The CIs gave detailed information that indicated a pattern of drug dealing from defendant’s house, and that was probable cause and overcame staleness. The district court did not err in denying a hearing on the motion to suppress where the motion only presented questions of law on PC, nexus, staleness, and good faith exception. United States v. Lawson, 2012 U.S. App. LEXIS 5374, 2012 FED App. 0278N (6th Cir. March 13, 2012):

Lawson’s motion, contending that the warrant was based on stale information insufficient to amount to probable cause, set forth purely legal questions. As in Abboud, Lawson “argued that the facts were insufficient to support probable cause” and that there was insufficient corroboration, both of which “contest[] a legal conclusion.” 438 F.3d at 577. Similarly, he “argued that the probable cause was stale[, which] too was a challenge to a legal conclusion.” Id. Finally, Lawson challenged Leon’s applicability to the case, which is also a pure legal question. The issues before that court at the time of its denial were all purely legal questions and, therefore, we do not find that the district court abused its discretion in denying Lawson’s request.

Three people trying to tow away a vehicle without proper towing gear was reasonable suspicion. United States v. Boone, 2012 U.S. Dist. LEXIS 33915 (W.D. N.C. February 1, 2012),* R&R 2012 U.S. Dist. LEXIS 33914 (W.D. N.C. March 8, 2012).*

The district court’s finding of consent is not clearly erroneous. Officers talked to defendant outside his apartment, “and allowed the officers to follow him inside without objection.” Another witness said he held the door for them. United States v. Jackson, 468 Fed. Appx. 447, 2012 FED App. 0149N (6th Cir. 2012) (unpublished).*

“As the Fourth Circuit has recognized, ‘[t]he maximum acceptable length of a routine traffic stop cannot be stated with mathematical precision.’ United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008).” The officer must at least pursue the subject of the stop. United States v. Singleton, 2012 U.S. Dist. LEXIS 17083 (E.D. Va. February 10, 2012):

Significantly, during the course of a routine traffic stop, a law enforcement officer’s “questions or actions … need not be solely and exclusively focused on the purpose” of the initial stop. United States v. Mason, 628 F.3d 123, 131 (4th Cir. 2010). Rather, an officer may “inquir[e] into matters unrelated to the justification for the traffic stop, … and may take other actions that do not constitute ‘searches’ within the meaning of the Fourth Amendment, such as conducting a dog-sniff of the vehicle,” provided that those additional actions or inquiries “do not measurably extend the duration of the stop.” United States v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2011) (internal quotation marks and citations omitted). 10 Put differently, the scope of the unrelated questions or actions must not demonstrate that the officer has “definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation;” nor may the unrelated questions or actions “constitute[] the bulk of the interaction” between the officer and the motorists. United States v. Digiovanni, 650 F.3d 498, 508-09 (4th Cir. 2011) (internal quotation marks and citation omitted).

Tasering a jaywalker in the back was not clearly established as excessive at the time it happened, so qualified immunity applies. Cockrell v. City of Cincinnati, 468 Fed. Appx. 491, 2012 FED App. 0216N (6th Cir. 2012):

