The officer did not produce the inventory policy and testified vaguely to it. Since the defense did not ask for it, the court can’t say the inventory was unconstitutional. The inventory itself will not be micro-managed by the courts. “The inventory here, while not a model, was sufficient to meet the constitutional minimum.” Also, policy was to impound a vehicle if the driver had no valid DL and the owner was not present. Since neither the driver nor passenger mentioned a word about the owner, the officer wasn’t constitutionally obligated to inquire. People v. Walker, 2012 NY Slip Op 7851, 20 N.Y.3d 122, 957 N.Y.S.2d 272, 980 N.E.2d 937 (2012):

Neither defendant nor his girlfriend asked the trooper if the girlfriend could drive the car, or told him that she had a driver’s license and the owner’s permission to drive it. The trooper was not required, as a matter of constitutional law, to raise the question, or to initiate a phone call to the owner. To impose such a requirement on police in such situations would not only create an administrative burden, but would involve them in making (and the courts in reviewing) difficult decisions in borderline cases. If a person present claims to have the owner’s permission to drive, must the police take her word for it? If the owner is called and does not answer immediately, must police wait for a call back? It is reasonable for the police to institute clear and easy-to-follow procedures that avoid such questions.

. . .

Defendant’s argument focuses on several alleged deficiencies in the proof relating to the inventory search: the written policy that governed the search was never produced; the state trooper’s description of the policy was very vague; and the descriptions of the returned property on the inventory form — “misc. items” and “paperwork” — would be of limited usefulness in the event the car’s owner claimed that some of her property was missing. These criticisms are not without force. Certainly, it would be better for a prosecutor seeking to prove the existence of a written policy to put a copy of the policy into evidence. On the other hand, defense counsel could have demanded that the policy be produced to help her cross-examine the trooper. She did not do so.

When a car has been lawfully impounded, the reasonable expectation of the person who was driving it that its contents will remain private is significantly diminished. In such a case, the driver presumably expects the police to find whatever is in the car. Galak, Johnson and Gomez establish that this does not give the police carte blanche to conduct any search they want and call it an “inventory search.” The police must follow a reasonable procedure, and must prepare a “meaningful inventory list” (Johnson, 1 NY3d at 256). But it would serve little purpose for courts to micro-manage the procedures used to search properly impounded cars. The United States Supreme Court implicitly recognized as much in Bertine, by upholding as constitutionally valid a search producing what a trial court had found to be a “somewhat slipshod” inventory (479 U.S. at 369; see id. at 383 [Brennan, J., dissenting] [describing the inventory’s deficiencies]). The inventory here, while not a model, was sufficient to meet the constitutional minimum.

Compare State v. Williams, 382 S.W.3d 232 (Mo. App. 2012), posted 11/1 with a different view of inventory.

Silence during defendant’s son’s disclosure of where guns were when he was asked was implicit consent, and it was voluntary. United States v. Martinez, 410 Fed. Appx. 759 (5th Cir. 2011) (unpublished):

Consent to a search can be implied from silence or failure to object if it follows a police officer’s explicit or implicit request for consent. See United States v. Jaras, 86 F.3d 383, 390 (5th Cir. 1996). Here, an officer implicitly requested consent to search the safe. When an officer asks an individual where a gun is located, while at the same time repeatedly stating that his goal is to seize the weapon as evidence, that is logically considered an implicit request for consent to search for and recover the weapon. Given that Martinez was implicitly asked to consent to a search, it was not clearly erroneous for the court to conclude that Martinez’s decision to remain silent following his specific identification of the location of the firearms, as well as his son’s offer to retrieve the firearms, constituted implicit consent to the subsequent search.

Officers were watching a car suspected for being involved in drug sales. Officers moved in toward the car, and they saw furtive movements in the car like hiding weapons. When the officers got to the car, they ordered the occupants out, and the butt of a gun was in plain view. It was validly seized. Aliu v. State, 2011 Tex. App. LEXIS 32 (Tex. App. – Dallas January 4, 2011).*

Getting hung up on whether the government search exceeded the private search, the Fifth Circuit finally concludes that the defendant had a severely reduced expectation of privacy in a box that was left with another that he told her to get rid of. She instead delivered it to the police. The search of the box was reasonable. United States v. Oliver, 630 F.3d 397 (5th Cir. 2011).* See Orin Kerr on Volokh Conspiracy for a dissection of the private search issue.

