An employee of a marina called the police to tell them that a boat had docked several times in the past week and people were coming and going like they were buying drugs from the boat. An officer went to the marina to conduct a knock-and-talk of the boat, and the officer obtained consent. When defendant opened the door of the boat, the officer could smell methamphetamine. State v. Linenberger, 151 Idaho 680, 263 P.3d 145 (2011)* [the case does not even mention that, comparing the cases of the smell of marijuana from a car, and the mobility of a boat, the automobile exception would have justified the search].

Defendant was involved in an accident, and the trial was over whether he was the driver and was intoxicated. When he was in the ER, blood was drawn for diagnosis, and the blood was admitted in evidence at the trial. The taking of the blood by the hospital was a private search, and the Fourth Amendment was not implicated. Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 952 N.E.2d 969 (2011).*

The officer testified he stopped the defendant’s car because he couldn’t read the license plate because of snow and driving in the center of a road with snow on it and high snow banks and no marked centerline. Neither was a justification for the stop. City of Lakewood v. Shelton, 2011 Ohio 4408, 2011 Ohio App. LEXIS 3677 (8th Cir. September 1, 2011).*

While the law is not clear, it appears that “an articulable suspicion or ‘a minimal showing of suspicion’… of criminal activity” is required to send a motorist at a border crossing for a secondary inspection. The officers had it here. United States v. Lewis, 2011 U.S. Dist. LEXIS 75689 (D. Ariz. July 12, 2011):

Although the law is not completely developed on this point, it appears that if a referral to a second inspection area is solely for drug-related concerns, the government must show “an articulable suspicion or ‘a minimal showing of suspicion’… of criminal activity.” United States v. Taylor, 934 F.2d 218, 221 (9th Cir. 1991) (quoting United States v. Couch, 688 F.2d 599, 604 (9th Cir. 1982)). An articulable suspicion is not equivalent to the reasonable suspicion standard. See Taylor, 934 F.2d at 221. It is a considerably lower standard. Whereas nervousness may create an articulable suspicion and be sufficient to justify referral to a secondary inspection area, nervousness alone would be insufficient to create reasonable suspicion. Id.

The search here could be justified by agreement to a probation search as a condition of release or probable cause for the search warrant in this case. The court goes with the latter. State v. Hansen, 151 Idaho 342, 256 P.3d 750 (2011).*

Apparently some New York, Connecticut, and Arkansas police agencies have decided that seat belt checks are a good idea for a roadblock. They aren’t constitutional because the true safety rationale of Sitz is missing, and they are only going to end up giving taxpayer dollars to the civil rights lawyer that sues them first. The point, of course, is what else is swept up, like drug arrests, which will lead to a motion to suppress.

Defendant’s statement during an investigative detention was not the subject of flagrant police conduct warranting suppression under Brown. State v. Buford, 2012 Tenn. Crim. App. LEXIS 342 (May 24, 2012)*:

Consequently, a weighing of the Brown factors leads to the conclusion that the defendant’s statements were sufficiently the product of his own free will so as to purge the taint of any illegal arrest. Moreover, in this case, the legal conclusion dictated by Brown is confirmed by the presence of additional facts. The record reflects that the defendant never requested to leave at any point during the time period he was in police custody. Furthermore, the statements that the defendant made to police were intended to be exculpatory. While the principle that exculpatory statements may be suppressed as fruits of the poisonous tree is a concept as old as the doctrine itself, see Wong Sun, 371 U.S. at 487 (rejecting the government’s argument that certain statements should be admissible because they were ostensibly exculpatory), the overarching picture painted by this record is not one of a defendant coerced into making an involuntary confession – or indeed any sort of statement at all–to the police as a result of some pressure or trauma resulting from an illegal detention.

