Three police cars responded to a shots fired call that involved a green car. As they got near the address, they saw a green car and one officer stopped it. Defendant was in it and made furtive movements while standing outside the car. The officer looked in the car and saw the handle of a gun which he validly seized. United States v. Jackson, 456 Fed. Appx. 142 (3d Cir. 2011) (unpublished).*

Defendant’s consent argument was harmless beyond a reasonable doubt. His IAC claim that defense counsel failed to argue lack of probable cause would never win on the merits of the search claim. People v Watson, 2011 NY Slip Op 9729, 2011 N.Y. App. Div. LEXIS 9526 (4th Dept. December 30, 2011).*

The use of the PBT here for probable cause was not reached on appeal because it has an alternate basis not attacked by defendant. State v. Manwaring, 2011 UT App 443, 698 Utah Adv. Rep. 34, 268 P.3d 201 (2011).*

“FSTs must be supported by reasonable suspicion, that there is no requirement for an officer to advise a minor of a right to withhold consent, and that failure to advise a minor of a right to remain silent does not render FSTs inadmissible.” State v. Candace S., 274 P.3d 774 (N.M. App. 2011),* writ of certiorari denied State v. Candace S., 2012 N.M. LEXIS 42 (N.M., Feb. 13, 2012)

Defendant’s consent was valid. Most importantly, he was advised of his right to refuse consent before he signed the consent form. He was detained five hours, but that alone is not determinative. United States v. Rakotojoelinandrasana, 450 Fed. Appx. 549 (8th Cir. 2011):

The district court here analyzed all the circumstances. Most important, Rakotojoelinandrasana signed a consent form that stated he had a right to refuse. See United States v. Czeck, 105 F.3d 1235, 1239 (8th Cir. 1997) (consent was voluntary based on age, sobriety, and criminal-justice experience, but the signed form was the most important factor).

On a shots fired call, officers nearby stopped the only vehicle leaving the dead end street that had only one house. They had reasonable suspicion. United States v. Thomas, 456 Fed. Appx. 156 (3d Cir. 2012) (unpublished).*

Despite the lack of video, the stop was with reasonable suspicion and the odor of marijuana, confirmed by other officers [and we know how crebible that is once it’s been found] was cause to search the vehicle. United States v. Bates, 453 Fed. Appx. 839 (10th Cir. 2012) (unpublished).*

A judge was still neutral and detached in issuing a search warrant against the defendant even though the judge was once an assistant prosecutor who prosecuted the defendant. United States v. Freerksen, 457 Fed. Appx. 769 (10th Cir. 2012) (unpublished):

A search conducted based on a warrant authorized by a magistrate who lacks the requisite neutrality and detachment “stands on no firmer ground than if there had been no warrant at all.” Coolidge v. New Hampshire, 403 U.S. 443, 453, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). “Whether a magistrate was neutral and detached in any particular case is necessarily an individualized and contextual inquiry. Courts must focus on the specific circumstances surrounding the issuance of the warrant ….” Ramirez, 63 F.3d at 941.

Freerksen contends Judge Work was not neutral and detached because he recused himself from a related state proceeding and because prior to becoming a judge he prosecuted Mr. Freerksen for two sex offenses while working as an assistant district attorney in Woodward County. These two facts are insufficient to show Judge Work was not “neutral and detached.” A warrant issued by a magistrate who had previously prosecuted the defendant does not violate the Fourth Amendment. United States v. Outler, 659 F.2d 1306, 1312 (5th Cir. 1981), overruled on other grounds by United States v. Steele, 147 F.3d 1316, 1317 (11th Cir. 1998). Nor under these circumstances does Judge Work’s recusal show he lacked the requisite neutrality and detachment to issue the search warrant in this case. Judge Work’s recusal came after an in camera request made by Freerksen’s counsel pursuant to Rule 15(a) of the Rules of the District Court of Oklahoma. There is therefore no record of the basis for the recusal. There is also no evidence Judge Work acted improperly or considered matters outside the warrant affidavit when making his probable cause determination. The court therefore rejects this argument.

