The government didn’t prove the inventory here satisfied the department inventory policy, so the inventory was suppressed. United States v. Caskey, 2012 U.S. Dist. LEXIS 103026 (D. Minn. July 25, 2012)*:

Furthermore, Officer Bobo did not describe the places that department policy allowed an officer to search in a vehicle. It is thus possible that the location of Officer Bobo’s search went beyond the policy’s dictates. This concern is particularly acute because Officer Bobo did not testify as to where he found each item located in the truck. See Best, 135 F.3d at 1225 (holding that an inventory policy allowed for the opening of any opaque containers but did not allow looking inside door panels).

The mere fact that Officer Bobo testified that he complied with NBPD’s policy is insufficient to meet the United States’ burden; the United States must define the policy and demonstrate that Officer Bobo complied with it. See Kennedy, 427 F.3d at 1144. The United States has not met its burden of producing evidence that proper inventory search procedures were in place and that law enforcement complied with those procedures. See id. Accordingly, the Court will suppress the items seized from the interior of Caskey’s truck during the inventory search.

United States v. Best, 135 F.3d 1223 (8th Cir. 1998), is one of mine. And, the Trooper who made the search is now a friend of mine; he’s an elected Sheriff.

OnTheMedia.org: Domestic Drones in North Dakota:

In Afghanistan and Yemen, armed drones have become an effective military tool. In the US, unarmed drones have become a tool of domestic law enforcement. Brooke speaks with Star Tribune military affairs reporter Mark Brunswick about the use of an unarmed drone to help end a dispute over six missing cows in North Dakota.

One month old information that defendant had possession of a firearm stolen during the burglary of a DEA agent’s house was not too stale for issuance of a search warrant. Guns have enduring value to the holder. United States v. Sanchez, 2012 U.S. Dist. LEXIS 95055 (E.D. Pa. July 10, 2012).*

The stop was valid for a traffic offense, and the prompt use and alert of a drug dog created probable cause to search. United States v. Irons, 2012 U.S. Dist. LEXIS 93935 (N.D. W.Va. July 9, 2012),* adopted 2012 U.S. Dist. LEXIS 103708 (N.D. W.Va. July 26, 2012).*

Defendant did not show that his attorney was ineffective for not moving to suppress where the attorney considered that the defendant’s stop was valid and the search was by consent. Defendant’s claims otherwise are conclusory. Villareal v. United States, 2012 U.S. Dist. LEXIS 95086 (E.D. Tex. June 12, 2012).*

Joining the Third, Eighth, and Tenth Circuits, the Sixth Circuit holds that a drug dog’s instinctive jumping into a car is not a search. United States v. Sharp, No. 10-6127, 2012 FED App. 0232P (6th Cir. July 27, 2012):

Unlike other circuits, this Court has not addressed this exact situation. In another case involving a police canine, however, we have stated that “absent police misconduct, the instinctive acts of trained canines … do[] not violate the Fourth Amendment.” Reed, 141 F.3d at 650. In Reed, the defendant allowed the police and a trained canine to enter his apartment to search for a fugitive burglar. Id. at 647. The police gave the canine the signal to search for intruders and released the dog. Id. The defendant did not know that the canine was also trained to search for drugs. Although not ordered to search for drugs, the dog alerted to the presence of drugs in several areas during the search. Id. The canine alerted to the presence of drugs inside a dresser and knocked one of the dresser drawers off its runners. Id. After the drawer fell to the ground, the police observed, in plain view, what appeared to be narcotics inside the dresser drawer. Id. This Court noted that “at least two circuits have found that, absent police misconduct, the instinctive acts of trained canines, such as trying to open a container containing narcotics, do[] not violate the Fourth Amendment.” Reed, 141 F.3d at 650 (citing United States v. Lyons, 957 F.2d 615, 617 (8th Cir. 1992); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989)).

