VoteKansas.org

Defendant answered his door in his underwear and was told he was under arrest. He asked if he could get dressed, and an officer went to his bedroom with him. The room was checked by a protective sweep. Defendant’s conduct in the bedroom led the officer to suspect a weapon, so the officer lifted the mattress and found a gun. That was lawful under Chrisman. Commonwealth v. Quilter, 2012 Mass. App. LEXIS 195 (June 6, 2012):

The firearm was not discovered during the protective sweep after the police entered the bedroom. Rather, it was discovered when an officer, suspicious of the defendant's conduct -- sitting at the end of the bed farthest away from the closet -- found the firearm under the mattress where the defendant had been sitting. While the judge stated that the officer was "acting on a hunch -- an excellent one, but a hunch nevertheless," the facts instead indicate that the officer's decision to look under the mattress was objectively reasonable. It is not unreasonable "for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety -- as well as the integrity of the arrest -- is compelling." Washington v. Chrisman, 455 U.S. 1, 7, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982). "[A] police officer's decision how and where to conduct the search is 'a quick ad hoc judgment.'" Commonwealth v. Elizondo, 428 Mass. 322, 324, 701 N.E.2d 325 (1998), quoting from United States v. Queen, 847 F.2d 346, 352 (7th Cir. 1988).

Defendant was arrested by the DEA with a SWAT team, and he consented to a limited search and a gun was found. He effectively withdrew consent, and the search stopped. The gun found earlier was admissible. United States v. Posa, 2012 U.S. Dist. LEXIS 78456 (M.D. Fla. June 6, 2012).*

Defendant consented to a search of his car, and there was probable cause in any event. United States v. Lee, 2012 U.S. Dist. LEXIS 78579 (D. Haw. June 6, 2012).*

On the totality of evidence, there was probable cause to believe there was drug evidence in defendant’s car. United States v. Rucker, 2012 U.S. Dist. LEXIS 78323 (N.D. Fla. June 6, 2012).*

Defendant’s nervousness, criminal history, geographical limitations on use of his rental car, and possession of industrial degreaser was not reasonable suspicion. United States v. Johnson, 2012 U.S. App. LEXIS 11330, 2012 FED App. 0574N (6th Cir. June 5, 2012).*

Inevitable discovery applied because the search warrant was being sought when defendant was arrested and a search occurred. State v. Myers, 2012 W. Va. LEXIS 285 (June 1, 2012).

Defendant’s car was searched because of the strong odor of marijuana after he was stopped on the street with reasonable suspicion of drug dealing and they “discovered more than $500 in small, disorganized bills stashed in various pockets.” The search was valid under the automobile exception or the search incident doctrine because he was standing at the door when all this went down. United States v. Carter, 2012 U.S. App. LEXIS 11265 (11th Cir. June 5, 2012).*

While Washington law grants automatic standing, somebody with third-party authority can still consent. State v. Libero, 2012 Wash. App. LEXIS 1320 (June 5, 2012).*

A police officer from another city working plain clothes at a bar with a t-shirt with “Security” on the back who found a gun was not a state actor at the time of employment. The record was clear he was serving the interests of the bar and not the police, and he called the police to “sort it out” after the encounter. United States v. Cintron, 2012 U.S. App. LEXIS 11308 (10th Cir. June 5, 2012):

The OK Corral Club, not the Boley Police Department, hired and paid Mr. Reed for his security guard work at the club. Not all security team members were off-duty police officers. As for the members of OK Corral's security staff who were off-duty police officers, the OK Corral Club hired them and did not rely on official assistance from the police department. See Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir. 1980) (holding that off-duty police officer working as security teller at a bank was a state actor when that position was part of a "secondary hiring" program and the security teller's "primary duty was to the [police] department, not to the bank").

Mr. Reed was not wearing his police uniform, did not have his badge, and never identified himself as a police officer. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1429-30 (10th Cir. 1984) (holding that off-duty police officer working as a store security guard was acting under color of state law when he flashed his badge, identified himself as a police officer, and arrested the alleged shoplifter on the spot), vacated on other grounds,City of Lawton, Okla. v. Lusby, 474 U.S. 805 (1985).

At the suppression hearing, Mr. Reed explained that he was working to further the interests of the OK Corral Club, not those of the police department. ... "Well, yeah, but I don't [enforce the laws] there. I just ... protect and keep the staff and the property safe over there. It's not a matter of me really enforcing the laws over there. We just look out for the safety over there." Id. at 34-35. He also explained that had he been acting as a police officer, he would have acted differently and would have "put [Mr. Cintron] on the ground." Id. at 32.

