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Defendant first failed to show that he had standing to challenge a search of open fields asserted to be curtilage. Then, it was open fields, and, alternatively, he consented. United States v. Wilburn, 2012 U.S. Dist. LEXIS 66300 (E.D. Ky. March 5, 2012)*:

The Court is simply unable to assess whether Defendant had a reasonable expectation of privacy in the place where the propane tank was discovered. Significantly, no evidence was presented to establish ownership or other interest in the land where the propane tank was located. As discussed above, the "defendant claiming that a search violated his Fourth Amendment rights has the burden of demonstrating that he had a legitimate expectation of privacy in the place that was searched." Mastromatteo, 538 F.3d at 544 (quoting Talley, 275 F.3d at 563. Here, Defendant did not present any evidence regarding this issue and has failed to meet his burden. Thus, the Court concludes that, although Defendant has standing to challenge the search of his home, he lacks standing to challenge the search of the property where the propane tank was located. Nevertheless, to ensure a complete analysis, the Court will assume for purposes of this Recommended Disposition that Defendant has standing to challenge both searches.

Defendant was driving through hotel parking lots apparently casing cars for break-in when he was stopped. It was a high crime area for break-ins, and the police were looking. “The necessary suspicion for an investigative Terry stop is not a high bar.” United States v. Stacks, 2012 U.S. Dist. LEXIS 67422 (W.D. N.C. May 14, 2012).*

Defendant’s failure to identify a document that witnesses to a consent search were not examined about does not justify 2255 relief. Based on the findings at the suppression hearing, it seems highly unlikely this document would change the outcome anyway. Jones v. United States, 2012 U.S. Dist. LEXIS 66194 (M.D. Tenn. May 11, 2012).*

Warrant for defendant’s arrest justified police entry into the house to arrest him, and then do a protective sweep after a gun was seen. United States v. Tran, 2012 U.S. Dist. LEXIS 67238 (N.D. Iowa May 15, 2012).*

Defendant was a school resource officer, and his desk was searched in a fraud investigation seizing his computer and bank statements. The search was not sustainable as a workplace search under Ortega and United States v. Slanina, 283 F.3d 670 (5th Cir. 2002), judgment vacated on other grounds, 537 U.S. 802, 123 S.Ct. 69 (2002). United States v. Johnson, 2012 U.S. Dist. LEXIS 67294 (W.D. La. May 14, 2012):

Under Slanina, the Government is correct that the status of the "searcher" as a "law enforcement officer is not dispositive," and that "'work related misconduct' can include criminal activity unrelated to the job." [Doc. No. 31, p. 4]. However, the Government asks the Court to ignore the "critical distinction" between this case and Slanina: whether an investigation was "wholly criminal" or had the dual purpose of an internal investigation into work-related misconduct and into the possible commission of a crime. In this case, there was no dual purpose; the single purpose of this investigation was Johnson's possible commission of a crime. On September 8, 2008, Sergeant Charles Roark of the MPD, opened a criminal investigation into the sale of stolen merchandise through an eBay account in Johnson's name. On September 12, 2008, Sergeant Roark asked the Federal Bureau of Investigation ("FBI") to become involved. By the time they searched Johnson's desk at Carroll Junior High School on February 20, 2009, Sergeant Roark and Agent Chesser had been involved in a joint criminal investigation of Johnson for six months. Under these circumstances, the MPD's interest in the prompt and efficient operation of its workplace is not compelling in the least. The search of Johnson's desk should not be reviewed under the O'Connor exception, as interpreted by the Fifth Circuit, and Magistrate Judge Hayes properly recommended the exclusion of the evidence found as a result of the search of Johnson's desk.

The district court’s finding of consent was, it said, a close call, but defendant was advised of his right to refuse and consented. [Thus, advice of right to refuse consent was apparently determinative when consent was a close call.] United States v. Mendoza, 2012 U.S. App. LEXIS 9673 (8th Cir. May 14, 2012)*:

. . . The validity of consent is a question of fact, which we review for clear error. See id.

