Defendant was arrested when he was searched. The officer approached him after a traffic stop at night with hand on gun, there were six officers there, and defendant was asked nothing but told to get out of the car and he was handcuffed. People v. Surles, 963 N.E.2d 957, 2011 IL App (1st) 100068 (2011)*:

[P26] The bulk of the evidence, however, weighs in favor of finding that defendant was under arrest before he was searched. Specifically, Officer McGrew testified that he approached defendant’s side of the vehicle, either with his firearm drawn or with his hand on his firearm. He also stated that there were six officers, from three separate squad cars, present at the time. In addition, defendant was not asked any questions by Officer McGrew, but instead was given instructions to step out of the vehicle and immediately handcuffed behind his back. Defendant was not told that he could leave or refuse to cooperate, nor was he released after he was handcuffed. Instead, he was handed from Officer McGrew to Officer Solana, who then searched defendant’s person. Thus, defendant’s freedom of movement was restricted, both by physical restraints and the officers’ show of authority.

[P27] We find that Officer McGrew approaching defendant with his weapon drawn or his hand on his weapon made the mood of the encounter more like an arrest. Further, the fact that defendant was ordered out of the vehicle while the officer had his hand on his firearm, and without any conversation, also would make a reasonable person feel restrained. Moreover, the fact that defendant was outnumbered by police officers, and the other occupants were already restrained, would decrease a reasonable person’s feeling of freedom. After all of these things occurred, Officer McGrew placed defendant in handcuffs and kept hold of him until he was passed to Officer Solana. Thus, from the time defendant was placed in handcuffs, he was not free to move on his own. Given the show of force and authority by the officers and defendant’s restraint, we conclude that defendant was arrested from the time he was handcuffed by Officer McGrew.

[Note: Perhaps what is more remarkable here was the state argument that this was not an arrest: six officers, ordered out of car with hand on gun or gun drawn, immediately handcuffed. What more does the state require?]

Defendant was convicted of felony DUI. An officer came up to defendant’s parked car and tapped on the window. Defendant was free to ignore it. State v. Randle, 2012 Ida. App. LEXIS 11 (February 6, 2012). [I still don’t buy this utter fiction. People who ignore police “commands” or even suggestions do it at their peril, and most of them know it. Only the truly street smart would walk away. Probably what’s more laughable is watching the DA and the LEO argue to the court that he was free to ignore it all to justify the stop. In my jurisdiction, and most of them, you’d be arrested for driving off. I’m representing a guy Tasered in the back three times for not responding fast enough to what was supposedly a “consensual encounter.”]

Defendant was stopped for DUI3 based on his making a wide right turn in violation of statute. Because the officer’s interpretation of the statute was reasonable, the stop was based on reasonable suspicion. State v. Dahl, 2012 SD 8, 809 N.W.2d 844 (2012).*

While proximity to a possible crime is not enough to search, the officers here knew more, and that justified the stop of defendant’s vehicle. United States v. Landeros-Sandovar, 2011 U.S. Dist. LEXIS 152784 (W.D. Ky. October 28, 2011).*

NSA domestic surveillance case reversed by the Ninth Circuit and sent back to District Court. Jewel v. National Security Agency, 673 F.3d 902 (9th Cir. 2011):

This case is one of many arising from claims that the federal government, with the assistance of major telecommunications companies, engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks. At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.

In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Nor do prudential considerations bar this action. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political question nor are they inappropriate for judicial resolution. Finally, we do not impose, as suggested by the government, a heightened standing requirement simply because the case involves government officials in the national security context. We reverse the district court’s dismissal on standing grounds and remand for further proceedings. We leave for the district court to consider in the first instance the government’s alternative argument that Jewel’s claims are foreclosed by the state secrets privilege.

See Wired.com: Court Revives NSA Dragnet Surveillance Case by David Kravets:

A federal appeals court on Thursday reinstated a closely watched lawsuit accusing the federal government of working with the nation’s largest telecommunication companies to illegally funnel Americans’ electronic communications to the National Security Agency without court warrants.

