Placing a GPS on defendant’s car to track him for 26 days violated defendant’s reasonable expectation of privacy and required a search warrant under Jones and relying on its lower court decision in Maynard. State v. Zahn, 2012 SD 19, 812 N.W.2d 490 (2012):

[*P22] In this case, the State argues that Zahn could not have had a subjective expectation of privacy in his movements because he voluntarily exposed his movements to the public. We disagree. While a reasonable person understands that his movements on a single journey are conveyed to the public, he expects that those individual movements will remain “disconnected and anonymous.” Maynard, 615 F.3d at 563 (citation omitted). Indeed, the likelihood that another person would observe the whole of Zahn’s movements for nearly a month “is not just remote, it is essentially nil.” Id. at 560. The prolonged use of a GPS device in this case enabled officers to determine Zahn’s speed, time, direction, and geographic location within five to ten feet at any time. It also enabled officers to use the sum of the recorded information to discover patterns in the whole of Zahn’s movements for twenty-six days. The prolonged GPS surveillance of Zahn’s vehicle revealed more than just the movements of the vehicle on public roads; it revealed an intimate picture of Zahn’s life and habits. We thus believe that Zahn had a subjective expectation of privacy in the whole of his movements. This subjective expectation of privacy was not defeated because Zahn’s individual movements were exposed to the public.

. . .

[*P31] We thus hold that the attachment and use of a GPS device to monitor an individual’s activities over an extended period of time requires a search warrant. Because the unfettered use of surveillance technology could fundamentally alter the relationship between our government and its citizens, we require oversight by a neutral magistrate. Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378). Thus, the warrantless attachment and use of the GPS device to monitor Zahn’s activities for nearly a month was unlawful, and the evidence obtained through the use of the GPS device should be suppressed.

[*P32] By our holding today, we do not deny police the ability to use this valuable law enforcement tool. We recognize that police must be allowed to use developing technology in the “often competitive enterprise of ferreting out crime.” Sweedland, 2006 S.D. 77, ¶ 22, 721 N.W.2d at 415 (quoting Illinois v. Gates, 462 U.S. 213, 240, 103 S. Ct. 2317, 2333, 76 L. Ed. 2d 527 (1983)). The Fourth Amendment “cannot sensibly be read to mean that police [should] be no more efficient in the twenty-first century than they were in the eighteenth” century. United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007), cert. denied, 552 U.S. 883 (2007). But police must obtain a warrant before they attach and use a GPS device to monitor an individual’s activities over an extended period of time.

The Free Speech Coalition’s case against the Attorney General for searches under pornography manufacturer’s recordkeeping requirements under 28 U.S.C. § 2257 stated a First and Fourth Amendment claim because of unannounced FBI visits to search records. On remand, the district court should consider the trespass implications of Jones. Free Speech Coalition Inc. v. Attorney General of the United States, 677 F.3d 519 (3d Cir. 2012):

There are two ways in which the government’s conduct may constitute a “search” implicating the Fourth Amendment. First, a Fourth Amendment search occurs when “the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979) (citations and quotation marks omitted); see also Kyllo v. United States, 533 U.S. 27, 32-33 (2001) (“[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”); Katz v. United States, 389 U.S. 347, 353 (1967) (“The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied … and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”). Determining whether one’s expectation of privacy is justifiable involves two separate inquiries: (1) whether the individual demonstrated an actual or subjective expectation of privacy in the subject of the search or seizure; and (2) whether this expectation of privacy is objectively justifiable under the circumstances. Smith, 442 U.S. at 740 (quotation marks omitted); Katz, 389 U.S. at 361 (Harlan, J., concurring); United States v. Ferri, 778 F.2d 985, 994 (3d Cir. 1985).

