Police were delivering marijuana to defendant’s house. They planned it for 11 hours, and they had no exigent circumstances. Worse, they never even argued exigent circumstances. People v. Krinitsky, 2012 IL App (1st) 120016, 367 Ill. Dec. 698, 982 N.E.2d 848 (2012)*:

[**P30] In this case, the State failed to argue that any exigent circumstances existed to justify the warrantless entry into defendant’s apartment. Id. (“The State bears the burden of demonstrating exigent need for a warrantless search or arrest.”). The police knew cannabis would be at the apartment because they were delivering it. They knew the amount of cannabis and defendant’s address. Officer Graham testified that he first knew of the informant at approximately 10 in the morning on the day of the incident. Tardona did not deliver the cannabis, according to Officer Graham’s testimony, until at least an hour after he met with defendant at either 9:30 or 10 p.m. that evening. The police had all day to secure an anticipatory search warrant. Accordingly, the State has not satisfied its burden in proving that exigent circumstances existed to justify the police’s warrantless entry into defendant’s apartment. Under the facts of this case, it was unreasonable for the police to not even attempt to get a warrant when they knew the time, place, quantity, and price of the arranged transaction and had at least 11 hours to secure a warrant.

In this child pornography case, the officer here accidentally typed the name of a nonexistent town criminal court at the top of the warrant. “The Village Justice [of the Peace] signed the warrant without correcting the mistake. His signature was affixed on a line marked ‘Signature of Judge or Justice,’ but it is illegible, and the court is not named.” The warrant is void because it can’t be ascertained who issued it, and that violates the neutral and detached magistrate requirement. People v Gavazzi, 2012 NY Slip Op 8054, 20 N.Y.3d 907, 957 N.Y.S.2d 660, 981 N.E.2d 256 (2012):

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Police one: 2 Texas cops indicted over roadside cavity searches | One trooper was charged with 2 counts of sexual assault and 2 counts of official oppression; the other was charged for theft after a prescription allegedly went missing by Jennifer Emily, The Dallas Morning News (video included from YouTube):

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A motion to suppress the Intoxilyzer 8000 test result for lack of scientific basis was not proper; it should have been a motion in limine. State v. Miller, 2012 Ohio 5585, 983 N.E.2d 837 (11th Dist. 2012):

[*P14] The purpose and effect of a motion to suppress and a motion in limine are distinct. A “motion to suppress” is defined as a “[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation etc.), of U.S. Constitution.” Black’s Law Dictionary (6 Ed. 1990) 1014. Thus, a motion to suppress is the proper vehicle for raising constitutional challenges based on the exclusionary rule first enunciated by the United States Supreme Court in Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, T.D. 1964, and made applicable to the states in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513. Further, this court has held that the exclusionary rule will not ordinarily be applied to suppress evidence which is the product of police conduct that violates a statute but falls short of a constitutional violation, unless specifically required by the legislature. Kettering v. Hollen (1980), 64 Ohio St.2d 232, 235, 18 O.O.3d 435, 437, 416 N.E.2d 598, 600. An important characteristic of a motion to suppress is that finality attaches so that the ruling of the court at the suppression hearing prevails at trial and is, therefore, automatically appealable by the state. R.C. 2945.67(A); [former] Crim.R. 12(J); see, also, State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477 N.E.2d 1141.

Placing a GPS on a car in April 2011 was not unlawful because of the Davis good faith exception. When it was placed, the car was parked in an apartment complex parking lot, and it could not be considered curtilage. United States v. Brooks, 2012 U.S. Dist. LEXIS 168737 (D. Ariz. November 28, 2012).*

Defendant argued that the search warrant for defendant’s warehouse didn’t authorize a search of the entire warehouse because it said the part “under control” of the defendant. The court found that the good faith exception justified the search, and the government justified the good faith exception. United States v. Sakuma, 2012 U.S. Dist. LEXIS 168877 (D. Haw. November 27, 2012).*

Plaintiff’s termination proceeding as a law enforcement officer ligated his search issue but it wasn’t appealed. It could have been appealed but wasn’t, and it’s res judicata. Jacobs v. Arizona, 491 Fed. Appx. 837 (9th Cir. 2012).*

2255 petitioner’s IAC claim that his counsel was ineffective for not putting him on the stand to deny that he consented was not IAC because it had no effect on the outcome–the officer had probable cause to stop and search, and consent was irrelevant. Lewis v. United States, 491 Fed. Appx. 84 (11th Cir. 2012).*