Relying on a tip of men selling drugs in Cleveland, the officers approached defendant and he admitted smoking PCP earlier. That was reasonable suspicion to pat him down for officer safety. State v. Hunter, 2012 Ohio 2302, 2012 Ohio App. LEXIS 2023 (8th Dist. May 24, 2012)*:

[*P19] In our view, the record establishes that the officers proceeded to investigate the area in good faith reliance upon the tip of men selling drugs. During their conversation with the men, defendant was sluggish, appeared dazed and confused, and repeatedly failed to answer the officers’ questions. Although the officers demanded that defendant take his hands from his pockets, the record demonstrates that as the officer took a few steps closer to defendant, he quickly detected the distinct odor of PCP from defendant. Defendant then told the officers that he had smoked PCP earlier, and this created a reasonable suspicion, based upon specific and articulable facts, that an individual is or has been engaged in criminal activity such to justify a search of defendant’s outer clothing under Terry. Accord State v. Wilson, 8th Dist. No. 94097, 2010 Ohio 5478 (patdown permissible where officers detected odor of PCP); State v. Dunn, 8th Dist. No. 85435, 2005 Ohio 3477.

Hunter is here. What’s this gratuitous use of “good faith” for an encounter? Sloppy appellate court writing–completely unnecessary, and a prosecutor will later use this case to argue the good faith exception applies to warrantless searches.

By affidavit in response to the motion to suppress, the government showed that the drug dog was reliable and the motion to suppress is denied without a hearing. United States v. Sandoval, 2012 U.S. Dist. LEXIS 72776 (E.D. Cal. May 24, 2012):

“Based upon [these undisputed facts], the Government has met its burden of proving [Darco’s] reliability.” United States v. Neatherlin, 66 F. Supp. 2d 1157, 1160-61 (D. Mont. 1999)(stating evidence that the narcotics detection dog trains eight hours every two weeks, is tested and certified annually, and does not alert where no drugs are present “shows, by a preponderance of the evidence, that [the dog] is reliable”); see also Spetz, 721 F.2d at 1464 (stating a “mistake in the affidavit [supporting a search warrant] as to [the narcotics detection dog’s] record was unimportant because the difference in figures[, i.e. alerting correctly 56 out of 61 occasions versus 60 out of 66 occasions,] is immaterial and would not have affected the magistrate’s judgment of the dog’s reliability”).

Gant was not retroactive for a forfeiture action, either. United States v. $164,705.00 United States Currency, 2011 U.S. Dist. LEXIS 127687 (M.D. Tenn. November 3, 2011).*

Under Washington law, however, a defendant who did not challenge his search incident under Gant because the hearing was before Gant was decided could still raise it on appeal. Remanded. State v. Johnson, 164 Wn. App. 486, 273 P.3d 446 (2011).*

Summary judgment was properly granted the police officers for the Terry search of defendant’s person for a gun. They had articulable reasonable suspicion defendant was armed. Spears v. Leporace, 449 Fed. Appx. 187 (3d Cir. 2011) (unpublished).*

The defendant relied on the police reports to show that the officers did not believe that they had probable cause at the time of the stop, but the court finds probable cause despite the fact one officer said “detained” and another said “arrested.” United States v. Vazquez-Silva, 2011 U.S. Dist. LEXIS 127939 (D. Idaho November 4, 2011)*:

The defense also argues that the distinction between the officers’ reports as to whether Mr. Vazquez was detained or arrested is critical. The defense contends the officers’ behaviors at the time of the traffic stop suggest they had not yet determined whether or not he had any involvement in the drug transaction yet and were trying to figure out if there was any evidence they could use, even from the house, to link him to the case. The point being that at the time of his arrest there wasn’t sufficient probable cause for him to have been arrested, asked incriminating questions, and his property, including the Jetta, searched. The Court finds otherwise.

Defendant’s “forum shopping” claim is rejected. A state judge did express some misgivings about the probable cause but was willing to sign off anyway, but the officer went to an AUSA for clarification, and it was determined that it was good enough for federal court. A USMJ issued the warrant, and there was probable cause. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 65000 (D. Conn. June 20, 2011).*

Detailed information from a CI provided justification for defendant’s stop, and defendant consented to a search of his person revealing 83g of cocaine. Hall v. State, 310 Ga. App. 397 (2011).*

Defendant’s traffic stop was justified by no signals when required. A drug dog almost immediately arrived, and the use of the dog did not prolong the stop at all. Nunnally v. State, 310 Ga. App. 183, 713 S.E.2d 408 (2011).* [Update from a reader: “I wanted to let you know that Lexis’ analysis of the Nunnally case is incorrect or incomplete. The court overturned his drug conviction (but affirmed his traffic conviction) because the marijuana should have been suppressed. The key factor was that the officer testified that he was not really investigating a traffic violation, he was investigating a drug case. The court stated that even though the stop was only 8 minutes long, the officer had essentially given up on the traffic stop as soon as he asked dispatch for the defendant’s license information.”]

