While defendant has standing to challenge the stop of the vehicle, he doesn’t have standing as a passenger to object to the driver’s consent. Neither party briefed this issue, but it’s apparent. Also, defendant’s argument on appeal was something not even raised in the trial court. Plain error doesn’t work that way. State v. Mock, 2013 Ohio 874, 2013 Ohio App. LEXIS 768 (11th Dist. March 11, 2013).*

The trial court erred in finding no cause for defendant’s stop. She was driving on the wrong side of the road. State v. Zeth, 320 Ga. App. 140, 739 S.E.2d 443 (2013).*

Pre-Jones GPS use is valid under the Davis good faith exception. Also, defendant lacked standing to challenge putting GPS on a car long before he borrowed it. State v. Rich, 2013 Ohio 857, 2013 Ohio App. LEXIS 754 (12th March 11, 2013).*

Defendant argued he was too intoxicated to consent to a BAC for DWI or to confess. The court disagrees as to both. State v. Holden, 2013 Tenn. Crim. App. LEXIS 204 (March 8, 2013).* So, why isn’t that harmless error, then, if he was that drunk?

There is no valid state justification for taking a DNA sample from a juvenile before adjudication and putting it in CODIS. If taken for a serious crime, it can’t be tested until after adjudication as a delinquent. Mario W. v. Kaipio, 230 Ariz. 122, 281 P.3d 476 (2012), rev’g 228 Ariz. 207, 265 P.3d 389 (App. 2011):

¶15 No Arizona or United States Supreme Court case, however, addresses the constitutionality of suspicionless pre-conviction DNA testing. The case law elsewhere is sharply divided. Maryland’s highest court recently found that DNA profiling of arrestees violated the Fourth Amendment. King v. State, 42 A.3d 549, 580 (Md. 2012). Other courts have also so held, distinguishing the post-conviction cases because arrestees have a higher expectation of privacy than convicted felons. See, e.g., Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir. 2009); In re Welfare of C.T.L., 722 N.W.2d 484, 492 (Minn. Ct. App. 2006).

¶16 Several other courts, however, have found DNA profiling of arrestees reasonable under the Fourth Amendment. See, e.g., Haskell, 669 F.3d at 1065 (2-1 decision); United States v. Mitchell, 652 F.3d 387, 416 (3d Cir. 2011) (en banc) (8-6 decision); United States v. Pool, 621 F.3d 1213, 1226 (9th Cir. 2010), reh’g en banc granted, 646 F.3d 659 (9th Cir.), and vacated, 659 F.3d 761 (9th Cir. 2011); Anderson v. Commonwealth, 650 S.E.2d 702, 705-06 (Va. 2007). These courts have found that the government’s interests in identifying arrestees and solving crimes outweigh an arrestee’s diminished expectations of privacy.

¶17 Most courts considering the constitutionality of DNA sampling and profiling have employed the totality of the circumstances test. See Mitchell, 652 F.3d at 403 (“We and the majority of circuits — the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and District of Columbia — have endorsed a totality of the circumstances approach.”). But see Amerson, 483 F.3d at 78 (applying “special needs test”); Green v. Berge, 354 F.3d 675, 677-78 (7th Cir. 2004) (same). The parties do not dispute the applicability of the totality of the circumstances test, and we therefore analyze the Arizona scheme under that rubric.

. . .

¶32 Thus, we find no state interest sufficient to justify the serious intrusion on the privacy interests of the Juveniles occasioned by the second search — the extraction of the DNA profile from the buccal swab before adjudication or failure to appear. The swab remains available for processing thereafter, and no exigency exists warranting an earlier suspicionless search.

