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Meanwhile, many office buildings in the usually bustling city were closed after workers were ...

In an arrest for DUI, a search incident that included opening a dollar bill that was folded in a way to indicate it held cocaine, which defendant then admitted, was reasonable. The officers did know all that defendant was under the influence of. State v. Armendariz-Nunez, 2012 NMCA 41, 2012 N.M. App. LEXIS 48 (February 9, 2012), Certiorari Denied, March 23, 2012, No. 33,482:

[*13] We disagree with Defendant's argument that the cocaine was not evidence of the DWI crime for which he had been arrested. See NMSA 1978, § 66-8-102(B) (2008) (amended 2010); State v. Aleman, 2008 NMCA 137, 145 N.M. 79, 194 P.3d 110 (affirming the defendant's conviction for driving while under the influence of cocaine). While the deputy observed that Defendant smelled of alcohol, there was no indication that other substances could not have contributed to his intoxicated state. As the State points out, both alcohol and marijuana emit a distinct odor, while cocaine and many other controlled substances do not. The discovery of a particular drug on a suspect's person could be relevant evidence that the suspect may be under the influence of that drug and, therefore, may be appropriately seized.

Police responded to a domestic abuse call and were inside defendant’s house. He was arrested and removed from the house and warrants were obtained. Drugs were found on him when he was booked into the jail. Even if the entry was unconstitutional, which does not have to be decided) the finding of the drugs was sufficiently attenuated from that, and suppression was properly denied. Echavarry v. Commonwealth, 2012 Va. App. LEXIS 167 (May 15, 2012).*

Defendant’s mother did not have actual or apparent authority to consent to a search of her adult son’s bedroom. He had been staying with her for four months and she came into the room with “regular access” to make the bed and clean up, but that wasn’t enough because it was apparent that the room was used by only her son. She consented to a search, and the police looked in a box with men’s clothes. Ward v. State, 2012 Fla. App. LEXIS 7850 (Fla. 4th DCA May 16, 2012).

Jail inventory policy was unconstitutional under the Oregon constitution because it had no limitations on search of containers objectively likely to hold contraband. State v. Taylor, 2012 Ore. App. LEXIS 616 (May 16, 2012).*

Existence of an arrest warrant was justification for a stop. United States v. Nelson, 2012 U.S. App. LEXIS 9839 (3d Cir. May 16, 2012).*

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Defendant’s girlfriend consented to a search of their place, but defendant was present and objected under Randolph, except the officer’s didn’t hear him during the noise of the arrest (and neither did she). Since the officers were, at worst, just negligent, the court would not apply the exclusionary rule since the Second Circuit’s rule is that Herring may apply even when not attenuated. United States v. Smith, 2012 U.S. Dist. LEXIS 68054 (S.D. N.Y. May 15, 2012):

In this case, the benefits of deterrence are marginal. As the Herring Court stated, "the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." 555 U.S. at 144. The Court has credited the officers' testimony that they did not deliberately disregard Smith's refusal to consent to a search, but rather did not hear Smith make a statement to that effect, (Tr. 77:7-78:3.) Their failure to hear him constituted, at the most, an isolated instance of negligence; there was no evidence that their conduct rose to the level of deliberate or reckless conduct, or gross, recurring, or systemic negligence. The evidence suggested only that, in the midst of the noise and confusion that ensued during the arrest, the officers simply did not hear Smith, just as Smith's girlfriend did not hear him. On those facts, the officers reasonably believed that they were authorized to search the Apartment after obtaining the consent of Smith's girlfriend.

Smith argues that exclusion of the evidence has deterrent value insofar as suppression would "encourage[e] arresting officers to pay attention to a defendant's assertion of rights." (Def.'s Supplemental Mem. at 6.) Although suppression may hypothetically have this effect, such deterrence is insufficient to warrant application of the exclusionary rule: "Even assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity." United States v. Leon, 468 U.S. 897, 919, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). As noted, in light of all the circumstances, the officers' reliance on Smith's girlfriend's consent was objectively reasonable.