While the 9th U.S. Circuit Court of Appeals revived the long-running case brought by the Electronic Frontier Foundation, the three-judge panel unanimously refused to rule on the merits of the case, or whether it was true the United States breached the public’s Fourth Amendment rights by undertaking an ongoing dragnet surveillance program the EFF said commenced under the Bush administration following 9/11.

Attenuation was found with a two hour delay, (unnecessary) Miranda warnings, defendant counseling with his father on his cell phone who told him not to cooperate, and finally thinking about his predicament for at least an hour. United States v. Conrad, 673 F.3d 728 (7th Cir. 2012)*:

If ordered, suppression of unconstitutionally obtained evidence can permit “[t]he criminal … to go free because the constable has blundered.” People v. Defore, 150 N.E. 585, 587 (N.Y. 1926) (Cardozo, J.). Given a blunder that the Government does not dispute here, Defendant David Conrad argues that the district court should have suppressed all the evidence of child pornography that was recovered following an illegal entry into his father’s home. As we explain below, however, the district court correctly denied exclusion of evidence obtained from Mr. Conrad’s own home—an hour’s drive away from the home that had been illegally entered and which Mr. Conrad authorized the Government to search. That evidence was sufficiently attenuated from the original illegal entry so as to have been purged of the unconstitutional taint.

. . .

Consistent with existing precedent, the district court identified intervening circumstances that favored attenuation: Mr. Conrad’s repeated consents to search and his waiver of Miranda rights (which law enforcement was not even required to give because he was not in custody), about two hours after the underlying constitutional violation and in a completely different location. As for the different location, we note that in contrast to cases where no attenuation was found after the defendant was taken, for example, to a police station, e.g., Taylor, 457 U.S. 687, here Mr. Conrad volunteered to go from his family home, a location where, according to the unchallenged findings of the district court, he “was undoubtedly comfortable,” Conrad, 578 F. Supp. 2d at 1037, to a location that was as yet unknown to the agents, the Chicago Apartment. He was likely as or more comfortable there, and thus in a better position to decide whether to stand on his constitutional rights there. Furthermore, because the Chicago Apartment was independently protected under the Fourth Amendment, extending the scope of the exclusion would have little additional deterrent effect. Cf. Harris, 495 U.S. at 20 (“Even though we decline to suppress statements made outside the home following a Payton violation, the principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home. If we did suppress statements like Harris’, moreover, the incremental deterrent value would be minimal.”).

Although the district court did not explicitly rely on it for this second factor, we also attach particular significance to another, rather unusual, circumstance. Mr. Conrad not only could use his cell phone to obtain advice about his predicament, but he actually did—and was, as the district court found, specifically told by his father “not to talk to the officers.” Conrad, 578 F. Supp. 2d at 1025. While he suggests that his decision to ignore that advice was in recognition that he had already confessed to so much that he had no choice but to continue, the district court found, and he does not contest, that his statements were voluntary. Id. at 1036-37. The voluntariness of his statements—made despite superfluous Miranda warnings, a specific warning from his father, and after an hour to think in the car and twenty minutes to think while tending to his cats and showing off music equipment—help establish that his conduct at the Chicago Apartment was “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, 371 U.S. 471, 486 (1963) (footnote omitted).

Officers’ extraterritorial stop was without reasonable suspicion, and his throwdown was properly suppressed. People v. Contreras, 2011 IL App (2d) 100930, 357 Ill. Dec. 239, 962 N.E.2d 1140 (2011).*

The officer was investigating a burglary report and was at defendant’s threshold where defendant was observed with his pants down bleeding from the leg, and he volunteered that he was injured running from the police because he had drugs. That was reasonable suspicion to detain, and defendant’s throwdown was a valid seizure. State v. Wilford, 81 So. 3d 868 (La. App. 5th Cir. 2011).*

The knowledge of the executing officer of the place to be searched may be considered, even if not reflected in affidavit for the search warrant. United States v. Harbison, 2011 U.S. Dist. LEXIS 143957 (M.D. Ala. November 18, 2011):

The court may consider “the knowledge of the officer executing the warrant, even where such knowledge was not reflected in the warrant or in the affidavit supporting the warrant.” Burke, 784 F.2d at 1093. Based on the officers’ knowledge and prior experience at the residence, the search warrants described the residence to be search with sufficient particularity to ensure that the correct residence was searched. “The Fourth Amendment requires only that the search warrant describe the premises in such a way that the searching officer may “‘with reasonable effort ascertain and identify the place intended.’” (internal citations omitted).