There was reasonable suspicion for plaintiff’s detention, so the officer had a defense, and at least qualified immunity, to any § 1983 suit against him for the allegedly overlong stop. Arencibia v. Barta, 498 Fed. Appx. 773 (10th Cir. 2012)*:

Reasonable suspicion is based on the “totality of the circumstances.” United States v. Arvizu, 534 U.S. 266, 273 (2002). We do not evaluate factors, such as the “red flags” identified by Deputy Trammel, in a vacuum. Instead, we look at them as a whole, combined with the officer’s experience and training, to determine if he had a “particularized and objective basis” for suspecting illegal activity. Id. at 273. For example, in Bradford, we held that an officer had reasonable suspicion to detain a driver based on a set of factors, any one of which could have had an innocuous connotation: the presence of a cellular phone, luggage, and food wrappers; the driver’s nervousness; inconsistencies and improbabilities in the driver’s answers; and the driver’s one-way car rental. 423 F.3d at 1157.

Deputy Trammel identified multiple bases for his suspicion, which he told to Sergeant Metz before continuing his detention of Mr. Arencibia. These “red flags” included Mr. Arencibia’s excessive nervousness, see United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007); United States v. Williams, 271 F.3d 1262, 1269 (10th Cir. 2001); the ghosting on the trailer; Mr. Arencibia’s decisions to haul a locked, empty trailer attached to a truck with known mechanical problems across the country; unusual circumstances surrounding the purchase of the truck; the EPIC report on Mr. Arencibia’s prior drug involvement, see United States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994) (noting that prior criminal activity can give rise to reasonable suspicion if combined with other factors); and inconsistencies in the logbook, bill of lading, and weigh station tickets, see, e.g., United States v. Soto, 988 F.2d 1548, 1555-56 (10th Cir. 1993); United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990)). While any one of these “red flags,” if evaluated on its own, might not give rise to reasonable suspicion, the confluence of so many factors could give rise to suspicion that is “particularized and objective.” Arvizu, 534 U.S. at 273 (explaining that the combination of multiple, seemingly harmless, factors could create reasonable suspicion).

Having identified multiple factors pointing to reasonable suspicion, Deputy Trammel could not have been on notice that he was violating a clearly established constitutional right. …

The search warrant for defendant’s car was at least relied on in good faith, so the court does not have to decide the question of whether probable cause even exists (n.2). United States v. Gutierrez, 498 Fed. Appx. 786 (10th Cir. 2012).* [So much for development of the law. You already know how I feel about leaving PC undecided–it makes all the following similar searches valid without PC too.]

Defendant said he was the sergeant-at-arms of a motorcycle club, and that gave officers reasonable suspicion for a pat down for weapons, which were found. United States v. Durham, 491 Fed. Appx. 169 (11th Cir. 2012).

A gun abandoned in a drainage ditch in flight is not illegally seized because abandonment shows no standing. Fisher v. State, 317 Ga. App. 761, 732 S.E.2d 821 (2012).*

Co-tenant consented to entry that led to defendant’s arrest. Kleckner v. State, 109 So. 3d 1072 (Miss. App. 2012).*

Bean bag shooting as excessive force was fact dependent, so no qualified immunity. Smith v. Smith, 477 Fed. Appx. 240 (5th Cir. 2012).*

Seizure of cash after detention for suspicious conduct in a casino and finding a Texas parole warrant on defendant was supported by probable cause. Adams v. State, 967 N.E.2d 568 (Ind. App. 2012).*

Defendant abandoned a gun in flight from police where he crashed his moped, threw the gun so far it hit a house, then fled on foot. He claimed an illegal arrest was in the offing, but he can’t flee and claim his abandonment was caused by the police. Hines v. State, 2013 Ind. App. LEXIS 17 (January 18, 2013).*

Officers had reasonable suspicion to stop defendant at 3:00 am in New Orleans who was bleeding from his arm and carrying a toolbox with broken glass on it. The area was known for car burglaries. In his hand was a wallet, and he couldn’t say whose it was. He was put in a police car, unhandcuffed, and transported three blocks to the address in the wallet, and there was a pickup with a window knocked out. The stop and removing him to the address in the wallet in his hand was reasonable. State v. Foster, 2012 La. App. LEXIS 1749 (La.App. 4 Cir. January 16, 2012).*

Defendant was sitting in front of a convenience store and police pulled up to talk to him, and he spontaneously and voluntarily confessed. State v. King, 109 So. 3d 941 (La. App. 4 Cir. 2013).*

“[W]e conclude that fidgeting alone is insufficient to justify a Terry search for weapons.” Reynolds v. Commonwealth, 393 S.W.3d 607 (Ky. App. 2012).