Second, as the Supreme Court’s recent decision in Jones makes clear, a Fourth Amendment search also occurs where the government unlawfully, physically occupies private property for the purpose of obtaining information. See 132 S. Ct. at 949-52 (stating that the reasonable-expectation-of-privacy test set forth in Katz was “added to, not substituted for, the common-law trespassory test”) (emphasis in original). Under this analysis, we must determine whether the government committed common-law trespass when obtaining the information. See Jones, 132 S. Ct. at 949-52; see also Rakas v. Illinois, 439 U.S. 128, 143 (1978) (explaining the common-law-trespass test employed prior to Katz). If such a trespass occurs, then the government’s actions constitute a search implicating the Fourth Amendment. See Jones, 132 S. Ct. at 949-52.

Here, the District Court erred in dismissing Plaintiffs’ Fourth Amendment claim, as sought to be amended. Courts generally must consider the concrete factual context when determining the constitutional validity of a warrantless search. See Sibron v. New York, 392 U.S. 40, 59 (1968) (declining to hold whether a particular statute was facially invalid under the Fourth Amendment because the “constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case”); United States ex rel. McArthur v. Rundle, 402 F.2d 701, 704-05 (3d Cir. 1968) (stating that in the case of warrantless searches, courts are required to consider the concrete factual context); see also United States v. $291,828.00 in United States Currency, 536 F.3d 1234, 1238 (11th Cir. 2008). Plaintiffs’ complaint, as amended, would allege that government officials searched and/or seized without a warrant—and in violation of the Fourth Amendment—the premises and effects of certain FSC members and others. The record, however, is not clear as to: which specific members of FSC were searched; when and where the searches of the FSC members and others occurred (i.e., offices or homes); and the conduct of the government during the search (e.g., what specific information the government reviewed and whether the government exceeded its authority under the applicable regulations).

This factual context is necessary for determining whether the government’s conduct was a “search” under the Fourth Amendment pursuant to either the reasonable-expectation-of-privacy test set forth in Katz or the common-law-trespass test described in Jones. …

Plaintiff’s allegations that force was applied to coerce consent to search survives qualified immunity claim in a 1983 case. Hemphill v. Hale, 677 F.3d 799 (8th Cir. 2012):

In Chambers, we held that evidence of de minimis injury does not necessarily foreclose a Fourth Amendment excessive-force claim, that the force alleged was not reasonable under the circumstances, but that defendants were entitled to qualified immunity because the state of the law in August 2005 was such that a reasonable officer could have believed that as long as he did not cause more than de minimis injury to an arrestee, he would not violate the Fourth Amendment. See Chambers, 641 F.3d at 904, 906-08.

Chambers, however, did not address the situation alleged here: that the force was used in an attempt to coerce consent to a search. While in Chambers we stated that “[p]olice officers undoubtedly have a right to use some degree of physical force, or threat thereof, to effect a lawful seizure,” see id. at 907, we agree with the district court that officers do not have the right to use any degree of physical force or threatened force to coerce an individual to consent to a warrantless search of his home. See United States v. Drayton, 536 U.S. 194, 201 (2002) (law enforcement officers may request consent to search “provided they do not induce cooperation by coercive means”); United States v. Thomas, 93 F.3d 479, 486 (8th Cir. 1996) (consent to search may not be result of “‘duress or coercion, express or implied'” (internal citation omitted)); cf. Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989) (showing of physical injury required to state Fourth Amendment excessive-force claim for force used in course of arrest is not required in situations not involving arrest, such as during interrogation). Because no use of force to obtain Hemphill’s consent to search would have been reasonable, the force Hale was alleged to have used-grabbing Hemphill by the neck, choking him, and hitting him two or three times while he was handcuffed-was objectively unreasonable given the facts and circumstances in the case. See Graham v. Connor, 490 U.S. 386, 396-97 (1989) (officer’s use of force violates Fourth Amendment when it is objectively unreasonable given facts and circumstances of particular case, judged from perspective of reasonable officer at scene). The law regarding forced consent was clearly established in August 2009 such that a reasonable person in Hale’s position would have known that his actions were unreasonable. See Drayton, 536 U.S. at 201; Thomas, 93 F.3d at 486.