Being suspected of being a drug dealer is not enough to show nexus to defendant’s home, but the facts required to show nexus apparently aren’t much, as long as there is a “fair probability” they point to drugs in the house. United States v. Jeffries, 457 Fed. Appx. 471, 2012 FED App. 0082N (6th Cir. 2012):

For similar reasons, we reject Calloway’s argument that there was no nexus between the cocaine found in the Lincoln in Louisiana and his home on Oakburn Lane. That Calloway was suspected of being a drug dealer would not have been, by itself, sufficient to establish probable cause to search his home. See McPhearson, 469 F.3d at 525 n.3. But “where the allegation of drug dealing is coupled with independently corroborated information from police officers, it may be sufficient to establish probable cause.” Id. The affidavit at hand was replete with corroborating information: the Lincoln was often seen at the Oakburn residence, was sometimes operated by Calloway, was seen at the Oakburn residence immediately before leaving Louisville for Texas, and was interdicted in Louisiana. And once again, Calloway had been seen removing trash from the premises, had associated with a known felon on the premises, and had a prior drug felony history himself. Thus, there was a “fair probability” that evidence of drug activity would be found at Calloway’s residence, and the affidavit submitted in support of the warrant was sufficient.

On a controlled delivery of a package of heroin by FedEx, officers had reasonable suspicion to stop defendant when he left the house. His evasive driving, in reverse, added to it. United States v. Smith, 456 Fed. Appx. 572, 2012 FED App. 0083N (6th Cir. 2012) (unpublished).*

While there was no Fourth Amendment violation in a second officer detaining the passenger in this case, the court finds that the New Mexico constitution was violated by the detention. Also, state constitutional law is so well developed that mere citation to it is all that is required. State v. Portillo, 150 N.M. 187, 258 P.3d 466 (N.M. App. 2011), cert. denied State v. Portillo, 266 P.3d 633 (N.M. 2011):

P21 It appears that Officer Thatcher’s questioning about narcotics and weapons would pass muster under Fourth Amendment analysis. Those few questions, while unrelated to the reason for the initial stop, did not appreciably extend the length of the traffic stop as a whole. See Leyva, 2011 NMSC 9, ¶ 18 (observing that under Fourth Amendment analysis, “[t]he questions posed during a traffic stop no longer need to be reasonably related to the initial justification of the stop” as long as the length of the stop is not extended beyond “the time required to conduct a reasonable investigation into the initial justification for the stop”).

P22 While there appears to be no Fourth Amendment violation under these circumstances, it is clear that Defendant preserved his claim that the extension of the initial traffic stop violated Article II, Section 10 of the State Constitution. The Court in Leyva clarified what is required to preserve a claim under the State Constitution and stated that “[w]here a state constitutional provision has previously been interpreted more expansively than its federal counterpart, trial counsel must develop the necessary factual base and raise the applicable constitutional provision in trial court.” Leyva, 2011 NMSC 9, ¶ 49. …

P23 Under our State Constitution, Officer Thatcher could ask questions about narcotics and weapons only if he had developed independent, reasonable suspicion giving rise to such questions. See Funderburg, 2008 NMSC 26, ¶ 24. The only basis for suspicion of criminal activity that the State articulated in the district court involved Defendant’s demeanor when Officer Thatcher approached the vehicle and requested the driver’s documentation. Officer Thatcher testified that Defendant’s posture, with his hands in his lap while looking straight ahead and failing to make eye contact apart from a single furtive glance, was abnormal and caused him to suspect that there were narcotics or weapons in the vehicle. We conclude that this behavior, standing alone and in the absence of any other suspicious circumstances, was insufficient to give rise to a reasonable suspicion of criminal activity. See, e.g., State v. Vandenberg, 2003 NMSC 30, ¶ 44, 134 N.M. 566, 81 P.3d 19 (observing that a nervous demeanor and failure to make eye contact did not give rise to reasonable suspicion about the possession of drugs or other criminal activity sufficient to support further detention of the occupants of a vehicle); State v. Gutierrez, 2008 NMCA 15, ¶ 21, 143 N.M. 522, 177 P.3d 1096 (holding that a nervous and possibly furtive demeanor was insufficient to give rise to reasonable suspicion to detain); Patterson, 2006 NMCA 37, ¶¶ 9, 29 (holding that nervous behavior and failure to make eye contact did not give rise to reasonable, individualized suspicion).