Leaving one hotel to go to another is an abandonment of what’s in the first. United States v. Thornton, 2011 U.S. Dist. LEXIS 143843 (N.D. Ga. July 28, 2011).*

The search of defendant’s car was valid either as a search incident to arrest with probable cause or consent. State v. Roberson, 81 So. 3d 911 (La. App. 2d Cir. 2011).*

The fact there were seven cars parked outside defendants’ property justified a protective sweep when there was an arrest of two on the property. United States v. Jones, 667 F.3d 477 (4th Cir. 2012).*

Plaintiffs are California Sexual Violent Predators who sued their keepers with a Fourth Amendment claim that alleged that defendants’ policies, practices and customs subjected plaintiffs to unreasonable searches, searches as a form of punishment, degrading public strip searches, improper seizures of personal belongings, and the use of unreasonable force and physical restraints. But there was no allegation of a specific policy implemented by defendants or a specific event or events instigated by defendants that led to these purportedly unconstitutional searches, so the district court properly granted judgment for defendants. Hydrick v. Hunter, 669 F.3d 937 (9th Cir. 2012).*

A juvenile hanging around in the backyard of an abandoned house was reasonable suspicion of a trespass. As the officers approached, he abandoned a handgun. State in Interest of P.L., 81 So. 3d 983 (La. App. 4th Cir. 2012).*

Officers responded to a call that defendant was shot in the hand. When officers arrived, he was the only person there, and he was taken to the hospital. One officer followed the blood trail upstairs and found drugs in plain view. The district court’s finding that this search was not justified by exigent circumstances was supported by the record. United States v. Wolfe, 452 Fed. Appx. 180 (3d Cir. 2011) (unpublished):

This last point bears strong emphasis. We should not be understood as holding that police officers cannot address ambiguous and evolving circumstances as their well-informed professional judgment dictates. In this case, however, Evans began his search after the two responding officers had already resolved the only exigency there was cause to believe existed. It is true that “[officers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception,” Fisher, 130 S. Ct. at 549 (internal quotation marks omitted), but here, after hearing the evidence, the District Court determined that Evans had no indication that additional victims or threats were inside the home after Wolfe’s departure. Though the government disagrees with that interpretation of the evidence, the finding is sufficiently supported to withstand review for clear error.

Defendant rear-ended an off-duty officer outside his jurisdiction. The officer’s actions in telling defendant to step out of the car, removing and retaining his keys from the ignition, and telling him to sit and wait in his car fell short of an “arrest” sufficient to trigger the citizen’s arrest rule. Instead, this was more akin to an investigatory stop, short of an arrest. Under the circumstances, where defendant rear ended the officer’s personal vehicle and appeared intoxicated, it was reasonable for the officer – as it would any private citizen – to prolong the stop until the local police arrived, in order to ensure the safety of the public and of defendant himself. Defendant was not under arrest until the local police officer arrived and placed him under arrest. Commonwealth v. Limone, 460 Mass. 834, 957 N.E.2d 225 (2011).*

Officers staked out convenience store that was particularly vulnerable to being robbed, and they observed defendant acting suspiciously late in the night inside the store. It was factually similar to Terry where the suspects were casing a jewelry store like they were going to rob it. United States v. Glover, 662 F.3d 694 (4th Cir. 2011).*

Fellow officer rule applies to traffic stops. The fellow officer’s information was from an established CI. The trial court found that defendant consented to a search of his car. State v. Allen, 79 So. 3d 1220 (La. App. 3d Cir. 2011).*

