STEVEN T.

WAX
Federal Public Defender STEPHEN R. SADY Chief Deputy Defender Bryan E. Lessley Christopher J. Schatz Ellen C. Pitcher Craig Weinerman Mark Bennett Weintraub Gerald M. Needham Thomas J. Hester Ruben L. Iiguez Anthony D. Bornstein Lisa Hay Tonia L. Moro + Susan Russell Patrick Ehlers Francesca Freccero

FEDERAL PUBLIC DEFENDER

C. Rene Manes Amy Baggio Nell Brown Kristina Hellman Harold DuCloux III Alison M. Clark Brian Butler+ Thomas E. Price Michelle Sweet Banu Ramachandran In memoriam Nancy Bergeson 1951 - 2009 Eugene Office + Medford Office Research/Writing Attorney

DEVELOPMENTS IN FEDERAL SEARCH AND SEIZURE LAW

TABLE OF CONTENTS Page A. B. C. D. E. 1. 2. F. 1. 2. 3. 4. 5. 6. 7. G. 1. 2. 3. 4. 5. Introduction......................................................................................................................... 1 What Constitutes A Search? ............................................................................................... 1 What Constitutes A Seizure? .............................................................................................. 7 Standing ............................................................................................................................ 10 Probable Cause.................................................................................................................. 12 Probable Cause To Search ................................................................................................ 12 Probable Cause To Arrest ................................................................................................. 13 Searches And Seizures Pursuant To A Warrant ............................................................... 14 Controverted Warrant Affidavit........................................................................................ 15 Overbreadth And Particularity.......................................................................................... 16 Obvious Lack Of Probable Cause..................................................................................... 17 Product Of Prior Illegality. ............................................................................................... 18 Manner Of Execution........................................................................................................ 18 Role Of Judicial Officer.................................................................................................... 19 Arrest Warrants................................................................................................................. 19 Warrantless Searches And Seizures.................................................................................. 20 Consent ............................................................................................................................. 20 Plain View......................................................................................................................... 25 Investigative Stops Less Intrusive Than Arrest. ............................................................... 26 Incident To Arrest ............................................................................................................. 32 Exigent Circumstances...................................................................................................... 35 i

a. b. c. d. e. f. g. 6. 7. 8. 9. H. 1. 2. 3. 4. 5. 6. 7.

Preservation of Evidence Justification.......................................................................... 35 Telephonic warrants...................................................................................................... 36 Knowledge of suspect ................................................................................................... 36 Imminence of exigency................................................................................................. 36 Pretext ........................................................................................................................... 37 Probable cause .............................................................................................................. 38 Particularized evidence ................................................................................................. 38 Automobiles And Other Vehicles..................................................................................... 39 Inventory ........................................................................................................................... 39 Special Needs And Administrative Searches.................................................................... 40 Border Searches ................................................................................................................ 42 Fruit Of The Poisonous Tree............................................................................................. 44 Independent Source Rule .................................................................................................. 44 Inevitable Discovery ......................................................................................................... 45 Attenuation........................................................................................................................ 45 Witness Testimony............................................................................................................ 47 Impeachment..................................................................................................................... 47 Nature Of Illegal Intrusion................................................................................................ 47 Type Of Proceeding .......................................................................................................... 48

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DEVELOPMENTS IN FEDERAL SEARCH AND SEIZURE LAW By Stephen R. Sady Chief Deputy Federal Public Defender District of Oregon September 2012 A. Introduction

The revolution of the Warren Court, especially in the area of search and seizure under the Fourth Amendment, was largely an expansion of federal constitutional rights in the face of state practices that limited the protection of individual rights embodied in the Bill of Rights. The following outline of mostly federal cases construing the protections of the Fourth Amendment reflects a dynamic tension between the need to secure evidence to convict law-breakers and the protection of citizens reasonable expectations of privacy. The result has been an overall contraction of protection of the right to privacy. This outline sets out basic principles and counterpoints from which criminal defense lawyers can fashion arguments for a more expansive view of the Fourth Amendments protections. In federal court, in most cases, federal law provides the relevant authority in assessing the legality of the search. In federal prosecutions, even searches solely by state officers are judged only against federal standards. United States v. Chavez-Vernaza, 844 F.2d 1368, 1372-74 (9th Cir. 1987). There are exceptions regarding the standard for arrest and detention where, in the absence of an applicable federal statute, the law of the state where the warrantless arrest takes place determines its validity. United States v. Shephard, 21 F.3d 933, 936 (9th Cir. 1994); United States v. Mota, 982 F.2d 1384, 1387 (9th Cir. 1993). Favorable state court precedents construing the Fourth Amendment provide persuasive authority equal to federal interpretations. See Stone v. Powell, 428 U.S. 465, 493 n.35 (1976). In order to most effectively serve clients, developments in Supreme Court construction of the Fourth Amendment must be followed. Rather than dwelling on the negative aspects of the recent trends, the purpose of this article is to trace developments in selected areas and juxtapose the lead cases with federal court cases in which the defendant prevailed. The counterpoints are not intended to be exhaustive, but are provided to encourage creative use of the available precedents that may make a decisive difference for clients in state or federal court. B. What Constitutes A Search?

The definition of a search has, with major exceptions, been contracted by an increasingly narrow view of expectations of privacy that will be deemed reasonable. The first requirement for a search is government action, because private intrusions, no matter how invasive, do not implicate the Fourth Amendment. Burdeau v. McDowell, 256 U.S. 465 (1921). The products of private searches are not covered by the exclusionary rule. Walter v. United States, 447 U.S. 649 (1980). 1

COUNTERPOINT In determining whether the actions of a private person working with the police are attributable to the government, the Ninth Circuit set out a two-part test: 1) whether the government knew of and acquiesced in the conduct; and 2) whether the party performing the search intended to assist law enforcement or to further his or her own ends. United States v. Walther, 652 F.2d 788, 791-92 (9th Cir. 1981) (holding that an airport employees examination of luggage constituted a Fourth Amendment search); see also United States v. Reed, 15 F.3d 928, 930-33 (9th Cir. 1994) (invalidating warrantless search of a hotel guests room conducted by the hotel manager in the presence of police officers). The government exceeded the scope of a private party search when it examined, without a warrant, computer disks that the private party provided but had not viewed. United States v. Runyan, 275 F.3d 449, 46364 (5th Cir. 2001). The First Circuit provided four ways that the government can exceed the scope of a private party search of cell phone images stored online: (1) if the defendant did not assume the risk that the private party could access the defendants password; (2) if the government search exceeded the private partys search; (3) if the government agents were uncertain that contraband would be found; and (4) if the private party searched with government assistance. United States v. D'Andrea, 648 F.3d 1, 6-10 (1st Cir. 2011). The Warren Court freed the scope of Fourth Amendment searches from the constraints of property rights by focusing on whether government action infringed upon a reasonable expectation of privacy in Katz v. United States, 389 U.S. 347 (1967). In holding that the governments installation of a GPS device on the defendants vehicle to monitor its movements constituted a search, the Supreme Court reaffirmed the pre-Katz rule that a physical trespass can also constitute a search. United States v. Jones, 132 S. Ct. 945, 949 (2012) (trespass on physical property to attach a GPS device, with the intention to obtain information, constitutes a search); accord United States v. Perea-Ray, 680 F.3d 1179, 1184-86 (9th Cir. 2012) (officers physical trespass on defendants carport, which the court found to be curtilage, constituted a search). The Court has imposed a restrictive reading of what expectations of privacy are reasonable. For example, in California v. Greenwood, 486 U.S. 35 (1988), the Court approved warrantless police searches of trash left in garbage bags at the curb in front of the defendants house. In California v. Ciraolo, 476 U.S. 207 (1986), the Court found unreasonable the defendants expectation of privacy from surveillance by airplane 1,000 feet over his fenced backyard. See also Florida v. Riley, 488 U.S. 445 (1989) (surveillance of backyard by helicopter hovering at 400 feet not a search). COUNTERPOINT A person may have a reasonable expectation of privacy in a tent, whether in a public campground, United States v. Gooch, 6 F.3d 673, 676-79 (9th Cir. 1993), or on land where camping is not authorized, United States v. Sandoval, 200 F.3d 659, 660-61 (9th Cir. 2000). A homeless person had a reasonable expectation of privacy in a closed container permissively stored in anothers garage in United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998). 2

An occasional overnight houseguest had an expectation of privacy in a gym bag he left under his girlfriends bed. United States v. Davis, 332 F.3d 1163, 1167-68 (9th Cir. 2003). A government employee can have a reasonable expectation of privacy in his private office where the search went beyond reasonable workrelated justifications. Ortega v. OConnor, 146 F.3d 1149, 1157-59 (9th Cir. 1998); see United States v. Taketa, 923 F.2d 665, 672-73 (9th Cir. 1991). An attached garage receives the full degree of Fourth Amendment protection afforded to the rest of the home. United States v. Oaxaca, 233 F.3d 1154, 1157 (9th Cir. 2000). A university student did not lose his reasonable expectation of privacy in his personal computer by attaching it to the university network. United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (although the student had a reasonable expectation of privacy, the search was valid under the special needs exception); but see United States v. Borowy, 595 F.3d 1045, 1047-48 (9th Cir. 2010) (no reasonable expectation of privacy in shared files on a network when defendant intended to use a file-sharing program with a privacy feature). Individuals have a reasonable expectation of privacy in their living and sleeping quarters aboard cruise ships. United States v. Whitted, 541 F.3d 480, 489 (3rd Cir. 2008). A hotel guest had a reasonable expectation of privacy in his hotel room, and the luggage he left there, even after hotel staff discovered a firearm in his room and temporarily locked him out. United States v. Young, 573 F.3d 711, 720 (9th Cir. 2009). Exploratory surgery can violate privacy rights. Sanchez v. Pereira-Castillo, 590 F.3d 31, 44 (1st Cir. 2009) (citing Winston v. Lee, 470 U.S. 753 (1985)). The concurring opinion in the Jones GPS case raised the question whether technological innovations should lead to re-examination of the Supreme Courts long-standing rule that information voluntarily disclosed to others is not entitled to Fourth Amendment protections. Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring). Montana recognizes a reasonable expectation of privacy in cell phone calls. State v. Allen, 241 P.3d 1045, 1058-61 (Mont. 2010). Illinois recognizes a reasonable expectation of privacy in bank records based on state constitutional grounds. People v. Nesbitt, 938 N.E.2d 600, 606 (Ill. App. Ct. 2010). New Mexico recognizes a reasonable expectation of privacy in garbage disposed of in a hotel dumpster because there is a difference between a homeless person scavenging for food and clothes, and an officer of the [s]tate scrutinizing the contents of a garbage bag for incriminating materials. State v. Crane, 254 P.3d 117, 121-22 (N.M. Ct. App. 2011)), cert. granted, 266 P.3d 633 (N.M. 2011). The Courts restrictive view of privacy rights is also reflected in its limitation on Fourth Amendment protections within the curtilage of the dwelling, not the open fields surrounding it. Oliver v. United States, 466 U.S. 170 (1984) (officers not limited by Fourth Amendment from invading open fields surrounding dwelling despite fences and no trespassing signs); see also United States v. Barajas-Avalos, 377 F.3d 1040 (9th Cir. 2004) (visual observation of the interior of an unoccupied travel trailer did not constitute a search because the officer was in an open field 3

rather than curtilage). Further, the Court in United States v. Dunn, 480 U.S. 294 (1987), found that a barn was not within the curtilage because, in that case, the defendant had not manifested an expectation of privacy in the interior of the barn, even presuming society was prepared to accept such an expectation as legitimate. COUNTERPOINT In Wattenburg v. United States, 388 F.2d 853, 857 (9th Cir. 1968), the court found that a woodpile 20-35 feet from the house was within the curtilage. Similarly, in United States v. Depew, 8 F.3d 1424, 1426-28 (9th Cir. 1993), the curtilage included a driveway area 50-60 feet from the house because of the defendants efforts to maintain privacy. See also United States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010) (absent probable cause or an exception to the warrant requirement, police entry and arrest in a suspects backyard was within the curtilage and violated the Fourth Amendment). The court considered the end of a driveway, by a utility pole, 82 feet from the dwelling, within the curtilage because the area showed evidence of personal use and was naturally enclosed in United States v. Diehl, 276 F.3d 32, 38-40 (1st Cir. 2002). See generally United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) (en banc). An officers subjective intent to contact the defendant did not justify a warrantless intrusion onto the curtilage of the defendants home and a visual search for the defendant through a window away from any points of entry. United States v. Fuentes, 800 F. Supp. 2d 1144, 1151-54 (D. Or. 2011). The Court has defined search in the context of technologically-assisted intrusions to include the use of infra-red thermal imaging devices on homes to assist in detecting marijuana grow operations. United States v. Kyllo, 533 U.S. 27 (2001). In Ontario v. Quon, 130 S. Ct. 2619, 2628-32 (2010), the Court appeared to be willing to consider review of text messages as a search, but noted that public employees may have a diminished expectation of privacy in mobile communication devices issued by their employers. However, the Court has approved surveillance by electronic beepers as implicating no Fourth Amendment interests, except when used in private residences. United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460 U.S. 276 (1983). The governments use of cell site location information (CSLI) to track an individual through his or her cell phone signal raises unresolved questions regarding privacy. Compare In re Application of United States of America for Order Directing Provider of Electronic Communication Service to Disclose Records to Government, 620 F.3d 304 (3d Cir. 2010) (government receipt of historical CSLI from a cell phone provider did not require probable cause) with In re Application of the United States of America for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, 849 F.Supp.2d 526 (D. Md. 2011) and In re Application of the United States for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010). COUNTERPOINT Although not decided in Jones, Justices Alito and Sotomayor expressed skepticism regarding the legality of warrantless GPS tracking. Jones, 132 S. Ct. at 955-57, 961-64. Justice Alito stated that longer 4

term GPS monitoring in investigations of most offenses impinges on expectations of privacy, id. at 964 (Alito, J., concurring), while Justice Sotomayor found that GPS monitoring proceeds surreptitiously, evading the ordinary checks that constrain abusive law enforcement practices . . . The net result is that GPS monitoring . . . may alter the relationship between citizen and government in a way that is inimical to democratic society, id. at 956 (Sotomayor, J., concurring). Interpreting Jones, the South Dakota Supreme Court found a defendants expectation that his whereabouts would not be continually monitored was reasonable, and, therefore, the police were required to obtain a warrant for longterm GPS tracking of his vehicle. State v. Zahn, 812 N.W.2d 490, 498-99 (S.D. 2012); see also United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (individuals have a reasonable expectation of privacy in emails stored with commercial internet service provider). In California v. Ciraolo, 476 U.S. 207, 211 (1986), the Court applied a two-part test to determine whether aerial photography constituted a Fourth Amendment search: 1) Has the individual manifested a subjective expectation of privacy in the object of the challenged search? and 2) Is society willing to recognize that expectation as reasonable? See also Florida v. Riley, 488 U.S. 445 (1989); Smith v. Maryland, 442 U.S. 735 (1979). In Dow Chemical Co. v. United States, 476 U.S. 227 (1986), the Court approved aerial surveillance of commercial property with cameras that magnified sufficiently to see objects one-half inch in diameter. The Court found the 2,000-acre industrial complex more comparable to an open field than curtilage and, as such, held that it is open to the view and observation of persons in aircraft lawfully in the public airspace above or sufficiently near the area for the reach of cameras. 476 U.S. at 239. As to the use of an aerial mapping camera, [t]he mere fact that human vision is enhanced somewhat . . . does not give rise to constitutional problems. 476 U.S. at 238. COUNTERPOINT Visual observations into the interior of a home may constitute a search. LaDuke v. Castillo, 455 F. Supp. 209, 210 (E.D. Wash. 1978) (shining a flashlight into the windows of units temporarily housing farm workers constituted a search), affd, LaDuke v. Nelson, 762 F.2d 1318, 1332 n.19 (9th Cir. 1985); see also United States v. Duran-Orozco, 192 F.3d 1277, 1280-81 (9th Cir. 1999) (peering into the back window of a home using a flashlight constituted a search). Where informants rented a hotel room for a drug transaction, video surveillance of the defendants in the room after the informants left violated the Fourth Amendment given that [h]idden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement. United States v. Nerber, 222 F.3d 597, 603 (9th Cir. 2000). Requiring an apartment resident to open his door so that the officers could see him constituted a search, where the officers gained visual access to the interior of the dwelling, even though they had not physically entered it. United States v. Mowatt, 513 F.3d 395, 400 (4th Cir. 2008). Dog sniffs present a sui generis search problem. In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court held that use of a narcotics-detection dog around a lawfully stopped 5

car does not implicate the Fourth Amendment because a dog only reveals the presence of contraband. See also United States v. Place, 462 U.S. 696, 707 (1983) (upholding the use of dogs to sniff luggage to detect narcotics); United States v. Pierce, 622 F.3d 209, 213-14 (3d Cir. 2010) (joining the Eighth and Tenth Circuits in holding that a narcotics dog may enter and sniff the interior of a car if the dog acts instinctively and without law enforcement facilitation). The Supreme Court granted certiorari in Florida v. Jardines, 132 S. Ct. 995 (2012), to review the Florida Supreme Courts decision that a dog sniff at the front door of a home is a search due to the substantial government intrusion into the sanctity of the home. Jardines v. State, 73 So. 3d 34, 49 (Fla. 2011). COUNTERPOINT In Caballes, the dog sniff was lawful because it did not extend the duration of the lawful traffic stop. 543 U.S. at 408. However, in Place, the 90-minute detention of the luggage for the sniff test was unreasonable. Place, 462 U.S. at 707-10. In United States v. Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985), the court held that the use of a marijuana-sniffing dog outside an apartment constitutes a search. But in United States v. Lingenfelter, 997 F.2d 632, 638 (9th Cir. 1993), the Ninth Circuit rejected the Thomas position, permitting a dog sniff of contraband in a package located in a sealed commercial warehouse because there could be no legitimate expectation of privacy in contraband. A dog sniff that results in casting rather than an alert is insufficient to justify a search. United States v. Rivas, 157 F.3d 364, 367-68 (5th Cir. 1998). In State v. Louthan, 744 N.W.2d 454, 461 (Neb. 2008), the court held that, in order to expand the scope of a traffic stop to deploy a drug detection dog, an officer must have a reasonable, articulable suspicion that the person is involved in criminal activity beyond that which initially justified the stop. Relying on Place, in United States v. Jacobsen, 466 U.S. 109, 122-24 (1984), the Court found that, by field testing white powder obtained from a private Federal Express examination of a package, federal officers did not engage in an additional intrusion sufficient to implicate the Fourth Amendment. COUNTERPOINT In United States v. Mulder, 808 F.2d 1346, 1348 (9th Cir. 1987), the court held that, despite Jacobsen, a Fourth Amendment search occurred where pills seized by a private individual were subjected to government chemical test to reveal the substances molecular structure and identity several days after the pills were seized. By analogy to closed container cases, courts have recognized a reasonable expectation of privacy in the memory of phone numbers in a defendants electronic pager. United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995); United States v. Chan, 830 F. Supp. 531, 533-35 (N.D. Cal. 1993). Governments hash value analysis of defendants computer hard drive was a search within meaning of the Fourth Amendment. United States v. Crist, 627 F. Supp. 2d 575, 585 (M.D. Pa. 2008). The Jacobsen rationale does not apply to closed containers such as backpacks and suitcases. United States v. Young, 573 F.3d 711, 720-21 (9th Cir. 2009). 6

