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Thomas K. Clancy, The Fourth Amendment's Exclusionary Rule as a Constitutional Right (Ohio State Journal of Criminal Law, Vol. 10, 2012), posted on SSRN. Abstract:

I am a proponent of the view that the rule is constitutionally based and is an individual remedy for the violation of that person’s Fourth Amendment rights. Both sides of the exclusionary rule debate regarding whether it is a mere tool to enforce deterrence or whether it is an individual right-based remedy have weighty authority and supporters. In my view, the constitutionally-based argument is persuasive: in constitutional law, there can be no right without a remedy. Subsidiary arguments reinforce that view. Those include the absence of any rational or empirical justification for the rule if based on deterrence theory, the lack of authority of the Court to apply the rule to the states absent a constitutional basis, and the coherence of justification of exceptions to the rule’s application if constitutionally based, unlike the ad hoc deterrence rationale, which is a mere substitute for each justice’s subjective assessment as to whether to apply the sanction.

TheHill.com: ACLU backs Twitter's bid to hide user information by Brendan Sasso:

The American Civil Liberties Union (ACLU) filed a brief in a New York state court on Thursday supporting Twitter's effort to avoid handing over the personal information of one of its users to the police.

New York City prosecutors had served Twitter with a subpoena for its data on Malcolm Harris, who was arrested for disorderly conduct during an Occupy Wall Street protest. The prosecutors asked Twitter for Harris's email address and all of his tweets in a three-month period.

Twitter argued that police would need a search warrant to access the communications. The court had concluded that Harris lacked the legal standing to challenge the subpoena on his own, but Twitter argued that its users have the authority to protect their own tweets.

WSJ.com: U.S. Argues to Preserve GPS Tracking (paywall) by Julia Angwin and Jess Bravin:

The U.S. government told a federal appeals court Thursday that it still has the right to place Global Positioning System tracking devices on cars without obtaining a search warrant—despite a January Supreme Court ruling that the warrantless installation of such a device violated the Constitution.

In arguments aimed at preserving warrantless GPS tracking evidence in a case before the Ninth U.S. Circuit Court of Appeals, the Justice Department relied on the fact that the high court didn't specifically state that a search warrant would be required in other situations.

Fourth Amendment Search and Seizure, Qualified Immunity and the Technological Age by Muna Busailah and Stephen P. Chulak, 2012 (6) AELE Mo. L. J. 501 (June 2012):

This article examines two decisions, issued by the United States Supreme Court in January 2012, concerning the Fourth Amendment. The first, Ryburn v. Huff, #11-208, 132 S.Ct. 987 (2012), involves a civil rights action by homeowners against police officers from the City of Burbank, alleging that the officers’ entry into their home violated the Fourth Amendment. The Supreme Court reversed the decision of the Court of Appeal and held that the officers had a reasonable basis for fearing violence was imminent, which entitled them to qualified immunity.

In the second case, United States v. Jones, #10-1259, 132 S.Ct. 945 (2012), the Supreme Court ruled that the attachment of a Global-Positioning-System (GPS) tracking device to a vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, was a “search” within the meaning of the Fourth Amendment.

State officers seized a camera and memory card from defendant’s apartment based on statements from two witnesses that they saw images on defendant’s camera of him raping two young girls. Even if the state officials unlawfully seized the camera, the search warrant for what was held was reasonable. The federal search warrant warrant was executed four days after it expired, but probable cause still existed so the search was still reasonable. United States v. Ahmad, 2012 U.S. Dist. LEXIS 74325 (W.D. N.Y. May 29, 2012):