Defendant’s reckless driving and conduct in an effort to flee from the police was a separate crime, completely separate from the alleged illegality of the stop. People v. May, 2012 NY Slip Op 07472, 2012 N.Y. App. Div. LEXIS 7371 (4th Dept. November 9, 2012):

It is well established that “[a] person who is stopped or detained illegally is not immunized from prosecution for crimes committed during his [or her] detention period” (United States v Garcia-Jordan, 860 F2d 159, 160; see Rogers, 52 NY2d at 531-532). Here, inasmuch as defendant’s response to the police approach was “unjustified and criminal in nature … and unrelated to the initial [allegedly] unlawful action on the part of the police,” suppression of the subsequently-acquired evidence was not required (People v Townes, 41 NY2d 97, 102; People v Ellis, 4 AD3d 877, 878, lv denied 3 NY3d 639, reconsideration denied 3 NY3d 673; cf. People v Felton, 78 NY2d 1063, 1065).

Defendant was not entitled to be Mirandized before consent to search his person was sought during a traffic stop. State v. Thomas, 109 So. 3d 814 (Fla. 5th DCA 2013).*

Defendant was detained for consuming alcohol in public. His admission he was armed justified a patfrisk for the gun because the officers were unfamiliar with him and whether he would do something unpredictable. Commonwealth v. Jones, 83 Mass. App. Ct. 296, 983 N.E.2d 253 (2013).

The government’s affidavit that they had information defendant was a felon in possession on supervision justified the search of his house for the gun. Defendant doesn’t even get a hearing; motion to suppress denied. United States v. Patterson, 2013 U.S. Dist. LEXIS 21203 (S.D. N.Y. February 14, 2013).*

Defendant’s car was parked “oddly” and an officer stopped to probably issue a parking ticket. When he got up to the car, he found people in it. Talking to two girls, he found they were out in violation of curfew, and he ordered them out of the car. A gun was revealed and defendant was charged with it. The situation escalated to probable cause. State v. Choice, 2013 Ohio 2013, 2013 Ohio App. LEXIS 1915 (2d Dist. May 17, 2013).*

A report of occupants of a car asleep on the median of I-75 brought a police officer. Just before he got there, the car was reported to have moved on, so he went looking for them to see if they were under the influence of something, considering the unusual place they were stopped. When they found the car stopped again, one of the occupants was reaching down, and they feared a gun. A passenger was concealing his hands, too. “Once the officers drew their weapons and ordered Cook to show his hands, an investigative stop had occurred.” Defendant was handcuffed and put in the backseat of the police car. There, his feet wouldn’t stop moving. The officer got him out and searched his feet finding drugs in his sock. The search of the sock was valid. State v. Cook, 2013 Ohio 2014, 2013 Ohio App. LEXIS 1913 (2d Dist. May 17, 2013).*

Police were called to an assault, and they were told that an orange Avalanche truck had left the seen with the assailant. An officer on the way saw an orange Avalanche truck coming from that direction. What are the odds of two such trucks at that hour? Also he couldn’t be sure the truck stopped at an intersection. There was reasonable suspicion for the stop. State v. Johnson, 2013 Ohio 2017, 2013 Ohio App. LEXIS 1918 (2d Dist. May 17, 2013).*

During his stop, defendant first reached for his waistband and refused to put his hands on the wheel and he was ordered out of the car. Once out, he stiffened up and turned sideways. The officer feared a weapon and frisked him feeling gelcaps, which he “100% believed” contained heroin, so it was “immediately apparent” to him for plain feel purposes defendant had drugs. State v. Price, 2013 Ohio 2020, 2013 Ohio App. LEXIS 1920 (2d Dist. May 17, 2013).*