The district court recognized the factual record made this case a close call. On the one hand, Mendoza did not explicitly state the officers were permitted to search the Louis Place residence or sign the consent-to-search form, and the significant police presence at the roadside stop and the residence raise the possibility Mendoza merely acquiesced to police authority. See id. at 773. On the other hand, Mendoza's gestures and body language indicated his consent. Officer Fink and Detective Batcheller specifically informed Mendoza of his right to refuse consent, and Mendoza clearly understood this right, because he initially refused consent and bargained with the officers regarding the terms of his consent.

There was no clear error in the district court’s determination that defendant’s girlfriend he shared a bedroom with consented to a search of the bedroom to look for guns. She admitted it on the stand, too. She was not advised of a right to refuse, but that is only a factor. United States v. Graham, 2012 U.S. App. LEXIS 9605 (9th Cir. May 11, 2012).*

Defendant was stopped because his car was illegally parked and that was justification for the officer approaching the defendant and observing him allegedly under the influence. Miller v. Chenoweth, 2012 W. Va. LEXIS 276 (May 10, 2012).*

GPS surveillance in the Ninth Circuit was under binding precedent before Jones, so Davis applies. United States v. Fata, 2012 U.S. Dist. LEXIS 66759 (D. Nev. March 15, 2012):

Consequently, even assuming non-compliance with ATF regulations, the Court finds that use of the GPS device in this case was lawful under Pineda-Moreno at the time it was installed and monitored.

Further, consistent with the Supreme Court's decision in Davis v. United States, 131 S. Ct. 2419 (2011), the Court finds that the purpose of the exclusionary rule would not be served in this instance by suppression based solely on placement of the GPS device because placement of the GPS device and the subsequent monitoring was done in reasonable reliance on then binding appellate precedent as announced in Pineda-Moreno.

As a result of the Court's finding and the decision in Davis, even though the installation and use of the GPS device to assist agents in initiating their surveillance on May 14, 2011 through May 15, 2011 did violate Defendants' Fourth Amendment rights, none of the information obtained as a result thereof is subject to suppression. In particular, the surveillance evidence obtained by agents on May 15, 2011, when they observed and overheard conversations during the purchases of firearms at the Gun Store and the gun show will not be suppressed.

Officers responded to a one vehicle accident and found an Escalade on its side in the road. The vehicle had to be towed, so the inventory was lawful. Besides that, the officer saw a gun in the car and one of the occupants dropped a baggy of drugs when the police showed up. United States v. Brown, 2012 U.S. Dist. LEXIS 66880 (S.D. Ohio May 14, 2012).*

The affidavit for the search warrant here was “bare-boned” and “slim” but barely sufficient to show probable cause and have the benefit of the good faith exception. United States v. McIrby, 2012 U.S. Dist. LEXIS 66946 (S.D. Ala. May 14, 2012)*:

Analyzing the affidavit under the totality of the circumstances, the court finds that the information contained in the warrant, although slim, is sufficient to establish probable cause. The affidavit does not offer evidence of the informant's history of reliability. However, while such information is relevant to a probable cause determination, it is not required to be set forth in the affidavit if there is other evidence under the totality of the circumstances to support a probable cause finding.

A UPS package from Mexico to Florida was inspected at the UPS de facto border checkpoint at its Louisville hub, and it was found to have cocaine. A controlled delivery was arranged for the Florida address with an anticipatory search warrant. The package was equipped with a beeper to alert to when it was opened and a GPS. First, the defendant’s name was nowhere on the package as shipper or recipient, so he lacked “standing.” Second, the package was lawfully opened under the border exception. Third, the monitoring of the packages with the beeper and GPS occurred while the vehicle was in a public place. Finally, the officers had probable cause to stop and search the car. United States v. Arrendondo, 2012 U.S. Dist. LEXIS 66919 (M.D. Fla. May 14, 2012):

The facts of this case are more closely aligned with Karo and United States v. Knotts, 460 U.S. 276 (1983) than with Jones. In Karo, the government came into physical contact with the container before it belonged to the defendant. "The transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo's privacy." Jones, 132 S. Ct. at 952 (citing Karo, 468 U.S. at 712). Jones found that the conclusion was "perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper's presence, even though it was used to monitor the container's location." Jones, 132 S. Ct. at 952. Unlike Jones, no law enforcement officer trespassed on defendant's vehicle to install a tracking device. Indeed, law enforcement officers did nothing to place the package in the vehicle. The package was simply delivered to the mobile home according to the instructions given by defendant or a conspirator to UPS, and the conduct of the conspirators was allowed to take its natural course.

