Officers had a state search warrant for 320 CR 401. While there, they saw a truck 200 yards away on the lot of 320A CR 401, owned by defendant, not the target of the search. Officers claimed during the hearing to have called the state judge for clarification, but the judge wasn’t called as a witness, so that gets no credibility. A telephone call would have worked, if they followed Rule 41(d)(3). United States v. Rogers, 2013 U.S. Dist. LEXIS 14770 (N.D. Miss. January 4, 2013):

Though Fourth Amendment issues can sometimes be thorny, there is nothing difficult about the decision in this case because, by any rational measure, the law enforcement officers’ search of Rogers’ truck was unreasonable. Neither the truck nor the building by which it was parked were within the scope of the search warrant, and the officers’ purported telephone call neither expanded the scope of the warrant, nor constituted a new warrant.

Though obtaining a warrant by requesting it from a judge over the telephone is permissible under Fed. R. Crim. P. 41, the officers followed not one of the strictures of the rule that protect a defendant’s rights under the Fourth Amendment. Rule 4.1 requires that: (1) the request be given “under oath or affirmation”; (2) the testimony be recorded verbatim by an electronic recording device or in writing; (3) the testimony be transcribed, certified as accurate, and placed in the record; (4) the judge issuing the telephonic warrant sign it; and (5) the person seeking the warrant prepare a proposed duplicate original of it – and read or transmit its contents to the judge.

These requirements make the electronic procurement of a warrant reasonable. Without such protections in place, “telephonic warrants” are rife with the possibility of abuse by the government, as there would be no sworn record reduced to writing for a defendant (or a court) to review. In addition, without careful sworn documentation of law enforcement’s representations to the court, such “telephonic warrants” would permit nearly any search to expand without practical limit. Officers could repeatedly call the issuing judge with unsworn descriptions of the scene to obtain authority to search an ever-expanding area. This is the circumstance in which Rogers found himself in the present case – a circumstance against which he could not raise a substantive challenge, as the critical facts were nowhere to be found in the record. Further, as the court conducted no evidentiary hearing, he had no chance to expose the warrant’s deficiencies. The actions of the law enforcement officers violated the Fourth Amendment.

A Sheriff’s deputy stopped defendant’s boat for a safety check at 11 pm on an otherwise busy recreational lake. There was nothing remarkable about defendant’s operation of the boat to call attention to it. During the stop, the deputy determined defendant was under the influence. The stop was without reasonable suspicion and unreasonable. State v. Allen, 2013 Ark. 35, 2013 Ark. LEXIS 54 (February 7, 2013) (4-3):

At issue is a brief stop by a law-enforcement officer to assure that a vessel complies with applicable safety requirements. It is a stop at the order of a law-enforcement officer and constitutes a seizure that is certainly less intrusive than a traditional arrest; however, it is a seizure and means that the law-enforcement officer is “lawfully present” and under a duty to act where the law enforcement officer reasonably suspects a crime has been or is about to be committed. See Ark. R. Crim. P. 3.1 (2012). A seizure under the Fourth Amendment must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual or that the seizure must be carried out under a plan embodying explicit, neutral limitations on the conduct of individual officers. See Brown, 443 U.S. at 51. Regardless of how brief or slight the intrusion, or how weighty the public interest, “an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” Id.

Sergeant Tucker testified that, while he tried to stop and perform a safety check on as many vessels as he could in a given day, there was no plan and nothing to determine which boats he stopped. There were no specific, objective facts about Allen’s vessel to indicate that society’s legitimate interests required the seizure of Allen and his particular vessel. As the circuit court found, Allen’s vessel was being legally operated in an unremarkable fashion. Sergeant Tucker testified that he did not believe that he had “the unfettered discretion to pull over any boat at any time for any reason that [he desired],” but only to perform a safety check. However, this means that whether the stop is proper depends only on the law enforcement officer’s subjective assertion of his or her purpose when the Fourth Amendment requires objective facts supporting the stop or a plan embodying explicit, neutral limitations. As the circuit court found, the practice of safety-check stops by law-enforcement officers in this case violates the Fourth Amendment.

NYTimes: Police Stops Are Down; So Is Murder by Jim Dwyer:

Last June, speaking at a church in Brooklyn, Mayor Michael R. Bloomberg said that the police had been cutting back on the number of people stopped, questioned and frisked.

This marked the official beginning of the end of the world in New York.