Finally, Mr. Reed did not formally arrest Mr. Citron. ...

Under the facts, it probably wouldn't make any difference, either.

Plaintiff’s car was validly towed to impound because she was hospitalized after an accident. She had difficulty in regaining her vehicle, and she sued for $500B. “Plaintiff's claims do not appear to challenge the actual seizure of her vehicle, but instead focus on her inability to regain possession of her vehicle. Plaintiff's interest in regaining her vehicle, however, is outside the scope of the Fourth Amendment. See Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999) (‘[T]he Fourth Amendment protects an individual’s interest in retaining possession of property but not the interest in regaining possession of property.’).” Mathis v. Dep't of Pub. Safety, 2012 U.S. Dist. LEXIS 76780 (S.D. Ohio June 4, 2012).

Defendant was possibly speeding and hastily exited from a freeway, but the officer didn’t stop the defendant. He followed him home. Defendant got out of his van and went onto his porch and the officer followed. The attempted stop on defendant’s porch was without reasonable suspicion of any wrongdoing other than the alleged traffic offense, and that wasn’t good enough. Defendant testified that he did not know there was a police officer in the car because it was unmarked. “Sgt. Norman followed and grabbed Defendant by the back of his coat. Defendant pulled away and continued behind the house. At this point, uniformed officers appeared on the property, and they tasered, handcuffed and arrested Defendant.” The search that relieving him of his gun was unreasonable under the Fourth Amendment. United States v. Walker, 2012 U.S. Dist. LEXIS 76781 (S.D. Ohio June 4, 2012).*

14 month old information in a child pornography case is not stale. More importantly, it seems that computer forensics makes staleness almost irrelevant: “the age of the information supporting a warrant is increasingly irrelevant when the object searched is stored on a computer.” United States v. Johnson, 2012 U.S. Dist. LEXIS 77808 (D. Md. June 5, 2012)

Additionally, the ability of forensic examiners to recover files from a computer—even those deleted by a user—impacts a court's staleness analysis. Since evidence on a computer is recoverable months or years after it has been downloaded, deleted, or viewed; the age of the information supporting a warrant is increasingly irrelevant when the object searched is stored on a computer. See, e.g., Gourde, 440 F.3d at 1071 ("Having paid for multi-month access to a child pornography site, Gourde was also stuck with the near certainty that his computer would contain evidence of a crime had he received or downloaded images in violation of § 2252. Thanks to the long memory of computers, any evidence of a crime was almost certainly still on his computer, even if he had tried to delete the images. FBI computer experts, cited in the affidavit, stated that 'even if ... graphic image files [] have been deleted ... these files can easily be restored.' In other words, his computer would contain at least the digital footprint of the images."); United States v. Toups, No. 2:06-cr-112-MEF, 2007 WL 433562, at *4 (M.D. Ala. February 6, 2007) ("Further bolstering the conclusion that the staleness calculation is unique when it comes to cases of Internet child pornography is the images and videos stored on a computer are not easily eliminated from a computer's hard drive. The mere deletion of a particular file does not necessarily mean that the file cannot later be retrieved.").

Note: The court also notes that no case it could find had ever found staleness in a CP case.

KnoxNews.com: Lawsuit filed over OR man's warrantless cavity search by Bob Fowler:

An Oak Ridge man who says he was forced in June 2011 to submit to a digital rectal exam for suspected drugs — and no drugs were found — has filed a lawsuit in Anderson County Circuit Court.

Wesley Antwan Gulley's legal action contends his constitutional rights were violated and he was subjected to false arrest and imprisonment, assault and battery and medical battery.

The lawsuit alleges Gulley was in shackles and reluctantly consented to the exam, but only after Dr. Michael A. LaPaglia ordered an injectable sedative and threatened to use it "in performing the digital rectal exam …"

The defendants used coercion and "undue influence" to force Gulley's consent, and police officers didn't have a warrant, it continues.

No drugs were found, and he was released after having been shackled for the ride to the hospital. It started because of a dog alert on a $20 bill in the car, which everyone in law enforcement should know by now (since it's been public knowledge for over 25 years) that virtually all currency that goes through money counting machines has microscopic traces of cocaine.