Cases addressing qualified immunity for taser use fall into two groups. The first involves plaintiffs tased while actively resisting arrest by physically struggling with, threatening, or disobeying officers. In the face of such resistance, courts conclude either that no constitutional violation occurred, or that the right not to be tased while resisting arrest was not clearly established at the time of the incident. Mattos, 661 F.3d 433 (holding, in consolidated cases, that 2004 and 2006 taser deployments constituted excessive force, but did not violate clearly established law, where one plaintiff, a pregnant woman pulled over for speeding, refused to sign citation, became agitated, screamed at officers, clung to steering wheel, and was tased three times, and other plaintiff, also a woman, was shot with taser in dart mode as she stood between officers and her large, drunken, aggressive husband who was under arrest); McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011) (holding that 2007 taser deployment against misdemeanant who made sudden move toward window while being questioned by police and told not to “try anything stupid” did not constitute excessive force, even though misdemeanant fell out of window to his death after being tased); Bryan, 630 F.3d 805 (holding that 2005 taser deployment against motorist yelling angrily and acting erratically after traffic stop for failing to wear seatbelt violated Fourth Amendment, but not clearly established law); Baird v. Ehlers, No. C10-1540JLR, 2011 WL 5838431 (W.D. Wash. Nov. 21, 2011) (holding that using taser three times on man who, in “drunken stupor,” was physically removed from city bus, and engaged in verbal and physical confrontation with officer, may have been excessive use of force, but that law regarding taser use was not clearly established as of November 2009); Carter v. City of Carlsbad, No. 10–CV–1072–IEG, 2011 WL 2601027 (S.D. Cal. June 30, 2011) (holding that use of taser against large, belligerent, drunken ex-marine who “took an offensive fighting stance” may have been excessive, but did not violate clearly established law on October 31, 2009); Azevedo v. City of Fresno, No. 1:09–CV–375, 2011 WL 284637 (E.D. Cal. Jan. 25, 2011) (holding that use of taser against suspect detained during investigation of burglary, who fled after being asked about weapons then was warned to stop, may have violated Fourth Amendment, but did not violate clearly established law, as of November 2007); Sanders v. City of Dothan, 671 F. Supp. 2d 1263 (M.D. Ala. 2009) (holding that officer who tased detained, but uncooperative, suspect using drive-stun mode did not violate clearly established law, as of August 2005); Beaver v. City of Federal Way, 507 F. Supp. 2d 1137 (W.D. Wash. 2007) (holding that, of five August 2004 taser deployments against suspect who fled scene of residential burglary and refused to obey command to stop, first three were not excessive uses of force, since officer had to make split-second decisions on how to subdue disobedient, fleeing felon, while last two constituted excessive force because suspect was no longer immediate threat; qualified immunity still was appropriate, however, because law was not clearly established).

Defendant had to understand that a search of his person for drugs would mean going into the pockets. United States v. Stinson, 468 Fed. Appx. 285 (4th Cir. 2012) (unpublished).*

33 minute delay in the stop here was reasonable and caused by the language barrier and waiting for an interpreter to arrive. United States v. Hernandez-Coria, 2012 U.S. Dist. LEXIS 24624 (D. Minn. January 25, 2012).*

Defendant was stopped in a taxicab, and marijuana was seen in plain view. People v Souffrant, 2012 NY Slip Op 1521, 93 A.D.3d 885, 939 N.Y.S.2d 190 (3d Dept. 2012).*

A dog alert on a car justifies a search of the trunk. A new Fourth Amendment issue raised in a reply brief is waived. United States v. Greene, 468 Fed. Appx. 303 (4th Cir. 2012) (unpublished):

Greene’s second argument — that the search of the trunk was outside the scope of a warrantless search — is likewise meritless. See Kelly, 592 F.3d at 589-90 (“The scope of a search pursuant to [the automobile] exception is as broad as a magistrate could authorize. Thus, once police have probable cause, they may search ‘every part of the vehicle and its contents that may conceal the object of the search.'”) (quoting United States v. Ross, 456 U.S. 798, 825 (1982) (citation omitted)).

Information from Medivac crew was sufficient to provide probable cause defendant was under the influence when he was taken to the hospital after a wreck. Crowe v. State, 314 Ga. App. 527, 724 S.E.2d 831 (2012).*

How much does it take to be suspected of smuggling aliens? Not much. United States v. Castillo-Gamez, 466 Fed. Appx. 859 (11th Cir. 2012)*:

Here, the district court properly concluded that Barrientos had a reasonable suspicion that the minivan carried illegal aliens. As Barrientos testified, the minivan had out-of-state license plates, tinted windows, and appeared to be weighted down. Barrientos knew that smugglers often used I-95 to avoid the cameras and tolls on the Florida Turnpike. And when he pulled along side the minivan, Barrientos noticed that Castillo-Gamez appeared stiff and did not make eye contact. Considering these facts together, Barrientos had a reasonable suspicion that the minivan contained illegal aliens. See Bautista-Silva, 567 F.3d at 1272-74.