Officers had reasonable suspicion, and the judge thought he’d be cute. Instead, he showed that he’s a jerk. United States v. Haynesworth, 879 F. Supp. 2d 305 (E.D. N.Y. July 24, 2012)*:

The United States Supreme Court held in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) that no evidence obtained as a result of an unlawful search and seizure may be used in a criminal prosecution. Judge, later Justice, Benjamin Cardozo summarized the exclusionary rule in his iconic phrase: “The criminal is to go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585 (1926). The motion to suppress the gun discovered and the statements made after arrest present the question of whether or not the constables blundered. After hearing the parties and the witnesses to the events in this case, after assessing the credibility of those witnesses, after reviewing the authorities cited by counsel and after determining the facts material to the resolution of the motion, this Court has a one word answer to the question presented: No. These constables did not blunder. This criminal does not go free. The motion to suppress is denied.

He’s an accused criminal, sir. And remember Defore? There the constable arrested Defore outside his house and took him in his house for a search incident. That’s not a blunder–that’s just stupid.

And, judge, just how much do you hate the exclusionary rule that you have to say this? (Did defense counsel say something to set you off enough to prejudge guilt?)

Defendant’s not owning or possessing vehicle on which GPS was installed cost him standing. United States v. Tan, 2012 U.S. Dist. LEXIS 115258 (E.D. Cal. August 14, 2012):

Here, it is undisputed that defendant did not own or possess the van to which agents attached the GPS and defendant does not explain how he had any expectation of privacy in the van or its whereabouts. Although Jones is a recent decision, numerous courts have already rejected similar motions to suppress based on a defendant’s lack of standing to challenge the installation of a GPS on a third party’s vehicle. See United States v. Shephard, No. 11-6037, 2012 U.S. App. LEXIS 16163, 2012 WL 3117513, at *5 (6th Cir. Aug. 1, 2012) (defendant lacked standing to challenge placement of GPS on his co-conspirators’ vehicles because he did not own, drive, or occupy the vehicles and thus “failed to show he had any legitimate expectation of privacy in his co-conspirators’ vehicles”); United States v. Barraza-Maldonado, 879 F. Supp. 2d 1022, __, 2012 U.S. Dist. LEXIS 99992 at *2, 2012 WL 2952312, at *5 (D. Minn. July 19, 2012) (defendant lacked standing to challenge the installation of a GPS on a vehicle because the defendant had only “temporary, nonexclusive possession of the vehicle”); United States v. Johnson, __ F. Supp. 2d __, __, 2012 U.S. Dist. LEXIS 67294 at *4-5, 2012 WL 1680786, at *8-9 (W.D. La. May 14, 2012) (police officer defendant lacked standing to challenge placement of GPS on the patrol vehicle assigned to him because he did not own it, possess it at the time the GPS was placed, or have a reasonable expectation of privacy in it); United States v. Luna-Santillanes, No. 11-20492, 2012 U.S. Dist. LEXIS 40532, 2012 WL 1019601, at *7 (E.D. Mich. Mar. 26, 2012) (rejecting defendants’ argument that they had standing to challenge the placement of a GPS on their co-defendant’s vehicles because they did not present “evidence showing either an ownership or contractual interest in any of the[] vehicles or exclusivity of use such that would give rise to a legitimate expectation of privacy”); United States v. Hanna, No. 11-20678, 2012 U.S. Dist. LEXIS 11385, 2012 WL 279435, at *3-5 (S.D. Fla. Jan. 30, 2012) (defendants lacked standing to challenge placement of GPS on co-conspirator’s vehicle because defendants did not own the vehicle, possess it at the time the GPS was placed, or have a reasonable expectation of privacy in it). Accordingly, defendant lacks standing to challenge the warrantless installation of the GPS on San’s van and thus the Supreme Court’s decision is Jones does not merit reconsideration of the court’s denial of his motion to suppress.

Defendant was stopped for a traffic offense, and he admitted that he had no DL. That was probable cause to arrest him right there. The city tow policy was put into evidence, and there was no evidence that the inventory of the vehicle was a pretext for an evidentiary search. Defendant blurted out that there was a gun in the glove compartment, and that was cause to search it. [Although it would have been valid under the inventory anyway.] State v. Shipp, 2012 Ohio 6189, 2012 Ohio App. LEXIS 5390 (2d Dist. December 28, 2012).