I normally don't include lawsuits because so many fail on qualified immunity or the merits of the Fourth Amendment claim. Based on the news article, this one states enough to get to trial. Forced warrantless digital exams are unreasonable even with probable cause, except for a convict in prison or a jail inmate, thanks to Florence.

h/t to a reader

Relying on Edmond, United States v. Yousif, 308 F.3d 820 (8th Cir. 2002), and United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011), the Tenth Circuit holds that stopping cars that pulled off at an exit by ruse checkpoint was not based on reasonable suspicion. Pulling off was a factor in RS, but more is required. United States v. Neff, 10-3336 (10th Cir. June 5, 2012):

We agree with the Eighth Circuit that a driver's decision to use a rural highway exit after seeing drug checkpoint signs may serve as a valid, and indeed persuasive, factor in an officer's reasonable suspicion analysis. See, e.g., Carpenter, 462 F.3d at 987; United States v. Klinginsmith, 25 F.3d 1507, 1510 n.1 (10th Cir. 1994) (listing as one valid factor that "the defendants took an exit which was the first exit after a narcotics check lane sign, and an exit that was seldom used"). But standing alone, it is insufficient to justify even a brief investigatory detention of a vehicle. Here, of course, the government points to a number of other factors that the trooper relied on in forming reasonable suspicion, including: (1) Neff's car had a Shawnee County license plate but was driving in Wabaunsee County; (2) the exit was in a rural area without highway services such as restaurants or gas stations; (3) Neff pulled into a private driveway where he did not seem to have any reason to be; (4) Neff had a startled look on his face when he saw the trooper.

. . .

These facts, when taken together, do not fairly suggest that Neff was attempting to evade police. To be sure, an officer is “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.” Arvizu, 534 U.S. at 276. But even considering the totality of the circumstances, Neff’s conduct conformed to the patterns of everyday travel. ...

Plaintiff was arrested and detained for 224 days for a sexual assault charge that was ultimately dismissed. He had a prosthetic lower leg and had prostate surgery that made it impossible for him to ejaculate, two things not mentioned anywhere in the investigation. “[I]t is not clear that individuals have a constitutional right to a reasonable post-arrest investigation.” Barham v. Town of Greybull Wyo., 2012 U.S. App. LEXIS 11306 (10th Cir. June 5, 2012)*:

We turn next to Plaintiff's argument that his constitutional rights were violated by his 224-day detention on charges that were later dismissed. He contends there were problems with the alleged victims' stories, particularly relating to Plaintiff's inability to ejaculate semen, and he argues a reasonable law enforcement officer would have investigated these problems and attempted to obtain Plaintiff's release earlier. As we stated in Romero, it is not clear that individuals have a constitutional right to a reasonable post-arrest investigation. See Romero, 45 F.3d at 1478. To the extent there is such a right, it must be based on "facts that, at a minimum, demonstrate Defendants acted with deliberate or reckless intent." Id. After thoroughly reviewing the record, we conclude that the officers' post-arrest investigation was, at most, negligent. Thus, Plaintiff has not shown the officers' conduct during his detention violated any potential constitutional right to a reasonable post-arrest investigation.

Plaintiffs’ strip search claim on arrest without booking permitted on motion to amend; it was not futile. Sorrell v. Inc. Vill. of Lynbrook, 2012 U.S. Dist. LEXIS 77303 (E.D. N.Y. June 4, 2012).*

There was probable cause for defendant’s arrest for murder for hire by payment of a snowmobile. State v. Santiago, 2012 Conn. LEXIS 218 (May 29, 2012).*

In litigation over a 1991 search warrant in 2012, the seizure under the search warrant was somewhat excessive, but it was not reason to suppress the whole search under Andersen. United States v. Persico, 2012 U.S. Dist. LEXIS 77298 (E.D. N.Y. June 1, 2012).*

A “checkpoint,” without hardly tell us what for, was valid where it snared the defendant, an habitual driving offender with no license. Desposito v. Commonwealth, 2012 Va. App. LEXIS 185 (June 5, 2012):

Appellant's challenge to the validity of the checkpoint is limited to two points: (1) the supervisor's direction that the checkpoint should be conducted "during the lunchtime" leaves the officers with unbridled discretion as to the time of operation; and (2) the plan is flawed because while it requires a 30-minute minimum operational duration, the plan does not establish a maximum time, thus allowing the officers at the checkpoint to determine the duration of the operation. These omissions, appellant contends, render the checkpoint constitutionally unsound, thus violating his Fourth Amendment rights.