The Supreme Court delivered a singularly favorable decision on the definition of a search in Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, the police were lawfully present in the defendants apartment and saw electronic equipment that the officer suspected was stolen. 480 U.S. at 323. The officer moved a turntable to read and record serial numbers that established that the equipment was stolen. Justice Scalia wrote for the majority that even the minimal movement of the equipment constituted a search beyond plain view and, in the absence of probable cause, the evidence must be suppressed. Hicks, 480 U.S. at 326-28. COUNTERPOINT The Ninth Circuit relied on Hicks in rejecting the governments contention that a limited intrusion at the threshold of a dwelling could be justified by less than probable cause in United States v. Winsor, 846 F.2d 1569, 1574 (9th Cir. 1988); see United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997). In Bond v. United States, 529 U.S. 334 (2000), the Court held that an officers physical manipulation of the outside of stowed luggage on a bus was a search that violated the Fourth Amendment. The removal of a car cover to reveal the Vehicle Identification Number constituted a search in United States v. $277,000.00, 941 F.2d 898, 902 (9th Cir. 1991). A police officers partial unzipping of a suspects jacket, which exposed a sweatshirt underneath, was a search that intruded on the suspects reasonable expectation of privacy. United States v. Askew, 529 F.3d 1119, 1129 (D.C. Cir. 2008). C. What Constitutes A Seizure?

An increasingly restrictive definition of what constitutes a seizure has provided law enforcement with an expanded range of intrusions free from Fourth Amendment limitations. A seizure of an item occurs when there is some meaningful interference with an individuals possessory interests in that property. United States v. Karo, 468 U.S. 705, 712 (1989) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)). A person is seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 545 (1980) (no seizure in airport of passenger who was approached, questioned, and asked for ticket and identification); Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion) (examination and retention of drivers license and ticket rendered airport request by federal officers to accompany them a seizure); see also United States v. Redlightning, 624 F.3d 1090, 1102-06 (9th Cir. 2010) (holding that the defendant was not seized within the meaning of the Fourth Amendment because defendant voluntarily accompanied police to FBI office and voluntarily submitted to a polygraph test). COUNTERPOINT Absent probable cause or judicial authorization, the involuntary removal of a suspect from his home to a police station for investigative purposes constitutes an unreasonable seizure. Kaupp v. Texas, 538 U.S. 626, 629-31 (2003). Fourth Amendment seizures include official action assisting in legal, forceful eviction of mobile home park tenants and their mobile home from the park even though no privacy interests were implicated by the seizure. Soldal v. Cook County, 506 U.S. 56 (1992). By blocking the defendants 7

driveway, the sheriff went beyond a voluntary encounter between officer and citizen a seizure occurred. United States v. Kerr, 817 F.2d 1384, 1386-87 (9th Cir. 1987). A seizure occurs when, with his hand on his gun, a police officer retains a motorists license while continuing with other investigation. United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997). In United States v. Jordan, 951 F.2d 1278, 1283 (D.C. Cir. 1991), the court indicated that if the district court found, on remand, that the police retained defendants drivers license during questioning, a seizure occurred. A seizure occurred, and was unlawful, when employees of a suspected corporation were held incommunicado, without probable cause, unless they submitted to interrogations. Ganwich v. Knapp, 319 F.3d 1115, 1120-24 (9th Cir. 2003). The Fourth Amendment applies to civil forfeiture proceedings, including proceedings for forfeiture of funds from a medical marijuana clinic. United States v. $186,416.00 in U.S. Currency, 590 F.3d 942 (9th Cir. 2010). Police knocking loudly on a door for several minutes at night for a knock and talk constituted a seizure in United States v. VelazcoDurazo, 372 F. Supp. 2d 520, 525-26 (D. Ariz. 2005). A confrontation in the front yard constituted custody once the suspect admitted that incriminatory evidence belonged to her and the police had probable cause to arrest her. United States v. Spurk, No. 05-226-KI, 2005 WL 3478195, at *3 (D. Or. 2005). A police officers removal of a bag from the cargo area of the bus to the buss passenger seating area constituted a seizure in United States v. Alvarez-Manzo, 570 F.3d 1070, 1076-77 (8th Cir. 2009). A police officers order to park for questioning and entering the persons car effected a seizure in United States v. Fox, 600 F.3d 1253, 1258 (10th Cir. 2010). In Florida v. Bostick, 501 U.S. 429 (1991), the Court rejected the Florida Supreme Courts finding that the general policy of questioning bus passengers and requesting consent to search violated the Fourth Amendment. The Court noted that each case must be examined on its individual facts to determine whether the degree of intrusion constituted a seizure. In United States v. Drayton, 536 U.S. 194 (2002), the Court concluded that officers did not seize bus passengers when the officers boarded the bus because they did not brandish weapons, make intimidating movements, or block the aisle. COUNTERPOINT The Supreme Court held that the traffic stop of a private vehicle necessarily curtails the travel a passenger has chosen and thus constitutes a seizure not only of the driver, but of the passengers as well. Brendlin v. California, 551 U.S. 249, 257-58 (2007). In United States v. CuevasCeja, 58 F. Supp. 2d 1175, 1189 (D. Or. 1999), the court held that police seized bus passengers when the officers boarded at a scheduled stop and requested consent to search the passengers. Repeated questioning of ex-pro baseball player Joe Morgan, while he was using a public telephone in an airport, was held to be a seizure in Morgan v. Woessner, 997 F.2d 1244, 1252-54 (9th Cir. 1993). The focus is on the mental state of the suspect: even if the officer knows the person stopped has a right to walk away, the totality of the circumstances can establish an arrest as a matter of law. Allen v. City of Portland, 73 F.3d 232, 235-36 (9th Cir. 8

1995). In United States v. Izguerra-Robles, 660 F. Supp. 2d 1202, 1207 (D. Or. 2009), the court held that defendant was constructively arrested when he was ordered out of a motor home. The definition of the seizure of an individual underwent a dramatic restriction in California v. Hodari D., 499 U.S. 621 (1991). Previously, the Court had left open the question of whether a person who flees after an officer communicates that the suspect is not free to leave has a Fourth Amendment interest to assert. Michigan v. Chesternut, 486 U.S. 567, 575 n.9 (1988). In Hodari, Justice Scalia, referring to common law standards, wrote that no seizure occurred unless the officer physically touched the suspect or the suspect submitted to the show of authority. 499 U.S. at 625; accord United States v. Smith, 633 F.3d 889, 892-93 (9th Cir. 2011). COUNTERPOINT In United States v. Coggins, 986 F.2d 651, 653-54 (3d Cir. 1993), a suspect who briefly submitted to an order to stay put, reconsidered almost immediately, and ran off, was held to have been seized under Hodari. A suspect who was singled out from a group and accused of a crime by uniformed officers was seized because a reasonable person would not feel free to leave under those circumstances in United States v. Williams, 615 F.3d 657, 664 (6th Cir. 2010). The balance between consensual conversations and temporary seizures tilted against the individual in INS v. Delgado, 466 U.S. 210 (1984). In Delgado, the INS surrounded a factory and began approaching workers at work stations and exits regarding their immigration status. The Court held that, because there was insufficient evidence that workers did not feel free to leave, no seizures occurred. Delgado, 466 U.S. at 220-21; see also United States v. Drayton, 536 U.S. 194 (2002) (officers boarding a bus, even if armed, were not so intimidating that passengers did not feel free to leave). COUNTERPOINT In LaDuke v. Nelson, 762 F.2d 1318, 1321 (9th Cir. 1985), modified, 796 F.2d 309 (9th Cir. 1986), the court distinguished Delgado in holding that INS officers seized residents of labor camps when they cordoned off migrant housing during early morning or late evening hours, surrounded the residences in emergency vehicles with flashing lights, approached the homes with flashlights, and stationed officers at all doors and windows. In Martinez v. Nygaard, 831 F.2d 822, 827 (9th Cir. 1987), the court held that temporary detentions of an employee by INS agents during a factory sweep exceeded any detention approved in Delgado. A home visit by INS officers was a seizure without a sufficient articulable basis in Orhorhaghe v. INS, 38 F.3d 488, 494-99 (9th Cir. 1994). A late-night knock and talk at a motel room was deemed to be a seizure in United States v. Jerez, 108 F.3d 684, 689-93 (7th Cir. 1997); see also United States v. Washington, 387 F.3d 1060, 1068-69 (9th Cir. 2004) (detention during knock and talk violated Fourth Amendment); United States v. Johnson, 170 F.3d 708 (7th Cir. 1999) (same); United States v. Freeman, 635 F. Supp. 2d 1205 (D. Or. 2009) (same). In United States v. Washington, 490 F.3d 765 (9th Cir. 2007), the court held that, under the totality of the circumstances, the police 9

improperly seized the defendant, even though he had already consented to the search of his person. In making its determination, the court considered the tension between Portland police and the African-American community, the authoritative manner of the search, and the fact that the search occurred at night. Id. at 772; see also Izguerra-Robles, 660 F. Supp. 2d 1202, 1207 (D. Or. 2009) (seizure exceeded lawful scope when suspect held for 45 minutes after arresting him for failure to produce a drivers license). D. Standing

Proof that a defendant had standing was once a cornerstone of any Fourth Amendment challenge. See, e.g., Rawlings v. Kentucky, 448 U.S. 98 (1980) (under totality of circumstances, petitioner lacked standing to challenge search of friends purse in which he placed drugs); United States v. Salvucci, 448 U.S. 83 (1980) (individuals charged with possession of stolen mail did not have standing to challenge search of mothers apartment where incriminating checks were found); Rakas v. Illinois, 439 U.S. 128 (1978) (passenger who failed to claim interest in weaponry seized from car lacked standing); see also United States v. Padilla, 508 U.S. 77 (1993) (participation in a conspiracy gave co-conspirators no special standing to challenge a search of their co-conspirators car unless they demonstrate a reasonable expectation of privacy under the usual standing rules). A defendant has a limited immunity to claim standing for the purposes of a motion to suppress, so incriminating statements may not be used against the defendant at trial on the issue of guilt unless no objection is made. Simmons v. United States, 390 U.S. 377 (1968). The Court has more recently moved away from standing as a method of analyzing Fourth Amendment violations. Minnesota v. Carter, 525 U.S. 83 (1998). Instead, the relevant question is simply whether the defendant personally has an expectation of privacy in the place searched, and whether that expectation is reasonable based on concepts of real or personal property or on understandings that are recognized and permitted by society. Carter, 525 U.S. at 88. In Carter, the defendants, who were in another persons apartment for a short time to package cocaine, had no legitimate expectation of privacy. Id. COUNTERPOINT Overnight visitors have a reasonable expectation of privacy in their temporary shelter because [s]taying overnight in anothers house is a long-standing social custom that serves functions recognized as valuable by society. . . . We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. Minnesota v. Olson, 495 U.S. 91, 98-99 (1990). The Olson phrasing may provide expanded protection for some defendants. See, e.g., United States v. Gamez-Orduno, 235 F.3d 453, 458-61 (9th Cir. 2000) (marijuana smugglers who stayed overnight in trailer had expectation of privacy); United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998) (homeless person had reasonable expectation of privacy in the contents of cardboard boxes stored in acquaintances garage); but see United States v. ReyesBosque, 596 F.3d 1017, 1027 (9th Cir. 2010) (defendant bears the burden of proving that he is an overnight guest with evidence such as personal belongings at the place searched at the time of the search). Even though the car rental had expired, the defendant still had an expectation of privacy in his rental car where 10

the companys policies and practices extended reasonable possession of the vehicle beyond checkout time. United States v. Henderson, 241 F.3d 638, 646-47 (9th Cir. 2000); see United States v. Dorais, 241 F.3d 1124 (9th Cir. 2001) (same test for hotel guest after checkout time). A hotel guest still maintains a reasonable expectation of privacy, despite unconfirmed reports that the room was rented with a stolen credit card, until the hotel management takes affirmative steps to end the tenancy. United States v. Bautista, 362 F.3d 584 (9th Cir. 2004); cf. United States v. Cunag, 386 F.3d 888 (9th Cir. 2004) (holding that expectation of privacy in hotel room procured by fraud was extinguished when the hotel manager locked defendant out of the room). An occasional overnight visitor had a reasonable expectation of privacy in a gym bag he left under the bed in his girlfriends apartment in United States v. Davis, 332 F.3d 1163, 1167 (9th Cir. 2003). Employees in the private sector maintain a reasonable expectation of privacy in their private offices. United States v. Ziegler, 474 F.3d 1184, 1190 (9th Cir. 2007). However, the employer will likely have the ability to consent to the search, even of personal files on a workplace computer. Id. at 1191. Where the defendant had a financial interest in a house and free access, there was no requirement that he live in the house, or exercise control over it, in order to enjoy a privacy interest there. United States v. Hamilton, 538 F.3d 162, 168 (2d Cir. 2008). COUNTERPOINT The judiciary has been somewhat hostile to the governments adoption of inconsistent positions by challenging standing at the same time as claiming at trial that items belong to the defendant. United States v. Bagley, 772 F.2d 482, 489 (9th Cir. 1985); United States v. Issacs, 708 F.2d 1365, 1367-68 (9th Cir. 1983); but see United States v. Singleton, 987 F.2d 1444, 144750 (9th Cir. 1993). The necessary interest may be established by the joint interest with a co-defendant or a co-conspirator. United States v. Perez, 689 F.2d 1336, 1338 (9th Cir. 1982); United States v. Broadhurst, 805 F.2d 849, 852 (9th Cir. 1986); see also United States v. Taketa, 923 F.2d 665, 671-72 (9th Cir. 1991); United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir. 1984). In United States v. Gomez, 276 F.3d 694, 697 (5th Cir. 2001), a homeowner had a privacy interest in a car parked in his driveway that was owned and operated by a criminal associate. An uncontroverted affidavit claiming residence establishes the requisite expectation of privacy. United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987). Although a defendant has no expectation of privacy in abandoned property, the government bears the burden of proving abandonment. United States v. Basinski, 226 F.3d 829, 836-37 (7th Cir. 2000) (outlining forms of abandonment). An inmate who left computer CDs with a friend for safekeeping, then instructed that the CDs be destroyed, did not abandon his expectation of privacy in the CDs. United States v. James, 353 F.3d 606, 615-16 (8th Cir. 2003). Searches of vehicles involve complicated standing questions. See United States v. Pulliam, 405 F.3d 782, 786-87 (9th Cir. 2005) (distinguishing rights of drivers and passengers). 11

COUNTERPOINT Passengers in a car have standing to challenge an unlawful car stop, even if they have no possessory or ownership interest in the car. Brendlin v. California, 551 U.S. 249, 258-59 (2007); United States v. Colin, 314 F.3d 439, 442-443 (9th Cir. 2002); but see United States v. Symonevich, No. 11-1236, 2012 WL 3083491, at *3-6 (1st Cir. July 31, 2012) (passenger for sixhour road trip lacked standing to challenge automobile search). Unauthorized drivers of rental cars can establish standing if the driver has permission to use the car from the authorized renter. United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006); United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1995) (same); State v. Nelson, 807 N.W.2d 769, 780 (Neb. 2011) (same); but see United States v. Kennedy, 638 F.3d 159, 167-68 (3d Cir. 2011) (disagreeing with the Ninth and Eighth Circuits, and holding that an unauthorized driver with the renters permission lacked standing). E. Probable Cause

