Defendant’s Franks claim is denied [and utterly frivolous]. Just because he disclaimed the premises when he was booked in on his “Prisoner Pedigree Card” and the officer failed to mention it [if he knew it], that is essentially meaningless here because USPIS developed all kinds of information linking him to the place searched in the warrant that was more than probable cause. And, even purging the questioned information leaves a wealth of PC for the search warrant. United States v. Swain, 2011 U.S. Dist. LEXIS 92639 (S.D. N.Y. August 16, 2011).*

A Rule 41(g) motion for return of property after completion of the criminal case is treated as a civil case, and newly discovered evidence must be presented in one year. This was not timely. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 92313 (E.D. Pa. August 18, 2011).*

There is no right to be free from unreasonable search while a prison inmate. Crozier v. Endel, 447 Fed. Appx. 861 (9th Cir. 2011).*

During a traffic stop, the officer saw what could only be a marijuana blunt on the center console, and that justified reaching in for it. It was not just his subjective belief it was a blunt; it was objectively reasonable. United States v. Massenberg, 2011 U.S. Dist. LEXIS 92744 (E.D. N.C. August 17, 2011), R&R 2011 U.S. Dist. LEXIS 92667 (E.D. N.C. July 19, 2011).*

Where the government’s unlawful stop led to the finding of a gun, defendant’s act in assaulting the officer trying to flee after the gun was found did not purge the taint and was still a “fruit of the poisonous tree.” This is not a situation where a new crime purges the taint of an unlawful arrest because the new crime occurred after the unlawful search. United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997), is distinguished. United States v. Gaines, 668 F.3d 170 (4th Cir. 2012):

We agree with Gaines that a proper reading of Sprinkle does not support the Government’s position. In that case, the contested evidence (the firearm) was only discovered after the defendant engaged in illegal activity subsequent to an earlier unlawful stop. See id. at 619 (“[w]hen Sprinkle drew and fired his gun at the officer, he committed a new crime that was distinct from any crime he might have been suspected of at the time of the initial stop.”). The illegal act in Sprinkle broke the causal chain between the unlawful stop and the discovery of the firearm. By contrast, in this case, the causal chain remains intact. Gaines’ subsequent criminal conduct cannot constitute an intervening event because it took place after the discovery of the firearm.

The Government, however, places much emphasis on our statement in Sprinkle that “[b]ecause the arrest for the new, distinct crime is lawful, evidence seized in a search incident to that lawful arrest is admissible.” Id. at 619. Because the firearm was not physically seized until after Gaines struck the officers, the Government argues, it may be admitted as properly seized pursuant to a lawful arrest.

This argument, though, fails to account for the fact that the gun was discovered prior to Gaines’ acts of assault. Although the Government would have us hold that the seizure of the firearm, rather than its discovery by police, is the critical act for assessing whether an intervening event has taken place, that position lacks support in law. In fact, other than the aforementioned language in Sprinkle, the Government has not cited any case for the proposition that the seizure of the evidence is legally more significant than the discovery of the evidence when the two acts do not coincide.

He could be prosecuted for the new crime, but it still doesn’t break the causal chain from the government’s illegal search.

Defendant rode a bicycle into the path of a car forcing the car to stop, and the officer stopped him to see if he was impaired. When defendant was stopped, he threw the bicycle at the officer and ran away, dropping an amber pill bottle in flight. The stop was valid. State v. Abraham, 395 S.C. 645, 720 S.E.2d 491 (2011).*

Defendant’s consent to search her house was found voluntary. She was Mirandized and the consent form was explained to her. United States v. Thompson, 2011 U.S. Dist. LEXIS 103471 (S.D. Fla. September 13, 2011), R&R 2011 U.S. Dist. LEXIS 103484 (S.D. Fla. February 26, 2011).*

Defendant’s mother had common authority over the room searched, and both of them consented. United States v. Marsden, 2011 U.S. Dist. LEXIS 103249 (D. Vt. September 12, 2011).*

Defendant was indicted for mail fraud for sending threatening letters. Investigators found threads under a stamp on the envelope. That and other things showed a nexus for a search warrant for defendant’s house. The fact that there had been a prior consent search did not mean that the police could not seek to come back if something had been overlooked. United States v. Carlson, 2012 U.S. Dist. LEXIS 32734 (D. Minn. March 12, 2012), R&R 2012 U.S. Dist. LEXIS 32727 (D. Minn. February 7, 2012):