Defendant’s admission during a parole visit that the pills on the table were prescription drugs that were not his did not limit the parole officers from searching further. People v Walker, 2011 NY Slip Op 47, 80 A.D.3d 793, 914 N.Y.S.2d 364, 980 N.E.2d 937 (3d Dept. 2011).*

Relying on Brigham City, Nevada holds that an entry based on a domestic disturbance where the police were called by a neighbor and came and talked to the female involved through slightly opened door who said that nobody was hurt and they did not want the police inside was unreasonable. The officer had no objective evidence that anybody inside was hurt [and nobody was]. The entry produced drugs for which defendant was charged. The motion to suppress should have been granted. Hannon v. State, 125 Nev. 142, 207 P.3d 344 (2009):

To the extent that our caselaw still condones inquiring into law enforcement’s subjective motivations in the context of an emergency home entry, as other courts have done, see, e.g., U.S. v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008); U.S. v. Naiar, 451 F.3d 710, 718 (10th Cir. 2006); State v. Edwards, 183 Vt. 584, 945 A.2d 915, 918 (Vt. 2008), we abandon our previous test in favor of the standard announced in Brigham City, which clarifies “the appropriate Fourth Amendment standard governing warrantless entry by law enforcement in an emergency situation.” 547 U.S. at 402.

Under that standard, a law enforcement officer’s “subjective motivation is irrelevant.” Id. at 404. Rather, the reasonableness of an emergency home entry depends on whether “‘the circumstances, viewed objectively, justify [the] action,'” id. (quoting Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978) (alteration in original)), in other words, whether law enforcement had an objectively reasonable basis to believe that there was an immediate need to protect the lives or safety of themselves or others. See Snipe, 515 F.3d at 952; Najar, 451 F.3d at 718; see also U.S. v. Huffman, 461 F.3d 777, 785 (6th Cir. 2006).

The DA’s comment on defendant’s refusal of consent required reversal. Defendant had a constitutional right to refuse consent. Ramet v. State, 125 Nev. 195, 209 P.3d 268 (2009):

While there are no Nevada cases on point, the Ninth Circuit Court of Appeals, in United States v. Prescott, held that “refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing.” 581 F.2d at 1351; see also United States v. Taxe, 540 F.2d 961, 969 (9th Cir. 1976). That court reasoned that “[t]he right to refuse [entry] protects both the innocent and the guilty, and to use its exercise against the defendant would be, as the Court said in Griffin, a penalty imposed by courts for exercising a constitutional right.” Prescott, 581 F.2d at 1352. We agree with the reasoning of the Ninth Circuit. Allowing the prosecution to use evidence of a defendant’s invocation of a constitutional right against him would “make meaningless the constitutional protection against unreasonable searches and seizures.” Bargas v. State, 489 P.2d 130, 132 (Alaska 1971).

Other jurisdictions have also held that the prosecution may not use a defendant’s refusal to consent to a search as evidence of guilt. See U.S. v. Moreno, 233 F.3d 937, 941 (7th Cir. 2000) (the Fourth Amendment entitled defendant to withhold consent to the search, and so introducing the invocation of that right as evidence of guilt may have been inconsistent with due process); U.S. v. Thame, 846 F.2d 200, 206-07 (3d Cir. 1988) (error for the prosecutor to argue that the defendant’s refusal to consent to search of his bag constituted evidence of his guilt); Padgett v. State, 590 P.2d 432, 434 (Alaska 1979) (right to refuse to consent to warrantless search of car would be “effectively destroyed if, when exercised, it could be used as evidence of guilt”); State v. Palenkas, 188 Ariz. 201, 933 P.2d 1269, 1280, 1282 (Ariz. Ct. App. 1996) (prosecutor’s use of defendant’s contacting his attorney and his invocation of his right to refuse a warrantless search as evidence of his guilt denied due process and required a new trial); People v. Wood, 103 Cal. App. 4th 803, 127 Cal. Rptr. 2d 132, 136 (Ct. App. 2002) (defendant’s invocation of his rights under the Fourth Amendment was improperly used to demonstrate his consciousness of guilt; however, this error was harmless); People v. Keener, 148 Cal. App. 3d 73, 195 Cal. Rptr. 733, 735-36 (Ct. App. 1983) (the trial court improperly admitted evidence of defendant’s refusal to allow police to enter his apartment to show a consciousness of guilt); Gomez v. State, 572 So. 2d 952, 953 (Fla. Dist. Ct. App. 1990) (police officer’s comment on defendant’s refusal to consent to a search without probable cause was constitutional error); People v. Stephens, 133 Mich. App. 294, 349 N.W.2d 162, 163-64 (Mich. Ct. App. 1984) (the Fourth Amendment gives the defendant the constitutional right to refuse to consent to a search and the assertion of that right cannot be evidence of a crime).