"As a preliminary matter, checkpoints with the primary objective of enforcing safety requirements are constitutional." Wright v. Commonwealth, 52 Va. App. 263, 268, 663 S.E.2d 108, 111 (2008) (citing Delaware v. Prouse, 440 U.S. 648, 658 (1979)); see also Palmer v. Commonwealth, 36 Va. App. 169, 172, 549 S.E.2d 29, 30 (2001) (holding the purpose of a checkpoint was valid when officers stopped vehicles to look for "any violations on the vehicles, such as drivers' license, equipment, [or] inspection").

. . .

The reasonableness of such seizures, which are less intrusive than a traditional arrest, depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Brown v. Texas, 443 U.S. 47, 50-51 (1979) (citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). In considering the constitutionality of these seizures on appeal, we must weigh "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id. at 51.

What is the public interest in stopping everybody to look for a driver's license? Bank robbers, kidnapers [Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting)], DUIs? Yes. General crime control, no. I just cannot accept that a driver's license checkpoint is constitutional under Edmund or Sitz. And, yes, Prouse was decided in 1979, and its throwaway reference to driver's license checkpoints was wrong then and its still wrong. If SCOTUS is concerned about "it could happen to us," then they might now agree. To quote "Ferris Bueller's Day Off," "Uh, what country do you think this is?" American highways are not constitution free zones.

Please, somebody, take this up.

Volokh Conspiracy: Police Searching for Bank Robber Stop All Cars at Intersection, Handcuff Drivers, Search Cars by Eugene Volokh:

So reports ABC News:

Police in Aurora, Colo., searching for suspected bank robbers stopped every car at an intersection, handcuffed all the adults and searched the cars, one of which they believed was carrying the suspect.

Police said they had received what they called a “reliable” tip that the culprit in an armed robbery at a Wells Fargo bank committed earlier was stopped at the red light.

“We didn’t have a description, didn’t know race or gender or anything, so a split-second decision was made to stop all the cars at that intersection, and search for the armed robber,” Aurora police Officer Frank Fania told ABC News….

“Split-second decision”--code word for “we should get at least qualified immunity because of the hard decisions we have to make in the field protecting the public from bad people.” Good point. What about the 15 people handcuffed for up to 90 minutes who did nothing wrong? They had no description, just a place, so everybody in the place gets handcuffed. Good that they caught the right guy, but a heavy handed nonetheless.

Davis v. United States: Expanding the Good Faith Exception to the Exclusionary Rule to Objective Reliance on Binding Appellate Precedent Presents Too Many Threats to Constitutional Protections by Laura E. Collins, 81 Miss. L.J. Supra 163 (2012).

TheHill.com: Keeping your cell phone from spying on you by Rep. Jason Chaffetz (R-Utah):

In the age of Onstar, smartphones and GPS tracking devices, we are more effective than ever at tracking people. But the line between a convenient tool and an unreasonable search has become increasingly nebulous.

No one wants their every move surreptitiously monitored without permission – whether it be law enforcement, a spurned partner, or a nefarious stranger keeping tabs on us. Given the legal ambiguities associated with modern technology, we must update and clarify the law.

Although the Supreme Court ruled attaching a GPS device to a person’s car without their knowledge constitutes a search under the Fourth Amendment, there are no rules governing the use of geolocation information obtained from other types of devices.

Having consented to an entry by the police, here it included remaining there until federal agents there too had left. ICE came because of an alleged illegal alien. People v. Arapu, 2012 CO 42, 2012 Colo. LEXIS 397 (June 4, 2012)*:

We find that Arapu consented to Detective Chi's presence in his apartment to monitor the woman inside, and that such consent would reasonably include asking her for identifying information. Similarly, we find that Arapu consented to Detective Chi remaining in the apartment to gather Arapu's keys and phones, and to secure the apartment, and such consent would reasonably include remaining in the apartment until the federal agents had left. We, accordingly, find that the trial court erred in finding Detective Chi was unlawfully in the apartment when he observed the open bag containing drugs, and therefore reverse the trial court's suppression of the drug-related evidence. Because the prosecution concedes in its briefing to us that the discovery of the firearm was unlawful, we determine whether the affidavit would support a finding of probable cause if the firearm portions were excised, but with the observation of the open bag containing drugs included. We hold that it does, and that the firearm would have been discovered in a search pursuant to the redacted affidavit. We therefore reverse the suppression order with regard to the firearm as well.