The prior consent search — during which no evidence was seized — is irrelevant. First, there is nothing to suggest the scope of the prior search was exactly the same as the search authorized by the warrant. Second, failure to find items during a prior search does not destroy probable cause for a subsequent search, if there is reason to believe the evidence could have been overlooked. See United States v. Blom, 242 F.3d 799, 807 (8th Cir. 2001). Here, the affidavit indicated that the home was extremely cluttered, making it likely that relevant evidence was overlooked. Third, even if the evidence was not in Carlson’s home at the time of the prior search, that absence is immaterial. See United States v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993) (holding that evidence does not need to be at the location to be searched at the time the warrant issues, so long as there was probable cause to support a belief that it will be there when the warrant is executed). The Court finds that the affidavit as a whole supported a conclusion that the items listed were likely to be in Carlson’s home at the time the warrant was executed, and the warrant was, therefore, supported by probable cause.

Defendant conceded his cell phones were properly seized, but the government’s 90 day delay in getting a search warrant for the cell phones were unreasonable and required suppression. United States v. Shaw, 2012 U.S. Dist. LEXIS 32624 (N.D. Ga. February 10, 2012):

The facts of the instant case are not materially distinguishable from Mitchell [United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009),] and dictate the same result. In Mitchell, the computer hard drive was seized without Defendant’s consent based upon the officers’ belief it might contain child pornography. Likewise, in the instant case, the three cell phones were seized without Defendant’s consent, incident to arrest and based upon probable cause to believe the phones may have been used in furtherance of the indicted drug conspiracy offenses. Like a computer hard drive, cell phones contain personal information, contacts, text messages, photographs, and other data maintained in electronic form. Also as in Mitchell, the government in the instant case has offered no substantial justification for its failure to obtain the warrants for more than ninety days, well in excess of the twenty-one days in Mitchell. Indeed, the government has offered no justification at all for the delay. Rather, the government relies primarily on the argument that Defendant did not ask for the return of his property and on the contention that the cell phones could be detained because they possessed evidentiary value in and of themselves, regardless of any information contained within them. Govt. Brief at 7, [Doc. 485].

. . .

With regard to the absence of any request for return of the property, there is no evidence that such a request was made in this case, or, for that matter, in Mitchell. Because this fact was not discussed or noted in Mitchell, the failure to request return would not appear to have figured significantly, if at all, in the Court’s analysis. Likewise, the failure by Defendant to request return of his cell phones in this case should not change the result here.

As for the argument that the phones were evidence “in and of themselves” warranting indefinite detention, the government does not explain exactly how the phones would fall into such a category, or cite any authority for such a proposition. The phones were not in and of themselves contraband, nor was their evidentiary value readily apparent without regard to other information to be obtained from the phones. By extension of the government’s logic, the hard drive in Mitchell could be considered evidence “in and of itself” subject to indefinite detention without a warrant because there was probable cause to believe it was used to facilitate the possession of child pornography.

Defendant certainly had a possessory interest in his personal property – his cell phones – that was significantly interfered with for more than ninety days, without Defendant’s consent, before the government got around to obtaining a warrant. The fact that the Defendant was detained without bond and could not, himself, have accepted the return of the property does not equate with the government’s right to exclude him or his designee from his property indefinitely without a warrant. Furthermore, the government has offered no justification or rationale for the delay. In short, the undersigned, applying the rule of reasonableness announced in Mitchell, concludes that the government’s delay in the instant case was certainly as unreasonable, if not more unreasonable, than was the delay in Mitchell under substantially similar circumstances.

Accordingly, the undersigned RECOMMENDS that the motions to suppress, [Docs. 362, 338], be GRANTED and that the evidence obtained from the cell phones be suppressed.