Courts have declined to order suppression of evidence seized pursuant to belatedly-executed warrants where probable cause still existed at the time of the execution and the police did not deliberately disregard the terms of the warrant. E.g., United States v. Sims, 428 F.3d at 955 (one-day delay in executing search warrant does not justify suppression because warrant was executed within the period prescribed by Rule 41, probable cause to search still existed and police did not intentionally disregard warrant's terms; "[because] non-prejudicial and unintentional violations of Rule 41 do not result in suppression, then a fortiori technical violations of the warrant itself compel the same result"); United States v. Gerber, 994 F.2d at 1561 n.4 (denying suppression where search was conducted three days after the warrant's expiration; "inadvertent, technical violation of Rule 41 should not preclude key incriminating evidence for which a valid warrant based on abundant probable cause was obtained"); United States v. Huslage, 480 F. Supp. 870, 875 (W.D. Pa. 1979) (denying suppression where warrant expired at 5:00 a.m., police conducted second search at 10:00 a.m. and probable cause to search still existed).

In this case, the evidence was seized by the Brighton Police on June 6, 2011, and remained in their possession since that date. The federal warrant was issued on August 25, 2011, and directed its execution by September 2, 2011. Couch executed the warrant on September 6, 2011, four days after the expiration date and twelve days after it was issued. Despite the warrant's expiration, probable cause to seize the items had not lapsed — the items were still in police custody and were as likely to constitute or contain relevant evidence on September 6 as they were on August 25, 2011. Ahmad has made no showing or even suggestion of prejudice resulting from the belated execution and no evidence exists that Couch intentionally disregarded the terms of the warrant. Indeed, Couch has explained that the delay resulted from his mistaken belief that he had sixty days to execute it. On this record, I find that the delay in executing the warrant did not constitute an unreasonable seizure within the meaning of the Fourth Amendment.

Strong chemical smell outside a building to a trained officer was probable cause for issuance of a search warrant for the house for meth. United States v. Collins, 2012 U.S. Dist. LEXIS 74639 (W.D. Okla. May 30, 2012):

The officer reporting the smell in this case, Undersheriff King, had attended both DEA and OBN schools regarding methamphetamine laboratories. Although it could have been more specific, the search warrant affidavit did state that the undersheriff was able to identify the odor because of his "training [and] experience with methamphetamines lab." Search Warrant, Attachment "B." As noted by defendant Smith, the affidavit did not specify the exact source of the odor. However, it is apparent that the smell was coming from a building on the Smith property and not a field ("drove by described residence in Attachment "A," and detected an very strong odor of Anhydrous Ammonia and Ether"). The affidavit also was not defective for failing to explicitly link the odor to a crime, since the specific chemical odor that is identified is commonly linked to the manufacture of methamphetamine. While the affidavit submitted to the state judge was certainly bare bones, the court concludes it was sufficient, in light of the flexible standard referenced above, to support issuance of the warrant.

The Knights reasonable suspicion standard applies to persons on federal supervised release. The USPO had RS, too. United States v. Lykins, 2012 U.S. Dist. LEXIS 74655 (E.D. Ky. May 30, 2012):

Knights is also applicable despite Defendant's status as a supervised releasee. Knights specifically addressed the warrantless search of a probationer's home. However, other court's have applied Knights' reasonable suspicion analysis to the search of a supervised releasee's residence. See, e.g., United States v. Krug, No. 3:09cr257, 2010 WL 2196607, at *4-5 (M.D. Tenn. May 26, 2010). Moreover, other circuits have recognized that supervised releasees and probationers have similar expectations of privacy. See United States v. Stewart, 532 F.3d 32, 36 (1st Cir. 2008) (recognizing that probation and supervised release are different forms of conditional release, and courts have not distinguished among conditional releasees for Fourth Amendment purposes); United States v. Weikert, 504 F.3d 1, 12 (1st Cir. 2007) (refusing to distinguish the privacy interests of a supervised releasee from a probationer); United States v. Zimmerman, 514 F.3d 851, 855 (9th Cir. 2007) (treating probationer's Fourth Amendment challenge to DNA Act as foreclosed by prior precedent addressing challenge by supervised releasee); Banks v. United States, 490 F.3d 1178, 1187 (10th Cir. 2007) (supervised releasees and probationers fall into the "category of felons on release who are not entitled to the full panoply of rights and protections possessed by the general republic"). In fact, the Second Circuit has held that supervised release places the most severe limits on expectations of privacy, greater than those of both parole and probation. United States v. Balon, 384 F.3d 38, 44 (2d Cir. 2004). Therefore, Defendant, as a supervised releasee, had the same, if not less, expectation of privacy as did the probationer in Knights. As a result, Knights' holding that the Fourth Amendment requires "no more than reasonable suspicion to conduct a search" of a probationer applies to the search of Defendant's residence. See Knights, 534 U.S. at 121.