The order denying qualified immunity is affirmed.

In a § 2255 IAC claim before the appellate court on a certificate of appealability from a life sentence in a drug case, the court finds that the district court’s sole finding that defendant said during trial that he let the police search him did not answer the question of whether the alleged consent search of his person was voluntary for frivolousness purposes of defense counsel’s failure to move to suppress. United States v. Dowling, 458 Fed. Appx. 396 (5th Cir. 2012) (unpublished):

On the record before us, we cannot say that a motion to suppress would have been frivolous. When reviewing whether a search was justified by consent, a district court examines several issues. First, the government must show that the defendant consented based on the totality of the circumstances. United States v. Freeman, 482 F.3d 829, 831-32 (5th Cir. 2007). Next, the government must show that this consent was voluntary, also based on the totality of the circumstances. Id. at 832 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)). District courts focus on six factors to determine voluntariness:

(1) the voluntariness of the defendant’s custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant’s cooperation with the police; (4) the defendant’s awareness of his right to refuse consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be found. All six factors are relevant, but no single one is dispositive or controlling.

Id. (quoting United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)). Third, the government must show that the search was within the scope of the consent. Id. (internal citations omitted). Scope of consent is governed by objective reasonableness: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). The question of objective reasonableness is a question of law that we review de novo, although factual findings explicit in a district court’s reasonableness decision are reviewed for clear error. United States v. Ibarra, 965 F.2d 1354, 1356-57, 1360 (5th Cir. 1992) (en banc); see also United States v. Harrison, 918 F.2d 469, 473 (5th Cir. 1990), and United States v. Tedford, 875 F.2d 446, 448-49 (5th Cir. 1989).

Only voluntariness and scope of consent are at issue in this appeal. In United States v. Watson, 273 F.3d 599 (5th Cir. 2001), the court held that, “[i]t is not enough to show the mere existence of consent; the government also must show that ‘consent was freely and voluntarily given.'” Id. at 604 (quoting United States v. Ponce, 8 F.3d 989, 997 (5th Cir.1993)). The district court in Watson conflated the question of voluntariness with that of the mere existence of consent and failed to apply the six factor test. Id. As a result, we vacated the conviction and remanded the case in order for the district court “to consider the evidence pertaining to each of the six factors and weigh them against each other.” Id.

Similarly in this case, the district court devotes no analysis to the voluntariness of Dowling’s consent. Having considered the full record ourselves, we perceive that a predominance of relevant factors implies voluntariness. Dowling agreed when his counsel asked him on direct examination whether he “understood that [he] didn’t have to let [the police]” look in his pockets. Furthermore, Dowling’s assent, coupled with his furtive movements throughout the traffic stop, strongly indicate that he was hopeful that the bag in his pants might not be found. Finally, Dowling was blunt with his own testimony that as a previously convicted felon, he knew his rights, especially his right to refuse consent and to refuse to speak to police. On the other hand, Dowling was not cooperating with repeated police warnings to stop making hand gestures towards his pants. And, as our COA identified, the district court never examined the impact of Dowling’s being handcuffed prior to the search of his person on the voluntariness of his confession. Third, trial counsel for Dowling cross-examined each officer to confirm that no one told Dowling he could refuse consent to search. Finally, a careful review of all the police testimony suggests that the unbuckling of Dowling’s pants may not have been coterminous with the consent search of his pockets but may instead have been a pat-down triggered by more threatening hand movements towards his waist even while handcuffed and even after being told to stop.