Our sister circuits who have addressed this precise issue are unanimous in holding that a dog’s instinctive jump into a car does not violate the Fourth Amendment as long as the canine enters the vehicle on its own initiative and is neither encouraged nor placed into the vehicle by law enforcement. See, e.g., United States v. Pierce, 622 F.3d 209, 213-14 (3d Cir. 2010); United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989). …

Person who could exclude others from his room he rented in a house had standing to challenge a search of the room. The person who consented had neither actual nor apparent authority to consent to the search of the room, and it wasn’t reasonable for the police to believe he did. United States v. Aponte, 2012 U.S. Dist. LEXIS 103577 (E.D. Kan. July 5, 2012).*

Seven days of surveillance gave reasonable suspicion in this drug case. United States v. Soto-Enriquez, 2012 U.S. Dist. LEXIS 102816 (N.D. Ga. July 24, 2012).*

A tow truck driver repossessing a vehicle called 911 to complain that he just had a gun pulled on him and the vehicle taken. Police stopped the vehicle a minute away from there and frisked the occupants finding no gun. Other officers frisked the vehicle and found the gun in the backseat. The frisk of the vehicle was valid. Also, the vehicle was going to be towed away for other reasons, and it would have been inventoried. United States v. Price, 2012 U.S. Dist. LEXIS 102855 (D. Utah July 23, 2012).*

There was probable cause to arrest defendant for kidnaping, and he doesn’t dispute it. The inventory of his vehicle [why was it not searchable with PC?], however, was invalid because the search was for criminal evidence, like hair follicles, not for high value items. United States v. Caskey, 2012 U.S. Dist. LEXIS 103026 (D. Minn. July 25, 2012):

In contrast, because the Court finds that the United States has not met its burden of establishing that Officer Bobo conducted the search in accordance with standard police procedures, it finds that the items seized inside the truck are inadmissible. When describing the items that officers could seize pursuant to department policy, Officer Bobo did not define the term “high value items.” The Court finds that some of the items seized by Officer Bobo – including receipts, hair follicles, and fingerprints – are not “high value items” within the plain meaning of that term. While it is possible that other items seized by Officer Bobo – such as the camera or women’s clothing – might qualify as “high value items” pursuant to department policy, the Court cannot make this determination without further information about the policy.⁶

6. Furthermore, the NPBD policy may be unconstitutional if it allows investigation into items of “value” only to the police. “[P]olice ‘may keep their eyes open for potentially incriminating items that they might discover in the course of an inventory search, as long as their sole purpose is not to investigate a crime,'” United States v. Petty, 367 F.3d 1009, 1013 (8th Cir. 2004) (quoting United States v. Marshall, 986 F.2d 1171, 1176 (8th Cir. 1993)), and “the coexistence of investigatory … motives will not invalidate the search.” United States v. Wallace, 102 F.3d 346, 348 (8th Cir. 1996) (internal quotation marks omitted). However, inventory search policies must relate to the purpose of inventory searches, Best, 135 F.3d at 1225, and an officer’s discretion cannot be exercised for the “sole purpose” of investigating a crime, Hall, 497 F.3d at 851.

State officers seized a camera and memory card from defendant’s apartment based on statements from two witnesses that they saw images on defendant’s camera of him raping two young girls. Even if the state officials unlawfully seized the camera, the search warrant for what was held was reasonable. The federal search warrant warrant was executed four days after it expired, but probable cause still existed so the search was still reasonable. United States v. Ahmad, 2012 U.S. Dist. LEXIS 74325 (W.D. N.Y. May 29, 2012), adopted 2012 U.S. Dist. LEXIS 103003 (W.D. N.Y. July 24, 2012):