Police observed defendant’s girlfriend get out of his vehicle and they were yelling at each other. They came up to her to see what was going on, and she said the two of them had been drinking all day and were “working on [their] relationship.” She seemed intoxicated. He came back and stopped, and they talked to him, and he seemed intoxicated. The detention was valid. Bowers v. State, 980 N.E.2d 911 (Ind. App. 2012).*

Defendant’s car was stopped for too much tint, and the officer noted the car was rocking as he approached and there was movement toward the dashboard. When he got to the window he saw that the driver and passenger had switched, which they ultimately admitted because the original driver had no license. The officer got them out and handcuffed them and then did a Long frisk of the car finding cocaine in the steering wheel. The court finds the Long frisk without factual justification because, as dangerous as a traffic stop can be, this one showed all along that it wasn’t risky and reasonable suspicion did not develop. Jackson v. United States, 56 A.3d 1206 (D.C. 2012):

The same is true here: there is a logical gap between Mr. Jackson’s movement of his hands along the dashboard and the conclusion that police were confronting someone dangerous, and under our case law, “the ambiguous movement in this case cannot be the decisive fact justifying a frisk that was otherwise unwarranted.” Powell, 649 A.2d at 1091 (Farrell, J., concurring); see also Page, 298 A.2d at 237 (“Furtive movements standing alone would hardly warrant a search[.]”). The overall calculus of factors in this case unquestionably varies from that in Spinner, and Spinner’s holding that the search there violated the Fourth Amendment by no means dictates a like conclusion here. … Yet our view that the predominant factor in the trial court’s analysis in this case suffers from the same flaw as the gesture at issue in Spinner–namely, that it lacked specific indicia that it had something to do with grabbing or concealing a weapon–nevertheless becomes dispositive where the additional circumstances do not “reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Long, 463 U.S. 1032, 1049-50 (citation and internal quotation marks omitted).

…

Officer Norris’s observation that the van was rocking when he pulled it over was the other factor besides the movement of Mr. Jackson’s hands on the dash that the trial court mentioned as having heightened the officer’s suspicion. … [W]e cannot ignore the reality that Officer Norris’s concerns about the rocking van were largely dispelled when he immediately saw that the occupants had switched places and understood why the van had been rocking. Given these circumstances, and given that there is nothing about people switching places in a car that inherently suggests these people are armed and dangerous, we do not view this factor as meaningfully reinforcing the lawfulness of the search for weapons under Terry.

It is beyond question that police officers face untold dangers when they conduct traffic stops. Our task, however, is to evaluate the individualized articulable facts supporting reasonable suspicion in this case, and we would fail in that task if we were to quote Stanfield’s unbridled language and perfunctorily conclude that the van’s window tinting gave rise to reasonable suspicion in this case without checking that impulse against the facts of this case. …

The stop in this case lacked many of the hallmarks of a particularly dangerous situation. The offense for which the officer stopped the van—illegal window tinting—was a minor one that prompted Officer Nelson to give Mr. Jackson only a verbal warning and to explain the law to him. …

There is a dissent.

The government proved the “well-trained” drug dog by training and certification and general lack of false positives sufficient for probable cause. However, the fact of an alert to a dresser in defendant’s house where no drugs were present is excluded from trial under F.R.E. 403 as more prejudicial than relevant. United States v. Pierre, 2012 U.S. Dist. LEXIS 76411 (E.D. Tex. May 10, 2012):

Here, the Court finds that any testimony about Bartje’s alert on the dresser would confuse the issues and cause Defendant undue prejudice. In this case, the Government must prove that Defendant was involved in the distribution – not merely personal use – of cocaine and marijuana. Based on the testimony presented at the hearing, although Bartje’s alert may have been reliable as an indicator that drugs were once present near the dresser, there is nothing about the alert that would show the amount of drugs that once were there, the amount of time that had passed since they were there, or the kind of drugs present. Any probative value Bartje’s alert might have is outweighed by the risk that the alert was to an amount or type of drug not a part of the charged conspiracy and for a time period not within the charging indictment. Because the alert cannot define the who, what or when — and because there is no possibility of examining or cross-examining Bartje as to the who, what or when of the alert — any testimony about it would confuse the issues and unduly prejudice Defendant.