Officers came to defendant’s house to do a knock-and-talk for drugs, and they had to come though a gate to get to the front porch. They talked to defendant’s longtime live-in companion who told them he wasn’t home. She agreed they could come in and talk. They concluded she was lying about where he was and then finally admitted he was upstairs. They told him to come down, and he did. He said no search without a warrant, and they said they could do that, but the house would be secured and they would likely tear the place up during the search. If he consented, they said he wouldn’t be incarcerated. He consented to a search of the house, cutting off their reading the consent form to him. They found a considerable amount of marijuana and arrested him. Neither lesser intrusive measures nor reasonable suspicion are constitutionally required before a knock-and-talk. Knowledge of a right to refuse is only a factor in the totality, particularly when facing strong evidence of consent. United States v. Claus, 458 Fed. Appx. 184 (3d Cir. 2012):

Claus argues that the officers’ conduct should not be sanctioned as a constitutional “knock and talk” because they did not first attempt other less intrusive investigatory steps. However, the recognized purposes behind the “knock and talk” procedure is to either speak with occupants or ask for consent to search. As a result, no objective level of suspicion is required. See United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000) (holding that “no suspicion is needed to be shown in order to justify the ‘knock and talk'” (citing Florida v. Bostick, 501 U.S. 429, 434 (1991))). We therefore refuse to impose the additional protections urged by Claus.

The officer waited four hours observing defendant’s vehicle license was expired to stop defendant, ostensibly because the officer was investigating another more serious crime. Neither the delay nor ulterior motive made the stop invalid because of the ongoing nature of the traffic violation, which is distinguished from discrete traffic offenses. United States v. Anderson, 458 Fed. Appx. 440, 2012 FED App. 0108N (6th Cir. 2012) (unpublished). [Opinion has numerous citations.]

To get a suppression hearing on a search warrant, the defendant has to make a showing that contested facts exist. Here, the record is devoid of anything showing who owned the van, and that was a lack of standing. Even if there was standing, there was probable cause. United States v. Harris, 2012 U.S. Dist. LEXIS 12976 (W.D. Ky. February 2, 2012):

While the defendant seeks to probe various statements in the affidavit, he has, in fact, not shown that any contested facts exist. Harris is not entitled to an evidentiary hearing in the absence of such a showing. “An evidentiary hearing is required ‘only if the motion is sufficiently definite, specific, detailed, and non-conjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.’ United States v. Downs, No. 96-3862, 1999 WL 130786, at *3 (6th Cir. Jan. 19, 1999) (citing United States v. Unimex, Inc., 991 F.2d 546, 551 (9th Cir.1993)) (emphasis supplied).” US v. Abboud, 438 F.3d 554, 557 (6th Cir. 2006).

Any illegality in the initial traffic detention was attenuated by defendant’s probation search condition. Although the patdown search and discovery of the gun occurred shortly after the traffic detention, they did not occur until after the officer had recognized defendant as a person subject to a search condition. The search condition supplied legal authorization to search that was completely independent of the circumstances leading to the traffic stop. Nor was there any flagrancy or purposefulness to the alleged unlawful conduct by the officer. While the trial court found that the stop was made without reasonable suspicion, it specifically found the officer did not act in an arbitrary, capricious, or harassing manner. The officer was aware of defendant’s probation condition before the search, and the existence of that probation condition dissipated any taint that might flow from the detention. People v. Durant, 205 Cal. App. 4th 57, 140 Cal. Rptr. 3d 103 (1st Dist. 2012).

Defendant was a corrections officer, and that helps show he voluntarily consented. United States v. Francis, 2012 U.S. Dist. LEXIS 54244 (W.D. Ark. March 29, 2012).

The fact some small things were seized under a documents warrant did not rise to the level of an “abrasive” search (United States v. Searp, 586 F.2d 1117 (6th Cir. 1978)) justifying suppression of all that was within the warrant. The fact the warrant was not present for the search was a potential Rule 41 violation, but it was not a constitutional issue, and defendant did not show prejudice. United States v. Sadler, 2012 U.S. Dist. LEXIS 5207 (S.D. Ohio January 17, 2012).*

Merely having to post bond wasn’t shown here to be a real Fourth Amendment seizure issue. Moreno-Medina v. Toledo, 458 Fed. Appx. 4 (1st Cir. 2012) (unpublished)*:

Construing the plaintiffs’ complaint in the light most favorable to them, the district court speculated that the only potentially cognizable post-arraignment deprivation Moreno suffered was having to post a $10,000.00 bond. The court concluded that, because Moreno was able to post the bond and was not detained, the bond was a “run-of-the-mill” pre-trial release condition and did not amount to a Fourth Amendment seizure. Nieves, 241 F.3d at 55; see also Harrington, 610 F.3d at 32-33. Because the plaintiffs have not put the issue squarely before us, we need not address today whether a post-arraignment release on bond, standing alone, could ever approximate a Fourth Amendment seizure for purposes of a Section 1983 malicious prosecution claim.