From Crim Prof Blog:

The AALS Section on Criminal Justice will hold a panel during the AALS 2013 Annual Meeting in New Orleans entitled: Technology and Crime: The Future of the Fourth Amendment in Public.

. . .

New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.

Issuance of a search warrant in Wisconsin is not purely a judicial function under state law or the Fourth Amendment. Accordingly, court commissioners can issue search warrants. State v. Williams, 2012 WI 59 (May 30, 2012):

¶3 Throughout Wisconsin's history, including before the ratification of the Wisconsin Constitution, non-judges have been authorized by statute to issue search warrants. Therefore, we conclude that the issuance of a search warrant is not an exercise of "[t]he judicial power," as that phrase is employed in Article VII, Section 2 of the Wisconsin Constitution. Instead, issuance of a valid search warrant requires that the individual be authorized by law to issue the warrant, that he or she be neutral and detached, and that the warrant be issued only upon a showing of probable cause.

¶4 Because we also conclude that Wis. Stat. § 757.69(1)(b), which allocates the power to issue search warrants to circuit court commissioners, does not impermissibly intrude upon "[t]he judicial power" granted to the courts by Article VII, Section 2 of the Wisconsin Constitution, we hold that § 757.69(1)(b) is constitutional. Therefore, the circuit court commissioner's search warrant was validly issued. Accordingly, we affirm the circuit court's denial of Williams' motion to suppress.

. . .

¶26 Therefore, we recognize that Article I, Section 11's warrant requirement has not mandated a determination of probable cause by a judge or a court of record. Non-judges who are "neutral and detached" and are able to ascertain whether probable cause exists have been expected to issue search warrants in the past, provided that they are authorized by statute to do so. Accordingly, issuance of a search warrant does not require an exercise of the judicial power that is vested exclusively in courts under Article VII, Section 2. Although issuing a search warrant may require some exercise of
quasi-judicial power, it is something less than and distinguishable from the power vested in courts and elected judges.

I remember the briefs in Leon pointing out the large number of non-trained judicial and quasi-judicial officers (like state JPs) who could issue warrants. Leon didn't address this, and this case doesn't cite Leon, but it doesn't have to. If the warrant is valid, good faith doesn't matter.

h/t to a reader

Defendant company and its principal were accused of false statements on toxic waste reports. The state EPA got a search warrant from the judge overseeing a statewide grand jury, and the search warrant clearly contemplated digital documents which were reasonably seized via seizure of the hard drives rather than an onsite inspection. Other technical arguments were moot, including sealing the search warrant materials for a while. United States v. Blue Marsh Labs., 2012 U.S. Dist. LEXIS 73544 (E.D. Pa. May 24, 2012).*

Defendant was stopped by the police for DUI when the motorist behind him at a McDonald’s drive-thru at 4 am called the police that he was “drunk as hell,” giving the vehicle make, color, and license number. The officer corroborated the tip with the McDonald’s employee. That was cause for a stop. State v. Steinbrunner, 2012 Ohio 2358, 2012 Ohio App. LEXIS 2083 (3d Dist. May 29, 2012).*

Where officer could not articulate a facial legal basis for the stop, it was unreasonable as a matter of law. In addition, the trial court made a finding of fact [likely to help the officer] that was never in the testimony at the hearing. State v. Haas, 2012 Ohio 2362, 2012 Ohio App. LEXIS 2080 (3d Dist. May 29, 2012):

[*P27] In light of the relevant case law from this and other districts, we hold that when a defendant's conduct does not facially violate the traffic statute which provides the sole basis for the officer's alleged reasonable articulable suspicion, the stop is unconstitutional.