Defendant California State Highway Patrol officers were involved in a high-speed chase with decedent. The car was stopped, and the jury could reasonably conclude, and obviously did, there was no further threat to safety when one of the officers emptied his gun into decedent, killing her. The force was excessive under the Fourth and Fourteenth Amendment. “Plaintiffs alleged that police officer Stephen Markgraf violated federal and state law when he shot and killed their mother Karen Eklund at the end of a high-speed chase. The panel held that it was clearly established that a police officer violates the Fourteenth Amendment due process clause if he kills a suspect when acting with the purpose to harm, unrelated to a legitimate law enforcement objective. Determining that the jury reasonably found that Markgraf shot Eklund with a purpose to harm unrelated to a legitimate law enforcement objective, the panel held that Markgraf could not assert qualified immunity in a post-verdict motion for judgment as a matter of law.” A. D. v. State of California Highway Patrol, 712 F.3d 446 (9th Cir. 2013).*

Defendant counsel was not ineffective for not objecting to third parties consent to search that was clearly voluntary and with apparent authority. Van Nguyen v. United States, 2013 U.S. Dist. LEXIS 47766 (E.D. Tex. February 27, 2013).*

Numerous officers came to defendant’s house with a warrant to only enter the curtilage to look for municipal code violations. They surrounded his house and banged on doors and windows and ordered him to come out because they weren’t leaving. One of them fired a shotgun. When he came out, they argued it was by consent. Not hardly. Orosco v. State, 394 S.W.3d 65 (Tex. App. – Houston (1st Dist.) 2012):

“Opening the door to one’s home is not voluntary if ordered to do so under color of authority.” Reeves, 524 F.3d at 1167. “If an individual’s decision to open the door to his home to the police is not made voluntarily, the individual is seized inside his home.” Id. “A reasonable person faced with several police officers consistently knocking and yelling at their door for twenty minutes in the early morning hours would not feel free to ignore the officers’ implicit command to open the door.” Id.

Under these circumstances, it cannot be said that appellant voluntarily exposed himself to a warrantless arrest by leaving the confines of his home. After searching the property before daylight, seven officers surrounded the home, knocked on doors and windows for 20 to 30 minutes, and discharged a weapon before appellant exited the house. As the officers themselves testified, they were not leaving the premises, nor allowing anyone else to enter or leave the premises, until appellant answered the door and responded to their questioning. In effect, appellant’s home was under siege when he finally consented to come outside. Because he answered the door in response to an unreasonable show of authority by the officers, he was unconstitutionally seized at that time. See Hernandez, 392 F. App’x at 353; Reeves, 524 F. 3d at 1169. Thus, we turn to the issue of whether appellant’s subsequent consent to search was sufficiently attenuated from his unconstitutional seizure.

Defendant’s house was the subject of a burglary, and an unopened safe was abandoned in his yard when the burglars fled. The police wanted the safe ostensibly to fingerprint it [safes can seldom be fingerprinted] but then opened to see what the burglars wanted, and defendant refused. The police then got a search warrant for the safe, and it was issued with probable cause [of what?]. Inside were firearms, and defendant was a convicted felon. United States v. Saddler, 498 Fed. Appx. 524 (6th Cir. 2012).* I’m not buying any of this:

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“We conclude that defendant’s detention at the scene of the traffic stop was lawful and did not constitute a de facto arrest. Defendant was placed in the back seat of a patrol vehicle without handcuffs after the police observed him leaving a residence subject to a search warrant, and they observed his furtive movements and those of the driver.” People v. Binion, 2012 NY Slip Op 7801, 100 A.D.3d 1514, 954 N.Y.S.2d 369 (4th Dept. 2012).

Defendant was handcuffed when he was stopped for five minutes until he attempted to flee. That was not an arrest and the time was not unreasonable. United States v. Lesane, 498 Fed. Appx. 363 (4th Cir. 2012).

Defendant drove down a street with police cars not lit up because they just arrived to an unknown problem. His car wouldn’t fit through the cars already there and the officer yelled at him to stop. The officer tapped on the window, and defendant rolled it down, and the officer could smell alcohol. That justified the stop. Ward v. State, 2012 Ark. App. 649, 2012 Ark. App. LEXIS 768 (November 14, 2012).*

Defendant failed to preserve in the trial court the argument that hearsay was improperly admitted and credited by the trial court, so it is forfeited for appeal. People v. Hawkins, 211 Cal. App. 4th 194, 149 Cal. Rptr. 3d 469 (2d Dist. 2012).