The loud thumping coming from defendant’s car justified a traffic stop. “A traffic stop based on an officer’s incorrect but reasonable assessment of facts does not violate the Fourth Amendment” provided that the “mistake of fact was reasonable.” United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003). United States v. Smalls, 458 Fed. Appx. 788 (11th Cir. 2012) (unpublished).* [Add to that list: And when you are a felon in possession or carrying drugs in the car, don’t draw attention to yourself.]

“[A] traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle,” here an improper turn. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).*

Defendant can’t relitigate his motion to suppress in a 2255 which was decided on the merits on appeal without an IAC claim. United States v. Reed, 2012 U.S. Dist. LEXIS 61806 (N.D. Fla. March 8, 2012).*

The intrusion by detention was minimal here and led to consent, and defense counsel was not ineffective for not pursuing that ground because it would lose on the merits. Woodson v. State, 966 N.E.2d 780 Ind. App. 2012).*

Officers who entered after no answer to knocking at a door of the location of a disturbance call were entitled to qualified immunity. This was a reasonable response to a perceived need. They were inside two minutes. Burke v. Sullivan, 677 F.3d 367 (8th Cir. 2012).*

“[W]e adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix’s home in violation of Payton requires neither the suppression of statements made outside of the home after Felix was given and waived his Miranda rights, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix’s warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of his home is admissible: Felix’s signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix’s clothing seized at the jail, as well as any derivative evidence.” The court declines to adopt a separate rule under the state constitution. State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 N.W.2d 775 (2012).*

Petitioner’s Fourth Amendment claim was decided on the merits in state court, so it could not be considered on habeas. Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012).

Defendant’s refusal of consent did not dispel reasonable suspicion nor mandate ending the stop if there is reasonable suspicion. State v. Gomez, 2012 UT App 102, 275 P.3d 1073, 705 Utah Adv. Rep. 32 (2012):

[*P11] To the extent that Gomez is asserting that his refusal to consent to the search ended the investigation as a matter of law, we do not agree. Courts generally hold that refusal to consent cannot establish or—according to some courts—even support reasonable suspicion. … The Tenth Circuit has well stated the rationale of these cases: “If refusal of consent were a basis for reasonable suspicion, nothing would be left of Fourth Amendment protections. A motorist who consented to a search could be searched; and a motorist who refused consent could be searched, as well.” Santos, 403 F.3d at 1125-26; see also United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir. 1998) (“Any other rule would make a mockery of the reasonable suspicion and probable cause requirements, as well as the consent doctrine.”).

[*P12] However, the issue here is not whether refusal to consent supports reasonable suspicion, but whether it dispels reasonable suspicion, or at any rate terminates an officer’s attempts to confirm or dispel his or her original reasonable suspicion. On this point, the case law is equally clear. Gomez “cites no case law, and we have found none, that would require [the officer] to ignore all that he had observed and all that he knew up to the moment he asked for consent.” See Leal, 235 F. App’x at 940. Indeed, courts routinely hold post-refusal detentions to be supported by pre-refusal reasonable suspicion under an ordinary totality-of-the-circumstances analysis. … Thus, a brief investigative detention of a suspect who has refused consent, like any other official detention, is lawful to the extent it is supported by reasonable suspicion, and the investigating officer acts diligently to pursue a means of investigation likely to quickly confirm or dispel that suspicion. See Sharpe, 470 U.S. at 686.

