A blogger who gets it: Don't read the website for the first time until you are prepared to lose some sleep. What the courts are often saying is a bit depressing.

Officers seized a karaoke bar sex club in Guam pending getting a search warrant, but it took 26½ hours. That was just too long to be reasonable under any authorities. Despite Herring, the exclusionary rule was applied. United States v. Cha, 2010 U.S. App. LEXIS 4906 (9th Cir. March 9, 2010):

Finally, the Supreme Court's recent decision, Herring v. United States, does not change our decision to affirm suppression of the evidence. 129 S. Ct. 695 (2009). ...

The Herring Court explained that Supreme Court cases apply the exclusionary rule to "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Id. at 702. It concluded that because the exclusionary rule is triggered only if police conduct is "sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system," id., the marginal deterrence of excluding evidence that was the result of isolated, "nonrecurring and attenuated negligence" did not "'pay its way,'" id. at 702, 704. The Court noted that it was "crucial to [its] holding" that the Eleventh Circuit concluded that the police error was merely negligent and that the "question presented treat[ed] the error as a 'negligen[t]' one." Id. at 700 & n.1.

Because Herring only applies to isolated police negligence, it does not bar suppression here because the police conduct was deliberate, culpable, and systemic.

The police conduct was sufficiently deliberate. ...

[Note: This is a significant case on the scope of Herring. The government may keep this case going for rehearing and cert.]

Seizure and search incident of cell phones and their contents from a car with $85,000 hidden in the gas tank were lawful. United States v. Monson-Perez, 2010 U.S. Dist. LEXIS 20575 (E.D. Mo. January 29, 2010):

In United States v. James, 2008 WL 1925032 at *3-9 (E.D.Mo., April 29, 2008) the court held that "because probable cause existed to believe that evidence of a crime would be found in the cell phone call records and address book, the automobile exception allows the search of the cell phone just as it allows a search of other closed containers found in vehicles." See also United States v. Fierros-Alvarez, 2008 WL 1826188 (D.Kan., April 23, 2008) (automobile exception justified search of cell phone found in vehicle). Therefore, the seizure of the cell phones and the extraction of data from them was legal.

Questions of fact remain on summary judgment for whether plaintiffs had a reasonable expectation of privacy in an apartment that the landlord was letting them stay in at the end of a leasehold. The defendants failed to show as a matter of law there was no expectation of privacy. The defendants also did not show as a matter of law that the emergency exception applied. Espinosa v. City & County of San Francisco, 2010 U.S. App. LEXIS 4905 (9th Cir. March 9, 2010).*

As officer approached the defendant he discarded a gun. That was abandonment in response to lawful police conduct under Hodari D. and waiver of any expectation of privacy. United States v. Hunter, 2010 U.S. Dist. LEXIS 20804 (N.D. Cal. February 11, 2010).*

Evidence derived from defendant’s allegedly illegal arrest did not make it into the search warrant affidavit, which had plenty of probable cause; an independent source was shown. United States v. Strong, 2010 U.S. Dist. LEXIS 20851 (D. Minn. February 1, 2010).*

The automobile exception applies to a trailer not connected to a vehicle. It is still easily movable, and its ability to move on its own is not the question. United States v. Navas, 2010 U.S. App. LEXIS 4780 (2d Cir. March 8, 2010):

In light of Howard's emphasis on inherent mobility and the practical concerns that animate the mobility rationale, the district court erred in its assessment of the trailer sans cab. It started by wrongly characterizing the automobile exception as "generally relat[ing] to some type of vehicle that is capable of moving on its own." Navas, 640 F. Supp. 2d at 267. However, when the Supreme Court introduced the mobility rationale in Carroll, it referenced "wagon[s]," which, like trailers, require an additional source of propulsion [*18] before they can be set in motion. Carroll, 267 U.S. at 153; see also Ross, 456 U.S. at 820 n.26 (referring to "contraband . . . transported in a horse-drawn carriage"). A wagon is not "capable of moving on its own," but the Carroll Court considered it to present mobility concerns similar to those presented by the car searched in that case. And, at least for purposes of the Fourth Amendment, a trailer unhitched from a cab is no less inherently mobile than a wagon without a horse.

The district court's adoption of a false premise -- i.e., that the automobile exception centers on a vehicle's ability to "mov[e] on its own" -- led it to place undue emphasis on the fact that the trailer was disconnected from a cab at the time of the search. However, the trailer remained inherently mobile as a result of its own wheels and the fact that it could have been connected to any cab and driven away. For similar reasons, we are unpersuaded by the district court's reference to the position of the trailer's "legs." These legs served only as a temporary stabilization mechanism. They could be retracted and a cab could be attached to the trailer. As such, the fact that the trailer was "detached from a ... cab with its legs dropped," Navas, 640 F. Supp. 2d at 267, did not eliminate its inherent mobility.

Looking in the yard and seeing fresh dirt and digging up a stash of cocaine was within the scope of a search warrant for the premises. Commonwealth v. Perez, 2010 Mass. App. LEXIS 250 (March 5, 2010):

There is no merit in the defendant's further assertion that he had a privacy interest in burying the drugs. Here, it is apparent that the drugs were secreted to escape detection, and the search conducted within the curtilage was proper. The police were not required to establish independent probable cause for that portion of the search. Compare Commonwealth v. Signorine, 404 Mass. 400, 405, 535 N.E.2d 601 (1989).