Arrest warrant from another state justified defendant’s arrest after a traffic stop. United States v. Barbary, 2012 U.S. Dist. LEXIS 141833 (S.D. Fla. September 6, 2012),* adopted 2012 U.S. Dist. LEXIS 145758 (S.D. Fla. October 10, 2012).*

There was probable cause for the search of defendant’s car. Moreover, because both occupants were being arrested, it was appropriate to tow and inventory it. United States v. Jones, 2012 U.S. Dist. LEXIS 142143 (S.D. Ind. October 2, 2012).*

Drawing weapon and order to show hands a seizure. United States v. Griffin, 884 F. Supp. 2d 767 (E.D. Wis. 2012). The officer:

effected a seizure when, after identifying himself as an officer, he drew his weapon and ordered defendant to show his hands. See Gentry v. Sevier, 597 F.3d 838, 844 (7th Cir. 2010) (“When the officers pulled up in their patrol car and one officer exited the car and told Gentry to keep [his] hands up,’ the officer executed a Terry stop.”); see also Carlson v. Bukovic, 621 F.3d 610, 619 (7th Cir. 2010) (listing “the display of a weapon and the police officers’ language and tone of voice suggesting compulsion” as relevant factors in determining whether a seizure occurred) …

Defendant’s coresident consented to a police entry to check on her welfare, and whatever was seen was based on her consent. Her voluntary statement about where defendant’s gun was was not a violation of his Fourth Amendment rights. United States v. Napolitan, 2012 U.S. Dist. LEXIS 108983 (W.D. Pa. August 3, 2012).*

A search warrant for an address is particular enough. Defendant challenged it in the suppression hearing without any citation of authority, and thus essentially waived the argument, but would lose on the merits anyway. There was also probable cause to connect the address to the robbery as a place where evidence would likely be found. United States v. Harris, 884 F. Supp. 2d 383 (W.D. Pa. 2012).

The FTCA does not apply to discretionary government functions, like the decision to investigate, but it does apply to illegal searches conducted after the decision to investigate. Muhammad v. United States, 2012 U.S. Dist. LEXIS 110617 (E.D. Pa. August 6, 2012).

“Finally, Movants’ argument that the subpoenas violate the Fourth Amendment lacks merit. In United States v. Miller, 425 U.S. 435, 442-443 (1967), the Supreme Court held that bank customers have no legitimate expectation of privacy in their bank records. Therefore, when a federal agency issues a subpoena for customer records from a bank, the customer cannot successfully challenge the subpoena on Fourth Amendment grounds. Id.” Tabet v. United States SEC, 2012 U.S. Dist. LEXIS 110048 (S.D. Cal. August 6, 2012).*

A 30-45 second wait after knocking and entering was reasonable, per Banks. Walke v. Cullen, 491 Fed. Appx. 273 (3d Cir. 2012).

A DEA administrative subpoena under 21 U.S.C. § 876(a) for Sprint cell phone records was a proper use of the subpoena power and violated no right of privacy. Thereafter, pinging the cell phone with a search warrant did not violate the Fourth Amendment. United States v. Jones, 2012 U.S. Dist. LEXIS 92129 (M.D. Ala. June 15, 2012).

Defendant lacked standing as to a vehicle and a place searched. State v. Cumberledge, 2012 Ohio 3012, 2012 Ohio App. LEXIS 2660 (11th Dist. June 29, 2012).*

Defense counsel made an [exceedingly] valid strategic decision in not as aggressively pursuing a suppression motion and successfully arguing Rule 403 prejudice. Tankesly v. Mills, 491 Fed. Appx. 649 (6th Cir. 2012):

To the extent that any doubt remains about whether trial counsel sought an oral hearing on the motion, we find two other deficiencies in Petitioner’s claim. First, counsel made a valid strategic choice in his method of challenging the introduction of the undergarments. In the course of deciding whether counsel performed deficiently, we take care not to “second-guess” defensible strategic decisions that ultimately fail. Strickland, 466 U.S. at 688. A defensible strategic choice “made after thorough investigation of law and facts relevant to plausible options” is rarely a basis for habeas relief. Id. at 690. Without derogating the importance of Petitioner’s Fourth Amendment rights, the practical harm resulting from the collection of the undergarments was not their seizure outside the scope of the warrant but their admission into evidence during his trial. Counsel made the decision to challenge the state’s attempt to introduce the undergarments under Tennessee Rule of Evidence 404(b). He did so by vigorously arguing that the undergarments were unduly prejudicial. See Tenn. R. Evid. 403. The fact that the Tennessee Court of Criminal Appeals agreed with defense counsel’s argument demonstrates its strength. See Tanksley, 2000 Tenn. Crim. App. LEXIS 803, 2000 WL 1521475, at *7. We have explained that a defense attorney may have “several possible arguments available” and may be forced to pursue the one “most likely to succeed or [that] offers the greatest possible return” for the defendant. See Cowans v. Bagley, 639 F.3d 241, 250 (6th Cir. 2011). The record demonstrates that counsel surveyed the options available for excluding the undergarments and decided that the Rule 403 challenge was the strongest line of argument. A valid decision of this sort is “virtually unchallengeable.” Strickland, 466 U.S. at 690. Had the Fourth Amendment argument been the only avenue available to counsel, and had counsel failed to explore that avenue for suppressing the evidence, our analysis would be different. But even if Petitioner’s Fourth Amendment argument was strong, counsel’s decision to pursue another strong argument was a decision “within the wide range of reasonable professional” competence. Id. at 689.