[*P13] Nor do we agree with Gomez that, as a factual matter, once he denied consent to search, Officer Speeth “had done all that he could to quickly confirm or dispel his suspicion that Gomez was involved [in] drug trafficking.” Gomez’s own response to the officer’s request suggested a further avenue of investigation. When the officer made the original request, Gomez did not consent, but neither did he categorically refuse consent. He gave a response from which the officer inferred that “some of the other occupants had something incriminating inside the hotel room.” That inference cued up the next logical step in the investigation: determining whether Gomez’s companions would object to a search of the hotel room. When they disclaimed any interest in the room, the officer again approached Gomez. This time, Gomez consented.

Police did a knock and talk in a child pornography case based on the ICAC finding that child porn had gone to defendant’s IP address. During the interview, defendant refused to consent to a search of the computer. His statement “maybe I ought to just destroy my computer” was exigent circumstances to seize his computer under Kentucky v. King. State v. Maxwell, 2011 UT 81, 698 Utah Adv. Rep. 41, 275 P.3d 220 (2011):

[*P16] This mischaracterizes the State’s evidentiary burden and the nature of reasonable belief under the Fourth Amendment. To prove exigent circumstances, the State need demonstrate only that ICAC agents had a reasonable suspicion that evidence would be destroyed if the agents delayed long enough to obtain a warrant. And the facts necessary to support reasonable suspicion are “commonsense, nontechnical,” “practical considerations of everyday life on which reasonable and prudent men” must make decisions. Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (internal quotation marks omitted). The State’s burden, therefore, is to show that an officer confronted with Maxwell’s statement about destroying his computer might reasonably have believed—based on “practical considerations of everyday life”—that Maxwell could and would destroy the evidence on his computer.

. . .

[*P19] The United States Supreme Court definitively resolved this conflict last term, holding that “warrantless [action] to prevent the destruction of evidence is reasonable and thus allowed” so long as “the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” King, 131 S. Ct. at 1858. The Court in King refused to examine officer motive for evidence of bad faith, noting that it has “’repeatedly rejected’ a subjective approach, asking only whether ‘the circumstances, viewed objectively, justify the action.’” Id. at 1859 (quoting Brigham City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006)). It refused to assess the foreseeability of exigency, “reject[ing] the notion that police may seize evidence without a warrant only when they come across the evidence by happenstance.” Id. It also refused to examine the existence of probable cause prior to police action, reiterating that “’officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause.’” Id. at 1860-61 (quoting Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966)). Finally, the Court refused to second-guess police investigative tactics, explaining that such an approach “fails to provide clear guidance for law enforcement officers and authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies.” Id. at 1861.

A knock and talk for child porn? How daring can the police be? Pretty daring since the courts will find a way to bail them out of their folly.

Defendant’s post-conviction claim that defense counsel was ineffective for not pursuing a motion to suppress was fatally defective for not alleging prejudice. Would she have gone to trial and not pled? Zanchez v. State, 84 So. 3d 466 (Fla. 2d DCA 2012):*

But upon further examination of her motion, we note that Ms. Zanchez has failed to allege that there is a reasonable probability that but for counsel’s errors, she would not have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Nelson, 996 So. 2d at 952. Thus Ms. Zanchez’s motion completely omits an allegation of prejudice flowing from her attorney’s alleged deficient performance.

The juvenile was detained pending “investigation” for loitering, and there was no reasonable suspicion for a patdown. The officer “testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution.” D.S. v. State, 2012 Fla. App. LEXIS 5461 (Fla. 3d DCA April 11, 2012).*

A gap in the record on whether the independent source doctrine would support the search in question required remand. The case arose from a grow operation that the police visited without warrants. Outbuildings were searched off the curtilage and in open fields, but the court can’t decide the question. United States v. Noriega, 676 F.3d 1252 (11th Cir. 2012).*

Consent involuntary after Miranda violation. Defendant sought to ask a lawyer about what he was waiving, and officer kept questioning. Hebron v. State, 85 So. 3d 530 (Fla. 4th DCA 2012):

Defendant: Who can tell me? You got a lawyer here? Can we get a lawyer here that can tell me … ?
Detective: No, let me ask you this. We don’t have any lawyers who work here. Let me ask you this. Was it drug related …

Seconds later, the defendant consented to police officers searching his apartment which uncovered the physical evidence utilized in the instant case. The defendant raised this issue before the trial court by way of a motion to suppress, arguing that his consent was obtained in violation of his right to counsel.