Courts have declined to order suppression of evidence seized pursuant to belatedly-executed warrants where probable cause still existed at the time of the execution and the police did not deliberately disregard the terms of the warrant. E.g., United States v. Sims, 428 F.3d at 955 (one-day delay in executing search warrant does not justify suppression because warrant was executed within the period prescribed by Rule 41, probable cause to search still existed and police did not intentionally disregard warrant’s terms; “[because] non-prejudicial and unintentional violations of Rule 41 do not result in suppression, then a fortiori technical violations of the warrant itself compel the same result”); United States v. Gerber, 994 F.2d at 1561 n.4 (denying suppression where search was conducted three days after the warrant’s expiration; “inadvertent, technical violation of Rule 41 should not preclude key incriminating evidence for which a valid warrant based on abundant probable cause was obtained”); United States v. Huslage, 480 F. Supp. 870, 875 (W.D. Pa. 1979) (denying suppression where warrant expired at 5:00 a.m., police conducted second search at 10:00 a.m. and probable cause to search still existed).

In this case, the evidence was seized by the Brighton Police on June 6, 2011, and remained in their possession since that date. The federal warrant was issued on August 25, 2011, and directed its execution by September 2, 2011. Couch executed the warrant on September 6, 2011, four days after the expiration date and twelve days after it was issued. Despite the warrant’s expiration, probable cause to seize the items had not lapsed — the items were still in police custody and were as likely to constitute or contain relevant evidence on September 6 as they were on August 25, 2011. Ahmad has made no showing or even suggestion of prejudice resulting from the belated execution and no evidence exists that Couch intentionally disregarded the terms of the warrant. Indeed, Couch has explained that the delay resulted from his mistaken belief that he had sixty days to execute it. On this record, I find that the delay in executing the warrant did not constitute an unreasonable seizure within the meaning of the Fourth Amendment.

Police had consent from a roommate to enter the apartment, but defendant was asleep, and the officers had no consent to enter his bedroom. Therefore, the search of the bedroom violated the Fourth Amendment. Still, under Herring, the court has to determine whether exclusion is justified, and it is. United States v. Wohlmaker, 2012 U.S. Dist. LEXIS 103069 (D. Mont. July 24, 2012):

Where police act in objectively reasonable good-faith belief that their conduct is lawful, based on a statute, case law, a warrant, or paperwork that is later found to be incorrect or to violate the Fourth Amendment, the exclusionary rule does not apply because the deterrent value is low. Davis, 131 S. Ct. at 2427-28 (citing cases involving good-faith reliance). On the other hand, where the police deliberately and flagrantly violate the Fourth Amendment, suppression does have a deterrent effect which may outweigh its costs. Herring, 555 U.S. at 143-144. The standard is objective, not subjective, but an officer’s knowledge and experience may be considered. Id. at 145. “It is the government’s burden to show that evidence is not ‘fruit of the poisonous tree.'” United States v. Shetler, 665 F.3d 1150, 1157 (9th Cir. 2011). In this case such a showing was not made.

Here, the officers did not rely on any statute, case law, warrant, paperwork, consent, or other belief that would justify their intrusion into Wohlmaker’s bedroom. Case law unquestionably establishes that a person has a legitimate expectation of privacy in his own bedroom, and that only a person with apparent or actual authority may consent to a search of that bedroom. It is also firmly established that consent to search a house or apartment does not extend to others’ private bedrooms within that house, unless the consenting individual has joint access and control of the room. E.g. Mejia, 953 F.2d at 466. Nonetheless, the experienced officers in this case entered the bedroom they believed to be Wohlmaker’s without a warrant, without consent, and without exigent circumstances. They did not attempt to ask Ritchie for permission to enter Wohlmaker’s bedroom, and they did not ask if Ritchie had authority to give such consent. Nor did they attempt to wake Wohlmaker from the hallway to obtain his consent to enter.

The deterrence value of suppression in this case is clear, while the social costs of suppression are low. Wohlmaker could face other charges and has been released on his own recognizance for over a year. Police officers cannot justify peering in every private area of a shared home when consent has only been obtained to enter the common areas. Permitting such activity—which is in clear violation of the Fourth Amendment—would have a high social cost and impact on individuals’ legitimate expectation of privacy in their own bedrooms. Thus the evidence that directly and indirectly derived from the officers’ illegal intrusion must be suppressed.