P24 To summarize, Defendant was detained at the inception of the traffic stop, and he remained subject to continuing detention thereafter. Although the stop was originally justified, the ensuing expansion of the inquiry into weapons and narcotics was unsupported by reasonable suspicion. We therefore conclude that Defendant was subjected to an illegal detention.

While this case was working its way up, the state Court of Appeals held that pretextual stops violated the state constitution. Since the parties did not get to try that issue below, the case is remanded to develop the record. State v. Gonzales, 2011 NMSC 12, 150 N.M. 74, 257 P.3d 894 (2011).*

The officer’s removal of the firearm from the vehicle was at most a minimal intrusion upon a personal possessory interest, as it was limited in duration and did not interfere with any legitimate use for the firearm. Because the need for officer safety outweighed the minimal intrusion upon a personal possessory interest occasioned by the officer’s retrieval of the firearm from the vehicle, it was reasonable, pursuant to N.M. Const. art. II, § 10, for an officer to temporarily take possession of a visible firearm during a lawful traffic stop. State v. Ketelson, 2011 NMSC 23, 150 N.M. 137, 257 P.3d 957 (2011).

Defendant claimed he was coerced to give consent, but the police independently acquired a search warrant, and that was enough to affirm. State v. Spears, 393 S.C. 466, 713 S.E.2d 324 (2011).*

Defendant who walked away from a crashed stolen car, leaving her purse behind, abandoned it and did not show standing in the car. State v. Ralston, 45 Kan. App. 2d
1024, 257 P.3d 814 (2011).*

Officers somehow ended up at defendant’s house based on an investigation that his IP address had been used for credit card fraud. They came to do a knock-and-talk for his computers and he refused to consent to a search. They came back with a search warrant, and he requested to delete files from one of the computers when one made an off-hand remark about child pornography, which they denied. Then they sought a second search warrant for child pornography based on the request to delete files. That was not an additional factor in probable cause, and the trial court was correct in suppressing the search and in finding no good faith exception. State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012):

The Fourth Amendment contains a particularity requirement, stating that “no Warrants shall issue, but upon probable cause … and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis supplied.) The Founding Fathers’ abhorrence of the English King’s use of general warrants—which allowed royal officials to engage in general exploratory rummaging in a person’s belongings —was the impetus for the adoption of the Fourth Amendment.10 Simply put, the Fourth Amendment prohibits “fishing expeditions.”

…

[12] To allow a search based only on the fact that Sprunger wanted to hide something would sanction the type of general exploratory rummaging the Founders wished to prohibit. As we have stated before, “‘[a] general search for evidence of any crime,’” such as the one that would be issued based solely on this fact, is unconstitutional.

It is true that the fact Sprunger asked to delete some files might have raised a suspicion. But this suspicion did not amount to a fair probability that child pornography would be found on his computers. Based solely on this fact, the deputies would have no idea what would be found. Their search would have amounted to a rummaging through a treasure trove of information. “‘[T]he modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs.’” It thus makes the particularity and probable cause requirements all the more important. To sanction a search based solely on Sprunger’s request to delete some unknown files would trivialize the protections of the Fourth Amendment.

. . .

Moreover, not only would a reasonable officer know that a general search warrant was illegal, a reasonable officer would also know that telling a person that he had “nothing to worry about” if he had no child pornography on his computer would lead that person to believe he was being investigated for child pornography. The deputy had effectively planted the idea in Sprunger’s head. Given this, we do not see how the deputies could have objectively relied on the warrant. The deputies knew—or certainly should have known—that the only fact showing any connection to child pornography was of their own making.