The car defendant was in stopped on the side of the road and the driver and passenger switched places. The officer stopped to see if there was a problem, and the former driver was found under the influence. The stop was valid as a community caretaking stop because the officer was not investigating a possible offense. People v. Dittmar, 2011 IL App (2d) 91112, 352 Ill. Dec. 403, 954 N.E.2d 263 (2011).*

Weaving within one’s own lane at 11 pm is not reasonable suspicion. State v. Otto, 2011 N.C. App. LEXIS 2353 (November 15, 2011).*

The affidavit for the search warrant of one defendant’s cell phone showed probable cause to believe that there was evidence on it. United States v. Barret, 824 F. Supp. 2d 419 (E.D. N.Y. 2011).*

The legality of defendant’s arrest bearing on the voluntariness of his statement was not argued to the trial court, so it cannot be argued on appeal. State v. Adams, 78 So. 3d 222 (La. App. 5th Cir. 2011).*

A burglar alarm going off when police officers arrived and saw an open door are exigent circumstances for an entry and protective sweep. State v. Warren, 304 S.W.3d 796 (Mo. App. 2010).

Pressuring defendant during an illegal stop to admit the drugs were his was fruit of the poisonous tree. State v. Towai, 234 Ore. App. 292, 228 P.3d 601 (2010).*

Seizure of a cell phone under school policy is not violation of due process or the Fourth Amendment. Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817.*

The student’s person and stuff were searched because he was apparently stoned at school. The search of the student’s locker search was also with reasonable suspicion. Also, there was no reasonable expectation of privacy in the locker. In re S.M.C., 2011 Tex. App. LEXIS 2069 (Tex. App.—El Paso March 23, 2011).*

The officer’s knowledge, based on credible CI information, was sufficient to show PC and nexus for search of defendant’s house. It was a fair inference he was keeping drugs in his house and leaving the house for delivery of the drugs. Branch v. State, 335 S.W.3d 893, 361 S.W.3d 699 (Tex. App.—Austin March 18, 2011), Petition for discretionary review refused by 2011 Tex. Crim. App. LEXIS 1156 (Tex. Crim. App., Sept. 14, 2011)cert. denied, 2012 U.S. LEXIS 1589 (U.S., Feb. 21, 2012)*:

Based on the information in the affidavit, the magistrate could have inferred that: (1) Branch carried the cocaine that was found in his pocket out of his home; (2) the confidential informants, especially First CI and Third CI, had some familiarity with Branch and his affairs; (3) Branch had recently begun delivering cocaine to buyers rather than allowing buyers to come to his home; and (4) Branch was attempting to deliver cocaine to a buyer when the traffic stop occurred.

Given the facts in the affidavit and the reasonable inferences that could be made from the facts, we conclude that the magistrate had a substantial basis for determining that probable cause existed to search Branch’s home. Although it is possible that Branch took all the cocaine stored at his home with him when he left the home, it is at least as likely that the cocaine in his pocket was just one portion of a larger amount that he was storing in the home. See id. at 64. Accordingly, we conclude that the trial court did not err in declining to suppress the evidence discovered in Branch’s home pursuant to the search warrant.