DailyTech.com: D.C. Cops: You Can Take Pictures, But we Can Still Seize Your Cameras by Jason Mick:

Police can no longer detain citizens for taping them doing their job on taxpayer dollars

You pay the bills of an employee. But suddenly, he’s holding you at gunpoint, all because you videotaped him while on the job to make sure he was doing the right thing.

I. Police Detain Man for Photographing Him, Forced to Apologize Later

That’s the situation a taxpayer named Jerome Vorus found himself in when he was detained by police officers in Washington D.C. for taking pictures of them on the job. The incident occurred in Washington D.C.’s historic Georgetown district, during a traffic stop by police officers. Mr. Vorus — not involved in the stop — decided to use the incident to practice his skills as a photojournalist, chronicling the stop in pictures.

Affidavit for medical records that “might” provide evidence that defendant was DUI was constitutionally insufficient as based on an assumption. It was thus “bare bones” for good faith purposes. Willoughby v. State, 727 S.E.2d 194 (Ga. App. 2012). [Note: Georgia Court of Appeals cases were only available on LexisOne which ceased April 1. This court now has the distinction of being the only court in America without decisions online.]

Defendant was subjected to a full custodial arrest, so removing a .45 bullet from his pocket was not unreasonable under Terry. United States v. Villa, 2011 U.S. Dist. LEXIS 154625 (N.D. Ga. September 20, 2011), adopted, 2012 U.S. Dist. LEXIS 48448 (N.D. Ga. April 5, 2012).*

Whether the cooperating witness had apparent authority to consent was shown to be a factual dispute that required a hearing[, and the court will tell the parties what the law is in advance]. United States v. Wright, 2012 U.S. Dist. LEXIS 47828 (E.D. N.Y. April 2, 2012)* [Why didn’t the court just let the parties do it? This order is saying there’s a factual dispute for hearing, and there’s been no factual development.]

“The defendant consented, and that obviated having to decide whether the third-party consent was valid. Inter alia, the undersigned observes that defendant is an adult, has had previous experience with police and is doubtless familiar with his rights.” United States v. Ray, 2012 U.S. Dist. LEXIS 48391 (E.D. Tenn. March 16, 2012).*

In a “concealed carry” state, it is still possible for an officer to have reasonable suspicion that a person is possessing a gun in violation of law. Factors may warrant an officer to conduct a stop and frisk on reasonable suspicion of possession of a weapon, even though it creates a risk of stopping innocent people. United States v. Rodriguez, 836 F. Supp. 2d 1258 (D. N.M. 2011):

Rodriguez may object that the practical end result of the Court’s decision is that, in New Mexico, a police officer’s observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances. The Court reiterates, however, that it is not deciding whether seeing a concealed handgun by itself might trigger a reasonable suspicion that a crime is being committed under all factual scenarios. The surrounding circumstances would likely affect that inquiry in ways the Court need not address today.

Consequently, the officers could permissibly conduct an investigatory stop and question Rodriguez based on their reasonable suspicion that he was carrying a concealed firearm, at least until the investigatory stop transformed into an arrest under the Fourth Amendment. “[A] police officer may in appropriate circumstances,” possession of reasonable suspicion, “and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, 392 U.S. at 23.

Also noted at Volokh Conspiracy.

Defendant claimed the affidavit for the search warrant failed to show nexus to his house. The two master affidavits for search warrant totaled 365 pages, and they showed that defendant conducted business of the conspiracy from both his house and office, and that showed nexus for a search of the house. United States v. Dimora, 836 F. Supp. 2d 534 (N.D. Ohio 2011).*

In a suit over the constitutionality of a rental property inspection ordinance, the landlord showed a justiciable controversy because of three prior inspections in the last four years. The court of appeals decision not reaching the merits because it found a lack of justiciability was reversed. McCaughtry v. City of Red Wing, 808 N.W.2d 331 (Minn. 2011).*