Defendant’s car was impounded, and the officer searched the car to “leaf through notebooks located in the back seat [and this] was an unjustified unconstitutional search.” “Further, the plain view doctrine does not apply, because the incriminating character of the notebooks was not immediately apparent.” People v Perez, 2011 NY Slip Op 7659, 88 A.D.3d 1016, 931 N.Y.S.2d 411 (2d Dept. 2011).*

Defendant had a reasonable expectation of privacy in his backyard and back steps, even though the yard was not fenced or posted with a no trespassing sign, because the property was in a secluded area, there were no neighbors within several hundred yards, and the yard was not visible from the road, driveway, or other properties. The warrantless entry into the curtilage was not justified because officers did not have probable cause to believe the instrumentality of a crime or evidence of a crime would be discovered, and even if there was probable cause, there were not exigent circumstances such that obtaining a warrant was impracticable. Finally, defendant’s consent to a search after the illegal entry into the curtilage was not valid because the taint was not sufficiently attenuated: the consent was given within minutes of the entry; the entry resulted in an officer observing marijuana; defendant did not volunteer his consent; and the officer did not tell defendant he could decline the request. Cooksey v. State, 350 S.W.3d 177 (Tex. App.—San Antonio 2011).

On a GVR in light of Davis, the court follows Davis and holds that a pre-Gant search is governed by good faith. Valesquez v. Commonwealth, 362 S.W.3d 346 (Ky. App. 2011).*

911 call to a potentially suicidal person brought police to defendant’s house. Once inside, they saw a blood stain and smelled a foul odor from what turned out to be corpses found in a valid walk through before the officers left the house. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264:

Keeping in mind Rule 14.3 and this court’s application of that rule, we turn now to the Facts surrounding the search in this case. Fort Smith Police Officer Stephen Hutchinson testified at the hearing on the motion to suppress that he was dispatched pursuant to a 911 call from Miller’s father, who was in Colorado and had received a text message from Miller stating that Miller was thinking of killing himself with pills. Officer Hutchinson and Officer Derek Harwood went to an apartment rented to Bridgette Barr to conduct a welfare check on Miller. They knocked on the door and Miller opened it. They explained to Miller that they were there in response to a 911 call from his father about a suicide threat and that they were checking to see how he was doing. Officer Hutchinson asked if they could come inside to talk because it was so cold outside. After first asking to leave immediately with the officers, Miller agreed to let them in the apartment and to wait for an ambulance to take him to the hospital for a mental-health evaluation. While inside the entryway, Officer Hutchinson began to offer help to Miller and to inquire about what kind of problems he was having. Miller stated that he and his girlfriend had been fighting. While this conversation was occurring inside the apartment, Officer Hutchinson noticed pictures of a woman, whom Hutchinson thought to be Miller’s girlfriend because he had his arm around her and two small children. He also noticed a dried blood stain approximately six to eight inches in diameter on the door. Despite having a head cold at the time, Officer Hutchinson also noticed a foul odor in the apartment.

. . .

In conducting the walk-through of the apartment, the officers saw in plain view a foot with toenails painted red extending from a pile of blankets on the floor at the end of a bed. Officer Hutchinson pulled the blanket back just enough to see the forehead of a body that appeared to be decayed. Both officers then left the apartment, returned to the ambulance outside, and read Miller his Miranda rights. Officer Hutchinson then asked Miller if he had killed the person in the bedroom; Miller answered yes. Remembering that he had also seen pictures of two small children, Officer Hutchinson asked Miller where the children in the picture were. Miller stated they were in the house and then admitted to killing the children also.

Holding DL for five minutes while checking validity was reasonable during a stop. Fallon v. State, 2010 Alas. App. LEXIS 1 (January 8, 2010)*:

Based on this record, we conclude that the stop was a valid community caretaker stop. Trooper Carson was therefore authorized under AS 28.15.131 to request Fallon’s driver’s license. By calling dispatch to check on the status of the license, Carson did not unreasonably expand the scope or duration of the stop. Although Fallon testified that he sat in his car for about five minutes waiting for Carson to return his license, the electronic recording of the contact indicates that only three minutes passed between the time Carson asked for, and returned, Fallon’s license. Some of this time was occupied pulling Fallon’s vehicle back onto the roadway.