Police approached the juvenile on the street, and he started to walk away. An officer grabbed him and searched him finding a gun. The stop was without reasonable suspicion and suppressed. State in Interest of J.H., 83 So. 3d 1100 (La. App. 5th Cir. 2011).*

An officer saw a truck parked on the lot of Big Lots at 1:40 am near stuff for sale on pallets. He entered the parking lot and the truck started to move without lights on. The officer stopped him, and the defendant had a wet shirt in V down from his neck. He said he had “3 or 4 beers.” Because stuff on the parking lot could have been stolen, it was reasonable for the officer to approach the defendant to see what was going on. City of Brunswick v. Ware, 2011 Ohio 6791, 2011 Ohio App. LEXIS 5608 (9th Dist. December 30, 2011).*

CI’s detailed information of time of arrival of cocaine and a full description of the car and occupant was probable cause. Also, defendant’s actions on seeing the police heightened their suspicion of him. State v. Sierra, 83 So. 3d 239 (La. App. 5th Cir. 2011).*

The affidavit for the search warrant in this case was signed before a notary public working for the DA, but not one authorized by a judge in violation of the Rules of Criminal Procedure. A violation of the Rules was not a Fourth Amendment issue, defendant cannot show he was prejudiced, and the court will not order suppression of the evidence. Copley v. Commonwealth, 361 S.W.3d 902 (Ky. 2012):

Suppression under this test is not warranted in this case because neither prong is satisfied. Copley was not prejudiced by the violation of RCr 2.02 and 13.10. There was no allegation or proof that the search would not have occurred absent the rule violation or that the search was abusive. Nor is there evidence that law enforcement officials deliberately disregarded the rules. Rather, given that Ms. Hardy was a notary public, was generally qualified to administer oaths and was employed by the Commonwealth Attorney’s office, and that all other requirements for securing the warrant were carefully observed, such as complying with KRS 15.725(5) by having the Commonwealth Attorney and the County Attorney certify that no judge or commissioner was available, it appears that the violation of Rules 2.02 and 13.10 was simply inadvertent.

The notion of needing to show prejudice is a death knell to nearly any suppression motion. How can you show prejudice from the wrong notary? You can’t. The affidavit was sworn and seemingly truthful, that’s all that’s really required.

GPS was used to follow defendant to his home and then a dog sniff on the front porch violated his privacy rights under the Fourth Amendment. United States v. Peter, 2012 U.S. Dist. LEXIS 72485 (N.D. Ind. May 24, 2012):

While the precedent clearly teaches that a canine sniff-whether of a suitcase, an automobile, or a residence-is not itself a search within the meaning of the Fourth Amendment and therefore does not require any independent justification, the overall police action is still subject to constitutional constraints. Thus, in Place, although the dog sniff of the defendant’s luggage did not constitute an unlawful search, the 90-minute detention of that luggage “went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics.” 462 U.S. at 710. In Caballes, the Court “accept[ed] the state court’s conclusion that the duration of the stop … was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop,” and held that the dog sniff did not transform the otherwise lawful traffic stop into an unlawful search. 543 U.S. at 408. And in Indianapolis v. Edmond, 531 U.S. 32 (2000), although the use of a drug-detection dog at drug interdiction checkpoints was not a search, the checkpoint program itself was unconstitutional because it was justified neither by road-safety concerns nor individualized suspicion. Similarly, in Brock, the Seventh Circuit reiterated that dog sniffs that detected only contraband were insignificant for Fourth Amendment purposes but stressed that “critical to our holding that the dog sniff in this case was not a Fourth Amendment search is the fact that police were lawfully present inside the common areas of the residence with the consent of Brock’s roommate.” 417 F.3d at 697.

In this case, Peter’s front porch was unquestionably his private property, and the police came onto that property without express consent or a search warrant. As noted above, before the Supreme Court’s recent decision in Jones, this fact would simply have been one factor among many relevant to determining whether the police action infringed the reasonable expectation of privacy protected by the Fourth Amendment. Although the origins of Fourth Amendment jurisprudence lie in the law of trespass, and at one time its protections were thought to limit only searches of tangible property, the Supreme Court long ago rejected “the premise that property interests control the right of the Government to search and seize” and has developed a more expansive protection for a person’s “reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 352-53 (1967). Following Katz, the prevailing assumption of the courts was that the new privacy-based formulation replaced the older property-based one, such that “privacy [came] not merely to supplement but to eclipse property as the interest protected by the Fourth Amendment.” United States v. Redmon, 138 F.3d 1109, 1131 (7th Cir. 1998) (Posner, J., dissenting) (collecting cases). While property rights remained a relevant, even important, consideration in determining Fourth Amendment rights, property’s role was “relegated to that of furnishing evidence of the reasonableness of a defendant’s expectation of privacy.” Id.