A Daubert motion is not the way to challenge a dog sniff because a dog is not an expert witness. A motion to suppress is required. n.1:

The Court notes that Defendant has challenged the introduction of the evidence of the canine alert through three different motions: a Daubert motion, a motion in limine and this motion to suppress. As this Court has previously noted, the Fifth Circuit has stated that, “a Daubert hearing is the wrong procedural tool to challenge the reliability of a drug detection dog.” U.S. v. Three Hundred Sixty-Nine Thousand Nine Hundred Eighty Dollars ($369,980) in U.S. Currency, 214 Fed. Appx. 432, 435, 2007 WL 143240, 3 (5th Cir. 2007); see also U.S. v. Outlaw, 134 F. Supp.2d 807, 810 (W.D. Tex. 2001). See Dkt. 504. Because the Fifth Circuit has made this express statement, the Court declined to conduct a Daubert analysis as originally requested by Defendant (and ultimately denied by this Court), although factually this case — involving the requested exclusion of essentially a lack of physical evidence — does appear to be one of first impression in this Circuit. In U.S. v. Outlaw, 134 F. Supp.2d 807, 810 (W.D. Tex. 2001), after rejecting Defendant’s challenges to a canine alert based on Daubert, the District Court instead turned to directly to whether the reliability of the canine inspection at issue. Without any express guidance to the contrary by the Fifth Circuit, the Court will adopt the Outlaw court’s approach herein.

A doctor was convicted of health care fraud. His patient records were first removed by a nurse who was “acting as a whistleblower of sorts,” but later he was found to be acting as a government agent. Removal of records from a mobile lab likely was not a Fourth Amendment violation because the doctor had no reasonable expectation of privacy in the mobile lab shared with others because he made no effort to keep others from the lab. He kept records there three days a week. Nevertheless, that information did not make it into the search warrant application, and there was probable cause from before so there was an independent source from the alleged illegal entry. United States v. Patel, 485 Fed. Appx. 702 (5th Cir. 2012).*

Defendant’s IAC claim against defense counsel on the probable cause question is insufficient as a matter of law because it was preserved for appeal. In any event, defendant never said he’d go to trial instead. United States v. Cox, 2012 U.S. Dist. LEXIS 113190 (D. N.J. July 30, 2012).*

The trial court did not abuse its discretion in denying a recess in the suppression hearing so the defense could attempt to locate another witness where there was no offer of proof as to what the witness would provide. State v. Lee, 79 So. 3d 1278 (La. App. 4th Cir. 2012).

There is no reasonable expectation of privacy in IP subscriber information. United States v. Lemburg, 2012 U.S. Dist. LEXIS 10907 (D. Neb. January 10, 2012).*

Defendant was excessively nervous and consented to a search of his vehicle which produced drugs. That justified a search incident of his person which produced more drugs. Lee v. State, 100 So. 3d 982 (Miss. App. 2012).*

A thermal imaging warrant violated Georgia state law because search warrants can only be for “tangible evidence.” There was, however, plenty of probable cause for a search of the house based on everything else known before that, so the search would not be suppressed. Brundige v. State, 291 Ga. 677, 735 S.E.2d 583 (2012):

Nor do we believe that the term “tangible evidence” as used in the statute otherwise embraces the “amorphous heat loss” captured by the thermal imaging used here. Rather, the word “tangible” must be given some effect, or become mere surplusage. See Slakman, supra. Although the Court of Appeals noted that heat radiating from a building is “real and substantial, rather than imaginary[,]” such a formulation would cause “tangible” to become superfluous in the wording of OCGA § 17-5-21 (a) (5); there is no such thing as imaginary evidence.

Giving the word “tangible” full effect, it appears that the General Assembly intended “tangible evidence” to mean evidence that is essentially an object with material form that could be touched by a person. See New Shorter Oxford English Dictionary (Clarendon Press 1993) (defining “tangible” as “[a]ble to be touched; discernible or perceptible by touch; having material form”; from Latin tangere, “to touch”); Webster’s Third New International Dictionary, (G. & C. Merriam Co., 1971) (“tangible” means “capable of being touched: able to be perceived as materially existent, esp. by the sense of touch”); American Heritage Dictionary of the English Language (Houghton Mifflin Co., 1992) (“tangible” is that which is “[d]iscernible by the touch; palpable … [p]ossible to touch … real or concrete”). That meaning does not include the remotely-sensed heat at issue here.