In a search warrant of a computer for drug record evidence, it was reasonable to open the “My Pictures” folder where child pornography was found. Henson v. State, 314 Ga. App. 152, 723 S.E.2d 456 (2012):

In his sole enumeration of error, Henson contends that the trial court erred in denying his motion to suppress the evidence of child pornography found on his personal computer. Specifically, he argues that the police officer who initially searched his computer exceeded the scope of the warrant seeking evidence of illegal drug transactions when he opened the “My Pictures” folder. We disagree.

In Reaves v. State, our Supreme Court addressed the particularity requirement for warrants and held that “[a]lthough a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved.” Specifically, “the particularity requirement only demands that the executing officer be able to identify the property sought with reasonable certainty.”

Here, as previously noted, the warrant sought a search for “marijuana, miscellaneous items associated with drug distribution such as packaging material, digital and hand scales, marijuana smoking devices, cash proceeds and records (both written and electronic) of illegal drug sales.” And given that electronic records of illegal drug transactions are included amongst those items to be searched, the warrant permitted the search of personal computers at the subject address. Indeed, Henson does not argue on appeal that his computer was an improper target of the search. Nevertheless, he contends that the officer’s search exceeded the scope of the warrant because his computer’s “My Pictures” folder, which by its very title obviously contained photographs, is not encompassed by the term “electronic records.” However, the ordinary signification of “record” is “[a]n account of some fact or event preserved in writing or other permanent form … or “any thing … serving to indicate or give evidence of, or preserve the memory of, a fact or event.” And given that a picture certainly preserves or gives evidence of a fact or event—in many instances as efficiently as a thousand words—Henson’s claim that the term “electronic records” does not encompass pictures or photographs lacks merit. Thus, the trial court did not err in finding that the officer’s search did not exceed the scope of the warrant.

A narcotics investigator found defendant in a bedroom. He found a methamphetamine pipe in defendant’s pockets while performing a pat-down search. The court of appeals held that because the police had a valid arrest warrant for the resident and limited their search to those areas where she could be located, the fact that they could have been motivated to enter the house to search for drugs was immaterial and did not render the entry and subsequent seizure of evidence from defendant illegal. The police reasonably believed that the resident was in the house at the time of their entry based upon information from a neighbor and the fact that the vehicle registered to the resident was parked in front of the house. Jones v. State, 314 Ga. App. 247, 723 S.E.2d 697 (2012).*

“Pleading guilty to two firearm offenses, Lewis unsuccessfully moved to suppress the firearm as the fruit of an unlawful search and seizure. We must determine whether the traffic stop was supported by the requisite reasonable suspicion of criminal activity under the Fourth Amendment based on either: (1) the illegal tints on the vehicle’s windows; or (2) the tip that firearms were in the possession of the individuals in the vehicle. We hold that neither basis establishes the reasonable suspicion necessary for the traffic stop. Hence, the firearm discovered on Lewis should have been suppressed. We will vacate Lewis’s judgment of conviction and sentence, reverse the denial of his motion to suppress, and remand for further proceedings.” United States v. Lewis, 672 F.3d 232 (3d Cir. 2012).*

Stop for car theft justifies a patdown. United States v. Braxton, 456 Fed. Appx. 242 (4th Cir. 2011), certiorari denied, 132 S. Ct. 1815, 182 L. Ed. 2d 633, 2012 U.S. LEXIS 2468 (U.S., Mar. 26, 2012) (unpublished):

After all, as the District of Columbia Circuit has emphasized, “car theft is a crime that often involves the use of weapons and other instruments of assault that could jeopardize officer safety, and thus justifies a protective frisk under Terry.” United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007).