Officers received reports that gunshots came from defendant’s vehicle. When they stopped it, a bag of marijuana was in plain view. There was probable cause for the search. United States v. Brown, 498 Fed. Appx. 940 (11th Cir. 2012).*

Officers drove by defendant’s double parked car and smelled marijuana. They got out and asked him why they could smell it, and he said it was because he “just smoked.” That was probable cause, and a gun found in the car was admissible. United States v. Evans, 2012 U.S. Dist. LEXIS 165895 (S.D. N.Y. November 19, 2012).*

Physical pain is enough injury for a Fourth Amendment violation of a suspect’s rights to support a conviction under 18 U.S.C. § 242 for abusing an arrestee. The defendant was a Border Patrol officer. United States v. Diaz, 498 Fed. Appx. 407 (5th Cir. 2012):

Because determining whether a Fourth Amendment injury is more than de minimis depends on the context in which the injury arose, see id., we cannot categorically say that the district court may never charge the jury that “bodily injury” may include “physical pain.” Moreover, Diaz’s argument that including “physical pain” in the definition of “bodily injury” means including injuries that this circuit has held to be de minimis is foreclosed by Brugman. [United States v. Brugman, 364 F.3d 613 (5th Cir. 2004)]

A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead following United States v. Scott, 610 F.3d 1009 (8th Cir. 2010), where such a sniff was not unlawful. United States v. Givens, 2012 U.S. Dist. LEXIS 170649 (N.D. Iowa November 30, 2012).* [Note: Davis would support this search because of Scott even if Jardines is reversed by SCOTUS. Scott was decided in July 2010, and this search was the following December.]

Defendant’s stop was based on an apparent drug deal going down in it. The use of a drug dog after that was with reasonable suspicion. The search of his hotel room wasn’t invalid as a fruit of the poisonous tree since there wasn’t any illegality. United States v. Jackson-Forsythe, 498 Fed. Appx. 224 (4th Cir. 2012).*

Defendant’s arrest was reasonable, so his statements come in. United States v. Foster, 2012 U.S. Dist. LEXIS 169794 (D. Md. November 28, 2012).*

The trial court correctly determined that the search of defendant was outside the specific terms of the search warrant because he was not inside the house at the time of the search. The warrant was otherwise issued with probable cause. State v. Stambaugh, 2012 Ohio 5568, 2012 Ohio App. LEXIS 4832 (9th Dist. December 3, 2012).*

The trial court’s finding on credibility is almost unassailable, and here it was against the officer on consent. Affirmed. State v. Evans, 2012 Ohio 5485, 2012 Ohio App. LEXIS 4763 (9th Dist. November 28, 2012).*

State court pen registers were valid because they said they were to be conducted within the jurisdiction of the state court that authorized them. 18 U.S.C. § 3123(b)(1)(B). United States v. Mamalis, 498 Fed. Appx. 240 (4th Cir. 2012).*

Defendant was stopped driving a car with allegedly overtinted windows, and he lowered the windows when asked to talk to the officer and presented his license. There were no articulable facts given at all to support a Long protective sweep of the vehicle for weapons because defendant did or said nothing to suggest he was a danger or armed. Commonwealth v. Cartagena, 2013 PA Super 12, 63 A.3d 294 (2013):