. . .

[*P33] The State argues that it would be unreasonable to expect our law enforcement officers to know the details of every traffic offense and to make an accurate determination of the statute's applicability. Such requirements, the State explains, would hamper law enforcement to the extent it would cause "paralysis by analysis." We aver that knowledge of the traffic laws is the very essence of a patrol officer's job. To require any less than an accurate, working knowledge of the traffic offenses and to fail to ensure that the one being seized at least reasonably appeared to have violated a statute on its face gravely deprives citizens of their constitutional right to be free from warrantless searches and seizures.

[*P34] This is the unfortunate scenario in the present case. Officer Wymer unconstitutionally seized Haas under the suspicion that Haas violated a law. However, the officer's own testimony revealed that he did not know the requirements of this very law. Haas was not and could not have been engaged in the specific criminal activity testified to by Officer Wymer. Yet he was seized and arrested due to the officer's lack of knowledge of the very law he was enforcing.

Defendant was virtually strip searched for drugs on the street. He was arrested and face down on the sidewalk, and the arresting officers pulled down his pants to get to the drugs hidden in his buttocks. This was unreasonable. The officers knew that the lump in his pants was not a weapon. Commonwealth v. Morales, 2012 Mass. LEXIS 463 (May 29, 2012):

Here, with regard to the strip search, at the time when Detective Desmarais removed the drugs from between the defendant's buttock area, the police did not, as we suggested in Commonwealth v. Thomas, supra at 409 n.5, conduct the search in a private room or in any private location. The handcuffed defendant was face down on a public sidewalk and surrounded by four police officers. Detective Desmarais had determined that the lump in the rear of the defendant's shorts was not a weapon. Thus, there was no concern that the defendant could have used a weapon against the officers, fled, or destroyed evidence. With no exigency existing, the defendant should have been transported to a private space or location. Doing so would have avoided what followed, namely, the public exposure of his buttocks, an embarrassing and humiliating intrusion of the defendant's privacy. Indeed, the policy of the Lowell police department prohibits strip searches outside the confines of a police station. In the circumstances, the location of this search was inappropriate.

The manner in which the search proceeded, whereby the defendant's buttocks were publicly exposed in the absence of exigent circumstances, was unreasonable. See Paulino v. State, 399 Md. 341, 359 (2007) (instead of reaching into defendant's underwear to retrieve contraband, officer lifted up defendant's underwear and publicly exposed his buttocks, which rendered search unreasonable). There was no explanation in the record why Detective Desmarais was able to inspect the defendant's buttocks area for drugs without public exposure, but was unable to retrieve the drugs without the resulting exposure. If Detective Desmarais could not have retrieved the drugs without exposing the defendant's buttocks, he should not have conducted the search on a public sidewalk. Both the inappropriate location of the search and the manner in which it was conducted rendered the strip search constitutionally unreasonable under both the Federal and State Constitutions. Accordingly, we affirm the judge's order of suppression.

The officer was suspicious of defendant who would not remove his hands from his pockets during an encounter, and he directed defendant to remove his hands, but only one was pulled out. This was reasonable suspicion defendant was armed. United States v. Manuel, 2012 U.S. Dist. LEXIS 73703 (W.D. Mo. May 8, 2012).*

Defendant was properly seized incident to his arrest, the court finding it was in his hand. Thereafter, a search warrant was issued for the phone, which was valid. United States v. Bass, 2012 U.S. Dist. LEXIS 73783 (E.D. Mich. May 29, 2012).*

Police responding to a burglary in progress call from a pawnshop’s burglar alarm had reasonable suspicion to stop a vehicle on the parking lot after hours. United States v. Von Bargen, 2012 U.S. Dist. LEXIS 73458 (D. Idaho May 25, 2012).*

