicated than many realize:

A Supreme Court decision has caused a “sea change” in law enforcement, prompting the FBI to turn off nearly 3,000 Global Positioning System (GPS) devices used to track suspects, according to the agency’s general counsel.

When the decision-U.S. v. Jones-was released at the end of January, agents were ordered to stop using GPS devices immediately and told to await guidance on retrieving the devices, FBI general counsel Andrew Weissmann said in a recent talk at a University of San Francisco conference. Weissmann said the court’s ruling lacked clarity and the agency needs new guidance or it risks having cases overturned . . .

Weissmann said it wasn’t Scalia’s majority opinion that caused such turmoil in the bureau, but a concurring opinion written by Justice Samuel Alito. Alito, whose opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, agreed with the Court’s conclusion in the case but wrote separately because his legal reasoning differed from the majority.

Alito focused not on the attachment of the device, but the fact that law enforcement monitored Jones for about a month. Alito said “the use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” . . .

In his talk at a University of San Francisco Law Review Symposium, Weissmann suggested that Alito’s concurrence means that several members of the court are concerned with long-term surveillance by technologies beyond GPS systems and that the FBI needs new guidance in order to ensure that evidence does not get thrown out.

“I just can’t stress enough,” Weissmann said, “what a sea change that is perceived to be within the department.”

. . .

. . .

Defendant had a driver’s license in his possession, but he was arrested for a suspended license, for which there were several possible reasons. It was never shown that there was not a valid warrant. If there was no valid warrant, Herring would apply. State v. Brock, 2012 La. App. LEXIS 248 (La. App. 2d Cir. March 7, 2012)*:

Based on the evidence presented, there was no showing that the arresting officers acted with reckless disregard of the constitutional requirements or were grossly negligent. Thus, the record supports the district court's finding that even if the warrant was not valid at the time, the deputies acted in an objectively reasonable manner in relying on the information of an active warrant to arrest the defendant. Consequently, as held in Herring, supra, the exclusionary rule is not applicable under such circumstances. Therefore, we cannot say the district court erred in denying the motion to suppress the evidence seized in the search incident to that arrest. The assignment of error lacks merit.

Officers suspected defendant for a robbery and surveilled his house after they got a line on where he lived. They saw him coming and going and then confronted him, and he produced a key and consented to the search. Nshaka v. State, 2012 Fla. App. LEXIS 3686 (Fla. 4th DCA March 7, 2012).*

Officers were let into an apartment building by tenants and the manager, and they did a dog sniff outside defendant’s apartment door. That was support for a search warrant. [This issue is pending in SCOTUS in Florida v. Jardines, 11-564 granted Jan. 6 (ScotusBlog), not yet calendared for argument, so not this Term.] United States v. Sample, 2012 U.S. Dist. LEXIS 29278 (E.D. Mich. March 6, 2012).

Co-occupant of hotel room who occupied it, had clothes there, and told police he had counterfeiting tools there had standing, and therefore could consent, despite the fact he didn’t sleep there the night before. United States v. Yates, 2012 U.S. Dist. LEXIS 29028 (D. R.I. March 6, 2012).

2255 ground that defense counsel didn’t file a motion to suppress was wrong; one was filed and heard. Schmitz v. United States, 2012 U.S. Dist. LEXIS 29274 (N.D. Ala. January 19, 2012).*

2255 is not a method to relitigate the search and seizure already denied on direct appeal. Kapordelis v. United States, 2011 U.S. Dist. LEXIS 153854 (N.D. Ga. December 12, 2011).*

A San Francisco apartment building was rendered uninhabitable from a fire, and occupants were locked out while clean up was going on. Defendant approached a construction worker and asked him to retrieve a gun from the motor compartment of a refrigerator, and that was reported to the police. The fire rendered the building de facto and de jure abandoned by operation of law, and the landlord could consent to the police entry. At the time, all personal belongings appeared to have been moved out of the apartment except for large pieces of furniture. United States v. Allen, 2012 U.S. Dist. LEXIS 28790 (N.D. Cal. March 5, 2012):

The first is that under California law, either party to a lease may terminate the lease if the premises are destroyed. Cal. Civ. Code § 1932(2) ("The hirer of a thing may terminate the hiring before the end of the term agreed upon: ... (2) When the greater part of the thing hired, or that part which was and which the letter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the want of ordinary care of the hirer."); Cal. Civ. Code § 1933(4) ("The hiring of a thing terminates: ... (4) By the destruction of the thing hired."). Based on this principle of California landlord-tenant law, coupled with the representations the property manager made to the SFPD dispatcher about the apartment being vacant, see Scafani Decl. ¶ 3, it was objectively reasonable for Officer Scafani to believe that Ms. Wilson's lease had been terminated as a result of the fire and, thus, that the property manager had the authority to consent to a search of Ms. Wilson's apartment. This belief was an objectively reasonable mistake of fact, not law, and if the mistaken fact were true, it would have conferred authority to consent on the property manager.

The second reason it was objectively reasonable for Officer Scafani to believe the property manager had authority to consent to a search is the condition of Ms. Wilson's apartment and the building as a whole at the time of the search. There is no definitive list of facts that may lead to a reasonable belief of abandonment, but in Sledge the Ninth Circuit found apparent authority where the tenants had given their landlord thirty days notice of their intent to vacate, had removed all personal belongings from the apartment, and the apartment was "empty of furnishings not belonging to the landlord" at the time that the landlord consented to the police search. 650 F.2d at 1076, 1082. Similarly, in determining whether eviction had actually taken place, the Ninth Circuit in Young considered whether the defendant's personal belongings had been removed from his hotel room and placed into storage and whether his room key worked. 573 F.3d at 717.

Here, as in Sledge, it was objectively reasonable to believe that the apartment had been vacated. Most of the personal belongings inside had been removed from the apartment and placed into storage. ...

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).*