The cases to this effect are legion. See, e.g., United States v. Garcia-Rivera, 353 F.3d 788, 791 (9th Cir. 2003) (approving pat-down when “[i]nability to provide proof of registration gives rise to suspicion of a stolen vehicle”); United States v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003) (“[L]aw enforcement could infer the vehicle might be stolen, and as possible car thieves [defendants] might possess weapons.”); United States v. Shranklen, 315 F.3d 959, 963 (8th Cir. 2003) (holding that defendants “might have stolen the car and, therefore, might have weapons in the car that they used during the theft or had available in case they were discovered”); United States v. Tuggle, 284 Fed.Appx. 218, 227 (5th Cir. 2008) (“[W]hen [defendant]’s conduct reasonably suggested that he might be part of that auto-theft ring, the officers were justified in fearing for their safety.”); United States v. Williams, 7 Fed.Appx. 876, 885 (10th Cir. 2001) (Officer’s “frisk of [defendant] for weapons … was permissible under Terry” in light of “the objectively reasonable suspicion that the van was stolen.”) United States v. Bradley, 1990 WL 124205 at *2 (6th Cir. 1990) (“It was reasonable for the officer to believe that appellant, who was suspected of having recently been involved in a car theft, might have been armed and dangerous.”)

A parked trailer with illegal liquor was seen in an open field and an ABC officer tried to look through a gap in the back but could not see much. Eight days later he came back and saw that stuff had been moved, and he used a carpenter’s scope to look through a crack inside the trailer. The search was valid under the automobile exception even though the trailer was unhitched and parked. United States v. Smith, 456 Fed. Appx. 200 (4th Cir. 2011) (unpublished):

In [United States v.] Navas[, 597 F.3d 492 (2d Cir. 2010)] in a thorough opinion, the Second Circuit held that the automobile exception applied to a tractor trailer unhitched from its cab, even when the defendants were already placed under arrest at the time of the search. Id. at 501. The court reiterated that “a vehicle’s inherent mobility—not the probability that it might actually be set in motion—is the foundation of the [automobile exception’s] mobility rationale.” Id. at 498. Thus, “the mobility rationale … does not turn on case-by-case determinations by agents in the field regarding either the probability that a vehicle could be mobilized or the speed with which movement could be achieved.” Id.

In this case, the automobile exception applies to the tractor trailer on the land in Pittsylvania County. The tractor trailer clearly was inherently mobile, and counsel for Smith conceded at oral argument that the tractor trailer could be moved by simply attaching a cab to the tractor trailer. Moreover, the recent unloading activity at the tractor trailer suggested that it might be moved when all of the liquor jugs were unloaded. In short, embracing Smith’s position here would contravene the sound reasoning of both Carney and Navas.

Using a ruse to get defendant to get into a police car and come back to his house was not unreasonable and did not make that consent involuntary. The officer told defendant he needed to come home to talk about an arson investigation, but it was really a drug investigation. United States v. Gregory, 456 Fed. Appx. 533, 2012 FED App. 0063N (6th Cir. 2012) (unpublished):

Importantly, the question is not whether Gregory may have declined Bunch’s request had he known the officer’s true motivation. Rather, the question under the Fourth Amendment is whether the “‘police misrepresentation of purpose [was] so extreme that it deprive[d] the individual of the ability to make a fair assessment of the need to surrender his privacy.’” Hardin, 539 F.3d at 425 (quoting 2 Wayne R. LaFave et al., Criminal Procedure § 3.10(c) (3d ed. 2007)). Essentially, the question this court must ask is whether the ruse created a scenario where Gregory “ha[d] no choice” but to concede his privacy interests. Id. (quoting United States v. Copeland, No. 95-5596, 1996 U.S. App. LEXIS 17177, 1996 WL 306556, *3 n.3 (6th Cir. June 6, 1996)). The Hardin court concluded that “the ruse regarding the water leak presented a situation in which an individual would feel ‘no choice but to invite the undercover officer in’ and any consent was invalid.” Id. (quoting Copeland, 1996 U.S. App. LEXIS 17177, 1996 WL 306556 at *3 n.3).