An objectively reasonable mistake as to defendant looking like another man who was wanted when defendant was pointed out to him from a photograph supported his stop and ordering him from the car, fearing he was an armed fugitive. When stopped, defendant admitted he had a gun on him, and then the mistake in identity was discovered. Defendant, however, was a FIPF. United States v. Phillips, 2012 U.S. App. LEXIS 11207 (8th Cir. June 4, 2012).*

Defendant was effectively in custody when he was talking to a DEA officer in a DEA truck, and he couldn’t leave, so he had to have been Mirandized. United States v. King, 2012 U.S. Dist. LEXIS 76988 (N.D. Miss. June 4, 2012)*:

Although the government maintains that King was free to go, this position is in direct conflict with Douglas' statements to the defendant. King could not leave until he "talked" to Douglas inside the DEA truck. "Talking" is what Miranda is all about. Therefore, the defendant was in custody at the time he confessed and was entitled to Miranda warnings. Douglas failed to warn the defendant before beginning the interrogation. He told King about drug arrests in Greenville, Mississippi stemming from the DEA investigation. King then confessed. Since Agent Douglas failed to give Miranda warnings to the defendant, the confession must be excluded from evidence.

Merely being in possession of a firearm is not a reason for a stop-and-frisk–-an objective risk of potentially using it criminally is. Here, defendant was acting evasively when he saw the police and tried to get into a house he was not allowed in. United States v. Derrick, 2012 U.S. Dist. LEXIS 76540 (E.D. Pa. May 31, 2012):

However, as some individuals are legally permitted to carry guns pursuant to the Second Amendment of the Constitution, a reasonable suspicion that an individual is carrying a gun, without more, is not evidence of criminal activity afoot. Therefore, the tip alone was not sufficient to support an investigatory stop and the Court must examine whether the stop was supported by other factors.

Defendant’s stop on his own porch by a homicide detective for a traffic offense was without reasonable suspicion. Defendant’s car was not stopped, and defendant got out and went to his house, and the officer pulled up and ran behind him yelling “stop” showing his badge and then there was a “tangle” on the porch with uniformed officers, too. The stop was without reasonable suspicion, and the gun found on him is suppressed. United States v. Walker, 2012 U.S. Dist. LEXIS 76781 (S.D. Ohio June 4, 2012).*

Cert. grant today: Bailey v. United States, SCOTUSBlog here, opinion below here.

Issue: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.

Reichle v. Howards, 11–262 (June 4, 2012). SCOTUSBlog here. From the Syllabus:

Petitioners are entitled to qualified immunity because, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Pp. 5−12.

(a) Courts may grant qualified immunity on the ground that a purported right was not clearly established” by prior case law. Pearson v. Callahan, 555 U. S. 223, 236. To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U. S. ___, ___. Pp. 5−6.

(b) The “clearly established” standard is not satisfied here. This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest. P. 6.

(c) At that time, Hartman’s impact on the Tenth Circuit’s precedent was far from clear. Although Hartman’s facts involved only a retaliatory prosecution, reasonable law enforcement officers could have questioned whether its rule also applied to arrests. First, Hartman was decided against a legal backdrop that treated retaliatory arrest claims and retaliatory prosecution claims similarly. It resolved a Circuit split concerning the impact of probable cause on retaliatory prosecution claims, but some of the conflicting cases involved both retaliatory prosecution and retaliatory arrest claims and made no distinction between the two when considering the relevance of probable cause. Second, a reasonable official could have interpreted Hartman’s rationale to apply to retaliatory arrests. Like in retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually all retaliatory arrest cases, and the causal link between the defendant’s alleged retaliatory animus and the plaintiff’s injury may be tenuous. Finally, decisions from other Circuits in the wake of Hartman support the conclusion that, for qualified immunity purposes, it was at least arguable at the time of Howards' arrest that Hartman extended to retaliatory arrests. Pp. 7−12.

NYTimes.com: Bloomberg Backs Plan to Limit Arrests for Marijuana by Thomas Kaplan:

Mayor Michael R. Bloomberg said on Monday that he would support a proposal by Gov. Andrew M. Cuomo to significantly curb the number of people who could be arrested for marijuana possession as a result of police stops.