Karo did hold, however, that some monitoring of the tracking device required a warrant under the Fourth Amendment. The Court held that the monitoring of a beeper in a location not open to visual surveillance (there a residence) violated the Fourth Amendment rights of those who had a justifiable interest of privacy in the location. Karo, 468 U.S. at 714-18. Here, the beepers were monitored only while the Toyota was moving in public places subject to lawful visual surveillance. Therefore, the monitoring did not violate the Fourth Amendment.

Officers responded to a domestic dispute where the defendant felon was alleged to have used a gun in an assault on the other in the house. He came to the door to talk to the officers, but the gun was in the couch. That was exigency enough to enter where the officers feared he might break for the gun. United States v. Ward, 2012 U.S. Dist. LEXIS 66824 (W.D. Mo. April 16, 2012).*

Probable cause and exigent circumstances supported the entry into the defendant’s apartment. While the police were outside, the heard voices of the people they knew were in there. Defendant was wanted but not yet found. United States v. Ashbourne, 2012 U.S. Dist. LEXIS 66985 (E.D. Mich. May 14, 2012).*

The USMJ found the traffic stop and detention was justified by reasonable suspicion. On review, the USDJ finds that the officers did not create exigent circumstances–their investigation was appropriate. United States v. Dunn, 2012 U.S. Dist. LEXIS 66427 (W.D. Tenn. May 13, 2012), adopting 2012 U.S. Dist. LEXIS 66977 (W.D. Tenn. March 27, 2012).*

The trial court erred in summarily dismissing defendant’s post-conviction petition. He alleged various grounds that the warrantless search was invalid and defense counsel was ineffective for not challenging it. Essentially, the defendant was charged with misdemeanor driving offenses and the trunk of the car was searched incident to the arrest. Hoffman v. State, 2012 Ida. App. LEXIS 34 (May 11, 2012).*

Officers had reasonable suspicion when they sent a wired CI to the defendant’s apartment and defendant said “Okay” and “hold on” and he left from another door. State v. Durham, 2012 Tenn. Crim. App. LEXIS 311 (May 9, 2012).*

Apparent authority is different from actual authority. One is not the other. United States v. Wilburn, 2012 U.S. Dist. LEXIS 66301 (E.D. Ky. May 11, 2012)*:

Wilburn argues the finding of actual authority was erroneous for two reasons. First, he ties what he concludes is a shaky basis for apparent authority to what he argues must correspond to a finding of no actual authority, "if her apparent authority was questionable the officers certainly could not rely on actual authority." [R. 426 at 2]. Like all of Wilburn's arguments, he cites no legal authority to support this proposition. Indeed, Wilburn's argument is at odds with the clear legal principles present in this situation. Apparent authority is present when "the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises." United States v. Campbell, 317 F.3d 597, 608 (6th Cir. 2003) (quotation omitted). Thus, apparent authority, as an idea, concerns what information the officers knew at the time of the search and whether it would be reasonable to conclude that the consenter had authority.

This is very different from actual authority. The concept of actual authority is concerned with whether the consenter had actual dominion over the object he authorized to be searched.