This case does not present the type of situation addressed in Hardin. Although Gregory believed that he would be traveling to his residence to examine evidence in the arson investigation, rather than meet with other officers concerning an ongoing drug case, he was fully aware that he would be accompanying a law enforcement officer. By contrast, in Hardin, the defendant believed he was interacting simply with an apartment manager, not a government agent. Moreover, the water leak ruse in Hardin undoubtedly created a sense of urgency and compulsion for the defendant who was residing in the apartment. Despite the ruse in this case, Gregory maintained “the ability to make a fair assessment of the need to surrender his privacy.” Id. at 425.

“When Officer Dunn asked West to step out of the car, he had already ascertained that there were no warrants or other problems relating to West and his passengers. He had observed no new behavior or learned any new facts in addition to what he had noted during the course of the stop. His motive, which he described as curiosity to see what was going on, did not give rise to a reasonable and articulable suspicion of criminal activity to justify asking West to step out of the car.” West v. Commonwealth, 358 S.W.3d 501 (Ky. App. 2012).

Defendant’s questioning at the scene of his arrest fleeing from a bank robbery was valid under the public safety exception of Quarles, even though he was handcuffed and out of the car. Through the window, the officer could see the proceeds of the bank robbery and the bandana defendant wore. United States v. Miller, 456 Fed. Appx. 595 (7th Cir. 2012) (unpublished).*

Discarded baggy of drugs on flight from officers was not shown to be the result of unconstitutional action by the officers. United States v. Patton, 2012 U.S. Dist. LEXIS 6096 (D.Kan. January 18, 2012).*

The police had the defendant’s house under surveillance and observed and stopped people leaving with drugs, a strong smell of raw marijuana in their cars, and significant drug histories. A “protective sweep” of the premises was performed which the court finds lawful. Even so, a warrant was issued thereafter, and if the information from the protective sweep was left out, there was still probable cause. [The court erroneously conflates “protective sweep” and exigent circumstances in general.] United States v. Johnson, 457 Fed. Appx. 512, 2012 FED App. 0098N (6th Cir. 2012) (unpublished)*:

Moreover, the officers were aware that Hakim and the two other individuals taken into custody after leaving the Glen Drive residence would soon be released from custody and the traffic stop, respectively, after being questioned about narcotics and their connection with the Glen Drive residence. Upon release from custody, they would be able to contact the individual(s) believed to be in the house and instruct them to destroy the narcotics. We find that the officers thus had “a reasonable belief that these third parties may soon become aware the police are on their trail, so that the destruction of evidence would be in order.” Sangineto-Miranda, 859 F.2d at 1512. The exigent circumstances exception applies, and we find that the officer’s initial entry for the protective sweep was constitutional.

[Note: This case is just wrong and bad precedent on use of the phrase “protective sweep” which is from Maryland v. Buie and centers on protecting police from an ambush. Buie at 333:

That Buie had an expectation of privacy in those remaining areas of his house, however, does not mean such rooms were immune from entry. In Terry and Long we were concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that could unexpectedly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry or Long frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.

This is judicial laziness in terminology, but the existence of probable cause is evident. Moreover, the finding of “a reasonable belief that these third parties may soon become aware the police are on their trail” is premised purely on police conduct, which is somewhat tenuous and needed to be further explored.]

Cabelles essentially applies to blood already seized–there is no reasonable expectation of privacy in blood already legitimately seized against testing for presence of contraband (here THC). State v. Price, 2012 UT 7, 2012 Utah App. LEXIS 28 (January 27, 2012):

[**P12] Mr. Price certainly retained a legitimate privacy interest in the non-contraband contents of his blood. Testing Mr. Price’s blood for HIV status, DNA information, blood type, or other private medical facts therefore would have infringed upon a legitimate privacy interest. But that did not occur here. The THC test conducted on Mr. Price’s blood was limited to revealing only the blood’s THC contents, for which Mr. Price retains no legitimate privacy interest. Tests for contraband that cannot reveal details regarding legitimate privacy interests do not implicate Fourth Amendment protections. Caballes, 543 U.S. at 408. For example, the U.S. Supreme Court has upheld the use of “a well-trained narcotics-detection dog” to reveal the presence of narcotics during a routine traffic stop, because the use of drug sniffing dogs can disclose “only the presence or absence of narcotics, a contraband item.” Id. at 409 (internal quotation marks omitted). Because testing Mr. Price’s blood for the presence of THC could not infringe on a legitimate privacy interest, the test is not subject to the protections provided by the Fourth Amendment.