1. Probable Cause To Search The major change in the area of probable cause to issue a search warrant has come through the abandonment of the Aguilar-Spinelli requirement (Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964)), that probable cause from an informant must include the basis for the informants knowledge and a basis for finding the informant to be reliable. In Illinois v. Gates, 462 U.S. 213 (1983), the Court rejected reliance on the two-pronged test and adopted the flexible standard of whether, given the totality of the circumstances, there is a fair probability that contraband, evidence, or an individual will be found in a particular place. The Court reiterated the totality of the circumstances test in Massachusetts v. Upton, 466 U.S. 727 (1984). In Upton, the Court emphasized deference for the magistrates determination of probable cause, the availability of corroboration by innocent facts to save an otherwise invalid warrant, the preference accorded to warrants, and the need for common-sense review of warrant affidavits. The Ninth Circuit reversed a three-judge panel on the standard for searching a computer for evidence of child pornography in United States v. Gourde, 440 F.3d 1065,1066 (9th Cir. 2006) (en banc), and held that the Fourth Amendment requires only, based on the totality of the circumstances, the magistrate judge who issued the warrant made a practical, common-sense decision that there was a fair probability that child pornography would be found. COUNTERPOINT Even under the looser Gates standard, the government has often fallen short of probable cause. See, e.g., United States v. Weber, 923 F.2d 1338 (9th Cir. 1991) (absent proof that the defendant was a collector of child pornography, controlled delivery of a single order of child pornography did not establish probable cause to search for other illegal images in his home); United States v. Brown, 951 F.2d 999, 1003 (9th Cir. 1991) (allegation of corruption and large amounts of money insufficient); United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988) (missing page of affidavit eliminated nexus to location); United States v. Ricardo D., 912 F.2d 337, 342 (9th Cir. 1990) (youth fitting the vague description of suspect and crouching behind a tree did not amount to probable cause). Corroboration of an anonymous tip by static, innocent 12

details is insufficient to establish probable cause. United States v. Mendonsa, 989 F.2d 366, 368-69 (9th Cir. 1993). A civil contract dispute does not give rise to probable cause. Allen v. City of Portland, 73 F.3d 232, 236-38 (9th Cir. 1995). A dog sniff of supposed drug money was insufficient to establish probable cause based on expert evidence that 75% of money in circulation in the area was tainted. United States v. $30,060.00, 39 F.3d 1039, 1041-44 (9th Cir. 1994). The court found no qualified immunity and no probable cause where officers arrested the plaintiff for rape based on unreliable canine identification, suggestive eyewitness identification procedures, and mere resemblance to a general description of the attacker. Grant v. City of Long Beach, 315 F.3d 1081 (9th Cir. 2002); United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978) (passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing.). The presence of stolen tags on a car did not give probable cause for the police to search for contraband in the trunk in United States v. Jackson, 415 F.3d 88, 91-95 (D.C. Cir. 2005). Staleness of the information can undermine probable cause that items will be found in a named location. United States v. Grant, 682 F.3d 827, 832-35 (9th Cir. 2012). To find probable cause based solely on a dog sniff, the prosecution must show that the dog is reliable. See United States v. Cruz-Roman, 312 F. Supp. 2d 1355, 1363-65 (W.D. Wash. 2004) (drug dogs alert in front of defendants apartment did not provide probable cause for arrest because the dog-handler team was not certified and the dog had no track record of reliability); but see United States v. Grupee, 682 F.3d 143, 147 (1st Cir. 2012) (finding drug dog reliable based on statement in affidavit that police department is dogs employer); United States v. Ludwig, 641 F.3d 1243, 1251 (10th Cir. 2011) (holding so long as a drug dog is certified by a legitimate organization, courts should not inquire into the capabilities of the individual dog to determine reliability). COUNTERPOINT The Supreme Court granted certiorari in a state drug dog reliability case, Florida v. Harris, 132 S. Ct. 1796 (2012). In Harris, the Florida Supreme Court disagreed with the Tenth Circuits approach and held that certification alone was insufficient to demonstrate the reliability of a drug dog. Harris v. Florida, 71 So.3d 756, 775 (Fla. 2011). Instead, for the Florida Supreme Court, the state must present certification records and field performance records, including any unverified alerts, as well as other training evidence to show reliability. Id. 2. Probable Cause To Arrest In Maryland v. Pringle, 540 U.S. 366 (2003), the Supreme Court held that the presence of drugs in a car established probable cause to arrest all three occupants. The Court reasoned that, even though the officers did not have evidence that any one of the three occupants was responsible for the drugs, probable cause existed as to all of them because co-occupants of a vehicle are often engaged in a common enterprise and all three denied knowing anything about the drugs. In Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004), the Supreme Court again expanded the permissible bases for arrest, holding that an arrest is lawful even though there is no probable cause to support the offense cited by the arresting 13

officer, so long as the facts known to the officer establish probable cause as to some offense, even if that offense is not closely related. COUNTERPOINT After Pringle, it is even more important to challenge cases where guilt is established merely by association. The inference that everyone on the scene of a crime is a party to it evaporates when there is information to single out the guilty person. United States v. Di Re, 332 U.S. 581, 594 (1948). A warrant application establishing probable cause to search a tavern and the bartender for heroin did not provide probable cause to search patrons of the tavern who were present when the warrant was executed. Ybarra v. Illinois, 444 U.S. 85, 91 (1979); see United States v. Collins, 427 F.3d 688, 691 (9th Cir. 2005) (arriving in a parking lot where an illicit transaction was occurring did not establish guilt because, other than proximity and timing, there was no individualized suspicion); United States v. Robertson, 833 F.2d 777, 782-83 (9th Cir. 1987) (presence in a house being searched based on probable cause is insufficient to justify an arrest). Mere presence in a car in which the driver possessed marijuana and reeked of chemicals did not establish probable cause to search the passenger. United States v. Soyland, 3 F.3d 1312, 1314 (9th Cir. 1993); see also United States v. Huguez-Ibarra, 954 F.2d 546, 551-52 (9th Cir. 1992) (association with persons involved with drugs and unusual vehicle traffic insufficient). Because probable cause has both a burden-of-proof component (facts sufficient to make a reasonable person believe . . . ) and a substantive component ( . . . that the suspect is involved in crime), detention of a person without probable cause for purposes of criminal investigation is repugnant to the Fourth Amendment. Al-Kidd v. Ashcroft, 580 F.3d 949, 970 (9th Cir. 2009) (arrest of material witness is not justified unless both components established). F. Searches And Seizures Pursuant To A Warrant

An important limitation on the scope of the exclusionary rule is the good faith exception carved out in United States v. Leon, 468 U.S. 897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984). In Leon and Sheppard, the Court held that evidence derived from the execution of an invalid search warrant was admissible as long as the officers were acting in good faith. The good faith exception to the exclusionary rule has also been applied indirectly to reasonable errors in the description of the place searched (Maryland v. Garrison, 480 U.S. 79 (1987)) and directly to warrantless searches based on a statute subsequently held to be unconstitutional (Illinois v. Krull, 480 U.S. 340 (1987)). The Court has also found the arrest of a suspect based on a quashed warrant that remained outstanding due to a clerical error to be within the good faith exception to the exclusionary rule. Arizona v. Evans, 514 U.S. 1 (1995). In Herring v. United States, the Court went even further to find the exclusionary rule did not apply when an officer reasonably believed that there was an outstanding arrest warrant but the belief turned out to be wrong because of the negligent bookkeeping error by another police officer. 555 U.S. 135, 14546 (2009). However, if police were shown to have been reckless in maintaining a warrant system or to have knowingly made false entries, exclusion would such be justified. Id. at 146. 14

Generally, the use of the exclusionary rule for an invalid search warrant depends on the balance of the costs and benefits of exclusion. United States v. Herring, 555 U.S. 135, 141 (2009). The benefit of deterring the governments Fourth Amendment violations is weighed against the cost of limiting the courts truth-seeking function and damaging law enforcement objectives. Herring, 555 U.S. at 141-42; accord United States v. Fofana, 666 F.3d 685, 988 (6th Cir. 2012). The Supreme Court extended the good faith exception to the exclusionary rule to officers reasonable reliance on binding judicial precedent in Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011); see United States v. Pineda-Moreno, No. 08-30385, 2012 WL 3156217 (9th Cir. Aug. 6, 2012) (applying Davis to warrantless search of defendants vehicle with a GPS device). COUNTERPOINT In United States v. Song Ja Cha, 597 F.3d 995, 1003-04 (9th Cir. 2010), the court determined that the exclusionary rule applied to police conduct surrounding the execution of a warrant that was deliberate, culpable, and systemic, and not isolated negligent behavior where officers seized suspects home for over 26 hours, not allowing entry to retrieve medication. In State v. Handy,18 A.3d 179, 186 (N.J. 2011), the court suppressed the fruits of an arrest based on a dispatchers mistake regarding an arrest warrant because the error was not a judicial mistake sufficiently attenuated from the arrest and, therefore, was subject to the exclusionary rule. In remanding a case to have a cost-benefit analysis performed by the lower court, the Sixth Circuit stated that the good faith exception may apply when police relied upon a warrant issued by a judge with no authority to issue the warrant. United States v. Master, 614 F.3d 236, 241-43 (6th Cir. 2010). 1. Controverted Warrant Affidavit Leon expressly excepts from the scope of its holding warrants that are challenged under Franks v. Delaware, 438 U.S. 154 (1978). Leon, 468 U.S. at 923. In Franks, the Court held that warrant affidavits containing reckless or intentional false statements by the affiant are subject to challenge by a motion to controvert. If the affidavit, cleansed of the challenged statements, does not establish probable cause, the defendant is entitled to suppression of the derivative evidence. Franks, 438 U.S. at 171-72. Material omissions as well as false statements are subject to challenge. United States v. Jacobs, 986 F.2d 1231, 123435 (8th Cir. 1993); United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985), amended by 769 F.2d 1410 (9th Cir. 1985). The fact that probable cause existed and could have been established in a truthful affidavit will not cure a Franks error. Baldwin v. Placer County, 418 F.3d 966, 971 (9th Cir. 2005). Misstatements or omissions of government officials in an affidavit for a search warrant are grounds for a Franks hearing even if the official at fault is not the affiant. United States v. DeLeon, 979 F.2d 761, 763-64 (9th Cir. 1992). The defendant need not present clear proof that misrepresentations were deliberate or reckless in order to obtain a Franks hearing; all that is needed is a substantial showing. United States v. Gonzalez, Inc., 412 F.3d 1102, 1111 (9th Cir. 2005). The deliberately false or reckless inclusion of perceptions of sight, smell, and sound given the courts reliance on officers experience is unforgiveable. Hervey v. Estes, 65 F.3d 784, 789-91 (9th Cir. 1995) (applying Franks to false statements regarding officers experience and the smell of a meth lab). The due process principles of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny concerning the production of exculpatory or potentially 15

exculpatory evidence are applicable to suppression hearings involving a challenge to the truthfulness of allegations in the affidavit for a search warrant. United States v. Barton, 995 F.2d 931, 934-36 (9th Cir. 1992). When a warrant describes a vehicle and house in detail but, due to a cut-and-paste error, only allows a search of the vehicle, any evidence obtained from the house must be suppressed. United States v. Robinson, 358 F. Supp. 2d 975, 980 (D. Mont. 2005). 2. Overbreadth And Particularity Where the warrant is facially overbroad, the officer cannot reasonably rely on its validity. Millender v. County of Los Angeles, 620 F.3d 1016, 1024-28 (9th Cir. 2010); United States v. Kow, 58 F.3d 423, 426-30 (9th Cir. 1995); Center Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 751-54 (9th Cir. 1989); United States v. Stubbs, 873 F.2d 210, 212 (9th Cir. 1989); United States v. Dozier, 844 F.2d 701, 70708 (9th Cir. 1988); United States v. Spilotro, 800 F.2d 959, 964, 968 (9th Cir. 1986); United States v. Washington, 797 F.2d 1461, 1463 (9th Cir. 1986); United States v. Cardwell, 680 F.2d 75, 77 (9th Cir. 1982). The court set out the following factors for determining whether a warrants description of the items to be seized is sufficiently specific: (1) whether probable cause exists to seize all items of a particular type described in the warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued. Spilotro, 800 F.2d at 963. In reversing the Ninth Circuit holding that a warrant to seize a residences guns was overbroad where only a sawed-off shotgun was known and sought by the police, Millender v. County of Los Angeles, 620 F.3d 1016, 1025 (9th Cir. 2010), the Court held it was reasonable for a police officer to assume there was probable cause to search for other guns in the defendants residence considering the defendants history of violence and gang affiliation. Messerschmidt v. Millender, 132 S. Ct. 1235, 1246 (2012). A warrant is overbroad if it allows the officer to seize virtually all of a businesss assets. United States v. Bridges, 344 F.3d 1010 (9th Cir. 2003). To cure the warrant, the application must specifically allege that the business is permeated with fraud. Id. The pervasive fraud doctrine focuses not on the percentage of a business that is fraudulent, but rather the extent to which fraud has permeated the business. United States v. Bradley, 644 F.3d 1213, 1259-60 (11th Cir. 2011). The doctrine applies not just where a company is engaged solely in fraud, but where evidence of fraud is likely to be found in records related to a wide range of company business. Id. at 1259. The warrant may also be seen to lack particularity. Leon, 468 U.S. at 923; United States v. Collins, 830 F.2d 145, 146 (9th Cir. 1987). Warrants to search individuals present at the place to be searched must be particularized and supported by probable cause. Ybarra v. Illinois, 444 U.S. 85 (1979); Marks v. Clarke, 102 F.3d 1012, 1027-29 (9th Cir. 1996). A search warrant for a multi-family dwelling unit lacks particularity when the warrant fails to establish probable cause that evidence will be found in each unit. United States v. Clark, 638 F.3d 89, 95-99 (2d Cir. 2011) (finding the informants assertion that the defendant controlled the unit insufficient for probable cause to search all units). Lack of particularity in a warrant cannot be cured by a detailed warrant affidavit unless it is specifically incorporated by reference. Groh v. Ramirez, 540 U.S. 551 (2004); but see United States v. Rosa, 626 F.3d 56, 65-66 (2d Cir. 2010) (refusing 16

to apply Groh to a warrant lacking particularity because the price of suppression outweighed the need to deter police). The Tenth Circuit approves blanket suppression where the search had an improper ulterior motive. United States v. Foster, 100 F.3d 846, 849-53 (10th Cir. 1996). The Supreme Court upheld anticipatory search warrants against a particularity challenge in United States v. Grubbs, 547 U.S. 90 (2006). COUNTERPOINT In reliance on Grubbs requirement of probable cause that the triggering conditions will occur, the court found an application for an anticipatory search warrant triggered by an informants purchase of drugs inadequate because the affidavit failed to establish probable cause that the informant would be able to buy drugs at the place to be searched. Commonwealth v. Wallace, 42 A.3d 1040, 1050 (Pa. 2012). Warrants for computer searches must affirmatively limit a search to evidence of specific federal crimes or specific types of material. United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009). Concern regarding overbreadth of computer warrants led to controversial guidance on the proper administration of warrants for computer-stored information in United States v. Comprehensive Drug Testing, 621 F.3d 1162 (9th Cir. 2010) (en banc). The court pointed to an array of protective measures for computer privacy during searches, stating, District and magistrate judges must exercise their independent judgment in every case, but heeding this guidance will significantly increase the likelihood that the searches and seizures of electronic storage that they authorize will be deemed reasonable and lawful. Id. at 1178. Other circuits have refused to afford special Fourth Amendment protections or guidance pertaining to computers, opting instead to evaluate reasonableness on a case-by-case basis. See United States v. Burgess, 576 F.3d 1078, 1090-92 (10th Cir. 2009); United States v. Richards, 659 F.3d 527, 539-540 (6th Cir. 2011), cert. denied, 132 S. Ct. 2726 (2012). 3. Obvious Lack Of Probable Cause The level of probable cause may be insufficient for a reasonable officer to rely on the warrant affidavit. Leon, 468 U.S. at 923; Millender, 620 F.3d at 9-15; United States v. Weaver, 99 F.3d 1372, 1377-81 (6th Cir. 1996); Greenstreet v. County of San Bernadino, 41 F.3d 1306, 1309-10 (9th Cir. 1994); United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988). Officers could not in good faith rely on a search warrant to investigate a homicide, which occurred nine months earlier, where the affidavit provided insufficient evidence to link the defendant to the murder. United States v. Grant, 682 F.3d 827, 832-38 (9th Cir. 2012). The probable cause determination is based only on what is included in the affidavit, not on what the officer orally conveyed to the magistrate, United States v. Luong, 470 F.3d 898, 904 (9th Cir. 2006), nor what the officer may have known but failed to include. United States v. Laughton, 409 F.3d 744, 752 (6th Cir. 2005). The circuits are split on the use of facts outside the affidavit in order to apply the good faith exception. Compare United States v. Laughton, 409 F.3d 744, 751-52 (6th Cir. 2005) (conclud[ing] that a determination of good-faith reliance, like a determination of probable cause, must be bound by the four corners of the affidavit); and United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988) (finding that the good faith exception is limited by the facts presented to the judge); with United States v. McKenzie-Gude, 671 F.3d 452, 17

