Officers alleged to have entered the wrong unit during execution of a search warrant then detaining the occupants for three hours stated a § 1983 claim that overcame qualified immunity. Gomez v. Feissner, 474 Fed. Appx. 53 (3d Cir. 2012) (unpublished):

The Gomezes also claim that Feissner and Zola violated their right to be free from unreasonable seizure by detaining them for three hours during the search of their home. A “seizure” occurs when a government officer, “by means of physical force or show of authority … restrains the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Under clearly established Supreme Court precedent, it is reasonable for officers to seize the occupants of a home while conducting a constitutionally valid search thereof. Michigan v. Summers, 452 U.S. 692, 705 (1981). But this is true only for the duration of the search. When the search is completed, the authority expires. Id. Moreover, under Garrison, it is clearly established that once officers know or should know that they are without authority to continue a seizure, they must end it.

The Gomezes allege that Feissner should have known after fifteen minutes that he had no authority to search their home. It is undisputed that for three hours beyond this point, the Gomezes were involuntarily detained by either Feissner or officers under his command. These allegations suffice to make out a violation of the Gomezes’ clearly established right to be free from unreasonable seizure, and Feissner accordingly does not have qualified immunity from this claim.

Note: This case states the obvious. What is galling about it is the defendant police officer arguing with a straight face that he, first, could not only enter the wrong apartment when he was on notice by unit numbers and multiple doorways and satellite dishes, but, second, he could then detain the occupants of the place wrongly searched for three hours for no apparent reason. They should settle and move on, if their position in this case hasn’t thoroughly added insult to injury and made trial inevitable. This is the double edged sword of qualified immunity: When the defense loses on qualified immunity, you’re only arguing about the damages. This is sufficiently flagrant that punitives should result.

Having consented to an entry by the police, here it included remaining there until federal agents there too had left. ICE came because of an alleged illegal alien. People v. Arapu, 2012 CO 42, 283 P.3d 680 (2012) (4-3)*:

We find that Arapu consented to Detective Chi’s presence in his apartment to monitor the woman inside, and that such consent would reasonably include asking her for identifying information. Similarly, we find that Arapu consented to Detective Chi remaining in the apartment to gather Arapu’s keys and phones, and to secure the apartment, and such consent would reasonably include remaining in the apartment until the federal agents had left. We, accordingly, find that the trial court erred in finding Detective Chi was unlawfully in the apartment when he observed the open bag containing drugs, and therefore reverse the trial court’s suppression of the drug-related evidence. Because the prosecution concedes in its briefing to us that the discovery of the firearm was unlawful, we determine whether the affidavit would support a finding of probable cause if the firearm portions were excised, but with the observation of the open bag containing drugs included. We hold that it does, and that the firearm would have been discovered in a search pursuant to the redacted affidavit. We therefore reverse the suppression order with regard to the firearm as well.

Orin Kerr on Volokh.com: Court Rules That Police Cannot Use Warrants to Obtain Cell Phone Location of Person Who is Subject of Arrest Warrant:

Imagine the police have an arrest warrant for a crime suspect, and they want to find the suspect to arrest him. They happen to know the suspect’s cell phone number, so they want to go to the phone company and have the phone company tell the police the location of the suspect’s phone. The phone company refuses to let the police get that information without a warrant, so the police go to a judge and apply for a search warrant based on the probable cause to believe that the location of the phone will help them execute the arrest warrant. Here’s the interesting question: Should the judge sign the warrant application and issue the warrant? Or should the judge deny the warrant application?

On August 3, Magistrate Judge Susan K. Gauvey issued a fascinating opinion on this novel question: IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE, 849 F. Supp. 2d 526 (D. Md. 2011). Her answer: The Judge must deny the warrant application, as location information is broadly protected by the Fourth Amendment and government cannot use warrants to find out the location of people who have warrants out for their arrest. The timing of the case is extremely unusual, as it seems the case is moot and this is only an advisory opinion. If I understand the timing, Magistrate Judge Gauvey denied the application over a year ago, and the government was able to arrest the suspect some other way in the meantime. Judge Gauvey decided to hand down an opinion on the legal issue anyway, appointed defense counsel to argue for defense interests, and now, a year later, has handed down the opinion on why she denied that application back in 2010.