Defendant was the subject of a child pornography knock-and-talk, and he consented to the government seizing his computers to look for child porn which he admitted was on his computers. He asked to copy files he needed for school work, and they let him. The next day, his attorney wrote the FBI and revoked his consent to the search and seizure of the computers, and 25 days later, the FBI submitted a search warrant request to a USMJ who sat on it for another six days because he was in a habeas hearing. On the totality, the 25 days was not an unreasonable seizure. This was a small FBI office, and their delay was not unreasonable considering defendant was given access to the files he needed, and he didn’t ask for me. While his possessory interest was interfered with, it wasn’t unreasonably interfered with. United States v. Laist, 702 F.3d 608 (11th Cir. 2012):

Since there is no “per se rule of unreasonableness,” McArthur, 531 U.S. at 331, the devil, as always, is in the details. The essential question boils down to this: whether the 25-day delay in this case was unreasonable. We hold that it was not. Initially, there is no doubt that Laist retained a significant possessory interest in his computer and his hard drives. See Mitchell, 565 F.3d at 1351. The interference with Laist’s possessory interest was not insubstantial, inasmuch as the FBI held his computer and hard drives for 25 days without his consent.

However, Laist’s possessory interest in the contents of these possessions was diminished for several reasons. First, the district court found that Laist was afforded the opportunity to remove “whatever he wanted to download” from the computer and hard drives, and, notably, Laist did in fact remove files he needed for school. As the district court put it, “It is my understanding from the evidence that there was no limitation about this … . [I]t [i]s clear from the record that if he wanted to take other things off at the time he also could have done that.” Since the possessory interest in a computer derives from its highly personal contents, the fact that Laist had a real opportunity to copy or remove personal documents reduces the significance of his interest. Indeed, although Laist revoked consent on March 12, 2009, he did not request any additional files prior to the time the FBI obtained the search warrant on April 13, 2009, and there is no indication in this record that the FBI would have denied a request to retrieve additional non-contraband material on the computer. In the second place, Laist not only admitted to the presence of illicit images on the computer, which standing alone already diminishes his possessory interest, see Mitchell, 565 F.3d at 1351, he actually showed an image of child pornography to the FBI agents during the course of the interview. This fact both diminishes Laist’s interest further while also enhancing the government’s legitimate interest in maintaining custody of the computer and hard drives as substantial evidence of a serious federal crime.

Nevertheless, since Laist retained a possessory interest, albeit a diminished one in his computer, the Fourth Amendment still obligated the United States to “diligently obtain[] a warrant.” McArthur, 531 U.S. at 334. On this record, we are convinced the government acted diligently, and thus reasonably, based on several critical facts. …

There is no constitutional requirement that the officer ask for DL before asking about drugs. Defendant here was found to have consented to a search of his vehicle. United States v. Cochrane, 702 F.3d 334 (6th Cir. 2012)*:

To the extent that Defendant objects to the fact that the officers asked for his driver’s license and registration only after asking about the presence of contraband, we find no rule that officers must ask questions in a certain order when the totality of the circumstances indicates that the scope and duration of the stop were reasonable. See Everett, 601 F.3d at 493-94 (“[T]he touchstone of any Fourth Amendment analysis is reasonableness.”). Under these circumstances, we find that the officer’s extraneous questioning did not constitute an unreasonable seizure.

Defendant had two priors for DUI, and he was arrested for a third with probable cause. Under Texas law, refusal of a breath test could require a blood draw, and defendant refused. There was probable cause, and the blood draw was not unreasonable. Aviles v. State, 385 S.W.3d 110 (Tex. App. – San Antonio 2012).*

A radio report of a red Cadillac being involved in an armed robbery led to officers seeing one a few blocks from the robbery, and it was somewhat elusive and stopped and the occupants fled. There was probable cause for the stop. United States v. Bynum, 2012 U.S. Dist. LEXIS 139386 (D. Minn. August 30, 2012).*

The record supports the finding that defendant consented to the search of his car that led to a valid inventory, too. On appeal, the appellate court noted the trial court failed to impose a mandatory DL suspension, so the case is remanded to imposed that in the judgment. State v. Arrazzaq, 2012 Ohio 4365, 2012 Ohio App. LEXIS 3856 (1st Dist. September 26, 2012).*

The fact that the defendant was “going to” or “fixing to” manufacture meth is not exigent circumstances. Actual manufacturing required. Wehrenberg v. State, 385 S.W.3d 715 (Tex. App. – Ft. Worth 2012):

Thus, whether it was the odor of ether, ether running on the ground, or the observance of articles associated with the ongoing manufacture of methamphetamine, in each of the three preceding cases, officers observed facts that led them to believe that someone was actively manufacturing methamphetamine. This fact was significant to the exigent-circumstances inquiry because it sustained the officers’ belief that the destruction or removal of evidence was imminent—a result that could have occurred due to the inherent volatility associated with the active manufacture of methamphetamine.

