There is no expectation of privacy in a patient’s pharmacy records in the Kentucky All-Schedule Prescription Electronic Reporting System (KASPER) under Williams v. Commonwealth, 213 S.W.3d 671 (Ky. 2006), which this court must follow. Carter v. Commonwealth, 358 S.W.3d 4 (Ky. App. 2011).*

Officers came to defendant’s house with an arrest warrant, and they arrested him on the front porch. They could smell marijuana and heard footsteps inside the house. This justified a protective sweep. United States v. Mackey, 431 Fed. Appx. 594 (9th Cir. 2011).*

Defendant’s § 2255 that defense counsel did not challenge the lack of a search warrant was not IAC because defendant clearly consented to the search, and then pled. Martindale v. United States, 2011 U.S. Dist. LEXIS 48965 (N.D. Tex. May 6, 2011).*

Being in a high crime area and standing in front of a liquor store and looking left and right a few times before going in was not reasonable suspicion. When defendant saw a police car, he turned away. This didn’t rise to the level of “casing the place” like Terry. People v. Revoal, 2012 CO 8, 269 P.3d 1238 (2012)*:

P17 Although we must consider the location and the hour together with Revoal’s actions, the actions of looking left and right and wandering across the parking lot in a seemingly aimless fashion (as opposed to engaging in more deliberate conduct) are too ambiguous to amount to reasonable suspicion that a crime had occurred, was in progress or was about to occur. Revoal’s behavior falls below the level of suspicion aroused by the observed behavior in Terry, where the defendants paced “alternately along an identical route, pausing to stare in the same store window roughly 24 times,” conferring with each other in between passes and then conferring with a third individual. Terry, 392 U.S. at 22-23. In contrast, Revoal was not looking in any shop windows, nor was he standing or walking where he could access a store to rob it. He did not, at any time, confer with any other person in the vicinity. “There is nothing unusual in … standing … on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances strolling up and down the street, singly or in pairs.” Id. This is particularly so in an area where businesses are open and other individuals are present.

P18 Finally, although flight from police may support an informant’s claim that an individual is engaged in drug trafficking, Canton, 951 P.3d at 910-11, an attempt to avoid coming into contact with a police officer does not, without more, justify an investigative detention of the individual. Rahming, 795 P.2d at 1342. Here, Revoal’s change in direction did not convert the relatively innocuous set of circumstances the police observed into justification for an investigatory stop.

Two controlled buys 33 and 25 days before the issuance of the search warrant showed that it was not stale. There was an ongoing drug operation. United States v. Johnson, 2011 U.S. Dist. LEXIS 102396 (N.D. Iowa September 12, 2011).*

The officer had reasonable suspicion to prolong a stop of a rental car where the paperwork did not match the vehicle, and it also appeared bogus, having been printed off the internet. United States v. Carrasco-Sanchez, 816 F. Supp. 2d 335 (S.D. Miss. 2011).*

In a tax dispute where the government served interrogatories, the taxpayer’s Fourth Amendment defense to answering interrogatories was frivolous. United States v. Panarelli, 2011 U.S. Dist. LEXIS 102503, 108 A.F.T.R.2d (RIA) 5691 (N.D. Ga. June 14, 2011).*

Plaintiff raised a genuine issue of fact on qualified immunity on whether a city code enforcement officer violated curtilage in inspection of plaintiff’s property. Jacob v. Killian, 437 Fed. Appx. 460 (6th Cir. 2011).*

A grand jury subpoena was used years ago for DNA which was arguably unreasonable, but the defendant provided it anyway. In the confusing legal landscape of this case, however, the court cut to the chase: the exclusionary rule, and found that it would not be excluded because the police did nothing wrong. United States v. Thomas, 815 F. Supp. 2d 384 (D. Me. 2011)*:

Amid all this legal uncertainty, I conclude that it is best to focus on the ultimate question on the motion—whether the exclusionary rule even applies to circumstances like these. The Supreme Court adopted the exclusionary rule “to discourage the police from violating the Fourth Amendment by prohibiting them from leveraging illegal encounters into criminal convictions.” United States v. Clariot, 2011 U.S. App. LEXIS 17719, 2011 WL 3715235, *3 (6th Cir. August 25, 2011) (citing Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960)). If there was a Fourth Amendment violation in 2005, I assume that the exclusionary rule would have applied to a prosecution for the 2004 mailings. But the Supreme Court has also said that suppression is not automatic for every Fourth Amendment violation. Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). “[T]he question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Id. at 137. I must examine the flagrancy of police misconduct, “appreciable deterrence” is the standard, id. at 141, and the benefits of deterrence must outweigh costs. “[P]olice conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144.