Whatever basis that assumption had, however, it did not survive the holding in Jones that the Katz reasonable expectation-of-privacy test supplemented, but did not replace, the older understanding that the Fourth Amendment “embod[ies] a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” Jones, 132 S.Ct. at 950. …

Defendant was illegally stopped for a traffic offense, but it was not flagrantly illegal. When the defendant’s DL was run, an outstanding warrant was found on him, and he was arrested for that. After surveying the law, the court decides that there is no per se rule requiring the finding of the outstanding warrant be suppressed. It is a concern that its holding would potentially encourage illegal stops, but the court is not persuaded that always is the case. Remanded for further proceedings. State v. Mazuca, 2012 Tex. Crim. App. LEXIS 697 (May 23, 2012) (dissent here and here):

We agree with the Arizona Supreme Court’s general assessment. In our view, the first Brown factor is certainly relevant, but, even though it usually favors suppression of evidence that is discovered in the immediate aftermath of an illegal pedestrian or roadside stop, it will sometimes prove to be, in the context of the seizure of physical evidence, “the least important factor”—at least relative to the other two. And while we are hesitant to confirm as a categorical matter that the intervening circumstance of a valid arrest warrant is “of minimal importance”—after all, without it, there can usually be no attenuation of taint when physical evidence is unearthed immediately after an illegal stop—we agree that it should not be overemphasized to the ultimate detriment to the goal of deterrence that animates the exclusionary rule. Finally, we agree that the more important factor is the purposefulness and flagrancy, vel non, of the primary illegal conduct—whether the police have deliberately perpetrated what they know to be an illegal stop in the specific hope or expectation that it will generate some legitimate after-the-fact justification to arrest and/or search, or they have otherwise conducted themselves in particularly egregious disregard of the right to privacy and/or personal integrity that the Fourth Amendment protects. For, when this is the case, to admit the physical evidence because of the fortuity that an arrest warrant happens to come to light before the evidence is discovered perversely serves to encourage, rather than discourage, official misconduct and renders the Fourth Amendment toothless.

To summarize: When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance. To the extent that our pre-Brown analysis on direct appeal in Johnson placed practically exclusive emphasis on the intervening circumstance of an arrest warrant to justify the admission of evidence following an illegal stop, we disapprove it.

. . .

The court of appeals nevertheless affirmed the judgment of the trial court out of what it deemed an overriding concern that a contrary ruling would “encourage” the police to undertake unlawful stops on a pretext, “for the purpose of establishing probable cause or discovering the existence of arrest warrants.” We certainly share that concern. However, we think that prioritizing the purposefulness and flagrancy factor satisfactorily addresses that concern without fashioning a rule that would altogether remove the intervening discovery of an arrest warrant as a factor relevant to the attenuation of taint analysis, as the court of appeals opinion tended to do. The court of appeals adopted an approach that would effectively presume purposeful and/or flagrant police misconduct from the fact of the primary illegality alone rather than assessing the character of that illegality, and of any subsequent police conduct, to determine whether it indicates that they actually behaved purposefully or flagrantly in the particular case. We hold that the court of appeals erred to rely upon this de facto presumption to affirm the trial court’s ruling on the appellee’s motion to suppress. Applying the appropriate analysis today, we hold that the trial court should have denied that motion.

Faint smell of marijuana on defendant’s DL was not probable cause to search the car. United States v. Hickman, 2012 U.S. Dist. LEXIS 71330 (D. Idaho May 21, 2012):

The Ninth Circuit has held that “a strong odor of marijuana emanating from a vehicle can constitute probable cause to search the vehicle.” United States v. Guzman-Padilla, 573 F.3d 865, 886 n. 5 (9th Cir. 2009). The Court, however, concludes in this case that the faint smell of marijuana on Hickman’s license did not justify a search of his car. When questioned about the smell of marijuana on his license, Hickman explained that his roommate has a prescription for medical marijuana. While this explanation standing alone may not have excused Hickman, other factors support a finding of no probable cause: Hickman passed the field sobriety test; he was never resistant or confrontational; he appeared coherent in the video; and neither his clothes nor his car smelled of marijuana. Even Officer Cox, who was present at the scene, questioned whether he had probable cause to search the vehicle. While this has no legal bearing on the issue because the existence of probable cause is based on objective facts, it suggests that perhaps that the proper level of justification did not exist for the search.