Plaintiff abandoned property before the search occurred. The claim that the affidavit was misleading or failed to include exculpatory evidence was denied, and summary judgment was properly granted. The reasonable construction of the lease was that plaintiff took stuff that didn’t belong to her. Blanchard v. Lonero, 452 Fed. Appx. 577 (5th Cir. 2011) (unpublished).*

Defendant used a buddy’s work computer to do internet searches on “how to kill a baby, how to have a miscarriage, and how to find a missing person.” He was told before the search that the company could see it. The computer was password protected but the search history was available to IT. He was convicted of arranging the murder of a 14-year-old he impregnated. He had no reasonable expectation of privacy in the internet search history after the computer was turned over to the police after the murder. State v. Robinson, 293 Kan. 1002, 270 P.3d 1183 (2012). [The court did not have to go this far to show a lack of REP in the search history. It was somebody else’s computer, and he assumed the risk it would be found and turned over to the police. That’s all it had to say.]

An officer approached a van parked too long in a McDonald’s parking lot and he saw the occupants “moving frantically as if they were trying to hide something or retrieve something.” He yelled, “‘Show me your hands,’ and moved toward the front of the van; neither individual complied.” He pulled his gun, and ordered them from the vehicle and then searched for a weapon. This did not constitute an arrest, and was for officer safety. State v. Walker, 2012 Ohio 847, 2012 Ohio App. LEXIS 739 (2d Dist. March 2, 2012).*

Officers responded to an alleged burglary call, but they found that a tenant was removing stuff, and there was no burglary. Defendant asked to get a cigarette, and the officer said no because of “officer safety,” but she reached into her purse and pulled out a cigarette pack which the officer took away from her and laid it down. After awhile the officer looked in the cigarette pack and found a glass pipe, so he then searched her purse. The search of the cigarette package could not be justified for officer safety which, the officer said, was based on his experience with prostitutes and drug addicts having sharp objects in there, which this case wasn’t. Also, his casual after-the-fact search of the cigarette package belied the “officer safety” rationale. Finally, the state’s failure to raise an expectation of privacy argument in the trial court is a waiver on appeal [not that it would have worked anyway]. State v. Johnson, 293 Kan. 959, 270 P.3d 1135 (2012).

Officers approached an already parked car, and they did not need reasonable suspicion to do that. When defendant got out of the car and reached for his pocket, officers were justified in a patdown because of information from an informant. State v. Ray, 2012 Ohio 840, 2012 Ohio App. LEXIS 733 (2d Dist. March 2, 2012).*

Plaintiff was “confined” when she was strip and body cavity searched, so the state one year limitations applied, and this suit was not timely. Bing v. Haywood, 283 Va. 381, 2012 Va. LEXIS 40 (March 2, 2012).*

NYPD stopped a gold Crown Victoria with NJ license plates with two passengers in back and none in the front literally on a “hunch” of being an unlicensed livery vehicle. When defendant got out, his chest bumped against the officer’s arm, and the officer told him he wanted to check him for weapons. Defendant refused to stop and was tackled. He had a 9mm and he was a convicted felon. The stop was without reasonable suspicion. United States v. Bristol, 819 F. Supp. 2d 135 (E.D. N.Y. 2011).*

The defendants had no reasonable expectation of privacy in the foyer to the house where it is expected that people would enter to be able to knock on the door. Once in the foyer, the officer could smell burning marijuana. (He came there after a controlled buy and a vehicle search turned up methamphetamine.) United States v. Renteria-Lopez, 2011 U.S. Dist. LEXIS 99106 (D.Kan. September 2, 2011)*:

The fact that Bannister was lawfully in the foyer is significant. Before entering that area, Bannister likely lacked probable cause to search the residence, as he did not have any idea what Renteria’s relationship was to the property, and he had no basis, other than Renteria’s mere presence, to believe that the house, which had not had surveillance on it, contained contraband. However, once he was in the foyer, Bannister, an eighteen-year veteran of the force and a member of the WPD’s narcotic unit, was able to smell the burning of marijuana and hear a lot of commotion and the sound of an aerosol can being sprayed inside the residence. These observations, which Bannister could legally make, coupled with the fact that officers had observed Renteria meet with Garcia immediately before narcotics were discovered in Gutierrez’s vehicle, provided Bannister with probable cause to believe that evidence of illegal activity was present in the home. Additionally, these facts, in conjunction with the fact that no one responded to his knock, reasonably led Bannister to believe that exigent circumstances existed, i.e., that there were individuals harbored inside the home that were capable of injuring him and his officers and/or destroying incriminating evidence if action was not taken.

A police request to “take a look” in a car or to “check” it for contraband does not include looking in locked containers. Here, the officer did take a look, then took the keys and unlocked the glove compartment finding a gun. That exceeded the consent. The state’s burden in a consent case is “heavy,” and here not met. People v. McFarlane, 2012 NY Slip Op 01754, 939 N.Y.S.2d 460 (1st Dept. 2012):

Here, the officer’s request to “take a look” into the car or “check” it for contraband could reasonably have been understood to be a request to search the vehicle, possibly to include closed containers, but it did not reasonably imply a request for permission to open the locked glove compartment (cf. People v Gomez, 5 NY3d 416, 418-419, 838 N.E.2d 1271, 805 N.Y.S.2d 24 [2005] [general consent to search car did not authorize breaking into hidden compartment]). That the officer subjectively intended to search the glove compartment when he made the request is not determinative. Normally, a locked container can only be opened by breaking into it or using a key. A reasonable person in defendant’s situation would have assumed that if the officer wanted to open the glove compartment with defendant’s consent he would have asked for the key or asked defendant to open it. The officer did neither; after checking the seats and the center console, he simply took the keys from the ignition and opened the glove compartment.

Activation of blue lights when pulling up to a parked car was a stop under the Fourth Amendment, distinguishing other Ohio cases. State v. Lynch, 2011 Ohio 5502, 196 Ohio App. 3d 420, 963 N.E.2d 890 (8th Dist. 2011):

[*P28] We agree with the concurring opinion in Johnston and the reasoning set forth by the Second District in Little and Osborne. While there may be limited circumstances where the activation of police lights may not rise to the level of a stop (such as in Johnston, where the defendant pulled up behind the officer), we find that in most situations, as here, that is not the case. When a police officer pulls behind or beside a parked vehicle and activates his or her flashing lights, it is clearly a seizure within the meaning of the Fourth Amendment. The person inside the vehicle understands that he or she is not free to simply pull away. Detective Rasberry even admitted that if Lynch had pulled away, they would have arrested him for failure to comply with a police directive.

[*P29] Based upon the totality of the circumstances in this case, the detectives were not engaging in a consensual encounter when they activated their police lights, immediately exited their vehicles, and identified themselves as “police.” No reasonable person in Lynch’s position would have felt free to leave. …

Defendant’s speeding was cause enough for a stop, and the driver was found to be under the influence. State v. Garber, 2011 Ohio 5459, 2011 Ohio App. LEXIS 4470 (5th Dist. October 21, 2011).*

Welsh did not categorically hold that a warrantless entry for DUI was unreasonable, and the circuits have split on the issue, so the officer gets qualified immunity. Cilman v. Reeves, 452 Fed. Appx. 263 (4th Cir. 2011) (unpublished):

Contrary to the district court’s contention, Welsh does not establish a categorical rule that police may never make a warrantless entry into a home to effect an arrest for driving under the influence. The Welsh Court held only that, because Wisconsin treated a DUI as a civil non-jailable offense for which the maximum penalty was a fine of $200, no exigent circumstances justified the warrantless entry at issue there. Welsh, 466 U.S. at 753-54. The Court emphasized that “the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” Welsh, 466 U.S. at 754 n.14; see also id. at 754 (“[The penalty] is the best indication of the State’s interest in precipitating an arrest.”).