Neighbors complained that defendant had unusual traffic to his house after 9 pm every night, and it was like it was before the last time the SWAT team raided his house finding drugs. One neighbor reported that defendant’s trash was removed by a particular pickup truck and not the regular pickup for the neighborhood [remember that Indiana recognizes a REP in trash]. Surveilling defendant, officers saw him come out of his house and open his hood before driving off. When they stopped him, he gave consent to search the car after having been advised of his right to refuse. Under the hood they found drugs. That provided probable cause and nexus to search his house by search warrant. Daugherty v. State, 957 N.E.2d 676 (Ind. App. 2011).

When the officer tried to pull over the defendant for suspicion of DUI, she didn’t stop until a driveway, even though there was a shoulder. When she stopped, another car stopped. She had alcohol on her breath and did not respond to commands as directed, and her detention was reasonable for officer safety because the officer felt at risk because of two people out of their cars at the same time. State v. Drury, 358 S.W.3d 158 (Mo. App. 2011).*

Having previously found that the defendant’s free will and the slight misconduct of the police who turned him over to the FBI attenuated his statement from the illegal arrest. He essentially knew the jig was up, and he was the target of a bigger investigation since the locals gave him to the FBI. His cell phone was seized by the local police on his arrest and it was given to the FBI with him. He freely consented to a search of the cell phone. United States v. Blount, 2011 U.S. Dist. LEXIS 136042 (E.D. Mich. November 28, 2011).*

No exigency justified ordering a doctor to take defendant’s blood in a DWI case, and the trial court’s order suppressing the evidence was affirmed. State v. McNeely, 358 S.W.3d 65 (Mo. 2012):

The patrolman here, however, was not faced with the “special facts” of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge.

Seizure of a gun from the defendant was unreasonable under the Fourth Amendment. The officers’ testimony was contradicted by the video. For example, they said the discussion was quiet and restrained, but the video showed them shouting obscenities at him. They also turned off the video because they said they wanted to protect his identity if they “turned him.” A first warrantless search was found valid, but the second was not. United States v. Rosas, 2011 U.S. Dist. LEXIS 151622 (D. Minn. November 23, 2011).*

A protective sweep was justified by voices the officer heard from inside when the defendant was arrested at the door after finally opening it. State v. Young, 2011 Ohio 4875, 2011 Ohio App. LEXIS 3967 (2d Dist. September 23, 2011).*

Officers went to a motel and ran the LPN’s of vehicles and found an active misdemeanor warrant on defendant. They got his room number and went to the room and knocked. When the door was opened, they arrested him. They could see a woman sitting on the bed, and a protective sweep of the bathroom was valid. There they found the start of a meth lab, and the protective sweep was valid. State v. Milton, 2011 Ohio 4773, 2011 Ohio App. LEXIS 3960 (9th Dist. September 21, 2011).*

Nothing the officer posited showed that there was reasonable suspicion. Individually and collectively, there wasn’t enough, including nervousness, a prior arrest for drugs, high crime area, and what the officer thought was unusual travel plans to pick up her child from day care when the child was with her. State v. Ferrante, 2011 Ohio 4870, 196 Ohio App. 3d 113, 962 N.E.2d 383 (2d Dist. 2011).*

Defendant was arrested for a public intoxication, but she was so drunk she was a danger to herself. Therefore, the officer could make an arrest without just issuing a citation, and the search incident to arrest was valid. State v. Bowman, 2011 Ohio 4734, 2011 Ohio App. LEXIS 3944 (2d Dist. September 2, 2011).*