Here, unlike the officers in Rhiger, Walsh, and Wilson, Investigator Montanez did not testify that he observed anything that led him to believe that someone was actively manufacturing methamphetamine at the residence. Instead, the record demonstrates (1) that Investigator Montanez had information that the occupants of the residence were “going to” or “fixing to” manufacture methamphetamine, and (2) that officers arrived at the residence and entered without a warrant. Therefore, notwithstanding that a fire was alleged to have previously occurred at some point at the residence as a result of manufacturing methamphetamine, in the absence of any evidence that could have led the officers to believe that someone was actively manufacturing methamphetamine, officers could not have reasonably concluded that the destruction or removal of evidence was imminent due to either the inherently volatile nature of manufacturing methamphetamine or the inevitable “destruction” of various chemicals when combined to manufacture methamphetamine. See, e.g., State v. Meeks, 262 S.W.3d 710, 726-27 (Tenn. 2008) (holding that hazards posed by actively operating methamphetamine lab created exigent circumstances justifying warrantless search); Williams v. State, 995 So.2d 915, 921 (Ala. 2008) (“Based on the inherent dangers of an operating methamphetamine lab, we now hold that discovery of such a lab by law-enforcement officials constitutes an exigent circumstance justifying a warrantless search” (emphasis added)); State v. Bilynsky, 2007 ME 107, 932 A.2d 1169, 1176 (Me. 2007) (holding that exigent circumstances justified warrantless entry because officers observed facts demonstrating that manufacturing methamphetamine was “in progress”); Bishop v. Commonwealth, 237 S.W.3d 567, 570 (Ky. Ct. App. 2007) (“[T]he court did not clearly err by finding that a search was justified by the exigent circumstances created when an active methamphetamine lab was found in the trunk of a car ….” (emphasis added)). Although probable cause existed at the time of the warrantless entry, there is nothing in the record to indicate that the officers were confronted with a “now or never”-type situation, one in which they had to act before obtaining a warrant in order to head off the possible destruction or removal of evidence caused by the volatility inherently associated with the actual manufacture of methamphetamine. See Roaden, 413 U.S. at 505, 93 S. Ct. at 2802; State v. Moore, 2008 NMCA 56, 144 N.M. 14, 183 P.3d 158, 161 (N.M. Ct. App. 2008) (reasoning that “mere probable cause that a methamphetamine lab exists is not per se an exigent circumstance that will justify a warrantless entry into a home” (emphasis added)). Contrary to the State’s argument, the first, second, and fifth McNairy criteria do not support a conclusion that exigent circumstances justified the warrantless entry. Accordingly, we may not affirm the trial court’s denial of Wehrenberg’s motion to suppress on this ground.

One Lecroy was wanted for an FTA after a traffic accident. Based on a tip of unknown reliability he’d been staying there, they went to defendant’s home at night to find him. Shining flashlights through the window, they found people asleep inside. “Trooper Havens determined that an enquiry of the home’s occupants was ‘[a]bsolutely’ appropriate and instructed Trooper Gangloff to knock. In a process that lasted ‘maybe two seconds, three seconds[,]’ Gangloff banged on the door, pushing it open, allowing the smell of burned marijuana to drift outside, and Trooper Havens entered.” After they were in, they told the occupants they weren’t under arrest, but they weren’t free to leave either because the officers were getting a search warrant. The search under the warrant was unconstitutional under the Fourth Amendment, not even deciding the state constitution. The court discussed the weighty privacy concerns of nighttime searches and the state implications of inevitable discovery and concluded the search was just indefensible. Commonwealth v. Berkheimer, 2012 PA Super 253, 57 A.3d 171 (2012) (en banc):