In a search of business’s desks and computers, the individual defendants had standing under Mancusi v. DeForte. Also, one password protecting her computer supported standing as to her computer. The warrant limited seizure of records to 2007, and the government's seizure of records before that violated the terms of the warrant, and the motion to suppress is granted to that. United States v. Shellrock, 2012 U.S. Dist. LEXIS 68962 (D. N.J. May 17, 2012):

The Court finds both Meloney and Bryan have standing to challenge the search of the Harbor House premises. First, Bryan is a co-owner of Harbor House and Defendant Meloney worked directly for Bryan and was his personal assistant. As co-owner of the corporation, Bryan had an ownership and possessory interest in Meloney's workplace computer and as Meloney's direct supervisor, he had a reasonable expectation of privacy in the work she completed on the computer at his direction. Therefore, the court finds that Defendant Bryan has standing to challenge the search of Harbor House's premises.

Defendant Meloney also has standing to challenge the search of her computer. Though Meloney did not have a private office and her workspace was in a common area, is not conclusive of whether Meloney had an expectation of privacy in this area. The area searched was Meloney's personal desk and workspace where she worked for more than ten years. She did not share this desk, computer, and workspace with other employees. Other employees did not use her computer or her desk to complete their work. Meloney also kept personal items on her desk in her workspace.

The Supreme Court has clearly held that even where a person's workspace is located in a room shared with others, the person's expectation of privacy in their own desk and files is not diminished. See Mancusi, 392 U.S. at 369 (holding that a union officer has a reasonable expectation of privacy in his workspace which was located in one large room which was shared with several other union officials and therefore had standing to successfully challenge the warrantless search therein). Here, the court is satisfied that the area searched was Meloney's personal workspace which she did not share with other employees and was used as her workspace on a regular basis for more than ten years.

In addition, Meloney's computer was password protected. While her password was commonly known at the work place among her fellow employees, it was not known to the public and could not be accessed by anyone outside this small, closely held corporation. This is sufficient to show her intent to exclude members of the public and maintain privacy in the documents kept on her computer, an expectation shared with the business owner. The electronic documents were retrieved from Meloney's "My Documents" folder and it is unclear from the record whether this folder was part of the network or an independent folder on Meloney's desktop. However, these documents were found on Meloney's computer and there is no evidence that these documents were found in any of the other computers searched by the government. This leads to the conclusion that the "My Documents" folder was not part of the general corporate network. While Meloney's standing is a closer question than Bryan's, the court is satisfied that society would recognize that Meloney has a reasonable expectation of privacy in her personal workspace and that subjectively, Meloney intended to keep her workspace private as she did not share or allow others to use her desk or computer.

Therefore, both Meloney and Bryan have standing to challenge the execution of the search warrant at Harbor House.

Tracking a cell phone by court order was not a violation of the Fourth Amendment under Jones because there was no trespass on defendant’s property. (Defendant had the telephone that was the target of a tracking warrant, and that was sufficient to give him standing. His name was even on the tracking order issued by the Florida state court.) United States v. Sereme, 2012 U.S. Dist. LEXIS 68202 (M.D. Fla. March 26, 2012):

With regard to the merits, the Defendant argues that the interception of his movements by the use of a GPS device constituted a warrantless search in violation of the Fourth Amendment and therefore any items of evidence found at the traffic stop must be suppressed. Here, the Government had obtained an order from a state court judge which instructed Sprint to provide the location of the cell phone in question at any time for a period of sixty days. There was no device physically placed on the vehicle by law enforcement. Rather, the monitoring was only done through the cellular telephone. This distinction is important as the Supreme Court recently held in United States v. Jones, that the Government's installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle's movements without a valid warrant was a search in violation of Jones' rights. United States v. Jones, 132 S. Ct. 945 (2012). Sereme relies on Jones, contending that the GPS evidence should be suppressed as five members of the Court in a concurring opinion authored by Justice Alito, expressed the view that long-term GPS monitoring of an individual by law enforcement impinges on expectations of privacy, without regard to the specific technology employed. Id. at 954, 964. "But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car, for a very long period." Id. at 964. The concurring opinion was not limited to the attachment of physical devices to monitor movements.