The stop of this car was based on the fact that the officer suspected that the registered owner’s license was suspended, but he had no reason to believe that the registered owner was driving, so the stop was unreasonable. State v. Leveck, 2011 Ohio 1135, 196 Ohio App. 3d 26, 962 N.E.2d 316 (2d Dist. 2011)*:

[*P16] On these facts, Gustwiller’s suspicion was not constitutionally sufficient —not because it was irrational, but because the record does not support a sufficient basis in the facts and the reasonable inferences drawn from those facts. Because the stop was not based on a reasonable and articulable suspicion of criminal activity, it was unlawful. Therefore any evidence obtained as a result of the stop must be excluded.

The record supports the conclusion that defendant’s blood was drawn within minutes of the close of the three hour window, so the motion to suppress is denied. State v. Hollowell, 2011 Ohio 1130, 2011 Ohio App. LEXIS 969 (2d Dist. March 11, 2011).*

Officers entered defendant’s home and storage building while waiting for search warrants, but the search warrants had nothing to do with those entries, which could be described as protecting the status quo under Segura. State v. Parker, 2011 Ohio 1059, 2011 Ohio App. LEXIS 973 (8th Dist. March 10, 2011).*

Defendant was suspected of robbing a store. His mother appeared at the store and was questioned by the police, and she consented to a search of the house that produced clothing hidden in a crawl space similar to what was worn in the robbery. Her consent was valid. Jupiter v. State, 308 Ga. App. 386, 707 S.E.2d 592 (2011).*

Smell of marijuana in a car also implicates the dangerous use of the car. Here, the officer observed three traffic violations in short order, and, on stopping the car, he smelled marijuana coming from the car. Commonwealth v. Cruz, 459 Mass. 459 (2011) [posted here] distinguished. Commonwealth v. Daniel, 81 Mass. App. Ct. 306, 962 N.E.2d 213 (2012):

Our analysis begins with the reasoning and holding of Cruz [decriminalization of marijuana and search], but does not end there because the criminality afoot in this case does not depend solely on the amount of marijuana present in the vehicle. Rather, it derives from the presence of a noticeable odor of freshly burnt marijuana inside a vehicle that was being operated in a dangerous manner on a public way by an operator who had marijuana on her person, together with a passenger who made movements in the vicinity of the glove box upon the approach of the officer. Put differently, what rendered the activities of Tayetto and Daniel criminal was not the amount of marijuana possessed, but their consumption of marijuana in a vehicle that was operating on the ways of the Commonwealth in a manner that put the public at considerable risk. See G. L. c. 90, §§ 24(1)(a)(1) (operating under the influence of marijuana), & 24(2)(a) (operating negligently so as to endanger the lives and safety of the public).

Here there was far more to establish criminality than the faint odor of marijuana emanating from an illegally parked vehicle. First was the manner of Tayetto’s operation: she operated the vehicle at night without a driver’s—side headlight; made a left intersection turn in front of DeLeo’s cruiser without signaling; and in response to the cruiser’s blue lights, applied the brakes immediately, stopping in the middle of the travel lane. Second was the likelihood that Daniel’s movements signified his hiding of contraband. As DeLeo approached, Daniel was leaning over, and rocking his shoulders back and forth with his head down. Third was the noticeable odor of freshly burnt marijuana, which suggested an immediate explanation for Tayetto’s erratic operation, followed by an explanation for the odor that DeLeo was free to reject as implausible given his observations, and Tayetto’s quick surrender of two baggies of marijuana from her person. Viewed objectively and reasonably, and without parsing each individual component, these facts provided DeLeo with probable cause to believe that Tayetto and Daniel were engaged in the consumption of marijuana in a moving vehicle, that Tayetto’s capacity to operate was impaired thereby, that Tayetto’s negligent operation endangered the lives and safety of the public, and that additional marijuana and evidence of recent marijuana usage could be found inside the passenger compartment, including the glove box. See Commonwealth v. Garden, 451 Mass. at 50 (“any contraband hidden on the passengers’ person easily could have been transferred to a location in the passenger compartment”). See also Commonwealth v. Correia, 66 Mass. App. Ct. 174, 177 (2006) (odor of burnt marijuana emanating from vehicle gave probable cause to search vehicle’s occupants as well as vehicle for evidence of marijuana use and possession whether or not police had probable cause to arrest any particular occupant).