In contrast to the Commonwealth’s recitation of the facts, our review of the record in this case reveals that it is significantly lacking in articulable facts that would allow us to reverse the suppression court’s decision. The entirety of Officer Johncola’s testimony comprises little more than six pages of transcript, with the direct examination conducted by the Commonwealth covering just over three pages. The suppression hearing transcript contains no information about Officer Johncola’s level of training or experience in conducting traffic stops (or even years of service) and is devoid of any testimony that Officer Johncola believed, based on his training and experience, that Cartagena possessed a weapon or had access to a weapon in his vehicle. See Terry, 392 U.S. at 30-31; Long, 463 U.S. at 1049-50; see also In re O.J., 958 A.2d at 563 (officer testifying that police “normally” conduct a protective weapons search of a vehicle where they observe furtive hand movements during a stop, as “that behavior creates a fear that a weapon may be located where the movements occurred.”). There was also no testimony describing the neighborhood in which this stop occurred, i.e., there is no testimony that it was a high-crime area; only that police stopped Cartagena in the 100 block of Lehigh Avenue in Philadelphia. … Furthermore, there is no indication that Cartagena did not immediately stop for the police …; that the police saw any weapons in the vehicle prior to conducting a the protective search (see Long, 463 U.S. at 1051; …); or that he made any movements that caused Officer Johncola to believe that Cartagena was in possession of a weapon or that Cartagena posed a safety threat ….

Under the category of “why move to suppress in the first place”: The trial court struck parts of the affidavit in support of the search warrant, and it still yielded probable cause. Admission at the trial of the shotgun seized was not even prejudicial here because the defendant testified to it trying mitigate guilt. State v. Martin, 169 Wn. App. 620, 281 P.3d 315 (2012).

Defendant’s guilty plea to felony shoplifting waived his search and seizure claim [which would have failed anyway]. Swilley v. State, 93 So. 3d 901 (Miss. App. 2012).*

Defendant was arrested for domestic battery and removed from the home. His girlfriend was packing his stuff and found a box with child porn in it which she turned over to the police. This was a classic private search. State v. Cameron, 2012 WI App 93, 344 Wis. 2d 101, 820 N.W.2d 433 (2012).*

The officer had probable cause to believe defendant wasn’t staying in his own lane, and the officer also had reasonable suspicion of drugs based on a CI’s statement. After the stop, a “protective sweep” of the car was justified under Long. United States v. Sellers, 897 F. Supp. 2d 754 (N.D. Ind. 2012):

There appears to be some ambiguity in circumstances, like the case at hand, where the suspect has been removed from the car (like the defendant in Long), but has not been handcuffed or arrested (like the defendant in Gant). The Sixth Circuit discussed this issue in United States v. Lurry:

During a Terry stop, Long allows officers to search an automobile’s passenger compartment for weapons if the officers have a reasonable belief—”based on ‘specific and articulable facts’ “—that the suspect is dangerous and may “gain immediate control of weapons.” Long, 463 U.S. at 1049 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). This rule recognizes that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Id. at 1047. Although Long does not apply where the suspect is handcuffed and under arrest, see Arizona v. Gant, 556 U.S. 332, 351 (2009), it applies where the suspect is not secured and might imminently reenter the car. Long, 463 U.S. at 1051.

No. 11-5604, 2012 WL 2337329, at *2 (6th Cir. June 20, 2012) (emphasis added). Additionally, the Sixth Circuit, in Lurry, and other circuits have held that Gant does not apply when a suspect has not been arrested. See id. at 3 (“Gant does not apply to cases where the suspect has not yet been arrested.”); see also United States v. Hagins, 452 F. App’x 141, 145-46 (3d. Cir. 2011) (concluding that Gant did not apply in factual situation similar to the case at hand, with the exception that the defendant in Hagins had been handcuffed outside the vehicle); United States v. Griffin, 589 F.3d 148, 154 n.8 (4th Cir. 2009).

In this case, defendant was not handcuffed, was not under arrest, and was not in the back of the squad car when the search for the gun took place. The officers knew that defendant was the target of a DEA drug investigation and that defendant had a gun in his car. Defendant could have broken away from police and grabbed the gun out of the car. Officer Geyer knew exactly where the gun was, and retrieved the gun from that location. Under the totality of the circumstances, the officers in this case had reasonable suspicion that defendant may have been able to gain immediate control of a weapon, King, 332 F. App’x at 336-37, and thus were justified in carrying out this minimally invasive search to ensure their own safety.

Note: The phrase “protective sweep” came from Buie and premises. Over time, the phrase evolved to encompass Long protective searches of cars.