Just because a motorist is stopped with flashing lights, frisked, and put in a police car, that does not make it a “custodial interrogation” for Miranda purposes under Berkemer. United States v. Hernandez-Rodriguez, 2012 U.S. Dist. LEXIS 31918 (M.D. N.C. March 7, 2012):

When police question a suspect outside of a police station environment, however, “Miranda is not triggered simply because a person detained by the police has reasonable cause to believe that he is not free to leave.” United States v. Streifel, 781 F.2d 953, 961 (1st Cir. 1986); United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995) (“[T]he perception … that one is not free to leave is insufficient to convert a Terry stop into an arrest.” (second alteration in original) (quoting United States v. Moore, 817 F.2d 1105, 1108 (4th Cir. 1987))). The “free to leave” standard, without more, determines whether an individual is “seized” within the meaning of the Fourth Amendment such that any evidence uncovered during a search conducted without a reasonable suspicion that criminal activity was afoot must be excluded. United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002) (“[A] ‘seizure’ warranting protection of the Fourth Amendment occurs when … a reasonable person would not feel free to leave or otherwise terminate the encounter.”).

The fact that a person has been seized within the meaning of the Fourth Amendment, therefore, does not necessarily mean that he is “in custody” within the meaning of the Fifth Amendment. United States v. Collins, 972 F.2d 1385, 1405 (5th Cir. 1992) (“[A]lthough a temporary Fourth Amendment seizure may have occurred . . ., a Fifth Amendment custodial situation did not.”). Instead, the court must consider a “host of factors” in deciding whether the suspect’s freedom of action has been curtailed to “a degree associated with formal arrest.” Streifel, 781 F.2d at 961 (citation omitted). Those factors include the location of the questioning, the number of officers present, the degree of physical restraint exercised over the defendant, and the duration and character of the interrogation. United States v. Teemer, 394 F.3d 59, 66 (1st Cir. 2005).

Applying these factors in the context of a traffic stop, the Supreme Court in Berkemer v. McCarty, 468 U.S. 420 (1984), held that an individual subject to a routine traffic stop is not entitled to Miranda warnings prior to police questioning. According to the Court, routine traffic stops are “presumptively temporary and brief,” in contrast to station-house interrogations which can extend indefinitely. Id. at 437-38. In addition, the public nature of most traffic stops, coupled with the small number of police officers typically involved, indicate that “the atmosphere surrounding an ordinary traffic stop is substantially less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.” Id. at 438-39.

Here, Hernandez-Rodriguez’s vehicle was stopped for a clear traffic violation, and there is no indication that the trooper’s questions or the atmosphere of the encounter were coercive. …

Donald A. Dripps, Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment, 81 Miss. L. J. 133 (2011). SSRN Abstract:

Granting for purposes of argument the general theoretical case for interpreting constitutional text according to some version of the original understanding, this contribution to the University of Mississippi’s 2011 Fourth Amendment symposium argues that consulting founding-era practices at the particular level is not a faithful approach to the original understanding. I develop two lines of objection to specific-practices originalism (SPO). I call one the contextual critique and the second the dynamism critique.

The constitutional text was situated in the context of eighteenth-century institutions and doctrines that disappeared in the nineteenth century. The utter disappearance of the context means that we just don’t know what the founders expected the Fourth Amendment to prohibit, or permit, in a radically different legal and technological environment. The degree of privacy and liberty in 1791 were a product of the contemporary criminal justice system, the economic and technological social circumstances, and the legal regime that limited search-and-arrest powers. The rules of 1791 would have different consequences for liberty and security in a society like today’s, with full-time proactive police and modern technology.

The dynamism critique points out that the 1791 rules of search-and-seizure were not static. Tort law was the legal regime regulating search-and-arrest powers. Illegal detention gave rise to actions for false arrest or false imprisonment. Illegal entries of private premises gave rise to trespass suits. But common law can change. Precedents can be overruled, and new factual contexts require debatable applications of old principles. Most dramatically, common law rules can be trumped by statutes.

If the reasonableness clause perpetuates all the specific 1791 tort rules, the force of the contextual critique becomes overwhelming. If, however, the clause incorporates common law rules subject to plenary statutory revision, the constitutional provision is nugatory. Either the Fourth Amendment freezes search-and-seizure law in the form it had before the advent of modern police and modern technology, or it permits any search or arrest authorized by statute. Some search for principled middle ground seems in order. The interpretive mode most faithful to the original understanding is “aspirational balance of advantage originalism,” a mode practically very similar indeed to competing approaches such as common-law constitutionalism or legal process theory.