We agree with the cases cited above; therefore, we hold that the State may not introduce evidence of a defendant’s refusal to submit to a warrantless search, or argue it to the jury as evidence of guilt. The defendant’s invocation of his Fourth Amendment right cannot be used as evidence of a crime or consciousness of guilt, and the district court abused its discretion by admitting this evidence.

Defendant was on probation and he was an assault victim beaten on a bus. When the police arrived, they treated him like the suspect and searched him, and the motion to suppress should have been granted. Inevitable discovery does not apply because the officers did not know that he was on probation, and there was no reasonable suspicion for any search. United States v. Hernandez, 489 Fed. Appx. 157 (9th Cir. 2012):

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The officer here completely failed to show the CI’s basis of knowledge and the officer did not corroborate it, so there was no showing of probable cause. Even though the existence of a warrant creates a presumption of good faith under state law, the defendant rebutted it by showing the officer’s lack of knowledge. People v. Hoffman, 2010 Colo. App. LEXIS 493 (April 15, 2010).*

Officers had no qualified immunity for their warrantless entry and subsequent search. Walker v. King County, 376 Fed. Appx. 704 (9th Cir. 2010) (unpublished).*

Stop near the scene of a bank robbery and waiting for backup to arrive was reasonable. United States v. Dixon, 2010 U.S. Dist. LEXIS 37631 (D. Minn. March 8, 2010).*

The search of defendant’s car was justified by consent, so Gant does not apply to this § 2255. Young v. United States, 2010 U.S. Dist. LEXIS 38034 (E.D. Tenn. April 16, 2010).*

The officer was in the house talking to another man, and the defendant walked out, with the officer following telling him to come back. Defendant stopped and said he did nothing wrong, and other officers arrived and “flanked” him, and he attempted to flee. He was not seized until he attempted to flee, and it was with reasonable suspicion. United States v. Smith, 2010 U.S. Dist. LEXIS 37927 (E.D. Tenn. March 11, 2010).*

A dog alert on a car alone was no justification for a frisk because it could have been drugs, money, or people the dog was alerting on. “The Supreme Court has not allowed a general suspicion of drug activity to provide blanket authorization for frisking anyone in the vicinity. See Ybarra v. Illinois, 444 U.S. 85, 90-91 (1979).” United States v. I.E.V., 705 F.3d 430 (9th Cir. 2012):

Moreover, in this case, both officers testified that the Defendant acted in a non-threatening and compliant manner. This is similar to the compliant suspect who was unconstitutionally frisked in Ybarra, and unlike the suspect in Jacobs who was charging police officers in his vehicle. Moreover, the Defendant was a young teenager surrounded by three police officers, rather than a man confronting a solitary officer in a confined space, as in U.S. Currency. Therefore, the officers’ general suspicion of drugs did not justify the frisk of Defendant.

Officer failed to show reasonable suspicion for his continued questioning of the plaintiff, so there is no qualified immunity. Sutton v. Metro. Gov’t of Nashville & Davidson County, 700 F.3d 865 (6th Cir. 2012).*

The trial court held that inevitable discovery led to defendant’s computer getting seized, but there was no evidence that supported that, just argument. Defendant did not consent to a search of his laptop merely by telling the police where it was when they asked. That proves nothing of voluntariness. State v. Wells, __ N.C. App. __, 737 S.E.2d 179 (2013):

The State’s final argument is that discovery of the laptop computer was inevitable because the laptop computer was known to be in existence and was the focal point of the investigation. We do not doubt either of the State’s assertions; however, having knowledge that the laptop computer exists is entirely different than knowing where the laptop computer may be found. At the hearing on defendant’s motions to suppress, no evidence was presented to the trial court to show how or when the laptop computer would have been discovered by independent lawful means.