While it might have been preferable for DeLeo first to have made detailed observations of Tayetto’s eyes or conducted field tests for additional evidence that she was operating under the influence of marijuana, his failure to do so is not fatal to the determination of probable cause. Having observed Tayetto commit three moving violations in the span of only a short distance, readily detected the odor of freshly burnt marijuana emanating from the passenger compartment, and recovered two baggies of marijuana from her person, DeLeo did not require more to establish probable cause. …

Defendant was searched with reasonable suspicion, and a pill bottle was found. Search of the pill bottle was not justified as a search incident to arrest. Also, the altered label on the pill bottle did not lead to probable cause to search it. Corwin v. State, 962 N.E.2d 118 (Ind. App. 2011).*

Officer safety justified a patdown of a juvenile put into a police car after finding he was a truant from school. Where there was no reasonable suspicion he’d committed a crime, officer safety justified it. D.O. v. State, 77 So. 3d 787 (Fla. 3d DCA 2011).*

Defendant did not receive IAC from defense counsel not objecting to his strip search at the stationhouse, which was valid anyway on probable cause. Also, whether defendant had ineffective assistance of counsel from defense counsel not objecting to defendant’s statement that he had marijuana on him was harmless in light of what was found hidden in his buttocks. Bryant v. State, 959 N.E.2d 315 (Ind. App. 2011).*

Defendant was stopped for no seatbelt and a cracked windshield, and the officer ran his DL finding two child support warrants. The impoundment was valid because the vehicle would have to have been left on the street, constituting a road hazard. Also, the claim it wasn’t stated properly in the police reports was raised on appeal but not raised before the District Judge in review of the USMJ’s R&R, so it is waived. United States v. Lilly, 438 Fed. Appx. 439 (6th Cir. 2011).*

Defendant’s clothing was properly seized incident to his arrest. He was found unconscious in the same apartment where there was a body in the bathtub, and he was covered with blood. A presumptively reliable citizen informant said that defendant said that he’d killed the victim. That was probable cause. State v. Minton, 2011 Tenn. Crim. App. LEXIS 688 (September 1, 2011).*

Plaintiffs were anti-abortion advocates who were arrested for trespass, but the charges were dismissed. The officers were entitled to qualified immunity from suit; they thought the plaintiffs were trespassing at the time of arrest, but it proved to be legally wrong. Skovgard v. Pedro, 448 Fed. Appx. 538 (6th Cir. 2011) (unpublished).*

The officer entered the plaintiffs’ house with exigent circumstances; after seeing methamphetamine paraphernalia, he said he was detaining everybody while a search warrant was obtained. A minor entered a separate residence in the premises, and he went there, too. There was a factual dispute denying qualified immunity as to the later entry. Modrell v. Hayden, 2011 U.S. App. LEXIS 18355 (6th Cir. August 30, 2011) (unpublished).*

If defendant, an intermittent overnight guest at the house of another had any standing, something not conceded, he waived it when he turned himself in ten days before the search occurred by leaving stuff there. Also the owner consented. United States v. Burke, 2011 U.S. Dist. LEXIS 136877 (M.D. Fla. November 29, 2011):

The evidence establishes that Defendant Burke had a subjective expectation of privacy; the question is whether Defendant Burke’s expectation of privacy is one which society recognizes as legitimate. If Defendant Burke occupied the second bedroom in HLS’ apartment intermittently prior to 2/5/2011, after Defendant Burke turned himself in on 2/5/2011, Defendant Burke could not have expected to return to the apartment to continue Defendant’s intermittent residence. If Defendant Burke had a long-standing familial type of relationship with HLS in the past, on 2/15/2011, Defendant Burke was not a guest, occupying the premises with the permission of HLS, and there was no realistic expectation that Defendant Burke would return to occupy the premises, since Defendant Burke remained in custody.