The victim of a domestic assault reported to the police that defendant had a gun, and he would be a felon in possession. When his car was quickly seen thereafter, that was probable cause for a stop and search under the automobile exception. State v. Craig, 807 N.W.2d 453 (Minn. App. 2011).*

A search warrant for persons at a particular house particularly described them: the search was limited to black men of particularized heights and weights, with described skin color differentiations, facial hair, and hairstyles. Commonwealth v. Johnson, 2011 PA Super 256, 33 A.3d 122 (2011).*

Defendant’s stop was for following too close the vehicle in front. The fact the officer on the highway may have caused the car in front to slow down did not cause the traffic violation. United States v. Privratsky, 2011 U.S. Dist. LEXIS 139613 (S.D. Ohio December 5, 2011).*

Defendant did not object to his wife’s consent, so he finds no refuge in Randolph. State v. Pirtle, 2011 WI App 89, 334 Wis. 2d 211, 799 N.W.2d 492 (2011).*

The record clearly supports that defendant consented to the taking of a buccal swab for DNA. State v. Vargas, 66 So. 3d 29 (La. App. 5th Cir. 2011).*

The record supports that the defendant consented to a police entry to talk about child pornography and his statements. People v. Roberts, 292 Mich. App. 492, 808 N.W.2d 290 (2011).*

The deputy court clerk issued the arrest warrant on probable cause, and, after all, mistakes by clerks are not subject to exclusion under Evans. United States v. Newsome, 2011 U.S. Dist. LEXIS 49979 (N.D. Ohio May 10, 2011).* [So, why is the issue not the fact that this arrest warrant was not issued by a neutral and detached judicial officer instead of a deputy clerk with a rubberstamp? I won this issue in Arkansas back in the 1980s that clerks had no constitutional authority to issue arrest warrants based on an affidavit from a cop. That is a nondelegable judicial function.]

Having searched a car and seizing evidence under a search warrant, a separate search warrant is not required to search a cell phone that was properly seized as evidence of a crime under the warrant. State v. White, 227 W. Va. 231, 707 S.E.2d 841 (2011):

… Instead, the question that must be answered to resolve this issue is whether a separate search warrant is required to examine the contents of items seized in the execution of a valid search warrant. The United States Supreme Court touched on this issue in the case of United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). In Ross, the Supreme Court explained that

[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.

456 U.S. at 820-21, 102 S. Ct. at 2170-71, 72 L. Ed.2d 572 (footnotes omitted). This Court previously has indicated its approval of Ross, which was quoted in State v. Lacy, 196 W. Va. 104, 116, 468 S.E.2d 719, 731 (1996). Furthermore, it has been observed generally that an additional warrant is not required to examine seized objects. See 2 Wayne R. LaFave, Search and Seizure, § 4.10(e) at 771 (4th ed. 2004) (observing that “[p]erhaps because it is generally understood that a lawful seizure of apparent evidence of crime pursuant to a search warrant carries with it a right to test or otherwise examine the seized materials to ascertain or enhance their evidentiary value, this issue is rarely litigated” (footnote omitted)). Cf. Commonwealth v. Copenhefer, 526 Pa. 555, 562, 587 A.2d 1353, 1356 (1991) (“A paper tablet, seized pursuant to a valid search warrant, may be subjected to scientific and physical manipulation and analysis without a second search warrant. … The same would be true of a diary recorded in a private code. If we accepted appellant’s argument, after seizing the diary pursuant to a valid search warrant, the state would be obligated to obtain a second warrant before it could attempt to read the diary by deciphering the code. Yet the diarist’s obvious attempt to achieve secrecy does not create a legally protected expectation of privacy nor the need to obtain a warrant before subjecting legally seized physical evidence to scientific testing and analysis to make it divulge its secrets.”), abrogated in part on other grounds by Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069 (2001); State v. Gregory, 158 Wash. 2d 759, 826, 147 P.3d 1201, 1236 (2006) (observing that “once a suspect’s property is lawfully in the State’s control, the State may perform forensic tests and use the resulting information to further unrelated criminal investigations, without violating the owner’s Fourth Amendment rights (citing State v. Cheatam, 150 Wash. 2d 626, 638, 81 P.3d 830 (2003))).

Accordingly, we now expressly hold that, when searching a vehicle pursuant to a valid search warrant, no additional search warrant is required to examine the contents of items that are properly seized in the execution of the warrant, including, but not limited to, cellular telephones. Applying this holding to the case at hand, we find the contents of the Motorola cellular telephone seized from Mr. Mahrous’s yellow truck were properly examined by law enforcement officials. Therefore, the trial court did not err in denying Mr. White’s motion to suppress evidence that was obtained as a result of that examination.

