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Police entry onto the curtilage, defendants’ carport, violated the Fourth Amendment because, while it could be seen, it was still a trespass under Jones. United States v. Perea-Rey, 2012 U.S. App. LEXIS 10941 (9th Cir. May 31, 2012):

This confusion has persisted for decades. For example, in United States v. Magana, 512 F.2d 1169 (9th Cir. 1975), we stated that "'a reasonable expectation of privacy,' and not common-law property distinctions, now controls the scope of the Fourth Amendment." Id. at 1170-71 (citing Katz). Relying on Magana, we repeated this error in a recent opinion that the government cited to the district court. See United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), vacated, 132 S. Ct. 1533, 182 L. Ed. 2d 151 (2012). In Pineda-Moreno, despite the government's admission that agents had, without a warrant, entered the curtilage of the defendant's home to place a mobile tracking device on his car in his driveway, our court concluded that there was no Fourth Amendment violation because Pineda-Moreno had no reasonable expectation of privacy in the curtilage. Id. at 1215. The Supreme Court recently and emphatically repudiated this reasoning, explaining that "as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." Jones, 132 S. Ct. at 952.

After determining that the carport was part of the curtilage to the home, the district court erroneously concluded that the agents did not violate Perea-Rey's Fourth Amendment rights when they occupied the carport without a warrant. The Supreme Court has explained that the role of reasonable expectation analysis in evaluating the constitutionality of searches of the curtilage is only in determining the scope of the curtilage, and not the propriety of the intrusion. See Dunn, 480 U.S. at 300 ("[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself."). The district court circularly reasoned that because the agents were able to freely enter the carport, Perea-Rey had no reasonable expectation of privacy in the carport. Yet, because it was curtilage, it was a constitutionally protected area, and the warrantless entry, search and seizure by the agents violated Perea-Rey's Fourth Amendment rights. See Payton, 445 U.S. at 586 ("It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable."). No further showing was required of Perea-Rey.

The district court also conflated the ability to observe inside the curtilage with the right to enter the curtilage without a warrant. Although a warrant is not required to observe readily visible items within the curtilage, and "officers [need not] shield their eyes when passing by a home on public thoroughfares," California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986), a warrant is required to enter the home. In Ciraolo, the Supreme Court held that warrantless aerial observation of the curtilage of a home was not a violation of the Fourth Amendment, and that such observations could form the basis for probable cause to support a warrant to search the curtilage. Id. at 213-14. Only after obtaining a warrant based on the observations did officers actually enter Ciraolo's curtilage. The ability to observe part of the curtilage or the interior of a home does not authorize law enforcement, without a warrant, to then enter those areas to conduct searches or seizures. See Struckman, 603 F.3d at 747 ("[P]olice officers must either obtain a warrant or consent to enter before arresting a person inside a home or its curtilage or make a reasonable attempt to ascertain that he is actually a trespasser before making the arrest."). The agents here could observe the curtilage from the sidewalk and use those observations, as in Ciraolo, as the basis for a warrant application. But, the ability to see into the curtilage or the home does not, absent some other exception to the warrant requirement, authorize a warrantless entry by the government. Therefore, the district court erred by admitting the evidence simply because the officers could view the inside of the carport from the street.

On summary judgment, entry into plaintiff’s hotel room was without exigent circumstances or a warrant, and a jury might find the officers liable. On this claim, the law is well settled. “Making all inferences in plaintiffs' favor, a reasonable fact-finder could conclude that a competent officer under the circumstances of this case would have understood both that exigent circumstances did not exist before the officers entered the room and that entering the room in the absence of such circumstances violated plaintiffs’ [clearly established] constitutional rights.” Inman v. Siciliano, 2012 U.S. Dist. LEXIS 75285 (D. Mass. May 31, 2012).*

DUI traffic stop led to plain view of a switchblade in passenger’s lap which caused his arrest. Following that, a plain view of a gun led to a search for which he had no standing. United States v. Seigler, 2012 U.S. App. LEXIS 10854 (3d Cir. May 30, 2012).*

In this murder case the defendant did not specify what was to be suppressed, but “[w]aiver notwithstanding, the only testimony is that the Defendant consented to the search of his vehicle.” That’s first a question of fact resolved against him. State v. Sexton, 2012 Tenn. LEXIS 377 (May 29, 2012).*

The government’s motion to compel DNA samples is granted. Defendants are already indicted, and it needs to test the samples to confirm a CODIS match. The government also has shown probable cause for the sample. United States v. Sexton, 2012 U.S. Dist. LEXIS 75847 (W.D. Wash. May 31, 2012):

The Court notes that "the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels—the 'seizure' of the 'person' necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence." Dionisio, 410 U.S. at 8 (internal citation omitted). In this case, the first level is not at issue. An indictment has been returned against each Defendant, Dkt. # 23, and a neutral magistrate has found probable cause to seize each Defendant, Dkt. # 1. The Court thus moves to the second level question: whether, "'given all the circumstances set forth in the affidavit before [the Court] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Tan Duc Nguyen, 673 F.3d 1259, 1263 (9th Cir. 2012) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

. . .

Moreover, the Court sees no reason to deny the United States' request as to the DNA or the fingerprints simply because the United States may have already procured similar samples. As the United States explains, the laboratory requests new DNA samples in order to confirm that the CODIS record is accurate. Frankly, this is not only logical, but reassuring. It minimizes the risk that an erroneous positive will result in the conviction of an innocent defendant. And while Defendants may have been fingerprinted already in this case, major case prints—a far more thorough recording of all the friction detail ridges covering the hand—have not been obtained.

Police arrived at the location of a 911 call that was just ending when they saw a man fitting the description of a man with a gun. All things considered, that was reasonable suspicion and not a generic discovery of this defendant. United States v. Willis, 2012 U.S. Dist. LEXIS 75858 (N.D. Okla. June 1, 2012)*:

In this case, police heard a dispatch that a black man wearing a gray shirt was present at a disturbance with a gun at a specific address. Officers Hamm and Zeller immediately responded to the dispatch and drove to the address. They arrived at the address within two minutes of hearing the dispatch, and they found a black man wearing a gray shirt about a block away from the 911 caller's house. ... [¶] Although not cited by the parties, the Court finds that the Supreme Court's decision in Florida v. J.L., 529 U.S. 266 (2000), is relevant to the Court's determination as to whether Officers Hamm and Zeller had reasonable suspicion to initiate a stop. ...

Considering the evidence known to Officers Hamm and Zeller before initiating the stop, the Court finds that the stop was reasonable from its inception. Defendant bore a reasonable resemblance to person described by the dispatcher and he was found near the 911 caller's house. Officers Hamm and Zeller arrived at 911 caller's house about two minutes after hearing the dispatch, and it was reasonable for them to believe that the black male wearing a gray shirt was the same person described by the dispatcher. The Court gives particular weight to the close geographical proximity of the defendant to the caller's house and the temporal proximity of the events. Officers Hamm and Zeller arrived at the 911 caller's house almost before the 911 call was completed and they found a person matching the description provided to them. The Court also notes that this was a residential area, not a commercial or high traffic area, and police were not confronted with a situation where they were likely to find numerous persons meeting a generic description. ...

A website on dealing with United States v. Jones in the future: usvjones.com:

USvJones.com
How to Define Fourth Amendment Doctrine for Searches in Public?

Papers due June 4th, if you're interested. A meeting in DC June 7-8.

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