MA: Dog sniff of car that ran out of gas was based on RS; it also was not “stopped”

Dog sniff by consent of the defendant’s car after he was encountered by the officer when he’d run out of gas was valid. The defendant was not stopped in a constitutional sense when the officer stopped to check on whether he needed aid. Questioning led to reasonable suspicion. Commonwealth v. Mateo-German, 453 Mass. 838 (May 21, 2009).

During a knock and talk for a runaway girl, defendant consented to an entry into his apartment but not its search. No reason was articulated, or could be, for officer safety to justify a protective sweep. There were no exigent circumstances shown. Valtierra v. State, 2009 Tex. App. LEXIS 3634 (Tex. App.–San Antonio May 27, 2009):

Here, the evidence presented the following facts. Officer Moncada learned that a thirteen-year-old female runaway was living in an apartment in Boerne, Texas. Recalling that he had seen a young female named Erica at that apartment, Officer Moncada, along with Officer Rutledge, decided to go to the apartment to perform a “knock and talk.” Both officers testified that they did not have any concerns necessitating the procurement of a warrant, and Officer Moncada further testified that he did not believe Erica was in danger based on his earlier visit at the apartment. Over an hour after receiving the information, the officers arrived to the apartment, where both officers received permission to enter the apartment. Accordingly, prior to their entry into the apartment, it is undisputed that exigent circumstances were not present.

Because the officers did not perceive the need for a warrant or the existence of exigent circumstances prior to their entry into the apartment, our inquiry in terms of exigent circumstances is confined to the time period between the officers’ entry into the apartment and Officer Moncada’s movement down the hallway. Thus, any additional facts raising a question of exigent circumstances must have been observed during the short time span of two minutes. Here, the additional facts include the following set of facts. Officer Moncada was told by Heriberto that Erica was in the shower. Officer Moncada testified that he did not hear the shower running. Heriberto called out for Erica twice and told Officer Moncada that she would come out in a minute. Abilino Ortiz walked out of the west bedroom and respectfully complied with Officer Moncada’s instruction to sit in the living room. Under an objective standard, these facts coupled with the fact that Officer Moncada never testified that Erica was in any danger do not support the trial court’s conclusion of law that the officers could proceed down the hallway under exigent circumstances. See Parker, 206 S.W.3d at 600. The lack of the sound of running water and Erica’s failure to respond from the bathroom within a short time span cannot, absent further evidence, support the conclusion that Erica was in danger under an objective standard. See Parker, 206 S.W.3d at 600. Accordingly, the State did not meet its burden in providing evidence that would lead an officer to reasonably conclude exigent circumstances were present.