In Mason, law enforcement had sought a warrant prior to entering the defendant’s home and obtained the warrant based on information gleaned without resort to illegal entry, thus allowing at least the possibility that the Commonwealth could comport with Fourth Amendment jurisprudence delineating the independent source rule. In response, the Court identified Article I, Section 8 as a source of additional rights and protections that could not be met under the aggravated circumstances in that case. By contrast, while the circumstances in this case exceed those in Mason when measured by the injury they inflicted to the defendants’ right to privacy, they also fall substantially short of demonstrating an independent source as required by Murray. Although the search is thus doubly infirm, we need only rely on Fourth Amendment jurisprudence to strike it down. Quite simply, the record in this case identifies no source whatsoever unsullied by the taint of illegality. Therefore, the inevitable discovery exception is not satisfied and the evidence on which the Commonwealth relies was obtained unlawfully.

For the foregoing reasons, we conclude that the trial court erred in denying the defendants’ joint motion for suppression. As Mr. Justice Brandeis observed almost a century ago: “If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Edmunds, 586 A.2d at 906 (quoting Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting)). “Although the exclusionary rule may place a duty of thoroughness and care upon police officers and district justices in this Commonwealth, in order to safeguard the rights of citizens under [the Fourth Amendment and] Article I, Section 8, that is a small price to pay, we believe, for a democracy.” Id. In the absence of the Commonwealth’s proffered evidence, obtained by palpably unlawful government action, there is no evidence that these defendants engaged in any act that was itself unlawful. Consequently, they are entitled to a full discharge.

The state violated the Maryland Stored Communications Act, similar to the federal Stored Communications Act, in obtaining cell phone provider created information about his account by a state subpoena served out of state. He has no reasonable expectation of privacy in that information, so the evidence is not excluded. While the state did not explicitly raise standing in the trial court, the trial court found a lack of standing. Defendant’s argument that he did not have an opportunity to provide standing fails because he wouldn’t have standing as a matter of law, and this is harmless error if error at all. Upshur v. State, 208 Md. App. 383, 56 A.3d 620 (2012).

Defendant was stopped because he was suspected of being a hack taxi and threatening his passenger. He denied everything. In a patdown, the car keys in his pocket were subject to “plain feel” connecting him to the hack taxi. McCracken v. State, 429 Md. 507, 56 A.3d 242 (2012).*

State appeals court affirmance of denial of motion to suppress collaterally estops § 1983 case over the same search. Patten v. County of Lake, 479 Fed. Appx. 781 (9th Cir. 2012).

“[T]he Court concludes that installation and monitoring of a Global Positioning System (‘GPS’) tracking device on a vehicle requires a warrant. The Court further concludes that the so-called ‘good faith’ exception to the exclusionary rule does not apply due to the absence of binding precedent authorizing warrantless GPS installation and tracking. Accordingly, the Court grants defendant’s Motion to Suppress Evidence.” United States v. Ortiz, 878 F. Supp. 2d 515 (E.D. Pa. 2012).*

Defense counsel was not ineffective for not challenging defendant’s consent which would surely have lost. United States v. Greer, 2012 U.S. Dist. LEXIS 100121 (D. Neb. July 19, 2012).*

Where both the defendant and the officer testified credibly that the defendant did or did not have his seat belt on left the court with the conclusion that ties go to the government when the question is the officer’s objectively reasonable belief. United States v. Williams, 878 F. Supp. 2d 190 (D. D.C. 2012).

Officers were in hot pursuit of a suspected burglar and followed him to an apartment building and an apartment from which burning marijuana could be smelled. They knocked several times and were finally admitted, and a gun was in plain view. A protective sweep was conducted. Even without exigency, there was written consent. [Consent here is suspect because of the banging on the door insisting on entry.] United States v. Stokes, 2012 U.S. Dist. LEXIS 100572 (E.D. Pa. July 12, 2012).*

“Good to go” of a stopped motorist but followed by questions led to effective consent. United States v. Rodriguez, 485 Fed. Appx. 16 (6th Cir. 2012):

At the end of the discussion, Diggs told Rodriguez that he was “good to go.” Immediately after making that statement, however, Diggs said, “Let me ask you something,” and proceeded to ask Rodriguez additional questions about his travel plans, as well as questions about his arrest history and whether there was anything illegal in his van. After approximately four minutes of questioning, Diggs asked Rodriguez for permission to search his van, and Rodriguez consented. Ultimately, law enforcement officers recovered two kilograms of heroin and ten kilograms of cocaine from a hidden compartment in the van.