Police went to defendant’s home because a runaway underage female was reportedly there. They knocked and no one answered. Finally, they said they were coming in if he didn’t answer so he did. Inside the female was found hiding in a closet. He was accused of aggravated child molestation after admitting he had sex with the girl, which she also admitted. Her being in the closet should have been suppressed, but there was sufficient evidence to convict if it had been excluded. Her statement was attenuated from finding her there. Watson v. State, 2010 Ga. App. LEXIS 195 (March 4, 2010).*

Through creative police work, the police came to defendant’s house looking for a person who used another person’s wireless Internet connection. He did not tell the defendant that he was looking for child pornography. Defendant admitted the officer and let him on the computer to look at the screen and admitted using a neighbor’s wireless. The officer then searched for .avi files and found apparent child pornography just from the file names, and they were not opened on the computer. The use of deception did not render the consent by action invalid. However, the officer exceeded the scope of the consent to check about wireless usage when he looked at the .avi files, and that was suppressed. State v. Bailey, 2010 ME 15, 2010 Me. LEXIS 15 (March 4, 2010):

[*P23] We have recognized the "practical necessity for the use of deception in criminal investigations," State v. Carey, 417 A.2d 979, 981 (Me. 1980), but the effect of deception as to purpose is an issue of first impression. 8 Case law from federal and other state jurisdictions on the effect of deception is necessarily fact driven, but in cases where courts have found that deception alone vitiates consent, there has been an express and affirmative misrepresentation by the authorities as to the purpose of the search or investigation. 9 Most frequently, police deception as to purpose is viewed among all of the circumstances surrounding the individual's consent in a voluntariness analysis. See United States v. Carter, 884 F.2d 368, 375 (8th Cir. 1989) (noting that deception is one relevant inquiry within the totality of the circumstances); United States v. Romero, No. 05-10080-01-WEB, 2005 U.S. Dist. LEXIS 26000, at *11-*16 (D. Kan. Oct. 19, 2005) (analyzing the voluntariness of a consensual search by considering deception along with other factors including custody, language barrier, force, and coercion); Commonwealth v. Gaynor, 443 Mass. 245, 820 N.E.2d 233, 242 (Mass. 2005) (stating that deception as to purpose is one factor to consider in the totality of the circumstances).

. . .

[*P28] The suppression court concluded that "[a]t the time [Bailey] consented, [he] knew that it was highly probable that the detective wanted to look at his computer to see if he had accessed his neighbor's wireless router" by considering the dialogue between Bailey and Beaulieu, Bailey's subjective knowledge "that he had been accessing his neighbor's wireless router without permission," and the fact that Bailey did not have his own wireless router. The consideration of subjective factors in determining the scope of Bailey's consent was error under the objective reasonableness standard. See Jimeno, 500 U.S. at 251; Sanders, 424 F.3d at 775. Here, pursuant to the objective reasonableness standard, Beaulieu's search exceeded the scope of Bailey's consent. A reasonable person observing the exchange would have concluded that Bailey was consenting to a search for the purpose indicated by Beaulieu: to see if someone had been accessing his computer without his permission. See Jimeno, 500 U.S. at 251 ("The scope of a search is generally defined by its express object."). The officer clearly exceeded that scope when he ran a general search for all of the video files on Bailey's computer. See Koucoules, 343 A.2d at 868 ("Where permission has been given to search for a particular object, the ensuing search remains valid as long as its scope is consistent with an effort to locate that object."). Beaulieu's search was not consistent with his stated purpose, and for that reason the detective's search for AVI files violated Bailey's Fourth Amendment rights.

Disconnecting and seizing defendant’s laptop and moving it to the garage while awaiting a warrant was a seizure but not a search, and it was valid under Segura. The warrantless seizure was valid because it was not removed from the house until after the warrant arrived. United States v. Lamb, 2010 U.S. Dist. LEXIS 19899 (N.D. Ky. January 14, 2010)*:

"Different interests are implicated by a seizure than by a search." Segura v. United States, 468 U.S. 796, 806 (1984). A search affects only a person's privacy interests; while, a seizure affects only a person's possessory interests. Id. The Fourth Amendment protects against both unreasonable searches and seizures and requires probable cause for a warrant before any legal search or seizure may take place. Chambers v. Maroney, 399 U.S. 42, 51 (1970). In addition to recognized exceptions to the search warrant requirement, the Supreme Court "has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been held impermissible." Segura, 468 U.S., at 806.

Probable Fourth Amendment violation of the police overstaying their welcome did not nullify subsequent search warrant for a suitcase full of cocaine where the police did not search during the stay and the affidavit for the search warrant makes no reference to any view in the house. United States v. Parker, 2010 U.S. Dist. LEXIS 19972 (D. Conn. March 5, 2010)*:

It may be the case that the officers violated Mr. Parker's rights under the Fourth Amendment. To be clear, the Court does not condone the agents' behavior in prolonging their warrantless stay in Mr. Parker's home beyond what was necessary to ensure that no one was in the residence. But where, as here, any Fourth Amendment violation is unconnected to the evidence seized, suppression is unwarranted. See Segura, 468 U.S. at 814; see also Nix v. Williams, 467 U.S. 431, 443 (1984) ("[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.").

Controlled buy and subsequent search justified revocation of release. United States v. Jordan, 2009 U.S. Dist. LEXIS 125522 (S.D. Fla. October 22, 2009).*