Still, the opinion is obviously intended to be important: It goes on for 172 pages in the slip opinion, or 60 pages single-spaced, and it reaches out to weigh in on a lot of big issues. I also note that her opinion includes excerpts from my recent House Judiciary Committee testimony (see pages 94–96 and 106 of the slip op). So I thought I would blog some thoughts on the opinion. I’ll start with Judge Gauvey’s opinion, then explain why I think it’s wrong, and then turn to a few broader thoughts on the role of magistrate judges in surveillance law.

In a conspiracy to commit murder, defendant had no reasonable expectation of privacy in her telephone call with a co-conspirator that an officer was listening to. State v. Wetter, 2011 VT 111, 190 Vt. 476, 35 A.3d 962 (2011).*

Defendant’s consent to search a car includes her purse in the car. Her argument that the state constitution should be interpreted more broadly was not preserved in the trial court by any kind of cogent argument. State v. Lamonda, 2011 VT 101, 190 Vt. 618, 30 A.3d 687 (2011).*

When defendant was stopped for a traffic offense, there was a strong odor of alcohol, but the officer excluded that it was coming from defendant, the sole occupant of the car. Thus, there was probable cause to believe there was an open container in the car, and that justified a search. State v. Stevenson, 46 Kan. App. 2d 474, 262 P.3d 689 (2011).*

Nervousness, evasive answers to travel plans, few clothes, and an energy drink were reasonable suspicion. State v. Deviley, 2011 ND 182, 803 N.W.2d 561 (2011).*

VT adopts independent appellate review of consent following Ornelas. State v. Weisler, 2011 VT 96, 190 Vt. 344, 35 A.3d 970 (2011):

[*P26] At the same time, as the Supreme Court stressed in Ornelas, the “multi-faceted” nature of the voluntariness inquiry underscores the need for a body of binding case-law applying the consent-standard in a variety of individual cases, thereby providing “content … through application” and guidance to the police and the trial courts. 517 U.S. at 697; see also Miller, 474 U.S. at 114 (citing the imperative for independent review where “the relevant legal principle can be given meaning only through its application to the particular circumstances of a case”). Finally, we recognize that the voluntariness-of-consent issue implicates a “complex of values,” Miller, 474 U.S. at 116 (quotation omitted); it requires a balancing of the need for effective law enforcement against the imperative to restrain unfair police tactics and maintain individual dignity—a declaration of constitutional norms and values that demands statewide force and application. These are functions that only a reviewing court with broad jurisdiction and authority can perform. Accordingly, we hold that a trial court’s decision on the question of the voluntariness of a consent to search, and thus the ultimate constitutional validity of the search, must be reviewed independently by this Court on appeal.

. . .

[*P34] Ultimately, it is not the purported distinctions from Ornelas, Thompson, and Miller that appear to drive the dissent but rather a fundamental disagreement with their holdings, a disagreement grounded on a suspicion that de novo review somehow represents a “negative assessment of the quality of fact-finding by trial courts with respect to federal constitutional questions.” Post, ¶ 76. This inference is unfounded and can not be reached by anything stated or implied in the majority opinion. Like the U.S. Supreme Court, we continue to accord substantial deference to the trial court’s findings of historical fact. Nothing in our opinion can or should be construed to undermine this fundamental principle of appellate review.

The standard of appellate review as to voluntariness reflects independent judicial review, often following Miller v. Fenton (review of voluntariness of confession) and Ornelas v. United States (review of probable cause and reasonable suspicion) is de novo. See, e.g.:

United States v. Stewart, 93 F.3d 189, 192 (5th Cir.1996)

United States v. Moon, 513 F.3d 527, 536 (6th Cir. 2008)

United States v. Starr, 533 F.3d 985, 995 (8th Cir. 2008)

United States v. Fiorillo, 186 F.3d 1136, 1143 (9th Cir. 1999); United States v. Garcia, 997 F.2d 1273, 1281 (9th Cir. 1993) (“if we are determining whether specific types of actions are sufficient to give rise to an inference of consent, the standard of review is de novo.”)