Officer’s observation of a bulge in defendant’s groin area during a traffic stop and prior knowledge of defendant’s possession of drugs and guns justified a patdown. United States v. Stennis, 457 Fed. Appx. 494, 2012 FED App. 0093N (6th Cir. 2012) (unpublished).*

Prosecutor’s comment in closing argument on defendant’s exercise of his right to refuse consent was prosecutorial misconduct and required reversal of the conviction. It is a fundamental error. State v. Betancourt, 151 Idaho 635, 262 P.3d 278 (2011):

The state asserts that Betancourt has failed to demonstrate the second prong of the fundamental error test because the error is not clear from a review of the record. Specifically, the state argues that the prosecutor’s comments are ambiguous, at best, and could not be considered to be plain error. However, the prosecutor’s statement that Betancourt “did not want those troopers to search that vehicle” is clearly a comment on Betancourt’s statements in the video refusing to consent to a search. Similarly, the prosecutor’s statements during rebuttal also refer to Betancourt’s concern about keeping the officers out of the vehicle. While the prosecutor focused on Betancourt’s overall demeanor during the stop, it is plain from a review of the record that the prosecutor also requested that the jury pay particular attention to Betancourt’s refusal to allow the search as evidence of his knowledge of methamphetamine in the car. Therefore, the second prong of Perry has also been established.

Under the third prong of Perry, in order to conclude that the prosecutor’s comments constituted fundamental error, the defendant must demonstrate that there is a reasonable possibility that the impermissible comments affected the outcome of the trial. Perry, 150 Idaho at 226, 245 P.3d at 978. As mentioned above, in order to prove possession of a controlled substance, the state must prove that the defendant has such dominion and control over the substance to establish constructive possession. Segovia, 93 Idaho at 598, 468 P.2d at 664. A sufficient showing of a nexus between the accused and the controlled substance is central to this requirement. Fairchild, 121 Idaho at 969, 829 P.2d at 559. Further, knowledge of the existence of controlled substances may be inferred through circumstances. Clayton, 101 Idaho at 16, 607 P.2d at 1070.

Officers had a search warrant for a mobile home. When they arrived they found the defendant outside and two men coming out of a rock building behind the trailer. The search warrant was for the premises, and the protective sweep of the rock building was justified under Buie. State v. Rojas-Tapia, 151 Idaho 479, 259 P.3d 625 (2011).*

Defendant rented a hotel room for a couple that had no means to rent the room themselves. As occupants, they had apparent authority to consent to a search of the room. State v. Bell, 2011 Iowa App. LEXIS 813 (August 10, 2011).*

Two officers approached a group in a high crime area and they scattered. One officer followed defendant who furtively reached for his waist as the officer approached. Handcuffing him was reasonable during the patdown for officer safety. The pill bottle in defendant’s pocket was discovered by plain feel. State v. Marshall, 70 So. 3d 1106 (La. App. 2d Cir. 2011).*

It was reasonable to put defendant in the back of a police car for the time being while the officer investigated further. Defendant and his car matched the description from a bank robbery that happened within the hour. United States v. Rush, 651 F.3d 871 (8th Cir. 2011).*

Defendant was stopped for following too close, and he had two rifles in the back seat. He invited the officer to “run” them, which prolonged the stop. Then he consented to a search. The officer noticed the console didn’t fit right and removed part of it, and that was not a “dismantling” of the car. United States v. McCall, 433 Fed. Appx. 432 (6th Cir. 2011).*

Driver and passenger were unable to provide basic information about their trip and that provided reasonable suspicion. United States v. Olvera, 437 Fed. Appx. 305 (5th Cir. 2011) (unpublished).*

The officer had reasonable suspicion to stop the defendant walking away from the area of a recent car break-in when he was the only person around, and he matched the description of one of the two involved. State v. Kessler, 151 Idaho 653, 262 P.3d 682 (2011).*