Second, while we are not bound by the Tennessee Court of Criminal Appeals’ harmlessness conclusion, we agree with that court that Petitioner was not prejudiced by the undergarments because the other evidence against him was strong. Petitioner contends that the admission of the undergarments prejudiced his defense, because, in the words of trial counsel, the undergarments “had a chilling [e]ffect on the jury” and undercut the strategic benefit he gained when the victim did not verbally identify Petitioner as her assailant in court. We conclude differently.

Petitioner’s trial was not reasonably likely to turn out better for him if counsel had argued his motion to suppress at a separate hearing and if the undergarments had been suppressed. See Strickland, 466 U.S. at 694. …

Parole officers need probable cause to believe that the parolee lives in a particular place before they can search it. If confronted with information that mitigates that probable cause, they should stop the search. Here, occupants previously lied about him being there and then gave inconsistent stories about when the parolee left for good. That didn’t require them to leave. United States v. Romero, 491 Fed. Appx. 809 (9th Cir. 2012):

The authorities “were entitled to maintain that belief until presented with convincing evidence that the information they had relied upon was incorrect.” Motley, 432 F.3d at 1082 (internal quotation marks omitted). Defendant argues that, on the day of the search, Gonzalez and the occupants of the house told the authorities that Gonzalez had moved. But Gonzalez and the occupants reported inconsistent dates for his departure, and the occupants had previously misled the authorities regarding Gonzalez’ residence at the house. The inconsistent reports of less-than-disinterested” sources were insufficient to undermine the authorities’ reasonable belief that Gonzalez lived at the house. See id.

Police were looking for defendant’s gun because of his alleged “reckless use” of it, and they clearly had probable cause to get a search warrant, and would have except defendant consented. Inevitable discovery was sufficient and the question of consent didn’t have to be decided by the trial court. United States v. Bennett, 491 Fed. Appx. 760 (7th Cir. 2012):

On appeal Bennett argues generally that the gun was obtained through an illegal search and that the evidence is thus permanently tainted and the inevitable-discovery doctrine does not apply. But the district court correctly concluded that the gun was admissible based on inevitable discovery. Even an illegally seized item need not be suppressed if officers would have inevitably discovered it through lawful means. United States v. Stotler, 591 F.3d 935, 940 (7th Cir. 2010). Here the government showed that, even without the challenged search, officers would have obtained a search warrant and recovered the gun. United States v. Marrocco, 578 F.3d 627, 637-38 (7th Cir. 2009); United States v. Tejada, 524 F.3d 809, 813 (7th Cir. 2008). Ealing had probable cause to believe that Bennett committed felony criminal recklessness when he fired a gun in the air in a residential neighborhood, IND. CODE § 35-42-2-2(c)(2)(A), and he saw Bennett enter the house with the gun but return to the porch without it. As the district court noted, it is reasonable to conclude that the police would have continued their efforts to locate the missing gun by obtaining a search warrant, which would have been issued given the “fair probability” that evidence of a crime would be found in the house. See United States v. Miller, 673 F.3d 688, 692 (7th Cir. 2012). Ealing thus could have, and testified that he would have, obtained a search warrant to recover the gun had he not thought that Bennett’s mother validly consented to the search.