Phuagnong v. State, 714 So.2d 527, 529–30 (Fla. 1st DCA 1998) (relying on Miller and Ornelas to hold that “[t]he same reasoning supports independent appellate review where the validity of a search has been found to rest … on consent”)

Luna–Martinez v. State, 984 So.2d 592, 597 (Fla. 2d DCA 2008), review denied, 11 So.3d 942 (Fla. 2009)

State v. Nadeau, 2010 ME 71, ¶ 18, 1 A.3d 445, 454-55 (2010) (holding that voluntariness of consent to search presents an “analogous” issue to voluntariness of a confession and thus, as in Miller, presents a “legal question that we will review de novo”)

Turner v. State, 133 Md.App. 192, 754 A.2d 1074, 1080 (2000) (relying on Ornelas to hold that consent to search implicates a “constitutionally protected right” requiring independent review (quotation omitted))

State v. Stevens, 311 Or. 119, 806 P.2d 92, 103 (1991) (a reviewing court has a “duty to interpret constitutional standards and require conformance thereto” and concluding that, as to voluntariness of consent to search, reviewing court must “assess anew whether the facts suffice to meet constitutional standards”)

State v. Shelton, 990 A.2d 191, 199 (R.I. 2010) (relying on Ornelas to hold that “the voluntariness of an individual’s consent to search is reviewed by this Court de novo”)

Hubert v. State, 312 S.W.3d 554, 559-60 & n. 14 (Tex. Crim. App. 2010)

State v. Weisler, 2011 VT 96, 190 Vt. 344, 35 A.3d 970, ¶ 20 (2011)

State v. Stokes, 332 Wis.2d 315, 797 N.W.2d 934 (table), 2011 WL 292144, 2011 WI App 44 (2011) (unpublished)

Actual or apparent authority to consent should also be subject to the same de novo standard of review. See, e.g.:

United States v. Gevedon, 214 F.3d 807, 810 (7th Cir. 2000); United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997)

Smith v. Heimer, 35 Fed.Appx. 293, 294 (8th Cir. 2002) (§ 1983 case)

United States v. Mullen, 329 Fed.Appx. 61, 64 (9th Cir. 2009); United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc); United States v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005); United States v. Fiorillo, 186 F.3d 1136, 1144 (9th Cir. 1999)

United States v. Trotter, 483 F.3d 694, 698 (10th Cir. 2007)

State v. Thompson, 578 N.W.2d 734, 740-41 (Minn. 1998)

Limon v. State, 340 S.W.3d 753, 757 (Tex. Crim. App. 2011); Hubert v. State, 312 S.W.3d 554, 559-60 (Tex. Crim. App. 2010)

This will be § 11.12 of the Fourth Edition, when I can finish it.

Where this § 1983 trial was only about damages for excessive force during the entry of the wrong apartment based on inaccurate informant information, the district court erred in accepting the defense jury instructions that combined damages and liability for the jury. Plaintiff got a nominal damages verdict and appealed. Guzman v. City of Chicago, 689 F.3d 740 (7th Cir. 2012),* prior appeal Guzman v. City of Chicago, 565 F.3d 393 (7th Cir. 2009). The introductory paragraph telegraphs the seriousness of this case:

Maira Guzman will likely never forget June 14, 2005. She was seven-and-a-half months pregnant. Her husband went to work early that morning, leaving her home alone. As she lay in bed, undressed and talking on the phone, she heard the doorbell ring and the sound of someone knocking on her front door. She slipped on a loose-fitting t-shirt, and began walking toward the door. Sergeant Marvin Bonnstetter of the Chicago Police Department burst through the door as Guzman approached it. Up to ten officers wearing body armor rushed into the apartment, many with their guns drawn. Guzman, fearful and crying, was ordered to lie face down on the floor. When she tried to position herself more comfortably, Officer Danilo Rojas grabbed her and forced her down, pressing her pregnant belly firmly against the floor. The entire team of approximately seventeen Chicago police officers and FBI agents—members of a Joint Gang Task Force—then executed a search warrant, searching the apartment for up to an hour. Guzman sued the City of Chicago, Sergeant Bonnstetter, and Officer Rojas, claiming that the search and seizure were illegal. The district court agreed and entered summary judgment in her favor, finding Bonnstetter and Rojas liable and leaving only the question of damages to be resolved.