460 (4th Cir. 2011) (permitting the consideration of facts outside the affidavit to apply the good faith exception); and United States v. Marion, 238 F.3d 965, 969 (8th Cir. 2001) (same); and United States v. Dickerson, 975 F.2d 1245, 1250 (7th Cir. 1992) (same); and United States v. Taxacher, 902 F.2d 867, 871-73 (11th Cir. 1990) (same). [A] warrant cannot be based on the claim of an untrained or inexperienced person to have smelled growing plants which have no commonly recognized odor. United States v. DeLeon, 979 F.2d 761, 765 (9th Cir. 1992). Boilerplate recitations regarding sex crimes so lacked the requisite indicia for probable cause that the products of the search were suppressed in United States v. Zimmerman, 277 F.3d 426, 436 (3rd Cir. 2002); see also United States v. Greathouse, 297 F. Supp. 2d 1264, 1272-73 (D. Or. 2003) (evidence suppressed because thirteen-month old child pornography evidence was too stale). Despite a 41-page affidavit, the court found no reasonable officer would believe the affidavit established probable cause where close analysis disclosed, through the mass of boilerplate and irrelevancies, no links to establish that contraband would be in the house to be searched. United States v. Sartin, 262 F. Supp. 2d 1154 (D. Or. 2003). An unverified tip is insufficient to create a reasonable belief that probable cause existed. Luong, 470 F.3d at 903. Probable cause that the defendant sexually abused a child does not establish sufficient probable cause to rely on for a search for possession of child pornography. See Dougherty v. City of Covina, 654 F.3d 892, 898 (9th Cir. 2011) (finding there was no probable cause to support the warrant but also dismissing the civil case because officers had qualified immunity); Virgin Islands v. John, 654 F.3d 412, 418 (3d Cir. 2011); United States v. Hodson, 543 F.3d 286, 292-93 (6th Cir. 2008); United States v. Falso, 544 F.3d 110, 122-23, 128-29 (2d Cir. 2008) (Sotomayor, J.) (holding that the warrant lacked probable cause, but the officers acted in good faith). 4. Product Of Prior Illegality The government cannot insulate an illegal warrantless search by including the product of that search in a warrant affidavit. United States v. Grandstaff, 813 F.2d 1353, 1355 (9th Cir. 1987); United States v. Wanless, 882 F.2d 1459, 146667 (9th Cir. 1989); United States v. Vasey, 834 F.2d 782, 789-90 (9th Cir. 1987). See also Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1996) (facts learned or evidence obtained as a result of an illegal stop or arrest cannot be used to justify probable cause for that arrest); accord United States v. Collins, 427 F.3d 688, 691 (9th Cir. 2005). 5. Manner Of Execution Until recently, the manner in which the warrant is executed could render the search unreasonable and implicate the exclusionary rule. See, e.g., United States v. Winsor, 846 F.2d 1569, 1579 (9th Cir. 1988) (en banc); United States v. Warner, 843 F.2d 401, 405 (9th Cir. 1988); United States v. Echegoyen, 799 F.2d 1271, 1279 n.4 (9th Cir. 1986). Violation of the knock-and-announce requirements of 18 U.S.C. 3109 required suppression. United States v. Zermeno, 66 F.3d 1058, 1062-63 (9th Cir. 1995). The Supreme Court has recognized knock and announce as a component of the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927 (1995); see Richards v. Wisconsin, 520 U.S. 385 (1997). The Supreme Court allowed no-knock entry upon reasonable suspicion of officer danger, with some unspecified level of balancing for unnecessary destruction of property in making the entry. United States v. Ramirez, 523 U.S. 65 (1998); see also United States v. Peterson, 353 F.3d 1045 (9th Cir. 2003) (exigent circumstances existed to authorize no-knock entry when officers had 18

reasonable evidence that drug evidence could be destroyed and that explosives were in the house); United States v. Bynum, 362 F.3d 574 (9th Cir. 2004) (defendants strange behavior appearing at the door naked and carrying a loaded semiautomatic pistol authorized no-knock entry). However, in Hudson v. Michigan, 547 U.S. 586 (2006), the Court held that the exclusionary rule does not apply to violations of the constitutional knock-and-announce rule. Hudson applies to massive force in the execution of a warrant even where police could have obtained a no-knock warrant. United States v. Garcia-Hernandez, 659 F.3d 108, 112-14 (1st Cir. 2011) (applying Hudson to a knock-and-announce with aggressive, military-style tactics); United States v. Ankeny, 502 F.3d 829, 835-38 (9th Cir. 2007). In Ankeny, Judge Reinhardt dissented, asserting that Hudson should not be extended beyond the specific context of the knock-andannounce requirement to cases where the police use excessive force in executing a search. 502 F.3d at 841-48. In footnote 3, the majority refused to reach the issue of whether Hudson applies to statutory knock-and-announce under 18 U.S.C. 3109. The Fourth Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest even if the officers violate applicable state laws of arrest. Virginia v. Moore, 553 U.S. 164, 178 (2008). COUNTERPOINT Delay in the governments execution of a search warrant provides grounds for suppression. United States v. Metter, No. 10-600, 2012 WL 1744251, at *10 (E.D.N.Y. May 17, 2012). In Metter, the government failed to review the seized electronic data to determine whether the data fell within the scope of the warrants authorization. Id. at *9. The court found that [t]he government's retention of all imaged electronic documents, including personal emails, without any review whatsoever was unreasonable and disturbing. Id. at *9 (emphasis in original). Because the government engaged in a general search and acted in bad faith, the court suppressed all the data. Id. at *10. 6. Role Of Judicial Officer The good faith exception does not apply where the issuing judge was not operating as a neutral magistrate. Leon, 468 U.S. at 923; United States v. Decker, 956 F.2d 773, 778 (8th Cir. 1992); see also Connally v. Georgia, 429 U.S. 245 (1977). An officer also cannot rely on an unsigned warrant because such reliance is not objectively reasonable. United States v. Evans, 469 F. Supp. 2d 893, 900 (D. Mont. 2007). 7. Arrest Warrants The Fourth Amendment prohibits warrantless entry into a home for the purposes of making an arrest. Kirk v. Louisiana, 536 U.S. 635, 637-39 (2002); Payton v. New York, 445 U.S. 573, 586-87 (1980). To justify a warrantless entry into a residence, the government must show the existence of probable cause and exigent circumstances. Kirk, 536 U.S. at 638. The existence of an arrest warrant allows entry into a dwelling in which the defendant lives, but entry into the home of a third party must be supported by a search warrant or exigent circumstances. Steagald v. United States, 451 U.S. 204, 211-22 (1981). A non-exigent entry to effect an arrest of an overnight guest of a third party requires at least an arrest warrant to comply with the Fourth Amendment. Minnesota v. Olson, 495 U.S. 91 (1990). COUNTERPOINT Warrantless entry of a third partys home to execute an arrest warrant requires substantial evidence of the targets presence an 19

unverified anonymous tip is not enough. Watts v. County of Sacramento, 256 F.3d 886, 889-90 (9th Cir. 2001). A misdemeanor arrest warrant executed on a person standing in his doorway did not authorize a non-consensual entry into the dwelling. United States v. Albrektsen, 151 F.3d 951, 953-54 (9th Cir. 1998). Defendant did not expose himself to a warrantless arrest in his entryway merely by reaching his arm through a hole out to the front porch. United States v. Flowers, 336 F.3d 1222, 1226-29 (10th Cir. 2003); see also United States v. Quaempts, 411 F.3d 1046, 1048-49 (9th Cir. 2005) (when a trailer home was so small that he could open the front door while lying on his bed, the defendant did not waive Payton protections, because he was in the private area of his home). G. Warrantless Searches And Seizures

The traditional rule is that warrantless searches and seizures are per se unreasonable and that the burden is on the government to establish that a search or seizure falls within a wellestablished exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); Stoner v. California, 376 U.S. 483, 486 (1964). However, the government argument that the warrant requirement only applies to dwellings unanimously rejected in United States v. Chadwick, 433 U.S. 1, 7 (1977) has been well received by Justices Scalia and Thomas. See California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concurring). The exceptions to the warrant requirement have generally been given increasingly broad readings. In his dissent to Groh v. Ramirez, 540 U.S. 551, 572-73 (2004) (Thomas, J., dissenting), Justice Thomas noted that the current status of the case law surrounding the warrant requirement stands for the illuminating proposition that warrantless searches are per se unreasonable, except, of course, when they are not. Determinations of probable cause and reasonable suspicion are given de novo review by the appellate courts. Ornelas v. United States, 517 U.S. 690 (1996). 1. Consent To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a persons house as unreasonable per se, one jealously and carefully drawn exception recognizes the validity of searches with the voluntary consent of an individual possessing authority. Georgia v. Randolph, 547 U.S. 103, 109 (2006). A search without a warrant or any level of suspicion can be conducted if, under the totality of the circumstances, the officers have obtained voluntary consent, regardless of whether the officers advised that consent could be refused. United States v. Drayton, 536 U.S. 194, 206-07 (2002); Schneckloth v. Bustamonte, 412 U.S. 218, 226-28 (1973). Under the totality of the circumstances analysis, the Ninth Circuit specifically considers five factors: (1) whether the defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that she had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained. United States v. Soriano, 346 F.3d 963, 969-70 (9th Cir. 2003), amended by 361 F.3d 494, 503 (9th Cir. 2004) (holding mothers consent to search hotel room voluntary despite threat that children may be removed and that warrant could be obtained). But see United States v. Perez-Lopez, 348 F.3d 839, 846-48 (9th Cir. 2003) (questioning the relevance of Miranda warnings to voluntariness of consent).

20

COUNTERPOINT The government bears the burden of establishing voluntary consent, and this burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). In Kaupp v. Texas, 538 U.S. 626 (2003), the police, without probable cause, woke the 17-year-old defendant in his home at 3 a.m., telling him that they needed to talk to him about a murder investigation. Kaupp said okay, whereupon the officers handcuffed him and led him, shoeless and dressed only in his boxer shorts and T-shirt, to the patrol car. The Court held that under the circumstances, Kaupps okay . . . is no showing of consent . . . . There is no reason to think Kaupps answer was anything more than a mere submission to a claim of lawful authority. Kaupp, 538 U.S. at 631. In United States v. Washington, the court noted that its determination that the defendant had been seized prior to the alleged consent had a major impact on its consent decision. 490 F.3d 765, 775 (9th Cir. 2007). Though only one factor of five, the court held that the fact of custody raise[d] grave questions as to the voluntariness of his consent. Id. An individuals consent to search as a condition of pretrial release did not relieve the government of the burden to prove that the search was reasonable. United States v. Scott, 450 F.3d 863, 868 (9th Cir. 2006). The absence of clear words of consent undercuts a government claim of permissive entry. United States v. Shaibu, 920 F.2d 1423, 1426-28 (9th Cir. 1990) ([W]e interpret failure to object to the police officers thrusting himself into Shaibus apartment as more likely suggesting submission to authority than implied or voluntary consent). Where INS agents made misleading statements implying they did not need a warrant to enter an apartment and talk, the court found no voluntary consent. Orhorhaghe v. INS, 38 F.3d 488, 500-01 (9th Cir. 1994); see also United States v. Escobar, 389 F.3d 781, 785 (8th Cir. 2004) (consent to search luggage was not voluntary when officers falsely claimed that a drug dog had alerted to the luggage). When a trooper falsely stated that he did not need a warrant to search a car, the subsequent consent to the search by the motorist was invalid. Cisneros v. State, 165 S.W. 3d 853, 858 (Tex. App. 2005). When ATF agents garnered consent from the defendant to search a home through trickery, implying that the home might be in danger, the consent was involuntary. United States v. Harrison, 639 F.3d 1273, 1279-80 (10th Cir. 2011) (agents searching for drugs and bombs suggested they were investigating a tip that a third party might attempt to bomb defendants residence). Expert testimony regarding a defendants rudimentary grasp of English can establish lack of voluntary consent. United States v. Higareda-Santa Cruz, 826 F. Supp. 355, 359 (D. Or. 1993); see United States v. Garibay, 143 F.3d 534, 537-39 (9th Cir. 1998) (invalid Miranda waiver). A language barrier, even where the police officer has a rudimentary knowledge of Spanish, can prevent a defendant from voluntarily consenting to a search. United States v. Garcia-Rosales, No. 05-402-MO, 2006 WL 468320, at *12 (D. Or. 2006). 21

The officers hand on his gun, on a deserted stretch of highway, with no advice of the right to refuse consent, rendered the purported consent involuntary in United States v. Chan-Jimenez, 125 F.3d 1324, 1326-28 (9th Cir. 1997). Police officers show of authority and failure to inform bus passengers of the right to refuse consent rendered consent involuntary in United States v. Guapi, 144 F.3d 1393 (11th Cir. 1998), and United States v. Washington, 151 F.3d 1354 (11th Cir. 1998). Consent was involuntary after police ordered the suspect against a wall in a spread-eagle position, frisked him, handcuffed him, and told him he was going to jail. United States v. Reid, 226 F.3d 1020, 1026-27 (9th Cir. 2000). The fact that defendant twice refused to open the door prior to the officer identifying himself proved that, when he eventually opened the door, he was merely submitting to police authority and not consenting to entry. United States v. CruzRoman, 312 F. Supp. 2d 1355, 1361-62 (W.D. Wash. 2004). A defendant can withdraw consent by unequivocal acts such as repeatedly lowering hands to block officers from searching pockets, even without explicitly saying he no longer consented. United States v. Sanders, 424 F.3d 768, 775 (8th Cir. 2005). A defendant who had allowed police officers to enter his residence did not impliedly consent to officers entry into his bedroom when the inebriated suspect kind of flipped his hand in that direction after the officer asked him for identification. United States v. Castellanos, 518 F.3d 965, 970 (8th Cir. 2008). In two Oregon cases, courts rejected claims of consent based on the agents inadequate reports and conflicting testimony. United States v. Eggleston, No. 08-169-HA, 2010 WL 2854682 (D. Or. July 19, 2010); United States v. Freeman, No. 08-289-1-JO, 2009 WL 2046039 (D. Or. July 8, 2009). The scope of consent is generally determined objectively by the expressed object of the search. Florida v. Jimeno, 500 U.S. 248, 251 (1991) (consent to search car for narcotics included search of paper bag in car); United States v. Reeves, 6 F.3d 660 (9th Cir. 1993) (consent to complete search of car included search of briefcase in trunk of car); United States v. Flores, 368 Fed. Appx. 424, 434-35 (4th Cir. 2010) (if consent does not limit search, officers may lawfully drill into a vehicles axle to search for contraband); United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011) (holding police did not exceed the scope of defendants consent to search his residence for drugs and other material or records pertaining to narcotics by searching the defendants personal computer because the computer was not password protected and the defendant did not object to the search). COUNTERPOINT Intrusions that exceed the reasonable scope of the consent violate the Fourth Amendment. United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (consent to search person in airport did not include frontal touching of genitals to locate drugs); United States v. Washington, 739 F. Supp. 546, 550-51 (D. Or. 1990) (permission to open locked trunk did not include consent to pull seats out of car, without causing damage, to look in trunk); see United States v. Lemmons, 282 F.3d 920, 924 (7th Cir. 2002) (written consent to search trailer did not include contents of computer, but defendant later consented to expanded search). After an initial consent to search a home to look for a 22

burglar, the officers exceeded the scope of the consent in conducting second and third searches for drugs. Shamaeizadeh v. Cunigan, 338 F.3d 535, 547-48 (6th Cir. 2003). An initially consensual encounter can be transformed into a seizure within the meaning of the Fourth Amendment by increasingly intrusive police procedures. Kaupp, 538 U.S. at 631-32. The routine nature of police restraints is irrelevant to the effect of the restraints on the subject, and the absence of resistance to restraint is not a waiver of Fourth Amendment protection. Kaupp, 538 U.S. at 632. New consent was required for a marshals second warrantless entry into a defendants house when the second entry exceeded the scope of the defendants consent to the first entry. United States v. McMullin, 576 F.3d 810, 816 (8th Cir. 2009). Defendants consent to the search of his trunk did not include the entire car, even though he handed the officer the keys to his car, left the door of his car open, and failed to object to a search of the interior of the car in United States v. Neely, 564 F.3d 346, 351 (4th Cir. 2009). Following the lawful stop of his car, defendants consent for DEA agents to search his car did not extend to search of his cell phones that were removed from his person and placed on the roof of his vehicle. United States v. Zavala, 541 F.3d 562, 576 (5th Cir. 2008). Consent to search may be given by a third party who has common authority over the place to be searched. United States v. Matlock, 415 U.S. 164, 170-71 (1974). Such third parties do not include hotel managers, landlords, and similar non-resident persons with a property interest. Stoner v. California, 376 U.S. 483, 488-89 (1964) (hotel clerk); Chapman v. United States, 365 U.S. 610, 616-17 (1961) (landlord); but see United States v. Lumpkins, No. 12-1348, 2012 WL 3155984, at *2-3 (8th Cir. Aug. 6, 2012) (finding a vehicle rental manager may consent to search of car rental over defendant-drivers objection). COUNTERPOINT When two individuals with equal authority in the home are both present and disagree on consent, officers may not enter. Georgia v. Randolph, 547 U.S. 103, 106 (2006). In United States v. Murphy, 516 F.3d 1117, 1121-25 (9th Cir. 2008), the court held that, under Randolph, the occupant of a storage units refusal to consent trumped a co-tenants consent, even if the co-tenant paid the rent. Refusal of consent by a person with greater authority over the property will override the consent of another with less authority. United States. v. Jones, 335 F.3d 527, 531 (6th Cir. 2003) (holding that consent given by the handyman was insufficient when officers knew that the homeowner had already refused consent). The Sixth Circuit refused to draw[ ] a distinction between consent from individuals with varying authority over the property. United States v. Johnson, 656 F.3d 375, 378-79 (6th Cir. 2011) (police acted unreasonably in searching the defendants bedroom after he objected to the search over his wifes consent). In State v. Carter, 236 Or. App. 214, 234 P. 2d 1087 (2010), the court held that the arrest of the co-occupant did not vitiate the refusal to consent under Randolph. [W]hen a co-tenant objects to a search and another party with common authority subsequently gives consent to that search in the absence of the first co-tenant the search is invalid as to the objecting co-tenant. United States v. Murphy, 516 F.3d 1117, 1124-25 (9th Cir. 2008). 23