Waiver of collateral attack in guilty plea was binding on defendant. There was no conditional plea, and defendant knew he was waiving the opportunity to challenge the search. United States v. Hernandez, 2012 U.S. Dist. LEXIS 73728 (E.D. Ky. April 16, 2012).*

Defendant consented to a search of his vehicle and cell phones were seized, and it took a long time for the government to get search warrants for the cell phones, which were evidence of a crime. The delay did not require suppression. United States v. Franklin, 2012 U.S. Dist. LEXIS 73692 (N.D. Ga. April 27, 2012), adopted in part 2012 U.S. Dist. LEXIS 73714 (N.D. Ga. May 25, 2012):

For all of the reasons stated above, Mitchell [United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009)] is distinguishable from the instant case and does not provide a basis for the suppression of Boykins's cell phones.4 See United States v. Emanuel, 440 F. App'x 881, 885-86 (11th Cir. 2011) ("Because Emanuel gave his voluntary consent to the seizure and search of his computer, Mitchell is inapposite"); United States v. Stabile, 633 F.3d 219, 235 (3d Cir. 2011) (distinguishing Mitchell because the warrantless seizures in Mitchell were based on probable cause and not consent).

4 Boykins also relies heavily on United States v. Shaw, No. 1:11-cr-239-29-CAP-ECS, 2012 WL 844075 (N.D. Ga. Feb. 10, 2012), adopted by 2012 WL 843919 (N.D. Ga. Mar. 12, 2012) [here](granting defendant's motion to suppress evidence where search warrant was not obtained until three months after cell phones were seized). However, Shaw is distinguishable because the seizure in that case was based on a search incident to arrest rather than consent. To the extent that Shaw is not distinguishable, I disagree with it and choose not to follow it. [The USDJ disagrees with this footnote.]

A friend came to defendant’s house and he told her to call 911 because he had just killed his wife. She did, and the police arrived, and he let them in to the house. While there is no general crime scene exception to the Fourth Amendment under Flippo, the entry of the first responders and then others were by consent or a mere extension of the first for an observation. No evidence was taken as to the latter. State v. Beach, 2012 Ohio 2338, 2012 Ohio App. LEXIS 2068 (6th Dist. May 25, 2012).

Defendant was with a group of people on the street, and a police car crossed traffic to pull up in front of them. They were not seized, even by the officer “asking” them to remove their hoods. United States v. Moede, 2012 U.S. Dist. LEXIS 73219 (E.D. Wis. May 25, 2012).*

Defendant is a Russian formerly living in Cyprus who was indicted in Brooklyn for international credit card fraud. When he was arrested in Cyprus, his laptop was seized and searched. He was extradited and pled guilty here. His lawyer was not ineffective for not challenging the search of the computer in Cyprus where the U.S. was not at all involved, and he consented to parts of it. Defendant also falls short on a “shocking the conscience” due process claim. United States v. Vega, 2012 U.S. Dist. LEXIS 73329 (E.D. N.Y. May 24, 2012).*

Police had a tip about defendant and drugs, and they saw him parked in an abandoned gas station working on his vehicle. They approached to talk to him, and it was all consensual. State v. Banks, 2012 Ohio 2304, 2012 Ohio App. LEXIS 2024 (8th Dist. May 24, 2012).*

Officers had reasonable suspicion defendant had cocaine on him when they approached him, and defendant’s tossing an Altoids can as police approached was not the product of an illegal stop. State v. Golden, 2012 La. App. LEXIS 715 (La. App. 4 Cir. May 23, 2012).*

The owner of the vehicle defendant was a passenger in consented to the search of the vehicle. United States v. McNeil, 2012 U.S. App. LEXIS 10708 (4th Cir. May 25, 2012).*

Apparently some New York, Connecticut, and Arkansas police agencies have decided that seat belt checks are a good idea for a roadblock. They aren't constitutional because the true safety rationale of Sitz is missing, and they are only going to end up giving taxpayer dollars to the civil rights lawyer that sues them first. The point, of course, is what else is swept up, like drug arrests, which will lead to a motion to suppress.