New law review article: Searching Secrets by Nita A. Farahany of the Vanderbilt Law School, forthcoming in the U. Pa. L. Rev. Abstract:

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated protected information like the “content” inside. That metaphor is flawed because it focuses exclusively on whether information is secluded and assigns no value to the substantive information itself. This Article explores the descriptive potential of intellectual property law as a metaphor to describe current Fourth Amendment search and seizure law. It applies this new metaphor to identifying, automatic, memorialized, and uttered evidence to solve current riddles and predict how the Fourth Amendment will apply to emerging technology. Unlike real property law, intellectual property law recognizes that who authored information — and not just how or where it was stored — informs the individual interests at stake in that information. The exclusive rights of authors, including nondisclosure, are interests recognized by copyright law. Recognizing the secrecy interests of individuals has broad implications for the Fourth Amendment in the information age. Together with real property law, an intellectual property law metaphor better describes emerging doctrine, which has required greater government justification to search certain categories of information. But it also reveals the normative shortcomings of current doctrine when the secrets the government seeks are automatically generated information that arises from computer activities, via GPS tracking, or are emitted by our brains.

NYTimes.com: New York Police Release Data Showing Rise in Number of Stops on Streets by Al Baker:

Police officers stopped people on New York City’s streets more than 200,000 times during the first three months of 2012, putting the Bloomberg administration on course to shatter a record set last year for the highest annual tally of street stops.

Welcome to the Big Apple. Come on Vacation, Leave on Probation.

Defendant was convicted of rape and murder based on a CODIS hit. His previous DNA draw was the result of his Tennessee arrest on a Mississippi fugitive warrant for a violent offense there. While the Mississippi charge had been dropped, Tennessee was never told. He was actually a felon, so no harm, no foul. State v. Scott, 2012 Tenn. Crim. App. LEXIS 302 (May 10, 2012).*

The state concedes that the traffic stop that led to the smell of marijuana wasn’t legal after all. Riggle v. State, 2012 Ind. App. LEXIS 222 (May 10, 2012).*

The trial court apparently discounted the officer’s testimony that defendant was following a tractor-trailer too close when the officer stopped him for a lack of proof of the traffic offense. When defendant refused to consent to a search, the officer got out a drug dog. The court of criminal appeals affirmed because the evidence does not preponderate against the finding. State v. Baldwin, 2012 Tenn. Crim. App. LEXIS 294 (May 10, 2012).*

Defendant was a suspect in receiving cell phones stolen from Wal-Mart. The police recorded him talking with their CI who worked for Wal-Mart and he took a bag of phones and put them in his trunk. The trunk could be searched for the cell phones under the automobile exception. State v. Kamleh, 2012 Ohio 2061, 2012 Ohio App. LEXIS 1810 (8th Dist. May 10, 2012).*

The legality of the inventory of defendant’s car was moot where defendant fled from the car at the time of the stop. Wilson v. State, 2012 Ind. App. LEXIS 219 (May 9, 2012).*

The district court did not clearly err in finding that consent was voluntary. The fact one person in the house was in custody did not mean that the consenter was. Also, there admittedly was no warning of a right to refuse, but that is only a factor in the totality. United States v. Graham, 2012 U.S. App. LEXIS 9605 (9th Cir. May 11, 2012).*

Defendant’s stop for allegedly having struck an object in the roadway that did not affect the drivability of the car was unjustified. State v. Kurth, 2012 Iowa Sup. LEXIS 47 (May 11, 2012):

This case presents the question whether an officer is justified in activating his emergency lights and blocking a driver into a parking space under the "community caretaking function" exception to the warrant requirement of the Fourth Amendment based solely upon his knowledge that the vehicle has just struck an object in the roadway and suffered minor damage not affecting the drivability of the car. We conclude that under these circumstances, the community caretaking exception is inapplicable, and the seizure was impermissible. For this reason, we reverse the judgment of the district court and remand this case.

Tinted license plate cover was probable cause for a stop. State v. Tyler, 2012 Iowa App. LEXIS 347 (May 9, 2012).*

Four armed police officers and two security officers at the door for a knock-and-talk who moved forward when the door was opened was a coercive show of force making the consent involuntary. State v. Clark, 2012 Ohio 2058, 2012 Ohio App. LEXIS 1806 (8th Dist. May 10, 2012):

[*P21] While accepting the trial court's findings of fact as true, we find that upon considering these factors, the totality of the circumstances in this case demonstrates that Clark did not voluntarily consent to the officers' entry into and search of his apartment. The record reflects that four police officers and two uniformed security officers were waiting for Clark when he opened his apartment door. Even discounting Clark's testimony that one of the officers had his gun drawn, we find the presence of six officers immediately outside Clark's apartment door to be an overwhelming show of force that was inherently coercive, especially if, as Det. Kreischer testified, the purpose of a "knock and talk" is simply to "engage a suspect in conversation."