Defendant couldn’t appeal the search issue in his guilty plea without a conditional plea. United States v. Dorsey, 467 Fed. Appx. 304 (5th Cir. 2012).*

Defendant’s driving 52 in a 65 zone in the left lane on I-10 was not reasonable suspicion to stop him where there was no showing that he impeded traffic. Delafuente v. State, 367 S.W.3d 731(Tex. App. – Houston (14th Dist.) 2012), Vacated by, Remanded by, 2012 Tex. Crim. App. LEXIS 813 (Tex. Crim. App., June 20, 2012).*

Defendant was detained in the police car for five minutes while a DL check was run, and this did not violate the Fourth Amendment. Defendant’s unMirandized admissions of consumption of beer made then were admissible. While a pat-down search was conducted prior to defendant’s statements, this search did not convert this routine traffic stop into a custodial situation as the search was nominally consensual, it was concluded in a few seconds, and nothing was found during the search. State v. Serafin, 2012 Ohio 1456, 2012 Ohio App. LEXIS 1295 (11th Dist. March 30, 2012).*

A license plate in the back window and not where it belongs is reason for a stop in Ohio. State v. Fredo, 2012 Ohio 1496, 2012 Ohio App. LEXIS 1314 (7th Dist. March 30, 2012).*

The remedy for an alleged Fourth Amendment violation for an unlawful stop is a motion to suppress, not a motion to dismiss. Reasonable suspicion is required for the stop, not probable cause, and the trial court erred. State v. Kilbarger, 2012 Ohio 1521, 2012 Ohio App. LEXIS 1327 (4th Dist. March 19, 2012).*

Uncorroborated anonymous tip did not provide reasonable suspicion. United States v. Melendez, 2012 U.S. Dist. LEXIS 53663 (S.D. Fla. April 4, 2012).*

Civil case over search that led to revocation was not barred by Heck because the evidence was admissible, illegal search or not. Henderson v. Davis, 467 Fed. Appx. 829 (11th Cir. 2012).*

Search warrant after controlled buy was not stale because the collective information showed a continuing operation. United States v. Tisdale, 2012 U.S. Dist. LEXIS 53294 (D. Kan. April 16, 2012).*

“[A]ny ordinary visitor to Defendant’s apartment would have understood Defendant’s actions to constitute assent to Officer Jordan’s entry into Defendant’s apartment.” United States v. Murphy, 2012 U.S. Dist. LEXIS 52246 (E.D. Tenn. April 13, 2012).*

Defendant’s car was stopped for a traffic offense and a pretext for a drug investigation. There was justification for the traffic stop but no reasonable suspicion for anything else. A de minimus Fourth Amendment violation is rejected as inconsistent with Arizona v. Johnson which had reasonable suspicion. Murray v. State, 45 A.3d 670 (2012):

This case, then, involves baseless police investigation after the conclusion of a traffic stop. The dissent nevertheless defends this continuing investigation, describing it as a de minimis intrusion. The first problem with this conception is that the relevant United States Supreme Court precedent focuses on whether police extended the traffic stop’s duration “measurably,” not on whether police extend the stop “significantly” or “substantially.” In Arizona v. Johnson, the Court said that “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of a traffic stop.” In Johnson, the Court permitted an officer who suspected criminal activity on the strength of gang clothing, tattoos, and the presence of a police scanner radio to perform a protective patdown at the start of a traffic stop. That is, the ‘unrelated matters,’ in Johnson, were not matters that the officer dealt with after the traffic stop, but measures taken for self-protection at the very start of the traffic stop. None of the officers in this case spotted items in the car that provided a reasonable basis to think the car’s occupants posed a threat, nor did they conduct protective patdowns at the start of the encounter.