[Note: Therefore, under this rationale, a computer would be subject to the search warrant if, and this is a big if, the probable cause extended to the computer. It might not. Here, the cell phone was clearly of evidentiary value. Without knowing more, a computer would not be.]

Defendant could be ordered from his car during a traffic stop without it being a “seizure.” Engstrom v. N.D. DOT, 2011 ND 235, 807 N.W.2d 602 (2011).*

The smell of alcohol is reasonable suspicion for a further detention. State v. Smith, 2011 Tenn. Crim. App. LEXIS 913 (December 12, 2011).*

Court reaffirms (State v. Machuca, 231 Ore. App. 232, 218 P.3d 145 (2009) (Machuca I),rev’d on other grounds, 347 Ore. 644, 227 P.3d 729 (2010) (Machuca II)), that consent obtained after explanation of the economic penalties involved in refusal of consent is involuntary. State v. Moore, 247 Ore. App. 39, 269 P.3d 72 (2011).*

The state constitution does not require that a search warrant for blood be physically present at the time of the search. The court surveys many cases from state and federal courts and concludes that presence of the warrant is not required. State v. Breuer, 808 N.W.2d 195 (Iowa 2012):

At the outset, we note that Iowa has no express constitutional, statutory, or procedural provision requiring a search warrant to be physically present before a search may begin. Like the Fourth Amendment, neither the Reasonableness Clause nor the Warrant Clause of article I, section 8 mentions whether the warrant must be physically present during the search. Likewise, Iowa Code section 808.5, which governs the manner in which search warrants are to be executed, is silent on the issue. See Iowa Code § 808.5. Also, Iowa Code section 808.8 requires officers to provide a receipt or inventory of items taken after the search, but it creates in the officers no obligation to possess or present the warrant before the search begins. See id. § 808.8. Furthermore, the Iowa Rules of Criminal Procedure contain no rule explicitly requiring officers to be in physical possession of the search warrant before they may begin searching.

WV adopts the community caretaking doctrine. Here, the officer encountered a car parked in front of a gate to a dirt road with the flashers on and the engine off. It was reasonable to try to locate the driver. This case arose in the context of a driver’s license suspension proceeding. Ullom v. Miller, 227 W. Va. 1, 705 S.E.2d 111 (2010):

We now believe it is appropriate to join the majority of jurisdictions who recognize the community caretaker doctrine, formally recognizing the expectation in West Virginia that the role of law enforcement personnel is not limited to merely the detection and prevention of criminal activity, but also encompasses a non-investigatory, non-criminal role of police officers to help to ensure the safety and welfare of our citizens. In recognizing this doctrine, however, we are mindful of the important protections of the Fourth Amendment and Article III, Section 6, relating to searches and seizures. In order to balance the caretaking role of police officers with the fundamental protections against unreasonable searches and seizures found in the United States Constitution and the Constitution of West Virginia, we believe it necessary to establish specific requirements for applicability of the community caretaker exception to ensure that the privacy expectations of West Virginia’s citizens are balanced with the immediate safety and welfare needs of motorists or the public in situations where the immediate safety and welfare of citizens is reasonably at issue.

No single set of specific requirements for applicability of the community caretaker exception has been adopted by a majority of those states recognizing the exception. Based upon our review of the requirements established in other states, we believe that the requirements recently adopted by the Supreme Court of South Dakota in State v. Deneui, 2009 SD 99, 775 N.W.2d 221 (S.D. 2009), cert. denied, __ U.S. ___, 130 S. Ct. 2072, 176 L. Ed. 2d 422 (2010), with modification, provide appropriate direction as we endeavor to best satisfy the reasonableness requirements of the Fourth Amendment and Article III, Section 6, and effect a necessary balance between the privacy expectations of West Virginia citizens and the need for police officers to properly execute their community caretaking duties. Accordingly, after due consideration, we now hold that, for an encounter to come within the community caretaker doctrine exception to the warrant requirement, the State must establish the following:

1. Given the totality of the circumstances, a reasonable and prudent police officer would have perceived a need to promptly act in the proper discharge of his or her community caretaker duties;

2. Community caretaking must be the objectively reasonable, independent and substantial justification for the intrusion;

3. The police officer’s action must be apart from the intent to arrest, or the detection, investigation, or acquisition of criminal evidence; and

4. The police officer must be able to articulate specific facts that, taken with rational inferences, reasonably warrant the intrusion.