They searched the apartment after it was obvious that they were in the wrong apartment. He who lives by the informant, dies by the informant. That’s why the Fourth Amendment requires corroboration of snitches.

“Here, Trooper Miller asked Saucedo if he had any weapons, cannabis or cocaine in his truck or trailer, and Saucedo answered ‘no.’ At that point, Saucedo volunteered that Miller could search, even before Miller requested permission. Trooper Miller specifically asked Saucedo if he could search his truck and trailer, and Saucedo answered, ‘yes.’ So Saucedo was well aware that Miller was looking for drugs.” The officer used a screwdriver to open the back of a TV and found drugs there. The search was valid. United States v. Saucedo, 688 F.3d 863 (7th Cir. 2012). [The Eighth Circuit is contra on this.]

Defendant, represented by an attorney, requested leave to file a pro se supplemental motion to suppress, which was granted, and it was 291 pages long. It only served to “muddy the water” and produce a 100 page opinion. There were multiple individual seizures and searches of luggage, a motel room, computers, and a storage unit. A delay of five days in getting a search warrant was “unfortunate” but not unreasonable considering New Years Day came in between. The case started as a fraud case with identity theft information on the computer, but child pornography was found in files with unsuspecting names, and another search warrant was sought. The searches were all reasonable. United States v. Kowalczyk, 2012 U.S. Dist. LEXIS 108879 (D. Ore. August 3, 2012).*

Defendant was in a house that the police reasonably thought was abandoned. He had a reasonable expectation of privacy in the house, but the police acted reasonably under the circumstances, and the search was valid. United States v. Harrison, 689 F.3d 301 (3d Cir. 2012):

The same logic applies to a person’s abandonment of his house. A person can, through his own acts or omissions, manifest an intent to relinquish his legitimate expectation of privacy in his real property, as the same test applies regardless of the nature of the property. This is, however, a difficult standard to meet, and one that requires a careful analysis of all the facts and circumstances of a particular case. Before the government may cross the threshold of a home without a warrant, there must be clear, unequivocal and unmistakable evidence that the property has been abandoned. Only then will such a search be permitted.

In this case, it is undisputed that the house was not actually abandoned and that Harrison, as a renter, possessed a reasonable expectation of privacy in the property. Therefore, the only issue before us is whether the police officers’ belief that the house was abandoned justified their warrantless entry.

The law does not require that police officers always be factually correct; it does demand, however, that they always be reasonable. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). “Consequently, a reasonable mistake of fact does not violate the Fourth Amendment.” United States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006) (internal quotation marks omitted); see also United States v. Elliott, 50 F.3d 180, 185-86 (2d Cir. 1995). In deciding what is reasonable, a court is to apply an objective standard, looking at whether “the facts available to the officer at the moment … warrant a man of reasonable caution in the belief” that the search was permissible. Rodriguez, 497 U.S. at 188 (internal quotation marks omitted).

So, while a warrantless entry into the home is the “chief evil” the Fourth Amendment was designed to protect (Payton), an objectively reasonable belief it isn’t a home makes it ok?

Search incident to arrest of the person pretty much remains the same and comes from the common law, but search incident of vehicles has changed. State v. Salinas, 169 Wn. App. 210, 279 P.3d 917 (2012).