. . .

In the instant case, the defendant asked a clear question concerning his rights when he asked what his options were, stated that he did not know what the law was and asked “can we get a lawyer here?” The detective merely asserted that there were no lawyers on the staff and failed to provide a “simple and straightforward answer” to the question posed. The officer was required to properly answer the defendant’s question regarding his Miranda rights before resuming the interrogation. See Almeida, 737 So. 2d at 525. The failure to stop the interrogation to answer the defendant’s question tainted the subsequent consent to search, which, in turn, tainted the evidence seized. Because of this, the evidence discovered during the search of the defendant’s apartment should have been suppressed. See Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992) (noting that evidence obtained by the State in contravention of the right to counsel may not be used by the State). Because the physical evidence uncovered in the apartment was so important to the prosecution’s case, we cannot find that “there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

Defendant’s consent to search the entire car included a bookbag of a passenger that contained drugs. Varriano v. State, 312 Ga. App. 266, 718 S.E.2d 14 (2011).*

As defendant got out of this car during a traffic stop, the officer could smell marijuana on him, and that gave probable cause to search his car. State v. Delvalle, 73 So. 3d 1026 (La. App. 2d Cir. 2011).*

Because the New Mexico Constitution requires a warrant application be in writing, an unrecorded telephone call in support of a search warrant made that search void. State v. Boyse, 150 N.M. 712, 2011 NMCA 113, 265 P.3d 1285 (N.M. App. 2011),* certiorari Granted, November 4, 2011, No. 33,257, Writ of certiorari granted State v. Boyse, 2011 N.M. LEXIS 536 (N.M., Nov. 4, 2011), Writ of certiorari granted State v. Boyse, 2011 N.M. LEXIS 537 (N.M., Nov. 4, 2011).

Review of a magistrate’s finding of probable cause is subject to a deferential standard of review, and “[a] reviewing court should not substitute its judgment for that of the issuing court.” State v. Trujillo, 150 N.M. 721, 2011 NMSC 40, 266 P.3d 1 (2011):

[*18] “[T]he substantial basis standard of review is more deferential than the de novo review applied to questions of law, but less deferential than the substantial evidence standard applied to questions of fact.” Williamson, 2009 NMSC 39, ¶ 30. The United States Supreme Court reasoned that “[a] deferential standard of review is appropriate to further the … strong preference for searches conducted pursuant to a warrant.” Massachusetts v. Upton, 466 U.S. 727, 733 (1984). A deferential stance “to the warrant process encourages police officers to procure a search warrant.” Williamson, 2009 NMSC 39, ¶ 28. This in turn provides “a layer of protection from unreasonable searches and seizures” without a warrant. Id. (internal quotation marks and citation omitted). Accordingly, “‘the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’” Upton, 466 U.S. at 734 (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).

[*19] This standard “does not preclude the reviewing court from conducting a meaningful analysis of whether the search warrant was supported by probable cause.” Williamson, 2009 NMSC 39, ¶ 30. Rather, “[i]f, after reviewing the affidavit as a whole, the direct and circumstantial evidence alleged, as well as all reasonable inferences to be drawn from those allegations, does not support the issuing court’s determination of probable cause, then the search is invalid and unreasonable.” Id. (internal quotation marks and citation omitted). But, if the factual basis for issuing the warrant is sufficiently detailed in the affidavit, “and the issuing court ‘has found probable cause, the [reviewing] courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than commonsense, manner.’” Id. (quoting Ventresca, 380 U.S. at 109). As stated previously, under a deferential standard the reviewing judge does not substitute his or her judgment for that of the issuing judge.