There is no reasonable expectation of privacy in a license plate, and a check of the license plate violates no law. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (October 12, 2012).

The informant in this case is not revealed by the record to be a citizen informant [she was] but there was probable cause as a whole for defendant’s arrest as a whole. State v. Echols, 382 S.W.3d 266 (Tenn. 2012).*

The officer had reasonable suspicion for the stop from driving over the centerline. DL revocation denial reversed. Brewer v. Dir. of Revenue, 386 S.W.3d 831 (Mo. App. 2012).*

Defendant was stopped on an anonymous tip that he was attempting to sell a gun and police badge. The stop was without reasonable suspicion because the anonymous informant’s tip was not corroborated as to any criminality. Possession of a gun and badge alone is not a crime, and the police had no evidence he was a felon when the stop occurred. State v. Brown, 105 So. 3d 734 (La.App. 2 Cir. 2012)*:

Furthermore, at the time of the incident, the officers had no knowledge that the defendant was a convicted felon; they had no information which might indicate that he did not have a right to possess a gun. Attempting to sell a gun by a private citizen, who has a right to possess a gun, to another person is not illegal. Additionally, at the time of the defendant’s arrest, there was no statute in effect which criminalized the mere possession or sale of a badge.2 Accordingly, we find that the trial court did not err in concluding that the anonymous tip did not justify the stop and detention of the defendant.

Officers came to defendant’s house to execute an arrest warrant for another matter, and they smelled burning marijuana. One stayed at the house and others went to get a search warrant. They knocked and announced and entered getting no answer from within. That was reasonable under Wilson v. Arkansas. State v. Eilander, 824 N.W.2d 561 (Iowa App. 2012).

The evidence at the trial court supports the finding that the consent was valid. Also, the consent form was explained to the defendant before it was signed. State v. Powell, 2012 Ohio 5104, 2012 Ohio App. LEXIS 4467 (2d Dist. November 2, 2012).*

The driver of a car who could not own it for “legal reasons” had the authority to consent to a search. At least the officer was reasonable in believing that he had the ability to consent. State v. Prater, 2012 Ohio 5105, 2012 Ohio App. LEXIS 4470 (2d Dist. November 2, 2012).*

The state contended that the search issue was of no consequence because the defendant admitted possession and growing of marijuana, but this was a medical marijuana case. The search should have been suppressed, and defendant made out his MMJ defense. Case reversed and dismissed. State v. Shupe, 172 Wn. App. 341, 289 P.3d 741 (2012)*:

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A state livestock inspector’s entry into an open field to inspect defendant’s cattle was into an open field and did not violate any rights of trespass under Jones. State v. Lamb, 2013 UT App 5, 725 Utah Adv. Rep. 15, 294 P.3d 639 (2013):

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Officers were not entitled to qualified immunity for this entry because unlocking the door to answer it is not consent to enter. Even if it could be construed as consent, the officers’ banging on the door and threatening jail time if he didn’t let them in is hardly consent. Turk v. Comerford, 488 Fed. Appx. 933 (6th Cir. 2012).*

Officers who traveled outside their jurisdiction in Illinois could not statutorily arrest the defendant without a local officer present. Search incident and statements suppressed. People v. Harrell, 2012 IL App (1st) 103724, 975 N.E.2d 624 (2012).*

Collateral estoppel: “The district court properly granted summary judgment on Patten’s Fourth Amendment claim because issues related to the initial search and seizure were precluded by the California Court of Appeal’s judgment affirming the denial of Patten’s motion to suppress.” Patten v. County of Lake, 2012 U.S. App. LEXIS 14934 (9th Cir. July 20, 2012).*

The DEA merely watching an arrest in Colombia is not “directly effect[ing] an arrest” in violation of 22 U.S.C. § 2291(c)(1). United States v. Larrahondo, 885 F. Supp. 2d 209 (D. D.C. 2012):