Although the Supreme Court later observed that “Welsh drew a distinction between jailable and nonjailable offenses, not between felony and misdemeanor offenses,” Illinois v. McArthur, 531 U.S. 326, 335-36 (2001), in Welsh itself, the Court left open the possibility that the Fourth Amendment could impose a wholesale ban on warrantless home arrests for minor offenses. Welsh, 466 U.S. at 749 n.11 (“Because we conclude that, in the circumstances presented by this case, there were no exigent circumstances sufficient to justify a warrantless home entry, we have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.”). We need not here determine the exact parameters of the rule set forth in Welsh because even if Officer Reeves did violate Cilman’s Fourth Amendment rights, those rights were not “clearly established.”

No controlling Supreme Court or Fourth Circuit precedent speaks to a person’s right to be free from a warrantless entry into his home in circumstances like those in the case at hand. Numerous out-of-circuit cases do address this issue, but courts have divided on this question. …

A wave to defendant to come over to talk was not a seizure. Although there were three officers there, nobody ordered defendant to do it, and it was by consent and not a seizure. United States v. Robertson, 2011 U.S. Dist. LEXIS 135526 (M.D. N.C. November 22, 2011),* relying on United States v. Laboy, 979 F.2d 795, 799 (10th Cir. 1992), State v. Hall, 339 Ore. 7, 115 P.3d 908 (2005), State v. Nelson, 134 Idaho 675, 8 P.3d 670 (2000).

The officer acted with reasonable suspicion. The stop was for overtinted windows. Once the car was stopped, the officer recognized the defendant as having been involved in numerous past weapons offenses. Then there was a furtive movement in the car. United States v. Johnson, 452 Fed. Appx. 219 (3d Cir. 2011) (unpublished).*

There was probable cause to search defendant’s property for evidence of a bank robbery. The information the police gathered was from a CI that defendant was bragging about having committed the robbery, a “contributor of information” with information, and the defendant’s landlord. The landlord’s information was exculpatory on one hand but connected defendant and another and that aided probable cause on the totality. In any event, the good faith exception would apply. United States v. Lopez, 2011 U.S. Dist. LEXIS 134616 (W.D. Pa. November 22, 2011).*

The arrest of plaintiff for public intoxication was not shown to be objectively reasonable, so qualified immunity was properly denied. Haley v. Elsmere Police Dep’t, 452 Fed. Appx. 623, 2011 FED App. 0849N (6th Cir. 2011) (unpublished)*:

Under Haley’s version of the facts as they were known to Officer Markesbery, it was objectively unreasonable for an officer to believe he had probable cause to arrest Haley for alcohol intoxication. Though Haley stated that he had consumed two beers, and the officers saw him crouching down (perhaps appearing to be trying to vomit—though no one testified that he ever did vomit), nothing else about his conduct would have made a reasonable officer conclude he was “manifestly” intoxicated. Nor, under Haley’s version of the facts, was there any indication that he was unreasonably annoying anyone. A reasonable officer might have concluded that, had Haley been manifestly under the influence, he could have posed a danger to himself or others because he was in the parking lot, perhaps intending to get in his car. But since a reasonable officer could not have concluded he was manifestly intoxicated in the first place, that is irrelevant. And at any rate, Haley’s offer to submit to a breathalyzer undercuts any potential danger he might have posed by driving under the influence. Accepting Haley’s version of the facts, a reasonable officer could not have found the elements of the statutory offense of alcohol intoxication. The district court did not commit a purely legal error in denying summary judgment to Markesbery on the basis of qualified immunity.