Trash at the edge of a gravel road for pick up was not on the curtilage. United States v. Lemons, 2011 U.S. Dist. LEXIS 136691 (W.D. Ky. November 28, 2011).*

Almost considering the merits of defendant’s Fourth Amendment claim in habeas deferential AEPDA review on the independent source doctrine: “Upon review of the district court order and the state court record, we agree that Cheeks had a full and fair opportunity to litigate his Fourth Amendment claim in state court.” Cheeks v. Smelser, 448 Fed. Appx. 848 (10th Cir. 2011).*

The trial court properly determined that the inspection of the defendants’ property, which was not part of a periodic or area inspection program, was subject to the requirements of the Fourth Amendment. That court, however, did not apply the correct standard in making its finding of probable cause so the judgment granting the injunction was reversed. The trial court erred in concluding that the appropriate standard for determining probable cause is a showing of a valid public interest. The relaxed showing of Camara is limited to routine and area wide inspections and did not apply to the targeted search of the defendant’s property here, which demanded a more particularized showing of probable cause. Before a trial court may issue an order permitting a zoning officer to enter and search a particular property, there must be a preliminary showing of facts within the knowledge of the zoning officer and of which that officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property. Town of Bozrah v. Chmurynski, 303 Conn. 676, 36 A.3d 210 (2012).

The operator of a shopping mall was charged along with others with unlawful discharge of industrial waste after a pressure wash cleaning of a parking garage. An environmental crimes investigator took samples after a whistleblower called them. The trial court granted the suppression motion, but the appellate court held that standing could be raised by the state for the first time on appeal, and the mall operator had no standing in the public garage. State v. Simon Property Group, 357 S.W.3d 687 (Tex. App.—Houston (14th Dist.) 2011);* State v. Bell, 2011 Tex. App. LEXIS 6458 (Tex. App.—Houston (14th Dist.) August 16, 2011);* State v. Sepeda, 349 S.W.3d 713 (Tex. App.—Houston (14th Dist.) 2011).*

Turning on emergency lights to effect a stop of a man on the street was a seizure, here without reasonable suspicion. State v. Gantt, 163 Wn. App. 133, 257 P.3d 682 (2011).*

Defendant was suspected of sexual molestation after his girlfriend’s friend’s six year old daughter said he molested her when he was babysitting. She related that a nine year old boy was also involved. Defendant was a subscriber to Limewire and had three computers in the house. The facts of child molestation coupled with being a Limewire subscriber was probable cause, and the computers were a logical repository for it. In any event, the good faith exception applies. United States v. Clark, 668 F.3d 934 (7th Cir. 2012):

In his affidavit, Vucich did not provide an example of Michele Clark downloading child pornography; however, he did not need to do so in order to establish Clark’s sexual interest in children and connect him to the “collector” profile. Vucich’s state-law affidavit extensively described Clark’s sexual assault on his four-year-old niece. It further detailed his sexual advances on a nine-year-old boy and another six-year-old girl. In short, the affidavit documents Michele Clark’s particular, sexual attraction to children and his willingness to act on his proclivities. The affidavit thus places him at the heart of the boilerplate language to which he objects: as an individual associated with sex offenses involving minors, he likely “collect[ed] and/or view[ed] images on the computer.” See supra Part I.A.2.

Moreover, Vucich’s affidavit provided evidence that Clark used a computer—a probable repository for child pornography—as part of his advances. These details, too, provided probable cause to connect Clark to the “collector” profile and to conduct an appurtenant search. Specifically, Clark watched pornography on his computer while concurrently asking a six-year-old girl to take her clothes off. Facially, the affidavit provides probable cause to search.

. . .

In light of our conclusion that probable cause existed to search for evidence that Michele Clark collected child pornography, all that was required to authorize a search of his personal residence were facts that “allow[ed] for a reasonable inference that there [wa]s a fair probability that evidence w[ould] be found in a particular place.” See Aljabari, 626 F.3d at 944-45. We have held that in child pornography cases, an issuing judge may reasonably assume that a recipient or collector of child pornography would store that content in his home. See id. (citing Watzman, 486 F.3d at 1008). That analysis controls in this case as well: once probable cause existed to characterize Clark as a collector of child pornography, probable cause existed to extend the search to his home and personal computers.

