TN: One arriving before the search began is not a “transient visitor”

Defendant who arrived at the house before the search began and during surveillance was not a “transient visitor” under the state definition, which is arriving during the search. Because he was there when the search started, he was subject to being searched. State v. Dean, 2011 Tenn. Crim. App. LEXIS 930 (December 21, 2011).

Under the totality of circumstances, the government showed probable cause for the arrest of the defendant, so his search incident was valid. Because the district judge ignored authority on point, he is disqualified on remand. United States v. Steppello, 664 F.3d 359 (2d Cir. 2011)*:

The government brought our decision in Gagnon to the district judge’s attention in its motion for reconsideration, but the district judge denied the motion without comment. When circumstances “might reasonably cause an objective observer to question [the judge’s] impartiality,” we have the power to remand the case to a different judge. Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 21 (2d Cir. 1996) (alteration in original) (internal quotation marks omitted); see also United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc). We believe that is warranted here. Accordingly, we order that, upon remand to the district court, this case be transferred to a different judge.