Not a Fourth Amendment case on appeal, but interesting nonetheless, and one that may reappear as SORNA registrants are polygraphed on release: Defendant was convicted of sexual abuse of his two minor sisters in 1990. While on parole, he had to submit to polygraph examinations as a condition of release over his objection, and he was asked about and admitted viewing child pornography. ICE agents were called by state parole, and they did a knock-and-talk and defendant consented to a search of his computers [not an issue on appeal], and made statements to them which came in at his trial. United States v. Ramos, 685 F.3d 120 (2d Cir. July 2, 2012).*

Defendant’s Franks hearing fails to produce evidence of any material misstatement by the police officer. The CI provided an affidavit that he lied about buying drugs from defendant saying instead that it came from an encounter outside. That part of the affidavit was belied by video surveillance of the scene that showed no encounter outside. United States v. Wallace, 2012 U.S. Dist. LEXIS 122346 (C.D. Ill. June 18, 2012).*

Overruling a 2011 case, the Motor Vehicle Division has to affirmatively determine that an operator’s stop was constitutional before a DL could be suspended. Here, it was based on an officer seeing the motorist’s motorcycle go down and going to assist and finding the driver smelled of alcohol. Schuster v. State Dep’t of Taxation & Revenue, 2012 NMSC 25, 283 P.3d 288 (2012).*

Crossing both sides of lines of the highway was reasonable suspicion for a stop. State v. Womble, 2012 Tenn. Crim. App. LEXIS 668 (August 24, 2012).*

Where a search under a warrant for a body under cement in a basement couldn’t possibly be completed in a day, it was not unreasonable for officers to return the next day. People v. Nevarez, 971 N.E.2d 579, 2012 IL App (1st) 93414 (Ill. App. 2012):

[**P48] This record indicates that the search team proceeded with diligence on the first day of the search, uncovered evidence the cadaver dog’s “hit”) that the body was indeed somewhere in the apartment, but was unable to complete the search that day because the long process of excavation had physically drained the searchers. They left for the night, but demonstrated their intent to continue the search the next day by boarding up the site and posting overnight police guards at both entrances. As the search could not have been completed in a single day, the resumption of the search the next day was not a separate search requiring a second warrant, but was simply a reasonable continuation of the original search for which no new search warrant was required. See United States v. Squillacote, 221 F.3d 542, 557 (4th Cir. 2000) (where search could not have been completed in a single day, “the subsequent entries were not separate searches requiring separate warrants, but instead were simply reasonable continuations of the original search”).

“Reasonable suspicion of criminal activity can found [sic] on the combination of a driver’s extreme nervousness and contradictory statements. United States v. Morgan, 270 F.3d 625, 631 (8th Cir. 2001).” United States v. Felix, 2012 U.S. Dist. LEXIS 46377 (N.D. Iowa April 3, 2012).*

Defendant’s conduct was suspicious enough to permit the officers to conduct a protective weapons sweep of his car for weapons, even though he was in the patrol car at the time. Long specifically permitted it. State v. Broughton, 2012 Ohio 2526, 969 N.E.2d 810 (10th Dist. 2012).*

Defendant’s hiding his hand during a traffic stop that would have made the officer fear he was going for a gun made it reasonable for the officer to pull his weapon and order defendant out. United States v. Bost, 2012 U.S. Dist. LEXIS 80523 (E.D. Tenn. May 3, 2012).*

The search warrant was for “53 West James Circle,” which ostensibly was a duplex, but further investigation had revealed that the duplex was being converted into one unit with one driveway, one water meter, finally learning that it had “a mother-in-law suite” accessible from the common area inside. The search warrant was valid and particular. Conrad v. State, 163 Ga. App. 146, 730 S.E.2d 7 (2012).*

Defense lawyers: How many times have you heard about a warrant allegedly being forged? Here’s one: Altering a search warrant to include the address of the place to be searched that had been omitted [which the issuing magistrate didn’t notice until after it was added] and reprinting the page stated a claim for § 1983 liability, and partial summary judgment was properly granted. No qualified immunity for the factual disputes that remain. Gordon v. Chattooga County, 2012 U.S. App. LEXIS 13554 (11th Cir. July 3, 2012). [Typical: The magistrate didn’t closely read the search warrant.]