There being a particularized suspicion that defendant made an illegal U-turn on his motorcycle, the officer had a reason to stop him. State v. Lemay, 2011 MT 323, 363 Mont. 172, 266 P.3d 1278 (2011).*

In a felon in possession case, seeing a molded gun case in defendant’s bedroom when he was believed to be in possession was probable cause of incriminating nature for plain view. State v. Vyhnalek, 19 Neb. App. 904, 814 N.W.2d 768 (2012).*

A bailment (contract) claim for seizure of a laptop at the border fails because a seizure is not bailment; bailments are mutually agreed upon. Kam-Almaz v. United States, 682 F.3d 1364 (Fed. Cir. 2012).*

“We find that under the ‘totality of the circumstances,’ including Officer Mermon’s twelve years of training and experience, which led him to believe that the U.S. currency found on Mr. McLaughlin’s person and the manner in which it was bound was evidence of an illegal drug transaction, there was a substantial basis for concluding that probable cause existed.” United States v. McLaughlin, 2012 U.S. Dist. LEXIS 85324 (W.D. Pa. June 20, 2012).*

Defendant’s mother did not have actual or apparent authority to consent to a search of her adult son’s bedroom. He had been staying with her for four months and she came into the room with “regular access” to make the bed and clean up, but that wasn’t enough because it was apparent that the room was used by only her son. She consented to a search, and the police looked in a box with men’s clothes. Ward v. State, 88 So. 3d 419 (Fla. 4th DCA 2012).

Jail inventory policy was unconstitutional under the Oregon constitution because it had no limitations on search of containers objectively likely to hold contraband. State v. Taylor, 250 Ore. App. 90, 279 P.3d 254 (2012).*

Existence of an arrest warrant was justification for a stop. United States v. Nelson, 2012 U.S. App. LEXIS 9839 (3d Cir. May 16, 2012).*

A suspicionless supervision condition was imposed on defendant “based on the facts in this case—involving violence, threats, and a firearm.” Defendant threatened to hunt down and kill anybody involved in her conviction, and that threat made the suspicionless search condition reasonable. State v. Rowan, 2012 WI 60, 341 Wis. 2d 281, 814 N.W.2d 854 (2012):

[*18] We next turn to the second part of the test relating to the constitutionality of the condition of extended supervision, including persons released on community supervision such as probation and parole. We conclude that the condition is, under the circumstances presented here, reasonably related to Rowan’s rehabilitation. A condition is reasonably related to a person’s rehabilitation “if it assists the convicted individual in conforming his or her conduct to the law.” It is also appropriate for circuit courts to consider an end result of encouraging lawful conduct, and thus increased protection of the public, when determining what individualized probation, extended supervision, or parole conditions are appropriate for a particular person. Unsurprisingly, public safety is often mentioned in connection with the goal of rehabilitation: decreased criminality and greater public safety are logically connected to successful rehabilitation efforts. The trial in this case included evidence of the defendant’s repeated explicit threats to shoot law enforcement officers and medical professionals and their family members, as well as evidence of the handgun and ammunition recovered from her vehicle, where it had been unlawfully concealed. In light of the circumstances that resulted in her conviction for battery to a law enforcement officer, the condition at issue was reasonably related to Rowan’s rehabilitation, because her diminished right to be free from search was designed to assist her in “conforming [her] conduct to the law” by recognizing that her prior criminal conduct demonstrated a pattern involving guns and violent threats. Giving her an increased incentive to refrain from possessing a gun again was reasonably related to her rehabilitation. It is clear that Rowan’s successful rehabilitation would also serve the interest of public protection and safety.