Two police officers who were cruising the streets during a snow storm had not seen anybody all night, and they passed by two men with hoodies walking who looked away from him as he passed. Just then they heard a radio call of a shooting within 100′ of where they were. They turned and went back to them, and when confronted, one of them dropped a dark object to the ground which could have been a gun. A struggle ensued. The stop and use of force was based on reasonable suspicion. Commonwealth v. McKoy, 83 Mass. App. Ct. 309, 983 N.E.2d 719 (2013):

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Defendant was stopped in a high crime area of Boston, and he reached for the glove compartment and opened and closed it quickly without reaching inside. Then he reached under the seat. These movements justified getting him out of the car and patting him down. When that turned up empty, the officers were still justified in frisking the car, and a hidden compartment with a gun was validly found. Commonwealth v. Haynes, 83 Mass. App. Ct. 903, 983 N.E.2d 731 (2013):

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Policy alone does not justify an inventory; the facts must justify it, too. United States v. Cervantes, 703 F.3d 1135 (10th Cir. 2012):

Neither Sanchez nor Colley provided any testimony that Cervantes’s vehicle was parked illegally, posed a safety hazard, or was vulnerable to vandalism or theft. To the contrary, Officer Colley testified that Cervantes appropriately pulled over to the curb when he was stopped in a residential neighborhood. While it is true that Cervantes’s vehicle was not in close proximity to his home at the time it was impounded, cf. Caseres, 533 F.3d at 1075 (noting that defendant’s vehicle was two houses away from his home), the government presented no evidence that the vehicle would be vulnerable to vandalism or theft if it were left in its residential location, or that it posed a safety hazard, and thus failed to meet its burden to show that the community caretaking exception applied. Id.; Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n.4 (9th Cir. 1993) (upholding the towing of a car from a public parking lot, not a residential street, under the community caretaking exception).

Nor can the government justify the impoundment by simply citing to sections of the California Vehicle Code and the LAPD’s policy on impoundments and inventory searches. The fact that an impoundment complies with a state statute or police policy, by itself, is insufficient to justify an impoundment under the community caretaking exception. See Miranda, 429 F.3d at 864 (“We begin with the premise, apparently not recognized by the Defendants, that the decision to impound pursuant to the authority of a city ordinance and state statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment ….”). “[T]he decision to impound a vehicle Moreover, it is not clear that Officers Colley and Sanchez even complied with the California Vehicle Code when they impounded Cervantes’s vehicle. According to California Vehicle Code § 22651(h)(1), an officer may impound and remove a vehicle “[w]hen an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody.” Cal. Vehicle Code § 22651(h)(1) (emphases added). Pursuant to California Vehicle Code § 14602.6(a)(1), “[w]henever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked … the peace officer may either immediately arrest that person and cause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic collision, cause the removal and seizure of the vehicle without the necessity of arresting the person ….” Cal. Vehicle Code § 14602.6(a)(1) (emphases added). While the purported reason for the impoundment of Cervantes’s car was his alleged driving without a license, in violation of California Vehicle Code § 12500(a), according to both officers, Cervantes was arrested and taken into custody only after the vehicle was impounded and the inventory search had already resulted in the discovery of narcotics.

In sum, on this record, the impoundment of Cervantes’s vehicle was not justified by the community caretaking exception to the Fourth Amendment’s warrant requirement. The district court’s contrary holding was error.

I suspect this case may go up. Courts always grant deference to the police to impound a vehicle, almost on a whim, or at least bending over backwards to twist facts to support the police, as the dissent seemed to do here. Such deference has always rubbed me the wrong way, but I’m not an appellate judge, either. Here, Cervantes’s vehicle was stopped in an ordinary residential area, not a “high crime area,” so the risk of theft was reduced. But, if Cervantes was going to be in custody for a while, what about leaving it for weeks or months parked in front of a house? I’m making the government’s argument now, I guess. But, so what? What about inevitable discovery when the vehicle is someday towed? Too speculative?

Oregon explains consent after illegal police conduct and purging the taint. State v. Hemenway, 353 Ore. 129, 295 P.3d 617 (2013):

Properly considered, then, a voluntary consent to search that is prompted by an officer’s request can be sufficient to purge the taint of illegal police conduct. Whether the voluntary consent is sufficient to purge the taint — or whether the police exploited their illegal conduct to obtain consent — will depend on the totality of the circumstances. We reject the state’s position that voluntary consent during an unlawful stop necessarily breaks the causal chain and makes the evidence admissible, as we do defendant’s argument that such consent will rarely, if ever, break the causal chain.

In an effort to clarify this complicated area of law, we again review the basic principles at issue. As noted, the overarching inquiry is whether the evidence that the state seeks to introduce must be suppressed because that evidence was obtained in violation of the defendant’s constitutional rights. In the context of Hall and this case, where an illegal stop preceded a consent to search, that inquiry has two prongs. First, the court must assess whether the consent was voluntary. If the consent to search was not voluntary, then the evidence must be suppressed, because only a voluntary consent to search provides an exception in this context to the warrant requirement of Article I, section 9. Second, even if the consent was voluntary, the court must address whether the police exploited their prior illegal conduct to obtain the evidence. Evidence may be tainted directly by the illegal police conduct, if, for example, the police illegally stop a vehicle, allowing them to view contraband that otherwise would not have been visible, and then request the driver’s consent to search the vehicle as a result of what they saw. The consent in that example does not “purge the taint” of the prior illegal stop, because the evidence has a direct causal connection to the illegal conduct.