[*P22] The record also reflects that when Clark opened the door, the officers immediately surged forward into the doorjamb, making it impossible for Clark to shut the door. This tactic could only be meant to intimidate Clark into letting the police into his apartment so they could observe any contraband, consistent with Det. Carpenter's testimony that the real purpose of a "knock and talk" is to develop probable cause and make an arrest.

. . .

[*P24] Based on the foregoing, we can only conclude that under the totality of the circumstances, any consent was the result of coercive police tactics, and not voluntarily given. "'Consent' that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse." Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Therefore, any evidence obtained as a result of the warrantless entry into and search of Clark's apartment should have been suppressed as tainted fruit of the poisonous tree and, accordingly, the trial court erred in denying the motion to suppress. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The officer had information about defendant usually being in possession of drugs when he was driving in town, and the officer saw him. Once the officer started following, defendant’s driving pattern of going in circles suggested evasion. Defendant tossed drugs when the lights came on and Tennessee law favors the defendant on that, but the existence of reasonable suspicion makes the stop reasonable. State v. Gibson, 2012 Tenn. Crim. App. LEXIS 289 (May 8, 2012)*:

Additionally, we are compelled to address the State's and the trial court's mistaken reliance on California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), and State v. Baker, 966 S.W.2d 429 (Tenn. Crim. App. 1997), for the proposition that Gibson could not challenge the admissibility of the drugs he dropped out of the car after O'Dell turned on his blue lights. The Tennessee Supreme Court has rejected the holding of Hodari D., making it, and our previous cases relying on it, inapplicable here. See State v. Randolph, 74 S.W.3d 330, 337 (Tenn. 2002).

The officer had probable cause to stop the defendant for DUI. State v. Padgett, 2012 Tenn. Crim. App. LEXIS 291 (May 9, 2012).*

Defendant was stopped for following too close, and the driver exhibited signs he was under the influence of marijuana. Ultimately, a dog alerted. People v. Wofford, 2012 Ill. App. LEXIS 353, 2012 IL App (5th) 100138 (March 9, 2012), Motion to Publish Granted May 9, 2012.*

New law review article: Suspicionless Searches of Public School Students: An Empirical Legal Analysis by Jason P. Nance forthcoming in the U. Colo. L. Rev. Abstract:

This Article presents an original empirical legal analysis of recent data from the U.S. Department of Education’s School Survey on Crime and Safety. The results of the analysis suggest that many public schools are violating students’ civil rights by conducting suspicionless, intrusive searches without valid justifications, such as having particularized evidence of a drug or weapons problem. Furthermore, the data indicate that many school officials may be using illegitimate criteria – most notably race – to determine whether to conduct those searches. For example, in schools that did not report any student violations relating to weapons, alcohol or drugs during the school year, schools with high minority populations were more than twice as likely to perform suspicionless, intrusive searches than schools with low minority populations. These findings hold true even when taking into account schools officials’ perceptions of the levels of crime where students live and where the school is located. The results underscore the importance of requiring school officials to provide particularized, objective evidence of a drug or weapons problem to justify these searches under the Fourth Amendment. Performing such searches without sufficient justification violates a fundamental civil right in the very institution where children should be educated about good citizenship. Schools cannot expect students to learn important constitutional principles when school authorities disregard them.

NJ.com: Trucker found with 364 pounds of marijuana doesn't have to reveal BlackBerry password, N.J. court rules by AP:

MOUNT OLIVE — Police in northern New Jersey can't force a California trucker accused of hauling marijuana to reveal his password to unlock his BlackBerry.

A judge in Morristown on Thursday ruled that disclosing the password would violate the trucker's Fifth Amendment privilege against self-incrimination.