Defendant was validly stopped for suspicion of counterfeiting. He said the $20 bill came from another store, and he agreed to a patdown for more currency, but he finally revoked. “The State admits that Defendant’s consent was likely revoked once he lowered his arms and protested whether ‘we really have to do this,’ demonstrating by his conduct that he did not consent to the patdown search extending to his jacket pocket. We agree.” That led to finding a baggie of cocaine, which was unreasonable. State v. Jacko, 2011 Ohio 6494, 2011 Ohio App. LEXIS 5353 (2d Dist. December 16, 2011).*

Defendant failed to show any connection to the premises for standing as a resident or guest. Even if he did, the search was valid by third-party consent. State v. Smith, 2011 Ohio 6466, 2011 Ohio App. LEXIS 5307 (8th Dist. December 15, 2011).*

An alleged failure of a law enforcement officer to follow protocol established by the Kansas Department of Health and Environment for administering a breath test to determine the blood-alcohol level of a suspected drunk driver is not itself a violation of a constitutional right and is not legally sufficient to support a motion to suppress. But because the alleged failure goes to the evidentiary foundation for admission of the test results, such evidence might be challenged before trial by a motion in limine. State v. Smith, 46 Kan. App. 2d 939, 268 P.3d 1206 (2011).*

Executing a valid search warrant, officer forcibly entered into the plaintiff’s apartment with guns drawn, 8-10 seconds after knocking and announcing their presence, and detained five occupants. It was not unreasonable for the officers to believe that any further delay in entering would be dangerous, futile, or ineffective, especially since the occupants were on notice that the police were outside and about to enter prior to the knock on the door. The force used by the officers to secure the premises was not unreasonable. Pointing guns at the plaintiff during the initial protective sweep was not unreasonable because the execution of a warrant to search for narcotics was the kind of transaction that could give rise to sudden violence or frantic efforts to conceal or destroy evidence. Moving the plaintiff to the living room and forcing her to the floor was also not unreasonable, as well as using handcuffs to detain the occupants while the residence was being secured. The detainment only took 15-20 minutes, and there was no evidence that the detainment was longer than necessary to permit the officers to conduct a protective sweep and secure the premises. Jama v. City of Seattle, 446 Fed. Appx. 865 (9th Cir. 2011).*

The fourth CI’s information alone was enough to issue the search warrant, and it involved a controlled buy. United States v. Johnson, 655 F.3d 594 (7th Cir. 2011).*

The search of defendant’s car was based on the automobile exception and seeing stolen property in plain view inside it. Gant did not apply. United States v. Southerland, 442 Fed. Appx. 767 (4th Cir. 2011).*

On an excessive force claim, the videotape of the occurrence was pretty much conclusive as to what happened, and it supported summary judgment for the officer. Mere use of a racial epithet didn’t change the outcome. Brims v. Barlow, 441 Fed. Appx. 674 (11th Cir. 2011) (unpublished).*

The probable cause showing in the search warrant affidavit was deficient, but not so deficient that the officer could not rely on it for the good faith exception. United States v. Burrell, 445 Fed. Appx. 195 (11th Cir. 2011).*

The police came to execute an arrest warrant with a battering ram, and then broke in. Defendant lived with his mother. Inside, they got consent from her to search defendant’s room and found crack and a gun. The consent was valid. United States v. Richardson, 447 Fed. Appx. 329 (3d Cir. 2011).*

Defendant’s stop for driving less than the posted speed limit in a truck on I-10 trough Tucson was valid. As the officer approached, passengers were ducking which strongly suggested they were illegals in the U.S. hiding from the police. United States v. Morales, 2011 U.S. Dist. LEXIS 135125 (D. Ariz. October 4, 2011).*

“In this case, the detectives had reasonable suspicion that criminal activity was afoot after they stopped the car and smelled burnt marijuana. After Brooks denied having anything in the car, he voluntarily got out, raised his arms over his head and consented to a pat down. Then he fled and resisted arrest. At this point, and once the firearm was discovered, the detectives had ample authority to arrest.” United States v. Brooks, 448 Fed. Appx. 27 (11th Cir. 2011).*

Defendant’s stop was justified as a parole search because officers knew he was on parole at the time of the stop. United States v. Woodson, 2011 U.S. Dist. LEXIS 135271 (N.D. Cal. November 23, 2011).*