The search incident of defendant’s car under Gant was permissible after he was stopped on a 911 call that he was seen and shot up the caller’s house the night before. When they got him out of the car, he admitting having a gun on him, which officers took. That supported a search incident of the car for evidence of the shooting incident. Defendant was otherwise locked in the police car, but that is not determinative where there is reasonable suspicion evidence of the crime could be in the car. State v. Mbacke, 365 N.C. 403, 721 S.E.2d 218 (2012), revg 703 S.E.2d 823 (N.C. App. 2011):

Instead, we conclude that the “reasonable to believe” standard set out in Gant parallels the objective “reasonable suspicion” standard sufficient to justify a Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). Although the rationales for the two standards differ somewhat, in that Gant addresses officer safety and evidence preservation, Gant, 556 U.S. at __, __, 129 S. Ct. at 1715-16, 1719, 173 L. Ed. 2d at 492-93, 496-97, while Terry addresses “effective crime prevention and detection” along with officer and public safety, Terry, 392 U.S. at 22-24, 88 S. Ct. at 1880-81, 20 L. Ed. 2d at 906-08, we believe the underlying concept of a reasonable articulable suspicion discussed in Terry, id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906, is readily adaptable to a scenario in which a search of a vehicle is contemplated after the occupants have been arrested and detained. See also United States v. Place, 462 U.S. 696, 702, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110, 117-18 (1983) (explicitly adopting the “reasonable, articulable suspicion” standard implied in Terry). In addition, law enforcement officers and courts have worked with the Terry standard for decades, making application of Gant’s similar objective standard a straightforward matter. Accordingly, we hold that when investigators have a reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect’s vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.

Here, defendant was arrested for the offense of carrying a concealed gun. The arrest was based upon defendant’s disclosure that the weapon was under his shirt. Other circumstances detailed above, such as the report of defendant’s actions the night before and defendant’s furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant’s vehicle. Accordingly, the search was permissible under Gant, and the trial court properly denied defendant’s motion for appropriate relief.

During a traffic or pedestrian stop, an officer in New York must have reasonable suspicion to ask about whether a weapon is possessed. Officers already have the power to order occupants out of a car. People v. Garcia, 2012 NY Slip Op 08670, 20 N.Y.3d 317, 983 N.E.2d 259, 959 N.Y.S.2d 464 (2012):

… Moreover, the rule of Mimms and Robinson already guards against the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements. Indeed, Mimms and Robinson place automobile occupants in the same position as pedestrians vis-à-vis police officers; the People’s proposed rule, on the other hand, would create disparate degrees of constitutional protections based on an individual’s mode of transport. Finally, by sanctioning, in the interest of safety, a suspicionless inquiry into whether the ocupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.

See Court Limits Questioning of Motorists by the Police in the NYT.

Defendant was subjected to a patdown, and nothing was found. After he was arrested, he was patted down again, and drugs were found in a sock. Assuming the first patdown was unreasonable, the second wasn’t because of additional facts coming to light. State v. Willette, 2013 Ohio 223, 2013 Ohio App. LEXIS 163 (4th Dist. January 23, 2013).

“We conclude, however, that the officers did not exceed the permissible scope of the traffic stop by briefly questioning Adamson to determine whether he was in compliance with the licensing restriction that required that he have an ignition interlock device installed in his vehicle and, therefore, did not need reasonable suspicion of additional criminal activity to conduct such an inquiry.” State v. Adamson, 2013 UT App 22, 726 Utah Adv. Rep. 5, 295 P.3d 717 (2013).*

The victim of a crime is entitled to more credibility than an anonymous informant or a CI. United States v. Martin, 2012 U.S. Dist. LEXIS 185175 (D. Minn. December 14, 2012).*

Officers had a warrant for 3171, and found two 3170s, on opposite sides of the street. They picked the 3170 that was occupied and told the occupants they had a warrant, but it was not 3171. The entry found a bunch of cocaine, and it had to be suppressed. This was not in any sense in good faith [my words]. The government argued that the exclusionary rule did not apply. “But so long as there is an exclusionary rule, it seems safe to say that it will apply to officers who enter and remain in a house based on false pretenses.” United States v. Shaw, 707 F.3d 666 (6th Cir. 2013) (2-1):

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