Defendant’s statement during an investigative detention was not the subject of flagrant police conduct warranting suppression under Brown. State v. Buford, 2012 Tenn. Crim. App. LEXIS 342 (May 24, 2012)*:

Consequently, a weighing of the Brown factors leads to the conclusion that the defendant's statements were sufficiently the product of his own free will so as to purge the taint of any illegal arrest. Moreover, in this case, the legal conclusion dictated by Brown is confirmed by the presence of additional facts. The record reflects that the defendant never requested to leave at any point during the time period he was in police custody. Furthermore, the statements that the defendant made to police were intended to be exculpatory. While the principle that exculpatory statements may be suppressed as fruits of the poisonous tree is a concept as old as the doctrine itself, see Wong Sun, 371 U.S. at 487 (rejecting the government's argument that certain statements should be admissible because they were ostensibly exculpatory), the overarching picture painted by this record is not one of a defendant coerced into making an involuntary confession - or indeed any sort of statement at all--to the police as a result of some pressure or trauma resulting from an illegal detention.

A burglary suspect told the police that he saw marijuana in defendant’s house when he burglarized it. The police used that as a justification for a knock-and-talk, and defendant let them in. They saw marijuana in plain view, and this was valid. Defendant argued pretext for the knock-and-talk, but that was unavailing. State v. Seiler, 2012 La. LEXIS 1428 (May 25, 2012):

In this instance, defendant's home was the subject of a recent burglary. Upon information received from the burglary suspect there was contraband in the home, police officers from both the New Orleans Police Property Crimes Unit and officers from the Narcotics Unit traveled to defendant's home to investigate. When the officers knocked on the defendant's door, they requested and were granted entry into his home by the defendant himself. As a result, we do not find the officers were unlawfully in that place at that time.

The trial court, to justify its ruling suppressing evidence, stated in its per curiam the officers used a "pretext" to gain entry to the defendant's home, in that the officers attempted to enter the defendant's home under the guise of a continuing burglary investigation, and not a narcotics investigation. However, the United States Supreme Court ruled in Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L.Ed.2d 168 (1978), "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." In other words, if the officers had an objective right to knock on the defendant's door and ask to be admitted, it is of no moment the reason they were admitted may not have been the full reason they were at the defendant's home in the first place. Here, detectives knocked on the defendant's door, informed him they were there to investigate the burglary, and they were granted entry voluntarily by the defendant. See, Sanders, 374 So. 2d at 1188.

Moral to the story? Don't report a burglary at your house if you keep dope there. Grin and bear it. The number of times I've seen that in reported decisions is significant. You never know when the police will show up thereafter.

Backyard of mobile home with a gravel driveway that ended at front yard and brush all around that blocked view from road was curtilage. Going to the backyard by following the garden hose violated the curtilage for a knock-and-talk. State v. Draper, 2012 Tenn. Crim. App. LEXIS 346 (May 24, 2012)*:

The "knock and talk" procedure does not justify Deputy Hamby's incursion into the curtilage of the Defendants' home. Deputy Hamby was very clear in his testimony at the suppression hearing that he did not approach the Defendants' front door and made no attempt to contact them at the front door. Deputy Hamby could not recall if any of the water company employees attempted to contact the Defendants at their front door. Deputy Hamby also could not recall whether there were any other cars in the driveway when he arrived. Deputy Hamby testified that he bypassed the front door and simply followed the water hose into the Defendants' backyard. As such, Deputy Hamby left the area where the public was impliedly invited, exceeded the scope of the implied invitation, and intruded upon a constitutionally protected area. Furthermore, Deputy Hamby was aware that the Defendants had posted "no trespassing" signs on their property, effectively revoking the implied invitation of the front door. Accordingly, we conclude that Deputy Hamby made no attempt to institute a "knock and talk" procedure and that the procedure provides no justification for his warrantless entry into the Defendants' backyard.