Suspicionless condition of supervised release search was appropriate here. Blakney v. United States, 2012 U.S. Dist. LEXIS 79755 (D. S.D. June 8, 2012).*

This investigation started with an anonymous informant, but the police then received information from an identified informant who gave predictive information that panned out. The police could rely on that information and it gave cause for a stop when defendant was leaving a supposed drug deal. State v. Miller, 2012 WI 61, 341 Wis. 2d 307, 815 N.W.2d 349 (2012).*

Plaintiff pled to DUI and he was awaiting placement in an alcohol program. Despite the court order, officers went to his house and arrested him and held him for a month without a valid court order. The district court failed to conduct a proper qualified immunity analysis, so the judgment is vacated and remanded. Handt v. Lynch, 681 F.3d 939 (8th Cir. 2012).*

When the challenged evidence was never offered to the finder of fact, there is no search and seizure question for the appellate court to decide. Fuller v. State, 2012 Tenn. Crim. App. LEXIS 381 (June 12, 2012).

The patdown was reasonable based on the strong smell of marijuana coming from defendant’s department. The feel of a baggy in the pocket was plain feel. State v. Banks, 814 N.W.2d 622 (Iowa App. 2012):

At the suppression hearing, Officer Younie testified he felt the crunch or crinkle of plastic in Banks’s front pants pocket. Based on his experience he knew marijuana is routinely packaged in plastic baggies. He smelled the odor of burnt marijuana, and therefore, he opined the item in Banks’s pocket was packaged marijuana. Officer Younie acknowledged that it was possible the baggie may have contained something other than marijuana, but as stated above, absolute certainty is not required. In addition, in his police report Officer Younie stated that he felt something in the pocket during the pat-down and that it felt like a plastic bag with a soft substance inside. We believe this evidence provided Officer Younie with probable cause to believe the item he felt in Banks’s pocket was contraband, justifying his seizure of the item during the Terry pat-down.

The defendant was alleged to have engaged in three drug sales with a CI right outside his apartment door. This led to a fair inference that drugs would be found in defendant’s apartment. United States v. Dedrick, 840 F. Supp. 2d 482 (D. Minn. 2012).

Merely being the “emergency contact” on a storage unit lease did not give the defendant standing to challenge its search. Defendant was neither lessor nor owner of the unit. United States v. McMahan, 2011 U.S. Dist. LEXIS 151724 (E.D. Tenn. December 7, 2011).*

One defendant gave a false name and SSN when asked, and it is clear from the video that there was consent to search the vehicle for their identities. One defendant’s reaching for her shoes and purse did not constitute a limitation on consent for the vehicle. United States v. Jackson, 2012 U.S. Dist. LEXIS 5849 (W.D. Va. January 18, 2012).*

The search of defendant’s purse violated the Fourth Amendment, and it was excluded in her criminal case, but that did not make it excludable in her probation revocation proceeding. People v. Lazlo, 206 Cal. App. 4th 1063, 206 Cal. App. 4th 1063 (1st Dist. 2012):

[T]he exclusionary rule does not apply in probation revocation hearings, unless the police conduct at issue shocks the conscience. (See, e.g., United States v. Vandemark (9th Cir. 1975) 522 F.2d 1019, 1020 [“[t]his accords with the almost unanimous view that the exclusionary rule does not usually apply in probation revocation proceedings”]; People v. Harrison (1988) 199 Cal.App.3d 803, 811 [245 Cal. Rptr. 204] (Harrison) [“federal law does not require application of the exclusionary rule to probation revocation hearings”]; People v. Nixon (1982) 131 Cal.App.3d 687, 691, 693–694 [183 Cal. Rptr. 878].)

Driver’s arrest for reckless driving in a shopping mall parking lot did not support a search incident of the passenger compartment. Canino v. State, 314 Ga. App. 633, 725 S.E.2d 782 (2012).

A controlled buy was probable cause for a search warrant that produced more drugs; § 1983 case fails on the merits. Abreu v. Romero, 466 Fed. Appx. 24 (2d Cir. 2012) (unpublished).*

Officers went to defendant’s place for a knock-and-talk and could smell marijuana coming from around the door. One looked through a gap between the blinds and the window frame. Even if this look was excluded from the application, there would still be probable cause. Also, defendant saw the officers and fled the premises. That added to the probable cause. United States v. Newton, 463 Fed. Appx. 462 (5th Cir. 2012) (unpublished).*