Defendant’s detention on the side of the road evolved into a custodial interrogation because of the officer’s actions in telling defendant she wasn’t going anywhere until the drug dog did its thing and denied her use of the phone and cigarettes. While basic traffic detentions are not custodial interrogations, they can become one and this one did. United States v. Ramos, 2012 U.S. Dist. LEXIS 71259 (D. Vt. May 21, 2012) (See Howes v. Fields, 132 S. Ct. 1181, 1190, 182 L. Ed. 2d 17 (2012) (holding that “the roadside questioning of a motorist who was pulled over in a routine traffic stop did not constitute custodial interrogation.”); Berkemer v. McCarty, 468 U.S. 420, 436, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (holding that while motorists subject to routine traffic stops do not generally feel free to leave they are not in custody for Miranda purposes); see Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop … do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”);

Defendant was detained too long considering the alleged justification, and his subsequent consent was tainted by the overlong detention. United States v. Petersen, 2012 U.S. Dist. LEXIS 71551 (D. Utah May 22, 2012).*

HuffPo: FBI Web Surveillance: Bureau Creates Unit To Eavesdrop On Internet Communications by Sara Gates:

With the Federal Bureau of Investigation’s recent push for web wiretaps and increased Internet surveillance, the U.S. seems to be edging closer to the fictional state described in George Orwell’s “1984.”

As CNET reported earlier this week, the FBI recently created a secret web-surveillance unit, the Domestic Communications Assistance Center, aimed at creating tech that would allow the authorities to more easily eavesdrop on Internet and wireless communications. The DCAC will act as hub for all web surveillance, but will not be directly involved in executing Internet wiretapping court orders or operating investigations if proposed legislation passes as planned.

When an IAC search claim is filed, the petitioner has to show what the search was and that he would prevail and the verdict would be different. Fuller v. United States, 2012 U.S. Dist. LEXIS 70813 (S.D. Ill. May 22, 2012) (citing Johnson v. Thurmer, 624 F.3d 786, 792-93 (7th Cir. 2010) (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986))).

Stopping car in the middle of the street was reasonable suspicion for a stop. State v. Foster, 2012 Tenn. Crim. App. LEXIS 323 (May 17, 2012).*

The anticipatory warrant in this case was valid, despite a typographical error in the tracking number because of the otherwise specific description of the package and the place to be searched. State v. Davidson, 2012 Tenn. App. LEXIS 323 (May 17, 2012).*

Under Miller v. Harget, 458 F.3d 1251 (11th Cir. 2006), a police car pulling behind defendant’s car did not per se effect a seizure without more, such as lights and officers’ aggressive actions. United States v. Flores-Uriostegui, 2012 U.S. Dist. LEXIS 71162 (N.D. Ga. May 22, 2012):

Based on these facts, the Eleventh Circuit held that “[c]onsidering the fact that the first contact between [the suspect] and [the officer] did not occur until [the suspect] lowered the window, the fact that [the officer] pulled up behind [the suspect] and turned on his ‘window lights’ does not demonstrate that [the suspect] was coercively detained.” Id. at 1258.

The facts here are similar to the relevant circumstances in Miller. In both instances, the officers pulled their marked patrol car behind a suspect’s vehicle in such a way that the suspect could not leave. Unlike the officer in the Miller case, however, Officers Gray and Turman did not turn on their “window lights” or otherwise alert defendants to their presence. Thus, their approach was less intrusive than was the Miller officer’s approach. There is also nothing in the record to suggest that the delay here between the parking of the patrol car and the approach of defendants’ vehicle was anything other than “extremely brief.” Perhaps most important to the Miller court’s analysis was the absence of any display of authority prior to approaching the vehicle. Like the law enforcement official in Miller, Officers Gray and Turman did not draw their guns, give any directions to defendants, or activate their patrol car lights before approaching the vehicle.