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There was a reasonable certainty that the defendant just crossed the border for the extended border search doctrine where he was seen near the border after having literally been seen on the Mexican side of the border shortly before that. “Proof of the border crossing beyond a reasonable doubt, however, is not the applicable standard. Guzman-Padilla, 573 F.3d at 880.” United States v. Nelson, 2012 U.S. Dist. LEXIS 32249 (D. Ariz. March 12, 2012), R&R 2011 U.S. Dist. LEXIS 154016 (D. Ariz. December 2, 2011).*

Based on the totality of defendant’s nervousness, lack of current logbook, inability to show where he was going on a map compared to where he said he came from and more all added up to reasonable suspicion. United States v. Fraguela-Casanova, 2012 U.S. Dist. LEXIS 32172 (M.D. Pa. March 12, 2012).*

Defendant failed to show false information was included in the affidavit for the search warrant under Franks. United States v. Kearse, 2012 U.S. Dist. LEXIS 32576 (E.D. Tenn. February 21, 2012).*

Just because a motorist is stopped with flashing lights, frisked, and put in a police car, that does not make it a “custodial interrogation” for Miranda purposes under Berkemer. United States v. Hernandez-Rodriguez, 2012 U.S. Dist. LEXIS 31918 (M.D. N.C. March 7, 2012):

When police question a suspect outside of a police station environment, however, “Miranda is not triggered simply because a person detained by the police has reasonable cause to believe that he is not free to leave.” United States v. Streifel, 781 F.2d 953, 961 (1st Cir. 1986); United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995) (“[T]he perception ... that one is not free to leave is insufficient to convert a Terry stop into an arrest.” (second alteration in original) (quoting United States v. Moore, 817 F.2d 1105, 1108 (4th Cir. 1987))). The “free to leave” standard, without more, determines whether an individual is “seized” within the meaning of the Fourth Amendment such that any evidence uncovered during a search conducted without a reasonable suspicion that criminal activity was afoot must be excluded. United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002) (“[A] ‘seizure’ warranting protection of the Fourth Amendment occurs when ... a reasonable person would not feel free to leave or otherwise terminate the encounter.”).

The fact that a person has been seized within the meaning of the Fourth Amendment, therefore, does not necessarily mean that he is “in custody” within the meaning of the Fifth Amendment. United States v. Collins, 972 F.2d 1385, 1405 (5th Cir. 1992) (“[A]lthough a temporary Fourth Amendment seizure may have occurred . . ., a Fifth Amendment custodial situation did not.”). Instead, the court must consider a “host of factors” in deciding whether the suspect’s freedom of action has been curtailed to “a degree associated with formal arrest.” Streifel, 781 F.2d at 961 (citation omitted). Those factors include the location of the questioning, the number of officers present, the degree of physical restraint exercised over the defendant, and the duration and character of the interrogation. United States v. Teemer, 394 F.3d 59, 66 (1st Cir. 2005).

Applying these factors in the context of a traffic stop, the Supreme Court in Berkemer v. McCarty, 468 U.S. 420 (1984), held that an individual subject to a routine traffic stop is not entitled to Miranda warnings prior to police questioning. According to the Court, routine traffic stops are “presumptively temporary and brief,” in contrast to station-house interrogations which can extend indefinitely. Id. at 437-38. In addition, the public nature of most traffic stops, coupled with the small number of police officers typically involved, indicate that “the atmosphere surrounding an ordinary traffic stop is substantially less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.” Id. at 438-39.

Here, Hernandez-Rodriguez’s vehicle was stopped for a clear traffic violation, and there is no indication that the trooper’s questions or the atmosphere of the encounter were coercive. ...

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Donald A. Dripps, Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment, 81 Miss. L. J. 133 (2011). SSRN Abstract:

Granting for purposes of argument the general theoretical case for interpreting constitutional text according to some version of the original understanding, this contribution to the University of Mississippi's 2011 Fourth Amendment symposium argues that consulting founding-era practices at the particular level is not a faithful approach to the original understanding. I develop two lines of objection to specific-practices originalism (SPO). I call one the contextual critique and the second the dynamism critique.

The constitutional text was situated in the context of eighteenth-century institutions and doctrines that disappeared in the nineteenth century. The utter disappearance of the context means that we just don’t know what the founders expected the Fourth Amendment to prohibit, or permit, in a radically different legal and technological environment. The degree of privacy and liberty in 1791 were a product of the contemporary criminal justice system, the economic and technological social circumstances, and the legal regime that limited search-and-arrest powers. The rules of 1791 would have different consequences for liberty and security in a society like today’s, with full-time proactive police and modern technology.

The dynamism critique points out that the 1791 rules of search-and-seizure were not static. Tort law was the legal regime regulating search-and-arrest powers. Illegal detention gave rise to actions for false arrest or false imprisonment. Illegal entries of private premises gave rise to trespass suits. But common law can change. Precedents can be overruled, and new factual contexts require debatable applications of old principles. Most dramatically, common law rules can be trumped by statutes.

If the reasonableness clause perpetuates all the specific 1791 tort rules, the force of the contextual critique becomes overwhelming. If, however, the clause incorporates common law rules subject to plenary statutory revision, the constitutional provision is nugatory. Either the Fourth Amendment freezes search-and-seizure law in the form it had before the advent of modern police and modern technology, or it permits any search or arrest authorized by statute. Some search for principled middle ground seems in order. The interpretive mode most faithful to the original understanding is “aspirational balance of advantage originalism,” a mode practically very similar indeed to competing approaches such as common-law constitutionalism or legal process theory.