The Court is likewise not persuaded by the argument that the Mansfield Amendment supports suppression of this evidence. Anturi has presented no persuasive argument as to how an agent’s participation in an arrest actually made by Colombian law enforcement falls under the statute’s prohibition on U.S. officers’ “directly effect[ing] an arrest,” 22 U.S.C. § 2291(c)(1). Anturi’s interpretation would read the word “directly” out of the statute. See United States v. Bourdet, 477 F. Supp. 2d 164, 174-76 (D.D.C. 2007) (Bates, J.) (“A United States agent providing assistance to a foreign official or merely being present as a foreign official makes an arrest is more accurately described, at most, as indirectly effecting the arrest ….”). Furthermore, even if the Court were to agree that the DEA’s behavior here violated the Mansfield Amendment, it is far from clear that suppression of evidence would be the appropriate remedy. See id. (“[T]he Mansfield Amendment is far removed from the concerns of a defendant’s Fourth and Fifth Amendment rights.”). But in any event, no violation has been shown.

There is no reasonable expectation of privacy from search and reading of nonlegal prison mail. United States v. Ligambi, 886 F. Supp. 2d 492 (E.D. Pa. 2012):

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Defendant filed a motion to suppress and the government didn’t respond in writing, but it did respond at the suppression hearing. The government did not waive its automobile exception argument, and it was squarely before the district court by defendant’s own submission and the arguments of the parties before the USMJ. The district court erred in finding the automobile exception did not apply. United States v. Scott, 705 F.3d 410 (9th Cir. 2012):

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Alleged exigency here was police created, and the police were not in hot pursuit at the time of the entry. While the odor of marijuana would be exigent circumstances for an automobile, it cannot be for a home. King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010):

Odor alone is generally an insufficient basis for the warrantless search of a home based on imminent destruction of evidence. In Johnson v. United States, 333 U.S. 10, 15, 68 S. Ct. 367, 92 L. Ed. 436 (1948), the Supreme Court held the warrantless search of a hotel room invalid where the officers detected “a strong odor of burning opium which to them was distinctive and unmistakable.” Id. at 12. The Court stated that an odor, sufficiently distinctive to be recognized as an illegal substance, and detected by one qualified to recognize it, can be sufficient to justify the issuance of a warrant. Id. at 13. However, odor alone did not justify a warrantless search based on imminent destruction of evidence: “No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time will disappear. But they were not capable at any time of being reduced to possession for presentation to court.” Id. at 15.

The odor of marijuana alone can justify the warrantless search of an automobile. Cooper v. Commonwealth, 577 S.W.2d 34, 37 (Ky. 1979), overruled on other grounds by Mash v. Commonwealth, 769 S.W.2d 42 (Ky. 1989). However, there is a strong distinction in Fourth Amendment jurisprudence between an automobile and a home. The mobility of an automobile creates an exigent circumstance per se. Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999) (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996)). By contrast, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton, 445 U.S. at 585 (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972)).

We also note that, in some circumstances, the odor of an illegal substance alone will create exigent circumstances justifying a warrantless search. This is particularly true where public safety is a concern. See, e.g., Bishop v. Commonwealth, 237 S.W.3d 567 (Ky. App. 2007) (strong chemical smell consistent with production of methamphetamine created exigent circumstances based on public safety due to inherent dangers in methamphetamine production). However, such circumstances are not present in this case.

On remand from Kentucky v. King, the Kentucky Supreme Court finds no exigency and suppresses again. The state failed in its burden to show exigency. King v. Commonwealth, 386 S.W.3d 119 (Ky. 2012), petition for cert. filed July 25, 2012:

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Challenging a search on appeal on only one ground where two were relied on by the trial court can’t result in reversal because the other ground was waived and becomes sufficient. Thomas v. State, 2011 Ark. App. 637, 386 S.W.3d 536 (2011).*

Officers had a search warrant for defendant’s car and discovery of photographs useful in a health care fraud case were found in the car, and their evidentiary value was immediately apparent to one officer. United States v. Tadevosyan, 2011 U.S. Dist. LEXIS 126934 (S.D. W.Va. November 2, 2011).*

There were eight search warrants in this case, and defendant only showed standing as to the two search warrants for his house and business. United States v. Hopkins, 2011 U.S. Dist. LEXIS 127071 (D. Minn. October 5, 2011).*