In a major expansion of the consent exception to the warrant requirement, the apparent authority of a third party consenter is sufficient to make the search lawful as long as the mistake is reasonable. Illinois v. Rodriguez, 497 U.S. 177 (1990) (approving search based on roommates consent even though, unknown to the police, she had moved out a month before and retained a key without permission); see also United States v. Ruiz, 428 F.3d 877, 882 (9th Cir. 2005) (third party had apparent authority to consent to search of gun case in trailer); United States v. Amratiel, 622 F.3d 914, 916-17 (8th Cir. 2010) (defendants wife had apparent authority to consent to a search of the defendants locked gun safe, even though the police retrieved the safes keys from the defendant, not the wife). COUNTERPOINT Police officers had no apparent authority to search belongings where the lessee identified a houseguests belongings in a gym bag under a bed. United States v. Davis, 332 F.3d 1163, 1170 (9th Cir. 2003); see also United States v. Fultz, 146 F.3d 1102, 1105-06 (9th Cir. 1998) (a homeowner had neither actual nor apparent authority to consent to the search of cardboard boxes stored in her garage by a homeless person). In United States v. Welch, 4 F.3d 761, 765 (9th Cir. 1993), overruled in part on other grounds by United States v. Kim, 105 F.3d 1579, 1581 (9th Cir. 1997), the court held the consent given by the defendants boyfriend to search the defendants purse, which was located in a car they had joint control over, was invalid because the information known at the time did not support a reasonable belief in the boyfriends authority to consent. In United States v. Dearing, 9 F.3d 1428, 1430 (9th Cir. 1993), overruled in part on other grounds by United States v. Kim, 105 F.3d 1579, 1581 (9th Cir. 1997), the court held that an ATF agents reliance on consent from a caretaker was unreasonable, even though the agent knew that the caretaker had been in the bedroom on prior occasions, because there was nothing to indicate that the prior access was authorized, the bedroom door was closed at the time of the search, and the agent knew that the caretakers relationship with the homeowner was nearing an end. In United States v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir. 1992), the court held the consent given by the defendants girlfriend to open the defendants closed suitcase, which was located in the girlfriends house, was invalid because the information known at the time did not support a reasonable belief in the girlfriends authority to consent. The police have a duty of inquiry when relying on a third partys apparent authority. United States v. Reid, 226 F.3d 1020, 102526 (9th Cir. 2000). Third party consent that stems from prior government illegality is not valid. United States v. Oaxaca, 233 F.3d 1154, 1158 (9th Cir. 2000). Agents discovery of mens clothing in a duffle bag that a female suspect claimed was hers created sufficient ambiguity to erase her apparent authority to consent to a search of bags within hotel room. United States v. Purcell, 526 F.3d 953, 964 (6th Cir. 2008); see also United States v. Taylor, 600 F.3d 678, 681-82 (6th Cir. 2010) (no apparent authority to search a shoe box belonging to a male suspect that was in a closet full of mens clothing, which did not appear to be in use by the sole female occupant of the dwelling). Officers should make a diligent inquiry before relying on an individuals consent for a search: Police 24

must not only thoroughly question the individual consenting to the search with respect to his or her actual authority, but also pay close attention to whether the surrounding circumstances indicate that the consenting individual is truthful and accurate in asserting common authority over the premises. Commonwealth v. Lopez, 937 N.E.2d 949, 958 (Mass. 2010). 2. Plain View In Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971), the plurality opinion articulated the plain view doctrine as allowing a warrantless seizure where the officers inadvertently observed an item in a place where they have a right to be, and probable cause to believe the item is subject to seizure is readily apparent. In Horton v. California, 496 U.S. 128 (1990), the Court shaved back the test to eliminate the requirement of inadvertence. In Horton, the Court approved the seizure of weapons not named in the search warrant for rings that were the proceeds of an armed robbery; the incriminating nature of the guns was readily apparent to the searching officer, and the officer was lawfully present on the premises deliberately to search for evidence. 496 U.S. at 141-42. COUNTERPOINT After ATF agents had fully executed their search warrant, the plain view doctrine was no longer applicable because they were no longer lawfully on the premises when they saw the rifle that was seized. United States v. Limatoc, 807 F.2d 792, 795 (9th Cir. 1987); see also United States v. Spilotro, 800 F.2d 959, 968 (9th Cir. 1986) (plain view seizure of jewelry during execution of general warrant held invalid); United States v. Miller, 769 F.2d 554, 560 (9th Cir. 1985) (after field test of bags contents revealed innocuous white powder, further probing and puncturing of bags contents held invalid). Where a meth lab was in plain view during a protective sweep of a storage locker, the subsequent search required a warrant in the absence of exigent circumstances, United States v. Murphy, 516 F.3d 1117, 1121 (9th Cir. 2008). Where the warrant failed to particularly describe the items to be seized, material that is not contraband in plain view is suppressed. United States v. Van Damme, 48 F.3d 461, 465-67 (9th Cir. 1995). The single purpose container exception allows officers to search a container only if, solely by the containers exterior, officers can be certain of what is inside. United States v. Gust, 405 F.3d 797, 800-05 (9th Cir. 2005) (black plastic case was not readily identifiable as a gun case, nor could its contents be readily inferred from outward appearances). The subscriber number of a defendants cell phone was not admissible under a plain view theory when the agent had to open the cell phone and manipulate it in order to retrieve the number. United States v. Zavala, 541 F.3d 562, 577 n.5 (5th Cir. 2008). The plain view doctrine does not allow searches of wallets that are in an officers plain view. United States v. Rivera-Padilla, 365 Fed. Appx. 343, 346 (3d Cir. 2010). Application of the plain view doctrine to computer searches raises troubling issues. In United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam), the concurring judges stated that, when the government obtains a warrant to examine a computer hard driver or electronic storage medium to search for certain incriminating files, magistrate 25

judges should insist that the government waive reliance upon the plain view doctrine. But see United States v. Stabile, 633 F.3d 219, 240-41, 241 n.16 (3d Cir. 2011) (declining to follow the Ninth Circuits approach, and holding that the plain view doctrine applies to computer file searches). The search of a computer exceeded the scope of a warrant for drug records, resulting in the suppression of child pornography in United States v. Payton, 573 F.3d 859, 861-62 (9th Cir. 2009). 3. Investigative Stops Less Intrusive Than Arrest In Terry v. Ohio, 392 U.S. 1 (1968), the Court recognized that a limited stop and frisk of an individual could be conducted without a warrant based on less than probable cause. A Terry stop must be based on a reasonable, individualized suspicion based on articulable facts, and the frisk is limited to a patdown for weapons. For example, a persons unprovoked flight in a high crime area when an officer approaches provides reasonable suspicion for a stop. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). The Court has also upheld an airport stop based in part on a drug courier profile. United States v. Sokolow, 490 U.S. 1, 9-10 (1989). COUNTERPOINT An anonymous tip that a person is carrying a gun is not, by itself, sufficient to justify a stop and frisk. Florida v. J.L., 529 U.S. 266 (2000). A refusal to cooperate does not furnish the objective justification required for a stop. Florida v. Bostick, 501 U.S. 429, 437 (1991). A 911 call from an unverified, unreliable source describing a young black male with a firearm did not establish reasonable suspicion for a Terry stop. United States v. Wali, 811 F. Supp. 2d 1276, 1281-87 (N.D. Tex. 2011). The Fourth Amendment does not allow law enforcement officers to conduct an investigatory detention on the basis of reasonable suspicion that a person committed a misdemeanor that poses no threat to public safety. United States v. Grigg, 498 F.3d 1070, 1075-83 (9th Cir. 2007) (reported violation of a noise ordinance insufficient to justify stop). In the following cases, the Ninth Circuit rejected a claim that reasonable suspicion justified a stop: United States v. Colin, 314 F.3d 439, 443-46 (9th Cir. 2003); United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1126 (9th Cir. 2002); United States v. Salinas, 940 F.2d 392, 394-95 (9th Cir. 1991); United States v. Hernandez-Alvarado, 891 F.2d 1414, 1418-19 (9th Cir. 1989); United States v. Robert L., 874 F.2d 701, 703-05 (9th Cir. 1989); and United States v. Thomas, 863 F.2d 622, 628-29 (9th Cir. 1988). The reasonable suspicion standard cannot justify extended seizure for questioning in the hall outside the suspects hotel room. United States v. Washington, 387 F.3d 1060, 1067-68 (9th Cir. 2004). Mere proximity to the U.S.-Mexico border and areas known for drug or illegal alien smuggling alone cannot sustain reasonable suspicion to stop. United States v. Rangel-Portillo, 586 F.3d 376 (5th Cir. 2009). An anonymous, in-person tip that a black male wearing a white shirt and yellow pants on the 2100 block of Millard had a black handgun lacked sufficient reliability to support reasonable suspicion for a Terry stop. People v. Rhinehart, 961 N.E.2d 933, 938 (Ill. App. Ct. 2012), appeal denied, 968 N.E.2d 1071 (Ill. 2012). [A]n individuals mere proximity to others engaged in criminal activity does not provide reasonable 26

suspicion for a protective search of the defendants purse. Commonwealth v. Grahame, 7 A.3d 810, 817 (Pa. 2010). Despite the requirement of individualized reasonable suspicion, a Terry stop may be supported under the collective knowledge or fellow officer doctrine. United States v. Hensley, 469 U.S. 221, 232 (1985); Whiteley v. Warden, 401 U.S. 560, 568 (1971). When an officer acts on an instruction from another officer, the act is justified if the instructing officer had sufficient information to justify taking such action herself; in this very limited sense, the instructing officers knowledge is imputed to the acting officer. United States v. Massenburg, 654 F.3d 480, 492 (4th Cir. 2011) (citing Whiteley and Hensley); see also United States v. Ramirez, 473 F.3d 1026, 1032-33 (9th Cir. 2007). COUNTERPOINT The Fourth Circuit limited the collective knowledge doctrine to vertical knowledge, where an instructing officer communicates probable cause or reasonable suspicion to an acting officer, and refused to extend the doctrine to horizontal knowledge, where uncommunicated information aggregates to form reasonable suspicion or probable cause. Massenburg, 654 F.3d at 493-94; see also United States v. RodriguezRodriguez, 550 F.3d 1223, 1228 n. 5 (10th Cir. 2008). The need to rigorously apply Terry to outlaw racebased stops is strongly supported in Washington v. Lambert, 98 F.3d 1181, 118592 (9th Cir. 1996). The concurrence in Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000), also highlights racial issues in stops. In United States v. MonteroCamargo, 208 F.3d 1122, 1134-35 (9th Cir. 2000) (en banc), the court rejected reliance on the racial or ethnic appearance of the driver as the basis for a stop. In United States v. Patterson, 340 F.3d 368 (6th Cir. 2003), officers received an anonymous complaint on a drug hotline alleging that a group of young men located on a particular street corner were selling drugs. This complaint did not create reasonable suspicion to stop the defendant, who was among a group of eight to ten black males found on the same street corner, despite the fact that the group retreated when they observed the police officers and one of the members of the group appeared to dispose of something in the bushes. Patterson, 340 F.3d at 371-72. Though officers may rely partially on general factors composing a broad profile, ultimately they must show something that establishes particularized suspicion. United States v. Manzo-Jurado, 457 F.3d 928, 939-40 (9th Cir. 2006) (a group of Hispanic-looking men, who appeared to be in a work crew, calmly conversing in Spanish to each other was not enough to create reasonable suspicion that the men were illegal immigrants, although each of these facts bore some relevance to establishing reasonable suspicion). COUNTERPOINT Police officers may not seize non-threatening contraband detected through groping and manipulating the object after a protective pat-down revealed no weapons. Minnesota v. Dickerson, 508 U.S. 366, 378-79 (1993). The intrusiveness of a pat-down under Terry is limited by its purpose. United States v. Miles, 247 F.3d 1009, 1013-15 (9th Cir. 2001) (shaking matchbox exceeded permissible scope of Terry frisk). By shoving his hand into 27

defendants pocket, instead of frisking him, an officer had converted a permissible pat-down into an unlawful search. United States v. Casado, 303 F.3d 440, 449 (2d Cir. 2002). The mere hunch that a suspects furtive actions meant he was carrying a gun, without articulable reasons to believe criminal activity is afoot, does not support a Terry stop. United States v. Jones, 606 F.3d 964, 966-67 (8th Cir. 2010). In assessing whether a detention is too long in duration to be justified as an investigative stop, courts should examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant and whether the police are acting in a swiftly developing situation. United States v. Sharpe, 470 U.S. 675, 686 (1985). An officer check on a drivers immigration status did not unreasonably prolong a Terry stop because the status check was a diligent pursuit of investigation and very brief. United States v. Guijon-Ortiz, 660 F.3d 757, 770 (4th Cir. 2011). Prolonged Terry stops for further investigation are acceptable when facts came to light indicating that information furnished by the driver, which the officers had a right to inquire into, was materially false. United States v. Pack, 622 F.3d 383 (5th Cir. 2010). A permissible Terry stop of an armed individual can sustain the brief detention of companions for whom individualized reasonable suspicion does not exist. United States v. Lewis, 674 F.3d 1298, 130809 (11th Cir. 2012). The detention of companions during a street Terry stop of armed individuals is reasonable in light of substantial risks to officers safety. Id. at 1309. COUNTERPOINT In analyzing whether a detention exceeds the justification for the stop, the crucial question is whether the detention is unnecessarily prolonged. See Illinois v. Caballes, 543 U.S. 405, 407 (2005) (citing United States v. Jacobsen, 466 U.S. 109, 124 (1984)) (It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.); accord United States v. Mendez, 476 F.3d 1077, 1079-80 (9th Cir. 2007); see also Muehler v. Mena, 544 U.S. 93 (2005) (holding that, although the police may question a suspect about issues unrelated to the purpose of the stop, the officers may not unnecessarily prolong the detention). [A]n officers inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop's duration. Arizona v. Johnson, 555 U.S. 323, 333 (2009). A defendant was unlawfully detained when a police officer questioned her in her car for a prolonged period incident to a traffic stop. United States v. Garcia-Rosales, No. 05-402-MO, 2006 WL 468320, at *10 (D. Or. 2006). When officers at an immigration checkpoint detained travelers after checking their immigration status, their continued detention and questioning about drugs was unreasonable. United States v. Portillo-Aguirre, 311 F.3d 647, 653-56 (5th Cir. 2002); see United States v. Higareda Santa-Cruz, 826 F. Supp. 355, 35859 (D. Or. 1993). The officer violated the Fourth Amendments limit on the duration and the scope of traffic stops, where a police officer delayed the traffic 28

violation processing to ask questions about drug trafficking and to request consent for a search. United States v. Digiovanni, 650 F.3d 498, 500-13 (4th Cir. 2011). The same requirement of reasonable suspicion for a stop applies to stops of individual vehicles. United States v. Arvizu, 534 U.S. 266 (2002); United States v. Cortez, 449 U.S. 411 (1981); Delaware v. Prouse, 440 U.S. 648 (1979). The suspicion to justify a stop may relate to crimes already committed, United States v. Hensley, 469 U.S. 221 (1985) (permissible to stop vehicle for further investigation based on wanted flyer), and the stop may be based on traffic violations observed by another officer. United States v. Miranda-Guerena, 445 F.3d 1233, 123738 (9th Cir. 2006). COUNTERPOINT A mistake of law cannot justify a vehicle stop, and there is no good faith exception for officers who rely on erroneous training. United States v. Herrera, 444 F.3d 1238, 1246-49 (10th Cir. 2006) (officers mistaken belief that a truck qualified as a commercial vehicle did not justify a suspicionless stop, even though officer claimed stopping the truck to check the VIN number was the only way to determine whether or not it qualified as commercial); United States v. Mariscal, 285 F.3d 1127, 1130-33 (9th Cir. 2002) (no reasonable suspicion where failure to signal right turn did not affect traffic as required for a violation under state law); United States v. King, 244 F.3d 736, 739-41 (9th Cir. 2001) (mistaken belief that ordinance prohibited driving with disabled placard hanging from mirror); United States v. Lopez-Soto, 205 F.3d 1101, 1105-06 (9th Cir. 2000) (erroneous belief that a registration sticker was required). In United States v. Colin, 314 F.3d 439, 443-47 (9th Cir. 2002), the court conducted a careful analysis of the traffic laws to conclude that the officers did not have reasonable suspicion to stop the defendants car for lane straddling or for driving under the influence where the driver did not cross over the line and in fact made a safe lane change. See also United States v. Pena-Montes, 589 F.3d 1048, 1054-55 (10th Cir. 2010) (officers mistaken belief that dealer plates are only installed on vehicles not yet sold did not justify a stop based on a suspicion that a vehicle was stolen from the dealership). In United States v. IzguerraRobles, 660 F. Supp. 2d 1202, 1206 (D.Or. 2009), police officers exceeded their authority to conduct a traffic stop for failure to carry an operators license. The court rejected a car stop in United States v. Thomas, 211 F.3d 1186, 1191 (9th Cir. 2000), that was based in part on the purported distinctive sound of marijuana bales being loaded into the back of an El Camino. In United States v. Valdes-Vega, 685 F.3d 1138, 1144-46 (9th Cir. 2012), the court held border patrol agents 70 miles north of the border did not have reasonable suspicion that the driver was smuggling drugs or aliens under the totality of the circumstances. In United States v. Sowards, the Fourth Circuit concluded that an officers traffic stop for exceeding the speed limit by five miles lacked probable cause when officer visually determined the vehicles speed. No. 10-4133, 2012 WL 2386605, at *5-8 (4th Cir. June 26, 2012); but see United States v. Mubdi, No. 10-5008, 2012 WL 3243478, at *5 (4th Cir. Aug. 10, 2012) (distinguishing Sowards from a 29

traffic stop with two independent and virtually identical estimates as to Mubdis speed by officers who were required, as part of a radar certification class, to visually estimate the speed of vehicles within a narrow margin of error). In overturning a drug conviction due to lack of reasonable suspicion, the Fourth Circuit expressed concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011) ([T]he Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.). The level of intrusion during a stop may also trigger the probable cause requirement. United States v. Lopez-Arias, 344 F.3d 623, 627-28 (6th Cir. 2003) (transporting vehicle occupants away from the scene of the stop requires probable cause); United States v. Rodriguez, 869 F.2d 479, 483 (9th Cir. 1989); United States v. Strickler, 490 F.2d 378, 380-81 (9th Cir. 1974); see also Longshore v. State, 924 A.2d 1129, 1145 (Md. Ct. App. 2007) (handcuffing a suspect turns an investigative stop into an arrest and thus requires probable cause absent special circumstances, such as a reason to believe the suspect will flee or endanger the officer). COUNTERPOINT Like the more stringent standard for individual stops based on race, in United States v. Garcia-Camacho, 53 F.3d 244, 246-49 (9th Cir. 1995), the court noted the problems with profile-based traffic stops and deconstructed the heads I win, tails you lose justifications for a stop. In United States v. Golab, 325 F.3d 63, 66-67 (1st Cir. 2003), the court held that an INS agent lacked reasonable suspicion based on an occupied car in a remote parking lot, with out-of-state plates, near a Social Security office. In United States v. Townsend, 305 F.3d 537, 542-45 (6th Cir. 2002), the court rejected a profilebased detention that included the presence of a Bible (purportedly to deflect suspicion), travel from and to source and destination cities, and food wrappers in the car. During a stop for traffic violations, the officers need not independently have reasonable suspicion that criminal activity is afoot to justify frisking passengers, but they must have reason to believe the passengers are armed and dangerous. Arizona v. Johnson, 555 U.S. 323, 326-27 (2009). The scope of the frisk for weapons during a vehicle stop may include areas of the vehicle in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032 (1983). COUNTERPOINT Reasonable suspicion for a frisk must be something more than an inchoate and unparticularized suspicion or hunch. United States v. Sokolow, 490 U.S. 1, 7 (1989). Radio communication warning of the defendants prior criminal activity and an alleged false statement by the defendant did not create reasonable suspicion that the defendant was armed and dangerous to justify a traffic stop frisk. United States v. Powell, 666 F.3d 180, 187-89 (4th Cir. 2011). Even if police officers have legitimately stopped a vehicle, the officers may search the vehicle only if they have probable cause to do so. United States v. Parr, 843 F.2d 1228, 1231-32 (9th Cir. 1988). 30

In Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004), the Supreme Court held that a Nevada statute requiring a person to disclose his name to an officer during a Terry stop did not violate any provisions of the Constitution and upheld the defendants arrest. COUNTERPOINT In State v. Affsprung, 87 P.3d 1088 (N.M. Ct. App. 2004), the New Mexico Court of Appeals held that, after lawfully pulling a vehicle over for a traffic violation, the officer exceeded the scope of the Terry stop when he asked for and obtained the passengers identification to run a wants and warrants check. The court pointed out that the scope of the stop permitted investigative detention of the vehicle and driver only, not the passenger. Affsprung, 87 P.3d at 1094. In Martiszus v. Washington County, 325 F. Supp. 2d 1160, 1168-70 (D. Or. 2004), the court held that refusing to provide identification, standing alone, is insufficient justification for a Terry stop. In United States v. Henderson, 463 F.3d 27, 46-47 (1st Cir. 2006), the court found that an officer could not demand a drivers identifying information for reasons of officer safety when the officer did not perceive any danger, there was no reasonable suspicion that the defendant was engaged in any illegal activity, the stop was not in a dangerous location, and the traffic violations for which the defendant was pulled over for did not raise the specter of illegal activity. The police may order passengers and the driver out of or into the vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408 (1997); Pennsylvania v. Mimms, 434 U.S. 106 (1977); United States v. Williams, 419 F.3d 1029, 1034 (9th Cir. 2005) (officers have the general authority to control all movement in a traffic encounter). A traffic stop subjects a passenger, as well as the driver, to a Fourth Amendment seizure. Brendlin v. California, 551 U.S. 249, 257 (2007). Other than Terry stops, officers may detain the occupants of the premises while conducting a search pursuant to a valid warrant. Michigan v. Summers, 452 U.S. 692, 705 (1981). The detention is a seizure under the Fourth Amendment, but the Summers court justified the seizure as necessary for three reasons: (1) officer safety; (2) orderly execution of the search; and (3) prevention of a flight risk. Summers, 452 U.S. at 702-03. In United States v. Allen, the Third Circuit allowed the detention of a third party during the execution of a search warrant for business premises based solely on officer safety. 618 F.3d 404, 406, 408 (3d Cir. 2010). COUNTERPOINT The Supreme Court granted certiorari on the extension of Summers to the detention of an occupant who leaves the premises immediately before or during the search. Bailey v. United States, 132 S. Ct. 2710 (2012). The lower courts are split. Compare United States v. Montieth, 662 F.3d 660, 666-67 (4th Cir. 2011) (holding that the detention of an occupant who left the premises was reasonable under Summers); and United States v. Bullock, 632 F.3d 1004, 1011 (7th Cir. 2011) (same); and United States v. Bailey, 652 F.3d 197, 205-06 (2d Cir. 2011) (same); and United States v. Cavazos, 288 F.3d 706, 711 (5th Cir. 2002) (same); and United States v. Cochran, 939 F.2d 337, 339 (6th 31

Cir. 1991) (same) with United States v. Edwards, 103 F.3d 90 (10th Cir. 1996) (refusing to extend Summers to the detention of an occupant who leaves the premises); and United States v. Sherrill, 27 F.3d 344, 346 (8th Cir. 1994) (same). 4. Incident To Arrest An arrest must be supported by probable cause. Michigan v. Summers, 452 U.S. 692, 700 (1981). As an incident to a lawful arrest, officers may conduct a detailed search of the person arrested, regardless of whether specific danger to the officer or of destruction of evidence is shown to exist. United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260 (1973). COUNTERPOINT Although search incident to arrest may be broad in scope, the search must be reasonable. Amaechi v. West, 237 F.3d 356, 361 (4th Cir. 2001) (citing Illinois v. Lafayette, 462 U.S. 640, 645 (1983)). Strip searches, for example, are particularly invasive searches that require a balancing test to ensure reasonableness. United States v. Edwards, 666 F.3d 877, 883 (4th Cir. 2011) (weighing (1) the place in which the search was conducted, (2) the scope of the particular intrusion, (3) the manner in which the search was conducted, and (4) the justification for initiating the search). In Edwards, the Fourth Circuit suppressed the product of a incident to arrest because the officers use of a knife to remove a cocaine baggie from the arrestees penis posed an unreasonable risk to the arrestee. 666 F.3d at 885-87. While finding good faith reliance on a warrant, officers use of a proctoscope to search a defendants rectum was unreasonable because of the extreme invasiveness and indignity of the search. United States v. Gray, 669 F.3d 556, 565 (5th Cir. 2012). A female officers strip search of a male pretrial detainee was unreasonable in Byrd v. Maricopa County Sheriffs Dept., 629 F.3d 1135, 1140-48 (9th Cir. 2011). In the absence of a specific justification, body cavity searches as an incident to arrest are unreasonable. Fuller v. M.G. Jewelry, 950 F.2d 1437,1446 (9th Cir. 1991). In Commonwealth v. Morales, 968 N.E.2d 403, 411-12 (2012), the Massachusetts Supreme Court affirmed the lower courts suppression of evidence unreasonably obtained through a public strip search incident to a drug arrest that exposed the defendants buttocks. The officers must actually arrest the personnot simply have the right to arrest to justify a search. Knowles v. Iowa, 525 U.S. 113, 117-18 (1998) (full search of car pursuant to issuance of speeding citation violated the Fourth Amendment even though authorized by state statute). In the infamous soccer mom case, Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the Court held that if an officer has probable cause to believe that an individual has committed even a non-jailable minor crime (failure to wear seatbelts) in his presence, he may arrest the offender without violating the Fourth Amendment. COUNTERPOINT The search of possessions within an arrestees control must be roughly contemporaneous with the arrest. United States v. Ramos-Oseguera, 120 F.3d 1028, 1036 (9th Cir. 1997) (search of vehicle after defendant was transported to the police station was not a search incident to 32

arrest); United States v. Park, No. 05-375-SI, 2007 WL 1521573, at * 8-9 (N.D. Cal. 2007) (holding that search of defendants cell phones was not a search of the person and so the hour and a half delay caused the search to be invalid as incident to arrest). The Fifth and Seventh Circuits have upheld searches of cell phones incident to arrest, reasoning that cell phones are analogous to closed containers found on the defendants person. United States v. Curtis, 635 F.3d 704, 712-13 (5th Cir. 2011); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007); United States v. Flores-Lopez, 670 F.3d 803, 809-10 (7th Cir. 2012). COUNTERPOINT In Schlossberg v. Solesbee, 844 F. Supp. 2d 1165, 1166-70 (D. Or. 2012), in a 1983 case, the court found a warrantless search of the contents of a digital camera incident to arrest to be unreasonable and a Fourth Amendment violation as a matter of law. The court found that the high volume of information that can be stored on digital cameras and cell phones creates a unique privacy interest, and phones should not be classified as part of the defendants person or clothing. Id. The Ohio Supreme Court came to a similar conclusion in State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009), holding that a cell phones ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Police may search a vehicle incident to a recent occupants arrest only when (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or (2) it is reasonable to believe that evidence regarding the arrest might be found in the vehicle. Gant, 556 U.S. at 351. Gant reversed the previous bright line test allowing searches of vehicles incident to arrest without regard to the rationale for the search. Thornton v. United States, 541 U.S. 615 (2004); New York v. Belton, 453 U.S. 454 (1981). Officers may not search a vehicle incident to arrest for a crime that would not yield evidence in the passenger compartment of the vehicle. United States v. Ruckes, 586 F.3d 713 (9th Cir. 2009) (search incident to arrest for illegal driving not upheld). COUNTERPOINT The question whether a suspect is a recent occupant depends on the suspects temporal and spatial relationship to the vehicle, which should be guided by the rationales underlying Chimel v. California, 395 U.S. 752 (1969). Thornton, 541 U.S. at 622. When no vehicle is involved, the area that may be searched pursuant to this exception is limited to the reaching distance, or area in the immediate control, of the suspect. Chimel, 395 U.S. at 763. A backpack on a nearby park bench was not close enough to the defendant to be searched incident to arrest. United States v. Spurk, No. 05-226KI, 2005 WL 3478195, at *5 (D. Or. 2005). A backpack found 8 to 12 feet from the place of the defendants arrest was not within the defendants lunge area for purposes of a search incident to arrest. United States v. Manzo-Small, No. 05480-HA, 2006 WL 1113584, at *3 (D. Or. Apr. 21, 2006). The defendant must 33

also be under arrest: where a suspect was detained in the back of a patrol car on suspicion of driving with a suspended license, the search incident to arrest exception did not justify the search of the vehicle because he was not under arrest. United States v. Parr, 843 F.2d 1228, 1230-31 (9th Cir. 1988); but see United States v. Smith, 389 F.3d 944, 951-52 (9th Cir. 2004) (search may take place prior to actual arrest). Because the contents of a vehicle invalidly searched incident to arrest would have been discovered through a later vehicle inventory, the Seventh Circuit refused to suppress evidence discovered in violation of Gant under the inevitable discovery doctrine. United States v. Cartwright, 630 F.3d 610, 614-16 (7th Cir. 2010). The Fifth Circuit came to a similar conclusion in United States v. Ochoa, 667 F.3d 643, 650 (5th Cir. 2012), holding that the inevitable discovery exception made admissible evidence from the call logs of a cell phone searched without a warrant incident to an arrest because the phone would have been searched during the vehicles inventory search. Incident to a lawful arrest of a person in his or her home, officers may conduct a warrantless sweep of places in the house where a person could hide if the officers reasonably believe that the area to be swept harbors someone posing a danger. Maryland v. Buie, 494 U.S. 325 (1990). Some circuits permit a protective sweep in situations other than a home arrest, such as exigent circumstances or consent. United States v. Miller, 430 F.3d 93, 94-95 (2d Cir. 2005); United States v. Martins, 413 F.3d 139, 149-50 (1st Cir. 2005); Leaf v. Shelnutt, 400 F.3d 1070, 1088-89 (7th Cir. 2005); United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004) (en banc); United States v. Taylor, 248 F.3d 506, 513-14 (6th Cir. 2001); United States v. Patrick, 959 F.2d 991, 996 (D.C. Cir. 1992). COUNTERPOINT The Ninth and Tenth Circuit limit protective sweeps only to those incident to arrest. United States v. Torres-Castro, 470 F.3d 992, 997 (8th Cir. 2006); United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000); see also United States v. Hassock, 631 F.3d 79, 87-88 (2d Cir. 2011) (permitting protective sweeps in other lawful processes with reasonable danger to officers, but not yet extending sweeps to consent); see also Guzman v. Commonwealth, No. 2010-SC-00415-06, 2012 WL 2362339, at *2 (Ky. June 21, 2012) (prohibiting protective sweeps in consent situations); State v. Guggenmos, 253 P.3d 1042, 1051 (Or. 2011) (officers violated the Fourth Amendment when they performed a protective sweep of consenting individuals home after seeing other individuals run out of home). For example, a protective sweep is not allowed if the police detain rather than arrest the occupant. United States v. Reid, 226 F.3d at 1027. The purpose of the sweep is to protect officers against surprise attack by unknown co-conspirators and is narrowly confined to a cursory visual inspection of potential hiding places. United States v. Furrow, 229 F.3d 805, 81112 (9th Cir. 2000); United States v. Hassock, 631 F.3d 79, 87-88 (2d Cir. 2011) (noting that officer safety is the only purpose of a protective sweep); United States v. Fuentes, 800 F. Supp. 2d 1144, 1155 (D. Or. 2011) (finding protective sweep was unjustified because no particularized information existed to lead police 34

to reasonably believe anyone else was in the home when both occupants had been arrested). Even items in plain view must be suppressed where the evidence was located after the purposes of a protective sweep have been accomplished. United States v. Murphy, 516 F.3d 1117, 1121 (9th Cir. 2008); United States v. Noushfar, 78 F.3d 1442, 1447-48 (9th Cir. 1996). In general, pretextual traffic stops and arrests are permitted, and the subjective intent of the officer is irrelevant. Whren v. United States, 517 U.S. 806 (1996); see also Arkansas v. Sullivan, 532 U.S. 769 (2001) (reaffirming Whren regarding custodial arrest). The Ninth Circuit, with a dissent from Judge Reinhardt, extended Whren to use of a pretextual warrant to enter a home. United States v. Hudson, 100 F.3d 1409 (9th Cir. 1996). COUNTERPOINT In the absence of an equal protection violation, little is probably left of the cases on pretextual traffic stops, even where an objective test finds a purpose for investigating a crime other than the traffic infraction. See United States v. Millan, 36 F.3d 886 (9th Cir. 1994); but see United States v. Huguenin, 154 F.3d 547 (6th Cir. 1998) (police use of pretextual DUI roadblock aimed at drug interdiction unconstitutional). Despite Hudson, there still should be some room under pretext precedent for challenging the timing of the execution of a warrant in order to search a location otherwise protected by the Fourth Amendment. See United States v. Lefkowitz, 285 U.S. 452, 467 (1932); Williams v. United States, 418 F.2d 159, 161 (9th Cir. 1969), affd, 401 U.S. 646 (1971); Taglavore v. United States, 291 F.2d 262, 265 (9th Cir. 1961). The pretextual use of an administrative warrant to arrest an individual in the home may still violate the Fourth Amendment even after Whren. Alexander v. City and County of San Francisco, 29 F.3d 1355, 1360-63 (9th Cir. 1994). 5. Exigent Circumstances The Court has traditionally allowed an exception for warrantless searches based on exigent circumstances under the rationales for warrantless arrests in residences (Payton v. New York, 445 U.S. 573 (1980)), hot pursuit (Warden v. Hayden, 387 U.S. 294 (1967)), imminent fire safety needs in the aftermath of a blaze (compare Michigan v. Tyler, 436 U.S. 499 (1978), with Michigan v. Clifford, 464 U.S. 287 (1984)), or an emergency such as a report of shots fired (see Arizona v. Hicks, 480 U.S. 321, 324-25 (1989)). However, the warrantless search must be strictly circumscribed by the emergency that justified its initiation. Minnesota v. Olson, 495 U.S. 91, 101 (1990); Mincey v. Arizona, 437 U.S. 385 (1978) (rejecting murder scene exception to warrant requirement). COUNTERPOINT The courts have placed a number of restrictions on the exigent circumstances justification for warrantless searches and seizures. a. Preservation of Evidence Justification The premises may be secured while a warrant is obtained. Segura v. United States, 468 U.S. 796, 811 (1984). A warrantless detention of a resident outside a home does not violate the Fourth Amendment when the police have probable cause to believe the home contains evidence of a jailable offense, the seizure is temporary and prevents 35

the resident from entering the home and destroying evidence before a warrant is obtained. Illinois v. McArthur, 531 U.S. 326, 331-36 (2001). The officers subjective motivation is irrelevant to determine whether a warrantless entry based on exigency is justified the sole considerations are whether objective circumstances justify the action. Michigan v. Fisher, 130 S. Ct. 546, 548-49 (2009); Brigham City v. Stuart, 547 U.S. 398, 404-05 (2006)). b. Telephonic warrants The availability of telephonic warrants for a period of time prior to the search severely undercuts a government claim of exigent circumstances. Surveillance of a hotel room for 90 to 120 minutes without seeking a search warrant by telephone required suppression of the products of the ensuing search in United States v. Alvarez, 810 F.2d 879, 881-83 (9th Cir. 1987). Further, the unavailability of the equipment needed for telephonic warrants does not excuse failure to seek such a warrant where the procedure is provided for by law. Alvarez, 810 F.2d at 882-83 n.4. c. Knowledge of suspect Even a suspect who is dangerous and possesses evidence capable of destruction does not justify warrantless entry where the officers lacked reasonable belief that the suspect knew of, or was about to learn of, his imminent capture. United States v. George, 883 F.2d 1407, 1412-15 (9th Cir. 1989). Where officers demanded entrance to an apartment to investigate loud music and marijuana odor, the officers set up a wholly foreseeable risk that the occupant would seek to destroy evidence of the crime, thereby obviating the exigent circumstances exception. United States v. Mowatt, 513 F.3d 395, 402 (4th Cir. 2008). d. Imminence of exigency The Ninth Circuit has established a twoprong test to determine the constitutionality of a warrantless emergency entry: (1) considering the totality of the circumstances, did officers have an objectively reasonable basis for finding an immediate need to protect others or themselves from serious harm? and (2) were the searchs scope and manner reasonable to meet that need? United States v. Snipe, 515 F.3d 947, 951-42 (9th Cir. 2008). The Ninth Circuit has found no sufficient emergency where a landlord informed officers of methamphetamine chemicals presence in hot weather because the chemical had been in the location for over two weeks without incident. United States v. Warner, 843 F.2d 401, 404 (9th Cir. 1988). The products of the warrantless search of a backpack seized at the time of arrest were suppressed because there was no danger that the defendant could have removed the contents, destroyed the contents, or threatened the officers safety. United States v. Robertson, 833 F.2d 777, 785-86 (9th Cir. 1987); but see United States v. Bradley, 644 F.3d 1213, 1261-63 (11th Cir. 2011) (holding that warrantless seizure of businesss servers was justified by exigent circumstance because employees could easily destroy evidence).