Based on the officer’s testimony alone, the court finds that the stop was without objective reasonable suspicion, and the motion to suppress as a result of his detention should have been granted. State v. Kerwick, 353 S.W.3d 911 (Tex. App.–Ft. Worth 2011).*

Defense counsel fully litigated the motion to suppress and appealed it, so there was no IAC. United States v. Clay, 2011 U.S. Dist. LEXIS 128305 (E.D. Ark. November 4, 2011).*

Testimony was submitted to a state trial judge for issuance of a search warrant, and the transcript of that application was submitted to the federal court in opposition to the motion to suppress. The court agrees that there was ample probable cause. United States v. Scott, 2011 U.S. Dist. LEXIS 128328 (D. N.D. November 4, 2011).*

Officer’s observations of a juvenile during a DWI arrest were not suppressible as “testimonial.” State v. Randy J., 150 N.M. 683, 2011 NMCA 105, 265 P.3d 734 (2011), Certiorari Denied, 269 P.3d 903 (N.M. 2011).*

Officer’s smell of marijuana during a stop with other factors was reasonable suspicion. State v. Morris, 2011 S.C. App. LEXIS 320 (August 17, 2011).*

Defendant’s property was surveilled from overhead by a National Guard helicopter for a grow operation. When his plot was seen, armed officers swooped in from the ground and got his consent to enter, but the consent was tainted by their actions: armed officers seeking consent with a helicopter overhead. State v. Davis, 150 N.M. 611, 2011 NMCA 102, 263 P.3d 953 (2011), Writ of certiorari granted State v. Davis, 2011 N.M. LEXIS 496 (N.M., Oct. 4, 2011):

P16 Although Defendant gave specific and unequivocal consent, we conclude that the consent was given under duress and coercive circumstances. Defendant was surrounded by numerous uniformed, armed law enforcement officers and several law enforcement vehicles while a helicopter hovered overhead. Professor LaFave observes in his treatise that, although such circumstances are not per se coercive, “[t]he presence of a number of policemen is likely to suggest that the police are contemplating an undertaking which does not depend upon the cooperation of the individual from whom permission to search is being sought.” 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(b), at 62 (4th ed. 2004). Although only Officer Merrell approached Defendant to seek consent, it is undisputed that the remaining officers were spread throughout the property and were visible to Defendant during his exchange with Officer Merrell.

P17 In its discussion of the lawfulness of the helicopter surveillance, the district court commented that there was “merit to the claim that the police swooped in as if they were in a state of war, searching for weapons or terrorist activity,” which “can be terrifying and intimidating to most normal persons.” Although the district court found the helicopter search “just barely permissible” on these facts, it did not address these same facts in the context of whether the consent was coerced. In fact, the only circumstance the district court mentioned in its discussion of coercion was Officer Merrell’s statement that he would obtain a search warrant if Defendant did not consent to the search. The court dismissed this circumstance as simply an “explanation of the process that would be followed.”

Grabbing defendant’s arm to remove him from a store during an investigative detention was not unreasonable. Some force or threat of force is implicit in a Terry stop and frisk. State v. Dewitt, 811 N.W.2d 460 (Iowa Sup. 2012):

At the outset, we reject the adoption of a per se rule prohibiting police from grabbing the arm of a suspect to stop and briefly detain the person to obtain an explanation for suspicious circumstances surrounding the stop. The right to make an investigatory stop “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455. Thus, it is necessary to assess every fact and circumstance of the situation in applying the constitutional standard of reasonableness. See Scott v. Harris, 550 U.S. 372, 383, 127 S. Ct. 1769, 1777-78, 167 L. Ed. 2d 686, 696 (2007) (indicating no easy-to-apply legal test exists to determine reasonableness of force under the Fourth Amendment).