The officer reached in and took the keys to defendant’s car without reasonable suspicion, and then he started searching it. The defendant then abandoned the car. The abandonment was caused by the illegal search, and suppression was properly granted. United States v. Biddle, 467 Fed. Appx. 693 (9th Cir. 2012) (unpublished):

A person retains some expectation of privacy in his car. See New York v. Class, 475 U.S. 106, 114 (1986). Neither the officer’s seizure of the keys or search of the glove compartment of an unoccupied vehicle can be justified as a stop under Terry v. Ohio, 392 U.S. 1 (1968). The officers knew the car was registered to Biddle and was not stolen before they searched the glove compartment. The search cannot be justified as a search incident to arrest because Biddle was not arrested at that time. Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 1721 (2009). Nor can the search be justified on the grounds of officer safety because Biddle was not identified and present during the search. Michigan v. Long, 436 U.S. 1032, 1049 (1983). These initial actions by the officers tainted any succeeding actions by Biddle, whether or not those succeeding actions constituted abandonment. United States v. Gilman, 684 F.2d 616, 620 (9th Cir. 1982). Moreover, these initial searches also tainted the towing of the car and subsequent search of the trunk under a community caretaking function rationale. See Wong Sun v. United States, 371 U.S. 471, 488 (1963).

Plaintiff was civilly committed as a sex offender, and his 161 audio DVDs and CDs were seized to see if they were sexually explicit. It took months to do the review. Because there had been no prior case on it, the officials involved were entitled to qualified immunity. As for the merits, he has a right to the discs, but the institution has an institutional security need to evaluate them for sexually explicit materials. Ahlers v. Rabinowitz, 684 F.3d 53 (2d Cir. 2012).

This Circuit has not articulated the standard by which to analyze censorship of mail in the civil commitment context. “Restrictions on prisoners’ mail are justified only if they ‘further[] one or more of the substantial governmental interests of security, order, and rehabilitation … [and] must be no greater than is necessary or essential to the protection of the particular governmental interest involved.'” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (alterations in original) (quoting Washington, 782 F.2d at 1139). With regard to legal mail, “an isolated incident of mail tampering is usually insufficient to establish a constitutional violation. Rather, the inmate must show that prison officials ‘regularly and unjustifiably interfered with the incoming legal mail.'” Id. (citations omitted) (quoting Cancel v. Goord, No. 00 CIV 2042 LMM, 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29, 2001)). In the context of civil commitment, this formula is easily adapted. A patient must show regular and unjustifiable interference with incoming legal mail; the actions of facility staff in restricting civilly committed individuals’ access to legal mail are justified if they advance or protect the state’s interest in security, order, or treatment and the restrictions imposed are no greater than necessary to advance the governmental interest involved.

Retaining defendant’s drivers license while asking pointed questions about potentially illegal conduct was a seizure because the defendant would not feel free to go. State v. Scott, 966 N.E.2d 85 (Ind. App. March 1, 2012), ordered published March 16, 2012.

Defendants failed to make a substantial preliminary showing of material falsity to get a Franks hearing. United States v. Neal, 2012 U.S. Dist. LEXIS 81849 (E.D. Tenn. April 13, 2012).*

The district court concluded that defendant’s rationale for consenting was that he hoped that the police wouldn’t find what they were looking for, but they did. That was a reasonable interpretation of the facts supported by the evidence. “That was a rational gamble, but one that Welch lost. Welch’s consent was not coerced, just constrained, by having to place his bet on one of two poor alternatives. Maybe if he let them in, the police would want to get the search done quickly and fail to find his contraband. Or maybe if he put them to the trouble of getting a search warrant, they would search more thoroughly because he had inconvenienced them.” United States v. Welch, 683 F.3d 1304 (11th Cir. 2012).*

The fact that a search under the automobile exception happened at the police station after the vehicle was removed was not unreasonable under the circumstances. “‘[T]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'” State v. Minitee, 210 N.J. 307, 44 A.3d 1100 (2012):

Moreover, we do not consider it fatal to the validity of this search that by the time it took place the vehicle had been at police headquarters for some period of time. The difficulties the police faced were exacerbated by the multiple sites that had to be carefully examined for clues with respect to the identity of the perpetrators, the critical need to locate the handgun Baldwin told the police he had discarded when he was on the run, as well as by the fact that the events were not unfolding during normal business hours but, rather, close to midnight and the hours beyond in the dead of winter. The confluence of those multiple factors lead us to conclude that the actions of the police were reasonable under the circumstances. “‘[T]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'” State v. O’Donnell, 203 N.J. 160, 162 (2010) (quoting State v. Bogan, 200 N.J. 61, 81 (2009)). It is only searches that are objectively unreasonable that run afoul of constitutional principles. State v. O’Hagen, 380 N.J. Super. 133, 141 (App. Div. 2005), aff’d, 189 N.J. 140 (2007) (upholding requirement that upon conviction defendant provide a DNA sample). Nothing within Pena-Flores would lead us to conclude that the search of this vehicle was objectively unreasonable in the totality of the circumstances.