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A police officers claim that he was performing a community caretaking function by investigating a potential burglary was insufficient to justify a warrantless search of a private residence, in this case pulling back plastic from a window that exposed a marijuana grow. United States v. Erickson, 991 F.2d 529, 531 (9th Cir. 1993); see also Ray v. Township of Warren, 626 F.3d 170, 177 (3d Cir. 2010) (The community caretaking doctrine cannot be used to justify warrantless searches of a home.). Nonspecific noise from within the house, which was more consistent with someone coming to answer the door than resistance or destruction of evidence, does not establish exigency. United States v. Mendonsa, 989 F.2d 366, 370-71 (9th Cir. 1993). In a drunk-driving case, the need for evidence preservation does not justify a non-consensual blood sample where the arrestee has agreed to take a breath or urine test. Nelson v. City of Irvine, 143 F.3d 1196, 1207 (9th Cir. 1998). Where officers had a week to plan the execution of a search warrant, shooting dogs could not be justified by exigent circumstances. San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 976 (9th Cir. 2005). When police suspected a burglary, the fact that the intruders were known to have a personal relationship with the homeowner lessened the need for immediate action. Frunz v. City of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006). Other circumstances in Frunz also pointed to a complete lack of exigency, including the fact that it took the police forty minutes to respond to the call. Id. Investigation of an ongoing criminal trespass, a fourth degree misdemeanor, did not constitute an exigency that justified a warrantless search of an apartment. United States v. Washington, 573 F.3d 279, 289 (6th Cir. 2009). The possibility that the defendant was manufacturing methamphetamine in his hotel room did not create a danger to the agents and hotel guests that justified the warrantless search of his luggage. United States v. Purcell, 526 F.3d 953, 962 (6th Cir. 2008). There were no exigent circumstances to support a search of the defendants bedroom for a gun when the officers had secured the very cooperative and non-combative defendant and guarded the bedroom entrance. United States v. Simmons, 661 F.3d 151, 157-58 (6th Cir. 2011). A static 911 call, which conveys even less information than a hangup call, cannot justify warrantless entry by police with no substantiating evidence of danger, injury, or foul play. Nor do the messy state of the house, the electronics boxes, and the unlocked balcony door provide any additional support for the intrusion. United States v. Martinez, 643 F.3d 1292, 1296-97 (10th Cir. 2011); but see Johnson v. City of Memphis, 617 F.3d 864, 86970 (6th Cir. 2010), cert. denied, 131 S. Ct. 1478 (2011) (the combination of a 911 hang call, an unanswered return call, and an open door with no response from within the residence is sufficient to satisfy the exigency requirement). e. Pretext The police can create an exigency to justify a warrantless intrusion, as long as the behavior preceding the exigency is reasonable and comports with the Fourth Amendment. Kentucky v. King, 131 S. Ct. 1849, 1858 (2011). [A]t least in most circumstances, the exigent circumstances rule should 37

not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted. Id. at 1858 n.4. The Ninth Circuit viewed Kings refusal to consider officers subjective good faith as implicitly overruling precedent approving knock and talks. United States v. Perea-Rey, 680 F.3d 1179, 1187-89 (9th Cir. 2012). Where a detective had no specific, particularized basis for believing that a crime had been committed, that his safety was threatened, or that evidence was being destroyed when the detective heard movement after the suspect refused to answer the door, the court suppressed evidence finding no exigency existed that allowed the officers to peer through the suspects window into the living room and eventually enter the home. United States v. Fuentes, 800 F. Supp. 2d 1144, 1153-54 (D. Or. 2011). Eighth Circuit found no destruction of evidence exigency when a defendant attempted to shut the motel door upon seeing the police, who claimed to be housekeeping. United States v. Ramirez, 676 F.3d 755, 762 (8th Cir. 2012). f. Probable cause The Ninth Circuit has rejected a government argument that the exigencies of hot pursuit allow entry into a residence upon less than probable cause. United States v. Winsor, 846 F.2d 1569, 1574 (9th Cir. 1988); United States v. Howard, 828 F.2d 552, 554-56 (9th Cir. 1987). The halfhour period during which the police lost sight of the suspect, and during which police received no new information on his whereabouts, broke the continuity of the chase required for hot pursuit. United States v. Johnson, 256 F.3d 895, 90708 (9th Cir. 2001) (en banc). In Welsh v. Wisconsin, 466 U.S. 740, 750 (1984), the Court rejected the argument that a suspected drunk drivers entry into his home justified a warrantless entry, narrowly construing the claim of exigency, especially when the underlying offense for which there is probable cause to arrest is relatively minor. See LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000) (exigency related to misdemeanor will seldom if ever justify warrantless entry into home). The court found no probable cause or exigency to support a defendants arrest in his own back yard after a trespassing complaint. Struckman, 603 F.3d at 743-46. g. Particularized evidence Mere speculation is not sufficient to show exigent circumstances. The government bears a heavy burden to show exigent circumstances based on particularized evidence and specific articulable facts. United States v. Furrow, 229 F.3d 805, 812 (9th Cir. 2000); United States v. Reid, 226 F.3d 1020, 1027-28 (9th Cir. 2000). There must be a reasonable basis, approaching probable cause, to connect the emergency with the place searched. United States v. Deemer, 354 F.3d 1130, 1132-33 (9th Cir. 2004) (911 call traced back to a hotel room did not create sufficient nexus for emergency search of a different room, despite loud noise coming from that room and the officers belief the call did not originate from the room traced).

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6. Automobiles And Other Vehicles The inherent mobility of cars and the layered protections for closed containers within cars has provided the grist for a generation of Supreme Court cases refining the scope of the automobile exception to the warrant requirement. The Court has historically allowed searches of vehicles where there is probable cause to believe the vehicle contains a seizable item. Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925). The vehicle exception includes motor homes in a place not regularly used for residential purposestemporary or otherwise. California v. Carney, 471 U.S. 386, 392 (1985). The automobile exception does not require exigent circumstances. Maryland v. Dyson, 527 U.S. 465, 467 (1999); Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam). COUNTERPOINT Based on language in Coolidge v. New Hampshire, 403 U.S. 443, 458-62 (1971), there may still be a warrant requirement for vehicles parked in private driveways. See also Cardwell v. Lewis, 417 U.S. 583, 593 (1974) (distinguishing Coolidge because that search occurred on private, not public, property). However, in United States v. Hatley, 15 F.3d 856, 858-59 (9th Cir. 1994), the court held that the automobile exception authorized the search of an apparently mobile car located in a residential driveway. See also PinedaMartinez, supra. IRS agents warrantless seizure of an automobile in a private driveway was held to be unlawful in the absence of a warrant in United States v. Main, 598 F.2d 1086, 1092 (7th Cir. 1979). If probable cause exists to search the vehicle, then any container in the vehicle may also be searched for contraband. California v. Acevedo, 500 U.S. 565, 579-80 (1991); United States v. Ross, 456 U.S. 798, 824 (1982); United States v. Johns, 469 U.S. 478 (1985). This includes containers belonging to passengers that are capable of concealing the object of the search. Wyoming v. Houghton, 526 U.S. 295 (1999). COUNTERPOINT The automobile exception did not apply to the search of a defendants vehicle when she returned to a coin shop to pick up payment four days after delivering stolen coins because the connection between crime and car was only speculative. United States v. Perez, 67 F.3d 1371, 137576 (9th Cir. 1995), revd in part on other grounds, 116 F.3d 840 (9th Cir. 1997) (en banc). Closed containers not within the automobile exception should still be subject to the warrant requirement. See United States v. Chadwick, 433 U.S. 1, 11-12 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991). Officers may not search closed containers in the interior of a vehicle stopped for a traffic violation when the driver has been handcuffed and secured in a squad car. United States v. Maddox, 614 F.3d 1046, 1048-50 (9th Cir. 2010). 7. Inventory Beyond examinations during a Terry stop or a search incident to arrest, the government is free to promulgate policies for inventory of the personal possessions of an arrestee and the contents of vehicles without a warrant. South Dakota v. Opperman, 428 U.S. 364 (1976) (car); Illinois v. Lafayette, 462 U.S. 640 (1983) (arrestees pockets and shoulder bag). The regulations must be reasonably related to protection of the individuals property and the 39

states interest in being free from false claims of theft and damage. The scope of such inventories, pursuant to policy, may include closed containers, provided that the inventory is not a pretext to search indiscriminately for incriminating evidence. Florida v. Wells, 495 U.S. 1, 4 (1990); see also Colorado v. Bertine, 479 U.S. 367 (1987). COUNTERPOINT The failure of police to correctly follow state law on inventory searches requires suppression of evidence uncovered during the search. United States v. Ramos-Oseguera, 120 F.3d 1028, 1035-36 (9th Cir. 1997); United States v. Johnson, 936 F.2d 1082, 1084 (9th Cir. 1991); United States v. Wanless, 882 F.2d 1459, 1463-64 (9th Cir. 1987). In United States v. Park, No. 05-375-SI, 2007 WL 1521573, at *11 (N.D. Cal. 2007), the court held that because the government did not prove that a policy allowing searches of cell phones was in place, nor give any reason why such a search would be necessary, the search of defendants cell phones was not valid as an inventory search. The Eighth Circuit refused to validate a search under the inventory exception because the searching officer failed to itemize specific property in the vehicle. United States v. Taylor, 636 F.3d 461, 464 (8th Cir. 2011). Officers may not impound vehicles pursuant to their community caretaking function unless the vehicle jeopardizes the public safety or is at risk of loss. Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005); see also United States v. Cervantes, 678 F.3d 798, 805 (9th Cir. 2012) (holding that the community care-taking doctrine did not justify warrantless search of defendants vehicle because police could not articulate a legitimate caretaking purpose for the search and seizure). After a lawful arrest, police lacked authority to impound and conduct an inventory search of the defendants car, which was lawfully parked on the street two houses away from his residence because doing so did not serve any community caretaking purpose. United States v. Caseres, 533 F.3d 1064, 1074 (9th Cir. 2008). 8. Special Needs And Administrative Searches A dangerously expanding area of warrantless searches falls under the category of special needs and administrative searches. These cases arose from several Warren-era opinions in which warrantless searches by building inspectors were tested under a reasonableness test balancing the need for the search or seizure against the invasion that the search or seizure entails. Camara v. Mun. Court of San Francisco, 387 U.S. 523 (1967); see v. City of Seattle, 387 U.S. 541 (1967). In a series of cases, this administrative exception has expanded to encompass large areas of interaction between government and the individual. Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995); New York v. Burger, 482 U.S. 691 (1987). The Supreme Court utilized this type of balancing test to uphold the warrantless search by a police officer of a probationers apartment based on reasonable suspicion. United States v. Knights, 534 U.S. 112 (2001). The Court further extended Knights in Samson v. California, upholding as constitutional a statute that allowed for suspicionless searches of parolees. 547 U.S. 843, 847 (2006).

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COUNTERPOINT Applying Knights, the Ninth Circuit reversed its prior precedent and held that probationers have greater expectations of privacy than parolees. United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en banc). In a post-Knights decision, the Ninth Circuit held that a search or seizure is not reasonable if the facts that would make the search reasonable, like the suspects parole status and outstanding warrant, are not known to the officers at the time of the search. Moreno v. Baca, 431 F.3d 633 (9th Cir. 2005); see also Fitzgerald v. City of Los Angeles, 485 F. Supp. 2d 1137, 1143 (C.D. Cal. 2007) (holding that officers must have advance knowledge of the parolees status and search condition before a suspicionless search is valid). Officers must have probable cause to administer a drug test on pretrial releasees, even if the individual consented to suspicionless drug tests as a condition of release. United States v. Scott, 450 F.3d 863, 865-72 (9th Cir. 2006). The warrantless search of a parolees acquaintances residence violated the Fourth Amendment when there was reason to believe the parolee still resided at his reported address and there was insufficient evidence to establish that he lived with the acquaintance. United States v. Howard, 447 F.3d 1257, 1267-68 (9th Cir. 2006). The inclusion of dormitories in a search of a horse-racing track exceeded the scope of the regulatory purpose in Anobile v. Pelligrino, 303 F.3d 107 (2d Cir. 2002). In Portillo v. United States Dist. Court, 15 F.3d 819, 822-24 (9th Cir. 1994), the court held that a standing order requiring pre-sentence urine testing violated the Fourth Amendment where the defendants theft offense bore no relation to drug usage. In Way v. County of Ventura, 445 F.3d 1157, 1163 (9th Cir. 2006), the court held that a blanket policy allowing strip searches of individuals detained on any drug charge violated the Fourth Amendment. The court held that any such policy must be reasonably related to a security interest. Id. at 1161; see also Craft v. County of San Bernadino, 468 F. Supp. 2d 1172, 1179 (C.D. Cal. 2006) (holding unconstitutional a blanket policy allowing the strip searches of prearraignment arrestees regardless of the seriousness or type of their alleged crimes). In United States v. Munoz, 701 F.2d 1293, 1298-1300 (9th Cir. 1983), the court rejected the government argument that national forests are sufficiently regulated that the stopping of all vehicles to check for game violations, regardless of the absence of specific suspicion, was justified as an administrative search. In United States v. Bulacan, 156 F.3d 963, 967-74 (9th Cir. 1998), the court suppressed results of a search because the purported administrative search had an impermissible criminal investigative purpose. Administrative search exceptions should be narrowly construed. United States v. Herrera, 444 F.3d 1238, 1246 (10th Cir. 2006) (an officers reasonable mistake that a truck fell within the administrative exception for commercial vehicles did not justify the suspicionless search). For airport security screening for domestic flights, a search is limited to detection of weapons and explosives. United States v. Fofana, 620 F. Supp. 2d 857, 862-63 (S.D. Ohio 2009) (the extent of the search went beyond this scope in opening envelopes for investigative purposes). Seizing and interrogating a child 41

at school without a warrant, a court order, exigent circumstances, or parental consent is unconstitutional and not a special needs search. Greene v. Camreta, 588 F.3d 1011, 1030 (9th Cir. 2009). The special needs cases have expanded the rationale applied in administrative searches to a wider array of suspicionless searches and seizures. For example, suspicionless stops of all vehicles are permitted at police checkpoints to check for sobriety, Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990), citizenship at the border, United States v. Martinez-Fuerte, 428 U.S. 543 (1976), and perhaps valid vehicle licensing, Delaware v. Prouse, 440 U.S. 648 (1979). In Illinois v. Lidster, 540 U.S. 419 (2004), the Supreme Court held that a checkpoint designed to seek information regarding a recent hit-and-run crime did not violate the Fourth Amendment because the purpose of the checkpoint was not to find evidence of crimes committed by the drivers and the scope of the stop was reasonable in context. To qualify as a special need, the program for suspicionless searches or seizures must satisfy a government interest beyond ordinary criminal wrongdoing. City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000). COUNTERPOINT When the primary purpose of the checkpoint is to detect evidence of criminal wrongdoing, the suspicionless stop violates the Fourth Amendment. Edmond, 531 U.S. at 39-40; see also Collins v. Ainsworth, 382 F.3d 529 (5th Cir. 2004) (roadblock used to discourage rock concert violated Fourth Amendment). Interpreting Edmond, the Kentucky Supreme Court found that checkpoints designed to detect noncriminal violations are unconstitutional unless they promote border security or highway safety, holding that a checkpoint set up to catch motorists who failed to comply with a city registration ordinance violated the Fourth Amendment. Singleton v. Commonwealth, 364 S.W.3d 97, 101-02 (Ky. 2012). In Bourgeois v. Peters, 387 F.3d 1303, 1311-16 (11th Cir. 2004), the court held that a citys invocation of September 11 did not justify the use of magnometer (metal detector) searches at a peaceful protest. Where officers place signs along a highway falsely informing drivers that they are approaching a drug checkpoint further down the highway, but then actually set up the checkpoint on the highways next exit, the mere fact that a vehicle with out-of-state license plates exited the highway after seeing the ruse drug checkpoint did not create individualized reasonable suspicion to stop the vehicle. United States v. Yousif, 308 F.3d 820, 827 (8th Cir. 2002) (reasonable suspicion cannot be manufactured by the police themselves). A drivers utilization of a rural exit off of the interstate after signs warning of a narcotics checkpoint did not alone provide sufficient reasonable suspicion for a Terry stop. United States v. Neff, 681 F.3d 1134, 1141-43 (10th Cir. 2012). The driver performing a u-turn and giving the trooper a stunned look after exiting did not provide sufficient additional factors to provide a particularized and objective basis for wrongdoing to justify a Terry stop. Id. 9. Border Searches A search may be conducted of all persons and property entering the country without individualized suspicion. United States v. Montoya de Hernandez, 42