State criminal rule 46 which has a catch-all “imposing any other conditions reasonably necessary to assure appearance as required, including a condition requiring the return of the person to custody after a specified time of day” does not, at least on this record, permit warrantless searches of defendant’s home or person [except maybe for urine testing which was not argued] as a condition of pretrial release because of the presumption of innocence, at least without some findings that it is required to assure appearance in court as directed. Here it was imposed without findings and was an abuse of discretion. State v. Hayes, 2012 ND 9, 809 N.W.2d 309 (2012). [Note: The court didn’t quite hold that warrantless searches of the home are an unreasonable condition of pretrial release because it apparently felt it couldn’t go that far. But, how can a court ever logically hold after a hearing that a search of the defendant’s home is necessary to show his or her appearance in court? Nevertheless, I can’t see how it can be anything but a violation of the Fourth Amendment, absent the super-rare case where it could conceivably be shown by the government, but, in such a case, wouldn’t the defendant already be detained? The state’s attempting to base the searches on the law of probationers and parolees is grasping at straws because they are based on a conviction, and pretrial detainees are subject to a probable cause finding with the arrest warrant and indictment or information. Then there are those on both pretrial release and probation who would still be subject to valid probation searches.]

A Virginia mine sued the state mining inspectors for pursuing anonymous complaints for inspections of the mine that led to numerous safety citations. The Virginia mining inspection statute satisfied the Burger standard and the Fourth Amendment. Thus, qualified immunity isn’t even an issue. Lesueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261 (4th Cir. 2012).

The record does not show that defendant was seized, and defendant did not show that he wasn’t free to leave, so he did not show a Fourth Amendment violation. State v. Aguilar, 2011 ND 236, 809 N.W.2d 285 (2011)*:

[*P14] The State argues Sanchez was not illegally seized because he was not being detained until he was arrested for possessing the methamphetamine and the pipe. Sanchez relied on Aguilar’s arguments at the suppression hearing and did not present any evidence that Sanchez was seized while Officer Sommer was waiting for additional officers to arrive.

[*P15] A Fourth Amendment seizure occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Fields, 2003 ND 81, 662 N.W.2d 242, ¶ 11 (quoting State v. Koskela, 329 N.W.2d 587, 589 (N.D. 1983)). At the district court suppression hearing, Sanchez presented no evidence that he was not free to leave before he was arrested, and nothing in the record suggests otherwise. The sniff did not violate Sanchez’s right to be free from unreasonable seizures because Sanchez was not seized until after the sniff occurred.

[Note: Since the burden in a warrantless search is on the government, why is this court holding that defendant had the burden to show that he was “seized.” The burden is on the state to show that he was not seized. Here, at least, the court says that nothing in the record shows that he was seized. Unfortunate language.]

A “no trespassing” sign on a farmstead is not enough to create a reasonable expectation of privacy from an entrance to the property as any member of the public would. State v. Mittleider, 2011 ND 242, 809 N.W.2d 303 (2011):

[*P17] We have recognized that a “no trespassing” sign posted on a structure, particularly a residence, indicates a reasonable expectation of privacy. See Kochel, 2008 ND 28, ¶ 9, 744 N.W.2d 771. In Kochel, the defendant had a “no hunting or trespassing” sign posted on the steps outside his mobile home addition. Id. We noted “[a]ny uncertainty that the addition is an integral part of the home where privacy is reasonably expected is removed by the presence of the sign.” Id. (emphasis added). The “no trespassing” sign in Kochel is distinguishable from the “no trespassing” signs at issue here. In Kochel, the defendant posted a “no trespassing” sign on the steps immediately outside of a fully enclosed addition to his mobile home. Id. Here, the Mittleiders posted “no trespassing” signs around their farmstead, and it is unclear from the record how closely the signs were posted to the entrance. The district court noted any member of the public would have entered the farmstead in the same manner the officers did, and there was no evidence “that there was a ‘no trespass’ sign mounted on a post or immediately to the edge of the road[.]” We decline to adopt the Mittleiders’ broad argument that, on rural property in North Dakota, an individual’s expectation of privacy “envelopes much of the land.” We hold the “no trespassing” signs posted around the Mittleiders’ farmstead did not create a reasonable expectation of privacy in the entrance of the farmstead. Because a reasonable expectation of privacy was not invaded, art. I,§ 8 of the North Dakota Constitution is not implicated and we need not determine if it provides broader protection than its federal counterpart. Rydberg, 519 N.W.2d at 310.