In this case, there was no physical trespass onto Sereme's property. There was no physical device attached to the car in which he was a passenger or any other piece of his property. Based upon this Court's reading, the Jones opinion does nothing to preclude the Government's monitoring of individuals through the use of cell site technology. As the opinion stated, it resolved only "whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment." Jones, 132 S. Ct. at 948. The Supreme Court has not answered the broader question presented here which is whether the Government's monitoring of an individual's movements through their cell phone for a certain period of time constitutes a "search" within the meaning of the Fourth Amendment, and more importantly whether that "search" requires a warrant issued upon probable cause of some other level of suspicion, such as the traditional reasonable suspicion.

In this case, law enforcement monitored and tracked the movements of the target telephone that was believed to be used by Sereme for a period of 12 days after law enforcement had received an Order allowing them to do so in accordance with Fla. Stat. § 934.32. Thus, the initial stop of the vehicle was not unlawful on these grounds.

Defendant was seen leaving a stash house with a box, and he was followed from a distance where he went to a liquor store and then somewhere else. He was stopped but the stop was without probable cause. There was no showing that he had drugs when he left the stash house and his driving was not indicative of “counter-surveillance.” Officer's alleged expertise that it was a stash house was a mere unsupported conclusion. United States v. Cervantes, 2012 U.S. App. LEXIS 9843 (9th Cir. May 16, 2012):

The government asks us to place heavy reliance on Hankel's conclusory statement that, based on Hankel's training and experience, the white box in Cervantes's possession came from a "suspected narcotics stash house." But in the absence of any underlying facts as to why Hankel suspected the house was a "stash house," this statement is entitled to little, if any, weight in the probable cause analysis.

"One of the themes which runs through the decisions on the Fourth Amendment probable cause requirement is that when the ultimate probable cause determination is made, whether by a magistrate when a warrant is sought or upon a motion to suppress evidence obtained without a warrant, mere conclusions will not suffice." 2 Wayne Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(e), at 297 (4th ed. 2004). See, e.g., Illinois v. Gates, 462 U.S. at 239 (noting that "wholly conclusory" statements of officers are insufficient to establish probable cause); United States v. Ventresca, 380 U.S. 102, 108-09 (1965) (noting that "purely conclusory" statements of officers, without detailing any of the underlying circumstances, will be insufficient to establish probable cause); Nathanson v. United States, 290 U.S. 41, 47 (1933) (noting that an officer's "mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances" is insufficient to establish probable cause).

In United States v. Thomas, we noted that a conclusory allegation by law-enforcement that a particular house was a suspected narcotics stash house, was entitled to little (if any) weight in determining whether officers had satisfied the lower reasonable suspicion standard required to stop a vehicle leaving the house. 211 F.3d 1186, 1189-90 (9th Cir. 2000). We explained that the conclusory allegation, without any foundational facts, was akin to an anonymous tip and, consequently, was entitled to little weight. Id. at 1190.

Here, as in Thomas, Hankel's statements amount to nothing more than conclusory assertions. Hankel failed to provide any underlying facts as to why he, or any other officers, suspected the house was a "narcotics stash location." While Hankel's training and experience are factors to be considered, "it is incumbent upon the arresting or searching officer to explain the nature of his expertise or experience and how it bears upon the facts which prompted the officer to arrest or search." 2 Wayne Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.2(c), at 45 (4th ed. 2004) (internal quotation marks omitted). Conclusory statements and a general claim of expertise will not suffice. Id.; Thomas, 211 F.3d at 1189-92.