I’ve been waiting for this to happen, and here it is. No knowledge of child pornography required if there is a logical connection. Can a reviewing court say that it is speculative that an accused child molester would have child pornography too? Based on my experience, no. Most of the people I’ve represented in child porn cases have denied sexual contact with minors, and one even passed a polygraph from the FBI after passing a private polygraph. Based on his hermit lifestyle, I believe it. Others have a fantasy or curiosity they don’t act on. The question is not “more probable than not,” so the reviewing court has to sustain the warrant if it is a reasonable conclusion. In this case, it is.

Where there was a shut security door to the common entrance to a duplex, the defendant had and manifested a reasonable expectation of privacy from entry. The reliance on the apparent authority of an identified woman to consent is a not consent. State v. Guard, 2012 WI App 8, 338 Wis. 2d 385, 808 N.W.2d 718 (2011):

P22 Under all the circumstances present here, considering particularly the relevant factors identified in Rewolinski, we conclude that Guard had a reasonable expectation of privacy not merely in his unit, but also in the only entrance to his unit, which was the back hallway. Consequently, in the absence of consent to the entry or exigent circumstances, the warrantless entry by the police into that back hallway was a violation of Guard’s rights under the Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution.

Defendant’s lane change was not a valid reason for a traffic stop because no other cars could be affected by it. Defendant was on parole but the officers didn’t know it, so that couldn’t be relied on for the stop and removal from the car. United States v. Hiley, 2011 U.S. Dist. LEXIS 147548 (C.D. Cal. December 22, 2011).*

The government lacked objective evidence of a need to enter defendant’s apartment to allegedly aid potentially injured persons. There was only one injured person to anybody’s knowledge, and that person was accounted for. United States v. Delgado, 814 F. Supp. 2d 874 (E.D. Wis. 2011), rejecting in part 2011 U.S. Dist. LEXIS 96521 (E.D. Wis. June 23, 2011)*:

However, in this case, the record is devoid of any evidence that anyone within Mr. Delgado’s apartment was hurt or otherwise in need of police assistance at the time the police entered the defendant’s apartment. By the time the police opted to enter the apartment in question, the only victim of a shooting that the police had any evidence existed was no longer in Mr. Delgado’s apartment, but rather had exited that apartment. The government even concedes that the police “did not know whether one or more persons … was in the apartment in need of immediate medical help.” (Docket #13 at 5). The government has no right to enter a private residence on a mere whim that a person in need of assistance may be inside; instead, the government needs an objectively reasonable basis for entering the apartment. Fisher, 130 S. Ct. at 549. In this case, the evidence here does not show that the government had an objectively reasonable basis for entering the apartment for the purpose of rendering emergency aid.

Defendant was leaning against a car talking to officers, and one noticed packages of crack cocaine on the floorboard. That was reasonable suspicion for defendant’s patdown. United States v. Blackley, 439 Fed. Appx. 803 (11th Cir. 2011).*

Defendant was stopped by VAMC police. “Scott’s behavior, which included returning to the vehicle that was illegally parked, tossing something inside, locking the door after observing Officer Freeman approach, failing to comply with Officer Freeman’s first directive to stop, turning away from Officer Freeman, fidgeting throughout the encounter, and moving his hands around, provided ample justification for the protective frisk.” United States v. Scott, 2011 U.S. Dist. LEXIS 96756 (E.D. Va. August 29, 2011).*

Defendant’s failure to show that anything was seized from his personal office separates this business search from Mancusi v. DeForte and SDI Future Health, so his motion to reconsider is denied. United States v. Salyer, 814 F. Supp. 2d 984 (E.D. Cal. 2011).*

After defendant asked for three appointed attorneys to be excused from his case because of inability to get along with the lawyers, he was warned that he wasn’t getting a fourth lawyer, and he’d have to go pro se or retain counsel if it happened again. Just before the suppression hearing, the third lawyer made a motion to be relieved because he had irreconcilable differences with defendant. The court granted the motion but ordered the lawyer to remain as standby counsel for the suppression motion. Defendant was not unconstitutionally denied his right to counsel at the suppression hearing. Long v. United States, 2011 U.S. Dist. LEXIS 98348 (E.D. Tenn. August 31, 2011).