473 U.S. 531 (1985). In United States v. Ramsey, 431 U.S. 606 (1977), the Court held that the opening of international packages at the port of entry fell within the border search exception. Therefore, no probable cause or warrant was necessary when a customs official opened suspicious-looking packages from Thailand. Similarly, the search of a package from Canada that had been stored at a local post office for nine days was justified as an extended border search because the ICE agents had reasonable suspicion that the package contained contraband. United States v. Sahanaja, 430 F.3d 1049, 1054 (9th Cir. 2005). The Court has also held that border patrol officials may stop ships on the open sea for documents inspection without articulable suspicion. United States v. Villamonte-Marquez, 462 U.S. 579, 588-89 (1983). Border patrol agents do not need reasonable suspicion to conduct any search of vehicles at the border so long as (1) the search does not seriously damage the vehicle in a way that reduces its safety or functionality and (2) the search is not carried out in an offensive manner. United States v. Flores-Montano, 541 U.S. 149 (2004) (fuel tank disassembly); United States v. Hernandez, 424 F.3d 1056 (9th Cir. 2005) (removal of door panels); United States v. Chaudhry, 424 F.3d 1051 (9th Cir. 2005) (drilling into bed of truck); United States v. Cortez-Rocha, 394 F.3d 1115 (9th Cir. 2005) (slashing spare tire); United States v. Camacho, 368 F.3d 1182 (9th Cir. 2004) (x-ray search of tire). Reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage device at the border. United States v. Arnold, 523 F.3d 941, 946 (9th Cir. 2008). COUNTERPOINT The Ninth Circuit is revisiting en banc searches of the contents of computers at the border. United States v. Cotterman, 673 F.3d 1068, 1070 (9th Cir. 2011) (holding that suspicionless search of laptop miles away from border and days after border crossing was valid), rehg granted, 673 F.3d 1206 (9th Cir. 2012). In Almeida-Sanchez v. United States, 413 U.S. 266 (1973), the Court limited the warrantless border search to the immediate vicinity of the border or the functional equivalent thereof. See also United States v. Valdes-Vega, 685 F.3d 1138, 1144-45 (9th Cir. 2012). COUNTERPOINT Border officials on roving patrols must have a reasonable suspicion before stopping a motor vehicle. United States v. BrignoniPonce, 422 U.S. 873 (1975); Nicacio v. United States, 797 F.2d 700, 702 (9th Cir. 1985). In United States v. Whiting, 781 F.2d 692, 696-98 (9th Cir. 1986), the court refused to apply the border search exception where the search was undertaken by a Department of Commerce agent who did not have the same statutory authorization as INS and Customs agents. Border searches that are particularly invasive of personal privacy, such as strip searches and x-ray searches, or that impair the vehicles safe operation, may require reasonable suspicion. See Flores-Montano, 541 U.S. at 152; Montoya de Hernandez, 473 U.S. at 541; United States v. Rivas, 157 F.3d 364, 367 (5th Cir. 1998) (drilling into the frame of a vehicle requires reasonable suspicion); Cortez-Rocha, 394 F.3d at 1119-20 (distinguishing a search that causes property damage and thus does not require reasonable suspicion with a search that decreases the safety or operation of the vehicle). 43

The inspection of Federal Express packages destined overseas may constitute an extended border search, requiring reasonable suspicion, where conducted far from an international border. United States v. Cardona, 769 F.2d 625, 628-29 (9th Cir. 1985). A statute that authorized customs officials to conduct warrantless searches of private lands but not dwellings within a certain radius of the border did not permit searches of the curtilage. United States v. Romero-Bustamente, 337 F.3d 1104, 1107-10 (9th Cir. 2003). Searches of private living quarters in a ship cabin at the functional equivalent of a border must be supported by reasonable suspicion of criminal activity. United States v. Whitted, 541 F.3d 480, 488-89 (3d Cir. 2008). H. Fruit Of The Poisonous Tree

The basic rule of Wong Sun v. United States, 371 U.S. 471 (1963), is that evidence seized as a result of a Fourth Amendment violation and evidence derived therefrom is inadmissible in criminal trials. The contraction of Fourth Amendment rights in recent years is paralleled by the expansion of exceptions and limitations to the fruit of the poisonous tree doctrine. 1. Independent Source Rule In Murray v. United States, 487 U.S. 533 (1988), the Court elaborated on the independent source rule, which allows evidence to be used that was the product of an unlawful intrusion as long as a separate and distinct evidentiary trail led to the same place. In Murray, agents unlawfully entered a warehouse and saw bales of marijuana. Without seizing anything, the officers drafted a warrant affidavit referring only to information in their possession prior to the entry; all reference to the illegal search was omitted. The Court approved the procedure for establishing an independent basis for the seizure of the marijuana. The independent source rule has been applied to cell phone records. United States v. Moody, 664 F.3d 164, 168 (7th Cir. 2011) (subpoena of defendants cell phone records was independent of and untainted by invalid search two years prior). COUNTERPOINT However, the Court remanded the case for a determination whether the agents decision to seek a warrant was a product of the illegal entry and search. Murray, 487 U.S. at 542-44; accord United States v. Hill, 55 F.3d 479, 481 (9th Cir. 1995). When a warrant has been tainted by an illegal search, the government must prove both that the decision to seek the warrant was not prompted by the unlawfully viewed evidence, and that probable cause existed in the absence of the tainted evidence. United States v. DuranOrozco, 192 F.3d 1277, 1281 (9th Cir. 1999). The independent source doctrine did not render admissible weapons and drugs seized in a warranted search of an apartment that followed an illegal warrantless entry into the same apartment. United States v. Mowatt, 513 F.3d 395, 404-05 (4th Cir. 2008). The independent source doctrine did not apply in case involving an initial unlawful seizure of a briefcase that served as the only link to a subsequent purportedly lawful search of the briefcases contents. Wilder v. State, 717 S.E.2d 457, 460 (Ga. 2011). 44

2. Inevitable Discovery In Nix v. Williams, 467 U.S. 431 (1984), the Court revisited the Christian burial speech case in which the Court earlier found that a confession leading to the discovery of a murder victims body violated the Sixth Amendment. On remand, the state established that, with the massive search ongoing at the time of the confession, the body would have been found in a short time anyway. In Nix, the Court approved the hypothetical inevitable discovery doctrine, allowing the evidence where the government established that the illegally obtained evidence would have been discovered through legitimate means independent of official misconduct. COUNTERPOINT In United States v. Echegoyen, 799 F.2d 1271, 1280 n.7 (9th Cir. 1986), the court rejected a government claim that, if the illegal search had not occurred, a warrant would have been sought and obtained. The court stated that the means by which the hypothetical inevitable discovery would have occurred must parallel, not follow, the primary illegality. See also United States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997); United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399-1400 (9th Cir. 1989); United States v. Maxwell, 734 F. Supp. 280, 282-83 (S.D. Tex. 1990); but see United States v. Boatwright, 822 F.2d 862, 864-65 (9th Cir. 1987). In both United States v. Mejia, 69 F.3d 309, 319-20 (9th Cir. 1995), and United States v. Reilly, 224 F.3d 986, 994 (9th Cir. 2000), the court rejected the governments argument that the inevitable discovery doctrine applied where the police had probable cause to search but simply failed to obtain a warrant. The court rejected speculative application of the inevitable discovery rule in United States v. Lopez-Soto, 205 F.3d 1101 (9th Cir. 2000), when the government offered no evidence of the procedures that would have been followed had the illegal car stop not occurred. See also United States v. Davis, 332 F.3d 1163, 1170 (9th Cir. 2003) (no inevitable discovery where police were only looking for defendant and could not establish that the firearm would inevitably have been found.). In United States v. Johnson, 380 F.3d 1013 (7th Cir. 2004), the court held that neither the inevitable discovery nor the independent source exception may be premised on the violation of anothers constitutional rights. In United States v. Young, 573 F.3d 711, 722-23 (9th Cir. 2009), inevitable discovery did not apply because a hotel policy could have allowed over-staying guest to store the seized firearm or take his belongings with him and vacate the room. 3. Attenuation In Brown v. Illinois, 422 U.S. 590, 604-05 (1975), the Court set out factors to be examined in determining whether a Mirandized statement obtained after an illegal arrest must be suppressed. In finding that the statement must be suppressed, the Court weighed three factors: 1) temporal proximity of the illegal conduct and the later statement; 2) the existence of intervening circumstances; and 3) the flagrancy of the initial misconduct. Brown, 422 U.S. at 603-04; accord Kaupp v. Texas, 538 U.S. 626, 632-33 (2003); see also United States v. Davis, 332 F.3d 1163, 1170 (9th Cir. 2003) (no attenuation between illegal search and later non-custodial statements).

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This methodology applies to the Fourth Amendment as well. United States v. Patzer, 277 F.3d 1080, 1084-85 (9th Cir. 2002); United States v. Ricardo D., 912 F.2d 337, 342-43 (9th Cir. 1990); United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1299-1300 (9th Cir. 1988); United States v. Perez-Esparza, 609 F.2d 1284, 1290-91 (9th Cir. 1979); see also United States v. Gaines, 668 F.3d 170, 173 (4th Cir. 2012) (citing the Brown factors for determining attenuation after an illegal search); United States v. Camacho, 661 F.3d. 718, 729 (1st Cir. 2011) (same); United States v. Beauchamp, 659 F.3d 560, 573-75 (6th Cir. 2011) (applying the Brown factors). For example, the discovery of an arrest warrant for the victim of an illegal search is a relevant intervening factor that purges much of the taint. United States v. Faulkner, 636 F.3d 1009, 101516 (2011). The defendants consent to a search of his apartment was sufficiently attenuated from an invalid entry into his fathers home two hours earlier given intervening facts, including Miranda warnings. United States v. Conrad, 673 F.3d 728, 733-37 (7th Cir. 2012). In United States v. Fofana, 666 F.3d 685, 990-91 (6th Cir. 2012), the Sixth Circuit found sufficient attenuation between an illegal airport seizure and an unrelated fraud investigation since the evidence merely narrowed or quickened the investigation. COUNTERPOINT The Sixth and Tenth Circuits do not treat discovery of an arrest warrant as a dispositive factor that purges the taint, instead treating an arrest warrant as only one relevant factor. United States v. Lopez, 443 F.3d 1280, 1286 (10th Cir. 2006); United States v. Gross, 662 F.3d 393, 404 (6th Cir. 2011); see also State v. Hummons, 253 P.3d 275, 278 (Ariz. 2011) (holding discovery of arrest warrant is of minimal importance in attenuating the taint from an illegal detention). However, a Miranda violation does not require suppression of resulting physical evidence under the exclusionary rules. United States v. Patane, 542 U.S. 630 (2004). A warrantless arrest in the home, with probable cause and without exigent circumstances, did not require suppression of the subsequent confession in New York v. Harris, 495 U.S. 14, 21 (1990); accord United States v. Crawford, 372 F.3d 1048 (9th Cir. 2004) (en banc) (illegal seizure in home and illegal search of home did not require suppression of later confession). COUNTERPOINT In United States v. Villa-Gonzalez, 623 F.3d 526, 535 (8th Cir. 2010), the court rejected a Patane analysis in favor of a Wong Sun analysis, suppressing physical evidence seized during the search because the defendants seizure violated the Fourth Amendment. In determining whether a statement must be suppressed following an illegal search, the government has the burden of showing the statements were a product of free will. Brown v. Illinois, 422 U.S. 590, 604 (1975). Consent obtained after an illegal arrest is invalid, even after Miranda warnings, in the absence of evidence breaking the chain of causation. Kaupp, 538 U.S. at 633; United States v. Lopez-Arias, 344 F.3d 623, 629-30 (6th Cir. 2003); United States v. Washington, 387 F.3d 1060, 1072-77 (9th Cir. 2004) (finding insufficient attenuation based on temporal proximity, lack of intervening circumstances, and flagrancy of misconduct). An illegal seizure without an arrest also weighs toward suppression. United States v. Washington, 490 F.3d 765, 777 (9th Cir. 2007). In United States v. Freeman, No. 08-289-146

JO, 2009 WL 2046039, at *3 (D. Or. 2009), the court found the nineteen month interval between an unlawful search and seizure and a later arrest was insufficient to dissipate the taint of the original unlawful conduct. 4. Witness Testimony Causation is more difficult to establish where the product of the illegal search is witness testimony. Because witnesses might independently come forward regardless of the primary illegality, the witnesss testimony is only excluded if there is a close and direct link between the illegality and the witness testimony. United States v. Ceccolini, 435 U.S. 268 (1978). COUNTERPOINT In United States v. Padilla, 960 F.2d 854, 862-63 (9th Cir. 1992), revd on other grounds, 508 U.S. 77 (1993), the court held that all evidence based on an illegal stop of a drug courier was tainted by the stop and subject to suppression, including live witnesses who were induced to testify through cooperation agreements. See also United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396-99 (9th Cir. 1989). In United States v. Crews, 445 U.S. 463, 471-72 (1980), the Court held that in-court identification testimony need not be suppressed where a pretrial identification procedure was the product of an illegal arrest. COUNTERPOINT Testimony describing the defendant at the time of arrest should be suppressed if it is the fruit of an illegal arrest. See United States v. Terry, 760 F.2d 939, 943 (9th Cir. 1985). 5. Impeachment A testifying defendant can be impeached with the products of an illegal search or seizure if he or she testifies on direct examination in a manner that is contradicted by the tainted evidence. Walder v. United States, 347 U.S. 62 (1954). In United States v. Havens, 446 U.S. 620 (1980), the Court expanded allowable impeachment of the defendant with the product of an illegal search and seizure to statements elicited in crossexamination plainly within the scope of the direct. However, the Court limited the impeachment exception to the exclusionary rule by reversing a case in which a defense witness, rather than the defendant, provided the inconsistent testimony. James v. Illinois, 493 U.S. 307 (1990). 6. Nature Of Illegal Intrusion The exclusionary rule is generally considered a remedy for violations of the Fourth Amendment rather than non-constitutional protections. In United States v. Caceres, 440 U.S. 741 (1979), conversations recorded in violation of IRS regulations were held to be admissible at trial. However, violation of statutes, such as the limitations on the use of wiretaps under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. 2210-2225), may require suppression. See United States v. Gonzalez, Inc., 412 F.3d 1102 (9th Cir. 2005) (suppressing wiretap evidence under Title III because agents failed to provide a full and complete statement that traditional investigative techniques had failed or that they were unlikely to succeed or dangerous). United States v. Eide, 875 F.2d 1429, 143447

37 (9th Cir. 1989) (Veterans Administration drug records should have been suppressed because of applicable confidentiality statute). 7. Type Of Proceeding In addition to criminal trials, the exclusionary rule applies to civil forfeiture proceedings. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965). However, the Supreme Court has allowed the use of illegally seized evidence in non-criminal contexts such as civil tax cases (United States v. Janis, 428 U.S. 433 (1976)), civil deportation hearings (INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)), and grand juries (United States v. Calandra, 414 U.S. 338 (1974)). The federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees Fourth Amendment rights. Pa. Board of Probation and Parole v. Scott, 524 U.S. 357 (1998). COUNTERPOINT Under some circumstances, the exclusionary rule may apply to sentencing proceedings. See United States v. Perez, 67 F.3d 1371, 1376 (9th Cir. 1995); United States v. Kidd, 734 F.2d 409, 414 (9th Cir. 1984); Verdugo v. United States, 402 F.2d 599, 612-13 (9th Cir. 1968); but see United States v. Lynch, 934 F.2d 1226, 1234-37 (11th Cir. 1991); United States v. McCrory, 930 F.2d 63, 67-69 (D.C. Cir. 1991); United States v. Torres, 926 F.2d 321, 322-25 (3d Cir. 1991). Where the Fourth Amendment violation is egregious, due process requires suppression of evidence even in civil and administrative proceedings. Orhorhaghe v. INS, 38 F.3d 488, 501-04 (9th Cir. 1994); GonzalezRivera v. INS, 22 F.3d 1441, 1448-52 (9th Cir. 1994). The good faith exception does not apply to motions for return of property under Rule 41(e). J.B. Manning Corp. v. United States, 86 F.3d 926, 927-28 (9th Cir. 1996). The admissibility of identity information in criminal cases, especially in immigration prosecutions under 8 U.S.C. 1326, is the subject of a major conflict in the Circuits and within the Ninth Circuit. See United States v. OrtizHernandez, 427 F.3d 567, 576-77 (9th Cir. 2005), petition for panel rehg and rehg en banc denied, 441 F.3d 1061 (9th Cir. 2006) (Paez, J., and eight other judges dissenting from denial of rehearing); United States v. Garcia-Beltran, 443 F.3d 1126, 1135 (9th Cir. 2006). * * *

This outline has been periodically updated by Oregon Federal Public Defender law clerks from Lewis and Clark Law School, most recently Jenevieve Mandell and Mark Kimbrell.

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