While the application for the search warrant failed to show nexus to defendant’s car, the arrest warrant application presented to the magistrate just five minutes earlier did. Therefore, it was apparent the search warrant application omission was a mere oversight, and the magistrate apparently considered both in issuing the warrant, and this was not improper. The good faith exception would apply in any event. State v. Cunningham, 88 So. 3d 1196 (La. App. 4th Cir. 2012):

In sum, we find that Detective Matthews’ failure to include information in the affidavit for the search warrant linking the residence to the Mustang used in the shooting was an apparent oversight. Nonetheless, the magistrate was aware of this link because it was contained in the affidavit for Williams’ arrest warrant, which the magistrate read and signed mere minutes before reading the affidavit for the search warrant for the residence. Detective Matthews and the other officers were not unreasonable in relying on the validity of the search warrant for the residence. Nor is there evidence of any police misconduct on Detective Matthews’ part. Given these circumstances coupled with the fact that the magistrate was in possession of the information linking the residence to the Mustang before he signed the search warrant for the residence, none of the exceptions to the good faith doctrine applies to this case. Thus, the district court did not err in denying the motion to suppress the evidence seized from the residence. Accordingly, the Relator’s writ application is denied.

Defendant was arrested for talking to a man on the street that the police were moving in to arrest. The state framed the issue as whether the defendant had standing to challenge the arrest of the other man, but that was not the issue at all; it was his own arrest. At any rate, if the arrest of defendant depended on the probable cause to arrest the other man, the state failed to put on any proof of what the arrest for the other man was based on. People v McLoyd, 35 Misc. 3d 822, 946 N.Y.S.2d 829, 2012 NY Slip Op 22027 (N.Y. Co. 2012):

While it is true that in some limited circumstances the courts have permitted the police to detain people in order to arrest another individual in complete safety, the circumstances in those cases typically involve confined spaces and a significant relationship between the suspect they are about to arrest and his or her companion. …

Here, there were no such circumstances justifying the forcible detention of defendant. Six police officers, fully armed and wearing bulletproof vests and tactical gear, presented overwhelming force while defendant was simply walking away from Davis. Defendant had done nothing to suggest he posed a risk to the officers, and his minimal connection to Davis — a brief conversation on a public street in front of a bodega — does not support an inference that the two were confederates in wrongdoing or that they even knew each other. Certainly, the legitimate and understandable caution of police officers engaged in the dangerous task of arresting a violent fugitive may have permitted Detective Kuhnapfel to approach defendant to gain some explanatory information regarding if and how well he knew Davis. It may also have permitted him to briefly detain defendant, short of a forcible seizure, to ensure that defendant posed no risk to the arresting officers. But defendant’s mere presence in the company of a person the police intended to arrest did not permit the police to summarily force defendant against a nearby wall. The frisk that followed was the direct result of this impermissible forcible detention, and thus the recovery of the weapon was unlawful.

The SWAT Team making street arrests? What has NYC come to? Sounds like an armed camp.

The fact an officer does not give a citation is not determinative of whether there was reasonable suspicion for the stop in the first place. Mosley v. State, 89 So. 3d 41 (Miss. App. 2011).*

The stop was for a seat belt violation, but the officer encountered the strong smell of burnt marijuana as he approached. From the video, it is apparent that defendant consented, but the officer had probable cause from the smell of marijuana. Austin v. State, 72 So. 3d 565 (Miss. App. 2011).*

Officers had reasonable suspicion to believe that the defendants were involved in a carjacking because they fit the description in the BOLO and near the scene and they were evasive as officers approached. This was more than a here hunch. State v. Davis, 354 S.W.3d 718 (Tenn. 2011).*