The Pennsylvania State Trooper was described here as a narcotics intelligence officer who stopped a speeding rented SUV because he felt there was something up. While the factors the officer relied on for his suspicions were normal activity, other factors learned during the valid stop supported reasonable suspicion: Five car rentals in the previous four months, four border crossings from Mexico that year (per EPIC), he wasn’t an authorized driver on the car. United States v. Anderson, 2011 U.S. Dist. LEXIS 98233 (E.D. Pa. August 30, 2011).*

When defendant was stopped in a large conversion van for a traffic offense, the driver was not communicative about her travel plans, which was her right. However, the vehicle was moving like there was someone in it, and that gave the officer concern for his safety. When he opened the van, he found two blue vials which he opened, and this exceeded the scope of permitted instruction. State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 808 N.W.2d 411 (2011):

P10 … The cylinders here, however, were opaque, not clear, so Officer Bartol could not see what was inside, and thus, as noted, she did not have “plain view” of the pills. Further, her other experience—that pills can be transported “in a container in which people believe that police will not think is a prescription” applies to any opaque tube, box, carton, jug, can, urn, and the like. That is too slippery a criterion to permit the warrantless search of a container that could not, by its size or shape, hold a weapon. Cf. Denk, 2008 WI 130, ¶¶59-60, 315 Wis. 2d at 27-28, 758 N.W.2d at 786-787 (Officers could search inside of hard, opaque eyeglass case dropped by passenger because: (1) it could have held “a small weapon, such as a knife or a razor blade,” and (2) it could also have held evidence of the crime for which the officers arrested the driver.). Further, Sutton was, as we have seen, entirely within his rights not to tell Officer Bartol where he had been, so his refusal to answer that question is not part of the probable-cause calculus.

P11 Officer Bartol did not have “probable cause to believe there [was] a connection between the [opaque cylinders] and criminal activity.” See Buchanan, 2011 WI 49, ¶23, 334 Wis. 2d at 399, 799 N.W.2d at 785 (quotation marks and quoted sources omitted). She thus had to get a search warrant, if she could, before she opened them. Accordingly, we reverse.

Refusing a city inspection by insisting on one’s Fourth Amendment rights cannot itself be an offense. State v. Heine, 424 N.J. Super. 48, 35 A.3d 691 (2012):

By exercising her constitutional right to refuse to participate in an unwarranted inspection, Heine could not be deemed to have created the circumstances that would criminalize her conduct and cause the forfeiture of the very rights she sought to exercise. See State v. Berlow, 284 N.J. Super. 356, 358, 362-64, 665 A.2d 404 (Law Div. 1995) (refusing to find a defendant guilty of obstructing the administration of law, N.J.S.A. 2C:29-1(a), for closing and locking the door to his room in a boarding house when police, wanting “to see if there was a woman shot and bleeding and injured,” requested entry without a warrant). We adhere to the sentiments that an individual “is not required to surrender [her] Fourth Amendment protection on the say so of the [inspector]. The Amendment gives [her] a constitutional right to refuse to consent. … [Her] asserting it cannot be a crime.” United States v. Prescott, 581 F. 2d 1343, 1350 (9th Cir. 1978).

We conclude that Garfield’s criminalization of Heine’s refusal to allow the inspections is not in accordance with long-established law. Since the seminal cases of Camara and See, our Fourth Amendment jurisprudence has — with the exceptions noted above — required search warrants to conduct unconsented-to inspections. Given the relaxed standards for obtaining such a search warrant, Camara, supra, 387 U.S. at 534-40, 87 S. Ct. at 1733-39, 18 L. Ed. 2d at 938-44, we are confident that the health, safety, and welfare of the citizens of Garfield will not be jeopardized. Accordingly, we find § 181-3 unconstitutional as applied. We reverse and vacate the convictions and sanctions for its violation in both appeals

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