Blue halogen headlights were at least reasonable suspicion for a stop. After the stop, RS and then PC developed. One passenger consented to a search of a coat for a weapon, and then to a wallet found for ID, and that produced counterfeit credit cards. There was PC for everybody’s arrest under the common scheme or plan theory of Pringle. Ray v. State, 206 Md. App. 309, 47 A.3d 1113 (2012).*

The warrant for DNA in this case completely failed to provide any showing of probable cause to obtain the sample. Remanded for development of the record on inevitable discovery. State v. Jenkins, 398 S.C. 215, 727 S.E.2d 761 (2012), withdrawn and refiled June 20, 2012:

First, the affidavit must set forth facts as to why the police believe the suspect whose DNA is sought is the person who committed the crime. … The affidavit in this case fails to meet the requirement of showing why the police believed Jenkins committed the crime.

Second, the affidavit does not set forth the source of the facts alleged in it. … Similarly, the affidavit in this case is defective because it contains no indication as to where the detective obtained the information.

Nevertheless, the State argues that because this case involves a sex crime, the magistrate could reasonably have inferred the victim was the source of the information. We disagree. The law does not allow the State to justify a bodily intrusion on the possibility that a magistrate made a correct inference as to the source of the information in the affidavit. Rather, “[m]ere conclusory statements which give the magistrate no basis to make a judgment regarding probable cause are insufficient.” Smith , 301 S.C. at 373, 392 S.E.2d at 183. Moreover, the complete absence of a source for any of the information makes a variety of scenarios possible. For example, the detective could have pieced together the information from other officers, the victim’s neighbors, or even an anonymous tip. This is precisely what the law forbids a magistrate from doing. The magistrate’s “‘action cannot be a mere ratification of the bare conclusions of others.'” Id. (quoting Gates, 462 U.S. at 239).

Third, the affidavit does not contain even a conclusory assertion that the information or its source is reliable. See Gates, 462 U.S. at 238 (stating the circumstances a magistrate must consider include the “veracity” of the persons supplying the information on which the warrant is based). “Without any information concerning the reliability of the informant, the inferences from the facts which lead to the complaint will be drawn not by a neutral and detached magistrate, as the Constitution requires, but instead, by a police officer engaged in the often competitive enterprise of ferreting out crime ….” State v. Johnson, 302 S.C. 243, 248, 395 S.E.2d 167, 169 (1990) (citation and quotation marks omitted).

Viewing these deficiencies together and considering the totality of the circumstances, we find the police did not provide the magistrate a substantial basis on which to find probable cause to believe Jenkins committed this crime.

How bad does an affidavit have to be to fail to meet Gates? Looking at this website, not many. One problem with the nearly 30 years since Gates is that it essentially has condoned officers being slackers and not supporting PC they way they used to have to. Still, magistrates aren’t doing their job. In the last six months I’ve seen search warrant affidavits in my practice that are just defaults to the police conclusions that there would be something found. The officers didn’t even try to show probable cause and the magistrate still rubberstamped it. What are they there for? To stand between the citizen and the government if there is no PC, not be a rubberstamp.

“In light of the appellant’s status not simply as a parolee generally but as a parolee for whom a parole retake arrest warrant was outstanding, we hold, pursuant to the balancing test of United States v. Knights, that the search of Room 133 of the Days Inn, based on reasonable suspicion to believe that the appellant was engaged in criminal activity, was not unreasonable under the Fourth Amendment.” The state didn’t argue a lack of standing in somebody else’s motel room, so they waived it. Feaster v. State, 206 Md. App. 202, 47 A.3d 1051 (2012). This is a Moylan opinion, always entertaining, sometimes overdone. But always entertaining.

In 1945 in Animal Farm, George Orwell told us, “All animals are equal, but some animals are more equal than others.” A similar relativism prevails with respect to the protections of the Fourth Amendment. The people are protected from unreasonable searches and seizures, but probationers and parolees are less protected than other people. More precisely, searches that would be unreasonable with respect to other people would not be unreasonable with respect to them. The key to the puzzle now before us is that the appellant, when searched, was a parolee.

. . .

This case would have presented no Fourth Amendment problem if the appellant, who, if challenged, would have borne the burden of proof on standing, Rakas v. Illinois, 439 U.S. 128, 130-31 n.1, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), Fitzgerald v. State, 153 Md. App. 601, 662, 837 A.2d 989 (2003), aff’d. 383 Md. 484, 864 A.2d 1006 (2004); Burks v. State, 96 Md. App. 173, 195, 624 A.2d 1257, cert. denied, 322 Md. 381, 631 A.2d 451 (1993), had not been able to show a Fourth Amendment interest in Room 133. Such a threshold challenge, it would seem, ought to be an automatic prosecutorial instinct when dealing with hotels and motels.