The officer did not have reasonable suspicion to approach and talk to defendant in a parking lot known for drug sales. The conversation was by consent. “A seizure began when Officer Burkey stood at the passenger’s side of Parker’s vehicle (while Officer Sampson stood on the other side), after smelling marijuana, and asked Parker if he was smoking marijuana. A reasonable person would not feel as though he or she could leave when two police officers were standing on either side of his or her vehicle inquiring as to whether any illegal activity was occurring.” By then the officer had reasonable suspicion. United States v. Parker, 2012 U.S. Dist. LEXIS 1385 (S.D. Ohio January 5, 2012).*

Defendant’s turning around and coming back when officer called for him was consent. A second request did not escalate it to an order. United States v. Brown, 447 Fed. Appx. 706 (6th Cir. 2012)*:

We may reasonably infer from Brown’s decision to turn his car around and drive toward Officer Pesa that Brown consented to stopping to oblige an officer’s request. See Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216 (1984) (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”). Although Officer Pesa followed up his request to “come here” with a request to stop, nothing in the record suggests that Brown stopped because of Officer Pesa’s later instruction. Rather, Officer Pesa’s request came after Brown already turned his car around, evincing an intent to stop. Officer Pesa’s second request is best interpreted as a continuation or renewal of the initial request, rather than as an escalating, coercive order. See Florida v. Rodriguez, 469 U.S. 1, 4 (1984) (holding that consensual interaction occurred when officer first asked defendant to talk with him, defendant consented, and officer then asked defendant to step fifteen feet aside to talk). Brown’s behavior in advance of Officer Pesa’s request to stop suggests that Brown stopped and engaged in a conversation with Officer Pesa voluntarily.

Officers query to “come over here” was not a command; it could legally be ignored. City of Columbus v. Body, 2012 Ohio 379, 2012 Ohio App. LEXIS 318 (10th Dist. February 2, 2012):

[*P18] Federal courts have also recognized that “simply calling out to someone to come over to talk does not constitute a seizure.” United States v. Brown (C.A.6, 2012), 447 Fed. Appx. 706, citing United States v. Matthews (C.A.6, 2002), 278 F.3d 560, 562. In Brown, the officer “holler[ed] for [the defendant] to come here,” at which point the defendant turned his car around. The Sixth Circuit relied on its earlier decision in Matthews where it found that the statement, “Hey, buddy, come here,” did not constitute a stop because the addressee could have “politely declined to do so, and walked away.” Id., citing Matthews, 278 F.3d at 562; see also United States v. Richardson (C.A.8, 2008), 537 F.3d 951, 956 (no seizure where the officer states “[c]ome here” in a “[p]olice tone of voice”).

[And I’ve got a bridge to sell you.]

When a dog alerts on a car, and the defendant is in the car, the defendant’s pockets are not “containers” subject to search under the automobile exception because of the heightened privacy interest in one’s person. State v. Gefroh, 2011 ND 153, 801 N.W.2d 429 (2011):

[*P13] We hold the automobile exception did not justify the warrantless search of Gefroh’s person. The dog-sniff of the vehicle established probable cause the vehicle contained a controlled substance, but the pockets of the clothes Gefroh was wearing were not “containers.” The State also argued that Gefroh, as the driver of the vehicle, was part of the contents of the vehicle. The State offers no support for its arguments that would render Gefroh a container or contents of the vehicle, rather than a person entitled to “heightened protection” against searches of his person. The district court correctly decided the automobile exception justified the search of the vehicle, but not Gefroh’s person. The district court correctly ordered the cocaine evidence suppressed.

Defendant has no standing on the face of his motion: He was a passenger and his consent was not required. United States v. Lopez, 2011 U.S. Dist. LEXIS 91349 (S.D. N.Y. August 16, 2011).*

Officers are not required to schedule a search at a time when defendant is not home or excuse him while they search. United States v. Fautz, 812 F. Supp. 2d 570 (D. N.J. 2011).*

While Eighth Circuit case law suggests that one driving a rental car with the permission of the renter might have standing, in this case he wouldn’t. The car was overdue, and the rental car company was trying to get it back and told the renter she was no longer authorized to have it. United States v. Lumpkins, 2011 U.S. Dist. LEXIS 91357 (W.D. Mo. July 6, 2011).*