Defendant was “arrested” in his home by officers at his window with guns drawn who ordered him to the door to come out. United States v. Burch, 838 F. Supp. 2d 1369 (S.D. Ga. 2011), aff’d, 466 Fed. Appx. 773 (11th Cir. 2012):

That the officers, at least according to their testimony, never physically entered the trailer to conduct the arrest does not change the fact that an arrest took place inside the home. Although it does not appear that the Eleventh Circuit has directly addressed this issue, “every court that has considered the issue … has concluded that if the police force a person out of his house to arrest him, the arrest is deemed to have taken place inside his home, and the Payton warrant requirement applies.” Fisher v. City of San Jose, 509 F.3d 952, 959 (9th Cir. 2007). In analyzing whether the warrant requirement applies, “it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home.” Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir. 1997), rev’d on other grounds, 499 F.3d 199 (3d Cir. 2007) (holding that arrest took place inside home even though officers did not physically enter residence to place suspect in custody); …

Defendant’s claim that defense counsel was ineffective for not challenging racial profiling in his stop falls short because it is based on speculation and conjecture. Brooks v. United States, 2011 U.S. Dist. LEXIS 23488 (W.D. N.C. February 22, 2011).*

FISA probable cause determinations are subject to a split on what the standard of review is for issuance of a warrant. Also, defendant doesn’t get to see the affidavit for the FISA warrant where the Attorney General certifies disclosure is contrary to national security. United States v. Mahamud, 838 F. Supp. 2d 881 (D. Minn. 2012):

There is no agreement among the federal courts as to whether the probable cause determination is made de novo or if a deferential standard is applied. See Abu-Jihaad, 630 F.3d at 130; Warsame, 547 F. Supp.2d at 990 (court reviewed probable cause determination de novo, given that the Court’s review is ex parte). Even applying a de novo review, however, the Court finds that there was sufficient probable cause set forth in the applications and related materials that Defendant was an agent of a foreign power, al-Shabaab, and that the places to be searched or to be surveilled were being used by Defendant.

Defendant’s objection to a search after the jury heard about the evidence was a waiver of the issue. Black v. State, 358 S.W.3d 823 (Tex. App. – Ft. Worth 2012).

Defendants and their vehicle matched the description of people alleged to have stolen from open houses. They were found within 30 minutes of the initial dispatch in the same city in a distinctive vehicle. The stop was with reasonable suspicion, and they admitted then to having been at the open house in question. People v. Rangel, 206 Cal. App. 4th 1310, 142 Cal. Rptr. 3d 728 (1st Dist. 2012);* People v. Little, 206 Cal. App. 4th 1364, 142 Cal. Rptr. 3d 466 (4th Dist. 2012).*

Claimant’s money was seized after a valid consent, and his testimony was found incredible on the consent issue. He was flagged by an Amtrak drug courier profile: one-way ticket bought just before departure for a sleeper car on somebody else’s credit card. United States v. Funds in the Amount of $239,400, 2012 U.S. Dist. LEXIS 82682 (N.D. Ill. June 5, 2012).*

In a forfeiture case, the government is not required to show probable cause or meet its ultimate trial burden. Therefore, claimant’s 12(b)(6) motion to dismiss is denied, and he must answer. United States v. $33,984.00 in United States Currency, 2012 U.S. Dist. LEXIS 83119 (D. Neb. June 14, 2012).*

Furtive movements under the seat at the time of stop with one occupant opening and closing the glove compartment and another feigning sleep justified a protective sweep of the car. People v Newman, 2012 NY Slip Op 2816, 96 A.D.3d 34, 942 N.Y.S.2d 93 (1st Dept. 2012).*

The trial court held that the defendant lacked standing to contest a search, and defendant did not show that defense counsel was ineffective for not getting to the merits of the search. State v. Jackson, 2012 N.C. App. LEXIS 510 (April 17, 2012).*

A wiretap in New York provided probable cause defendant would be picking up drugs in Tennessee. Defendant had a suspended DL, and the owner also consented to the search. United States v. Prater, 2012 U.S. Dist. LEXIS 53739 (E.D. Tenn. February 17, 2012).*