There is no point in locking the barn door, however, once the horse is out. A failure of the State to raise a challenge to a defendant’s standing at the suppression hearing operates as a waiver of the challenge. …

Defendant’s stop for allegedly having struck an object in the roadway that did not affect the drivability of the car was unjustified. State v. Kurth, 813 N.W.2d 270 (Iowa 2012):

This case presents the question whether an officer is justified in activating his emergency lights and blocking a driver into a parking space under the “community caretaking function” exception to the warrant requirement of the Fourth Amendment based solely upon his knowledge that the vehicle has just struck an object in the roadway and suffered minor damage not affecting the drivability of the car. We conclude that under these circumstances, the community caretaking exception is inapplicable, and the seizure was impermissible. For this reason, we reverse the judgment of the district court and remand this case.

Tinted license plate cover was probable cause for a stop. State v. Tyler, 817 N.W.2d 495 (Iowa App. 2012).*

The officer here had a first tip that defendant as a felon in possession of a firearm and a second tip that defendant had shot an antelope. The officer verified that defendant was a convicted felon. When defendant was seen with the dead antelope in his truck, that was reasonable suspicion of FIPF. United States v. Whitley, 680 F.3d 1227 (10th Cir. 2012).

Defendant’s stop for driving one block without headlights for 12 minutes before sunrise was still based on a traffic violation. His continued detention was based on suspicion he was with a prostitute in the car because, among other things, his zipper was down. Defendant’s allegedly answering questions truthfully “are overwhelmingly outweighed by the suspicious circumstances detailed” in the officer’s testimony. Defendant consented to a search that produced a gun. United States v. Anderson, 2012 U.S. Dist. LEXIS 75992 (M.D. La. May 31, 2012).*

There was probable cause for two searches. The second had a warrant. Even if the information for the second warrant was partially misleading under Franks, there was probable cause without it. United States v. Jones, 473 Fed. Appx. 761 (9th Cir. 2012)* [The actual opinion is not much longer than this.]

In a § 1983 case, the fact a state or local employee lacks statutory arrest authority has no bearing on the Fourth Amendment question of probable cause. Saunders v. Silva, 473 Fed. Appx. 769 (9th Cir. 2012):

The district court found that Silva seized Saunders when he ordered her to leave church and return to her home. It further found that this seizure was unreasonable because Silva, as a Deputy Animal Control Officer within the Yavapai County Sheriff’s Office, lacked the authority to conduct an arrest. Although Silva was not authorized under Arizona law to arrest Saunders, “state restrictions [on arrest authority] do not alter the Fourth Amendment’s protections.” Virginia v. Moore, 553 U.S. 164, 176 (2008). To constitute a Fourth Amendment violation, an arrest by a state officer must be unreasonable under the United States Constitution, rather than simply not in compliance with state laws. See United States v. Becerra-Garcia, 397 F.3d 1167, 1174-75 (9th Cir. 2005).

Encounter with parked car led to a plain view of crack cocaine. Defendant’s patdown led to finding a hard object between his “butt cheeks.” The officer could pull out his waistband to look. This was not a strip search, and the officer took reasonable measures to protect defendant’s privacy as required by the case law. State v. Robinson, 2012 N.C. App. LEXIS 776 (June 19, 2012).

No clear error in the district court’s conclusion that a purse was under joint control of the driver and passenger for consent purposes. The strip search at the jail was justified because of information defendant had secreted drugs in body cavities before. United States v. Bear, 473 Fed. Appx. 525 (9th Cir. 2012).*

The trial court’s credibility determination that it believed the officer that he smelled marijuana and saw smoke coming from defendant’s ice cream truck was binding on probable cause, despite the testimony that no ash or residue of the smoking was found there. Gilliam v. United States, 46 A.3d 360 (D.C. App. 2012) (argued in December 2009).*